November 6, 1995
Mr. Howard Kramer, General Counsel
North Carolina Board of Nursing
c/o P. O. Box 28720
Raleigh, North Carolina 27611
Re: Advisory Opinion; Anne Harrington Mickle; Authority of North Carolina Board of Nursing
to Waive Rule .0218(d)(2). Dear Howard:
At your request, we have reviewed the relevant statutes and rules for admission by endorsement
for nurses in this state as well as the resume of Ms. Mickle. The question is whether there is any
authority for the Board of Nursing to waive the provisions of their rule .0218(d)(2) requiring
proof of passing the examination of the National Council of State Boards of Nursing in Ms.
Mickle’s case.
The authority for the rules adopted by the Board of Nursing is found in N.C.G.S. § 90171.23(b)(3). The requirements for licensure as a registered or licensed practical nurse without
examination are found in N.C.G.S. § 90-171.32. Those requirements include: (1) licensure under
the laws of another state, territory of the United States, the District of Columbia, or a foreign
country, (2) when that jurisdiction’s requirements for licensure are substantially equivalent to or
exceed those of North Carolina at the time of initial licensure, and (3) when, in the Board’s
opinion, the applicant is competent to practice nursing in this state. Based on the facts of this
case, Ms. Mickle was licensed by endorsement by California in 1966 after moving there from
England. Research by the Board shows that in 1966 California did not require passage of the
national examination or any other written examination. Despite subsequent admissions by
endorsement to both Oregon and Florida, there is no evidence Ms. Mickle has ever taken the
national examination or that the requirements for licensure in any of those states are either
substantially equivalent or exceed those of North Carolina.
Based on these facts, Ms. Mickle does not qualify for waiver of the rule requiring proof of
passage of the national exam. The requirements for licensure in California were below those of
North Carolina in 1966 as California did not require proof of passage of the exam. Oregon and
Florida also have not required proof of passage of the exam and thus their licensing requirements
are below those of North Carolina. Since the requirement is statutory, a rule based on the statute
cannot be waived without separate authority. We find no such authority for the Board.
Consequently, it is our opinion that the rule cannot be waived for Ms. Mickle.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Jane P. Gray
Deputy Attorney General