RULES AND REGULATIONS
STATE BOARD OF NURSING
[49 PA. CODE CH. 21]
Temporary Practice Permits
[36 Pa.B. 2402] The State Board of Nursing (Board) adopts amendments to §§ 21.1, 21.7, 21.141 and 21.149 regarding temporary practice permits (TPPs) for professional nurses (RNs) and practical nurses (LPNs), to read as set forth in Annex A.
Notice of proposed rulemaking was published at 34 Pa.B. 4897 (September 4, 2004). Publication was followed by a 30-day public comment period during which the Board did not receive any comments from the public. On October 5, 2004, the House Professional Licensure Committee (HPLC) submitted 14 comments/recommendations. The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) made no comments. On November 3, 2004, the Independent Regulatory Review Commission (IRRC) submitted numerous comments to the proposed rulemaking.
The Board submitted the final rulemaking package to the SCP/PLC, the HPLC and IRRC on November 28, 2005. On December 12, 2005, the Board withdrew the final rulemaking package to address a concern raised by IRRC.
Summary of Comments and Responses to Proposed Rulemaking
HPLC Comments
The HPLC recommended that the Board add definitions for the following terms: ''graduate registered nurse,'' ''graduate practical nurse,'' ''Form 1'' and ''Form 2.'' The Board has amended this final-form rulemaking to add definitions for the terms ''graduate registered nurse'' and ''graduate practical nurse'' in §§ 21.1 and 21.141 (relating to definitions). The Board has ceased using the terms ''Form 1'' and ''Form 2'' in favor of descriptive terms.
The HPLC commented that it believes that § 21.7(a) (relating to temporary practice permits) applies to graduates of Board-approved programs for registered nurses (RN). The HPLC asked whether it would be clearer for the Board to state in subsection (a) that the provisions apply to an individual who has graduated from a Board-approved educational program. Although the Board only approves programs in this Commonwealth, under section 4(4) of the Professional Nursing Law (act) (63 P. S. § 214(4)) a graduate RN may be the graduate of an approved program of professional nursing in this Commonwealth or another state. Therefore, the Board has amended the language in § 21.7(a)(1) to conform to the statutory language.
The HPLC asked ''whether it would be clearer to state the rule that TPPs are only good for 1 year, expire if the applicant fails the licensing exam and can only be extended for illness or extreme hardship and to state that in one paragraph.'' The Board has amended § 21.7(a) to adopt this recommendation.
The HPLC noted that ''[i]t is the committee's understanding that the board will waive the deadlines of 60 days and 90 days if the nurse cannot meet those deadlines due to illness or other hardship'' and asked the Board to rewrite § 21.7(a)(4) for clarity. The Board intended § 21.7(a)(4) to be an absolute rule. If a nurse is so severely ill or disabled within the last 2 to 3 months prior to the expiration of the TPP that the nurse cannot submit a licensure application, the nurse will likely also be unable to practice nursing utilizing the TPP.
The HPLC recommended that § 21.7(b) should be rewritten to clarify that this subsection applies to currently-licensed nurses as defined in § 21.7(b)(1). The Board has adopted the suggestion.
The HPLC noted that § 21.7(b) was not clear with respect to the statutory rules regarding TPPs and suggested that the Board amend the section to restate the statutory provision. The Board has adopted the suggestion.
The HPLC asked the Board to review §§ 21.149 and 21.154 (relating to temporary practice permits; and unlicensed candidate) to ensure the sections did not conflict. Section 21.154 is merely a restatement of the statutory provision in section 3.1 of the Practical Nurse Law (63 P. S. § 653.1), which limits a TPP to 1 year, unless extended by the Board upon presentation of validating documentation. TPP holders are required to practice under supervision. The Board finds no conflict between the sections. Section 21.149 details the TPP application process and the requirements and documentation required if a TPP holder requests an extension of the TPP.
The HPLC's comment regarding TPPs for LPNs is similar to its second comment regarding RNs. The Board has also amended § 21.149(a) and (b) to more clearly explain to whom this section applies.
The HPLC noted that §§ 21.7(a) and 21.149(a) were not parallel in language regarding extension due to illness or hardship. The Board has added this language to § 21.149(a).
The HPLC raised the same inquiry as its fourth comment in relation to § 21.149 regarding LPNs. The Board intended that any individual who failed to meet the requirements in § 21.149(a)(2) and (3) could not obtain an extension. As with RNs, the Board believes that if a nurse is so severely ill or disabled within the last 2 to 3 months prior to the expiration of the TPP that the nurse cannot submit a licensure application, the nurse will likely also be unable to practice nursing utilizing the TPP.
