Title of Regulation: 2VAC5-315. Virginia Imported Fire Ant Quarantine for Enforcement of the Virginia Pest Law (amending 2VAC5-315-50).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: December 11, 2019.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, TTY (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Background: Section 3.2-703 of the Code of Virginia authorizes the Commissioner of Agriculture and Consumer Services to extend or reduce areas currently regulated for plant pests. Expansion of the fire ant quarantine became necessary after surveys conducted by the Virginia Department of Agriculture and Consumer Services (VDACS) indicated that imported fire ant populations had become established in several Virginia localities and eradication was no longer feasible. Once established, the imported fire ant has the potential to spread to noninfested areas, either through natural means or through the movement of infested articles. The quarantine is intended to prevent the artificial spread of this pest. Under the terms of the quarantine, articles at risk for transporting imported fire ants are prohibited from moving out of the quarantined area unless certified as free of imported fire ants. Imported-fire-ant-free certification can be obtained through (i) inspections conducted by VDACS or (ii) compliance agreements between businesses and VDACS that stipulate steps businesses must take to ensure regulated articles transported out of the quarantine are free of imported fire ants.

Summary:

The amendments expand the Virginia Imported Fire Ant Quarantine to include Brunswick, Greensville, Isle of Wight, Mecklenburg, and Southampton Counties and the Cities of Emporia and Franklin.

2VAC5-315-50. Regulated areas.

The following areas in Virginia are quarantined for imported fire ant:

The entire counties of:

Brunswick

Greensville

Isle of Wight

James City

Mecklenburg

Southampton

York

The entire cities of:

Chesapeake

Emporia

Franklin

Hampton

Newport News

Norfolk

Poquoson

Portsmouth

Suffolk

Virginia Beach

Williamsburg

Title of Regulation: 2VAC5-336. Regulations for Enforcement of the Virginia Tree and Crop Pests Law - Spotted Lanternfly Quarantine (adding 2VAC5-336-10 through 2VAC5-336-130).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: December 2, 2019.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, or email david.gianino@vdacs.virginia.gov.

Background: The Spotted Lanternfly is an invasive pest that feeds on more than 70 plant species, including grapes, pome and stone fruits, hops, and Ailanthus altissima (Tree of Heaven). The Spotted Lanternfly is a threat to Virginia's grape, apple, hops, and forestry industries and can be spread long distances by people who move articles containing Spotted Lanternfly egg masses, nymphs, or adults. If allowed to spread, this pest could impact Virginia's agricultural and forestry industries. The Spotted Lanternfly was initially detected in Winchester in January 2018 and has subsequently spread into Frederick County. The purpose of this new regulation is to help prevent the movement of Spotted Lanternfly to areas of the Commonwealth that are not infested. The Spotted Lanternfly Quarantine restricts the movement of those articles that have the ability to spread the Spotted Lanternfly from quarantined areas to nonquarantined areas of the Commonwealth.

Summary:

The new regulation (i) establishes regulated articles, which are articles that pose a risk for spreading the Spotted Lanternfly, and are subject to the provisions of the regulation; (ii) requires any person conducting business to obtain a permit from the Commissioner of Agriculture and Consumer Services prior to moving regulated articles out of a quarantined area; (iii) establishes that a person must complete agency-approved training to secure a permit and that a business must maintain applicable training records and ensure that regulated articles are inspected and free of Spotted Lanternfly prior to moving such articles from a regulated (quarantined) area to a nonquarantined area; and (iv) establishes the quarantined areas as the City of Winchester and the County of Frederick.

CHAPTER 336
REGULATIONS FOR ENFORCEMENT OF THE VIRGINIA TREE AND CROP PESTS LAW - SPOTTED LANTERNFLY QUARANTINE

2VAC5-336-10. Declaration of quarantine.

A quarantine is hereby established to restrict the movement of certain articles capable of transporting Spotted Lanternfly, Lycorma delicatula, unless such articles comply with the conditions specified in this chapter.

2VAC5-336-20. Purpose of quarantine.

The purpose of this quarantine is to help prevent the artificial spread of Spotted Lanternfly to uninfested areas of the Commonwealth by regulating the movement of articles that are capable of transporting the Spotted Lanternfly. The Spotted Lanternfly is a new pest to the United States and has become established in the Commonwealth. The Spotted Lanternfly has the potential to spread to uninfested areas by natural means or through the movement of infested articles.

The Spotted Lanternfly is not native to the Commonwealth or the United States and is a threat to forests, ornamental trees, orchards, and grapes. It is not yet widely prevalent or distributed within or throughout the Commonwealth. The Board of Agriculture and Consumer Services has determined that the Spotted Lanternfly is dangerous and destructive to the agriculture, horticulture, and forests of this Commonwealth.

2VAC5-336-30. Definitions.

The following words and terms shall have the following meanings when used in this chapter, unless the context clearly indicates otherwise:

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Commonwealth" means the Commonwealth of Virginia.

"Compliance agreement" means a written agreement between a person engaged in growing, handling, receiving, or moving regulated articles and the department, wherein the former agrees to comply with the requirements of the compliance agreement and comply with the provisions of this chapter.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infestation" means the presence of the Spotted Lanternfly or the existence of circumstances that make it reasonable to suspect that the Spotted Lanternfly is present.

"Inspection statement" means an official document provided by the department that must be completed and accompany regulated articles moving out of the regulated area.

"Inspector" means an employee of the department or other person authorized by the commissioner to enforce the provisions of this chapter.

"Moved," "move," or "movement" means shipped; offered for shipment; received for transportation; transported; carried; or allowed to be moved, shipped, transported, or carried.

"Permit" means a document issued by the commissioner to a person to allow the movement of regulated articles out of the regulated area under conditions specified within the permit.

"Person" means the term as defined in § 1-230 of the Code of Virginia, which includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Regulated area" means the localities listed in 2VAC5-336-50.

"Spotted Lanternfly" means the live insect, Lycorma delicatula, in any life stage.

"Training credentials" means documentation verifying successful completion of department-approved Spotted Lanternfly training.

"Virginia Tree and Crop Pests Law" means Chapter 7 (§ 3.2-700 et seq.) of Title 3.2 of the Code of Virginia.

2VAC5-336-40. Regulated articles.

A. Any life stage of the Spotted Lanternfly, Lycorma delicatula, is regulated under the provisions of this chapter.

B. The following articles, when such articles have been stored, packed, or handled in a manner that poses a risk of Spotted Lanternfly infestation, are regulated under the provisions of this chapter:

1. All plants or plant parts, including the following: live or dead trees; nursery stock; green lumber; firewood; logs; perennial plants; garden plants or produce; stumps; branches; mulch; or composted or uncomposted chips, bark, or yard waste.

2. Outdoor industrial or construction materials or equipment; concrete barriers or structures; stone, quarry material, ornamental stone, or concrete; or construction, landscaping, or remodeling waste.

3. Shipping containers, such as wood crates or boxes.

4. Outdoor household articles, including the following: recreational vehicles; lawn tractors or mowers; grills; grill or furniture covers; tarps; mobile homes; tile; stone; deck boards; or any equipment, trucks, or vehicles not stored indoors.

5. Any means of conveyance utilized for movement of an article listed in subdivisions 1 through 4 of this subsection; any vehicle; or any trailer, wagon, or other equipment attached thereto.

C. Any other article or means of conveyance that an inspector determines presents a risk of spreading Spotted Lanternfly is regulated under the provisions of this chapter.

2VAC5-336-50. Regulated areas.

The following areas in Virginia are quarantined for Spotted Lanternfly:

1. The entire County of Frederick.

2. The entire City of Winchester.

2VAC5-336-60. Conditions governing the intrastate movement of regulated articles by a person conducting business.

A. A person conducting business may move a regulated article from a regulated area to an unregulated area under the following conditions:

1. The person moving the regulated article has been issued a permit in accordance with 2VAC5-336-80;

2. The person has inspected the regulated article and found the regulated article to be free of all life stages of Spotted Lanternfly; and

3. The shipment of the regulated article is accompanied by a Spotted Lanternfly permit and completed inspection statement.

B. A person conducting business may move a regulated article solely within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of the Spotted Lanternfly. A Spotted Lanternfly permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

C. From April 1 through December 31, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area under the following conditions:

1. The shipment of the regulated article is accompanied by a waybill that indicates the point of origin of the regulated article;

2. The shipment of the regulated article moves directly through the regulated area without stopping, except for refueling or due to traffic conditions, or the regulated article has been stored, packed, or handled in a manner so as to not pose a risk of infestation; and

3. The regulated article has not been combined or commingled with other articles so as to lose its individual identity.

D. During January through March, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area without restriction.

E. The commissioner may issue a permit to a person moving a regulated article from a regulated area to an unregulated area or from an unregulated area through a regulated area who does not meet the requirements of this chapter when the commissioner determines the movement poses no risk of spreading Spotted Lanternfly.

F. The department may enter into a compliance agreement with a person to allow the movement of regulated articles to states or countries that have additional shipping requirements and where the compliance agreement is needed to comply with such requirements.

2VAC5-336-70. Conditions governing the intrastate movement of regulated articles by a person not conducting business.

A. A person who is not conducting business may move the regulated article from a regulated area to an unregulated area under the following conditions:

1. The person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly; and

2. The regulated article is accompanied by a completed inspection statement.

B. A person who is not conducting business may move the regulated article within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly. A permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

2VAC5-336-80. Issuance and cancellation of permits.

A. A person conducting business that requires the movement of a regulated article from a regulated area must obtain a permit from the commissioner.

B. To obtain a permit, a person conducting business that requires the movement of a regulated article from a regulated area shall:

1. Successfully complete department-approved training regarding identification of Spotted Lanternfly and compliance with this quarantine;

2. Submit to the department:

a. A completed Spotted Lanternfly permit application on a form provided by the department; and

b. Training credentials indicating successful completion of department-approved training;

3. Agree to train employees who move a regulated article out of a regulated area regarding identification of Spotted Lanternfly and compliance with this chapter;

4. Agree that before a regulated article is transported out of a regulated area, the person will require the regulated article to be inspected by a person who has completed Spotted Lanternfly training to ensure such article is free of Spotted Lanternfly;

5. Ensure the regulated article is moved in compliance with any additional condition deemed necessary under the Virginia Tree and Crop Pests Law to prevent the artificial spread of Spotted Lanternfly; and

6. Ensure the regulated article is eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated article.

C. An inspector may withdraw a permit orally or in writing if the inspector determines that the holder of the permit has not complied with all conditions for the use of the permit. If the withdrawal is oral, the inspector shall confirm the withdrawal and the reasons for the withdrawal in writing and communicate such to the permit holder as promptly as circumstances allow.

2VAC5-336-90. Training requirements.

A. Any person responsible for moving a regulated article under a Spotted Lanternfly permit issued by the commissioner pursuant to 2VAC5-336-80 must successfully complete department-approved training.

B. The person training employees regarding the identification of Spotted Lanternfly and compliance with this quarantine shall have successfully completed department-approved training regarding the identification of Spotted Lanternfly and compliance with this chapter.

C. All training must be documented and training records made available to the department upon request. Training records must be maintained for all current employees and include employee name, date of training, and name of person conducting the training.

2VAC5-336-100. Inspection, treatment, and disposal of regulated articles and pests.

Upon presentation of official credentials, an inspector is authorized to stop and inspect and to seize, destroy, or otherwise dispose of or require treatment or disposal of a regulated article as provided in the Virginia Tree and Crop Pests Law.

2VAC5-336-110. Prohibited entry into Virginia.

A. The movement into Virginia of a regulated article from any area outside of the Commonwealth where a federal or state plant regulatory official has determined Spotted Lanternfly to be present is prohibited unless:

1. Prior written approval is issued by the commissioner; or

2. The regulated article is being moved under a Spotted Lanternfly permit issued by the state plant regulatory official of a state where Spotted Lanternfly is known to occur.

B. The movement into Virginia of a regulated article for research purposes is permissible with the commissioner's prior written approval.

2VAC5-336-120. Nonliability of the department.

The department shall not be liable for any costs incurred by third parties whose costs result from or are incidental to inspections required under the provisions of this chapter.

2VAC5-336-130. Repeal of this quarantine.

This quarantine may be repealed by the commissioner when the commissioner is satisfied that the need for this quarantine no longer exists. Such repeal shall take place upon the date specified by the commissioner in the order that repeals this chapter.

FORMS (2VAC5-336)

Inspection Statement for Businesses, OPIS-SLF-2 (eff. 5/2019)

Spotted Lanternfly Permit Application Form, OPIS-SLF-1 (eff. 5/2019)

Title of Regulation: 2VAC5-600. Regulations Pertaining to Food for Human Consumption (amending 2VAC5-600-10).

Statutory Authority: §§ 3.2-5101 and 3.2-5121 of the Code of Virginia.

Effective Date: December 2, 2019.

Agency Contact: Ryan Davis, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8910, FAX (804) 371-7792, TTY (800) 828-1120, or email ryan.davis@vdacs.virginia.gov.

Summary:

The amendments (i) adopt by reference specific Parts in Title 21 of the Code of Federal Regulations and in Title 40 of the Code of Federal Regulations that were adopted by the U.S. Food and Drug Administration, effective April 1, 2019, and (ii) remove forms that are not required by the regulation.

2VAC5-600-10. Adoption by reference.

A. Regulations from Title 21, Chapter 1, Subchapter A, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter A of the Code of Federal Regulations (Rev. April 1, 2010) 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

Part 73, Listing of color additives exempt from certification, Subpart A - Foods.

Part 74, Listing of color additives subject to certification, Subpart A - Foods.

Part 81, General specifications and general restrictions for provisional color additives for use in foods, drugs and cosmetics.

Part 82, Listing of certified provisionally listed colors and specifications, Subpart B—Foods, Drugs and Cosmetics.

B. Regulations from Title 21, Chapter 1, Subchapter B, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter B of the Code of Federal Regulations (Rev. April 1, 2010) 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

Part 100, General.

Part 101, Food labeling.

Part 102, Common or usual name for nonstandardized foods.

Part 104, Nutritional quality guidelines for foods.

Part 105, Foods for special dietary use.

Part 109, Unavoidable contaminants in food for human consumption and food-packaging material.

Part 110, Current good manufacturing practice in manufacturing, packing, or holding human food.

Part 111, Current good manufacturing practice in manufacturing, packaging, labeling, or holding operations for dietary supplements.

Part 113, Thermally processed low-acid foods packaged in hermetically sealed containers.

Part 114, Acidified foods.

Part 117, Current good manufacturing practice, hazard analysis, and risk-based preventive controls for human food.

Part 120, Hazard analysis and critical control point (HACCP) systems.

Part 123, Fish and fishery products.

Part 129, Processing and bottling of bottled drinking water.

Part 133, Cheeses and related cheese products.

Part 136, Bakery products.

Part 137, Cereal flours and related products.

Part 139, Macaroni and noodle products.

Part 145, Canned fruits.

Part 146, Canned fruit juices.

Part 150, Fruit butters, jellies, preserves, and related products.

Part 152, Fruit pies.

Part 155, Canned vegetables.

Part 156, Vegetable juices.

Part 158, Frozen vegetables.

Part 160, Eggs and egg products.

Part 161, Fish and shellfish.

Part 163, Cacao products.

Part 164, Tree nut and peanut products.

Part 165, Beverages.

Part 166, Margarine.

Part 168, Sweeteners and table sirups.

Part 169, Food dressings and flavorings.

§ 170.19, Pesticide chemicals in processed foods.

Part 172, Food additives permitted for direct addition to food for human consumption.

Part 173, Secondary direct food additives permitted in food for human consumption.

Part 174, Indirect food additives: General.

Part 175, Indirect food additives: Adhesives and components of coatings.

Part 176, Indirect food additives: Paper and paperboard components.

Part 177, Indirect food additives: Polymers.

Part 178, Indirect food additives: Adjuvants, production aids, and sanitizers.

Part 179, Irradiation in the production, processing and handling of food.

Part 180, Food additives permitted in food or in contact with food on an interim basis pending additional study, Subpart B—Specific requirements for certain food additives.

Part 181, Prior-sanctioned food ingredients.

Part 182, Substances generally recognized as safe.

Part 184, Direct food substances affirmed as generally recognized as safe.

Part 186, Indirect food substances affirmed as generally recognized as safe.

Part 189, Substances prohibited from use in human food.

C. Regulations from Title 21, Chapter 1, Subchapter L, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter L of the Code of Federal Regulations (Rev. April 1, 2010) 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

§ 1240.61, Mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.

D. Regulations from Title 40, Chapter 1, Subchapter E, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 40, Subchapter E of the Code of Federal Regulations (Rev. July 1, 2010) April 1, 2019) as regulations applicable to the enforcement of the Virginia Food Act by reference:

Part 180, Tolerances and exemptions for pesticide chemical residues in food.

FORMS (2VAC5-600)

Inspection Report, Form VDACS (undated).

Sample Collection Report (undated).

FDA/State Contract Inspection Form 481 and Instructions (rev. 7/04).

Title of Regulation: 4VAC20-252. Pertaining to the Taking of Striped Bass (amending 4VAC20-252-140, 4VAC20-252-150).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: December 1, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments (i) establish the 2020 striped bass commercial quota for the Chesapeake Bay as 983,393 pounds and the 2020 striped bass commercial quota for the coastal area as 125,034 pounds and (ii) change the beginning of the 28-inch commercial maximum size limit in the Chesapeake Bay area to March 15.

4VAC20-252-140. Commercial seasons, areas, and size limits.

Except as may be adjusted pursuant to 4VAC20-252-150, the open commercial striped bass fishing seasons, areas, and applicable size limits shall be as follows:

1. In the Chesapeake area, the open commercial season shall be from January 16 through December 31, inclusive. The minimum size limit shall be 18 inches total length during the periods of January 16 through December 31. The maximum size limit shall be 28 inches from March 26 15 through June 15.

2. In the coastal area, the open commercial season shall be January 16 through December 31, inclusive, and the minimum size limit shall be 28 inches total length.

4VAC20-252-150. Individual commercial harvest quota.

A. The commercial harvest quota for the Chesapeake area shall be determined annually by the Marine Resources Commission. The total allowable level of all commercial harvest of striped bass from the Chesapeake Bay and its tributaries and the Potomac River tributaries of Virginia for all open seasons and for all legal gear shall be 1,064,997 983,393 pounds of whole fish. At such time as the total commercial harvest of striped bass from the Chesapeake area is projected to reach 1,064,997 983,393 pounds, and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the Chesapeake area.

B. The commercial harvest quota for the coastal area of Virginia shall be determined annually by the Marine Resources Commission. The total allowable level of all commercial harvest of striped bass from the coastal area for all open seasons and for all legal gear shall be 138,640 125,034 pounds of whole fish. At such time as the total commercial harvest of striped bass from the coastal area is projected to reach 138,640 125,034 pounds, and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the coastal area.

C. For the purposes of assigning an individual's tags to an individual for commercial harvests in the Chesapeake area as described in 4VAC20-252-160, the individual commercial harvest quota of striped bass in pounds shall be converted to an estimate in numbers of fish per individual harvest quota based on the average weight of striped bass harvested by the permitted individual during the previous fishing year. The number of striped bass tags issued to each individual will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each individual.

D. For the purposes of assigning an individual's tags to an individual for commercial harvests in the coastal area of Virginia as described in 4VAC20-252-160, the individual commercial harvest quota of striped bass in pounds shall be converted to a quota in numbers of fish per individual commercial harvest quota, based on the reported average coastal area harvest weight of striped bass harvested by the permitted individual during the previous fishing year, except as described in subsection E of this section. The number of striped bass tags issued to each individual will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each individual.

E. For any individual whose reported average coastal area harvest weight of striped bass in the previous fishing year was less than 12 pounds, a 12-pound minimum weight shall be used to convert that individual's harvest quota of striped bass, in pounds of fish, to harvest quota in number of fish.

 

Final Regulation

Title of Regulation: 4VAC20-910. Pertaining to Scup (Porgy) (amending 4VAC20-910-45).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: November 26, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendment decreases the landing limit per trip for the October 1 through December 31 commercial scup fishery to 27,000 pounds.

4VAC20-910-45. Possession limits and harvest quotas.

A. During the Winter I period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 50,000 pounds of scup;

2. Land in Virginia more than a total of 50,000 pounds of scup during each consecutive seven-day landing period, with the first seven-day period beginning on January 1; or

3. When it is projected and announced that 80% of the coastwide quota for the Winter I period has been attained, possess aboard any vessel or land in Virginia more than a total of 1,000 pounds of scup.

B. During the Winter II period October 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than 28,500 27,000 pounds of scup.

C. During the Summer period May 1 through September 30 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 14,296 pounds, and it shall be unlawful for any person to possess aboard any vessel in Virginia more than 5,000 pounds of scup.

D. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

E. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

F. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 30 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 30. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

Titles of Regulations: 14VAC5-100. Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms (repealing 14VAC5-100-10 through 14VAC5-100-80).

14VAC5-101. Rules Governing Life and Health Forms Filings (adding 14VAC5-101-10 through 14VAC5-101-120).

14VAC5-110. Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies (repealing 14VAC5-110-10 through 14VAC5-110-80).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Elsie Andy, Manager, Rates and Forms Section Life and Health Division, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9072, FAX (804) 371-9944, or email elsie.andy@scc.virginia.gov.

Summary:

This regulatory action establishes a new chapter, 14VAC5-101 (Rules Governing Life and Health Forms Filings), providing current filing practices and requirements for electronic filing to replace 14VAC5-100 (Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms) and 14VAC5-110 (Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies). The new chapter contains form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements, and provisions for out-of-state and multiple employer welfare arrangements filings. The action repeals 14VAC5-100 and 14VAC5-110, which are outdated and largely inapplicable. Revisions since publication of the proposed chapter include (i) clarifying the requirement for withdrawal of a form by another regulatory body, (ii) addressing a variability standard, and (iii) more clearly outlining the statutory requirements for out-of-state filings.

AT RICHMOND, DECEMBER 3, 2019

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2019-00088

Ex Parte: In the matter of Repealing and Adopting New
Rules Governing Forms Filing for Life and Accident
and Sickness Policies

ORDER REPEALING AND ADOPTING RULES

By Order to Take Notice ("Order") entered August 5, 2019, insurers and interested persons were ordered to take notice that subsequent to September 30, 2019, the State Corporation Commission ("Commission") would consider the entry of an order to repeal Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" set out at 14 VAC 5-100-10 through 14 VAC 5-100-80; repeal Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" set out at 14 VAC 5-110-10 through 14 VAC 5-110-80; and adopt a new chapter, Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings," which were recommended to be set out at 14 VAC 5-101-10 through 14 VAC 5-101-120 unless on or before September 30, 2019, any person objecting to the repeal and adoption of rules filed a request for a hearing with the Clerk of the Commission ("Clerk").

The Order also required insurers and interested persons to file their comments in support of or in opposition to the proposal to repeal and adopt new rules with the Clerk on or before September 30, 2019.

No request for a hearing was filed with the Clerk. Comments from the American Council of Life Insurers, Genworth and Principal Financial Group were timely filed with the Clerk. Comments from the Virginia Association of Health Plans were received by the Bureau of Insurance ("Bureau") but filed late with the Clerk. All comments were considered by the Bureau.  The Bureau filed its Response to Comments on November 4, 2019.

The repeal of Chapters 100 and 110 is necessary because these Rules have become outdated and many provisions are no longer applicable. The proposed new Rules in Chapter 101 address current filing practices and requirements for electronic filing. These Rules specifically establish form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements as well as provisions for out-of-state and multiple employer welfare arrangements, or MEWA, filings.

Based on the comments filed, the Bureau recommends amendments to Chapter 101, notably amendments to section 50 to clarify the requirement for withdrawal of a form by another regulatory body, section 80 to address a variability standard, and section 100 to more clearly outline the statutory requirements for out-of-state filings. Other technical amendments are also recommended.

NOW THE COMMISSION, having considered the proposal to repeal and adopt rules, the comments filed, the Bureau's Response, and the amendments recommended by the Bureau as a result of the comments, is of the opinion that the attached new rules should be adopted and Chapters 100 and 110 of the Virginia Administrative Code should be repealed, effective January 1, 2020.

Accordingly, IT IS ORDERED THAT:

(1) Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" and Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" are hereby REPEALED effective January 1, 2020.

(2) Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings" set out at 14 VAC 5-101-10 through 14 VAC 5-101-120, which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2020.

(3) The Bureau shall provide notice of the repeal and adoption of rules to all insurers licensed in Virginia to write life insurance and annuity contracts, accident and sickness insurance, and viatical settlement policies as well as to all interested persons.

(4) The Commission's Division of Information Resources shall cause a copy of this Order, together with the amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(5) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(6) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (3) above.

(7) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 North 9th Street, 8th Floor, Richmond, Virginia 23219; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Julie S. Blauvelt.

CHAPTER 101
RULES GOVERNING LIFE AND HEALTH FORMS FILINGS

14VAC5-101-10. Purpose.

A. The purpose of this chapter is to provide uniform standards for filing forms in accordance with §§ 38.2-316, 38.2-3725, and 38.2-6003 of the Code of Virginia and to establish rules to expedite the review and approval of all forms relating to life, accident and sickness, annuity, credit life, credit accident and sickness, viatical settlements, and legal services plans filed under Chapter 44 (§ 38.2-4400 et seq.) of Title 38.2 of the Code of Virginia that are delivered or issued for delivery in the Commonwealth of Virginia.

