TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Proposed Regulation

Title of Regulation: 2VAC5-390. Rules and Regulations for the Enforcement of the Virginia Seed Law (adding 2VAC5-390-190).

Statutory Authority: § 3.2-4001 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 14, 2025.

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, TDD (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-4001 of the Code of Virginia authorizes the board to establish standards, such as minimum germination rates, for agricultural, vegetable, flower, tree and shrub, and lawn and turf seeds; mixtures of such seeds; and screenings sold in the Commonwealth.

Purpose: Over the past several years, Virginia's cotton growers have reported that planted cotton seed has had low germination rates. Low germination can negatively impact plant density and lead to a reduction in the yield of harvested cotton. The establishment of a minimum germination rate ensures that cotton seed meets or exceeds a minimum germination standard so that proper plant population density in the field can be achieved and maximum production realized. Without an established minimum cotton seed germination rate, cotton seed with substandard germination rates can be sold in the Commonwealth, thereby negatively impacting Virginia's cotton producers. Cotton seed sold in many cotton producing states in the Southeastern United States currently have regulations establishing a minimum germination rate. In most of these states, the minimum germination rate for cotton seed is 60% to 70%.

The proposed amendments protect the economic welfare of Virginia's cotton farmers by ensuring that cotton farmers are purchasing cotton seed that meets or exceeds an established minimum germination rate. The Code of Virginia currently requires the germination rate of each seed product sold in Virginia to be listed on the product's label; however, not all seed products have a minimum germination rate established in the regulation. Thus, cotton seed can currently be sold in Virginia at any germination rate, so long as that rate appears on the product's label and is accurate. Establishing a minimum germination rate for cotton seed will ensure that the cotton seed offered for sale in Virginia meets or exceeds 60%, thereby enabling Virginia's cotton growers to maximize cotton yield and profit.

Substance: The proposed amendments establish a minimum germination rate of 60% for cotton seed sold in Virginia. In addition, the proposed amendments allow cotton seed that does not meet the labeled germination rate for that seed to be relabeled and sold with the correct germination rate, as determined by germination tests conducted by the Department of Agriculture and Consumer Services Seed Laboratory, provided such germination rate is 60% or higher.

Issues: The primary advantages of the proposed amendments will be for Virginia cotton growers, most of whom are small businesses, as the proposed amendments will ensure that the cotton seeds that cotton growers purchase will meet or exceed a minimum germination standard, which will increase the grower plant population density and production. The proposed amendments would only disadvantage cotton seed sellers who offer for sale cotton seeds that fall below the minimum germination rate. The department does not expect requiring a minimum germination rate of 60% to appreciably change cotton seed seller business operations or production costs. Under the proposed amendments, cotton seed with mislabeled germination rates above 60% may be relabeled and sold with the correct germination rate, which would advantage both sellers and buyers. The proposed amendments have no disadvantages to the Commonwealth as the department already has the capacity to sample and conduct germination tests on agricultural seed sold in Virginia.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (board) proposes to (i) establish that cotton seeds sold in the Commonwealth must have a germination rate of at least 60% and (ii) state that cotton seed that tests below the germination rate stated on the label can be sold, provided that the tested germination rate is at least 60% and the seed is relabeled to indicate the actual germination rate.

Background. Section 3.2-4008 of the Code of Virginia requires the germination rate of each seed product sold in Virginia to be listed on the product's label.² According to the Virginia Department of Agriculture and Consumer Services (VDACS), Virginia cotton growers voiced concerns to the agency that they believe that the cotton seed that they are buying and planting is germinating at a substandard rate or that it is germinating at a rate below that which is labeled on the seed packaging. Virginia cotton growers also expressed their concern that most other cotton-growing states in the Southeastern United States require minimum germination rates for cotton, which may result in the offering for sale in Virginia of cotton seed that failed to meet the minimum germination requirements in those other states. In most of these states, the minimum germination rate for cotton seed is 60% to 70%. VDACS determined that the most appropriate means of addressing these concerns is utilizing the regulatory process to establish a minimum germination rate for cotton seed sold in Virginia. To determine if seed is in violation of the labeled germination rate, VDACS inspectors take samples of the seed when the seed is in a seed dealer's warehouse and before it has been distributed to farmers. The sample is submitted to the VDACS Seed Laboratory for analysis. Seed analysis for germination can take several weeks as laboratory staff complete the grow out germination tests. Once the germination tests are complete, seed that is in violation of the labeled germination rate and has not been distributed to growers is placed under stop sale. Such seed may be relabeled by the seed manufacturer with the new germination rate and sold or the seed can be returned to the seed manufacturer. Thus, stating in the regulation that cotton seeds that test below the germination rate stated on the label can be sold if the seeds are relabeled to indicate the actual germination rate reflects current policy, with the exception that seeds with true germination rates below 60% may no longer be sold under the proposed regulation. Though seed companies may sell cotton seeds that test below the germination rate stated on the label if the seeds are relabeled to indicate the actual germination rate, there is a penalty for selling seed at a germination rate below the labeled rate. The penalty assessment for variance from label guarantee is equivalent to one percent of the amount of money the person from whom the sample was taken receives from the sale of the seed or $100 (whichever is greater) on each lot of seed or portion found in violation.³

Estimated Benefits and Costs. The fine for selling cotton seeds that germinate at below the rate stated on the label is small and is not likely on its own to deter seed companies. Purchasing and planting seeds that have lower than anticipated germination is costly for cotton growers in that less cotton is produced than expected. The proposal to not allow the relabeling and sale of seeds that VDACS Seed Laboratory analysis indicates has germination below 60% disincentivizes seed sellers from selling substandard seeds in Virginia. Thus, cotton growers in Virginia may benefit.

Businesses and Other Entities Affected. The proposed amendments affect the approximate 245 cotton producers in Virginia, as well as the five cotton seed companies selling cotton seed in the Commonwealth.⁴ According to VDACS, all five cotton seed companies are based out of state. The agency estimates that all Virginia cotton producers are small businesses, but is unable to determine if the cotton seed companies are small businesses. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity based in the Commonwealth, even if the benefits exceed the costs for all entities combined.⁶ As no Virginia-based entity is specifically expected to have an increase in net cost or reduction in net benefit due to the proposed amendments,⁷ no adverse impact is indicated.

Small Businesses⁸ Affected.⁹ The proposed amendments do not appear to adversely affect Virginia small businesses.

Localities¹⁰ Affected.¹¹ The proposed amendments particularly affect the cotton-growing regions of Virginia, in particular the Cities of Chesapeake and Suffolk and the Counties of Accomack, Brunswick, Charles City, Dinwiddie, Greensville, Henrico, Isle of Wight, New Kent, Northampton, Prince George, Southampton, Surry, and Sussex.¹² No costs for local governments are expected.

Projected Impact on Employment. The proposed amendments do not appear likely to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposal may lead to more consistent, higher yielding cotton, which could increase the value of some cotton growing businesses. The proposed amendments do not affect real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title3.2/chapter40/section3.2-4008/.

³ See https://law.lis.virginia.gov/vacode/title3.2/chapter40/section3.2-4014/.

⁴ Data source: VDACS.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ It is possible that a Virginia cotton grower may wish to purchase seeds with below 60% germination rate if they are priced well below higher germinating seeds, but no such individual is specifically known, and the agency has indicated that at least most growers support the amendments. No objections were received at the Notice of Intended Regulatory Action stage.

⁸ Pursuant to § 2.2-4007.04, 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."

⁹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁰ "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.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹² Source: VDACS.

Agency Response to Economic Impact Analysis: The Department of Agriculture and Consumer Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments (i) establish a minimum germination rate of 60% for cotton seed sold in Virginia and (ii) allow cotton seed that does not meet the labeled germination rate for that seed to be relabeled and sold labeled with the correct germination rate, as determined by germination tests conducted by the Department of Agriculture and Consumer Services Seed Laboratory, provided such germination rate is 60% or higher.

2VAC5-390-190. Minimum germination standard for cotton seed.

A. Cotton for agricultural seed, as defined in § 3.2-4000 of the Code of Virginia, shall have a 60% minimum germination.

B. A licensee may relabel and distribute, sell, or offer for sale cotton for agricultural seed that is labeled in violation of § 3.2-4008 C 9 of the Code of Virginia if such seed is relabeled with the germination rate determined by the Department of Agriculture and Consumer Services.

TITLE 5. CORPORATIONS

STATE CORPORATION COMMISSION

Final Regulation

Title of Regulation: 5VAC5-30. Uniform Commercial Code Filing Rules (amending 5VAC5-30-20 through 5VAC5-30-70).

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

Effective Date: January 1, 2025.

Agency Contact: Bernard Logan, Clerk of the Commission, State Corporation Commission, 1300 East Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9834, or email bernard.logan@scc.virginia.gov.

Summary:

The amendments require that Uniform Commercial Code (UCC) records shall only be communicated to the Clerk of the Virginia State Corporation Commission by the electronic delivery method provided by the clerk, unless in the case of hardship or other good cause, in which case the clerk may, at the clerk's discretion, allow for the communication of a UCC record by a method other than electronic filing. The amendments include additional process revisions to update the regulation.

AT RICHMOND, NOVEMBER 15, 2024

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. CLK-2024-00005

Ex Parte: In the matter of Adopting Revisions

to Uniform Commercial Code Filing Rules

ORDER ADOPTING REGULATIONS

On August 20, 2024, the State Corporation Commission ("Commission") entered an Order Establishing Proceeding ("August 20, 2024 Order") regarding a proposal by the Office of the Clerk ("Clerk") to amend Title 5, Chapter 30 of the Virginia Administrative Code ("Chapter 30")¹ of the Commission's rules governing the filing and handling of Uniform Commercial Code ("UCC") records in the Clerk's Office of the Commission pursuant to Title 8.9A of the Code of Virginia ("Proposed Amendments").

The Clerk has recommended amendments to Chapter 30 that will require that UCC records shall only be tendered to the Clerk by the electronic delivery method provided by the Clerk, unless in the case of hardship or other good cause, in which case the Clerk may, at its discretion, allow for the communication of a UCC record by a method other than electronic filing. Additionally, the amendments include further process revisions to update the rules.

The Order Establishing Proceeding and the proposed amendments to Chapter 30 were posted on the Commission's website, provided to all interested persons, and published in the Virginia Register of Regulations on September 9, 2024. The Order Establishing Proceeding invited any interested persons to participate and required that any comments or requests for a hearing on the proposed amendments to Chapter 30 be submitted in writing on or before October 11, 2024. The Commission did not receive any comments or requests for a hearing. However, the Commission is aware that there were non-substantive differences between the Proposed Amendments set forth in the Order Establishing Proceeding and the version published in the Virginia Register of Regulations. These differences were due to a clerical error. The Final Rule adopted herein is consistent with the version published by the Commission in its August 20, 2024 Order.²

NOW THE COMMISSION, having considered this matter, concludes that the attached amendments to Chapter 30 should be adopted effective January 1, 2025.

Accordingly, IT IS ORDERED THAT:

(1) The amendments to Chapter 30, which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2025.

(2) The Clerk shall provide notice of the adopted amendments to Chapter 30 to any interested persons as the Clerk may designate.

(3) The Commission's Office of General Counsel shall provide a copy of this Order and the adopted amendments to Chapter 30 to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(4) Interested persons may download unofficial copies of this Order and the adopted amendments to Chapter 30 from the Commission's website: scc.virginia.gov/pages/Case-Information.

(5) This case is dismissed.

A COPY hereof shall be sent electronically 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 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424, MBrowder@oag.state.va.us; and a copy shall be delivered to the Commission's Office of General Counsel.

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5VAC5-30-20. Definitions.

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

"Amendment" means a UCC record that amends the information contained in a financing statement. Amendments also include (i) assignments and (ii) continuation and termination statements.

"Assignment" means an amendment that assigns all or a part of a secured party's power to authorize an amendment to a financing statement.

"Continuation statement" shall have the meaning prescribed by § 8.9A-102(a)(27) of the Code of Virginia.

"File number" shall have the meaning prescribed by § 8.9A-102(a)(36) of the Code of Virginia.

"Filing office" means the Clerk's Office of the State Corporation Commission.

"Filing officer" means the Clerk of the State Corporation Commission.

"Filing officer statement" means a statement entered into the UCC information management system to explain an action by the filing office.

"Financing statement" shall have the meaning prescribed by § 8.9A-102(a)(39) of the Code of Virginia.

"Individual" means a natural person, living or deceased.

"Information statement" means a UCC record that indicates a financing statement is inaccurate or wrongfully filed.

"Initial financing statement" means a UCC record containing the information required to be in an initial financing statement and that causes the filing office to establish the initial record of existence of a financing statement.

"Organization" means a legal person that is not an individual.

"Personal identifiable information" shall have the meaning prescribed by § 12.1-19 B of the Code of Virginia.

"Remitter" means a person who delivers a UCC record to the filing office for filing, whether the person is a filer or an agent of a filer responsible for delivering the UCC record for filing. "Remitter" does not include a person responsible merely for the delivery of the UCC record to the filing office, such as the postal service or a courier service but does include a service provider who acts as a filer's representative in the filing process.

"Secured party of record" shall have the meaning prescribed by § 8.9A-511 of the Code of Virginia.

"Termination statement" shall have the meaning prescribed by § 8.9A-102(a)(80) of the Code of Virginia.

"Through date" means the most recent date that all submissions for a specified day have been indexed in the UCC information management system.

"UCC" means the Uniform Commercial Code - Secured Transactions (§ 8.9A-101 et seq. of the Code of Virginia).

"UCC information management system" means the information management system used by the filing office to store, index, and retrieve information relating to financing statements.

