Title of Regulation: 12VAC5-520. Regulations Governing the Dental Scholarship and Loan Repayment Programs (amending 12VAC5-520-10, 12VAC5-520-130, 12VAC5-520-150, 12VAC5-520-160, 12VAC5-520-180, 12VAC5-520-190, 12VAC5-520-200, 12VAC5-520-210; repealing 12VAC5-520-30).

Statutory Authority: §§ 32.1-122.9 and 32.1-122.9:1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: April 16, 2010.

Agency Contact: Elizabeth Barrett, Department of Health, 109 Governor St., Richmond, VA 23219, telephone (804) 864-7824, or email elizabeth.barrett@vdh.virginia.gov.

Basis: The State Board of Health (board) is authorized to make, adopt, promulgate, and enforce regulations by § 32.1-12 of the Code of Virginia.

Section 32.1-122.9 of the Code of Virginia requires the board to establish annual dental scholarships for students in good standing at Virginia Commonwealth University and to promulgate regulations to administer this scholarship program.

Chapter 174 of the 2000 Acts of Assembly created the Dental Loan Repayment Program in § 32.1-122.9:1 of the Code of Virginia, authorizing the board to establish "a dentist loan repayment program for graduates of accredited dental schools …who agree to perform a period of dental service in the Commonwealth in an underserved area as defined in § 32.1-122.5 of the dental scholarship program or a dental health professional shortage area designated in accordance with the criteria established in 42 CFR Part 5."

Purpose: The dental scholarship and loan repayment programs help protect and improve the public's health and welfare by improving the distribution of dentists to ensure that dental health services are available in the underserved areas of Virginia. The Code of Virginia requires that regulations be adopted for the administration of the programs. The goals of this proposal are to address comments received from the periodic review as well as to make the existing regulations clearer and more efficient, thus making the programs easier and more cost effective to administer.

Substance: The following substantive changes to the dental scholarship and loan repayment regulations are proposed to resolve ambiguities in language and to improve the ease of administration of the program:

1. Amend 12VAC5-520-10 to more clearly define certain terms used in the regulation.

2. Amend 12VAC5-520-130 to expand the time limit for application to the loan repayment program by dental specialists such as oral surgeons.

3. Amend 12VAC5-520-150 to clarify the scholarship application process and eligibility and to remove the criteria that scholarships be awarded prior to loan repayment.

4. Amend 12VAC5-520-160 to decrease the timeframe for reimbursement of moneys paid to dentists who default on their scholarship contract and later fulfill their obligation.

Issues: The proposed regulatory action will make the program more cost effective to administer, an indirect cost-savings benefit to individual citizens. Further, the actions are necessary to improve the access to dental specialty and general oral health services and to ensure adequate availability of dental services in areas of Virginia where there are presently insufficient dental services. Certain dental specialists also will benefit from the amendments to the dental scholarship and loan repayment programs, as these proposed changes will enable them to be eligible for a loan repayment award. Making the administration of programs more efficient and increasing cost-saving is a benefit to the agency.

The regulatory action poses no 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 State Board of Health (Board) proposes the following changes to the Regulations Governing the Dental Scholarship and Loan Repayment Programs: 1) substantial amendments to the definitions of "Loan repayment award" and "Interest at the prevailing bank rate for similar amounts of unsecured debt," 2) an extension of the application time limit for specialists, allowing them to apply up to five years after completion of residency training, 3) limiting scholarship awards eligibility to junior and senior dental students, except in cases of extreme need in underclassmen, 4) elimination of the criteria that loan repayment awards be based on financial need, and 5) clarifications and some additional minor changes.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current regulations define "Dentist loan repayment award" as "an amount repaid to a dentist for dental school loans in an amount equivalent to one year in-state tuition at Virginia Commonwealth University School of Dentistry for the year in which the loan was acquired and for which the dentist is under a contractual obligation to repay through practice in an underserved area or designated state facility." The board proposes to redefine the amount of the "loan repayment award" to be "an amount equivalent to the current in-state tuition and mandatory fees at Virginia Commonwealth University School of Dentistry … This amount may be capped at the discretion of the commissioner." The proposed change makes the amount awarded consistent between recipients and makes planning much easier. The proposed ability to cap the amount awarded per recipient is a useful tool particularly when the available funds are low and it is deemed to make sense to grant awards to a somewhat larger number of qualified recipients than to limit the number of qualified recipients who receive awards.