B. Any rate filing submitted to the commission that corresponds with a form subject to this chapter shall comply with the applicable filing requirements of this chapter.

C. Medicare supplement and long-term care marketing communications that are required to be filed with the commission pursuant to § 38.2-3609 of the Code of Virginia and 14VAC5-200-160 shall comply with the applicable filing requirements of this chapter.

D. Policyholder notification letters required to be filed with the commission pursuant to 14VAC5-200-75 D shall comply with the applicable filing requirements of this chapter.

14VAC5-101-20. Applicability and scope.

This chapter shall apply to all companies licensed in this Commonwealth to write the types of insurance covered by this chapter.

14VAC5-101-30. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Approval" means a disposition applied to a form indicating that it has been filed by a company, reviewed and approved by the commission, and that it may be used in this Commonwealth for the purpose with which it was approved.

"Commission" means the State Corporation Commission.

"Company" means any entity licensed in the Commonwealth to transact the business of insurance or viatical settlements.

"[ Filed File ] for use" means a disposition applied to a form that is required to be filed with the commission but does not require approval and may be used in this Commonwealth for the purpose with which it was filed.

"Filing description" means a cover letter or electronic summary of the contents of a form filing.

"Form" means a policy, rider, endorsement, amendment, application, enrollment form, certificate of insurance, evidence of coverage, group agreement, supplemental agreement, [ rate, ] or any other form required to be filed with or approved by the commission.

"Policy" means an insurance policy, contract, certificate, evidence of coverage, or other agreement of insurance and includes any attached rider or endorsement.

"SERFF" means the National Association of Insurance Commissioners System for Electronic Rate and Form Filing, or its successor.

14VAC5-101-40. Source of filing.

All filings shall be transmitted electronically through SERFF or submitted in writing to the commission. The filing shall be submitted by the company representative having forms filing responsibilities or by a third-party consulting or legal firm authorized by the company to file its forms. Proof of authorization for any third-party filing shall be included.

14VAC5-101-50. General filing requirements.

A. The commission may set filing deadlines as needed. Deadlines shall be strictly enforced.

B. A form is considered filed with the commission on the date the filing is received. 

C. Each filing shall be accompanied by a filing description that shall include:

1. The type of insurance form, including a description of the form and the market for which the form is intended. Intentions to concentrate on a specialized market should be noted.

2. The form number of each form that is being filed.

3. An indication that the form is new, or if replacing, revising, or modifying a previously approved form, the exact changes that are intended.

4. An identification of any change in benefits and an indication of whether the change affects premium rates for the form.

5. An indication [ when if approval of ] a form submitted has been withdrawn by another regulatory body and the reasons for such a withdrawal.

D. Any form to be used in only the group or only the individual market shall be separately filed.

E. Except for an application or enrollment form, each filing shall pertain to only one type of insurance. Combinations of types of insurance in one filing are otherwise prohibited, unless specifically allowed by law.

F. Any form filed that is to be used with a previously approved form, including an application, shall identify the form number, approval date, and SERFF or state tracking number in the new filing.

G. Any amendment, endorsement, or rider that intends to revise a previously approved form shall be accompanied by the previously approved form filed as supporting documentation.

14VAC5-101-60. Form requirements.

The following requirements shall be met for each form submitted for review or approval:

1. The form number shall appear in the lower left-hand corner of the first page of each form. It shall consist of numbers, letters, or a combination of both. The form number shall distinguish the form from all other forms used by the company.

2. The full licensed name of the company, including the address of the home office, shall appear in prominent print at the top of the cover page of any policy, application, or enrollment form. Examples of prominent print include print that is in all capital letters, bold, enlarged font, contrasting color, underlined, or otherwise differentiated from the other type in the form. The full licensed name of the company shall appear in prominent print on all other forms.

3. A marketing name or logo also may be used on the form, provided that the marketing name or logo does not mislead as to the identity of the company.

4. The cover page of a policy also shall include the address of an office that will administer the policy if different from the home office, a company telephone number, and company website address.

5. Each form shall be submitted in the final form in which it is to be marketed or issued, sufficiently completed in "John Doe" fashion to indicate how it is intended to be used.

6. Each form that is to be used in an electronic version shall be filed in a format that matches the electronic version exactly.

14VAC5-101-70. Readability.

A. Each form submitted for review or approval shall be written in simplified language, logically and clearly arranged, printed in a legible format, and understandable to a person of average intelligence without special insurance knowledge or training.

B. A policy of more than three pages shall include a table of contents listing the principal sections and provisions and the pages on which they are found.

C. Defined words and terms shall be placed in a separate definition section that is clearly identified. A word or term that is used only in one section may be defined within that section.

D. A policy shall be divided into logically arranged sections with an appropriately named caption or heading for ease in locating desired content. Captions and headings shall be clearly set apart from the general text.

E. Any form submitted for review or approval shall be printed in at least 10-point type size.

F. Any policy shall achieve a minimum Flesch reading ease score of 50 or an equivalent score using another comparable test, unless otherwise specified by statute. The commission may approve an alternative to the Flesch reading ease score if it is determined to be comparable. The Flesch reading ease score shall be identified in the certificate of compliance for each policy.

G. A company may request an exception to the Flesch reading ease score. This request shall identify the specific reasons why the minimum standards have not been met and provide details of the policy's Flesch reading ease score test. The commission may except the policy if, in its sole discretion, it finds that a lower score: (i) will provide a more accurate reflection of the readability of the policy; (ii) is warranted by the nature of a particular policy or type or class of policies; or (iii) is caused by certain policy language that is drafted to conform to the requirements of any state or federal law, regulation, or agency interpretation.

14VAC5-101-80. Variability.

A. Use of variable bracketed information shall be limited. [ Any form submission that contains variable bracketed language that is so extensive that it cannot reasonably be reviewed shall be disapproved All variable information shall be clear, easily understood, and fully explain each use of the variable language ].

B. Administrative information, such as officer names, titles and signatures, contact information, or company logo may be presented as variable bracketed text.

C. Different types of benefits may be variable only for inclusion or exclusion within the form. The use of brackets within brackets is not permitted, except when variability is necessary to identify a period of time or other numeric value.

D. Each instance of variable text shall appear in brackets on a form and shall be separately and completely explained in detail in a Statement of Variability document. Each explanation of variability shall appear in the same order that it appears on the form.

E. Requests for revisions to a Statement of Variability contained in a previously approved filing shall be accomplished by notification in the original filing.

14VAC5-101-90. Multiple employer welfare arrangement (MEWA) filings.

Any multiple employer welfare arrangement (MEWA) that has registered with the commission as a licensed insurance company in accordance with 14VAC5-410-40 shall also meet the form and rate filing requirements of §§ 38.2-316 and 38.2-316.1 of the Code of Virginia.

14VAC5-101-100. Out-of-state filings.

A. Any company that wishes to deliver a certificate of insurance to any [ resident of person located in ] this Commonwealth in connection with a policy issued outside of Virginia shall [ file with the commission each form that will be delivered in Virginia. The company shall demonstrate: 1. Whether the state in which the policy was issued has substantially similar laws to Virginia as defined in subdivisions A 1 through A 3 of § 38.2-3319.1 or 38.2-3522.1 of the Code of Virginia as applicable; and 2. The indicate the ] type of group (i) as defined in § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable [ , ] or (ii) a nondefined or discretionary group to which the policy is issued.

[ B. 1. ] If the group is defined in accordance with § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable, the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth will comply with the provisions of § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable.

[ C. 2. ] If the group is nondefined or discretionary and the state of issue has substantially similar laws to Virginia [ in accordance with subsection B of this section ], the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth complies with the requirements of [ subdivisions E 1 through E 3 of subsection B ] this section.

[ D. 3. ] If the group is nondefined or discretionary and the state of issue does not have substantially similar laws to Virginia, the company shall file for approval any form that will be delivered in this Commonwealth in accordance with § 38.2-316 of the Code of Virginia.

[ E. Any policy issued outside of Virginia shall demonstrate B. Laws of another state are substantially similar to Virginia if the commission finds ] that:

1. The policy is not contrary to Virginia's public policy and is in the best interest of the citizens of Virginia;

2. The issuance of the policy will result in economies of acquisition or administration; and

3. The benefits are reasonable in relation to the premiums charged.

14VAC5-101-110. Certificate of compliance.

Each form filing shall include a statement identical to the following that is signed by an officer of the company:

The Flesch reading ease score of the filed policy form is _________.

I represent that a review of the enclosed form has been conducted, and I certify that, to the best of my knowledge and belief, each form submitted is consistent and complies with the requirements of Title 38.2 of the Code of Virginia and the applicable rules and regulations. I understand that a failure to comply with these requirements will result in a disapproval of the filing.

	_______________________________ Signature of Officer
	_______________________________ Printed Name
	_______________________________ Title

14VAC5-101-120. Severability.

If any provision of this chapter or its application to any person or circumstance is for any reason held to be invalid by a court, the remainder of this chapter and the application of the provisions to other persons or circumstances shall not be affected.

Titles of Regulations: 14VAC5-100. Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms (repealing 14VAC5-100-10 through 14VAC5-100-80).

14VAC5-101. Rules Governing Life and Health Forms Filings (adding 14VAC5-101-10 through 14VAC5-101-120).

14VAC5-110. Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies (repealing 14VAC5-110-10 through 14VAC5-110-80).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Elsie Andy, Manager, Rates and Forms Section Life and Health Division, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9072, FAX (804) 371-9944, or email elsie.andy@scc.virginia.gov.

Summary:

This regulatory action establishes a new chapter, 14VAC5-101 (Rules Governing Life and Health Forms Filings), providing current filing practices and requirements for electronic filing to replace 14VAC5-100 (Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms) and 14VAC5-110 (Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies). The new chapter contains form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements, and provisions for out-of-state and multiple employer welfare arrangements filings. The action repeals 14VAC5-100 and 14VAC5-110, which are outdated and largely inapplicable. Revisions since publication of the proposed chapter include (i) clarifying the requirement for withdrawal of a form by another regulatory body, (ii) addressing a variability standard, and (iii) more clearly outlining the statutory requirements for out-of-state filings.

AT RICHMOND, DECEMBER 3, 2019

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2019-00088

Ex Parte: In the matter of Repealing and Adopting New
Rules Governing Forms Filing for Life and Accident
and Sickness Policies

ORDER REPEALING AND ADOPTING RULES

By Order to Take Notice ("Order") entered August 5, 2019, insurers and interested persons were ordered to take notice that subsequent to September 30, 2019, the State Corporation Commission ("Commission") would consider the entry of an order to repeal Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" set out at 14 VAC 5-100-10 through 14 VAC 5-100-80; repeal Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" set out at 14 VAC 5-110-10 through 14 VAC 5-110-80; and adopt a new chapter, Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings," which were recommended to be set out at 14 VAC 5-101-10 through 14 VAC 5-101-120 unless on or before September 30, 2019, any person objecting to the repeal and adoption of rules filed a request for a hearing with the Clerk of the Commission ("Clerk").

The Order also required insurers and interested persons to file their comments in support of or in opposition to the proposal to repeal and adopt new rules with the Clerk on or before September 30, 2019.

No request for a hearing was filed with the Clerk. Comments from the American Council of Life Insurers, Genworth and Principal Financial Group were timely filed with the Clerk. Comments from the Virginia Association of Health Plans were received by the Bureau of Insurance ("Bureau") but filed late with the Clerk. All comments were considered by the Bureau.  The Bureau filed its Response to Comments on November 4, 2019.

The repeal of Chapters 100 and 110 is necessary because these Rules have become outdated and many provisions are no longer applicable. The proposed new Rules in Chapter 101 address current filing practices and requirements for electronic filing. These Rules specifically establish form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements as well as provisions for out-of-state and multiple employer welfare arrangements, or MEWA, filings.

Based on the comments filed, the Bureau recommends amendments to Chapter 101, notably amendments to section 50 to clarify the requirement for withdrawal of a form by another regulatory body, section 80 to address a variability standard, and section 100 to more clearly outline the statutory requirements for out-of-state filings. Other technical amendments are also recommended.

NOW THE COMMISSION, having considered the proposal to repeal and adopt rules, the comments filed, the Bureau's Response, and the amendments recommended by the Bureau as a result of the comments, is of the opinion that the attached new rules should be adopted and Chapters 100 and 110 of the Virginia Administrative Code should be repealed, effective January 1, 2020.

Accordingly, IT IS ORDERED THAT:

(1) Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" and Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" are hereby REPEALED effective January 1, 2020.

(2) Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings" set out at 14 VAC 5-101-10 through 14 VAC 5-101-120, which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2020.

(3) The Bureau shall provide notice of the repeal and adoption of rules to all insurers licensed in Virginia to write life insurance and annuity contracts, accident and sickness insurance, and viatical settlement policies as well as to all interested persons.

(4) The Commission's Division of Information Resources shall cause a copy of this Order, together with the amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(5) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(6) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (3) above.

(7) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 North 9th Street, 8th Floor, Richmond, Virginia 23219; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Julie S. Blauvelt.

CHAPTER 101
RULES GOVERNING LIFE AND HEALTH FORMS FILINGS

14VAC5-101-10. Purpose.

A. The purpose of this chapter is to provide uniform standards for filing forms in accordance with §§ 38.2-316, 38.2-3725, and 38.2-6003 of the Code of Virginia and to establish rules to expedite the review and approval of all forms relating to life, accident and sickness, annuity, credit life, credit accident and sickness, viatical settlements, and legal services plans filed under Chapter 44 (§ 38.2-4400 et seq.) of Title 38.2 of the Code of Virginia that are delivered or issued for delivery in the Commonwealth of Virginia.

B. Any rate filing submitted to the commission that corresponds with a form subject to this chapter shall comply with the applicable filing requirements of this chapter.

C. Medicare supplement and long-term care marketing communications that are required to be filed with the commission pursuant to § 38.2-3609 of the Code of Virginia and 14VAC5-200-160 shall comply with the applicable filing requirements of this chapter.

D. Policyholder notification letters required to be filed with the commission pursuant to 14VAC5-200-75 D shall comply with the applicable filing requirements of this chapter.

14VAC5-101-20. Applicability and scope.

This chapter shall apply to all companies licensed in this Commonwealth to write the types of insurance covered by this chapter.

14VAC5-101-30. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Approval" means a disposition applied to a form indicating that it has been filed by a company, reviewed and approved by the commission, and that it may be used in this Commonwealth for the purpose with which it was approved.

"Commission" means the State Corporation Commission.

"Company" means any entity licensed in the Commonwealth to transact the business of insurance or viatical settlements.

"[ Filed File ] for use" means a disposition applied to a form that is required to be filed with the commission but does not require approval and may be used in this Commonwealth for the purpose with which it was filed.

"Filing description" means a cover letter or electronic summary of the contents of a form filing.

"Form" means a policy, rider, endorsement, amendment, application, enrollment form, certificate of insurance, evidence of coverage, group agreement, supplemental agreement, [ rate, ] or any other form required to be filed with or approved by the commission.

"Policy" means an insurance policy, contract, certificate, evidence of coverage, or other agreement of insurance and includes any attached rider or endorsement.

"SERFF" means the National Association of Insurance Commissioners System for Electronic Rate and Form Filing, or its successor.

14VAC5-101-40. Source of filing.

All filings shall be transmitted electronically through SERFF or submitted in writing to the commission. The filing shall be submitted by the company representative having forms filing responsibilities or by a third-party consulting or legal firm authorized by the company to file its forms. Proof of authorization for any third-party filing shall be included.

14VAC5-101-50. General filing requirements.

A. The commission may set filing deadlines as needed. Deadlines shall be strictly enforced.

B. A form is considered filed with the commission on the date the filing is received. 

C. Each filing shall be accompanied by a filing description that shall include:

1. The type of insurance form, including a description of the form and the market for which the form is intended. Intentions to concentrate on a specialized market should be noted.

2. The form number of each form that is being filed.

3. An indication that the form is new, or if replacing, revising, or modifying a previously approved form, the exact changes that are intended.

4. An identification of any change in benefits and an indication of whether the change affects premium rates for the form.

5. An indication [ when if approval of ] a form submitted has been withdrawn by another regulatory body and the reasons for such a withdrawal.

D. Any form to be used in only the group or only the individual market shall be separately filed.

E. Except for an application or enrollment form, each filing shall pertain to only one type of insurance. Combinations of types of insurance in one filing are otherwise prohibited, unless specifically allowed by law.

F. Any form filed that is to be used with a previously approved form, including an application, shall identify the form number, approval date, and SERFF or state tracking number in the new filing.

G. Any amendment, endorsement, or rider that intends to revise a previously approved form shall be accompanied by the previously approved form filed as supporting documentation.

14VAC5-101-60. Form requirements.

The following requirements shall be met for each form submitted for review or approval:

1. The form number shall appear in the lower left-hand corner of the first page of each form. It shall consist of numbers, letters, or a combination of both. The form number shall distinguish the form from all other forms used by the company.

2. The full licensed name of the company, including the address of the home office, shall appear in prominent print at the top of the cover page of any policy, application, or enrollment form. Examples of prominent print include print that is in all capital letters, bold, enlarged font, contrasting color, underlined, or otherwise differentiated from the other type in the form. The full licensed name of the company shall appear in prominent print on all other forms.

3. A marketing name or logo also may be used on the form, provided that the marketing name or logo does not mislead as to the identity of the company.

4. The cover page of a policy also shall include the address of an office that will administer the policy if different from the home office, a company telephone number, and company website address.

5. Each form shall be submitted in the final form in which it is to be marketed or issued, sufficiently completed in "John Doe" fashion to indicate how it is intended to be used.

6. Each form that is to be used in an electronic version shall be filed in a format that matches the electronic version exactly.

14VAC5-101-70. Readability.

A. Each form submitted for review or approval shall be written in simplified language, logically and clearly arranged, printed in a legible format, and understandable to a person of average intelligence without special insurance knowledge or training.

B. A policy of more than three pages shall include a table of contents listing the principal sections and provisions and the pages on which they are found.

C. Defined words and terms shall be placed in a separate definition section that is clearly identified. A word or term that is used only in one section may be defined within that section.

D. A policy shall be divided into logically arranged sections with an appropriately named caption or heading for ease in locating desired content. Captions and headings shall be clearly set apart from the general text.

E. Any form submitted for review or approval shall be printed in at least 10-point type size.

F. Any policy shall achieve a minimum Flesch reading ease score of 50 or an equivalent score using another comparable test, unless otherwise specified by statute. The commission may approve an alternative to the Flesch reading ease score if it is determined to be comparable. The Flesch reading ease score shall be identified in the certificate of compliance for each policy.

G. A company may request an exception to the Flesch reading ease score. This request shall identify the specific reasons why the minimum standards have not been met and provide details of the policy's Flesch reading ease score test. The commission may except the policy if, in its sole discretion, it finds that a lower score: (i) will provide a more accurate reflection of the readability of the policy; (ii) is warranted by the nature of a particular policy or type or class of policies; or (iii) is caused by certain policy language that is drafted to conform to the requirements of any state or federal law, regulation, or agency interpretation.

14VAC5-101-80. Variability.

A. Use of variable bracketed information shall be limited. [ Any form submission that contains variable bracketed language that is so extensive that it cannot reasonably be reviewed shall be disapproved All variable information shall be clear, easily understood, and fully explain each use of the variable language ].

B. Administrative information, such as officer names, titles and signatures, contact information, or company logo may be presented as variable bracketed text.

C. Different types of benefits may be variable only for inclusion or exclusion within the form. The use of brackets within brackets is not permitted, except when variability is necessary to identify a period of time or other numeric value.

D. Each instance of variable text shall appear in brackets on a form and shall be separately and completely explained in detail in a Statement of Variability document. Each explanation of variability shall appear in the same order that it appears on the form.

E. Requests for revisions to a Statement of Variability contained in a previously approved filing shall be accomplished by notification in the original filing.

14VAC5-101-90. Multiple employer welfare arrangement (MEWA) filings.

Any multiple employer welfare arrangement (MEWA) that has registered with the commission as a licensed insurance company in accordance with 14VAC5-410-40 shall also meet the form and rate filing requirements of §§ 38.2-316 and 38.2-316.1 of the Code of Virginia.

14VAC5-101-100. Out-of-state filings.

A. Any company that wishes to deliver a certificate of insurance to any [ resident of person located in ] this Commonwealth in connection with a policy issued outside of Virginia shall [ file with the commission each form that will be delivered in Virginia. The company shall demonstrate: 1. Whether the state in which the policy was issued has substantially similar laws to Virginia as defined in subdivisions A 1 through A 3 of § 38.2-3319.1 or 38.2-3522.1 of the Code of Virginia as applicable; and 2. The indicate the ] type of group (i) as defined in § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable [ , ] or (ii) a nondefined or discretionary group to which the policy is issued.

[ B. 1. ] If the group is defined in accordance with § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable, the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth will comply with the provisions of § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable.

[ C. 2. ] If the group is nondefined or discretionary and the state of issue has substantially similar laws to Virginia [ in accordance with subsection B of this section ], the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth complies with the requirements of [ subdivisions E 1 through E 3 of subsection B ] this section.

[ D. 3. ] If the group is nondefined or discretionary and the state of issue does not have substantially similar laws to Virginia, the company shall file for approval any form that will be delivered in this Commonwealth in accordance with § 38.2-316 of the Code of Virginia.

[ E. Any policy issued outside of Virginia shall demonstrate B. Laws of another state are substantially similar to Virginia if the commission finds ] that:

1. The policy is not contrary to Virginia's public policy and is in the best interest of the citizens of Virginia;

2. The issuance of the policy will result in economies of acquisition or administration; and

3. The benefits are reasonable in relation to the premiums charged.

14VAC5-101-110. Certificate of compliance.

Each form filing shall include a statement identical to the following that is signed by an officer of the company:

The Flesch reading ease score of the filed policy form is _________.

I represent that a review of the enclosed form has been conducted, and I certify that, to the best of my knowledge and belief, each form submitted is consistent and complies with the requirements of Title 38.2 of the Code of Virginia and the applicable rules and regulations. I understand that a failure to comply with these requirements will result in a disapproval of the filing.

	_______________________________ Signature of Officer
	_______________________________ Printed Name
	_______________________________ Title

14VAC5-101-120. Severability.

If any provision of this chapter or its application to any person or circumstance is for any reason held to be invalid by a court, the remainder of this chapter and the application of the provisions to other persons or circumstances shall not be affected.

Titles of Regulations: 14VAC5-100. Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms (repealing 14VAC5-100-10 through 14VAC5-100-80).

14VAC5-101. Rules Governing Life and Health Forms Filings (adding 14VAC5-101-10 through 14VAC5-101-120).

14VAC5-110. Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies (repealing 14VAC5-110-10 through 14VAC5-110-80).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Elsie Andy, Manager, Rates and Forms Section Life and Health Division, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9072, FAX (804) 371-9944, or email elsie.andy@scc.virginia.gov.

Summary:

This regulatory action establishes a new chapter, 14VAC5-101 (Rules Governing Life and Health Forms Filings), providing current filing practices and requirements for electronic filing to replace 14VAC5-100 (Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms) and 14VAC5-110 (Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies). The new chapter contains form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements, and provisions for out-of-state and multiple employer welfare arrangements filings. The action repeals 14VAC5-100 and 14VAC5-110, which are outdated and largely inapplicable. Revisions since publication of the proposed chapter include (i) clarifying the requirement for withdrawal of a form by another regulatory body, (ii) addressing a variability standard, and (iii) more clearly outlining the statutory requirements for out-of-state filings.

AT RICHMOND, DECEMBER 3, 2019

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2019-00088

Ex Parte: In the matter of Repealing and Adopting New
Rules Governing Forms Filing for Life and Accident
and Sickness Policies

ORDER REPEALING AND ADOPTING RULES

By Order to Take Notice ("Order") entered August 5, 2019, insurers and interested persons were ordered to take notice that subsequent to September 30, 2019, the State Corporation Commission ("Commission") would consider the entry of an order to repeal Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" set out at 14 VAC 5-100-10 through 14 VAC 5-100-80; repeal Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" set out at 14 VAC 5-110-10 through 14 VAC 5-110-80; and adopt a new chapter, Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings," which were recommended to be set out at 14 VAC 5-101-10 through 14 VAC 5-101-120 unless on or before September 30, 2019, any person objecting to the repeal and adoption of rules filed a request for a hearing with the Clerk of the Commission ("Clerk").

The Order also required insurers and interested persons to file their comments in support of or in opposition to the proposal to repeal and adopt new rules with the Clerk on or before September 30, 2019.

No request for a hearing was filed with the Clerk. Comments from the American Council of Life Insurers, Genworth and Principal Financial Group were timely filed with the Clerk. Comments from the Virginia Association of Health Plans were received by the Bureau of Insurance ("Bureau") but filed late with the Clerk. All comments were considered by the Bureau.  The Bureau filed its Response to Comments on November 4, 2019.

The repeal of Chapters 100 and 110 is necessary because these Rules have become outdated and many provisions are no longer applicable. The proposed new Rules in Chapter 101 address current filing practices and requirements for electronic filing. These Rules specifically establish form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements as well as provisions for out-of-state and multiple employer welfare arrangements, or MEWA, filings.

