Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (amending 2VAC5-317-20).

Statutory Authority: § 3.2-802 of the Code of Virginia.

Public Hearing Information:

December 7, 2023 - 10 a.m. - Department of Agriculture and Consumer Services, Patrick Henry Building, East Reading Room, 1111 East Broad Street, Richmond, Virginia

Public Comment Deadline: December 8, 2023.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-802 of the Code of Virginia authorizes the board to establish by regulation those weeds deemed to be noxious weeds.

Purpose: The intent of the regulatory action is to slow the spread of noxious weeds established in Virginia and prevent the introduction of those listed weed species that are not known to occur in the Commonwealth. The proposed regulatory action is necessary to protect the Commonwealth's agricultural and natural resources from the detrimental impact of noxious weeds. Listed noxious weeds are nonnative invasive plants with very few or no natural predators or existing environmental conditions to control their rapid rate of growth. As a result, noxious weeds can grow rapidly and displace native plants. Additionally, the habitat of wildlife may be altered as these plants invariably change the ecosystem by out-competing and displacing native plants. As the spread of a noxious weed can lead to significant economic losses associated with eradication and control costs, this amendment also assists in protecting the economic welfare of citizens.

Substance: The proposed regulatory action adds 12 plant species deemed by the board to meet the definition of "noxious weed" to 2VAC5-317-20.

Issues: The 12 plant species recommended for listing as noxious weeds are all invasive plant species; they are highly adaptable to their environment, are copious seed producers, and have an ability to displace native plant species through aggressive and rapid growth. Controlling invasive plants is costly and long term once they become established. Adding these 12 plants provides an advantage to citizens, as the regulation will serve to prevent the introduction of noxious weeds to uninfested areas or slow the spread from areas that are currently infested. Movement of a listed noxious weed will require that citizens obtain a permit from the Department of Agriculture and Consumer Services (VDACS) to minimize the risk associated with moving a listed noxious weed. Through the issuance of this permit, VDACS will provide suggested best practices for the movement of the Tier 3 noxious weeds that will prevent the inadvertent spread of these plants. There are no disadvantages to the public or the Commonwealth as a result of this proposed regulatory action.

The Department of Planning and Budget's Economic Impact Analysis:

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 Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Board of Agricultural and Consumer Services (Board) proposes to add 12 plants to the noxious weeds list.

Background. Section 3.2-800 of the Code of Virginia defines "noxious weed" to mean any living plant, or part thereof, declared by the Board through regulations under this chapter to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health, the environment, or the economy, except when in-state production of such living plant, or part thereof, is commercially viable or such living plant is commercially propagated in Virginia.

Plants that are classified as noxious weeds are prohibited from moving into or within the state without a permit.² Noxious weeds are classified as either Tier 1, Tier 2, or Tier 3 noxious weeds. Tier 1 noxious weeds are not known to occur in Virginia and are therefore more easily eradicated. Tier 2 noxious weeds are present in the Commonwealth, for which successful eradication or suppression is feasible. Lastly, Tier 3 noxious weeds are present in the Commonwealth, for which successful eradication or suppression is not feasible, but whose spread may be slowed down by restrictions on their movement.³

Section 3.2-802 of the Code of Virginia requires the Virginia Department of Agriculture and Consumer Services (VDACS) Commissioner to establish an advisory committee to conduct a scientific risk assessment of plants that are proposed to be included on the noxious weeds list.⁴ The last meeting of this committee was held in November 2022,⁵ though the weeds that are being added in this current action were discussed at various advisory committee meetings between September 2019 and June 2021.⁶ Accordingly, the Board is now proposing to add one species to the list of Tier 2 noxious weeds, Trapa bispinosa, Two-horned trapa. Additionally, the Board is also proposing to add 11 species to the list of Tier 3 noxious weeds: (i) Alliaria petiolata, Garlic mustard; (ii) Dioscorea polystachya, Chinese yam; (iii) Elaeagnus umbellata, Autumn olive; (iv) Ficaria verna, Lesser celandine; (v) Lespedeza bicolor, Bicolor lespedeza; (vi) Lonicera maackii, Amur honeysuckle; (vii) Lonicera japonica, Japanese honeysuckle; (viii) Phragmites australis, Common reed; (ix) Pueraria montana, Kudzu; (x) Reynoutria japonica, Japanese knotweed; and (xi) Ulmus pumila, Siberian elm. Only one comment was received following publication of the NOIRA stage; that commenter expressed general support for adding new weeds to the list.⁷

