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RULES AND REGULATIONS

STATE BOARD OF NURSING

[ 49 PA. CODE CH. 21 ]

Continuing Education for Professional Nurses

[38 Pa.B. 3796]
[Saturday, July 12, 2008]

   The State Board of Nursing (Board) adopts §§ 21.1, 21.5 and 21.131--21.134, regarding continuing education for professional nurses (RNs), to read as set forth in Annex A.

   Notice of proposed rulemaking was published at 37 Pa.B. 1980 (April 28, 2007). Publication was followed by a 30-day public comment period during which the Board received approximately 100 comments from the regulated community (licensees) and numerous comments from stakeholder groups. On June 17, 2007, the House Professional Licensure Committee (HPLC) submitted its comments. The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) made no comments. The Independent Regulatory Review Commission (IRRC) submitted comments to the proposed rulemaking on June 28, 2007.

Statutory Authority

   The final-form rulemaking is authorized under section 12 of The Professional Nursing Law (act) (63 P. S. § 212), which mandates continuing education for all professional nurses. In addition, section 2.1(k) of the act (63 P. S. § 212.1(k)) authorizes the Board to promulgate regulations for the administration of the act.

Summary of Comments and Responses to Proposed Rulemaking

Comments from the Public

   The Board received approximately 100 comments from the licensees. The most prevalent concern of licensees related to the $75 fee to be charged to those continuing education providers that were not preapproved by the Board for approval of a continuing education course. In addition, many school nurses requested that the Board clarify, in its regulation, how school nurses were to submit proof that they had complied with the continuing education requirement. Finally, a few licensees and other stakeholders expressed their belief that the civil penalties to be imposed for failure to complete statutorily-mandated continuing education were too high.

Fee for Approval of Continuing Education Activities.

   There appeared to be significant confusion regarding the $75 fee to be charged to continuing education providers who request that the Board review and approve a continuing education activity. Many licensees believed that the $75 fee would be imposed on each licensee for each of the 30 hours of statutorily-mandated continuing education, resulting in additional biennial renewal costs to each licensee of $2,250. In most instances, the fee is not charged to licensees; the fee is charged to a provider of continuing education that is not on the list of pre-approved providers of continuing education. The Board's list of preapproved providers is extensive; the Board does not anticipate that many continuing education providers will need to apply to the Board for approval.

   It is possible that the $75 per credit hour fee could be imposed on an individual licensee. The only instance when the fee would be imposed on an individual licensee is if the individual licensee requested that the Board review and approve a continuing education activity that was not sponsored by a preapproved provider, and when the provider itself did not request approval of the activity. However, because the Board's list of preapproved providers of continuing education is so extensive, and because most, if not all, other providers will apply directly to the Board for approval of their continuing education activities, the Board does not anticipate that any individual licensee will be required to apply to the Board for review and approval of a nonpreapproved continuing education activity.

   To make the regulation more clear, the Board has amended § 21.5 (relating to fees) to specify that the $75 per credit hour fee is based on the request submitted under § 21.134(b) (relating to continuing education sources) for approval of a continuing education activity offered by a continuing education provider that is not listed in § 21.134(a).

   Under these regulations, a provider needing approval of a continuing education activity would have the option of requesting approval from the Board or from one of the preapproved credentialing organizations, such as the Pennsylvania State Nurses Association (PSNA) or the American Nurses Credentialing Center (ANCC), as set forth in § 21.134(a)(8).

Submission of Continuing Education Information by School Nurses.

   Section 12.1 of the act (63 P. S. § 212.1) sets forth the requirement that RNs complete at least 30 hours of continuing education in each biennial renewal period. Section 12.1(g) of the act provides that ''[i]n lieu of meeting the requirements of this section . . . school nurses who as certified education specialists are required to obtain continuing professional education under section 1205.2 of the act of March 10, 1949 (Pub. L. 30, No. 14), known as the 'Public School Code of 1949,' and under this act shall be permitted to submit evidence of the completion of education courses approved for their certification by the school district.''

   The Board agrees with the commentators that its regulation should instruct licensees subject to this provision how to submit evidence that they completed education courses approved for their certification by the school district. Therefore, the Board has amended § 21.29(c)(3) (relating to expiration and renewal of license) to provide that school nurses verify on their biennial renewal application that they have complied with the continuing education requirements for certification by the school district. If the school nurse's renewal is selected for a compliance audit, the nurse would submit proof of current certification by the Department of Education, as set forth in § 21.131(c)(5) (relating to continuing education).

Civil Penalty for Failure to Complete Mandatory Continuing Education.

   Several individuals expressed the opinion that the schedule of civil penalties for nurses who fail to complete mandatory continuing education is too harsh. In addition, the Pennsylvania State Education Association (PSEA) commented that there did not appear to be any due process provisions in the regulations to allow the nurse to appeal the imposition of a fine. The schedule of civil penalties published separately by the Commissioner of Professional and Occupational Affairs at 37 Pa.B. 1986 (April 28, 2007) calls for a civil penalty of $250 for a nurse who fails to complete 1 to 10 hours of continuing education, a civil penalty of $500 for a nurse who fails to complete 11 to 20 hours of continuing education, and a civil penalty of $1,000 for a nurse who fails to complete 21 to 30 hours of continuing education over the biennial renewal period.

