TITLE 12. HEALTH

STATE BOARD OF HEALTH

Fast-Track Regulation

Title of Regulation: 12VAC5-67. Advance Health Care Directive Registry (amending 12VAC5-67-10, 12VAC5-67-20, 12VAC5-67-30; adding 12VAC5-67-5).

Statutory Authority: §§ 32.1-12, 54.1-2994, and 54.1-2995 of the Code of Virginia,

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: November 18, 2026.

Effective Date: December 3, 2026.

Agency Contact: Rilee Bennett, Senior Policy Analyst, Virginia Department of Health, 2001 Maywill Street, Suite 101, Richmond, VA 23230, telephone (804) 662-6258, or email rilee.bennett@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce regulations necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by the board, the State Health Commissioner, or the Department of Health. Section 54.1-2994 of the Code of Virginia directs the Virginia Department of Health to make available a secure online central registry for advance health care planning. Section 54.1-2995 of the Code of Virginia requires the board to promulgate regulations related to the Advance Health Care Planning Registry.

Purpose: This action critical for safeguarding the health, safety, and welfare of Virginia residents because the changes establish a framework for timely access to a patients' critical health care planning information stored in the Advance Health Care Planning Registry, better clarify the types of advance health care planning documentation that may be stored in the registry, and specify who may access the documentation stored in the registry. Establishing clear criteria for document submission and access ensures that important health planning documents are easily and securely stored. This is particularly important in emergency situations where a patient may be unable to communicate preferences and health care providers need immediate access to these documents to make informed decisions about the patient's medical treatment.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking action because the changes conform the regulation to current law and practice. The agency does not anticipate any reduction in the services provided that are associated with the regulatory changes.

Substance: The amendments (i) define terms; (ii) permit the submission of other documents supporting advance health care planning into the Advance Health Care Planning Registry, including Durable Do Not Resuscitate Orders and portable medical order forms; (iii) remove a restriction placed on licensed health care providers by permitting them to access and query the registry for a patient's advance directive information even if the patient is comatose, incapacitated, or incapable of communication; and (iv) make technical changes.

Issues: The primary advantages to the public, the Commonwealth, and regulated and business entities include (i) clarification of the processes and requirements related to the filing, storage, and accessibility of health care planning documentation in Virginia's Advance Health Care Planning Registry and (ii) expansion of health care provider access to the documentation stored in the registry, which will provide medical professionals with the critical information needed to make timely and accurate medical decisions on behalf of patients. There are no known disadvantages to the public, regulated entities, or business entities as a result of the regulatory changes. The primary disadvantage to the agency and the Commonwealth is the increased cost charged to the agency to enhance and administer a registry that can be queried by health care providers.

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 State Board of Health (board) seeks to update the regulation governing the Advance Health Care Directive Registry to implement changes based on a 2022 period review and 2024 legislation.² The proposed changes would (i) expand the types of documents that may be filed in the registry, (ii) expand the situations in which licensed health care providers may access the registry and who can obtain access, and (iii) align the regulation to current practice.

Background. The Advance Health Care Directive Registry was first established by Chapter 696 of the 2008 Acts of Assembly, which directed the Virginia Department of Health (VDH) to, "make available a secure only central registry for advance health care directives" and to promulgate regulations to implement certain provisions; accordingly, this regulation (12VAC5-67) became effective in 2011. The registry is maintained by Virginia Health Information (VHI).³ Chapters 231 and 274 of the 2024 Acts of Assembly renamed the registry to the Advance Health Care Planning Registry and added "any other document that supports advance health care planning, including Durable Do Not Resuscitate Order or portable medical order forms" to the list of documents that could be filed in the registry. Thus, the board seeks to amend the title of the regulation by replacing "directive" with "planning" and to conform the regulation to statute by adding the new documents specified in the legislation to the list in section 20 (Criteria for submission of an advanced directive to the Advance Health Care Planning Registry). Section 30 (Access to the Advance Health Care Planning Registry) currently states that "Licensed health care providers shall have access to the registry for the purpose of a query for advance directive information on patients who are comatose, incapacitated, or otherwise mentally or physically incapable of communication." The board seeks to replace this sentence to allow a licensed health care provider to access the registry, "when conducting a query for advance health care planning information on a patient with whom the [provider] has a treatment relationship." This change would provide greater flexibility for patients and providers. Specifically, in practice, providers would have broader access to the registry regardless of the patient's condition even if "they have not been previously informed of an advance directive or planning document by the patient." Lastly, the board seeks to (i) add definitions, (ii) clarify that the registry is available to the public, and (iii) specify that only the individual who executed the document, or their legal representative or designee, can file the document in the registry.

