Title of Regulation: 1VAC20-40. Voter Registration (adding 1VAC20-40-80).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information:

July 6, 2011 - 2 p.m. -- The Capitol, House Room 2, Richmond, VA

Public Comment Deadline: July 1, 2011.

Agency Contact: Martha Brissette, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8925, FAX (804) 786-0760, or email martha.brissette@sbe.virginia.gov.

Summary:

The proposed regulation provides that absent military and overseas citizens who apply to register to vote or request an absentee ballot by emailing or faxing a signed Federal Post Card Application (FPCA) to the local voting official do not also have to mail the FPCA to the local voting official.

1VAC20-40-80. Application for registration on Federal Post Card Application (FPCA).

An applicant eligible for registration who applies for registration simultaneously with a request for an absentee ballot on a Federal Post Card Application (FPCA) as authorized by § 24.2-703 of the Code of Virginia may apply for registration as well as request an absentee ballot by facsimile transmission or scanned email attachment. An electronically submitted FPCA shall be sufficient to apply for registration and request an absentee ballot if signed and otherwise complete.

FORMS (1VAC20-40)

Federal Post Card Application, Standard Form 76A (rev. 10/05).

Title of Regulation: 4VAC20-270. Pertaining to Crabbing (amending 4VAC20-270-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2011.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This amendment establishes an alternate eight-hour daily time limit permit for any licensed crab pot and peeler pot fisherman. The alternate lawful daily time periods for the commercial harvesting of crabs by crab or peeler pot is from 4 a.m. to 12 noon from June 1 through August 31, and from 5 a.m. to 1 p.m. from September 1 through September 30. The amendment also allows crabbers to fish aboard the same vessel only if their eight-hour time limits are identical.

4VAC20-270-30. Daily time limits.

A. It shall be unlawful for any person licensed to catch and sell crabs taken by crab pot or peeler pot to take and harvest crabs from any crab pot or peeler pot, or to retrieve, bait, or set any crab pot or peeler pot, except during the lawful daily time periods described in this subsection or subsection B or C of this section. The lawful daily time periods for the commercial harvesting of crabs by crab pot or peeler pot shall be from 6 a.m. to 2 p.m. from March 17 through April 30 and September 1 through November 30, except as described in subsection C D of this section, and from 5 a.m. to 1 p.m. during the months of May, June, July, and August, except as specified in subsection B or C of this section. Crab pots or peeler pots already on board a boat at the end of the lawful daily time period, as defined in this subsection or subsection B or C of this section, may be set during the period starting immediately following the lawful daily time period and ending one hour after the lawful daily time period.

B. Any licensed crab pot or peeler pot fisherman who provides an opinion and supporting documentation from an attending physician to the commissioner of an existing medical condition that prevents him from adhering to the daily time limit established in subsection A of this section may be permitted by the commissioner or his designee to take and harvest crabs from his crab pot or peeler pot, or to retrieve, bait, or set his crab pot or peeler pot during an alternate eight-hour daily time limit. That alternative eight-hour daily time limit will be prescribed by the commissioner or his designee in accordance with the medical condition that forms a basis for the exception to the daily time limit as described in subsection A of this section.

Nothing in this regulation shall prohibit any licensed crab pot or peeler pot fisherman, who has been granted an exception to the eight-hour work schedule, on a medical basis, from using another licensed crab pot or peeler pot fisherman as a mate,; provided;, however, during the designated alternate work hours, only the crab pots or peeler pots of the fisherman receiving the exception shall be fished. Further, it shall be unlawful for the licensed crab fisherman, who has been granted an exception, or his mate, who is a licensed crab pot or peeler pot fisherman, to fish, set, retrieve, or bait, during the alternate work hours, any crab pot or peeler pot that is not owned and licensed by the fisherman granted the exception.

C. Any licensed crab pot or peeler pot fisherman who requests and obtains an alternate eight-hour daily time limit permit shall be authorized to take and harvest crabs from his crab pot or peeler pot or to retrieve, bait, or set his crab pot or peeler pot one hour earlier than described in subsection A of this section, only for the months of June, July, August, and September. During the months of March, April, May, October, and November, the lawful daily time period described in subsection A of this section applies to any crab pot or peeler pot licensee. The alternate lawful daily time periods for the commercial harvesting of crabs by crab pot or peeler pot shall be from 4 a.m. to 12 noon from June 1 through August 31 and from 5 a.m. to 1 p.m. from September 1 through September 30. Individuals must apply for this permit on an annual basis and shall adhere to the alternate daily time limit from the day the permit is issued through September 30, as well as subdivisions 1, 2, and 3 of this subsection.

1. It shall be unlawful for two or more licensed crab pot or peeler pot fishermen, or their agents, to crab aboard the same vessel if their authorized eight-hour daily time limits are not identical.

2. After January 1, 2012, requests for an alternate eight-hour time limit permit shall be submitted to the Marine Resources Commission annually and prior to May 15. Requests submitted on or after May 15 will not be considered.

3. Once any legal crab pot or peeler pot licensee obtains an alternate eight-hour daily time limit permit, that permittee shall be legally bound by the alternate eight-hour daily time limit as described in this subsection.

C. D. The lawful daily time periods for the commercial harvest of crabs by crab pot or peeler pot may be rescinded by the Commissioner of Marine Resources when he determines that a pending weather event is sufficient cause for the removal of crab pots from the tidal waters of the Commonwealth.

Title of Regulation: 4VAC20-450. Pertaining to the Taking of Bluefish (amending 4VAC20-450-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2011.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendment changes the commercial landings quota for bluefish to 1,113,727 pounds.

4VAC20-450-30. Commercial landings quota.

A. During the period of January 1 through December 31, commercial landings of bluefish shall be limited to 1,213,280 1,113,727 pounds.

B. When it is projected that 95% of the commercial landings quota has been realized, a notice will be posted to close commercial harvest and landings from the bluefish fishery within five days of posting.

C. It shall be unlawful for any person to harvest or land bluefish for commercial purposes after the closure date set forth in the notice described in subsection B of this section.

Title of Regulation: 5VAC5-20. State Corporation Commission Rules of Practice and Procedure (amending 5VAC5-20-260, 5VAC5-20-280).

Statutory Authority: § 12.1-13 of the Code of Virginia.

Public Hearing Information:

July 12, 2011 - 10 a.m. - State Corporation Commission, Tyler Building, 1300 East Main Street, 2nd Floor, Richmond, VA

Public Comment Deadline: July 5, 2011.

Agency Contact: Scott White, Deputy General Counsel, Financial Services, State Corporation Commission, 1300 East Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9671, FAX (804) 371-9240, or email scott.white@scc.virginia.gov.

Summary:

The proposed revisions to 5VAC5-20-260 and 5VAC5-20-280 of the State Corporation Commission's Rules of Practice and Procedure modify the opportunity for parties and the commission staff to obtain discovery in regulatory and adjudicatory proceedings. Some revisions are proposed to provide for additional discovery of the commission staff and the commission staff's experts in regulatory proceedings. Other revisions are proposed to permit the expansion of discovery regarding witnesses and items of evidence in adjudicatory proceedings.

AT RICHMOND, MAY 26, 2011

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. CLK-2011-00001

Ex Parte: In the matter concerning revised
State Corporation Commission Rules of
Practice and Procedure

ORDER FOR NOTICE AND HEARING TO
CONSIDER PROPOSED REVISIONS TO PART IV OF
THE COMMISSION'S RULES OF PRACTICE AND PROCEDURE

On January 11, 2011, the State Corporation Commission ("Commission") issued its Order for Notice of Proceeding to Consider Revisions to the Commission's Rules of Practice and Procedure ("Order for Notice of Proceeding") in this case. The Commission determined that it was appropriate to revisit Part IV of the Rules of Practice and Procedure, 5 VAC 5-20-10 et seq. ("Rules"), to consider issues related to discovery in Commission proceedings. The Commission invited interested parties to address, among other things, whether: (i) Commission Staff should be subject to additional discovery and, if so, what types of additional discovery and in what types of proceedings;¹ and (ii) whether experts or consultants retained by Commission Staff should be subject to discovery and, if so, what types of discovery and in what types of proceedings. The Commission also invited interested parties to address how subjecting Commission Staff to additional discovery may affect: (i) the Commission's ability to meet statutory deadlines in certain types of proceedings; (ii) available resources and efficiency in handling cases; (iii) the Commission Staff's ability to interact informally with regulated entities and their customers to effect resolution of disputes; (iv) the ability of the Commission's Staff to work with regulated entities in competitive industries; and (v) the protection of sensitive information provided to the Commission Staff by regulated entities.

The Commission received eight comments in response to its Order for Notice of Proceeding. The Virginia Committee for Fair Utility Rates and the Old Dominion Committee for Fair Utility Rates, representing large industrial customers, filed comments in support of maintaining the Commission's existing Rules. The following filed comments suggesting revisions to the Rules: Columbia Gas of Virginia, Inc., Washington Gas Light Company, Verizon Virginia Inc. and Verizon South Inc., and the Virginia Telecommunications Industry Association ("VTIA"). One individual filed comments adopting the position of the VTIA. The Office of Attorney General, Division of Consumer Counsel, filed a Notice of Participation, but raised no concerns with the current Rules. Shenandoah Valley Electric Cooperative filed comments in support of electronic filing and management of documents.

On April 8, 2011, the Commission Staff ("Staff") filed its Response to the comments filed herein, addressing the necessity for the suggested revisions. The Staff noted that no electric, water, or sewer utilities filed comments raising concerns with the Commission's Rules, nor did any companies or individuals associated with the financial services industry.

