Title of Regulation: 20VAC5-330. Limitations on Disconnection of Electric and Water Service (adding 20VAC5-330-10 through  20VAC5-330-50).

Statutory Authority: Chapters 500, 662, and 673 of the 2011 Acts of Assembly.

Effective Date: October 31, 2011.

Agency Contact: Timothy R. Faherty, Consumer Services Manager, Division of Energy Regulation, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9629, FAX (804) 371-9350, or email tim.faherty@scc.virginia.gov.

Summary:

This regulation establishes limitations on the authority of an investor-owned electric utility, electric cooperative, or public utility providing water service to terminate electric service or water service to the residence of any customer who provides the certification of a licensed physician that the customer or a family member who resides with the customer has a serious medical condition. The regulation also provides a cost recovery mechanism under which electric and water utilities are authorized to recover any losses on customer accounts that are written off or otherwise determined to be uncollectible as a result of the regulation.

Substantive changes to the proposed regulation include: (i) revising the definition of serious medical condition; (ii) revising the steps to be taken by the electric or water service provider upon receipt of a request for a delay from a customer without a Serious Medical Condition Certification Form on file; and (iii) modifying the Serious Medical Condition Certification Form to require the physician completing the form to provide the name of the state in which the physician is licensed.

AT RICHMOND, OCTOBER 18, 2011

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUE-2011-00060

Ex Parte: In re: Establishing rules providing
limitations on disconnection of electric and water
service for persons with serious medical conditions

ORDER ADOPTING REGULATIONS

On July 11, 2011, the State Corporation Commission ("Commission") initiated a rulemaking required by Chapters 500, 662, and 673 of the 2011 Acts of Assembly ("Acts"). Through these Acts, the Virginia General Assembly directed the Commission to conduct a proceeding for the purpose of establishing limitations on the authority of an investor‑owned electric utility, electric cooperative, or public utility providing water service to terminate electric service or water service to the residence of any customer who provides the certification of a licensed physician that the customer, or a family member who resides with the customer, has a serious medical condition. The Acts, inter alia, directed the Commission to: (i) establish limitations that are consistent with the public interest; (ii) establish a cost recovery mechanism under which electric and water utilities shall be authorized to recover any losses on customer accounts that are written off or otherwise determined to be uncollectible as a result of these regulations; and (iii) make these regulations effective no later than October 31, 2011. Finally, the Acts provided that in the proceeding establishing these regulations, the Commission was to consult with the Commissioner of Health, the Commissioner of Social Services, the Virginia Poverty Law Center, the Virginia League of Social Services Executives, electric utilities, water utilities, and other persons the Commission deems appropriate ("Designated Entities").

The Commission's July 11, 2011 Order for Notice and Comment ("July 11, 2011 Order"), set out proposed rules ("Proposed Rules") that had been prepared by the Staff of the Commission ("Staff") after consulting with the Designated Entities and other interested parties. The July 11, 2011 Order also provided that public notice of the Proposed Rules be given so as to afford any persons or entities, including the Designated Entities, an opportunity to comment formally on the Proposed Rules, to request a hearing thereon, or to propose modifications or supplements to the Proposed Rules.

Notice of the proceeding was published in the Virginia Register on August 1, 2011, and in newspapers of general circulation throughout the Commonwealth.¹ Interested persons were directed to file any comments and requests for hearing on the Proposed Rules on or before August 16, 2011.

Comments in this proceeding were submitted by: Delegate Ward L. Armstrong, Delegate Gregory D. Habeeb, Delegate Salvatore R. Iaquinto, The Virginia Poverty Law Center, David M. Debiasi for AARP Virginia, Jean Duggan for Bay Aging, Virginia Electric and Power Company, Appalachian Power Company, Kentucky Utilities Company d/b/a Old Dominion Power, the Virginia Electric Cooperatives,² Bluefield Valley Waterworks Company, Aqua Virginia, Inc., Virginia American Water Company, Sarah R. Ebbett, Mehdi Nabavi, Bobbie Henley, Becky J. Smith, Mary S. Martin, Avi Dey, Gwendolyn D. Cook, and Lennis J. Harris. The Commission did not receive a request for a hearing on the Proposed Rules.