The current regulations define "Interest at the prevailing bank rate for similar amounts of unsecured debt" as "the prime lending rate as published in the Wall Street Journal on the last day of the month in which the decision to repay is communicated to the commissioner by the recipient, plus two percentage points." The board proposes to change the definition to refer to the first day of the month rather than the last day of the month. This is beneficial in that it will allow the Board and Department of Health staff to take action sooner.

Under the current regulations all applicants for the Virginia Dentist Loan Repayment Program must be within five years of graduation from an accredited undergraduate dental program in order to be eligible. The board proposes to extend the application time limit for specialists, allowing them to apply up to five years after completion of residency training. The current regulations in practice leave very little time for specialists to apply for the program after the completion of their studies. The proposal is beneficial in that it increases the likelihood that specialists will be encouraged by the program to serve underserved areas.

According to the Department of Health, the default rate for scholarship recipients is an ongoing problem and was particularly high in fiscal year 2008. After consultation with Virginia Commonwealth University School of Dentistry staff, the Board believes that if scholarship awards were to be essentially limited to upper classmen, students would be selected who were most likely to fulfill the terms of their obligation upon graduation. Consequently, the Board proposes to add the following text to the regulations: "Scholarship awards will be made annually by October 30 to third and fourth year dental students. First and second year students will be considered for an award only in the event of extreme financial need."

Scholarship award recipients are considered in default if they fail to fulfill their contractual obligations, which include: 1) pursuing the dental course of Virginia Commonwealth University until graduation and 2) upon graduation or upon graduation from an accredited residency program that does not exceed four years, continuously engage in full-time dental practice in a dental underserved area of Virginia or in a designated state facility for a period of years equal to the number of annual scholarships received.

The Board proposes to eliminate the current criteria that loan repayment awards be based on financial need. If the primary goal of the loan repayment program is to encourage dentists to serve underserved areas, then this proposed change can potentially aid in achieving that goal. Dentists who are not in financial need can potentially be encouraged to serve underserved areas with the help of financial incentives such as the loan repayment program. Also, eliminating this criterion will reduce administrative costs for the Department of Health.

Businesses and Entities Affected. Annually, approximately 15-17 dentists receive direct benefit from a scholarship or loan repayment award.¹ All dental practices would likely qualify as small businesses.

Localities Particularly Affected. These regulations particularly affect localities which have been determined to be underserved by dentists. According to Department of Health calculations, all localities except the following are at least partially underserved: Albemarle/Charlottesville, Alexandria, Arlington, Chesapeake, Chesterfield/Colonial Heights, Essex, Fairfax County/Fairfax City/Falls Church, Grayson/Galax, Hanover, Henrico, James City/Williamsburg, Lancaster, Loudoun, Lynchburg, Middlesex, Nottoway, Petersburg, Richmond City, Roanoke County/Roanoke City/Salem, Stafford/Fredericksburg, and Virginia Beach.

Projected Impact on Employment. The proposed amendments do not significantly affect the quantity of employment.

Effects on the Use and Value of Private Property. The proposal to extend the application time limit for specialists, allowing them to apply up to five years after completion of residency training, may moderately increase the likelihood that specialists set up practices in underserved areas.

Small Businesses: Costs and Other Effects. The proposal to extend the application time limit for specialists, allowing them to apply up to five years after completion of residency training, can reduce the net costs of specialists serving in underserved areas. Thus their practices, which would be small businesses, would have reduced net costs.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

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.