NOW THE COMMISSION, having considered this matter, is of the opinion and finds that certain revisions to Part IV of the Rules should be considered ("Proposed Rules"); that public notice and an opportunity for comment on the Proposed Rules should be given; and that a hearing should be convened to hear oral comment on the Proposed Rules. A copy of the Proposed Rules is attached hereto. The Commission's Division of Information Resources is directed to cause the Proposed Rules to be published in the Virginia Register of Regulations and to make the Proposed Rules available for inspection on the Commission's website.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's Division of Information Resources shall forward this Order to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(2) The Commission's Division of Information Resources shall make a downloadable version of the Proposed Rules available for access by the public at the Commission's website, http://www.scc.virginia.gov/case. The Clerk of the Commission shall make a copy of the Proposed Rules available, free of charge, in response to any written request for one.

(3) A public hearing shall be convened on July 12, 2011, at 10 a.m., in the Commission's Courtroom, Second Floor, Tyler Building, 1300 East Main Street, Richmond, Virginia, to receive oral comment from any interested persons on the Proposed Rules.

(4) Commission Staff and interested persons wishing to comment on the Proposed Rules may also file an original and fifteen (15) copies of any such comments with the Clerk, State Corporation Commission, 1300 East Main Street, Richmond, Virginia 23219, on or before July 5, 2011, making reference to Case No. CLK-2011-00001. Interested persons desiring to submit comments electronically may do so by following the instructions available at the Commission's website, http://www.scc.virginia.gov/caseinfo.htm.

(5) This matter is continued for further order of the Commission.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all public utilities providing service within the Commonwealth of Virginia and to representatives of the insurance, banking, and securities industries as shown on the attached appendices and to the individuals and organizations on the service list attached hereto.

_______________________________________

¹ The Rules currently provide for some discovery of Staff in adjudicatory proceedings in Rule 280. Additionally, the Rules require Commission Staff to file workpapers supporting its recommendations in actions pursuant to Rule 80 A.

5VAC5-20-260. Interrogatories to parties or requests for production of documents and things.

The commission staff and any party in a formal proceeding before the commission, other than a proceeding under 5VAC5-20-100 A, may serve written interrogatories or requests for production of documents upon a party, to be answered by the party served, or if the party served is an entity, by an officer or agent of the entity, who shall furnish to the staff or requesting party information as is known. Interrogatories or requests for production of documents, including workpapers pursuant to 5VAC5-20-270, that cannot be timely answered before the scheduled hearing date may be served only with leave of the commission for good cause shown and upon such conditions as the commission may prescribe. Such otherwise untimely interrogatories or requests for production of documents, including workpapers pursuant to 5VAC5-20-270, may not be served until such leave is granted. No interrogatories Interrogatories or requests for production of documents may be served upon a member of the commission staff except, or an expert or consultant filing testimony on behalf of the commission staff, in a proceeding under 5 VAC 5-20-80 to discover: (i) factual information that supports the workpapers submitted by the staff pursuant to 5VAC5-20-270, including electronic spreadsheets that include underlying formulas and assumptions; (ii) any other documents relied upon as a basis for recommendations or assertions in prefiled testimony, staff reports or exhibits filed by staff, or by an expert or consultant filing testimony on behalf of the staff; or (iii) the identity of other formal proceedings in which an expert or consultant filing testimony on behalf of the staff testified regarding the same or a substantially similar subject matter. The disclosure of communications within the commission shall not be required and, except for good cause shown, no interrogatories or requests for production of documents may be served upon a member of the commission staff, or an expert or consultant filing testimony on behalf of the staff, prior to the filing of staff's testimony. All interrogatories and requests for production of documents shall be filed with the Clerk of the Commission. Responses to interrogatories and requests for production of documents shall not be filed with the Clerk of the Commission.

The response to each interrogatory or document request shall identify by name the person making the response. Any objection to an interrogatory or document request shall identify the interrogatory or document request to which the objection is raised, and shall state with specificity the basis and supporting legal theory for the objection. Objections shall be served with the list of responses or in such manner as the commission may designate by order. Responses and objections to interrogatories or requests for production of documents shall be served within 10 days of receipt, unless otherwise ordered by the commission. Upon motion promptly made and accompanied by a copy of the interrogatory or document request and the response or objection that is subject to the motion, the commission will rule upon the validity of the objection; the objection otherwise will be considered sustained.

Interrogatories or requests for production of documents may relate to any matter not privileged, which is relevant to the subject matter involved, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of evidentiary value. It is not grounds for objection that the information sought will be inadmissible at the hearing if the information appears reasonably calculated to lead to the discovery of admissible evidence.

Where the response to an interrogatory or document request may only be derived or ascertained from the business records of the party questioned, from an examination, audit, or inspection of business records, or from a compilation, abstract, or summary of business records, and the burden of deriving or ascertaining the response is substantially the same for one entity as for the other, a response is sufficient if it (i) identifies by name and location all records from which the response may be derived or ascertained; and (ii) tenders to the inquiring party reasonable opportunity to examine, audit, or inspect the records subject to objection as to their proprietary or confidential nature. The inquiring party bears the expense of making copies, compilations, abstracts, or summaries.

5VAC5-20-280. Discovery applicable only to 5VAC5-20-90 proceedings.

This rule applies only to a proceeding in which a defendant is subject to a monetary penalty or injunction, or revocation, cancellation, or curtailment of a license, certificate of authority, registration, or similar authority previously issued by the commission to the defendant:

1. Discovery of material in possession of the commission staff. Upon written motion of the defendant, the commission shall permit the defendant to inspect and, at the defendant's expense, copy or photograph: (i) any relevant written or recorded statements, the existence of which is known, after reasonable inquiry, by the commission staff counsel assigned to the matter to be within the custody, possession, or control of commission staff, made by (a) the defendant, or representatives, or agents of the defendant if the defendant is other than an individual, or (b) any witness whom the commission staff intends to call to testify at the hearing (exclusive of investigative notes), to a commission staff member or law enforcement officer; (ii) designated books, tangible objects, papers, documents, or copies or portions thereof, that are within the custody, possession, or control of commission staff and that commission staff intends to introduce into evidence at the hearing; and (iii) the list of the witnesses that commission staff intends to call to testify at the hearing. Upon good cause shown, the commission or hearing examiner may direct the commission staff to withhold disclosure of the identity of the persons described in clause (iii).

A motion by the defendant under this rule shall be filed and served at least 10 20 days before the hearing date. The motion shall include all relief sought. A subsequent motion may be made only upon a showing of cause as to why the motion would be in the interest of justice. An order or ruling granting relief under this rule shall specify the time, place, and manner of making discovery and inspection permitted, and may prescribe such terms and conditions as the commission may determine.

The commission staff may also obtain the list of witnesses that the defendant intends to call to testify at the hearing, and inspect, copy, and photograph, at commission staff's expense, the evidence that the defendant intends to introduce into evidence at the hearing.

The commission staff and the defendant shall be required to produce the information described above as directed by the commission or hearing examiner, but not later than 10 days prior to the scheduled hearing; and the admission of any additional evidence not provided in accordance herewith shall not be denied solely on the basis that it was not produced timely, provided the additional evidence was produced to commission staff or the defendant as soon as practicable prior to the hearing, or prior to the introduction of such evidence at the hearing. The requirement to produce the information described in this section shall be in addition to any requirement by commission staff or the defendant to timely respond to an interrogatory or document request made pursuant to 5VAC5-20-260.

Nothing in this rule shall require the disclosure of any information, the disclosure of which is prohibited by statute. The disclosure of the results of a commission staff investigation or work product of commission staff counsel shall not be required.

2. Depositions. After commencement of a proceeding to which this rule applies, the commission staff or a party may take the testimony of (i) a party, or (ii) a person not a party for good cause shown to the commission or hearing examiner, other than a member of the commission staff, by deposition on oral examination or by written questions. Depositions may be used for any purpose for which they may be used in the courts of record of the Commonwealth. Except where the commission or hearing examiner finds that an emergency exists, no deposition may be taken later than 10 days in advance of the formal hearing. The attendance of witnesses at depositions may be compelled by subpoena. Examination and cross-examination of the witness shall be as at hearing. Depositions may be taken in the City of Richmond or in the town, city, or county in which the deposed person resides, is employed, or does business. The parties and the commission staff, by agreement, may designate another place for the taking of the deposition. Reasonable notice of the intent to take a deposition must be given in writing to the commission staff counsel and to each party to the action, stating the time and place where the deposition is to be taken. A deposition may be taken before any person (the "officer") authorized to administer oaths by the laws of the jurisdiction in which the deposition is to be taken. The officer shall certify his authorization in writing, administer the oath to the deponent, record or cause to be recorded the testimony given, and note any objections raised. In lieu of participating in the oral examination, a party or the commission staff may deliver sealed written questions to the officer, who shall propound the questions to the witness. The officer may terminate the deposition if convinced that the examination is being conducted in bad faith or in an unreasonable manner. Costs of the deposition shall be borne by the party noticing the deposition, unless otherwise ordered by the commission.

3. Requests for admissions. The commission staff or a party to a proceeding may serve upon a party written requests for admission. Each matter on which an admission is requested shall be stated separately. A matter shall be deemed admitted unless within 21 days of the service of the request, or some other period the commission may designate, the party to whom the request is directed serves upon the requesting party a written answer addressing or objecting to the request. The response shall set forth in specific terms a denial of the matter set forth or an explanation as to the reasons the responding party cannot truthfully admit or deny the matter set forth. Requests for admission shall be filed with the Clerk of the Commission and simultaneously served on commission staff counsel and on all parties to the proceeding.

Title of Regulation: 12VAC5-66. Regulations Governing Durable Do Not Resuscitate Orders (amending 12VAC5-66-10, 12VAC5-66-40, 12VAC5-66-50, 12VAC5-66-60, 12VAC5-66-70, 12VAC5-66-80).

