Title of Regulation: 18VAC85-40. Regulations Governing the Practice of Respiratory Care Practitioners (amending 18VAC85-40-10, 18VAC85-40-40, 18VAC85-40-66).

Statutory Authority: §§ 54.1-2400 and 54.1-2912.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 11, 2013.

Effective Date: September 26, 2013.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Medicine the authority to promulgate regulations to administer the regulatory system. Section 54.1-2954.1 of the Code of Virginia provides specific authority for the board to regulate respiratory care practitioners.

Purpose: The proposed regulation eliminates a potential barrier to licensure for a candidate who may be otherwise qualified by providing a pathway to Virginia licensure for respiratory therapists who have been licensed in another state but who do not have the requisite hours of active practice to qualify under current regulations. By substitution of hours of continuing education, the board has some assurance of competency in the knowledge and skills of the therapists so the public health and safety is protected.

Rationale for Using Fast-Track Process: The regulatory amendment is a less restrictive regulation, which has been reviewed by members of the Advisory Board on Respiratory Care and unanimously approved by the Board of Medicine, and will not be controversial.

Substance: 18VAC85-40 is amended to allow an option for licensure of an applicant who has been licensed in another state but who does not have "active practice," defined as 160 hours of professional practice within the 24-month period immediately preceding application. The amendments allow an applicant to demonstrate competency through documentation of 20 hours of continuing education within the 24-month period.

Issues: The advantage to the public is the potential licensure of qualified therapists from other states to increase the availability of practitioners in Virginia. There are no disadvantages because there remains a requirement for continuing competency. There are no advantages or disadvantages to the agency or the Commonwealth.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medicine (Board) proposes to allow an option for respiratory care practitioner licensure of an applicant who has been licensed in another state but who does not have active practice, defined as 160 hours of professional practice within the 24-month period immediately preceding application. The applicant would be allowed to demonstrate competency through documentation of 20 hours of continuing education within the 24-month period.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current regulations require individuals applying for Virginia licensure as a respiratory care practitioner, who are already licensed or certified in any other jurisdiction, to provide documentation of active practice as a respiratory care practitioner and verification that there has been no disciplinary action taken or pending in that jurisdiction. The regulations define active practice as a minimum of 160 hours of professional practice as a respiratory care practitioner within the 24-month period immediately preceding renewal or application for licensure if previously licensed or certified in another jurisdiction.

The purpose of the proposed amendment is to provide a pathway to Virginia licensure for respiratory therapists who have been licensed in another state but who do not have the requisite hours of active practice to qualify under current regulations. By substitution of hours of continuing education, the Board has some assurance of competency in the knowledge and skills of the therapists; so public health and safety is protected. The proposed regulation eliminates a potential barrier to licensure for a candidate who may be otherwise qualified, while ensuring competence. Thus the proposed amendment should provide a net benefit.

Businesses and Entities Affected. The proposed amendment affects individuals applying for Virginia licensure as a respiratory care practitioner who are already licensed or certified in another jurisdiction, but who do not have the requisite hours of active practice to qualify under the current regulations.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment is unlikely to significantly affect total employment. A small number of respiratory care practitioners who are licensed or certified in another jurisdiction, but who do not have the requisite hours of active practice to qualify for Virginia licensure under the current regulations, may find it easier to find employment in Virginia.

Effects on the Use and Value of Private Property. For the small number of respiratory care practitioners who are licensed or certified in another jurisdiction, but who do not have the requisite hours of active practice to qualify for Virginia licensure under the current regulations, the proposed amendment has the potential to increase their net worth in that they may find it easier to find employment in Virginia.

Small Businesses: Costs and Other Effects. The proposed amendment does not increase costs for small businesses. It has the potential to moderately decrease costs for some small firms that employ respiratory care practitioners in that the potential pool of viable candidates for respiratory care practitioner positions may moderately increase.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Board of Medicine concurs with the analysis of the Department of Planning and Budget for 18VAC85-40, Regulations Governing the Practice of Respiratory Care Practitioners, relating to regulatory reform changes.

Summary:

Amendments to 18VAC85-40 allow an out-of-state applicant to demonstrate competency through documentation of 20 hours of continuing education within the 24-month period preceding application for licensure in lieu of documentation of "active practice," which is 160 hours of professional practice as a respiratory care practitioner, within the 24-month period preceding application for licensure.

Part I
General Provisions

18VAC85-40-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2900 of the Code of Virginia:

Board

Qualified medical direction

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

"AARC" means the American Association for Respiratory Care.

"Accredited educational program" means a program accredited by the Committee Commission on Accreditation for Respiratory Care or any other agency approved by the NBRC for its entry level certification examination.

"Active practice" means a minimum of 160 hours of professional practice as a respiratory care practitioner within the 24-month period immediately preceding renewal or application for licensure if previously licensed or certified in another jurisdiction. The active practice of respiratory care may include supervisory, administrative, educational or consultative activities or responsibilities for the delivery of such services.

"Advisory board" means the Advisory Board on Respiratory Care to the Board of Medicine as specified in § 54.1-2956 of the Code of Virginia.

"NBRC" means the National Board for Respiratory Care, Inc.

"Respiratory care practitioner" means a person as specified in § 54.1-2954 of the Code of Virginia.

Part II
Requirements for Licensure as a Respiratory Care Practitioner

18VAC85-40-40. Application Licensure requirements.

An applicant for licensure shall submit the following on forms provided by the board:

1. A completed application and a fee as prescribed in 18VAC85-40-35.

2. Verification of professional education in respiratory care as required in 18VAC85-40-45.

3. Verification of practice as required on the application form.

4. Evidence of passage of the national examination as required in 18VAC85-40-50.

5. If licensed or certified in any other jurisdiction, documentation of active practice as a respiratory care practitioner or documentation of 20 hours of continuing education within the 24-month period immediately preceding application and verification that there has been no disciplinary action taken or pending in that jurisdiction.

18VAC85-40-66. Continuing education requirements.

A. On and after January 1, 2005, in In order to renew an active license as a respiratory care practitioner, a licensee shall attest to having completed 20 hours of continuing education as approved and documented by a sponsor recognized by the AARC or in courses directly related to the practice of respiratory care as approved by the American Medical Association for Category 1 CME credit within the last biennium.

B. A practitioner shall be exempt from the continuing education requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of its active licensees to determine compliance. The practitioners selected for the audit shall provide all supporting documentation within 30 days of receiving notification of the audit.

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

F. 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.

G. 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.