Based on the comments filed, the Bureau recommends amendments to Chapter 101, notably amendments to section 50 to clarify the requirement for withdrawal of a form by another regulatory body, section 80 to address a variability standard, and section 100 to more clearly outline the statutory requirements for out-of-state filings. Other technical amendments are also recommended.

NOW THE COMMISSION, having considered the proposal to repeal and adopt rules, the comments filed, the Bureau's Response, and the amendments recommended by the Bureau as a result of the comments, is of the opinion that the attached new rules should be adopted and Chapters 100 and 110 of the Virginia Administrative Code should be repealed, effective January 1, 2020.

Accordingly, IT IS ORDERED THAT:

(1) Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" and Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" are hereby REPEALED effective January 1, 2020.

(2) Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings" set out at 14 VAC 5-101-10 through 14 VAC 5-101-120, which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2020.

(3) The Bureau shall provide notice of the repeal and adoption of rules to all insurers licensed in Virginia to write life insurance and annuity contracts, accident and sickness insurance, and viatical settlement policies as well as to all interested persons.

(4) The Commission's Division of Information Resources shall cause a copy of this Order, together with the amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(5) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(6) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (3) above.

(7) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 North 9th Street, 8th Floor, Richmond, Virginia 23219; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Julie S. Blauvelt.

CHAPTER 101
RULES GOVERNING LIFE AND HEALTH FORMS FILINGS

14VAC5-101-10. Purpose.

A. The purpose of this chapter is to provide uniform standards for filing forms in accordance with §§ 38.2-316, 38.2-3725, and 38.2-6003 of the Code of Virginia and to establish rules to expedite the review and approval of all forms relating to life, accident and sickness, annuity, credit life, credit accident and sickness, viatical settlements, and legal services plans filed under Chapter 44 (§ 38.2-4400 et seq.) of Title 38.2 of the Code of Virginia that are delivered or issued for delivery in the Commonwealth of Virginia.

B. Any rate filing submitted to the commission that corresponds with a form subject to this chapter shall comply with the applicable filing requirements of this chapter.

C. Medicare supplement and long-term care marketing communications that are required to be filed with the commission pursuant to § 38.2-3609 of the Code of Virginia and 14VAC5-200-160 shall comply with the applicable filing requirements of this chapter.

D. Policyholder notification letters required to be filed with the commission pursuant to 14VAC5-200-75 D shall comply with the applicable filing requirements of this chapter.

14VAC5-101-20. Applicability and scope.

This chapter shall apply to all companies licensed in this Commonwealth to write the types of insurance covered by this chapter.

14VAC5-101-30. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Approval" means a disposition applied to a form indicating that it has been filed by a company, reviewed and approved by the commission, and that it may be used in this Commonwealth for the purpose with which it was approved.

"Commission" means the State Corporation Commission.

"Company" means any entity licensed in the Commonwealth to transact the business of insurance or viatical settlements.

"[ Filed File ] for use" means a disposition applied to a form that is required to be filed with the commission but does not require approval and may be used in this Commonwealth for the purpose with which it was filed.

"Filing description" means a cover letter or electronic summary of the contents of a form filing.

"Form" means a policy, rider, endorsement, amendment, application, enrollment form, certificate of insurance, evidence of coverage, group agreement, supplemental agreement, [ rate, ] or any other form required to be filed with or approved by the commission.

"Policy" means an insurance policy, contract, certificate, evidence of coverage, or other agreement of insurance and includes any attached rider or endorsement.

"SERFF" means the National Association of Insurance Commissioners System for Electronic Rate and Form Filing, or its successor.

14VAC5-101-40. Source of filing.

All filings shall be transmitted electronically through SERFF or submitted in writing to the commission. The filing shall be submitted by the company representative having forms filing responsibilities or by a third-party consulting or legal firm authorized by the company to file its forms. Proof of authorization for any third-party filing shall be included.

14VAC5-101-50. General filing requirements.

A. The commission may set filing deadlines as needed. Deadlines shall be strictly enforced.

B. A form is considered filed with the commission on the date the filing is received. 

C. Each filing shall be accompanied by a filing description that shall include:

1. The type of insurance form, including a description of the form and the market for which the form is intended. Intentions to concentrate on a specialized market should be noted.

2. The form number of each form that is being filed.

3. An indication that the form is new, or if replacing, revising, or modifying a previously approved form, the exact changes that are intended.

4. An identification of any change in benefits and an indication of whether the change affects premium rates for the form.

5. An indication [ when if approval of ] a form submitted has been withdrawn by another regulatory body and the reasons for such a withdrawal.

D. Any form to be used in only the group or only the individual market shall be separately filed.

E. Except for an application or enrollment form, each filing shall pertain to only one type of insurance. Combinations of types of insurance in one filing are otherwise prohibited, unless specifically allowed by law.

F. Any form filed that is to be used with a previously approved form, including an application, shall identify the form number, approval date, and SERFF or state tracking number in the new filing.

G. Any amendment, endorsement, or rider that intends to revise a previously approved form shall be accompanied by the previously approved form filed as supporting documentation.

14VAC5-101-60. Form requirements.

The following requirements shall be met for each form submitted for review or approval:

1. The form number shall appear in the lower left-hand corner of the first page of each form. It shall consist of numbers, letters, or a combination of both. The form number shall distinguish the form from all other forms used by the company.

2. The full licensed name of the company, including the address of the home office, shall appear in prominent print at the top of the cover page of any policy, application, or enrollment form. Examples of prominent print include print that is in all capital letters, bold, enlarged font, contrasting color, underlined, or otherwise differentiated from the other type in the form. The full licensed name of the company shall appear in prominent print on all other forms.

3. A marketing name or logo also may be used on the form, provided that the marketing name or logo does not mislead as to the identity of the company.

4. The cover page of a policy also shall include the address of an office that will administer the policy if different from the home office, a company telephone number, and company website address.

5. Each form shall be submitted in the final form in which it is to be marketed or issued, sufficiently completed in "John Doe" fashion to indicate how it is intended to be used.

6. Each form that is to be used in an electronic version shall be filed in a format that matches the electronic version exactly.

14VAC5-101-70. Readability.

A. Each form submitted for review or approval shall be written in simplified language, logically and clearly arranged, printed in a legible format, and understandable to a person of average intelligence without special insurance knowledge or training.

B. A policy of more than three pages shall include a table of contents listing the principal sections and provisions and the pages on which they are found.

C. Defined words and terms shall be placed in a separate definition section that is clearly identified. A word or term that is used only in one section may be defined within that section.

D. A policy shall be divided into logically arranged sections with an appropriately named caption or heading for ease in locating desired content. Captions and headings shall be clearly set apart from the general text.

E. Any form submitted for review or approval shall be printed in at least 10-point type size.

F. Any policy shall achieve a minimum Flesch reading ease score of 50 or an equivalent score using another comparable test, unless otherwise specified by statute. The commission may approve an alternative to the Flesch reading ease score if it is determined to be comparable. The Flesch reading ease score shall be identified in the certificate of compliance for each policy.

G. A company may request an exception to the Flesch reading ease score. This request shall identify the specific reasons why the minimum standards have not been met and provide details of the policy's Flesch reading ease score test. The commission may except the policy if, in its sole discretion, it finds that a lower score: (i) will provide a more accurate reflection of the readability of the policy; (ii) is warranted by the nature of a particular policy or type or class of policies; or (iii) is caused by certain policy language that is drafted to conform to the requirements of any state or federal law, regulation, or agency interpretation.

14VAC5-101-80. Variability.

A. Use of variable bracketed information shall be limited. [ Any form submission that contains variable bracketed language that is so extensive that it cannot reasonably be reviewed shall be disapproved All variable information shall be clear, easily understood, and fully explain each use of the variable language ].

B. Administrative information, such as officer names, titles and signatures, contact information, or company logo may be presented as variable bracketed text.

C. Different types of benefits may be variable only for inclusion or exclusion within the form. The use of brackets within brackets is not permitted, except when variability is necessary to identify a period of time or other numeric value.

D. Each instance of variable text shall appear in brackets on a form and shall be separately and completely explained in detail in a Statement of Variability document. Each explanation of variability shall appear in the same order that it appears on the form.

E. Requests for revisions to a Statement of Variability contained in a previously approved filing shall be accomplished by notification in the original filing.

14VAC5-101-90. Multiple employer welfare arrangement (MEWA) filings.

Any multiple employer welfare arrangement (MEWA) that has registered with the commission as a licensed insurance company in accordance with 14VAC5-410-40 shall also meet the form and rate filing requirements of §§ 38.2-316 and 38.2-316.1 of the Code of Virginia.

14VAC5-101-100. Out-of-state filings.

A. Any company that wishes to deliver a certificate of insurance to any [ resident of person located in ] this Commonwealth in connection with a policy issued outside of Virginia shall [ file with the commission each form that will be delivered in Virginia. The company shall demonstrate: 1. Whether the state in which the policy was issued has substantially similar laws to Virginia as defined in subdivisions A 1 through A 3 of § 38.2-3319.1 or 38.2-3522.1 of the Code of Virginia as applicable; and 2. The indicate the ] type of group (i) as defined in § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable [ , ] or (ii) a nondefined or discretionary group to which the policy is issued.

[ B. 1. ] If the group is defined in accordance with § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable, the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth will comply with the provisions of § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable.

[ C. 2. ] If the group is nondefined or discretionary and the state of issue has substantially similar laws to Virginia [ in accordance with subsection B of this section ], the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth complies with the requirements of [ subdivisions E 1 through E 3 of subsection B ] this section.

[ D. 3. ] If the group is nondefined or discretionary and the state of issue does not have substantially similar laws to Virginia, the company shall file for approval any form that will be delivered in this Commonwealth in accordance with § 38.2-316 of the Code of Virginia.

[ E. Any policy issued outside of Virginia shall demonstrate B. Laws of another state are substantially similar to Virginia if the commission finds ] that:

1. The policy is not contrary to Virginia's public policy and is in the best interest of the citizens of Virginia;

2. The issuance of the policy will result in economies of acquisition or administration; and

3. The benefits are reasonable in relation to the premiums charged.

14VAC5-101-110. Certificate of compliance.

Each form filing shall include a statement identical to the following that is signed by an officer of the company:

The Flesch reading ease score of the filed policy form is _________.

I represent that a review of the enclosed form has been conducted, and I certify that, to the best of my knowledge and belief, each form submitted is consistent and complies with the requirements of Title 38.2 of the Code of Virginia and the applicable rules and regulations. I understand that a failure to comply with these requirements will result in a disapproval of the filing.

	_______________________________ Signature of Officer
	_______________________________ Printed Name
	_______________________________ Title

14VAC5-101-120. Severability.

If any provision of this chapter or its application to any person or circumstance is for any reason held to be invalid by a court, the remainder of this chapter and the application of the provisions to other persons or circumstances shall not be affected.

Title of Regulation: 18VAC15-20. Virginia Asbestos Licensing Regulations (amending 18VAC15-20-53).

Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of Virginia.

Effective Date: February 1, 2020.

Agency Contact: Trisha Henshaw, Executive Director, Virginia Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email alhi@dpor.virginia.gov.

Summary:

The amendments (i) reduce renewal and late renewal fees through February 2021 to comply with § 54.1-113 of the Code of Virginia and (ii) correct a date to account for Leap Day in 2020.

18VAC15-20-53. Renewal and late renewal fees.

A. Renewal and late renewal fees are set out in this section.

Fee Type	Fee Amount	When Due
Renewal for worker, supervisor, inspector, management planner, project designer or project monitor license	$45	With renewal application
Renewal for asbestos analytical laboratory license	$75	With renewal application
Renewal for asbestos analytical laboratory branch office	$55	With renewal application
Renewal for asbestos contractor's license	$70	With renewal application
Renewal for accredited asbestos training program approval	$125	With renewal application
Late renewal for worker, supervisor, inspector, management planner, project designer or project monitor license (includes a $35 late renewal fee in addition to the regular $45 renewal fee)	$80	With renewal application
Late renewal for asbestos analytical laboratory license (includes a $35 late renewal fee in addition to the regular $75 renewal fee)	$110	With renewal application
Late renewal for asbestos analytical laboratory branch office (includes $35 late renewal fee in addition to the regular $55 renewal fee)	$90	With renewal application
Late renewal for asbestos contractor's license (includes a $35 late renewal fee in addition to the regular $70 renewal fee)	$105	With renewal application
Late renewal for accredited asbestos training program approval (includes a $35 late renewal fee in addition to the regular $125 renewal fee)	$160	With renewal application

B. For licenses expiring after February 1, 2018, and before February 1, 2020, the renewal fees shall be as follows:

Renewal for worker, supervisor, inspector, management planner, project designer, or project monitor license	$25
Renewal for asbestos analytical laboratory license	$40
Renewal for asbestos contractor's license	$30
Renewal for accredited asbestos training program approval	$40

For late renewals received after March 1, 2018, and on or before February 28 29, 2020, the late renewal fees shall be as follows:

Late renewal for worker, supervisor, inspector, management planner, project designer, or project monitor license	$60
Late renewal for asbestos analytical laboratory license	$75
Late renewal for asbestos contractor's license	$65
Late renewal for accredited asbestos training program approval	$75

C. For licenses expiring after February 1, 2020, and before February 1, 2021, the renewal fees shall be as follows:

Renewal for worker, supervisor, inspector, management planner, project designer, or project monitor license	$40
Renewal for asbestos analytical laboratory license	$65
Renewal for asbestos contractor's license	$60
Renewal for accredited asbestos training program approval	$75

For late renewals received after March 1, 2020, and on or before February 28, 2021, the late renewal fees shall be as follows:

Late renewal for worker, supervisor, inspector, management planner, project designer, or project monitor license	$75
Late renewal for asbestos analytical laboratory license	$100
Late renewal for asbestos contractor's license	$95
Late renewal for accredited asbestos training program approval	$110

FORMS (18VAC15-20)

Asbestos Worker License Application, A506-3301LIC-v4 (rev. 8/2015)

Asbestos Supervisor License Application, A506-3302LIC-v4 (rev. 8/2015)

Asbestos Inspector License Application, A506-3303LIC-v5 (rev. 8/2015)

Asbestos Management Planner License Application, A506-3304LIC-v4 (rev. 8/2015)

Asbestos Project Designer License Application, A506-3305LIC-v4 (rev. 8/2015)

Asbestos Project Monitor License Application, A506-3309LIC-v5 (rev. 8/2015)

Individual - Asbestos License Renewal Form, A506-33AREN-v4 (rev. 2/2018)

Asbestos Analytical Laboratory License Renewal/Branch Office Renewal Form, A506-3333REN-v4 (rev. 9/2019)

Contractor - Asbestos & Lead License Renewal Form, A506-33CONREN-v5 (rev. 9/2019)

Individual - Asbestos License Renewal Form, A506-33AREN-v5 (rev. 2/2020)

Asbestos Analytical Laboratory License Renewal/Branch Office Renewal Form, A506-3333_34REN-v5 (rev. 2/2020)

Contractor - Asbestos & Lead License Renewal Form, A506-33CONREN-v6 (rev. 2/2020)

Asbestos - Experience Verification Application, A506-33AEXP-v5 (rev. 3/2019)

Asbestos - Education Verification Application, A506-33AED-v3 (rev. 8/2015)

Virginia Asbestos Licensing Consumer Information Sheet, A506-33ACIS-v2 (rev. 8/2013)

Inspector/Project Designer/Contractor Disclosure Form, A506-33DIS-v2 (rev. 8/2013)

Asbestos Contractor License Application, A506-3306LIC-v5 (rev. 9/2019)

Asbestos Analytical Laboratory License Application, A506-3333LIC-v7 (rev. 9/2019)

Asbestos Analytical Laboratory - Branch Office Application, A506-3333BR-v1 (rev. 9/2019)

Change of Laboratory Analysis Type Form, A506-3333COA-v1 (rev. 9/2019)

Asbestos Training Program Review and Audit Application, A506-3331ACRS-v4 (rev. 8/2015)

Asbestos Project Monitor - Work Experience Log, A506-3309EXP-v3 (rev. 8/2015)

Title of Regulation: 18VAC15-30. Virginia Lead-Based Paint Activities Regulations (amending 18VAC15-30-163).

Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of Virginia.

Effective Date: February 1, 2020.

Agency Contact: Trisha Henshaw, Executive Director, Virginia Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email alhi@dpor.virginia.gov.

Summary:

The amendments (i) reduce the renewal and late renewal fees through February 2021 to comply with § 54.1-113 of the Code of Virginia and (ii) correct a date to account for Leap Day in 2020.

18VAC15-30-163. Renewal and late renewal fees.

A. Renewal and late renewal fees are as follows:

Fee Type	Fee Amount	When Due
Renewal for worker, supervisor, inspector, risk assessor or project designer license	$45	With renewal application
Renewal for lead contractor license	$70	With renewal application
Renewal for accredited lead training program approval	$125	With renewal application
Late renewal for worker, supervisor, inspector, risk assessor or project designer license (includes a $35 late renewal fee in addition to the regular $45 renewal fee)	$80	With renewal application
Late renewal for lead contractor license (includes a $35 late renewal fee in addition to the regular $70 renewal fee)	$105	With renewal application
Late renewal for accredited lead training program approval (includes a $35 late renewal fee in addition to the regular $125 renewal fee)	$160	With renewal application

B. For licenses expiring after February 1, 2018, and before February 1, 2020, the renewal fees shall be as follows:

Renewal for worker, supervisor, inspector, risk assessor, or project designer license	$25
Renewal for lead contractor license	$30
Renewal for accredited lead training program approval	$40

For late renewals received after March 1, 2018, and on or before February 28 29, 2020, the late renewal fees shall be as follows:

Late renewal for worker, supervisor, inspector, risk assessor, or project designer license	$60
Late renewal for lead contractor license	$65
Late renewal for accredited lead training program approval	$75

C. For licenses expiring after February 1, 2020, and before February 1, 2021, the renewal fees shall be as follows:

Renewal for worker, supervisor, inspector, risk assessor, or project designer license	$40
Renewal for lead contractor license	$60
Renewal for accredited lead training program approval	$75

For late renewals received after March 1, 2020, and on or before February 28, 2021, the late renewal fees shall be as follows:

Late renewal for worker, supervisor, inspector, risk assessor, or project designer license	$75
Late renewal for lead contractor license	$95
Late renewal for accredited lead training program approval	$110

FORMS (18VAC15-30)

Lead Abatement Worker License Application, A506-3351LIC-v3 (eff. 8/2015)

Lead Abatement Supervisor License Application, A506-3353LIC-v4 (eff. 8/2015)

Lead Abatement Inspector License Application, A506-3355LIC-v3 (eff. 8/2015)

Lead Abatement Risk Assessor License Application, A506-3356LIC-v5 (eff. 8/2015)

Lead Abatement Project Designer License Application, A506-3357LIC-v3 (eff. 8/2015)

Lead Abatement Contractor License Application, A506-3358LIC-v3 (eff. 8/2015)

Contractor - Asbestos & Lead License Renewal Form, A506-33CONREN-v4 (rev. 2/2018)

Individual - Lead License Renewal Form, A506-33LREN-v3 (rev. 2/2018)

Contractor - Asbestos & Lead License Renewal Form, A506-33CONREN-v6 (rev. 2/2020)

Individual - Lead License Renewal Form, A506-33LREN-v4 (rev. 2/2020)

Lead - Education Verification Application, A506-33LED-v3 (rev. 8/2015)

Lead - Experience Verification Application, A506-33LEXP-v3 (rev. 8/2015)

Lead Training Course Application, 3331LCRS-v4 (eff. 8/2015)

Inspector/Risk Assessor/Project Designer/Contractor Disclosure Form, A506-33LDIS-v2 (eff. 8/2013)

Virginia Lead Licensing Consumer Information Sheet, A506-33LCIS-v2 (eff. 8/2013)

Title of Regulation: 18VAC15-40. Home Inspector Licensing Regulations (amending 18VAC15-40-50).

Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of Virginia.

Effective Date: February 1, 2020.

Agency Contact: Trisha L. Henshaw, Executive Director, Virginia Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email alhi@dpor.virginia.gov.

Summary:

The amendments (i) reduce renewal and late renewal fees through February 2022 to comply with § 54.1-113 of the Code of Virginia and (ii) correct a date to account for Leap Day 2020.

18VAC15-40-50. Fees.

Fee type	Fee amount	When due
Initial home inspector application	$80	With application for home inspector
Initial NRS specialty application	$80	With application for NRS specialty designation
Home inspector renewal	$45	With renewal application
Home inspector with NRS specialty renewal	$90	With renewal application
Home inspector reinstatement	$125	With reinstatement application
Home inspector with NRS specialty reinstatement	$170	With reinstatement application
Prelicense education course approval	$250	With prelicense education course approval application
NRS training module approval	$150	With NRS training module approval application
NRS CPE course approval	$150	With NRS CPE course approval application

For licenses expiring after February 1, 2018, and before February 1, 2020, the renewal fees shall be as follows:

Home inspector renewal	$25
Home inspector with NRS specialty renewal	$50

For reinstatement applications received after March 1, 2018, and on or before February 28 29, 2020, the reinstatement fees shall be as follows:

Home inspector reinstatement	$105
Home inspector with NRS specialty reinstatement	$130

For licenses expiring after February 1, 2020, and before February 1, 2022, the renewal fees shall be as follows:

Home inspector renewal	$40
Home inspector with NRS specialty renewal	$80

For reinstatement applications received after March 1, 2020, and on or before February 28, 2022, the reinstatement fees shall be as follows:

Home inspector reinstatement	$120
Home inspector with NRS specialty reinstatement	$160

FORMS (18VAC15-40)

Home Inspector License Application, A506-3380LIC-v3 (eff. 9/2017)

Home Inspector NRS Specialty Designation Application, A506-3380NRS-v1 (eff. 7/2017)

Home Inspector Experience Verification Form, A506-3380EXP-v7 (eff. 9/2017)

Home Inspectors – Inspection Log, A506-3380ILOG-v1 (eff. 9/2017)

Home Inspector Reinstatement Application, A506-3380REI-v2 (eff. 2/2018)

Home Inspector Reinstatement Application, A506-3380REI-v3 (eff. 2/2020)

Home Inspector - Course Approval Application, Prelicense Education Course/NRS Training Module/NRS CPE, A506-3331HICRS-v1 (eff. 4/2017)

Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-260).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-260).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 10, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia enumerates board authority to promulgate regulations.

Purpose: The purpose of this fast-track rulemaking action is to align board regulations that rely on Department of Labor and Industry (DOLI) issuing apprenticeship cards with the new procedures being used by DOLI, which no longer include issuing apprenticeship cards. Without this change, apprentices will be unable to comply with the board's regulatory requirement.

In establishing the licensing system for barbers, cosmetologists, nail technicians, estheticians, and master estheticians, the General Assembly determined that occupational regulation of practitioners in these fields is necessary to ensure the safety of the public. However, that purpose is subverted if the public has no way to determine whether the practitioner providing services has demonstrated minimum competency and obtained the requisite license. The board has required the display of licenses or proof of apprenticeship in a public area of the salon or at the employee's work station so that the public can easily determine if a practitioner is minimally competent to perform those services. The amendment is necessary for the public to continue to have access to the license or trainee status of a practitioner. If the current regulation is not amended as proposed by this fast-track rulemaking action, apprentices will not be able to document their legitimate status in a legally compliant manner.

The board also proposes to eliminate the requirement for apprentices to wear a badge identifying themselves as apprentices. The current requirement to wear an apprenticeship badge is duplicative of the requirement of posting proof of apprenticeship. Removing the requirement aligns with the legislative directive for the boards under the Department of Professional and Occupational Regulation to eliminate unnecessary regulatory requirements.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial because it is reducing a regulatory burden on licensees and streamlining intra-agency coordination while maintaining protection of the health, safety, and welfare of the public.

Substance: In 18VAC41-20-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," and the requirement for apprentices to wear badges is eliminated.

In 18VAC41-70-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," the requirement for apprentices to wear badges is eliminated, and a reference to "shops and salons" is corrected to be "spa."

Issues: The primary advantage to the public is that customers will continue to have a way to verify the credential status and minimum competency of a practitioner providing services. There are no disadvantages for the public.

The primary advantage to the agency and Commonwealth is that the board will continue to protect the health, safety, and welfare of the public using the least restrictive means. There are no disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) proposes to: 1) require that proof of apprenticeship registration, rather than apprenticeship cards, be displayed, and 2) no longer require that each apprentice wear a badge clearly indicating his status.

Background. The current Barbering and Cosmetology Regulations and Esthetics Regulations both specify, "All apprenticeship cards issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon." DOLI Division of Registered Apprenticeship has notified the Board that it will no longer utilize apprenticeship cards for its registered apprenticeships and will instead send letters as proof of apprenticeship.

The two regulations also both currently specify, "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice."

Estimated Benefits and Costs. The Board proposes to replace the words "All apprenticeship cards" with "Proof of apprenticeship registration;" so that the sentence in the two regulations would read "Proof of apprenticeship registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon."² The Department of Professional and Occupational Regulation has indicated that the letters sent by DOLI would serve as proof of apprenticeship registration. Since apprenticeship cards will no longer be issued, amending the requirement to something that can actually be displayed in practice is beneficial.