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¹ Source: Virginia Department of Health

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

Summary:

The proposed amendments (i) substantially amend the definitions of "loan repayment award" and "interest at the prevailing bank rate for similar amounts of unsecured debt;" (ii) extend the application time limit for specialists, allowing them to apply up to five years after completion of residency training; (iii) limit scholarship awards eligibility to junior and senior dental students, except in cases of extreme need in underclassmen; and (iv) eliminate the criteria that loan repayment awards be based on financial need.

Part I
Definitions

12VAC5-520-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Accredited dental school" means any dental school in the United States receiving accreditation from the Commission on Dental Accreditation.

"Accredited residency" means an advanced dental education program in general or specialty dentistry accredited by the Commission on Dental Accreditation and approved by the American Dental Association.

"Board" or "Board of Health" means the State Board of Health.

"Commissioner" means the State Health Commissioner.

"Dental practice" means the practice of dentistry by a recipient in general or specialty dentistry in a geographic area determined to be fulfillment of the recipient's scholarship or loan repayment obligation or practice as a dentist with within a designated state facility.

"Dental underserved area" means a geographic area in Virginia designated by the State Board of Health as a county or city in which the ratio of practitioners of dentistry to population is less than that for the Commonwealth as a whole as determined by the commissioner or a dental health professions shortage area using criteria described in Part II (12VAC5-520-80 et seq.) of this chapter.

"Dentist loan repayment award" means an amount repaid to a dentist for dental school loans in an amount equivalent to one year in-state tuition at Virginia Commonwealth University School of Dentistry for the year in which the loan was acquired, and for which the dentist is under a contractual obligation to repay through practice in an underserved area or designated state facility.

"Dentist loan repayment program" means the program established by § 32.1-122.9:1 of the Code of Virginia that allocates funds appropriated in conjunction with the dental scholarship program to increase the number of dentists in underserved areas of Virginia.

"Designated state facility" means practice as a dentist in a facility operated by the Virginia Department of Health, or Virginia Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services, Virginia Department of Juvenile Justice, or the Virginia Department of Corrections.

"Full-time dental practice" means the practice of dentistry for an average of a minimum of 32 hours per week excluding those exceptions enumerated in Part III (12VAC5-520-130 et seq.) (12VAC5-520-160 et seq.) of this chapter.

"Governing Board of Virginia Commonwealth University" means the official governing body of the university or their designee.

"Interest at the prevailing bank rate for similar amounts of unsecured debt" means the prime lending rate plus 2.0% as published in the Wall Street Journal on the last first day of the month in which the decision to repay is communicated to the commissioner by the recipient, plus two percentage points or on the first day of the month that the commissioner determines the recipient to be in default.

"Internship or residency at an approved institution or facility" means an advanced dental education program in general dentistry or dental specialty accredited by the Commission on Dental Accreditation and approved by the American Dental Association.

"Loan repayment award" means an award paid to a dentist for dental school loans in an amount equivalent to the current in-state tuition and mandatory fees at Virginia Commonwealth University School of Dentistry, and for which the dentist is under a contractual obligation to repay through practice in an underserved area or designated state facility. This amount may be capped at the discretion of the commissioner.

"Participating dental school" means Virginia Commonwealth University School of Dentistry.

"Penalty" means an amount of money equal to three times the amount of all monetary scholarship or loan repayment awards paid to the recipient.

"Period of dental service" means one year of service in a dental underserved area in return for one year of scholarship or loan repayment as defined in Part III (12VAC5-520-130 et seq.) of this chapter.

"Practice of general or specialty dentistry" means the evaluation, diagnosis, prevention and treatment (nonsurgical, surgical or related procedures) of diseases, disorders and conditions of the oral cavity, maxillofacial and adjacent and associated structures and their impact on the human body.

"Primary dental health care" means the practice of general or specialty dentistry.

"Public health service" means employment with the United States Public Health Service.