   The Board does not believe that these fines are excessive; in fact, the fines are significantly lower than the fines imposed by other licensing boards in the Bureau of Professional and Occupational Affairs for violations of the continuing education regulations. For example, some boards routinely impose civil penalties of $50 to $100 per deficient credit hour. For ease of administration and due to the significantly larger licensee population of the Board, the Board determined it should impose the civil penalty in blocks of credits deficient rather than per credit hour. The Board believes that the proposed civil penalty schedule will act as a sufficient deterrent to prevent nurses from neglecting their mandatory continuing education requirement.

   The procedures for appealing a civil penalty imposed by citation are set forth in § 43b.3 (relating to procedures). A nurse who wishes to dispute the imposition of a civil penalty imposed by citation simply declares this intention and mails the citation form back to the Bureau. A hearing is then scheduled before a hearing examiner, for which the nurse is notified by first class mail. If the nurse disagrees with the decision of the hearing examiner, the nurse may appeal it to the Board. If the Board ultimately determines that the nurse has violated the regulations and is subject to the civil penalty, the nurse may appeal the Board's decision to the Commonwealth Court of Pennsylvania. The nurse's due process rights are fully protected by these procedures.

   The PSEA noted that § 21.131(g)(2) requires a nurse who has failed to complete 30 hours of continuing education in a biennial period to make up the deficiency within 6 months and that § 21.131(g)(3) imposes a higher level of discipline for a nurse who does not make up the deficiency within 6 months. PSEA expressed concern that nurses would not know whether the Board had accepted their credits until months after the 6-month deadline had passed. The Board disagrees. A nurse would know, by virtue of the list of preapproved providers, whether the Board approves the activity at the time the nurse enrolls in a continuing education activity. When the nurse receives the certificate of attendance, the nurse can determine how many hours the nurse has completed toward the 30-hour minimum required biennially. A nurse does not need notice from the Board to discern whether he has complied with the act and the regulations.

Calculation of Time for a Continuing Education Activity.

   Three commentators questioned how the Board determined to use a 50-minute hour instead of a 60-minute hour for calculating continuing education credit. The Board based its decision on the standard academic hour, which is 50 minutes, because it will be much easier for continuing education providers that are not educational institutions to adjust their continuing education courses than to require all schools of nursing to adjust their classes. In addition, the 50-minute hour is already used for continuing education for CRNPs.

   PSEA commented that a three-credit course in a semester program should be considered equal to 30 continuing education hours. The Board has determined that it is appropriate to limit the number of continuing education hours that may be obtained from a single source and will, therefore, retain its 15 credit hour limit.

Preapproved Continuing Education.

   One commentator asked if ''standard CEU providers'' such as ''the California Nurses Association'' and ''the numerous small companies who give CEUs'' would be included. National and state nursing organizations are included as preapproved providers under § 21.134(a)(6). The Board is unsure what the commentator means by ''numerous small companies who give CEUs.'' A Pennsylvania nurse may obtain continuing education that is creditable toward the biennial requirement from any company or organization that has obtained accreditation of its continuing education offerings from a preapproved credentialing organization as set forth in § 21.134(a)(8).

   Another commenter suggested that the Board apply the requirements of § 21.133 (relating to continuing education content) to all approved continuing education, including continuing education offered by a preapproved provider. The Board intended the continuing education content provisions to apply to all continuing education for professional nurses and has amended § 21.134(a) to clarify this intent.

   Villanova University College of Nursing (College) submitted several comments. First, the College suggested that the Board limit the ability of a nurse to obtain continuing education credit for research to the principal and/or co-investigator, or both, on a research project. The Board agrees that this is an appropriate limit to place on the use of research for continuing education credit and has amended § 21.133(d) in accordance with this suggestion. The College opined that the list of preapproved providers of continuing education was overly broad and that all continuing education programs should meet standards such as those used by ANCC. The Board has amended § 21.134(a) to clarify that the criteria of § 21.133 apply to all continuing education programs. Even those continuing education activities offered by preapproved providers must meet the content restrictions of § 21.133.

   The continuing education department of the College questioned the approval of hospitals and health care facilities licensed by the Department of Health as providers of continuing education. Hospitals and health care facilities have been educating their staff for many years and have a vested interest in a well-educated and competent workforce. The Board is confident that hospitals and health care facilities will provide high quality continuing education. In addition, preapproval of these entities will lessen the impact on the workforce because nurses will not have to take as much time off to travel to continuing education courses. In addition, the inclusion of National pharmaceutical organizations was questioned. The Board believes that RNs are aware of the potential interest that pharmaceutical organizations may have and can discern the objective information offered about pharmaceutical products. Although RNs do not prescribe drugs, RNs administer drugs and monitor patients receiving drug therapies. It is important for RNs to understand the pharmacological and pharmacotherapeutic characteristics of drugs. The Board disagrees that continuing education offered by national pharmaceutical organizations should not be creditable.

   Geisinger Health System commented that editors and section editors for nursing journals should be able to acquire continuing education hours per credited publication. The Board declines to make this amendment, believing that serving as a journal editor does not have a close enough link to nursing practice or patient care to be creditable. Additionally, it is the job of a journal editor to edit journal articles and the Board believes that continuing education activities should be activities undertaken in addition to the individual's work assignments.

   The Pennsylvania Health Care Association (PHCA) identified itself as a provider of continuing education for nursing home administrators and asked whether some of their programs, which would be appropriate for RNs, would be within the ambit of preapproved providers. The Board has amended the list of preapproved providers in accordance with a suggestion from the Hospital and Healthsystem Association of Pennsylvania (HAP) so that PHCA's courses with relevant nursing content would be preapproved under § 21.134(a)(6).

Time for Submission of Information to the Board.

