TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF PHYSICAL THERAPY

Proposed Regulation

Title of Regulation: 18VAC112-20. Regulations Governing the Practice of Physical Therapy (amending 18VAC112-20-27, 18VAC112-20-65, 18VAC112-20-81, 18VAC112-20-121, 18VAC112-20-131, 18VAC112-20-200).

Statutory Authority: §§ 54.1-2400 and 54.1-3474 of the Code of Virginia.

Public Hearing Information:

August 13, 2024 - 10:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 4, Henrico, VA 23233-1463.

Public Comment Deadline: October 11, 2024.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Physical Therapy, 9960 Mayland Drive Suite 300, Henrico, VA 23233, telephone (804) 367-4674, FAX (804) 527-4413, or email ptboard@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Physical Therapy the authority to promulgate regulations to administer the regulatory system. In the statutory definition of physical therapy, the practice of dry needling is not addressed, but treatment may be interpreted to include such practice.

Purpose: The regulation is necessary to protect the health, safety, and welfare of citizens; the changes are intended to reduce burdens on licensees without impacting the protection of the health, safety, and welfare of citizens. The goal of the amendments is to reduce regulatory burden on licensees.

Substance: The amendments (i) remove outdated fee reductions and unnecessary provisions, (ii) remove requirements for applicants for licensure by endorsement regarding the completion of continuing education, (iii) remove lists of continuing education providers and information that will appear in a board guidance document, (iv) fix cross-references, and (v) amend advertising requirements.

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 Physical Therapy (board) proposes to (i) repeal the current requirement that applicants for licensure by endorsement provide evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years; (ii) remove the list of approved continuing education providers from the regulation; (iii) eliminate specified recordkeeping requirements concerning advertising; and (iv) repeal obsolete language.

Background. Licensure by Endorsement: Under both the current and proposed regulations, a physical therapist or physical therapist assistant who holds a current, unrestricted license in the United States, its territories, the District of Columbia, or Canada may apply for licensure in Virginia by endorsement. Under both regulations the applicant must (i) either meet specified education requirements or provide evidence of clinical practice consisting of at least 2,500 hours of patient care during the five years immediately preceding the application while practicing with a current, unrestricted license issued by another United States jurisdiction or Canadian province; (ii) pay the application fee ($140 for a physical therapist and $100 for a physical therapist assistant); (iii) submit a criminal background check; (iv) submit a current report from the National Practitioner Data Bank; and (v) submit either documentation of the completion of at least 320 hours of active practice in physical therapy in another United States jurisdiction or Canada that occurred within the four years immediately preceding application for licensure, or the successful completion of at least 320 hours in a traineeship. Under the current regulation, the applicant must also provide evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years. The board proposes to repeal this requirement.

List of Approved Continuing Education Organizations: In order to renew an active license biennially, both the current and proposed regulations require that physical therapists and physical therapist assistants complete at least 30 contact hours of continuing learning activities within the two years immediately preceding renewal. A minimum of 20 contact hours (for physical therapists) and 15 contact hours (for physical therapist assistants) must be in an organized program of study, classroom experience, or similar educational experience that is directly related to the clinical practice of physical therapy and is approved or provided by an organization approved by the board. The current regulation lists those organizations. The board proposes to remove this list from the regulation and instead maintain the list in a guidance document.

Recordkeeping for Advertisements: Under the current regulation, "Documentation, scientific and otherwise, supporting claims made in an advertisement shall be maintained and available for the board's review for at least two years." Additionally, "For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years." The board proposes to repeal these requirements.

Estimated Benefits and Costs. Licensure by Endorsement: According to the Department of Health Professions (DHP), applicants for licensure by endorsement who have met all other requirements, but had fewer than 15 hours of continuing education for each year in which the licensee held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years, have always completed the difference in hours to meet the Virginia requirement. It is possible that a small number of individuals decided not to apply upon seeing that they did not already meet all requirements. Considering that free courses are offered to members of organizations approved by the board, including the American Physical Therapy Association,² it seems unlikely that there would be a substantial number of individuals so deterred from obtaining licensure by endorsement. Nevertheless, the proposal to eliminate this requirement may encourage a small number of individuals to apply for licensure by endorsement who might not otherwise have done so. Additionally, it would save time and possibly fees for those that do not initially fully meet the continuing education requirement, but would have applied anyway.

