TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

Title of Regulation: 18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (adding 18VAC90-40-122).

Statutory Authority: §§ 54.1-2400 and 54.1-3408.02 of the Code of Virginia.

Public Hearing Information:

May 18, 2021 - 10:30 a.m. - Electronic only. The link and instructions to attend the electronic meeting will be in the agenda package posted prior to the meeting at http://www.dhp.virginia.gov and on the Virginia Regulatory Town Hall at https://townhall.virginia.gov.

Public Comment Deadline: July 9, 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. The specific statutory provisions for electronic prescribing and the authority for granting a waiver are found in § 54.1-3408.02 of the Code of Virginia.

Purpose: The purpose of this regulatory action is compliance with a statutory requirement to promulgate regulations setting out the conditions upon which the boards may grant a one-year waiver from the requirement for e-prescribing of a controlled substance containing an opioid. Since the circumstances may vary from practitioner to practitioner, the boards have used the conditions set forth in statute as the basis for the regulation and take into consideration in making a case-by-case decision on a waiver the health, safety, and welfare of a practitioner's patients.

Substance: 18VAC90-40-122 reiterates the requirement that takes effect on July 1, 2020, that a prescription for a controlled substance that contains an opioid must be issued as an electronic prescription unless the prescriber qualifies for an exemption provided in the law and provides for a one-year from the requirement if the practitioner can demonstrate economic hardship technological limitations or other exceptional circumstances beyond the practitioner's control.

Issues: There are no advantages or disadvantages to the public apart from those in the statutory language. Submitting opioid prescriptions electronically has been shown to reduce prescription fraud and thereby reduce the volume of opioids available for abuse or misuse. The waiver provision, in addition to the specific exemptions to electronic prescribing, will allow for continued prescribing for practitioners who are not able to comply for exceptional circumstances beyond their control. There are no particular advantages or disadvantages to the agency; there may be an advantage to the Commonwealth by a reduction in fraudulent prescriptions. Other matters of interest revolve around the implementation and application of statutory and regulatory provisions. Some prescribers are concerned about the requirement for electronic prescribing, which is required by statute by July 1, 2020.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to amend 18VAC90-40 Regulations for Prescriptive Authority for Nurse Practitioners in order to require that prescriptions of medications containing opioids be transmitted electronically from the prescribing authority to the pharmacist and to grant one-time waivers up to one year if a prescriber cannot transmit prescriptions electronically as of July 1, 2020. The proposed amendment would make permanent the existing emergency text and is intended to prevent the abuse of prescription drugs containing opioids.

Background. Section 54.1-3408.02 of the Code of Virginia states that prescriptions may be transmitted electronically or by facsimile machine and shall be treated as valid original prescriptions.¹ The 2017 Acts of Assembly (Chapters 115 and 429) amended and reenacted this section of the Code to require that any prescription for a controlled substance that contains an opiate shall be issued as an electronic prescription. The reenacted section containing this requirement took effect on July 1, 2020.² The same legislation also updated the definition of electronic prescriptions to be a written prescription that is generated on an electronic application and is transmitted to a pharmacy as an electronic data file; Schedule II through V prescriptions shall be transmitted in accordance with 21 CFR Part 1300.³

Subsequently, pursuant to a statutory change requested by the Board,⁴ Chapter 664 of the 2019 Acts of Assembly further amended this section to insert 10 exemptions to this requirement and to authorize the licensing health regulatory board to grant a hardship waiver for one year.⁵ Chapter 664 also required that the Board of Medicine, the Board of Nursing, the Board of Dentistry, and the Board of Optometry promulgate regulations to implement the waivers within 280 days of the acts enactment. Hence, the Board of Nursing promulgated an emergency regulation that became effective on December 23, 2019.⁶

The proposed amendment adds a section to the regulation (specifically 18VAC90-40-122) containing two sub-sections as quoted below.

18VAC90-40-122. Waiver for electronic prescribing.

A. Beginning July 1, 2020, a prescription for a controlled substance that contains an

opioid shall be issued as an electronic prescription consistent with § 54.1-3408.02 of the

Code of Virginia, unless the prescription qualifies for an exemption as set forth in

subsection C of that section.

B. Upon written request, the boards may grant a one-time waiver of the requirement of

subsection A of this section, for a period not to exceed one year, due to demonstrated

economic hardship, technological limitations that are not reasonably within the control of

the prescriber, or other exceptional circumstances demonstrated by the prescriber.

Thus, the proposed amendment would inform readers as to the electronic transmission requirement and the waiver that may be obtained, but readers would need to refer to § 54.1-3408.02 of the Code to find the exemptions that were added by Chapter 664 of the 2019 Acts of Assembly.

The exemptions provided in the Code would directly affect the potential cost of transmitting electronic prescriptions in a variety of settings. Thus, although they are not explicitly mentioned in the text of the regulation, the exemptions are listed here for the readers reference, with parenthetical notes inserted for clarity of context.

