TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

DEPARTMENT OF HEALTH PROFESSIONS

Final Regulation

Title of Regulation: 18VAC76-10. Regulations Governing the Health Practitioners' Monitoring Program for the Department of Health Professions (amending 18VAC76-10-20, 18VAC76-10-30, 18VAC76-10-40, 18VAC76-10-60, 18VAC76-10-65, 18VAC76-10-80, 18VAC76-10-100; repealing 18VAC76-10-70).

Statutory Authority: § 54.1-2516 of the Code of Virginia.

Effective Date: November 6, 2024.

Agency Contact: Matthew Novak, Interim Program Manager, Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 597-4217, FAX (804) 381-4310, or email matthew.novak@dhp.virginia.gov.

Summary:

As a result of a periodic review, the amendments (i) update language to reflect current procedures of the Health Practitioners' Monitoring Program and (ii) ensure individuals on the Health Practitioners' Monitoring Program Committee are appropriately credentialed and conflicts of interest are disclosed and appropriately avoided.

18VAC76-10-20. Organization of committee.

A. Members shall be appointed by the director for a term of four years and shall be eligible for reappointment for one additional four-year term. A member who is appointed to fill a vacancy for the remainder of an unexpired term shall be eligible for two full four-year terms. Terms of appointment shall begin on July 1 of each calendar year the first of the month following the appointment. The director shall have authority to remove a member for cause.

B. Members of the committee shall not be current members of a health regulatory board within the department.

C. Members of the committee who are required to be a licensed, certified, or registered practitioner with the Department of Health Professions must be in good standing with the applicable licensing board to serve on the committee. The director shall have the authority to temporarily bar member participation for cause.

D. The committee shall schedule meetings as necessary to conduct its business. Five members shall constitute a quorum. The committee may adopt bylaws to govern its operations as it deems necessary to conduct its business and as consistent with law and regulations.

D. Each health regulatory board within the department shall designate, in accordance with subdivision 8 of § 54.1-2400 of the Code of Virginia, a liaison to the committee.

18VAC76-10-30. Eligibility.

A. In order to become eligible for the program and to maintain eligibility, an impaired practitioner shall hold a current, active license, certification, a registration issued by a health regulatory board in Virginia, or a multistate licensure privilege, with the exception that an applicant for initial licensure, certification, or registration or for reinstatement shall be eligible for participation for up to one year from the date of receipt of the application by a health regulatory board.

B. Individuals who are practicing exclusively outside of Virginia shall not participate in the program, except as may be required by specific board order or by permission between party states pursuant to the:

1. The Audiology and Speech-Language Pathology Interstate Compact (Article 2 (§ 54.1-2606 et seq.) of Chapter 26 of Title 54.1 of the Code of Virginia);

2. The Counseling Compact (§ 54.1-3500.1 of the Code of Virginia);

3. The Nurse Licensure Compact (Article 6 6.1 (§ 54.1-3030 54.1-3040.1 et seq.) of Chapter 30 of Title 54.1 of the Code of Virginia);

4. The Occupational Therapy Interjurisdictional Licensure Compact (§ 54.1-2956.7:1 of the Code of Virginia);

5. The Physical Therapy Licensure Compact (Article 2 (§ 54.1-3485 et seq.) of Chapter 34.1 of Title 54.1 of the Code of Virginia); or

6. The Psychology Interjurisdictional Compact (§ 54.1-3606.2 of the Code of Virginia).

C. The practitioner shall sign a participation contract and a recovery monitoring contract with the committee. Failure to adhere to the terms of either contract may subject the practitioner to dismissal from the program.

D. A practitioner who has been previously terminated dismissed for noncompliance from this or any other state-sponsored monitoring program may be considered eligible at the discretion of the committee or its designee.

D. The practitioner shall sign a participation contract with the committee. Failure to adhere to the terms of the contract may subject the practitioner to termination from the program.

E. The committee or its designee may deem a practitioner who has been repeatedly dismissed for noncompliance from the program unable to be monitored and the practitioner as permanently ineligible for re-entry into the program.

18VAC76-10-40. Eligibility for stayed disciplinary action.

A. The committee or its designee shall consult with the relevant health regulatory board liaison for the purpose of determining whether disciplinary action shall be stayed eligibility for a stay of disciplinary action pursuant to § 54.1-2516 C of the Code of Virginia. Such consultation shall occur prior to determination regarding stayed disciplinary action and may include the following:

1. Review of an investigative report that alleges impairment;

2. Implications of the alleged impairment on practice in the profession;

3. Circumstances of the impairment related to a possible violation of laws or regulation; or

4. Any other issues related to disciplinary action or the eligibility, treatment, and recovery of a practitioner.

B. If found ineligible for stayed disciplinary action by the relevant health regulatory board or the committee, the practitioner may remain eligible for participation in the program. If an applicant for the program is not eligible for a stay and evidence of a violation has been reported to the committee, the committee shall make a report of the violation to the department.

