The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5259

January 30, 1978

NURSES:

Rule requiring applicants who failed examination after three attempts to enroll in a nursing education program.

LICENSES AND PERMITS:

Rule requiring applicants who failed examination after three attempts to enroll in a nursing education program.

Change in requirements for taking examination for nursing license.

Where the State Board of Nursing has adopted a rule requiring an applicant for licensure who has not received a passing score after three attempts to complete a nursing education program before being permitted to take a fourth or subsequent examination, an applicant who had already failed after three attempts is required to comply with the rule.

The Honorable Jack Faxon

The State Senate

State Capitol

Lansing, Michigan 48909

You requested my opinion on a recently promulgated rule of the State Board of Nursing. Your question is as follows:

Does Rule 24 (R 338.1224) (1) of the State Board of Nursing apply to those applicants who took and failed the required nursing examination prior to the effective date of the rule?

The Nursing Practice Act of 1967, 1967 PA 149; MCLA 338.1151 et seq; MSA 14.694(1) et seq, regulates the practice of nursing, creates the State Board of Nursing and prescribes its functions. Relevant to your inquiry, 1967 PA 149, supra, provides in pertinent part:

'Sec. 7. The board may:

'(a) 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 act. . . .

' (e) Examine, license and renew the licenses of duly qualified applicants.'

Sec. 11. (2) The applicant shall be required to pass a written examination as determined by the board, whereupon, the board shall issue to the applicant a license to practice as a registered nurse.'

Based upon the preceding, the State Board of Nursing is authorized to promulgate reasonable rules regarding the examination of applicants. In OAG, 1917, p 357 (April 23, 1917), Attorney General Groesbeck found that under a similar statute the then Board of Registration of Nurses had the authority to formulate rules governing the right of an applicant to be re-examined after failure to pass the required examination. Accordingly, the State Board of Nursing can develop rules regarding the re-examination of applicants.

Your inquiry involves an applicant who for a third time failed to successfully complete the required examination. Rule 24, 1976 AACS, R 338.1224, which sets forth the requirements for re-examination became effective on July 27, 1976. Since that date, the State Board of Nursing has required that all applicants must meet the requirements of Rule 24 in order to retake and successfully complete the required nursing examination.

Basically, Rule 24 provides that an applicant who fails to pass the required examination after three attempts must, prior to re-examination, enroll in an approved nursing education program, take and satisfactorily complete a course or courses which provide a review of those areas failed on the applicant's most recent examination, including theory and clinical practice. Rule 24 further provides that '[a]n applicant taking the examination for a fourth or subsequent time shall be required to satisfactorily complete the entire examination at 1 sitting.'

I have been informed that the required examination is a five-part national exam given twice a year. It is clear that the State Board of Nursing has the authority under 1967 PA 149, supra, to determine the examination and the manner in which it must be successfully completed. The previous policy of the State Board of Nursing permitted an applicant to accumulate a passing score by repeating the failed portions of the multi-part examination. Even under Rule 24, an applicant may continue to retake the examination and may accumulate a passing score by successfully completing various parts of the examination on the first three attempts, but he must successfully complete the entire exam at one sitting when taking it thereafter.

It should be noted that Rule 24 does not affect the status of any applicant who applied and met the requirements for a license prior to July 27, 1976. Therefore, Rule 24 does not result in a retroactive application to any duly qualified applicant who met the qualifications of 1967 PA 149, supra, prior to July 27, 1976. Those applicants who successfully completed the required examination on July 13 and 14, 1976, are unaffected by Rule 24 and were granted a license. Rule 24 is prospective and concerns only those applicants who did not meet the requirements for a license prior to July 27, 1976, and who apply for re-examination on or after July 27, 1976.

Nor can it be said that Rule 24 discriminates for or against applicants by endorsement from other jurisdictions. (2) By its own terms, Rule 24 applies equally to original applicants for examination and applicants by endorsement. Applicants who applied and met the qualifications for a license by endorsement prior to July 27, 1976, are unaffected by Rule 24. Applicants who apply for examination after failing to receive a passing score on the examination on three separate occasions on or after July 27, 1976, must meet the requirements of Rule 24.

The State Board of Nursing has a valid interest in requiring high standards from those individuals who wish to practice nursing in this state. Requiring an applicant to demonstrate sufficient knowledge to successfully complete the required examination bears a rational relationship with the applicant's fitness to practice nursing.

Authorized regulations of a board are valid so long as they are not unreasonable or arbitrary. Toole v Michigan State Board of Dentistry, 306 Mich 527; 11 NW2d 229 (1943). Sterling Secret Service Inc v Department of State Police, 20 Mich App 502; 174 NW2d 298 (1969).

In Smith v University of the State of New York, 373 NY S 2d 896 (1975), the court held that licensing boards have a valid interest in the integrity of the examination process. In that case the nursing unit instituted a new examination and refused to grant a license by endorsement because it was estimated that the national examination had been given 55 times in other states without substantial change.

Also, in Potter v The New Jersey Supreme Court, et al, 403 F Supp 1036 (DCNS, 1975), a three-judge panel upheld the requirement that an applicant be a graduate of an approved law school although the applicant, a graduate of a nonapproved law school, had previously been permitted to take the bar examination nine times and had failed on each occasion.

It cannot be said that the State Board of Nursing is unreasonable or arbitrary in requiring an applicant who has been unable to pass the required examination on three occasions to attend approved review courses and successfully complete the entire examination at one sitting. The promulgation and enforcement of Rule 24 as a prerequisite to the granting of a license to practice nursing is within the authority and power granted to the State Board of Nursing and is consistent with the substantial interest the Board has in requiring high standards of an applicant seeking a license as a nurse.

Frank J. Kelley

Attorney General

(1) R 338.1224 provides:

'(1) An applicant for licensure may take the examination required by these rules on 3 separate occasions. An applicant who has not received a passing score on the examination after 3 attempts, may not take the examination a fourth or subsequent time unless the applicant can demonstrate to the board that the applicant:

'(a) Has enrolled as a student in a nursing education program approved by the board.

'(b) Has taken courses which would provide a thorough review of those areas failed on the applicant's most recent examination, including theory and clinical practice.

'(c) Has submitted certification to the board from the nursing education institution that the courses have been satisfactorily completed with a grade of 'C' or better.

'(2) An applicant taking the examination for a fourth or subsequent time shall be required to satisfactorily complete the entire examination at 1 sitting.

'(3) The word 'examination' as used in this rule includes any part of a multi-part examination, and includes a similar examination taken in another jurisdiction.

'(4) An applicant for licensure by endorsement shall comply with this rule prior to licensure in this state.' 1976 AACS, R 338.1224

(2) 1967 PA 149, supra, Sec. 11(3), provides:

'The board may issue a license to practice as a registered nurse by indorsement to an applicant who has been duly licensed as a registered nurse under the laws of another state, territory or country if the qualifications of the applicant are deemed by the board to be equivalent to those required in this state.'