Statutory Authority: § 32.1-153 of the Code of Virginia.

Effective Date: July 20, 2011.

Agency Contact: Michael Berg, Compliance Director, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7615, FAX (804) 864-7580, or email michael.berg@vdh.virginia.gov.

Summary:

These amendments to the regulations regarding DDNR orders add several definitions, specify that DDNR forms may be obtained from the Office of Emergency Medical Services' website, and allow legible electronic copies of DDNR orders to be used and recognized as valid by healthcare facilities. The changes made since publication of the proposed regulations amend and revise portions of the regulation to highlight corrections in terminology, clarify the honoring of the DDNR by all levels of healthcare providers, and allow utilization of current technology to obtain and implement the DDNR forms.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Part I
Definitions

12VAC5-66-10. Definitions.

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

"Agent" means an adult appointed by the declarant under an advance directive, executed or made in accordance with the provisions of § 54.1-2983 of the Code of Virginia to make health care decisions for him.

"Alternate Durable DNR [ jewelry ]" means a Durable DNR bracelet or necklace issued by a vendor approved by the Virginia Office of Emergency Medical Services. A Durable DNR Order [ Form ] must be obtained by the patient, from a physician, to obtain [ Alternate ] Durable DNR jewelry.

"Board" means the State Board of Health.

"Cardiac arrest" means the cessation of a functional heartbeat.

"Commissioner" means the State Health Commissioner.

"Durable Do Not Resuscitate Order [ Form ]" or "Durable DNR Order [ Form ]" means a written physician's order issued pursuant to § 54.1-2987.1 of the Code of Virginia in a form or forms authorized by the board to withhold cardiopulmonary resuscitation from an individual in the event of cardiac or respiratory arrest. For purposes of this chapter, cardiopulmonary resuscitation shall include cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, and defibrillation, administration of cardiac resuscitative medications, and related procedures. As the terms "advance directive" and "Durable Do Not Resuscitate Order" are used in this article, a Durable Do Not Resuscitate Order [ Form ] or other DNR Order is not and shall not be construed as an advance directive. When used in these regulations, the term "Durable DNR Order [ Form ]" shall include any authorized alternate form of identification Alternate Durable DNR [ Jewelry jewelry ] issued in conjunction with an original Durable DNR Order form [ Form ].

"Emergency Medical Services" or "EMS" means the services rendered by an agency licensed by the Virginia Office of Emergency Medical Services, an equivalent agency licensed by another state or a similar agency of the federal government when operating within this Commonwealth.

"Emergency medical services agency" or "EMS agency" means any person agency, licensed to engage in the business, service, or regular activity, whether or not for profit, of transporting and/or rendering immediate medical care to such persons who are sick, injured, wounded or otherwise incapacitated or helpless.

"Incapable of making an informed decision" means the inability of an adult patient, because of mental illness, mental retardation, or any other mental or physical disorder that precludes communication or impairs judgment [ and that has been diagnosed and certified in writing by his physician with whom he has a bona fide physician/patient relationship and a second physician or licensed clinical psychologist after personal examination of such patient ], to make an informed decision about providing, withholding, or withdrawing a specific medical treatment or course of treatment because he is unable to understand the nature, extent, or probable consequences of the proposed medical decision, or to make a rational evaluation of the risks and benefits of alternatives to that decision. For purposes of this article, persons who are deaf [ , or ] dysphasic or have other communication disorders [ , but ] who are otherwise mentally competent and able to communicate by means other than speech, shall not be considered incapable of making an informed decision. [ The determination that the patient is "incapable of making an informed decision" shall be made in accordance with § 54.1-2983.2 of the Code of Virginia. ]

"Office of EMS" or "OEMS" means the Virginia Office of Emergency Medical Services. The Virginia Office of Emergency Medical Services is a state office located within the Virginia Department of Health (VDH).

"Other Do Not Resuscitate Order" or "Other DNR Order" means a written physician's order [ not to resuscitate a patient in the event of cardiac or respiratory arrest ] on a form other than the authorized state standardized Durable DNR Form [ under policies and procedures of the health care facility to which the individual who is the subject of the order has been admitted ]. [ An Other DNR form must contain all the information required in subdivision 1 of 12VAC5-66-40 to be covered by these regulations. ]

"Person authorized to consent on the patient's behalf" means any person authorized by law to consent on behalf of the patient incapable of making an informed decision or, in the case of a minor child, the parent or parents having custody of the child or the child's legal guardian or as otherwise provided by law.

"Physician" means a person licensed to practice medicine in the Commonwealth of Virginia or in the jurisdiction where the treatment is to be rendered or withheld.

"Qualified emergency medical services personnel" means personnel certified to practice as defined by § 32.1-111.1 of the Code of Virginia when acting within the scope of their certification.

"Qualified health care facility" means a facility, program, or organization operated or licensed by the State Board of Health or by the Department of Behavioral Health and Developmental Services (DBHDS) or operated, licensed, or owned by another state agency.

"Qualified health care personnel" means any qualified emergency medical services personnel and any licensed healthcare provider or practitioner functioning in any facility, program or organization operated or licensed by the State Board of Health, or by the Department of Mental Health, Mental Retardation and Substance Abuse Services DBHDS or operated, licensed, or owned by another state agency.

"Respiratory arrest" means cessation of breathing.

Part III
Requirements and Provisions

12VAC5-66-40. The Durable Do Not Resuscitate Order Form.

The Durable DNR Order Form shall be a unique standardized document printed on distinctive paper, as approved by the board and consistent with these regulations. The following requirements and provisions shall apply to the approved Durable DNR Order Form.

1. Content of the Form - A Durable DNR Order Form shall contain, from a physician with whom the patient has a bona fide physician/patient relationship, a do not resuscitate determination, signature and the date of issue, the signature of the patient or, if applicable, the person authorized to consent on the patient's behalf.

2. Effective Period for a Signed Durable DNR Order [ Form ] - A signed Durable DNR Order shall remain valid until revoked [ in accordance with § 54.1-2987.1 of the Code of Virginia and 12VAC5-66-80 E or until rescinded, in accordance with accepted medical practice, by the provider who issued the Durable Do Not Resuscitate Order ].

3. Original Durable DNR Order Form - An original A Durable DNR Order or [ an ] alternate form Alternate Durable DNR [ Jewelry jewelry ] that complies with 12VAC5-66-50 shall be valid for the purposes of withholding or withdrawing cardiopulmonary resuscitation by qualified health care personnel in the event of cardiac or respiratory arrest.

4. Availability of the Durable DNR Order Form. The original Durable DNR Order or an alternate form Form that complies with [ 12VAC5-66-50 this section ] or [ an ] Alternate Durable DNR [ jewelry ] that complies with [ 12VAC5-66-60 12VAC5-66-50 ] shall be maintained and displayed readily available [ to qualified health care personnel ] at the patient's current location or residence in one of the places designated on the form, or should accompany the patient, if traveling. Photocopies of the Durable DNR Order may be given to other providers or persons for information, with the express consent of the patient or the patient's designated agent or the person authorized to consent on the patient's behalf. However, such photocopies of the Durable DNR Order are not valid for withholding cardiopulmonary resuscitation. [ Within any facility, program or organization operated or licensed by the State Board of Health or by DBHDS or operated, licensed, or owned by another state agency, the Durable DNR Order Form, Alternate Durable DNR, or an Other Durable DNR Order should be readily available to the patient. ]

5. Qualified health care personnel may honor a legible photocopy of a Durable DNR Form or Other Durable DNR Order [ as if it were an original ].

6. A patient who is traveling outside his home or between health care facilities should have an original or photocopied Durable DNR Order [ Form or , ] Other Durable DNR Order [ , or Alternate Durable DNR jewelry ] accompany him.

4. [ 7. Revocation of a Durable DNR Order Form - A Durable DNR Order may be revoked at any time by the patient (i) ] by physical cancellation [ physically destroying the Durable DNR Order Form or ] destruction by the patient or [ having another person in his presence and at his direction ] of [ destroy the Durable DNR Order Form and/or any alternate form of identification ]; [ or (ii) by oral expression of intent to revoke. The Durable DNR Order may also be revoked by the patient's designated agent or the person authorized to consent on the patient's behalf unless that person knows the patient would object to such revocation. If an Other Durable DNR Order exists and a patient or his authorized agent revokes the Durable DNR, health care personnel should assure the revocation is honored by updating or destroying the Other Durable DNR Order. ]

5. [ 8. 7. ] Distribution of Durable DNR Order Forms - Authorized The authorized Virginia Durable DNR Forms, with instructions, Order Form shall be a standardized form available only to physicians for download via the Internet from the Office of Emergency Medical Services website. The downloadable form will contain directions for completing the form and three identical Durable DNR Order Forms: one [ original ] form to be kept by the patient, the second to be placed in the patient's permanent medical record, and the third to be used [ by the patient ] for requesting [ an ] Alternate Durable DNR [ jewelry ].

[ 9. 8. ] Hard copies of the Durable DNR Order Form shall also be made available to physicians or licensed health care facilities by the Office of EMS. The Office of EMS may utilize a vendor to print and distribute the Durable DNR Order Form and a nominal fee [ can may ] be charged [ in an amount necessary ] to cover printing and shipping fees.

12VAC5-66-50. Authorized alternate forms of Durable DNR Order identification jewelry.

