PART 11. TEXAS BOARD OF NURSING
CHAPTER 223. FEES
INTRODUCTION. The Texas Board of Nursing (Board) proposes an amendment to §223.1 (relating to Fees). The amendment is proposed under the Occupations Code §§301.155(a), 301.157(b), and 301.151 and is necessary to increase the required filing fee for the approval of a new nursing education program from $500 to $2,500.
Currently, the required filing fee for the approval of a new nursing education program is $500. This fee was established in 2005, following the merger of the Board of Nurse Examiners and the Board of Vocational Nurse Examiners. Since that time, the Board has continued to receive an increasing number of new nursing education program proposals each year. Despite the increase in proposal submissions, the Board has not increased the filing fee for the approval of a new nursing education program since 2005. However, due to the continuing influx of new nursing education program proposals, the Board has now determined that the filing fee associated with the approval of a new nursing education program must be increased in order for the Board to be able to review and approve the proposals in an effective and efficient manner.
Historical Perspective
In 2005, the Board received four new nursing education program proposals. In 2006, the Board received six new nursing education program proposals. In 2007, the Board received nine new nursing education program proposals. In 2008, the Board received eight new nursing education program proposals. In 2009, however, the Board received 14 new nursing education program proposals. The Board has received one new nursing education program proposal thus far in 2010 and 15 letters of intent for additional new nursing education program proposals to be submitted to the Board by the end of this year.
The overwhelming increase in the number of new nursing education program proposals has greatly impacted existing Board resources. Although the number of Board staff dedicated to reviewing new nursing education program proposals has not significantly increased since 2005, the responsibilities and duties associated with reviewing the proposals has. Each new nursing education program proposal must undergo a rigorous review process. Once a new nursing education program proposal is submitted to the Board, the proposal is assigned to a staff member who is responsible for reviewing the proposal. The Board estimates that one staff member spends a minimum of 75 - 90 hours reviewing a single new nursing education program proposal. This estimate includes only those new nursing education program proposals that are substantially complete upon their submission to the Board. Often, staff members will receive new nursing education program proposals that are incomplete or contain inadequate data or information to support Board approval. In these situations, staff members must spend considerably more than 75 - 90 hours reviewing these proposals. For each new nursing education program proposal submitted to the Board, a staff member must: (i) review the proposal to determine if it complies with the requirements of the Nursing Practice Act (the Occupations Code Chapter 301) and the Board's rules; (ii) draft a formal review of the proposal; (iii) consult with the program to discuss any deficiencies in the proposal; (iv) review all revisions to the proposal that are submitted by the program (a minimum of two revisions are usually required); and (v) develop and present information to the Board for its review and consideration. Additionally, a staff member must conduct at least one on-site survey visit of a program's facilities. If serious deficiencies are noted by the staff member on the initial survey visit, additional on-site survey visits may be required. The Board estimates that the average length of an on-site survey visit is approximately 1.22 days and that the average cost of an on-site survey visit is approximately $520.23. This estimate is based upon an average of on-site survey visit costs reported by staff members from 2005 - 2009 and includes costs for staff members' lodging, meals, and airfare and mileage reimbursement. In addition to reviewing new nursing education program proposals, staff members remain responsible for monitoring all approved nursing education programs operating in Texas, conducting on-site survey visits of these facilities, and fulfilling their other daily duties and responsibilities.
The continuing increase in the number of new nursing education program proposals has required staff members to significantly prioritize and divide their energies and resources among their various duties and responsibilities. The duties and responsibilities associated with the review of new nursing education program proposals have threatened to monopolize staff members' time and resources to the exclusion or delay of all other nursing education projects. The Board does not anticipate that this trend will change in the near future. In fact, the Board anticipates that the number of new nursing education program proposals will continue to increase over time, due in part to changes in accreditation requirements, including the expansion of accreditation agencies approved by the Texas Higher Education Coordinating Board, and the Board's acceptance of accreditation as one criteria for program approval. The Board anticipates that these changes in state law will continue to make it attractive for new nursing education programs to explore entry into the Texas market. The Board also anticipates that its staff members will continue to spend at least 75 - 90 hours reviewing each new nursing education program proposal, and in some cases, will be required to spend substantially more time reviewing certain proposals. Over the past year, several new nursing education program proposals were submitted to the Board by program representatives with little or no experience in nursing education. As a result, these proposals required substantial revisions to correct outstanding deficiencies in the proposals. Staff members were required to spend additional time reviewing these proposals and providing assistance to these program representatives. Further, some new nursing education program proposals are drafted and submitted by independent consultants who are familiar with the Board's rules and regulations related to nursing education. While such consultants draft competent and effective proposals that are usually approved by the Board, rarely do such consultants serve as directors for the nursing education programs once the proposals have been approved by the Board. As such, the Board has seen newly approved nursing education programs struggle with implementing their own program criteria following Board approval. These nursing education programs generally require additional assistance from staff members, even after their initial approval from the Board. For example, such programs may experience low passage rates on the National Council Licensure Examination (NCLEX) that may warrant additional investigation by staff members and intervention by the Board. Additionally, the Board anticipates that staff members will continue to receive routine phone calls and inquiries regarding the shortage of clinical nursing education sites and qualified nursing faculty for new nursing education programs. In order to ensure that staff members are able to continue to thoroughly review each new nursing education program proposal that is submitted to the Board, in addition to meeting their other assigned duties and responsibilities, the Board has determined that it is necessary to increase the filing fee required for the approval of a new nursing education program.
