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.