List of Approved Continuing Education Organizations: The list of approved continuing education organizations is available on the board's website.³ Removing the list from the regulation and maintaining it in a guidance document is unlikely to substantively affect practitioners who seek to find out which organizations are approved since presumably most would look for the list on the board's website. Guidance documents can be revised much more quickly than regulations. If the board determines that an additional organization is worthy of being approved for providing or approving continuing education courses, this proposal would enable practitioners to use courses from or approved by such an organization to satisfy continuing education requirements considerably sooner.

Recordkeeping for Advertisements: According to DHP, the board found no discernible reason to require licensees to maintain two years of documentation related to claims made in advertisements. If facing a disciplinary action by the board for false, misleading, or deceptive advertising, the licensee would be responsible for providing evidence supporting the advertising claims, regardless of when the claims were made. Additionally, DHP indicates that maintaining records of the name of the practitioner responsible and accountable for the content of advertisements is also unnecessary. The board would review factual evidence concerning the practitioners gathered as part of disciplinary matter. Removing the advertising recordkeeping requirements would provide a small savings for practitioners.

In practice, advertisement-related violations are rare. DHP believes there was one complaint concerning advertising in the past eight years, but it did not result in a disciplinary action.

Businesses and Other Entities Affected. The 9,523 physical therapists and 3,791 physical therapist assistants licensed in the Commonwealth⁴ would potentially be affected, as well as potential applicants for licensure by endorsement who have fewer than the current required hours of continuing education. By percentage, Virginia physical therapists work in the following sectors: 60% for-profit, 33% non-profit, 4.0% state or local government, 1.0% Veterans Health Administration, and 1.0% U.S. Military.^5,6 By percentage, Virginia physical therapist assistants work in the following sectors: 71% for-profit, 23% nonprofit, 3.0% state or local government, 1.0% Veterans Health Administration, and 2.0% U.S. Military.⁷

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 benefit for any entity, even if the benefits exceed the costs for all entities combined.⁹ As there is no increase in net cost nor reduction in net benefit, an adverse impact is not indicated.

Small Businesses¹⁰ Affected.¹¹ The proposed amendments do not adversely affect small businesses.

Localities¹² Affected.¹³ The proposed amendments neither disproportionately affect any particular locality nor introduce costs for local governments.

Projected Impact on Employment. To the extent that there are physical therapists or physical therapist assistants who do not apply for licensure by endorsement in Virginia due to not meeting the continuing education requirement, repealing that requirement may have a very modest positive impact on employment.

Effects on the Use and Value of Private Property. The proposed elimination of the advertising recordkeeping requirements would provide a small cost savings for firms that provide physical therapy services and advertise. To the extent that there are physical therapists or physical therapist assistants who do not apply for licensure by endorsement in Virginia because they do not meet the continuing education requirement, repealing that requirement may very modestly increase the pool of potential applicants for firms to choose from, potentially enabling the hiring of more or better practitioners. Thus, there may be a small increase in the value of some firms that provide physical therapy services. 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 but not be limited to: (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.

² See https://learningcenter.apta.org/catalog.

³ See https://www.dhp.virginia.gov/Boards/PhysicalTherapy/PractitionerResources/ ContinuingEducation/.

⁴ Data source: DHP. See https://www.dhp.virginia.gov/about/stats/2024Q2/ 04CurrentLicenseCountQ2FY2024.pdf.

⁵ Source: DHP. See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/pt/2305PT2022.pdf

⁶ Due to rounding, the percentages do not add to 100.

⁷ Source: DHP. See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/pt/ 2306PTA2022.pdf.

⁸ Pursuant 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.

⁹ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹⁰ Pursuant 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."

¹¹ If 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.

¹² "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.

¹³ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The proposed amendments (i) repeal the current requirement that applicants for licensure by endorsement provide evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years; (ii) remove the list of approved continuing education providers from the regulation; (iii) eliminate specified recordkeeping requirements concerning advertising; and (iv) repeal obsolete language.

18VAC112-20-27. Fees.

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

B. Licensure by examination. 1. The application fee shall be $140 for a physical therapist and $100 for a physical therapist assistant.

2. The fees for taking all required examinations shall be paid directly to the examination services.

C. Licensure by endorsement. The fee for licensure by endorsement shall be $140 for a physical therapist and $100 for a physical therapist assistant.

D. Licensure renewal and reinstatement.

1. The fee for active license renewal for a physical therapist shall be $135 and for a physical therapist assistant shall be $70 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the active license renewal fee for a physical therapist shall be $70 and for a physical therapist assistant shall be $35.

2. The fee for an inactive license renewal for a physical therapist shall be $70 and for a physical therapist assistant shall be $35 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the inactive license renewal fee for a physical therapist shall be $35 and for a physical therapist assistant shall be $18.

