VIRGINIA BOARD OF MEDICINE UPDATE: NEW LICENSURE BY ENDORSEMENT REGULATIONS, LEGISLATIVE ACTIONS, AND FINAL OPIOID AND BUPRENORPHINE REGULATIONS — Hancock Daniel
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VIRGINIA BOARD OF MEDICINE UPDATE: NEW LICENSURE BY ENDORSEMENT REGULATIONS, LEGISLATIVE ACTIONS, AND FINAL OPIOID AND BUPRENORPHINE REGULATIONS

August 8, 2018

On September 5, 2018, the Virginia Board of Medicine’s (“BOM”) “Licensure by Endorsement” regulations will become effective.  These regulations, published in the Virginia Register on August 8, 2018, will enable applicants for licensure by the BOM to expedite the licensure process if certain conditions are met.  The Medical Society of Virginia and other provider groups strongly supported adoption of these regulations.

At the Friday, April 13 meeting of the Executive Committee of the BOM, draft regulations were adopted to create the new process of Licensure by Endorsement by physician applicants.[1]  The regulations provide an expedited process for physicians who hold licenses in other states and who meet certain regulatory requirements to be licensed in the Commonwealth.  The specific regulations are located at 18-VAC-85-20-141.

The BOM will be creating a separate application for physicians to seek Licensure by Endorsement.  Note, there are no changes anticipated for the regular process of application for licensure with the BOM and that will remain available to all applicants.  Licensure by Endorsement is a voluntary pathway/option for applicants.

The requirements that must be satisfied by an applicant for Licensure by Endorsement focuses on license requirements and work requirements.  The regulations require the applicant to meet a total of six specific requirements.  Two of the requirements center on licensure.  Specifically, the applicant must “hold at least one current, unrestricted license in a U.S. jurisdiction or Canada for five years immediately preceding the application to the Board.”  Note the reference to “U.S. jurisdiction” includes the District of Columbia.  Coupled with this, the applicant must “verify all licenses held in another U.S. jurisdiction or in Canada are in good standing, defined as current and unrestricted or if lapsed, eligible for renewal or reinstatement.”

Next, there is a work requirement which will require the applicant to affirm “the applicant has been engaged in active practice, defined as an average of 20 hours per week or 640 hours per year, for five years after post-graduate training and immediately preceding the application.”

The applicant must have current board certification by one of the following five certifying organziations:

  1. American Board of Medical Specialists;
  2. Bureau of Osteopathic Specialists;
  3. American Board of Foot and Ankle Surgery;
  4. Fellowship of Rural College of Physicians of Canada;
  5. Fellowship of Rural College of Surgeons of Canada; or
  6. College of Family Physicians of Canada.

The applicant must submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank with the application.

Finally, the BOM must determine the applicant has no grounds for denial based on the unprofessional conduct standard (Va. Code § 54.1-2915) of the BOM.  This statute broadly governs activities that would disqualify the individual for licensure, such as having been convicted of a felony in another state.

The applicant will have to respond to questions on the application for licensure confirming that he or she is not under investigation in another state or subject to disciplinary proceedings.

It is anticipated that the Licensure by Endorsement process will streamline and speedup the process by which physicians can be licensed in Virginia, as it will reduce the obligation on the BOM to perform a higher level of primary source verification required of the routine applicant.  Since many applicants are expected to meet the requirements for Licensure by Endorsement, licensure by the BOM will be easier to obtain for them.

HEALTH RECORD RETENTION

With the passage of House Bill 1524, patroned by Delegate Riley Ingram (R, Hopewell), during the 2018 Virginia General Assembly Session, the BOM will be updating the regulations governing the retention of health records.  The retention of health records prior to July 1, 2018, was governed by 18-VAC 85-20-26, which required records of adult patients to be retained for at least six years from the last patient encounter. For a medical practice who has treated a patient for years, this could result in storage of reams of paper charts for many years.

The passage of House Bill 1524 now places in the statutes the requirements for health records retention, with the creation of Va. Code § 54.1-2910.4.  Under this statute a practitioner will be required to maintain health records for a minimum of six years following the last patient encounter.  However, after July 1, a practitioner is not required to maintain health records for longer than 12 years from the date they were created.  There are two exceptions to this new requirement.  First, “health records of a minor child, including immunizations, which shall be maintained until the child reaches the age of 18 or becomes emancipated, with a minimum time for record retention of six years from the last patient encounter, regardless of age of the child or; and secondly, health records that are required by contractual obligation or federal law to be maintained for a longer period of time.”  Finally, the statute provides that health records previously transferred to another practitioner or health care provider or provided to the patient or his personal representative are not required to be maintained beyond the transfer or provision.

PRESCRIPTION REFILLS

The 2018 General Assembly passed Senate Bill 882, patroned by Senator Bill DeSteph (R, Virginia Beach).  It amends Va. Code § 54.1-3303 to enable a prescriber to authorize a registered nurse or licensed practical nurse to approve refills of prescriptions lasting no more than 90 consecutive days, if certain conditions are met.  This refill authorization applies only to Schedule VI drugs.  There can be no changes to the prescription drug strength or dosage.

The prescriber has to have a written protocol, accessible by the nurse, identifying the conditions under which approval of additional refills can be made.  Finally, the nurse who authorizes such refill must document the refills in the patient’s medical record and transfer the refills to a pharmacist, via oral prescription or via facsimile, as authorized pursuant to Subsection C of Va. Code § 54.1-3408.1.

TREATMENT OF SUBSTANCE MISUSE ADDICTION WITH BUPRENORPHINE

FAQ Update

At the May 13 executive committee meeting, the BOM updated one of their frequently asked questions (FAQs) regarding the use of buprenorphine in the treatment of addiction.  Current regulations provide in 18-VAC85-21-150 that buprenorphine without Naloxone (buprenorphine mono-product) may only be prescribed in certain instances.  One of the limitations states that a waiver prescriber may prescribe the mono-product for patients who have demonstrated intolerance to naloxone for no more than 3% of the total prescriptions of buprenorphine written by that prescriber.  Questions had arisen regarding whether the 3% restriction applied to injectable formulations of buprenorphine mono-product.  The BOM amended their FAQs to read: “The 3% restriction does not apply to injectable formulations of buprenorphine mono-product administered directly to patient in a waivered physician’s office, a clinic staffed by a waivered provider, or in a federally licensed opioid treatment program, or to mono-product tablets administered directly to patients in federally licensed opioid treatment programs.”

Final Regulations Update

The final regulations of the BOM governing prescribing of opioids and buprenorphine are effective August 8, 2018.  These regulations will replace emergency regulations that have been in place since March of 2017.

There are two primary differences between the emergency regulations and the final regulations.  First, the final regulations add patients being treated for sickle cell disease to the list of exceptions.  Accordingly, the entire list of exceptions will now include patients treated for cancer and sickle cell as well as patients in hospice care or palliative care.

Next, the regulations governing the treatment of chronic pain were amended regarding the requisite frequency of obtaining drug screens.  The final regulations require that a urine drug screen or a serum medication level be obtained at the initiation of treatment and thereafter at the discretion of the practitioner, but not less than annually.

If you have any questions or would like additional information, please contact W. Scott Johnson at sjohnson@hancockdaniel.com .

 

The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.

[1] Va. Code § 54.1-103 provides the authority to the BOM to promulgate regulations in general, including ones governing Licensure by Endorsement.