The Board is authorized by the Occupations Code §301.155 to establish fees in amounts reasonable and necessary to cover the costs of administering the Nursing Practice Act, including costs associated with reviewing and approving new nursing education programs in Texas. In an effort to establish the most reasonable and appropriate filing fee for the approval of a new nursing education program in Texas, the Board surveyed other state boards of nursing to better gauge the range of fees being charged nationwide for the approval of new nursing education programs. Thirty-five other state boards of nursing responded to the Board's survey, including Massachusetts, Nevada, Michigan, Kansas, Florida, Louisiana, Arkansas, Wisconsin, Iowa, New York, Colorado, Alabama, Missouri, Virginia, Ohio, Delaware, Alaska, Pennsylvania, Georgia, Arizona, Vermont, Oregon, New Hampshire, Kentucky, Maryland, West Virginia, Idaho, Washington D.C., Wyoming, Alabama, South Carolina, Utah, New Mexico, Vermont, and North Dakota. Of these state boards of nursing, 18 require a fee associated with the approval of a new nursing education program, including Nevada, Kansas, Florida, Louisiana, Alabama, Missouri, Virginia, Delaware, Pennsylvania, Georgia, New Hampshire, Kentucky, West Virginia, Idaho, Washington D.C., Alabama, Utah, and North Dakota. The types of fees associated with the approval of a new nursing education proposal vary among states. Several state boards of nursing, such as Nevada, Kansas, Florida, Alabama, Missouri, Virginia, Delaware, Pennsylvania, Georgia, Kentucky, West Virginia, Washington D.C., and Alabama require the submission of a filing fee. Other state boards of nursing, such as North Dakota, Idaho, and Louisiana, only require a fee for an on-site survey visit. Still others, such as New Hampshire and Utah, require a filing fee and a fee for an on-site survey visit. The fees associated with the approval of a new nursing education proposal also vary widely among states and range from $50, which is required by West Virginia, to $10,000, which is required by Washington, D.C. The average nationwide fee associated with the approval of a new nursing education program proposal is $1,696.
The Board has determined that a filing fee of $2,500 for the approval of a new nursing education program in Texas is appropriate and reasonable. First, the Board anticipates that this proposed filing fee will better assist the Board in offsetting a portion of the costs associated with the review of a new nursing education program proposal. Based upon the number of new nursing education program proposals received in 2009 and the number of new nursing education program proposals that are anticipated to be received in 2010, the Board estimates that it will continue to receive at least 14 - 16 new nursing education program proposals each year. The Board estimates that each of its staff members currently spends at least 75 - 90 hours reviewing a single new nursing education program proposal. The Board anticipates that its staff members' duties and responsibilities associated with reviewing new nursing education program proposals will continue to grow each year. As such, the Board anticipates that the funds generated by the proposed filing fee may be utilized to obtain additional resources in the future to reduce the workload associated with the review of these additional new nursing education program proposals. Second, the Board anticipates that the proposed filing fee will better assist the Board in offsetting a portion of its travel costs associated with on-site survey visits of new nursing education program facilities. The Board estimates that each on-site survey visit costs approximately $520.23. If the Board continues to receive at least 14 - 16 new nursing education program proposals each year, the Board will continue to expend at least $7,280 in yearly travel costs associated with new nursing education program on-site survey visits. Further, this estimated amount could be significantly increased if additional on-site survey visits are required because of particular facility deficiencies. The Board anticipates that the funds generated by the proposed filing fee may be utilized in the future to offset the incurred costs associated with on-site survey visits of new nursing education program facilities. Third, the Board anticipates that the proposed filing fee will encourage the submission of more organized and complete nursing education program proposals, which should reduce the costs associated with the review of a new nursing education program proposal. Finally, the proposed filing fee is comparable to fees required by other state boards of nursing, including Missouri, whose fee for the approval of a new nursing education program is $3,000; Delaware, whose fee for the approval of a new nursing education program is $2,500; New Hampshire, whose fee for the approval of a new nursing education program is $3,000; and Kentucky, whose fee for the approval of a new nursing education program is $2,000.
