Title of Regulation: 18VAC115-15. Delegation of Informal Fact-Finding to an Agency Subordinate (amending 18VAC115-15-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 27, 2019.

Effective Date: December 12, 2019.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Counseling the authority to promulgate regulations to administer the regulatory system and authorization for delegation to an agency subordinate.

Purpose: The regulatory change is consistent with the principle of regulations that are clearly written and easily understandable. The current regulation is inconsistent with current policy, so it may be confusing to persons seeking information about the agency subordinate process. It is necessary to retain the section because the statute requires regulations to specify the criteria for appointment in order to conduct informal fact-finding proceeding in a manner that protects the health and safety of the public.

Rationale for Using Fast-Track Rulemaking Process: As required by Executive Order 14 (2018), the Board of Counseling conducted a periodic review of this chapter. The amendments are technical in nature, reflect current procedures, have no impact on the public, and are not expected to be controversial.

Substance: Pursuant to a periodic review of 18VAC115-15, the board has amended 18VAC115-15-20 to add "registered" to the types of professions regulated by the board and to provide that cases involving standard of care may only be delegated to an agency subordinate by determination of the executive director in consultation with the board chair.

Issues: There are no advantages or disadvantages to the public. The amendment is technical and clarifying. There are no advantages or disadvantages to the agency or the Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Counseling (Board) proposes to clarify that cases involving standard of care may only be delegated to an agency subordinate by determination of the executive director in consultation with the Board chair and that authority now covers "registered" professions.

Background. This action results from a periodic review of the regulation.¹ Current language states that cases involving standard of care may only be delegated to an agency subordinate by the "probable cause committee" in consultation with the Board chair. However, the Board's bylaws have not included a probable cause committee for some time, and such cases have been delegated by the executive director in consultation with the Board chair instead. In addition, the current delegation language covers professions certified or licensed by the Board, but omits "registered" professions. Since the Board now "registers" peer recovery specialists and qualified mental health professionals, the word "registered" is proposed to be added.

Estimated Benefits and Costs. The proposed amendments are technical and clarifying in nature reflecting current practices. Thus, no significant economic impact is expected from this action other than improving the clarity of the regulation.

Businesses and Other Entities Affected. This regulation applies to 35,930 entities regulated by the Board. The number of cases delegated to an agency subordinate have been less than 10 historically, but with the addition of approximately 15,000 newly registered professionals, the number of such cases would likely increase.

Localities³ Affected⁴. The proposed action is not expected to disproportionally affect any locality, nor introduce costs for local governments.

Projected Impact on Employment. The proposed action would not affect employment.

Effects on the Use and Value of Private Property. The proposed action would not affect the use and value of private property or real estate development costs.

Adverse Effect on Small Businesses⁵: The proposed action would not adversely affect small businesses.

______________________________

²https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1670.

^3""Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁴§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁵Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Agency's Response to Economic Impact Analysis: The Board of Counseling concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments (i) add "registered" to the types of professions regulated by the board and (ii) provide that cases involving standard of care may only be delegated to an agency subordinate by determination of the executive director in consultation with the board chair.

18VAC115-15-20. 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 registered, certified, or licensed by the board, except as may otherwise be determined by the probable cause committee executive director in consultation with the board chair.