Title of Regulation: 18VAC85-20. Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic (amending 18VAC85-20-141, 18VAC85-20-350).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 16, 2019.

Effective Date: November 1, 2019.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4621, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Medicine the authority to promulgate regulations to administer the regulatory system.

Purpose: The amendments to 18VAC85-20-141 and 18VAC85-20-350 are responding to a petition for rulemaking. The board is acknowledging the acceptance of a board certification in podiatry that is already recognized by the American Podiatric Medical Association and the Council for Podiatric Medical Education. Its addition to regulation may facilitate licensure by endorsement for a few applicants and will allow those podiatrists who hold such certification to assure patient health and safety by their identification as board-certified practitioners.

Rationale for Using Fast-Track Rulemaking Process: The impetus for the change was a petition from rulemaking from Dr. Luke Vetti. The petition was supported by other podiatrists and has full support from the board, so the changes should be noncontroversial.

Substance: The amendments recognize the American Board of Podiatric Medicine (ABPM) as an approved entity to qualify an applicant for licensure in podiatry to be licensed by endorsement and allow a podiatrist with ABPM certification to identify himself as "board-certified" in informed consent documents for performance of surgery.

Issues: There is an advantage to the public if a patient is looking for a board-certified podiatrist. Inclusion of the ABPM would allow some podiatrists to identify themselves in informed consent documents as "board-certified." There are no disadvantages to the public. The certifying body is already recognized by leading professional organizations. There are no advantages or disadvantages to the agency or the Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the 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 recognize the American Board of Podiatric Medicine (ABPM) as an approved entity to qualify an applicant for podiatry licensure by endorsement. The Board also proposes to allow a podiatrist with ABPM certification to identify himself as "board-certified" in informed consent documents for performance of surgery.

Background

The Board proposes these amendments in response to a petition for rulemaking.² The American Podiatric Medical Association and the Council for Podiatric Medical Education already recognize ABPM certification in podiatry.³

Estimated Benefits and Costs. Since regulations for licensure by endorsement became effective in September of 2018, approximately 100 doctors of medicine have been licensed by endorsement.⁴ To date, there have been no podiatrists licensed by endorsement.⁵ The proposal may facilitate podiatry licensure by endorsement for a few applicants and would allow those podiatrists who hold such certification to assure patient health and safety by their identification as board-certified practitioners. Given that the American Podiatric Medical Association and the Council for Podiatric Medical Education recognize ABPM certification in podiatry, it is beneficial that more podiatrists that are qualified would be able to become licensed by endorsement and be identified to interested patients as board-certified. Given their qualifications, there is no reason to believe this would put patients at risk. Thus, the proposal should produce a net benefit.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 142 offices of podiatrists in the Commonwealth.⁶ Offices that employ or may seek to employ podiatrists with ABPM certification would be particularly affected. The proposals do not introduce costs to implement or comply.

Localities⁷ Affected⁸. The proposed amendments apply statewide and do not disproportionately affect particular localities. As the proposed amendments do not introduce costs for local governments, no additional funds would be required.

Projected Impact on Employment. The proposal to recognize the ABPM as an approved entity to qualify an applicant for podiatry licensure by endorsement may prompt a small number of podiatrists to work in the Commonwealth who otherwise may not have.

Effects on the Use and Value of Private Property. To the extent that the proposal to recognize the ABPM as an approved entity to qualify an applicant for podiatry licensure by endorsement may prompt some podiatrists to work in the Commonwealth, it may become moderately easier for offices of podiatrists to find qualified staff. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses⁹: The proposed amendments do not adversely affect small businesses.

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¹Adverse 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.

²See https://townhall.virginia.gov/l/viewpetition.cfm?petitionid=295

³Source: Department of Health Professions

⁴Ibid

⁵Ibid

⁶Data source: Virginia Employment Commission

⁷"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.

⁸§ 2.2-4007.04 defines “particularly affected" as bearing disproportionate material impact.

⁹Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Agency's Response to Economic Impact Analysis: The Board of Medicine concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments (i) recognize the American Board of Podiatric Medicine (ABPM) as an approved entity to qualify an applicant for podiatry licensure by endorsement and (ii) allow a podiatrist with ABPM certification to identify himself as "board-certified" in informed consent documents for performance of surgery. This action is in response to a petition for rulemaking.

18VAC85-20-141. Licensure by endorsement.

To be licensed by endorsement, an applicant shall:

1. Hold at least one current, unrestricted license in a United States jurisdiction or Canada for the five years immediately preceding application to the board;

2. Have been engaged in active practice, defined as an average of 20 hours per week or 640 hours per year, for five years after postgraduate training and immediately preceding application;

3. Verify that all licenses held in another United States jurisdiction or in Canada are in good standing, defined as current and unrestricted, or if lapsed, eligible for renewal or reinstatement;

4. Hold current certification by one of the following:

a. American Board of Medical Specialties;

b. Bureau of Osteopathic Specialists;

c. American Board of Foot and Ankle Surgery;

d. American Board of Podiatric Medicine;

e. Fellowship of Royal College of Physicians of Canada;

e. f. Fellowship of the Royal College of Surgeons of Canada; or

f. g. College of Family Physicians of Canada;

5. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank; and

6. Have no grounds for denial based on provisions of § 54.1-2915 of the Code of Virginia or regulations of the board.

18VAC85-20-350. Informed consent.

A. Prior to administration, the anesthesia plan shall be discussed with the patient or responsible party by the health care practitioner administering the anesthesia or supervising the administration of anesthesia. Informed consent for the nature and objectives of the anesthesia planned shall be in writing and obtained from the patient or responsible party before the procedure is performed. Such consent shall include a discussion of discharge planning and what care or assistance the patient is expected to require after discharge. Informed consent shall only be obtained after a discussion of the risks, benefits, and alternatives, contain the name of the anesthesia provider, and be documented in the medical record.

B. The surgical consent forms shall be executed by the patient or the responsible party and shall contain a statement that the doctor performing the surgery is board certified or board eligible by one of the American Board of Medical Specialties boards, the Bureau of Osteopathic Specialists of the American Osteopathic Association, the American Board of Podiatric Medicine, or the American Board of Foot and Ankle Surgery. The forms shall either list which board or contain a statement that doctor performing the surgery is not board certified or board eligible.

C. The surgical consent forms shall indicate whether the surgery is elective or medically necessary. If a consent is obtained in an emergency, the surgical consent form shall indicate the nature of the emergency.