Title of Regulation: 18VAC90-20. Regulations Governing the Practice of Nursing (amending 18VAC90-20-225, 18VAC90-20-230).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 1, 2015.

Effective Date: July 16, 2015.

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: Section 54.1-2400 of the Code of Virginia states that the general powers and duties of health regulatory boards includes establishing the qualifications for registration, certification, licensure, or the issuance of a multistate licensure privilege, that are necessary to ensure competence and integrity and engage in the regulated profession; promulgating regulations that are reasonable and necessary to administer effectively the regulatory system; and issuing inactive licenses or certificates and promulgating regulations to carry out such purpose. The regulations include, but are not limited to, the qualifications, renewal fees, and conditions for reactivation of licenses or certificates.

Purpose: In 2010, the board issued a Notice of Intended Regulatory Action (NOIRA) to initiate rulemaking to address continuing competency for nurses who renew their active licenses biennially. When final regulations were promulgated, the board realized that the requirements for continuing education hours for persons who had allowed their nursing licenses to lapse or had taken inactive status were less than those for a nurse who was renewing an active license. Since the sections on inactive licensure and reinstatement had not been identified in the NOIRA or in the proposed regulations, the board decided to address them in a later action. The final regulations for continuing competency for renewal of licensure became effective August 1, 2013. On August 9, 2013, a petition for rulemaking was received requesting that the board consider amending the sections on reactivation and reinstatement because requirements in those sections should not be weaker than those for renewal of an active license. Currently, if a license has been inactive or lapsed for more than two years, the nurse can reactivate or reinstate by evidence of completion of 15 hours of continuing education in nursing approved by a regionally accredited educational institution or professional nursing organization or by passage of National Council Licensing Examination during the period in which the license lapsed. Conversely, a nurse with an active license but less than 640 hours of active practice must have 30 hours of continuing education for a biennial renewal. The board concurred with the petitioner and voted to initiate rulemaking because current regulations may not adequately ensure the current competency of an applicant seeking reactivation or reinstatement if he has not been actively practicing outside of Virginia. To protect the health and safety of patients, the board must require some evidence that the nurse is competent to resume active practice.

Rationale for Using Fast-Track Process: Comments received on the petition for rulemaking and the Notice of Intended Regulatory Action were supportive of the amendments the board has proposed. Therefore, the board is confident that the rulemaking is noncontroversial and should be promulgated as a fast-track regulatory action.

Substance: For consistency with the current requirements for renewal of an active license, the amendments require a nurse seeking reactivation or reinstatement to provide evidence of completion at least one of the learning activities or courses specified in 18VAC90-20-221 during the two years immediately preceding application for reactivation.

Issues: The primary advantage of the amendment is better assurance that nurses returning to active practice have minimal competency to provide services to patients in Virginia. There are no disadvantages to the public. There are no advantages or disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (the Board) proposes to establish requirements for evidence of continuing competency for inactive or lapsed nursing licenses that are consistent with those for renewal of an active license.

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs.

Estimated Economic Impact. In 2013, new requirements for continuing competency for nurses who renew their active licenses biennially became effective. However, the 2013 regulatory language inadvertently did not apply to licenses that are inactive and lapsed. Thus, since then the requirements for continuing education hours for persons who had allowed their nursing license to lapse or had taken inactive status have been less than those for nurses who were renewing an active license. The Board now proposes to establish requirements for evidence of continuing competency for inactive or lapsed nursing licenses that are consistent with those for renewal of an active license.

Currently, 15 hours of continuing education is required for reactivation of an inactive or lapsed license. The proposed change will allow many different kinds of educational experiences to count toward fulfilling continuing competency requirement. Amongst the learning activities that will count are:

• Having a current specialty certification from a Board recognized national certification organization,

• Completing a three credit hour college course that is relevant to the practice of nursing,

• Completing a Board certified refresher course in nursing,

• Completing a nursing-related, evidence-based practice project or research study,

• Authoring or co-authoring an article that is published during a renewal cycle,

• Teaching a three credit hour college course that is relevant to the practice of nursing,

• Teaching nursing-related continuing education courses for up to 30 contact hours,

• Working at least 640 hours as a nurse during the renewal cycle and completing 15 contact hours of workshops, seminars, conferences or courses relevant to the practice of nursing, or

• Completing 30 contact hours of workshops, seminars, conferences or courses relevant to the practice of nursing.

