Titles of Regulations: 18VAC95-20. Regulations Governing the Practice of Nursing Home Administrators (amending 18VAC95-20-130).

18VAC95-30. Regulations Governing the Practice of Assisted Living Facility Administrators (amending 18VAC95-30-40).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 6, 2020.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Long-Term Care Administrators, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4595, FAX (804) 527-4413, or email corie.wolf@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Long-Term Care Administrators the authority to promulgate regulations to administer the regulatory system. Section 2.2-4805 of the Code of Virginia authorizes each state agency to charge interest on all past due accounts receivable in accordance with guidelines adopted by the Department of Accounts.

Purpose: The amendments conform the regulation to the Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia in which the General Assembly has determined that the cost for handling returned checks or dishonored credit or debit cards is $50. The department and its regulatory boards license and discipline health care practitioners with the mission of protecting the health and safety of the public, which must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is consistent with the financial policy of the Commonwealth and is not expected to be controversial.

Substance: Fees are being amended to replace the returned check fee of $35 with a handling fee of $50 for a returned check, dishonored credit card, or dishonored debit card.

Issues: There are no primary advantages or disadvantages to the public. The primary advantage to the department is compliance with auditors from the Office of the Comptroller. There are no disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Long-Term Care Administrators (Board) proposes to amend 18 VAC 95-20 Regulations Governing the Practice of Nursing Home Administrators and 18 VAC 95-30 Regulations Governing the Practice of Assisted Living Facility Administrators to state that the handling fee for a returned check or dishonored credit card or debit card is $50, replacing a current $35 charge.

Background. Code of Virginia § 2.2-614.1 specifies that:

If any check or other means of payment tendered to a public body in the course of its duties is not paid by the financial institution on which it is drawn, because of insufficient funds in the account of the drawer, no account is in the name of the drawer, or the account of the drawer is closed, and the check or other means of payment is returned to the public body unpaid, the amount thereof shall be charged to the person on whose account it was received, and his liability and that of his sureties, shall be as if he had never offered any such payment. A penalty of $35 or the amount of any costs, whichever is greater, shall be added to such amount.

Based on this Code provision, the current regulations include a $35 returned check charge.

On the other hand, Code of Virginia § 2.2-4805 specifies that "Returned checks or dishonored credit card or debit card payments shall incur a handling fee of $50 unless a higher amount is authorized by statute to be added to the principal account balance." According to the Department of Health Professions (DHP), the Office of the Attorney General has advised that the handling fee of $50 in Virginia Code § 2.2-4805 governs.

Estimated Benefits and Costs. Based on the view of the Office of the Attorney General that Virginia Code § 2.2-4805 prevails, the fee by law for a returned check or dishonored credit card or debit card is $50. The Board’s proposal therefore conforms the regulation to current law. DHP has indicated that in practice they will continue to charge the $35 fee until this proposed regulatory action becomes effective. The services provided by DHP are funded by the fees paid by the regulated individuals and entities. To the extent that the $50 fee more accurately represents the cost incurred by DHP, the proposed change may be beneficial in that the cost would need not be subsidized by other regulants who did not cause the cost to be incurred.

Businesses and Other Entities Affected. The proposal pertains to fee-paying individuals and entities regulated by the Board. As of June 30, 2019, there were 99 assisted living facility administrators-in-training, 634 assisted living facility administrators, 198 assisted living family preceptors, 72 nursing home administrators-in-training, 912 nursing home administrators, and 222 nursing home preceptors, as well as administrator-in-training programs regulated by the Board.² Administrator-in-training programs are held at nursing homes and assisted living facilities. There are 299 nursing homes and 193 assisted living facilities in the Commonwealth.³ If any of these individuals or entities have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15.

Localities⁴ Affected.⁵ The proposal does not disproportionately affect any particular localities or introduce costs for local governments.

Projected Impact on Employment. The proposal does not affect employment.

Effects on the Use and Value of Private Property. The proposal does not substantially affect the use and value of private property or real estate development costs.

Adverse Effect on Small Businesses:⁶

Types and Estimated Number of Small Businesses Affected. The proposed amendments potentially affect fee-paying individuals and entities regulated by the Board, including administrator-in-training programs. Administrator-in-training programs are held at nursing homes and assisted living facilities. There are 298 small nursing homes and 189 small assisted living facilities in the Commonwealth.⁷

Costs and Other Effects. If any of the small nursing homes or small assisted living facilities have a check returned or a credit card or debit card dishonored that was payment for an administrator-in-training program, the proposal would increase their cost by $15.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

_______________________________

²Data source: DHP

³Data source: Virginia Employment Commission

⁴"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.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁶Pursuant 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."

⁷Data source: Virginia Employment Commission

Agency's Response to Economic Impact Analysis: The Board of Long-Term Care Administrators concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments replace the returned check fee of $35 with a fee of $50 for handling a returned check or dishonored credit card or debit card payment in compliance with § 2.2-4805 of the Code of Virginia.

18VAC95-20-130. Additional fee information.

A. There shall be a fee of $35 $50 for a returned checks check or a dishonored credit card or debit card.

B. Fees shall not be refunded once submitted.

C. Examination fees are to be paid directly to the service or services contracted by the board to administer the examinations.

18VAC95-30-40. Required fees.

A. The applicant or licensee shall submit all fees in this subsection that apply:

1. ALF AIT program application	$215
2. Preceptor application	$65
3. Licensure application	$315
4. Verification of licensure requests from other states	$35
5. Assisted living facility administrator license renewal	$315
6. Preceptor renewal	$65
7. Penalty for assisted living facility administrator late renewal	$110
8. Penalty for preceptor late renewal	$25
9. Assisted living facility administrator reinstatement	$435
10. Preceptor reinstatement	$105
11. Duplicate license	$25
12. Duplicate wall certificates	$40
13. Returned check or dishonored credit card or debit card	$35 $50
14. Reinstatement after disciplinary action	$1,000

B. Fees shall not be refunded once submitted.

C. Examination fees are to be paid directly to the service contracted by the board to administer the examination.