3. A fee of $50 for a physical therapist and $25 for a physical therapist assistant 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 been expired for two or more years shall be $180 for a physical therapist and $120 for a physical therapist assistant and shall be submitted with an application for licensure reinstatement.

E. Other fees.

1. The fee for an application for reinstatement of a license that has been revoked shall be $1,000; the fee for an application for reinstatement of a license that has been suspended shall be $500.

2. The fee for a duplicate license shall be $5 $5.00, and the fee for a duplicate wall certificate shall be $15.

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

4. The fee for a letter of good standing or verification to another jurisdiction shall be $10.

5. The application fee for direct access certification shall be $75 for a physical therapist to obtain certification to provide services without a referral.

6. The state fee for obtaining or renewing a compact privilege to practice in Virginia shall be $50.

18VAC112-20-65. Requirements for licensure by endorsement.

A. A physical therapist or physical therapist assistant who holds a current, unrestricted license in the United States, its territories, the District of Columbia, or Canada may be licensed in Virginia by endorsement.

B. An applicant for licensure by endorsement shall submit:

1. Documentation of having met the educational requirements prescribed in 18VAC112-20-40 or 18VAC112-20-50. In lieu of meeting such requirements, an applicant may provide evidence of clinical practice consisting of at least 2,500 hours of patient care during the five years immediately preceding application for licensure in Virginia with a current, unrestricted license issued by another United States jurisdiction or Canadian province;

2. The required application, fees, and credentials to the board, including a criminal history background check as required by § 54.1-3484 of the Code of Virginia;

3. A current report from the National Practitioner Data Bank (NPDB);

4. Evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years;

5. 4. Documentation of passage of an examination equivalent to the Virginia examination at the time of initial licensure or documentation of passage of an examination required by another state or Canadian province at the time of initial licensure in that state or province; and

6. 5. Documentation of active practice in physical therapy in another United States jurisdiction or Canada for at least 320 hours within the four years immediately preceding his application for licensure. A physical therapist who does not meet the active practice requirement shall successfully complete 320 hours in a traineeship in accordance with requirements in 18VAC112-20-140.

C. A physical therapist assistant seeking licensure by endorsement who has not actively practiced physical therapy for at least 320 hours within the four years immediately preceding his application for licensure shall successfully complete 320 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

18VAC112-20-81. Requirements for direct access certification.

A. An applicant for certification to provide services to patients without a referral as specified in § 54.1-3482.1 of the Code of Virginia shall hold an active, unrestricted license as a physical therapist in Virginia and shall submit evidence satisfactory to the board that he the applicant has one of the following qualifications:

1. Completion of a transitional program in physical therapy as recognized by the board; or

2. At least three years of postlicensure, active practice with evidence of 15 contact hours of continuing education in medical screening or differential diagnosis, including passage of a postcourse examination. The required continuing education shall be offered by a provider or sponsor listed as approved by the board as provided in 18VAC112-20-131 and may be face-to-face or online education courses.

B. In addition to the evidence of qualification for certification required in subsection A of this section, an applicant seeking direct access certification shall submit to the board:

1. A completed application as provided by the board;

2. Any additional documentation as may be required by the board to determine eligibility of the applicant; and

3. The application fee as specified in 18VAC112-20-27.

18VAC112-20-121. Practice of dry needling.

A. Dry needling is not an entry level skill but an advanced procedure that requires additional post-graduate training.

1. The training shall be specific to dry needling and shall include emergency preparedness and response, contraindications and precautions, secondary effects or complications, palpation and needle techniques, and physiological responses.

2. The training shall consist of didactic and hands-on laboratory education and shall include passage of a theoretical and practical examination. The hands-on laboratory education shall be face-to-face.

3. The training shall be in a course approved or provided by a sponsor listed approved by the board as provided in subsection B of 18VAC112-20-131.

4. The practitioner shall not perform dry needling beyond the scope of the highest level of the practitioner's training.

B. Prior to the performance of dry needling, the physical therapist shall obtain informed consent from the patient or the patient's representative. The informed consent shall include the risks and benefits of the technique. The informed consent form shall be maintained in the patient record.

C. Dry needling shall only be performed by a physical therapist trained pursuant to subsection A of this section and shall not be delegated to a physical therapist assistant or other support personnel.

18VAC112-20-131. Continued competency requirements for renewal of an active license.

