Title of Regulation: 24VAC35-70. Remote Alcohol Monitoring Device Regulations (adding 24VAC35-70-10 through 24VAC35-70-140).

Statutory Authority: § 18.2-270.2 of the Code of Virginia.

Effective Date: July 1, 2021.

Agency Contact: Richard Foy, Field Services Specialist, 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 richard.foy@vasap.virginia.gov.

Summary:

Pursuant to Chapter 1007 of the 2020 Acts of Assembly, this regulatory action establishes 24VAC35-70, Remote Alcohol Monitoring Device Regulations. The regulation includes requirements for (i) qualifications of remote alcohol monitoring device manufacturers and service providers, (ii) training and certification of remote alcohol monitoring technicians and state directors, (iii) remote alcohol monitoring device specifications and calibration, (iv) program participation fees, (v) customer orientation training, and (vi) recordkeeping.

Chapter 70

Remote Alcohol Monitoring Device Regulations

24VAC35-70-10. Definitions.

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

"Alcohol" means ethyl alcohol, also called ethanol (C₂H₅OH).

"ASAP" means a local alcohol safety action program.

"Blood alcohol concentration" or "BAC" means the amount of alcohol in an offender's blood or breath, as determined by chemical analysis, that is measured by the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath.

"Bodily fluid" means any bodily fluid capable of being used to estimate blood alcohol concentration, provided the relationship between such bodily fluid and BAC has been established according to scientifically acceptable standards. Such fluids include blood, exhaled deep lung breath, perspiration (transdermal), and saliva.

"Breath test" means an analysis of the breath alcohol concentration of a deep lung breath sample, where "deep lung breath sample" or "alveolar breath sample" means a minimum 1.0-liter air sample that is the last portion of a prolonged, uninterrupted exhalation and that gives a quantitative measurement of alcohol concentration from which breath sample concentrations can be determined. "Alveolar" refers to the alveoli that are the smallest air passages in the lungs surrounded by capillary blood vessels and through which an interchange of gases occurs during respiration.

"Calibration" means a device system check indicating the absence of issues that affect the remote alcohol monitoring device's ability to provide an accurate alcohol concentration reading.

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

"Device" means a remote alcohol monitoring device.

"Device certification" means the testing and approval process required by the Commission on Virginia Alcohol Safety Action Program for all remote alcohol monitoring devices.

"Executive Finance Committee" means the advisory subcommittee of the commission composed of the Executive Director of the Commission on Virginia Alcohol Safety Action Program, two commission members, and such other persons as the commission designates.

"Manufacturer" means the entity that is responsible for the design, production, and distribution of remote alcohol monitoring devices to service providers.

"Offender" means the individual required by the court to use a remote alcohol monitoring device.

"Orientation" means to increase offender familiarity and understanding of remote alcohol monitoring device operation and program expectations through training and set up of the remote alcohol monitoring device for use by the offender.

"Remote alcohol monitoring device" means an unsupervised mobile testing device with the ability to confirm the location and presence of alcohol in a person and that is capable of scheduled, random, and on-demand tests that provide immediate or as-requested results. A testing device may be worn or used by persons ordered by the court to provide measurements of the presence of alcohol in their blood via breath or bodily fluid.

"Retest" means an additional opportunity to provide a deep lung breath or transdermal sample.

"Routine maintenance" means inspection, calibration, and other simple, small-scale activities associated with regular and general upkeep of the remote alcohol monitoring device against normal wear and tear but does not include internal repair.

"Service center" means the physical location where remote alcohol monitoring services are performed.

"Service provider" means an authorized entity that provides orientation of approved remote alcohol monitoring devices for manufacturers. Among other activities, service providers may calibrate and perform routine maintenance of devices as well as provide required reports and testify in court. In some cases, the service provider may also be a manufacturer of a remote alcohol monitoring device.

"Set point" means the level at which the breath or transdermal alcohol concentration initiates a sequence of events to determine if the BAC or TAC sample is a confirmed alcohol event.

