Request By:
Mrs. Doris McDowell
Executive Director
Kentucky Board of Nursing Education
and Nurse Registration
6100 Dutchmans Lane
Louisville, Kentucky 40205
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
We are returning your proposed regulation 201 KAR 20, Fee Schedule, unsigned.
In its present form, we do not believe that the Board of Nursing has statutory authority to charge for some of the fees listed therein.
KRS 314.041(5) was amended to raise permissible fees for a registered nurse license from $25 to no more than $50.
KRS 314.051(3) was similarly amended to cover fees of licensed practical nurses.
Likewise, renewal licenses were raised from a permissible $10 to $20 (KRS 314.071).
Thus, the first part of your regulation dealing with applications, renewals and reinstatements is statutorily authorized.
However, we find no statutory authority for charging a fee of $50 for an "advanced registered nurse practititioner license" or for "renewals or reinstatement of such license. "
KRS 314.011(6) defines an advanced registered nurse practitioner as "one who is certified to engage in advanced registered nursing practice including but not limited to the nurse anethetist, nurse midwife and nurse practitioner. " (emphasis supplied) .
And, subsection (7) defines "advanced registered nursing practice" as:
"'Advanced registered nursing practice' shall mean the performance of additional acts by registered nurses who have gained added knowledge and skills through an organized post-basic program of study and clinical experience approved by the organization or agency which has the authority to certify the advanced registered nurse practitioner. In the performance of those procedures which are normally construed as the practice of medicine, the nurses will conform to the standards of the medical practice act and established medical protocol."
Also, KRS 314.131(1) authorizes the board among other things to "register and designate those persons qualified to engage in advanced nursing practice."
These statutes speak of certifying, registering and designating advance nursing practitioners, but no mention is made of licensing them or charging a special fee for doing so.
As early as 1824 in Banks v. Marksberry, 15 Ky. 144, 5 Litt. 144, it was held that the right to costs is dependent upon statutory provisions. Here, no statute authorizes such fees.
We find nothing wrong with the inactive status license, since that is a license issued pursuant to statute (KRS 314.041(7)) for registered nurses and KRS 314.051(7) for licensed practical nurses and is less than $20 (authorized renewal license) . It is in fact a special type of renewal or reinstatement license.
However, we find no authority for a temporary permit fee.
KRS 314.101(3) authorizes a temporary work permit to those "persons who have completed the requirements, applied for and paid the fee for licensure by examination or endorsement. " (emphasis supplied) . So, those people who have paid the proposed $20 application license fee or endorsement license fee cannot be charged an additional $3 for a temporary work permit. There is no statutory authority.
The rest of the fees from "verification of current license to other states" down to "duplicated material", would be authorized under KRS 61.874, part of the open records law, which authorizes under subsection (2) that "[t]he public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required." Since the fees for such services appear to be minimal and reasonable, they are authorized.
We are aware of OAG 65-148, which appears to be inconsistent with this letter "in some instances". To the extent that it is inconsistent, OAG 65-148 is hereby modified.