The board authorizes the issuance use of alternate forms of Alternate Durable DNR Order identification [ Jewelry jewelry ] in conjunction with the issuance of [ a ] Durable DNR Orders Order [ Forms ]. These alternate forms Alternate Durable DNR [ Jewelry jewelry ] items shall be uniquely-designed and uniquely-identifiable bracelets and necklaces that are available only from a vendor approved by the Virginia Department of Health, Office of EMS. These alternate forms of identification The Alternate Durable DNR [ Jewelry jewelry ] must be purchased from the approved vendor by the person to whom a Durable DNR Order Form applies, or that the person authorized to consent on the patient's behalf, and in conjunction with a. An original Durable DNR Order Form must be obtained from a physician and provided to the vendor in order to receive Alternate Durable DNR [ Jewelry jewelry ]. Such a necklace or bracelet may be utilized either to validate the Durable DNR Order Form or in place of an original Durable DNR Order Form in the event that the original order is not readily available at the site where the person to whom the order applies is found. In order to be honored by qualified health care personnel in place of the original standard Durable DNR Order Form, this alternate form of identification the Alternate Durable DNR [ Jewelry jewelry ] must contain the minimum information approved by the State Board of Health in 12VAC5-66-60.

12VAC5-66-60. Other DNR Orders.

[ A. Nothing in these regulations shall be construed to preclude licensed health care practitioners from following any other Other ] written orders of a physician not to resuscitate a patient in the event of cardiac or respiratory arrest. [ Do Not Resuscitate Order in accordance with the applicable policies and procedures of the health care facility in which they practice. ]

B. Additionally, nothing in these regulations or in the definition of Durable DNR Orders provided in § 54.1-2982 of the Code of Virginia shall be construed to limit the authorization of qualified health care personnel to follow Do Not Resuscitate Orders other than Durable DNR Orders that are written by a physician. Such other DNR Orders issued in this manner, to be honored by EMS personnel, shall

[ A. B. ] Qualified health care personnel [ can are authorized to ] honor [ do not resusicitate any Other Do Not Resuscitate ] (DNR) [ orders by a physician that are written in a format other than using the standardized Durable DNR Order Form to not resuscitate a patient in the event of a cardiac or respiratory arrest Order as if it were a Durable Do Not Resuscitate Order ] when the patient is currently admitted to a hospital or other qualified health care facility [ . If an Other Durable DNR Order is used, it must contain or is in transit from a qualified health care facility provided that such order includes ] the same information as listed in subdivision 1 of 12VAC5-66-40 and the time of issuance by the physician in accordance with accepted medical practice, for patients who are currently admitted to a hospital or other health care facility [ , except that an Other DNR Order shall not be required to include the signature of the patient or a person authorized to consent for the patient on the order itself ].

[ C. B. ] Nothing in these regulations shall prohibit qualified health care personnel from following any direct verbal order issued by a licensed physician not to resuscitate a patient in cardiac or respiratory arrest when such physician is physically present in attendance of such patient.

Part IV
Implementation Procedures

12VAC5-66-70. Issuance of a Durable DNR Order [ Form or Other DNR Order ].

A. A Durable DNR Order [ Form or Other DNR Order ] may be issued to a patient by a physician, with whom the patient has established a bona fide physician/patient relationship, as defined by the Board of Medicine in their current guidelines, only with the consent of the patient or, if the patient is a minor or is otherwise incapable of making an informed decision regarding consent for such an order, upon the request of and with the consent of the person authorized to consent on the patient's behalf.

B. The use of the authorized Durable DNR Order Form is encouraged to provide uniformity throughout the health care continuum.

C. The authorized Durable DNR Order [ Form ] can be honored by qualified health care [ providers personnel ] in any setting.

D. [ Patients who are not within a qualified health care facility must have an authorized Durable DNR Order Form to be honored by qualified health care providers Qualified health care personnel are authorized to honor only a Durable DNR Order on an authorized form or Alternate DNR jewelry [ , except ] as provided in 12VAC5-66-60 of these regulations. ]

[ E. Other DNR Orders can be honored any time when a patient is within a qualified health care facility or during transfer between qualified health care facilities when the patient remains attended by qualified health care providers. ]

B. [ F. The E. Prior to issuing a Durable DNR Order, the ] physician shall explain to the patient or the person authorized to consent on the patient's behalf, the alternatives available, including issuance of a Durable DNR Order [ for response in the event of cardiac or respiratory arrest ]. If the option of a Durable DNR Order is agreed upon, the physician shall have the following responsibilities:

1. Explain [ when ] the [ circumstances under which qualified health care personnel may follow a ] Durable DNR [ Form is valid Order ].

2. Explain how to and who may revoke the Durable DNR [ Order ].

3. Document the patient's full legal name.

4. Document the execution date of the Durable DNR [ Order ].

1. 5. Obtain the signature of the patient or the person authorized to consent on the patient's behalf on all three forms [ , : ] the [ patients patient's ] copy, medical record copy, and the copy used for obtaining [ Alternate ] DNR [ Jewelry jewelry ].

2. Execute and date the Physician Order on the Durable DNR Order Form.

6. Make sure that the [ issuing ] physician's name is clearly printed and the form is signed.

7. [ Note Record ] the contact telephone number for the issuing physician.

3. 8. Issue the original Durable DNR Order Form, [ and the ] patient and [ Alternate ] DNR [ Jewelry jewelry ] copies to the patient and maintain the medical record copy in the patient's medical file.

4. Explain how to and who may revoke the Durable DNR Order.

C. [ G. F. ] The person to whom a Durable DNR [ order Order ] applies or the person authorized to consent on the patient's behalf must present the following information to the approved vendor in order to purchase and be issued an approved Alternate Durable DNR necklace or bracelet. The necklace or bracelet must contain the following information:

1. The following words: Do Not Resuscitate;

1. 2. The patient's full legal name;

2. The Durable DNR number on the Virginia Durable DNR form or a number unique to the patient that is assigned by the vendor;

3. The physician's name and phone number; and

4. The Virginia Durable DNR issuance date.

12VAC5-66-80. Durable DNR Order [ Form ] implementation procedures.

A. Qualified health care personnel shall comply with the following general procedures and published Virginia Durable DNR Order Implementation Protocols when caring for a patient who is in cardiac or respiratory arrest and who is known or suspected to have a Durable DNR Order in effect.

B. Initial assessment and intervention. Perform routine patient assessment and resuscitation or intervention until the a valid Durable DNR Order [ Form, Alternate DNR jewelry, ] or other Other DNR Order validity status is can be confirmed, as follows:

1. Determine the presence of a Durable DNR Order [ Form ] or, [ an ] approved alternate form of Alternate Durable DNR identification [ Jewelry jewelry ], or Other DNR Order.

2. If the patient is within a qualified health care facility [ or in transit between qualified health care facilities ], any qualified health care personnel may honor [ a written physician's order that contains the items noted in 12VAC5-66-40 (a do not resuscitate determination, signature and the date of issue, the signature of the patient or, if applicable, the person authorized to consent on the patient's behalf) an Other DNR Order as set forth in 12VAC5-66-60 ].

2. 3. Determine that the Durable DNR [ item form or Alternate DNR jewelry ] is not altered.

3. 4. Verify, through driver's license or other identification with photograph and signature or by positive identification by a family member or other person who knows the patient, that the patient in question is the one for whom the Durable DNR Order [ Form, Alternate DNR jewelry, ] or other Other DNR Order was issued.

4. If no Durable DNR Order or approved alternate form of identification is found, ask a family member or other person to look for the original Durable DNR Order Form or other written DNR order.

[ 5. If a Durable DNR Order Form or Alternate Durable DNR is not immediately available, care should be provided until a valid Durable DNR Form, Alternate Durable DNR, or Other DNR Order can be produced. ]

[ 5. 6. ] If [ the Durable any type of ] DNR Order or approved alternate form of identification is not intact or has been altered or other [ , Alternate DNR jewelry, or Other DNR Order is ] produced, [ intact, unaltered, and verified as issued for the patient, ] the qualified health care personnel [ is presented to ] qualified health care personnel [ , it shall may consider ] the Durable DNR Order to [ be ] invalid [ considered it ] valid.

C. Resuscitative measures to be withheld or withdrawn. In the event of cardiac or respiratory arrest of a patient with a valid Durable DNR Order [ Form ], Alternate Durable DNR [ Jewelry jewelry ], or Other DNR Order under the criteria set forth above in subsection B of this section, [ the following procedures should be withheld or withdrawn by ] qualified health care personnel [ shall withhold or withdraw cardiopulmonary resuscitation (CPR) ] unless otherwise directed by a physician physically present at the patient location [ :. CPR shall include: ]

1. [ Cardiopulmonary Resuscitation (CPR) Cardiac compression ];

2. Endotracheal Intubation or other advanced airway management;

3. 2. Artificial ventilation;

4. 3. Defibrillation; or

4. Endotracheal Intubation or other advanced airway management including supra-glottic devices such as the LMA, or other airway devices that pass beyond the oral pharynx, such as the Combi Tube, PTL etc.; or

5. [ Continuation Administration ] of related procedures or cardiac resuscitation medications as prescribed by the patient's physician or medical protocols.

D. Procedures to provide comfort care or to alleviate pain. In order to provide comfort care or to alleviate pain for a patient with a valid Durable DNR Order or other DNR Order of any type [ or Other DNR Order ] the following interventions may be provided, depending on the needs of the particular patient:

1. Airway management (excluding intubation or advanced, including positioning, nasal or pharyngeal airway management) placement;

2. Suctioning;

3. Supplemental oxygen delivery devices;

4. Pain medications or intravenous fluids;

5. Bleeding control;

6. Patient positioning; or

7. Other therapies deemed necessary to provide comfort care or to alleviate pain.

E. Revocation.

1. [ These regulations shall not authorize any qualified health care personnel to follow a Durable DNR Order for any patient who is able to, and does, express to such qualified health care personnel the desire to be resuscitated in the event of cardiac or respiratory arrest.

