Title of Regulation: 18VAC125-15. Regulations Governing Delegation to an Agency Subordinate (amending 18VAC125-15-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 12, 2014.

Effective Date: February 27, 2014.

Agency Contact: Catherine Chappell, Executive Director, Board of Psychology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 327-4435, or email catherine.chappell@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 to promulgate regulations and the authority to delegate an informal conference to an agency subordinate.

Purpose: One of the most important functions of the Department of Health Professions is the investigation and adjudication of disciplinary cases to ensure that the public is adequately protected if a health care professional violates a law or regulation. Delegation of informal conferences to an agency subordinate, who is either a former board member or former board staff, would allow the Board of Psychology to bring closure to cases to protect the health and safety of the public.

In § 2.2-4019 of the Administrative Process Act, provisions for an informal fact-finding proceeding establish the rights of parties to a disciplinary case, including the right to "appear in person or by counsel or other qualified representative before the agency or its subordinates, or before a hearing officer for the informal presentation of factual data, argument, or proof in connection with any case." While certain standard of care cases would continue to be heard by board members appointed to a special conference committee, a decision to delegate cases that may involve standards of practice must be approved by the probable cause committee. The ability to have the chair of the discipline committee (currently, the board does not have a "probable cause" committee) make decisions on delegation will facilitate scheduling of proceedings before an agency subordinate, thus ensuring resolution in a timelier manner and reserving board member time for hearing more serious matters.

Rationale for Using Fast-Track Process: The amendment is less restrictive and not controversial. The board does not currently utilize agency subordinates, but a simplified process for delegation may facilitate resolution of cases arising out of violations such as failure to complete continuing education. The board unanimously agreed to the revision.

Substance: The amendments allow approval by the chair of the discipline committee in consultation with the board chair for delegation to an agency subordinate cases that involve a violation of standards of practice.

Issues: The primary advantage to the public is more timely resolution of disciplinary cases, and there are no disadvantages to the public. The advantage to the Commonwealth is facilitation of the delegation process and preservation of board member time for proceedings that involve more serious allegations.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed changes will authorize the Board of Psychology's (Board) chair of the discipline committee to delegate informal fact finding conferences involving violations of standards of practice to an agency subordinate.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The proposed changes will authorize the Board's chair of the discipline committee in consultation with the Board chair to delegate informal fact-finding conferences involving violations of standards of practice to an agency subordinate. The agency subordinate could be a former board member or a former board staff member. The ability to delegate some of the cases is expected to facilitate the scheduling of proceedings, thus helping ensure resolution in a timelier manner and reserve board member time for hearing more serious matters. The Department of Health Professions (DHP) estimates approximately 10 cases per year may be delegated to an agency subordinate. DHP does not anticipate an adverse impact on the quality of the investigations if they are conducted by a subordinate. Thus, no negative impact on health and safety of the public is expected.

Businesses and Entities Affected. These regulations currently apply to 3,572 licensees and certificate holders regulated under the Board. Approximately 10 cases a year involving violations of standards of practice may be delegated to an agency subordinate.

Localities Particularly Affected. The proposed regulations do not affect any locality disproportionately.

Projected Impact on Employment. The proposed changes are expected to shift the administrative responsibilities associated with about 10 informal fact-finding conferences per year from Board members to an agency subordinate.

Effects on the Use and Value of Private Property. No significant effect on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. No costs on small businesses are expected. However, in about 10 cases per year, regulated psychology practices that are small businesses may benefit from expedited disciplinary investigations.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed changes are not anticipated to have an adverse impact on small businesses.

Real Estate Development Costs. No impact on real estate development costs is expected.

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, a determination of the public benefit, 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 an 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 Psychology concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendment allows approval by the chair of the discipline committee, in consultation with the chair of the Board of Psychology, to delegate to an agency subordinate cases that involve a violation of standards of practice.

18VAC125-15-20. Criteria for delegation.

Cases that may not be delegated to an agency subordinate include violations of standards of practice as set forth in regulations governing each profession certified or licensed by the board, except as may otherwise be determined by the probable cause chair of the discipline committee in consultation with the board chair.