As directed by the July 11, 2011 Order, the Staff filed a report ("Staff Report") on August 30, 2011, in which the Staff, in part, reviewed the comments on the Proposed Rules. The Staff Report also presented revisions to the Proposed Rules to the Commission after consideration of the comments filed in this proceeding.

NOW THE COMMISSION, upon consideration of this matter, is of the opinion and finds that, except as described below, the proposed regulations as revised and set forth in the Staff Report should be adopted as Chapter 330 of the Virginia Administrative Code ("VAC").

With regard to the definition of "serious medical condition" set forth in 20 VAC 5‑330‑20, we find that, upon review of the Acts directing that we undertake this rulemaking, a definition more closely following the language initially proposed by the Virginia Department of Health should be adopted at this juncture.³

Furthermore, we find that language added in 20 VAC 5-330-40 B, which provides that a customer is entitled to only one 10-day delay in a 12-month period for purposes of securing a completed Serious Medical Condition Certification Form, should be revised as set forth herein.⁴

These regulations will be titled "Limitations on Disconnection of Electric and Water Service" and will be made effective as of October 31, 2011.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's regulations regarding Limitations on Disconnection of Electric and Water Service, 20 VAC 5-330-10 et seq., are hereby adopted as shown in Appendix A to this Order, and shall become effective as of October 31, 2011.

(2) A copy of these regulations as set out in Appendix A of this Order shall be forwarded to the Registrar of Regulations for publication in the Virginia Register.

(3) There being nothing further to come before the Commission, this case hereby is dismissed from the Commission's docket of active cases, and the papers filed herein shall be placed in the Commission's file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the Commission, c/o Document Control Center, 1300 East Main Street, First Floor, Tyler Building, Richmond, Virginia 23219. A copy hereof shall be delivered to the Commission's Office of General Counsel and Divisions of Energy Regulation and Public Utility Accounting.

__________________

¹ See Memoranda from Laura S. Martin of the Commission's Division of Information Resources, filed in this docket on August 3, 2011, and August 15, 2011.

² The Virginia Electric Cooperatives include A&N Electric Cooperative, BARC Electric Cooperative, Central Virginia Electric Cooperative, Community Electric Cooperative, Craig-Botetourt Electric Cooperative, Mecklenburg Electric Cooperative, Northern Neck Electric Cooperative, Northern Virginia Electric Cooperative, Powell Valley Electric Cooperative, Prince George Electric Cooperative, Rappahannock Electric Cooperative, Shenandoah Valley Electric Cooperative, and Southside Electric Cooperative and their statewide service organization, the Virginia, Maryland, and Delaware Association of Electric Cooperatives.

³ Staff Report at Attachment 2.

⁴ With this revision we clarify that while this 10-day delay under this subsection is required only once in a 12-month period, 20 VAC 5-330-40 A, C, and D provide that a 30-day delay in service termination may be exercised twice in a 12-month period once a completed Serious Medical Condition Certification Form is filed.

CHAPTER 330
LIMITATIONS ON DISCONNECTION OF ELECTRIC AND WATER SERVICE

20VAC5-330-10. Applicability and scope.

This chapter is promulgated pursuant to Chapters 500, 662, and 673 of the 2011 Acts of Assembly. The provisions in this chapter apply to investor-owned electric utilities, electric cooperatives, and public utilities providing water service. In order to promote public health and safety, this chapter is designed to establish reasonable limitations, consistent with the public interest, on the ability of investor-owned electric utilities, electric cooperatives, and public utilities providing water service to terminate service to residential customers who have a serious medical condition or to residential customers who reside with a family member with a serious medical condition and to provide such residential customers adequate time prior to the termination of electric or water service to either enter into a payment plan with the utility or make other arrangements for housing or medical care. Nothing in this chapter shall be interpreted to require an investor-owned electric utility, electric cooperative, or public utility providing water service to terminate service after the expiration of the timelines established herein.

[ Furthermore, nothing in this chapter shall be interpreted to prohibit an investor-owned electric utility, electric cooperative, or public utility providing water service from terminating service in the event of an emergency or in the event an investor-owned electric utility, electric cooperative, or public utility providing water service reasonably believes that theft of service or meter tampering has occurred in connection with the service. ]

20VAC5-330-20. Definitions.

