Title of Regulation: 18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-120).

Statutory Authority: §§ 54.1-2400, 54.1-2957, and 54.1-2957.01 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 24, 2018.

Effective Date: February 8, 2018.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility to promulgate regulations.

Section 54.1-2957.01 of the Code of Virginia sets out the requirements for a practice agreement for nurse practitioners who have prescriptive authority, including a provision for an electronic practice agreement.

Purpose: The goal of the proposal is to eliminate a potential conflict between the Code of Virginia and regulation. Public health and safety continues to be protected with practice agreements that are maintained in written or electronic form and must be available to the Board of Nursing if there are questions about practice.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendment is less burdensome for all parties and conforms to the Code of Virginia, and therefore, the board is confident that the rulemaking is noncontroversial and should be promulgated as a fast-track action.

Substance: The change eliminates reference to an agreement being on file with the board and includes the allowance for an agreement to be in electronic format rather than written format.

Issues: The primary advantage of the amendment is elimination of confusing and conflicting language in regulation. There are no disadvantages.

There are no advantages or disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing and the Board of Medicine (Boards) propose amendments to improve clarity.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Section 120 of the current regulation¹ states that "A nurse practitioner may dispense only those manufacturers' samples of drugs that are included in the written practice agreement as is on file with the board." Practice agreement is defined² as "a written or electronic agreement jointly developed by the patient care team physician and the nurse practitioner for the practice of the nurse practitioner that also describes the prescriptive authority of the nurse practitioner, if applicable. For a nurse practitioner licensed in the category of certified nurse midwife, the practice agreement is a statement jointly developed with the consulting physician." Since the practice agreement may be written or electronic, the Boards propose to amend the sentence in Section 120 to reflect that.

Additionally, practice agreements are no longer kept on file by a board. The Regulations Governing the Licensure of Nurse Practitioners (18 VAC 90-30) state that "The practice agreement shall be maintained by the nurse practitioner and provided to the boards upon request."³ Consequently, the Boards also propose to remove "as is on file with the board" from the sentence in Section 120.

Thus, the proposed new sentence in Section 120 is "A nurse practitioner may dispense only those manufacturers' samples of drugs that are included in the written or electronic practice agreement." Since the proposed amendments do not alter rules or requirements, but may reduce the likelihood of confusion for readers of the regulation, there would likely be a net benefit.

Businesses and Entities Affected. The proposed amendments pertain to the 6,748 nurse practitioners⁴ licensed in the Commonwealth.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

________________

¹See https://law.lis.virginia.gov/admincode/title18/agency90
/chapter40/section120/

²See https://law.lis.virginia.gov/admincode/title18/agency90/chapter40
/section10/

³See https://law.lis.virginia.gov/admincode/title18/agency90
/chapter30/section120/ and https://law.lis.virginia.gov/admincode/title18
/agency90/chapter30/section123/

⁴Data source: Department of Health Professions

Agency's Response to Economic Impact Analysis: The Board of Nursing and the Board of Medicine concur with the analysis of the Department of Planning and Budget.

Summary:

The amendments eliminate reference to a practice agreement being on file with the board and permit a practice agreement to be electronic rather than written.

18VAC90-40-120. Dispensing.

A nurse practitioner may dispense only those manufacturers' samples of drugs that are included in the written or electronic practice agreement as is on file with the board.