OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF NURSING ‑- NURSES ‑- COLLEGES AND UNIVERSITIES ‑- COMMUNITY COLLEGES ‑- STANDARDS FOR NURSING SCHOOLS
(1) The State Board of Nursing has the authority to adopt rules establishing criteria and minimum standards with which schools must comply with if they wish their nursing programs to be "approved" by that board for the purpose of determining whether or not their graduates may qualify to be licensed as registered nurses in this state, and that authority extends to state‑operated nursing schools (e.g., community colleges) as well as to nursing schools in the private sector.
(2) Consideration, in light of the foregoing conclusion, of the validity of various specific administration regulations heretofore adopted by the State Board of Nursing as applied to nursing schools operated by community colleges.
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December 6, 1983
Honorable John N. Terrey
State Board for Community
WEA Building, FF-11
319 East Seventh Avenue
Olympia, Washington 98504
Honorable Henry M. Milander
Olympic Community College
16th and Chester
Bremerton, Washington 98310
Honorable Edwina Dorfey, R.N.
Washington State Board of Nursing
P.O. Box 9649, MS PB‑01
Olympia, Washington 98504
Cite as: AGO 1983 No. 28
Gentlemen and Ms. Dorfey:
By letter previously acknowledged you jointly requested the opinion of this office upon the following questions:
[[Orig. Op. Page 2]]
"1. Does the State Board of Nursing have the authority to adopt rules establishing criteria and minimum standards with which schools must comply if the schools wish their nursing programs to be 'approved' by that board for the purpose of determining whether or not a graduate of the school may qualify to be licensed as a registered nurse in this state?
"2. Assuming your answer to question 1 is in the affirmative, does the board exceed its lawful authority by adopting any or all of the standards concerning the conduct, operation or administration of schools or nursing contained in WAC 308-120-100(10), 308-120-507, 308-120-508, 308-120-509, 308-120-510, 308-120-511, 308-120-512, 308-120-513, 308-120-514, 308-120-515, and 308-120-522."
We answer your first question in the affirmative and your second set of questions as set forth in the analysis.
In conjunction with this request, legal counsel for the State Board for Community College Education ("SBCCE"), and for both Olympic Community College ("OCC") and the State Board of Nursing ("SBN") have submitted memoranda setting forth their respective legal positions regarding the questions which you have asked. Those memoranda have been most useful in clarifying the issues in controversy, and reference will be made to them in this opinion.
From the SBCCE and OCC memorandum (hereinafter "SBCCE Memo"), it appears that your first question, though phrased in general terms, is actually being asked in a narrower context. That is, does the SBN's approval authority over schools1/ of nursing apply to those schools operated by the community colleges? As stated in the SBCCE Memo, page 3:
[[Orig. Op. Page 3]]
"The community colleges contend that the statute cited above [RCW 18.88.080] does not confer on the State Board of Nursing the authority to regulate RN training programs in the community colleges."
RCW 18.88.080 provides in pertinent part as follows:
"The board may adopt such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this chapter. The board shall approve curricula and shall establish criteria for minimum standards for schools preparing persons for licensure under this chapter. It shall keep a record of all its proceedings and make such reports to the governor as may be required. The board shall define by regulation what constitutes specialized and advanced levels of nursing practice as recognized by the medical and nursing professions. The board may adopt regulations in response to questions put to it by professional health associations, nursing practitioners and consumers in this state concerning the authority of various categories of nursing practitioners to perform particular acts.
"The board shall approve such schools of nursing as meet the requirements of this chapter and the board, and the board shall approve establishment of basic nursing education programs and shall establish criteria as to the need for and the size of a program and the type of program and the geographical location. . . ." (Emphasis supplied)
RCW 18.88.110 also addresses the approval of nursing schools, and provides as follows:
"An institution desiring to conduct a school of professional nursing shall apply to the board and submit evidence that:
"(1) It is prepared to carry out the approved basic professional nursing curriculum, and
"(2) It is prepared to meet other standards established by this law and by the board. Surveys of the schools and institutions and agencies to be used by the schools shall be made as determined by the board. If, in the opinion [[Orig. Op. Page 4]] of the board, the requirements for an approved school of nursing are met, such school shall be approved."
Also to be noted is RCW 18.88.120, which addresses a subject touched upon in RCW 18.88.110,i.e., surveys of nursing schools, as follows:
"From time to time as deemed necessary by the board, it shall be its duty to surveyall schools of nursing in the state. Written reports of such survey shall be reviewed by the board. If the board determines that any approved school of nursing is not maintaining the standards required by the statutes and by the board, notice thereof in writing, specifying the defect or defects shall be given to the school. A school which fails to correct these conditions to the satisfaction of the board within a reasonable time shall, upon due notice to the school, be removed from the list of approved schools of nursing to be maintained by the department." (Emphasis supplied)
The function and purpose of the approval process which the SBN is thus to conduct is found in RCW 18.88.130 which reads in pertinent part, as follows:
"An applicant for a license to practice as a registered nurse shall submit to the board (1) an attested written application on department form; (2) written official evidence of diplomafrom an approved school of nursing; and (3) any other official records specified by the board. . . ." (Emphasis supplied)
We should also note that in this state nursing schools are operated not only by state colleges or universities (including the community colleges) but also by private institutions. The SBCCE Memo, however, contends that RCW 18.88.080 (and presumably RCW 18.88.110 as well) do not apply to state‑operated nursing schools‑-but only to those operated by those private institutions. In so arguing, the memorandum relies upon a rule of statutory construction which it phrases‑-quite correctly‑-as follows:
"General legislation is inapplicable to the state, unless the legislation specifically applies to the state or the state must be included by necessary implication. Community Ass'n. v. Kitsap County, 33 Wn.App. 108, 111, 652 P.2d 383 (1982). . . ." (SBCCE Memo, pages 3, 4)
[[Orig. Op. Page 5]]
In our considered opinion, however, the applicability of the subject approval process to state nursing schools, though perhaps not explicit, is necessarily implied. This is best seen by examining RCW 18.88.120, the provision relating to surveys of nursing schools. By its terms, that provision requires SBN to survey ". . . all schools of nursing in the state . . ." for the purpose of determining whether their approval should continue. The phrase here quoted presumably means what it says, and includes "all" schools‑-even those operated by state institutions.
