TITLE 12. HEALTH
STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES
Fast-Track Regulation
Title of Regulation: 12VAC35-12. Public Participation Guidelines (amending 12VAC35-12-10,
12VAC35-12-20).
Statutory Authority: §§ 2.2-4007-02 and
37.2-203 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comments: Public comments may be
submitted until 5 p.m. on September 30, 2009.
Effective Date: October 15, 2009.
Agency Contact: Linda Grasewicz, Policy
Analyst, Department of Behavioral Health and Developmental Services, Jefferson
Bldg., 1220 Bank St., 12th Floor, Richmond, VA 23219, telephone (804) 786-0040,
FAX (804) 371-0092, or email linda.grasewicz@co.dmhmrsas.virginia.gov.
Basis: The board has the authority to adopt these
regulations under § 37.2-203 of the Code of Virginia. It is required to
develop and adopt public participation guidelines to solicit the input of
interested parties in the development of its regulations under
§ 2.2-4007.02 of the Code of Virginia.
Purpose: The amendment allows the department to
comply with the requirements of the Administrative Process Act (APA),
(§ 2.2-4007 of the Code of Virginia). The APA requires each agency of
state government that is empowered by basic laws to make regulations to adopt
and use public participation guidelines for soliciting the input of interested
parties in the formation and development of its regulations.
Chapter 781 of the 2009 Virginia Acts of
Assembly requires the department (not the board) to adopt emergency regulations
under Item 315 DD. This means that the department must have public
participation guidelines under the APA.
The proposed amendment expands the scope of
the board's public participation guidelines to define the department as an
"agency" that must involve the public in the development of its
regulations. Currently, these public participation guidelines apply only to the
board. The amendment will ensure that the public has the opportunity to
participate in the development regulations that are required pursuant to the
agency's basic law. This public participation will help to protect the health,
safety, and welfare of Virginia citizens.
Rationale for Using Fast-Track Process: This amendment will not
alter or affect the processes that are established by the board's current
public particpation guidelines. The current regulations are model public
participation guidelines adopted by the board in 2008 pursuant to Chapter 321
of the 2008 Acts of Assembly. These model regulations were developed to
standardize the public participation process so that interested members of the
public know how and when to comment or participate in regulatory actions that
affect or interest them. This amendment expands the scope of the board's
regulations to require the department to comply with this standard public
participation process. It is intended to provide the opportunity for public
participation in the department's regulatory processes according to the APA and
is not expected to be controversial.
The amendment will also change the name of
the department and the board consistent with legislation passed by Chapter 840
of the 2009 Acts of Assembly. This name change will not have any impact on the
public participation process or regulatory requirements and is not expected to
be controversial.
Substance: There are no new substantive provisions or
substantive changes to the existing sections of the regulations.
Issues: The primary advantage of this regulatory
action is that it will facilitate the participation of the interested members
of the public in the regulatory activities undertaken by the department.
This action allows the department to comply
with APA requirements and should enable it to develop regulations that are
consistent with the legal authority, are responsive to the public need, are not
overly burdensome, and protect the health, safety and welfare of Virginia
citizens.
There are no known disadvantages to the
public or the Commonwealth.
The Department of Planning and Budget's
Economic Impact Analysis:
Summary of the Proposed Amendments to
Regulation. The Mental Health, Mental Retardation and Substance Abuse Services
Board (Board) proposes to amend its Public Participation Guidelines to include
rulemaking actions taken by the Department of Mental Health, Mental Retardation
and Substance Abuse Services (DMHMRSAS) and to enact a statutorily required
name change.
Result of Analysis. The benefits likely
exceed the costs for all proposed changes.
Estimated Economic Impact. Currently, the
"agency" that is subject to these regulations is defined as solely
being the Board. Since both the Board and the Department (DMHMRSAS) have
regulatory authority, the Board proposes to amend these regulations so that the
Department is specifically included in the "agency" definition. This
change will benefit the public by ensuring that they have the same opportunity
to be involved in the rulemaking process no matter which entity (the Board or
the Department) has initiated it. No entity is likely to incur any costs on
account of this amendment.
This year the General Assembly passed a law
which changed the name of the Department of Mental Health, Mental Retardation
and Substance Abuse Services to the Department of Behavioral Health and
Developmental Services. The Board proposes to amend these regulations to
account for this statutory change. DMHMRSAS, and other agencies that have
regulations that name DMHMRSAS, will likely incur some one-time costs
associated with rewriting regulations and reprinting any promotional materials
that mention DMHMRSAS.
Businesses and Entities Affected. This
regulatory action will affect all state agencies and private individuals who
might be interested in participating in the rulemaking process. DMHMRSAS is
unsure of how many entities this might be but reports that, as of May 1, 2009,
there were 163 registered Town Hall users that were signed up to receive notice
of any regulatory actions from the agency.
Localities Particularly Affected. No locality
will be particularly affected by this proposed regulatory action.
