TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-15. Regulations Governing Delegation to an Agency Subordinate (amending 18VAC85-15-20).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 14, 2024.

Effective Date: August 29, 2024.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4688, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Regulations of the Board of Medicine are promulgated under § 54.1-2400 of the Code of Virginia, which authorizes health regulatory boards to promulgate regulations that are reasonable and necessary to effectively administer the regulatory system.

Purpose: The board does not discipline practitioners for defaulting on federal-guaranteed or state-guaranteed educational loans or work-conditional scholarship or grants. Therefore, this provision is not needed to protect the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and is appropriate for the fast-track rulemaking process because the amendment eliminates an unused portion of the regulation.

Substance: The regulatory action removes the ability of the board to delegate cases to an agency subordinate related to default on a federal-guaranteed or state-guaranteed educational loan or on a work-conditional scholarship or grant.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to remove defaulting on an educational loan as a type of case for which it may delegate to an agency subordinate the authority to conduct an informal fact-finding proceeding.

Background. In accordance with subdivision 10 of § 54.1-2400 of the Code of Virginia,² the board may delegate an informal fact-finding proceeding to an agency subordinate upon determination that probable cause exists that a practitioner may be subject to a disciplinary action. The current regulation states that the following six types of cases may be delegated to an agency subordinate:

1. The practitioner profile system;

2. Continuing competency;

3. Advertising;

4. Compliance with board orders;

5. Default on a federal or state-guaranteed educational loan or on a work-conditional scholarship or grant for the cost of a health professional education; or

6. Failure to provide medical records.

The board proposes to remove subdivision 5. This change is in response to a 2022 periodic review³ and the provisions of Chapter 170 of the 2018 Acts of Assembly, which limited the ability of certain agencies to take action regarding a practitioner's license solely on the basis of such a default.⁴ According to the Department of Health Professions (DHP), current agency staff (including those who have been there more than 20 years) are not aware of the board having ever taken disciplinary action for loan default in practice.

Estimated Benefits and Costs. As described, the board does not in practice discipline practitioners for defaulting on loans of any kind. Therefore, removing the provision on defaulting would have no impact in practice. It may be moderately beneficial in that readers of the regulation would not be misled into thinking that the board did discipline practitioners for defaulting on loans.

Businesses and Other Entities Affected. The proposed amendment affects readers of the regulation and DHP staff. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ 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 the proposal does not increase cost or reduce revenue, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷ The proposed amendment does not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposed amendment does not disproportionately affect any locality or affect costs for local governments.

Projected Impact on Employment. The proposed amendment does not affect employment.

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

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¹ Section 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.

² See https://law.lis.virginia.gov/vacode/54.1-2400/.

³ See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2146.

⁴ See https://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil&val=ch170.

⁵ Pursuant 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.

⁶ Pursuant 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."

⁷ If 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.

⁸ "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.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendment removes the ability of the board to delegate a case to an agency subordinate that is related to default on a federal-guaranteed or state-guaranteed educational loan or work-conditional scholarship or grant for the cost of a health professional education.

18VAC85-15-20. Criteria for delegation.

Cases that may be delegated to an agency subordinate shall be limited to those involving:

1. The practitioner profile system;

2. Continuing competency;

3. Advertising;

4. Compliance with board orders; or

5. Default on a federal or state-guaranteed educational loan or on a work-conditional scholarship or grant for the cost of a health professional education; or

6. Failure to provide medical records.