Estimated Benefits and Costs. VDACS reports that the 12 plant species recommended for listing as a noxious weed are all invasive plant species; they are highly adaptable to their environment, are copious seed producers, and have an ability to displace native plant species through aggressive and rapid growth.⁸ Controlling invasive plants is costly and requires efforts over a long period of time once they become established. Adding these 12 plants to the noxious weeds list would serve to prevent their introduction to un-infested areas within the Commonwealth and slow the spread from areas that are currently infested.

Adding these 12 plants to the list would require anyone seeking to move these plants to first obtain a permit from VDACS.⁹ There are no fees associated with the permit application. The permits for Tier 1 and Tier 2 noxious weeds require compliance with specific best management practices, such as double bagging plant parts that will be removed from a site. The permits for Tier 3 noxious weeds do not contain any requirements; they only suggest best management practices to prevent any inadvertent spread of these plants.

VDACS expects to absorb any costs associated with implementing the proposed changes. VDACS reports that their Office of Plant Industry Services (OPIS) communicates additions to the Noxious Weeds List by several means: via direct communication to the Virginia Nursery and Landscape Association; to VDACS-registered nursery growers and dealers via both a direct mailing and OPIS's 15 plant protection inspectors, who communicate directly with growers; through cooperative extension agents at Virginia Tech; through press releases; and on the VDACS webpage.

The noxious weeds list currently has 14 plants (three Tier 1, six Tier 2, five Tier 3) so adding 12 plants would almost double the size of the list. Over the past five years, VDACS has issued a total of 10 permits. Hence, although an increase in the size of the list may increase the number of permit applications, the additional costs of processing permit applications may not be significant.

Businesses and Other Entities Affected. VDACS reports that permit requests are likely to come from private landowners, construction companies, farmers, landscapers, and university researchers or faculty.¹⁰ The agency notes that the regulations do not require a landowner to remove those plant species from their property. In the past, the entities that have sought permits most routinely are either researchers at universities who want to confirm noxious weeds through identification of the plant at their lab, or construction contractors who request movement permits to remove the plants from a property prior to construction. The permits issued to construction contractors are issued for safe removal of the plants from the site to a landfill to ensure the plant is not spread during or after transport. VDACS reports that seven of the 10 permits issued in the last five years were for construction, two were for research, and one was for personal removal from an individual's property.¹¹

The proposed changes would lead to an increase in the number of researchers, construction companies, individual landowners, or other entities seeking to move any of the 12 plants that would be added to the noxious weeds list. However, the majority of these new permits would be for Tier 3 weeds, since all but one of the new additions to the list are in Tier 3. Permits for Tier 3 weeds only contain suggested best management practices and do not have any enforceable requirements. The newly added Tier 2 noxious weed (Trapa bispinosa) is an aquatic weed found primarily in lakes and ponds. As such, it is unlikely that construction companies will need to remove this plant from construction sites or incur related costs unless the construction activities involve artificial or natural lakes or ponds that were infested with this plant.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹² An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Because some researchers, construction companies, individual landowners, or other entities may have to obtain a permit to move noxious weeds whereas previously no permit would have been required, and because some of those entities could incur additional costs to comply with the requirements for transporting the newly added Tier 2 noxious weed (Trapa bispinosa), an adverse impact is indicated. However, entities like landowners or construction companies would only incur these costs if they choose to move these plants. As mentioned previously, the regulation does not require landowners to clear noxious weeds from their property.

Small Businesses¹³ Affected.¹⁴

Types and Estimated Number of Small Businesses Affected. VDACS does not have estimates for the number of small businesses that would be affected by the proposed changes. It is possible that some of the construction contractors mentioned previously are small businesses.

Costs and Other Effects. Some of these businesses would face some minimal administrative costs of applying for an obtaining a permit. Any small businesses that need to move Trapa bispinosa would also face some additional cost of implementing the Tier 2 permit requirements.

Alternative Method that Minimizes Adverse Impact. There are no known alternative methods that would prevent the spread of noxious weeds at lower cost to small businesses.

