Title of Regulation: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-300).

Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 6, 2013.

Effective Date: November 21, 2013.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of Chapter 24 (§ 54.1-2400 et seq.) of Title 54.1 of the Code of Virginia. Section 54.1-2400 provides the Board of Nursing the authority to promulgate regulations to administer the regulatory system.

Purpose: The purpose of the regulatory action is to establish that unprofessional conduct includes failure to comply with Code of Virginia requirements for nurses to report evidence of child abuse or elder abuse of which they become aware in the course of their professional duties. Registered and licensed professional nurses are already mandated reporters according to the Code of Virginia, but there are no specific grounds for disciplinary action for failure to comply with reporting requirements. Consequently, the board determined that such an action should constitute unprofessional conduct under statute and regulation that may be cited as an allegation in a notice for hearing for a disciplinary proceeding. A nurse who fails to report evidence of abuse may jeopardize the health and safety of a child or an elder who is at risk of harm.

Rationale for Using Fast-Track Process: Following a report of suspected child abuse and child trafficking, the Attorney General recommended that affected boards include in their regulatory text specific language to take disciplinary action against their licensees for failure to report. Action to amend regulations was considered urgent to protect the public. Since nurses are already mandated reporters, there should be no controversy.

Substance: 18VAC90-20-300 is amended to add failure to report evidence of child abuse or elder abuse, as required by the Code of Virginia, to the definition of unprofessional conduct as grounds for disciplinary action.

Issues: The primary advantage to the public is the ability of the board to take disciplinary action if a nurse fails to report and thereby facilitates the abuse of a child or an elder. There are no disadvantages. There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to add the following to the definition of unprofessional conduct as grounds for disciplinary action: 1) failure to report evidence of child abuse or neglect, and 2) failure to report evidence of elder abuse or neglect. The reporting requirements are already contained within the Code of Virginia,¹ but are not currently enumerated in this regulation's list of grounds for disciplinary action. The Office of the Attorney General suggested that boards who administer professions to which this reporting requirement pertains specifically include such language in their regulatory text. This action is being taken to implement that recommendation.

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

Estimated Economic Impact. As referred to above, licensed nurse practitioners, registered nurses and licensed practical nurses are already required by statute to report evidence of child abuse or neglect as well as evidence of elder abuse or neglect. Further, § 54.1-3007 of the Code of Virginia states that the Board may take disciplinary action for unprofessional conduct. Given that the Code already requires the reporting of evidence of abuse or neglect, failure to report can reasonably be considered unprofessional conduct which could be considered grounds for discipline. Thus the proposal to add failure to report evidence of child abuse or neglect and failure to report evidence of elder abuse or neglect to the definition of unprofessional conduct is beneficial in that it adds clarity to the definition, but does not otherwise effectively change the law.

Businesses and Entities Affected. The proposed amendment potentially applies to the 6,525 licensed nurse practitioners, 90,050 registered nurses and 31,020 licensed practical nurses in the Commonwealth.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment is unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendment is unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendment is unlikely to significantly affect small businesses.

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

Real Estate Development Costs. The proposed amendment will not 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.

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¹ The requirement to report evidence of child abuse or neglect is contained within § 63.2-1509 of the Code of Virginia while the requirement to report evidence of elder abuse or neglect is contained within § 63.2-1606 of the Code of Virginia.

Agency's Response to Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget on proposed amendments to 18VAC90-20-300.

Summary:

The amendments add failure to report evidence of child abuse or elder abuse, as required by §§ 63.2-1509 and 63.2-1606 of the Code of Virginia, to the definition of unprofessional conduct for nurses as grounds for disciplinary action.

Part V
Disciplinary Provisions

18VAC90-20-300. Disciplinary provisions.

A. The board has the authority to deny, revoke or suspend a license or multistate licensure privilege issued, or to otherwise discipline a licensee or holder of a multistate licensure privilege upon proof that the licensee or holder of a multistate licensure privilege has violated any of the provisions of § 54.1-3007 of the Code of Virginia. For the purpose of establishing allegations to be included in the notice of hearing, the board has adopted the following definitions:

1. Fraud or deceit in procuring or maintaining a license means, but shall not be limited to:

a. Filing false credentials;

b. Falsely representing facts on an application for initial license, reinstatement or renewal of a license; or

c. Giving or receiving assistance in the taking of the licensing examination.

2. Unprofessional conduct means, but shall not be limited to:

a. Performing acts beyond the limits of the practice of professional or practical nursing as defined in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia, or as provided by §§ 54.1-2901 and 54.1-2957 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of nursing without adequate training or when competency has not been maintained;

c. Obtaining supplies, equipment or drugs for personal or other unauthorized use;

d. Employing or assigning unqualified persons to perform functions that require a licensed practitioner of nursing;

e. Falsifying or otherwise altering patient, employer, student, or educational program records, including falsely representing facts on a job application or other employment-related documents;

f. Abusing, neglecting or abandoning patients or clients;

g. Practice of a clinical nurse specialist beyond that defined in 18VAC90-20-290;

h. Representing oneself as or performing acts constituting the practice of a clinical nurse specialist unless so registered by the board;

i. Delegating nursing tasks to an unlicensed person in violation of the provisions of Part VIII (18VAC90-20-420 et seq.) of this chapter;

j. Giving to or accepting from a patient or client property or money for any reason other than fee for service or a nominal token of appreciation;

k. Obtaining money or property of a patient or client by fraud, misrepresentation or duress;

l. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the nurse uses his professional position to take advantage of the vulnerability of a patient, a client or his family, to include but not limited to actions that result in personal gain at the expense of the patient or client, a nontherapeutic personal involvement or sexual conduct with a patient or client;

m. Violating state laws relating to the privacy of patient information, including but not limited to § 32.1-127.1:03 of the Code of Virginia;

n. Providing false information to staff or board members in the course of an investigation or proceeding; or

o. Failing to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required in § 63.2-1606 of the Code of Virginia; or

o. p. Violating any provision of this chapter.

B. Any sanction imposed on the registered nurse license of a clinical nurse specialist shall have the same effect on the clinical nurse specialist registration.