"Restitution" means the amount of monetary reimbursement, including repayment of all pertinent scholarship or loan repayment awards three times the award amount received plus penalty and applicable interest at the prevailing bank rate for similar amounts of unsecured debt as set forth in this regulation, owed to the Commonwealth of Virginia by a scholarship or loan repayment recipient who is in default of his contractual obligation as provided for in this chapter.

"Scholarship award" means an amount equivalent to one year of in-state tuition and mandatory fees at Virginia Commonwealth University School of Dentistry for the academic year a student is enrolled and for which the dental student entered a contractual obligation to repay through practice in an underserved area or designated state facility. This amount may be capped at the discretion of the commissioner.

"Scholarship recipient" means an eligible dental student who enters into a contract with the commissioner and receives one or more scholarship awards from the Virginia Dental Scholarship Program.

"Specialty dental practice" dentistry" means the advanced practice of dentistry in any specialty approved by the American Dental Association and accredited by the Commission on Dental Accreditation.

"Virginia dental scholarship" means an award of an amount equivalent to one year of in-state tuition at Virginia Commonwealth University School of Dentistry for the academic year a student is enrolled in a participating dental school and for which the dental student entered a contractual obligation to repay through practice in an underserved area or designated state facility.

12VAC5-520-30. Applicability. (Repealed.)

These definitions shall apply to all recipients who begin practice in an underserved area as fulfillment of their scholarship or loan repayment obligation on July 1, 2001, or later, provided that approval given by the commissioner prior to May 8, 2002, shall remain in full force and effect.

Part III
Scholarship and Loan Repayment Awards

12VAC5-520-130. Eligible applicants.

A. Any currently enrolled dental student in good standing and full-time attendance at Virginia Commonwealth University School of Dentistry who has not entered the first year of an accredited residency shall be eligible for the Virginia Dental Scholarship Program. Preference for the scholarship award shall be given to residents of the Commonwealth, students who are residents of a dental underserved area, and students from economically disadvantaged backgrounds.

B. Any graduate of an accredited dental school in the United States who is establishing a practice in general or specialty dentistry in an underserved area or practicing dentistry in a designated state facility shall be eligible to apply for the Virginia Dentist Loan Repayment Program. Eligible applicants General practice dentists will be within five years of graduation from an accredited undergraduate dental program and have existing loans accumulated as a result of their first professional education undergraduate dental program. Dentists who have received dental scholarship program awards and dentists who have accepted Exceptional Financial Need (EFN) and Financial Assistance for Disadvantaged Health Professions Students (FADHPS) scholarships are not eligible for the Dentist Loan Repayment Program. Specialty practice dentists will be within five years of completion of their specialty training and have existing loans accumulated as a result of their undergraduate dental program. Dentists who received Virginia scholarship awards or other scholarships that paid their full tuition and fees are not eligible for the Dentist Loan Repayment Program for the years they received those awards.

12VAC5-520-150. Distribution of scholarships and loan repayment awards.

The Virginia General Assembly establishes the total combined appropriation for the dental scholarship and dentist loan repayment programs. Funds shall be awarded for these programs based on the following criteria:

1. Virginia Commonwealth University School of Dentistry shall establish an use the application procedure established by the commissioner and annually submit the names of qualified students to receive scholarships in accordance with the criteria for preference enumerated in this section 12VAC5-520-130. Dental scholarships will be awarded on or before October 30 of each fiscal year with remaining funds disbursed through the Dentist Loan Repayment Program. The total annual number of scholarship awards will be based on availability of funds. Scholarship awards will be made annually by October 30 to third-year and fourth-year dental students. First-year and second-year students will be considered for an award only in the event of extreme financial need. Individual scholarship recipients may receive a maximum of five scholarship awards.

2. The application period for the Dentist Loan Repayment Program will follow that for the Dental Scholarship Program, begin in October with awards made by January 30 the end of each fiscal year. Preference for loan repayment awards will be given to dental students graduating from graduates of Virginia Commonwealth University School of Dentistry and those with established financial need. Individual loan repayment recipients may receive a maximum of three four awards upon graduation from dental school. All awards will be competitive based on the criteria enumerated in this section and will be based on availability of loan repayment funds once scholarship funds are disbursed.