   Several commenters expressed concerns about the Board's 120-day submission requirements for waiver requests and for approval of continuing education activities under § 21.134(b). The Board has amended §§ 21.131(f) and 21.134(c) to reduce the time to 90 days. Because of the size of the Board's licensee population (approximately 225,000 RNs), the Board does not believe it is feasible to use the same time frames adopted by the State Board of Examiners of Nursing Home Administrators (licensee population of 1,919 NHAs).

Continuing Education Content.

   The PSNA submitted comments, some of which have been addressed previously. In addition, the PSNA suggested that courses relating to self-improvement should be considered valid continuing education. The PSNA suggested that ''courses on stress management, interpersonal relationships, humor in nursing, etc. provide health promotion strategies for nurses that lead to better care of the citizens of Pennsylvania and retaining nurses in the profession.'' Although the Board agrees that some courses related to self-improvement may lead to better care of the citizens of this Commonwealth, the Board believes that the intent of the General Assembly was to require continuing education more closely related to the provision of care to patients and therefore declines to amend its proposed rulemaking as suggested by the PSNA.

   The PSEA noted that § 21.133(e) does not permit nurses to receive credit for courses that are designed for laypeople, and commented that this restriction is too severe. The PSEA gave as an example university biology and pharmaceutical courses. These courses would be considered approved under § 21.134(a)(5). The PSEA also commented that a foreign language course offered at a university would not count for credit. These courses would also be considered approved under § 21.134(a)(5). Finally, the PSEA commented that courses on ''preventing professional burnout'' should be allowed for continuing education credit because they should not be included in the statutory prohibition that does not permit nurses to obtain credit for courses in ''office management.'' Further, the PSEA opined that the Board's regulation is neither ''reasonable'' nor ''acceptable.''

   The Board respectfully disagrees and believes that the intent of the General Assembly in requiring continuing education for nurses is to improve nursing practice and ensure the competency of Pennsylvania's nursing workforce. While the Board agrees with the PSEA and other commentators that courses in self-improvement or preventing professional burnout may be beneficial to nurses and ultimately to patients, the Board is charged with effectuating the statute and believes that to be credited as continuing professional education, courses should have a close link to patient care. The Board does not believe that courses designed to ''prevent professional burnout'' have a close enough relation to the provision of quality patient care to be credited for biennial license renewal. Moreover, nothing in the statute or this rulemaking restricts a nurse from taking more than the minimum 30 hours of continuing education in a biennial period. If an individual nurse finds a course beneficial, the nurse may take the course in addition to the courses taken for license renewal.

Retired Nurses.

   The PSNA asked whether retired nurses would need to attain 30 hours of biennial continuing education to retain an active license. The statute requires that all nurses attain 30 hours of biennial continuing education to retain an active license; no exception is made for retired nurses. The Board is aware that many institutions invite retirees to attend continuing education at no cost. However, the Board does not have statutory authority to exempt retired nurses from the continuing education requirement. A nurse who is retired from practice may place a license on inactive status, obviating the need to complete biennial continuing education.

Miscellaneous comments.

   PSNA noted that ''the nurses of Pennsylvania are expressing frustration at having to maintain their personal records for 5 years, rather than for the license renewal period 2 years.'' The Board does not believe that any hardship is created by requiring that documentation of continuing education be retained for 5 years, and notes that much more extensive documentation is required to be retained for 7 years for Income Tax purposes. PSNA also requested that the Board offer an online continuing education tracking system. The Board does not have the funds to create an online continuing education tracking system.

   The Pennsylvania Association of County Affiliated Homes (PACAH) objected to the requirement, in § 21.134(e), that a continuing education provider submit a separate application and fee whenever a change is made to any of the program content and speakers. First, the Board notes that its list of preapproved continuing education providers and accrediting bodies is vast and that very few applications from additional continuing education providers are anticipated. PACAH is a pre-approved provider under § 21.134(a)(6). Preapproved continuing education providers will not be required to submit initial or amended programs to the Board. Second, the Board notes that the content of a continuing education program and the speakers providing information to program attendees are the most important items that the Board, or an accrediting body, approves when it reviews a continuing education program proposal. For these reasons, the Board declines to amend the rulemaking as proposed by PACAH.

   The PSEA requested that the Board send notice of biennial renewal to nurses 120 days prior to the expiration date of the licensees' licenses so that nurses may ''correct shortfalls in their continuing education.'' The Bureau of Professional and Occupational Affairs currently sends renewal notices to licensees across all licensing boards approximately 90 days in advance of the expiration date of the licensees' licenses. The Board does not believe that the responsibility to remind nurses of the expiration date of the nurses' licenses or to ensure that nurses have completed statutorily mandated continuing education rests with the Board. Nurses, like many other professional licensees under the Bureau, have 2 years to complete their continuing education requirement and should not be waiting until the last minute to comply. Moreover, it is unclear to the Board whether PSEA anticipates that nurses would be excused from statutorily mandated continuing education if the Board should fail to meet the 120-day deadline. Therefore, the Board declines to set a certain time that notices must be sent to licensees.

Comments from HAP.

   HAP submitted extensive comments. In general, HAP found the Board's proposed rulemaking to be flexible and comprehensive and supported the overall direction taken by the Board. HAP suggested that the Board strike part of § 21.131(b), so that any nurse applying for initial licensure by examination would be exempt from the continuing education requirement for the first biennial renewal period, regardless of when the nurses' education was completed. The Board has not amended its regulation as suggested. The Board believes that if a nurse's education was completed more than 2 years prior to initial licensure in this Commonwealth, the nurse should not be excluded from the continuing education requirement during the first biennial renewal period. HAP also suggested that the Board add an exception for nurses applying for licensure by endorsement. The Board believes that § 21.131(a) adequately specifies that continuing education need be completed only upon renewal of a nursing license, not for initial licensure. Therefore, the Board declines to add the suggested language.