"State director" means a manufacturer employee who provides oversight of the manufacturer's remote alcohol monitoring device operations in the Commonwealth of Virginia.

"Tampering" means an unlawful act or attempt to disable or circumvent the legal operation of the remote alcohol monitoring device.

"Technician" means a service provider employee who provides remote alcohol monitoring services in the Commonwealth of Virginia on behalf of a manufacturer.

"Testing window" means a time period programmed into the remote alcohol monitoring device in which an offender can provide an on demand, random, or scheduled breath or transdermal test.

"Transdermal" means transfer through the skin or the quantification of alcohol from a vapor after it passes through the skin.

"Transdermal alcohol content" or "TAC" means the detection of alcohol in human subjects using an external, noninvasive detection device attached and secured to the skin with tamper resistance approved by the commission.

"Transdermal test" means an analysis of the transdermal concentration of a bodily fluid sample.

"Violation" means an event, such as a breath or transdermal test indicating alcohol consumption; a refusal to provide a deep lung breath or transdermal sample; altering, concealing, hiding, or attempting to hide one's identity from the remote alcohol monitoring device's camera while providing a breath sample; or tampering that breaches the guidelines for use of the remote alcohol monitoring device.

"Virginia Remote Alcohol Monitoring Certification Letter" means a letter issued by the commission to a service provider technician or state director authorizing the service provider technician or state director to perform remote alcohol monitoring services in the Commonwealth of Virginia.

24VAC35-70-20. When remote alcohol monitoring devices are required.

Remote alcohol monitoring devices are required when ordered by a court.

24VAC35-70-30. Approval of manufacturers.

A. The commission shall issue a request in compliance with the Commonwealth of Virginia procurement procedures to contract with remote alcohol monitoring manufacturers for the services and commodities required for the implementation and maintenance of the Commonwealth's remote alcohol monitoring program. Contracts will be for a length of time established by the commission.

B. A manufacturer seeking to contract with the commission shall:

1. Submit evidence demonstrating successful experience in the development and maintenance of a remote alcohol monitoring service program in Virginia, other states, or other countries;

2. Supply and train staff, technicians, and state directors and provide remote alcohol monitoring device orientation to ensure good customer service and compliance with all contract requirements. Personnel seeking to perform remote alcohol monitoring services or administrative duties in the Commonwealth of Virginia shall not necessarily be barred from employment due to a criminal record; however, a criminal record may be considered in conjunction with other information to determine the overall suitability of applicants for employment;

3. Provide, upon request of the commission or the court, via a properly served subpoena, expert or other required testimony in any civil, criminal, or administrative proceedings as to the method of manufacturing the device, remote alcohol monitoring functionality, and the testing protocol by which the device is calibrated and serviced. The manufacturer may assign a service provider designee to perform these duties;

4. Identify all key personnel who will be providing remote alcohol monitoring services for the Commonwealth of Virginia and furnish the commission with credentials on these personnel;

5. Notify the commission at least five business days in advance of a reduction in staffing levels of key personnel in the Commonwealth of Virginia;

6. Ensure that service provider technicians and state directors, or their designee, are trained and available to testify in court if required by a court or Commonwealth's Attorney, or upon a 10-business-day notice by the ASAP in that court's jurisdiction, regardless of whether a subpoena is issued;

7. Submit a description of the manufacturer's plan, to be approved by the commission, for distribution of the device to all locations of the Commonwealth of Virginia where remote alcohol monitoring services will be performed. Services shall be made available within a 50-mile radius of every residence in the Commonwealth of Virginia unless otherwise authorized by the commission. Manufacturers are permitted to subcontract remote alcohol monitoring services to third-party service providers that meet the requirements of this chapter for delivery of their remote alcohol monitoring services in the Commonwealth of Virginia. Alcohol Safety Action Programs may qualify as third-party service providers for a manufacturer for remote alcohol monitoring services in the Commonwealth of Virginia if approved by the commission. Alcohol Safety Action Programs that are approved by the commission to contract with remote alcohol monitoring manufacturers to provide remote alcohol monitoring services shall employ a minimum of one state-certified technician for every 50 remote alcohol monitoring offenders monitored by their program and shall meet the same certification requirements as all other service providers;

