18VAC95-30 Regulations Governing the Practice of Assisted Living Facility Administrators

REGULATIONS

Vol. 30 Iss. 6 - November 18, 2013

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF LONG-TERM CARE ADMINISTRATORS

Chapter 30

Proposed Regulation

Titles of Regulations: 18VAC95-20. Regulations Governing the Practice of Nursing Home Administrators (amending 18VAC95-20-80).

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

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

Public Hearing Information:

December 10, 2013 - 9:30 a.m. - Department of Health Professions, 9960 Mayland Drive, Perimeter Center, 2nd Floor, Suite 201, Henrico, VA

Public Comment Deadline: January 17, 2014.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Long-Term Care Administrators, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards, including the responsibility to promulgate regulations in accordance with the Administrative Process Act that are reasonable and necessary, and establishes the authority to levy and collect fees that are sufficient to cover all expenses for the administration of a regulatory program. Section 54.1-113 of the Code of Virginia requires the board to revise the fees levied by it for certification or licensure and renewal thereof so that the fees are sufficient but not excessive to cover expenses.

Purpose: The issue to be addressed is the need of the Board of Long-Term Care Administrators to increase its fees to cover expenses for essential functions of licensing, investigation of complaints against licensees, and adjudication of disciplinary cases to protect the health and safety of a very vulnerable population who receive services in long-term care facilities in the Commonwealth.

Section 54.1-113 of the Code of Virginia requires that an analysis of revenues and expenditures of each regulatory board shall be performed at the end of each biennium. It is necessary that each board have sufficient revenue to cover its expenditures. In fiscal year (FY) 2009, the board collected biennial renewal fees, resulting in a balance of $16,929. However, in FY 2010, allocated and direct expenditures and the cash transfers to the general fund totaled $470,144 and revenue totaled $354,270, resulting in a shortfall of $98,946 by June 30, 2010. With current fees, the shortfall in the board's budget is projected to increase to $609,645 by FY 2014. With a small pool of licensees (approximately 798 nursing home administrators and 590 assisted living administrators), it is very difficult to have sufficient revenue to eliminate a shortfall and have adequate revenue for future budgets.

In FY 2005 when the contract for information technology services was signed, placing all IT hardware, software, and services under a contract with Northrop-Grumman through the Virginia Information Technology Agency (VITA), DHP costs for IT services was $850,000. In FY 2011, the cost for those services was $3.6 million, and in FY 2012, the allocated data budget for the Board of Long-Term Care Administrators is $126,416 (which is $91 per year for each licensed nursing home administrator and assisted living administrator). Since the department and its boards are under the VITA contract, the agency has no other options for information technology.

Additionally, some of the department's nongeneral funds were transferred, in accordance with the 2010 appropriation act, to the general fund to help close the gap between revenue and expenditures. The share of that cash transfer allocated to the Board of Long-Term Care Administrators was $17,997.

While the board only spent 87% of its direct budget for FY 2010, the allocated expenditures were 204% over budget. The VITA expenditures and cash transfers account for some of that overage, but the enforcement and adjudication cost were also over budget due to a significant increase in the disciplinary caseload. The investigative costs were 497% over budget and the adjudication costs were 369% over budget. In FY 2009, there were 21 nursing home cases and four assisted living cases; in FY 2010, there were 36 nursing home cases and 27 assisted living cases. Consequently, the board is working with enforcement and administrative proceedings to develop alternative methods for managing the caseload with the intent of reducing the number of investigative hours and streamlining the preparing of documentation.

Since the fees from licensees no longer generate sufficient funds to pay operating expenses for the board, adoption of a fee increase is essential to continue licensing, investigating, and disciplining long-term care administrators.

Substance: The Board of Long-Term Care Administrators is proposing amendments to increase fees charged to regulants and applicants. Annual renewal fees for FY 2012 would be increased as follows: (i) for nursing home and assisted living facility administrators, the increase is $90 per year from $225 to $315 and (ii) for preceptors, the increase is $15 per year to $65. Other fees set proportionally to the renewal fees would also be increased. An application fee, which includes initial licensure, would be increased from $200 to $315. There is a new fee of $1,000 proposed for reinstatement after disciplinary action to partially cover the costs of an investigation and a hearing for reinstatement of licensure.

