Title of Regulation: 18VAC60-21. Regulations Governing the Practice of Dentistry (amending 18VAC60-21-40, 18VAC60-21-220, 18VAC60-21-240).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 4, 2023.

Effective Date: January 19, 2023.

Agency Contact: Jamie Sacksteder, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4581, FAX (804) 698-4266, or email jamie.sacksteder@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 Dentistry the authority to promulgate regulations to levy fees and to administer the regulatory system.

Purpose: The purpose of this action is to make corrections in the current regulation for consistency with 18VAC60-20 before it was divided into four separate chapters. The regulatory changes will ensure that mobile clinics and portable dental operations that often serve children in underserved school districts will be able to continue renewing their permits and continue offering dental services that protect health and welfare of the public.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments are appropriate for the fast-track rulemaking process because they are consistent with previously adopted fees or are less costly for reactivation of an inactive license; therefore, the amendments are not expected to be controversial.

Substance: A renewal fee for a mobile clinic or portable dental operation was inadvertently omitted from 18VAC60-20-40 B before 18VAC60-20 was divided into four separate chapters and 18VAC60-21 was promulgated in 2015. The application fee for mobile clinic or portable dental operations was included in 18VAC60-21-40 A, and the renewal fee for those entities was included in 18VAC60-21-40 H, which set out a renewal fee reduction for 2016. Subsequently, those entities were also included in the renewal fee reduction for 2018. There has been no change in the renewal fee for those entities, but a correction of the error, by including them on the list found in 18VAC60-21-40 B for renewals and in 18VAC60-21-40 C for late renewal fees is necessary. Additionally, the renewal date for mobile clinics or portable operations was omitted from 18VAC60-21-240, and is added by this action. Additionally, the application fee for temporary dental permits issued pursuant to § 54.1-2715 of the Code of Virginia was omitted in the adoption of 18VAC60-21. Currently, there are no dentists who hold such a permit, but the fee needs to be included should the board receive an application. Additional information is added in parentheses to provide further explanation and identification of current fees. Finally, the fee reactivation of an inactive license is reduced from the cost of renewing an active license ($285) to the difference between the renewal of an inactive license ($145) and an active license. The end result is a dentist could reactivate an inactive license for the fee of $140.

Issues: The primary advantage of the amendments to the public is the ability of mobile dental clinics or portable dental operations to be able to renew their permits. There are no disadvantages of the amendments to the public. There are no advantages or disadvantages associated with the amendments to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Dentistry (Board) proposes to (i) reintroduce fees for temporary dental permit applications, temporary dental permit renewals, mobile clinic/portable operation renewals, and mobile clinic/portable operation late renewals; and (ii) introduce new fees for moderate sedation permit reinstatements and deep sedation/general anesthesia permit reinstatements. The Board also proposes to reduce the fee for reactivating an inactive dental license.

Background. Prior to December of 2015, all fees were in 18VAC60-20, Regulations Governing Dental Practice. Action 3252¹ repealed 18VAC60-20, and created four new regulations that covered the subject matter that had been addressed in that regulation. 18VAC60-15, Regulations Governing the Disciplinary Process; 18VAC60-21, Regulations Governing the Practice of Dentistry; 18VAC60-25, Regulations Governing the Practice of Dental Hygiene; and 18VAC60-30 Regulations Governing the Practice of Dental Assistants, were promulgated. 18VAC60-21 includes standard application, renewal, late, and reinstatement fees for various dental licenses, registrations, certifications, and permits. This new regulation also includes reduced renewal fees only for the year 2016. The four new regulations became effective and the old regulation was officially repealed on December 2, 2015. By regulation, the renewal fees were at the higher standard levels in 2017.² Action 4974,³ which became effective on February 21, 2018, established reduced renewal fees only for the year 2018.

The following three fees were in 18VAC60-20, and thus far have not been in 18VAC60-21: (i) temporary dental permit application, (ii) temporary dental permit renewal, and (iii) mobile dental clinic/portable dental operation late fee. The Board proposes to insert these fees into 18VAC60-21 at their respective 2015 levels from 18VAC60-20. See Table 1.