Finally, the HPLC pointed out several typographical and technical drafting errors, which the Board has corrected.
IRRC Comments
IRRC concurred with the comments of the HPLC. IRRC raised three concerns regarding adding definitions and practice by an unlicensed candidate. IRRC asked the Board to define ''graduate registered nurse'' and ''graduate practical nurse.'' As noted in the response to the HPLC comments, the Board has added these definitions.
IRRC asked that the Board review § 21.27 (relating to unlicensed candidate) and § 21.154 to determine whether these two existing provisions will be necessary when the final-form rulemaking is promulgated. These two sections were promulgated to permit a graduate nurse to practice for up to 1 year after completion of the nursing education program and before examination. Section 21.27 was promulgated at 13 Pa.B. 2829 (September 17, 1983). Section 21.154 was promulgated at 13 Pa.B. 2061 (July 1, 1983)). These sections were promulgated before the General Assembly provided for TPPs by enacting section 4.1 of the act (63 P. S. § 214.1) by the act of December 20, 1985 (P. L. 409, No. 109) and section 3.1 of the Practical Nurse Law (63 P. S. § 653.1) by the act of December 20, 1985 (P. L. 423, No. 110). To avoid any confusion that may arise regarding whether a graduate nurse must have a TPP to practice before obtaining a license, the Board will strike §§ 21.27 and 21.154. Paragraph (2) of each of those sections, which define the type of supervision under which a graduate nurse might practice, will be added to the final-form rulemaking by adding to §§ 21.7(a) and 21.149(a).
IRRC stated that the Board's regulation needs to address the fact that existing regulations require that unlicensed graduate nurses practice under the supervision of another nurse. The requirement that an unlicensed graduate nurse practice only under the supervision of another nurse is in section 4(4) of the act and section 3(5) of the Practical Nurse Law (63 P. S. § 653(5)), and is restated in the Board's regulation in § 21.154. The Board does not believe it is necessary to restate the statutory provision in another regulation. A graduate nurse may not practice without a TPP and may only practice utilizing a TPP under supervision.
IRRC asked the Board to replace ''and'' with ''to the'' in both subsections (a) to denote the period between completion of the educational program and notification of examination results. The Board has made this change.
IRRC asked the Board to explain why a graduate nurse would be allowed to practice for 9 months before needing to apply for the licensure examination. The Board is constrained by its authorizing legislation to permit individuals to practice prior to passing the licensure examination. The General Assembly, in 1985, added provisions to the act allowing an individual to practice with TPP for up to 1 year from the date of graduation to the date the individual receives results of the licensure examination and for up to 1 year from the date the individual applies for licensure by reciprocity. The Board has shortened the time to 9 months to allow time for processing of the licensure application to ensure a seamless transition in practice between the temporary permit and licensure.
IRRC raised two concerns with subsections (a)(3) and (b)(4) pertaining to both §§ 21.7 and 21.149. First, IRRC suggested that the Board should include a time limit for extensions or a statement that the Board will notify the applicant in writing of the time limit for each case. Second, IRRC asked what documentation would be required to evidence extreme hardship. The Board determines requests for extensions of TPPs on a case-by-case basis and has, for years, responded to requests for extension by letter addressed to the requestors. The Board either denies the request for extension or grants the extension for a specified period of time from the date of the request. The Board believes it is not necessary to state in the regulation that the Board will respond to requests for extension and that extensions, if granted, will be based on the individual circumstances of requestors, thus varying in length for each individual requestor. The Board cannot speculate on all of the types of documentation that might be submitted to demonstrate extreme hardship, and thus chose not to create a partial list. Documentation of extreme hardship might include military orders and discharge papers.
Regarding currently-licensed nurses, IRRC again questioned why individuals are allowed to practice for approximately 9 months before they are required to supply the necessary documentation for licensure. The Board is attempting to effectuate the statute in an efficient manner. The problem faced by the Board, and addressed by this final-form rulemaking, is that it had become commonplace for currently licensed nurses to request extensions of TPPs within 1 week of the date the TPPs were set to expire, without having submitted any supporting documentation for licensure. Prior to drafting this final-form rulemaking, the Board was reviewing 20 to 30 requests for extensions at each of its monthly meetings. The time limits in the final-form rulemaking correspond to the Board's processing time.