"UCC record" means an initial financing statement, an amendment, and an information or a filing officer statement, and shall not be deemed to refer exclusively to paper or paper-based writings.

5VAC5-30-30. General filing and search requirements.

A. UCC records may be delivered to shall only be [ tendered for filing at communicated to ] the filing office for filing as follows: 1. By personal delivery, at the filing office street address; 2. By courier delivery, at the filing office street address; 3. By postal delivery, to the filing office mailing address; or 4. B by electronic delivery method provided and authorized by the filing office.

B. The filing time for a UCC record delivered to the filing office for filing by personal or courier delivery is the time the UCC record is date-and-time stamped by the filing office even though the UCC record may not yet have been accepted for filing and may be subsequently rejected. The filing time for a UCC record delivered to the filing office for filing by postal delivery is the next close of business following the time of delivery (even though the UCC record may not yet have been accepted for filing and may be subsequently rejected). A UCC record delivered to the filing office for filing after regular business hours or on a day the filing office is not open for business will have a filing time of the close of business on the next day the filing office is open for business. The filing time for a UCC record delivered to the filing office for filing by authorized electronic delivery method is the date and time the UCC information management system receives the UCC record and determines that all the required elements of the transmission have been received in the required format.

C. In the case of hardship or other good cause, the filing office may, at its discretion, allow for the communication of a UCC record by a method [ of communication ] other than electronic filing. [ Hardship delivery may only occur after the The ] filer [ has received prior must receive ] approval from the filing office [ prior to communicating a UCC record by a method other than electronic filing ]. The filing office will determine the policy and procedure used to accept and process a UCC record [ under a hardship request in these circumstances ].

D. UCC search requests may be delivered to the filing office by personal, courier, or postal delivery, or by electronic delivery method provided and authorized by the filing office.

5VAC5-30-40. Forms, fees, Fees and payments.

A. Forms. 1. The filing office shall only accept forms for UCC records that conform to the requirements of this chapter. 2. The forms approved by the International Association of Commercial Administrators as they appear on the filing office's website (http://www.scc.virginia.gov/clk/uccfile.aspx) shall be accepted. 3. The filing office may approve other forms for acceptance, including additional forms approved by the International Association of Commercial Administrators. B. Fees. Filing fees and fees for services provided under this chapter are as follows:

1. The fee for filing and indexing a UCC record is $20.

2. The fee for submitting a UCC search request is $7.00.

3. There is no fee for furnishing a paper copy of a UCC record of 25 or fewer pages. The fee for furnishing a paper copy of a UCC record that exceeds 25 pages is $10.00. For certifying a copy, the fee for the certificate and affixing thereto the seal of the commission or a facsimile thereof is $6.00.

C. Methods of payment. B. Filing fees and fees for services provided under this chapter may be paid by the following methods:

1. Payment by debit or credit card of a type approved by the filing office and cash shall be accepted if paid in person at the filing office.

2. Personal check, cashier's check and money order made payable to the State Corporation Commission or Treasurer of Virginia shall be accepted for payment if drawn on a bank acceptable to the filing office or if the drawer is acceptable to the filing office.

3. 1. Payment by debit or credit card of a type approved by the filing office shall be accepted for the filing or submission of a document delivered to the filing office for filing by authorized electronic delivery method.

4. 2. The filing office may accept payment via electronic funds under National Automated Clearing House Association (NACHA) rules from remitters who have entered into appropriate NACHA-approved arrangements for such transfers and who authorize the relevant transfer pursuant to such arrangements and rules.

C. Fees for services provided under this chapter may be paid by the following methods:

1. Payment by debit or credit card of a type approved by the filing office for services requested by authorized electronic delivery method or in person at the filing office.

2. Personal check, cashier's check, and money order made payable to the State Corporation Commission or Treasurer of Virginia shall be accepted for services requested by personal, courier, or postal delivery, or in person at the filing office, if drawn on a bank acceptable to the filing office or if the drawer is acceptable to the filing office.

D. Overpayment and underpayment policies In case of hardship or other good cause, the filing office may allow for the payment of fees by an alternate method of payment. [ Hardship or other good cause Such ] payment may only occur after the filer has received prior approval from the filing office.

1. E. The filing office shall notify the remitter of the amount of any overpayment exceeding $24.99 and send the remitter the appropriate procedure and form for requesting a refund. The filing office shall refund an overpayment of $24.99 or less only upon the written request of the remitter. A request for a refund shall be delivered to the filing office within 12 months from the date of payment.

2. F. Upon receipt of a [ hardship or other good cause ] UCC record with an insufficient filing fee, the filing office shall return the UCC record to the remitter with a notice stating the deficiency and may retain the filing fee.

E. Uncollected filing fee payment. G. A filing may be voided by the filing office if the filing fee payment that is submitted by the remitter is dishonored, declined, refused, reversed, charged back to the commission, returned to the commission unpaid, or otherwise rejected for any reason by a financial institution or other third party, and after notice from the filing office, the remitter fails to submit a valid payment for the filing fee and any penalties.

F. Federal liens. H. A notice of lien, certificate and other notice affecting a federal tax lien or other federal lien presented to the filing office pursuant to the provisions of the Uniform Federal Lien Registration Act (§ 55-142.1 et seq. of the Code of Virginia) shall be treated as the most analogous UCC record unless the Uniform Federal Lien Registration Act or federal law provides otherwise.

5VAC5-30-50. Acceptance and refusal of UCC records; continuation statements.

A. The duties and responsibilities of the filing office with respect to the administration of the UCC are ministerial. In accepting for filing or refusing to file a UCC record pursuant to this chapter, the filing office does none of the following:

1. Determine the legal sufficiency or insufficiency of a UCC record;

2. Determine that a security interest in collateral exists or does not exist;

3. Determine that information in the UCC record is correct or incorrect, in whole or in part; or

4. Create a presumption that information in the UCC record is correct or incorrect, in whole or in part.

B. The first day on which a continuation statement may be filed is the day of the month corresponding to the date upon which the related financing statement would lapse in the sixth month preceding the month in which the financing statement would lapse. If there is no such corresponding date, the first day on which a continuation statement may be filed is the last day of the sixth month preceding the month in which the financing statement would lapse. The last day on which a continuation statement may be filed is the date upon which the financing statement lapses. If the lapse date falls on a Saturday, Sunday, or other day on which the filing office is not open, then the last day on which a continuation statement may be filed, if delivered to the filing office for filing by personal, courier, or postal delivery, is the last day the filing office is open prior to the lapse date. An authorized electronic delivery method may be available to file a continuation statement on a Saturday, Sunday, or other day on which the filing office is not open. The relevant anniversary for a February 29 filing date shall be March 1 in the fifth or 30th year following the date of filing.

C. Except as provided in 5VAC5-30-40 D, if the filing office finds grounds to refuse a UCC record for filing, including those set forth in § 8.9A-516 (b) of the Code of Virginia, the filing office shall return the UCC record to the remitter and may retain the filing fee.

D. Nothing in this chapter shall prevent the filing office from communicating to a filer or a remitter that the filing office noticed apparent potential defects in a UCC record, whether or not it was filed or refused for filing. However, the filing office is under no obligation to do so and may not, in fact, have the resources to identify potential defects. The responsibility for the legal effectiveness of filing rests with filers and remitters and the filing office bears no responsibility for such effectiveness.

E. The filing office may act in accordance with § 12.1-19 B of the Code of Virginia with respect to submissions that contain personal identifiable information.

F. If it is determined that the filing office refused to accept a UCC record in error, the filing office shall file the UCC record with the filing date and time that were assigned, based on the method of delivery, by the filing office after the record was originally delivered to the filing office for filing. The filing office shall also file a filing officer statement that states the effective date and time of filing, which shall be the date and time the UCC record was originally delivered to the filing office for filing.

5VAC5-30-60. Filing and data entry procedures.

A. The filing office may correct errors made by its personnel in the UCC information management system at any time. The filing office shall file a filing officer statement in the UCC information management system identifying the UCC record to which it relates, the date of the correction or other action taken, and an explanation of the corrective or other action taken. The filing officer statement shall be preserved as long as the UCC record of the initial financing statement is preserved in the UCC information management system.

B. An error by a filer or remitter is the responsibility of that person. It can be corrected by filing an amendment or it can be disclosed by filing an information statement pursuant to § 8.9A-518 of the Code of Virginia.

C. 1. A UCC record delivered to the filing office for filing shall designate whether a name is a name of an individual or an organization. If the name is that of an individual, the surname, first personal name, additional name or names, and any suffix shall be given. 2. Organization names are entered into the UCC information management system exactly as set forth in the UCC record, even if it appears that multiple names are set forth in the UCC record or if it appears that the name of an individual has been included in the field designated for an organization name. 3. The filing office will only accept forms that designate separate fields for individual and organization names and separate fields for the surname, first personal name, additional name or names, and any suffix. Such forms diminish the possibility of filing office error and help assure that filers' expectations are met. However, the inclusion of names in an incorrect field or the failure to transmit names accurately to the filing office may cause a financing statement to be ineffective. Only names entered in a designated name field through the system-to-system transfer method will be recorded as a name in the UCC information management system. This applies to all parties associated with a UCC record.

D. The filing office shall take no action upon receipt of a notification, formal or informal, of a bankruptcy proceeding involving a debtor included in the UCC information management system.

5VAC5-30-70. Search requests and reports.

A. The filing office maintains for public inspection a searchable index for all UCC records. The index shall provide for the retrieval of all filed UCC records by the name of the debtor and by the file number of the initial financing statement.

B. Search requests shall be made only by electronic delivery method provided and authorized by the filing office or on the Information Request form (Form UCC11) and shall include:

1. The name of the debtor to be searched, specifying whether the debtor is an individual or organization. A search request will be processed using the exact name provided by the requestor.

2. The name and address of the person to whom the search report is to be sent.

3. Payment of the appropriate fee, which shall be made by a method set forth in this chapter.

C. Search requests may include:

1. A request that copies of UCC records found in the search be included with the search report,; and

2. Instructions For requests made by personal, courier, or postal delivery, instructions on the mode of delivery desired, if other than by postal delivery, which shall be followed if the desired mode is acceptable to the filing office.

D. Search results are produced by the application of standardized search logic to the name presented to the filing office. The following criteria apply to searches:

1. There is no limit to the number of matches that may be returned in response to the search request.

2. No distinction is made between upper and lower case letters.

3. Punctuation marks and accents are disregarded.

4. "Noise words" are limited to "an," "and," "for," "of," and "the." The word "the" is disregarded. Other noise words appearing anywhere except at the beginning of an organization name are disregarded. Certain business words are modified to a standard abbreviation: company to "co," corporation to "corp," limited to "ltd," incorporated to "inc."

5. All spaces are disregarded.

6. After using the preceding criteria to modify the name to be searched, the search will reveal names of debtors that are contained in unlapsed or all initial financing statements in an alphabetical list.

E. Reports created in response to a search request shall include the following:

1. The date and time the report was generated.

2. Identification of the name searched.

3. The through date as of the date and time the report was generated.

4. For an organization, the name as it appears after application of the standardized search logic.

5. Identification of each unlapsed initial financing statement or all initial financing statements filed on or prior to the report date and time corresponding to the search criteria, by name of debtor, by file number, and by file date and file time.

6. For each initial financing statement on the report, a listing of all related UCC records filed by the filing office on or prior to the report date.

7. Copies of all UCC records revealed by the search and requested by the requestor.

F. The filing office may provide access to the searchable index via the Internet that produces search results beyond exact name matches. Search results obtained via the Internet shall not constitute an official search and will not be certified by the filing office.

FORMS (5VAC5-30)

UCC Financing Statement, Form UCC1 (rev. 4/11).

UCC Financing Statement Addendum, Form UCC1Ad (rev. 4/11).

UCC Financing Statement Additional Party, Form UCC1AP (rev. 8/11).

UCC Financing Statement Amendment, Form UCC3 (rev. 4/11).

UCC Financing Statement Amendment Addendum, Form UCC3Ad (rev. 4/11).

UCC Financing Statement Amendment Additional Party, Form UCC3AP (rev. 8/11).

UCC Information Statement, Form UCC5 (rev. 7/12).

UCC Information Request, Form UCC11 (rev. 7/12).

UCC Information Request, Form UCC11 (rev. 7/2023)

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

CRIMINAL JUSTICE SERVICES BOARD

Proposed Regulation

Title of Regulation: 6VAC20-100. Rules Relating to Compulsory Minimum Training Standards for Correctional Officers of the Department of Corrections, Division of Adult Institutions (amending 6VAC20-100-20).

Statutory Authority: § 9.1-102 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 14, 2025.

Agency Contact: Kristi Shalton, Law Enforcement Program Coordinator, Department of Criminal Justice Services, 1100 Bank Street, Richmond, VA 23219, telephone (804) 786-7801, FAX (804) 786-0410, or email kristi.shalton@dcjs.virginia.gov.

Basis: Section 9.1-102 of the Code of Virginia gives the Criminal Justice Services Board the authority to establish the compulsory minimum training standards for full-time and part-time officers of the Department of Corrections (DOC).

Purpose: The proposed amendments are essential to protecting the public health, safety, and welfare of citizens of the Commonwealth because the proper, efficient training of correctional officers ensures not only the safety of incarcerated individuals, but also prioritizes the safety and wellbeing of the public at large and victims of crime.