8. Submit sufficient documentation to enable the verification of adequate insurance to cover liability related to remote alcohol monitoring operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total. This liability insurance shall be considered primary above all other available insurance and shall so stipulate in the "other insurance" or applicable section of the insurance contract. The manufacturer shall provide a signed statement holding harmless the Commonwealth of Virginia and the commission and its members, employees, and agents from all claims, demands, and actions as a result of damage or injury to persons or property that may arise directly or indirectly out of an act or omission by the manufacturer or the manufacturer's service provider relating to the orientation, service, repair, or use of a remote alcohol monitoring device. Coverage shall extend to any action taken or not taken by ASAPs (unless the ASAP is a service provider for a remote alcohol monitoring device manufacturer) or the commission due to verified errors in reporting of remote alcohol monitoring device activity by the manufacturer or the manufacturer's service provider;

9. Submit documentation that the manufacturer will provide a state remote alcohol monitoring director who will serve as a central point of contact for the commission regarding all aspects of the manufacturer's remote alcohol monitoring operations in the Commonwealth. Among other duties, the manufacturer's state remote alcohol monitoring director will be expected to (i) respond promptly to problems in the field; (ii) upon request of the commission, provide testimony themselves or through their designee before applicable courts, the General Assembly of Virginia, or the commission; (iii) assist and provide training to the commission; and (iv) be responsible for quality control of reports and statistics, updates to all required documentation, and field services reporting and repairs. In the event of a state director vacancy, the manufacturer shall submit to the commission the name of an interim state director within 10 days of the vacancy and the name of a permanent state director within 90 days of the vacancy;

10. Not discriminate against an employee or applicant for employment due to race, religion, color, sex, national origin, age disability, or other basis prohibited by state or federal law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary for the normal operation of the manufacturer or the manufacturer's service provider. The manufacturer agrees to post at all service provider locations in conspicuous places available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. Furthermore, the manufacturer shall require that its service providers, in all solicitations or advertisements for employees placed by or on behalf of the service provider, state that the contractor is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting the requirements of this subdivision;

11. Not knowingly employ an unauthorized alien as defined in the Federal Immigration Reform and Control Act of 1986 (P.L. 99-603; 100 Stat. 3359) during the performance of the contract for goods and services;

12. Notify the commission in writing within 15 days of a disciplinary action taken by a state or other political entity against the manufacturer in areas where the manufacturer conducts or has conducted remote alcohol monitoring business. This notification shall include the reason for the disciplinary action and other information as the commission may reasonably request. This requirement applies regardless of the existence of an appeal;

13. Notify the commission in writing of all final adjudications against the manufacturer related to the remote alcohol monitoring device or delivery of remote alcohol monitoring services;

14. Provide remote alcohol monitoring generated reports and report all required alcohol-related violations to the Alcohol Safety Action Program of jurisdiction; and

15. Provide documentation annually of the manufacturer's certification to the current International Organization for Standardization (ISO) 9001 Quality Management System (QMS) for aspects related to design, maintenance, and distribution of a remote alcohol monitoring device. Along with this certification, a copy of the manufacturer's Quality Assurance Plan (QAP) for checking the accuracy of the calibration of the remote alcohol monitoring device is required.

C. Provided that all manufacturer, facility certification, and device certification requirements are met, the commission may contract with those manufacturers and may approve multiple makes and models of remote alcohol monitoring devices for use in the Commonwealth of Virginia.

24VAC35-70-40. Remote alcohol monitoring service facility certification.