IRRC made several comments under a heading of miscellaneous clarifications. IRRC suggested that the final-form rulemaking be placed in the ''Licensure'' section of the Board's regulations rather than under ''General Provisions.'' A TPP is not a form of a license; therefore, the Board believes the regulations are properly placed.
IRRC also noted inconsistencies in the Board's use of the term ''physician'' and ''treating physician.'' The Board has chosen to use the term ''treating physician.'' IRRC pointed out an incorrect reference to the fee section, which has also been corrected. IRRC noted that §§ 21.7(b)(7) and 21.149 incorrectly referenced paragraphs (2)--(5) instead of paragraphs (2)--(6), which has been corrected.
IRRC noted that §§ 21.7(b)(5) and 21.149(a)(3), unlike §§ 21.7(a)(3) and 21.149(b)(5), do not include the criteria for illness or extreme hardship and questioned whether this was an error. The Board intends that extensions only be granted because of illness or extreme hardship and has added this language where missing.
Similarly, IRRC noted a discrepancy with the use of ''will'' and ''may'' in §§ 21.7(b) and 21.149(b). The Board has conformed the sections and used the discretionary word ''may.''
Statutory Authority
The final-form rulemaking is authorized under section 2.1(k) of the act (63 P. S. § 212.1(k)) and 4.1 of the act and section 3.1 of the Practical Nurse Law and 17.6 of the Practical Nurse Law (63 P. S. § 667.6).
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth, its political subdivisions or the public. The final-form rulemaking will not impose additional paperwork requirements upon the Board, political subdivisions or the public.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 6, 2004, the Board submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4897, 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 Department 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 April 4, 2006, the final-form rulemaking was approved by the HPLC and was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 19, 2006, and approved the final-form rulemaking.
Additional Information
Additional information can be obtained by writing to Ann Steffanic, Board Administrator, State Board of Nursing, P. O. Box 2649, Harrisburg, PA 17105-2649.
Findings
The Board finds that:
(1) Public notice of intention to adopt these amendments has been given 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 thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and no comments were received.
(3) The amendments made to the final-form rulemaking do not enlarge the original purpose of the proposed rulemaking as published at 34 Pa.B. 4897.
(4) This final-form rulemaking is necessary and appropriate for the administration of the act and the Practical Nurse Law.
Order
The Board orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 21, are amended by amending §§ 21.1, 21.7, 21.141 and 21.149 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JOANNE SORENSEN, RN, MS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 2251 (May 6, 2006).)
Fiscal Note: Fiscal Note 16A-5121 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL LICENSURE 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:
* * * * * 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.
* * * * * § 21.7. Temporary practice permits.
(a) A graduate registered nurse may only practice professional nursing under supervision and if the graduate registered nurse holds a current temporary practice permit. ''Supervision'' means that a licensed registered nurse is physically present in the area or unit where the graduate registered nurse is practicing. The Board may grant a temporary practice permit to a graduate registered nurse as follows:
(1) An individual who wishes to practice as a graduate registered nurse during the period from the date of completion of the educational program to the notification of the results of the licensing examination shall submit an application for a temporary practice permit for a graduate registered nurse on a form provided by the Board and remit the fee specified in § 21.5 (relating to fees). A temporary practice permit granted under this section is valid for up to 1 year from the date of issuance, unless extended under paragraphs (3) and (4), and immediately expires if the applicant fails the licensing examination.
(2) At least 90 days prior to the expiration date of the temporary practice permit, the graduate registered nurse shall:
(i) Submit an application for licensure by examination as a registered nurse.
(ii) Remit the fee specified in § 21.5.
(iii) Submit the licensure examination registration form and fee required to the professional testing organization.
(3) At least 60 days prior to the expiration date of the temporary practice permit, the graduate registered nurse who wishes to extend the expiration date of the temporary practice permit because of illness or extreme hardship shall:
(i) Submit an application for temporary practice permit extension on a form provided by the Board.
(ii) Remit the fee specified in § 21.5.
(iii) Provide a detailed, written explanation of the reason the extension is requested. If requesting an extension due to illness, the applicant shall provide certification of the illness from the applicant's treating physician.
(4) The Board will not grant an extension to an individual who fails to meet the requirements of paragraphs (2) and (3).