The following terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Licensed physician" means a person licensed to practice medicine or osteopathic medicine (M.D. or D.O.) in any of the 50 states or the District of Columbia.

"Serious medical condition" means a physical or psychiatric condition that requires medical intervention to prevent further disability, loss of function, or death. Such conditions are characterized by a need for ongoing medical supervision or the consultation of a physician. A serious medical condition carries with it a risk to health beyond that experienced by the majority of children and adults in their day-to-day minor illnesses and injuries. Individuals with a serious medical condition may require administration of specialized treatments and may be dependent on medical technology such as ventilators, dialysis machines, enteral or parenteral nutrition support, or continuous oxygen. Medical interventions may include medications with special storage requirements, use of powered equipment, or access to water. [ Further, a medical condition shall only be considered a serious medical condition if a licensed physician certifies that electric or water service is necessary in the treatment of the medical condition. ]

"Serious Medical Condition Certification Form" means a written document, approved by the State Corporation Commission, signed by (i) a licensed physician, (ii) the customer, and (iii) the patient or the patient's legal guardian or power of attorney. The Serious Medical Condition Certification Form shall (i) identify the medical condition of the customer or family member who resides with the customer, (ii) include a certification by a licensed physician that the medical condition meets the definition of a serious medical condition, (iii) identify the anticipated length of time that the serious medical condition will persist, and (iv) identify any equipment prescribed or treatment required for the medical condition.

20VAC5-330-30. General provisions.

A. A request for a waiver of any of the provisions of this chapter shall be considered by the State Corporation Commission on a case-by-case basis, and may be granted upon such terms and conditions as the State Corporation Commission may impose.

B. An investor-owned electric utility, electric cooperative, or public utility providing water service shall use the Serious Medical Condition Certification Form (Form SMCC) provided on the State Corporation Commission's website at http://www.scc.virginia.gov/pue/rules.aspx unless the State Corporation Commission approves the use of an alternative form.

C. An investor-owned electric utility, electric cooperative, or public utility providing water service may require a customer to provide it a new Serious Medical Condition Certification Form either annually or upon the expiration of the anticipated length of time that the serious medical condition will persist if such time is less than 12 months.

D. An investor-owned electric utility, electric cooperative, or public utility providing water service may take reasonable actions to verify the validity of the Serious Medical Condition Certification Form. Such actions include, but are not limited to, contacting (i) the licensed physician to confirm the medical condition of the patient and the treatment or treatments associated therewith; (ii) the Virginia Department of Health Professions, or the applicable state's licensing board, to verify that the physician is a licensed physician; or (iii) the customer to verify that the patient currently resides at the residence.

E. In the event that the investor-owned electric utility, electric cooperative, or public utility providing water service is of the opinion that the information provided on the Serious Medical Condition Certification Form is invalid, or otherwise is of the opinion that there has been fraud or abuse of the process provided in this chapter, it may petition the State Corporation Commission for redress pursuant to 5VAC5-20-100 B, State Corporation Commission's Rules of Practice and Procedure.

20VAC5-330-40. Limitations on service termination to residential customers.

A. Following the issuance of a notice of intent to terminate service pursuant to § 56-247.1 [ D or F A 4 or 6 ] of the Code of Virginia, an investor-owned electric utility, electric cooperative, or public utility providing water service shall, upon request from a residential customer who has a Serious Medical Condition Certification Form filed with the utility, delay termination of service for a minimum of an additional 30 calendar days beyond the expiration of the notice.