If the patient is a minor or is otherwise incapable of making an informed decision, the expression of the desire that the patient be resuscitated by the person authorized to consent on the patient's behalf shall so revoke the qualified health care personnel's authority to follow a Durable DNR Order or other DNR Order If a patient is able to, and does, express to a health care provider or practitioner the desire to be resuscitated in the event of cardiac or respiratory arrest, such expression shall revoke the provider's or practitioner's authority to follow a Durable DNR Order or Other DNR Order. In no case shall any person other than the patient have authority to revoke a Durable DNR Order or Other DNR Order executed upon the request of and with the consent of the patient himself.

If the patient is a minor or is otherwise incapable of making an informed decision and the Durable DNR Order or Other DNR Order was issued upon the request and with the consent of the person authorized to consent on the patient's behalf, then the expression by said person to a health care provider or practitioner of the desire that the patient be resuscitated shall so revoke the provider's or practitioner's authority to follow a Durable DNR Order or Other DNR Order ].

2. The expression of such desire to be resuscitated prior to cardiac or respiratory arrest shall constitute revocation of the order; however, a new order may be issued upon consent of the patient or the person authorized to consent on the patient's behalf.

3. The provisions of this section shall not authorize any qualified emergency medical services personnel or licensed health care provider or practitioner who is attending the patient at the time of cardiac or respiratory arrest to provide, continue, withhold or withdraw treatment if such provider or practitioner knows that taking such action is protested by the patient incapable of making an informed decision. No person shall authorize providing, continuing, withholding or withdrawing treatment pursuant to this section that such person knows, or upon reasonable inquiry ought to know, is contrary to the religious beliefs or basic values of a patient incapable of making an informed decision or the wishes of such patient fairly expressed when the patient was capable of making an informed decision.

F. Documentation. When following a Durable DNR Order or [ other Other ] DNR Order for a particular patient [ admitted to a qualified health care facility ], qualified health care personnel shall document [ care rendered or withheld as required by facility policies and procedures. When following a Durable DNR Order or Other DNR Order for a particular patient who is not admitted to a qualified health care facility or who is in transit from a health care facility, qualified health care personnel shall document ] in the patient's medical record the care rendered or withheld in the following manner:

1. Use standard patient care reporting documents (i.e. patient chart, pre-hospital patient care report).

2. Describe assessment of patient's [ cardiac or respiratory arrest ] status.

3. Document which identification (Durable DNR Order [ Form ], Alternate Durable DNR [ jewelry ], or other Other DNR Order or alternate form of identification) was used to confirm Durable DNR status and that it was intact, not altered, not canceled or not officially revoked.

4. Record the name of the patient's physician who issued the Durable DNR Order Number and name of patient's physician [ Form ], or Other DNR Order.

5. If the patient is being transported, keep the Durable DNR Order [ Form ], Alternate Durable DNR [ jewelry ], or Other DNR Order with the patient.

G. General considerations. The following general principles shall apply to implementation of [ all ] Durable DNR Orders.

1. If there is misunderstanding with family members or others present at the patient's location or if there are other concerns about following the Durable DNR Order or [ other Other ] DNR Order, contact the patient's physician or EMS medical control for guidance.

2. If there is any question about the validity of a Durable DNR Order, resuscitative measures should be administered until the validity of the Durable DNR Order [ or Other DNR Order ] is established.

Title of Regulation: 18VAC15-60. Mold Inspector and Remediator Regulations.

Agency Contact: David Dick, Executive Director, Virginia Board for Asbestos, Lead, Mold, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (804) 527-4297, or email alhi@dpor.virginia.gov.

FORMS (18VAC15-60)

Mold License Application, A506-33MLIC (5/11).

Mold Education Verification Form, A506-33MED (5/11).

Mold Experience Verification Form, A506-33MEXP (5/11).

Mold Inspectors/Remediators Association Membership Form, A506-33MAMF (5/11).

Mold Remediator Supervisor/Inspector Disclosure Form, A506-33MDIS (5/11).

Mold Training Provider/Course Application, A506-33MTCAPP (5/11).

Title of Regulation: 18VAC85-130. Regulations Governing the Practice of Licensed Midwives (amending 18VAC85-130-80; adding 18VAC85-130-81).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.9 of the Code of Virginia.

Public Hearing Information:

June 23, 2011 - 8:30 a.m. - Department of Health Professions, 9960 Mayland Drive, 2nd Floor Conference Center, Board Room 2, Richmond, VA

Public Comment Deadline: August 19, 2011.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4621, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Medicine to promulgate regulations to administer the regulatory system. A specific regulatory mandate for the Board of Medicine regarding midwifery is found in § 54.1-2957.9 of the Code of Virginia.

Purpose: The purpose of the planned regulatory action is compliance with a legislative mandate for the adoption of regulations relating to disclosures of risk to certain patients. Chapter 646 of the 2009 Acts of Assembly requires the board to adopt regulations governing the practice of midwifery, upon consultation with the Advisory Board on Midwifery. The regulations must require midwives to disclose to their patients, when appropriate, (i) options for consultation and referral to a physician and (ii) evidence-based information on health risks associated with birth of a child outside of a hospital or birthing center, as defined in § 32.1-11.5 E of the Code of Virginia, including but not limited to risks associated with vaginal births after a prior cesarean section, breech births, births by women experiencing high-risk pregnancies, and births involving multiple gestation.

The amendments set out the conditions or risks factors for which it is appropriate to disclose the options available for referral and consultation and to provide the evidence-based information to a client about risks associated with birth outside of a hospital or birthing center for women with certain conditions or clinical situations.

The Code of Virginia requires that regulations be consistent with the North American Registry of Midwives' (NARM) current job description for the profession. The NARM Position Paper on the Practice of Midwifery states that: Certified Professional Midwives (CPMs) have demonstrated the knowledge and skills to provide full prenatal, birth, and postpartum care to low-risk women; to recognize deviations from normal; and to refer, consult, or transfer care if appropriate. The proposed regulation is consistent with the NARM model in which midwives are expected to appropriately assess deviations from normal and to disclose to clients those conditions or situations in which an out-of-hospital birth is not appropriate or those that may present certain risks to a woman or her baby.

The goal for the amended regulation is to ensure that women are adequately informed of any risk for home birth associated with certain health conditions or prior birth history. Regulation of risk disclosure requires that women are adequately assessed and informed of a condition that presents increased risk for home birth and ensures that the choice of provider and birth setting are made with full disclosure of risk.

Substance: The proposed regulations include:

1. A requirement that, upon initiation of care, the midwife reviews the woman's medical history, including records from prior pregnancies, to identify pre-existing conditions that require disclosure of risk for home birth. The midwife will also be required to continually assess the pregnant woman in order to recognize conditions that may arise during the course of care that require disclosure of risk for home birth.

2. A listing of those factors or criteria that require disclosure that the client is not an appropriate candidate for an out-of-hospital birth, and a listing of those factors or criteria that require disclosure of options for consultation and referral.

3. If factors or criteria have been identified that may indicate health risks associated with birth of a child outside of a hospital, a requirement for the midwife to provide evidence-based information on such risks. Such information would be specified by the board for certain conditions and would include statements and evidence from both the medical and midwifery models of care.

4. A requirement for documentation in the client record of the assessment, the presence or absence of high risks and, if appropriate, the provision of disclosures and evidence-based information.

Issues: The primary advantage to the public (clients of midwifery) is the assurance that an appropriate assessment of health risks has been made and documented, that disclosure of such risks has been given to the client, and that evidence-based information on risks has been made available. The advantage to licensed midwives is the existence of a clear regulatory standard by which to practice. There are no disadvantages, because consumer choice will not be abridged. There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation: Pursuant to Chapter 646 of the 2009 Acts of Assembly, the Board of Medicine (Board) proposes to amend its Regulations Governing Licensed Midwives to include requirements for midwives to disclose evidence-based information on health risks associated with birth of a child outside of a hospital or birthing center. The Board proposes to promulgate a list of for risk factors for which midwives will need to provide information to be determined later in guidance documents.

Result of Analysis. There is insufficient evidence to ascertain whether benefits will outweigh costs for these proposed changes.

Estimated Economic Impact. In 2005, the General Assembly passed a law which required the licensure of midwives and mandated the parameters of that licensure. In 2009, the legislature amended this law (Chapter 646) to require midwives to disclose evidence-based information on risk factors that might influence a patient's choice as to whether she will give birth in a hospital or in some other setting with the aid of a midwife. The Board now proposes to amend its regulations to reflect the requirements of Chapter 646 and to list the risk factors for which midwives will have to provide evidence-based information. The regulations as amended specify that the evidence-based information will be in guidance documents and shall include evidence-based research and clinical expertise from both the medical and midwifery models of care.

To the extent that the evidence-based information provided to the clients of midwives allows them to make informed decisions about whether to continue with a plan to give birth outside of a hospital, these regulations will provide a benefit. For clients who choose to give birth in a hospital when that choice forestalls health problems, or even death, for themselves or their infants, those benefits will be quite large. For licensed midwives, the costs that will be accrued on account of this regulatory change will likely include some minimal costs for copying the information to be provided and lost fees for any individuals who decide on a hospital birth as a direct result of the information provided. To the extent that individuals who could have safely given birth at home are steered by the information toward a hospital delivery instead, they will incur costs that include the price differential between a home birth and a hospital birth, possible thousands of dollars, and the loss of the comfort that being in their home would likely provide them. Whether the benefits of this regulatory change outweigh the costs for this regulatory change will depend on several factors which likely include how well midwives and their potential clients currently assess any risk factors and how balanced, and therefore useful, the information that will be provided turns out to be.

