Title of Regulation: 12VAC35-12. Public Participation Guidelines (amending 12VAC35-12-50; adding 12VAC35-12-45).

Statutory Authority: §§ 2.2-4007-02 and 37.2-203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 21, 2018.

Effective Date: March 8, 2018.

Agency Contact: Ruth Anne Walker, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 786-8623, or email ruthanne.walker@dbhds.virginia.gov.

Basis: Section 37.2-203 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the commissioner and the Department of Behavioral Health and Developmental Services (DBHDS).

Purpose: This action is the result of a periodic review. No comments were received during the review. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of state regulations to protect the public health and safety. DBHDS is responsible for the direct care of individuals in its facilities and provides oversight for the state's publicly funded behavioral health and developmental services system. This regulatory action will align the regulation in three places with the Code of Virginia and thus facilitate citizen involvement in the regulations of the state board and DBHDS.

Rationale for Using Fast-Track Rulemaking Process: No comments were received during the periodic review. Executive Order 17 (2014) allows state agencies to use a fast-track rulemaking process pursuant to § 2.2-4012.1 of the Code of Virginia to expedite regulatory changes that are expected to be noncontroversial. This regulatory action reflects opportunities for citizen input into the regulatory process, as already established in the Code of Virginia. Therefore, no controversy is anticipated.

Substance: The amendments:

• Adopt 12VAC35-12-45, in accordance with Chapter 599 of the 2017 Acts of Assembly, so that DBHDS shall notify affected providers (i) when new or final regulations are posted on the Virginia Regulatory Town Hall website and when public comment periods pursuant to the existing regulatory processes are established by Virginia law and (ii) each time there is an opportunity to comment on such changes under consideration, including specific comments regarding an appropriate timeframe for the implementation of such changes.

• Update 12VAC35-12-50 A, in accordance with § 2.2-4007.02 of the Code of Virginia, to state that DBHDS shall provide that persons wishing to submit data, views, and arguments related to a regulatory action shall be afforded the opportunity to be accompanied by and represented by counsel or another representative.

• Adopt 12VAC35-12-50 D, in accordance with Chapter 599 of the 2017 Acts of Assembly, to provide that DBHDS will post guidance document changes under development to the Regulatory Town Hall website for a 30-day public comment period.

• Adopt 12VAC35-12-50 E, in accordance with § 37.2-203 of the Code of Virginia, to provide that at least 30 days prior to the board's action to adopt, amend, or repeal any regulation regarding substance abuse services, the board shall present the proposed regulation to the Substance Abuse Services Council for the council's review and comment.

Issues: The primary advantage to the public and the Commonwealth is conformation of regulatory provisions regarding public participation to the existing requirements in state law. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings:  This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) proposes to incorporate several legislative mandates related to public participation in rulemaking into its regulations.

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

Estimated Economic Impact. One of the legislative mandates being incorporated into the regulation is Chapter 599 of the 2017 Acts of the Assembly.¹ Chapter 599 requires the Department of Behavioral Health and Developmental Services (DBHDS) to give direct notice to licensed providers 1) when a regulatory change relating to licensed providers is initiated, 2) when a final stage of such a regulatory change has been posted on Virginia Regulatory Town Hall (Town Hall), 3) and when a change to guidance documents related to licensure requirements is under consideration. The Chapter 599 also requires DBHDS to seek public comment for a period of 30 days on the proposed change to the guidance documents via the Town Hall.

DBHDS estimates that there would be approximately 10 notices a year that would need to be sent to approximately 1,200 licensed providers. DBHDS plans to utilize email for the required direct notifications and encourage providers to sign up with the Town Hall which can be set up to provide such automatic notifications. The Town Hall can easily accommodate a 30-day comment forum for proposed changes to guidance documents. Since direct notices will be sent electronically and public comments will be solicited in an electronic platform, these changes do not impose significant costs on DBHDS other than the staff time needed to draft the emails and to create a public comment forum on the Town Hall.

Another mandate being incorporated is the Chapter 795 of the 2012 Acts of the Assembly which amended the Code of Virginia § 2.2-4007.02.² Chapter 795 added the requirement that interested persons "be afforded an opportunity to be accompanied by and represented by counsel or other representative" while formulating a regulation. This change is also not expected to create a significant economic impact.

Finally, the Board proposes to incorporate the requirement that a proposed regulatory change regarding substance abuse services be presented to the Substance Abuse Services Council pursuant to Chapter 716 of the 2005 Acts of the Assembly.³ This change too is not expected to create a significant economic impact.

Even though no significant economic impact is expected from any of these proposed changes, the proposed changes are beneficial in that they will inform interested parties who read this regulation but not the statutes.

Businesses and Entities Affected. There are approximately 1,200 providers licensed by the Board. One of the proposed changes affects only the Substance Abuse Services Council.

Localities Particularly Affected. The proposed changes do not affect particular localities disproportionately.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. Most if not all of the providers are small providers. The proposed changes do not impose costs on them but will benefit them as explained above.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Adverse Impacts:

Businesses. The proposed amendments do not have an adverse impact on non-small businesses.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely affect other entities.

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¹ http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+CHAP0599

² http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+CHAP0795

³ http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+CHAP0716

Agency's Response to Economic Impact Analysis: The Department of Behavioral Health and Developmental Services concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

Pursuant to Chapter 599 of the 2017 Acts of Assembly, amendments provide that the Department of Behavioral Health and Developmental Services (i) notify affected providers when new or final regulations are posted on the Virginia Regulatory Town Hall website and when public comment periods pursuant to the existing regulatory processes are established and each time there is an opportunity to comment on such changes, including specific comments regarding an appropriate timeframe for the implementation of such changes and (ii) post guidance document changes under development to the Town Hall website for a 30-day public comment period. Pursuant to § 2.2-4007.02 of the Code of Virginia, an amendment allows interested parties submitting data, views, or arguments during the formulation of a regulation the right to be accompanied by or represented by counsel or another representative. Pursuant to § 37.2-307 of the Code of Virginia, an amendment provides that at least 30 days prior to the board's action to adopt, amend, or repeal any regulation regarding substance abuse services, the board present the proposed regulation to the Substance Abuse Services Council for the council's review and comment.

12VAC35-12-45. Notification to licensed providers.

To providers licensed by the department, the department shall send the following information:

1. At or prior to the time a new regulation relating to licensed providers is posted to the Virginia Regulatory Town Hall, the department shall provide direct notice to licensed providers affected by the new regulatory change that such change has been initiated.

2. At the time that the final stage of a regulation is posted to the Virginia Regulatory Town Hall, the department shall provide direct notice to licensed providers affected by the regulatory change that such final stage has been posted.

Part III
Public Participation Procedures

12VAC35-12-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. At the time any change to guidance documents related to licensure requirements is being developed, the agency shall provide direct notice to licensed providers affected by the change that such change has been initiated. The agency shall post the proposed change to the Virginia Regulatory Town Hall, to include a public comment forum for a period of 30 days. Such notice shall include a description of the change and provide contact information for the agency's designated contact person. If it is anticipated that the change shall have an impact on staffing or payment matters for the affected stakeholders, the direct notice to stakeholders shall note this fact and request specific comments regarding an appropriate timeframe for the implementation of such changes.

E. Prior to the adoption, amendment, or repeal of any regulation regarding substance abuse services, the board shall, in addition to the procedures set forth in the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), present the proposed regulation to the Substance Abuse Services Council, established pursuant to § 2.2-2696 of the Code of Virginia, at least 30 days prior to the board's action for the council's review and comment.

F. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. G. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.