(b) The Board may grant a temporary practice permit to an individual who holds a current registered nurse license issued by another state, territory or possession of the United States or Canada (a currently-licensed registered nurse). The temporary practice permit will expire in 1 year, unless the individual fails the licensure examination, in which case the temporary practice permit will immediately expire. The Board may extend the temporary practice permit period in cases of illness or extreme hardship, as set forth in paragraph (5).
(1) A currently-licensed registered nurse who wishes to practice professional nursing during the period from the date of submission of the Applicant Data Sheet of the application for licensure until the Board makes a determination on the application for licensure or 1 year, whichever comes first, shall:
(ii) Submit an application for temporary practice permit for a currently-licensed registered nurse on a form provided by the Board.
(iii) Remit the fee specified in § 21.5.
(2) An individual applying for a temporary practice permit for a currently-licensed registered nurse shall demonstrate proficiency in English by submitting proof that the individual's nursing education program was conducted in English or that the individual has received a passing score on a Board-approved English proficiency examination. A list of Board-approved English proficiency examinations is available upon request to the Board. This information must be submitted with the Applicant Data Sheet of the application for licensure.
(3) Within 45 days of the date the temporary practice permit is issued, an individual who has been granted a temporary practice permit for a currently-licensed registered nurse shall submit the Verification of Licensure Form of the application for licensure and shall:
(i) Request verification of licensure from the foreign jurisdiction and retain documentation of the submission of the request to provide to the Board upon request.
(ii) Request certification of the applicant's nursing education program from the licensing board or appropriate educational authorities. The certification of nursing education must be submitted to the Board in English directly from the appropriate educational authorities. The applicant shall retain documentation of the submission of the request to provide to the Board upon request.
(iii) Submit the Commission on Graduates of Foreign Nursing Schools (CGFNS) application if the applicant is required to meet CGFNS requirements in §§ 21.23(c) and 21.28(c) (relating to qualifications of applicant for examination; and licensure by endorsement) and retain documentation of the submission of the CGFNS application to provide to the Board upon request.
(iv) If the applicant is required to take the licensure examination, submit the licensure examination registration form and fee required to the professional testing organization and retain documentation of the submission of the application to take the examination to provide to the Board upon request.
(4) An individual who has been granted a temporary practice permit for a currently-licensed registered nurse shall ensure that all documentation in support of the application for licensure is received by the Board no later than 90 days prior to the expiration date of the temporary practice permit. An individual whose supporting documentation has not been received by the Board at least 90 days prior to the expiration date of the temporary practice permit shall submit, within 10 days of receiving notice of the deficiency from the Board, a detailed written explanation of why the supporting documentation has not been supplied to the Board in a timely manner.
(5) An individual who has been granted a temporary practice permit for a currently-licensed registered nurse and who has complied with paragraphs (2)--(4) may request an extension of the individual's temporary practice permit because of illness or extreme hardship by:
(i) Submitting a temporary practice permit extension application provided by the Board.
(ii) Remitting the fee specified in § 21.5.
(iii) Submitting a written, detailed explanation of the reasons the extension is requested. If requesting an extension due to illness, the applicant shall provide certification of the illness from the applicant's treating physician.
(iv) Providing proof of the timely request for verification of licensure referenced in paragraph (3)(i).
(6) The request for temporary practice permit extension must be submitted to the Board no less than 60 days prior to the expiration date of the temporary practice permit.
(7) The Board will not grant an extension to an individual who fails to meet the requirements of paragraphs (2)--(6).
Subchapter B. PRACTICAL NURSES
GENERAL PROVISIONS§ 21.141. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Graduate practical nurse--An individual who has graduated from an approved program of practical nursing in this Commonwealth or a comparable program in another state.
* * * * * § 21.149. Temporary practice permits.
(a) A graduate practical nurse may only practice practical nursing under supervision and if the graduate practical nurse holds a current temporary practice permit. ''Supervision'' means that a licensed registered nurse is physically present in the area or unit where the graduate practical nurse is practicing. The Board may grant a temporary practice permit to a graduate practical nurse as follows:
(1) An individual who wishes to practice as a graduate practical nurse during the period from the date of completion of the Board-approved educational program to the notification of the results of the licensing examination shall submit an application for temporary practice permit for a graduate practical nurse on a form provided by the Board and remit the fee specified in § 21.147 (relating to fees). A temporary practice permit granted under this section is valid for up to 1 year from the date of issuance unless extended under paragraphs (3) and (4), and immediately expires if the applicant fails the licensing examination.