Section-by-Section Overview. Proposed amended §223.1(a)(9) provides that the Texas Board of Nursing has established reasonable and necessary fees for the administration of its functions and that the fee for the approval of a new nursing education program is $2,500.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendment will be in effect, there may be an approximate $35,000 - $40,000 total annual increase in revenue to state government as a result of the enforcement or administration of the proposal due to estimated additional filing fees associated with new nursing education program proposals. These estimates are based on the following factors. First, the proposed amendment imposes a new $2,500 filing fee on each person who submits a new nursing education program proposal to the Board for approval. The Board anticipates that it will receive 14 - 16 new nursing education program proposals yearly. This estimate is based upon (i) the number of new nursing education program proposals received by the Board in 2009, (ii) the number of new nursing education program proposals received by the Board thus far in 2010, and (iii) the number of letters of intent to submit new nursing education program proposals to the Board in 2010. The Board received 14 new nursing education program proposals in 2009. The Board has received one new nursing education program proposal thus far in 2010 and 15 letters of intent to submit new nursing education program proposals to the Board this year. If the Board continues to receive at least 14 - 16 new nursing education program proposals each year, there will be an approximate $35,000 - $40,000 total annual increase in revenue to state government as a result. If the Board receives more than 16 new nursing education program proposals each year, there will be an additional $2,500 increase in revenue to state government for each additional nursing education program proposal received. There will be no anticipated effect on local employment or the local economy as a result of the proposal.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendment is in effect, the anticipated public benefit will be the availability of additional resources that will better enable the Board to meet its responsibility of ensuring quality nursing education in Texas. The proposed amendment to §223.1 imposes a filing fee of $2,500 on all persons who submit new nursing education program proposals to the Board for approval. The Board anticipates that this proposed filing fee will assist it in offsetting a portion of the costs associated with the review of new nursing education program proposals. Based upon the fact that the Board received 14 new nursing education program proposals in 2009, one new nursing education program proposal thus far in 2010, and 15 letters of intent to submit new nursing education program proposals to the Board in 2010, the Board estimates that it will continue to receive at least 14 - 16 new nursing education program proposals each year. Staff members currently spend a minimum of 75 - 90 hours reviewing a single new nursing education program proposal. However, some new nursing education program proposals have required substantially more staff member review time, as these proposals were incomplete when submitted or failed to provide adequate information to support Board approval. Staff members have already been forced to delay several of their other assigned duties and responsibilities in order to accommodate the significant increase in the number of new nursing education program proposals. If the Board continues to receive 14 - 16 new nursing education program proposals each year, the Board anticipates that staff members will be unable to meet all of their other assigned duties, such as being able to timely review and conduct on-site survey visits of approved nursing education programs operating in Texas. The timely review of approved nursing education programs in Texas is just as much a priority for the Board as the timely review of new nursing education program proposals. Approved nursing education programs must be reviewed periodically to ensure continuing compliance with Board rules and regulations. Further, approved nursing education programs must be monitored to ensure appropriate passage rates of the NCLEX and continuing quality nursing instruction. However, the Board is concerned that its staff members will be unable to timely and thoroughly review and monitor all of the approved nursing education programs operating in Texas due to their increasing workload associated with the review of new nursing education program proposals. The Board anticipates that it may utilize the funds generated by the proposed filing fee in the future to reduce the workload associated with the review of new nursing education program proposals. In doing so, the Board hopes to ensure that its staff members are able to meet all of their assigned duties and responsibilities associated with nursing education regulation, including the periodic review and monitoring of approved nursing education programs in Texas. Additionally, the Board anticipates that the proposed filing fee will encourage the submission of more organized and complete nursing education program proposals. If more complete new nursing education program proposals are submitted to the Board, the Board anticipates that its staff members will spend less time reviewing the proposals, which should allow them additional time to address other significant nursing education projects and assignments, ultimately resulting in more efficient and effective nursing education regulation.
