Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
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10/30/19  1:40 pm
Commenter: Christy Collins, Collins and Collins, Inc.

Article 3. Administration 12VAC35-106-180

A governing body by definition means a body of person or officers having ultimate control constituted for administration.  With a governing body, this poses additional risks and those individuals are liable.  Many providers including the provider represented by this writer are incorporated, would be considered small and privately held.  As a small corporation, it is VERY common to have less complex bylaws but minimally the corporations bylaws would cover the company’s name, address and location of headquarters if there are multiple offices, the officers and directors that will be leading the company, the process for amending and adding company bylaws and the procedure for keeping and managing corporate records and types of stock classes that are offered.  Most small corporations are closely or privately held. They have few stockholders and most small corporations’ stockholders are known to each other and in many cases these stockholders are from the same family or have some other personal relationship.  Additionally, smaller corporations may consist of those individuals that are involved in day to day business operations as owners, managers or employees. Publicly held can have millions of shareholders and the individual shareholders have no direct involvement in the business.  Public companies are regulated by the Securities and Exchange.  There is no external regulation of shares in a privately held company. Different classes of corporations are required to keep minutes of meetings between shareholders (governed by each state as to requirements) no matter the size of the corporation.  

Non-profits are required by federal and state law to have a Board of Directors which acts as a governing board.  Non-profit organizations in complying with federal law, is that one of the board’s roles is to ensure that no inappropriate private inurement takes place deviating organizational assets into the hands of individuals who can influence the affairs of the nonprofit. State laws are explicit to indicate that nonprofit corporations need a board to assume the fiduciary role for the organization’s well-being and be the body to approve all the major financial transactions in the organization.

Several of the regulations under this Article, seem to be pulling from the Sarbanes-Oxley Act.  However, this act only covers PUBLICALLY HELD CORPORATIONS NOT PRIVATELY HELD CORPORATIONS. (For example, the board members area of expertise and the specific committee such as audit).

While a privately held corporation or company may benefit from having a governing board, it is not necessarily the best way to proceed for a SMALL corporation.  It may be more advisable for a smaller corporation or provider to have an advisory board that is not posing additional risks and liability to the corporation.  An advisory board may only be needed if management of the corporation or provider may feel they are losing touch with their employees, plan to raise capital from outside investors or are too busy running day to day affairs to think about strategic issues.  It does not seem warranted or necessary to increase regulations beyond established federal and state law on providers and small, privately held corporations that have successfully provided services in the Commonwealth for dozens of years.  If the oversight agency has concerns, it seems sufficient that bylaws of small, privately held corporations could be requested. For providers that are not incorporated, requiring an advisory board may be less demanding for the provider as well as more cost efficient.  It may be difficult to find willing board members that serve for no compensation when that is the norm for a governing body in a privately held corporation.  Additionally, the small corporations will have to increase their liability insurances to cover these board members which instills yet another cost on an already struggling profession. The exact cost is difficult to determine but additional training hours of paid staff would be required (orientation of board members). Also, with the proposed regulations, those that do have small corporations who may already serve as stockholders/shareholders and also are employees of the corporation would create redundant and additional requirements that are not necessary due to existing regulations in job descriptions and requirements of corporations already established by law. 

Audits by used to be required regularly of all providers. Again, the purpose of long-established providers where other financial tools are utilized seems like an over intrusion of expensive regulation that are not necessary.  Profit and loss statements may be more beneficial.

If the intent of these new regulations is to hold provider agencies no matter how organized to a higher level of accountability, this provider would request the number of situations where lack of accountability in areas where a governing board would have made a difference to that particular provider situation versus the cost (including additional time) to providers. Additionally, if the intent of this regulation is to move to a managed care system where large and limited providers are the goal of the Commonwealth of Virginia, it is requested that the Commonwealth make these intentions known so providers can respond as this will disrupt many employers, employees and most importantly individuals supported

CommentID: 76755