For both regulations, the Board proposes to eliminate the sentence "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice." This would moderately reduce compliance costs for the barbershops, nail salons, cosmetology salons, and esthetics spas that employ apprentices in the Commonwealth.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth.³ The proposed amendments would particularly affect those that employ apprentices. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs.

Localities⁴ Affected.⁵ The proposed amendments apply throughout the Commonwealth and do not disproportionately affect particular localities. The proposed amendments do not introduce costs for local governments. Accordingly, no additional funds would be required.

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

Effects on the Use and Value of Private Property. The proposed amendments do not substantially affect the use and value of the barbershops, nail salons, cosmetology salons, and esthetics spas subject to the regulations. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses:⁶ The proposed amendments do not adversely affect small businesses.

Types and Estimated Number of Small Businesses Affected. All 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth are likely small businesses.

Costs and Other Effects. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs for these firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

__________________________

²For the Esthetics Regulations, the Board also proposes to replace "shop or salon" with "spa." This is a clarifying change.

³Data source: Department of Professional and Occupational Regulation

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."

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis.

Summary:

The amendments update the requirement to display proof of apprenticeship registration and eliminate the requirement for apprentices to wear a badge identifying them as apprentices.

18VAC41-20-260. Display of license.

A. Each shop, salon, or school shall ensure that all current licenses, certificates, or permits issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop, salon, or school. Duplicate licenses, certificates, or permits shall be posted in a like manner in every shop, salon, or school location where the regulant provides services.

B. Each shop, salon, or school shall ensure that no employee, licensee, student, or apprentice performs any service beyond the scope of practice for the applicable license.

C. All licensees, certificate holders, and permit holders shall operate under the name in which the license, certificate, or permit is issued.

D. Unless also licensed as a cosmetologist, a barber or master barber is required to hold a separate nail technician or wax technician license if performing nail care or waxing.

E. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

18VAC41-70-260. Display of license.

A. Each licensed spa or school shall ensure that all current licenses and temporary licenses issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the spa or school. Duplicate licenses or temporary licenses shall be posted in a like manner in every spa or school location where the licensee or temporary license holder provides services.

B. All licensees and temporary license holders shall operate under the name in which the license or temporary license is issued.

C. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon spa. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-270).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-270).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 10, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia enumerates board authority to promulgate regulations.

Purpose: Currently, board regulations require the use of a "hospital grade and tuberculocidal disinfectant solution registered with the [EPA]." However, manufacturers of disinfectant solutions marketed toward barbers and cosmetologists are moving away from including "tuberculocidal" in the description and function of their solutions. The primary rationale for dropping the term "tuberculocidal" within the industry is that tuberculosis is an airborne disease, making it somewhat misleading to suggest that the use of the product prevents the transmission of tuberculosis. Additionally, the National Interstate Council of State Boards of Cosmetology (NIC) Infection Control Best Practices intentionally avoids the use of this term. NIC's Best Practices recommend the use of "bactericidal, virucidal, and fungicidal." As manufacturers move away from commonly using this term, the supply of "tuberculocidal" products will decrease as their expense increases, creating an unnecessary burden on licensees.

The proposed regulatory amendments update the disinfectant standards to require the use of "an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal," which still protects the health, safety, and welfare of the public. Thirty-two other states currently use the "bactericidal, virucidal, and fungicidal" requirement in lieu of "tuberculocidal," and five more states use some combination of those three terms. Additionally, several more states are in the process of updating their requirements to EPA-registered bactericidal, virucidal, and fungicidal disinfectants. This change will align Virginia with national best practices for the professions.

The goal of the fast-track rulemaking action is to ensure board regulations accurately reflect industry practices and the changes in the market of disinfectant solutions. It will also allow Virginia to implement a more accurate description of the disinfection requirement and align with national standards without imposing additional regulatory burdens.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because without taking action through the fast-track rulemaking process, licensees will soon find it more difficult and expensive to remain in compliance with the regulations.

Substance: In 18VAC41-20-270, the amendment replaces the regulatory requirement for a tuberulocidal disinfectant with the requirement of an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal. In 18VAC41-70-270, the amendment replaces the regulatory requirement for a tuberulocidal disinfectant with the requirement of an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal.

Issues: The primary advantage to the public is that this regulatory change will allow barber, cosmetology, nail technician, wax technician, and esthetics professionals to avoid an unintended increase in the cost of doing business. There are no disadvantages to the public.

The primary advantage to the agency and Commonwealth is that the board will continue to protect the health, safety, and welfare of the public using the least restrictive means. This change will also allow the agency to adopt best practices for sanitation in these professions. There are no disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) proposes to update disinfectant terminology.

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

Estimated Economic Impact. The current regulation requires licensees to use disinfectants identified as tuberculocidal. According to the Department of Professional and Occupational Regulation (DPOR), however, disinfectant manufacturers are moving away from labeling products as "tuberculocidal," in large part because tuberculosis is an airborne disease not transmitted through surface contact. The Board proposes to replace the requirement for a tuberulocidal and hospital grade disinfectant with the requirement for an "EPA registered disinfectant that is bactericidal, virucidal and fungicidal." The proposed terminology is consistent with the National Interstate Council of State Boards of Cosmetology Infection Control Best Practices, which recommends the use of the terms bactericidal, virucidal, and fungicidal. DPOR indicates that as manufacturers move away from commonly using this term, the supply of "tuberculocidal" products would decrease causing an increase in their prices, creating an unnecessary burden on licensees. Thus, to the extent a potential future cost on licensees is eliminated, the proposed amendments produce a net benefit.

Businesses and Entities Affected. According to DPOR, as of April 1, 2019, the Board licensed 2,905 barbers, 893 barber shops, 60 barber schools, 8,491 nail technicians, 78 nail salons, 35 nails schools, 42,090 cosmetologists, 5,142 cosmetology salons, 167 cosmetology schools, 3,415 estheticians, 651 esthetics spas, 43 esthetics schools, 1,598 wax technicians, 124 waxing salons, and 14 waxing schools.

Localities Particularly Affected. No locality is expected to be particularly affected.

Projected Impact on Employment. The proposed amendments should not have a significant impact on employment.

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

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

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. All of the regulated barber shops, salons, spas, and schools are considered small businesses. The proposed changes should benefit them as discussed.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

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

Agency's Response to Economic Impact Analysis: The Board for Barbers and Cosmetology concurs with the approval.

Summary:

The amendments replace the regulatory requirement for a tuberculocidal and hospital grade disinfectant with an "EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal."

18VAC41-20-270. Sanitation and safety standards for shops, salons, and schools.

A. Sanitation and safety standards. Any shop, salon, school, or facility where barber, master barber, cosmetology, or nail or waxing services are delivered to the public must be clean and sanitary at all times. Compliance with these rules does not confer compliance with other requirements set forth by federal, state, and local laws, codes, ordinances, and regulations as they apply to business operation, physical construction and maintenance, safety, and public health. Licensees shall take sufficient measures to prevent the transmission of communicable and infectious diseases and comply with the sanitation standards identified in this section and shall ensure that all employees likewise comply.

B. Disinfection and storage of implements.

1. A wet disinfection unit is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet disinfection unit must have a cover to prevent contamination of the solution. The solution must be a hospital grade and tuberculocidal disinfectant solution registered with the an Environmental Protection Agency (EPA) registered disinfectant that is bactericidal, virucidal, and fungicidal. Disinfectant solutions shall be used according to manufacturer's directions.

2. Disinfection of multiuse items constructed of hard, nonporous materials such as metal, glass, or plastic that the manufacturer designed for use on more than one client, including clippers, scissors, combs, and nippers is to be carried out in the following manner prior to servicing a client:

a. Remove all foreign matter from the object, utilizing a brush if needed. Drill bits are to be soaked in acetone and scrubbed with a wire brush to remove all foreign matter;

b. Wash thoroughly with hot water and soap;

c. Rinse thoroughly with clean water and dry thoroughly with a clean paper towel;

d. Fully immerse implements into solution for a minimum of 10 minutes; and

e. After immersion, rinse articles, thoroughly dry thoroughly with a clean paper towel, and store in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container, or leave instruments in an EPA-registered disinfection/storage disinfection storage solution used according to manufacturer's directions.

3. Single-use items designed by the manufacturer for use on no more than one client should be discarded immediately after use on each individual client, including powder puffs, lip color, cheek color, sponges, styptic pencils, or nail care implements. The disinfection and reuse of these items is not permitted and the use of single-use items on more than one client is prohibited.

4. For the purpose of recharging, rechargeable clippers may be stored in an area other than in a closed cabinet or container. This area shall be clean and the cutting edges of any clippers are to be disinfected.

5. Electrical clipper blades shall be disinfected before and after each use. If the clipper blade cannot be removed, the use of a spray or foam used according to the manufacturer's instructions will be acceptable, provided that the disinfectant is an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal, and that the entire handle is also disinfected by wiping with the disinfectant solution.

6. All wax pots shall be cleaned and disinfected with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal and with no sticks left standing in the wax at any time. The area immediately surrounding the wax pot shall be clean and free of clutter, waste materials, spills, and any other items which that may pose a hazard.

7. Each barber, master barber, cosmetologist, nail technician, and wax technician must have a wet disinfection unit at his station.

8. Sinks, bowls, tubs, whirlpool units, air-jetted basins, pipe-less units, and non-whirlpool basins used in the performance of nail care shall be maintained in accordance with manufacturer's recommendations. They shall be cleaned and disinfected immediately after each client in the following manner:

a. Drain all water and remove all debris;

b. Clean the surfaces and walls with soap or detergent to remove all visible debris, oils, and product residue and then rinse with water;

c. Disinfect by spraying or wiping the surface with an EPA-registered hospital grade and tuberculocidal disinfectant disinfectant that is bactericidal, virucidal, and fungicidal; and

d. Wipe dry with a clean towel.

C. General sanitation and safety requirements.

1. Service chairs, wash basins, shampoo sinks, workstations and workstands, and back bars shall be clean;

2. The floor surface in all work areas must be of a washable surface other than carpet. The floor must be kept clean and free of hair, nail clippings, dropped articles, spills, clutter, trash, electrical cords, other waste materials, and any other items which that may pose a hazard;

3. All furniture, fixtures, walls, floors, windows, and ceilings shall be clean and in good repair and free of water seepage and dirt. Any mats shall be secured or shall lie flat;

4. A fully functional bathroom in the same building with a working toilet and sink must be available for clients. There must be hot and cold running water. Fixtures must be in good condition. The bathroom must be lighted and sufficiently ventilated. If there is a window, it must have a screen. There must be antibacterial soap and clean single-use towels or hand air-drying device for the client's use. Laundering of towels is allowed, space permitting. The bathroom must not be used as a work area or for the open storage of chemicals. For facilities newly occupied after January 1, 2017, the bathroom shall be maintained exclusively for client use;

5. General areas for client use must be neat and clean with a waste receptacle for common trash;

6. Electrical cords shall be placed to prevent entanglement by the client or licensee;, and electrical outlets shall be covered by plates;

7. All sharp tools, implements, and heat-producing appliances shall be in safe working order at all times, safely stored, and placed so as to prevent any accidental injury to the client or licensee;

8. The salon area shall be sufficiently ventilated to exhaust hazardous or objectionable airborne chemicals, and to allow the free flow of air; and

9. Adequate lighting shall be provided.

D. Articles, tools, and products.

1. Clean towels, robes, or other linens shall be used for each patron. Clean towels, robes, or other linens shall be stored in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container. Soiled towels, robes, or other linens shall be stored in a container enclosed on all sides including the top, except if stored in a separate laundry room;

2. Whenever a haircloth is used, a clean towel or neck strip shall be placed around the neck of the patron to prevent the haircloth from touching the skin;

3. Soiled implements must be removed from the tops of work stations immediately after use;

4. Lotions, ointments, creams, and powders shall be labeled and kept in closed containers. A clean spatula, other clean tools, or clean disposable gloves shall be used to remove bulk substances such as creams or ointments from jars. Sterile cotton or sponges shall be used to apply creams, lotions, and powders. Cosmetic containers shall be covered after each use;

5. For nail care, if a sanitary container is provided for a client, the sanitary container shall be labeled and implements shall be used solely for that specific client. Disinfection shall be carried out in accordance with subdivisions B 1 and B 2 of this section;

6. No substance other than a sterile styptic powder or sterile liquid astringent approved for homeostasis and applied with a sterile single-use applicator shall be used to check bleeding; and

7. Any disposable material making contact with blood or other body fluid shall be disposed of in a sealed plastic bag and removed from the shop, salon, school, or facility in accordance with the guidelines of the Virginia Department of Health.

E. Chemical storage and emergency information.

1. Shops, salons, schools, and facilities shall have in the immediate working area a binder with all Safety Data Sheets (SDS) provided by manufacturers for any chemical products used;

2. Shop, salons, schools, and facilities shall have a blood spill clean-up kit in the work area that contains at minimum latex gloves, two 12-inch by 12-inch towels, one disposable trash bag, bleach, one empty spray bottle, and one mask with face shield or any Occupational Safety and Health Administration (OSHA) approved blood spill clean-up kit;

3. Flammable chemicals shall be labeled and stored in a nonflammable storage cabinet or a properly ventilated room; and

4. Chemicals that could interact in a hazardous manner (oxidizers, (e.g., oxidizers, catalysts, and solvents) shall be labeled and separated in storage.

F. Client health guidelines.

1. All employees providing client services shall cleanse their hands with an antibacterial product prior to providing services to each client. Licensees shall require that clients for nail care services shall cleanse their hands immediately prior to the requested nail care service;

2. An artificial nail shall only be applied to a healthy natural nail;

3. A nail drill or motorized instrument shall be used only on the free edge of the nail;

4. No shop, salon, school, or facility providing cosmetology or nail care services shall have on the premises cosmetic products containing hazardous substances that have been banned by the U.S. Food and Drug Administration (FDA) for use in cosmetic products;

5. No product shall be used in a manner that is disapproved by the FDA; and

6. All regulated services must be performed in a facility that is in compliance with current local building and zoning codes.

G. In addition to any requirements set forth in this section, all licensees and temporary permit holders shall adhere to regulations and guidelines established by the Virginia Department of Health and the Occupational Safety and Health Compliance Division of the Virginia Department of Labor and Industry.

H. All shops, salons, schools, and facilities shall immediately report the results of any inspection of the shop, salon, or school by the Virginia Department of Health as required by § 54.1-705 of the Code of Virginia.

I. All shops, salons, schools, and facilities shall maintain a self-inspection form on file to be updated on an annual basis, and kept for five years, so that it may be requested and reviewed by the board at its discretion.

18VAC41-70-270. Sanitation and safety standards for spas and schools.

A. Sanitation and safety standards.

1. Any spa or school where esthetics services are delivered to the public must be clean and sanitary at all times.

2. Compliance with these rules does not confer compliance with other requirements set forth by federal, state, and local laws, codes, ordinances, and regulations as they apply to business operation, physical construction and maintenance, safety, and public health.

3. Licensees shall take sufficient measures to prevent the transmission of communicable and infectious diseases and comply with the sanitation standards identified in this section and shall ensure that all employees likewise comply.

B. Disinfection and storage of implements.

1. A wet disinfection unit is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet disinfection unit must have a cover to prevent contamination of the solution. The solution must be a hospital grade and tuberculocidal disinfectant solution registered with the U.S. Environmental Protection Agency (EPA) registered disinfectant that is bactericidal, virucidal, and fungicidal. Disinfectant solutions shall be used according to manufacturer's directions.

2. Disinfection of multiuse items constructed of hard, nonporous materials such as metal, glass, or plastic, which the manufacturer designed for use on more than one client, is to be carried out in the following manner prior to servicing a client:

a. Remove all foreign matter from the object, utilizing a brush if needed. Drill bits are to be soaked in acetone and scrubbed with a wire brush to remove all foreign matter;

b. Wash thoroughly with hot water and soap;

c. Rinse thoroughly with clean water and dry thoroughly with a clean paper towel;

d. Fully immerse implements into solution for a minimum of 10 minutes; and

e. After immersion, rinse articles, thoroughly dry thoroughly with a clean paper towel, and store in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container, or leave instruments in an EPA-registered disinfection storage solution used according to manufacturer's directions.

3. Single-use items designed by the manufacturer for use on no more than one client should be discarded immediately after use on each individual client, including powder puffs, lip color, cheek color, sponges, styptic pencils, or nail care implements. The disinfection and reuse of these items is not permitted and the use of single-use items on more than one client is prohibited.

4. For the purpose of recharging, rechargeable tools or implements may be stored in an area other than in a closed cabinet or container. This area shall be clean.

5. All materials including cosmetic and nail brushes, sponges, chamois, spatulas, and galvanic electrodes must be cleaned with warm water and soap or detergent to remove all foreign matter. Implements should then be rinsed, thoroughly dried with a clean paper towel, and completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal. Such implements shall be soaked for 10 minutes or more, removed, rinsed, dried thoroughly, and stored in a predisinfected and dry drawer, cabinet, or nonairtight covered container, or left in an EPA-registered disinfection storage solution used according to manufacturer's directions.

6. All wax pots shall be cleaned and disinfected with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal with no sticks left standing in the wax at any time. The area immediately surrounding the wax pot shall be clean and free of clutter, waste materials, spills, and any other items that may pose a hazard.

7. Each esthetician must have a wet disinfection unit at his station.

8. Nail brushes; nippers; finger bowls; disinfectable or washable buffers; disinfectable or washable files, which must also be scrubbed with a brush to remove all foreign matter; and other instruments must be washed in soap and water, rinsed, thoroughly dried thoroughly with a clean paper towel, and then completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal for 10 minutes after each use. After disinfection they must be rinsed, dried thoroughly with a clean paper towel, and placed in a dry, predisinfected, nonairtight covered receptacle, cabinet, or drawer, or left in an EPA-registered disinfectant storage system used according to manufacturer's directions.

9. Sinks, bowls, tubs, whirlpool units, air-jetted basins, pipe-less units, and non-whirlpool basins used in the performance of nail care shall be maintained in accordance with manufacturer's recommendations. They shall be cleaned and disinfected immediately after each client in the following manner:

a. Drain all water and remove all debris;

b. Clean the surfaces and walls with soap or detergent to remove all visible debris, oils, and product residues and then rinse with water;

c. Disinfect by spraying or wiping the surface with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal; and

d. Wipe dry with a clean towel.

C. General sanitation and safety requirements.

1. Service chairs, workstations and workstands, and back bars shall be clean;

2. The floor surface in all work areas must be of a washable surface other than carpet. The floor must be kept clean and free of debris, nail clippings, dropped articles, spills, clutter, trash, electrical cords, other waste materials, and other items that may pose a hazard;

3. All furniture, fixtures, walls, floors, windows, and ceilings shall be in good repair and free of water seepage and dirt. All mats shall be secured or shall lie flat;

4. A fully functional bathroom with a working toilet and sink must be available for clients. There must be hot and cold running water. Fixtures must be in good condition. The bathroom must be lighted and sufficiently ventilated. There must be antibacterial soap and clean single-use towels or hand air-drying device for the client's use. For facilities newly occupied after January 1, 2017, the bathroom shall be maintained exclusively for client use;

5. General areas for client use must be neat and clean with a waste receptacle for common trash;

6. Electrical cords shall be placed to prevent entanglement by the client or licensee and electrical outlets shall be covered by plates;

7. All sharp tools, implements, and heat-producing appliances shall be in safe working order at all times, safely stored, and placed so as to prevent any accidental injury to the client or licensee;

8. The spa area shall be sufficiently ventilated to exhaust hazardous or objectionable airborne chemicals and to allow the free flow of air; and

9. Adequate lighting shall be provided.

D. Articles, tools, and products.

1. Any multiuse article, tool, or product that cannot be cleansed or disinfected is prohibited from use;

2. Soiled implements must be removed from the tops of work stations immediately after use;

3. Clean spatulas, other clean tools, or clean disposable gloves shall be used to remove bulk substances from containers;

4. Lotions, ointments, creams, and powders shall be labeled and kept in closed containers. A clean spatula shall be used to remove creams or other products from jars. Sterile cotton or sponges shall be used to apply creams, lotions, and powders. Cosmetic containers shall be covered after each use;

5. All appliances shall be safely stored;

6. Presanitized tools and implements, linens, and equipment shall be stored for use in a sanitary enclosed cabinet or covered receptacle;

7. Clean towels, robes, or other linens shall be used for each patron. Clean towels, robes, or other linens shall be stored in a clean predisinfected and dry cabinet, drawer, or nonairtight covered container. Soiled towels, robes, or other linens shall be stored in a container enclosed on all sides including the top, except if stored in a separate laundry room;

8. No substance other than a sterile styptic powder or sterile liquid astringent approved for homeostasis and applied with a sterile single-use applicator shall be used to check bleeding; and

9. Any disposable material making contact with blood or other body fluid shall be disposed of in a sealed plastic bag and removed from the spa or school in accordance with the guidelines of the Virginia Department of Health and OSHA (Occupational Safety and Health Administration).

E. Chemical storage and emergency information.

1. Spas and schools shall have in the immediate working area a binder with all Safety Data Sheets (SDS) provided by manufacturers for any chemical products used;

2. Spas and schools shall have a blood spill clean-up kit in the work area that contains at a minimum latex gloves, two 12-inch by 12-inch towels, one disposable trash bag, bleach, one empty spray bottle, and one mask with face shield or any OSHA-approved blood spill clean-up kit;

3. Flammable chemicals shall be labeled and stored in a nonflammable storage cabinet or a properly ventilated room; and

4. Chemicals that could interact in a hazardous manner (e.g., oxidizers, catalysts, and solvents) shall be labeled and separated in storage.

F. Client health guidelines.

1. All employees providing client services shall cleanse their hands with an antibacterial product prior to providing services to each client;

2. All employees providing client services shall wear gloves while providing services when exposure to bloodborne pathogens is possible;

3. No spa or school providing esthetics services shall have on the premises esthetics products containing hazardous substances that have been banned by the U.S. Food and Drug Administration (FDA) for use in esthetics products;

4. No product shall be used in a manner that is disapproved by the FDA; and

5. Esthetics spas must be in compliance with current building and zoning codes.

G. In addition to the requirements set forth in this section, all licensees and temporary license holders shall adhere to regulations and guidelines established by the Virginia Department of Health and the Occupational and Safety Division of the Virginia Department of Labor and Industry.

H. All spas and schools shall immediately report the results of any inspection of the spa or school by the Virginia Department of Health as required by § 54.1-705 of the Code of Virginia.

I. All spas and schools shall conduct a self-inspection on an annual basis and maintain a self-inspection form on file for five years so that it may be requested and reviewed by the board at its discretion.

Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-270).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-270).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 10, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia enumerates board authority to promulgate regulations.

Purpose: Currently, board regulations require the use of a "hospital grade and tuberculocidal disinfectant solution registered with the [EPA]." However, manufacturers of disinfectant solutions marketed toward barbers and cosmetologists are moving away from including "tuberculocidal" in the description and function of their solutions. The primary rationale for dropping the term "tuberculocidal" within the industry is that tuberculosis is an airborne disease, making it somewhat misleading to suggest that the use of the product prevents the transmission of tuberculosis. Additionally, the National Interstate Council of State Boards of Cosmetology (NIC) Infection Control Best Practices intentionally avoids the use of this term. NIC's Best Practices recommend the use of "bactericidal, virucidal, and fungicidal." As manufacturers move away from commonly using this term, the supply of "tuberculocidal" products will decrease as their expense increases, creating an unnecessary burden on licensees.

The proposed regulatory amendments update the disinfectant standards to require the use of "an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal," which still protects the health, safety, and welfare of the public. Thirty-two other states currently use the "bactericidal, virucidal, and fungicidal" requirement in lieu of "tuberculocidal," and five more states use some combination of those three terms. Additionally, several more states are in the process of updating their requirements to EPA-registered bactericidal, virucidal, and fungicidal disinfectants. This change will align Virginia with national best practices for the professions.

The goal of the fast-track rulemaking action is to ensure board regulations accurately reflect industry practices and the changes in the market of disinfectant solutions. It will also allow Virginia to implement a more accurate description of the disinfection requirement and align with national standards without imposing additional regulatory burdens.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because without taking action through the fast-track rulemaking process, licensees will soon find it more difficult and expensive to remain in compliance with the regulations.

Substance: In 18VAC41-20-270, the amendment replaces the regulatory requirement for a tuberulocidal disinfectant with the requirement of an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal. In 18VAC41-70-270, the amendment replaces the regulatory requirement for a tuberulocidal disinfectant with the requirement of an EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal.

Issues: The primary advantage to the public is that this regulatory change will allow barber, cosmetology, nail technician, wax technician, and esthetics professionals to avoid an unintended increase in the cost of doing business. There are no disadvantages to the public.

The primary advantage to the agency and Commonwealth is that the board will continue to protect the health, safety, and welfare of the public using the least restrictive means. This change will also allow the agency to adopt best practices for sanitation in these professions. There are no disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) proposes to update disinfectant terminology.

