Title of Regulation: 18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-10, 18VAC90-30-220).

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

Public Hearing Information: No public hearings are 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 23233-1463, 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 Boards of Nursing and 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 boards 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 and Medicine have amended 18VAC90-30-220 to specify that the standard of practice would prohibit a nurse practitioner 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 as amended by Chapters 41 and 721 of the 2020 Acts of Assembly.

Issues: The primary advantage to the public is protection for minors who might otherwise be subjected to conversion therapy; the boards do 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:

The Board of Nursing (Board) proposes to amend 18VAC90-30 Regulations Governing the Licensure of Nurse Practitioners (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 nurse practitioners (NPs) 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 the Board may "deny licensure or relicensure, revoke or suspend the license, or take other disciplinary action upon proof that the nurse practitioner has engaged in conversion therapy with a person under 18 years of age."

Estimated Benefits and Costs. DHP estimates that few, if any, NPs would be affected because conversion therapy has been considered harmful² to minors and contrary to the profession’s code of ethics.³ To the extent that licensed NPs are currently engaging in conversion therapy with individuals under 18 years of age, they would be in violation of state law. Any licensed NPs 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 NPs 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 NPs, 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 NPs 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 NPs.

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, 12,863 nurse practitioners are 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."

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.

Agency's Response to the Economic Impact Analysis: The Boards of Nursing and Medicine concur 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.

18VAC90-30-10. 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 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.

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

"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 and the licensed nurse 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 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.

18VAC90-30-220. Grounds for disciplinary action against the license of a licensed nurse practitioner.

The boards may deny licensure or relicensure, revoke or suspend the license, or take other disciplinary action upon proof that the nurse practitioner:

1. Has had a license or multistate privilege to practice nursing in this Commonwealth or in another jurisdiction revoked or suspended or otherwise disciplined;

2. Has directly or indirectly represented to the public that the nurse practitioner is a physician, or is able to, or will practice independently of a physician;

3. Has exceeded the authority as a licensed nurse practitioner;

4. Has violated or cooperated in the violation of the laws or regulations governing the practice of medicine, nursing or nurse practitioners;

5. Has become unable to practice with reasonable skill and safety to patients as the result of a physical or mental illness or the excessive use of alcohol, drugs, narcotics, chemicals or any other type of material;

6. Has violated or cooperated with others in violating or attempting to violate any law or regulation, state or federal, relating to the possession, use, dispensing, administration or distribution of drugs;

7. Has failed to comply with continuing competency requirements as set forth in 18VAC90-30-105;

8. Has willfully or negligently breached the confidentiality between a practitioner and a patient. A breach of confidentiality that is required or permitted by applicable law or beyond the control of the practitioner shall not be considered negligent or willful; or

9. Has engaged in unauthorized use or disclosure of confidential information received from the Prescription Monitoring Program, the electronic system within the Department of Health Professions that monitors the dispensing of certain controlled substances; or

10. Has engaged in conversion therapy with a person younger than 18 years of age.