Table 1

The fee for mobile dental clinic/portable dental operation renewal was included in the only 2016 and only 2018 subsections, but not in the standard fee section. This produced no fee for 2017, 2019, and going forward. The Board also proposes to insert this fee into 18VAC60-21 at its 2015 level from 18VAC60-20.

There currently exist reinstatement fees for lapsed dental licenses and lapsed oral maxillofacial surgeon registrations, but no such fees have been in effect for lapsed sedation permits. The Board proposes $150 fees for reinstatement of lapsed moderate sedation permits and lapsed deep sedation/general anesthesia permits. In the current regulation the reactivation fee for an inactive dental license is $285. The Board proposes to instead charge "the difference between the current renewal fee for inactive licensure and the current renewal fee for active licensure," (i.e., $140).

Estimated Benefits and Costs. Department of Health Professions (DHP) operations are funded through fees charged to those regulated. As of the third quarter of fiscal year 2019, the Board's cash balance was $4,628,752.⁴

As described, the proposed amendments in this action would not substantially affect that balance.

Pursuant to § 54.1-2715 of the Code of Virginia, the Board may issue a temporary dental permit to individuals who (i) have a D.D.S. or D.M.D. degree and are otherwise qualified, (ii) are not licensed to practice dentistry in Virginia, and (iii) have not failed an examination for a license to practice dentistry in the Commonwealth. Also, such temporary permits may be issued only to those who serve as clinicians in dental clinics operated by (a) the Virginia Department of Corrections, (b) the Virginia Department of Health, (c) the Virginia Department of Behavioral Health and Developmental Services, or (d) a Virginia charitable corporation granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code and operating as a clinic for the indigent and uninsured that is organized for the delivery of primary health care services. The proposed $400 fee for temporary dental permit application is equal to the existing $400 fee for dental license application. Likewise, the proposed $285 temporary dental permit renewal fee is equal to the existing $285 dental license renewal fee. There have been no temporary dental permits since 2014. Thus the proposed reintroduction of the temporary dental permit renewal fee would have no initial affect. Though it is possible that the reintroduction of the application fee for the temporary dental permit might discourage some applications, given the lack of activity over the years when there was no fee, this proposal would not likely have a substantial impact.

Mobile dental clinics are self-contained units in which dentistry is practiced that are not confined to a single building and can be transported from one location to another. Portable dental operations are non-facilities in which dental equipment used in the practice of dentistry is transported to and utilized on a temporary basis at an out-of-office location, including patients' homes, schools, nursing homes, or other institutions. According to DHP, there are 28 registered mobile dental clinics/portable dental operations. Without the proposal to reintroduce the mobile clinic/portable operation renewal fee of $150, these entities would not by regulation pay a renewal fee. If all 28 would choose to renew their registration with the proposed $150 fee, that would increase Board revenue by $4,200. It is not known how many of the 28 would be late in paying their renewal fee. Nevertheless, proposed reintroduction of the $50 late fee would likely have negligible impact on revenue. Though it may increase the likelihood that regulants pay their renewal fee on time.

18VAC60-21-240 states that "Any person whose license or permit has expired for more than one year or whose license or permit has been revoked or suspended and who wishes to reinstate such license or permit shall submit a reinstatement application and the reinstatement fee." The current regulation does not include specified reinstatement fees for lapsed sedation permits. According to DHP, "It is unknown how many sedation/anesthesia permit holders would be affected; the Board has had requested from a couple of dentists to reinstate lapsed permits." Thus the Board's proposal to introduce a $150 fee for both moderate sedation permit and deep sedation/general anesthesia permit would likely have minimal revenue impact. Given the earnings of dentists,⁵ the proposed fee amount would not likely discourage reinstatement.