Issues: The primary advantage to the public would be that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With the shortfall at $98,946 at the end of FY 2010 and projected to increase to $951,192 in FY 2016, there could be significant delays in licensing new administrators, approving administrator-in-training programs, and investigating and adjudicating complaints against licensees. There are no disadvantages; increases in annual renewal fees of $90 should not impact the cost of long-term care for Virginians. There are no disadvantages to the agency; the advantage would be that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Long-Term Care Administrators (Board) proposes to institute one new fee (a fee for reinstatement after disciplinary action) and increase most fees paid by licensees and registrants that are subject to the Board's authority.

Result of Analysis. There is insufficient information to accurately gauge whether benefits are likely to outweigh costs for these proposed changes.

Estimated Economic Impact. The Board proposes to change most of its fees for nursing home administrators, assisted living administrators, preceptors and administrator-in-training program applications. Below is a comparison table for current and proposed fees.

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Fee Increases For Nursing Home Administrators
A.I.T. Program Application	$185	$215	16.21%
Preceptor Application	$50	$65	30%
Licensure Application	$200	$315	57.5%
Verification of Licensure Requests from States	$25	$35	40%
Nursing Home Administrator License Renewal	$225	$315	40%
Preceptor Renewal	$50	$65	30%
Penalty for Nursing Home Administrator Late Renewal	$65	$110	69.23%
Penalty for Preceptor Late Renewal	$20	$25	25%
Nursing Home Administrator Reinstatement	$315	$435	38.09%
Preceptor Reinstatement	$95	$105	10.53%
Duplicate License	$15	$25	66.67%
Duplicate Wall Certificate	$25	$40	60%
Reinstatement After Disciplinary Action	None	$1,000	N/A
Fee Increases For Assisted Living Facility Administrators
ALF A.I.T. Program Application	$185	$215	16.21%
Preceptor Application	$50	$65	30%
Licensure Application	$200	$315	57.5%
Verification of Licensure Requests from States	$25	$35	40%
Assisted Living Facility Administrator License Renewal	$225	$315	40%
Preceptor Renewal	$50	$65	30%
Penalty for Assisted Living Facility Administrator Late Renewal	$65	$110	69.23%
Penalty for Preceptor Late Renewal	$20	$25	25%
Assisted Living Facility Administrator Reinstatement	$315	$435	38.09%
Preceptor Reinstatement	$95	$105	10.53%
Duplicate License	$15	$25	66.67%
Duplicate Wall Certificate	$25	$40	60%
Returned Check Fee	$35	$35	No Change
Reinstatement After Disciplinary Action	None	$1,000	N/A

Board staff reports that the Board had a surplus for FY 2009 of $16,929 but ran a deficit of $98,946 for FY2010. Absent approval of these fee increases, Board staff reports that the deficit for FY2014 is projected to be $609,645 and may reach as high as $951,192 by FY2016. Board staff reports that the fee increases are needed because 1) the costs of health care for Board employees and lease payments for office space have increased, 2) some Board non-general funds were transferred in FY2010, FY2011 and FY2012 to the General Fund to help close the budget gap, and so won't be available to cover the cost of licensure services, 3) costs for information technology (IT) services have skyrocketed, and 4) enforcement and adjudications costs have run well over budget.

The Department of Health Professions (DHP) reports that a large portion of the expected expenditure increases over their forecast horizon are needed to cover increased costs for services from the Virginia Information Technologies Agency (VITA). DHP reports that its VITA services costs have more than tripled from FY2005 to FY2011, from $850,000 to $3.6 million, and are expected to be $4.4 million in FY2012. A large portion of the increase in costs, at least for FY 2010 and FY 2011, can be attributed to the planned move of DHP's licensing servers from DHP to Northrop Grumman. DHP anticipates that this will increase the costs for maintaining these servers by approximately $80,000 per month ($960,000 per year). This Board is and will be responsible for a proportional share of these costs. Although it is likely beyond the capacity of DHP to control the very rapid growth of these costs, licensees of this Board (and all other DHP Boards) would benefit from increased scrutiny of services provided to DHP through VITA.