Localities¹⁵ Affected.¹⁶ The proposed amendments do not create costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments are intended to protect the economic value of private property by preventing and controlling the spread of noxious weeds. Real estate development costs do not appear to be affected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²Chapter 123 of the 2023 Acts of Assembly creates an exemption to the definition of the verb move; except for bona fide agricultural purposes including the management, tilling, planting, or harvesting of agricultural products. See https://leg1.state.va.us/cgi-bin/legp504.exe?231+ful+CHAP0153.

³The VDACS website includes resources on identifying some of the noxious weeds. See https://www.vdacs.virginia.gov/plant-industry-services-noxious-weeds.shtml.

⁴See https://law.lis.virginia.gov/vacode/title3.2/chapter8/section3.2-802/.

⁵See https://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=36887.

⁶The minutes for these meetings are available on the Virginia Regulatory Town Hall at https://townhall.virginia.gov/L/GetFile.cfm?File=Meeting\48\29696\Minutes_VDACS_29696_v1.pdf (September 30, 2019, committee meeting); https://townhall.virginia.gov/l/GetFile.cfm?File=Meeting\48\31465\Minutes_VDACS_31465_v1.pdf (October 23, 2020, committee meeting); https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\48\32314\Minutes_VDACS_32314_v3.pdf (April 22, 2021, committee meeting); and https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\48\32630\Minutes_VDACS_32630_v1.pdf (June 29, 2021, committee meeting).

⁷See https://townhall.virginia.gov/l/viewcomments.cfm?commentid=99895.

⁸Agency Background Document (ABD), page 4. See https://townhall.virginia.gov/l/GetFile.cfm?File=48\5747\9551\AgencyStatement_VDACS_9551_v2.pdf.

⁹The form can be found at https://www.vdacs.virginia.gov/pdf/noxious-weed-permit.pdf.

¹⁰Email dated April 10, 2023.

¹¹Email dated April 19, 2023.

¹²Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹³Pursuant to § 2.2-4007.04, 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."

¹⁴If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁵"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.

¹⁶Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments add 12 plant species to the current noxious weeds list - one to the list of Tier 2 noxious weeds and 11 to the list of Tier 3 noxious weeds.

2VAC5-317-20. Tier 1, Tier 2, and Tier 3 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Salvinia molesta, Giant salvinia.

2. Solanum viarum, Tropical soda apple.

3. Heracleum mantegazzianum, Giant hogweed.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass.

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

4. Vitex rotundifolia, Beach vitex.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

6. Corydalis incisa, Incised fumewort.

7. Trapa bispinosa, Two-horned trapa.

C. The following plants are hereby declared Tier 3 noxious weeds:

1. Ailanthus altissima, Tree of heaven.

2. Ampelopsis brevipedunculata, Porcelain berry.

3. Celastrus orbiculatus, Oriental bittersweet.

4. Hydrilla verticillata, Hydrilla.

5. Persicaria perfoliata, Mile-a-minute weed.

6. Alliaria petiolata, Garlic mustard.

7. Dioscorea polystachya, Chinese yam.

8. Elaeagnus umbellata, Autumn olive.

9. Ficaria verna, Lesser celandine.

10. Lespedeza bicolor, Bicolor lespedeza.

11. Lonicera maackii, Amur honeysuckle.

12. Lonicera japonica, Japanese honeysuckle.

13. Phragmites australis, Common reed.

14. Pueraria montana, Kudzu.

15. Reynoutria japonica, Japanese knotweed.

16. Ulmus pumila, Siberian elm.

Title of Regulation: 12VAC5-431. Sanitary Regulations for Hotels.

Agency Contact: Briana Bill, Environmental Health Coordinator, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 584-6340, email briana.bill@vdh.virginia.gov.

FORMS

Application for a Hotel Plan Review, TER-H-1 (eff. 7/2018)

Application for a Hotel Operations Permit, TER-H-2 (eff. 7/2018)

Application for a Hotel Plan Review - Spanish, TER-H-4 (eff. 8/2023)

Application for a Hotel Operations Permit - Spanish, TER-H-3 (eff. 8/2023)

Title of Regulation: 18VAC65-20. Regulations Governing the Practice of Funeral Services.

Agency Contact: Erin Barrett, Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4688, email erin.barrett@dhp.virginia.gov.

