RULES AND REGULATIONS
AND VOCATIONAL STANDARDS
STATE BOARD OF NURSING
[49 PA. CODE CH. 21]
[30 Pa.B. 3040]
The State Board of Nursing (Board) amends §§ 21.5, 21.147 and 21.253 (relating to fees) to read as set forth in Annex A, by revising those fees which are not related to license renewals but rather to applications and specific services to accurately reflect the cost of processing applications and providing services.
A. Effective Date
The amendments will be effective upon publication in the Pennsylvania Bulletin.
B. Statutory Authority
Section 11.2(a) and (d) of The Professional Nursing Law (63 P. S. § 221.2(a) and (d)), and section 17.5(a) of the Practical Nurse Law (63 P. S. § 667.5(a)), require the Board to set fees by regulation. The same provisions require the Board to increase fees to meet or exceed projected expenditures if the revenues raised by fees, fines and civil penalties are not sufficient to meet expenditures.
C. Background and Purpose
General operating expenses of the Board are funded through biennial license renewal fees. Expenses related to processing individual applications or providing certain services directly to individual licensees or applicants are excluded from general operating revenues and are funded through fees in which the cost of providing the service forms the basis for the fee. The fee is charged to the person requesting the service.
A recent systems audit of the operations of the Board within the Bureau of Professional and Occupational Affairs (Bureau) determined that the current fees did not reflect the actual cost of processing applications and performing the services. The amendments update the fees to accurately reflect the cost of processing the applications and providing the services. A detailed explanation of the background of these fees as well as a description of the fees was published at 29 Pa.B. 2299 (May 1, 1999).
D. Summary of Comments and Responses on Proposed Rulemaking
Notice of proposed rulemaking was published at 29 Pa.B. 2299. Publication was followed by a 30-day public comment period. The Board did not receive comments from the general public. Following the close of the public comment period, the Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC). The following is the Board's response to those comments.
1. Certification Fee
The HPLC questioned under what circumstances the Board certifies an examination score. Both the HPLC and IRRC requested an explanation of the difference between the administrative overhead costs for certification of scores and the administrative overhead costs for other services.
The certification of a score is made at the request of a licensee when the licensee is seeking to obtain licensure in another state based upon a license in this Commonwealth which was issued on the basis of a uniform National or regional examination which was taken in this Commonwealth. Generally, the state of original license is the only source of the score of the licensee, as testing agencies do not maintain this information. The licensing laws of many states include provisions that licensure by reciprocity or endorsement based on a license in another state will be granted only if the board or agency determines that the qualifications are the same or substantially similar. Many state agencies have interpreted this provision to require that licensees have attained a score equal to or exceeding the passing rate in that jurisdiction at the time of original licensure. For this reason, these states require that the Board and other licensing boards certify the examination score the applicant achieved on the licensure examination.
The difference between the verification and certification fees is the amount of time required to produce the document requested by the licensee. States request different information when making a determination as to whether to grant licensure based on reciprocity or endorsement from another state. The Bureau has been able to create two documents from its records that will meet all of the needs of the requesting state. The licensee, when the applicant applies to the other state, receives information as to what documentation and form is acceptable in the requesting state. The Bureau then advises the licensee of the type of document the Bureau can provide and the fee. In the case of a ''verification,'' the staff produces the requested documentation by a letter, usually computer-generated, which contains the license number, date of original issuance and current expiration date, and status of the license. The letters are printed from the Bureau's central computer records and sent to the Board staff responsible for handling the licensee's application. The letters are sealed, folded and mailed in accordance with the directions of the requestor. The Bureau estimates the average time to prepare this document to be 5 minutes. The Bureau uses the term ''certification fee'' to describe the fee for a request for a document, again generally to support reciprocity or endorsement applications to other states, territories or countries, or for employment or training in another state. A certification document contains information specific to the individual requestor. It may include dates or locations where examinations were taken, or scores achieved or hours and location of training. The information is entered onto a document which is usually supplied by the requestor. The average time to prepare a certification is 45 minutes. This is because a number of resources, such as files, microfilm and rosters must be retrieved and consulted to provide the information requested. The Board staff then seals and issues this document.
2. Administrative Overhead
IRRC requested that the Bureau and the Board thoroughly examine their cost allocation methodology for administrative overhead and itemize the overhead cost to be recouped by the fees. IRRC commented that although the Bureau's method was reasonable, there is no indication that the fees will recover the actual overhead cost because there is no relationship to the service covered by the fees and because the costs are based upon past expenditures rather than projected expenditures. IRRC expressed the view that there is no certainty that the projected revenues of the new fees will meet or exceed projected expenditures as required under the Board's enabling statutes. The HPLC requested an explanation regarding why the proposed fees are rounded up and are not the actual cost of services as estimated by the board.