A. In order to renew an active license biennially, a physical therapist or a physical therapist assistant shall complete at least 30 contact hours of continuing learning activities within the two years immediately preceding renewal. In choosing continuing learning activities or courses, the licensee shall consider the following: (i) the need to promote ethical practice, (ii) an appropriate standard of care, (iii) patient safety, (iv) application of new medical technology, (v) appropriate communication with patients, and (vi) knowledge of the changing health care system.

B. To document the required hours, the licensee shall maintain the Continued Competency Activity and Assessment Form that is provided by the board and that shall indicate completion of the following:

1. A minimum of 20 of the contact hours required for physical therapists and 15 of the contact hours required for physical therapist assistants shall be in Type 1 courses. For the purpose of this section, "course" means an organized program of study, classroom experience, or similar educational experience that is directly related to the clinical practice of physical therapy and approved or provided by one of the following organizations or any of its components:

a. The Virginia Physical Therapy Association;

b. The American Physical Therapy Association;

c. Local, state, or federal government agencies;

d. Regionally accredited colleges and universities;

e. Health care organizations accredited by a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to assure compliance with Medicare conditions of participation;

f. The American Medical Association - Category I Continuing Medical Education course;

g. The National Athletic Trainers' Association;

h. The Federation of State Boards of Physical Therapy;

i. The National Strength and Conditioning Association; or

j. Providers approved by other state licensing boards for physical therapy an organization approved by the board.

One credit hour of a college course shall be considered the equivalent of 15 contact hours of Type 1 continuing education.

2. No more than 10 of the contact hours required for physical therapists and 15 of the contact hours required for physical therapist assistants may be Type 2 activities or courses, which may or may not be offered by an approved organization, but which shall be related to the clinical practice of physical therapy. For the purposes of this subdivision, Type 2 activities may include:

a. Consultation with colleagues, independent study, and research or writing on subjects related to practice.

b. Delivery of physical 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 for up to two of the Type 2 hours.

c. Attendance at a meeting of the board or disciplinary proceeding conducted by the board for up to two of the Type 2 hours.

d. Classroom instruction of workshops or courses.

e. Clinical supervision of students and research and preparation for the clinical supervision experience.

Forty hours of clinical supervision or instruction shall be considered the equivalent of one contact hour of Type 2 activity.

3. Documentation of specialty certification by the American Physical Therapy Association may be provided as evidence of completion of continuing competency requirements for the biennium in which initial certification or recertification occurs.

4. Documentation of graduation from a transitional doctor of physical therapy program may be provided as evidence of completion of continuing competency requirements for the biennium in which the physical therapist was awarded the degree.

C. A licensee shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure by examination in Virginia.

D. The licensee shall retain his records on the completed form Continued Competency Activity and Assessment Form with all supporting documentation for a period of four years following the renewal of an active license.

E. The licensees selected in a random audit conducted by the board shall provide the completed Continued Competency Activity and Assessment Form and all supporting documentation within 30 days of receiving notification of the audit.

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

G. 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.

H. 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, upon a written request from the licensee prior to the renewal date.

18VAC112-20-200. Advertising ethics.

A. Any statement specifying a fee, whether standard, discounted, or free, for professional services that does not include the cost of all related procedures, services, and products that, to a substantial likelihood, will be necessary for the completion of the advertised service as it would be understood by an ordinarily prudent person shall be deemed to be deceptive or misleading, or both. Where reasonable disclosure of all relevant variables and considerations is made, a statement of a range of prices for specifically described services shall not be deemed to be deceptive or misleading.

B. Advertising a discounted or free service, examination, or treatment and charging for any additional service, examination, or treatment that is performed as a result of and within 72 hours of the initial office visit in response to such advertisement is unprofessional conduct unless such professional services rendered are as a result of a bona fide emergency. This provision may not be waived by agreement of the patient and the practitioner.

C. No licensee or holder of a compact privilege of the board shall advertise information that is false, misleading, or deceptive. Advertisements of discounts shall disclose the full fee that has been discounted. The practitioner shall maintain documented evidence to substantiate the discounted fees and shall make such information available to a consumer upon request.

D. A No licensee or holder of a compact privilege shall not use the term "board certified" or any similar words word or phrase calculated to convey the same meaning in any advertising for his the practitioner's practice unless he the practitioner holds certification in a clinical specialty issued by the American Board of Physical Therapy Specialties.

E. A licensee or holder of a compact privilege of the board shall not advertise information that is false, misleading, or deceptive. For an advertisement for a single practitioner, it shall be presumed that the practitioner is responsible and accountable for the validity and truthfulness of its content. For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years.

F. Documentation, scientific and otherwise, supporting claims made in an advertisement shall be maintained and available for the board's review for at least two years.