Title of Regulation: 18VAC60-20. Regulations Governing the Practice of Dentistry and Dental Hygiene (adding 18VAC60-20-18).

Statutory Authority: §§ 54.1-2400 and 54.1-2708.2 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 4, 2011.

Agency Contact: Sandra Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4538, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Dentistry the authority to promulgate regulations to administer the regulatory system. Specific regulatory authority for the Board of Dentistry to impose certain costs is found in Chapter 89 of the 2009 Acts of the Assembly, codified as § 54.1-2708.2 of the Code of Virginia.

Purpose: The purpose of this proposed regulatory action is to initiate rules for recovery of administrative costs relating to the investigation and monitoring of a licensee disciplined by the Board of Dentistry. Legislation passed by the 2009 General Assembly (HB2058) provides statutory authorization for imposition of such costs, and the goal of the amendments is to establish the regulatory framework for which costs may be assessed, how those costs may be determined, and the process for assessment of costs.

Enforcement activities constitute the largest expenditure for the board, although only a small percentage of licensees undergo investigation, and an even smaller percentage are found to be in violation of statutes and regulations governing their professions. Therefore, it is equitable to assess at least a portion of enforcement and monitoring costs to those who are the cause of the expenditure. By recovering a portion of its enforcement costs, the board will be better able to meet its obligation to investigate every complaint it receives and to more efficiently and effectively resolve cases related to patient care. The board will have the additional resources necessary to adequately investigate reports of misconduct to make the practice of dentistry and dental hygiene safer for patients in Virginia.

Substance: Section 54.1-2708.2 of the Code of Virginia is specific about some aspects of the authority to recover reasonable administrative costs associated with investigating and monitoring a licensee. The recovery of costs will only be implemented if a licensee has had disciplinary action imposed. It will not affect those licensees: (i) who are investigated by the department, but for whom no probable cause is found to indicate a violation may have occurred; (ii) who have a disciplinary proceeding, but for whom no violation is found and no discipline imposed; or (iii) who have matters resolved through a confidential consent agreement or an advisory letter.

Rather than setting specific fees or dollar amounts in regulation, the proposed amendments provide a process for determination of both the investigative and monitoring costs as specified in the Code of Virginia. At the end of each fiscal year, regulations require a calculation of the average hourly cost for enforcement that is chargeable to the work of the Board of Dentistry. The Enforcement Division of the Department of Health Professions tracks the number of hours an investigator spends on a case, so that number can be multiplied by the hourly cost to determine the specific costs relating to the investigation of the case against a specific respondent. In addition, the board would assess any costs relating to hiring expert witnesses and the reports generated by such witnesses. While not inclusive of all related administrative costs, a fee based on the actual number of hours and the hourly cost of an investigation would be reasonable and not arbitrary or selectively punitive. The imposition of the recovery cost would become part of the order from an informal or formal proceeding or part of a consent order agreed to by the parties.

The monitoring costs would be calculated based on the terms and conditions imposed and the length of time the licensee is to be monitored. As with the enforcement costs, the board would annually calculate the average costs of monitoring certain terms, such as the acquisition of continuing education in an area of practice. If the licensee is to be monitored beyond one year, the monitoring cost would be imposed for each of those years. A guidance document would be adopted annually setting out the average investigative and monitoring cost (for the various terms and conditions to be monitored), so the licensees (and their attorneys, if applicable) would have knowledge of the recovery of costs if disciplinary action is imposed. Since the costs would be incorporated in the order, the respondent would have the option to accept the order, request a formal hearing following an informal, or appeal an order from a formal hearing to a circuit court.

As specified in statute, the total of the recovery of costs will not exceed $5,000. However, the regulations reference current fees for inspection of dental offices and returned checks as fees not subject to the recovery maximum. Additionally, the board may seek to recover the collection costs for delinquent fines and fees.

Issues: The primary advantage to the public is that income generated by the partial recovery of disciplinary costs may allow the board to sustain its investigative, adjudication, and monitoring activities without substantial increases in fees charged to licensees who are not in violation of law and regulation. There are no disadvantages.

The primary advantage to the agency is the creation of a new source of revenue to offset ever increasing costs relating to the disciplinary functions of the board. There are no disadvantages, but the agency will have an increased responsibility for collection of assessed costs.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 89 of the 2009 Virginia Acts of Assembly permits the Board of Dentistry (Board) to recover from any licensee against whom disciplinary action has been imposed reasonable administrative costs associated with investigating and monitoring such licensee and confirming compliance with any terms and conditions imposed upon the licensee as set forth in the order imposing disciplinary action. Further, the legislation specified that such recovery shall not exceed a total of $5,000. Consequently the Board proposes to set out in these regulations the conditions and procedures for assessment of disciplinary costs relating to investigation and monitoring of a licensee for whom there is a finding that a violation of law or regulation has occurred.