   HAP asked for clarification of § 21.131(g), regarding to disciplinary action for failure to complete mandatory continuing education. HAP asked if an RN would be subject to a civil penalty when the RN reported, on the renewal application, that the RN had not completed at least 30 hours of continuing education. The nurse would be subject to the schedule of civil penalties at the time the nurse reported that he did not complete the mandatory continuing education. This is reflected in § 21.131(g)(1), which states that ''failure to complete a minimum of 30 hours of continuing education in a biennial period will subject the nurse to discipline under section 13(b) of the act . . . in accordance with the schedule of civil penalties.'' HAP also asked what the status of the nurse's license would be during the 6-month period that the nurse is given to make up the deficiency in continuing education hours. The nurse's license would remain on active status.

   HAP also requested clarification of whether the nurse who failed to make up the deficiency during the 6-month period would be subject to additional disciplinary action. Section 21.131(g)(3) addresses this situation, stating that ''notwithstanding any civil penalty assessed under paragraph (1), failure to provide the Board with documentation supporting completion of 30 hours of approved continuing education within 6 months after the end of the biennial period in which the professional nurse was deficient will subject the licensee to discipline under section 14(a)(3) of the act.'' This further violation of the act will subject the nurse to formal prosecution under section 14(a)(3) of the act and could result in additional civil penalties, reprimand or suspension of the nurse's license until the deficiency has been made up.

   HAP also asked what action the Board would take if it learned that a nurse intentionally falsified a license renewal application. The intentional falsification of a renewal application has always subjected a nurse to disciplinary action under section 14(a)(4) of the act (63 P. S. § 224(a)(4)), which prohibits fraud or deceit in securing admission to practice. HAP asked if the action would be different from when a licensee honestly indicated that he failed to complete the requirement. A licensee who honestly reports the failure to complete the continuing education requirement is not subject to discipline under section 14(a)(4) of the act. HAP also asked how the Board plans to deal with honest discrepancies in the reporting of continuing education. A nurse charged with violating the continuing education provisions is afforded the opportunity to attend a hearing and explain the discrepancy to the Board. The Board always considers the nature of the offense and any evidence offered in mitigation when determining the appropriate sanction, if any, to impose in a disciplinary proceeding.

   HAP suggested clarification to § 21.132(b) regarding the calculation of contact hours based on credit hours earned in an academic institution. The Board has amended the rulemaking for clarity and to provide for academic institutions that operate on the trimester system.

   HAP suggested that the Board consider limiting continuing education activities to those that are at least 30 minutes in length. The Board agrees with this suggestion and has amended § 21.132(a) accordingly.

   HAP suggested that the Board create a list of acceptable continuing education content, including risk management and legal issues, quality and performance improvement, patient safety, infection prevention and control, case management, utilization review, nursing/clinical informatics, customer relations, accreditation and regulatory compliance, finance and reimbursement, disruptive behavior, behavioral norms and codes of conduct, and health care ethics. The Board chose to define the content of continuing education broadly to encompass information ''relevant to professional nursing in a general or specialty area,'' ''course in areas related to nursing'' and ''courses in nursing administration, management, education and diagnostic and procedural coding.'' The Board believes that all of the topics listed by HAP are included within its general language. The Board does not wish to enumerate content topics, as this is limiting.

   HAP suggested that the Board consider broadening activities for which continuing education contact hours could be awarded, including teaching, publication, development of patient and family education materials, research and clinical preceptorship. Section 21.133(d) already approves group or individual research for up to 15 hours of continuing education credit. The Board believes that continuing education should be something that requires the participants to go beyond what they already do as part of their jobs or for compensation. Therefore, the Board declines to award continuing education credit for teaching, developing educational materials and preceptorship.

   HAP suggested that the Board more fully define the documentation that a nurse would have to submit, if audited. The Board had deleted the definition of certificate of attendance and has expanded § 21.131(c) to include the types of documentation that a nurse will be required to maintain as proof of continuing education credit.

   HAP also recommended that the Board expand the list of activities that will not be credited for continuing education credit. The Board has added some of HAP's suggested exclusions to § 21.133(e), and finds that some of HAP's suggested exclusions are already covered in the rulemaking.

   HAP recommended that the Board expand the eligible health care facilities that may offer approved continuing education in § 21.134(a)(3) and (4). The Board has adopted HAP's suggestion and amended these sections. HAP also suggested amendments to the list of preapproved providers that would allow nurses to obtain continuing education from National organizations in fields related to nursing, such as patient safety and quality; to include health care professionals organizations, such as the American Health Information Management Association, other state and regulatory agencies, and the like. The Board's goal was to make the list of pre-approved providers as broad as possible while assuring a level of quality. The Board agrees with HAP's suggested language and has amended § 21.134(a) accordingly.

   HAP noted that the fee schedule for approval of continuing education courses set by the Board was higher than the fee schedule for approval of continuing education courses set by the PSNA. The Board is not aware of the resources that PSNA has to devote to the approval of continuing education courses. The fee set by the Board is intended to cover the Board's cost in approving continuing education. If a provider or individual nurse prefers to have continuing education approved by the PSNA, the Board would accept PSNA's approval under its regulation because the PSNA is recognized as a pre-approved credentialing organization for continuing education.

