Title of Regulation: 18VAC90-15. Regulations Governing Delegation to an Agency Subordinate (amending 18VAC90-15-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 17, 2013.

Effective Date: August 2, 2013.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards, including the responsibility to promulgate regulations and the authority to delegate an informal conference to an agency subordinate.

Purpose: One of the most important functions of the Department of Health Professions is the investigation and adjudication of disciplinary cases to ensure that the public is adequately protected if a health care professional violates a law or regulation. Delegation of informal conferences to an agency subordinate, who is either a former board member or former board staff, allows the Board of Nursing to bring closure to cases to protect the health and safety of the public.

In § 2.2-4019 of the Code of Virginia, provisions for an informal fact-finding proceeding establish the rights of parties to a disciplinary case, including the right to "appear in person or by counsel or other qualified representative before the agency or its subordinates, or before a hearing officer for the informal presentation of factual data, argument, or proof in connection with any case." While certain standard of care cases continue to be heard by board members appointed to a special conference committee, a decision to delegate cases that may involve harm or injury to a patient must be approved by the board president. The ability to have the executive director make decisions on delegation will facilitate scheduling of proceedings before an agency subordinate, thus ensuring resolution in a timelier manner and reserving board member time for hearing more serious matters.

Rationale for Using Fast-Track Process: The amendment is less restrictive and not controversial. Professional staff for the board already determines which cases should be heard by an agency subordinate. The board unanimously agreed that the additional step of getting approval by the board president for delegating certain cases is unnecessary.

Substance: The amendment allows approval by the president or the executive director of the board for delegation to an agency subordinate cases that involve injury or harm to a patient.

Issues: The primary advantage to the public is more timely resolution of disciplinary cases. There are no disadvantages.

The advantage to the Commonwealth is facilitation of the delegation process and preservation of board member time for proceedings that involve more serious allegations.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to amend its regulations that set the rules for delegation to an agency subordinate by adding the executive director of the Board as an entity that has the power to delegate.

Result of Analysis. Benefits likely outweigh costs for these proposed regulations.

Estimated Economic Impact. Current regulations state that cases that involve serious injury or harm to a patient may not be delegated to an agency subordinate except when such delegation is approved by the president of the Board. The Board proposes to add the executive director of the Board as a second entity who can approve delegation. No entity is likely to incur any costs on account of this regulatory change. To the extent that this change allows disciplinary cases to be resolved more quickly, both regulated entities and individuals who have filed complaints will likely benefit.

Businesses and Entities Affected. The Department of Health Professions (DHP) reports that there are no good estimates of how many entities will be affected by this proposed change.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur costs on account of this proposed change.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur costs on account of this proposed change.

Real Estate Development Costs. This regulatory action will likely have no effect 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 14 (10). 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 Economic Impact Analysis: The Board of Nursing concurs with the economic impact analysis of the Department of Planning and Budget on proposed amended regulations for 18VAC90-15, Regulations Governing Delegation to an Agency Subordinate.

Summary:

The amendment permits the executive director of the board to delegate to an agency subordinate cases that involve injury or harm to a patient.

18VAC90-15-20. Criteria for delegation.

Cases that involve intentional or negligent conduct that caused serious injury or harm to a patient may not be delegated to an agency subordinate, except as may be approved by the president or executive director of the board.