TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-120. Regulations Governing the Licensure of Athletic Trainers (amending 18VAC85-120-10, 18VAC85-120-35, 18VAC85-120-75, 18VAC85-120-80, 18VAC85-120-85, 18VAC85-120-120, 18VAC85-120-156; repealing 18VAC85-120-20, 18VAC85-120-40, 18VAC85-120-140).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.4 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 13, 2024.

Effective Date: March 28, 2024.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4688, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Regulations of the Board of Medicine are promulgated under the general authority of § 54.1-2400 of the Code of Virginia. Section 54.1-2957.4 of the Code of Virginia requires the board to license and regulate athletic trainers.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protect the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed athletic trainers with a reduction of barriers and reduction of redundant or outdated requirements.

Rationale for Using Fast-Track Rulemaking Process: These amendments are noncontroversial and appropriate for a fast-track rulemaking process because the amendments delete or modify provisions that, as currently effective, are redundant of statutory requirements, are not related to the practice of athletic training, are outdated, or are otherwise ineffectual.

Substance: The amendments delete redundant statutory provisions or useless directions in regulation, including (i) provisions related to unused defined terms; (ii) public participation regulations; (iii) fee reductions for previous renewal periods; (iv) a statement that repeats the requirement for licensure from the board that is found in statute; (v) requirements to provide documentation from other jurisdictions for temporary authorization to practice; (vi) fees related to voluntary practice by out-of-state licensees; (vii) confusing supervision language; (viii) statements that violating the law may subject a licensee to sanctions; and (ix) provisions related to handling of patient records that were intended to cover physicians.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to delete outdated or redundant provisions and clarify some provisions to be consistent with current practice.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove outdated language and references to the Code of Virginia that are redundant, and to update certain provisions so that they accurately reflect current practice.² The most substantive changes are summarized as follows:

18VAC85-120-75 contains application requirements for a temporary authorization to practice for 45 days pending submission of all other required documentation and issuance of a license. These include a requirement that individuals licensed or certified by another jurisdiction in the United States provide documentation that the license or certificate is current and unrestricted. Applicants from other jurisdictions already have to provide this documentation to obtain the license; thus, requiring it for the temporary authorization as well is duplicative and would be removed.

18VAC85-120-85 contains the registration requirements for voluntary practice by out-of-state trainers, including a $10 fee. The board proposes to remove this fee.

18VAC85-120-156 contains requirements pertaining to patient records. The current text includes a number of specific requirements for practitioners who are "self-employed or employed by an entity in which the individual practitioner does own and is responsible for patient records." These requirements include maintaining records for six years following the last patient encounter, except in specific cases; informing patients of the timeframe for record retention and destruction; and only destroying records in a manner that protects patient confidentiality. These requirements would be removed and replaced with a more general requirement that such practitioners "develop policies regarding retention of records and adhere to those policies."

The remaining changes would be to remove references to other chapters of the Virginia Administrative Code or to remove language that is redundant of statute.³

Estimated Benefits and Costs. According to the Department of Health Professions (DHP), the $10 fee for an individual licensed out-of-state to register for voluntary practice itself costs more administratively to collect than $10. Thus, eliminating the fee would be beneficial in that it would both reduce the cost for out-of-state athletic trainers volunteering in Virginia and net costs for the board.

The proposed changes pertaining to the retention of patient records in 18VAC85-120-156 are intended to reduce the burden on practitioners who are "self-employed or employed by an entity in which the individual practitioner does own and is responsible for patient records."⁴ DHP reports that the current requirements were developed by the board in the early 2000s specifically for physicians (MDs and DOs) but were also applied to other professions, including athletic training and acupuncture.⁵ The board now finds these requirements to be too burdensome for athletic trainers, because they "do not handle the same type of records that are maintained by physicians."⁶ However, DHP states that athletic trainers would still be bound by the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA), which sets a floor on the recordkeeping requirements for self-employed athletic trainers and ensures that removing the more restrictive requirements in the regulation would not compromise patient privacy. Accordingly, self-employed athletic trainers may face a one-time cost in developing their own HIPAA-compliant recordkeeping policy but would also benefit to the extent that the proposed changes reduce their ongoing costs of record retention; thus, their net costs are not expected to increase. DHP does not track the number of licensed athletic trainers who are self-employed or currently subject to the more restrictive requirements; thus, it is unclear how many athletic trainers would be affected.