Businesses and Entities Affected. The Department of Health Professions (DHP) reports that the Board currently licenses 49 midwives, all of which are independent small businesses. These individuals, any individuals who choose to be licensed in the future and pregnant women who choose home birth and use the services of midwives will all be affected by these regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have little impact on employment in the Commonwealth given the very small population of individuals that currently practice midwifery.

Effects on the Use and Value of Private Property. This regulatory action may decrease the value of midwife businesses if fewer individuals choose to use midwife services on account of these regulations.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth will likely incur minimal costs for copying information to be provided to their clients and may incur lost income.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Costs for small businesses will likely be minimized by providing the best available information on all risk factors so that individuals are not steered away from home birth unnecessarily.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Board of Medicine has the following response to the economic impact analysis prepared by the Department of Planning and Budget for 18VAC85-130, Regulations Governing the Practice of Licensed Midwives.

On page 2 of the EIA, it states: To the extent that individuals who could have safely given birth at home are steered by the information toward a hospital delivery instead, they will incur costs that include the price differential between a home birth and a hospital birth, possible thousands of dollars, and the loss of the comfort that being in their home would likely provide them.

The EIA does not account for the costs associated with a high-risk pregnancy for which disclosures and options for referral were not appropriately provided. If a woman with a high risk pregnancy is not provided information about risks, the result could potentially be a delivery that has become problematic, necessitating a transfer to a hospital, an emergency delivery and care of a newborn in a NICU. Those costs could range from $35,000 to $50,000. If the infant remained in NICU beyond seven days, the costs extend from $3,500 to $4,800 for each additional day.

Ultimately, the goal is a viable, healthy infant, regardless of the birth setting. There can be no comparison of costs for that purpose.

Summary:

The proposed regulation requires midwives to disclose to their clients options for consultation and referral to a physician and evidence-based information on health risks associated with a home birth when certain antepartum or intrapartum conditions exist.

Part III
Practice Standards

18VAC85-130-80. Disclosure General disclosure requirements.

A licensed midwife shall provide written disclosures to any client seeking midwifery care. The licensed midwife shall review each disclosure item and obtain the client's signature as evidence that the disclosures have been received and explained. Such disclosures shall include:

1. A description of the licensed midwife's qualifications, experience, and training;

2. A written protocol for medical emergencies, including hospital transport, particular to each client;

3. A statement as to whether the licensed midwife has hospital privileges;

4. A statement that a licensed midwife is prohibited from prescribing, possessing or administering controlled substances;

5. A description of the midwife's model of care;

6. A copy of the regulations governing the practice of midwifery;

7. A statement as to whether the licensed midwife carries malpractice or liability insurance coverage and, if so, the extent of that coverage;

8. An explanation of the Virginia Birth-Related Neurological Injury Compensation Fund and a statement that licensed midwives are currently not covered by the fund; and

9. A description of the right to file a complaint with the Board of Medicine and with NARM and the procedures and contact information for filing such complaint.

18VAC85-130-81. Disclosures on health risks.

A. Upon initiation of care, a midwife shall review the client's medical history in order to identify pre-existing conditions or indicators that require disclosure of risk for home birth. The midwife shall offer standard tests and screenings for evaluating risks and shall document client response to such recommendations. The midwife shall also continually assess the pregnant woman and baby in order to recognize conditions that may arise during the course of care that require disclosure of risk for birth outside of a hospital or birthing center.

B. If any of the following conditions or risk factors are presented, the midwife shall request and review the client's medical history, including records of the current or previous pregnancies; disclose to the client the risks associated with a birth outside of a hospital or birthing center; and provide options for consultation and referral. If the client is under the care of a physician for any of the following medical conditions or risk factors, the midwife shall consult with or request documentation from the physician as part of the risk assessment for birth outside of a hospital or birthing center.

1. Antepartum risks:

Conditions requiring ongoing medical supervision or ongoing use of medications;

Active cancer;

Cardiac disease;

Severe renal disease -- active or chronic;

Severe liver disease -- active or chronic;

HIV positive status with AIDS;

Uncontrolled hyperthyroidism;

Chronic obstructive pulmonary disease;

Seizure disorder requiring prescriptive medication;

Psychiatric disorders;

Current substance abuse known to cause adverse effects;

Essential chronic hypertension over 140/90;

Significant glucose intolerance;

Genital herpes;

Inappropriate fetal size for gestation;

Significant 2nd or 3rd trimester bleeding;

Incomplete spontaneous abortion;

Abnormal fetal cardiac rate or rhythm;

Uterine anomaly;

Platelet count less than 120,000;

Previous uterine incision and/or myomectomy with review of surgical records and/or subsequent birth history;

Isoimmunization to blood factors;

Body mass index (BMI) equal to or greater than 30;

History of hemoglobinopathies;

Acute or chronic thrombophlebitis;

Anemia (hematocrit less than 30 or hemoglobin less than 10 at term);

Blood coagulation defect;

Pre-eclampsia/eclampsia;

Uterine ablation;

Placental abruption;

Placenta previa at onset of labor;

Persistent severe abnormal quantity of amniotic fluid;

Suspected chorioamnionitis;

Ectopic pregnancy;

Pregnancy lasting longer than 42 completed weeks with an abnormal nonstress test;

Any pregnancy with abnormal fetal surveillance tests;

Rupture of membranes 24 hours before the onset of labor;

Position presentation other than vertex at term or while in labor; or

Multiple gestation.

2. Intrapartum risks:

Current substance abuse;

Documented intrauterine growth retardation (IUGR)/small for gestational age (SGA) at term;

Suspected uterine rupture;

Active herpes lesion in an unprotectable area;

Prolapsed cord or cord presentation;

Suspected complete or partial placental abruption;

Suspected placental previa;

Suspected chorioamnionitis;

Pre-eclampsia/eclampsia;

Thick meconium stained amniotic fluid without reassuring fetal heart tones and birth is not imminent;

Position presentation other than vertex at term or while in labor;

Abnormal auscultated fetal heart rate pattern unresponsive to treatment or inability to auscultate fetal heart tones;

Excessive vomiting, dehydration, or exhaustion unresponsive to treatment;

Blood pressure greater than 140/90 that persists or rises and birth is not imminent;

Maternal fever equal to or greater than 100.4°F; or

Labor or premature rupture of membrane (PROM) less than 37 weeks according to due date.

3. If a risk factor first develops when birth is imminent, the individual midwife must use judgment taking into account the health and condition of the mother and baby in determining whether to proceed with a home birth or arrange transportation to a hospital.

C. If the risks factors or criteria have been identified that may indicate health risks associated with birth of a child outside of a hospital or birthing center, the midwife shall provide evidence-based information on such risks. Such information shall be specified by the board in guidance documents and shall include evidence-based research and clinical expertise from both the medical and midwifery models of care.

D. The midwife shall document in the client record the assessment of all health risks that pose a potential for a high risk pregnancy and, if appropriate, the provision of disclosures and evidence-based information.

Title of Regulation: 18VAC112-20. Regulations Governing the Practice of Physical Therapy (amending 18VAC112-20-10, 18VAC112-20-50, 18VAC112-20-65, 18VAC112-20-70, 18VAC112-20-131, 18VAC112-20-135, 18VAC112-20-136, 18VAC112-20-140).

Statutory Authority: §§ 54.1-2400 and 54.1-3473 of the Code of Virginia.

Public Hearing Information:

June 30, 2011 - 9 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 200, Henrico, VA

Public Comment Deadline: July 20, 2011.

Agency Contact: Lisa R. Hahn, Executive Director, Board of Physical Therapy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4674, FAX (804) 527-4413, or email ptboard@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility of the Board of Physical Therapy to promulgate regulations that are reasonable and necessary to administer effectively the regulatory system.

Section 54.1-3474 of the Code of Virginia requires the board to promulgate regulations establishing requirements to ensure continuing competency of physical therapists (PTs) and physical therapist assistants (PTAs), which may include continuing education, testing, or such other requirements as the board may determine to be necessary.

Purpose: The purpose of the regulatory action is to provide more flexibility and accountability in traineeships for graduates of approved or unapproved (foreign) programs in physical therapy and for applicants who have not had recent clinical experience and are seeking licensure by endorsement or reinstatement. Additionally, the goal of the amendments is to provide more opportunities for obtaining the necessary continuing education hours for physical therapists and physical therapist assistants to maintain current licensure.

During the periodic review of regulations conducted in 2008, there were several comments and issues relating to traineeships and continuing competency that the board elected to refer to its Legislative/Regulatory Committee. In consultation with the Virginia Physical Therapy Association's representatives and a faculty member at VCU Health Systems, the committee and the board concluded that it should retain traineeships but make certain adjustments that would offer more flexibility and licensee oversight. Certain requirements were added for more accountability and greater assurance of public safety including provisions that should result in adequate supervision of the trainee, appropriate diagnosis and treatment being provided by a trainee, and a continuity of supervision. For the sake of public health and safety, a trainee should be so identified to the patient, and the progress notes from the trainee should be countersigned to document physical therapist oversight and responsibility for patient care.

Substance: The board has recommended the following substantive changes:

1. Clarify 18VAC112-20-70 to specify that the unlicensed graduate applying for a traineeship has been scheduled to take the national examination.

2. Amend 18VAC112-20-140 to limit the number of supervisors for each trainee to no more than two PTs to ensure some continuity in training.

3. Amend 18VAC112-20-140 to specify that a trainee be designated as a "PT Trainee" or "PTA Trainee" for the sake of public safety.

4. Amend 18VAC112-20-140 to state that all patient progress notes must be countersigned by the trainee's supervisor. This includes computerized/electronic patient care notes to have documentation that the trainee is being supervised.

