Title of Regulation: 18VAC85-40. Regulations Governing the Practice of Respiratory Therapists (amending 18VAC85-40-66).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 30, 2020.

Effective Date: October 15, 2020.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Medicine the authority to promulgate regulations to administer the regulatory system. The requirement for passage of a National Board of Respiratory Care (NBRC) examination for initial licensure is found in § 54.1-2954 of the Code of Virginia.

Purpose: The purpose of the regulatory change is to recognize the extensive preparation and effort required to pass a specialty examination of the NBRC by allowing a respiratory therapist to have 20 hours of continuing education credit in the biennium in which the examination is passed. Such an allowance may encourage respiratory therapists to increase their knowledge and clinical skills to enable them to provide more proficient care and protect the health and safety of patients they serve.

Rationale for Using Fast-Track Rulemaking Process: The impetus for the amendment was a recommendation of the Advisory Board on Respiratory Care. Since the regulatory change provides an optional pathway for fulfillment of continuing education requirements, it will not be controversial and is appropriate for the fast-track rulemaking process.

Substance: The proposed amendment will allow a respiratory therapist to have 20 hours of continuing education credit for passage of a specialty examination of the National Board of Respiratory Care for the biennium in which the practitioner passed the exam.

Issues: There is an advantage to the public if a respiratory therapist completes a specialty examination, which would improve their competency and clinical skills. There are no disadvantages to the public; the basic examination of the NBRC is already recognized by the Code of Virginia as the basis for licensure.

There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medicine (Board) proposes to allow a respiratory therapist who passes a specialty examination of the National Board of Respiratory Care to earn 20 hours of continuing education credit for the biennium in which the practitioner passed the exam.

Background. Currently, in order to renew an active license as a respiratory therapist, a licensee must have 20 hours of continuing education within the biennial license renewal cycle. For the continuing education credits, the Board currently recognizes: 1) courses approved and documented by a sponsor recognized by the American Association for Respiratory Care, 2) courses directly related to the practice of respiratory care as approved by the American Medical Association for Category 1 Continuing Medical Education credit, and 3) a credit course of post-licensure academic education relevant to respiratory care offered by a college or university accredited by an agency recognized by the United States Department of Education. In addition, up to two continuing education hours may be satisfied through delivery of respiratory therapy services, without compensation, to low-income individuals receiving services through a local health department or a free clinic.

In addition to the enumerated ways of obtaining the required 20 hours of continuing education, the proposed amendment would allow respiratory therapists to meet that requirement for the biennium if they pass a specialty exam of the National Board of Respiratory Care. The specialty areas include adult critical care, neonatal/pediatric respiratory care, pulmonary function technology, and sleep disorders testing and therapeutic intervention. The impetus for the proposed change was a recommendation of the Advisory Board on Respiratory Care.

Estimated Benefits and Costs. The proposed change represents an additional option to meet the required 20 hours of continuing education for biennial renewal of the respiratory therapy license. According to the Department of Health Professions (DHP), even though the Board does not offer specialty licenses some respiratory therapists already take the specialty exam, perhaps to signal to potential employers that their skills are advanced and current in certain areas. The purpose of the regulatory change is to recognize the extensive preparation and effort required to pass a specialty exam by allowing those who pass the exam to meet the continuing education requirement.

In addition to the individuals who would have taken a specialty exam without this change, the proposed amendment may encourage more respiratory therapists to take a specialty exam. Since the proposed change is optional, it can be inferred that the benefits to those who choose to take the exam would exceed the costs to them. Also, to the extent that the specialty exam improves the quality of respiratory care in the Commonwealth, both employers and patients would benefit.

However, the proposed regulation may also lead to a decrease in demand for continuing education services offered by the current continuing education providers. With this change, a respiratory therapist who passes the specialty exam would not have to take 20 hours of continuing education from existing providers.

Businesses and Other Entities Affected. According to DHP, there are currently 3,743 persons licensed as respiratory therapists in Virginia. However, the Board does not license by specialty and as such there is no information on the number of therapists who pass a specialty exam during a certain period of time, nor is there an estimate of the number of therapists who may be interested in taking the specialty exam as a result of the proposed change.

While the benefits of the proposal may exceed costs overall, there would likely be a reduction in net revenue for existing providers of continuing education. An adverse economic impact¹ on existing providers of continuing education is indicated because there do not appear to be any offsetting direct benefits to these businesses.

Small Businesses² Affected. Substitution of the specialty exam for the alternate courses may negatively affect the small businesses that currently offer the courses that would count toward the 20 required hours.

Types and Estimated Number of Small Businesses Affected: The board does not license continuing education providers for respiratory therapy. Accordingly, there is no estimate available on the number of small businesses that currently offer continuing education services to respiratory therapists.

Costs and Other Effects: The proposed amendment makes it more attractive to earn continuing education credits through a specialty exam which may reduce the demand for continuing education services from current providers.

Alternative Method that Minimizes Adverse Impact: There is no clear alternative method that both reduce adverse impact and meet the intended policy goals.

Localities³ Affected.⁴ The proposed amendment potentially affects respiratory therapists and continuing education providers in all 132 localities. The proposed amendment does not introduce costs for local governments. Accordingly, no additional funds would be required.

Projected Impact on Employment. There is not enough information to assess whether the likely reduction in demand for continuing education services offered by the current providers has the potential to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment may negatively affect the asset value of current continuing education providers by potentially reducing the demand for their services. The proposed amendment does not appear to affect real estate development costs.

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¹Adverse 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.

²Pursuant 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."

³"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.

⁴§ 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 analysis of the Department of Planning and Budget.

Summary:

The amendment allows a respiratory therapist who passes a specialty examination of the National Board of Respiratory Care to earn 20 hours of continuing education credit for the biennium in which the practitioner passes the exam.

18VAC85-40-66. Continuing education requirements.

A. In order to renew an active license as a respiratory therapist, a licensee shall attest to having completed 20 hours of continuing education within the last biennium as follows:

1. Courses approved and documented by a sponsor recognized by the AARC;

2. Courses directly related to the practice of respiratory care as approved by the American Medical Association for Category 1 CME credit; or

3. A credit course of post-licensure academic education relevant to respiratory care offered by a college or university accredited by an agency recognized by the U.S. Department of Education; or

4. Passage of a specialty examination of the National Board of Respiratory Care for 20 hours of credit in the biennium in which the examination was passed.

Up to two continuing education hours may be satisfied through delivery of respiratory therapy services, without compensation, to low-income individuals receiving services through a local health department or a free clinic organized in whole or primarily for the delivery of health services. One hour of continuing education may be credited for three hours of providing such volunteer services. For the purpose of continuing education credit for voluntary service, the hours shall be approved and documented by the health department or free clinic.

B. A practitioner shall be exempt from the continuing education requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of its active licensees to determine compliance. The practitioners selected for the audit shall provide all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing competency requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

G. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.