B. Prior to making a decision on stayed disciplinary action, the committee or its designee shall review any applicable notices or orders and shall consult with the relevant board on any pending investigations. The relevant board shall have final authority in the granting of a stay of disciplinary action.

C. Disciplinary action may be initiated by the appropriate relevant health regulatory board upon receipt of investigative information leading to a determination of probable cause that impairment constitutes a danger to patients or clients, or upon a determination that the decision for stayed disciplinary action is not consistent with provisions for a stay pursuant to § 54.1-2516 C of the Code of Virginia.

D. The committee or its designee shall advise the relevant health regulatory board that a participant is noncompliant and may no longer be eligible for a stay of disciplinary action.

E. The relevant health regulatory board shall have final authority to grant a stay of disciplinary action.

18VAC76-10-60. Recovery monitoring contract.

The recovery monitoring contract between the committee and the practitioner shall include:

1. Length of contract;

2. Type, frequency, and conditions of drug screens;

3. Type and frequency of self-help meetings;

4. Stipulations for self-reporting;

5. Quarterly reports from employers, peers, or peer assistance programs;

6. Conditions and terms for completion and release from the program; and

7. Any other terms or requirements as may be deemed necessary by the committee.

18VAC76-10-65. Authority of the chairperson of the committee.

A. The chairperson may act on behalf of the committee when a scheduled meeting is canceled due to failure to convene a quorum.

B. The chairperson may act on behalf of the committee to authorize an urgent dismissal action the following actions outside of a scheduled meeting:

1. Urgent dismissal;

2. Resignation - case closure; and

3. Ineligible - case closure.

18VAC76-10-70. Procedures for consultation with health regulatory boards. (Repealed.)

A. The committee or its designee shall consult with the relevant health regulatory board prior to making a determination on stayed disciplinary action; such consultation may include the following:

1. Eligibility of a practitioner for stayed disciplinary action;

2. The implications of the impairment on practice in the profession;

3. The circumstances of the impairment related to a possible violation of laws or regulation; or

4. Any other issues related to disciplinary action or the eligibility, treatment, and recovery of a practitioner.

B. The committee, following consultation with and briefing by the program manager, shall advise the relevant board that a participant is noncompliant and may no longer be eligible for a stay.

18VAC76-10-80. Procedures for exchange Disclosure of information.

A. All disclosure of information shall be consistent with subsections B and C of § 54.1-2517 of the Code of Virginia and with the Substance Abuse Confidentiality Regulations contained in 42 CFR Part 2 when applicable.

B. Reporting requirement to health regulatory boards.

1. Upon receipt of an investigative report which alleges impairment, a health regulatory board shall request and the committee shall report if the practitioner has been found eligible for stayed disciplinary action.

2. Upon a determination by the committee that a practitioner has successfully completed the program, the committee shall report such completion to the respective health regulatory board if the committee has previously received an inquiry from that board regarding the practitioner's participation.

C. Reporting requirements to the director.

1. The contractor or contractors shall report at least annually to the director and the committee on statistics which indicate the general performance of the program to include information and format stipulated in the contract.

2. At no time shall the report disclose the names of practitioners enrolled in the program.

D. Records for the program shall be retained by the contractor or contractors pursuant to terms of the contract.

18VAC76-10-100. Conflicts of interests.

A. The committee, contractor, or employees and agents of the contractor who refer practitioners for treatment shall not refer a practitioner to a treatment facility where the contractor, employees, or agents possess an investment interest, as defined in Chapter 24.1 (§ 54.1-2410 et seq.) of Title 54.1 of the Code of Virginia, unless it is an investment interest defined in § 54.1-2411 D of the Code of Virginia.

B. Likewise, the committee, the contractor, or its employees and agents as noted in subsection A of this section shall not have an investment interest in any laboratory which that practitioners will be mandated to use for testing during the period of their contract.

C. The contractor shall offer multiple treatment options to any practitioner accepted into the program if treatment is a condition of participation unless the committee authorizes an exception.

D. A committee member who is providing treatment to a practitioner in the program shall disqualify himself from any decision related to such practitioner.

E. Any committee member who can or may be able to identify a practitioner in the program after the review of committee case reports shall recuse himself from any decision related to such practitioner. Committee members shall not attend committee meetings when such identified practitioner's case will be discussed.