Substance: Substantial changes and improvements have been made and applied to the performance outcomes, training objectives, testing criteria, and lesson plan guides in each individual category of training. These changes will reflect improved and updated language and enhanced training and include:

Category 1 - Security and Supervision:

1. Revised wording of performance outcomes (POs) and eliminated redundancy;

2. Changed several practical exercises to written exercises;

3. Added several training objectives (TOs) to better reflect revised performance outcomes for clarity;

4. Revised and significantly enhanced content in lesson plan guides (LPGs) to be taught to new officers;

5. Added additional information and removed redundancy (i.e., added types of counts to the LPG of PO 1.1);

6. Created new PO 1.4 dealing with inmate disciplinary procedures, new PO 1.9 to identify abnormal behavior among inmate population, new PO 1.10 for better identification of high-risk behaviors and how to handle them while maintaining professionalism, and new PO 1.12 identifying management of abnormal behaviors;

7. Created new PO 1.8 to address and identify inmate employment opportunities within the correctional setting; and

8. Created new PO 1.11 dealing with suicidal ideation, prevention, and intervention strategies.

Category 2 - Communications

1. Changed several written exercises to practical exercises;

2. Clarified effective interpersonal verbal and nonverbal communication skills;

3. Enhanced communication barriers section and elaborated for more effective content and measurability by creating new PO 2.5 identifying different levels of understanding and language barriers among individuals within a correctional setting;

4. Renumbered and fixed multiple technical errors (i.e. punctuation, spelling, etc.); and

5. Enhanced LPGs and added additional content to be taught (but not necessarily to be tested).

Category 3 - Safety

1. Revised practical and written TOs;

2. Amended and enhanced language in POs for better clarity and understanding;

3. Removed redundancy;

4. Revised criteria sections to better reflect POs and TOs;

5. Renumbered entire category to fix errors;

6. Ensured TOs utilize language that makes them measurable;

7. Created new PO 3.4 dealing with transportation of inmates, new PO 3.7 for inventorying keys and locking devices, new PO 3.14 dealing with the disbursement of unlawful assemblies, new PO 3.15 that addresses use of force, and new PO 3.17 for weapons retention; and

8. Included less lethal force options in the new (renumbered) PO 3.13 that deals with identification of chemical agents.

Category 4 - Emergency Response

1. Revised practical and written TOs for more effective instruction;

2. Amended and enhanced language in POs for better clarity and understanding;

3. Ensured language used created measurability for testing and auditing purposes;

4. Renumbered entire category and fixed multiple technical errors;

5. Added content to LPGs for enhanced classroom teaching; and

6. Created new PO 4.2 dealing with hostage situational awareness and survival, new PO 4.6 that teaches and tests on terrorism and weapons of mass destruction in the workplace, new PO 4.7 dealing with response to an escaped inmate, and new PO 4.8 that addresses active shooter response within a correctional setting.

Category 5 - Conflict and Crisis Management

1. Removed redundant and outdated language, as well as content that appears elsewhere in other categories; and

2. Renumbered entire category and made the category smaller in content, with more training, and more efficient.

Category 6 - Law and Legal Issues;

1. Reworded and restructured language in POs for clarity and understanding of intended tasks;

2. Reorganized written and practical exercises;

3. Removed redundant information and testing criteria;

4. Increased information taught on Federal Code and the Constitutional rights of inmates;

5. Created new PO 6.5 to identify established federal and state standards for the prevention, detection, and response to sexual abuse, sexual assault, or harassment; and

6. Created new PO 6.6 to identify established federal laws concerning the protection of religious exercise by institutionalized persons.

Category 7 - Duty Assignments and Responsibilities

1. Removed redundancy;

2. Renumbered entire category and fixed various technical errors;

3. Reorganized practical and written exercises for better clarity; and

4. Created new PO 7.7 dealing with the operation of electrical detection equipment designed to detect contraband within a correctional facility, and new PO 7.8 dealing with food distribution procedures to inmates.

Category 8 - Professionalism

1. Created new PO 8.2 requiring the student to identify various aspects and elements of the criminal justice system, as well as new PO 8.3 addressing performing duties in a positive, professional manner; and

2. Removed redundancy and renumbered category.

Category 9 - BCO Firearms Training

1. Created new PO 9.1 to address safety procedures while students are at the range, as well as the identification of the cardinal rules of firearms;

2. Added content to LPGs;

3. Revised wording for clarity and understanding of specific intent of tasks and also to ensure measurability;

4. Revised firearms qualification courses and struck through the old ones;

5. Created new PO 9.6 dealing with duty rifle, ammunition, and equipment, as well as new PO 9.7 dealing with department-issued shotguns and qualification with each;

6. Revised 9.8 to better incorporate less-lethal launchers; and

7. Renumbered category for more efficiency and put new qualification courses as appendices, listed after the performance outcomes.

Category 10 - Physical Fitness Training

1. Removed outdated and redundant language and essentially rewrote entire the category to include much more relevant information;

2. Created new PO 10.1 addressing the identification of the importance and benefits of establishing and maintaining overall physical wellness for officers, as well as new PO 10.2 relating to physical exercise;

3. Added additional content in LPGs to ensure all students were being taught the same information, especially if some are not familiar with specific exercises; and

4. Created new PO 10.3 that deals with the identification of workplace stressors and their causes and impacts, as well as reduction strategies.

Category 11 - Field Training

1. Reduced number of field training hours to 120 for efficiency;

2. Reworded and revised current POs and tasks to ensure measurability for auditing purposes;

3. Included or added updated information in reference to DOC's electronic inmate record system;

4. Added information to better address the transportation of inmates, to include specific populations, such as pregnant inmates, or those with special needs (i.e., medical illness, nonambulatory persons);

5. Revised and enhanced 11.18, which deals with weapons handling, in its entirety; and

6. Renumbered, clarified content, and better organized the entire category.

Issues: There are no issues or disadvantages associated with the regulatory change that affect individual private citizens, businesses, other agencies within the Commonwealth, or government officials. Advantages of this regulatory change include improved and more efficient training for new corrections officers employed with the DOC, with less waste in ammunitions in the firearms category of training and in unnecessary classroom time currently used to "fill time requirements". The primary advantages associated with this regulatory change are numerous in terms of safety and transparency to the public, especially to the victims of crime. In the Commonwealth, offenders who are convicted of a crime and sentenced to more than 12 months of incarceration typically become inmates of DOC. The mandated training incorporated in the proposed amendments assists in keeping the Commonwealth's citizens safe by enhancing both basic and field training for new officers employed with DOC. There are no disadvantages to the public or the Commonwealth by promulgating this new regulation, and the Criminal Justice Services Board voted to approve not only this action, but also the amendments to the standards.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Criminal Justice Services Board (board) proposes to: (i) reduce the minimum number of basic correctional officer training hours from 400 to 320, (ii) reduce the minimum number of field training hours from 200 to 120, and (iii) amend specific training requirements in a separate document incorporated by reference (DIBR), which is considered to be part of the regulatory text.

Background. The current regulation states that correctional officers shall comply with the following:

1. Successfully complete basic correctional officer training at a certified criminal justice training academy, external training location, or satellite facility, which includes receiving a minimum of 400 hours of department approved training in the following categories:

a. Security and supervision;

b. Communication;

c. Safety;

d. Emergency response;

e. Conflict and crisis management;

f. Law and legal;

g. Duty assignments and responsibilities;

h. Professionalism;

i. Basic corrections officer firearms training; and

j. Physical fitness training.

2. Successfully complete a minimum of 200 hours of approved training in the category of field training identified in the Virginia Department of Criminal Justice Services Field Training and On the Job Training Performance Outcomes.

The board proposes to change the minimum of 400 hours to a minimum of 320 hours for basic correctional officer training and change the minimum of 200 hours to a minimum of 120 hours for field training. Additionally, in the DIBR, the board proposes to amend the specific training requirements for the 10 categories listed for basic correctional officer training and also the 11th category of field training. The training addressed by the proposed amendments is provided or overseen by the Department of Corrections Academy for Staff Development, which conducts all basic correctional officer training using DOC employees.

Estimated Benefits and Costs. By reducing the total required minimum number of hours of training by 160, trainees may be able to start work as correctional officers approximately four weeks sooner. To the extent that under the proposed requirements, correctional officers are at least as well trained and prepared as they are under the current requirements, the proposed amendments would be substantially beneficial. According to the Department of Criminal Justice Services (DCJS), the proposed requirements improve efficiency and effectiveness. DOC reports that the agency is facing unprecedented staffing shortages, with approximately 1,600 correctional officer vacancies, and that the proposal would enable the vacancies to be filled more quickly.²

In the DIBR, the board proposes to no longer require 200 firearm practice rounds for each student, and instead move toward a skill-based practice format. DCJS and DOC believe many students would be able to show competency while expending a smaller amount of live ammunition. DOC expects this would result in about a 10% reduction in ammunition usage in initial training. Further, DOC estimates that with current pricing this would result in an approximate savings of $11,500 over the course of a 12-month period. According to DCJS, the proposed amendments would not affect the need for any other items, including equipment. As indicated by the agency background document (ABD),³ several other changes are being proposed throughout the DIBR. However, the information in the ABD is not sufficiently detailed to indicate whether the proposed changes constitute additions or deletions of existing text, or a reorganization of existing text. As a result, a comprehensive assessment of the total number and type of changes, and their potential economic impact, is not possible.

Businesses and Other Entities Affected. The proposed amendments affect DOC, and in particular their three training academies and those institutions that have a large number of vacancies for correctional officers. Suppliers of ammunition to the training academies would also be affected. An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Since the proposal would likely result in reduced purchases of ammunition, those firms that sell ammunition to DOC would likely encounter reduced revenue. Thus, an adverse impact is indicated.

Small Businesses⁴ Affected.⁵ Types and Estimated Number of Small Businesses Affected. The proposed amendments affect two small firms that have contracts with DOC to provide ammunition.⁶ Costs and Other Effects. The proposal to no longer require 200 firearm practice rounds for each student, and instead move toward a skill-based practice format, would likely result in about $11,500 less spent on ammunition annually. DOC has contracts with two small firms to purchase its ammunition. These firms would likely together have about $11,500 less in sales annually.

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

Localities⁷ Affected.⁸ According to DCJS, localities with a DOC facility within their jurisdiction may benefit through enhanced training of corrections officers keeping their community safer. The following localities have at least one DOC facility: the Cities of Chesapeake and Harrisonburg and the Counties of Augusta, Bland, Brunswick, Buchanan, Buckingham, Campbell, Chesterfield, Culpeper, Fluvanna, Goochland, Greensville, Grayson, Halifax, Hanover, Henry, Lunenburg, Mecklenburg, Nottoway, Pittsylvania, Powhatan, Richmond, Russell, Smyth, Southampton, Stafford, Sussex, Tazewell, and Wise. The proposed amendments may also indirectly affect the localities where the three training academies are situated, which are the Counties of Goochland, Smyth, and Southampton.

The proposed amendments do not appear to affect costs for localities.

Projected Impact on Employment. According to DCJS, the proposed reduction in minimum training hours is not expected to affect employment for trainers. As mentioned above, the proposal would enable trainees to start working as correctional officers about four weeks sooner. This would likely enable vacancies to be filled more quickly, and consequently more correctional officers would likely be working at any given time.

Effects on the Use and Value of Private Property. The two firms that sell ammunition to the training academies would likely encounter reduced revenue. According to DOC, though the reduction in ammunition purchases would be about 10% of that currently used in initial training, it would only represent about 1.0% or less of all the ammunition purchased by DOC from those firms,⁹ and the firms have large contracts that are used by all state-level law-enforcement entities. Thus, any impact on the value of the firms would be quite small.

The proposed amendments do not appear to affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² Source: Department of Corrections

³ See https://townhall.virginia.gov/l/GetFile.cfm?File=51\5649\9355\AgencyStatement_DCJS_9355_v4.pdf

⁴ 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."

⁵ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶ Data source: Virginia Employment Commission

⁷ "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.

⁸ § 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁹ Other DOC ammunition expenditure purposes include annual recertification training, instructor level training and duty ammunition purchases.

Agency Response to Economic Impact Analysis: The Virginia Department of Criminal Justice Services (DCJS) is in agreement with the economic impact analysis (EIA) prepared by the Department of Planning and Budget (DPB). Although prepared approximately three years ago in October 2021, all details related to the stages of basic training for new law corrections officer recruits is correct. DPB's assessment that there are no associated increases in costs is correct, and DCJS concurs that the changes associated with this regulatory action reduce the minimum number of basic correctional officer training hours from 400 to 320, reduce the minimum number of field training hours from 200 to 120, and amend training requirements in a separate document incorporated by reference (DIBR), which will replace the current version. With respect to the DIBR, DCJS also agrees that the proposed changes to no longer require 200 firearm practice rounds for each student and instead move toward a skill-based practice format, that the Department of Corrections (DOC) expects this would result in about a 10% reduction in ammunition usage in initial training. Further, DOC concurs that with current pricing, this would result in an approximate savings of $11,500 over the course of a 12-month period. DCJS supports DPB's assessment and is in agreement with the published EIA.

Summary:

The proposed amendments (i) reduce the minimum number of basic correctional officer training hours from 400 to 320, (ii) reduce the minimum number of field training hours from 200 to 120, and (iii) revise training requirements in the Virginia Department of Criminal Justice Services Basic Corrections Officer Compulsory Minimum Training Standards and Field Training Performance Outcomes to enhance performance outcomes and update outdated language for effectiveness and efficiency in training new academy recruits.

6VAC20-100-20. Compulsory minimum training standards.

A. Pursuant to the provisions of subdivision 9 of § 9.1-102 of the Code of Virginia, the department under the direction of the board establishes the compulsory minimum training standards for full-time or part-time correctional officers of the Department of Corrections.