   Finally, HAP questioned the need for a certificate of attendance to include faculty and other information listed in § 21.123(b)(4) and (5) (relating to access and use of records). The Board agrees and has amended § 21.134(f) accordingly.

HPLC Comments

   The HPLC met on June 6, 2007, and submitted seven comments for the Board's consideration. Some of the HPLC's comments, such as those related to provisions for school nurses and whether the $75 fee per credit hour is applied to all nurses, have been addressed previously.

   In addition, the HPLC asked for an explanation of ''peer-reviewed journals'' in § 21.1 (relating to definitions), which defines distance learning continuing education as continuing education in which the individual participates in the educational activity through peer-reviewed journals. A peer-reviewed journal is a professional nursing journal that has an editorial board of health care professionals, such as physicians and nurses, who review the articles submitted for publication and ensure that the articles are medically accurate and timely. For those articles, which include tests that are mailed back to the journal for continuing education credit, the professional editorial board also reviews the questions and answers provided by the author of the article. By limiting continuing education sources to peer-reviewed journals, the Board ensures the quality of the educational experience. The Board notes that its continuing education regulations for CRNPs refer to ''refered'' journals; therefore, the Board has amended § 21.1 for consistency with the CRNP regulatory provisions.

   The HPLC sought clarification on whether the fee for approval of a continuing education course applied only to continuing education program providers. The fee applies only to those continuing education program providers who have not been granted preapproved status.

   Regarding § 21.29(c)(1) (relating to expiration and renewal of licenses), the HPLC asked whether the licensure renewal application included a question regarding disclosure of whether the licensee was licensed to practice in any other state. The question is on the licensure renewal application. Additionally, the HPLC asked for clarification of the terminology in § 21.29(d), which requires a licensee to ''retain'' the wallet size licensure document. A licensee is not required to carry the license, but only to have access to it.

   The HPLC noted that § 21.131(b) allows for an exemption for continuing education for the first 2 years of licensure for a licensee who has completed an approved nursing education program within 2 years of the date of the initial application. However, the HPLC stated that the exemption does not include nurses who are employed by school districts. The Board has addressed school nurses in §§ 21.29(c)(3) and 21.131(c)(5). The Board does not need to exempt school nurses from the continuing education requirements in § 21.131 because school nurses are already exempt from the Board's continuing education requirements, as set forth in section 12.1(g)(2) of the act (63 P. S. § 222(g)(2)), so long as they are in compliance with the continuing education requirements of the Public School Code (24 P. S. §§ 1-101--27-2702).

   The HPLC asked for additional clarification of the award of one continuing education credit for every 3 hours of academic course-related clinical practice. The Board had decided to remove this provision and provide credit only for didactic educational programs.

   Finally, the HPLC requested the Board review its use of the terms ''program,'' ''sources'' and ''courses'' in § 21.134. The Board has made appropriate amendments.

IRRC Comments

   IRRC asked why, in § 21.134(b), the fee for approval of a continuing education activity is based on each hour of continuing education. The reason is that each hour segment of a continuing education program is usually taught by different faculty and on a different subject, requiring additional time for review. The Board does not have sufficient staff to review a large number of continuing education activities; however, there are several other state and national accrediting bodies that approve continuing education that are recognized by the Board (for example, PSNA and ANCC).

   IRRC asked how a licensee verifies compliance with the continuing education requirement. A licensee verifies compliance by the licensee's signature on the renewal application under a statement that the licensee has complied with the requirement. If the licensee renews online, the online document provides a means for verification.

   IRRC noted that school nurses were confused over the impact of the rulemaking. These concerns were addressed previously.

   IRRC requested clarification regarding the basis for awarding continuing education credit for 3 hours of course-related clinical practice. The Board has omitted this provision.

   IRRC asked for clarification of the term ''institutional review board'' and suggested that the term reference the sponsoring facility. An institutional review board is a group of professional and community individuals that approve research, and that are generally certified to review and approve research. The Board has made an amendment to § 21.133(d) to refer to the sponsoring facility.

   IRRC noted that § 21.134(a) is confusing with references to providers, programs and credentialing organizations. The Board has amended the section for clarity. In addition, the Board has amended the list of approved providers as suggested by HAP.

   IRRC requested that the Board add a provision to § 21.134(b) to provide that the Board would request additional information, if necessary, in writing. The Board has made this amendment.

   IRRC asked how the Board would determine the number of continuing education hours awarded for an activity under § 21.134(d). The Board will make the determination based on the content of the proposed program and qualifications of the faculty. The Board has added a provision to notify applicants that the Board will award no more than the number of hours requested. Thus, if a provider presents a 4-hour continuing education proposal, the Board may approve only 3 hours for continuing education credit. The Board will not refund the $75 fee because the fee covers the Board's expense in reviewing the proposal for the hour that was ultimately denied.

Fiscal Impact and Paperwork Requirements

   The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The Board is self-supporting and the fee charged for approval of continuing education courses will satisfy the cost to the Board of reviewing applications for continuing education course approval. The final-form rulemaking will impose only minimal additional paperwork requirements upon the Board, and none upon any political subdivisions. The private sector, to the extent that it seeks to provide continuing education programs for professional nurses, will incur costs in submitting information to the Board or another credentialing organization for approval. The regulated community will incur costs associated with complying with the continuing education requirements.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 18, 2007, the Board submitted a copy of the notice of proposed rulemaking, published at 37 Pa.B. 1980 (April 28, 2007) to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 14, 2008, the final-form rulemaking was approved by the HPLC. On June 4, 2008, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 5, 2008, and approved the final-form rulemaking.

