Title of Regulation: 18VAC85-20. Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic (amending 18VAC85-20-10, 18VAC85-20-29).

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

Public Hearing Information:

February 18, 2021 - 12:00 p.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 201, Richmond, VA 23233-1463

Public Comment Deadline: April 16, 2021.

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. Section 54.1-2409.5 of the Code of Virginia establishes a prohibition on conversion therapy.

Purpose: The purpose of this regulatory action is to specify in regulations the interpretation of the board that conversion therapy has the potential for significant harm if practiced with persons younger than 18 years of age. The regulation defines the term, consistent with accepted usage within the profession and consistent with policy statements by state and national professional organizations.

Substance: The amendments to 18VAC85-20-29 to specify that the standard of practice would prohibit a physician from engaging in conversion therapy with a person younger than 18 years of age. Regulations define conversion therapy as it is defined in § 54.1-2409.5 of the Code of Virginia.

Issues: The primary advantage to the public is protection for minors who might otherwise be subjected to reparative or conversion therapy; the board does not believe there are disadvantages because practitioners can provide assistance to a person undergoing gender transition or psychological services that offer acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development. There are no advantages or disadvantages to the agency or the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medicine (Board) proposes to amend 18 VAC 85-20 Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic (regulation) in order to add a definition of conversion therapy and a stipulation that licensees shall not engage in conversion therapy with individuals under 18 years of age.

Background. Chapters 41 and 721 of the 2020 Acts of Assembly ban the use of conversion therapy on minors by any provider licensed by a health regulatory board with the Department of Health Professions (DHP).¹ Specifically, the Act creates § 54.1-2409.5 of the Code of Virginia, which defines conversion therapy as follows: Conversion therapy means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. Conversion therapy does not include counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change an individual's sexual orientation or gender identity. DHP reports that providers are more likely to be familiar with the regulations put forth by their licensing board than statutes. Thus, the Board seeks to amend the regulation to (i) define conversion therapy by referring the reader to § 54.1-2409.5, and (ii) explicitly state that practitioners shall not engage in conversion therapy with a person under 18 years of age.

Estimated Benefits and Costs. DHP estimates that few, if any, providers would be affected because conversion therapy has been considered harmful² to minors and contrary to the professions code of ethics.³ To the extent that the Board's licensees are currently engaging in conversion therapy with individuals under 18 years of age, they would be in violation of state law. Any current license-holders choosing to forfeit their licensure in favor of continuing to practice conversion therapy may only continue to do so if employed as a rabbi, priest, minister, or clergyman, as long as they belong to an established and legally cognizable church, denomination or sect and remain accountable to its established authority.⁴ Clients under age 18, who seek to receive, or continue receiving, conversion therapy would need to find providers who are not licensed by any board within DHP, which may result in some costs for the client depending on the availability of such providers. Conversely, the proposed amendments would benefit children and their parents to the extent that it prevents the use of a practice that has been found to be harmful to children and has been banned for such use under state law.

Businesses and Other Entities Affected. As mentioned, some licensed practitioners who may also have been working in a religious setting may have to alter their practice or else face disciplinary action, but DHP estimates that these are most likely a very small fraction of the overall number of license-holders.⁵ Although DHP does not have an estimate of the number of affected providers, the agency reports that the vast majority of current license-holders likely do not engage in conversion therapy at all (in either religious or secular settings) since it is not taught by any accredited program and has been considered contrary to the professional code of ethics in an informal capacity for more than a decade.

Small Businesses⁶ Affected. Although some licensed providers may be employed in a small business setting, DHP estimates that only a very small fraction of the overall number of license-holders would be affected by the regulation at all, and there is no reason to suggest that those affected are more likely to be working in a small business. Even so, the cost to providers of complying with the regulation is unlikely to be significant, and there are no alternatives to the regulation that would provide greater flexibility while also conforming to the Code of Virginia.

Localities⁷ Affected.⁸ The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed amendments are unlikely to affect the overall number of employed Doctors of Medicine or Doctors of Osteopathic Medicine.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use and value of private property. Real estate development costs are not affected.

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¹See http://leg1.state.va.us/cgi-bin/legp504.exe?201 ful CHAP0041.

²In a 2013 Position Statement, the American Psychiatric Association stated that it does not believe that same-sex orientation should or needs to be changed, and efforts to do so represent a significant risk of harm by subjecting individuals to forms of treatment which have not been scientifically validated and by undermining self-esteem when sexual orientation fails to change. No credible evidence exists that any mental health intervention can reliably and safely change sexual orientation; nor, from a mental health perspective does sexual orientation need to be changed. Downloaded from https://www.psychiatry.org/home/policy-finder

³In 2019, the Board also adopted a guidance document addressing conversion therapy: https://townhall.virginia.gov/L/ViewGDoc.cfm?gdid=6791

⁴As per COV § 54.1-3501 Exemption from requirements of licensure: The activities, including marriage and family therapy, counseling, or substance abuse treatment, of rabbis, priests, ministers or clergymen of any religious denomination or sect when such activities are within the scope of the performance of their regular or specialized ministerial duties, and no separate charge is made or when such activities are performed, whether with or without charge, for or under auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination or sect, and the person rendering service remains accountable to its established authority.

⁵According to the ABD, the overall numbers of licensees are as follows: 39,645 doctors of medicine and 4001 doctors of osteopathic medicine. DHP states that conversion therapy falls outside the scope of practice for podiatrists and chiropractors.

⁶Pursuant 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.

⁷Locality 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.

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

Summary:

Pursuant to Chapters 41 and 721 of the 2020 Acts of Assembly, the amendments (i) define conversion therapy as it is defined in § 54.1-2409.5 of the Code of Virginia and (ii) specify that the standard of practice for nurse practitioners prohibits a nurse practitioner from engaging in conversion therapy with a person younger than 18 years of age.

18VAC85-20-10. 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

Healing arts

Practice of chiropractic

Practice of medicine or osteopathic medicine

Practice of podiatry

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

"Approved institution" means any accredited school or college of medicine, osteopathic medicine, podiatry, or chiropractic located in the United States, its territories, or Canada.

"Conversion therapy" means any practice or treatment as defined in § 54.1-2409.5 A of the Code of Virginia.

"Principal site" means the location in a foreign country where teaching and clinical facilities are located.

18VAC85-20-29. Practitioner responsibility.

A. A practitioner shall not:

1. Knowingly allow subordinates to jeopardize patient safety or provide patient care outside of the subordinate's scope of practice or area of responsibility. Practitioners shall delegate patient care only to subordinates who are properly trained and supervised;

2. Engage in an egregious pattern of disruptive behavior or an interaction in a health care setting that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient; or

3. Exploit the practitioner and patient relationship for personal gain; or

4. Engage in conversion therapy with a person younger than 18 years of age.

B. Advocating for patient safety or improvement in patient care within a health care entity shall not constitute disruptive behavior provided the practitioner does not engage in behavior prohibited in subdivision A 2 of this section.