Potential Costs for Persons Required to Comply with the Proposal
Under the Occupations Code Chapter 301, Board rules, and the proposed amendment, a person may submit a new nursing education program proposal to the Board for approval. No person is required by law, however, to do so. For those persons who choose to enter the Texas nursing education market and submit a new nursing education program proposal to the Board for approval, there will be associated costs of compliance with proposed amended §223.1. The Board estimates that the total probable costs of compliance with proposed amended §223.1 will be approximately $2,500 for each new nursing education program proposal that is submitted to the Board for approval. This estimate is based upon the following factors. First, the proposed filing fee applies to every new nursing education program proposal that is submitted to the Board for approval. Thus, each person choosing to submit a new nursing education program proposal to the Board will be required to submit a $2,500 filing fee. If a person chooses to file more than one new nursing education program proposal, a $2,500 filing fee will be required for each new nursing education program proposal that is submitted to the Board for approval. Second, the amount of the proposed filing fee will not increase or decrease based upon the amount of time that staff members spend reviewing the particular new nursing education program proposal. Likewise, the amount of the proposed filing fee will not increase or decrease based upon the cost incurred by staff members in conducting an on-site survey visit of the new nursing education program's facilities. As such, the Board estimates that a person should only incur the proposed filing fee one time for each new nursing education program proposal that is submitted to the Board, unless the proposal is not finally approved by the Board. In cases where the Board does not finally approve a new nursing education program proposal, the person filing the proposal is eligible to re-file the proposal after one year has passed from the date of the Board's decision to deny approval. At that time, if the person chooses to re-file the nursing education program proposal, a separate filing fee of $2,500 will be required. Any other costs to comply with the proposed amendment result from the legislative enactment of Chapter 301 and are not a result of the adoption, enforcement, or administration of the proposal.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses or micro businesses, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. The Government Code §2006.001(a)(2) defines "small business" as a legal entity, including a corporation, partnership, or sole proprietorship, that is formed for the purpose of making a profit; is independently owned and operated, and has fewer than 100 employees or less than $6 million in annual gross receipts. The Government Code §2006.001(a)(1) defines "micro business" similarly to "small business" but specifies that such a business may not have more than 20 employees. The Government Code §2006.001(a)(1) does not specify a maximum level of gross receipts for a "micro business."
The Board has determined that approximately 21% of the entities that choose to submit new nursing education program proposals to the Board may qualify as small or micro businesses under the Government Code §2006.001(a). This estimate is based on the following factors. The Board reviewed each of the 14 new nursing education program proposals that were submitted to the Board in 2009. In examining the entities that sponsored/submitted these new nursing education program proposals, the Board determined the following: (i) four of the 14 submitting entities were not formed for the purpose of making a profit; (ii) two of the 14 submitting entities employed more than 100 employees; and (iii) five of the 14 submitting entities were not independently owned or operated. Based upon this review, the Board determined that only three of the 14 submitting entities, or 21% of the submitting entities, were qualified to meet the definition of a small or micro business under the Government Code §2006.001(a). Further, the Board determined that the entities that submitted new nursing education program proposals in 2009 were generally representative of the types of entities that the Board anticipates receiving new nursing education program proposals from in the future. As such, the Board estimates that three of every 14 entities that submit new nursing education program proposals to the Board for approval may qualify as small or micro businesses. The Board has further determined that the proposal may have an adverse economic impact on these small or micro businesses because these businesses will be required to submit a $2,500 filing fee to the Board under the proposed amendment. In accordance with the Government Code §2006.002(c-1), the Board has determined that even though the proposed amendment may have an adverse economic effect on the small or micro businesses that elect to enter the Texas nursing education market and submit a new nursing education program proposal to the Board for approval and, are therefore required to comply with the proposed amendment, the Board is not required to prepare a regulatory flexibility analysis as required in §2006.002(c)(2) of the Government Code for the following two reasons. First, small or micro businesses are not required by statute or by the proposed amendment to enter the Texas nursing education market and submit a new nursing education program proposal to the Board. Therefore, those small and micro businesses that submit a new nursing education program proposal to the Board for approval do so at their own choice, and as a result, agree to bear any additional costs required for compliance with this proposal. The costs outlined in the Public Benefit/Cost Note part of this proposal provide sufficient cost information for small or micro business to make an informed business decision regarding whether to enter the Texas nursing education market and submit a new nursing education program proposal to the Board for approval. Second, the Government Code §2006.002(c)(2) requires a state agency, before adopting a rule that may have an adverse economic effect on small businesses, to prepare a regulatory flexibility analysis that includes the agency's consideration of alternative methods of achieving the purpose of the proposed rule. Section 2006.002(c-1) requires that the regulatory analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses." Therefore, an agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.