Additional Information

   Additional information may be obtained by writing to Ann Steffanic, Board Administrator, State Board of Nursing, P. O. Box 2649, Harrisburg, PA 17105-2649.

Findings of the Board

   The Board finds that:

   (1)  Public notice of intention to adopt this final-form rulemaking was given under under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated under those sections at 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered in drafting this final-form rulemaking.

   (3)  The amendments made to the final-form rulemaking do not enlarge the original purpose of the proposed rulemaking as published at 37 Pa.B. 1980.

   (4)  The regulations of the Board are necessary and appropriate for the regulation of the practice of professional nurses in this Commonwealth.

Order

   The Board therefore orders that:

   (a)  The regulations of the Board, 49 Pa. Code, Chapter 21, are amended by amending §§ 21.1, 21.5, 21.29 and by adding §§ 21.131--21.134 to read as set forth in Annex A.

   (b)  The Board shall submit a copy of this order and Annex A to the Office of the Attorney General and the Office of General Counsel for approval as required by law.

   (c)  The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  The final-form rulemaking shall take effect immediately upon publication in the Pennsylvania Bulletin.

MARY E. BOWEN, RN, DNS, CNAA,   
Chairperson

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 3461 (June 21, 2008).)

   Fiscal Note:  Fiscal Note 16A-5130 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 49.  PROFESSIONAL AND VOCATIONAL STANDARDS

PART I.  DEPARTMENT OF STATE

Subpart A.  PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 21.  STATE BOARD OF NURSING

Subchapter A.  REGISTERED NURSES

GENERAL PROVISIONS

§ 21.1.  Definitions.

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

   Act--The Professional Nursing Law (63 P. S. §§ 211--225.5), which establishes standards for nursing schools and the conduct of nursing programs.

   Approved--Approved by the Board.

   Board--The State Board of Nursing of the Commonwealth.

   Continuing education--An activity approved by the Board as a condition for renewal of licensure or certification for which proof of completion can be provided to the Board.

   Diagnosing--Identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.

   Distance learning continuing education--Continuing education in which the individual participates in the educational activity by means of electronic media or through refereed journals, rather than in a classroom, laboratory or clinical setting where the faculty and participant are physically located in the same room.

   Graduate registered nurse--An individual who has graduated from an approved program of professional nursing in this Commonwealth or a comparable program in another state.

   Human responses--Those signs, symptoms and processes which denote the interaction of the individual with an actual or potential health problem.

   Patient (includes residents and clients)--A person, other than a spouse or immediate family member, who receives professional services from a registered nurse, regardless of whether the nurse receives remuneration for the services.

   Practice of professional nursing--

   (i)  Diagnosing and treating human responses to actual or potential health problems through such services as case findings, health teaching, health counseling, provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed physician or dentist.

   (ii)  The term does not include acts of medical diagnosis or prescription of medical therapeutic or corrective measures, except as may be authorized by rules and regulations jointly promulgated by the State Board of Medicine and the Board, which rules and regulations will be implemented by the Board.

Professional relationship--

   (i)  For a registered nurse not involved in providing mental health services, the relationship which shall be deemed to exist for a period of time beginning with the first professional contact or consultation between a registered nurse and a patient and ending with the patient's discharge from or discontinuance of services by the nurse or by the nurse's employer. The administration of emergency medical treatment or transitory trauma care will not be deemed to establish a professional relationship.

   (ii)  For a registered nurse involved in providing mental health services, the relationship which shall be deemed to exist for a period of time beginning with the first professional contact or consultation between the nurse and patient and ending 2 years after discharge from or discontinuance of services. For a patient who is a minor, a professional relationship shall be deemed to exist for 2 years or until 1 year after the age of majority, whichever is longer, after discharge from or discontinuance of services.

   Registered nurse--A nurse licensed under this subchapter to practice in this Commonwealth.

   Sexual impropriety--The term includes the following offenses:

   (i)  Making sexually demeaning or sexually suggestive comments about or to a patient, including comments about a patient's body or undergarments.

   (ii)  Unnecessarily exposing a patient's body or watching a patient dress or undress, unless for therapeutic purposes or the patient specifically requests assistance.

   (iii)  Examining or touching genitals without the use of gloves when performing an otherwise appropriate examination.

   (iv)  Discussing or commenting on a patient's potential sexual performance or requesting details of a patient's sexual history or preferences during an examination or consultation, except when the examination or consultation is pertinent to the issue of sexual function or dysfunction or reproductive health care. Discussion of a patient's sexual practices and preferences shall be fully documented in the patient's chart.

   (v)  Soliciting a date from a patient.

   (vi)  Volunteering information to a patient about one's sexual problems, preferences or fantasies.

   Sexual violation--The term includes the following offenses:

   (i)  Sexual intercourse between a registered nurse and a patient during the professional relationship.

   (ii)  Genital to genital contact between a nurse and a patient during the professional relationship.

   (iii)  Oral to genital contact between a nurse and a patient during the professional relationship.

   (iv)  Touching breasts, genitals, or any other body part for any purpose other than appropriate examination or treatment, or using prolonged or improper examination techniques, or after the patient has refused or withdrawn consent.

   (v)  Encouraging a patient to masturbate in the presence of the nurse or masturbating while a patient is present.

   (vi)  Providing or offering to provide drugs or treatment in exchange for sexual favors.

   (vii)  Using or causing the use of anesthesia or any other drug affecting consciousness for the purpose of engaging in conduct that would constitute a sexual impropriety or sexual violation.

