Title of Regulation: 12VAC5-507. Nursing Scholarships and Loan Repayment Program Requiring Service in a Long-Term Care Facility (adding 12VAC5-507-10 through 12VAC5-507-260).

Statutory Authority: § 32.1-122.6:01 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 21, 2012.

Agency Contact: Aileen Harris, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7436, or email aileen.harris@vdh.virginia.gov.

Basis: Section 54.1-3011.2 of the Code of Virginia establishes the Nursing Scholarship and Loan Repayment Fund, which the Board of Health and the Board of Nursing, pursuant to § 32.1-122.6:01 of the Code of Virginia, are to administer. Awarded funds are to be transmitted to the appropriate institution to be credited to the account of the recipient. Section 32.1-122.6:01 B requires the establishment of a nursing scholarship and loan repayment program for registered nurses, licensed practical nurses, and certified nurse aides who agree to perform a period of service in a Commonwealth long-term care facility pursuant to regulations promulgated by the Board of Health in cooperation with the Board of Nursing.

Purpose: Regulations to implement the program are essential to addressing the shortage of trained medical professionals in the Commonwealth. The primary advantage will be the increase of availability of adequate, quality nursing care in long-term care facilities. Another advantage is that the long-term care facilities will be better positioned to retain qualified nurses because of the obligation created by accepting these scholarship or loan repayment funds.

Substance: A nursing scholarship and loan repayment program requiring service in a long-term care facility within the Commonwealth of Virginia is established. This program is for registered nurses, licensed practical nurses, and certified nurse aides. Scholarships will be given to qualifying nurses in exchange for service in the nursing profession in a long-term care facility in the Commonwealth. The loan repayment portion of the program will repay educational loans for qualifying applicants in exchange for service in the nursing profession in a long-term care facility in the Commonwealth. No funding has been appropriated to implement this program.

Issues: These new regulations will significantly support the recruitment and retention of nursing staff in long-term care facilities. The program establishes incentives for certified nurse aids who perform a vital function in these facilities and currently are not included in any workforce incentive program. The promulgation of these regulations should not pose any disadvantage to the public or the Commonwealth. The agency, however, will incur additional administrative costs, which are not currently covered by any appropriation. Expanding the qualified pool of long-term care nursing staff is generally viewed as a major means of improving the quality of care in long term care nursing facilities.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapters 240 and 254 of the 2000 Acts of Assembly, directed the Board of Health (Board) to establish a program under which participants receive scholarships or educational loan repayments in exchange for a period of nursing service in a long-term care facility (traditionally known as a nursing home). The Board did not initially promulgate regulations due to the absence of funding. In 2010 it came to the Board's attention that the regulations still had not been promulgated, so they elected to move forward so that regulations could be in place should funding become available in the future. Thus the Board now proposes these regulations to establish a program under which participants receive scholarship or educational loan repayment in exchange for a period of nursing service in a long-term care facility in the Commonwealth.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The proposed regulations establish sections relating to legislative authority and general information, definitions, scholarship rules (eligibility, conditions, number of applications per student, amounts of scholarships, how to apply, deadline dates) and loan repayment rules (administration of the nursing loan repayment program, eligibility, application requirement and restrictions, selection criteria, loan repayment amount, loans qualifying for repayment, repayment restrictions, release of information, effective date for start of service, repayment policy, disbursement procedure, compensation during service, monitoring during service, terms of service, loan repayment contract, breach of contract, waiver and suspension, cash reimbursement and penalty, and reporting requirements). Placing the requirements of the Nursing Scholarships and Loan Repayment Program Requiring Service in a Long-Term-Care Facility in regulation will be beneficial in that it will reduce uncertainty for potential scholarship candidates.

Businesses and Entities Affected. The proposed regulations affect long-term care facilities, traditionally known as a nursing home, including both skilled nursing facilities and intermediate care facilities depending on the extent of nursing and related medical care provided. The majority of these facilities could be small businesses. In Virginia, there are approximately 280 long-term care facilities that could be affected.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. If funded, implementation of the Nursing Scholarships and Loan Repayment Program Requiring Service in a Long-Term-Care Facility could help alleviate the shortage of nurses in long-term care facilities.

Effects on the Use and Value of Private Property. If funded, implementation of the Nursing Scholarships and Loan Repayment Program Requiring Service in a Long-Term-Care Facility could help alleviate the shortage of nurses in long-term care facilities.

Small Businesses: Costs and Other Effects. If funded, implementation of the Nursing Scholarships and Loan Repayment Program Requiring Service in a Long-Term-Care Facility may marginally reduce the cost of finding and employing nurses for small long-term care facilities.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations do not adversely affect small businesses.