Estimated Benefits and Costs. The proposed amendments would benefit readers of the regulation by ensuring that the regulation is clear and conforms to statute. Licensed health care providers who use the registry would benefit by having access to the information they need in a timely manner so that they may honor their patients' advance directives. Individuals who choose to use the registry would benefit to the extent that their providers are able to access and follow the advance planning documents that they have filed. Although § 54.1-2995 of the Code of Virginia allows the board to charge individuals a fee for filing documents in the registry, the regulation does not currently contain any fees and VDH has confirmed that VHI does not charge individuals any fees to create an online account or file documents (collectively, these constitute "registration"). VDH reports that VHI incurs a cost of $4.95 per individual for registration, which is billed to and reimbursed by VDH. VDH also reports that VHI enrolls 25 new providers per year and is in the process of gradually increasing the enrollment of licensed health care providers, which resulted from legislative changes that expanded providers' ability to access the registry. VDH reports that VHI pays annual fees of $1800 per new provider (which reflects additional onboarding costs) and $1200 per existing provider. These costs are also billed to and reimbursed by VDH. Providers are not charged any fees to access documents filed by their patients.

Businesses and Other Entities Affected. The proposed amendments would benefit individuals who choose to use the registry as well as their healthcare providers by clarifying the documents that may be filed and ensuring that the regulation conforms to statute. As mentioned above, VDH incurs the cost of maintaining the registry and reimburses VHI for registration fees for individuals and enrollment fees for providers. However, these costs derive from statute and would not be newly created by the proposed amendments to the regulation. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ 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.⁵ As noted above, the proposed amendments conform the regulation to statute and do not create new costs or reduce net benefits. Thus, an adverse impact is not indicated.

Small Businesses⁶ Affected.⁷ The proposed amendments would not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposed amendments would neither affect any locality in particular, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and 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=2225 and https://legacylis.virginia.gov/cgibin/legp604.exe?241+sum+HB188, respectively.
³ See https://www.vhi.org/hie/advance-care-planning-registry/.

⁴ 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.

⁵ 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.

⁶ 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."

⁷ 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.

⁸ "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.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments conform the regulation to statute by (i) clarifying the types of advance care planning documentation that may be stored in the Advance Health Care Planning Registry and (ii) specifying who is permitted to access the documentation stored within the registry. Technical changes are also included.

Chapter 67

Advance Health Care Directive Planning Registry

12VAC5-67-5. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Advance directive" has the same meaning as defined in § 54.1-2982 of the Code of Virginia.

"Department" means the Virginia Department of Health.

"Registry" means the Advance Health Care Planning Registry.

12VAC5-67-10. General provisions.

A. In accordance with Article 9 (§ 54.1-2994 et seq.) of Chapter 29 of Title 54.1 of the Code of Virginia and this chapter, the Department of Health department shall make available to the public an Advance Health Care Directive Planning Registry available to the public by (i) contracting with a vendor, (ii) publicizing the availability of an existing registry maintained by another entity, or (iii) entering into a public-private partnership.

B. The department shall ensure that the contracted vendor, public-private partnership, or any other entity through which the department has made the registry available to citizens of the Commonwealth annually contacts persons who have registered documents to remind them of which documents they have registered.

12VAC5-67-20. Criteria for submission of an advance directive to the registry Advance Health Care Planning Registry.

A. Documents that may be submitted to the registry include:

1. A health care power of attorney.

2. An advance directive created pursuant to Article 8 (§ 54.1-2981 et seq.) of Chapter 29 of Title 54.1 of the Code of Virginia or a subsequent act of the General Assembly.

3. A declaration of an anatomical gift made pursuant to the Revised Uniform Anatomical Gift Act (§ 32.1-291.1 et seq. of the Code of Virginia).

4. Any other document that supports advance health care planning, including Durable Do Not Resuscitate Orders or portable medical order forms.

B. The document shall be submitted for filing by Only the person who executed the document or his the person's legal representative or designee may submit a document for filing in the registry.

C. The person submitting documents to the registry shall be responsible for payment of any fee required by the contracted vendor, public-private partnership, or any other entity through which the department has made the registry available to citizens of the Commonwealth. Fees associated with the registry shall not exceed the direct costs associated with the development and maintenance of the registry, and with the education of the public about the availability of the registry.

12VAC5-67-30. Access to the registry Advance Health Care Planning Registry.

A. The person registering documents in the registry may specify a legal representative or other persons to have access to such registered documents. It shall be the responsibility of the The person registering to the documents shall provide such persons the individuals with the information necessary to access the registry.

Licensed B. A licensed health care providers shall provider may have access to the registry for the purpose of when conducting a query for advance directive health care planning information on patients who are comatose, incapacitated, or otherwise mentally or physically incapable of communication a patient with whom the licensed health care provider has a treatment relationship.