Removing the other instances noted "definitions that are not used in the regulation, and text that either refers to another regulation, or is obsolete (no longer applicable), or is repetitive of other regulatory text, or is duplicative of statute" would have no impact on requirements for athletic trainers or the public.

Businesses and Other Entities Affected. The proposed amendments affect the 1,843 athletic trainers licensed in the Commonwealth,⁷ as well as their patients and employers. DHP reports that athletic trainers are primarily employed by hospitals, long-term care facilities, rehabilitation facilities, independent physician offices (such as orthopedic practices), and professional sports teams or facilities.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁸ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As described, the proposed changes are not anticipated to create any net new costs. Thus, an adverse impact is not indicated.

Small Businesses⁹ Affected.¹⁰ As noted, DHP does not track the number of licensed athletic trainers who are self-employed. Therefore, based upon the available data it is not clear if the proposed amendments adversely affect small businesses.

Localities¹¹ Affected:¹²

The proposed amendments do not appear to disproportionally affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments are not likely to have a substantive impact on total employment.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the value of private property. The proposed amendments do not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2153.

³See the Agency Background Document (ABD), pp. 7-8 for the specific references that would be removed: https://townhall.virginia.gov/l/GetFile.cfm?File=26\6118\9837\AgencyStatement_DHP_9837_v5.pdf.

⁴DHP explained that athletic trainers working as independent contractors would instead be expected to follow the recordkeeping policy of the entity that contracted them.

⁵The board proposes to similarly repeal these requirements for acupuncturists as well. See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9838.

⁶ABD, p. 8.

⁷Source: https://www.dhp.virginia.gov/about/stats/2023Q3/04CurrentLicenseCountQ3FY2023.pdf

⁸Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁹Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹⁰If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹¹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹²Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments delete redundant statutory provisions or useless directions in regulation, including (i) provisions related to unused defined terms; (ii) public participation requirements; (iii) fee reductions for previous renewal periods; (iv) a requirement for licensure from the board that is found in statute; (v) requirements to provide documentation from other jurisdictions for temporary authorization to practice; (vi) fees related to voluntary practice by out-of-state licensees; (vii) confusing supervision language; (viii) statements that violating the law may subject a licensee to sanctions; and (ix) provisions related to handling of patient records that were intended to cover physicians.

18VAC85-120-10. Definitions.

In addition to words and terms defined in § 54.1-2900 of the Code of Virginia, the following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Advisory board" means the Advisory Board on Athletic Training to the board as specified in § 54.1-2957.5 of the Code of Virginia.

"Athletic trainer" means a person licensed by the Virginia Board of Medicine to engage in the practice of athletic training as defined in § 54.1-2900 of the Code of Virginia.

"Board" means the Virginia Board of Medicine.

"Direction" means authorization by a doctor of medicine, osteopathy, chiropractic, podiatry, or dentistry for care and treatment by a verbal order if the doctor or dentist is present or by written order, telecommunication, plans of care, protocols, or standing orders if the doctor or dentist is not present.

"NATABOC" means the National Athletic Trainers' Association Board of Certification.

"Student athletic trainer" means a person enrolled in an accredited bachelor's or master's level educational program in athletic training.

18VAC85-120-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, Public Participation Guidelines, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-120-35. Fees.

A. Unless otherwise provided, fees listed in this section shall not be refundable.

B. The following fees have been adopted by the board:

1. The application fee shall be $130.

2. The fee for renewal of licensure shall be $135 and shall be due in the licensee's birth month, in each odd-numbered year.

3. A fee of $50 for processing a late renewal within one renewal cycle shall be paid in addition to the renewal fee.

4. The fee for reinstatement of a license that has expired for two or more years shall be $180 and shall be submitted with an application for reinstatement.

5. The fee for reinstatement of a license pursuant to § 54.1-2408.2 of the Code of Virginia shall be $2,000.

6. The fee for a duplicate renewal license shall be $5.00, and the fee for a duplicate wall certificate shall be $15.

7. The handling fee for a returned check or a dishonored credit card or debit card shall be $50.

8. The fee for a letter of verification to another jurisdiction shall be $10.

9. The fee for an inactive license shall be $70, and the fee for a late renewal shall be $25.

10. For 2021, the fee for renewal of an active license shall be $108, and the fee for renewal of an inactive license shall be $54.