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

Estimated Economic Impact. The current regulation requires licensees to use disinfectants identified as tuberculocidal. According to the Department of Professional and Occupational Regulation (DPOR), however, disinfectant manufacturers are moving away from labeling products as "tuberculocidal," in large part because tuberculosis is an airborne disease not transmitted through surface contact. The Board proposes to replace the requirement for a tuberulocidal and hospital grade disinfectant with the requirement for an "EPA registered disinfectant that is bactericidal, virucidal and fungicidal." The proposed terminology is consistent with the National Interstate Council of State Boards of Cosmetology Infection Control Best Practices, which recommends the use of the terms bactericidal, virucidal, and fungicidal. DPOR indicates that as manufacturers move away from commonly using this term, the supply of "tuberculocidal" products would decrease causing an increase in their prices, creating an unnecessary burden on licensees. Thus, to the extent a potential future cost on licensees is eliminated, the proposed amendments produce a net benefit.

Businesses and Entities Affected. According to DPOR, as of April 1, 2019, the Board licensed 2,905 barbers, 893 barber shops, 60 barber schools, 8,491 nail technicians, 78 nail salons, 35 nails schools, 42,090 cosmetologists, 5,142 cosmetology salons, 167 cosmetology schools, 3,415 estheticians, 651 esthetics spas, 43 esthetics schools, 1,598 wax technicians, 124 waxing salons, and 14 waxing schools.

Localities Particularly Affected. No locality is expected to be particularly affected.

Projected Impact on Employment. The proposed amendments should not have a significant impact on employment.

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

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

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. All of the regulated barber shops, salons, spas, and schools are considered small businesses. The proposed changes should benefit them as discussed.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

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

Agency's Response to Economic Impact Analysis: The Board for Barbers and Cosmetology concurs with the approval.

Summary:

The amendments replace the regulatory requirement for a tuberculocidal and hospital grade disinfectant with an "EPA-registered disinfectant that is bactericidal, virucidal, and fungicidal."

18VAC41-20-270. Sanitation and safety standards for shops, salons, and schools.

A. Sanitation and safety standards. Any shop, salon, school, or facility where barber, master barber, cosmetology, or nail or waxing services are delivered to the public must be clean and sanitary at all times. Compliance with these rules does not confer compliance with other requirements set forth by federal, state, and local laws, codes, ordinances, and regulations as they apply to business operation, physical construction and maintenance, safety, and public health. Licensees shall take sufficient measures to prevent the transmission of communicable and infectious diseases and comply with the sanitation standards identified in this section and shall ensure that all employees likewise comply.

B. Disinfection and storage of implements.

1. A wet disinfection unit is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet disinfection unit must have a cover to prevent contamination of the solution. The solution must be a hospital grade and tuberculocidal disinfectant solution registered with the an Environmental Protection Agency (EPA) registered disinfectant that is bactericidal, virucidal, and fungicidal. Disinfectant solutions shall be used according to manufacturer's directions.

2. Disinfection of multiuse items constructed of hard, nonporous materials such as metal, glass, or plastic that the manufacturer designed for use on more than one client, including clippers, scissors, combs, and nippers is to be carried out in the following manner prior to servicing a client:

a. Remove all foreign matter from the object, utilizing a brush if needed. Drill bits are to be soaked in acetone and scrubbed with a wire brush to remove all foreign matter;

b. Wash thoroughly with hot water and soap;

c. Rinse thoroughly with clean water and dry thoroughly with a clean paper towel;

d. Fully immerse implements into solution for a minimum of 10 minutes; and

e. After immersion, rinse articles, thoroughly dry thoroughly with a clean paper towel, and store in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container, or leave instruments in an EPA-registered disinfection/storage disinfection storage solution used according to manufacturer's directions.

3. Single-use items designed by the manufacturer for use on no more than one client should be discarded immediately after use on each individual client, including powder puffs, lip color, cheek color, sponges, styptic pencils, or nail care implements. The disinfection and reuse of these items is not permitted and the use of single-use items on more than one client is prohibited.

4. For the purpose of recharging, rechargeable clippers may be stored in an area other than in a closed cabinet or container. This area shall be clean and the cutting edges of any clippers are to be disinfected.

5. Electrical clipper blades shall be disinfected before and after each use. If the clipper blade cannot be removed, the use of a spray or foam used according to the manufacturer's instructions will be acceptable, provided that the disinfectant is an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal, and that the entire handle is also disinfected by wiping with the disinfectant solution.

6. All wax pots shall be cleaned and disinfected with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal and with no sticks left standing in the wax at any time. The area immediately surrounding the wax pot shall be clean and free of clutter, waste materials, spills, and any other items which that may pose a hazard.

7. Each barber, master barber, cosmetologist, nail technician, and wax technician must have a wet disinfection unit at his station.

8. Sinks, bowls, tubs, whirlpool units, air-jetted basins, pipe-less units, and non-whirlpool basins used in the performance of nail care shall be maintained in accordance with manufacturer's recommendations. They shall be cleaned and disinfected immediately after each client in the following manner:

a. Drain all water and remove all debris;

b. Clean the surfaces and walls with soap or detergent to remove all visible debris, oils, and product residue and then rinse with water;

c. Disinfect by spraying or wiping the surface with an EPA-registered hospital grade and tuberculocidal disinfectant disinfectant that is bactericidal, virucidal, and fungicidal; and

d. Wipe dry with a clean towel.

C. General sanitation and safety requirements.

1. Service chairs, wash basins, shampoo sinks, workstations and workstands, and back bars shall be clean;

2. The floor surface in all work areas must be of a washable surface other than carpet. The floor must be kept clean and free of hair, nail clippings, dropped articles, spills, clutter, trash, electrical cords, other waste materials, and any other items which that may pose a hazard;

3. All furniture, fixtures, walls, floors, windows, and ceilings shall be clean and in good repair and free of water seepage and dirt. Any mats shall be secured or shall lie flat;

4. A fully functional bathroom in the same building with a working toilet and sink must be available for clients. There must be hot and cold running water. Fixtures must be in good condition. The bathroom must be lighted and sufficiently ventilated. If there is a window, it must have a screen. There must be antibacterial soap and clean single-use towels or hand air-drying device for the client's use. Laundering of towels is allowed, space permitting. The bathroom must not be used as a work area or for the open storage of chemicals. For facilities newly occupied after January 1, 2017, the bathroom shall be maintained exclusively for client use;

5. General areas for client use must be neat and clean with a waste receptacle for common trash;

6. Electrical cords shall be placed to prevent entanglement by the client or licensee;, and electrical outlets shall be covered by plates;

7. All sharp tools, implements, and heat-producing appliances shall be in safe working order at all times, safely stored, and placed so as to prevent any accidental injury to the client or licensee;

8. The salon area shall be sufficiently ventilated to exhaust hazardous or objectionable airborne chemicals, and to allow the free flow of air; and

9. Adequate lighting shall be provided.

D. Articles, tools, and products.

1. Clean towels, robes, or other linens shall be used for each patron. Clean towels, robes, or other linens shall be stored in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container. Soiled towels, robes, or other linens shall be stored in a container enclosed on all sides including the top, except if stored in a separate laundry room;

2. Whenever a haircloth is used, a clean towel or neck strip shall be placed around the neck of the patron to prevent the haircloth from touching the skin;

3. Soiled implements must be removed from the tops of work stations immediately after use;

4. Lotions, ointments, creams, and powders shall be labeled and kept in closed containers. A clean spatula, other clean tools, or clean disposable gloves shall be used to remove bulk substances such as creams or ointments from jars. Sterile cotton or sponges shall be used to apply creams, lotions, and powders. Cosmetic containers shall be covered after each use;

5. For nail care, if a sanitary container is provided for a client, the sanitary container shall be labeled and implements shall be used solely for that specific client. Disinfection shall be carried out in accordance with subdivisions B 1 and B 2 of this section;

6. No substance other than a sterile styptic powder or sterile liquid astringent approved for homeostasis and applied with a sterile single-use applicator shall be used to check bleeding; and

7. Any disposable material making contact with blood or other body fluid shall be disposed of in a sealed plastic bag and removed from the shop, salon, school, or facility in accordance with the guidelines of the Virginia Department of Health.

E. Chemical storage and emergency information.

1. Shops, salons, schools, and facilities shall have in the immediate working area a binder with all Safety Data Sheets (SDS) provided by manufacturers for any chemical products used;

2. Shop, salons, schools, and facilities shall have a blood spill clean-up kit in the work area that contains at minimum latex gloves, two 12-inch by 12-inch towels, one disposable trash bag, bleach, one empty spray bottle, and one mask with face shield or any Occupational Safety and Health Administration (OSHA) approved blood spill clean-up kit;

3. Flammable chemicals shall be labeled and stored in a nonflammable storage cabinet or a properly ventilated room; and

4. Chemicals that could interact in a hazardous manner (oxidizers, (e.g., oxidizers, catalysts, and solvents) shall be labeled and separated in storage.

F. Client health guidelines.

1. All employees providing client services shall cleanse their hands with an antibacterial product prior to providing services to each client. Licensees shall require that clients for nail care services shall cleanse their hands immediately prior to the requested nail care service;

2. An artificial nail shall only be applied to a healthy natural nail;

3. A nail drill or motorized instrument shall be used only on the free edge of the nail;

4. No shop, salon, school, or facility providing cosmetology or nail care services shall have on the premises cosmetic products containing hazardous substances that have been banned by the U.S. Food and Drug Administration (FDA) for use in cosmetic products;

5. No product shall be used in a manner that is disapproved by the FDA; and

6. All regulated services must be performed in a facility that is in compliance with current local building and zoning codes.

G. In addition to any requirements set forth in this section, all licensees and temporary permit holders shall adhere to regulations and guidelines established by the Virginia Department of Health and the Occupational Safety and Health Compliance Division of the Virginia Department of Labor and Industry.

H. All shops, salons, schools, and facilities shall immediately report the results of any inspection of the shop, salon, or school by the Virginia Department of Health as required by § 54.1-705 of the Code of Virginia.

I. All shops, salons, schools, and facilities shall maintain a self-inspection form on file to be updated on an annual basis, and kept for five years, so that it may be requested and reviewed by the board at its discretion.

18VAC41-70-270. Sanitation and safety standards for spas and schools.

A. Sanitation and safety standards.

1. Any spa or school where esthetics services are delivered to the public must be clean and sanitary at all times.

2. Compliance with these rules does not confer compliance with other requirements set forth by federal, state, and local laws, codes, ordinances, and regulations as they apply to business operation, physical construction and maintenance, safety, and public health.

3. Licensees shall take sufficient measures to prevent the transmission of communicable and infectious diseases and comply with the sanitation standards identified in this section and shall ensure that all employees likewise comply.

B. Disinfection and storage of implements.

1. A wet disinfection unit is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet disinfection unit must have a cover to prevent contamination of the solution. The solution must be a hospital grade and tuberculocidal disinfectant solution registered with the U.S. Environmental Protection Agency (EPA) registered disinfectant that is bactericidal, virucidal, and fungicidal. Disinfectant solutions shall be used according to manufacturer's directions.

2. Disinfection of multiuse items constructed of hard, nonporous materials such as metal, glass, or plastic, which the manufacturer designed for use on more than one client, is to be carried out in the following manner prior to servicing a client:

a. Remove all foreign matter from the object, utilizing a brush if needed. Drill bits are to be soaked in acetone and scrubbed with a wire brush to remove all foreign matter;

b. Wash thoroughly with hot water and soap;

c. Rinse thoroughly with clean water and dry thoroughly with a clean paper towel;

d. Fully immerse implements into solution for a minimum of 10 minutes; and

e. After immersion, rinse articles, thoroughly dry thoroughly with a clean paper towel, and store in a clean, predisinfected, and dry cabinet, drawer, or nonairtight covered container, or leave instruments in an EPA-registered disinfection storage solution used according to manufacturer's directions.

3. Single-use items designed by the manufacturer for use on no more than one client should be discarded immediately after use on each individual client, including powder puffs, lip color, cheek color, sponges, styptic pencils, or nail care implements. The disinfection and reuse of these items is not permitted and the use of single-use items on more than one client is prohibited.

4. For the purpose of recharging, rechargeable tools or implements may be stored in an area other than in a closed cabinet or container. This area shall be clean.

5. All materials including cosmetic and nail brushes, sponges, chamois, spatulas, and galvanic electrodes must be cleaned with warm water and soap or detergent to remove all foreign matter. Implements should then be rinsed, thoroughly dried with a clean paper towel, and completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal. Such implements shall be soaked for 10 minutes or more, removed, rinsed, dried thoroughly, and stored in a predisinfected and dry drawer, cabinet, or nonairtight covered container, or left in an EPA-registered disinfection storage solution used according to manufacturer's directions.

6. All wax pots shall be cleaned and disinfected with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal with no sticks left standing in the wax at any time. The area immediately surrounding the wax pot shall be clean and free of clutter, waste materials, spills, and any other items that may pose a hazard.

7. Each esthetician must have a wet disinfection unit at his station.

8. Nail brushes; nippers; finger bowls; disinfectable or washable buffers; disinfectable or washable files, which must also be scrubbed with a brush to remove all foreign matter; and other instruments must be washed in soap and water, rinsed, thoroughly dried thoroughly with a clean paper towel, and then completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal for 10 minutes after each use. After disinfection they must be rinsed, dried thoroughly with a clean paper towel, and placed in a dry, predisinfected, nonairtight covered receptacle, cabinet, or drawer, or left in an EPA-registered disinfectant storage system used according to manufacturer's directions.

9. Sinks, bowls, tubs, whirlpool units, air-jetted basins, pipe-less units, and non-whirlpool basins used in the performance of nail care shall be maintained in accordance with manufacturer's recommendations. They shall be cleaned and disinfected immediately after each client in the following manner:

a. Drain all water and remove all debris;

b. Clean the surfaces and walls with soap or detergent to remove all visible debris, oils, and product residues and then rinse with water;

c. Disinfect by spraying or wiping the surface with an EPA-registered hospital grade and tuberculocidal disinfectant solution disinfectant that is bactericidal, virucidal, and fungicidal; and

d. Wipe dry with a clean towel.

C. General sanitation and safety requirements.

1. Service chairs, workstations and workstands, and back bars shall be clean;

2. The floor surface in all work areas must be of a washable surface other than carpet. The floor must be kept clean and free of debris, nail clippings, dropped articles, spills, clutter, trash, electrical cords, other waste materials, and other items that may pose a hazard;

3. All furniture, fixtures, walls, floors, windows, and ceilings shall be in good repair and free of water seepage and dirt. All mats shall be secured or shall lie flat;

4. A fully functional bathroom with a working toilet and sink must be available for clients. There must be hot and cold running water. Fixtures must be in good condition. The bathroom must be lighted and sufficiently ventilated. There must be antibacterial soap and clean single-use towels or hand air-drying device for the client's use. For facilities newly occupied after January 1, 2017, the bathroom shall be maintained exclusively for client use;

5. General areas for client use must be neat and clean with a waste receptacle for common trash;

6. Electrical cords shall be placed to prevent entanglement by the client or licensee and electrical outlets shall be covered by plates;

7. All sharp tools, implements, and heat-producing appliances shall be in safe working order at all times, safely stored, and placed so as to prevent any accidental injury to the client or licensee;

8. The spa area shall be sufficiently ventilated to exhaust hazardous or objectionable airborne chemicals and to allow the free flow of air; and

9. Adequate lighting shall be provided.

D. Articles, tools, and products.

1. Any multiuse article, tool, or product that cannot be cleansed or disinfected is prohibited from use;

2. Soiled implements must be removed from the tops of work stations immediately after use;

3. Clean spatulas, other clean tools, or clean disposable gloves shall be used to remove bulk substances from containers;

4. Lotions, ointments, creams, and powders shall be labeled and kept in closed containers. A clean spatula shall be used to remove creams or other products from jars. Sterile cotton or sponges shall be used to apply creams, lotions, and powders. Cosmetic containers shall be covered after each use;

5. All appliances shall be safely stored;

6. Presanitized tools and implements, linens, and equipment shall be stored for use in a sanitary enclosed cabinet or covered receptacle;

7. Clean towels, robes, or other linens shall be used for each patron. Clean towels, robes, or other linens shall be stored in a clean predisinfected and dry cabinet, drawer, or nonairtight covered container. Soiled towels, robes, or other linens shall be stored in a container enclosed on all sides including the top, except if stored in a separate laundry room;

8. No substance other than a sterile styptic powder or sterile liquid astringent approved for homeostasis and applied with a sterile single-use applicator shall be used to check bleeding; and

9. Any disposable material making contact with blood or other body fluid shall be disposed of in a sealed plastic bag and removed from the spa or school in accordance with the guidelines of the Virginia Department of Health and OSHA (Occupational Safety and Health Administration).

E. Chemical storage and emergency information.

1. Spas and schools shall have in the immediate working area a binder with all Safety Data Sheets (SDS) provided by manufacturers for any chemical products used;

2. Spas and schools shall have a blood spill clean-up kit in the work area that contains at a minimum latex gloves, two 12-inch by 12-inch towels, one disposable trash bag, bleach, one empty spray bottle, and one mask with face shield or any OSHA-approved blood spill clean-up kit;

3. Flammable chemicals shall be labeled and stored in a nonflammable storage cabinet or a properly ventilated room; and

4. Chemicals that could interact in a hazardous manner (e.g., oxidizers, catalysts, and solvents) shall be labeled and separated in storage.

F. Client health guidelines.

1. All employees providing client services shall cleanse their hands with an antibacterial product prior to providing services to each client;

2. All employees providing client services shall wear gloves while providing services when exposure to bloodborne pathogens is possible;

3. No spa or school providing esthetics services shall have on the premises esthetics products containing hazardous substances that have been banned by the U.S. Food and Drug Administration (FDA) for use in esthetics products;

4. No product shall be used in a manner that is disapproved by the FDA; and

5. Esthetics spas must be in compliance with current building and zoning codes.

G. In addition to the requirements set forth in this section, all licensees and temporary license holders shall adhere to regulations and guidelines established by the Virginia Department of Health and the Occupational and Safety Division of the Virginia Department of Labor and Industry.

H. All spas and schools shall immediately report the results of any inspection of the spa or school by the Virginia Department of Health as required by § 54.1-705 of the Code of Virginia.

I. All spas and schools shall conduct a self-inspection on an annual basis and maintain a self-inspection form on file for five years so that it may be requested and reviewed by the board at its discretion.

Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-260).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-260).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 10, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia enumerates board authority to promulgate regulations.

Purpose: The purpose of this fast-track rulemaking action is to align board regulations that rely on Department of Labor and Industry (DOLI) issuing apprenticeship cards with the new procedures being used by DOLI, which no longer include issuing apprenticeship cards. Without this change, apprentices will be unable to comply with the board's regulatory requirement.

In establishing the licensing system for barbers, cosmetologists, nail technicians, estheticians, and master estheticians, the General Assembly determined that occupational regulation of practitioners in these fields is necessary to ensure the safety of the public. However, that purpose is subverted if the public has no way to determine whether the practitioner providing services has demonstrated minimum competency and obtained the requisite license. The board has required the display of licenses or proof of apprenticeship in a public area of the salon or at the employee's work station so that the public can easily determine if a practitioner is minimally competent to perform those services. The amendment is necessary for the public to continue to have access to the license or trainee status of a practitioner. If the current regulation is not amended as proposed by this fast-track rulemaking action, apprentices will not be able to document their legitimate status in a legally compliant manner.

The board also proposes to eliminate the requirement for apprentices to wear a badge identifying themselves as apprentices. The current requirement to wear an apprenticeship badge is duplicative of the requirement of posting proof of apprenticeship. Removing the requirement aligns with the legislative directive for the boards under the Department of Professional and Occupational Regulation to eliminate unnecessary regulatory requirements.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial because it is reducing a regulatory burden on licensees and streamlining intra-agency coordination while maintaining protection of the health, safety, and welfare of the public.

Substance: In 18VAC41-20-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," and the requirement for apprentices to wear badges is eliminated.

In 18VAC41-70-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," the requirement for apprentices to wear badges is eliminated, and a reference to "shops and salons" is corrected to be "spa."

Issues: The primary advantage to the public is that customers will continue to have a way to verify the credential status and minimum competency of a practitioner providing services. There are no disadvantages for the public.

The primary advantage to the agency and Commonwealth is that the board will continue to protect the health, safety, and welfare of the public using the least restrictive means. There are no disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) proposes to: 1) require that proof of apprenticeship registration, rather than apprenticeship cards, be displayed, and 2) no longer require that each apprentice wear a badge clearly indicating his status.

Background. The current Barbering and Cosmetology Regulations and Esthetics Regulations both specify, "All apprenticeship cards issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon." DOLI Division of Registered Apprenticeship has notified the Board that it will no longer utilize apprenticeship cards for its registered apprenticeships and will instead send letters as proof of apprenticeship.

The two regulations also both currently specify, "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice."

Estimated Benefits and Costs. The Board proposes to replace the words "All apprenticeship cards" with "Proof of apprenticeship registration;" so that the sentence in the two regulations would read "Proof of apprenticeship registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon."² The Department of Professional and Occupational Regulation has indicated that the letters sent by DOLI would serve as proof of apprenticeship registration. Since apprenticeship cards will no longer be issued, amending the requirement to something that can actually be displayed in practice is beneficial.

For both regulations, the Board proposes to eliminate the sentence "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice." This would moderately reduce compliance costs for the barbershops, nail salons, cosmetology salons, and esthetics spas that employ apprentices in the Commonwealth.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth.³ The proposed amendments would particularly affect those that employ apprentices. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs.

Localities⁴ Affected.⁵ The proposed amendments apply throughout the Commonwealth and do not disproportionately affect particular localities. The proposed amendments do not introduce costs for local governments. Accordingly, no additional funds would be required.

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

Effects on the Use and Value of Private Property. The proposed amendments do not substantially affect the use and value of the barbershops, nail salons, cosmetology salons, and esthetics spas subject to the regulations. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses:⁶ The proposed amendments do not adversely affect small businesses.

Types and Estimated Number of Small Businesses Affected. All 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth are likely small businesses.

Costs and Other Effects. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs for these firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

__________________________

²For the Esthetics Regulations, the Board also proposes to replace "shop or salon" with "spa." This is a clarifying change.

³Data source: Department of Professional and Occupational Regulation

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."

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis.

Summary:

The amendments update the requirement to display proof of apprenticeship registration and eliminate the requirement for apprentices to wear a badge identifying them as apprentices.

18VAC41-20-260. Display of license.

A. Each shop, salon, or school shall ensure that all current licenses, certificates, or permits issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop, salon, or school. Duplicate licenses, certificates, or permits shall be posted in a like manner in every shop, salon, or school location where the regulant provides services.

B. Each shop, salon, or school shall ensure that no employee, licensee, student, or apprentice performs any service beyond the scope of practice for the applicable license.

C. All licensees, certificate holders, and permit holders shall operate under the name in which the license, certificate, or permit is issued.

D. Unless also licensed as a cosmetologist, a barber or master barber is required to hold a separate nail technician or wax technician license if performing nail care or waxing.

E. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

18VAC41-70-260. Display of license.

A. Each licensed spa or school shall ensure that all current licenses and temporary licenses issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the spa or school. Duplicate licenses or temporary licenses shall be posted in a like manner in every spa or school location where the licensee or temporary license holder provides services.

B. All licensees and temporary license holders shall operate under the name in which the license or temporary license is issued.

C. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon spa. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

Title of Regulation: 18VAC60-21. Regulations Governing the Practice of Dentistry (adding 18VAC60-21-107).

Statutory Authority: §§ 54.1-2400 and 54.1-3408.02 of the Code of Virginia.

Effective Dates: December 2, 2019, through June 1, 2021.

Agency Contact: Sandra Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4437, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.

Preamble:

Section 2.2-4011 B of the Code of Virginia states that agencies may adopt emergency regulations in situations in which Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment, and the regulation is not exempt under the provisions of § 2.2-4006 A 4 of the Code of Virginia.

The amendments add a section regarding electronic prescribing. Consistent with the Code of Virginia, beginning July 1, 2020, a prescription for a controlled substance that contains an opioid is required to be issued as an electronic prescription. The proposed regulation also provides a one-time waiver from this requirement for a maximum of one year due to demonstrated economic hardship on the part of a prescriber, technological limitations beyond the prescriber's control, or other exceptional circumstances demonstrated by the prescriber.

18VAC60-21-107. Waiver for electronic prescribing.

A. Beginning July 1, 2020, a prescription for a controlled substance that contains an opioid shall be issued as an electronic prescription consistent with § 54.1-3408.02 of the Code of Virginia.

B. Upon written request, the board may grant a one-time waiver of the requirement of subsection A of this section, for a period not to exceed one year, due to demonstrated economic hardship, technological limitations that are not reasonably within the control of the prescriber, or other exceptional circumstances demonstrated by the prescriber.

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with 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, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it 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 Nursing (Board) proposes to amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

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.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees 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 regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² 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 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ 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 Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

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

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

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.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with 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, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it 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 Nursing (Board) proposes to amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

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.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees 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 regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² 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 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ 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 Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

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

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

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.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with 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, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it 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 Nursing (Board) proposes to amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

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.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees 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 regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² 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 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ 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 Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

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

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

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.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with 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, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it 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 Nursing (Board) proposes to amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

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.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees 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 regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² 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 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ 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 Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

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

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

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.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.

Titles of Regulations: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-30).