B. Individuals hired as correctional officers as defined in § 53.1-1 of the Code of Virginia shall meet or exceed the compulsory minimum training standards at a certified criminal justice training academy, external training location, or satellite facility and complete field training requirements. Correctional officers shall comply with the following:

1. Successfully complete basic correctional officer training at a certified criminal justice training academy, external training location, or satellite facility, which includes receiving a minimum of 400 320 hours of department approved department-approved training in the following categories:

a. Security and supervision;

b. Communication;

c. Safety;

d. Emergency response;

e. Conflict and crisis management;

f. Law and legal issues;

g. Duty assignments and responsibilities;

h. Professionalism;

i. Basic corrections officer firearms training; and

j. Physical fitness training.

2. Successfully complete a minimum of 200 120 hours of approved training in the category of field training identified in the Virginia Department of Criminal Justice Services Basic Corrections Officer Compulsory Minimum Training Standards and Field Training and On the Job Training Performance Outcomes, draft dated November 1, 2024, hereby incorporated by reference.

DOCUMENTS INCORPORATED BY REFERENCE (6VAC20-100)

Virginia Department of Criminal Justice Services Field Training and On the Job Training Performance Outcomes, published September 2012, Virginia Department of Criminal Justice Services (Revised January 2018)

Virginia Department of Criminal Justice Services Basic Corrections Officer Compulsory Minimum Training Standards and Field Training Performance Outcomes, draft dated November 1, 2024, Virginia Department of Corrections

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Final Regulation

Title of Regulation: 9VAC20-81. Solid Waste Management Regulations (amending 9VAC20-81-35, 9VAC20-81-800).

Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.

Effective Date: January 15, 2025.

Agency Contact: Rebecca Rathe, Regulatory Analyst, Department of Environmental Quality, 4411 Early Road, Harrisonburg, VA 22801, telephone (540) 830-7241, or email rebecca.rathe@deq.virginia.gov.

Background: Section 2301 of the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act amended § 4005 of the Resource Conservation & Recovery Act to allow states to develop coal combustion residuals (CCR) permit programs and granted the U.S. Environmental Protection Agency (EPA) authority to approve state programs or implement a federal permit program in nonparticipating states. Prior to this action, the Virginia Solid Waste Management Regulations (VSWMR) (9VAC20-81) was amended to incorporate EPA's 2015 Disposal of CCR from Electric Utilities final rule and establish permit requirements for applicable CCR units. The VSWMR was subsequently amended to incorporate the 2016 amendment applicable to inactive CCR surface impoundments. Separately, §§ 10.1-1402.03 and 10.1-1402.04 of the Code of Virginia define additional closure requirements for certain CCR units, and § 10.1-1402.05 of the Code of Virginia specify additional coal ash landfill requirements. Based on previous incorporations of the 2015 CCR Rule and 2016 amendment, Virginia drafted a state package for EPA program approval to administer a CCR permit program. EPA review indicated that Virginia needed to incorporate additional CCR Rule amendments promulgated through December 2020 to request state program approval, which is what this action is doing.

Summary:

The amendments (i) remove an exclusion for electric vehicles, which was vacated by a 2018 District of Columbia (DC) Circuit Court ruling; (ii) update the citation to 40 CFR 257 to December 14, 2020; (iii) exclude from incorporation by reference a phrase from the CFR so that entities seeking approval must provide certifications by a professional engineer; (iv) exclude from incorporation by reference language from the federal regulation vacated by the DC Circuit Court; and (v) exclude a requirement limiting the height of vegetative growth, which was remanded back to EPA for reconsideration by a 2016 DC Circuit Court ruling.

9VAC20-81-35. Applicability of chapter.

A. This chapter applies to all persons who treat, store, dispose, or otherwise manage solid wastes as defined in 9VAC20-81-95.

B. All facilities that were permitted prior to March 15, 1993, and upon which solid waste has been disposed of prior to October 9, 1993, may continue to receive solid waste until they have reached their vertical design capacity or until the closure date established pursuant to § 10.1-1413.2 of the Code of Virginia, in Table 2.1, provided:

1. The facility is in compliance with the requirements for liners and leachate control in effect at the time of permit issuance.

2. On or before October 9, 1993, the owner or operator of the solid waste management facility submitted to the director:

a. An acknowledgment that the owner or operator is familiar with state and federal law and regulations pertaining to solid waste management facilities operating after October 9, 1993, including postclosure care, corrective action, and financial responsibility requirements;

b. A statement signed by a professional engineer that he has reviewed the regulations established by the department for solid waste management facilities, including the open dump criteria contained therein, that he has inspected the facility and examined the monitoring data compiled for the facility in accordance with applicable regulations and that, on the basis of his inspection and review, he has concluded:

(1) That the facility is not an open dump;

(2) That the facility does not pose a substantial present or potential hazard to human health and the environment; and

(3) That the leachate or residues from the facility do not pose a threat of contamination or pollution of the air, surface water, or groundwater in a manner constituting an open dump or resulting in a substantial present or potential hazard to human health or the environment; and

c. A statement signed by the owner or operator:

(1) That the facility complies with applicable financial assurance regulations; and

(2) Estimating when the facility will reach its vertical design capacity.

3. Enlargement or closure of these facilities shall conform with the following subconditions:

a. The facility may not be enlarged prematurely to avoid compliance with this chapter when such enlargement is not consistent with past operating practices, the permit, or modified operating practices to ensure good management.

b. The facility shall not dispose of solid waste in any portion of a landfill disposal area that has received final cover or has not received waste for a period of one year, in accordance with 9VAC20-81-160 C. The facility shall notify the department, in writing, within 30 days, when an area has received final cover or has not received waste for a one-year period, in accordance with 9VAC20-81-160 C. However, a facility may apply for a permit, and if approved, can construct and operate a new cell that overlays ("piggybacks") over a closed area in accordance with the permit requirements of this chapter.

c. The facilities subject to the restrictions in this subsection are listed in Table 2.1. The closure dates were established in Final Prioritization and Closure Schedule for HB 1205 Disposal Areas (DEQ, September 2001). The publication of these tables is for the convenience of the regulated community and does not change established dates. Any facility, including, but not limited to those listed in Table 2.1, must cease operation if that facility meets any of the open dump criteria listed in 9VAC20-81-45 A 1.

d. Those facilities assigned a closure date in accordance with § 10.1-1413.2 of the Code of Virginia shall designate on a map, plat, diagram, or other engineered drawing, areas in which waste will be disposed of in accordance with Table 2.1 until the latest cessation of waste acceptance date as listed in Table 2.1 is achieved. This map or plat shall be placed in the operating record and a copy shall be submitted upon request to the department in order to track the progress of closure of these facilities. If the facility already has provided this information under 9VAC20-81-160, then the facility may refer to that information.

C. Facilities are authorized to expand beyond the waste boundaries existing on October 9, 1993, as follows:

1. Existing captive industrial landfills.

a. Existing nonhazardous industrial waste facilities that are located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in subdivision 1 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand a captive industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements in effect at the time of permit issuance.

c. Owners or operators of facilities that are authorized under subdivision 1 of this subsection to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120.

d. Facilities authorized for expansion in accordance with subdivision 1 of this subsection are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

2. Other existing industrial waste landfills.

a. Existing nonhazardous industrial waste facilities that are not located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in subdivision 2 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand an industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities which that are authorized under subdivision 2 of this subsection to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities authorized for expansion in accordance with subdivision 2 of this subsection are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

3. Existing construction/demolition/debris landfills.

a. Existing facilities that accept only construction/demolition/debris waste shall comply with all the provisions of this chapter except as shown in subdivision 3 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand a construction/demolition/debris landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities which that are authorized under subdivision 3 of this subsection to accept waste for disposal beyond the active portion of the landfill existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities, or portions thereof, which have reached their vertical design capacity shall be closed in compliance with 9VAC20-81-160.

f. Facilities authorized for expansion in accordance with subdivision 3 of this subsection are limited to expansion to the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

4. Facilities or units undergoing expansion in accordance with the partial exemptions created by subdivision 1 b, 2 b, or 3 b of this subsection may not receive hazardous wastes generated by the exempt small quantity generators, as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60), for disposal on the expanded portions of the facility. Other wastes that require special handling in accordance with the requirements of Part VI (9VAC20-81-610 et seq.) of this chapter or that contain hazardous constituents that would pose a risk to health or environment, may only be accepted with specific approval by the director.

5. Nothing in subdivisions 1 b, 2 b, and 3 b of this subsection shall alter any requirement for groundwater monitoring, financial responsibility, operator certification, closure, postclosure care, operation, maintenance, or corrective action imposed under this chapter, or impair the powers of the director to revoke or modify a permit pursuant to § 10.1-1409 of the Virginia Waste Management Act or Part V (9VAC20-81-400 et seq.) of this chapter.

D. An owner or operator of a previously unpermitted facility or unpermitted activity that managed materials previously exempt or excluded from this chapter shall submit a complete application for a solid waste management facility permit, permit by rule or a permit modification, as applicable, in accordance with Part V (9VAC20-81-400 et seq.) of this chapter within six months after these materials have been defined or identified as solid wastes. If the director finds that the application is complete, the owner or operator may continue to manage the newly defined or identified waste until a permit or permit modification decision has been rendered or until a date two years after the change in definition whichever occurs sooner, provided however, that in so doing he shall not operate or maintain an open dump, a hazard, or a nuisance.

Owners or operators of solid waste management facilities in existence prior to September 24, 2003, shall now be in compliance with this chapter. Where conflicts exist between the existing facility permit and the new requirements of the regulations, the regulations shall supersede the permit except where the standards in the permit are more stringent than the regulation. Language in an existing permit shall not act as a shield to compliance with the regulation, unless a variance to the regulations has been approved by the director in accordance with the provisions of Part VII (9VAC20-81-700 et seq.) of this chapter. Existing facility permits will not be required to be updated to eliminate requirements conflicting with the regulation, except at the request of the director or if a permit is modified for another reason. However, all sanitary landfills and incinerators that accept waste from jurisdictions outside of Virginia must have submitted the materials required under 9VAC20-81-100 E 4 by March 22, 2004.

E. This chapter is not applicable to landfill units closed in accordance with regulations or permits in effect prior to December 21, 1988, unless releases from these closed landfills meet the open dump criteria found in 9VAC20-81-45, or the closed landfills are found to be a hazard or a nuisance under subdivision 21 of § 10.1-1402 of the Code of Virginia, or a site where improper waste management has occurred under subdivision 19 of § 10.1-1402 of the Code of Virginia.

F. Part VIII (9VAC20-81-800 et seq.) of this chapter applies to the following:

1. Owners and operators of new and existing CCR landfills and CCR surface impoundments, including any lateral expansions of such units that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers;

2. Disposal units located offsite of the electric utility or independent power producer. Part VIII of this chapter also applies to any practice that does not meet the definition of a beneficial use of CCR; and

3. Inactive CCR surface impoundments at active electric utilities or independent power producers, regardless of the fuel currently used at the facility to produce electricity.

G. Part VIII of this chapter is not applicable to the following:

1. CCR landfills that have ceased receiving CCR prior to October 19, 2015;

2. Electric utilities or independent power producers that have ceased producing electricity prior to October 19, 2015;

3. 2. Wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated at facilities that are not part of an electric utility or independent power producer, such as manufacturing facilities, universities, and hospitals;

4. 3. Fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated primarily from the combustion of fuels (including other fossil fuels) other than coal, for the purpose of generating electricity unless the fuel burned consists of more than 50% coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal;

5. 4. Practices that meet the definition of a beneficial use of CCR;

6. 5. CCR placement at active or abandoned underground or surface coal mines; or

7. 6. Municipal solid waste landfills that receive CCR.

9VAC20-81-800. Adoption of 40 CFR Part 257 Subpart D by reference - Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments.

A. Except as otherwise provided, those regulations of the U.S. Environmental Protection Agency set forth in Subpart D of 40 CFR Part 257 promulgated as of October 4, 2016 December 14, 2020, wherein they relate to standards for the disposal of coal combustion residuals in landfills and surface impoundments, are hereby incorporated as part of the Virginia Solid Waste Management Regulations, 9VAC20-81. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of incorporated sections of 40 CFR Part 257 are also hereby incorporated as part of the Virginia Solid Waste Management Regulations.

B. In all locations in this chapter where text from 40 CFR Part 257 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into this chapter. The following terms, where they appear in the Code of Federal Regulations shall, for the purpose of this chapter, have the following meanings or interpretations:

1. "Director" shall supplant the "State Director" wherever it appears.

2. "Qualified professional engineer" or "engineer" means a "professional engineer" certified to practice in the Commonwealth of Virginia as defined in 9VAC20-81-10.

3. The phrase "or approval from the Participating State Director" throughout 40 CFR Part 257 is not incorporated by reference.

4. Notwithstanding the provisions of 9VAC20-81-800 A, the text of 40 CFR 257.50(e) and 40 CFR 257.90(g) is not incorporated into this chapter.

5. In 40 CFR 257.73(a)(4), the phrase "not to exceed six inches above the slope of the dike" is not incorporated by reference. In 40 CFR 257.73(d)(1)(iv), 257.74(a)(4), and 257.74(d)(1)(iv), the phrase "not to exceed six inches above the slope of the dike" is not incorporated by reference.

C. Definitions in 40 CFR 257.53 are incorporated by reference into this part and are applicable to CCR landfills and CCR surface impoundments.

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Final Regulation

Title of Regulation: 9VAC20-85. Coal Combustion Byproduct Regulations (amending 9VAC20-85-90).

Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941; 40 CFR Part 257.

Effective Date: January 15, 2025.

Agency Contact: Rebecca Rathe, Regulatory Analyst, Department of Environmental Quality, 4411 Early Road, Harrisonburg, VA 22801, telephone (540) 830-7241, or email rebecca.rathe@deq.virginia.gov.

