Title of Regulation: 18VAC95-15. Regulations Governing Delegation to an Agency Subordinate (adding 18VAC95-15-10, 18VAC95-15-20, 18VAC95-15-30).

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

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 17, 2021.

Effective Date: April 16, 2021.

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.

Purpose: Delegation of nonstandard care cases to an agency subordinate may improve the completion rate for adjudication of cases that come before the board. Delegation of cases that do not involve patient harm may facilitate the adjudication of more serious cases and enable the board to take action that protects the health, safety, and welfare of patients and residents in long-term care facilities.

Rationale for Using Fast-Track Rulemaking Process: The impetus for the regulatory change was the periodic review of 18VAC95-20 begun in 2017. It was recommended that 18VAC95-20-471 on delegation to an agency subordinate be repealed, and the provisions placed in a new chapter so that they would be applicable to all disciplinary cases under the authority of the board and not just to persons regulated under that chapter.

Substance: New regulations in 18VAC95-15 will set out provisions for (i) making the decision of whether to delegate an informal fact-finding proceeding to an agency subordinate; (ii) determining the types of cases that may be delegated; and (iii) the criteria for an agency subordinate.

Issues: There are no primary advantages or disadvantages to the public. The cases to be heard by an agency subordinate would likely be those that do not involve violations of standard of care. The primary advantage to the board is the possibility of facilitating the adjudication of disciplinary cases; there are no disadvantage. Delegation to an agency subordinate is authorized but not required.

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 promulgate a new regulation, 18 VAC 95-15 Regulations Governing Delegation to an Agency Subordinate, to set out the rules for delegation of informal fact-finding to an agency subordinate.

Background. Code of Virginia § 54.1-2400(10) states that the Board may delegate to an appropriately qualified agency subordinate¹ the authority to conduct informal fact-finding proceedings in accordance with § 2.2-4019, upon receipt of information that a practitioner may be subject to a disciplinary action. Further, the Code section specifies that, "Criteria for the appointment of an agency subordinate shall be set forth in regulations adopted by the board."

Specifics of Proposed Regulation. The proposed new regulation has three sections: 18 VAC 95-15-10 Decision to delegate, 18 VAC 95-15-20 Criteria for delegation, and 18 VAC 95-15-30 Criteria for an agency subordinate. Section 10 merely states that "In accordance with § 54.1-2400 (10) of the Code of Virginia, the board may delegate an informal fact-finding proceeding to an agency subordinate upon determination that probable cause exists that a practitioner may be subject to a disciplinary action." This essentially does not provide criteria beyond that which is already in the Code.

Section 20 in full states that "Cases that may not be delegated to an agency subordinate include violations of standards of practice, except as may otherwise be determined by the executive director in consultation with the board chair." This provides guidance beyond the Code as to which cases may by default be delegated, but does not conclusively limit any cases from being delegated.

Section 30.A states that "An agency subordinate authorized by the board to conduct an informal fact-finding proceeding may include current or past board members and professional staff or other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals." This is consistent with the Code and is slightly more specific, in that the Code definition of subordinate includes "any other person or persons designated by the agency to act in its behalf," versus "other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals" in the proposed regulation.

Section 30.B specifies that "The executive director shall maintain a list of appropriately qualified persons to whom an informal fact-finding proceeding may be delegated." This is not in the Code.

Section 30.C specifies that "The board may delegate to the executive director the selection of the agency subordinate who is deemed appropriately qualified to conduct a proceeding based on the qualifications of the subordinate and the type of case being heard." This is also only in the proposed regulation.

Estimated Benefits and Costs. According to the Department of Health Professions (DHP), the Board is not currently delegating any cases to an agency subordinate, but will likely start using agency subordinates once the regulation becomes effective. It is generally easier for smaller groups (including just one individual) to schedule the time necessary to conduct fact-finding proceedings than for larger groups, i.e., a quorum of the board. Thus, to the extent that the adoption of the proposed regulation makes it more likely that the board delegates to an agency subordinate the task to conduct informal fact-finding proceedings, closure may be brought to some disciplinary cases in a timelier manner. Since the Board must still ratify recommendations of the subordinate, the subject of the potential disciplinary action would still be under the judgment of the Board.

Businesses and Other Entities Affected. The proposed regulation affects members of the Board and other individuals who may be chosen as agency subordinates, such as past members of the Board, staff of DHP, and other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals. The proposed regulation may also affect the 936 nursing home administrators and 656 assisted living administrators regulated by the Board. The proposal does not produce cost.

Small Businesses² Affected.

Types and Estimated Number of Small Businesses Affected: The Board only regulates individual practitioners; thus, data on number of small businesses is not available.

Costs and Other Effects: Delegating to an agency subordinate may reduce the time it takes to resolve cases before the Board. This may moderately reduce time costs for small businesses that employ nursing home administrators or assisted living administrators who go before the Board.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not produce adverse impact.

Localities³ Affected.⁴ The proposed regulation does not disproportionately affect any particularly locality nor appear to introduce additional costs for local governments.

Projected Impact on Employment. The proposed regulation does not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation appears to neither substantively affect the use and value of private property, nor affect real estate development costs.

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1 "Subordinate" is defined as "(i) one or more but less than a quorum of the members of a board constituting an agency, (ii) one or more of its staff members or employees, or (iii) any other person or persons designated by the agency to act in its behalf."

2 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."

3 "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.

4 § 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The regulatory action establishes a new regulation with provisions for (i) making the decision of whether to delegate an informal fact-finding proceeding to an agency subordinate; (ii) determining the types of cases that may be delegated; and (iii) establishing the criteria for an agency subordinate.

Chapter 15

Regulations Governing Delegation to an Agency Subordinate

18VAC95-15-10. Decision to delegate.

In accordance with subdivision 10 of § 54.1-2400 of the Code of Virginia, the board may delegate an informal fact-finding proceeding to an agency subordinate upon determination that probable cause exists that a practitioner may be subject to a disciplinary action.

18VAC95-15-20. Criteria for delegation.

Cases that may not be delegated to an agency subordinate include violations of standards of practice, except as may otherwise be determined by the executive director in consultation with the board chair.

18VAC95-15-30. Criteria for an agency subordinate.

A. An agency subordinate authorized by the board to conduct an informal fact-finding proceeding may include current or past board members and professional staff or other persons deemed knowledgeable by virtue of their training and experience in administrative proceedings involving the regulation and discipline of health professionals.

B. The executive director shall maintain a list of appropriately qualified persons to whom an informal fact-finding proceeding may be delegated.

C. The board may delegate to the executive director the selection of the agency subordinate who is deemed appropriately qualified to conduct a proceeding based on the qualifications of the subordinate and the type of case being heard.