Each remote alcohol monitoring service facility shall be inspected and certified by the commission prior to opening and at least annually thereafter. Remote alcohol monitoring service facilities shall:

1. Comply with all local business license and zoning requirements and with all federal, state, and local health, fire, and building code requirements. Prior to the jurisdictional compliance deadline, a copy of a valid business license or business license payment receipt, and tax document shall be posted in a conspicuous place at the service facility immediately upon receipt when applicable;

2. Comply with all local, state, and federal laws pertaining to the provisions of physical access to persons with disabilities;

3. Maintain offender records in a manner that complies with federal confidentiality guidelines. All offender files, payment receipts, and other identifying information shall be located in locked filing cabinets if unattended by a technician. Electronic storage of offender files shall be encrypted and secured to prevent third party access;

4. Require and enforce maintenance of a drug-free workplace and have posted in a conspicuous place available to employees and applicants for employment a statement notifying employees that the manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the service provider's workplace. The notice shall specify the actions that may be taken against employees for violations of the policy;

5. Notify offenders of the address and closure date of any remote alcohol service facility and provide the address of an alternate remote alcohol monitoring service facility within 15 days of the closure date, if applicable;

6. Ensure that employees maintain a professional appearance and are attired in such a manner as to be readily identifiable as service provider employees;

7. Ensure that the locations where remote alcohol monitoring services are performed are tidy and pose no hazards to public safety; and

8. Provide the commission a minimum of 20 days' notice prior to the scheduled opening date of a new location. This requirement allows the commission reasonable time to schedule an inspection of the new facility prior to opening services to ASAP offenders.

24VAC35-70-50. Remote alcohol monitoring device specifications and certification.

A. All remote alcohol monitoring devices used in the Commonwealth of Virginia shall be certified by the commission. The commission shall maintain a list of approved remote alcohol monitoring devices.

B. A manufacturer seeking to have a remote alcohol monitoring device certified by the commission shall submit:

1. The name and address of the remote alcohol monitoring device manufacturer;

2. The name and model number of the remote alcohol monitoring device; and

3. A detailed description of the device including drawings, wiring protocols if applicable, and instructions used in orientation.

C. The manufacturer or the manufacturer's service provider shall provide literature promoting its device to the commission and for distribution to the ASAPs.

D. The manufacturer shall provide a certification report that the remote alcohol monitoring device conforms to the minimum specifications set forth by the commission. Included with the certification report should be the name and location of the testing facility, the address and phone number of the testing facility, and the names and qualifications of the individuals performing the tests. This section applies only to the portion of the device that records breath or bodily fluid samples for analysis. At a minimum, the following specifications shall be met:

1. The remote alcohol monitoring device shall work accurately and reliably in an unsupervised environment at minimal inconvenience to others.

2. The remote alcohol monitoring device shall be able to analyze a specimen of alveolar breath or bodily fluid for alcohol concentration, correlate accurately with established measures of blood or transdermal alcohol concentration, and be calibrated according to the manufacturer's specifications.

3. The remote alcohol monitoring device shall use an electrochemical fuel cell or other technology approved by the commission that reacts to and measures ethanol.

4. A remote alcohol monitoring device that is designed to take a breath test shall indicate when an acceptable breath sample has been collected, indicating this by audible or visual means. The remote alcohol monitoring device shall not be set to a breath volume requirement of less than 1.0 L.

5. The remote alcohol monitoring device shall detect and record a BAC or TAC for all completed breath or bodily fluid samples.

6. The results of the test shall be noted through the use of green, yellow, and red signals or similar pass or fail indicators. No digital blood or transdermal alcohol concentration shall be indicated to the offender.

7. The remote alcohol monitoring device shall automatically purge alcohol before allowing subsequent analyses.

8. The remote alcohol monitoring device shall be capable of random, scheduled, continuous, or on-demand tests that provide immediate, scheduled, or on-demand results.

9. The internal memory of the remote alcohol monitoring device shall be capable of recording and storing a minimum of 500 remote alcohol monitoring events.

10. The remote alcohol monitoring device shall be designed and set up in a manner as to minimize opportunities for tampering, alteration, bypass, or circumvention.

11. The remote alcohol monitoring device shall be capable of recording and providing evidence of actual tampering, alteration, bypass, or circumvention.