5. Amend 18VAC112-20-50 D, which currently requires a 1,000-hour full-time traineeship to allow a part-time traineeship, but include a limitation of two years on the amount of time allotted for completion. The time limit could be waived or extended for hardship circumstances in which the trainee needs additional time for completion.

6. Allow the PTA traineeship to be a fewer number of hours than the PT traineeship, since PTA education programs are shorter than PT education programs, and the scope of services provided by the PTA is less than that provided by a PT. Traineeship hours for an unlicensed graduate or an inactive PTA would be reduced from 480 hours to 320 hours.

7. Eliminate "face-to-face" requirement for Type 1 courses to allow home study, online, or audio courses offered by the approving organizations to be counted, but increase the number of hours that must be Type 1 from 15 to 20 per biennium for PTs and from 10 to 15 for PTAs. Type 2 hours would be reduced from 15 to 10 for PTs and from 20 to 15 for PTAs, so the total number of hours would remain the same.

8. Grant credit for all or part of the continuing competency hours for licensee who takes the new Practice Review Tool (PRT) of the Federation of State Boards of Physical Therapy. The amount of credit would be designated depending on whether the PT used the PRT as a self-assessment or as a measure of competency by meeting the standard set by the federation.

9. Amend sections on endorsement, reinstatement, or reactivation to use the PRT of the Federation of State Boards of Physical Therapy as a competency assessment for PT's who have not been in active clinical practice. The PRT would be used to allow the PT to assess his areas of weakness, so a precepted experience could be more directed. Additionally, PTs who meet the standard on the review tool would be granted credit for some of the traineeship hours.

At its meeting on May 13, 2011, the board adopted additional changes in response to public comment:

1. Defined FSBPT as the Federation of State Boards of Physical Therapy (18VAC112-20-10).

2. Clarified that the PRT is an assessment "developed and administered by FSBPT" (18VAC112-20-10).

3. Clarified that the Coursework Evaluation Tool is based on the year of graduation (18VAC112-20-50).

4. Clarified that an applicant for licensure by endorsement may document meeting the standard on the PRT, rather than passing the PRT (18VAC112-20-65).

5. Added the FSBPT to the list of organizations that may approve or provide continuing education (18VAC112-20-131).

6. Clarified that the PRT is an assessment rather than an examination and PT’s meet the standard of the assessment rather than pass the examination (18VAC112-20-131).

7. Clarified that an applicant for reactivation of an inactive license may document meeting the standard on the PRT, rather than passing the PRT (18VAC112-20-135).

8. Clarified that an applicant for reinstatement of a lapsed license may document meeting the standard on the PRT, rather than passing the PRT (18VAC112-20-135).

Issues: The primary advantage to the public would be greater protection for patients in the practice of trainees by closer supervision of their practice and identification of their status as a trainee. Use of the PRT will offer applicants and licensees information about their weaknesses in current practice knowledge to allow them to direct continuing education (CE) or supervised practice in those areas. Elimination of the face-to-face requirement for Type 1 hours will reduce the financial burden of PTs and PTAs while continuing to ensure the safety of the public by allowing licensees to fulfill their CE requirements with less time from practice and patient care. There are no disadvantages to the public.

There are no advantages or disadvantages to the agency or the Commonwealth.

Background: The Board of Physical Therapy published proposed amendments to 18VAC112-20 in 27:12 VA.R. 1454-1461 February 14, 2011. In response to comment, the board adopted additional changes to the proposed regulation at its meeting on May 13, 2011, as detailed in the Substance section. The board is publishing the reproposed regulations with amendments suggested by Federation of State Boards of Physical Therapy (FSBPT) and has re-opened the comment period for an additional 30 days. Changes made since publication of the proposed amendments are shown in brackets.

Summary:

The proposed amendments, as originally proposed, (i) offer the option of passage of the Practice Review Tool in lieu of some training hours for applicants returning to practice through reinstatement, reactivation, or endorsement; (ii) reduce the traineeship hours for physical therapist assistants; (iii) allow part-time traineeships for graduates of nonapproved physical therapy schools; (iv) limit the numbers of supervisors for each trainee; (v) require co-signing of trainee documentation in patient records and identification of a trainee for the patient; and (vi) eliminate the requirement that Type 1 continuing education training be face-to-face.

Since publication of the proposed regulations, the board amended the regulations to clarify that the Practice Review Tool is not an examination but an assessment of which a physical therapist may or may not meet the standard. Since the PRT may be counted as continuing education, the board added FSBPT to the list of continuing education providers. The board also clarified that the coursework evaluation tool used to evaluate education in a non-accredited PT program should be based on the year of graduation.

Part I
General Provisions

18VAC112-20-10. Definitions.

In addition to the words and terms defined in § 54.1-3473 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 a minimum of 160 hours of professional practice as a physical therapist or physical therapist assistant within the 24-month period immediately preceding renewal. Active practice may include supervisory, administrative, educational or consultative activities or responsibilities for the delivery of such services.

"Approved program" means an educational program accredited by the Commission on Accreditation in Physical Therapy Education of the American Physical Therapy Association.

"CLEP" means the College Level Examination Program.

"Contact hour" means 60 minutes of time spent in continuing learning activity exclusive of breaks, meals or vendor exhibits.

"Direct supervision" means a physical therapist or a physical therapist assistant is physically present and immediately available and is fully responsible for the physical therapy tasks or activities being performed.

"Discharge" means the discontinuation of interventions in an episode of care that have been provided in an unbroken sequence in a single practice setting and related to the physical therapy interventions for a given condition or problem.

"Evaluation" means a process in which the physical therapist makes clinical judgments based on data gathered during an examination or screening in order to plan and implement a treatment intervention, provide preventive care, reduce risks of injury and impairment, or provide for consultation.

"Face-to-face" means learning activities or courses obtained in a group setting or through interactive, real-time technology.

"FCCPT" means the Foreign Credentialing Commission on Physical Therapy.

[ "FSBPT" means the Federation of State Boards of Physical Therapy. ]

"General supervision" means a physical therapist shall be available for consultation.

"National examination" means the examinations developed and administered by the Federation of State Boards of Physical Therapy and approved by the board for licensure as a physical therapist or physical therapist assistant.

"PRT" means the Practice Review Tool for competency assessment [ given by the Federation of State Boards of Physical Therapy developed and administered by FSBPT ].

"Support personnel" means a person who is performing designated routine tasks related to physical therapy under the direction and supervision of a physical therapist or physical therapist assistant within the scope of this chapter.

"TOEFL" means the Test of English as a Foreign Language.

"Trainee" means a person seeking licensure as a physical therapist or physical therapist assistant who is undergoing a traineeship.

"Traineeship" means a period of active clinical practice during which an applicant for licensure as a physical therapist or physical therapist assistant works under the direct supervision of a physical therapist approved by the board.

"TSE" means the Test of Spoken English.

"Type 1" means face-to face continuing learning activities offered by an approved organization as specified in 18VAC112-20-131.

"Type 2" means continuing learning activities which may or may not be offered by an approved organization but shall be activities considered by the learner to be beneficial to practice or to continuing learning.

18VAC112-20-50. Education requirements: graduates of schools not approved by an accrediting agency approved by the board.

A. An applicant for initial licensure as a physical therapist who is a graduate of a school not approved by an accrediting agency approved by the board shall submit the required application and fee and provide documentation of the physical therapist's certification by a report from the FCCPT or of the physical therapist eligibility for licensure as verified by a report from any other credentialing agency approved by the board that substantiates that the physical therapist has been evaluated in accordance with requirements of subsection B of this section.

B. The board shall only approve a credentialing agency that:

1. Utilizes the [ FSBPT ] Coursework Evaluation Tool for Foreign Educated Physical Therapists [ of the Federation of State Boards of Physical Therapy , based on the year of graduation, ] and utilizes original source documents to establish substantial equivalency to an approved physical therapy program;

2. Conducts a review of any license or registration held by the physical therapist in any country or jurisdiction to ensure that the license or registration is current and unrestricted or was unrestricted at the time it expired or was lapsed; and

3. Verifies English language proficiency by passage of the TOEFL and TSE examination or the TOEFL iBT, the Internet-based tests of listening, reading, speaking and writing or by review of evidence that the applicant's physical therapy program was taught in English or that the native tongue of the applicant's nationality is English.

C. An applicant for licensure as a physical therapist assistant who is a graduate of a school not approved by the board shall submit with the required application and fee the following:

1. Proof of proficiency in the English language by passing TOEFL and TSE or the TOEFL iBT, the Internet-based tests of listening, reading, speaking, and writing by a score determined by the board or an equivalent examination approved by the board. TOEFL iBT or TOEFL and TSE may be waived upon evidence that the applicant's physical therapist assistant program was taught in English or that the native tongue of the applicant's nationality is English.

2. A copy of the original certificate or diploma that has been certified as a true copy of the original by a notary public, verifying his graduation from a physical therapy curriculum. If the certificate or diploma is not in the English language, submit either:

a. An English translation of such certificate or diploma by a qualified translator other than the applicant; or

b. An official certification in English from the school attesting to the applicant's attendance and graduation date.

3. Verification of the equivalency of the applicant's education to the educational requirements of an approved program for physical therapist assistants from a scholastic credentials service approved by the board.

D. An applicant for initial licensure as a physical therapist or a physical therapist assistant who is not a graduate of an approved program shall also submit verification of having successfully completed a full-time 1,000-hour traineeship within a two-year period under the direct supervision of a licensed physical therapist. The board may grant an extension beyond two years for circumstances beyond the control of the applicant, such as temporary disability or mandatory military service.

1. The traineeship shall be in accordance with requirements in 18VAC112-20-140.

2. The traineeship requirements of this part may be waived if the applicant for a license can verify, in writing, the successful completion of one year of clinical physical therapy practice as a licensed physical therapist or physical therapist assistant in the United States, its territories, the District of Columbia, or Canada, equivalent to the requirements of this chapter.