If we were to conclude that the initial approval process established pursuant to RCW 18.88.080 and 18.88.110 does not, however, apply to state schools‑-while the survey process established pursuant to RCW 18.88.120 does apply to those same schools‑-we would have a very irrational result. The SBN would then be required to survey "all" schools for the purpose of determining whether their approval should continue even though some of those schools did not need approval in the first place. Thus, the explicit use of the word "all" in the survey provisions of RCW 18.88.120 necessarily implies that all schools are also within the scope of the approval provisions of RCW 18.88.080 and 18.88.110.
That conclusion is reinforced by consideration of RCW 18.88.130,supra, pursuant to which "an applicant" for a license to practice as an RN must show that he or she has graduated from "an approved school of nursing." Under the argument of the SBCCE, however, the result would be the establishment of two classes of graduates from nursing schools. The first would be graduates ofapproved nonstate schools, and the second would be graduates ofnonapproved state schools. We find it difficult to read such a system into the plain language of RCW 18.88.130, which clearly states that every applicant must be a graduate of an approved school.
Arguably, though, the approval necessary to constitute "an approved school of nursing" for purposes of RCW 18.88.130 could, conceivably, be given by some other body‑-such as the governing body of the school itself in the case of a community college. However, read in context it is clear to us that the approval referred to in that statute is the approval referred to in RCW 18.88.080, 18.88.100 and 18.88.120;i.e., approval by the SBN, and not by some other body.
We also note, in passing, that your first question‑-if phrased from the point of view of the applicant for the RN license‑-in effect asks:
[[Orig. Op. Page 6]]
Did the legislature intend that there be a uniform system of qualifications or prerequisites for all applicants, regardless of which type of nursing school they attended?
When phrased in this manner, the rule of construction urged by the SBCCE (i.e., that general legislation applies to the State only when such applicability is either express or necessarily implied) has less relevance than would at first appear.
For these reasons we would‑-without any further discussion‑-answer your first question in the affirmative insofar as the above‑quoted provisions of chapter 18.88 RCW are concerned. The SBCCE contends, however, that chapter 18.88 RCW should not be considered in isolation, that chapter 28B.50 RCW (the Community College Act) must also be taken into account, and that when that act is taken into account the question thus posed must be answered in the negative. As stated in the SBCCE memo, pp. 4 and 5:
". . . Even if RCW 18.88.080 applies to state agencies in general, the constitutional and statutory authority conferred on the SBCCE and the boards of trustees of the community college clearly indicate that the legislature did not intend to subject the community colleges to the authority of the State Board of Nursing. To begin with, Article XIII, § 1, of the state constitution vests in the boards of trustees the responsibility for managing the community colleges, including their RN training programs. See, gubernatorial veto of House Bill No. 117, May 17, 1983, at 1. . . .
"Likewise, the relevant statutes, read as a whole, indicate that the boards of trustees and the SBCCE have sole authority over community college RN training programs. . . ."
The memo continues:
"The statutes . . . confer plenary authority over community college educational programs, including RN training programs, on the SBCCE and the local boards of trustees. Their statutory authority includes but is not limited to operation of such programs (RCW 28B.50.140(1)), budgets (RCW 28B.50.090(1)(2)), employment and duties of faculty and administrators (RCW 28B.50.140(3)), curriculum (RCW 28B.50.140(11)). Thus, the legislature has already confided to SBCCE and the [[Orig. Op. Page 7]] local boards of trustees much of the authority the State Board of Nursing purports to exercise through its rules enacted pursuant to RCW 18.88.088 [18.88.080].
"If one reads RCW 18.88.080 as authorizing the State Board of Nursing to regulate the funding, personnel and content of community college education programs, one is depriving the SBCCE and the local boards of trustees of authority specifically conferred on them by statute. Such a deprivation violates the maxim that, whenever possible, statutes should be construed so that no portion is superfluous. Gross v. Lynnwood, 90 Wn.2d 395, 583 P.2d 1197 (1978). For example, the asserted authority of the State Board of Nursing to determine when a nursing program has 'adequate financial support to provide stability for the development and continuation of the school of nursing' (WAC 308-120-508(2)) allows it to veto educational and budgetary decisions made by the SBCCE and local boards pursuant to RCW 28B.50.090(1) by withholding approval of nursing programs. Thus, RCW 28B.50.090(1) becomes superfluous with regard to RN training programs.
