TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF OPTOMETRY

Fast-Track Regulation

Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-41).

Statutory Authority: §§ 54.1-2400 and 54.1-3223 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 25, 2024.

Effective Date: October 10, 2024.

Agency Contact: Kelli Moss, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 597-4077, FAX (804) 793-9145, or email kelli.moss@dhp.virginia.gov.

Basis: Regulations of the Board of Optometry are promulgated under the general authority of § 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: This action protects the public health, safety, and welfare by allowing agency subordinates to hear credentials cases, which expedites the review process for practitioners with nonroutine applications, getting practitioners into the workforce faster.

Rationale for Using Fast-Track Rulemaking Process: This change is not controversial because it is conforming with a statutory change.

Substance: This action deletes the phrase "upon determination that probable cause exists that a practitioner may be subject to a disciplinary action."

Issues: The primary advantage to the public is faster licensing of optometrists with nonroutine applications for licensure. There are no 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 current Regulations of the Virginia Board of Optometry (regulation) allows the Board of Optometry (board) to delegate an informal fact-finding proceeding to an agency subordinate² only upon a determination that probable cause exists that a practitioner may be subject to a disciplinary action. Following recent statutory changes governing these proceedings, the board proposes to remove this restriction.

Background. Subdivision 10 of § 54.1-2400 of the Code of Virginia authorizes the board to appoint a special conference committee to ascertain the fact basis for decisions of cases through informal conference or consultation proceedings. The statute provides that this may occur "upon receipt of information that a practitioner or permit holder of the appropriate board may be subject to disciplinary action or to consider an application for a license." Prior to legislation this year, the same Code subdivision indicated that the Board may delegate to an appropriately qualified agency subordinate the authority to conduct informal fact-finding proceedings, but only "upon receipt of information that a practitioner may be subject to a disciplinary action." This effectively prevented delegation from occurring to "consider an application for a license." Chapter 191 of the 2023 Acts of Assembly³ removed the requirement that a practitioner must be subject to a disciplinary action in order for the board to make such delegation. Accordingly, the board is now proposing to remove that same restriction from the regulation as it is no longer mandated by statute.

Estimated Benefits and Costs. The proposed amendment would effectively newly permit the delegation of an informal fact-finding proceeding to occur for nonroutine⁴ applications for licensure. Currently, the regulation only allows such delegation to occur when there is information that a practitioner may be subject to a disciplinary action. This proposal could be beneficial in that it may speed the licensing of optometrists with nonroutine applications for licensure. Since this is optional, there do not appear to be any introduced costs.

Businesses and Other Entities Affected. According to the Department of Health Professions, there are typically fewer than three nonroutine applications for optometry licensure that require evidentiary hearings each year. Such applicants, as well as potential delegated agency subordinates, would be particularly affected.

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 there is no increase in net cost nor reduction in net revenue, an adverse impact is not indicated.

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

Localities⁸ Affected.⁹ The proposed amendment neither disproportionately affects any particular locality, nor introduces costs for local governments.

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

Effects on the Use and Value of Private Property. Since the proposed amendment may quicken the licensing of optometrists with nonroutine applications for licensure, such optometrists may start practicing in Virginia sooner. The proposed amendment does 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.

² The current and proposed regulations state that "An agency subordinate authorized by the board to conduct an informal fact-finding proceeding may include current or past board members and professional staff or other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals."

³ See https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+CHAP0191+hil.

⁴ Nonroutine applications may require evidentiary hearings. In contrast, routine applications for licensure do not require such proceedings.

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 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ 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."

⁸ 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.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Optometry concurs with the economic impact analysis prepared by the Department of Planning and Budget with one clarification. Prior to the 2023 General Assembly Session, subdivision 10 of § 54.1-2400 of the Code of Virginia stated that "this subdivision shall not be construed to limit the authority of a board to delegate to an appropriately qualified agency subordinate, as defined in § 2.2-4001, the authority to conduct informal fact-finding proceedings in accordance with § 2.2-4019, upon receipt of information that a practitioner may be subject to disciplinary action." The underlined language limited boards to only using agency subordinates for disciplinary matters. Chapter 191 of the 2023 Acts of Assembly removed the underlined language from the statute, thereby removing the limitation from the statute and allowing the board to use agency subordinates to hear disciplinary cases and credentials cases.

Summary:

Pursuant to Chapter 191 of the 2023 Acts of Assembly, the amendments remove a limitation that agency subordinates be used only for disciplinary matters and allow boards that use agency subordinates to employ those agency subordinates to hear credentials or applications cases as well as disciplinary cases.

18VAC105-20-41. Criteria for delegation of informal fact-finding proceedings to an agency subordinate.

A. Decision to delegate. In accordance with subdivision 10 of § 54.1-2400 (10) of the Code of Virginia, 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.

B. Criteria for delegation. Cases may be delegated to an agency subordinate upon approval by a committee of the board, except those in which an optometrist may have conducted his practice in such a manner as to endanger the health and welfare of his patients or the public.

C. Criteria for an agency subordinate.

1. An agency subordinate authorized by the board to conduct an informal fact-finding proceeding may include current or past board members and professional staff or other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals.

2. The executive director shall maintain a list of appropriately qualified persons to whom an informal fact-finding proceeding may be delegated.

3. The board may delegate to the executive director the selection of the agency subordinate who is deemed appropriately qualified to conduct a proceeding based on the qualifications of the subordinate and the type of case being heard.