18VAC112-20-65. Requirements for licensure by endorsement.

A. A physical therapist or physical therapist assistant who holds a current, unrestricted license in the United States, its territories, the District of Columbia, or Canada may be licensed in Virginia by endorsement.

B. An applicant for licensure by endorsement shall submit:

1. Documentation of having met the educational requirements prescribed in 18VAC112-20-40 or 18VAC112-20-50. In lieu of meeting such requirements, an applicant may provide evidence of clinical practice during the five years immediately preceding application for licensure in Virginia with a current, unrestricted license issued by another U.S. jurisdiction;

2. The required application, fees, and credentials to the board;

3. A current report from the Healthcare Integrity and Protection Data Bank (HIPDB) and a current report from the National Practitioner Data Bank (NPDB);

4. Evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another U.S. jurisdiction, or 60 hours obtained within the past four years; and

5. Documentation of passage of an examination equivalent to the Virginia examination at the time of initial licensure or documentation of passage of an examination required by another state at the time of initial licensure in that state and active, clinical practice with a current, unrestricted license for at least five years prior to applying for licensure in Virginia.

For the purpose of this subsection, active, clinical practice shall mean at least 2,500 hours of patient care over a five-year period.

C. A physical therapist or physical therapist assistant seeking licensure by endorsement who has not actively practiced physical therapy for at least 320 hours within the four years immediately preceding his application for licensure shall first successfully:

1. Successfully complete 480 hours in a traineeship in accordance with requirements in 18VAC112-20-140; or

2. Document [ passage of that he meets the standard of ] the PRT within the two years preceding application for licensure in Virginia and successfully complete 320 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

D. A physical therapist assistant seeking licensure by endorsement who has not actively practiced physical therapy for at least 320 hours within the four years immediately preceding his application for licensure shall successfully complete 320 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

18VAC112-20-70. Traineeship for unlicensed graduate scheduled to sit for the national examination.

A. Upon approval of the president of the board or his designee, an unlicensed graduate who is registered with the Federation of State Boards of Physical Therapy to sit for the national examination may be employed as a trainee under the direct supervision of a licensed physical therapist until the results of the national examination are received.

B. The traineeship, which shall be in accordance with requirements in 18VAC112-20-140, shall terminate two working days following receipt by the candidate of the licensure examination results.

C. The unlicensed graduate may reapply for a new traineeship while awaiting to take the next examination. A new traineeship shall not be approved for more than one year following the receipt of the first examination results.

18VAC112-20-131. Continued competency requirements for renewal of an active license.

A. In order to renew an active license biennially, a physical therapist or a physical therapist assistant shall complete at least 30 contact hours of continuing learning activities within the two years immediately preceding renewal. In choosing continuing learning activities or courses, the licensee shall consider the following: (i) the need to promote ethical practice, (ii) an appropriate standard of care, (iii) patient safety, (iv) application of new medical technology, (v) appropriate communication with patients, and (vi) knowledge of the changing health care system.

B. To document the required hours, the licensee shall maintain the Continued Competency Activity and Assessment Form that is provided by the board and that shall indicate completion of the following:

1. A minimum of 15 20 of the contact hours required for physical therapists and 10 15 of the contact hours required for physical therapist assistants shall be in Type 1 face-to-face courses. For the purpose of this section, "course" means an organized program of study, classroom experience or similar educational experience that is directly related to the clinical practice of physical therapy and approved or provided by one of the following organizations or any of its components:

a. The Virginia Physical Therapy Association;

b. The American Physical Therapy Association;

c. Local, state or federal government agencies;

d. Regionally accredited colleges and universities;

e. Health care organizations accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO);

f. The American Medical Association - Category I Continuing Medical Education course; [ and ]

g. The National Athletic Trainers Association [ ; and

h. The FSBPT ].

2. No more than 15 10 of the contact hours required for physical therapists and 20 15 of the contact hours required for physical therapist assistants may be Type 2 activities or courses, which may or may not be offered by an approved organization but which shall be related to the clinical practice of physical therapy. Type 2 activities may include but not be limited to consultation with colleagues, independent study, and research or writing on subjects related to practice.

3. Documentation of specialty certification by the American Physical Therapy Association may be provided as evidence of completion of continuing competency requirements for the biennium in which initial certification or recertification occurs.

4. Documentation of graduation from a transitional doctor of physical therapy program may be provided as evidence of completion of continuing competency requirements for the biennium in which the physical therapist was awarded the degree.

5. A physical therapist who can document that he has taken the PRT may receive 10 hours of Type 1 credit for the biennium in which the assessment [ examination tool ] was taken. A physical therapist who can document that he has [ passed met the standard of ] the PRT may receive 20 hours of Type 1 credit for the biennium in which the assessment [ examination was passed tool was taken ].

C. A licensee shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure by examination in Virginia.

D. The licensee shall retain his records on the completed form with all supporting documentation for a period of four years following the renewal of an active license.

E. The licensees selected in a random audit conducted by the board shall provide the completed Continued Competency Activity and Assessment Form and all supporting documentation within 30 days of receiving notification of the audit.

F. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

G. The board may grant an extension of the deadline for continuing competency requirements for up to one year for good cause shown upon a written request from the licensee prior to the renewal date.

H. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

I. Physical therapists holding certification to provide direct access without a referral shall include four contact hours as part of the required 30 contact hours of continuing education in courses related to clinical practice in a direct access setting.

18VAC112-20-135. Inactive license.

A. A physical therapist or physical therapist assistant who holds a current, unrestricted license in Virginia shall, upon a request on the renewal application and submission of the required renewal fee of $70 for a physical therapist and $35 for a physical therapist assistant, be issued an inactive license. The fee for the renewal of an inactive license due December 31, 2010, shall be $60 for a physical therapist and $30 for a physical therapist assistant.

1. The holder of an inactive license shall not be required to meet active practice requirements.

2. An inactive licensee shall not be entitled to perform any act requiring a license to practice physical therapy in Virginia.

B. A physical therapist or physical therapist assistant who holds an inactive license may reactivate his license by:

1. Paying the difference between the renewal fee for an inactive license and that of an active license for the biennium in which the license is being reactivated; and

2. Providing proof of: a. Active active practice hours in another jurisdiction equal to those required for renewal of an active license in Virginia for the period in which the license has been inactive.

a. If the inactive physical therapist licensee does not meet the requirement for active practice, the license may be reactivated by completing 480 hours in a traineeship that meets the requirements prescribed in 18VAC112-20-140 or documenting [ passage that he has met the standard ] of the PRT within the two years preceding application for licensure in Virginia and successfully completing 320 hours in a traineeship in accordance with requirements in 18VAC112-20-140.

b. If the inactive physical therapist assistant licensee does not meet the requirement for active practice, the license may be reactivated by completing 320 hours in a traineeship that meets the requirements prescribed in 18VAC112-20-140; and

b. Completion of 3. Completing the number of continuing competency hours required for the period in which the license has been inactive, not to exceed four years.

18VAC112-20-136. Reinstatement requirements.

A. A physical therapist or physical therapist assistant whose Virginia license is lapsed for two years or less may reinstate his license by payment of the renewal and late fees as set forth in 18VAC112-20-150 and completion of continued competency requirements as set forth in 18VAC112-20-131.

B. A physical therapist or physical therapist assistant whose Virginia license is lapsed for more than two years and who is seeking reinstatement shall:

1. Apply for reinstatement and pay the fee specified in 18VAC112-20-150; Practice physical therapy in another jurisdiction for at least 320 hours within the four years immediately preceding applying for reinstatement or successfully complete 480 hours as specified in 18VAC112-20-140; and

2. Complete the number of continuing competency hours required for the period in which the license has been lapsed, not to exceed four years; and

3. Have actively practiced physical therapy in another jurisdiction for at least 320 hours within the four years immediately preceding applying for reinstatement.

a. If a physical therapist licensee does not meet the requirement for active practice, the license may be reinstated by completing 480 hours in a traineeship that meets the requirements prescribed in 18VAC112-20-140 or documenting [ passage that he has met the standard ] of the PRT within the two years preceding application for licensure in Virginia and successfully completing 320 hours in a traineeship in accordance with requirements in 18VAC112-20-140.

b. If a physical therapist assistant licensee does not meet the requirement for active practice, the license may be reinstated by completing 320 hours in a traineeship that meets the requirements prescribed in 18VAC112-20-140.

18VAC112-20-140. Traineeship requirements.

A. The traineeship: shall be (i) shall be in a facility that serves as a clinical education facility for students enrolled in an accredited program educating physical therapists in Virginia, (ii) is approved by the board, and (iii) is under the direction and supervision of a licensed physical therapist.

B. Supervision and identification of trainees:

1. There shall be a limit of two physical therapists assigned to provide supervision for each trainee.

2. The supervising physical therapist shall countersign patient documentation (i.e., notes, records, charts) for services provided by a trainee.

3. The trainee shall wear identification designating them as a "physical therapist trainee" or a "physical therapist assistant trainee."

C. Completion of traineeship.

1. The physical therapist supervising the inactive practice trainee shall submit a report to the board at the end of the required number of hours on forms supplied by the board.

2. If the traineeship is not successfully completed at the end of the required hours, as determined by the supervising physical therapist, the president of the board or his designee shall determine if a new traineeship shall commence. If the president of the board determines that a new traineeship shall not commence, then the application for licensure shall be denied.

3. The second traineeship may be served under a different supervising physical therapist and may be served in a different organization than the initial traineeship. If the second traineeship is not successfully completed, as determined by the supervising physical therapist, then the application for licensure shall be denied.