Title of Regulation: 24VAC35-80. Alcohol Safety Action Program Regulation (adding 24VAC35-80-10 through 24VAC35-80-140).

Statutory Authority: § 18.2-271.2 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 14, 2023.

Agency Contact: Christopher Morris, Special Programs Coordinator, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email chris.morris@vasap.virginia.gov.

Basis: The Commission on the Virginia Alcohol Safety Action Program (VASAP) is empowered by § 18.2-271.2 of the Code of Virginia to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local alcohol safety action programs and shall be responsible for overseeing the administration of the statewide VASAP system.

Purpose: The statewide VASAP system is crucial to highway safety throughout the Commonwealth of Virginia. It is imperative that local alcohol safety action programs operate efficiently and are managed appropriately to ensure financial solvency and adequate services for citizens of the Commonwealth.

Substance: Following are the substantive provisions of the new chapter, Alcohol Safety Action Program Regulation (24VAC35-80):

24VAC35-80-10 provides definitions of terms.

24VAC35-80-30 grants the commission the right to suspend service-related requirements of the regulation in geographical areas where there exists a federal or state disaster or declaration of emergency.

24VAC35-80-40 requires minimum alcohol safety action program (ASAP) staffing requirements and hours of operation for public access.

24VAC35-80-50 establishes a process for the creation and overall make-up of ASAP policy boards and meeting requirements.

24VAC35-80-60 grants the commission the right to collect unexpected ASAP revenues in the commission's duties to establish and ensure the maintenance of minimum standards and criteria for program operations.

24VAC35-80-70 cites ASAP audit and financial record requirements, specifically the requirements for submitting required financial documents to the commission in a timely fashion.

24VAC35-80-80 provides requirements pertaining to the ASAP budgetary process and procedures to be followed for requests for allocation of commission funds.

24VAC35-80-90 sets forth the certification process for all ASAPs and the option of the executive director to establish a regional leadership team to assist ASAPs in achieving and maintaining commission certification standards.

24VAC35-80-100 lists the reasons and processes related to suspension or revocation of certification of an ASAP. This section covers reasons for suspension and the process when a revocation of an ASAP certification occurs.

24VAC35-80-110 addresses ASAP personnel requirements, including mandated training attendance.

24VAC35-80-120 lists the requirements for handling ASAP offender records in a confidential manner and document retention.

24VAC35-80-130 lists requirements for ASAP employee personnel policies, conflicts of interest in supervision, and employee evaluations.

24VAC35-80-140 establishes ASAP employee certification requirements to perform any ASAP services, including the process for obtaining certification and reasons for denial, suspension, or revocation of the individual certification.

Issues: The advantages for the public and the agency or Commonwealth of the proposed Alcohol Safety Action Program Regulation is that the regulation establishes standards for hours of operation, program and employee certification, staffing levels, auditing and financial reporting, and case management processes and procedures. In addition, the regulation provides the commission with the right to collect ASAP unexpended revenues to ensure financial solvency of the ASAPs and the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local alcohol safety action programs. The regulation standardizes processes and ensures financial solvency throughout the state so that citizens receive equitable, high-quality services no matter where they reside and improves transportation safety in the Commonwealth of Virginia.

There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

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 Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.

Summary of the Proposed Amendments to Regulation. The Commission on Virginia Alcohol Safety Action Program (VASAP) proposes to create a new regulation, 24VAC35-80, Alcohol Safety Action Program, that would govern the statewide Virginia Alcohol Safety Action Program.

Background. The Alcohol Safety Action Program (ASAP) is a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. The ASAP system is composed of 24 local programs that provide services throughout the Commonwealth.² Local ASAPs receive referrals from local courts or the Commission and deliver intervention services within locally-administered programs to specific municipal jurisdictions within Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia. Local ASAPs are certified by the Commission on the VASAP every three years; they were last certified in 2021 and would thus need to be certified again in 2024. The proposed regulation would contain requirements for local ASAPs to maintain their certification. The new chapter would include definitions, authorization for the Commission to suspend certain requirements if a federal or state disaster or emergency is declared, requirements for ASAP staffing and accessibility to the public, various requirements regarding ASAP budgets, unexpended revenues, financial reporting and audits, case management process and procedures, privacy and security procedures, and personnel policies and employee certification. The chapter would include the requirement that ASAPs be certified every three years, authorize the Commission to certify, de-certify, regionalize, re-organize, or merge local ASAPs, and covers what would happen if an ASAP was found to be out of compliance and what actions would lead to a suspension or revocation of certification. The chapter also includes requirements for staff certification, including the actions that could lead to the suspension or revocation of certification. Most of the requirements in the proposed chapter have been in place through the Certification Manual or reflect current practice for ASAP operations^.3 However, the proposed chapter includes a number of new requirements. The Commission on VASAP reports that the requirements in this chapter would, "set forth a standardization of processes and ensures financial solvency throughout the state ensuring that citizens receive equitable, high-quality services no matter where they reside and improves transportation safety in the Commonwealth of Virginia."⁴ New requirements for local ASAPs are as follows:

24VAC35-80-40 (ASAP administrative structure and accessibility) requires local ASAPs to maintain a staff size and hours of operation as determined by the Commission.

24VAC35-80-50 (ASAP policy boards) would require that each ASAP's policy board include a defense attorney member who practices DUI [driving while under the influence] law.

24VAC35-80-60 (ASAP revenues) would authorize the Commission to collect unexpended revenues from individual ASAPs.⁵

24VAC35-80-70 (ASAP audits and financial records) would add late fees of $25 per day for the first five days and $100 per day after the fifth day for monthly financial reports due on the 15th day of the following month, and establish August 1 of each calendar year as the deadline for submitting annual income statements.⁶

24VAC35-80-80 (ASAP budgets and requests for allocation of Commission funds) would add an allowance for some local programs (provided they meet their target collection rate, do not own their own building, and do not have the means to sustain six months' operating expenses) to submit a request for Commission funds as part of the budget approval process.

24VAC35-80-90 (ASAP certification) would allow the Commission's Executive Director, at their discretion, to establish a Regional Leadership Team to assist an ASAP in maintaining certification standards.

24VAC35-80-100 (Suspension or revocation of certification) would provide reasons for suspension and the process when a suspension, or revocation, of an ASAP certification occurs.⁷

24VAC35-80-130 (ASAP personnel policies) would require ASAP directors to perform an annual in-person employee evaluation on an official Commission-issued evaluation form.

24VAC35-80-140 (ASAP employee certification, revocation or suspension) contains entirely new requirements for individual employees to obtain a certification letter, and provides reasons for denial, suspension, or revocation of certification. The certification requirements include a local and national criminal history, a complete driver's record, and successful completion of the VASAP Certification Exam.⁸ ASAP directors would also be subject to these certification requirements. This section also includes ten hours of Commission-approved annual continuing education for employees to maintain their certification. ASAPs would have to pay a $250 fee to the Commission for employees who need to re-take the certification exam due to failing the first attempt (scoring less than 80%) and a $500 per occurrence fee if an ASAP employee provides services without a valid certification letter.⁹

The Commission on the VASAP has indicated that although the regulation contains a number of new requirements, they expect local ASAPs will be able to fulfil these requirements in time for the next round of certification in 2024.

Estimated Benefits and Costs. The proposed regulation contains a number of new requirements, particularly with respect to employee certification, background checks requirements, and continuing education. In addition, ASAPs would be subject to fines if they fail to meet the monthly financial reporting deadline, and if employees have to retake the certification exam, or provide services without a valid certification.

ASAPs are primarily funded through the fees paid by offenders who are legally required to obtain services; however, some ASAPs also receive substantial financial contributions from their localities. The proposed changes would allow the Commission to regionalize expenditures so that unexpended revenues could be collected and reallocated to ASAPs that meet their target collection rate but do not own their own buildings or carry a balance that would cover six months' operating expenses. These changes would directly benefit less well-funded ASAPs while passing on the costs to more well-funded ASAPs. In aggregate, this flexibility would benefit the overall state-wide VASAP system by allowing local ASAPs to remain financially solvent and continue to provide services in their region.¹⁰The Commission on the VASAP reports that there were 42,657 referrals for services into the state-wide VASAP system in 2021, and 39,909 referrals in 2022^.11 Individuals referred to the statewide VASAP system are legally mandated to obtain these services, which are exclusively provided at local ASAPs. Depending on their location, these individuals may only have one ASAP that they can reasonably access, especially if they are legally prevented from driving. The proposed changes would directly benefit the individuals referred to ASAP services, as well as their families and communities, to the extent that they are effective in increasing accountability and program compliance throughout the Commonwealth, thereby standardizing and improving service quality. Further, to the extent that these programs effectively reduce recidivism among drivers under the influence of alcohol and drugs, other motorists would be protected, and highway safety would be improved by higher quality and more effective ASAP service provision.