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

Estimated Economic Impact. The proposed amendments would establish the conditions and procedures for assessing disciplinary costs relating to the investigation and monitoring of a licensee for whom there is a finding that a violation of law or regulation has occurred. The hourly costs for the investigation and monitoring would be set out annually in a guidance document and then costs would be calculated for each case and assessed. Costs for the investigation and monitoring could not exceed the statutory limit of $5,000.

According to the Department of Health Professions, enforcement activities constitute the largest expenditure for the board, although only a small percentage of licensees undergo investigation, and an even smaller percentage are found to be in violation of statutes and regulations governing their professions. Currently the Board does not charge disciplinary costs to licensees for whom there is a finding that a violation of law or regulation has occurred. Income generated by the partial recovery of disciplinary costs through the proposed assessments may allow the board to sustain its investigative, adjudication, and monitoring activities without substantial increases in fees charged to licensees who are not in violation of law and regulation. This is more equitable than raising fees for all licenses, including the majority who comply with the law, to cover disciplinary costs.

Businesses and Entities Affected. The proposed amendments affect dental practices.

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

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments will likely moderately reduce future fee increases for dentists and dental hygienists who comply with the law, and increase costs for dentists and dental hygienists for whom there is a finding that a violation of law or regulation has occurred.

Small Businesses: Costs and Other Effects. The proposed amendments likely moderately reduce costs for small businesses where the staff complies with the law.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments likely moderately reduce costs for small businesses where the staff complies with the law.

Real Estate Development Costs. The proposed amendments will not 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.

Agency Response to the Department of Planning and Budget's Economic Impact Analysis: The Board of Dentistry concurs with the analysis of the Department of Planning and Budget for the proposed regulation, 18VAC60-20, Regulations Governing the Practice of Dentistry and Dental Hygiene, relating to assessment of disciplinary costs.

Summary:

In the proposed new section 18VAC60-20-18, the Board of Dentistry sets out the conditions and procedures for assessment of disciplinary costs relating to investigation and monitoring of a licensee for whom there is a finding that a violation of law or regulation has occurred. The hourly costs for an investigation or monitoring will be set out annually in a guidance document, and then costs will be calculated for each case and assessed as a part of an order. Costs for monitoring and investigation will not exceed the statutory limit of $5,000.

18VAC60-20-18. Recovery of disciplinary costs.

A. Assessment of cost for investigation of a disciplinary case.

1. In any disciplinary case in which there is a finding of a violation against a licensee or registrant, the board may assess the hourly costs relating to investigation of the case by the Enforcement Division of the Department of Health Professions and, if applicable, the costs for hiring an expert witness and reports generated by such witness.

2. The imposition of recovery costs relating to an investigation shall be included in the order from an informal or formal proceeding or as part of a consent order agreed to by the parties. The schedule for payment of investigative costs imposed shall be set forth in the order.

3. At the end of each fiscal year, the board shall calculate the average hourly cost for enforcement that is chargeable to investigation of complaints filed against its regulants and shall state those costs in a guidance document to be used in imposition of recovery costs. The average hourly cost multiplied by the number of hours spent in investigating the specific case of a respondent shall be used in the imposition of recovery costs.

B. Assessment of cost for monitoring a licensee or registrant.

1. In any disciplinary case in which there is a finding of a violation against a licensee or registrant and in which terms and conditions have been imposed, the costs for monitoring of a licensee or registrant may be charged and shall be calculated based on the specific terms and conditions and the length of time the licensee or registrant is to be monitored.

2. The imposition of recovery costs relating to monitoring for compliance shall be included in the board order from an informal or formal proceeding or as part of a consent order agreed to by the parties. The schedule for payment of monitoring costs imposed shall be set forth in the order.

3. At the end of each fiscal year, the board shall calculate the average costs for monitoring of certain terms and conditions, such as acquisition of continuing education, and shall set forth those costs in a guidance document to be used in the imposition of recovery costs.

C. Total of assessment. In accordance with § 54.1-2708.2 of the Code of Virginia, the total of recovery costs for investigating and monitoring a licensee or registrant shall not exceed $5,000, but shall not include the fee for inspection of dental offices and returned checks as set forth in 18VAC60-20-30 or collection costs incurred for delinquent fines and fees.