Real Estate Development Costs. The proposed regulations are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: Virginia Department of Health concurs with the conclusion reached by the Department of Planning and Budgets economic impact analysis that the benefits will likely exceed the costs for all proposed changes.

Summary:

The 2000 Acts of Assembly amended § 32.1-122.6:01 of the Code of Virginia to require the establishment of a program under which participants can receive scholarship or educational loan repayment in exchange for a period of nursing service in a long-term care facility in the Commonwealth. By providing these scholarship or loan repayment funds to eligible recipients, Virginia hopes to reduce its nursing shortage, especially in long-term care facilities. Until now, regulations for this section of the Code of Virginia have not been promulgated because no funding is available to implement this program.

NURSING SCHOLARSHIP AND LOAN REPAYMENT PROGRAM REQUIRING SERVICE IN A LONG-TERM CARE FACILITY

Part I
Legislative Authority and General Information

12VAC5-507-10. Legislative authority and general information.

Sections 32.1-122.6:01 of the Code of Virginia provides the Board of Health the authority to award certain nursing scholarships and loan repayment funds. Fee requirements are specified in §§ 54.1-3011.1 and 54.1-3011.2 of the Code of Virginia to establish the nursing scholarship and loan repayment fund.

All scholarship and loan repayment award recommendations will be made by the Nursing Scholarship Advisory Committee appointed by the State Board of Health. The commissioner may act for the Board of Health when it is not in session. The committee shall consist of eight members: four deans or directors of schools of nursing, two former scholarship participants, and two members with experience in the administration of student financial aid programs. Committee appointments are for two-year terms and members may not serve for more than two successive terms.

The Virginia Department of Health serves as the staff element to the advisory committee and plays no role in the determination of scholarship or loan repayment participants.

After scholarships are awarded, depending upon availability of funds, nursing educational loans will be repaid for those registered nurses, licensed practical nurses, and certified nurse aides applying and meeting eligibility criteria as set forth in this chapter.

This chapter sets forth the criteria for eligibility for the scholarship and loan repayment program for registered nurses, licensed practical nurses, or certified nurse aides; the general terms and conditions applicable to the obligation of each scholarship and loan repayment participant to practice in a long-term-care facility in the Commonwealth; and penalties for a participant's failure to fulfill the practice requirements.

12VAC5-507-15. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" or "Board of Health" means the State Board of Health.

"Certified nurse aide" or "CNA" means an individual who has completed a nurse aide education program that is approved by the Board of Nursing, successfully passed the competency evaluation, and made application and been given certification by the Board of Nursing in the Commonwealth of Virginia.

"Commercial loans" means loans made by banks, credit unions, savings and loan associations, insurance companies, schools, and either financial or credit institutions that are subject to examination and supervision in their capacity as lenders by an agency of the United States or of the state in which the lender has its principal place of business.

"Commissioner" means the State Health Commissioner.

"Department" means Virginia Department of Health.

"Full-time" means at least 32 hours per week for 45 weeks per year.

"Licensed practical nurse" or "LPN" means a nurse who has completed a practical nurse program and is licensed by the Commonwealth of Virginia to provide routine care under the supervision of a licensed medical practitioner, a professional nurse, registered nurse, registered professional nurse, or other licensed health professional authorized by regulations of the Board of Nursing.

"Long-term care facility" means a licensed facility in the Commonwealth traditionally known as a nursing home, including both skilled nursing facilities and intermediate care facilities depending on the extent of nursing and related medical care provided.

"Participant" or "loan repayment participant" means an eligible registered nurse, a licensed practical nurse, or a certified nurse aide student or graduate who enters into a contract with the commissioner and participates in the scholarship or loan repayment program.

"Interest" means the legal rate of interest pursuant to the Code of Virginia.

"Penalty" means the amount of money equal to twice the amount of all monetary payments to the scholarship or loan repayment participant, less any service obligation completed.

"Reasonable educational expenses" means the costs of education, exclusive of tuition, that are considered to be required by the school's degree program or an eligible program of study, such as fees for room, board, transportation and commuting costs, books, supplies, educational equipment and materials, and travel that was a part of the estimated student budget of the school in which the participant was enrolled.

"Registered nurse" or "RN" means a nurse who has passed a state registration examination and has been licensed to practice nursing by the Board of Nursing in the Commonwealth of Virginia.

Part II
Administration of Nursing Scholarship Program

12VAC5-507-20. Eligibility for scholarships.