"In order to reconcile the general statutory mandate of the State Board of Nursing and the more specific mandates of the SBCCE and the local boards, the community colleges contend that RCW 18.88.080 should not be held to authorize the State Board of Nursing to adopt rules establishing criteria and minimum standards with which community college RN training programs must comply." (SBCCE Memo, pp. 7, 8)
The argument, in short, is that the authority asserted by the SBN under chapter 18.88 RCW, on the one hand, and that conferred upon the SBCCE and the board of trustees of each college by chapter 28B.50 RCW, on the other, result in a conflict. In turn, that conflict must be resolved by holding that the authority of the SBN under chapter 18.88 RCW does not extend to community colleges.
We will consider this argument at some length because‑-although raised in the context of your first question‑-it has an important bearing on your second as well. Further, it seems to be at the heart of the controversy which has prompted this opinion request.
Based on the statutes relied upon by the SBCCE there may well be an overlap in the legislative powers of the SBN and those of the [[Orig. Op. Page 8]] SBCCE and local boards. Upon careful analysis, however, we do not believe that this overlap constitutes a conflict which can only be resolved by reducing the authority of either. Indeed, it does not constitute a conflict at all. For this overlap occurs because the legislature has decided that certain areas or subjects are to be matters of common concern, and to be matters of decision making by both the SBN and the SBCCE (and local boards). But these matters of common concern are to be dealt with by each body for quite different purposes.2/ Or, stated otherwise, each body has a different set of responsibilities which extend, however, to common subjects.
For example, as correctly pointed out in the portion of the SBCCE memo quoted above, under WAC 308-120-508(2) the SBN considers a determination of the adequacy of financial support for a school of nursing to be within its area of responsibility.3/ And without [[Orig. Op. Page 9]] question it is within the area of responsibility of the SBCCE as well. Those responsibilities, however, are still quite different, and serve different purposes. The responsibility of the SBN is to evaluate the financial adequacy from a very specific and relatively narrow point of view; i.e., the provision of adequate nursing care to the citizens of this state, and protection of the public from inadequate nursing care.4/ And in this respect, its responsibility is similar to that of any independent body charged with accrediting or approving a professional school such as a law school, medical school, or engineering school.
The SBCCE and the local boards, on the other hand, are not vested with this protective responsibility. Their responsibility, rather, is more generalized and is directed toward the operation of the community college system as a whole (see RCW 28B.50.090) or toward the operation of all the programs within a particular college (see RCW 28B.50.140).
Thus, it is clear to us that the legislature intended to establish a body to exercise a particular protective responsibility to the public, and that it further intended the SBN, not the SBCCE or local board, to be that body. The SBN, in the exercise of this responsibility, may (in turn) effectively force the SBCCE or a local board of trustees to exercise its authority and responsibility in a certain way, in order to avoid loss of approval for their nursing school or schools. But that possibility is but the necessary result of the dual system of authority which the [[Orig. Op. Page 10]] legislature has established.
Under this dual system, it should also be noted, the authority conferred upon the SBCCE by RCW 28B.50.090 does not become superfluous with regard to nursing schools. It remains the function of the SBCCE to decide whether there shall or shall not be a nursing school within a particular community college. The SBN cannot cause such a school to come into existence, continue to operate, or go out of existence. Only the SBCCE can do that. Nor can the SBN provide the funds necessary to run the school; only the SBCCE can do that, from funds appropriated to it, not the SBN, by the legislature.
It is true that the SBN can have a strong‑-and perhaps decisive‑-influence on the SBCCE's decisions by its granting or withholding of approval. But that fact does not, in our opinion, necessitate a finding of legislative intent that the approval function is not to be performed at all in the case of state‑operated nursing schools‑-or that it be performed by some body other than the SBN, such as the SBCCE.
Accordingly, our answer to your first question is in the affirmative.
Your second question anticipates that response to question (1) and asks for our opinion regarding the validity of certain specific SBN regulations; in essence, we are thus faced with a series of sub‑questions which we shall discuss separately. However, before discussing them, some general comments may be useful.
Analytically, there would seem to be two possible approaches upon which a challenge to the regulations referred to in your question might be based. The first would be that the particular regulation is beyond the authority conferred on the SBN by chapter 18.88 RCW, independent of any consideration of the statutory authority (under chapter 28B.50 RCW) of the SBCCE or of the local board of trustees. The second would be that the rule, though within the authority conferred by chapter 18.88 RCW, conflicts with the authority of SBCCE or the local board;i.e., with some provision in chapter 28B.50 [RCW].
The proper approach, we believe, is the first, not the second. For, as we have already concluded, the authority of the SBN does not conflict with that of the SBCCE or the local board of trustees. [[Orig. Op. Page 11]] While there is an overlap, that does not give rise to a conflict which requires any reduction in the scope of the authority of either body.
There is an additional reason for adopting the first approach. As applied to nonstate nursing schools, the authority conferred by chapter 18.88 RCW must necessarily be construed without regard to the provisions of chapter 28B.50 RCW which are, of course, inapplicable to these schools. There is, however, no indication in chapter 18.88 RCW that the authority of the SBN is to be any less‑-as applied to state nursing schools‑-than it is as applied to nonstate nursing schools.
This is not to suggest that keeping an eye on chapter 28B.50 RCW in determining the scope of the SBN's authority under chapter 18.88 RCW serves no useful purpose. In rejecting the proposition that there is a conflict between the provisions of the two RCW chapters which would render chapter 18.88 RCW inapplicable to state‑operated (or, more specifically, community college‑operated) schools of nursing we emphasized the point that each chapter serves to accomplish different legislative purposes which are certainly compatible with each other. See pp. 7-9,supra. Implicit in that discussion, however, was an additional point which we would now make explicit; for it serves as a guide which we will use in our treatment of each SBN rule.