Businesses and Other Entities Affected. The proposed changes would primarily affect the Commission on the VASAP and the 24 local ASAPs that would be required to meet these requirements for certification in 2024. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹² An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the new requirements would require additional staff time, at least initially as they are implemented, and require ASAPs to contract with and pay for background checks for employees.¹³ Thus, an adverse impact is indicated.

Small Businesses¹⁴ Affected.¹⁵ The proposed regulation would not affect small businesses.

Localities¹⁶ Affected.¹⁷ The proposed amendments would not create new costs for local governments. Localities that are currently served by ASAPs that may be financially precarious or that receive a high volume of customer complaints would indirectly benefit to the extent that the proposed regulation improves accountability and oversight.

Projected Impact on Employment. The Commission reports that the staffing standards, financial reporting, and other programmatic changes would not require additional hiring. Thus, the proposed amendment does not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment would not affect the value of any private property or real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://vasap.virginia.gov/.

³Note that 24VAC35-40 Certification Requirements Manual was repealed effective August 1, 2022. This manual has been updated and published as a guidance document, effective January 3, 2023; see https://townhall.virginia.gov/L/ViewGDoc.cfm?gdid=7385.

⁴See Agency Background Document (ABD), page 4. https://townhall.virginia.gov/L/GetFile.cfm?File=130\6094\9868\AgencyStatement_VASAP_9868_v3.pdf.

⁵This is intended to address discrepancies among ASAPs throughout the state. See ABD, page 9.

⁶While monthly financial and annual income statement reporting is already required, these changes are intended to increase compliance and timeliness of reporting. The Commission state office is also working with some local ASAP directors to create a new web-based financial platform that is intended to simplify report submission. See ABD, page 10.

⁷While the authority to suspend certification is not new, clarifying these details in the regulation is intended to increase accountability of local programs, improve the quality of customer service, improve highway safety, and protect the integrity of the state-wide VASAP program. See ABD, page 11.

⁸These requirements are modeled on current state-wide VASAP requirements for vendors contracted to provide ignition interlock and remote alcohol monitoring services. New employees would have 90 days to obtain certification.

⁹The Commission on the VASAP covers the training and credentialing costs; only the cost of conducting background checks would be passed on the ASAPs and is expected to be minimal.

¹⁰The Commission has clarified that if1to any other ASAPs.

¹¹The 2022 figure is current as of December 29, 2022. See ABD, page 6.

¹²Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹³The only direct cost to ASAPs would be for employees' background checks; these costs are expected to be minimal.

¹⁴Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹⁵If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁶"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁷Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Commission on the Virginia Alcohol Safety Action Program concurs with the content of the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed action adds the new chapter, Alcohol Safety Action Program Regulation (24VAC35-80), which includes (i) definitions; (ii) authorization for the Commission on the Virginia Alcohol Safety Action Program (VASAP) to suspend certain requirements if a federal or state disaster or emergency is declared; (iii) requirements for Alcohol Safety Action Program (ASAP) staffing and accessibility to the public; (iv) various requirements regarding ASAP budgets, unexpended revenues, financial reporting and audits, case management process and procedures, privacy and security procedures, personnel policies, and employee certification; (v) a requirement that ASAPs be certified every three years; (vi) authorization for the Commission on the VASAP to certify, decertify, regionalize, reorganize, and merge local ASAPs; (vii) procedures if an ASAP is found to be out of compliance and actions that would lead to a suspension or revocation of certification; and (iv) requirements for staff certification, including the actions that could lead to the suspension or revocation of certification.

Chapter 80

Alcohol Safety Action Program Regulation

24VAC35-80-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

"ASAP" means an alcohol safety action program established by the commission or any county, city, town, or any combination thereof, as provided in § 18.2-271.1 of the Code of Virginia, for the purposes of providing probation, education, and rehabilitation services for individuals referred to the program by the court, the DMV, or any other commission-approved referral source.

"ASAP Code of Conduct" means a standard of ethics for all ASAP employees.

"ASAP director" means the person who provides supervisory, managerial, or oversight of an alcohol safety action program.

"Budget" means a written financial plan for expenditures of a program for a given period of time that is subject to approval by the commission.

"Case Management Operational Guidelines" means a manual, created by the commission, establishing case management policy and procedure guidelines.

"Certification" means the process of certifying ASAPs as set forth in the Commission on VASAP Certification Manual or the process for certifying ASAP employees to provide ASAP services in the Commonwealth of Virginia and to ASAP offenders residing out of state.

"Commission" means the Commission on Virginia Alcohol Safety Action Program or its designee.

