The Virginia Board of Medicine has published a guidance document for physicians providing distance care. See, Virginia Board of Medicine, Guidance 85-12 “Telemedicine,” most recently revised 28 October 2018, http://www.dhp.virginia.gov/Medicine/guidelines/85-12.pdf. The Guidance deserves analysis; the issues it raises are numerous enough to warrant more than one post. For starters, let us consider the status of guidance documents in Virginia generally.
Under Virginia’s Administrative Process Act (“VAPA”), a “rule” or a “regulation” means “any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws.” Virginia Code, § 2.2-4101, Definitions, https://law.lis.virginia.gov/vacode/title2.2/chapter41/section2.2-4101/, cited in In Virginia Board of Medicine v. Virginia Physical Therapy Association, 13 Va. App. 458, 413 S.E.2d 59, 1991 Va. App. LEXIS 324, 8 Va. Law Rep. 1602 (1991), aff’d, 245 Va. 125, 427 S.E.2d 183 (1993) (“VBM”).
“‘Promulgate’ means to publish or to announce officially, and is commonly used in the context of the ‘formal act of announcing a statute.’ Black’s Law Dictionary634 (5th ed. 1983). The [Virginia Administrative Process Act] and the Virginia Register Act provide the procedure for the promulgation and adoption of a rule or regulation. An agency’s rule or regulation is invalid if the agency failed to comply with these statutes in the promulgation process.”
VBM, 13 Va. App. at 466, 413 S.E.2d at 64. “[R]ules that are not promulgated according to the statutory procedure of the Administrative Process Act and the Virginia Register Act are invalid as ‘de facto’ rules.” Id. An agency’s rule or regulation is invalid if the agency failed to comply with the statutes governing the promulgation process. See generally State Water Control Bd. v. Appalachian Power Co., 12 Va. App. 73, 402 S.E.2d 703 (1991) (en banc).
That does not mean that the Board of Medicine lacked authority to draft its Guidance document; it merely means that the Guidance is not law. The Virginia Court of Appeals has ruled that “to carry out its [statutory] purpose, an agency may adopt an ‘interpretative rule’ without the binding force of law.'” Jackson v. W, 14 Va. App. 391, 399, 419 S.E.2d 385, 390 (1992), quoting Bader v. Norfolk Redev. & Hous. Auth., 10 Va. App. 697, 702, 396 S.E.2d 141, 144 (1990) and quoted in Woods v. DMV, 26 Va. App. 450, 495 S.E.2d 505, 1998 Va. App. LEXIS 51 (1998). In Woods, a car salesman’s license was revoked pursuant to a guidance document purporting to deprive DMV of its discretionary authority to consider the consequences of a car salesmen’s felony convictions on a case-by-case basis. Ruling against the DMV, the Woodscourt reviewed its decision in Jackson:
“We held that when the legislature authorizes an agency to supervise the administration of a regulatory act, the agency may establish guidelines for its employees to use in applying the statute so as to give effect to the intent and spirit of the legislation. See, Jackson, 14 Va. App. at 399, 419 S.E.2d at 389-90. Thus, we held that a state agency may issue to its employees ‘guidelines . . . [that] are . . . interpretative rules adopted in order to carry out the agency’s purpose of implementing the Commonwealth’s policy [contained in the agency’s basic law].'” Id. at 400, 419 S.E.2d at 390.
Woods, 26 Va. App. at 456, 457. Under this reasoning, the Board was authorized to draft its guidelines to help its employees carry out its mission, but may not enforce them against practitioners as if they were legally binding.
Development of “guidelines,” while lawful, has the effect, intended or otherwise, of evading judicial review. Under the VAPA,
“…the General Assembly has waived sovereign immunity only to allow a party to obtain judicial review of the Board’s adoption of rules or the Board’s case decisions, as such are defined in the VAPA, in the manner provided in the VAPA. In short, the Board has consented to and may be sued only for its promulgation of a rule or its decision of a case, as both are defined in the VAPA. The VPTA’s right to bring a declaratory judgment action and in turn the court’s jurisdiction to exercise jurisdiction over the action must be founded on the provisions of Code § 9-6.14:16(A) and fall within the explicit and limited waiver of sovereign immunity contained in that Code section.”[1]
VBM, 13 Va. App. at 466, 413 S.E.2d at 64 (emphasis added). See also, Afzall v. Commonwealth, 273 Va. 226, 232, 233, 639 S.E.2d 279, 2007 Va. LEXIS 3 (2007) (because the General Assembly has not waived the Commonwealth’s sovereign immunity as against declaratory actions such as that brought by the injured infant here, the court lacked jurisdiction of the case, and DMAS was entitled to be repaid the full amount it had paid for care of the infant from the settlement the infant got from the tortfeasor).