12VAC5-520-160. Contractual practice obligation.

Prior to the payment of money to a scholarship or loan repayment awardee recipient, the commissioner shall prepare and enter into a contract with the recipient. The contract shall:

1. Provide that the recipient of the dental scholarship award shall pursue the dental course of Virginia Commonwealth University until graduation and upon graduation or upon graduation from an accredited residency program that does not exceed four years, shall notify the commissioner in writing of his proposed practice location or intent to enter a residency not more than 30 days after graduation and begin his approved practice within 90 days after completing dental school or residency, and thereafter continuously engage in full-time dental practice in a dental underserved area of Virginia or in a designated state facility for a period of years equal to the number of annual scholarships received.

2. Provide that upon graduation from an accredited dental school and receiving notification of the dentist loan repayment award, the dentist shall begin his approved practice within 90 days and thereafter continuously engage in full-time dental practice in an underserved area of Virginia or in a designated state facility for a period of years equal to the number of loan repayment awards received.

3. Provide that at any time prior to entering practice, the scholarship or loan repayment recipient shall be allowed to select a future practice location from the listing of dental underserved areas maintained by the board.

4. Provide that the recipient may request approval of a change of practice location. The commissioner in his discretion may approve such a request, but only if the change is to a practice location in a dental underserved area or a state facility designated by the Board of Health.

5. Provide that the recipient shall repay the scholarship or loan repayment obligation by practicing dentistry on a full-time basis in a dental underserved area, shall maintain office hours convenient for the population of the area to have access to the recipient's services and shall participate in all government-sponsored insurance programs designed to ensure access to dental services of recipients of public assistance. The recipient shall not selectively place limits on the numbers of such patients admitted to the practice.

6. Provide that the recipient shall not voluntarily obligate himself for more than the minimum period of military service required of dentists by the laws of the United States and that upon completion of the minimum period of military service, the recipient shall promptly begin and thereafter continuously engage in full-time dental practice in a dental underserved area of Virginia or in a designated state facility for the period of years equal to the number of scholarships received. Dental practice in federal agencies, military service or the U.S. Public Health Service may not be substituted for scholarship obligation.

7. Provide that the recipient shall receive credit toward fulfillment of his contractual obligation at the rate of 12 months of dental practice for each scholarship or loan repayment award paid to the recipient. The recipient may be absent from the place of approved practice for a total of seven four weeks in each 12-month period for personal reasons. Absence for a period in excess of seven four weeks without the written permission of the commissioner shall result in proportional reduction of the period of credit toward fulfillment of the contractual obligation.

8. Provide that should the scholarship recipient pay restitution by not serving his scholarship obligation in an underserved area, and later within five years of paying restitution fulfills the terms of his contract through dental practice as outlined in this section, that the recipient will be reimbursed for all or part of any scholarship amount award paid based on the fulfillment of the scholarship and availability of funds.

Part V
Special Circumstances

12VAC5-520-180. Fractional need.

The Board of Health recognizes that instances will occur when the ratio of dental practitioners to population reflects a fractional share of need. In such instances and in recognition of the advantages that accrue to the dentist and the community from two or more dentists working on in an associated or cooperative basis, the commissioner may in his discretion favorably consider the approval of an additional dentist in order to facilitate such an arrangement.

Part VI
Default

12VAC5-520-190. Default.

A. With respect to default, the contract shall provide that a scholarship or loan repayment recipient who fails to fulfill his obligation to practice dentistry as described in 12VAC5-520-160 shall be deemed in default under the following circumstances and shall forfeit all monetary scholarship or loan repayment awards made to him and shall make repayment of those funds plus interest plus penalty, where applicable to repay the Commonwealth of Virginia as provided for in this chapter. The contract shall:

1. Provide that if the scholarship recipient defaults while still in dental school, by voluntarily notifying the commissioner in writing that he will not practice dentistry in a Virginia dental underserved area as required by his contract, by voluntarily not proceeding to the next year of dental education, or by withdrawing from dental school, the student shall pay the Commonwealth of Virginia all monetary scholarship awards plus interest at the prevailing bank rate for similar amounts of unsecured debt.