"Commission on VASAP Certification Manual" means The Commission on the VASAP Certification Manual, version January 3, 2023, a manual required by § 18.2-271.2 of the Code of Virginia to be created by the commission, which evaluates an ASAP for its organization management, fiscal standing, and overall operation.

"DMV" means the Virginia Department of Motor Vehicles.

"Executive director" means the executive director of the commission.

"Executive finance committee" means the advisory subcommittee of the commission composed of the executive director of the commission, two commission members, and such other persons as the commission may designate.

"Policy board" means an ASAP policy board that is advisory in nature, chosen and operated in accordance with procedures promulgated by the commission.

"Regional leadership team" means a regional team, established by the executive director, charged with assisting ASAPs in achieving and maintaining commission certification requirements.

"Revenues" means any fee due to or collected by an ASAP for services provided by the ASAP.

"Target collection rate" means a rate of collection by an ASAP of offender fees in any given time period equal to or greater than 90% of offender fees owed to the program for services provided during the same given time period. The given time period shall be established by the commission.

"VASAP" means the Virginia Alcohol Safety Action Program.

"VASAP Certification Exam" is a commission-created certification exam that is administered by the commission to ASAP employees and is part of the application process for individuals seeking a VASAP Certification Letter to perform ASAP services in the Commonwealth of Virginia and for ASAP offenders residing out of state. Successful completion of the exam requires a score of 80% or higher.

"VASAP Certification Letter" means a certification letter issued by the commission to any eligible ASAP employee authorizing the employee to perform ASAP-related duties in the Commonwealth of Virginia. ASAP-related duties include management of cases, administrative functions, courtroom testimony, supervision of employees, program management, or any other duty determined by the commission. The letter shall be issued in a format and method determined by the commission.

24VAC35-80-20. [Reserved].

24VAC35-80-30. Emergency declarations.

The commission reserves the right to suspend service-related requirements of this chapter in applicable geographical areas when there exists a federal or state disaster or declaration of emergency.

24VAC35-80-40. Alcohol safety action program administrative structure and accessibility.

A. Alcohol safety action programs shall consist of, at a minimum, an ASAP director, staff deemed necessary by the commission, and the local policy board to efficiently accomplish all duties of the program.

B. ASAPs shall be accessible to the public for all ASAP-related services during days and times established by the commission. The commission shall determine the method of accessibility.

C. ASAPs that incur a pattern of verified sub-standard customer service complaints resulting in the use of commission resources, including rental vehicle expenses, fuel, labor hours, and office supplies, may be billed by the commission for any of the aforementioned accrued expenses in their entirety. ASAPs that are billed by the commission for reimbursement under this section shall remit a payment to the commission within 30 days of the date of the invoice sent by the commission to the ASAP unless otherwise approved by the executive director.

24VAC35-80-50. Alcohol safety action program policy boards.

A. Each ASAP shall operate under the direction of a local independent policy board, advisory in nature, chosen in accordance with procedures approved and promulgated by the commission.

B. The policy board shall consist of five to 15 members. The governing bodies of each participating jurisdiction shall appoint one member for a term of three years. The remaining members shall be elected for a term of three years by majority vote of those members selected by each represented locality unless these appointments are the first appointments to the policy board.

C. Upon initial appointment of a policy board, one-third of the members shall be appointed for one year, one-third of the members shall be appointed for two years, and one-third of the members shall be appointed for three years. ASAP employees shall not serve as a member of the board outside of an ex officio capacity.

D. The policy board members not appointed by the governing bodies of represented jurisdictions, at the discretion of the board, shall be selected from the Bar Association, law enforcement, and education and treatment professionals, at a minimum.

E. The designated terms of office for each member may be modified if approved by the commission.

F. Policy board vacancies shall be filled by a majority vote of the remaining board members from the nomination of other board members and the participating governing bodies of the jurisdiction.

G. Policy board members shall be selected by the commission in situations where the locality cannot agree on board member selections.

H. The officers of the policy board shall consist of a chairperson and such subordinate officers as the board may elect or appoint. Each policy board (i) shall include at least one Commonwealth attorney member, a defense attorney member who practices DUI law, a law-enforcement member, and a behavioral health member and (ii) may appoint a local sitting or retired District Court judge who regularly hears or heard cases involving driving under the influence and is familiar with local alcohol safety action programs. Members shall serve without compensation. The offices of the chairperson, and vice-chairperson if one is elected, shall be held by members from different participating jurisdictions. The policy board chair is subject to final confirmation approval by the executive director. Individuals serving in a policy board chair capacity prior to (insert the effective date of this regulation) shall apply to the executive director for approval to remain in their current position within 30 days of (insert the effective date of this regulation).