VBMis sufficiently instructive to merit a detailed analysis. In VBM, apparently in reliance upon the position taken by the Attorney General of Virginia in an opinion letter equating performance of electromyograms with the practice of medicine, the Virginia Board of Medicine determined that, as non-physicians, PTs in Virginia could not perform EMGs. Because in so concluding the Board failed to promulgate a “rule” as defined by the VAPA, however, the circuit court lacked jurisdiction of the claims brought by the PTs to challenge the Board’s conclusion, and their professional association could not move for summary judgment, nor seek an injunction preventing enforcement of the Board’s assertion that PTs could not lawfully perform EMGs. The Court of Appeals determined that there was no “rule” to enforce, nor, therefore, a basis to enjoin its enforcement: “A rule technically does not exist for purposes of Code § 9-6.14:16(A).” Id. So, the PTs had no mechanism to challenge the Board’s conclusion that they could not lawfully perform EMGs in Virginia.
Under Virginia’s definition of a “rule,” it would be difficult to so characterize the Board’s telemedicine Guidance document.
Absent a rule, the right to judicial review under the VAPA depends on whether there has been a case decision. A “case decision” is defined as:
“…any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.”
Va. Code Ann. § 2.2-4001 (2004), available at https://law.lis.virginia.gov/vacode/title2.2/chapter40/section2.2-4001/.
The form in which a case decision is rendered and communicated does not matter if the definition is met. A simple letter can be a case decision, for example, and thus eligible for judicial review. A June 7, 2004 letter from the DEQ to Rockbridge County claiming the County had violated Virginia waste management law, for instance, would be a “case decision” if it reflected an agency “determination” that a named party is in violation of an existing law or regulation. DEQ’s 6/7/04 letter alleged that the County was in violation of Va. Code § 10.1-1408.1(N), governing landfills. The County challenged DEQ’s decision because of the substantial costs it would incur were it unable to use a portion of its landfill, dubbed “the Disputed Area,” for waste disposal. The trial court concluded: “There appears to be no reason on the face of the statute why the letter of June 7, 2004, could not be considered a case decision under the VAPA.” Rockbridge County v. Burnley, 66 Va. Cir. 308, 311, 2004 Va. Cir. LEXIS 321 (Rockbridge Cir. 2004).
A “general statement of position,” in contrast, is not a case decision, and hence not appealable. To qualify as a case decision, and hence to be subject to appeal, an agency must make “[f]actual determinations and application of those facts to a particular case.” Kenley v. Newport News Gen. & Non-Sectarian Hosp. Ass’n, 227 Va. 39, 45, 314 S.E.2d 52 (1984).
The Board’s Guidance document names no party, and draws no conclusion that any party has violated or complied with any law. The Guidance is more likely a “general statement of position” than a “case decision.”
We can learn a bit more on this topic by referring to information supplied on it by the Virginia Regulatory Town Hall. According to the Virginia Code Commission, a permanent commission of the legislative branch of Virginia government,
“The Virginia Regulatory Town Hall (Town Hall) is a website managed by the Department of Planning and Budget. Through this website, most executive branch agencies submit regulations for review and approval of the Governor. Once through the review process, the regulation is sent to the Virginia Register for publication.”
Virginia Code Commission, “Virginia Register of Regulations FAQs,” (undated; last visited 4 March 2019). http://codecommission.dls.virginia.gov/faq_va_register.shtml.
The Town Hall instructs that regulations have the force of law and bind regulated entities. So, entities that flout regulations can be punished, and the regulator (i.e., the agency or board) has to follow its rules or the courts will order the regulator to do so. Guidance documents, on the other hand, may sometimes bind regulators but do not bind their regulated entities. Virginia Regulatory Town Hall, https://townhall.virginia.gov/um/guidancedocuments.cfm. See also, Executive Order17 (2014): Development and Review of State Agency Regulations, https://governor.virginia.gov/media/3347/eo-17-development-and-review-of-state-agency-regulationsada.pdf.
Guidance 85-12 “Telemedicine,” then, is a useful indication of the Board’s view of law applicable to distance care in the Commonwealth. It may be binding on the Board itself. It is not binding, however, on the Board’s licensees electing to offer distance care services in Virginia. Unfortunately, since it is unlikely that the Guidance could qualify as either a “rule” or as a :case decision,” there seems to be no very readily available mechanism for a licensee to challenge it.
Subsequent posts will examine the Guidance document more closely.
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[1]Code § 9-6.14:16(A), part of the former Virginia Administrative Process Act, was repealed by Acts 2001 ch. 844 and is now Code § 2.2-4026, part of the present Administrative Process Act. [In the original, this footnote was numbered 2.]