The system of approval of nursing schools was established for a certain purpose; and the rules implementing that system thus must be reasonably related to that purpose. If they are not, those rules would be beyond the scope of the SBN's authority and, in turn, would likely intrude into the authority of the SBCCE (or local board) in the case of a community college. For the SBN would then be accomplishing a purpose, and making a type of decision, which the legislature may well have entrusted to the SBCCE or local board (or other governing body) of a state nursing school.
To illustrate: For reasons to be discussed later in our examination of the SBN's statutory authority, we believe that the SBN may deny approval because of inadequate financial resources for a nursing school. We do not believe, however, that the SBN could decide that all the faculty of a nursing school must receive an annual salary of, say, at least $75,000 a year. One could not justify such a decision on the part of the SBN by arguing that such is simply a standard to be utilized in the approval process‑-and does not entitle faculty members to the actual receipt of that salary. Rather, one could justify that decision only by showing [[Orig. Op. Page 12]] that such a salary level is reasonably necessary for a school to obtain the staff needed to produce adequately trained graduates‑-a justification which we would think the SBN could not make.
Nor could such a decision even be justified by a policy, adopted by the SBN, that nursing schools in Washington are to be the best in the nation‑-with the highest paid staff in the nation. For the adoption of such a policy is not within the scope of the SBN's authority but, rather, rests with the governing body of each school‑-be it state or private.
Consideration of Particular Regulations:
We turn, then, to each of the rules under challenge.
From the SBN Memo it appears that not all of WAC 308-120-100(10) is in controversy‑-only subparagraph (b)(ii) thereof which reads as follows:
"(ii) School of Nursing. It is the responsibility of the school of nursing to furnish the prospective employer of the nursing aide with written evidence of the student's educational preparation. Evidence of the student's educational preparation should include types of patients for whom she/he is prepared to care, specific procedures which she/he can perform, and additional nursing functions which she/he is prepared to do."
In arguing for the validity of this rule, the SBN Memo states, at page 3:
". . . This rule implements RCW 18.88.280(3) which exempts from the coverage of the act certain activities by nursing students in approved schools of nursing while they are working as nursing aides. The Board, in promulgating WAC 308-120-100(b)(ii) was clearly acting within its authority to define nursing practice and clarify exemptions from the practice act (RCW 18.88.080). The Board acted in a manner consistent with the overriding policy of protecting the public health, safety and welfare enunciated in the statement of policy of the act as contained in RCW 18.88.010. This regulation, the Board submits, is appropriate and within the authority [[Orig. Op. Page 13]] delegated to the Board."
We do not understand the SBN Memo to be attempting to justify this rule on the basis of the SBN's power to implement the system of approving nursing schools pursuant to RCW 18.88.080 and 18.88.110. And we would readily agree that this rule could not be so justified. Rather, we understand the SBN Memo to refer to the SBN's general rule‑making authority found in the first sentence of RCW 18.88.080 which reads:
"The board may adopt such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this chapter. . . ."
The provision pruportedly being carried into effect is RCW 18.88.280(3), which states:
". . . [N]or shall it [chapter 18.88 RCW] be construed as prohibiting such practice of nursing by students enrolled in approved schools as may be incidental to their course of study nor shall it prohibit such students working as nursing aides; . . ."
Absent this provision, the practice of nursing by students (who are, of course, as yet unlicensed) would be subject to an injunctive action (see RCW 18.88.265) and would also constitute a misdemeanor (see RCW 18.88.270(3)).
While the goal to be attained by subparagraph (b)(ii) is eminently sensible, and clearly consistent with the policy stated in RCW 18.88.010, we must conclude that the first sentence of the subparagraph is invalid as beyond the SBN's authority. While the SBN might well have authority to place conditions upon the exemption found in RCW 18.88.280(3)‑-a question which we do not here consider‑-we find nowhere in chapter 18.88 [RCW] the authority for the SBN to place direct responsibility for meeting those conditions upon the nursing schools.
It seems to us that the only obligations which may be imposed directly upon a school are those which relate to the approval process, and which can be enforced through denial of approval. The obligation here in question is not of that sort.5/ Such a rule [[Orig. Op. Page 14]] might place the obligation upon the nursing aide (i.e., to cause the necessary records from the school to be transmitted to the employer). Absent fulfillment of this obligation, RCW 18.88.280(3) would then arguably not be applicable and the sanctions of RCW 18.88.265 (injunction) and 18.88.270 (criminal prosecution) would be applicable to the student. The statutory system does not contemplate, however, any sanctions against a school of nursing‑-other than the denial of approval‑-a sanction which would not be available in this case in any event.
Our conclusion with respect to this provision of WAC 308-120-100(10), then, is really twofold. The provision, even if assumed to be valid, is unenforceable by the SBN against the noncomplying school. Moreover, it would not be enforceable against the school by anyone else‑-such as by the student, in a mandamus action against the school‑-since it is beyond the scope of the SBN's authority.
2.The Other Contested Regulations:
All of the other challenged regulations, unlike that just considered, involve the approval process. Because of the length of each of these provisions, their text is contained in Appendix A, for ready reference.6/
We have previously set forth the two major sections of chapter 18.88 RCW establishing that approval process; i.e., RCW 18.88.080 and 18.88.110. The present language of the pertinent portions of RCW 18.88.080, as well as that of RCW 18.88.110, was adopted in 1973‑-in § § 7 and 10 of chapter 133. It is useful, we believe, to set forth this language in bill form to show precisely how these sections were then amended.