FORMS

Checklist and Instructions for Funeral License (rev. 3/2023)

Funeral Service Licensee Reinstatement Application (rev. 3/2023)

Request for Verification of a Virginia Funeral License (rev. 11/2019)

Checklist and Instructions for Courtesy Card Application (rev. 3/2023)

Checklist and Instructions for Surface Transportation and Removal Service Registration Application (rev. 3/2023)

Checklist and Instructions for Crematory Registration Application (rev. 1/2021)

Crematory Registration Application (rev. 8/2023)

Checklist and Instructions for Continuing Education Providers (rev. 3/2021)

Instructions for Completing the Continuing Education Summary Form for the Virginia Board of Funeral Directors and Embalmers (rev. 8/2016)

Instructions for Continuing Education Providers Adding Additional Courses (rev. 3/2021)

Continuing Education (CE) Credit Form for Volunteer Practice (rev. 7/2020)

Continued Competency Activity and Assessment Form (rev. 7/2012)

Funeral Service New Establishment Application (rev. 3/2023)

Funeral Service Establishment/Branch Application (rev. 3/2023)

Funeral Service Branch Establishment Application (rev. 3/2023)

Funeral Service Establishment/Branch Change Application (rev. 3/2023)

Funeral Establishment or Branch Change of Manager Application (rev. 3/2023)

Request for Reinspection due to Structural Change to Preparation Room (rev. 7/2020)

Waiver of Full-Time Manager (rev. 3/2023)

Funeral Service Establishment Reinstatement Application (rev. 3/2023)

Courtesy Card Reinstatement Application (rev. 3/2023)

Surface Transportation and Removal Services Reinstatement Application (rev. 3/2023)

Presentation Request Form (rev. 7/2020)

Name/Address Change Form (rev. 2/2016)

Appendix I. General Price List (rev. 10/2019)

Appendix II. Casket Price List, Outer Burial Container Price List (rev. 10/2019)

Appendix III. Itemized Statement of Funeral Goods and Services Selected (rev. 10/2019)

Title of Regulation: 18VAC80-20. Hearing Aid Specialists Regulations (amending 18VAC80-20-30, 18VAC80-20-40).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information:

October 11, 2023 - 9:30 a.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 200, Richmond, VA 23233

Public Comment Deadline: November 10, 2023.

Agency Contact: Kelley Smith, Executive Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email hasopt@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia gives authority to the Board for Hearing Aid Specialists and Opticians to promulgate regulations.

Purpose: The Hearing Aid Specialist Training Committee spent several months analyzing the cause of the board's low pass rate on the hearing aid specialist exam. Much of the lower pass rate could be tied to individuals obtaining the training permit, then immediately signing up for the licensing exam. This enabled individuals to take the exam with as little as two months of training in the profession. In examining the data, the committee found a direct correlation between the lengths of training under the temporary permit and pass rates on the exam. Individuals with nine months of training or less had below a 30% pass rate and the pass rate for those with six months of training was below 20%. The board is extending the length of the apprenticeship to 18 months and imposing a minimum training length to address these concerns. In addition to addressing this flaw in the temporary permit training program, the board also wanted to allow individuals to utilize the newly created U.S. Department of Labor approved hearing aid dispensing apprenticeship program.

The amendments are essential for the public health, safety, and welfare because increasing the amount of minimum training required for individuals holding a temporary permit prior to taking the licensing examination will better ensure individuals are minimally competent to engage in the regulated activity. The amendments assure the public that individuals that are minimally trained to provide hearing aid services are the individuals providing services, versus individuals who may simply be gifted at exam taking and have not actually received enough training to become minimally competent.

Substance: The proposed amendments (i) add a requirement that temporary permit holders cannot take the licensing exam until they have six months of experience under the permit and add a new training option of registered apprenticeship and (ii) change the temporary permit length from 12 months to 18 months and add a requirement that sponsors cannot refer permit holders to the exam until the permit holder reaches six months of experience.

