TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Fast-Track Regulation

Title of Regulation: 18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-125).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 1, 2025.

Effective Date: January 16, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Boards of Nursing and Medicine are promulgated under the general authority § 54.1-2400 of the Code of Virginia, which specifically states that the general powers and duties of health regulatory boards shall be to promulgate regulations.

Purpose: The rationale for this action is to conform the regulation governing clinical nurse specialist practice agreements to reflect Chapter 197 of the 2022 Acts of Assembly. This regulatory change is essential to protect the health, safety, and welfare of citizens because the General Assembly has determined certain clinical nurse specialists do not need to practice under a practice agreement, and the reduction of that burden may increase the numbers of clinical nurse specialists working in the Commonwealth.

Rationale for Using Fast-Track Rulemaking Process: The action mirrors changes to statute and provides no discretion on the part of the agency or boards in the changes. Therefore, this action will not be controversial and is appropriate for the fast-track rulemaking process.

Substance: 18VAC90-30-125 is amended to eliminate the need for clinical nurse specialists to practice with a practice agreement provided the clinical nurse specialists meet the requirements found in Chapter 197 of the 2022 Acts of Assembly. The amendments to the regulation use language found in the statute.

Issues: The primary advantages to the public, including businesses such as hospitals, include being able to utilize the skills and training of clinical nurse specialists who do not prescribe controlled substances or devices without requiring a practice agreement. There are no disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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. Pursuant to Chapter 197 of the 2022 Acts of Assembly,² the Boards of Nursing and Medicine (boards) propose to indicate that a clinical nurse specialist (CNS) who does not prescribe controlled substances or devices does not need to practice pursuant to a practice agreement.

Background. Prior to July 1, 2021, CNSs were registered with the Board of Nursing. They worked without supervision as advanced practice registered nurses according to their scope of practice. In order to allow CNSs to apply for prescriptive authority, Chapter 157 of the 2021 Acts of Assembly, Special Session I³ required all CNSs to be jointly licensed by the Boards of Nursing and Medicine as nurse practitioners. According to the Department of Health Professions (DHP), this created an unintended consequence because the change also meant that all CNSs would be required to have a practice agreement with a licensed physician. A practice agreement was required even if a CNS did not want to practice with prescriptive authority, and DHP indicates that not all CNS licensees were seeking prescriptive authority. Rather, many CNSs focus on psychological-mental health where they do not prescribe, and the profession has the statutory authority⁴ to bill the Department of Medical Assistance Services as independent providers. Chapter 197 of the 2022 Acts of Assembly eliminated the unintended consequence by stipulating that a CNS who does not prescribe controlled substances or devices may practice without a practice agreement. Between the effective date of the 2021 legislation (July 1, 2021) and the effective date of the 2022 legislation (July 1, 2022), the unintended consequence was temporarily resolved by adding language to the 2021 Special Session II Appropriation Act that allowed CNS to practice without a practice agreement if they practiced without prescriptive authority.⁵ The budget language, which expired June 30, 2022, was added at the request of DHP after hearing concerns from the CNS community and representatives from the Virginia Association of Clinical Nurse Specialists who were concerned about the new requirement for all CNS to practice under a practice agreement.

Estimated Benefits and Costs. The proposed additional text for the regulation is identical to the text in the 2022 legislation. Thus, the only impact in practice is to better inform readers of the regulation as toward the actual requirements for CNS practice.

Businesses and Other Entities Affected. Hospitals or other health care entities that employ nurse practitioners licensed in the category of clinical nurse specialists who do not prescribe controlled substances are affected by the legislation in that it allows these practitioners to work without practice agreements. The Virginia Department of Health licenses 105 inpatient hospitals and 70 outpatient surgical hospitals.⁶ There are 399 licensed nurse practitioners in the category of clinical nurse specialists in Virginia.⁷ The board does not have data on the number of whom do not prescribe controlled substances or devices. 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. The proposed amendments match statutory text; consequently, they neither increase net cost nor reduce net revenue. Thus, no adverse impact is indicated.

Small Businesses⁹ Affected.¹⁰ The proposed amendments do not adversely affect small businesses.

Localities¹¹ Affected.¹² The proposed amendments neither disproportionally affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. As the proposed amendments match statute, the use and value of private property is not affected. Additionally, the proposed amendments do not affect real estate development costs.

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¹ Section 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://lis.virginia.gov/cgi-bin/legp604.exe?221+ful+CHAP0197.

³ See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0157.

⁴ See § 32.1-325 F of the Code of Virginia: https://law.lis.virginia.gov/vacode/title32.1/chapter10/section32.1-325/#v2/.

⁵ See Items I 1 and I 2 at https://lis.virginia.gov/cgi-bin/legp604.exe?213+ful+HB7001.

⁶ Data source: Virginia Department of Health.

⁷ Data source: Department of Health Professions.

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 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."

¹⁰ 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.

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.

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

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

Summary:

Pursuant to Chapter 197 of the 2022 Acts of Assembly, the amendments allow a clinical nurse specialist who does not prescribe controlled substances or devices to practice without a written or electronic practice agreement.

18VAC90-30-125. Practice of nurse practitioners advanced practice registered nurses licensed as in the category of clinical advanced practice registered nurses nurse specialist.

A. Advanced practice registered nurses licensed in the category of clinical nurse specialist who prescribe controlled substances or devices shall practice in consultation with a licensed physician in accordance with a practice agreement between the advanced practice registered nurse and the licensed physician.

B. Such practice agreement shall address the availability of the physician for routine and urgent consultation on patient care. Evidence of a practice agreement shall be maintained by an advanced practice registered nurse and provided to the boards upon request.

C. Advanced practice registered nurses licensed in the category of clinical nurse specialist who do not prescribe controlled substances or devices may practice in the category in which the advanced practice registered nurse is certified without a written or electronic practice agreement. Such advanced practice registered nurse shall:

1. Only practice within the scope of the advanced practice registered nurse's clinical and professional training and limits of the advanced practice registered nurse's knowledge and experience and consistent with the applicable standards of care;

2. Consult and collaborate with other health care providers based on the clinical condition of the patient to whom health care is provided; and

3. Establish a plan for referral of complex medical cases and emergencies to physicians or other appropriate health care providers.

D. The practice of clinical nurse specialists shall be consistent with the standards of care for the profession and with applicable laws and regulations.