12. The remote alcohol monitoring device shall operate accurately and reliably at temperatures between 10º and 40ºC.

13. The remote alcohol monitoring device shall operate up to altitudes of 2.5 km above sea level.

14. The readings of the remote alcohol monitoring device shall not be affected by humidity, dust, electromagnetic interference, smoke, or food substance when used in accordance with the manufacturer's instructions.

15. The remote alcohol monitoring device shall be set up with a means to confirm the location and presence of alcohol in an offender. If a remote alcohol monitoring device is equipped with global positioning system (GPS) capabilities, GPS coordinates are not to be shared by the manufacturer unless required by court order, subpoena, or law.

16. The remote alcohol monitoring device shall have a set point equivalent to 0.02g/210 liters of breath unless otherwise approved by the commission.

17. The testing window shall be 30 minutes unless otherwise approved by the commission.

18. Remote alcohol monitoring devices that are not continuously attached to the offender to confirm identity shall be equipped with an internal camera to provide evidence that the offender is the individual providing breath samples into the device as required by law or court order.

19. The remote alcohol monitoring device shall prompt for a subsequent breath or transdermal test 30 minutes after any reading above the set point. If the subsequent test records any BAC level, or is refused, a confirmed alcohol violation will be reported to the ASAP by the manufacturer or the manufacturer's service provider in a manner specified by the commission, unless the manufacturer has its own alcohol violation confirmation process. In situations where a manufacturer has its own alcohol violation confirmation process, the manufacturer may use its process as an alternative standard to report an alcohol violation if approved by the commission.

20. Prompted remote alcohol monitoring device tests that are not provided within the testing window shall be reported as a confirmed alcohol violation to the ASAP by the manufacturer or the manufacturer's service provider in a manner specified by the commission.

21. In the event the remote alcohol monitoring device battery level falls below 20%, the device shall prompt the offender to connect to a power supply. A low battery condition under 20% of capacity and connecting or disconnecting the device from a constant power supply shall be uniquely recorded in the device's memory.

22. Remote alcohol monitoring devices shall have calibration stability of at least six months.

23. Remote alcohol monitoring devices shall be produced by a manufacturer that maintains certification to the current International Organization for Standardization (ISO) 9001 Quality Management Systems for aspects related to the design, maintenance, and distribution of the device. Documentation demonstrating compliance with this requirement shall be submitted to the commission by the manufacturer on an annual basis.

E. All remote alcohol monitoring devices that have been approved by the commission shall have affixed a warning label with the following language: "Any person tampering with or attempting to circumvent this remote alcohol monitoring system shall be guilty of a Class 1 misdemeanor and, upon conviction, be subject to a fine or incarceration or both." Remote alcohol monitoring devices may be equipped with a GPS. If a remote alcohol monitoring device is equipped with a GPS, the following additional language is required in bold on the warning label:"Please note that this remote alcohol monitoring device is equipped with a functioning GPS." The cost and supply of the warning labels to be affixed to the remote alcohol monitoring devices shall be borne by the manufacturer or service provider. The manufacturer or service provider shall submit to the commission a prototype of the warning label for approval.

F. Additional technical specifications for the operation and installation of the remote alcohol monitoring device may be described in the contract between the commission and the manufacturer.

G. The manufacturer shall notify the commission in writing if the approval or certification of a device that is approved, or has been submitted for approval for use in Virginia, is or ever has been denied, withdrawn, suspended, or revoked in another state, whether the action occurred before or after approval in Virginia. This notification shall be made in a timely manner, not to exceed 15 days after the manufacturer has received notice of the denial, withdrawal, suspension, or revocation of approval or certification of the device, whether or not the action will or has been appealed.

24VAC35-70-60. Fees.

A. All potential manufacturers desiring to conduct business in the Commonwealth of Virginia's remote alcohol monitoring program shall submit a $250 nonrefundable application fee to the commission.