Issues: One primary advantage of this action is that individuals seeking to enter this profession have a new training option of registered apprenticeship. Registered apprenticeships offer several advantages over traditional training programs, including that registered apprenticeships are paid, on-the-job training, recognized by the federal government and transferable to any other state with a registered apprenticeship program. There is no disadvantage of this change, since this will merely be an additional option for individuals who desire it, not a requirement. Another advantage of this action is that individuals learning under a temporary permit will now receive a longer training period, including a minimum amount of training that will increase the likelihood of passing the licensing exam and successfully entering the profession. The disadvantage of this change to the temporary permit requirement is that individuals who may wish to have tested prior to six months will be prohibited from doing so. The pass rate for temporary permit holders at six months is around 20%, while less than six months drops about 10% for every three months less of experience. While one or two individuals per year may be able to pass the exam with less than six months of training, the vast majority will fail and incur a financial loss (exam fee) and the emotional toll of having failed a state licensing exam.

The advantages to the Commonwealth of the registered apprenticeship is that it will have decreased barriers to entry into the profession by providing additional qualifying methods and increasing the likelihood of success on the licensing exam. Additionally, the Department of Labor and Industry may see an increase in hearing aid specialist apprentices. There is no disadvantage to the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

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 Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board for Hearing Aid Specialists and Opticians (Board) is proposing to (i) require a minimum of nine months of training in the profession prior to taking the hearing aid specialist exam, (ii) extend the duration of the temporary permit from 12 months to 18 months, and (iii) create an additional pathway to gain sufficient experience to qualify for licensure.

Background. A hearing aid specialist is a licensed professional who provides hearing aid solutions to customers with hearing loss. To do this, hearing aid specialists test the extent of a customer's hearing loss, then adapt and sell a hearing aid product to the consumer. Entry into this profession may start with a temporary permit from the Board until the temporary permit holder obtains proper training and passes the Board's hearing aid specialist examination (exam) to be issued a permanent license. In essence, a temporary permit is a permit to obtain training.

According to the Department of Professional and Occupational Regulation (DPOR), the Board has received complaints from temporary permit holders who are not able to pass the exam. In addition, the Hearing Aid Specialist Training Committee analyzed the cause of the low pass rate on the exam. The committee found that much of the lower pass rates could be tied to individuals obtaining the training permit, then immediately signing up for the exam. This enabled individuals to take the exam with as little as two months of training in the profession. In examining the data, the committee found a direct correlation between the lengths of training under the temporary permit and pass rates on the exam. Individuals with nine months of training or less had below a 30% pass rate, and the pass rate for those with six months of training was below 20%. Consequently, the Board is proposing to impose a minimum training length of nine months and to extend the maximum length of the training to 18 months to address these concerns.

At the same time, the Board is also proposing to allow individuals to utilize the newly created U.S. Department of Labor approved hearing aid dispensing apprenticeship program.

Estimated Benefits and Costs. Currently, a temporary permit holder can take the exam within certain timeframes as soon as the temporary permit holder's licensed sponsor certifies that the requirements for the scope of training have been met. The timeframes are dictated by the duration of the temporary permit. A temporary permit is issued for a period of 12 months and may be extended once for not longer than six months. Extension beyond 12 months is possible only if the training is not certified to be complete by the sponsor. In other words, once the sponsor certifies that the individual is ready for the exam, there is the implicit assumption that the training is finished and there is no reason to extend the duration of the temporary permit. If the training has not been completed within 12 months, a six month extension is allowed. After a period of 18 months, an extension is no longer possible and the former temporary permit holder must sit for the licensure examination and pass within two years from the initial test date.

There are inherent incentives for the trainee as well as the sponsor to complete the training as soon as possible, take the exam, and become fully licensed. These include the benefit for the trainee of higher earning potential sooner than later, and the benefit for the sponsor of autonomous practice as soon as possible by the trainee. These incentives for taking the exam as soon as possible appear to be coupled by lack of significant repercussions other than the cost of taking the exam (exam fee,² time and travel) if the result is not favorable. The exam is offered four times a year, and the trainee is free to take as many exams as possible any time before two years from the initial test date. These incentives and lack of significant repercussions appear to have the unintended consequence of lower pass rates on the exam.

In order to address the unintended consequence of lower pass rates under the current regulatory framework, the Board proposes to introduce a minimum training period of nine months. A longer training period should help improve on average the preparedness of the trainees for unsupervised practice. Also, given the direct correlation the committee found between pass rates and the duration of the training, an improvement in pass rates appears plausible. Improved pass rates would reduce potential financial loss to the trainees (e.g., exam fee) and the impact of having failed a state licensing exam. However, unless the correlation is perfect (i.e., a one to one relationship), which does not appear to be in this case, the possibility cannot be ruled out that there may be one or two³ trainees who would have passed the exam before the proposed nine-month period but who would no longer be allowed to do so.