The main cost of the proposed change is the difference in the cost of completing one of the nine options above and the cost of currently required 15 hours of continuing education. According to the Board, there are a myriad of resources and providers available for meeting continuing competency requirements at a very reasonable cost. For example, the National Council of State Boards of Nursing offers courses online, such as a course on Medication Errors; Detention and Prevention at a cost of $30 for 6.9 contact hours. The Board staff also reports that entities such as hospitals are required to offer continuing education opportunities to their nursing staff as a part of hospital licensure requirements and that various nurses associations offer online educational opportunities that would meet the requirements of these regulations at a cost of approximately $5 to $6 per hour. Some individuals who teach nursing related college or continuing education courses can meet their continuing competency requirements with activities for which they actually earn money. In addition to the explicit costs of the educational opportunity chosen, affected individuals will also incur implicit opportunity costs for time spent meeting the proposed requirements. On the other hand, the proposed changes will afford the opportunity to demonstrate continuing competency through many additional options. These additional options will provide more flexibility to the nurses to fulfill the regulatory requirements and may provide some cost savings. Also, to the extent that the required continuing education improves the quality of nursing in the Commonwealth, both nurses and their patients will benefit.

Businesses and Entities Affected. In fiscal year 2013, there were 438 registered nurse reinstatements, 22 registered nurse reactivations, and 12 licensed practical nurse reinstatements. However, if a nurse has actively practiced in another state and is returning to Virginia to reinstate his license, he may not be required to acquire the additional 15 hours. Thus, the Board staff does not know how many of reinstatements or reactivations would meet the proposed requirements by having active practice in another state.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. The proposed requirements for continuing education for inactive or lapsed licenses will likely marginally increase the cost of licensure. This may marginally decrease the number of individuals who choose to work in professional fields that are regulated by the Board.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses that employ nursing staff may see their costs slightly increase if they have to raise nurses' salaries to offset some or all of the costs of newly required continuing education for reactivated or lapsed licenses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are likely no alternate methods to implement the proposed regulatory changes that would both achieve the Board's goals and be less costly.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. General: 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 Code of Virginia and Executive Order Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed 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.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency Response to the Department of Planning and Budget's economic impact analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments require a nurse seeking reactivation or reinstatement of a license to complete at least one of the learning activities or courses specified in 18VAC90-20-221 during the two years immediately preceding application for reactivation or reinstatement.

18VAC90-20-225. Inactive licensure.

A. A registered nurse or licensed practical nurse who holds a current, unrestricted license in Virginia may, upon a request on the renewal application and submission of the required fee, be issued an inactive license. The holder of an inactive license shall not be entitled to practice nursing in Virginia or practice on a multistate licensure privilege but may use the title "registered nurse" or "licensed practical nurse."

B. Reactivation of an inactive license.

1. A nurse whose license is inactive may reactivate within one renewal period by payment of the difference between the inactive renewal and the active renewal fee.

2. A nurse whose license has been inactive for more than one renewal period may reactivate by:

a. Submitting an application;

b. Paying the difference between the inactive renewal and the active renewal fee; and

c. Providing evidence of completion of 15 hours of continuing education in nursing approved by a regionally accredited educational institution or professional nursing organization or of passage of the National Council Licensing Examination at least one of the learning activities or courses specified in 18VAC90-20-221 during the period in which the license has been inactive the two years immediately preceding application for reactivation.

3. The board may waive all or part of the continuing education requirement for a nurse who holds a current, unrestricted license in another state and who has engaged in active practice during the period the Virginia license was inactive.

4. The board may request additional evidence that the nurse is prepared to resume practice in a competent manner.

5. The board reserves the right to deny a request for reactivation to any licensee who has been determined to have committed an act in violation of § 54.1-3007 of the Code of Virginia or any provision of this chapter.

18VAC90-20-230. Reinstatement of lapsed licenses or license suspended or revoked.

A. A nurse whose license has lapsed may be reinstated within one renewal period by payment of the current renewal fee and the late renewal fee.

B. A nurse whose license has lapsed for more than one renewal period shall:

1. File a reinstatement application and pay the reinstatement fee; and

2. Provide evidence of completing 15 hours of continuing education in nursing approved by a regionally accredited educational institution or professional nursing organization or of passage of National Council Licensing Examination at least one of the learning activities or courses specified in 18VAC90-20-221 during the period in which the license has been lapsed the two years immediately preceding application for reinstatement.

C. The board may waive all or part of the continuing education requirement for a nurse who holds a current, unrestricted license in another state and who has engaged in active practice during the period the Virginia license was lapsed.

D. A nurse whose license has been suspended or revoked by the board may apply for reinstatement by filing a reinstatement application, fulfilling requirements for continuing competency as required in subsection B of this section, and paying the fee for reinstatement after suspension or revocation. A nurse whose license has been revoked may not apply for reinstatement sooner than three years from entry of the order of revocation.

E. The board may request additional evidence that the nurse is prepared to resume practice in a competent manner.