18VAC90-25. Regulations Governing Certified Nurse Aides (amending 18VAC90-25-16).

18VAC90-27. Regulations for Nursing Education Programs (amending 18VAC90-27-20).

18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-30).

18VAC90-60. Regulations Governing the Registration of Medication Aides (amending 18VAC90-60-30).

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: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@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 Nursing the authority to promulgate regulations to administer the regulatory system. The specific mandate for collection of a handling fee is found in § 2.2-4805 of the Virginia Debt Collection Act

Purpose: The rationale for the regulatory change is compliance with 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, and its mission of protecting the health and safety of the public must be supported by its licensing and miscellaneous fees.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is concurring with financial policy of the Commonwealth and is expected to be noncontroversial.

Substance: All board regulations are being amended to delete the returned check fee of $35 and replace it 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 Nursing (Board) proposes to amend five of its regulations to state that the handling fee for a returned check or dishonored credit card or debit card is $50.

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.

With the exception of 18 VAC 90-27 Regulations for Nursing Education Programs, the Board's current regulations that include fees 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 regulations to current law. DHP has indicated that in practice they will not raise the fee to $50 until this proposed regulatory action becomes effective.² 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 45 advanced certified nurse aides, 53,519 nurse aides, 418 clinical nurse specialists, 8,654 licensed massage therapists, 28,547 licensed practical nurses, 6,614 medication aides, 307 medication aide training programs, 109,998 registered nurses, 58 practical schools of nursing, and 76 professional schools of nursing in the Commonwealth and regulated by the Board.^3,4 If any of these individuals or entities (other than the nurse education programs) have a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. It is not known whether nursing education programs would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

Localities⁵ Affected.⁶ 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 Businesses⁷:

Types and Estimated Number of Small Businesses Affected. The proposal would potentially affect the 307 medication aide training programs, 58 practical schools of nursing, and 76 professional schools of nursing if they were to have a check returned or a credit card or debit card dishonored. It is not known how many of these entities would qualify as a small business.

Costs and Other Effects. If a small medication aide training program has a check returned or a credit card or debit card dishonored, the proposal would increase their cost by $15. The current Regulations for Nursing Education Programs does not include a $35 returned check charge. It is not clear whether small practical schools of nursing and small professional schools of nursing would be charged a $35 returned check fee if they had a check returned prior to the proposed regulatory action becoming effective. If they would not receive the charge, the proposal would increase their costs by $50 in the event that they have a check returned or a credit card or debit card dishonored.

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

___________________________________

²Concerning whether nursing education programs would be charged $35 for a returned check prior to the proposed regulatory action becoming effective, DHP stated that "There haven't been any returned checks for nursing education programs; the new fee is added for consistency but likely will not be needed."

³Source: DHP

⁴The Board also regulates 11,569 licensed nurse practitioners. For licensed nurse practitioners, the proposal to state that the handling fee for a returned check or dishonored credit card or debit card is $50 is in Action 5414. See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5414

⁵"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁷Pursuant 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."

Agency's Response to Economic Impact Analysis: The Board of Nursing does not concur with the analysis of the Department of Planning and Budget that the proposed amended regulations (to change the handling fee for returned checks or dishonored credit or debit cards) need to be sent to the Joint Commission on Administrative Rules. As is noted in the economic impact analysis, the board's action is consistent with the language of the Virginia Debt Collection Act, as amended by the General Assembly. It is also consistent with advice from the Assistant Attorney General and with advice from the Office of the Comptroller. The board's regulatory action is not discretionary.

The economic impact analysis notes the number of regulants under the Board of Nursing but does not include information from the agency background document that only 46 such persons were charged the fee for a returned check in fiscal year 2019.

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.

18VAC90-19-30. Fees.

A. Fees required by the board are:

1. Application for licensure by examination - RN	$190
2. Application for licensure by endorsement - RN	$190
3. Application for licensure by examination - LPN	$170
4. Application for licensure by endorsement - LPN	$170
5. Reapplication for licensure by examination	$50
6. Biennial licensure renewal - RN	$140
7. Biennial inactive licensure renewal - RN	$70
8. Biennial licensure renewal - LPN	$120
9. Biennial inactive licensure renewal - LPN	$60
10. Late renewal - RN	$50
11. Late renewal - RN inactive	$25
12. Late renewal - LPN	$40
13. Late renewal - LPN inactive	$20
14. Reinstatement of lapsed license - RN	$225
15. Reinstatement of lapsed license - LPN	$200
16. Reinstatement of suspended or revoked license	$300
17. Duplicate license	$15
18. Replacement wall certificate	$25
19. Verification of license	$35
20. Transcript of all or part of applicant or licensee records	$35
21. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50
22. Application for CNS registration	$130
23. Biennial renewal of CNS registration	$80
24. Reinstatement of lapsed CNS registration	$125
25. Verification of CNS registration to another jurisdiction	$35
26. Late renewal of CNS registration	$35

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

1. Biennial licensure renewal - RN	$105
2. Biennial inactive licensure renewal - RN	$52
3. Biennial licensure renewal - LPN	$90
4. Biennial inactive licensure renewal - LPN	$45
5. Biennial renewal of CNS registration	$60

18VAC90-25-16. Fees.

A. The following fees shall apply:

	1. Annual renewal for certified nurse aide	$30
	2. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
	3. Application for certification as an advanced certified nurse aide 4. Renewal of advanced certified nurse aide certification 5. Reinstatement of advanced certified nurse aide certification	$25 $20 $30

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

1. Application for approval of a nursing education program.	$1,650
2. Survey visit for nursing education program.	$2,200
3. Site visit for NCLEX passage rate for nursing education program.	$1,500
4. Handling fee for returned check or dishonored credit card or debit card	$50

18VAC90-50-30. Fees.

A. Fees listed in this section shall be payable to the Treasurer of Virginia and shall not be refunded unless otherwise provided.

B. Fees required by the board are:

1. Application and initial licensure	$140
2. Biennial renewal	$95
3. Late renewal	$30
4. Reinstatement of licensure	$150
5. Reinstatement after suspension or revocation	$200
6. Duplicate license	$15
7. Replacement wall certificate	$25
8. Verification of licensure	$35
9. Transcript of all or part of applicant/licensee records	$35
10. Returned check charge Handling fee for returned check or dishonored credit card or debit card	$35 $50

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

Biennial renewal

$71

18VAC90-60-30. Fees.

A. The following fees shall apply:

1. Application for program approval	$500
2. Application for registration as a medication aide	$50
3. Annual renewal for medication aide	$30
4. Late renewal	$15
5. Reinstatement of registration	$90
6. Returned check Handling fee for returned check or dishonored credit card or debit card	$35 $50
7. Duplicate registration	$15
8. Reinstatement following suspension, mandatory suspension, or revocation	$120

B. Fees shall not be refunded once submitted.

C. The fee for the state examination shall be paid directly to the examination service contracted by the board for its administration.

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.

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.

Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-47).

Statutory Authority: §§ 54.1-2400 and 54.1-3223 of the Code of Virginia.

Effective Date: January 22, 2020.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 597-4130, FAX (804) 527-4471, or email leslie.knachel@dhp.virginia.gov.

Background: Chapter 214 of the 2019 Acts of Assembly placed the drug gabapentin as a controlled substance in Schedule V. Regulations of the Board of Optometry currently prohibit optometrists from prescribing Schedule V drugs. Since July 1, 2019, optometrists have not been able to prescribe gabapentin, making prescribing of an opioid the only alternative an optometrist has for pain control for certain patients.

The amendment adding an exception for prescribing hydrocodone in combination with acetaminophen from the proposed regulation was accomplished in a separate regulatory action that became effective December 11, 2019, and rearranged the wording of subsection B of 18VAC105-20-47.

Summary:

The amendment adds gabapentin to the therapeutic pharmaceutical agent formulary.

18VAC105-20-47. Therapeutic pharmaceutical agents.

A. A TPA-certified optometrist, acting within the scope of his practice, may procure, administer, and prescribe medically appropriate therapeutic pharmaceutical agents (or any therapeutically appropriate combination thereof) to treat diseases and abnormal conditions of the human eye and its adnexa within the following categories:

1. Oral analgesics - Schedule II controlled substances consisting of hydrocodone in combination with acetaminophen andSchedule III, IV, and VI narcotic and nonnarcotic agents.

2. Topically administered Schedule VI agents:

a. Alpha-adrenergic blocking agents;

b. Anesthetic (including esters and amides);

c. Anti-allergy (including antihistamines and mast cell stabilizers);

d. Anti-fungal;

e. Anti-glaucoma (including carbonic anhydrase inhibitors and hyperosmotics);

f. Anti-infective (including antibiotics and antivirals);

g. Anti-inflammatory;

h. Cycloplegics and mydriatics;

i. Decongestants; and

j. Immunosuppressive agents.

3. Orally administered Schedule VI agents:

a. Aminocaproic acids (including antifibrinolytic agents);

b. Anti-allergy (including antihistamines and leukotriene inhibitors);

c. Anti-fungal;

d. Anti-glaucoma (including carbonic anhydrase inhibitors and hyperosmotics);

e. Anti-infective (including antibiotics and antivirals);

f. Anti-inflammatory (including steroidal and nonsteroidal);

g. Decongestants; and

h. Immunosuppressive agents.

B. Schedule I, II, and V drugs and Schedule II drugs are excluded from the list of therapeutic pharmaceutical agents with the exception of controlled substances in Schedule II consisting of hydrocodone in combination with acetaminophen are excluded from the list of therapeutic pharmaceutical agents and gabapentin in Schedule V.

C. Over-the-counter topical and oral medications for the treatment of the eye and its adnexa may be procured for administration, administered, prescribed, or dispensed.

Title of Regulation: 18VAC115-20. Regulations Governing the Practice of Professional Counseling (amending 18VAC115-20-49).

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

Notice is hereby given that the Board of Counseling has WITHDRAWN the proposed regulatory action for 18VAC115-20, Regulations Governing the Practice of Professional Counseling, which was published in 33:19 VA.R. 2132-2141 May 15, 2017. On November 22, 2019, the Board of Counseling voted to withdraw its proposed action to require Council for Accreditation of Counseling and Related Educational Programs (CACREP) accreditation for counseling education programs. In doing so, the board acknowledges that there continues to be opposition but has also reiterated its support for accreditation. Accreditation of educational programs is the standard by which health regulatory boards determine quality and consistency.

The core function of the boards that license health professions is the protection of the health and safety of the public, and essential to that responsibility is the assurance of minimal competency to practice. Boards have neither the expertise nor the resources to evaluate every educational program to determine whether its offerings, its facilities, and its faculty meet minimal standards. Accordingly, health regulatory boards rely on national accrediting bodies to perform that function. In social work, the board requires graduation from a program accredited by the Council on Social Work Education. In psychology, the board relies on accreditation of programs by the American Psychological Association in clinical or counseling psychology. Likewise, other boards at the Department of Health Professions require graduation from a program with national accreditation as an indication of competency in educational preparation to practice.

Statements made during official comment periods and by persons outside of comment periods have contained inaccuracies. For example, CACREP does not require all faculty to be graduates of a CACREP-accredited program. Only about half of classes must be taught by core faculty, and that faculty must have a background in counselor education; the rest of the faculty may come from other disciplines. Likewise, numerous comments have been made about the board's attempt to limit licensure by endorsement to only applicants from CACREP-accredited programs. To the contrary, the board has proposed additional options to its current requirements for licensure by endorsement that provide greater opportunity for applicants from other states. While the Board of Counseling acknowledges that this may not be the appropriate time for promulgating this regulation, it firmly believes that accreditation is the best way to assure educational competency and protect the public.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Titles of Regulations: 18VAC115-20. Regulations Governing the Practice of Professional Counseling (amending 18VAC115-20-10, 18VAC115-20-20, 18VAC115-20-40, 18VAC115-20-52, 18VAC115-20-70, 18VAC115-20-100).

18VAC115-50. Regulations Governing the Practice of Marriage and Family Therapy (amending 18VAC115-50-10, 18VAC115-50-20, 18VAC115-50-30, 18VAC115-50-60, 18VAC115-50-70, 18VAC115-50-90).

18VAC115-60. Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners (amending 18VAC115-60-10, 18VAC115-60-20, 18VAC115-60-40, 18VAC115-60-80, 18VAC115-60-90, 18VAC115-60-110).

Statutory Authority: §§ 54.1-2400 and 54.1-3505 of the Code of Virginia.

Effective Dates: December 23, 2019, through June 22, 2021.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Preamble:

Section 2.2-4011 B of the Code of Virginia states that agencies may adopt emergency regulations in situations in which Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment, and the regulation is not exempt under the provisions of § 2.2-4006 A 4 of the Code of Virginia.

Amendments provide for the issuance of a temporary license for a residency in counseling for professional counselors, marriage and family therapists, and substance abuse treatment practitioners, including (i) setting fees for initial and renewal of a resident license, (ii) establishing qualifications for the issuance of a license and for its renewal, (iii) limiting the number of times a resident may renew the temporary license, and (iv) setting a time limit for passage of the licensing examination.

Part I
General Provisions

18VAC115-20-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia:

"Board"

"Counseling"

"Professional counselor"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary counseling services" means activities such as case management, recordkeeping, referral, and coordination of services.

"Applicant" means any individual who has submitted an official application and paid the application fee for licensure as a professional counselor.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"Candidate for licensure" means a person who has satisfactorily completed all educational and experience requirements for licensure and has been deemed eligible by the board to sit for its examinations.

"Clinical counseling services" means activities such as assessment, diagnosis, treatment planning, and treatment implementation.

"Competency area" means an area in which a person possesses knowledge and skill and the ability to apply them in the clinical setting.

"CORE" means Council on Rehabilitation Education.

"Exempt setting" means an agency or institution in which licensure is not required to engage in the practice of counseling according to the conditions set forth in § 54.1-3501 of the Code of Virginia.

"Face-to-face" means the in-person delivery of clinical counseling services for a client.

"Group supervision" means the process of clinical supervision of no more than six persons in a group setting provided by a qualified supervisor.

"Internship" means a formal academic course from a regionally accredited college or university in which supervised, practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Jurisdiction" means a state, territory, district, province, or country that has granted a professional certificate or license to practice a profession, use a professional title, or hold oneself out as a practitioner of that profession.

"Nonexempt setting" means a setting that does not meet the conditions of exemption from the requirements of licensure to engage in the practice of counseling as set forth in § 54.1-3501 of the Code of Virginia.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education responsible for accrediting senior postsecondary institutions.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract and has received board approval been issued a temporary license by the board to provide clinical services in professional counseling under supervision.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented individual or group consultation, guidance, and instruction that is specific to the clinical counseling services being performed with respect to the clinical skills and competencies of the person supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-20-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a professional counselor or a resident in counseling:

Active annual license renewal	$130
Inactive annual license renewal	$65
Initial licensure by examination: Application processing and initial licensure as a professional counselor	$175
Initial licensure by endorsement: Application processing and initial licensure as a professional counselor	$175
Registration of supervision Application and initial licensure as a resident in counseling	$65
Add or change supervisor Pre-review of education only	$30 $75
Duplicate license	$10
Verification of licensure to another jurisdiction	$30
Active annual license renewal for a professional counselor	$130
Inactive annual license renewal for a professional counselor	$65
Annual renewal for resident in counseling	$30
Late renewal for a professional counselor	$45
Late renewal for a resident in counseling	$10
Reinstatement of a lapsed license for a professional counselor	$200
Reinstatement following revocation or suspension	$600
Replacement of or additional wall certificate	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

Part II
Requirements for Licensure as a Professional Counselor

18VAC115-20-40. Prerequisites for licensure by examination.

Every applicant for licensure examination by the board shall:

1. Meet the degree program requirements prescribed in 18VAC115-20-49, the course work coursework requirements prescribed in 18VAC115-20-51, and the experience requirements prescribed in 18VAC115-20-52;

2. Pass the licensure examination specified by the board;

3. Submit the following to the board:

a. A completed application;

b. Official transcripts documenting the applicant's completion of the degree program and coursework requirements prescribed in 18VAC115-20-49 and 18VAC115-20-51. Transcripts previously submitted for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

c. Verification of Supervision supervision forms documenting fulfillment of the residency requirements of 18VAC115-20-52 and copies of all required evaluation forms, including verification of current licensure of the supervisor if any portion of the residency occurred in another jurisdiction;

d. Verification of any other mental health or health professional license or certificate ever held in another jurisdiction;

e. The application processing and initial licensure fee as prescribed in 18VAC115-20-20; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-20-52. Residency Resident license and requirements for a residency.

A. Registration Resident license. Applicants who render for temporary licensure as a resident in counseling services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the clinical supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing clinical counseling services;

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-20-49 to include completion of the coursework and internship requirement specified in 18VAC115-20-51; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Residency requirements.

1. The applicant for licensure as a professional counselor shall have completed a 3,400-hour supervised residency in the role of a professional counselor working with various populations, clinical problems, and theoretical approaches in the following areas:

a. Assessment and diagnosis using psychotherapy techniques;

b. Appraisal, evaluation, and diagnostic procedures;

c. Treatment planning and implementation;

d. Case management and recordkeeping;

e. Professional counselor identity and function; and

f. Professional ethics and standards of practice.

2. The residency shall include a minimum of 200 hours of in-person supervision between supervisor and resident in the consultation and review of clinical counseling services provided by the resident. Supervision shall occur at a minimum of one hour and a maximum of four hours per 40 hours of work experience during the period of the residency. For the purpose of meeting the 200-hour supervision requirement, in-person may include the use of secured technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed professional counselor.

3. No more than half of the 200 hours may be satisfied with group supervision. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

4. Supervision that is not concurrent with a residency will not be accepted, nor will residency hours be accrued in the absence of approved supervision.

5. The residency shall include at least 2,000 hours of face-to-face client contact in providing clinical counseling services. The remaining hours may be spent in the performance of ancillary counseling services.

6. A graduate-level internship in excess of 600 hours, which was completed in a program that meets the requirements set forth in 18VAC115-20-49, may count for up to an additional 300 hours towards toward the requirements of a residency.

7. Supervised practicum and internship hours in a CACREP-accredited doctoral counseling program may be accepted for up to 900 hours of the residency requirement and up to 100 of the required hours of supervision provided the supervisor holds a current, unrestricted license as a professional counselor.

8. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-20-100 in order to maintain a license in current, active status.

9. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability that limits the resident's access to qualified supervision.

10. Residents may not call themselves professional counselors, directly bill for services rendered, or in any way represent themselves as independent, autonomous practitioners or professional counselors. During the residency, residents shall use their names and the initials of their degree, their resident license number, and the title "Resident in Counseling" in all written communications. Clients shall be informed in writing of the resident's status that the resident does not have authority for independent practice and is under supervision and shall provide the supervisor's name, professional address, and phone number.

11. Residents shall not engage in practice under supervision in any areas for which they have not had appropriate education.

12. Residency hours approved by the licensing board in another United States jurisdiction that meet the requirements of this section shall be accepted.

C. Supervisory qualifications. A person who provides supervision for a resident in professional counseling shall:

1. Document two years of post-licensure clinical experience;

2. Have received professional training in supervision, consisting of three credit hours or 4.0 quarter hours in graduate-level coursework in supervision or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-20-106; and

3. Hold an active, unrestricted license as a professional counselor or a marriage and family therapist in the jurisdiction where the supervision is being provided. At least 100 hours of the supervision shall be rendered by a licensed professional counselor. Supervisors who are substance abuse treatment practitioners, school psychologists, clinical psychologists, clinical social workers, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

D. Supervisory responsibilities.

1. Supervision by any individual whose relationship to the resident compromises the objectivity of the supervisor is prohibited.

2. The supervisor of a resident shall assume full responsibility for the clinical activities of that resident specified within the supervisory contract for the duration of the residency.

3. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period.

4. The supervisor shall report the total hours of residency and shall evaluate the applicant's competency in the six areas stated in subdivision B 1 of this section.

5. The supervisor shall provide supervision as defined in 18VAC115-20-10.

E. Applicants shall document successful completion of their residency on the Verification of Supervision Form at the time of application. Applicants must receive a satisfactory competency evaluation on each item on the evaluation sheet. Supervised experience obtained prior to April 12, 2000, may be accepted toward licensure if this supervised experience met the board's requirements that were in effect at the time the supervision was rendered.

Part III
Examinations

18VAC115-20-70. General examination requirements; schedules; time limits.

A. Every applicant for initial licensure by examination by the board as a professional counselor shall pass a written examination as prescribed by the board. An applicant is required to have passed the prescribed examination within six years from the date of initial issuance of a resident license by the board.

B. Every applicant for licensure by endorsement shall have passed a licensure examination in the jurisdiction in which licensure was obtained.

C. A candidate approved to sit for the examination shall pass the examination within two years from the date of such initial approval. If the candidate has not passed the examination by the end of the two-year period here prescribed:

1. The initial approval to sit for the examination shall then become invalid; and

2. The applicant shall file a new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the applicant shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

D. C. The board shall establish a passing score on the written examination.

E. D. A candidate for examination or an applicant shall not provide clinical counseling services unless he is under supervision approved by the board resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a professional counselor.

Part IV
Licensure Renewal; Reinstatement

18VAC115-20-100. Annual renewal of licensure.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. Every license holder licensed professional counselor who intends to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-20-20.

C. B. A licensee licensed professional counselor who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-20-20. No person shall practice counseling in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in subsection C of 18VAC115-20-110 C.

C. For renewal of a resident license in counseling, the following shall apply:

1. A resident license shall expire annually in the month the resident license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-20-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing clinical counseling services.

3. On the annual renewal, the resident in counseling shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-20-106.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. Practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-20)

Registration of Supervision - Post Graduate Degree Supervised Experience, LPC Form 1 (rev. 2/2011)

Quarterly Evaluation, LPC Form 1-QE (rev. 2/2011)

Licensure Verification of Out-of-State Supervisor, LPC Form 1-LV (rev. 2/2011)

Licensure Application, LPC Form 2 (rev. 2/2011)

Verification of Supervision – Post-Graduate Degree Supervised Experience, LPC Form 2-VS (rev. 2/2011)

Coursework Outline Form, LPC Form 2-CO (rev. 2/2011)

Verification of Internship Hours Towards the Residency, LPC Form 2-IR (rev. 2/2011)

Verification of Internship, LPC Form 2-VI (rev. 2/2011)

Verification of Licensure, LPC Form 2-VL (rev. 2/2011)

Supervision Outline - Examination Applicants Only, LPC Form 2-SO (rev. 2/2011)

Verification of Clinical Practice, 5 of Last 6 Years Immediately Preceding Submission of Application for Licensure, LPC Form-ECP (rev. 2/2011)

Continuing Education Summary Form (LPC) (rev. 3/2009)

Application for Reinstatement of a Lapsed License (rev. 8/2007)

Application for Reinstatement of a Revoked, Suspended, or Surrendered License (rev. 8/2007)

Application Instructions for Temporary Licensure as a Resident in Counseling (rev. 12/2019)

18VAC115-50-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia: (i) "board," (ii) "marriage and family therapy," (iii) "marriage and family therapist," and (iv) "practice of marriage and family therapy."

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary counseling services" means activities such as case management, recordkeeping, referral, and coordination of services.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"COAMFTE" means the Commission on Accreditation for Marriage and Family Therapy Education.

"Clinical marriage and family services" means activities such as assessment, diagnosis, and treatment planning and treatment implementation for couples and families.

"Face-to-face" means the in-person delivery of clinical marriage and family services for a client.

"Internship" means a formal academic course from a regionally accredited university in which supervised practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education as responsible for accrediting senior post-secondary institutions and training programs.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract to the board and has received been issued a temporary license by the board approval to provide clinical services in marriage and family therapy under supervision.

"Supervision" means an ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented, individual or group consultation, guidance, and instruction with respect to the clinical skills and competencies of the person or persons being supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-50-20. Fees.

A. The board has established fees for the following:

Registration of supervision Application and initial licensure as a resident	$65
Add or change supervisor Pre-review of education only	$30 $75
Initial licensure by examination: Processing and initial licensure as a marriage and family therapist	$175
Initial licensure by endorsement: Processing and initial licensure as a marriage and family therapist	$175
Active annual license renewal for a marriage and family therapist	$130
Inactive annual license renewal for a marriage and family therapist	$65
Annual renewal for resident in marriage and family therapy	$30
Penalty for late renewal for a marriage and family therapist	$45
Late renewal for resident in marriage and family therapy	$10
Reinstatement of a lapsed license for a marriage and family therapist	$200
Verification of license to another jurisdiction	$30
Additional or replacement licenses	$10
Additional or replacement wall certificates	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

18VAC115-50-30. Application for licensure as a marriage and family therapist by examination.

Every applicant for licensure by examination by the board shall:

1. Meet the education and experience requirements prescribed in 18VAC115-50-50, 18VAC115-50-55, and 18VAC115-50-60;

2. Meet the examination requirements prescribed in 18VAC115-50-70;

3. Submit to the board office the following items:

a. A completed application;

b. The application processing and initial licensure fee prescribed in 18VAC115-50-20;

c. Documentation, on the appropriate forms, of the successful completion of the residency requirements of 18VAC115-50-60 along with documentation of the supervisor's out-of-state license where applicable;

d. Official transcript or transcripts submitted from the appropriate institutions of higher education, verifying satisfactory completion of the education requirements set forth in 18VAC115-50-50 and 18VAC115-50-55. Previously submitted transcripts for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

e. Verification on a board-approved form of any mental health or health out-of-state license, certification, or registration ever held in another jurisdiction; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-50-60. Residency Resident license and requirements for a residency.