In addition, the extension of the temporary permit duration from 12 to 18 months would benefit trainees by eliminating the application procedure to extend the permit if needed. Also, a minimal reduction in staff workload may occur at DPOR due to the reduction in the number of temporary permit extension requests.

Finally, the Board proposes to allow a new pathway to full licensure in addition to the current temporary permit and college degree routes. One of the proposed changes would allow applicants to verify completion of the required training and experience by allowing submission of an apprenticeship completion form from the Virginia Department of Labor and Industry (DOLI) that reflects completion of a registered apprenticeship, including all required related instruction or an equivalent out-of-state registered apprenticeship. According to DPOR, registered apprenticeships offer several advantages over traditional training programs, including that they are paid on-the-job training, recognized by the federal government, and transferable to any other state with a registered apprenticeship program. Although there is no such apprenticeship program currently operating in Virginia, this change would reduce barriers to entry into this profession in Virginia when and if such a program is established or when and if DOLI starts issuing equivalency of out-of-state registered apprenticeships. This additional pathway to licensure would likely also promote such programs.

Businesses and Other Entities Affected. According to DPOR, there are approximately 70 applicants for licensure in a given year, the average number of annual applicants for the hearing aid temporary permits is 47, and it is anticipated that once the apprenticeship is implemented, there may be five to10 registered apprentices every year. No applicants for a temporary permit appear to be disproportionately affected.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the DPOR estimates that there would be one or two trainees that could have been able to pass the exam before the proposed minimum nine-month training period. Thus, an adverse impact is indicated on such trainees.

Small Businesses⁵ Affected.⁶

Types and Estimated Number of Small Businesses Affected. According to DPOR most if not all sponsors of temporary permits are small businesses. As mentioned, 47 applications for temporary permits are received annually on average. Thus, approximately 47 small businesses may be affected. DPOR estimates only one or two trainees to be adversely affected. Thus, no more than one or two temporary permit sponsors are likely to be adversely affected.

Costs and Other Effects. As discussed, the proposed minimum duration for training is expected to result in longer training periods for trainees, which would also extend the training for sponsors as they can no longer certify the completion of the scope of training before the minimum of nine months proposed. The proposed changes would also eliminate the need to extend the training from 12 to 18 months, which in turn would eliminate the application for extension. An adverse impact on one or two trainees who could have passed the exam before the proposed nine-month period and consequently on their sponsors who are most likely to be small businesses is indicated.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities⁷ Affected.⁸ The proposed amendments do not introduce costs for local governments and do not disproportionally affect any particular localities.

Projected Impact on Employment. The proposed changes may delay one or two trainees becoming fully licensed and may result in their being underemployed for a while.

Effects on the Use and Value of Private Property. The proposed elimination of temporary permit extension and the application costs associated with such application would reduce compliance costs while one or two temporary permit holders may be delayed in obtaining a full license increasing compliance costs. The net effect on compliance costs and therefore the effect on the asset values of sponsor businesses is not known.

The proposed amendments do not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²The exam consists of two parts covering theory ($260) and practice ($90) which can be independently taken and passed at different times.

³Source: DPOR

⁴Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, 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."

⁶If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"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.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments (i) require a minimum of nine months of training in the profession prior to taking the hearing aid specialist exam; (ii) extend the duration of the temporary permit to 18 months; and (iii) create an additional pathway to gain sufficient experience to qualify for licensure.

18VAC80-20-30. Basic qualifications for licensure.