The Occupations Code §301.157(b) authorizes the Board to approve schools of nursing and educational programs that meet the Board's requirements. The purpose of this statute is to ensure quality nursing education in Texas. The proposed amendment supports this goal by ensuring that staff members are able to adequately meet all of their responsibilities associated with nursing education regulation, including the periodic review of approved nursing education programs, as well as the review of new nursing education program proposals that are submitted to the Board for approval. Staff members are responsible for reviewing every new nursing education program proposal that is submitted to the Board for approval to ensure its compliance with statutory and regulatory requirements. Further, staff members are required to conduct on-site survey visits of new nursing education program facilities to ensure that the facilities are operational and appropriate for quality nursing instruction. As has been previously stated, the recent influx of new nursing education program proposals has made it difficult for staff members to manage their assigned duties and responsibilities for all nursing education programs, including those that have been previously approved by the Board. The Board retains responsibility for monitoring nursing education programs once approved. Staff members are required to periodically review these programs to ensure continuing compliance with Board rules and regulations. Further, staff members are required to review these programs' passage rates for the NCLEX examination and to conduct on-site survey visits of these programs' facilities to ensure continuing compliance. The proposed amendment is intended to create additional resources for the Board to utilize in managing its responsibility to ensure quality nursing education in Texas. The Board recognizes that it is important for small and micro businesses to enter the Texas nursing education market to offer viable nursing education alternatives across the state. The Board also recognizes, however, that such businesses must provide quality nursing education. As a result, every new nursing education program proposal must be thoroughly and vigorously reviewed to ensure compliance with this standard of excellence. The purpose of the proposed amendment and the authorizing statutes are to protect the health, safety, and economic welfare of Texas consumers and the state of Texas. The Board cannot continue to ensure quality nursing education, which is necessary to ensure quality nursing care for all Texas consumers, without access to additional resources that will offset the increased workload and costs associated with the review of new nursing education program proposals. As such, the creation of such additional resources is important to and protective of the health of Texas consumers. As a result, the Board has determined that there are no additional regulatory alternatives to the proposed amendment that will sufficiently protect the health, safety, and economic interests of Texas consumers and the welfare of the state.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 13, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The amendment is proposed under the Occupations Code §§301.155(a), 301.157(b), and 301.151. Section 301.155(a) provides that the Board by rule shall establish fees in amounts reasonable and necessary to cover the costs of administering the Occupations Code Chapter 301. Further, §301.155(a) provides that the Board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date. Section 301.157(b) states that the Board shall: (i) prescribe two programs of study to prepare a person to receive an initial vocational nurse license under Chapter 301 as follows: a program conducted by an educational unit in nursing within the structure of a school, including a college, university, or proprietary school and a program conducted by a hospital; (ii) prescribe and publish the minimum requirements and standards for a course of study in each program that prepares registered nurses or vocational nurses; (iii) prescribe other rules as necessary to conduct approved schools of nursing and educational programs for the preparation of registered nurses or vocational nurses; (iv) approve schools of nursing and educational programs that meet the Board's requirements; (v) select one or more national nursing accrediting agencies, recognized by the United States Department of Education and determined by the Board to have acceptable standards, to accredit schools of nursing and educational programs; and (vi) deny or withdraw approval from a school of nursing or educational program that fails to meet the prescribed course of study or other standard under which it sought approval by the Board; fails to meet or maintain accreditation with the national nursing accrediting agency selected by the Board under §301.157(b)(5) under which it was approved or sought approval by the Board; or fails to maintain the approval of the state board of nursing of another state and the board under which it was approved. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Rule §223.1, Statute §§301.155(a), 301.157(b), and 301.151.
§223.1.Fees.
(a) The Texas Board of Nursing has established reasonable and necessary fees for the administration of its functions.
(1) - (8) (No change.)
(9) approval of new nursing education programs:
$2,500 [$500];
(10) - (24) (No change.)
(b) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 28, 2010.
TRD-201002083
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 13, 2010
For further information, please call: (512) 305-6822