   Treating--Selection and performance of those therapeutic measures essential to the effective execution and management of the nursing regimen and execution of the prescribed medical regimen.

§ 21.5.  Fees.

   (a)  The following fees are charged by the Board:

Examination and licensure $35
Reexamination $30
Licensure by endorsement $100
Temporary permit $35
Extension of temporary permit $60
Application for approval of new nursing program $935
Fee for review and challenge of RN exams $170
Application fee for out-of-State graduates $100
Biennial renewal of license $45
Verification of licensure $15
Reactivation of license (after 5 years or longer) $50
Restoration after suspension or revocation $50
Certification of scores $25
Certification of license history $40
Request under § 21.134(b) by a provider of a continuing education activity not listed in § 21.134(a) or an individual seeking credit for a continuing education activity not preapproved by the Board for approval of each hour of continuing education for which credit is requested $75

   (b)  In addition to the examination and licensure fee of $35 prescribed in subsection (a), which is payable directly to the Board, a candidate for the registered nurse licensing examination shall also pay a fee of $40 to the National Council of the State Boards of Nursing to cover costs associated with the preparation and administration of the registered nurse licensing examination. Effective April 1994, or upon implementation of the computer adaptive examination, the fee paid directly to the National Council of the State Boards of Nursing or its designated agent is $88.

LICENSES

§ 21.29.  Expiration and renewal of license.

   (a)  The Board will assign registered nurses to one of the following license expiration dates:

   (1)  April 30 in the even-numbered years.

   (2)  October 31 in the even-numbered years.

   (3)  April 30 in the odd-numbered years.

   (4)  October 31 in the odd-numbered years.

   (b)  Notice of the renewal period of a license will be sent to each active licensee prior to the expiration date of the licensee's license.

   (c)  The applicant for license renewal may complete and submit an application online or may mail a completed application form to the Board's administrative office. When applying for licensure renewal, a professional nurse shall:

   (1)  Complete and submit the renewal application form, including disclosing any license to practice nursing or any allied health profession in any other state, territory, possession or country.

   (2)  Pay the biennial renewal of licensure fee in § 21.5 (relating to fees).

   (3)  Beginning with the license period commencing on July 12, 2010, verify that the professional nurse has complied with the continuing education requirements mandated by section 12 of the act (63 P. S. § 222) during the biennial period immediately preceding the application for renewal in accordance with §§ 21.131--21.134 (relating to continuing education). School nurses, who as certified education specialists are required to obtain continuing professional education under the Public School Code of 1949 (24 P. S. §§ 1-100--27-2702), shall verify by signed statement that the school nurse has complied with the continuing education requirements for certification by the Department of Education.

   (4)  Disclose any discipline imposed by a state licensing board on any nursing or allied health profession license or certificate in the previous biennial period and any criminal charges pending or criminal conviction, plea of guilty or nolo contendere, or admission into a probation without verdict or accelerated rehabilitative disposition during the previous biennial period.

   (d)  When communicating with the Board, licensees shall identify themselves by full name, current address and license number.

CONTINUING EDUCATION

§ 21.131.  Continuing education.

   (a)  Requirement of continuing education. Beginning with the license period commencing on July 12, 2010, an applicant for renewal of a professional nursing license shall complete 30 hours of continuing education approved by the Board during the biennial period immediately preceding the application for renewal in accordance with section 12 of the act (63 P. S. § 222) and this subchapter.

   (b)  Exception. An applicant applying for initial licensure by examination in this Commonwealth will not be required to meet the continuing education requirement on the first renewal immediately following licensure if the applicant completed an approved nursing education program within 2 years of the date of application for initial licensure by examination.

   (c)  Board audits; proof of completion. The Board may perform audits on professional nurses to determine compliance with the continuing education requirements. A professional nurse shall retain documentation of the nurse's completion of continuing education for at least 5 years. A professional nurse shall comply with a request for submission of documents verifying the nurse's completion of continuing education. The following documents shall be retained and submitted upon request:

   (1)  For attendance at continuing education programs or courses, the nurse shall retain the certificate of attendance provided by the program or course provider.

   (2)  For academic courses taken from an accredited college or university, the nurse shall retain the official transcript issued by the educational institution.

   (3)  For publication of a textbook or article, the nurse shall retain a copy of the published item, including the date of publication.

   (4)  For a research project, the nurse shall retain a copy of the research abstract, letter from the institutional review board granting approval for the research project and list of primary and co-investigators.

   (5)  For school nurses, evidence that the nurse's certification by the Department of Education is current.

   (d)  Reinstatement of lapsed license or reactivation of inactive license. A licensee seeking to reinstate a lapsed license or reactivate an inactive license shall submit documentation to demonstrate that the licensee completed 30 hours of continuing education within the biennial period immediately preceding application for reinstatement. A refresher or reactivation course at an accredited school of nursing will be credited toward the 30-hour continuing education requirement as set forth in § 21.132 (relating to continuing education hours).

   (e)  Reinstatement of suspended license. A licensee seeking to reinstate a suspended license shall submit documentation to demonstrate that the licensee completed 30 hours of continuing education within the biennial period immediately preceding application for reinstatement.

   (f)  Waiver. A licensee may request a waiver of the continuing education requirement because of serious illness, military service or other demonstrated hardship. The licensee shall submit the request and any supporting documentation to the Board in writing at least 90 days prior to the licensee's license expiration date. The Board will grant, deny or grant in part the request for waiver.

   (g)  Disciplinary action authorized.