Projected Impact on Employment. This
regulatory action will likely have no impact on employment in the Commonwealth.
Effects on the Use and Value of Private
Property. This regulatory action will likely have no affect on the use or value
of private property in the Commonwealth.
Small Businesses: Costs and Other Effects.
Small businesses in the Commonwealth are unlikely to incur any costs on account
of this regulatory action.
Small Businesses: Alternative Method that
Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to
incur any costs on account of this regulatory action.
Real Estate Development Costs. This
regulatory action will likely have no affect 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 36 (06). 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 the Department of
Planning and Budget's Economic Impact Analysis: The agency concurs with the
economic impact analysis prepared by the Department of Planning and Budget.
Summary:
This action amends the
board's public participation regulations to include the rulemaking processes
that are undertaken by the department. The current regulations are applicable
only to the State Mental Health Mental Retardation and Substance Abuse Services
Board. The stated purpose of these regulations in 12VAC35-12-10 and the
definition of "agency" in 12VAC23-12-20 are changed to include both
the department and the board. This change will allow the the department to
comply with the requirements in § 2.2-4007.02 of the Code of Virginia to
facilitate public participation in the formation and development of its regulations.
This action also replaces
the name State Mental Health, Mental Retardation and Substance Abuse Services
Board with State Board of Behavioral Health and Developmental Services
(hereinafter referred to as the board) and names the current Department of Mental
Health, Mental Retardation Substance Abuse Services as the Department of
Behavioral Health and Developmental Services (hereinafter referred to as the
department) consistent with Chapter 840 of the 2009 Acts of Assembly.
This change became effective on July 1, 2009.
Part I
Purpose and Definitions
12VAC35-12-10. Purpose.
The purpose of this chapter
is to promote public involvement in the development, amendment or repeal of the
regulations of the State Mental Health, Mental Retardation and Substance Abuse
Services Board of Behavioral Health and Developmental Services and the
Department of Behavioral Health and Developmental Services. This chapter
does not apply to regulations, guidelines, or other documents exempted or
excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et
seq. of the Code of Virginia).
12VAC35-12-20. Definitions.
The following words and
terms when used in this chapter shall have the following meanings unless the
context clearly indicates otherwise:
"Administrative Process
Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of
Virginia.
"Agency" means the
State Mental Health, Mental Retardation and Substance Abuse Services Board,
which is the unit entity of state government empowered by the
agency's basic law to make regulations or decide cases. This term includes
the State Board of Behavioral Health and Developmental Services and the
Department of Behavioral Health and Developmental Services. Actions
specified in this chapter may be fulfilled by state employees as delegated by
the agency.
"Basic law" means
provisions in the Code of Virginia that delineate the basic authority and
responsibilities of an agency.
"Commonwealth
Calendar" means the electronic calendar for official government meetings
open to the public as required by § 2.2-3707 C of the Freedom of Information
Act.
''Negotiated rulemaking
panel'' or ''NRP'' means an ad hoc advisory panel of interested parties
established by an agency to consider issues that are controversial with the
assistance of a facilitator or mediator, for the purpose of reaching a
consensus in the development of a proposed regulatory action.
"Notification
list" means a list used to notify persons pursuant to this chapter. Such a
list may include an electronic list maintained through the Virginia Regulatory
Town Hall or other list maintained by the agency.
"Open meeting"
means any scheduled gathering of a unit of state government empowered by an
agency's basic law to make regulations or decide cases, which is related to promulgating,
amending or repealing a regulation.
"Person" means any
individual, corporation, partnership, association, cooperative, limited
liability company, trust, joint venture, government, political subdivision, or
any other legal or commercial entity and any successor, representative, agent,
agency, or instrumentality thereof.
"Public hearing"
means a scheduled time at which members or staff of the agency will meet for
the purpose of receiving public comment on a regulatory action.
"Regulation" means
any statement of general application having the force of law, affecting the
rights or conduct of any person, adopted by the agency in accordance with the
authority conferred on it by applicable laws.
"Regulatory
action" means the promulgation, amendment, or repeal of a regulation by
the agency.
"Regulatory advisory
panel" or "RAP" means a standing or ad hoc advisory panel of
interested parties established by the agency for the purpose of assisting in
regulatory actions.
"Town Hall" means
the Virginia Regulatory Town Hall, the website operated by the Virginia
Department of Planning and Budget at www.townhall.virginia.gov, which has
online public comment forums and displays information about regulatory meetings
and regulatory actions under consideration in Virginia and sends this
information to registered public users.
"Virginia
Register" means the Virginia Register of Regulations, the publication that
provides official legal notice of new, amended and repealed regulations of
state agencies, which is published under the provisions of Article 6 (§
2.2-4031 et seq.) of the Administrative Process Act.
VA.R. Doc. No. R09-1900;
Filed August 11, 2009, 3:35 p.m.