Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 6, 2020.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with the Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia, in which the General Assembly has determined that the cost for handling returned checks or dishonored credit or debit cards is $50. The department and its regulatory boards license and discipline health care practitioners, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it with a handling fee of $50 for a returned check, dishonored credit card, or dishonored debit card.

Issues: There are no primary advantages or disadvantages to the public. The primary advantage to the department is compliance with auditors from the Office of the Comptroller. There are no 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 amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

Background. Code of Virginia § 2.2-614.1 specifies that:

If any check or other means of payment tendered to a public body in the course of its duties is not paid by the financial institution on which it is drawn, because of insufficient funds in the account of the drawer, no account is in the name of the drawer, or the account of the drawer is closed, and the check or other means of payment is returned to the public body unpaid, the amount thereof shall be charged to the person on whose account it was received, and his liability and that of his sureties, shall be as if he had never offered any such payment. A penalty of $35 or the amount of any costs, whichever is greater, shall be added to such amount.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees include a $35 returned check charge.

On the other hand, Code of Virginia § 2.2-4805 specifies that "Returned checks or dishonored credit card or debit card payments shall incur a handling fee of $50 unless a higher amount is authorized by statute to be added to the principal account balance." According to the Department of Health Professions (DHP), the Office of the Attorney General has advised that the handling fee of $50 in Virginia Code § 2.2-4805 governs.

Estimated Benefits and Costs. Based on the view of the Office of the Attorney General that Virginia Code § 2.2-4805 prevails, the fee by law for a returned check or dishonored credit card or debit card is $50. The Board's proposal therefore conforms the regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² The services provided by DHP are funded by the fees paid by the regulated individuals and entities. To the extent that the $50 fee more accurately represents the cost incurred by DHP, the proposed change may be beneficial in that the cost would need not be subsidized by other regulants who did not cause the cost to be incurred.

Businesses and Other Entities Affected. The proposal pertains to fee-paying individuals and entities regulated by the Board. As of June 30, 2019, there were 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ The proposal does not disproportionately affect any particular localities or introduce costs for local governments.

Projected Impact on Employment. The proposal does not affect employment.

Effects on the Use and Value of Private Property. The proposal does not substantially affect the use and value of private property or real estate development costs.

Adverse Effect on Small Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

Summary:

The amendments replace the returned check fee of $35 with a fee of $50 for handling a returned check or dishonored credit card or debit card payment in compliance with § 2.2-4805 of the Code of Virginia.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.