I. Excluding the original officers, who shall be elected at the second meeting after the formation of the board, each officer shall be elected at the annual meeting of the board to serve a term of three years. Terms of office shall not be modified without commission approval. Vacancies occurring in any office shall be filled by the board for the unexpired term.

J. Election of officers requires that a majority of policy board members be present and voting in order to be valid. Members who are unable to attend may vote in any election by letter directed to the chairman and delivered prior to, or at, the meeting. At the regular meeting of the policy board immediately preceding the annual meeting, the chairman shall appoint a nominating committee, which shall present to the board at its annual meeting a slate of nominees for election as officers and a slate of nominees to fill any board vacancies. All board members and officers shall take office on the first day of the month following their election and shall serve until their successors take office. No officer shall serve more than two consecutive terms in office.

K. The annual meeting of the board is that meeting so designated in the bylaws for the purpose of electing officers and filling expired member terms and shall be open to the public.

L. Regular meeting of the board shall be held quarterly. Special meetings may be called at the policy board's pleasure. The policy board is required to provide notice to the public of all meetings as required by state and federal Freedom of Information Act laws.

M. The policy board or its executive committee may go into executive session when legally appropriate.

N. Policy board meetings shall adhere to state and federal Freedom of Information Act laws.

O. The policy board may change the date and time of any regular meeting at any prior meeting and may adjourn any meeting to another place if notice of the change is provided in adherence to state and federal Freedom of Information Act laws.

P. Two-thirds attendance of the policy board membership shall constitute a quorum for any policy board meeting.

Q. The commission may merge or regionalize a policy board in instances where the commission is merging or regionalizing the ASAP in which the policy board provides oversight.

24VAC35-80-60. Alcohol safety action program revenues.

The commission shall be empowered to collect unexpended revenue from local ASAPs in the commission's duties to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various alcohol safety action programs and oversight of the administration of the local statewide VASAP system. In instances where the commission intends to collect unexpended revenue from a local ASAP, the commission shall provide the local ASAP a 30-day notice of the amount of unexpended revenue to be collected and the date of collection by the commission. Once notice of the collection amount and date is given to the local ASAP by the commission, the local ASAP shall release the total amount of the unexpended revenue cited by the commission to the commission within 15 calendar days of the collection date provided by the commission. The payment method shall be established by the commission.

24VAC35-80-70. Alcohol safety action program audits and financial records.

A. Financial records shall be subject to local, state, and federal audits and shall be maintained in an orderly fashion using generally accepted accounting principles and shall be retained per the Library of Virginia retention schedule.

B. An annual income statement shall be submitted to the commission by August 1 of each calendar year.

C. Monthly financial reports shall be submitted to the commission by the 15th calendar day of the following month. ASAPs that fail to send in their monthly financial report by the 15th calendar day of the following month shall pay the following daily late fees to the commission, unless otherwise approved by the commission:

1. $25 daily late fee for the first five calendar days in which the monthly financial report is not received by the commission; and

2. $100 daily late fee for any calendar days after the first five days in which the monthly financial report is not received by the commission.

ASAPs that are more than 15 calendar days late in submitting the prior month's financial report may be decertified by the commission.

D. All ASAP financial reports, to include monthly financial reports, budgets, or any other financial report required by the commission, shall be submitted to the commission via a method established by the commission.

24VAC35-80-80. Alcohol safety action program budgets and requests for allocation of commission funds.

A. ASAPs are required to submit annual budgets to the commission via a method approved by the commission by May 1 of each calendar year for approval by the commission. Submitted budgets shall include all information required by the commission along with the prior year's collection rate. Budgets submitted by local programs with collection rates below the target collection rate are subject to a reduction in the approved budget amount by a percentage equal to the target collection rate minus the actual collection rate.

B. The commission may reduce the approved budget amount for any ASAP budget by the total salary amount of any employee included in the budget who does not possess a valid VASAP Certification Letter or for any delinquent ASAP administrative fees owed to the commission.

C. ASAPs may use a local political subdivision as a fiscal agent if approved by the commission. Any desired change in fiscal agent by an ASAP shall be submitted to the executive director for approval at least 60 days prior to the desired date of change.

D. In instances where an unforeseen circumstance occurs, which requires a budget amendment, the ASAP may submit the budget amendment to the commission clearly identifying the circumstances and the dollar amount of the budget amendment change requested. The commission shall respond to the ASAP on the approval status of the budget amendment within 30 calendar days.