   (1)  Failure to complete a minimum of 30 hours of continuing education in a biennial period will subject the professional nurse to discipline under section 13(b) of the act (63 P. S. § 223(b)) in accordance with the schedule of civil penalties in § 43b.18 (relating to schedule of civil penalties--nurses). A second or subsequent violation will subject the professional nurse to discipline under section 14(a)(3) of the act (63 P. S. § 224(a)(3)).

   (2)  A professional nurse who has not completed a minimum of 30 hours of continuing education shall report the number of continuing education hours completed on the biennial renewal application and shall make up the deficiency within 6 months of the expiration date of the nurse's license. The licensee shall provide documentation demonstrating the completion of the entire 30-hour requirement to the Board immediately upon completion, but no later than 6 months after the end of the biennial renewal period.

   (3)  Notwithstanding any civil penalty assessed under paragraph (1), failure to provide the Board with documentation demonstrating the completion of 30 hours of approved continuing education within 6 months after the end of the biennial period in which the professional nurse was deficient will subject the licensee to discipline under section 14(a)(3) of the act.

§ 21.132.  Continuing education hours.

   (a)  The Board will accept hours of continuing education as designated by an approved provider, so long as each hour is at least 50 minutes of activity and each 1/2 hour is at least 30 minutes of activity.

   (b)  For purposes of determining acceptable hours of continuing education for academic coursework, the following apply:

   (1)  One academic trimester unit is equivalent to 12 continuing education hours.

   (2)  One academic quarter unit is equivalent to 10 continuing education hours.

   (3)  One academic semester unit is equivalent to 15 continuing education hours.

§ 21.133.  Continuing education content.

   (a)  Continuing education must be relevant to patient care or professional nursing in a general or specialty area and enhance the knowledge and application of the physical, social, biological and behavioral sciences.

   (b)  Courses in areas related to nursing such as the following are acceptable:

   (1)  Human sexuality.

   (2)  Death, dying and grief.

   (3)  Foreign language relevant to health care.

   (4)  Therapeutic interpersonal relationship skills.

   (5)  Patient rights.

   (6)  Pharmacology.

   (c)  Courses in areas impacting nursing practice, such as nursing administration, management, education and diagnostic and procedural coding are acceptable.

   (d)  Group or individual research, as the principal or co-principal investigator, if approved by the institutional review board of the sponsoring institution, is acceptable and will be credited as 15 hours of continuing education.

   (e)  Nonprofessional course content not directly related to patient care, such as courses in self-improvement, changes in attitude, financial gain, courses designed for lay people, basic life support or cardiopulmonary resusitation, mandatory annual education on facility specific policies unrelated to nursing practice (such as facility leave policies) and employment orientation programs are not acceptable for meeting requirements for license renewal.

§ 21.134.  Continuing education sources.

   (a)  The following continuing education activities that meet the requirements of § 21.133 (relating to continuing education content) for professional nurses are approved:

   (1)  Activities sponsored by a Board-approved professional nursing or CRNP education program.

   (2)  Activities sponsored by an accredited professional nursing, CRNP, Certified Registered Nurse Anesthetist, Clinical Nurse Specialist or Nurse Midwifery education program.

   (3)  Activities sponsored by accredited hospitals and health care facilities.

   (4)  Activities sponsored by hospitals and health care facilities licensed by the Department of Health or the Department of Public Welfare.

   (5)  Activities sponsored by regionally-accredited institutions of higher education.

   (6)  Activities sponsored by National nursing, medical, osteopathic and other health care professional organizations and their state and regional affiliates.

   (7)  Activities sponsored by National trade organizations, associations and their affiliated groups and state and regional affiliates.

   (8)  Activities approved by National nursing, risk management, health care quality and patient safety organizations.

   (9)  Activities sponsored by Federal and state agencies.

   (10)  Activities approved by a Board in another jurisdiction.

   (b)  The Board may approve other sources of continuing education on a case-by-case basis after the provider or professional nurse seeking approval submits the following:

   (1)  Full name and address of the provider.

   (2)  Title of the activity.

   (3)  Date and location of the activity.

   (4)  Faculty qualifications.

   (5)  Schedule of the activity, including, for activities with multiple presenters, the title of each subject, lecturer and time allotted.

   (6)  Hours of continuing education.

   (7)  Method of certifying and assuring attendance, and draft of certificate of attendance to be provided to course participants, as applicable.

   (8)  Course objectives.

   (9)  Curriculum.

   (10)  Target audience.

   (11)  Program coordinator.

   (12)  Instruction methods.

   (13)  Evaluation methods, including participant evaluation and activity evaluation.

   (14)  Other information requested in writing by the Board.

   (c)  Requests for approval of a continuing education activity under subsection (b)  shall be submitted at least 90 days prior to commencement of the activity and shall be accompanied by the fee in § 21.5 (relating to fees).

   (d)  Upon approval of a continuing education activity under subsection (b), the Board will determine the number of continuing education hours awarded for the activity.

   (e)  A separate application and fee, as set forth in § 21.5, shall be submitted whenever a change is made to information submitted under subsection (b), except for information related to a change in date or location, or both, of the activity under subsection (b)(3).

   (f)  A continuing education provider shall award a certificate of attendance to professional nurses who complete the continuing education activity. The certificate must contain the information listed in subsection (b)(1)--(3) and (6)  and the name of the individual to whom the certificate is awarded.

   (g)  Distance learning continuing education is acceptable for completion of all 30 continuing education hours required for license renewal.

[Pa.B. Doc. No. 08-1289. Filed for public inspection July 11, 2008, 9:00 a.m.]



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