In order to be considered for a scholarship, applicants must meet the following criteria:

1. Be a bona fide resident of Virginia for at least one year as determined by § 23-7.4 of the Code of Virginia;

2. Be accepted for enrollment or enrolled in an approved nursing education program preparing them for examination for licensure as practical nurses or registered nurses or accepted for enrollment or enrolled in an approved nurse aide education program preparing them for certification;

3. Submit a completed application form and appropriate grade transcript prior to the established deadline dates; and

4. Demonstrate financial need which is verified by the financial aid officer/authorized person.

Failure to comply with all of these criteria will cause the applicant to be ineligible for a scholarship.

12VAC5-507-30. Conditions of scholarships.

For each $100 of scholarship money received, the participant agrees to engage in the equivalent of one month of full-time nursing practice in a long-term care facility in the Commonwealth. Employment must begin within 90 days of the participant's graduation date. Voluntary military service, even if stationed in Virginia, cannot be used to repay the service obligation required when a scholarship is awarded.

The participant shall notify the department in writing of his employment location within 30 days of his employment at a long-term care facility in the Commonwealth.

The participant may request approval of a change of employment. The board in its discretion may approve such a request.

If a participant fails to complete his studies, the full amount of the scholarship or scholarships received, plus applicable interest charge, must be repaid.

If upon graduation a participant leaves the state or fails to engage or ceases to engage in nursing practice in a long-term care facility in Virginia before all employment conditions of the scholarship award are fulfilled, the participant must repay the award amount reduced by the proportion of obligated years served plus applicable interest and penalty.

If the participant is in default due to death or permanent disability so as not to be able to engage in nursing practice in a long-term care facility, the participant or his personal representative may be relieved of this obligation under the contract to engage in nursing practice upon repayment of the total amount of scholarship or loan repayment funds received plus applicable interest. For participants completing part of the nursing obligation prior to becoming permanently disabled or in the event of death, the total amount of scholarship or loan repayment funds owed shall be reduced by the proportion of obligated years served. The obligation to make restitution may be waived by the board upon application of the participant or the participant's estate to the board.

Individual cases of hardship may be considered by the board for forgiveness of payment or service.

Partial fulfillment of the participant's obligation shall reduce the amount of restitution plus penalty and applicable interest due by an amount of money equal to the same percentage of time employed.

All refund checks should be made payable to the Commonwealth of Virginia.

Before any scholarship is awarded, the applicant must sign a written contract agreeing to the terms established by law and the Board of Health.

12VAC5-507-40. Number of applications per student.

Scholarships are awarded for single academic years. However, the same student may, after demonstrating satisfactory progress in his studies, apply for and receive scholarship awards for any succeeding academic year or years. No student may receive scholarships for more than a total of four years.

12VAC5-507-50. Amounts of scholarships.

The amount of each scholarship award is dependent upon the amount of money appropriated by the General Assembly and the number of qualified applicants. No participant will receive an award for less than $150.

12VAC5-507-60. How to apply.

Application, guidelines, and additional information may be available from the dean/director of a nursing program or from the financial aid office or from the department.

It is preferred that applications are completed online by going to the department's website.

12VAC5-507-70. Deadline dates.

Applications will not be accepted more than two months in advance of the deadline, which is June 30.

Applications or transcripts received after 5 p.m. on the above date will not be considered for scholarship awards.

Part III
Administration of the Nursing Loan Repayment Program

12VAC5-507-80. Administration of the nursing loan repayment program.

The commissioner, as executive officer of the Board of Health, shall administer this program. Any requests for variance from this chapter shall be considered on an individual basis by the board.

12VAC5-507-90. Eligible applicants.

An eligible applicant for the nursing loan repayment program must:

1. Be a bona fide resident of Virginia for at least one year as determined by § 23-7.4 of the Code of Virginia;

2. Be a registered nurse, licensed practical nurse, or certified nurse aide;

3. Have graduated from an approved educational program pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia;

4. Have a valid unrestricted Virginia license to practice nursing or be certified as a nurse aide, a copy of which shall be furnished to the nursing loan repayment program;

5. Have submitted a completed application to participate in the nursing loan repayment program; and

6. Have signed and submitted a written contract agreeing to repay educational loans and to serve in a long-term care facility for the applicable period of obligated service in the Commonwealth.

12VAC5-507-100. Application requirement and restrictions.

The applicant must submit a completed application for loan repayment for the nursing loan repayment program, and the application must be received in the department between the dates of January 1 and May 1 of the year in which the applicant intends to initiate practice in the Commonwealth. The applicant must agree to serve a minimum of one year for a loan amount up to $1,200 to a maximum of four years for a loan amount up to $4,800.