E. In instances where an ASAP is requesting an allocation of commission funds, the ASAP is required to submit a commission-approved application detailing the reason for the allocation of commission funds request along with other commission-requested financial information. ASAPs that own buildings that possess a collection rate below the target collection rate or possess the financial means to fund operations more than six months into the future, factoring in a zero-revenue sum over the same period of time, are ineligible to apply for an allocation of commission funds from the commission. ASAP requests to the commission for an allocation of commission funds are subject to commission approval. ASAPs that receive substantial financial contributions from their localities and have received these contributions for a substantial period of time prior to their request for an allocation of commission funds, may be eligible for an allocation of commission funds if approved by the commission. Substantial financial contributions and substantial period of time shall be determined by the commission.

24VAC35-80-90. Alcohol Safety Action Program certification.

A. The commission shall be empowered to certify, decertify, regionalize, reorganize, or merge local ASAPs, including their finances and personnel, to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local ASAPs and shall be responsible for overseeing the administration of the statewide VASAP system.

B. ASAPs shall adhere to the certification process and procedures for certifying ASAPs as established in the Commission on VASAP Certification Manual and maintain the required certification standards of the commission at all times.

C. ASAPs shall be certified, at a minimum, at least every three years.

D. If an ASAP is found out of compliance during certification, the ASAP shall complete an action plan within 10 days of notice of any compliance issue citing the procedures to be implemented to attain compliance. The commission shall conduct a secondary review to validate the corrective action has occurred and make a recommendation for certification if the ASAP has resolved all outstanding noncompliance issues in a satisfactory manner. If noncompliance issues remain, the ASAP's conditional certification may be extended or their full certification may be revoked by the commission.

E. An ASAP may submit a waiver in writing to the commission of certification standards that are impacted directly by staffing issues or emergency declarations. An exemption may be granted from a specific ASAP certification requirement or any part thereof by the executive director.

F. The executive director may at the executive director's discretion establish or conclude a regional leadership team to assist ASAPs in achieving and maintaining commission certification standards. The executive director shall establish the members, duties, process, and procedures of the regional leadership team.

G. ASAPs that fail to meet certification standards set forth in the Commission on VASAP Certification Manual may be conditionally certified by the commission permitting the ASAP to continue to receive referrals from the courts and provide services for DMV administrative cases.

24VAC35-80-100. Suspension or revocation of certification of an Alcohol Safety Action Program.

A. The executive finance committee, for a period not to exceed 90 days, may suspend certification of an ASAP for the following reasons, including:

1. When an ASAP knowingly violates any state or federal law;

2. When an ASAP violates any requirements of the Commission on VASAP certification manual;

3. When an ASAP abuses access to the DMV system or any system created or co-created by the commission and provided to the ASAPs by the commission for use;

4. When an ASAP consistently fails to adhere to the case management operational guidelines;

5. When an ASAP violates law or commits an unethical act that negatively impacts the integrity of the state VASAP system;

6. When there is a pattern of ASAP noncompliance or customer service issues;

7. When the ASAP or an ASAP's policy board impedes, interrupts, disrupts, or negatively impacts an investigation conducted by the commission of the ASAP related to customer service issues, a violation of law, financial discrepancies of any form, unethical acts or any complaint brought forward by a third party;

8. When an ASAP attempts to conceal any source of income or financial assets owned by or in control of in whole or in part by the ASAP;

9. When an ASAP uses a treatment service provider that is not on the state approved treatment provider list without prior approval from the commission;

10. When an ASAP fails to cooperate, in any way, with the regional leadership team; or

11. When an ASAP fails to abide by the recommendations of the regional leadership team.

B. If a suspension of an ASAP occurs by the executive finance committee, the executive director may:

1. Prohibit the suspended ASAP from receiving any court referrals or from providing services for DMV administrative cases during the suspension period.

2. Eliminate ASAP access to the DMV system or any system created or co-created by the commission and provided to the ASAP by the commission for use.

C. In cases where the certification of an ASAP is suspended, the ASAP shall continue to provide services for all referrals received prior to the suspension date unless otherwise desired by the commission. The ASAP will not be permitted to receive referrals from the court or provide services for DMV administrative cases during the period of suspension unless otherwise approved by the commission.

D. In cases where an ASAP decides to dissolve on its own accord, the ASAP shall continue to provide services for all referrals received up until the date the ASAP communicates to the commission its intent to dissolve. The ASAP shall continue services for these referrals until all referrals are completed in a satisfactory manner as determined by the commission.