A. Registration Resident license. Applicants who render for temporary licensure as a resident in marriage and family therapy services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing marriage and family services.

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-50-50 to include completion of the coursework and internship requirement specified in 18VAC115-50-55; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Residency requirements.

1. The applicant for licensure as a marriage and family therapist shall have completed no fewer than 3,400 hours of supervised residency in the role of a marriage and family therapist, to include 200 hours of in-person supervision with the supervisor in the consultation and review of marriage and family services provided by the resident. For the purpose of meeting the 200 hours of supervision required for a residency, in-person may also include the use of technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident. At least one-half of the 200 hours of supervision shall be rendered by a licensed marriage and family therapist.

a. Residents shall receive a minimum of one hour and a maximum of four hours of supervision for every 40 hours of supervised work experience.

b. No more than 100 hours of the supervision may be acquired through group supervision, with the group consisting of no more than six residents. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

c. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed marriage and family therapist or a licensed professional counselor.

2. The residency shall include documentation of at least 2,000 hours in clinical marriage and family services of which 1,000 hours shall be face-to-face client contact with couples or families or both. The remaining hours may be spent in the performance of ancillary counseling services. For applicants who hold current, unrestricted licensure as a professional counselor, clinical psychologist, or clinical social worker, the remaining hours may be waived.

3. The residency shall consist of practice in the core areas set forth in 18VAC115-50-55.

4. The residency shall begin after the completion of a master's degree in marriage and family therapy or a related discipline as set forth in 18VAC115-50-50.

5. A graduate-level internship in excess of 600 hours, which was completed in a program that meets the requirements set forth in 18VAC115-50-50, may count for up to an additional 300 hours towards toward the requirements of a residency.

6. Supervised practicum and internship hours in a COAMFTE-accredited or a CACREP-accredited doctoral program in marriage and family therapy or counseling may be accepted for up to 900 hours of the residency requirement and up to 100 of the required hours of supervision provided the supervisor holds a current, unrestricted license as a marriage and family therapist or professional counselor.

7. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability which that limits the resident's access to qualified supervision.

8. Residents shall not call themselves marriage and family therapists, directly bill for services rendered, or in any way represent themselves as marriage and family therapists. During the residency, residents may use their names, the initials of their degree, their resident license number, and the title "Resident in Marriage and Family Therapy." Clients shall be informed in writing of the resident's status that the resident does not have authority for independent practice and is under supervision, along with the name, address, and telephone number of the resident's supervisor.

9. Residents shall not engage in practice under supervision in any areas for which they do not have appropriate education.

10. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-50-90 in order to maintain a resident license in current, active status.

11. Residency hours that are approved by the licensing board in another United States jurisdiction and that meet the requirements of this section shall be accepted.

C. Supervisory qualifications. A person who provides supervision for a resident in marriage and family therapy shall:

1. Hold an active, unrestricted license as a marriage and family therapist or professional counselor in the jurisdiction where the supervision is being provided;

2. Document two years post-licensure marriage and family therapy experience; and

3. Have received professional training in supervision, consisting of three credit hours or 4.0 quarter hours in graduate-level coursework in supervision or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-50-96. At least one-half of the 200 hours of supervision shall be rendered by a licensed marriage and family therapist. Supervisors who are clinical psychologists, clinical social workers, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

D. Supervisory responsibilities.

1. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period. The supervisor shall report the total hours of residency and evaluate the applicant's competency to the board.

2. Supervision by an individual whose relationship to the resident is deemed by the board to compromise the objectivity of the supervisor is prohibited.

3. The supervisor shall provide supervision as defined in 18VAC115-50-10 and shall assume full responsibility for the clinical activities of residents as specified within the supervisory contract, for the duration of the residency.

18VAC115-50-70. General examination requirements.

A. All applicants for initial licensure shall pass an examination, as prescribed by the board, with a passing score as determined by the board. The examination is waived for an applicant who holds a current and unrestricted license as a professional counselor issued by the board.

B. The examination shall concentrate on the core areas of marriage and family therapy set forth in subsection A of 18VAC115-50-55 An applicant is required to pass the prescribed examination within six years from the date of initial issuance of a resident license by the board.

C. A candidate approved to sit for the examination shall pass the examination within two years from the initial notification date of approval. If the candidate has not passed the examination within two years from the date of initial approval:

1. The initial approval to sit for the examination shall then become invalid; and

2. The applicant shall file a new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the candidate shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

D. Applicants or candidates for examination shall not provide marriage and family services unless they are under supervision approved by the board C. A resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a marriage and family therapist.

18VAC115-50-90. Annual renewal of license.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. All licensees licensed marriage and family therapists who intend to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-50-20.

C. B. A licensee licensed marriage and family therapist who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-50-20. No person shall practice marriage and family therapy in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in 18VAC115-50-100 C.

C. For renewal of a resident license in marriage and family therapy, the following shall apply:

1. A resident license shall expire annually in the month the license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-50-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing marriage and family therapy.

3. On the annual renewal, residents in marriage and family therapy shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-50-96.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. After the renewal date, the license is expired; practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-50)

Licensure Application - Marriage and Family Therapist, MFT Form 2 (rev. 2/2011)

Verification of Licensure, MFT Form 2-VL (rev. 2/2011)

Verification of Supervision – Post-Graduate Degree Supervised Experience, MFT Form 2-VS (rev. 2/2011)

Licensure Verification of Out-of-State Supervisor, MFT Form 1-LV (rev. 2/2011)

Quarterly Evaluation, MFT Form 1-QE (rev. 2/2011)

Coursework Outline Form, MFT Form 2-CO (rev. 2/2011)

Verification of Internship, MFT Form 2-VI (rev. 2/2011)

Verification of Internship Hours Towards the Residency, MFT Form 2-IR (rev. 2/2011)

Supervision Outline - Examination Applicants Only, MFT Form 2-SO (rev. 2/2011)

Verification of Clinical Practice 5 of Last 6 Years Immediately Preceding Submission for Application of Licensure, Endorsement Applicants Only, Form MFT-ECP (rev. 2/2011)

Registration of Supervision - Post Graduate Degree Supervised Experience, MFT Form 1 (rev. 2/2011)

Application for Reinstatement of a Lapsed License (rev. 8/2007)

Continuing Education Summary Form (LMFT) (rev. 3/2009)

Applications Instructions - Temporary Licensure as a Resident in Marriage and Family Therapy (rev. 12/2019)

Part I
General Provisions

18VAC115-60-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia:

"Board"

"Licensed substance abuse treatment practitioner"

"Substance abuse"

"Substance abuse treatment"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary services" means activities such as case management, recordkeeping, referral, and coordination of services.

"Applicant" means any individual who has submitted an official application and paid the application fee for licensure as a substance abuse treatment practitioner.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"Candidate for licensure" means a person who has satisfactorily completed all educational and experience requirements for licensure and has been deemed eligible by the board to sit for its examinations.

"Clinical substance abuse treatment services" means activities such as assessment, diagnosis, treatment planning, and treatment implementation.

"COAMFTE" means the Commission on Accreditation for Marriage and Family Therapy Education.

"Competency area" means an area in which a person possesses knowledge and skill and the ability to apply them in the clinical setting.

"Exempt setting" means an agency or institution in which licensure is not required to engage in the practice of substance abuse treatment according to the conditions set forth in § 54.1-3501 of the Code of Virginia.

"Face-to-face" means the in-person delivery of clinical substance abuse treatment services for a client.

"Group supervision" means the process of clinical supervision of no more than six persons in a group setting provided by a qualified supervisor.

"Internship" means a formal academic course from a regionally accredited university in which supervised, practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Jurisdiction" means a state, territory, district, province, or country which that has granted a professional certificate or license to practice a profession, use a professional title, or hold oneself out as a practitioner of that profession.

"Nonexempt setting" means a setting which that does not meet the conditions of exemption from the requirements of licensure to engage in the practice of substance abuse treatment as set forth in § 54.1-3501 of the Code of Virginia.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education responsible for accrediting senior postsecondary institutions.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract and has received board approval been issued a temporary license by the board to provide clinical services in substance abuse treatment under supervision.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented individual or group consultation, guidance, and instruction with respect to the clinical skills and competencies of the person supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-60-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a substance abuse treatment practitioner or resident in substance abuse treatment:

Registration of supervision (initial) Application and initial licensure as a resident in substance abuse treatment	$65
Add/change supervisor Pre-review of education only	$30 $75
Initial licensure by examination: Processing and initial licensure as a substance abuse treatment practitioner	$175
Initial licensure by endorsement: Processing and initial licensure as a substance abuse treatment practitioner	$175
Active annual license renewal for a substance abuse treatment practitioner	$130
Inactive annual license renewal for a substance abuse treatment practitioner	$65
Annual renewal for resident in substance abuse treatment	$30
Duplicate license	$10
Verification of license to another jurisdiction	$30
Late renewal for a substance abuse treatment practitioner	$45
Late renewal for a resident in substance abuse treatment	$10
Reinstatement of a lapsed license of a substance abuse treatment practitioner	$200
Replacement of or additional wall certificate	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

Part II
Requirements for Licensure as a Substance Abuse Treatment Practitioner

18VAC115-60-40. Application for licensure by examination.

Every applicant for licensure by examination by the board shall:

1. Meet the degree program, coursework, and experience requirements prescribed in 18VAC115-60-60, 18VAC115-60-70, and 18VAC115-60-80;

2. Pass the examination required for initial licensure as prescribed in 18VAC115-60-90;

3. Submit the following items to the board:

a. A completed application;

b. Official transcripts documenting the applicant's completion of the degree program and coursework requirements prescribed in 18VAC115-60-60 and 18VAC115-60-70. Transcripts previously submitted for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

c. Verification of supervision forms documenting fulfillment of the residency requirements of 18VAC115-60-80 and copies of all required evaluation forms, including verification of current licensure of the supervisor of any portion of the residency occurred in another jurisdiction;

d. Documentation of any other mental health or health professional license or certificate ever held in another jurisdiction;

e. The application processing and initial licensure fee as prescribed in 18VAC115-60-20; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-60-80. Residency Resident license and requirements for a residency.

A. Registration Licensure. Applicants who render for a temporary resident license in substance abuse treatment services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing substance abuse treatment services;

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-60-60 to include completion of the coursework and internship requirement specified in 18VAC115-60-70; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Applicants who are beginning their residencies in exempt settings shall register supervision with the board to assure acceptability at the time of application.

C. Residency requirements.

1. The applicant for licensure as a substance abuse treatment practitioner shall have completed no fewer than 3,400 hours in a supervised residency in substance abuse treatment with various populations, clinical problems and theoretical approaches in the following areas:

a. Clinical evaluation;

b. Treatment planning, documentation, and implementation;

c. Referral and service coordination;

d. Individual and group counseling and case management;

e. Client family and community education; and

f. Professional and ethical responsibility.

2. The residency shall include a minimum of 200 hours of in-person supervision between supervisor and resident occurring at a minimum of one hour and a maximum of four hours per 40 hours of work experience during the period of the residency.

a. No more than half of these hours may be satisfied with group supervision.

b. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

c. Supervision that is not concurrent with a residency will not be accepted, nor will residency hours be accrued in the absence of approved supervision.

d. For the purpose of meeting the 200-hour supervision requirement, in-person supervision may include the use of technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident.

e. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed professional counselor.

3. The residency shall include at least 2,000 hours of face-to-face client contact in providing clinical substance abuse treatment services with individuals, families, or groups of individuals suffering from the effects of substance abuse or dependence. The remaining hours may be spent in the performance of ancillary services.

4. A graduate level degree internship in excess of 600 hours, which is completed in a program that meets the requirements set forth in 18VAC115-60-70, may count for up to an additional 300 hours towards toward the requirements of a residency.

5. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-60-110 in order to maintain a license in current, active status.

6. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability which that limits the resident's access to qualified supervision.

7. Residents may not call themselves substance abuse treatment practitioners, directly bill for services rendered, or in any way represent themselves as independent, autonomous practitioners or substance abuse treatment practitioners. During the residency, residents shall use their names and the initials of their degree, their resident license number, and the title "Resident in Substance Abuse Treatment" in all written communications. Clients shall be informed in writing of the resident's status, that the resident does not have authority for independent practice and is under supervision and shall provide the supervisor's name, professional address, and telephone number.

8. Residents shall not engage in practice under supervision in any areas for which they have not had appropriate education.

9. Residency hours that are approved by the licensing board in another United States jurisdiction and that meet the requirements of this section shall be accepted.

D. Supervisory qualifications.

1. A person who provides supervision for a resident in substance abuse treatment shall hold an active, unrestricted license as a professional counselor or substance abuse treatment practitioner in the jurisdiction where the supervision is being provided. Supervisors who are marriage and family therapists, school psychologists, clinical psychologists, clinical social workers, clinical nurse specialists, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

2. All supervisors shall document two years post-licensure substance abuse treatment experience and at least 100 hours of didactic instruction in substance abuse treatment. Supervisors must document a three-credit-hour course in supervision, a 4.0-quarter-hour course in supervision, or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-60-116.

E. Supervisory responsibilities.

1. Supervision by any individual whose relationship to the resident compromises the objectivity of the supervisor is prohibited.

2. The supervisor of a resident shall assume full responsibility for the clinical activities of that resident specified within the supervisory contract for the duration of the residency.

3. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period.

4. The supervisor shall report the total hours of residency and shall evaluate the applicant's competency in the six areas stated in subdivision C 1 of this section.

F. Documentation of supervision. Applicants shall document successful completion of their residency on the Verification of Supervision form at the time of application. Applicants must receive a satisfactory competency evaluation on each item on the evaluation sheet.

Part III
Examinations

18VAC115-60-90. General examination requirements; schedules; time limits.

A. Every applicant for initial licensure as a substance abuse treatment practitioner by examination shall pass a written examination as prescribed by the board. Such applicant is required to pass the prescribed examination within six years from the date of initial issuance of a resident license by the board.

B. Every applicant for licensure as a substance abuse treatment practitioner by endorsement shall have passed a substance abuse examination deemed by the board to be substantially equivalent to the Virginia examination.

C. The examination is waived for an applicant who holds a current and unrestricted license as a professional counselor issued by the board.

D. A candidate approved by the board to sit for the examination shall pass the examination within two years from the date of such initial board approval. If the candidate has not passed the examination within two years from the date of initial approval:

1. The initial board approval to sit for the examination shall then become invalid; and

2. The applicant shall file a complete new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the applicant shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

E. D. The board shall establish a passing score on the written examination.

F. A candidate for examination or an applicant shall not provide clinical services unless he is under supervision approved by the board. E. A resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a substance abuse treatment practitioner.

Part IV
Licensure Renewal; Reinstatement

18VAC115-60-110. Renewal of licensure.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. Every license holder substance abuse treatment practitioner who intends to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-60-20.

C. B. A licensee substance abuse treatment practitioner who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-60-20. No person shall practice substance abuse treatment in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in subsection C of 18VAC115-60-120 C.

C. For renewal of a resident license in substance abuse treatment, the following shall apply:

1. A resident license shall expire annually in the month the resident license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-60-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing substance abuse treatment services.  

3. On the annual renewal, residents in substance abuse treatment shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-60-116.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. After the renewal date, the license is expired; practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-60)

Licensure Application, Licensed Substance Abuse Treatment Practitioner, LSATP Form 2 (rev. 1/2011)

Verification of Licensure, Form LSATP 2-VL (rev. 1/2011)

Verification of Supervision – Post Graduate Degree Supervised Experience, LSATP 2-VS (rev. 1/2011)

Supervisor's Experience and Education (rev. 1/2011)

Licensure Verification of Out-of-State Supervisor, LSATP Form 1-LV (rev. 1/2011)

Coursework Outline Form, Form LSATP 2-CO (rev. 1/2011)

Verification of Internship, Form LSATP 2-VI (rev. 1/2011)

Verification of Internship Hours Towards the Residency, Form LSATP 2-IR (rev. 1/2011)

Registration of Supervision – Post Graduate Degree Supervised Experience, LSATP Form 1 (rev. 1/2011)

Quarterly Evaluation Form, LSATP Form 1-QE (rev. 1/2011)

Supervision Outline Form – Examination Applicants Only, Form LSATP 2-SO (rev. 1/2011).

Verification of Post-Licensure Clinical Practice, Endorsement Applicants Only, Form LSATP-ECP (rev. 1/2011)

Licensed Substance Abuse Treatment Practitioner Application for Reinstatement of a Lapsed Certificate (rev. 7/2011)

Continuing Education Summary Form (LSATP) (rev. 3/2009)

Application Instructions for Temporary Licensure as a Resident in Substance Abuse Treatment (rev. 12/2019)

Titles of Regulations: 18VAC115-20. Regulations Governing the Practice of Professional Counseling (amending 18VAC115-20-10, 18VAC115-20-20, 18VAC115-20-40, 18VAC115-20-52, 18VAC115-20-70, 18VAC115-20-100).

18VAC115-50. Regulations Governing the Practice of Marriage and Family Therapy (amending 18VAC115-50-10, 18VAC115-50-20, 18VAC115-50-30, 18VAC115-50-60, 18VAC115-50-70, 18VAC115-50-90).

18VAC115-60. Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners (amending 18VAC115-60-10, 18VAC115-60-20, 18VAC115-60-40, 18VAC115-60-80, 18VAC115-60-90, 18VAC115-60-110).

Statutory Authority: §§ 54.1-2400 and 54.1-3505 of the Code of Virginia.

Effective Dates: December 23, 2019, through June 22, 2021.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Preamble:

Section 2.2-4011 B of the Code of Virginia states that agencies may adopt emergency regulations in situations in which Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment, and the regulation is not exempt under the provisions of § 2.2-4006 A 4 of the Code of Virginia.

Amendments provide for the issuance of a temporary license for a residency in counseling for professional counselors, marriage and family therapists, and substance abuse treatment practitioners, including (i) setting fees for initial and renewal of a resident license, (ii) establishing qualifications for the issuance of a license and for its renewal, (iii) limiting the number of times a resident may renew the temporary license, and (iv) setting a time limit for passage of the licensing examination.

Part I
General Provisions

18VAC115-20-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia:

"Board"

"Counseling"

"Professional counselor"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary counseling services" means activities such as case management, recordkeeping, referral, and coordination of services.

"Applicant" means any individual who has submitted an official application and paid the application fee for licensure as a professional counselor.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"Candidate for licensure" means a person who has satisfactorily completed all educational and experience requirements for licensure and has been deemed eligible by the board to sit for its examinations.

"Clinical counseling services" means activities such as assessment, diagnosis, treatment planning, and treatment implementation.

"Competency area" means an area in which a person possesses knowledge and skill and the ability to apply them in the clinical setting.

"CORE" means Council on Rehabilitation Education.

"Exempt setting" means an agency or institution in which licensure is not required to engage in the practice of counseling according to the conditions set forth in § 54.1-3501 of the Code of Virginia.

"Face-to-face" means the in-person delivery of clinical counseling services for a client.

"Group supervision" means the process of clinical supervision of no more than six persons in a group setting provided by a qualified supervisor.

"Internship" means a formal academic course from a regionally accredited college or university in which supervised, practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Jurisdiction" means a state, territory, district, province, or country that has granted a professional certificate or license to practice a profession, use a professional title, or hold oneself out as a practitioner of that profession.

"Nonexempt setting" means a setting that does not meet the conditions of exemption from the requirements of licensure to engage in the practice of counseling as set forth in § 54.1-3501 of the Code of Virginia.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education responsible for accrediting senior postsecondary institutions.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract and has received board approval been issued a temporary license by the board to provide clinical services in professional counseling under supervision.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented individual or group consultation, guidance, and instruction that is specific to the clinical counseling services being performed with respect to the clinical skills and competencies of the person supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-20-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a professional counselor or a resident in counseling:

Active annual license renewal	$130
Inactive annual license renewal	$65
Initial licensure by examination: Application processing and initial licensure as a professional counselor	$175
Initial licensure by endorsement: Application processing and initial licensure as a professional counselor	$175
Registration of supervision Application and initial licensure as a resident in counseling	$65
Add or change supervisor Pre-review of education only	$30 $75
Duplicate license	$10
Verification of licensure to another jurisdiction	$30
Active annual license renewal for a professional counselor	$130
Inactive annual license renewal for a professional counselor	$65
Annual renewal for resident in counseling	$30
Late renewal for a professional counselor	$45
Late renewal for a resident in counseling	$10
Reinstatement of a lapsed license for a professional counselor	$200
Reinstatement following revocation or suspension	$600
Replacement of or additional wall certificate	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

Part II
Requirements for Licensure as a Professional Counselor

18VAC115-20-40. Prerequisites for licensure by examination.

Every applicant for licensure examination by the board shall:

1. Meet the degree program requirements prescribed in 18VAC115-20-49, the course work coursework requirements prescribed in 18VAC115-20-51, and the experience requirements prescribed in 18VAC115-20-52;

2. Pass the licensure examination specified by the board;

3. Submit the following to the board:

a. A completed application;

b. Official transcripts documenting the applicant's completion of the degree program and coursework requirements prescribed in 18VAC115-20-49 and 18VAC115-20-51. Transcripts previously submitted for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

c. Verification of Supervision supervision forms documenting fulfillment of the residency requirements of 18VAC115-20-52 and copies of all required evaluation forms, including verification of current licensure of the supervisor if any portion of the residency occurred in another jurisdiction;

d. Verification of any other mental health or health professional license or certificate ever held in another jurisdiction;

e. The application processing and initial licensure fee as prescribed in 18VAC115-20-20; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-20-52. Residency Resident license and requirements for a residency.

A. Registration Resident license. Applicants who render for temporary licensure as a resident in counseling services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the clinical supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing clinical counseling services;

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-20-49 to include completion of the coursework and internship requirement specified in 18VAC115-20-51; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Residency requirements.

1. The applicant for licensure as a professional counselor shall have completed a 3,400-hour supervised residency in the role of a professional counselor working with various populations, clinical problems, and theoretical approaches in the following areas:

a. Assessment and diagnosis using psychotherapy techniques;

b. Appraisal, evaluation, and diagnostic procedures;

c. Treatment planning and implementation;

d. Case management and recordkeeping;

e. Professional counselor identity and function; and

f. Professional ethics and standards of practice.

2. The residency shall include a minimum of 200 hours of in-person supervision between supervisor and resident in the consultation and review of clinical counseling services provided by the resident. Supervision shall occur at a minimum of one hour and a maximum of four hours per 40 hours of work experience during the period of the residency. For the purpose of meeting the 200-hour supervision requirement, in-person may include the use of secured technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed professional counselor.

3. No more than half of the 200 hours may be satisfied with group supervision. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

4. Supervision that is not concurrent with a residency will not be accepted, nor will residency hours be accrued in the absence of approved supervision.

5. The residency shall include at least 2,000 hours of face-to-face client contact in providing clinical counseling services. The remaining hours may be spent in the performance of ancillary counseling services.

6. A graduate-level internship in excess of 600 hours, which was completed in a program that meets the requirements set forth in 18VAC115-20-49, may count for up to an additional 300 hours towards toward the requirements of a residency.

7. Supervised practicum and internship hours in a CACREP-accredited doctoral counseling program may be accepted for up to 900 hours of the residency requirement and up to 100 of the required hours of supervision provided the supervisor holds a current, unrestricted license as a professional counselor.

8. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-20-100 in order to maintain a license in current, active status.

9. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability that limits the resident's access to qualified supervision.

10. Residents may not call themselves professional counselors, directly bill for services rendered, or in any way represent themselves as independent, autonomous practitioners or professional counselors. During the residency, residents shall use their names and the initials of their degree, their resident license number, and the title "Resident in Counseling" in all written communications. Clients shall be informed in writing of the resident's status that the resident does not have authority for independent practice and is under supervision and shall provide the supervisor's name, professional address, and phone number.

11. Residents shall not engage in practice under supervision in any areas for which they have not had appropriate education.

12. Residency hours approved by the licensing board in another United States jurisdiction that meet the requirements of this section shall be accepted.

C. Supervisory qualifications. A person who provides supervision for a resident in professional counseling shall:

1. Document two years of post-licensure clinical experience;

2. Have received professional training in supervision, consisting of three credit hours or 4.0 quarter hours in graduate-level coursework in supervision or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-20-106; and

3. Hold an active, unrestricted license as a professional counselor or a marriage and family therapist in the jurisdiction where the supervision is being provided. At least 100 hours of the supervision shall be rendered by a licensed professional counselor. Supervisors who are substance abuse treatment practitioners, school psychologists, clinical psychologists, clinical social workers, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

D. Supervisory responsibilities.

1. Supervision by any individual whose relationship to the resident compromises the objectivity of the supervisor is prohibited.

2. The supervisor of a resident shall assume full responsibility for the clinical activities of that resident specified within the supervisory contract for the duration of the residency.

3. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period.

4. The supervisor shall report the total hours of residency and shall evaluate the applicant's competency in the six areas stated in subdivision B 1 of this section.