Any dentist who holds a current, unrestricted license in Virginia may, upon a request on the renewal application and submission of a $145 fee, be issued an inactive license. With the exception of practice with a current restricted volunteer license, the holder of an inactive license may not perform any act requiring a license to practice dentistry in Virginia. The Board proposes to reduce the fee for reactivation of an inactive license from $285 to $140. Given the earnings of dentists,⁶ the proposed fee reduction would not likely materially affect decisions on whether or not to reactivate inactive dental licenses. There are currently 299 inactive dental licenses.⁷ Typically seven or eight licenses are reactivated each year.⁸ If there are on average 7.5 reactivations annually, the $145 reduction in fee revenue received per reactivation would reduce the Board's cash balance by $1,087.50 annually.

Businesses and Other Entities Affected. The proposed amendments affect mobile dental clinics/portable dental operations, and potentially some dental practices. There are 28 registered mobile dental clinics/portable dental operations⁹ and 3,267 offices of dentists¹⁰ in the Commonwealth. All of the mobile dental clinics/portable dental operations and dental practices with dentists who have lapsed moderate sedation permits or lapsed deep sedation/general anesthesia permits that they may wish to reinstate would be particularly affected.

Since temporary permits may be issued to those who serve as clinicians in dental clinics operated by (i) the Virginia Department of Corrections, (ii) the Virginia Department of Health, (iii) the Virginia Department of Behavioral Health and Developmental Services, or (iv) a Virginia charitable corporation granted tax-exempt status under § 501(c)(3) of the Internal Revenue Code and operating as a clinic for the indigent and uninsured that is organized for the delivery of primary health care services, these entities could be affected by the proposed reintroduction of the temporary dental permit application and temporary dental permit renewal fees. Given the lack of activity over the years concerning the temporary permit, there would not likely be a substantial impact.

Localities¹¹ Affected.¹² The proposed amendments apply throughout the Commonwealth, and do not disproportionately affect particular localities. The proposed amendments do not introduce costs for local governments. Accordingly, no additional funds would be required.

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

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses:¹³

Types and Estimated Number of Small Businesses Affected. The 28 registered mobile dental clinics/portable dental operations are likely small businesses or nonprofit organizations or part of such organizations. All 3,267 offices of dentists in the Commonwealth qualify as small businesses.¹⁴

Costs and Other Effects. The proposal to reintroduce the mobile clinic/portable operation renewal fee of $150 increases costs for those entities that are or are part of small businesses by that amount annually. Dental practices with a dentist who has a lapsed moderate sedation permit or lapsed deep

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

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¹See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=3252.

²Renewal fees that were not included in 18VAC60-21 remained, of course, at $0.

³See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4974.

⁴See https://www.dhp.virginia.gov/about/stats/2019Q3/07BoardCashBalancesQ3FY2019.pdf.

⁵The mean annual wage for dentists in Virginia is $199,870. See https://www.bls.gov/oes/current/oes_va.htm.

⁶Ibid.

⁷Data source: Department of Health Professions.

⁸DHP reports that there were seven reactivations in 2016, seven reactivations in 2017, and eight reactivations in 2018. Through August 30, there have been four reactivations thus far in 2019.

⁹Data source: Department of Health Professions.

¹⁰Data source: Virginia Employment Commission.

¹¹"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.

¹²Section 2.2-4007.04 of the Code of Virginia defines "particularly affected" as bearing disproportionate material impact.

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."

¹⁴Data source: Virginia Employment Commission.

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

Summary:

The amendments (i) correct the displacement of the applicable renewal fee and late fee for mobile clinics or portable operations in 18VAC60-21-40 and the omission of that fee in 18VAC60-21-240; (ii) correct the omission of the application fee for temporary dental permits issued pursuant to § 54.1-2715 of the Code of Virginia; (iii) add information regarding certain fees; and (iv) reduce the fee for reactivation of an inactive license to the difference between the renewal of an inactive license and an active license, which is $140.

18VAC60-21-40. Required fees.