12VAC5-507-110. Selection criteria.

Applicants shall be competitively reviewed and selected for participation in the nursing loan repayment program based upon the following criteria:

1. Commitment to serve in a long-term care facility. The individual's stated commitment to serve in a long-term care facility in the Commonwealth.

2. Virginia graduates. Preferential consideration will be given to individuals who are graduates of Virginia nursing schools (verification will be obtained by the nursing loan repayment program).

3. Availability for service. Individuals who are immediately eligible and available for service in a long-term care facility will be given preferential consideration.

4. Length of proposed commitment. Preferential consideration will be given to individuals who commit to longer periods of service in a long-term care facility.

5. Selection for participation. All of an individual's professional qualifications and competency to practice will be considered, including but not limited to certification in a specialty, professional achievements, and other indicators of competency received from supervisors and program directors.

6. No other obligations. Individuals shall have no other obligation for health professional service to the federal government or state government unless such obligation will be completely satisfied prior to the beginning of service under the nursing loan repayment program.

12VAC5-507-120. Loan repayment amount.

The amount that the state agrees to repay will depend upon availability of funds and the applicant's indebtedness, but no amount will exceed the total indebtedness. The nursing loan repayment program requires one year of service in a long-term care facility in the Commonwealth for up to $1,200 in loans paid by this program.

12VAC5-507-130. Loans qualifying for repayment.

Based on the availability of funds, the loan repayment program will pay for the cost of education necessary to obtain a nursing certificate, diploma, or degree. The program will pay toward the outstanding principal, interest, and related expense of federal, state, or local government loans and commercial loans obtained by the participant for:

1. School tuition and required fees incurred by the participant;

2. Other reasonable educational expenses; and

3. Reasonable living expenses as determined by the board.

12VAC5-507-140. Repayment restrictions.

A. The following financial debts or service obligations are not qualified for repayment by the loan repayment program:

1. Public Health Service Nursing Shortage Area Scholarship;

2. Public Health and National Health Service Corps Scholarship Training Program;

3. Indian Health Service Scholarship Program;

4. Armed Forces Health Professions Scholarship Programs;

5. National Health Service Corps Scholarship Program financial damages or loans obtained to repay such damages;

6. Indian Health Corps Scholarship or loan obtained to repay such damages;

7. Financial damages or loans obtained to repay damages incurred as a result of breach of contract with any other federal, state, local agency, or commercial institution;

8. Loans for which documentation verifying the educational use of the loans is not available or is not sufficient;

9. Loans or part of loans obtained for educational or personal expenses during the participant's education that exceed the "reasonable" level as determined by the school's standard budget in the year the loan was made;

10. Loans that have been repaid in full, and loans that incur their own obligation for service that has not yet been performed;

11. Loans from friends and relatives;

12. The Mary Marshall Nursing Scholarship Program; and

13. The Nursing Scholarship Program with a commitment to service in a long-term care facility.

B. The board will be the final authority in determining qualifying educational loans.

12VAC5-507-150. Release of information.

Applicants shall agree to execute a release to allow the board access to loan records, credit information, and information from lenders necessary to verify eligibility and to determine loan repayments. To facilitate the process, applicants should submit pay-off statements from each lending institution.

Participants who have consolidated qualifying loans with other loans may be asked to submit other documentation, such as copies of original loan applications, to verify the portion of the loan that qualifies for repayment.

The applicant is required to submit all requested loan documentation prior to approval by the board.

12VAC5-507-160. Effective date for start of service.

Applicants become participants in the loan repayment program only when the applicant and the commissioner or his designee have signed the loan repayment program contract. The effective start date of the obligated service under contract is the date of employment in a long-term care facility or the date of the commissioner's signature, whichever is later.

12VAC5-507-170. Repayment policy.

It will be the responsibility of the participant to negotiate with each lending institution for the terms of the educational loan repayments. Each lending institution must certify that the participant's debt is a valid educational loan prior to payment by the loan repayment program. Any penalties associated with early repayment shall be the responsibility of the participant.

12VAC5-507-180. Disbursement procedure.

The financial institution holding the educational loan will be paid one lump sum payment. This payment will be credited to the account of the participant in an amount up to $1,200 for a one year commitment within 45 days of the contract being signed by the applicant and the commissioner or his designee. If a participant wishes to commit to another year of service, he will be required to sign another contract. Depending on availability of funds, the nursing loan repayment program will pay the applicable financial institution another lump sum payment up to $1,200 for the additional year commitment. Payment will be made approximately 45 days after the beginning of the subsequent year. The maximum number of loans a participant can receive is four.

