PROPOSED RULEMAKING
STATE BOARD OF NURSING
[ 49 PA. CODE CH. 21 ]
Licensure by Endorsement and Reactivation
[52 Pa.B. 7503]
[Saturday, December 10, 2022]The State Board of Nursing (Board) proposes to amend §§ 21.30a and 21.156a (relating to continued competency) regarding reactivation and add Subchapter K (relating to licensure by endorsement under 63 Pa.C.S. § 3111) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
The amendments relating to reactivation are proposed under the authority of section 2.1(k) of the Professional Nursing Law (63 P.S. § 212.1(k)) and section 17.6 of the Practical Nurse Law (63 P.S. § 667.6), which provide the Board with general authority to establish standards for the practice of professional and practical nursing, respectively, and the practice of dietetics-nutrition.
The provisions of 63 Pa.C.S. § 3111 (relating to licensure by endorsement) require licensing boards and commissions to issue a license, certificate, registration or permit to an applicant to allow practice in this Commonwealth provided the applicant meets the following criteria: holds a current license, certificate, registration or permit from another state, territory or country whose licensing requirements are substantially equivalent to or exceed the requirements in this Commonwealth; demonstrates competency; has not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice that profession or occupation in this Commonwealth, unless the board or commission determines such conduct is not an impediment to granting the license, certificate, registration or permit; is in good standing and has not been disciplined by the jurisdiction that issued the license, certificate, registration or permit, unless the board or commission determines such conduct is not an impediment to granting the license, certificate, registration or permit; and the applicant pays fees, as established by regulation. Additionally, 63 Pa.C.S. § 3111 authorizes boards and commissions to issue a provisional license, certificate, registration, or permit while an applicant is satisfying remaining requirements for licensure by endorsement, for which the Board must set by regulation the terms of expiration. The new provisions in Subchapter K are proposed under 63 Pa.C.S. § 3111.
The act of July 1, 2020 (P.L. 575, No. 53) added 63 Pa.C.S. § 3111 as part of the consolidation of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) (repealed) into Title 63, Chapter 31 (relating to powers and duties). The text of 63 Pa.C.S. § 3111 was originally added to Act 48 by the act of July 1, 2019 (P.L. 292, No. 41).
Background and Need for the Amendments
This proposed rulemaking is needed to effectuate 63 Pa.C.S. § 3111, which requires the Board to issue a license or certificate to applicants who meet the requirements for licensure by endorsement as set forth in 63 Pa.C.S. § 3111. Under 63 Pa.C.S. § 3111(a)(1), the Board must determine whether the jurisdiction's standards for licensure or certification are substantially equivalent to or exceed those established by the Board. Additionally, 63 Pa.C.S. § 3111(a)(2) requires the Board to determine the methods of competency, including completion of continuing education or experience in the profession or occupation for at least 2 of the 5 years immediately preceding the filing of the application. Under 63 Pa.C.S. § 3111(b)(2), the Board must establish, by regulation, the expiration of the provisional endorsement license. This proposed rulemaking sets forth the criteria for eligibility for licensure by endorsement, including the specific methods required for an applicant to demonstrate competency as well as requirements for granting a provisional endorsement license. In § 21.1104 (relating to licensure by endorsement fee), this proposed rulemaking sets forth the applicable fee for licensure by endorsement applications under 63 Pa.C.S. § 3111. The proposed fees are identical to existing licensure by endorsement fees by licensure classification.
Licensure by endorsement under 63 Pa.C.S. § 3111 is an alternate pathway for licensure and certification than that delineated under section 7 of the Professional Nursing Law (63 P.S. § 217), section 6 of the Practical Nurse Law (63 P.S. § 656) and §§ 21.28 and 21.155 (relating to licensure by endorsement). Under these provisions, applicants for registered nurse (RN), licensed practical nurse (LPN) or licensed dietitian-nutritionist (LDN) licenses must graduate from a Pennsylvania-equivalent program in another jurisdiction and pass a Pennsylvania-equivalent licensure examination. Similarly, applicants for certification as a certified registered nurse practitioner (CRNP) or as a clinical nurse specialist (CNS) must hold an RN license, graduate from a Pennsylvania-equivalent program in another jurisdiction and possess current National certification, as applicable. Under the proposed regulations and 63 Pa.C.S. § 3111, the Board reviews the other jurisdiction's law and determines whether it is substantially equivalent to current licensure standards for the profession.
