Titles of Regulations: 18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-10, 18VAC90-30-20, 18VAC90-30-50, 18VAC90-30-85, 18VAC90-30-110, 18VAC90-30-120; adding 18VAC90-30-86).

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-90).

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

Public Hearing Information:

October 16, 2019 - 9:05 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 201, Board Room 2, Henrico, VA 23233

Public Comment Deadline: November 29, 2019.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 and Board of Nursing the authority to promulgate regulations to administer the regulatory system. Authority for licensure and practice of nurse practitioners and for prescriptive authority is found in § 54.1-2957 of the Code of Virginia.

Purpose: Regulations for autonomous practice are consistent with the statute as amended by the 2018 General Assembly and provide for evidence of years of clinical practice with a patient care team physician and for the limitation of practice within the category for which a nurse practitioner is licensed and certified. By law and regulation, a nurse practitioner practicing autonomously must "(a) only practice within the scope of his clinical and professional training and limits of his knowledge and experience and consistent with the applicable standards of care, (b) consult and collaborate with other health care providers based on the clinical conditions of the patient to whom health care is provided, and (c) establish a plan for referral of complex medical cases and emergencies to physicians or other appropriate health care providers." Therefore, the health and safety of patients is adequately protected by the qualifications for autonomous practice and the specified scope of such practice.

Substance: Regulations set the qualifications for authorization for a nurse practitioner to practice without a practice agreement with a patient care team physician, including the hours required for the equivalent of five years of full-time clinical experience, content of the attestation from the physician and nurse practitioner, submission of an attestation when the nurse practitioner is unable to obtain a physician attestation, requirements for autonomous practice, and the fee for authorization.

Issues: The primary advantage to the public is the potential for an expansion of access to care. By allowing nurse practitioners to practice autonomously, it is anticipated that there will be an increased number who will choose to open practices in underserved areas where it is currently difficult to find a collaborating physician. The agency does not believe there are disadvantages to the public because nurse practitioners practicing autonomously are still required to consult and collaborate with other health care providers based on clinical conditions and must practice only within the scope of their training and limits of experience. There are no particular advantages or disadvantages to the agency. There may be an advantage to the Commonwealth by an increase in access to care.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 776 of the 2018 Acts of Assembly,² the Boards of Nursing and Medicine (Boards) jointly propose to establish criteria for nurse practitioners wishing to work autonomously.

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

Estimated Economic Impact. The 2018 General Assembly authorized nurse practitioners to work autonomously and required the Boards to promulgate regulations governing such practice. Consistent with the enabling legislation, the Boards, under an emergency regulation,³ set the qualifications for authorization for a nurse practitioner to practice without a practice agreement with a patient care team physician, including the hours required for the equivalent of five years of full-time clinical experience, content of the attestation from the physician and nurse practitioner, submission of an attestation when the nurse practitioner is unable to obtain a physician attestation, requirements for autonomous practice, and the fee for authorization. The Boards now propose to make the emergency regulation permanent.

The main economic effects of autonomous practice fall on the nurse practitioners with the prerequisite experience, the doctors who used to have a practice agreement with a nurse practitioner, and the public in general. In a few cases, a nurse practitioner (or the employer of the nurse practitioner) practicing under the oversight of a doctor pursuant to a practice agreement may pay the doctor for such an arrangement. Anecdotally, the magnitude of such payments may range from $500 to $3,000 per month.⁴ Thus, autonomous practice may relieve a nurse practitioner or his employer from such ongoing payments. This legislative change benefits qualifying nurse practitioners while taking away a possible stream of income from few doctors providing oversight. Whether loss of income by a supervising doctor is a net cost or not depends on specific circumstances. In some cases, the doctor may be better off because he can use the time he would gain from no longer providing oversight in more productive activities. In other cases, the physician may be worse off if the value of the time that would be freed up from reduced oversight is less than the amount he may have received in oversight payment.