A. Every applicant for a license shall provide information on his an application establishing that:

1. The applicant is at least 18 years of age.

2. The applicant has successfully completed high school or a high school equivalency course.

3. The applicant has training and experience that covers the following subjects as they pertain to hearing aid fitting and the sale of hearing aids, accessories, and services:

a. Basic physics of sound;

b. Basic maintenance and repair of hearing aids;

c. The anatomy and physiology of the ear;

d. Introduction to psychological aspects of hearing loss;

e. The function of hearing aids and amplification;

f. Visible disorders of the ear requiring medical referrals;

g. Practical tests utilized for selection or modification of hearing aids;

h. Pure tone audiometry, including air conduction, bone conduction, and related tests;

i. Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;

j. Masking when indicated;

k. Recording and evaluating audiograms and speech audiometry to determine the proper selection and adaptation of hearing aids;

l. Taking earmold impressions;

m. Proper earmold selection;

n. Adequate instruction in proper hearing aid orientation;

o. Necessity of proper procedures in after-fitting checkup; and

p. Availability of social service resources and other special resources for the hearing impaired.

4. The applicant has provided one of the following as verification of completion of training and experience as described in subdivision 3 of this subsection:

a. A statement on a form provided by the board signed by the licensed sponsor certifying that the requirements have been met and that the applicant has completed at least six months of experience under the temporary permit; or

b. A certified true copy of a transcript of courses completed at an accredited college or university, or other notarized documentation of completion of the required experience and training; or

c. An apprenticeship completion form from the Virginia Department of Labor and Industry reflecting completion of a registered apprenticeship, including all required related instruction, or an equivalent out-of-state registered apprenticeship.

5. The applicant has not been convicted or found guilty of any crime directly related to the practice of fitting or dealing in hearing aids, regardless of the manner of adjudication, in any jurisdiction of the United States. Except for misdemeanor marijuana convictions and misdemeanor convictions that occurred five or more years prior to the date of application, with no subsequent convictions, all criminal convictions shall be considered as part of the totality of the circumstances of each applicant. The applicant review of prior convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt.

6. The applicant is in good standing as a licensed hearing aid specialist in every jurisdiction where licensed. The applicant must disclose if he the applicant has had a license as a hearing aid specialist that was suspended, revoked, or surrendered in connection with a disciplinary action or that has been the subject of discipline in any jurisdiction prior to applying for licensure in Virginia. At the time of application for licensure, the applicant must also disclose any disciplinary action taken in another jurisdiction in connection with the applicant's practice as a hearing aid specialist. The applicant must also disclose whether he the applicant has been previously licensed in Virginia as a hearing aid specialist.

7. The applicant has disclosed his the applicant's physical address. A post office box is not acceptable.

8. The nonresident applicant for a license has filed and maintained with the department an irrevocable consent for the department to serve as service agent for all actions filed in any court in Virginia.

9. The applicant has submitted the required application with the proper fee as referenced in 18VAC80-20-70 and signed, as part of the application, a statement that the applicant has read and understands Chapter 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and this chapter.

B. The board may make further inquiries and investigations with respect to the qualifications of the applicant or require a personal interview or both. The board may refuse initial licensure due to the applicant's failure to comply with entry requirements. The licensee is entitled to a review of such action. Appeals from such actions shall be in accordance with the provisions of the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

18VAC80-20-40. Temporary permit.

A. Any individual may apply for a temporary permit, which is to be used solely for the purpose of gaining the training and experience required to become a licensed hearing aid specialist in Virginia. The licensed sponsor shall be identified on the application for a temporary permit, and the licensed sponsor shall comply strictly with the provisions of subdivisions B 1 and B 2 of this section.

1. A temporary permit shall be issued for a period of 12 months and may be extended once for not longer than six 18 months. After a period of 18 months an extension is no longer possible and, the former temporary permit holder shall sit for the examination in accordance with this section.

2. The board may, at its discretion, extend the temporary permit for a temporary permit holder who suffers serious personal illness or injury, or death in his the temporary permit holder's immediate family, or obligation of military service or service in the Peace Corps, or for other good cause of similar magnitude approved by the board. Documentation of these circumstances must be received by the board no later than 12 months after the date of the expiration of the temporary permit or within six months of the completion of military or Peace Corps service, whichever is later.

B. Every applicant for a temporary permit shall provide information upon application establishing that:

1. The applicant for a temporary permit is at least 18 years of age.

2. The applicant for a temporary permit has successfully completed high school or a high school equivalency course.

3. The applicant has not been convicted or found guilty of any crime directly related to the practice of fitting or dealing in hearing aids, regardless of the manner of adjudication, in any jurisdiction of the United States. Except for misdemeanor marijuana convictions and misdemeanor convictions that occurred five or more years prior to the date of application, with no subsequent convictions, all criminal convictions shall be considered as part of the totality of the circumstances of each applicant. Review of prior convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt.