Board Staff also reports that a portion of DHP's non-general fund bank account balances that would have partially offset the need for fee increases were instead moved to the General Fund by the Budget Bill of 2010 to help close the gap between revenue and expenditures. Staff reports that the Board's portion of this transfer was $17,997. Budget bills for 2011 and 2012 also required balance transfers to the General Fund: this Board's portions of these transfers were $4,057 and $4,750, respectively. Staff further reports that there is a possibility that further transfers could be required in future budgets. Licensees likely are harmed by these transfers as funds that were collected from them (and the interest those funds earned) that would have been used to cover the costs of administering their licensure program are instead used to offset the need for an increase in general taxes or for further budget cuts.

Board staff reports that, in FY 2010, investigative costs were 497% over budget and adjudication costs were 369% over budget. In FY09, the Board investigated 21 nursing home cases and 4 assisted living cases; in FY10, there were 36 nursing home cases and 27 assisted living cases. Board staff reports that the Board is working with Enforcement and Administrative Proceedings to develop alternative methods for managing the caseload with the intent of reducing the number of investigative hours and streamlining the preparing of documentation.

Businesses and Entities Affected. DHP reports that the Board currently regulates 798 nursing home administrators, 590 assisted living facility administrators, 379 preceptors and 150 administrators-in-training. All of these entities, as well as any individuals or entities who may wish to become licensed or registered in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. Fee increases in this regulatory action will likely marginally decrease the number of individuals who choose to work in professional fields that are regulated by the Board. Individuals who work part time or whose earnings are only slightly higher in these licensed fields than they would be in other jobs that do not require licensure will be more likely to be affected.

Effects on the Use and Value of Private Property. To the extent that affected licensees fees are paid by their private business employers, fee increases will likely slightly decrease business profits and make their businesses slightly less valuable.

Small Businesses: Costs and Other Effects. DHP reports that most licensees are employed by small private businesses or non-profit ventures.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are several actions that the Board could take that might mitigate the necessity of raising fees overall. The Board could slightly lengthen the time that it takes to process both license applications and complaints so that staff costs could be cut. This option would benefit current licensees but would slightly delay licensure, and the ability to legally work, for new applicants. Affected small businesses would also likely benefit from increased scrutiny of the IT costs that are driving increases in both agency and Board expenditures.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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

Summary:

The proposed amendments (i) increase fees charged to nursing home administrators, assisted living administrators, preceptors, and administrator-in-training program applicants and (ii) establish a new fee of $1,000 for reinstatement after disciplinary action.

18VAC95-20-80. Required fees.

The applicant or licensee shall submit all fees below which apply:

1. A.I.T. program application	$185 $215
2. Preceptor application	$50 $65
3. Licensure application	$200 $315
4. Verification of licensure requests from other states	$25 $35
5. Nursing home administrator license renewal	$225 $315
6. Preceptor renewal	$50 $65
7. Penalty for nursing home administrator late renewal	$65 $110
8. Penalty for preceptor late renewal	$20 $25
9. Nursing home administrator reinstatement	$315 $435
10. Preceptor reinstatement	$95 $105
11. Duplicate license	$15 $25
12. Duplicate wall certificates	$25 $40
13. Reinstatement after disciplinary action	$1,000

18VAC95-30-40. Required fees.

A. The applicant or licensee shall submit all fees below that apply:

1. ALF AIT program application	$185 $215
2. Preceptor application	$50 $65
3. Licensure application	$200 $315
4. Verification of licensure requests from other states	$25 $35
5. Assisted living facility administrator license renewal	$225 $315
6. Preceptor renewal	$50 $65
7. Penalty for assisted living facility administrator late renewal	$65 $110
8. Penalty for preceptor late renewal	$20 $25
9. Assisted living facility administrator reinstatement	$315 $435
10. Preceptor reinstatement	$95 $105
11. Duplicate license	$15 $25
12. Duplicate wall certificates	$25 $40
13. Returned check	$35
14. Reinstatement after disciplinary action	$1,000

B. Fees shall not be refunded once submitted.

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

VA.R. Doc. No. R10-2364; Filed October 21, 2013, 11:19 a.m.