According to the Department of Health Professions (DHP), the legislative requirements and the proposed rules ensure quality of services because nurse practitioners practicing autonomously are still required to consult and collaborate with other health care providers based on clinical conditions and to only practice within the scope of their training and limits of experience. Thus, no additional health risks are expected from this change. In addition, this change may improve access to care in rural areas where it is generally difficult to find a collaborating physician if interested nurse practitioners choose to work in those areas. However, according to DHP, the 440 applications received so far are from all over Virginia and do not dominantly come from rural areas.

Finally, the Boards propose to establish a one-time $100 fee for autonomous practice applications. This fee will be used to cover the administrative expenses to evaluate and process applications. The legislation also requires liability insurance. The required fee and the insurance coverage should not negatively affect applicants as they are required from only those who are interested in such a practice and who would likely benefit from such an authority.

Businesses and Entities Affected. There are approximately 4,000 persons who have held licenses as nurse practitioners for five years or more. However, it is unknown how many of that number have been actively engaged in full-time clinical practice. As of May 28, 2019, there were 440 applications received for autonomous practice and 372 of them were approved.

Localities Particularly Affected. The proposed changes have the potential to improve access to care in rural areas where supply of physicians are lacking. However, it may be too early to see the evidence for such an effect.

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

Effects on the Use and Value of Private Property. The proposed changes would allow a nurse practitioner to work autonomously. Autonomous practice may positively affect asset value of such a business.

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposed amendments may reduce the cost for nurse practitioners to actively practice. This may reduce costs for small medical practices that employ nurse practitioners.

Alternative Method that Minimizes Adverse Impact. The proposed amendments should not adversely affect small businesses.

Adverse Impacts: 

Businesses. The proposed amendments should not adversely affect businesses.

Localities. The proposed amendments should not adversely affect localities.

Other Entities. The proposed amendments should not have a direct adverse effect other entities.

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²http://lis.virginia.gov/cgi-bin/legp604.exe?181+ful+CHAP0776

³https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8395

⁴Source: DHP

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

Summary:

Pursuant to Chapter 776 of the 2018 Acts of Assembly, which permits a nurse practitioner who meets certain statutory requirements to practice without a practice agreement with a patient care team physician, the proposed amendments set the qualifications for authorization for a nurse practitioner to practice without a practice agreement, including (i) the hours required to be the equivalent of five years of full-time clinical experience, (ii) the content of the attestation from the physician and the nurse practitioner, (iii) the submission of an attestation when the nurse practitioner is unable to obtain a physician attestation, (iv) the requirements for autonomous practice, and (v) the fee for authorization for autonomous practice.

Part I
General Provisions

18VAC90-30-10. Definitions.

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

"Approved program" means a nurse practitioner education program that is accredited by the Council on Accreditation of Nurse Anesthesia Educational Programs/Schools, American College of Nurse Midwives, Commission on Collegiate Nursing Education, or the National League for Nursing Accrediting Commission or is offered by a school of nursing or jointly offered by a school of medicine and a school of nursing that grant a graduate degree in nursing and which that hold a national accreditation acceptable to the boards.

"Autonomous practice" means practice in a category in which a nurse practitioner is certified and licensed without a written or electronic practice agreement with a patient care team physician in accordance with 18VAC90-30-86.

"Boards" means the Virginia Board of Nursing and the Virginia Board of Medicine.

"Certified nurse midwife" means an advanced practice registered nurse who is certified in the specialty of nurse midwifery and who is jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner pursuant to § 54.1-2957 of the Code of Virginia.

"Certified registered nurse anesthetist" means an advanced practice registered nurse who is certified in the specialty of nurse anesthesia, who is jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner pursuant to § 54.1-2957 of the Code of Virginia, and who practices under the supervision of a doctor of medicine, osteopathy, podiatry, or dentistry but is not subject to the practice agreement requirement described in § 54.1-2957.

