Title of Regulation: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-10, 18VAC90-19-230).

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

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: April 16, 2021.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, 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 Nursing 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 amendments define the term, consistent with accepted usage within the profession and consistent with policy statements by state and national professional organizations.

Substance: The Board of Nursing has amended 18VAC90-19-230 to specify that the standard of practice prohibits a nurse 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 Nursing (Board) proposes to amend 18 VAC 90-19 Regulations Governing the Practice of Nursing (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 bans 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 registered nurses (RNs) and clinical nurse specialists 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 prohibit licensees and holders of multistate licensure privilege from engaging in conversion therapy with a person under 18 years of age.

Estimated Benefits and Costs. DHP estimates that few, if any, RNs or clinical nurse specialists 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 licensed RNs or clinical nurse specialists are currently engaging in conversion therapy with individuals under 18 years of age, they would be in violation of state law. Any licensed RNs or clinical nurse specialists 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 RNs and clinical nurse specialists 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 RNs or clinical nurse specialists, 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 nursing 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 RNs or clinical nurse specialists 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 RNs or clinical nurse specialists.

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=6784.

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, there are 111,710 RNs and 406 clinical nurse specialists currently licensed by the Board.

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 Economic Impact Analysis: The Board of Nursing 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.

18VAC90-19-10. Definitions.

In addition to words and terms defined in §§ 54.1-3000 and 54.1-3030 of the Code of Virginia, the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active practice" means activities performed, whether or not for compensation, for which an active license to practice nursing is required.

"Board" means the Board of Nursing.

"CGFNS" means the Commission on Graduates of Foreign Nursing Schools.

"Contact hour" means 50 minutes of continuing education coursework or activity.

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

"National certifying organization" means an organization that has as one of its purposes the certification of a specialty in nursing based on an examination attesting to the knowledge of the nurse for practice in the specialty area.

"NCLEX" means the National Council Licensure Examination.

"NCSBN" means the National Council of State Boards of Nursing.

"Primary state of residence" means the state of a person's declared fixed, permanent, and principal home or domicile for legal purposes.

18VAC90-19-230. Disciplinary provisions.

A. The board has the authority to deny, revoke, or suspend a license or multistate licensure privilege issued, or to otherwise discipline a licensee or holder of a multistate licensure privilege upon proof that the licensee or holder of a multistate licensure privilege has violated any of the provisions of § 54.1-3007 of the Code of Virginia. For the purpose of establishing allegations to be included in the notice of hearing, the board has adopted the following definitions:

1. Fraud or deceit in procuring or maintaining a license means, but shall not be limited to:

a. Filing false credentials;

b. Falsely representing facts on an application for initial license, reinstatement, or renewal of a license; or

c. Giving or receiving assistance in the taking of the licensing examination.

2. Unprofessional conduct means, but shall not be limited to:

a. Performing acts beyond the limits of the practice of professional or practical nursing as defined in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia, or as provided by §§ 54.1-2901 and 54.1-2957 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of nursing without adequate training or when competency has not been maintained;

c. Obtaining supplies, equipment, or drugs for personal or other unauthorized use;

d. Employing or assigning unqualified persons to perform functions that require a licensed practitioner of nursing;

e. Falsifying or otherwise altering patient, employer, student, or educational program records, including falsely representing facts on a job application or other employment-related documents;

f. Abusing, neglecting, or abandoning patients or clients;

g. Practice of a clinical nurse specialist beyond that defined in 18VAC90-19-220 and § 54.1-3000 of the Code of Virginia;

h. Representing oneself as or performing acts constituting the practice of a clinical nurse specialist unless so registered by the board;

i. Delegating nursing tasks to an unlicensed person in violation of the provisions of Part VI (18VAC90-19-240 et seq.) of this chapter;

j. Giving to or accepting from a patient or client property or money for any reason other than fee for service or a nominal token of appreciation;

k. Obtaining money or property of a patient or client by fraud, misrepresentation, or duress;

l. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the nurse uses his professional position to take advantage of the vulnerability of a patient, a client, or his family, to include actions that result in personal gain at the expense of the patient or client, or a nontherapeutic personal involvement or sexual conduct with a patient or client;

m. Violating state laws relating to the privacy of patient information, including § 32.1-127.1:03 the Code of Virginia;

n. Providing false information to staff or board members in the course of an investigation or proceeding;

o. Failing to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required in § 63.2-1606 of the Code of Virginia; or

p. Engaging in conversion therapy with a person younger than 18 years of age; or

q. Violating any provision of this chapter.

B. Any sanction imposed on the registered nurse license of a clinical nurse specialist shall have the same effect on the clinical nurse specialist registration.