B. The following additional fees shall be paid by the manufacturer to the commission:

1. A $250 annual contract review fee;

2. A $50 annual review fee for each remote alcohol monitoring service location;

3. A $30 monthly remote alcohol monitoring administrative fee for each offender. The fee shall be accompanied by an associated offender list, categorized by ASAP, supporting the payment amounts. The ASAP offender list and payment shall be submitted no later than the 10th day of the month following the month when the remote alcohol monitoring services were provided;

4. A $250 retest fee each and every time a service provider employee is required to take a second or subsequent Virginia Remote Alcohol Monitoring Certification Exam due to an unsuccessful attempt on the first exam; and

5. A $250 remote alcohol monitoring device certification fee for any new device proposed for use in the Commonwealth.

C. Service providers may charge offenders for remote alcohol monitoring services at rates up to, but not to exceed, the following:

1. $80 for a standard remote alcohol monitoring device orientation;

2. $330 plus applicable taxes per month for remote alcohol monitoring device calibrations and monitoring, inclusive of the monthly administrative fees to be paid to the commission;

3. $10 per month for optional insurance to cover theft or accidental damage to the remote alcohol monitoring device and its components;

4. An amount of 10% over the actual replacement cost of the remote alcohol monitoring device and its components when theft or accidental damage occurs and the offender has not purchased the optional insurance;

5. $50 plus mileage calculated at the Commonwealth of Virginia mileage rate in effect at the time, not to exceed 100 miles, for service calls;

6. $35 for missed appointments; and

7. An amount permitted by the Code of Virginia at the time for returned checks.

D. All manufacturers or their service providers shall create and maintain an indigency fund for offenders who are eligible for a reduction in fees based upon a declaration of indigency by the court and approval by the commission. No manufacturer or manufacturer's service provider shall deny service to any offender for whom there has been a declaration of indigency by the court and approval by the commission.

24VAC35-70-70. Suspension or revocation of remote alcohol monitoring devices or service facility certification.

A. The commission may indefinitely suspend or revoke certification of a remote alcohol monitoring device or service facility. The Executive Finance Committee, for a period not to exceed 30 days, may suspend or revoke certification of a remote alcohol monitoring device or service facility for the following reasons:

1. When there is a voluntary request by a manufacturer to cancel certification of a device;

2. When a device is discontinued by the manufacturer;

3. When the manufacturer's liability insurance is terminated or canceled, or in cases where the service provider is responsible for the liability insurance, the insurance is canceled and not remedied by the manufacturer within three business days;

4. When the manufacturer or a manufacturer's service provider attempts to conceal its true ownership;

5. When materially false or inaccurate information is provided relating to a device's performance standards by the manufacturer;

6. When there are defects in design, materials, or workmanship causing repeated failures of a device;

7. When a manufacturer or a manufacturer's service provider knowingly permits nonqualified employees to perform work;

8. When a manufacturer or a manufacturer's service provider assists users with circumventing or tampering with a device;

9. When a manufacturer fails to fully correct an identified remote alcohol monitoring facility noncompliance issue within the timeframe required by the Code of Virginia, the provisions of this chapter, or a remote alcohol monitoring manufacturer contract;

10. When there is a pattern of identified remote alcohol monitoring facility noncompliance issues;

11. When a manufacturer or a manufacturer's service provider impedes, interrupts, disrupts, or negatively impacts an investigation conducted by the commission involving customer service issues or other complaint brought forward by a third party;

12. When there is an identified public safety or offender confidentiality issue at a remote alcohol monitoring service facility; or

13. When a manufacturer fails to maintain annual certification with the International Organization for Standardization (ISO) 9001 Quality Management System (QMS) for aspects related to design, maintenance, and distribution of a remote alcohol monitoring device.

B. If a suspension or revocation of a remote alcohol monitoring device or service facility certification occurs, the manufacturer may request judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Should a revocation of certification be upheld, the manufacturer whose device has been revoked (i) shall be responsible for removal of all devices installed and serviced by the manufacturer's service providers that are subject to the revocation and (ii) will bear the costs associated with the required removal and installation of new approved devices. In addition, the manufacturer whose device or facility is subject to the revocation shall continue to provide services for these ASAP offenders for a time to be determined by the commission, but no longer than 90 days.