A. Application/registration fees.

B. Renewal fees.

C. Late fees.

C. Late fees.

D. Reinstatement fees.

E. Document fees.

F. Other fees.

G. No fee will be refunded or applied for any purpose other than the purpose for which the fee is submitted.

H. For the renewal of an active dental license in 2021, fees shall be prorated according to a licensee's birth month as follows:

18VAC60-21-220. Inactive license.

A. Any dentist who holds a current, unrestricted license in Virginia may, upon a request on the renewal application and submission of the required fee, be issued an inactive license. With the exception of practice with a current restricted volunteer license as provided in § 54.1-2712.1 of the Code, the holder of an inactive license shall not be entitled to perform any act requiring a license to practice dentistry in Virginia.

B. An inactive license may be reactivated upon submission of the required application, which includes evidence of continuing competence and payment of the difference between the current renewal fee for inactive licensure and the current renewal fee for active licensure. To evaluate continuing competence the board shall consider (i) hours of continuing education that meet the requirements of 18VAC60-21-250; (ii) evidence of active practice in another state or in federal service; (iii) current specialty board certification; (iv) recent passage of a clinical competency examination that is accepted by the board; or (v) a refresher program offered by a program accredited by the Commission on Dental Accreditation of the American Dental Association.

1. Continuing education hours equal to the requirement for the number of years in which the license has been inactive, not to exceed a total of 45 hours, must be included with the application. Of the required hours, at least 15 must be earned in the most recent 12 months and the remainder within the 36 months immediately preceding the application for activation.

2. The board reserves the right to deny a request for reactivation to any licensee who has been determined to have committed an act in violation of § 54.1-2706 of the Code or who is unable to demonstrate continuing competence.

18VAC60-21-240. License renewal and reinstatement.

A. The license or permit of any person who does not return the completed renewal form and fees by the deadline shall automatically expire and become invalid, and his practice of dentistry shall be illegal. With the exception of practice with a current, restricted volunteer license as provided in § 54.1-2712.1 of the Code practicing in Virginia with an expired license or permit may subject the licensee to disciplinary action by the board.

B. Prior to 2022, every person holding an active or inactive license and those holding a permit to administer moderate sedation, deep sedation, or general anesthesia shall annually, on or before March 31, renew his license or permit. Beginning in January 2022, every person holding an active or inactive license and those holding a permit to administer moderate sedation, deep sedation, or general anesthesia shall annually renew his license or permit in his birth month in accordance with fees set forth in 18VAC60-21-40.

C. Every person holding a faculty license, temporary resident's license, a restricted volunteer license, or a temporary permit shall, on or before June 30, request renewal of his license.

D. Every person holding a permit as a mobile clinic or portable dental operation shall renew annually by December 31.

E. Any person who does not return the completed form and fee by the deadline required in subsection B of this section shall be required to pay an additional late fee.

E. F. The board shall renew a license or permit if the renewal form, renewal fee, and late fee are received within one year of the deadline required in subsection B of this section provided that no grounds exist to deny said renewal pursuant to § 54.1-2706 of the Code and Part II (18VAC60-21-50 et seq.) of this chapter.

F. G. Reinstatement procedures.

1. Any person whose license or permit has expired for more than one year or whose license or permit has been revoked or suspended and who wishes to reinstate such license or permit shall submit a reinstatement application and the reinstatement fee. The application must include evidence of continuing competence.

2. To evaluate continuing competence, the board shall consider (i) hours of continuing education that meet the requirements of subsection H of 18VAC60-21-250; (ii) evidence of active practice in another state or in federal service; (iii) current specialty board certification; (iv) recent passage of a clinical competency examination accepted by the board; or (v) a refresher program offered by a program accredited by the Commission on Dental Accreditation of the American Dental Association.

3. The executive director may reinstate such expired license or permit provided that the applicant can demonstrate continuing competence, the applicant has paid the reinstatement fee and any fines or assessments, and no grounds exist to deny said reinstatement pursuant to § 54.1-2706 of the Code and Part II (18VAC60-21-50 et seq.) of this chapter.