(2) At least 90 days prior to the expiration date of the temporary practice permit, the graduate practical nurse shall:
(i) Submit an application for licensure by examination as a practical nurse.
(ii) Remit the fee specified in § 21.147.
(iii) Submit the licensure examination registration form and fee required to the professional testing organization.
(3) At least 60 days prior to the expiration date of the temporary practice permit, the graduate practical nurse who wishes to extend the expiration date of the temporary practice permit because of illness or extreme hardship shall:
(i) Submit an application for temporary practice permit extension on a form provided by the Board.
(ii) Remit the fee specified in § 21.147.
(iii) Provide a detailed, written explanation of the reasons the extension is requested. If requesting an extension due to illness, the applicant shall provide certification of the illness from the applicant's treating physician.
(4) The Board will not grant an extension to an individual who fails to meet the requirements of paragraphs (2) and (3).
(b) The Board may grant a temporary practice permit to an individual who holds a current practical nurse license issued by another state, territory or possession of the United States or Canada (a currently-licensed practical nurse). The temporary practice permit will expire in 1 year, unless the individual fails the licensure examination, in which case the temporary practice permit will immediately expire. The Board may extend the temporary practice permit in cases of illness or extreme hardship, as set forth in paragraph (5).
(1) A currently-licensed practical nurse who wishes to practice practical nursing during the period from the date of submission of the Applicant Data Sheet of the application for licensure until the Board makes a determination on the application for licensure or 1 year, whichever comes first, shall:
(i) Submit an application for temporary practice permit for a currently-licensed practical nurse on a form provided by the Board.
(ii) Remit the fee specified in § 21.147.
(2) An individual applying for a temporary practice permit for a currently-licensed practical nurse shall demonstrate proficiency in English by submitting proof that the individual's nursing education program was conducted in English or that the individual has received a passing score on a Board-approved English proficiency examination. A list of Board-approved English proficiency examinations is available upon request to the Board. This information shall be submitted with the Applicant Data Sheet of the application for licensure.
(3) Within 45 days of the date the temporary practice permit is issued, an individual who has been granted a temporary practice permit for a currently-licensed practical nurse shall submit the Verification of Licensure Form of the application for licensure and shall:
(i) Request verification of licensure from the foreign jurisdiction and retain documentation of submission of the request to provide to the Board upon request.
(ii) Request certification of the applicant's nursing education program from the licensing board or appropriate educational authorities. The certification of nursing education must be submitted to the Board in English directly from the appropriate educational authorities. The applicant shall retain documentation of submission of the request to submit to the Board upon request.
(iii) Submit the Commission on Graduates of Foreign Nursing Schools (CGFNS) application if the applicant is required to meet CGFNS requirements set forth in § 21.155(d) (relating to licensure by endorsement) and retain documentation of the submission of the CGFNS application to provide to the Board upon request.
(iv) If the applicant is required to take the licensure examination, submit the licensure examination registration form and fee required to the professional testing organization and retain documentation of the submission of the application to take the examination to provide to the Board upon request.
(4) An individual who has been granted a temporary practice permit for a currently-licensed practical nurse shall ensure that all documentation in support of the application for licensure is received by the Board at least 90 days prior to the expiration date of the temporary practice permit. An individual whose supporting documentation has not been received by the Board at least 90 days prior to the expiration date of the temporary practice permit shall submit, within 10 days of receiving notice of the deficiency from the Board, a detailed written explanation of why the supporting documentation has not been supplied to the Board in a timely manner.
(5) An individual who has been granted a temporary practice permit for a currently-licensed practical nurse and who has complied with paragraphs (2)--(4) may request an extension of the temporary practice permit because of illness or extreme hardship by:
(i) Submitting a temporary practice permit extension application on a form provided by the Board.
(ii) Remitting the fee specified in § 21.147.
(iii) Submitting a written, detailed explanation of the reasons the extension is requested. If requesting an extension due to illness, the applicant shall provide certification of the illness from the applicant's treating physician.
(v) Providing proof of the timely request for verification of licensure referenced in paragraph (3)(i).
(6) The request for temporary practice permit extension must be submitted to the Board at least 60 days prior to the expiration date of the temporary practice permit.
(7) The Board will not grant an extension to an individual who fails to meet the requirements of paragraphs (2)--(6).
[Pa.B. Doc. No. 06-867. Filed for public inspection May 19, 2006, 9:00 a.m.]
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