Summary:

The amendments update a citation to reference the Virginia Erosion and Stormwater Management Regulation (9VAC25-875).

9VAC20-85-90. Operations.

The owner or operator of a fossil fuel combustion products site shall prepare an operation plan. At a minimum, the plan shall address the requirements contained in this section.

1. Tracking of mud or fossil fuel combustion products onto public roads from the site shall be controlled at all times to minimize nuisances.

2. The addition of any solid waste including but not limited to hazardous, infectious, construction, debris, demolition, industrial, petroleum-contaminated soil, or municipal solid waste to fossil fuel combustion products is prohibited. This prohibition does not apply to solid wastes from the extraction, beneficiation, and processing of ores and minerals conditionally exempted under 9VAC20-81-95 E 3 of the Solid Waste Management Regulations.

3. Fugitive dust shall be controlled at the site so it does not constitute nuisances or hazards.

4. After preparing the sub-base, fossil fuel combustion products shall be placed uniformly and compacted to standards, including in situ density, compaction effort, and relative density as specified by a registered professional engineer based on the intended use of the fossil fuel combustion products. The placement and compaction of CCB on coal mine sites shall be subject to the applicable requirements of the Coal Surface Mining Reclamation Regulations, (4VAC25-130).

5. A surface run on and runoff control program shall be implemented to control and reduce the infiltration of surface water through the fossil fuel combustion products and to control the runoff from the placement area to other areas and to surface waters.

6. Runoff shall not be permitted to drain or discharge into surface waters except when in accordance with 9VAC25-10, of the State Water Control Board, or otherwise approved by the department.

7. Fossil fuel combustion products site development shall be in accordance with the Erosion and Sediment Control Regulations, 9VAC25-840, Virginia Erosion and Stormwater Management Regulation (9VAC25-875) or the Coal Surface Mining Reclamation Regulations, (4VAC25-130,) as applicable.

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Final Regulation

Title of Regulation: 9VAC20-110. Regulations Governing the Transportation of Hazardous Materials (amending 9VAC20-110-110).

Statutory Authority: §§ 10.1-1450 and 44-146.30 of the Code of Virginia; 49 USC §§ 5123, 5124, and 5125; 49 CFR Parts 107, 170 through 180, 383, and 390 through 397.

Effective Date: January 15, 2025.

Agency Contact: Rebecca Rathe, Regulatory Analyst, Department of Environmental Quality, 4411 Early Road, Harrisonburg, VA 22801, telephone (540) 830-7241, or email rebecca.rathe@deq.virginia.gov.

Summary:

The amendments update the regulation to incorporate by reference the amendments to Title 49 of the Code of Federal Regulations as published on October 1, 2024.

9VAC20-110-110. Compliance.

Every person who transports or offers for transportation hazardous materials within or through the Commonwealth of Virginia shall comply with the federal regulations governing the transportation of hazardous materials promulgated by the U.S. Secretary of Transportation with amendments promulgated as of October 1, 2022 2024, pursuant to the Hazardous Materials Transportation Act, and located at Title 49 of the Code of Federal Regulations as set forth below and which are incorporated in these regulations by reference:

1. Special Permits. 49 CFR Part 107, Subpart B.

2. Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design Certifying Engineers in 49 CFR Part 107, Subpart F.

3. Registration of Persons Who Offer or Transport Hazardous Materials in 49 CFR Part 107, Subpart G.

4. Hazardous Materials Regulations in 49 CFR Parts 171 through 177.

5. Specifications for Packagings in 49 CFR Part 178.

6. Specifications for Tank Cars in 49 CFR Part 179.

7. Continuing Qualification and Maintenance of Packagings in 49 CFR Part 180.

8. Motor Carrier Safety Regulations in 49 CFR Parts 390 through 397.

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Withdrawal of Fast-Track Regulation

Title of Regulation: 9VAC25-875. Virginia Erosion and Stormwater Management Regulation (amending 9VAC25-875-70, 9VAC25-875-250, 9VAC25-875-280, 9VAC25-875-300, 9VAC25-875-370, 9VAC25-875-470, 9VAC25-875-490, 9VAC25-875-500, 9VAC25-875-550, 9VAC25-875-560, 9VAC25-875-850).

Statutory Authority: §§ 62.1-44.15:28 and 62.1-44.52 of the Code of Virginia.

Notice is hereby given that the State Water Control Board has WITHDRAWN the regulatory action for 9VAC25-875, Virginia Erosion and Stormwater Management Regulation, which was published as a Fast-Track regulation in 41:4 VA.R. 518-531 October 7, 2024. This action completed Executive Branch review and was published for public comment as a fast-track rulemaking action. The board will be following up with revised regulatory language and another fast-track rulemaking stage in the near future but is withdrawing this action on November 18, 2024, due to an issue with the regulatory language.

Agency Contact: Rebeccah W. Rochet, P.E., Deputy Director, Division of Water Permitting, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 801-2950, or email rebeccah.rochet@deq.virginia.gov.

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Forms

Title of Regulation: 12VAC35-260. Certified Recovery Residences.

Agency Contact: Susan Puglisi, Regulatory Research Specialist, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Room 411, Richmond, VA 23219, telephone (804) 385-6549, FAX (804) 371-4609, or email susan.puglisi@dbhds.virginia.gov.

FORMS (12VAC35-260)

Application for a DBHDS Certified Recovery Residence, Office of Recovery Service Form (rev. 4/2024)

Application for a DBHDS Certified Recovery Residence, Office of Recovery Service Form (rev. 11/2024)

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

COMMON INTEREST COMMUNITY BOARD

Proposed Regulation

Title of Regulation: 18VAC48-70. Common Interest Community Ombudsman Regulations (amending 18VAC48-70-10 through 18VAC48-70-50, 18VAC48-70-70, 18VAC48-70-90, 18VAC48-70-100, 18VAC48-70-110).

Statutory Authority: §§ 54.1-2349 and 54.1-2354.4 of the Code of Virginia.

Public Hearing Information:

January 8, 2025 - 10 a.m. - Department of Professional and Occupational Regulation, Perimeter Center, Second Floor Conference Center, Board Room 3, 9960 Mayland Drive, Richmond, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Anika Coleman, Executive Director, Common Interest Community Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8510, FAX (866) 490-2723, or email cic@dpor.virginia.gov.

Basis: Section 54.1-2354.4 of the Code of Virginia requires the Common Interest Community Board to establish by regulation a requirement that each association shall establish reasonable procedures for the resolution of written complaints from the members of the association and other citizens.

Purpose: As mandated by the General Assembly, the proposed amendments protect the public welfare, in part, by establishing and clarifying the (i) requirements for an association complaint procedure; (ii) requirements for development, adoption, and distribution of the complaint procedure; (iii) requirements for retention of records of association complaints; (iv) procedure for the filing of a notice of final adverse decision (NFAD) with the Office of the Check-In, Check-Out (CICO) and review of an NFAD by the CICO; and (v) provisions for a final determination made by the CICO regarding an NFAD.

Substance: The proposed amendments include:

1. 18VAC48-70-10 is revised to incorporate statutory terms from §§ 54.1-2345, 54.1-2354.1, and 55.1-2307 of the Code of Virginia. The section is also revised to add the term "common interest community laws and regulations" and to clarify the meaning of other defined terms. The section is further revised to remove provisions that establish regulatory requirements and replace defined terms for which a statutory definition is incorporated by reference.

2. 18VAC48-70-50 is revised to (i) incorporate requirements pertaining to the association compliant procedure that are currently in the definition for "association complaint procedure" in 18VAC48-70-10; (ii) update provisions regarding delivery of notices to a complainant to state that such notices must be hand delivered, mailed, or delivered by third-party courier, with proof of delivery. Currently, the regulation requires that such notices must be either hand delivered or mailed by registered or certified mail; (iii) increase from seven to 14 days the time period for an association to provide a complainant with written acknowledgment of receiving the complaint following the association's receipt of the complaint; and (iii) provide that notice of the date, time, and location where the association complaint will be considered by the association be provided to the complainant at least 14 days prior to consideration, unless otherwise agreed to in writing. Currently, the regulation provides that notice be given "within a reasonable time."

3. 18VAC48-70-90 is revised to (i) remove the requirement that the NFAD include applicable association governing documents and (ii) to relocate a provision that establishes the date of a final adverse decision from the definition of "adverse decision" in 18VAC48-70-10.

4. 18VAC48-70-100 is revised to incorporate provisions from an existing board guidance document regarding consideration of requests to waive or refund NFAD filing fees.

5. Clarifying changes are made to 18VAC48-70-110 to provide that (i) an NFAD is not complete and will not be reviewed until the NFAD filing fee has been received or a waiver of the fee has been granted and (ii) information that was not part of a final adverse decision will not be considered in the review of the NFAD.

Issues: The primary advantages to the public and regulated community include providing clarification to provisions of the regulation, ensuring the regulation complements Virginia law and reflects current agency procedures, and reducing regulatory burdens. There are no identifiable disadvantages to the public or the Commonwealth. It is not anticipated that the regulatory change will create any substantial disadvantages to the regulated community.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Common Interest Community Board (board) proposes to amend the Common Interest Community Ombudsman Regulations to update and clarify the provisions of the regulation and ensure that it conforms to statute. This action proposes changes to (i) requirements for an association complaint procedure, (ii) requirements for filing a notice of final adverse decision, and (iii) provisions regarding the waiver of filing fees.

Background. This regulation addresses common interest communities (CICs), which are defined in statute as "real estate subject to a declaration containing lots, at least some of which are residential or occupied for recreational purposes, and common areas to which a person, by virtue of the person's ownership of a lot subject to that declaration, is a member of the association and is obligated to pay assessments of common expenses."² Examples of CICs include condominiums, cooperatives, retirement communities, and some townhomes. Each CIC has an association that represents its property owners. This regulation, which was originally promulgated in July 2012, requires associations to "have a written process for resolving association complaints from members and citizens."³ It outlines the minimum requirements for an association complaint procedure, to include the process for consideration of a complaint by the association, and notification to the complainant of the association's final determination on the complaint. To the extent that a final determination of the association does not result in the cure or corrective action sought by the complainant, it is considered an "adverse decision" or "final adverse decision" as defined in the regulation. 18VAC48-90 allows complainants who are dissatisfied with the adverse decision to file a notice of final adverse decision in writing on forms provided by the Office of the CIC Ombudsman at the Department of Professional and Occupational Regulation (DPOR). As part of their submission, they must submit a $25 filing fee. The CIC board proposes to increase the time the association has to provide written acknowledgment of its receipt of a complaint (to 14 days from seven days) and add that notice of the meeting where a complaint will be considered must be provided at least 14 days before it is held, unless otherwise agreed to in writing. Currently, the regulation just requires notice of the meeting "within a reasonable time" before it is held. Lastly, the Health and Human Services Poverty Guidelines would be used to determine whether the $25 filing fee for the notice of final adverse decision can be waived by the board.⁴ The board also seeks to make a number of clarifying edits.

Estimated Benefits and Costs: The proposed amendments largely serve to clarify and update the regulation and are not expected to create new costs. CIC associations could benefit from having 14 rather than seven days to provide written acknowledgement of a complaint, and complainants would likely benefit from the requirement that they be notified of a meeting at least 14 days before it is held. While the board is currently authorized to waive the $25 filing fee if it would cause undue financial hardship to the complainant, specifying that such determinations would be based on the federal poverty guidelines would enhance clarity and transparency.

Businesses and Other Entities Affected. The proposed amendments would affect the 6,983 registered CIC associations and 152 licensed CIC management companies and could indirectly affect all the residents of CICs to the extent that they need to go through the complaint procedure. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ As the proposed amendments neither increase net costs nor reduce net benefits, no adverse impact is indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments do not adversely affect small businesses.

Costs and Other Effects. To the extent that small businesses pay for the practitioner licensure fees, their costs would increase commensurately with the proposed increases. Small businesses that operate training programs would face higher costs due to the increase in training program fees.

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

Localities⁹ Affected.¹⁰ The proposed amendments do not affect costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments neither affect the use and value of private property nor real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title54.1/chapter23.3/section54.1-2345/.

³ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=2956.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, 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."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Common Interest Community Board concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Executive Directive One (2022) and Executive Order 19 (2022), the proposed amendments primarily consolidate and clarify the regulation. Additionally, substantive proposed changes (i) increase the time an association has to provide written acknowledgment of its receipt of a complaint to 14 days; (ii) add that notice of the meeting where a complaint will be considered must be provided at least 14 days before the meeting is held; and (iii) include the Health and Human Services Poverty Guidelines as the mechanism for determining whether the $25 filing fee for the notice of final adverse decision can be waived by the board.

18VAC48-70-10. Definitions.

A. Section 54.1-2345 of the Code of Virginia provides definitions of the following terms and phrases as used in this chapter:

Association

Board

Common interest community

Common interest community manager

Declaration

Governing board

Lot

B. Section 54.1-2354.1 of the Code of Virginia provides the definition of the following term as used in this chapter:

Director

C. Section 55.1-1900 of the Code of Virginia provides definition of the following term as used in this chapter:

Condominium instruments

D. Section 55.1-2307 of the Code of Virginia provides definitions of the following terms as used in this chapter:

Governing documents

Resale certificate

E. The following words, terms, and phrases, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. a different meaning is provided or is plainly required by context:

"Adverse decision" or "final adverse decision" means the final determination decision issued by an association pursuant to an association complaint procedure that is opposite of, or does not provide for, either wholly or in part, the cure or corrective action sought by the complainant. Such decision means all avenues for internal appeal under the association complaint procedure have been exhausted. The date of the final adverse decision shall be the date of the notice issued pursuant to subdivisions 8 and 9 of 18VAC48-70-50.