"Collaboration" means the communication and decision-making process among members of a patient care team related to the treatment and care of a patient and includes (i) communication of data and information about the treatment and care of a patient, including exchange of clinical observations and assessments, and (ii) development of an appropriate plan of care, including decisions regarding the health care provided, accessing and assessment of appropriate additional resources or expertise, and arrangement of appropriate referrals, testing, or studies.

"Committee" means the Committee of the Joint Boards of Nursing and Medicine.

"Consultation" means the communicating of data and information, exchanging of clinical observations and assessments, accessing and assessing of additional resources and expertise, problem solving, and arranging for referrals, testing, or studies.

"Licensed nurse practitioner" means an advanced practice registered nurse who has met the requirements for licensure as stated in Part II (18VAC90-30-60 et seq.) of this chapter.

"National certifying body" means a national organization that is accredited by an accrediting agency recognized by the U.S. Department of Education or deemed acceptable by the National Council of State Boards of Nursing and has as one of its purposes the certification of nurse anesthetists, nurse midwives, or nurse practitioners, referred to in this chapter as professional certification, and whose certification of such persons by examination is accepted by the committee.

"Patient care team physician" means a person who holds an active, unrestricted license issued by the Virginia Board of Medicine to practice medicine or osteopathic medicine.

"Practice agreement" means a written or electronic statement, jointly developed by the collaborating patient care team physician(s) physician and the licensed nurse practitioner(s) practitioner that describes the procedures to be followed and the acts appropriate to the specialty practice area to be performed by the licensed nurse practitioner(s) practitioner in the care and management of patients. The practice agreement also describes the prescriptive authority of the nurse practitioner, if applicable. For a nurse practitioner licensed in the category of certified nurse midwife, the practice agreement is a statement jointly developed with the consulting physician.

18VAC90-30-20. Delegation of authority.

A. The boards hereby delegate to the executive director of the Virginia Board of Nursing the authority to issue the initial licensure and the biennial renewal of such licensure to those persons who meet the requirements set forth in this chapter, to grant authorization for autonomous practice to those persons who have met the qualifications of 18VAC90-30-86, and to grant extensions or exemptions for compliance with continuing competency requirements as set forth in subsection E of 18VAC90-30-105. Questions of eligibility shall be referred to the Committee of the Joint Boards of Nursing and Medicine.

B. All records and files related to the licensure of nurse practitioners shall be maintained in the office of the Virginia Board of Nursing.

18VAC90-30-50. Fees.

A. Fees required in connection with the licensure of nurse practitioners are:

1. Application	$125
2. Biennial licensure renewal	$80
3. Late renewal	$25
4. Reinstatement of licensure	$150
5. Verification of licensure to another jurisdiction	$35
6. Duplicate license	$15
7. Duplicate wall certificate	$25
8. Return check charge	$35
9. Reinstatement of suspended or revoked license	$200
10. Autonomous practice attestation	$100

B. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$60

18VAC90-30-85. Qualifications for licensure by endorsement.

A. An applicant for licensure by endorsement as a nurse practitioner shall:

1. Provide verification of licensure as a nurse practitioner or advanced practice nurse in another U.S. United States jurisdiction with a license in good standing, or, if lapsed, eligible for reinstatement;

2. Submit evidence of professional certification that is consistent with the specialty area of the applicant's educational preparation issued by an agency accepted by the boards as identified in 18VAC90-30-90; and

3. Submit the required application and fee as prescribed in 18VAC90-30-50.

B. An applicant shall provide evidence that includes a transcript that shows successful completion of core coursework that prepares the applicant for licensure in the appropriate specialty.

C. An applicant for licensure by endorsement who is also seeking authorization for autonomous practice shall comply with subsection F of 18VAC90-30-86.

18VAC90-30-86. Autonomous practice for nurse practitioners other than certified nurse midwives or certified registered nurse anesthetists.

