TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-110. Regulations Governing the Practice of Licensed Acupuncturists (amending 18VAC85-110-80, 18VAC85-110-145, 18VAC85-110-176, 18VAC85-110-177; repealing 18VAC85-110-20, 18VAC85-110-179, 18VAC85-110-181).

Statutory Authority: §§ 54.1-2400 and 54.1-2956.9 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Medicine to promulgate regulations to administer the regulatory system. Section 54.1-2956.10 of the Code of Virginia requires the board to regulate the practice and licensure of acupuncturists.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protects the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed acupuncturists.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments was the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the changes remove or modify provisions that are redundant of statutory requirements, are not related to the practice of acupuncture, are outdated, or are otherwise ineffectual.

Substance: The amendments repeal redundant statutory provisions in regulation, including provisions related to (i) public participation; (ii) outdated descriptions of national exams; (iii) fees related to voluntary practice by out-of-state licensees; (iv) the handling of patient records that were intended to cover physicians; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) communications to patients; (vii) advertising restrictions; and (viii) solicitation or remuneration in exchange for referral.

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 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 Medicine (board) proposes to delete outdated or redundant provisions and clarify some provisions to be consistent with current practice.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove outdated language and references to the Code of Virginia that are redundant, and to update certain provisions so that they accurately reflect current practice.² The most substantive changes are summarized as follows: 18VAC85-110-80 contains examination requirements for licensure. The Point Location Examination would be removed from this section since this examination is no longer given. 18VAC85-110-145 contains the registration requirements for voluntary practice by out-of-state trainers, including a $10 fee. The board proposes to remove this fee. 18VAC85-110-176 contains requirements pertaining to patient records. These requirements include maintaining records for six years following the last patient encounter, except in specific cases; informing patients of the timeframe for record retention and destruction; and only destroying records in a manner that protects patient confidentiality. These requirements would be removed and replaced with a more general requirement that practitioners maintain a patient record in accordance with policies and procedures of the employing entity. For practitioners who are sole proprietors, the proposed text would require them to develop policies for the maintenance of patient records and adhere to these policies. 18VAC85-110-179 (Advertising ethics) and 18VAC85-110-181 (Solicitation or remuneration in exchange for referral) are repealed in entirety. Section 54.1- 2915 A 1 of the Code of Virginia makes fraud or deceit in the practice of any branch of the healing arts unprofessional conduct and as such, subject to disciplinary action by the board. The language in 18VAC85-110-181 repeats language already contained in § 54.1-2962.1 of the Code of Virginia. The remaining changes would be to remove references to other chapters of the Virginia Administrative Code or references to statute.³

Estimated Benefits and Costs: According to the Department of Health Professions (DHP), the $10 fee for an individual licensed out-of-state to register for voluntary practice itself costs more administratively to collect than $10. Thus, eliminating the fee would be beneficial in that it would both reduce the cost for out-of-state licensed acupuncturists volunteering in Virginia and net costs for the board. The proposed changes pertaining to the retention of patient records in 18VAC85-110-176 are intended to reduce the burden on practitioners. DHP reports that the current requirements were developed by the board in the early 2000s specifically for physicians (MDs and DOs) but were also applied to other professions, including athletic training and acupuncture.⁴ The board now finds these requirements to be too burdensome for licensed acupuncturists, because they do not handle the same type of records that are maintained by physicians.⁵ However, DHP states that licensed acupuncturists would still be bound by the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA), which sets a floor on the recordkeeping requirements for entities that employ licensed acupuncturists or for licensed acupuncturists who are sole proprietors. Thus, removing the more restrictive requirements in the regulation would not compromise patient privacy. Accordingly, licensed acupuncturists who are sole proprietors may face a one-time cost in developing their own HIPAA-compliant recordkeeping policy, but would also benefit to the extent that the proposed changes reduce their ongoing costs of record retention; thus, their net costs are not expected to increase. DHP does not track the number of licensed acupuncturists who are self-employed or currently subject to the more restrictive requirements; thus, it is unclear how many practitioners would be affected. Removing the other instances of text that either refers to another regulation, is obsolete (no longer applicable), is repetitive of other regulatory text, or is duplicative of statute would have no impact on requirements for licensed acupuncturists or the public.

Businesses and Other Entities Affected. The proposed amendments affect the 599 acupuncturists licensed in the Commonwealth,⁶ as well as their patients and employers. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ 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 changes are not anticipated to create any net new costs. Thus, an adverse impact is not indicated.

Small Businesses⁸ Affected.⁹ DHP does not track the number of licensed acupuncturists who are sole proprietors. Therefore, based upon the available data it is not clear if the proposed amendments adversely affect small businesses.

Localities¹⁰ Affected.¹¹ The proposed amendments do not appear to disproportionally affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments are not likely to have a substantive impact on total employment.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the value of private property. 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://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2152.

³ See the Agency Background Document (ABD), pp. 7-9 for the specific references that would be removed: https://townhall.virginia.gov/l/GetFile.cfm?File=26\6119\9838\AgencyStatement_DHP_9838_v2.pdf.

⁴ The board proposes to similarly repeal these requirements for athletic trainers as well. See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9837.