§ 54.1-3408.02 C. The requirements of subsection B (electronic transmission) shall not apply if:

1. The prescriber dispenses the controlled substance that contains an opioid directly to the patient or the patient's agent;

2. The prescription is for an individual who is residing in a hospital, assisted living facility, nursing home, or residential health care facility or is receiving services from a hospice provider or outpatient dialysis facility;

3. The prescriber experiences temporary technological or electrical failure or other temporary extenuating circumstance that prevents the prescription from being transmitted electronically, provided that the prescriber documents the reason for this exception in the patient's medical record;

4. The prescriber issues a prescription to be dispensed by a pharmacy located on federal property, provided that the prescriber documents the reason for this exception in the patient's medical record;

5. The prescription is issued by a licensed veterinarian for the treatment of an animal;

6. The FDA requires the prescription to contain elements that are not able to be included in an electronic prescription;

7. The prescription is for an opioid under a research protocol;

8. The prescription is issued in accordance with an executive order of the Governor of a declared emergency;

9. The prescription cannot be issued electronically in a timely manner and the patient's condition is at risk, provided that the prescriber documents the reason for this exception in the patient's medical record; or

10. The prescriber has been issued a waiver pursuant to subsection D (hardship waiver).

Further, Chapter 664 also amended § 54.1-3410 of the Code, effective July 1, 2020, which addresses when pharmacists may sell and dispense drugs. It adds a subsection to clarify that, A dispenser who receives a non-electronic prescription for a controlled substance containing an opioid is not required to verify that one of the exceptions set forth in § 54.1-3408.02 applies and may dispense such controlled substance pursuant to such prescription and applicable law.

Estimated Benefits and Costs. The 2017 Acts of Assembly (Chapters 115 and 429) also directed the Secretary of Health and Human Resources to convene a work group of interested stakeholders to review actions necessary for the implementation of electronic prescriptions for controlled substances and evaluate the burden on prescribers, including the inability of prescribers to comply with the deadline. The E-Prescribing Workgroups final report indicates that roughly 61% of prescribers and nearly 99% of pharmacies in Virginia had already adopted electronic prescriptions by 2018 and faced no additional costs.⁷ The Department of Health Professions (DHP) states that all nurse practitioners who had a proper application (approximately 150) have been granted a waiver thus far.

It appears those who needed a waiver have already been granted an extension and those with a waiver who need to implement e-prescribing before their waiver expires would face additional costs such as acquisition and integration of software and possibly internet connectivity. The public would benefit to the extent that increasing electronic prescriptions of controlled substances decreases diversion and instances of substance abuse.

Businesses and Other Entities Affected. The Board currently has approximately 8,700 nurse practitioners with prescriptive authority. Licensees would only be affected by the new requirements if (i) they prescribe medications containing opioids, (ii) they do not work in a type of facility that is included in the exemptions listed above, and (iii) they do not already use e-prescription technology. According to DHP, approximately 150 nurse practitioners have been granted a waiver.

Small Businesses⁸ Affected. DHP could not provide information on the number of licensees who may be proprietors or employees of a small business. However, there does not appear to be disproportionately higher costs for small businesses.

Localities⁹ Affected.¹⁰ The proposed amendments potentially affect prescribers and patients in all localities. The proposed amendments are unlikely to introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to substantively affect the use or value of private property. Real estate development costs are unlikely to be affected.

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¹See https://law.lis.virginia.gov/vacode/title54.1/chapter34/section54.1-3408.02/

²See http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+CHAP0429

³See Definitions effective July 1, 2020: https://law.lis.virginia.gov/vacode/title54.1/chapter34/section54.1-3401/

⁴See https://townhall.virginia.gov/L/GetFile.cfm?File=Meeting\30\26790\Agenda_DHP_26790_v1.pdf (page 172)

⁵See http://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0664

⁶See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8798

⁷https://rga.lis.virginia.gov/Published/2018/RD416

⁸Pursuant 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."

⁹"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.

¹⁰§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The proposed amendment adds a section to (i) reiterate the requirement that takes effect on July 1, 2020, that a prescription for a controlled substance that contains an opioid must be issued as an electronic prescription unless the prescriber qualifies for an exemption set out in the law and (ii) provides for a one-year from the requirement if the practitioner can demonstrate economic hardship technological limitations or other exceptional circumstances beyond the practitioner's control.

18VAC90-40-122. Waiver for electronic prescribing.

A. Beginning July 1, 2020, a prescription for a controlled substance that contains an opioid shall be issued as an electronic prescription consistent with § 54.1-3408.02 of the Code of Virginia, unless the prescription qualifies for an exemption as set forth in subsection C of § 54.1-3408.02.

B. Upon written request, the boards may grant a one-time waiver of the requirement of subsection A of this section for a period not to exceed one year, due to demonstrated economic hardship, technological limitations that are not reasonably within the control of the prescriber, or other exceptional circumstances demonstrated by the prescriber.