In computing overhead charges, the Board and the Bureau include expenses resulting from service of support staff operations, equipment, technology initiatives or upgrades, leased office space and other sources not directly attributable to a specific board. Once determined, the Bureau's total administrative charge is apportioned to each board based upon that board's share of the total active licensee population. In turn, the Board's administrative charge is divided by the number of active licensees to calculate a ''per application'' charge which is added to direct personnel cost to establish the cost of processing. The administrative charge is consistently applied to every application regardless of how much time the staff spends processing the application.
This method of calculating administrative overhead to be apportioned to fees for services was first included in the biennial reconciliation of fees and expenses conducted in 1988-89. In accordance with the regulatory review, the method was approved by the Senate and House Standing Committees and IRRC as reasonable and consistent with the legislative intent of statutory provisions which require the Board to establish fees which meet or exceed expenses.
IRRC suggested that within each board, the administrative charge should be determined by the amount of time required to process each application. For example, an application requiring 1/2 hour of processing time would pay one-half as much overhead charge as an application requiring 1 hour of processing time. The Bureau concurs with IRRC that by adopting this methodology, the Bureau and the Board would more nearly and accurately accomplish their objective of setting fees that cover the cost of the service. Therefore, in accordance with IRRC's suggestions, the Bureau conducted a test to compare the resulting overhead charges obtained by applying IRRC's suggested time factor versus the current method. This review of a licensing board's operation showed that approximately 25% of staff time was devoted to providing services described in the regulations. The current method recouped 22% to 28% of the administrative overhead charges versus the 25% recouped using a ratio-based time factor. However, when the time factor is combined with the licensing population for each board, the resulting fees vary widely even though different licensees may receive the same services. For example, using the time-factor method to issue a verification of licensure would cost $34.58 for a landscape architect as compared with a cost of $10.18 for a cosmetologist. Conversely, under the Bureau method the administrative overhead charge of $9.76 represents the cost of processing a verification application for all licensees in the Bureau. Also, the Bureau found that employing a time factor in the computation of administrative overhead would result in a different amount of overhead charge being made for each fee proposed.
With regard to IRRC's suggestions concerning projected versus actual expenses, the licensing boards noted that the computation of projected expenditures based on amounts actually expended has been the basis for biennial reconciliations for the past 10 years. During these five biennial cycles, the experience of both the licensing boards and the Bureau has been that using established and verifiable data, which can be substantiated by collective bargaining agreements, pay scales and cost benefit factors, provides a reliable basis for fees. Also, the fees are kept at a minimum for licensees, but appear adequate to sustain the operations of the boards over an extended period. Similarly, accounting, recordkeeping and swift processing of applications, renewals and other fees were the primary basis for ''rounding up'' the actual costs to establish a fee. This rounding up process has in effect resulted in the necessary but minimal cushion or surplus to accommodate unexpected needs and expenditures.
For these reasons, the Board has not made changes in the method by which they allocate administrative expenditures and the resulting fees will remain as proposed.
3. Other Comments
The HPLC requested an explanation as to what Board costs are reflected in the fees in which a component of the fee is apportioned for Board meeting time to review or vote on the applications, or both. The application fees for services which require the attention of the Board, and for which the cost is excluded from the general operating expenses of the Board, include this apportioned cost. For example, before a new nursing education program is approved, the program is throughly reviewed by the Board, and representatives of the program appear before the Board to answer the Board's questions. The cost for the Board to review new nursing education programs is apportioned only to those who apply for program approval and benefit from the service. This cost is not borne by the general licensee population because they are not using the service and do not benefit. The cost apportioned as Board review equals the cost for the Board to review the application for the specified amount of time.
The HPLC noted that the aggregate biennial increase in cost to the licensees and the corresponding increase in biennial revenue to the Board would be $1,204,345. The HPLC requested justification for the increase. The aggregate increase reflects both the increase in Board costs to provide each of the services and the estimated number of licensees who use will the services. The current fees are outdated and no longer cover the costs of providing the specified services. Some fees have not been increased for 13 years, and most have not been increased for 9 years. In the last 6 years, the number of licensees has increased by 26,200. As noted in proposed rulemaking, the fees for license applications by endorsement, CRNP certification and certification of scores have not been revised since 1987. Fees for out-of-State graduate license applications, temporary practice permits, new nursing program approval applications, and challenge of the RN and PN examinations have not been revised since 1991, and the fee for reactivating a license after 5 years of inactivity was last revised in 1993. The new fees for license restoration after a sanction, applications for extending a temporary practice permit, certification of scores and certification of license history reflect the actual cost of providing these services. Details of the Board's analysis of the cost of each fee are attached to the Regulatory Review Analyses Form, which is available upon request.