RCW 18.08.080 [RCW 18.88.080]:
"Sec. 7. Section 8, chapter 202, Laws of 1949 as amended [[Orig. Op. Page 15]] by section 4, chapter 288, Laws of 1961 and RCW 18.88.080 are each amended to read as follows:
"The board may adopt such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this chapter. The board shall ((
prescribe))approve curricula and shall establish criteria for minimum standards for schools preparing persons for licensure under this chapter. (( It shall accredit such schools for professional nurses as meet the requirements of this chapter and of the board. It shall evaluate and approve courses offered by institutions or agencies for affiliation of student nurses. It shall examine all applicants for registration under this chapter and shall certify to the director for licensing duly qualified applicants.)) It shall keep a record of all its proceedings and make an annual report to the governor. The board shall define by regulation what constitutes specialized and advanced levels of nursing practice as recognized by the medical and nursing professions. . . .
"The board shall approve such schools of nursing as meet the requirements of this chapter and the board, and the board shall approve establishment of basic nursing education programs and shall establish criteria as to the need for and the size of a program and the type of program and the geographical location. . . .
". . ."
"Sec. 10. Section 11, chapter 202, Laws of 1949 and RCW 18.88.110 are each amended to read as follows:
"An institution desiring to conduct a school of professional nursing shall apply to the board and submit evidence that:
"(1) It is prepared to carry out the ((
prescribed)) approved basic professional nursing curriculum, and
"(2) It is prepared to meet other standards established by this law and by the board. ((
A survey))Surveys of [[Orig. Op. Page 16]] the (( institution or)) schools and institutions and agencies (( with which the school is to be affiliated))to be used by the schools shall be made (( by the executive secretary or the authorized supervisor of nursing education, who shall submit a written report of the survey to)) as determined by the board. If, in the opinion of the board, the requirements for an (( accredited)) approved school of nursing are met, such school shall be (( accredited))approved."
We have been unable to find, either in the Senate or House Journals or in legislative committee files, any pertinent legislative history. Accordingly, in attempting to ascertain the purpose and effect of these 1973 changes, we are left with only the words themselves.7/
Several observations concerning these 1973 amendments are in order. First, nursing schools were to be no longer "accredited" by the SBN, but rather "approved." We do not view this as a change of real substance. Instead, it appears merely to have been designed to remove possible confusion stemming from the fact that some institutions, such as state community colleges, were separately "accredited" by a different accrediting body.
Second, curriculum was henceforth to be "approved" rather than "prescribed." This strongly implies that the initial development of the curriculum for a nursing school is to be done by the school itself, and that the SBN's function is to review the curriculum so developed and then to grant or withhold its approval. There is nothing in this change, however, which implies that the SBN may not, by rule, adopt standards which will indicate the types of curriculum which it will or will not approve.
[[Orig. Op. Page 17]]
Third, it is clear that both before and after the 1973 changes the concern of the SBN was to be broader than just curriculum content. But exactly how much broader remains unclear. RCW 18.88.110(2) refers to "other standards established by . . . the board"‑-language which remained unchanged by the 1973 amendments‑-and RCW 18.88.080 as amended refers to the SBN's establishing "criteria for minimum standards"‑-a phrase which was substituted for the single word "standards."
This failure to conform the language of RCW 18.88.110(2) to the new language of RCW 18.88.080 certainly creates some ambiguity and, indeed, confusion. It would appear that the legislature intended the SBN to continue to establish "standards," but that these standards were to be in the nature of guidelines rather than rigid quantitative standards. We shall refer to these as "minimum standards."
Fourth, RCW 18.88.110(2) continues to recognize that an element of judgment on the part of the SBN is necessary in the approval process. For that section continues to refer, in its last sentence, to the "opinion of the board" as determining approval or nonapproval.
Fifth, RCW 18.88.080 as amended confers upon the SBN what appears to be an expanded area of authority with respect to new nursing schools. For the SBN is thus directed to "establish criteria as to the need for and the size of a program and the type of program and geographical location." This new language makes it clear‑-as it was not before‑-that approval of new nursing schools may be conditioned not only upon curriculum content and "other standards," but also upon the SBN's determination of the need for a particular program, of a particular size, in a particular part of the state.
Sixth, what we have termed the "approval process" is, to a large extent, a continuing one. Both before and after the 1973 changes the SBN was required to survey all schools of nursing in order to determine whether such schools are "maintaining the standards required by the statutes and by the board." RCW 220.127.116.11/
[[Orig. Op. Page 18]]
We would also make two other comments before turning to the contested rules themselves. WAC 308-120-506 is not one of those contested rules. Its provisions, however, are of some importance and aid in evaluating the contested rules. WAC 308-120-506 reads as follows:
"The board approves schools of nursing for the following purposes:
"(1) To insure the safe practice of nursing by setting minimum standards for schools of nursing preparing persons for licensure as registered nurses,
"(2) To provide the public and prospective students with a list of schools of nursing that meet the minimum standards,
"(3) To safeguard the educational preparation of the students,
"(4) To assure the graduates of approved schools of their eligibility for admission to the licensing examination for registered nurses, and
"(5) To facilitate interstate endorsement of graduates from board approved schools of nursing."
While some of this language seems somewhat repetitive‑-the actual difference between (1) and (3), for example, is less than clear‑-we do find these purposes to be consistent with chapter 18.88 RCW. And a critical question in examining each of the contested rules therefore must be: Is the rule reasonably designed to accomplish one or more of these purposes or such other purposes as are contemplated by that chapter?