Because the Board proposes methods in § 21.1102(a)(2) (relating to licensure by endorsement under 63 Pa.C.S. § 3111) to demonstrate competency by means of practice in another jurisdiction under 63 Pa.C.S. § 3111, the Board believes that it is also appropriate to clarify and make consistent similar provisions in §§ 21.30a(a)(3) and 21.156a(a)(3), which provide the competency provisions for RNs and LPNs seeking reactivation who practiced in other states.
Description of the Proposed Amendments
Sections 21.30a(a) and 21.156a(a) provide three reactivation options for licensees whose licenses have lapsed or placed on inactive status for 5 or more years. Subsection (a)(3) in each provision requires practice ''at some period of time'' within the last 5 years. Because the Board is quantifying specific practice time in proposed § 21.1102(a)(2) and to make these provisions consistent, the Board proposes to amend §§ 21.30a(a)(3) and 21.156a(a)(3) by requiring the same 3,600 hours of active engagement in the profession during the last 5 years.
The Board also proposes to amend Chapter 21 (relating to State Board of Nursing) by adding Subchapter K. Proposed § 21.1101 (relating to definitions) defines the term ''jurisdiction'' consistent with 63 Pa.C.S. § 3111. Proposed § 21.1102(a) requires an applicant to satisfy eight criteria required for licensure by endorsement under 63 Pa.C.S. § 3111. The first criterion, as set forth in proposed § 21.1102(a)(1), requires an applicant to have a current license or certification in good standing to practice in another jurisdiction whose standards are substantially equivalent to those established by the Board under section 6(a) and (c) of the Professional Nursing Law (63 P.S. § 216(a) and (c)) and § 21.21 (relating to application for examination) pertaining to RNs; section 8.1 of the Professional Nursing Law (63 P.S. § 218.1) and § 21.271 (relating to certification requirements) pertaining to CRNPs; section 6(b) and (c) of the Professional Nursing Law and § 21.721 (relating to qualifications for licensure) pertaining to LDNs; section 8.5 of the Professional Nursing Law (63 P.S. § 218.5) and § 21.811 (relating to qualifications for initial certification) pertaining to CNSs; and section 5 of the Practical Nurse Law (63 P.S. § 655) and § 21.151 (relating to application for examination) pertaining to LPNs. Proposed § 21.1102(a)(1)(i) further requires an applicant to submit a copy of the current applicable law, regulation or other rule governing licensure, certification registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit. Proposed § 21.1102(a)(1)(iii) would also require that the copy of the applicable law, regulation or other rule include the enactment date. Additionally, because 63 Pa.C.S. § 3111 is applicable to territories and other countries that speak languages other than English, where the applicable law, regulation or other rule is in a language other than English, the Board would require in § 21.1102(a)(1)(ii), at the applicant's expense, translation of the applicable law, regulation or other rule by a professional translation service.
Proposed subsection (a)(2) requires demonstration of competency. Under paragraph (2)(i), an applicant must demonstrate either 1,800 hours of active engagement in the profession for at least 2 of the last 5 years (full-time employment) immediately preceding the filing of the application, under a license, certificate, registration or permit in a substantially equivalent jurisdiction, or jurisdictions. Alternatively, an applicant must demonstrate under paragraph (2)(ii), 3,600 hours of active engagement during the 5 years (part-time employment) immediately preceding the filing of an application under a license, certificate, registration or permit in a substantially equivalent jurisdiction, or jurisdictions. Active engagement as used in this section refers to practice in the profession for which the license or certificate is being sought. This practice could be obtained at private practice offices, community healthcare settings and health systems, conducting research and teaching nursing or dietetics-nutrition in a nursing or dietetics-nutrition school. The Board believes that on average full-time nursing and dietetics-nutrition practice, excluding vacation, is composed of 50 35-hour weeks for a total of 1,800 hours per year. For nurses practicing full-time, the 3,600 hours can be achieved in 2 years. For nurses and dietician-nutritionists practicing part-time or a combination of full-time and part-time, the 3,600 hours can be accomplished within 5 years.
Proposed subsection (a)(3) requires a demonstration of English language proficiency consistent with requirements set forth in §§ 21.23(e), 21.28(e), 21.151(d) and 21.155(e). For the same reasons the Board included English proficiency in its regulations pertaining to initial licensure, the Board includes English proficiency for licensure by endorsement under 63 Pa.C.S. § 3111. The Board believes that for proper patient care licensees must be proficient in English to fully understand the patient's symptoms and concerns, effectuate the directions and instructions from other health professionals and relay the patient's treatment to other nurses and health professionals. In addition, English language proficiency is a standard within the profession as evidenced by its inclusion in the criteria for multistate licensure under the Nursing Licensure Compact (NLC) enacted on July 1, 2021.