The application fees are charged only to those who the request the specified service. The fees charged reflect the costs to the Board. The Board estimates that 15,686 individuals will use the specified services annually. The average increase in cost to each individual who requests a service will be $38.39. If those requesting services were not charged with the cost of providing the services, then the cost to provide these services to individuals would be borne by the entire licensee population to raise the fees to meet expenditures as required by statute; however, the general licensee population would receive no benefit from services provided to those individuals. In FY 98-99, there were 257,986 nurses licensed by the Board. If the general licensee population subsidized the application fees, an increase in the biennial renewal fees of $4.67 would result. The aggregate increase represents not only an increase in the cost to the Board to provide the service, but also includes the estimated number of individuals who will request the services. For example, if no one used the Board's services, the increased cost to the Board would be $0.00, the increased cost to the licensees would be $0.00, and the aggregate increase in revenue to the Board would be $0.00. If twice the number of people used the services as projected, the increased costs and corresponding revenue would also double, but the average increase to each individual would remain the same. The estimated 15,686 individuals who ask for and benefit from the requested services will pay the fees, not the general licensee population.
The Board believes that this rulemaking will not put the Commonwealth at a competitive disadvantage with other states. Other states (New York, New Jersey, Maryland, Ohio and Delaware) seem to anticipate and include the costs of many of these services in their license renewal fees. As a result, their renewal fees range from $35 to $100 and are significantly higher than the Commonwealth's which range from $16 to $24. Details of the Board's analysis are in the Regulatory Analysis Form, which is available upon request.
E. Compliance with Executive Order 1996-1, Regulatory Review and Promulgation
The Board reviewed this rulemaking and considered its purpose and likely impact upon the public and the regulated population under Executive Order 1996-1, Regulatory Review and Promulgation. The final-form regulations address a compelling public interest as described in this Preamble and otherwise complies with Executive Order 1996-1.
F. Fiscal Impact and Paperwork Requirements
These final-form regulations will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The fees will have a modest fiscal impact on those members of the private sector who apply for services from the Board. The amendments will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
G. Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been set.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of the notice of proposed rulemaking, published at 29 Pa.B. 2299, to IRRC and to the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
In compliance with section 5(c) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of comments received, as well as other documentation. In preparing these final-form regulations, the Board has considered all comments received from the Committees, IRRC and the public.
These final-form regulations were approved by the HPLC on April 18, 2000, and deemed approved by the SCP/PLC on April 27, 2000. IRRC met on May 11, 2000, and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
I. Contact Person
Further information may be obtained by contacting Ann Steffanic, Administrative Assistant, State Board of Nursing, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7200.
The Board finds that:
(1) Public notice of proposed rulemaking was 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 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.
(3) These amendments do not enlarge the purpose of proposed rulemaking published at 29 Pa.B. 2299.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Part B of this preamble.
The Board, acting under its authorizing statutes, orders that:
(1) The regulations of the Board, 49 Pa. Code Chapter 21, are amended by amending §§ 21.5, 21.147 and 21.253 to read as set forth in Annex A.
(2) The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(3) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(4) This order shall take effect on publication in the Pennsylvania Bulletin.
SUSANNE M. KELLY, BSN, RN,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 2688 (May 27, 2000).)
Fiscal Note: Fiscal Note 16A-5112 remains valid for the final adoption of the subject regulations.
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
§ 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 $475 Fee for review and challenge of RN exams $170 Application fee for out-of-State graduates $100 Biennial renewal of license $21 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
(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.
Subchapter B. PRACTICAL NURSES
§ 21.147. 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 $475 Fee for review and challenge of PN exams $170 Application fee for out-of-State graduates $100 Biennial renewal of license $16 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
(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 practical 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 practical nurse licensing examination. Effective April 1994, or upon implementation of the computer adapted examination, the fee paid directly to the National Council of the State Boards of Nursing or its designated agent is $88.
Subchapter C. CERTIFIED REGISTERED
§ 21.253. Fees.
The following fees are charged by the Board:
Certification $100 Biennial renewal of certification $26 Verification of certification $15
[Pa.B. Doc. No. 00-1037. Filed for public inspection June 16, 2000, 9:00 a.m.]
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