"Association complaint" means a written complaint filed by a member of the association or a citizen pursuant to an association complaint procedure. An association complaint shall must concern a matter regarding the an action, inaction, or decision by the association, governing board, or managing agent, or association inconsistent that is in conflict with applicable common interest community laws and or regulations.

"Association complaint procedure" means the written process adopted by an association to receive and consider association complaints from members and citizens. The complaint procedure shall include contact information for the Office of the Common Interest Community Ombudsman in accordance with § 54.1-2354.4 of the Code of Virginia. An appeal process, if applicable, shall be set out in an association complaint procedure adopted by the association, including relevant timeframes for filing the request for appeal. If no appeal process is available, the association complaint procedure shall indicate that no appeal process is available and that the rendered decision is final.

"Association governing documents" means collectively the applicable organizational documents, including the current and effective (i) articles of incorporation, declaration, and bylaws of a property owners' association, (ii) condominium instruments of a condominium, and (iii) declaration and bylaws of a real estate cooperative, all as may be amended from time to time. Association governing documents also include, to the extent in existence, resolutions, rules and regulations, or other guidelines governing association member conduct and association governance.

"Common interest community laws or regulations" means Chapter 23.3 (§ 54.1-2345 et seq.) of Title 54.1 of the Code of Virginia; Chapter 18 (§ 55.1-1800 et seq.), 19 (§ 55.1-1900 et seq.), 20 (§ 55.1-2000 et seq.), or 21 (§ 55.1-2100 et seq.) of Title 55.1 of the Code of Virginia; or the regulations of the board.

"Complainant" means an association member or citizen who makes a written complaint pursuant to an association complaint procedure.

"Director" means the Director of the Department of Professional and Occupational Regulation.

"Record of complaint" means all documents, correspondence, and other materials related to a decision made pursuant to an association complaint procedure.

18VAC48-70-20. Submission of documentation.

Any documentation required to be filed with or provided to the board, director, or Office of the Common Interest Community Ombudsman pursuant to this chapter and Article 2 (§ 54.1-2354.1 et seq.) of Chapter 23.3 of Title 54.1 of the Code of Virginia shall must be filed with or provided to the Department of Professional and Occupational Regulation.

18VAC48-70-30. Requirement for association to develop an association complaint procedure.

In accordance with § 54.1-2354.4 of the Code of Virginia, each association shall will have a written process for resolving association complaints from members and citizens. The association complaint procedure or form shall will conform with the requirements set forth in § 54.1-2354.4 of the Code of Virginia and this chapter, as well as the association governing documents, which shall must not be in conflict with § 54.1-2354.4 of the Code of Virginia or this chapter.

18VAC48-70-40. Establishment and adoption of written association complaint procedure.

A. Associations filing an initial application for registration pursuant to § 55.1-1835, 55.1-1980, or 55.1-2182 of the Code of Virginia must certify that an association complaint procedure has been established and adopted at as of the date of registering or within 90 days of registering with the board.

B. An association that has been delinquent in registering the association and filing its required annual reports is still required to have an established and adopted written association complaint procedure. At the time such an association files an application for registration, it must certify that an association complaint procedure has been established and adopted by the governing board.

C. The association shall will certify with each annual report filing that the association complaint procedure has been adopted and is in effect.

18VAC48-70-50. Association complaint procedure requirements.

The association complaint procedure shall must be in writing and shall include the following provisions in addition to any specific requirements contained in the association's governing documents that do not conflict with § 54.1-2354.4 of the Code of Virginia or the requirements of this chapter.

1. The association complaint must be in writing.

2. A sample of the form, if any, on which the association complaint must be filed shall will be provided upon request.

3. The association complaint procedure shall must include the process by which complaints shall be are delivered to the association.

4. The association complaint procedure must include contact information for the Office of the Common Interest Community Ombudsman in accordance with § 54.1-2354.4 of the Code of Virginia.

5. The association shall must provide written acknowledgment of receipt of the association complaint to the complainant within seven 14 days of receipt. Such The acknowledgment shall will be hand delivered or, mailed by registered or certified mail, return receipt requested, or delivered by third-party courier, with proof of delivery to the complainant at the address provided, or if consistent with established association procedure, by electronic means, unless prohibited by the governing documents, provided the sender association retains sufficient proof of the electronic delivery.

5. 6. Any specific documentation that must be provided with the association complaint shall must be clearly described in the association complaint procedure. In addition, to the extent the complainant has knowledge of the law or regulation applicable to the complaint, the complainant shall will provide that reference, as well as the requested action or resolution.

6. 7. The association shall must have a reasonable, efficient, and timely method for identifying and requesting any additional information from the complainant that is necessary for the complainant to provide in order to continue processing the association complaint. The association shall will establish a reasonable timeframe for responding to and for the disposition of the association complaint if the request for information is not received within the required timeframe.

7. 8. Notice of the date, time, and location that the matter will be considered shall will be hand delivered or, mailed by registered or certified mail, return receipt requested, or delivered by third-party courier, with proof of delivery to the complainant at the address provided or, if consistent with established association procedure, delivered by electronic means, unless prohibited by the governing documents, provided the sender association retains sufficient proof of the electronic delivery, within a reasonable time at least 14 days, unless otherwise agreed to in writing, prior to consideration as established by the association complaint procedure.

8. 9. After the final determination is made, the written notice of final determination shall will be hand delivered or, mailed by registered or certified mail, return receipt requested, or delivered by third-party courier, with proof of delivery, to the complainant at the address provided or, if consistent with established association procedure, delivered by electronic means, unless prohibited by the governing documents, provided the sender association retains sufficient proof of the electronic delivery, within seven days.

9. 10. The notice of final determination shall must be dated as of the date of issuance and include specific citations to applicable association governing documents, common interest community laws, or regulations that led to the final determination, as well as the registration number of the association. If applicable, the name and license number of the common interest community manager shall must also be provided.

10. 11. The notice of final determination shall must include the complainant's right to file a Notice notice of Final Adverse Decision final adverse decision with the Common Interest Community Board via the Common Interest Community Ombudsman and the applicable contact information.

12. An appeal process, if applicable, must be set out in an association complaint procedure, including relevant timeframes for filing the request for appeal. If no appeal process is available, the association complaint procedure must indicate that no appeal process is available and that the rendered decision is final.

18VAC48-70-70. Maintenance of association record of complaint.

A. A record of each association complaint filed with the association shall must be maintained in accordance with § 54.1-2354.4 A 1 of the Code of Virginia.

B. Unless otherwise specified by the director or his the director's designee, the association shall must provide to the director or his the director's designee, within 14 days of receipt of the request, any document, book, or record concerning the association complaint. The director or his the director's designee may extend such timeframe upon a showing of extenuating circumstances prohibiting delivery within 14 days of receiving the request.

18VAC48-70-90. Filing of notice of final adverse decision.

A complainant may file a notice of final adverse decision in accordance with § 54.1-2354.4 B of the Code of Virginia concerning any final adverse decision that has been issued by an association in accordance with this chapter.

1. The notice shall must be filed within 30 days of the date of the final adverse decision.

2. The notice shall must be in writing on forms provided by the Office of the Common Interest Community Ombudsman. Such The forms shall request will include the following information:

a. Name and contact information of complainant;

b. Name, address, and contact information of association;

c. Applicable association governing documents; and

d. c. Date of final adverse decision. The date of final adverse decision will be the date of the notice issued pursuant to subdivisions 8 and 9 of 18VAC48-70-50.

3. The notice shall must include a copy of the association complaint, the final adverse decision, reference to the laws and regulations the final adverse decision may have violated, any supporting documentation related to that accompanied the final adverse decision, and a copy of the association complaint procedure.

4. The notice shall must be accompanied by a $25 filing fee or a request for waiver pursuant to 18VAC48-70-100.

18VAC48-70-100. Waiver of filing fee.

A. In accordance with § 54.1-2354.4 B of the Code of Virginia, the board may, for good cause shown, waive or refund the filing fee upon a finding that payment of the filing fee will cause undue financial hardship for the complainant.

B. The board will use the current U.S. Department of Health and Human Services (HHS) Poverty Guidelines to establish the threshold for whether a filing fee will be waived or refunded as a result of financial hardship. The HHS Poverty Guidelines, as updated annually in the Federal Register, are available at https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines.

C. In order to determine whether the complainant requesting the waiver or refund of the filing fee is at or below the HHS Poverty Guidelines, the complainant must submit to the board supporting documentation satisfactory that provides proof of income.

D. A waiver or refund of the filing fee will be granted if proof of income submitted is at or below the then-current HHS Poverty Guidelines.

18VAC48-70-110. Review of final adverse decision.

A. Upon receipt of the notice of final adverse decision from the complainant, along with the filing fee or a board-approved waiver of filing fee, the Office of the Common Interest Community Ombudsman shall will provide written acknowledgment of receipt of the notice to the complainant and shall will provide a copy of the written notice to the governing board and, if applicable, the common interest community manager of the association that made the final adverse decision. The notice of adverse decision is not complete and will not be reviewed until the filing fee has been received or a waiver of filing fee has been granted by the board.

B. In accordance with § 54.1-2354.4 C of the Code of Virginia, additional information may be requested from the association that made the final adverse decision. Upon request, the association shall will provide such information to the Office of the Common Interest Community Ombudsman within a reasonable time.

C. Information that was not part of the final adverse decision will not be considered.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

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).

18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-50).

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 and 54.1-3505 of the Code of Virginia.

Public Hearing Information:

January 28, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 2, 9960 Mayland Drive, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Board of Nursing are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In addition, the board is obligated by § 54.1-113 of the Code of Virginia to adjust fees to cover operating costs.

Purpose: The board last instituted a fee increase in 2011. The previous fee increase prior to that was between 2004 and 2006, depending on the license type. The board instituted a one-time fee reduction in 2017 as required by the Callahan Act (§ 54.1-113 of the Code of Virginia). It is important to note that the one-time fee reduction resulted in a decreased revenue of $2,395,212 that would have helped the board cushion the current negative trend. Amendments to operation changes affecting available funds include: a 44% increase in licensees since 2003 (2003: 163,453; Q1 2024: 235,045); a 160% increase in employees of the board since 2003 (2003: 30; 2023: 78); a 5.0% increase in salary due to mandatory retirement system contributions; 42% increase in investigations since 2013; 27% increase in cases received since 2013; 37% increase in allocated enforcement costs since 2018; 110% increase in administrative proceedings division allocated costs; and a 49% increase in information technology costs.

The Board of Nursing also faces a unique issue related to the maintenance of the certified nurse aide (CNA) registry. The federal government requires the board to maintain the CNA registry, but limits what can be charged to CNAs in terms of fees. The board receives allowed reimbursements from the Department of Medical Assistance Services for maintenance of the registry, but the expenditures of the registry far outstrip the reimbursements. For example, in fiscal year (FY) 2024, the expenditures for 11 months up to May 2024 were $2.918 million and expected to be over $3 million for the entire fiscal year but allowed reimbursements will be only $556,722.

Without adequate revenue to support inspections of nursing programs, licensing, and disciplinary functions, work to protect the public by regulating, licensing, and disciplining the nursing workforce under the board will slow. This will deprive the citizens of the Commonwealth of safe and necessary nursing services. Additionally, should inadequate revenue cause a backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners who are actively committing violations of regulations or unprofessional conduct to continue practicing unencumbered for months while awaiting review and adjudication of disciplinary matters. The estimated FY 2025 cash balance, reflecting a projected revenue of $15,041,686 and expenditures of $20,095,428, will be -$2,548,279. The estimated FY 2026 cash balance, reflecting a projected revenue of $15,252,269 and expenditures of $20,895,868, will be -$8,191,878.

Substance: To address the deficit in board funding, the board will increase fees for most categories of practitioners and programs that the board regulates by 65% to 70%.

Issues: The primary advantage to the public is the continued licensing and disciplining of health care professionals by the board. There are no disadvantages to the public because the board is a special fund agency that is not funded by the general public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Nursing (board) is proposing to amend six regulations to increase fees for its licensed professions in order to comply with § 54.1-113 B of the Code of Virginia (the Callahan Act).²

Background. The Callahan Act requires the Department of Health Professions (DHP) and its boards to revise fees in situations in which expenses allocated to the board for the past biennium are more than 10% greater or less than moneys collected on behalf of the board.³ DHP reports that over the 2022-2024 biennium, the board's total expenditures were $35,973,319 and total revenues were $29,625,358. Since the expenses exceed the revenues by 21%, these numbers would appear to satisfy the requirements of the Callahan Act, suggesting that a fee increase is necessary. DHP also reports that that the board is not currently in a deficit, with a cash balance of $2,480,785 at the end of fiscal year (FY) 2024. However, the board is projected to have a deficit of roughly $2.5 million by the end of the current fiscal year and a deficit of roughly $8 million by the close of FY 2026.⁴

DHP reports that the fees for this board were last increased in 2011⁵ and that there was also a one-time reduction in renewal fees in 2017.⁶ DHP reports that since the last fee increase, the board has experienced an increase in salaries (enacted by the General Assembly) as well as increases in infrastructure costs such as those attributed to technology and real estate. In addition, DHP reports that the number of licensees under this board has increased by 44% over the last 20 years; as a result, the number of disciplinary cases and investigations and the allocated costs from enforcement and administrative proceedings have also increased. Lastly, the federal government requires the board to maintain the Certified Nurse Aide (CNA) registry but limits the fees that can be charged to CNAs.⁷ DHP reports that the expenditures for the registry were over $3 million in FY 2024.