C. When the certification of a remote alcohol monitoring device or remote alcohol monitoring service facility is suspended or revoked, manufacturers shall continue to make sure services are provided for ASAP offenders; however, no new remote alcohol monitoring installations shall be permitted during the period of suspension.

D. If a manufacturer or a manufacturer's service provider terminates the contract or goes out of business, the manufacturer shall be responsible for removal of all of its devices operational in the Commonwealth and shall bear the costs associated with required offender transfers to new approved devices. In addition, if a manufacturer or a manufacturer's service provider terminates the contract or goes out of business, the manufacturer or manufacturer's service provider shall continue to provide services for 90 days after notification to the commission that services will be terminated in Virginia.

24VAC35-70-80. Remote alcohol monitoring device orientation.

A. No offender who has a court order pursuant to § 18.2-270.1 of the Code of Virginia shall use a remote alcohol monitoring device in Virginia unless enrolled in and monitored by the ASAP. Prior to providing offender orientation of the device, the service provider shall first receive written or electronic authorization from the ASAP for the particular offender. This section also applies to out-of-state offenders who have a Virginia court-ordered remote alcohol monitoring requirement. This enables the commission to maintain consistency in policy and use of remote alcohol monitoring devices in the Commonwealth of Virginia and allows for a consistent pattern of instruction to the manufacturer's service providers.

B. The remote monitoring device shall have orientation provided by a commission-approved service provider within 30 days of the date of the court order; if not, the service provider shall notify the ASAP. Once orientation has occurred, the service provider shall notify the ASAP via a method established by the commission, documenting that the remote alcohol monitoring device orientation has been completed.

C. All agreements between the service provider and the offender shall be in the form of a contract and signed by the service provider and the offender. Copies of the contract shall be retained by the service provider in a manner that complies with federal confidentiality guidelines, with a copy given to the offender.

D. Prior to orientation of the remote alcohol monitoring device, offenders shall provide to the service provider:

1. Photo identification; and

2. Written authorization from the commission when the air volume requirement, blow pressure, or anti-circumvention features of the remote alcohol monitoring device are to be lowered or disabled in order to compensate for an offender's diminished lung capacity, when applicable.

E. A training video for remote alcohol monitoring devices shall be developed and delivered by the service provider to the offender, including information on the use and maintenance of the device as well as procedures for regular and emergency servicing. A remote alcohol monitoring demonstration unit shall be made available to an offender at the offender's orientation appointment for training and practice purposes.

F. Prior to attaching a transdermal unit to an offender, the offender must be breath tested using a remote alcohol monitoring device certified by the commission for use in Virginia to confirm the offender has no BAC level. If during the orientation and demonstration of the remote alcohol monitoring device, the offender provides a positive BAC, the ASAP shall be notified.

G. The service provider shall maintain a toll-free 24-hour emergency telephone service that may be used to request assistance in the event of failure of the remote alcohol monitoring device. The assistance provided by the authorized service provider shall include technical information. The remote alcohol monitoring device shall be made functional within 48 hours of the call for assistance or the remote alcohol monitoring device shall be replaced.

H. At the time of device orientation, a service provider may charge an orientation fee. The maximum permissible cost for orientation of the device shall be set by the commission, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft or accidental damage. Optional insurance may be offered by the service provider, and a written copy of the insurance policy stating clearly the applicable coverages, coverage amounts, conditions, and exclusions shall be given to offenders who purchase the insurance.

I. The manufacturer or manufacturer's service providers shall provide service to those offenders who are eligible for a reduction in fees based upon a declaration of indigence by the court and approval by the commission.

J. A remote alcohol monitoring device installed and assigned to one offender shall not be assigned simultaneously to any additional offender for the purpose of attempting to comply with a court-ordered Virginia remote alcohol monitoring requirement.

K. Remote alcohol monitoring services provided by one service provider for an individual offender shall not be transferred to another remote alcohol monitoring service provider without written permission from the commission. If the offender's reason to transfer to another remote alcohol monitoring service provider is based upon a malfunctioning remote alcohol monitoring device or legitimate customer service issue, the commission shall not unreasonably deny permission.

