The VDH is advised to separate the fee for review of a supported application (i.e. those applications for permitting accompanied by a site evaluation with plans and specifications certified by a PE or OSE) from the fee to provide professional services. Indeed such a result was implied by the Health Welfare & Institutions Committee in it's request for report from the Commissioner in January of 2015.

A review is an administerial process, leading to issuance or denial of a construction permit under authority of the Commissioner of Health. The public fully expects to pay a fixed fee for such a service, which applies uniformly to all applicants for a class or capacity of service.

Professional services include those which require a license and are performed under auspices of a licensing board. The terms of contract are generally a results driven proposal agreed to between a client and the professional. Responsibilty, risk and liability accrue to such services and are managed by the provider, subject to recovery through legal action by the client. The standards of practice of our profession are currently housed under 12VAC5-615.

VDH has had difficulty relinquishing the model of a commodity pricing system- where one fee serves all applicants. However since site conditions and circumstances of the landowners are unique the services are not fairly priced under a commodity model. While most accept the need to provide services for which the public has an interest- e.g. repair of a malfunctioning system for means tested citizens. There is clearly no longer a legitimate basis for a public subsidy to real property development.

Ironically the study which established the price during 2010 under estimated the actual cost of services by a factor of five. Data obtained for FY 2015 suggests the actual budget for design services exceeds $14million; but served slightly over 6000 applicants. VDH during 2015 issued slightly over 12,000 construction permits. Most would agree that but for the subsidized fee market prices would be subject to market forces.

Clearly before any fee is enshrined in code a study be office of Management and Budget is called for, and report to the General Assembly which ultimately funds the shortfall between the fee, and actual cost. Control over revenue and allocation are rightfully under control of the Legislative branch, while collection and administration ofthese revenues are under the Executive.

For a regulatory agency to have a competitive interest in a design is surely rare. This is analogous to a building inspector offering design services, and approving his own work. Since these services are offered under engineering code (§ 54.1-402. Further exemptions from license requirements for architects, professional engineers, and land surveyors.) it stands to reason the VDH as an employer of licensed persons must find the means to separate the regulatory and design roles to avoid perception or allegation of COI (18VAC160-20-145. Conflicts of Interest).

The VDH would be well advised to limit the liabilty of it's licensed staff, not by claiming soveriegn immunity- which can not apply to licensed acts, but by separating design from regulatory roles, and establishing policies to protect the public through reliable third party review. This is the prefered model of governmental services, such a transition should begin with a reconsideration of these regulations.