E. ASAPs that fail to meet the certification standards set forth in the Commission on VASAP Certification Manual and are not conditionally certified by the commission pursuant to 24VAC35-80-90 G shall have their certification revoked and shall be prohibited from receiving referrals for service from any court or providing services for DMV administrative cases indefinitely unless otherwise approved by the commission. If the certification of an ASAP is revoked, the ASAP shall be responsible for the continued monitoring of referrals received and all duties normally entailed prior to the revocation of certification until all referrals are properly managed and permanently closed, unless otherwise approved by the commission.

24VAC35-80-110. Alcohol Safety Action Program case management processes and procedures.

ASAP employees will find processes and procedures for case management, which are important to successful ASAP certification, via the Case Management Policy and Procedure Guidelines established by the commission. ASAP employees shall attend any commission-provided training via a method approved by the commission.

24VAC35-80-120. Alcohol Safety Action Program privacy and security procedures.

A. ASAPs shall maintain and handle all offender records and all other confidential information as required by federal, state, and local guidelines and laws.

B. ASAPs shall maintain all offender case files via the applicable Library of Virginia retention schedule.

24VAC35-80-130. Alcohol Safety Action Program personnel policies.

A. Each ASAP employee will be provided the ASAP Code of Conduct.

B. ASAP employees, serving in any type of supervisory capacity, shall not supervise any employee, directly or indirectly, who is a spouse, partner, family member, or household member or a party deemed as a conflict of interest by the commission. "Family member" or "household member" includes any person who cohabitates with or is related by blood, marriage, or adoption.

C. ASAP directors shall administer in person evaluations for all employees unless otherwise approved by the commission. Employee evaluations shall be:

1. Completed by the ASAP director or an ASAP-designated supervisor on an official commission evaluation form;

2. Completed for each ASAP employee on no less than an annual basis;

3. Signed and dated by both the ASAP director or a supervisor-designee and the ASAP employee who is being evaluated. In situations where an ASAP employee refuses to sign the evaluation, the ASAP director or a supervisor-designee shall write "refused to sign" under the employee signature line. The ASAP director or a supervisor-designee shall initial and date the evaluation.

24VAC35-80-140. Alcohol Safety Action Program employee certification, revocation, or suspension.

A. All ASAP employees are required to possess a VASAP Certification Letter in order to perform any ASAP services in the Commonwealth of Virginia, including servicing ASAP offenders with an ASAP requirement that may reside out of state. Newly hired employees, however, may perform ASAP services for training purposes up to 90 days prior to obtaining a VASAP Certification Letter. In order to apply for a VASAP Certification Letter, the ASAP shall submit a completed application to the commission for approval for any ASAP employee not in possession of a VASAP Certification Letter, excluding an ASAP employee who is newly hired and within the first 90 days of training. The completed application shall include submission to the commission of:

1. A complete local and national criminal history;

2. A complete driver's record; and

3. Successful completion of the VASAP Certification Exam.

Failure to submit a completed application will result in disqualification of the applicant from consideration for a VASAP Certification Letter by the commission to perform ASAP services in the Commonwealth of Virginia or to ASAP offenders who may reside out of state.

B. All applicants shall be required to complete a VASAP Certification Exam. Successful completion of the exam requires a score of 80% or higher. Applicants who fail to successfully complete the VASAP Certification Exam on the first attempt shall be allowed a second opportunity to successfully complete the exam. Applicants who fail to successfully complete the VASAP Certification Exam on the second attempt shall not be allowed to reapply to provide ASAP services for the Commonwealth of Virginia or for ASAP offenders residing out of state for six months from the date of the second failed exam. ASAPs shall be required to pay an administrative fee of $250 to the commission for each second and subsequent VASAP Certification Exam taken by an employee as the result of a prior failed exam by the same ASAP employee.

C. In addition to the requirements of subsections A and B of this section, ASAP employees who serve in an ASAP director capacity shall be required to successfully complete the following requirements to obtain a VASAP Certification Letter:

1. A minimum of 40 hours of commission-approved training via a format and location determined by the executive director; and

2. Verification of meetings conducted with stakeholders of the assigned ASAP to include all Circuit and General District Court judges along with their clerk of court, Commonwealth attorneys, sheriffs, and police chiefs unless otherwise approved by the commission. Newly hired ASAP directors will be granted a six-month grace period to fulfill this requirement.