Further, and most importantly, in our examination of each of the contested rules the question before us is necessarily quite limited. That question is whether each rule, considered separately, is valid on its face‑-and not whether it might be applied in an invalid manner in any particular case in which the SBN is called upon to approve or disapprove a particular school of nursing. As we shall see, many of the rules are imprecise‑-and necessarily so. For example, rigid quantitative criteria by which to determine ". . . adequate financial support to provide stability for the development and continuation of the school of nursing . . ." (WAC 308-120-508(2)) would probably be impossible to [[Orig. Op. Page 19]] formulate. On the other hand, it is conceivable that the SBN's notions as to "adequacy" might be so high in a particular case that the SBN would exceed its authority in such a case;e.g., by requiring faculty salaries which cannot be shown to be necessary to "insure the safe practice of nursing." (WAC 308-120-506(1))
Issues of this sort are to be decided through the mechanism of case‑by-case proceedings under the Administrative Procedure Act‑-as recognized by the SBN itself. See, WAC 308-120-519, which states that a school of nursing "aggrieved by a decision of the board affecting its approval status" has a right of appeal under the APA, which would include, of course, a right to judicial review pursuant to RCW 34.04.130.9/
We now take up each of the remaining contested rules:
This rule, as set forth in Appendix A hereto, requires that there be a written statement of the purpose, philosophy, and objectives for approved schools of nursing. It does not state what the substantive contents of that statement are to be, but leaves those decisions to the governing body (public or private) of the school itself.
We believe that this requirement is within the SBN's authority to approve curriculum. As an aid to the evaluation of curriculum necessary for determining whether approval should be given or [[Orig. Op. Page 20]] withheld, it seems to us entirely reasonable that the purpose, philosophy and objectives of the school should be in written form and available for use in the evaluation process.
Subsection (4), however, presents a different and more troublesome problem. For this provision relates to the use of the statement, not by the SBN, but by the faculty of the school itself‑-requiring the faculty to use the stated philosophy and objectives "in planning, implementing, and evaluation the total program."
If this provision were applied, however, in a manner which merely requires that there be consistency between the written statement and the actual ongoing operation of the program we believe it would be within the scope of the minimum standards contemplated by RCW 18.88.080 and 18.88.110. Accordingly this provision as well, we conclude, is valid on its face.
This rule is in three parts. The first requires that a college or university (again public or private) operating a school of nursing, and any extended learning sites, be accredited by the appropriate accrediting body.
We find this requirement to be an appropriate minimum standard. This requirement assumes that failure to obtain accreditation for the college or university as a whole will, in all likelihood, adversely affect the quality of the nursing program. And we find this assumption not unreasonable.
The second part of the rule requires that there be "adequate financial support to provide stability for the development and continuation of the school of nursing." This part, as well, we find to be within the SBN's authority, as a minimum standard reasonably related to safeguarding the "educational preparation of the students." (WAC 308-120-506(3)).10/
[[Orig. Op. Page 21]]
This third part of this regulation relates to school administration and organization. It is composed, however, of several different elements.
First, paragraphs (b), (c), (d), and (g) require that certain types of records be maintained, such as an organizational chart (paragraph (b)) and statement of administrative policies (paragraph (c)). Such directives are, we believe, within the authority of the SBN to require the maintenance of whatever records are reasonably necessary for it to perform its function of curriculum approval and, even more importantly, to assist it in determining whether the other minimum standards are being met.
Next to be noted is paragraph (a) which requires that the administration of the school shall be the responsibility of a nurse administrator. Since the term "nurse administrator" is defined in WAC 308-120-100(12) as the person in charge of the nursing school, no matter what his or her formal title might be, this requirement is in effect a tautology and, like all tautologies, neither helpful nor exceptionable.
Paragraph (e), however, requires that the nurse administrator be responsible for preparing budget recommendations and for budget administration. While so placing these responsibilities in the person in charge of the nursing school may be good administrative practice‑-and indeed may be required by the governing body of the college or university itself‑-we do not believe it is within the authority of the SBN to require this particular administrative practice. While, as we have already concluded, adequacy of the budget is a matter within the SBN's authority to establish minimum standards, we cannot so conclude with respect to the specific process for development and administration of that budget. That specific process‑-as distinguished from the product of that process‑-is too remotely related to the purposes for which the SBN's authority was conferred upon it.
Finally, we find paragraph (f) within the SBN's authority, for essentially the same reasons stated in our consideration of WAC 308-120-507(4), recognizing once again the possibility that this provision may be applied in a manner which exceeds that authority.
[[Orig. Op. Page 22]]
This rule is essentially a list of physical facilities, such as classrooms, laboratories, offices, etc., and services, such as secretarial and other support services, which are required to be "adequate." Although these standards are, as stated in the SBCCE Memo, page 12, "extremely vague" we conclude that they are within the SBN's authority to establish minimum standards‑-for the same reasons as were stated in our discussion of WAC 308-120-508(2), relating to "adequate financial support."
Subsection (3)(c), of this regulation, however, is somewhat different. It relates to written agreements between the school and extended learning sites. We find this requirement not to be within the SBN's authority, for basically the same reasons as stated in our discussion of WAC 308-120-508(3)(e), relating to the internal process of budget development.
This rule establishes the required qualifications and responsibilities for the nurse administrator who is, again, the person in charge of the nursing school‑-however that person might be denominated. Cf., WAC 308-120-100(12) and 308-120-508(3)(a).