5. The supervisor shall provide supervision as defined in 18VAC115-20-10.

E. Applicants shall document successful completion of their residency on the Verification of Supervision Form at the time of application. Applicants must receive a satisfactory competency evaluation on each item on the evaluation sheet. Supervised experience obtained prior to April 12, 2000, may be accepted toward licensure if this supervised experience met the board's requirements that were in effect at the time the supervision was rendered.

Part III
Examinations

18VAC115-20-70. General examination requirements; schedules; time limits.

A. Every applicant for initial licensure by examination by the board as a professional counselor shall pass a written examination as prescribed by the board. An applicant is required to have passed the prescribed examination within six years from the date of initial issuance of a resident license by the board.

B. Every applicant for licensure by endorsement shall have passed a licensure examination in the jurisdiction in which licensure was obtained.

C. A candidate approved to sit for the examination shall pass the examination within two years from the date of such initial approval. If the candidate has not passed the examination by the end of the two-year period here prescribed:

1. The initial approval to sit for the examination shall then become invalid; and

2. The applicant shall file a new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the applicant shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

D. C. The board shall establish a passing score on the written examination.

E. D. A candidate for examination or an applicant shall not provide clinical counseling services unless he is under supervision approved by the board resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a professional counselor.

Part IV
Licensure Renewal; Reinstatement

18VAC115-20-100. Annual renewal of licensure.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. Every license holder licensed professional counselor who intends to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-20-20.

C. B. A licensee licensed professional counselor who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-20-20. No person shall practice counseling in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in subsection C of 18VAC115-20-110 C.

C. For renewal of a resident license in counseling, the following shall apply:

1. A resident license shall expire annually in the month the resident license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-20-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing clinical counseling services.

3. On the annual renewal, the resident in counseling shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-20-106.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. Practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-20)

Registration of Supervision - Post Graduate Degree Supervised Experience, LPC Form 1 (rev. 2/2011)

Quarterly Evaluation, LPC Form 1-QE (rev. 2/2011)

Licensure Verification of Out-of-State Supervisor, LPC Form 1-LV (rev. 2/2011)

Licensure Application, LPC Form 2 (rev. 2/2011)

Verification of Supervision – Post-Graduate Degree Supervised Experience, LPC Form 2-VS (rev. 2/2011)

Coursework Outline Form, LPC Form 2-CO (rev. 2/2011)

Verification of Internship Hours Towards the Residency, LPC Form 2-IR (rev. 2/2011)

Verification of Internship, LPC Form 2-VI (rev. 2/2011)

Verification of Licensure, LPC Form 2-VL (rev. 2/2011)

Supervision Outline - Examination Applicants Only, LPC Form 2-SO (rev. 2/2011)

Verification of Clinical Practice, 5 of Last 6 Years Immediately Preceding Submission of Application for Licensure, LPC Form-ECP (rev. 2/2011)

Continuing Education Summary Form (LPC) (rev. 3/2009)

Application for Reinstatement of a Lapsed License (rev. 8/2007)

Application for Reinstatement of a Revoked, Suspended, or Surrendered License (rev. 8/2007)

Application Instructions for Temporary Licensure as a Resident in Counseling (rev. 12/2019)

18VAC115-50-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia: (i) "board," (ii) "marriage and family therapy," (iii) "marriage and family therapist," and (iv) "practice of marriage and family therapy."

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary counseling services" means activities such as case management, recordkeeping, referral, and coordination of services.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"COAMFTE" means the Commission on Accreditation for Marriage and Family Therapy Education.

"Clinical marriage and family services" means activities such as assessment, diagnosis, and treatment planning and treatment implementation for couples and families.

"Face-to-face" means the in-person delivery of clinical marriage and family services for a client.

"Internship" means a formal academic course from a regionally accredited university in which supervised practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education as responsible for accrediting senior post-secondary institutions and training programs.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract to the board and has received been issued a temporary license by the board approval to provide clinical services in marriage and family therapy under supervision.

"Supervision" means an ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented, individual or group consultation, guidance, and instruction with respect to the clinical skills and competencies of the person or persons being supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-50-20. Fees.

A. The board has established fees for the following:

Registration of supervision Application and initial licensure as a resident	$65
Add or change supervisor Pre-review of education only	$30 $75
Initial licensure by examination: Processing and initial licensure as a marriage and family therapist	$175
Initial licensure by endorsement: Processing and initial licensure as a marriage and family therapist	$175
Active annual license renewal for a marriage and family therapist	$130
Inactive annual license renewal for a marriage and family therapist	$65
Annual renewal for resident in marriage and family therapy	$30
Penalty for late renewal for a marriage and family therapist	$45
Late renewal for resident in marriage and family therapy	$10
Reinstatement of a lapsed license for a marriage and family therapist	$200
Verification of license to another jurisdiction	$30
Additional or replacement licenses	$10
Additional or replacement wall certificates	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

18VAC115-50-30. Application for licensure as a marriage and family therapist by examination.

Every applicant for licensure by examination by the board shall:

1. Meet the education and experience requirements prescribed in 18VAC115-50-50, 18VAC115-50-55, and 18VAC115-50-60;

2. Meet the examination requirements prescribed in 18VAC115-50-70;

3. Submit to the board office the following items:

a. A completed application;

b. The application processing and initial licensure fee prescribed in 18VAC115-50-20;

c. Documentation, on the appropriate forms, of the successful completion of the residency requirements of 18VAC115-50-60 along with documentation of the supervisor's out-of-state license where applicable;

d. Official transcript or transcripts submitted from the appropriate institutions of higher education, verifying satisfactory completion of the education requirements set forth in 18VAC115-50-50 and 18VAC115-50-55. Previously submitted transcripts for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

e. Verification on a board-approved form of any mental health or health out-of-state license, certification, or registration ever held in another jurisdiction; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-50-60. Residency Resident license and requirements for a residency.

A. Registration Resident license. Applicants who render for temporary licensure as a resident in marriage and family therapy services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing marriage and family services.

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-50-50 to include completion of the coursework and internship requirement specified in 18VAC115-50-55; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Residency requirements.

1. The applicant for licensure as a marriage and family therapist shall have completed no fewer than 3,400 hours of supervised residency in the role of a marriage and family therapist, to include 200 hours of in-person supervision with the supervisor in the consultation and review of marriage and family services provided by the resident. For the purpose of meeting the 200 hours of supervision required for a residency, in-person may also include the use of technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident. At least one-half of the 200 hours of supervision shall be rendered by a licensed marriage and family therapist.

a. Residents shall receive a minimum of one hour and a maximum of four hours of supervision for every 40 hours of supervised work experience.

b. No more than 100 hours of the supervision may be acquired through group supervision, with the group consisting of no more than six residents. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

c. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed marriage and family therapist or a licensed professional counselor.

2. The residency shall include documentation of at least 2,000 hours in clinical marriage and family services of which 1,000 hours shall be face-to-face client contact with couples or families or both. The remaining hours may be spent in the performance of ancillary counseling services. For applicants who hold current, unrestricted licensure as a professional counselor, clinical psychologist, or clinical social worker, the remaining hours may be waived.

3. The residency shall consist of practice in the core areas set forth in 18VAC115-50-55.

4. The residency shall begin after the completion of a master's degree in marriage and family therapy or a related discipline as set forth in 18VAC115-50-50.

5. A graduate-level internship in excess of 600 hours, which was completed in a program that meets the requirements set forth in 18VAC115-50-50, may count for up to an additional 300 hours towards toward the requirements of a residency.

6. Supervised practicum and internship hours in a COAMFTE-accredited or a CACREP-accredited doctoral program in marriage and family therapy or counseling may be accepted for up to 900 hours of the residency requirement and up to 100 of the required hours of supervision provided the supervisor holds a current, unrestricted license as a marriage and family therapist or professional counselor.

7. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability which that limits the resident's access to qualified supervision.

8. Residents shall not call themselves marriage and family therapists, directly bill for services rendered, or in any way represent themselves as marriage and family therapists. During the residency, residents may use their names, the initials of their degree, their resident license number, and the title "Resident in Marriage and Family Therapy." Clients shall be informed in writing of the resident's status that the resident does not have authority for independent practice and is under supervision, along with the name, address, and telephone number of the resident's supervisor.

9. Residents shall not engage in practice under supervision in any areas for which they do not have appropriate education.

10. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-50-90 in order to maintain a resident license in current, active status.

11. Residency hours that are approved by the licensing board in another United States jurisdiction and that meet the requirements of this section shall be accepted.

C. Supervisory qualifications. A person who provides supervision for a resident in marriage and family therapy shall:

1. Hold an active, unrestricted license as a marriage and family therapist or professional counselor in the jurisdiction where the supervision is being provided;

2. Document two years post-licensure marriage and family therapy experience; and

3. Have received professional training in supervision, consisting of three credit hours or 4.0 quarter hours in graduate-level coursework in supervision or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-50-96. At least one-half of the 200 hours of supervision shall be rendered by a licensed marriage and family therapist. Supervisors who are clinical psychologists, clinical social workers, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

D. Supervisory responsibilities.

1. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period. The supervisor shall report the total hours of residency and evaluate the applicant's competency to the board.

2. Supervision by an individual whose relationship to the resident is deemed by the board to compromise the objectivity of the supervisor is prohibited.

3. The supervisor shall provide supervision as defined in 18VAC115-50-10 and shall assume full responsibility for the clinical activities of residents as specified within the supervisory contract, for the duration of the residency.

18VAC115-50-70. General examination requirements.

A. All applicants for initial licensure shall pass an examination, as prescribed by the board, with a passing score as determined by the board. The examination is waived for an applicant who holds a current and unrestricted license as a professional counselor issued by the board.

B. The examination shall concentrate on the core areas of marriage and family therapy set forth in subsection A of 18VAC115-50-55 An applicant is required to pass the prescribed examination within six years from the date of initial issuance of a resident license by the board.

C. A candidate approved to sit for the examination shall pass the examination within two years from the initial notification date of approval. If the candidate has not passed the examination within two years from the date of initial approval:

1. The initial approval to sit for the examination shall then become invalid; and

2. The applicant shall file a new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the candidate shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

D. Applicants or candidates for examination shall not provide marriage and family services unless they are under supervision approved by the board C. A resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a marriage and family therapist.

18VAC115-50-90. Annual renewal of license.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. All licensees licensed marriage and family therapists who intend to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-50-20.

C. B. A licensee licensed marriage and family therapist who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-50-20. No person shall practice marriage and family therapy in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in 18VAC115-50-100 C.

C. For renewal of a resident license in marriage and family therapy, the following shall apply:

1. A resident license shall expire annually in the month the license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-50-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing marriage and family therapy.

3. On the annual renewal, residents in marriage and family therapy shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-50-96.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. After the renewal date, the license is expired; practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-50)

Licensure Application - Marriage and Family Therapist, MFT Form 2 (rev. 2/2011)

Verification of Licensure, MFT Form 2-VL (rev. 2/2011)

Verification of Supervision – Post-Graduate Degree Supervised Experience, MFT Form 2-VS (rev. 2/2011)

Licensure Verification of Out-of-State Supervisor, MFT Form 1-LV (rev. 2/2011)

Quarterly Evaluation, MFT Form 1-QE (rev. 2/2011)

Coursework Outline Form, MFT Form 2-CO (rev. 2/2011)

Verification of Internship, MFT Form 2-VI (rev. 2/2011)

Verification of Internship Hours Towards the Residency, MFT Form 2-IR (rev. 2/2011)

Supervision Outline - Examination Applicants Only, MFT Form 2-SO (rev. 2/2011)

Verification of Clinical Practice 5 of Last 6 Years Immediately Preceding Submission for Application of Licensure, Endorsement Applicants Only, Form MFT-ECP (rev. 2/2011)

Registration of Supervision - Post Graduate Degree Supervised Experience, MFT Form 1 (rev. 2/2011)

Application for Reinstatement of a Lapsed License (rev. 8/2007)

Continuing Education Summary Form (LMFT) (rev. 3/2009)

Applications Instructions - Temporary Licensure as a Resident in Marriage and Family Therapy (rev. 12/2019)

Part I
General Provisions

18VAC115-60-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia:

"Board"

"Licensed substance abuse treatment practitioner"

"Substance abuse"

"Substance abuse treatment"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Ancillary services" means activities such as case management, recordkeeping, referral, and coordination of services.

"Applicant" means any individual who has submitted an official application and paid the application fee for licensure as a substance abuse treatment practitioner.

"CACREP" means the Council for Accreditation of Counseling and Related Educational Programs.

"Candidate for licensure" means a person who has satisfactorily completed all educational and experience requirements for licensure and has been deemed eligible by the board to sit for its examinations.

"Clinical substance abuse treatment services" means activities such as assessment, diagnosis, treatment planning, and treatment implementation.

"COAMFTE" means the Commission on Accreditation for Marriage and Family Therapy Education.

"Competency area" means an area in which a person possesses knowledge and skill and the ability to apply them in the clinical setting.

"Exempt setting" means an agency or institution in which licensure is not required to engage in the practice of substance abuse treatment according to the conditions set forth in § 54.1-3501 of the Code of Virginia.

"Face-to-face" means the in-person delivery of clinical substance abuse treatment services for a client.

"Group supervision" means the process of clinical supervision of no more than six persons in a group setting provided by a qualified supervisor.

"Internship" means a formal academic course from a regionally accredited university in which supervised, practical experience is obtained in a clinical setting in the application of counseling principles, methods, and techniques.

"Jurisdiction" means a state, territory, district, province, or country which that has granted a professional certificate or license to practice a profession, use a professional title, or hold oneself out as a practitioner of that profession.

"Nonexempt setting" means a setting which that does not meet the conditions of exemption from the requirements of licensure to engage in the practice of substance abuse treatment as set forth in § 54.1-3501 of the Code of Virginia.

"Regional accrediting agency" means one of the regional accreditation agencies recognized by the U.S. Secretary of Education responsible for accrediting senior postsecondary institutions.

"Residency" means a postgraduate, supervised, clinical experience registered with the board.

"Resident" means an individual who has submitted a supervisory contract and has received board approval been issued a temporary license by the board to provide clinical services in substance abuse treatment under supervision.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented individual or group consultation, guidance, and instruction with respect to the clinical skills and competencies of the person supervised.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and resident in accordance with regulations of the board.

18VAC115-60-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a substance abuse treatment practitioner or resident in substance abuse treatment:

Registration of supervision (initial) Application and initial licensure as a resident in substance abuse treatment	$65
Add/change supervisor Pre-review of education only	$30 $75
Initial licensure by examination: Processing and initial licensure as a substance abuse treatment practitioner	$175
Initial licensure by endorsement: Processing and initial licensure as a substance abuse treatment practitioner	$175
Active annual license renewal for a substance abuse treatment practitioner	$130
Inactive annual license renewal for a substance abuse treatment practitioner	$65
Annual renewal for resident in substance abuse treatment	$30
Duplicate license	$10
Verification of license to another jurisdiction	$30
Late renewal for a substance abuse treatment practitioner	$45
Late renewal for a resident in substance abuse treatment	$10
Reinstatement of a lapsed license of a substance abuse treatment practitioner	$200
Replacement of or additional wall certificate	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

Part II
Requirements for Licensure as a Substance Abuse Treatment Practitioner

18VAC115-60-40. Application for licensure by examination.

Every applicant for licensure by examination by the board shall:

1. Meet the degree program, coursework, and experience requirements prescribed in 18VAC115-60-60, 18VAC115-60-70, and 18VAC115-60-80;

2. Pass the examination required for initial licensure as prescribed in 18VAC115-60-90;

3. Submit the following items to the board:

a. A completed application;

b. Official transcripts documenting the applicant's completion of the degree program and coursework requirements prescribed in 18VAC115-60-60 and 18VAC115-60-70. Transcripts previously submitted for registration of supervision board approval of a resident license do not have to be resubmitted unless additional coursework was subsequently obtained;

c. Verification of supervision forms documenting fulfillment of the residency requirements of 18VAC115-60-80 and copies of all required evaluation forms, including verification of current licensure of the supervisor of any portion of the residency occurred in another jurisdiction;

d. Documentation of any other mental health or health professional license or certificate ever held in another jurisdiction;

e. The application processing and initial licensure fee as prescribed in 18VAC115-60-20; and

f. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

4. Have no unresolved disciplinary action against a mental health or health professional license or certificate held in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-60-80. Residency Resident license and requirements for a residency.

A. Registration Licensure. Applicants who render for a temporary resident license in substance abuse treatment services shall:

1. With their supervisor, register their supervisory contract on the appropriate forms for board approval before starting to practice under supervision Apply for licensure on a form provided by the board to include the following: (i) verification of a supervisory contract; (ii) the name and licensure number of the supervisor and location for the supervised practice; and (iii) an attestation that the applicant will be providing substance abuse treatment services;

2. Have submitted an official transcript documenting a graduate degree as that meets the requirements specified in 18VAC115-60-60 to include completion of the coursework and internship requirement specified in 18VAC115-60-70; and

3. Pay the registration fee;

4. Submit a current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration in Virginia or in another jurisdiction. The board will consider the history of disciplinary action on a case-by-case basis.

B. Applicants who are beginning their residencies in exempt settings shall register supervision with the board to assure acceptability at the time of application.

C. Residency requirements.

1. The applicant for licensure as a substance abuse treatment practitioner shall have completed no fewer than 3,400 hours in a supervised residency in substance abuse treatment with various populations, clinical problems and theoretical approaches in the following areas:

a. Clinical evaluation;

b. Treatment planning, documentation, and implementation;

c. Referral and service coordination;

d. Individual and group counseling and case management;

e. Client family and community education; and

f. Professional and ethical responsibility.

2. The residency shall include a minimum of 200 hours of in-person supervision between supervisor and resident occurring at a minimum of one hour and a maximum of four hours per 40 hours of work experience during the period of the residency.

a. No more than half of these hours may be satisfied with group supervision.

b. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

c. Supervision that is not concurrent with a residency will not be accepted, nor will residency hours be accrued in the absence of approved supervision.

d. For the purpose of meeting the 200-hour supervision requirement, in-person supervision may include the use of technology that maintains client confidentiality and provides real-time, visual contact between the supervisor and the resident.

e. Up to 20 hours of the supervision received during the supervised internship may be counted towards toward the 200 hours of in-person supervision if the supervision was provided by a licensed professional counselor.

3. The residency shall include at least 2,000 hours of face-to-face client contact in providing clinical substance abuse treatment services with individuals, families, or groups of individuals suffering from the effects of substance abuse or dependence. The remaining hours may be spent in the performance of ancillary services.

4. A graduate level degree internship in excess of 600 hours, which is completed in a program that meets the requirements set forth in 18VAC115-60-70, may count for up to an additional 300 hours towards toward the requirements of a residency.

5. The residency shall be completed in not less than 21 months or more than four years. Residents who began a residency before August 24, 2016, shall complete the residency by August 24, 2020. An individual who does not complete the residency after four years shall submit evidence to the board showing why the supervised experience should be allowed to continue. A resident shall meet the renewal requirements of subsection C of 18VAC115-60-110 in order to maintain a license in current, active status.

6. The board may consider special requests in the event that the regulations create an undue burden in regard to geography or disability which that limits the resident's access to qualified supervision.

7. Residents may not call themselves substance abuse treatment practitioners, directly bill for services rendered, or in any way represent themselves as independent, autonomous practitioners or substance abuse treatment practitioners. During the residency, residents shall use their names and the initials of their degree, their resident license number, and the title "Resident in Substance Abuse Treatment" in all written communications. Clients shall be informed in writing of the resident's status, that the resident does not have authority for independent practice and is under supervision and shall provide the supervisor's name, professional address, and telephone number.

8. Residents shall not engage in practice under supervision in any areas for which they have not had appropriate education.

9. Residency hours that are approved by the licensing board in another United States jurisdiction and that meet the requirements of this section shall be accepted.

D. Supervisory qualifications.

1. A person who provides supervision for a resident in substance abuse treatment shall hold an active, unrestricted license as a professional counselor or substance abuse treatment practitioner in the jurisdiction where the supervision is being provided. Supervisors who are marriage and family therapists, school psychologists, clinical psychologists, clinical social workers, clinical nurse specialists, or psychiatrists and have been approved to provide supervision may continue to do so until August 24, 2017.

2. All supervisors shall document two years post-licensure substance abuse treatment experience and at least 100 hours of didactic instruction in substance abuse treatment. Supervisors must document a three-credit-hour course in supervision, a 4.0-quarter-hour course in supervision, or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-60-116.

E. Supervisory responsibilities.

1. Supervision by any individual whose relationship to the resident compromises the objectivity of the supervisor is prohibited.

2. The supervisor of a resident shall assume full responsibility for the clinical activities of that resident specified within the supervisory contract for the duration of the residency.

3. The supervisor shall complete evaluation forms to be given to the resident at the end of each three-month period.

4. The supervisor shall report the total hours of residency and shall evaluate the applicant's competency in the six areas stated in subdivision C 1 of this section.

F. Documentation of supervision. Applicants shall document successful completion of their residency on the Verification of Supervision form at the time of application. Applicants must receive a satisfactory competency evaluation on each item on the evaluation sheet.

Part III
Examinations

18VAC115-60-90. General examination requirements; schedules; time limits.

A. Every applicant for initial licensure as a substance abuse treatment practitioner by examination shall pass a written examination as prescribed by the board. Such applicant is required to pass the prescribed examination within six years from the date of initial issuance of a resident license by the board.

B. Every applicant for licensure as a substance abuse treatment practitioner by endorsement shall have passed a substance abuse examination deemed by the board to be substantially equivalent to the Virginia examination.

C. The examination is waived for an applicant who holds a current and unrestricted license as a professional counselor issued by the board.

D. A candidate approved by the board to sit for the examination shall pass the examination within two years from the date of such initial board approval. If the candidate has not passed the examination within two years from the date of initial approval:

1. The initial board approval to sit for the examination shall then become invalid; and

2. The applicant shall file a complete new application with the board, meet the requirements in effect at that time, and provide evidence of why the board should approve the reapplication for examination. If approved by the board, the applicant shall pass the examination within two years of such approval. If the examination is not passed within the additional two-year period, a new application will not be accepted.

E. D. The board shall establish a passing score on the written examination.

F. A candidate for examination or an applicant shall not provide clinical services unless he is under supervision approved by the board. E. A resident shall remain in a residency practicing under supervision until the resident has passed the licensure examination and been granted a license as a substance abuse treatment practitioner.

Part IV
Licensure Renewal; Reinstatement

18VAC115-60-110. Renewal of licensure.

A. All licensees shall renew licenses on or before June 30 of each year.

B. A. Every license holder substance abuse treatment practitioner who intends to continue an active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the licensee attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-60-20.

C. B. A licensee substance abuse treatment practitioner who wishes to place his license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-60-20. No person shall practice substance abuse treatment in Virginia unless he holds a current active license. A licensee who has placed himself in inactive status may become active by fulfilling the reactivation requirements set forth in subsection C of 18VAC115-60-120 C.

C. For renewal of a resident license in substance abuse treatment, the following shall apply:

1. A resident license shall expire annually in the month the resident license was initially issued and may be renewed up to five times by submission of the renewal form and payment of the fee prescribed in 18VAC115-60-20.

2. On the annual renewal, the resident shall attest that a supervisory contract is in effect with a board-approved supervisor for each of the locations at which the resident is currently providing substance abuse treatment services.  

3. On the annual renewal, residents in substance abuse treatment shall attest to completion of three hours in continuing education courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia, offered by an approved provider as set forth in subsection B of 18VAC115-60-116.

D. Licensees shall notify the board of a change in the address of record or the public address, if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. After the renewal date, the license is expired; practice with an expired license is prohibited and may constitute grounds for disciplinary action.

FORMS (18VAC115-60)

Licensure Application, Licensed Substance Abuse Treatment Practitioner, LSATP Form 2 (rev. 1/2011)

Verification of Licensure, Form LSATP 2-VL (rev. 1/2011)

Verification of Supervision – Post Graduate Degree Supervised Experience, LSATP 2-VS (rev. 1/2011)

Supervisor's Experience and Education (rev. 1/2011)

Licensure Verification of Out-of-State Supervisor, LSATP Form 1-LV (rev. 1/2011)

Coursework Outline Form, Form LSATP 2-CO (rev. 1/2011)

Verification of Internship, Form LSATP 2-VI (rev. 1/2011)

Verification of Internship Hours Towards the Residency, Form LSATP 2-IR (rev. 1/2011)

Registration of Supervision – Post Graduate Degree Supervised Experience, LSATP Form 1 (rev. 1/2011)

Quarterly Evaluation Form, LSATP Form 1-QE (rev. 1/2011)

Supervision Outline Form – Examination Applicants Only, Form LSATP 2-SO (rev. 1/2011).

Verification of Post-Licensure Clinical Practice, Endorsement Applicants Only, Form LSATP-ECP (rev. 1/2011)

Licensed Substance Abuse Treatment Practitioner Application for Reinstatement of a Lapsed Certificate (rev. 7/2011)

Continuing Education Summary Form (LSATP) (rev. 3/2009)

Application Instructions for Temporary Licensure as a Resident in Substance Abuse Treatment (rev. 12/2019)