To prevent the anticipated deficit, the board proposes to increase fees for most categories of practitioners and programs by 65% to 70%. Incidental fees, such as those for late renewal or reinstatement, would be increased by a greater percentage than fees that are required for all licensees. Further, some licensees, such as Advanced Practice Registered Nurses (APRNs), would face a higher percentage fee increase to reflect their higher earning potential, whereas Licensed Massage Therapists (LMTs) would face a higher percentage fee increase because the profession generates a higher number of more complex disciplinary cases that take up more board member and staff time.⁸ The board does not propose to increase fees for Licensed Certified Midwives as they are a newly added license category and there are only six licensees as of June 2024. The proposed fee increases, which are listed in the following table, are expected to generate approximately $10 million in additional revenue per year.

Lastly, the board proposes to (i) add a new criminal background check administrative fee of $25 in the nursing regulation (18VAC90-19) and massage therapists regulation (18VAC90-50), (ii) repeal a $35 verification of license fee for nurses (18VAC90-19) since licenses can now be verified online at no cost, and (iii) repeal a $35 fee for a transcript of all or part of applicant/licensee records in the massage therapists regulation (18VAC90-50).

Estimated Benefits and Costs: The proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. The increased fees would allow the board to remain financially solvent and continue to provide oversight for these professions, including issuing licenses, conducting inspections, investigating complaints, and implementing any disciplinary actions. This in turn would maintain public confidence in these professionals and protect public safety from unscrupulous actors.

Businesses and Other Entities Affected. As mentioned previously, the proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. At the close of FY 2024, the board reported having 27,063 LPNs and 122,291 RNs; 51,552 CNAs and 50 Advanced CNAs; 20,988 APRNs; 8,263 LMTs; 7,377 medication aides; 40 practical schools of nursing and 67 professional schools of nursing, and 215 medication aide training programs.⁹ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁰ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹¹ Since the proposed amendments would increase costs, an adverse impact is indicated for the various nursing professionals and the training programs that would face higher fees.

Small Businesses¹² Affected.¹³ Types and Estimated Number of Small Businesses Affected. Since the board licenses individuals and not firms, no data on the number of affected small firms are available. Small businesses that employ RNs, LPNs, CNAs, APRNs, or medication aides may be indirectly affected if they pay for their employee license renewal fees. However, many of the LMTs may be self-employed or sole proprietors or employed by small businesses such as spas. Some nursing education and medication aide training programs may meet the definition of small businesses.

Costs and Other Effects. To the extent that small businesses pay for the practitioner licensure fees, their costs would increase commensurately with the proposed increases. Small businesses that operate training programs would face higher costs due to the increase in training program fees.

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

Localities¹⁴ Affected.¹⁵ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment prospects or entry into the profession for RNs, LPNs, CNAs, APRNs, LMTs, or medication aides.

Effects on the Use and Value of Private Property. The proposed fee increases would increase costs for private nursing education programs and medication aide training programs. Potentially, this may result in a modest decrease in their value. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title54.1/chapter1/section54.1-113/.

³ It should be noted that the Callahan Act does not specify whether moneys collected on behalf of the board refers only to the revenues in the immediately preceding biennium or if it also includes the cash balance from the biennium prior to that..

⁴ See page 3 of the Agency Background Document (ABD) https://townhall.virginia.gov/L/GetFile.cfm?File=27\6414\10416\AgencyStatement_DHP_10416_v1.pdf.

⁵ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=3110.

⁶ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4772.

⁷ See https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483/subpart-D/section-483.156.

⁸ See pages 8-14 of the ABD for details regarding the rationale for fee increases for each chapter.

⁹ Source: DHP. See https://www.dhp.virginia.gov/about/stats/2024Q4/ 04CurrentLicenseCountQ4FY2024.pdf.

¹⁰ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹¹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹² Pursuant to § 2.2-4007.04, 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."

¹³ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁴ "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.

¹⁵ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Nursing concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to § 54.1-113 of the Code of Virginia, the proposed amendments raise fees charged by the Board of Nursing to ensure the board obtains sufficient operating funds for fiscal years 2025 and 2026.

18VAC90-19-30. Fees.

A. Fees required by the board are:

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

18VAC90-25-16. Fees.

A. The following fees shall apply:

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

18VAC90-30-50. Fees.

A. Fees required in connection with the licensure of advanced practice registered nurses are:

B. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

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:

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

18VAC90-60-30. Fees.

A. The following fees shall apply:

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.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

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).

18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-50).

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 and 54.1-3505 of the Code of Virginia.

Public Hearing Information:

January 28, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 2, 9960 Mayland Drive, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Board of Nursing are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In addition, the board is obligated by § 54.1-113 of the Code of Virginia to adjust fees to cover operating costs.

Purpose: The board last instituted a fee increase in 2011. The previous fee increase prior to that was between 2004 and 2006, depending on the license type. The board instituted a one-time fee reduction in 2017 as required by the Callahan Act (§ 54.1-113 of the Code of Virginia). It is important to note that the one-time fee reduction resulted in a decreased revenue of $2,395,212 that would have helped the board cushion the current negative trend. Amendments to operation changes affecting available funds include: a 44% increase in licensees since 2003 (2003: 163,453; Q1 2024: 235,045); a 160% increase in employees of the board since 2003 (2003: 30; 2023: 78); a 5.0% increase in salary due to mandatory retirement system contributions; 42% increase in investigations since 2013; 27% increase in cases received since 2013; 37% increase in allocated enforcement costs since 2018; 110% increase in administrative proceedings division allocated costs; and a 49% increase in information technology costs.

The Board of Nursing also faces a unique issue related to the maintenance of the certified nurse aide (CNA) registry. The federal government requires the board to maintain the CNA registry, but limits what can be charged to CNAs in terms of fees. The board receives allowed reimbursements from the Department of Medical Assistance Services for maintenance of the registry, but the expenditures of the registry far outstrip the reimbursements. For example, in fiscal year (FY) 2024, the expenditures for 11 months up to May 2024 were $2.918 million and expected to be over $3 million for the entire fiscal year but allowed reimbursements will be only $556,722.

Without adequate revenue to support inspections of nursing programs, licensing, and disciplinary functions, work to protect the public by regulating, licensing, and disciplining the nursing workforce under the board will slow. This will deprive the citizens of the Commonwealth of safe and necessary nursing services. Additionally, should inadequate revenue cause a backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners who are actively committing violations of regulations or unprofessional conduct to continue practicing unencumbered for months while awaiting review and adjudication of disciplinary matters. The estimated FY 2025 cash balance, reflecting a projected revenue of $15,041,686 and expenditures of $20,095,428, will be -$2,548,279. The estimated FY 2026 cash balance, reflecting a projected revenue of $15,252,269 and expenditures of $20,895,868, will be -$8,191,878.

Substance: To address the deficit in board funding, the board will increase fees for most categories of practitioners and programs that the board regulates by 65% to 70%.

Issues: The primary advantage to the public is the continued licensing and disciplining of health care professionals by the board. There are no disadvantages to the public because the board is a special fund agency that is not funded by the general public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Nursing (board) is proposing to amend six regulations to increase fees for its licensed professions in order to comply with § 54.1-113 B of the Code of Virginia (the Callahan Act).²

Background. The Callahan Act requires the Department of Health Professions (DHP) and its boards to revise fees in situations in which expenses allocated to the board for the past biennium are more than 10% greater or less than moneys collected on behalf of the board.³ DHP reports that over the 2022-2024 biennium, the board's total expenditures were $35,973,319 and total revenues were $29,625,358. Since the expenses exceed the revenues by 21%, these numbers would appear to satisfy the requirements of the Callahan Act, suggesting that a fee increase is necessary. DHP also reports that that the board is not currently in a deficit, with a cash balance of $2,480,785 at the end of fiscal year (FY) 2024. However, the board is projected to have a deficit of roughly $2.5 million by the end of the current fiscal year and a deficit of roughly $8 million by the close of FY 2026.⁴

DHP reports that the fees for this board were last increased in 2011⁵ and that there was also a one-time reduction in renewal fees in 2017.⁶ DHP reports that since the last fee increase, the board has experienced an increase in salaries (enacted by the General Assembly) as well as increases in infrastructure costs such as those attributed to technology and real estate. In addition, DHP reports that the number of licensees under this board has increased by 44% over the last 20 years; as a result, the number of disciplinary cases and investigations and the allocated costs from enforcement and administrative proceedings have also increased. Lastly, the federal government requires the board to maintain the Certified Nurse Aide (CNA) registry but limits the fees that can be charged to CNAs.⁷ DHP reports that the expenditures for the registry were over $3 million in FY 2024.

To prevent the anticipated deficit, the board proposes to increase fees for most categories of practitioners and programs by 65% to 70%. Incidental fees, such as those for late renewal or reinstatement, would be increased by a greater percentage than fees that are required for all licensees. Further, some licensees, such as Advanced Practice Registered Nurses (APRNs), would face a higher percentage fee increase to reflect their higher earning potential, whereas Licensed Massage Therapists (LMTs) would face a higher percentage fee increase because the profession generates a higher number of more complex disciplinary cases that take up more board member and staff time.⁸ The board does not propose to increase fees for Licensed Certified Midwives as they are a newly added license category and there are only six licensees as of June 2024. The proposed fee increases, which are listed in the following table, are expected to generate approximately $10 million in additional revenue per year.

Lastly, the board proposes to (i) add a new criminal background check administrative fee of $25 in the nursing regulation (18VAC90-19) and massage therapists regulation (18VAC90-50), (ii) repeal a $35 verification of license fee for nurses (18VAC90-19) since licenses can now be verified online at no cost, and (iii) repeal a $35 fee for a transcript of all or part of applicant/licensee records in the massage therapists regulation (18VAC90-50).

Estimated Benefits and Costs: The proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. The increased fees would allow the board to remain financially solvent and continue to provide oversight for these professions, including issuing licenses, conducting inspections, investigating complaints, and implementing any disciplinary actions. This in turn would maintain public confidence in these professionals and protect public safety from unscrupulous actors.

Businesses and Other Entities Affected. As mentioned previously, the proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. At the close of FY 2024, the board reported having 27,063 LPNs and 122,291 RNs; 51,552 CNAs and 50 Advanced CNAs; 20,988 APRNs; 8,263 LMTs; 7,377 medication aides; 40 practical schools of nursing and 67 professional schools of nursing, and 215 medication aide training programs.⁹ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁰ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹¹ Since the proposed amendments would increase costs, an adverse impact is indicated for the various nursing professionals and the training programs that would face higher fees.

Small Businesses¹² Affected.¹³ Types and Estimated Number of Small Businesses Affected. Since the board licenses individuals and not firms, no data on the number of affected small firms are available. Small businesses that employ RNs, LPNs, CNAs, APRNs, or medication aides may be indirectly affected if they pay for their employee license renewal fees. However, many of the LMTs may be self-employed or sole proprietors or employed by small businesses such as spas. Some nursing education and medication aide training programs may meet the definition of small businesses.

Costs and Other Effects. To the extent that small businesses pay for the practitioner licensure fees, their costs would increase commensurately with the proposed increases. Small businesses that operate training programs would face higher costs due to the increase in training program fees.

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

Localities¹⁴ Affected.¹⁵ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment prospects or entry into the profession for RNs, LPNs, CNAs, APRNs, LMTs, or medication aides.

Effects on the Use and Value of Private Property. The proposed fee increases would increase costs for private nursing education programs and medication aide training programs. Potentially, this may result in a modest decrease in their value. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title54.1/chapter1/section54.1-113/.

³ It should be noted that the Callahan Act does not specify whether moneys collected on behalf of the board refers only to the revenues in the immediately preceding biennium or if it also includes the cash balance from the biennium prior to that..

⁴ See page 3 of the Agency Background Document (ABD) https://townhall.virginia.gov/L/GetFile.cfm?File=27\6414\10416\AgencyStatement_DHP_10416_v1.pdf.

⁵ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=3110.

⁶ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4772.

⁷ See https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483/subpart-D/section-483.156.

⁸ See pages 8-14 of the ABD for details regarding the rationale for fee increases for each chapter.

⁹ Source: DHP. See https://www.dhp.virginia.gov/about/stats/2024Q4/ 04CurrentLicenseCountQ4FY2024.pdf.

¹⁰ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹¹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹² Pursuant to § 2.2-4007.04, 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."

¹³ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁴ "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.

¹⁵ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Nursing concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to § 54.1-113 of the Code of Virginia, the proposed amendments raise fees charged by the Board of Nursing to ensure the board obtains sufficient operating funds for fiscal years 2025 and 2026.

18VAC90-19-30. Fees.

A. Fees required by the board are:

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

18VAC90-25-16. Fees.

A. The following fees shall apply:

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

18VAC90-30-50. Fees.

A. Fees required in connection with the licensure of advanced practice registered nurses are:

B. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

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:

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

18VAC90-60-30. Fees.

A. The following fees shall apply:

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.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

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).

18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-50).

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 and 54.1-3505 of the Code of Virginia.

Public Hearing Information:

January 28, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 2, 9960 Mayland Drive, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Board of Nursing are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In addition, the board is obligated by § 54.1-113 of the Code of Virginia to adjust fees to cover operating costs.

Purpose: The board last instituted a fee increase in 2011. The previous fee increase prior to that was between 2004 and 2006, depending on the license type. The board instituted a one-time fee reduction in 2017 as required by the Callahan Act (§ 54.1-113 of the Code of Virginia). It is important to note that the one-time fee reduction resulted in a decreased revenue of $2,395,212 that would have helped the board cushion the current negative trend. Amendments to operation changes affecting available funds include: a 44% increase in licensees since 2003 (2003: 163,453; Q1 2024: 235,045); a 160% increase in employees of the board since 2003 (2003: 30; 2023: 78); a 5.0% increase in salary due to mandatory retirement system contributions; 42% increase in investigations since 2013; 27% increase in cases received since 2013; 37% increase in allocated enforcement costs since 2018; 110% increase in administrative proceedings division allocated costs; and a 49% increase in information technology costs.