4. The applicant for a temporary permit is in good standing as a licensed hearing aid specialist in every jurisdiction where licensed. The applicant for a temporary permit must disclose if he the applicant has had a license as a hearing aid specialist that was suspended, revoked, or surrendered in connection with a disciplinary action or that has been the subject of discipline in any jurisdiction prior to applying for licensure in Virginia. At the time of application, the applicant for a temporary permit must also disclose any disciplinary action taken in another jurisdiction in connection with the applicant's practice as a hearing aid specialist. The applicant for a temporary permit must also disclose whether he the applicant has been licensed previously in Virginia as a hearing aid specialist.

5. The applicant for a temporary permit has disclosed his the applicant's physical address. A post office box is not acceptable.

6. The applicant for a temporary permit has submitted the required application with the proper fee referenced in 18VAC80-20-70 and has signed, as part of the application, a statement that the applicant has read and understands Chapter 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and this chapter.

C. The licensed hearing aid specialist who agrees to sponsor the applicant for a temporary permit shall certify on the application that as sponsor, he the licensed hearing aid specialist:

1. Assumes full responsibility for the competence and proper conduct of the temporary permit holder with regard to all acts performed pursuant to the acquisition of training and experience in the fitting or dealing of hearing aids;

2. Will not assign the temporary permit holder to carry out independent field work without on-site direct supervision by the sponsor until the temporary permit holder is adequately trained for such activity;

3. Will personally provide and make available documentation, upon request by the board or its representative, showing the number of hours that direct supervision has occurred throughout the period of the temporary permit; and

4. Will return the temporary permit to the department should the training program be discontinued for any reason; and

5. Will not refer the temporary permit holder for testing until they have completed at least six months of training under the permit.

D. The licensed sponsor shall provide training and shall ensure that the temporary permit holder under his the licensed sponsor's supervision gains experience that covers the following subjects as they pertain to hearing aid fitting and the sale of hearing aids, accessories, and services:

1. Basic physics of sound;

2. Basic maintenance and repair of hearing aids;

3. The anatomy and physiology of the ear;

4. Introduction to psychological aspects of hearing loss;

5. The function of hearing aids and amplification;

6. Visible disorders of the ear requiring medical referrals;

7. Practical tests utilized for selection or modification of hearing aids;

8. Pure tone audiometry, including air conduction, bone conduction, and related tests;

9. Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;

10. Masking when indicated;

11. Recording and evaluating audiograms and speech audiometry to determine the proper selection and adaptation of hearing aids;

12. Taking earmold impressions;

13. Proper earmold selection;

14. Adequate instruction in proper hearing aid orientation;

15. Necessity of proper procedures in after-fitting checkup; and

16. Availability of social service resources and other special resources for the hearing impaired.

E. The board may make further inquiries and investigations with respect to the qualifications of the applicant for a temporary permit or require a personal interview, or both.

F. All correspondence from the board to the temporary permit holder not otherwise exempt from disclosure, shall be addressed to both the temporary permit holder and the licensed sponsor and shall be sent to the business address of the licensed sponsor.

Title of Regulation: 22VAC40-80. General Procedures and Information for Licensure (amending 22VAC40-80-110).

Statutory Authority: §§ 63.2-217, 63.2-1732, 63.2-1733, and 63.2-1734 of the Code of Virginia.

Effective Date: October 11, 2023.

Agency Contact: Sherri Williams, Licensing Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7141, FAX (804) 726-7132, or email sherri.williams@dss.virginia.gov.

Summary:

Pursuant to Chapter 695 of the 2023 Acts of Assembly, the amendment increases the maximum period of time in which an applicant may operate an assisted living facility, adult day care center, or child welfare agency under a provisional license issued by the Commissioner of Social Services to 12 successive months.

22VAC40-80-110. Provisional license.

When a regular license expires and the applicant is temporarily unable to comply with the requirements of the regulations, the department may issue a provisional license for any period not to exceed six 12 months. A provisional license shall not be issued to a facility or agency immediately following a conditional license. At the conclusion of the provisional licensure period, the facility or agency must be in substantial compliance with licensing standards or be denied a license to continue operation.