2. Provide that the scholarship recipient who defaults by failing to maintain grade levels that will allow the dental student to graduate, or by reason of his dismissal from dental school for any reason, shall repay the Commonwealth of Virginia all monetary scholarship awards plus interest at the prevailing bank rate for similar amounts of unsecured debt.

3. Provide that if the scholarship or loan repayment recipient is in default due to death or permanent disability so as not to be able to engage in dental practice, the recipient or his personal representative shall repay the Commonwealth all monetary scholarship awards plus 8.0% interest on the amount of the award. Partial fulfillment of the recipient's contractual obligation by the practice of dentistry as provided for in this contract prior to death or permanent disability shall reduce the amount of repayment plus interest due by a proportionate amount of money, such proportion being determined as the ratio of the number of whole months that a recipient has practiced dentistry in an approved location to the total number of months of the contractual obligation the recipient has incurred. The commissioner may waive all or part of the scholarship or loan repayment obligation under application by the recipient or his estate under these conditions and consider whole or partial forgiveness of payment or service in consideration of individual cases of extraordinary hardship or inability to pay.

4. Provide that any recipient of a scholarship or loan repayment who defaults by evasion or refusal to fulfill the obligation to practice dentistry in an underserved area or designated state facility for a period of years equal to the number of annual scholarships or loan repayment awards received shall make restitution by repaying all monetary scholarship or loan repayment awards plus penalty plus interest to the Commonwealth of Virginia.

B. A scholarship or loan repayment recipient will be considered to be in such default on the date:

1. The commissioner is notified in writing by the recipient that he does not intend to fulfill his contractual obligation;

2. The recipient has not accepted a placement and commenced his period of obligated practice as provided for in subdivision subdivisions 1 and 2 of 12VAC5-520-160; or

3. The recipient absents himself without the consent of the commissioner from the place of dental practice that the commissioner has approved for fulfillment of his contractual obligation.

Part VII
Repayment

12VAC5-520-200. Repayment.

Repayment requirements for scholarship and loan repayment recipients are as follows:

1. Payment of restitution or repayment of award plus interest shall be due on the date that the recipient is deemed by the commissioner to be in default.

2. The commissioner in his discretion shall permit extension of the period of payment of restitution plus interest repayment for up to 24 months from the date that the recipient is deemed to be in default.

3. Partial fulfillment of the recipient's contractual obligation by the practice of dentistry as provided for in this contract shall reduce the amount of restitution or payment plus interest due by an amount of money equal to the same percentage of all monetary awards as by a percentage based on the number of whole months that the recipient has practiced dentistry in an approved location as a percentage of and the total number of months of the contractual obligation the recipient has incurred.

4. Failure of a recipient to make any payment on his debt of restitution plus interest when it is due shall be cause for the commissioner to refer the debt to the Attorney General of the Commonwealth of Virginia for collection. The recipient shall be responsible for any costs of collection as may be provided in Virginia law.

Part VIII
Records and Reporting

12VAC5-520-210. Reporting requirements.

Reporting requirements of Virginia Commonwealth University School of Dentistry scholarship and loan repayment recipients are as follows:

1. Virginia Commonwealth University School of Dentistry shall maintain accurate records of the status of scholarship recipients until the recipient's graduation from dental school. The dental school shall provide a report listing the status of each recipient annually to the commissioner.

2. Each scholarship and loan repayment recipient shall at any time provide information as requested by the commissioner to verify compliance with the practice requirements of the scholarship or loan repayment contract. The recipient shall report any changes of mailing address, change of academic standing, change of intent to fulfill his contractual obligation and any other information that may be relevant to the contract at such time as changes or information may occur. The recipient shall respond within 60 30 days with such information as may be requested by the commissioner.