Ways to demonstrate proficiency include graduating from an education program taught in English, obtaining clinical or post-licensure experience in an English-speaking facility in any jurisdiction or having achieved the minimum passing score on a Board-approved English language proficiency examination. Versions of the Test of English as a Foreign Language (TOEFL), the International English Language Test System Academic Test (IELTS Academic), Pearson Test of English Academic Test (PTE Academic) and the Michigan English Language Assessment Battery with Speaking Test (MELAB with Speaking Test) are currently Board-approved at specific minimum composite and sub-part scores and posted on the Board's web site at https://www.dos.pa.gov/ProfessionalLicensing/BoardsCommissions/Nursing/Documents/Board%20Documents/Board-Approved-English-Proficiency- Exams.pdf. The list, including scores, is reviewed by the Board on a regular basis with the last review occurring at the Board's December 9, 2021, meeting.
Proposed subsection (a)(4) and (5) incorporate the statutory prohibitions in 63 Pa.C.S. § 3111 pertaining to conduct that would constitute grounds for refusal, suspension or revocation of a license or certificate to practice the profession and prior discipline by the jurisdiction that issued the license, certificate, registration or permit. For applicants who have had criminal convictions, the Board reviews the convictions under 63 Pa.C.S. § 3113. For other prohibited acts or discipline, the Board is dutybound to apply the caselaw and other applicable laws. See, Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973); Bethea-Tumani v. Bureau of Professional and Occupational Affairs, State Board of Nursing, 993 A.2d 921 (Pa. Cmwlth. 2010). A part of that analysis the Board may consider the facts and circumstances surrounding the prohibited act or disciplinary action, increase in age or maturity of the individual since the date of the prohibited act or disciplinary action, disciplinary history or lack of disciplinary history before and after the date of the prohibited act or disciplinary action, successful completion of education and training activities relating to the prohibited act or disciplinary action and any other information relating to the fitness of the individual for licensure.
Proposed subsection (a)(6) provides for payment of an application fee of $120 contained in proposed § 21.1104, as required by 63 Pa.C.S. § 3111(a)(5). Next, proposed subsection (a)(7) requires applicants to apply for licensure in accordance with this chapter in the manner and format prescribed by the Board.
Finally, proposed subsection (a)(8) requires completion of 3 hours of training in child abuse recognition and reporting, which is mandatory continuing education for all applicants under 23 Pa.C.S. § 6383(b)(3)(i) (relating to education and training) of the Child Protective Services Law (CPSL) and Subchapter E of Chapter 21 (relating to child abuse reporting requirements).
In proposed § 21.1102(b), the Board may require a personal interview or additional information to assist the Board in determining eligibility and competency. When a personal interview is necessary, the applicant may request the interview to be conducted by video teleconference for good cause shown.
Consistent with 63 Pa.C.S. § 3111(a)(4) and (5), proposed § 21.1102(c) authorizes the Board, in its discretion, to determine that an act prohibited under section 14(a) of the Professional Nursing Law (63 P.S. § 224(a)), section 16(a) of the Practical Nurse Law (63 P.S. § 666(a)) and §§ 21.18 and 21.148 (relating to standards of nursing conduct) or disciplinary action by a jurisdiction are not impediments to the granting of a license or certificate under 63 Pa.C.S. § 3111.
Consistent with section 63 Pa.C.S. § 3111(b), proposed § 21.1103 (relating to provisional endorsement license) provides that the Board, in its discretion, may issue a provisional endorsement license while an applicant is satisfying remaining requirements under 63 Pa.C.S. § 3111 and proposed § 21.1102. Proposed § 21.1103(b) sets the expiration of a provisional endorsement license at 1 year, unless the Board determines that an expiration date of less than 1 year is appropriate. Additionally, upon a written request, the Board may extend the term of the license upon a showing of good cause. Proposed § 21.1103(c) sets forth reasons for which a provisional endorsement license will be terminated by the Board, including when the Board denies or grants a license, or the provisional endorsement licensee fails to comply with the terms of a provisional endorsement license. Finally, proposed § 21.1103(d) clarifies that while an individual may reapply for a license or certification by endorsement under proposed § 21.1102, the Board will not issue a subsequent provisional endorsement license to an applicant who previously held a provisional endorsement license that expired or was terminated.