The Board of Nursing also faces a unique issue related to the maintenance of the certified nurse aide (CNA) registry. The federal government requires the board to maintain the CNA registry, but limits what can be charged to CNAs in terms of fees. The board receives allowed reimbursements from the Department of Medical Assistance Services for maintenance of the registry, but the expenditures of the registry far outstrip the reimbursements. For example, in fiscal year (FY) 2024, the expenditures for 11 months up to May 2024 were $2.918 million and expected to be over $3 million for the entire fiscal year but allowed reimbursements will be only $556,722.

Without adequate revenue to support inspections of nursing programs, licensing, and disciplinary functions, work to protect the public by regulating, licensing, and disciplining the nursing workforce under the board will slow. This will deprive the citizens of the Commonwealth of safe and necessary nursing services. Additionally, should inadequate revenue cause a backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners who are actively committing violations of regulations or unprofessional conduct to continue practicing unencumbered for months while awaiting review and adjudication of disciplinary matters. The estimated FY 2025 cash balance, reflecting a projected revenue of $15,041,686 and expenditures of $20,095,428, will be -$2,548,279. The estimated FY 2026 cash balance, reflecting a projected revenue of $15,252,269 and expenditures of $20,895,868, will be -$8,191,878.

Substance: To address the deficit in board funding, the board will increase fees for most categories of practitioners and programs that the board regulates by 65% to 70%.

Issues: The primary advantage to the public is the continued licensing and disciplining of health care professionals by the board. There are no disadvantages to the public because the board is a special fund agency that is not funded by the general public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Nursing (board) is proposing to amend six regulations to increase fees for its licensed professions in order to comply with § 54.1-113 B of the Code of Virginia (the Callahan Act).²

Background. The Callahan Act requires the Department of Health Professions (DHP) and its boards to revise fees in situations in which expenses allocated to the board for the past biennium are more than 10% greater or less than moneys collected on behalf of the board.³ DHP reports that over the 2022-2024 biennium, the board's total expenditures were $35,973,319 and total revenues were $29,625,358. Since the expenses exceed the revenues by 21%, these numbers would appear to satisfy the requirements of the Callahan Act, suggesting that a fee increase is necessary. DHP also reports that that the board is not currently in a deficit, with a cash balance of $2,480,785 at the end of fiscal year (FY) 2024. However, the board is projected to have a deficit of roughly $2.5 million by the end of the current fiscal year and a deficit of roughly $8 million by the close of FY 2026.⁴

DHP reports that the fees for this board were last increased in 2011⁵ and that there was also a one-time reduction in renewal fees in 2017.⁶ DHP reports that since the last fee increase, the board has experienced an increase in salaries (enacted by the General Assembly) as well as increases in infrastructure costs such as those attributed to technology and real estate. In addition, DHP reports that the number of licensees under this board has increased by 44% over the last 20 years; as a result, the number of disciplinary cases and investigations and the allocated costs from enforcement and administrative proceedings have also increased. Lastly, the federal government requires the board to maintain the Certified Nurse Aide (CNA) registry but limits the fees that can be charged to CNAs.⁷ DHP reports that the expenditures for the registry were over $3 million in FY 2024.

To prevent the anticipated deficit, the board proposes to increase fees for most categories of practitioners and programs by 65% to 70%. Incidental fees, such as those for late renewal or reinstatement, would be increased by a greater percentage than fees that are required for all licensees. Further, some licensees, such as Advanced Practice Registered Nurses (APRNs), would face a higher percentage fee increase to reflect their higher earning potential, whereas Licensed Massage Therapists (LMTs) would face a higher percentage fee increase because the profession generates a higher number of more complex disciplinary cases that take up more board member and staff time.⁸ The board does not propose to increase fees for Licensed Certified Midwives as they are a newly added license category and there are only six licensees as of June 2024. The proposed fee increases, which are listed in the following table, are expected to generate approximately $10 million in additional revenue per year.

Lastly, the board proposes to (i) add a new criminal background check administrative fee of $25 in the nursing regulation (18VAC90-19) and massage therapists regulation (18VAC90-50), (ii) repeal a $35 verification of license fee for nurses (18VAC90-19) since licenses can now be verified online at no cost, and (iii) repeal a $35 fee for a transcript of all or part of applicant/licensee records in the massage therapists regulation (18VAC90-50).

Estimated Benefits and Costs: The proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. The increased fees would allow the board to remain financially solvent and continue to provide oversight for these professions, including issuing licenses, conducting inspections, investigating complaints, and implementing any disciplinary actions. This in turn would maintain public confidence in these professionals and protect public safety from unscrupulous actors.

Businesses and Other Entities Affected. As mentioned previously, the proposed fee increases would increase costs for current and prospective nurses (RNs and LPNs), CNAs, APRNs, LMTs, medication aides, as well as nursing education programs and medication aide training programs. At the close of FY 2024, the board reported having 27,063 LPNs and 122,291 RNs; 51,552 CNAs and 50 Advanced CNAs; 20,988 APRNs; 8,263 LMTs; 7,377 medication aides; 40 practical schools of nursing and 67 professional schools of nursing, and 215 medication aide training programs.⁹ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁰ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹¹ Since the proposed amendments would increase costs, an adverse impact is indicated for the various nursing professionals and the training programs that would face higher fees.

Small Businesses¹² Affected.¹³ Types and Estimated Number of Small Businesses Affected. Since the board licenses individuals and not firms, no data on the number of affected small firms are available. Small businesses that employ RNs, LPNs, CNAs, APRNs, or medication aides may be indirectly affected if they pay for their employee license renewal fees. However, many of the LMTs may be self-employed or sole proprietors or employed by small businesses such as spas. Some nursing education and medication aide training programs may meet the definition of small businesses.

Costs and Other Effects. To the extent that small businesses pay for the practitioner licensure fees, their costs would increase commensurately with the proposed increases. Small businesses that operate training programs would face higher costs due to the increase in training program fees.

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

Localities¹⁴ Affected.¹⁵ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment prospects or entry into the profession for RNs, LPNs, CNAs, APRNs, LMTs, or medication aides.

Effects on the Use and Value of Private Property. The proposed fee increases would increase costs for private nursing education programs and medication aide training programs. Potentially, this may result in a modest decrease in their value. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title54.1/chapter1/section54.1-113/.

³ It should be noted that the Callahan Act does not specify whether moneys collected on behalf of the board refers only to the revenues in the immediately preceding biennium or if it also includes the cash balance from the biennium prior to that..

⁴ See page 3 of the Agency Background Document (ABD) https://townhall.virginia.gov/L/GetFile.cfm?File=27\6414\10416\AgencyStatement_DHP_10416_v1.pdf.

⁵ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=3110.

⁶ See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4772.

⁷ See https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483/subpart-D/section-483.156.

⁸ See pages 8-14 of the ABD for details regarding the rationale for fee increases for each chapter.

⁹ Source: DHP. See https://www.dhp.virginia.gov/about/stats/2024Q4/ 04CurrentLicenseCountQ4FY2024.pdf.

¹⁰ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹¹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹² Pursuant to § 2.2-4007.04, 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."

¹³ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁴ "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.

¹⁵ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Nursing concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to § 54.1-113 of the Code of Virginia, the proposed amendments raise fees charged by the Board of Nursing to ensure the board obtains sufficient operating funds for fiscal years 2025 and 2026.

18VAC90-19-30. Fees.

A. Fees required by the board are:

B. For renewal of licensure or registration from July 1, 2017, through June 30, 2019, the following fees shall be in effect:

18VAC90-25-16. Fees.

A. The following fees shall apply:

B. Fees shall not be refunded once submitted.

18VAC90-27-20. Fees.

Fees required by the board are:

18VAC90-30-50. Fees.

A. Fees required in connection with the licensure of advanced practice registered nurses are:

B. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

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:

C. For renewal of licensure from July 1, 2017, through June 30, 2019, the following fee shall be in effect:

18VAC90-60-30. Fees.

A. The following fees shall apply:

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.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Proposed Regulation

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).

18VAC90-30. Regulations Governing the Licensure of Advanced Practice Registered Nurses (amending 18VAC90-30-50).

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 and 54.1-3505 of the Code of Virginia.

Public Hearing Information:

January 28, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 201, Board Room 2, 9960 Mayland Drive, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

Agency Contact: Claire Morris, RN, Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4665, or email claire.morris@dhp.virginia.gov.

Basis: Regulations of the Board of Nursing are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In addition, the board is obligated by § 54.1-113 of the Code of Virginia to adjust fees to cover operating costs.

Purpose: The board last instituted a fee increase in 2011. The previous fee increase prior to that was between 2004 and 2006, depending on the license type. The board instituted a one-time fee reduction in 2017 as required by the Callahan Act (§ 54.1-113 of the Code of Virginia). It is important to note that the one-time fee reduction resulted in a decreased revenue of $2,395,212 that would have helped the board cushion the current negative trend. Amendments to operation changes affecting available funds include: a 44% increase in licensees since 2003 (2003: 163,453; Q1 2024: 235,045); a 160% increase in employees of the board since 2003 (2003: 30; 2023: 78); a 5.0% increase in salary due to mandatory retirement system contributions; 42% increase in investigations since 2013; 27% increase in cases received since 2013; 37% increase in allocated enforcement costs since 2018; 110% increase in administrative proceedings division allocated costs; and a 49% increase in information technology costs.

The Board of Nursing also faces a unique issue related to the maintenance of the certified nurse aide (CNA) registry. The federal government requires the board to maintain the CNA registry, but limits what can be charged to CNAs in terms of fees. The board receives allowed reimbursements from the Department of Medical Assistance Services for maintenance of the registry, but the expenditures of the registry far outstrip the reimbursements. For example, in fiscal year (FY) 2024, the expenditures for 11 months up to May 2024 were $2.918 million and expected to be over $3 million for the entire fiscal year but allowed reimbursements will be only $556,722.

Without adequate revenue to support inspections of nursing programs, licensing, and disciplinary functions, work to protect the public by regulating, licensing, and disciplining the nursing workforce under the board will slow. This will deprive the citizens of the Commonwealth of safe and necessary nursing services. Additionally, should inadequate revenue cause a backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners who are actively committing violations of regulations or unprofessional conduct to continue practicing unencumbered for months while awaiting review and adjudication of disciplinary matters. The estimated FY 2025 cash balance, reflecting a projected revenue of $15,041,686 and expenditures of $20,095,428, will be -$2,548,279. The estimated FY 2026 cash balance, reflecting a projected revenue of $15,252,269 and expenditures of $20,895,868, will be -$8,191,878.

Substance: To address the deficit in board funding, the board will increase fees for most categories of practitioners and programs that the board regulates by 65% to 70%.

Issues: The primary advantage to the public is the continued licensing and disciplining of health care professionals by the board. There are no disadvantages to the public because the board is a special fund agency that is not funded by the general public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Nursing (board) is proposing to amend six regulations to increase fees for its licensed professions in order to comply with § 54.1-113 B of the Code of Virginia (the Callahan Act).²

Background. The Callahan Act requires the Department of Health Professions (DHP) and its boards to revise fees in situations in which expenses allocated to the board for the past biennium are more than 10% greater or less than moneys collected on behalf of the board.³ DHP reports that over the 2022-2024 biennium, the board's total expenditures were $35,973,319 and total revenues were $29,625,358. Since the expenses exceed the revenues by 21%, these numbers would appear to satisfy the requirements of the Callahan Act, suggesting that a fee increase is necessary. DHP also reports that that the board is not currently in a deficit, with a cash balance of $2,480,785 at the end of fiscal year (FY) 2024. However, the board is projected to have a deficit of roughly $2.5 million by the end of the current fiscal year and a deficit of roughly $8 million by the close of FY 2026.⁴

DHP reports that the fees for this board were last increased in 2011⁵ and that there was also a one-time reduction in renewal fees in 2017.⁶ DHP reports that since the last fee increase, the board has experienced an increase in salaries (enacted by the General Assembly) as well as increases in infrastructure costs such as those attributed to technology and real estate. In addition, DHP reports that the number of licensees under this board has increased by 44% over the last 20 years; as a result, the number of disciplinary cases and investigations and the allocated costs from enforcement and administrative proceedings have also increased. Lastly, the federal government requires the board to maintain the Certified Nurse Aide (CNA) registry but limits the fees that can be charged to CNAs.⁷ DHP reports that the expenditures for the registry were over $3 million in FY 2024.

To prevent the anticipated deficit, the board proposes to increase fees for most categories of practitioners and programs by 65% to 70%. Incidental fees, such as those for late renewal or reinstatement, would be increased by a greater percentage than fees that are required for all licensees. Further, some licensees, such as Advanced Practice Registered Nurses (APRNs), would face a higher percentage fee increase to reflect their higher earning potential, whereas Licensed Massage Therapists (LMTs) would face a higher percentage fee increase because the profession generates a higher number of more complex disciplinary cases that take up more board member and staff time.⁸ The board does not propose to increase fees for Licensed Certified Midwives as they are a newly added license category and there are only six licensees as of June 2024. The proposed fee increases, which are listed in the following table, are expected to generate approximately $10 million in additional revenue per year.

Lastly, the board proposes to (i) add a new criminal background check administrative fee of $25 in the nursing regulation (18VAC90-19) and massage therapists regulation (18VAC90-50), (ii) repeal a $35 verification of license fee for nurses (18VAC90-19) since licenses can now be verified online at no cost, and (iii) repeal a $35 fee for a transcript of all or part of applicant/licensee records in the massage therapists regulation (18VAC90-50).