⁵ ABD, p. 7.

⁶ Source: https://www.dhp.virginia.gov/about/stats/2023Q4/04CurrentLicenseCountQ4FY2023.pdf.

⁷ 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.

⁸ 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."

⁹ 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.

¹⁰ "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.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

As a result of a 2022 periodic review, the amendments repeal redundant statutory provisions in regulation, including provisions related to (i) public participation; (ii) outdated descriptions of national exams; (iii) fees related to voluntary practice by out-of-state licensees; (iv) the handling of patient records that were intended to cover physicians; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) communications to patients; (vii) advertising restrictions; and (viii) solicitation or remuneration in exchange for referral.

18VAC85-110-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-110-80. Examination requirements for licensure.

The examination requirements for licensure shall consist of:

1. Passing the NCCAOM comprehensive written examination, resulting in current, active certification by the NCCAOM at the time the application is filed with the board; 2. Passing the Point Location Examination; and

3. 2. Completing the CNT course as administered by the CCAHM.

18VAC85-110-145. Registration for voluntary practice by out-of-state licensees.

Any licensed acupuncturist who does not hold a license to practice in Virginia and who seeks registration to practice under subdivision 27 of § 54.1-2901 of the Code of Virginia on a voluntary basis under the auspices of a publicly supported, all volunteer, nonprofit organization that sponsors the provision of health care to populations of underserved people shall:

1. File an application for registration on a form provided by the board at least five business days prior to engaging in such practice;

2. Provide a complete record of professional licensure in each state in which he the acupuncturist has held a license and a copy of any current license;

3. Provide the name of the nonprofit organization, and the dates and location of the voluntary provision of services; 4. Pay a registration fee of $10; and

5. 4. Provide a notarized statement from a representative of the nonprofit organization attesting to its compliance with provisions of subdivision 27 of § 54.1-2901 of the Code of Virginia.

18VAC85-110-176. Patient records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of patient records.

B. Practitioners shall provide patient records to another practitioner or to the patient or his personal representative in a timely manner and in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. B. Practitioners shall properly manage patient records and shall maintain timely, accurate, legible and complete patient records.

D. C. Practitioners shall maintain a patient record for a minimum of six years following the last patient encounter with the following exceptions: 1. Records of a minor child, including immunizations, shall be maintained until the child reaches the age of 18 or becomes emancipated, with a minimum time for record retention of six years from the last patient encounter regardless of the age of the child; 2. Records that have previously been transferred to another practitioner or health care provider or provided to the patient or his personal representative; or 3. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time in accordance with policies and procedures of the employing entity. In the event the practitioner is a sole proprietor, the practitioner shall develop policies for maintenance of patient records and adhere to those policies.

E. From October 19, 2005, practitioners shall post information or in some manner inform all patients concerning the time frame for record retention and destruction. Patient records shall only be destroyed in a manner that protects patient confidentiality, such as by incineration or shredding. F. When a practitioner is closing, selling or relocating his practice, he shall meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the patient's choice or provided to the patient.

18VAC85-110-177. Practitioner-patient communication; termination of relationship.

A. Communication with patients.

1. Except as provided in § 32.1-127.1:03 F of the Code of Virginia, a practitioner shall accurately inform a patient or his the patient's legally authorized representative of his the patient's professional assessment and prescribed treatment or plan of care in understandable terms. A No practitioner shall not deliberately make a false or misleading statement regarding the practitioner's skill or the efficacy or value of a treatment, or procedure prescribed or directed by the practitioner in the treatment of any disease or condition.

2. A practitioner shall present information to a patient or his legally authorized representative in understandable terms and encourage participation in the decisions regarding the patient's care.

3. 2. Before any acupuncture treatment or procedure is performed, informed consent shall be obtained from the patient. Practitioners shall inform patients of the risks, benefits, and alternatives of the recommended treatment that a reasonably prudent licensed acupuncturist practicing in Virginia would tell a patient. In the instance of a minor or a patient who is incapable of making an informed decision on his the patient's own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

B. Termination of the practitioner/patient practitioner-patient relationship.

1. The practitioner or the patient may terminate the relationship. In either case, the practitioner shall make a copy of the patient record available, except in situations where denial of access is allowed by law.

2. A No practitioner shall not terminate the relationship or make his services unavailable without documented notice to the patient that allows for a reasonable time to obtain the services of another practitioner.

18VAC85-110-179. Advertising ethics. (Repealed.)

A. Any statement specifying a fee, whether standard, discounted or free, for professional services which does not include the cost of all related procedures, services and products which, 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 bonafide emergency. This provision may not be waived by agreement of the patient and the practitioner.

C. 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 licensee shall disclose the complete name of the specialty board that conferred the certification when using or authorizing the use of the term "board certified" or any similar words or phrase calculated to convey the same meaning in any advertising for his practice.

E. A licensee 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 or practitioners responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years.

18VAC85-110-181. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility or institution as defined in § 37.2-100 of the Code of Virginia or hospital as defined in § 32.1-123 of the Code of Virginia.

Remuneration shall be defined as compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320a-7b(b), as amended, or any regulations promulgated thereto.