Finally, proposed § 21.1104 delineates the $120 fee for licenses/certifications under 63 Pa.C.S. § 3111.
Fiscal Impact and Paperwork Requirements
This proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The costs to the Board related to processing applications for licensure by endorsement under 63 Pa.C.S. § 3111 and applications for reactivation will be recouped through fees paid by applicants. Applicants for licensure by endorsement under 63 Pa.C.S. § 3111 will be impacted by the $120 application fee. Applicants must complete child abuse recognition and reporting training, as required by section 6383(b)(3)(i) of the CPSL. There are free in-person and online child abuse recognition and reporting training options available; therefore, the Board does not anticipate a negative fiscal impact for this statutorily mandated training. If an applicant is unable to establish English proficiency by demonstrating that their education, train-ing or examination was in English and they must take an approved English language proficiency examination, the cost to the applicant is approximately $200. There are no other costs associated with this regulation related to competency.
In addition to the costs being recouped, the Board does not anticipate that many applicants will avail themselves of this pathway. Under the Professional Nursing and Practical Nurse Laws, out-of-State RNs and PNs are permitted to practice in this Commonwealth on a temporary practice permit for 1 year and that timeframe may be extended for another without having to demonstrate competence. Additionally, although the NLC has yet to be implemented in this Commonwealth, upon implementation out-of-State nurses who hold active, unencumbered, multi-state licenses issued by members of the NLC may practice in any member state under their multi-state licenses without filing an endorsement application, meeting eligibility requirements, including competency, or receiving provisional licenses.
There are no additional costs or paperwork requirements associated with the proposed reactivation amendment.
Sunset Date
The Board continuously monitors the cost effectiveness of the Board's regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on November 28, 2022, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Judith Pachter Schulder, Board Counsel, P.O. Box 69523, Harrisburg, PA 17106-9523 or RA-STRegulatoryCounsel@pa.gov within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference 16A-5143 (Licensure by Endorsement and Reactivation), when submitting comments.
LINDA M. KMETZ, PhD, RN,
ChairFiscal Note: 16A-5143. No fiscal impact; (8) recommends adoption.
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
LICENSEES § 21.30a. Continued competency.
(a) A registered nurse whose license has lapsed for 5 years or longer or has been placed on inactive status for 5 years or longer, as permitted in section 11(b) of the act (63 P.S. § 221(b)), may reactivate the license by doing one of the following:
* * * * * (3) Providing evidence to the Board that the applicant has a current license and has practiced as a registered nurse in another jurisdiction [at some period of time] for at least 3,600 hours within the last 5 years.
* * * * *
Subchapter B. PRACTICAL NURSES
LICENSURE § 21.156a. Continued competency.
(a) A licensed practical nurse whose license has lapsed for 5 years or longer or has been placed on inactive status for 5 years or longer, as permitted in section 13.1(b) of the act (63 P.S. § 663.1(b)), may reactivate the license by doing one of the following:
* * * * * (3) Providing evidence to the Board that the applicant has a current license and has practiced as a practical nurse in another jurisdiction [at some period of time] for at least 3,600 hours within the last 5 years.
* * * * * (Editor's Note: The following subchapter is proposed to be added and is printed in regular type to enhance readability.)
Subchapter K. LICENSURE BY ENDORSEMENT UNDER 63 Pa.C.S. § 3111 Sec.
21.1101. Definitions. 21.1102. Licensure by endorsement under 63 Pa.C.S. § 3111. 21.1103. Provisional endorsement license. 21.1104. Licensure by endorsement fee. § 21.1101. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Jurisdiction—A state, territory or country.
§ 21.1102. Licensure by endorsement under 63 Pa.C.S. § 3111.
(a) Requirements for issuance. To be issued a license by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement), an applicant must satisfy all of the following conditions:
(1) Have a current license, certification, registration or permit in good standing to practice the profession in another jurisdiction whose standards are substantially equivalent to or exceed those established under section 6(a) and (c) of the Professional Nursing Law (63 P.S. § 216(a) and (c)) and § 21.21 (relating to application for examination) pertaining to registered nurses; section 5 of the Practical Nurse Law (63 P.S. § 655) and § 21.158 (relating to qualifications of application for examination) pertaining to licensed practical nurses; section 8.1 of the Professional Nursing Law (63 P.S. § 218.1) and § 21.271 (relating to certification requirements) pertaining to certified registered nurse practitioners; section 6(b) and (c) of the Professional Nursing Law (63 P.S. § 216(b) and (c)) and § 21.721 (relating to qualifications for licensure) pertaining to dietitians-nutritionists; and section 8.5 of the Professional Nursing Law (63 P.S. § 218.5) and § 21.811 (relating to qualifications for initial certification) pertaining to clinical nurse specialists. The following apply:
(i) An applicant must submit a copy of the current applicable law, regulation or other rule governing licensure, certification, registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit.