We have no difficulty in concluding that the qualifications contained in subsection (1) of the rule are appropriate minimum standards for this position. In so concluding, we recognize that the provisions of WAC 131-16-091(7), relating to minimum qualification for vocational education administrators (including nurse administrators) will also be applicable, according to the SBCCE Memo, page 13. The practical result of these two sets of qualifications will be that the nurse administrator in an approved school must meet both sets of provisions.
Subsection (2), however, presents a different and more difficult problem of the same sort as was involved in WAC 308-120-508(3)(e) which requires the nurse administrator to be responsible for preparing budget recommendation and for administering the budget. Indeed, WAC 308-120-510(2)(h) is in substance the same as [WAC] 308-120-508(3)(e) which we have concluded to be invalid.
While we believe that the provisions of WAC 308-120-510(2), including WAC 308-120-510(2)(h), are not invalid on their face, the reason for so concluding severely limits the scope of this [[Orig. Op. Page 23]] conclusion. If, as we have previously concluded in our consideration of WAC 308-120-510(1), the SBN may validly require the qualifications for a nurse administrator contained therein, it follows that the SBN can also require that the person with these qualifications be the person who is, in reality, in charge of the nursing school. And the provisions of WAC 308-120-510(2) are a useful check list to be used in making that determination. We do not believe, however, that the SBN has authority to deny approval simply because one or more of these provisions might not be met‑-by reason of the assignment of that specific responsibility to someone else by the central administration of the college or university.11/
We reach a similar conclusion with respect to subsection (3), for a like reason. Insofar as it merely requires that the nurse administrator have sufficient time to actually perform his or her job, we find it to be valid on its face.
This rule relates to the qualifications and functions of the faculty. The educational qualifications contained in subsection (1) are valid on their face as "minimum standards." However, subsection (2), which sets forth a list of required faculty functions, presents the same sort of problem as subsection (2) of WAC 308-120-510; and the same sort of solution is appropriate. In short, the list of functions in subsection (2) is valid on its face, as a checklist to determine which persons are actually functioning as faculty members, and accordingly must meet the educational qualifications of subsection (1). If the college or university were to decide, however, that it wanted outside consultants‑-borrowed, perhaps, from the SBN‑-rather than its own faculty members, to perform a "periodic review of the total nursing program" (subsection (2)(h)) or to "construct, implement, evaluate and revise the curriculum" (subsection (2)(b)), we do not believe this would constitute adequate grounds for denial of approval.
[[Orig. Op. Page 24]]
We find subsection (3), relating to nursing faculty organizations and their functions to be invalid, as too remotely related to the purposes enunciated in WAC 308-120-506. Subsection (4), relating to student-teacher ratios, however, we find to be valid.
This rule, relating to curriculum, we find to be valid except for subsections (3) and (5). These two subsections relate to the internal processes of curriculum development and not to the content of the product of those processes. The reasoning whereby we concluded that WAC 308-120-508(3)(e) was invalid is applicable here as well.
This rule covers various procedural matters involving the relationship between the nursing school and the student. Subsections (1) and (2) appear to be what might be called "anti-discrimination" provisions. Specifically, they require consistency between overall college or university policies for selection, admission, promotion, graduation, withdrawal and dismissal of students generally, and those policies applicable to nursing students (subsection (1)) and require that transfer students and applicants for readmission must meet the school's current standards for its regularly-enrolled students (subsection (2)). We find these requirements to be authorized minimum standards.
Subsection (3) establishes certain requirements for the maintenance of student records; and these too we find to be authorized.
This rule requires a "systematic, ongoing, written plan for evaluation of the program‑-with evidence of its implementation‑-that is directed toward the improvement of the program." The rule then sets forth eight elements that must be in that program.
We find this rule to be invalid, despite its obvious desirability. If an existing program meets all of the valid requirements established by the SBN for approval of that program, apart from the requirement of this rule, we find it difficult to [[Orig. Op. Page 25]] believe that the legislature intended that such a program (which would otherwise be completely satisfactory) should be disapproved because the school does not have in place a procedural mechanism directed to its improvement. Stated another way, we do not believe that a program that is otherwise good becomes bad by reason of the absence of a plan designed to make it better.
This rule requires that an annual report be made by the school to the SBN, on SBN forms (subsection (1)), that written notification be sent to the SBN regarding specified major changes in the program (subsection (2)), and that the SBN may require such additional reports as it deems necessary.
We find this rule to be valid on its face. Its requirements seem reasonably designed to assist the SBN to determine whether the program previously approved is, at any given time, still meeting the SBN's other requirements for approval. We would also note, in this regard, that RCW 18.88.120 requires the SBN to survey all schools of nursing "from time to time as deemed necessary by the board" for the purpose of determining whether the "standards required by the statutes and by the board" are still being maintained. The statutory system, in short, contemplates a continuing process, as part of which this rule may be reasonably included.
This rule establishes the procedural requirements for establishment of a new school of nursing. We believe that the requirements therein are valid on their face, and are authorized by the SBN's power to ". . . approve establishment of basic nursing education programs and . . . establish criteria as to the need for and the size of a program and the type of program and the geographical location. . . ." RCW 18.88.080.
A final word may be appropriate. In concluding, in our answer to the first question, that the authority conferred upon the SBN by chapter 18.88 RCW extends to community colleges we have, in essence, concluded that the legislature intended that the schools of nursing in these colleges be subject to the approval process, just as with all other schools of nursing, and that this process is to be carried out by the SBN and not by the SBCCE or local [[Orig. Op. Page 26]] board‑-also just as with all other schools of nursing. This results, we realize, in the nursing schools in community colleges having to serve two masters; and this is no less difficult in the present context than it is in others.