A. A nurse practitioner with a current, unrestricted license, other than someone licensed in the category of certified nurse midwife or certified registered nurse anesthetist, may qualify for autonomous practice by completion of the equivalent of five years of full-time clinical experience as a nurse practitioner.

1. Five years of full-time clinical experience shall be defined as 1,800 hours per year for a total of 9,000 hours.

2. Clinical experience shall be defined as the postgraduate delivery of health care directly to patients pursuant to a practice agreement with a patient care team physician.

B. Qualification for authorization for autonomous practice shall be determined upon submission of a fee as specified in 18VAC90-30-50 and an attestation acceptable to the boards. The attestation shall be signed by the nurse practitioner and the nurse practitioner's patient care team physician stating that:

1. The patient care team physician served as a patient care team physician on a patient care team with the nurse practitioner pursuant to a practice agreement meeting the requirements of this chapter and §§ 54.1-2957 and 54.1-2957.01 of the Code of Virginia;

2. While a party to such practice agreement, the patient care team physician routinely practiced with a patient population and in a practice area included within the category, as specified in 18VAC90-30-70, for which the nurse practitioner was certified and licensed; and

3. The period of time and hours of practice during which the patient care team physician practiced with the nurse practitioner under such a practice agreement.

C. The nurse practitioner may submit attestations from more than one patient care team physician with whom the nurse practitioner practiced during the equivalent of five years of practice, but all attestations shall be submitted to the boards at the same time.

D. If a nurse practitioner is licensed and certified in more than one category as specified in 18VAC90-30-70, a separate fee and attestation that meets the requirements of subsection B of this section shall be submitted for each category. If the hours of practice are applicable to the patient population and in practice areas included within each of the categories of licensure and certification, those hours may be counted toward a second attestation.

E. In the event a patient care team physician has died, become disabled, retired, or relocated to another state, or in the event of any other circumstance that inhibits the ability of the nurse practitioner from obtaining an attestation as specified in subsection B of this section, the nurse practitioner may submit other evidence of meeting the qualifications for autonomous practice along with an attestation signed by the nurse practitioner. Other evidence may include employment records, military service, Medicare or Medicaid reimbursement records, or other similar records that verify full-time clinical practice in the role of a nurse practitioner in the category for which the nurse practitioner is licensed and certified. The burden shall be on the nurse practitioner to provide sufficient evidence to support the nurse practitioner's inability to obtain an attestation from a patient care team physician.

F. A nurse practitioner to whom a license is issued by endorsement may engage in autonomous practice if such application includes an attestation acceptable to the boards that the nurse practitioner has completed the equivalent of five years of full-time clinical experience as specified in subsection A of this section and in accordance with the laws of the state in which the nurse practitioner was previously licensed.

G. A nurse practitioner authorized to practice autonomously shall:

1. Only practice within the scope of the nurse practitioner's clinical and professional training and limits of the nurse practitioner'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 conditions 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.

18VAC90-30-110. Reinstatement of license.

A. A licensed nurse practitioner whose license has lapsed may be reinstated within one renewal period by payment of the current renewal fee and the late renewal fee.

B. An applicant for reinstatement of license lapsed for more than one renewal period shall:

1. File the required application and reinstatement fee;

2. Be currently licensed as a registered nurse in Virginia or hold a current multistate licensure privilege as a registered nurse; and

3. Provide evidence of current professional competency consisting of:

a. Current professional certification by the appropriate certifying agency identified in 18VAC90-30-90;

b. Continuing education hours taken during the period in which the license was lapsed, equal to the number required for licensure renewal during that period, not to exceed 120 hours; or

c. If applicable, current, unrestricted licensure or certification in another jurisdiction.