B. Following the issuance of a notice of intent to terminate service pursuant to § 56-247.1 [ D or F A 4 or 6 ] of the Code of Virginia, an investor-owned electric utility, electric cooperative, or public utility providing water service shall, upon request from a residential customer who does not have a Serious Medical Condition Certification Form filed with the utility, delay termination of service for 10 calendar days upon oral or written notification from a residential customer that such customer or a family member residing with the customer has a serious medical condition. The 10-calendar day delay in service termination shall commence on the date the investor-owned electric utility, electric cooperative, or public utility providing water service receives notification. At the time of such notification, the investor-owned electric utility, electric cooperative, or public utility providing water service shall:

1. Advise the residential customer that service termination will be delayed for 10 calendar days pending receipt of the Serious Medical Condition Certification Form;

2. Provide the customer access to the Serious Medical Condition Certification Form via its website [ or advise the consumer that access can be obtained via the Commission's website ];

3. Not later than [ the next two ] business [ day days after receiving notification ], mail, email, or deliver via facsimile transmission a copy of the Serious Medical Condition Certification Form upon a request from the customer; and

4. Not later than [ the next two ] business [ day days after receiving notification ], mail the customer a letter advising the customer:

a. The date notification was received;

b. The date that the 10-calendar day delay expires; and

c. That upon receipt of a Serious Medical Condition Certification Form within the 10-calendar day time period provided for in this subsection, it will delay the termination of service 30 calendar days from the date of termination initially noticed.

Upon receipt of a Serious Medical Condition Certification Form within the 10-calendar day time period provided for in this subsection, an investor-owned electric utility, electric cooperative, or public utility providing water service shall provide the 30-calendar day delay in termination of service required in subsection A of this section. [ An investor-owned electric utility, electric cooperative, or public utility providing water service shall not be required to provide a 10-calendar day delay in service termination pursuant to this subsection more than once in a 12-month period. ]

C. In the event an investor-owned electric utility, electric cooperative, or public utility providing water service has terminated service to a residential customer within the preceding 14 calendar days, the investor-owned electric utility, electric cooperative, or public utility providing water service shall promptly restore service upon (i) receipt of a Serious Medical Condition Certification Form, or confirmation of such a form on file; and (ii) a request from the customer to reconnect service. The investor-owned electric utility, electric cooperative, or public utility providing water service shall not be permitted to require any payment as a condition to reconnect; however, it may charge the customer, on the next monthly bill, any applicable reconnection fees that are on file in its State Corporation Commission approved tariffs and terms and conditions of service. Following the reconnection of service, the investor-owned electric utility, electric cooperative, or public utility providing water service shall delay termination of service for a minimum of 30 calendar days from the date it reconnects the customer.

D. An investor-owned electric utility, electric cooperative, or public utility providing water service shall permit a residential customer to delay termination of service under this chapter two times within a 12-month period. The 30-calendar day delays may be consecutive. Nothing in this chapter shall prohibit an investor-owned electric utility, electric cooperative, or public utility providing water service from providing to a customer additional delay from the termination of service beyond the delay required.

E. During the delay in service termination pursuant to subsections A and C of this section, the investor-owned electric utility, electric cooperative, or public utility providing water service shall:

1. In the event the investor-owned electric utility, electric cooperative, or public utility providing water service is able to establish payment arrangements with the customer, mail to the customer a letter detailing the agreement not later than three business days after the agreement on payment arrangements is made; or

2. In the event the investor-owned electric utility, electric cooperative, or public utility providing water service is unable to establish payment arrangements with the customer, mail the customer a letter, not later than 10 calendar days prior to the expiration of the 30-calendar day delay required by this chapter, advising the customer of (i) the date that service may be terminated and (ii) any payment arrangements available to the customer. The letter shall also advise the customer of his right to delay service termination pursuant to this chapter twice within a 12-month period.

F. The investor-owned electric utility, electric cooperative, or public utility providing water service shall (i) maintain a copy of any letters required under this section for a minimum of 12 months and (ii) provide such copies to the State Corporation Commission's Division of Energy Regulation upon request.

20VAC5-330-50. Cost recovery mechanism.

A. An investor-owned electric utility, electric cooperative, or public utility providing water service shall be permitted to recover losses on customer accounts resulting from the implementation of this chapter in the same manner as other uncollectable costs are recovered through rates.

B. An investor-owned electric utility, electric cooperative, or public utility providing water service shall maintain write-offs and recoveries of uncollectable accounts in such a manner that would allow those amounts written off as a result of the implementation of this chapter to be separately identified.

FORMS (20VAC5-330)

Serious Medical Condition Certification Form, Form SMCC (10/11).