18VAC160-40-260 18VAC160-40-260. Qualifications for journeyman trainee alternative onsite soil evaluator licenses.

Proposed rule is overly broad and will confuse the public.  Design professionals prepare plans and construction specifications for improvements to real property.  Sufficient confusion already exists between the "public" and private design professionals and the reporting mechanism instituted by DPOR. 

While I understand DPOR can not remove the installers and onsite soil evaluators from the WWWOOSSP Board, such recommendation should have been presented during the Virginia Department of Health, Safety and Health in Facilitating a Transition (SHIFT),  and Report to the General Assembly in Response to House Bill 558:A Plan for the Orderly Reduction and Elimination of Evaluation and Design Services by the Virginia Department of Health for Onsite Sewage Systems and Private Wells.

DPOR participated in each study, yet failed to disclose the continued conflicts and inability to resolve licensing concerns under the existing regulatory framework.  To date, placing the onsite sewage system professionals in a board of water and wastewater operators has been with many conflicts. The most obvious issue has been the necessity to split the regulatory framework.  WWWOOSSP is proposing to strike an entire regulation and propose virtually new text since board inclusion in 2009.  This only proves the difficulty in regulating design professionals and contractors within a board of operators.

Numerous attempts to legitimize VDH conduct in the marketplace have failed.  Actions include but are not limited to modifying WWWOOSSP Board policies to protect VDH financial interest, reducing training times for market entry, relaxing experience requirements, and establishing the journeymen program.  Following excerpt explains current model how the board regulates individual industry functions.

Regarding the development of master and journeyman license categories and any concern of an adverse impact, the Board considered alternative methods of regulation to achieve the Board’s responsibility to protect the health, safety, and welfare of the public through the license mandate codified in § 54.1-2 302 of the Code of Virginia, and reiterated in the Board Regulation 18VAC160-20-74.C effective July 1, 2009.  The Board adopted policies during the early implementation of the program to allow many in the industry to continue working without a license while under the supervision of a license-holder.

  Unlicensed contractors have been the ony concern of individuals who are working without a license.  That would include any individual or firm that does not possess a current license with the appropriate classe(s) of expertise.  Despite the Virginia Department of Health allowing those individuals to submit completion statements, it does not rise to a regulated community concern. DPOR does have authority to require individuals or firms to possess appropriate level of license.  For example,

§ 54.1-111. Unlawful acts; prosecution; proceedings in equity; civil penalty.Bills amending this Section

A. It shall be unlawful for any person, partnership, corporation or other entity to engage in any of the following acts:

1. Practicing a profession or occupation without holding a valid license as required by statute or regulation.

2. Making use of any designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.

3. Making use of any titles, words, letters or abbreviations which may reasonably be confused with a designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.

4. Performing any act or function which is restricted by statute or regulation to persons holding a professional or occupational license or certification, without being duly certified or licensed.

5. Failing to register as a practitioner of a profession or occupation as required by statute or regulation.

6. Materially misrepresenting facts in an application for licensure, certification or registration.

7. Willfully refusing to furnish a regulatory board information or records required or requested pursuant to statute or regulation.

8. Violating any statute or regulation governing the practice of any profession or occupation regulated pursuant to this title.

9. Refusing to process a request, tendered in accordance with the regulations of the relevant health regulatory board or applicable statutory law, for patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice.

Any person who willfully engages in any unlawful act enumerated in this section shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction for violating this section during a 36-month period shall constitute a Class 6 felony. In addition, any person convicted of any unlawful act enumerated in subdivision 1 through 8 of this subsection, for conduct that is within the purview of any regulatory board within the Department of Professional and Occupational Regulation, may be ordered by the court to pay restitution in accordance with §§ 19.2-305 through 19.2-305.4.

Under the proposed rule, journeyman will be treated under the same conditions as implemented by WWWOOSSP Board in the early years of licensure for onsite sewage system professionals.  Concerns regarding unlicensed individuals performing the duties of an onsite soil evaluator are only that of VDH.  In 2009, a VDH manager expressed sentiment of being required to "sign off" on the work of unlicensed individuals.

Commenter: Karl Rudolph, AOSE (public) *
18 VAC 160-20-96. Qualifications for licensure

2.  When these regulations become effective there will be an enormous number of VDH employees who will not qualify for the interim license or the conventional license (and may not qualify for years).  Is it DPOR's intention to take VDH out of the evaluation and design business?  If so, fine.  If not, has anyone considered the consequences (e.g. 1. pressure placed upon VDH employees who are licensed to sign off on the work of unlicensed individuals, 2. land owners being forced to hire private sector evaluators in localities that don't have licensed public sector employees, etc.)....

While I can not speak to the intent of Mr. Rudolf, I can express concern over the proposed regulation. 

Is the WWWOOSSP Board attempting to resolve a VDH internal employee policy issue or a genuine concern of the industry?