D. The executive director may deny, revoke, suspend, or terminate a VASAP Certification Letter for any ASAP employee for any of the following reasons:

1. Having been convicted of a felony;

2. Having been convicted of a misdemeanor potentially punishable by confinement;

3. Committing an unethical, deceptive, or dishonest act that negatively impacts the integrity of the state VASAP system;

4. Failing to demonstrate the ability to consistently comply with ordinances, statutes, administrative rules, or court orders at the local, state, or federal level;

5. Failing to demonstrate sufficient knowledge or skill required to perform ASAP services in the Commonwealth of Virginia or for ASAP offenders residing out of state;

6. Making a material misstatement or omission on the application;

7. Defrauding any client, service provider, or other person or entity in the conduct of the ASAP's business;

8. Unethical behavior. Proper employee conduct is outlined in the ASAP Code of Conduct;

9. Failing to attend any commission-mandated training without prior commission approval;

10. Failing to timely enter ASAP enrollments or completions or ignition interlock installs and completions into the DMV system;

11. Displaying a pattern of substandard customer service;

12. Mismanagement of ASAP finances;

13. Failing to submit reports required by the commission to the commission within the timeframes provided by the commission; or

14. Expending or directing another to expend budgetary funds not approved by the commission.

An ASAP employee whose VASAP Certification Letter has been denied, revoked, suspended, or terminated may request a judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). In the event that the decision to suspend the VASAP Certification Letter of an ASAP employee is upheld, the ASAP employee shall not perform any ASAP services in the Commonwealth of Virginia or for ASAP offenders residing out of state for the entire suspension period, or in the case of a denial, revocation, or termination, on a permanent basis. This prohibition includes any period during which the denial, suspension, revocation, or termination is being contested. The ASAP director, or the policy board in the situation where the action pertains to an ASAP director, shall return the VASAP Certification Letter to the commission within 15 days of the date that the certification was suspended, revoked, or terminated by the commission.

E. ASAP directors shall be responsible for any ASAP employee, including themselves, who provides any ASAP services without a valid VASAP Certification Letter, excluding a new employee who is within the first 90 days of employment, and shall be subject to a fine of up to $500 per occurrence, to be approved by the executive finance committee, payable to the Treasurer of Virginia. In this instance, the commission will notify the applicable jurisdictions of the violation. If the violation continues, the commission shall review the ASAP's certification at the next commission meeting.

F. Once the completed application has been approved by the commission, and all other qualifications have been met by the applicant, a VASAP Certification Letter to perform ASAP services in the Commonwealth of Virginia and to ASAP offenders residing out of state shall be issued to the applicant in a method approved by the commission. In the event that an applicant is not approved for a VASAP Certification Letter to perform ASAP services in the Commonwealth of Virginia or to ASAP offenders residing out of state, the commission will notify the ASAP employee in writing within 10 days of the determination. The VASAP Certification Letter is subject to review by the commission at its discretion during the course of the certification period.

G. ASAP employees are required to successfully complete 10 hours of commission-approved continuing education on an annual basis in order for their certification to perform ASAP services in the Commonwealth of Virginia and to ASAP offenders residing out of state to remain valid. ASAP employees who fail to successfully complete 10 hours of commission-approved continuing education on an annual basis shall have their certification suspended by the executive director on the annual expiration date of the certification unless otherwise approved by the executive director. The annual time period to complete the 10 hours of commission-approved continuing education for all ASAP employees is calculated as 365 days from their original certification date and falls on the same date on an annual basis for all subsequent years. The executive director shall determine the parameters required for successful completion and awarding of commission-approved continuing education courses.

H. An ASAP employee who has had state certification denied, revoked, or terminated shall be ineligible to reapply for a VASAP Certification Letter unless otherwise approved by the commission.

I. ASAPs are required to notify the commission in writing of any employee who is no longer an employee of the ASAP within 48 hours of the ASAP employee's employment end date.

J. In addition to the successful completion of the VASAP Certification Exam required for application, the executive director may order that an ASAP employee review requirements and retake the VASAP Certification Exam to demonstrate that the employee possesses the knowledge required to adequately perform ASAP services in the Commonwealth of Virginia and to ASAP offenders residing out of state.

K. ASAP employees are permitted to perform ASAP duties without a VASAP Certification Letter for up to (insert a date six months after the effective date of this regulation) unless otherwise approved by the executive director.

FORMS (24VAC35-80)

Application for Distribution of Commission on VASAP Funds (filed 1/2023)

DOCUMENTS INCORPORATED BY REFERENCE (24VAC35-80)

Commission on the Virginia Alcohol Safety Action Program Certification Manual, effective January 3, 2023