18VAC85-120-40. General requirements. (Repealed.)

No person shall practice or hold himself out as practicing as an athletic trainer in the Commonwealth unless licensed by the board except as provided in § 54.1-2957.6 of the Code of Virginia.

18VAC85-120-75. Temporary authorization to practice.

Upon written request from an applicant and his an applicant's employer and for good cause shown, an applicant who provides documentation of current NATABOC certification and, if licensed or certified by another jurisdiction in the United States, documentation that his license or certificate is current and unrestricted, may be granted temporary authorization to practice as an athletic trainer for 45 days pending submission of all other required documentation and issuance of a license. At the discretion of the board, additional time, not to exceed 15 days, may be allowed to complete the application process.

18VAC85-120-80. Provisional licensure.

A. An applicant who has been approved by NATABOC to sit for the certification examination may be granted a provisional license to practice athletic training under the supervision and control of an athletic trainer.

B. The graduate shall submit an application for a provisional license to the board for review and approval by the Chair of the Advisory Board on Athletic Training or his the chair's designee.

C. The provisional license shall expire six months from issuance or upon receipt of notification of a failing score on the NATABOC certification examination or upon licensure as an athletic trainer by the board, whichever comes first.

18VAC85-120-85. Registration for voluntary practice by out-of-state trainers.

Any athletic trainer who does not hold a license to practice in Virginia and who seeks registration to practice on a voluntary basis under the auspices of a publicly supported, all volunteer, nonprofit organization that sponsors the provision of health care to populations of underserved people shall:

1. File an application for registration on a form provided by the board at least five business days prior to engaging in such practice;

2. Provide a complete record of professional certification or licensure in each state in which he the athletic trainer has held a certificate or license and a copy of any current certificate or license;

3. Provide the name of the nonprofit organization, the dates and location of the voluntary provision of services; and

4. Pay a registration fee of $10; and

5. Provide a notarized statement from a representative of the nonprofit organization attesting to its compliance with provisions of subdivision 27 of § 54.1-2901 of the Code of Virginia.

18VAC85-120-120. General responsibilities.

A. An athletic trainer shall be responsible for the actions of persons engaging in the practice of athletic training under his supervision and direction.

B. An athletic trainer shall ensure that unlicensed persons under his the athletic trainer's supervision shall not perform those functions that require professional judgment or discretion in the practice of athletic training. An athletic trainer shall be responsible for the actions of persons acting under the athletic trainer's supervision and direction.

18VAC85-120-140. Violations. (Repealed.)

Violations of Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1 of the Code of Virginia may subject a licensee to sanctions as set forth in § 54.1-2915 of the Code of Virginia.

18VAC85-120-156. Patient records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of patient records.

B. Practitioners shall provide patient records to another practitioner or to the patient or his personal representative in a timely manner and in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. Practitioners shall properly manage patient records and keep timely, accurate, legible, and complete patient records.

D. C. Practitioners who are employed by a health care institution, school system, or other entity in which the individual practitioner does not own or maintain his the individual practitioner's own records shall maintain patient records in accordance with the policies and procedures of the employing entity.

E. D. Practitioners who are self-employed or employed by an entity in which the individual practitioner does own and is responsible for patient records shall:

1. Maintain a patient record for a minimum of six years following the last patient encounter with the following exceptions:

a. Records of a minor child, including immunizations, shall be maintained until the child reaches the age of 18 or becomes emancipated, with a minimum time for record retention of six years from the last patient encounter regardless of the age of the child;

b. Records that have previously been transferred to another practitioner or health care provider or provided to the patient or his personal representative; or

c. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time.

F. From October 19, 2005, athletic trainers who maintain their own patient records shall post information or in some manner inform all patients concerning the time frame for record retention and destruction. Patient records shall only be destroyed in a manner that protects patient confidentiality, such as by incineration or shredding.

G. When a practitioner is closing, selling or relocating his practice, he shall meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the patient's choice or provided to the patient develop policies regarding retention of records and adhere to those policies.