12VAC5-507-190. Compensation during service.

Each participant is responsible for negotiating his own compensation package directly with the site where he will provide nursing services in a long-term care facility.

12VAC5-507-200. Monitoring during service.

Monitoring of the service by participants shall be conducted on an ongoing basis by department staff. Service verification forms shall be submitted by the participant to the department semi-annually (every six months) and countersigned by a representative of the service site (e.g., the medical director, human resource coordinator, chief executive officer, etc.) certifying continuous full-time service by participants.

The participant is required to maintain practice records in a manner that will allow the department to readily determine if the individual has complied with or is complying with the terms and conditions of the participation agreement.

12VAC5-507-210. Terms of service.

The following are the terms of service for the loan repayment program:

1. The participant shall contract to provide one year of service with a maximum of up to four years in whole year increments. Additional service beyond the one year commitment is dependent upon the availability of state funds for the nursing loan repayment program. An existing contract may be renewed for one year at a time up to a maximum of four years as funds become available;

2. The participant shall begin service within 90 days from entering into the contract;

3. The participant shall provide full-time service. Time spent in an "on-call" status will not count toward the number of hours worked per week. Any exceptions to the "on-call" provisions of this subdivision must be approved in advance by the board prior to acceptance in the loan repayment program.

4. No period of advanced training may count toward satisfying a period of obligated service under this loan repayment program;

12VAC5-507-220. Loan repayment contract.

Prior to becoming a participant in the nursing loan repayment program, the applicant shall enter into a contract with the board agreeing to the terms and conditions upon which the loan repayment is granted. The contract shall:

1. Include the terms and conditions to carry out the purposes and intent of this program;

2. Provide that the participant will be required to provide nursing services in a long-term care facility in the Commonwealth for a minimum period of one year;

3. Provide for repayment of all amounts paid, plus interest and penalties, less any service time if the participant is found to be in breach of contract;

4. Be signed by the applicant; and

5. Be signed by the commissioner or her designee.

Part IV
Contract

12VAC5-507-230. Breach of contract.

The following may constitute breach of contract:

1. Participant's failure to begin or complete his term of obligated service in a long-term care facility under the terms and conditions of the nursing loan repayment contract, regardless of the length of the agreed period of obligated service;

2. Participant's falsification or misrepresentation of information or misrepresentation of information on the program application or verification forms or other required document;

3. Participant's employment being terminated for good cause as determined by the employer and confirmed by the department. If employment is terminated for reasons beyond the participant's control (e.g., closure of site), the participant must transfer to another long-term care facility site in the Commonwealth within six months of termination. Failure of participant to transfer to another site shall be deemed to be a breach of the contract; and

4. Participant's failure to provide all reasonable, usual, and customary full-time health care service in a long-term care facility for at least 45 weeks per year.

12VAC5-507-240. Waiver or suspension, or both.

Participants have the obligation to complete full-time continuous service for the period of their entire commitment. Under unusual circumstances (e.g., illness), a participant may request that the board agree to a postponement of the service obligation. This postponement, if granted, will not relieve the participant of the responsibility to complete the remaining portion of the obligation. Such postponement will not be permitted as a matter of course, but may be allowed in the most compelling cases.

If the participant is in default due to death or permanent disability, the obligation to make restitution may be waived by the board upon application of the participant or the participant's estate to the board.

12VAC5-507-250. Cash reimbursement and penalty.

Participants who serve less than their obligated service are liable to pay monetary damages to the Commonwealth as stated in the contract, reduced by the proportion of obligated years served. The default penalty will require the participant to repay twice the total amount of the award received. For example, if a participant owes $1,200, he would have to repay at total of $2,400.

Participants who serve less than their obligated service due to permanent disability or in the event of death shall have the total amount of scholarship or loan repayment funds owed reduced by the proportion of obligated years served.

Part V
Records and Reporting

12VAC5-507-260. Reporting requirements.

Reporting requirements of the loan repayment participant are as follows:

1. Each participant shall at any time provide information as required by the board to verify compliance with the practice requirements of the nursing loan repayment program (e.g., verification of employment in a long-term care facility).

2. Each participant shall promptly notify the board in writing within 30 days before any of the following events occur:

a. Participant changes name;

b. Participant changes address;

c. Participant changes practice site;

d. Participant no longer intends to fulfill service obligation as a nurse in the Commonwealth in a long-term care facility; or

e. Participant ceases to practice as a registered nurse, licensed practical nurse, or certified nurse aide.