(ii) If the applicable law, regulation or other rule is in a language other than English, at the applicant's expense, the applicable law, regulation or other rule shall be translated by a professional translation service and verified to be complete and accurate.
(iii) The copy of the applicable law, regulation or other rule must include the enactment date.
(2) Demonstrate competency for the license or certificate being sought by one of the following:
(i) Experience in the profession by demonstrating, at a minimum, that the applicant has actively engaged in 1,800 hours per year in the practice of the profession under a license, certificate, registration or permit in a substantially equivalent jurisdiction, or jurisdictions, for at least 2 of the 5 years immediately preceding the filing of the application with the Board.
(ii) Experience in the profession by demonstrating, at a minimum, that the applicant has actively engaged in a total of 3,600 hours in the practice of the profession under a license, certificate, registration or permit in a substantially equivalent jurisdiction, or jurisdictions, during the 5 years immediately preceding the filing of the application with the Board.
(3) Demonstrate English language proficiency by one of the following:
(i) The applicant's educational program was taught in English.
(ii) The applicant's clinical experience was obtained at an English-speaking facility.
(iii) The applicant's post-licensure experience in paragraph (2) was obtained at an English-speaking facility.
(iii) The applicant has achieved the passing score on a Board-approved English language proficiency examination.
(4) Have not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice the profession under section 14(a) of the Professional Nursing Law (63 P.S. § 224(a)), section 16(a) of the Practical Nurse Law (63 P.S. § 666(a)) and §§ 21.18 and 21.148 (relating to standards of nursing conduct).
(5) Have not been disciplined by the jurisdiction that issued the license, certificate, registration or permit.
(6) Have paid the fee as required by § 21.1104 (relating to licensure by endorsement fees).
(7) Have applied for licensure in accordance with this chapter in the manner and format prescribed by the Board.
(8) Complete 3 hours of training in child abuse recognition and reporting from a provider approved by the Department of Human Services as required under 23 Pa.C.S. § 6383(b)(3)(i)) (relating to education and training) and Subchapter E of Chapter 21 (relating to child abuse reporting requirements).
(b) Interview and additional information. An applicant may be required to appear before the Board for a personal interview and may be required to submit additional information, including supporting documentation relating to competency and experience. The applicant may request the interview to be conducted by video teleconference for good cause shown.
(c) Prohibited acts and discipline. Notwithstanding subsection (a)(4) and (5), the Board may, in its discretion, determine that an act prohibited under section 14(a) of Professional Nursing Law, section 16(a) of the Practical Nurse Law and §§ 21.18 and 21.148 or disciplinary action by a jurisdiction is not an impediment to licensure or certification by endorsement under 63 Pa.C.S. § 3111.
§ 21.1103. Provisional endorsement license.
(a) Provisional endorsement license. The Board may, in its discretion, issue a provisional endorsement license, to an applicant while the applicant is satisfying remaining requirements for licensure by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement) and § 21.1102 (relating to licensure by endorsement under 63 Pa.C.S. § 3111).
(b) Expiration of a provisional endorsement license.
(1) An individual holding a provisional endorsement license may practice for up to 1 year after issuance of the provisional endorsement license. The Board, in its discretion, may determine that an expiration date of less than 1 year is appropriate.
(2) Upon a written request and a showing of good cause, the Board may grant an extension of no longer than 1 year from the expiration date of the provisional endorsement license.
(c) Termination of a provisional endorsement license. A provisional endorsement license terminates if any of the following occurs:
(1) When the Board completes its assessment of the applicant and denies or grants the license.
(2) When the holder of the provisional license fails to comply with the terms of the provisional endorsement license.
(d) Reapplication. An individual may apply for licensure by endorsement or certification under § 21.1102 after expiration or termination of a provisional endorsement license; however, the individual may not be issued a subsequent provisional endorsement license.
§ 21.1104. Licensure by endorsement fee.
An applicant for licensure by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement) shall pay a fee of $120.
[Pa.B. Doc. No. 22-1894. Filed for public inspection December 9, 2022, 9:00 a.m.]
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