4. If qualified for autonomous practice, provide the required fee and attestation in accordance with 18VAC90-30-86.

C. An applicant for reinstatement of license following suspension or revocation shall:

1. Petition for reinstatement and pay the reinstatement fee;

2. Present evidence that he is currently licensed as a registered nurse in Virginia or hold a current multistate licensure privilege as a registered nurse; and

3. Present evidence that he is competent to resume practice as a licensed nurse practitioner in Virginia to include:

a. Current professional certification by the appropriate certifying agency identified in 18VAC90-30-90; or

b. Continuing education hours taken during the period in which the license was suspended or revoked, equal to the number required for licensure renewal during that period, not to exceed 120 hours.

The committee shall act on the petition pursuant to the Administrative Process Act, (§ 2.2-4000 et seq. of the Code of Virginia).

Part III
Practice of Licensed Nurse Practitioners

18VAC90-30-120. Practice of licensed nurse practitioners other than certified registered nurse anesthetists or certified nurse midwives.

A. A nurse practitioner licensed in a category other than certified registered nurse anesthetist or certified nurse midwife shall be authorized to render care in collaboration and consultation with a licensed patient care team physician as part of a patient care team or if determined by the boards to qualify in accordance with 18VAC90-30-86, authorized to practice autonomously without a practice agreement with a patient care team physician.

B. The practice shall be based on specialty education preparation as an advanced practice registered nurse in accordance with standards of the applicable certifying organization, as identified in 18VAC90-30-90.

C. All nurse practitioners licensed in any category other than certified registered nurse anesthetist or certified nurse midwife shall practice in accordance with a written or electronic practice agreement as defined in 18VAC90-30-10 or in accordance with 18VAC90-30-86.

D. The written or electronic practice agreement shall include provisions for:

1. The periodic review of patient charts or electronic patient records by a patient care team physician and may include provisions for visits to the site where health care is delivered in the manner and at the frequency determined by the patient care team;

2. Appropriate physician input in complex clinical cases and patient emergencies and for referrals; and

3. The nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits, and endorsements provided it is:

a. In accordance with the specialty license of the nurse practitioner and within the scope of practice of the patient care team physician;

b. Permitted by § 54.1-2957.02 or applicable sections of the Code of Virginia; and

c. Not in conflict with federal law or regulation.

E. The practice agreement shall be maintained by the nurse practitioner and provided to the boards upon request. For nurse practitioners providing care to patients within a hospital or health care system, the practice agreement may be included as part of documents delineating the nurse practitioner's clinical privileges or the electronic or written delineation of duties and responsibilities; however, the nurse practitioner shall be responsible for providing a copy to the boards upon request.

Part III
Practice Requirements

18VAC90-40-90. Practice agreement.

A. With the exception of exceptions listed in subsection E of this section, a nurse practitioner with prescriptive authority may prescribe only within the scope of the written or electronic practice agreement with a patient care team physician.

B. At any time there are changes in the patient care team physician, authorization to prescribe, or scope of practice, the nurse practitioner shall revise the practice agreement and maintain the revised agreement.

C. The practice agreement shall contain the following:

1. A description of the prescriptive authority of the nurse practitioner within the scope allowed by law and the practice of the nurse practitioner.

2. An authorization for categories of drugs and devices within the requirements of § 54.1-2957.01 of the Code of Virginia.

3. The signature of the patient care team physician who is practicing with the nurse practitioner or a clear statement of the name of the patient care team physician who has entered into the practice agreement.

D. In accordance with § 54.1-2957.01 of the Code of Virginia, a physician shall not serve as a patient care team physician to more than six nurse practitioners with prescriptive authority at any one time.

E. Exceptions.

1. A nurse practitioner licensed in the category of certified nurse midwife and holding a license for prescriptive authority may prescribe in accordance with a written or electronic practice agreement with a consulting physician or may prescribe Schedule VI controlled substances without the requirement for inclusion of such prescriptive authority in a practice agreement.

2. A nurse practitioner who is licensed in a category other than certified nurse midwife or certified registered nurse anesthetist and who has met the qualifications for autonomous practice as set forth in 18VAC90-30-86 may prescribe without a practice agreement with a patient care team physician.