The situation is untidy, to say the least. And we are under no illusion that, by our invalidating certain rules and portions of rules, the situation has been tidied up to any large extent. The major areas of potential controversy remain, perhaps, if they became actual, to be resolved only in court proceedings challenging the specific application of the remaining rules in specific cases.
Such controversies can be avoided only by a cooperative attitude on the part of all the involved parties. Such cooperation must, we believe, be based upon a realization that the legislature has attempted to provide, in the governance of state schools of nursing, the benefits of the different expertise of two sets of bodies; i.e., the SBN on the one hand, and the SBCCE and the local boards on the other. We emphasize "attempted." Only the two sets of bodies themselves can assure that the legislative attempt will succeed. Lawyers and judges cannot.
We trust that the above will be of some assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
TIMOTHY R. MALONE
Assistant Attorney General
*** FOOTNOTES ***
1/By "schools" we include all programs for training registered nurses (R.N.s) whether the institution operating the program organizes it into a separate "school" or not.
2/To say that there is no conflict between the provisions of chapters 18.88 and 28B.50 RCW, as applied to schools of nursing, is simply another way of saying that giving both sets of provisions their full scope‑-in accordance with their ordinary meaning‑-will not lead to an irrational result. That the result may not be themost rational is beside the point. As stated inState v. Taylor, 97 Wn.2d 724, 649 P.2d 633 (1982):
"'In construing a statute, it is safer always not to add to, or subtract from, the language of the statute unless imperatively required to make it a rational statute.'" 97 Wn.2d at 728 (Emphasis supplied) (quoting from McKay v. Dept. of Labor and Industries, 180 Wash. 191, 194, 39 P.2d 997 (1934))
The approach of State v. Taylor seems designed to keep judicial intervention to a minimum, and to avoid the danger that the judiciary may be substituting its policy choices for those of the legislature, through the guise of construing a statute. And it is that approach which we have attempted to follow here.
3/Whether this particular rule is within the scope of the statutory authority of the SBN will be discussed under the second set of questions. Our purpose here is to show thatif the legislature conferred this authority upon the SBN, it would not constitute a conflict with the authority bestowed upon the SBCCE.
4/The statement of policy contained in RCW 18.88.010 reads in pertinent part as follows:
"In order to safeguard life, health and to promote public welfare, any person practicing or offering to practice nursing as a registered nurse in this state shall hereafter be required to submit evidence that he or she is qualified so to practice, and shall be licensed as hereinafter provided. . ."
Although no mention is here made of the approval process for nursing schools, that process is part of the total system for determining the qualifications for licensing as an RN. One of those qualifications is graduation from an approved school of nursing. See RCW 18.88.130,supra. Thus, the purpose of this approval process is the same as that for the whole system of regulation of the practice of nursing.
5/This is not to say, however, that the SBN cannot accomplish the result it apparently had in mind by a redrafted rule‑-assuming, again, that it has authority to place conditions upon the applicability of the exemption found in RCW 18.88.280(3).
6/This Appendix is attached only to the originals of this opinion. Copies may be obtained from this office on request.
7/Chapter 133 was introduced as S.B. 2213. The basic concern of the bill does not appear to have centered on § § 7 or 10, but rather on § 3 which redefined the practice of nursing to include the function of making medical diagnoses. As stated in the House Committee digest of S.B. 2213:
"This bill expands the responsibilities of registered nurses to include diagnosis and prescription of health care and enables nurses to perform functions that heretofore have been termed 'medical acts' and were beyond the dictates of their license to practice."
8/Section 11 of chapter 133, which amended RCW 18.88.120, made no substantive changes. It only changed "accredited" to "approved" and made other minor procedural changes.
9/The availability of judicial review should serve as a reminder that even a failure to comply strictly with one or more provisions which we have found to be within the SBN's authority may not necessarily result in a court's upholding the SBN's withdrawal of approval, or refusal to grant approval, in any specific case. RCW 34.04.130(6)(e) and (f) may prompt a court to base its decision upon all the facts and circumstances found in a particular record, and to give relatively little weight to certain types of noncompliance.
These facts and circumstances might include factors which are in no way covered by chapter 308-120 WAC. To take the most obvious one, if the graduates of a particular school of nursing consistently score appreciably higher than those of all other schools in the state, it would be surprising if a judge would not take this into consideration.
10/In so concluding, we recognize the important point made in the SBCCE Memo, page 12; i.e., that the responsibility to establish a budget in the first instance is vested in the local board, that the responsibility to review that budget and adopt a final budget is vested in the SBCCE, and that the SBN, in applying this provision, may disagree with these budgetary decisions. As already noted, however, this would present a question of the validity of the application of this standard in a particular case. The mere possibility of such a disagreement does not, in our view, invalidate the rule on its face. (See discussion at pp. 18-19, supra.)
11/WAC 308-120-510(2)(f), requiring the nurse administrator to make recommendations for faculty appointment, promotion, tenure and retention, presents a special problem. As pointed out in the SBCCE Memo, page 14, the responsibility for recommending tenure has been assigned to someone else by the legislature itself. See, RCW 28B.50.856 which confers this responsibility upon a tenure review committee. Subsection (2)(f), however, may still be part of the "checklist" though it may not, by itself, be utilized as grounds for disapproval.