L. Remote alcohol monitoring test times shall be set by the court of jurisdiction. In the absence of recommended time settings by the court of jurisdiction, default test times shall be set by the commission.

24VAC35-70-90. Calibration and monitoring.

A. Only calibration units found on the current National Highway Traffic Safety Administration's Conforming Products List of Calibrating Units for Breath Alcohol Testers [ or subsequently approved for inclusion in the next conforming products list publication, ] and certified by the commission shall be used by manufacturers or their service providers to calibrate remote alcohol monitoring devices.

B. The manufacturer or the manufacturer's service provider shall:

1. Provide calibration and monitoring of the remote alcohol monitoring device at least every 30 days. If the device self-system check during calibration indicates a potential inaccuracy issue, the manufacturer or service provider shall:

a. Check the remote alcohol monitoring device for accuracy using a dry gas reference sample [ . Only units currently on the National Highway Traffic Safety Administration's Conforming Products List (CPL) or those subsequently tested and approved for inclusion in the next CPL publication may be used. Dry gas reference values shall be adjusted in a manner ] approved by the commission;

b. Check the remote alcohol monitoring device for accuracy by using a dry gas alcohol standard with an alcohol reference value between 0.030 and 0.050 g/210L;

c. Expel a three-second purge of the remote alcohol monitoring device prior to introducing the alcohol reference sample into the device. This is not required if there is less than three inches of tubing from the dry gas dispenser to the device;

d. Perform an accuracy check that will consist of two consecutive reference checks with the result of each individual check being within plus or minus 10% or 0.003, whichever is greater, of the alcohol reference value introduced into the remote alcohol monitoring device. The time period between the first and second consecutive accuracy checks shall not exceed five minutes; and

e. Store dry gas alcohol standard tanks in a manner consistent with the gas manufacturer's specifications. The dry gas tanks shall have a label attached that contains the components and concentration of the reference value of the gas, an expiration date that shall not be longer than three years from the date of preparation, and the lot or batch number. Dry gas alcohol standards must be certified to a known reference value and be traceable to the National Institute of Standards and Technology. The reference value shall be adjusted for changes in elevation and pressure. Manufacturers or their service providers shall possess a certificate of analysis from the dry gas standard manufacturer. Dry gas tanks shall be secured in a manner as to prevent harm to the public;

2. Retrieve data from the remote alcohol monitoring device data log for the previous period and electronically submit alcohol-related violations to the ASAP within 24 hours of retrieval;

3. Check the remote alcohol monitoring device for signs of circumvention or tampering if suspicious activity has been indicated to the service provider and electronically report violations to ASAP within the required timeframe established by the commission;

4. Collect the monthly monitoring fee from the offender. If an offender who has not been declared to be indigent by the court is one or more months delinquent in payments, the service provider may, in its discretion, refuse to provide services but shall not retrieve the remote alcohol monitoring device without authorization from the commission. Offenders with an outstanding balance in excess of $250 with any Virginia-approved remote alcohol monitoring device service provider shall not be permitted to install a remote alcohol monitoring device with another remote alcohol monitoring service provider unless otherwise approved by the commission; and

5. Conform to other calibration requirements established by the commission, as applicable.

C. All malfunctions other than routine maintenance of the remote alcohol monitoring device shall be either repaired or replaced by the manufacturer within two business days at no additional expense to the offender. If it is shown that the malfunction is due to damage to the device as a result of mistreatment or improper use, the offender shall be responsible for applicable repair or replacement fees. Routine maintenance of the device may be performed by the service provider.

D. The remote alcohol monitoring device shall record, at a minimum, the following data:

1. The time and date of all breath or transdermal tests;

2. The breath or transdermal alcohol level of all tests;

3. The time and date of attempts to tamper or circumvent the remote alcohol monitoring device;

4. For a unit that uses a breath sample, a photo of each person delivering an accepted breath test sample for analysis by the remote alcohol monitoring device; and

5. A reference photo of the offender.

E. A service provider may charge a monthly monitoring fee. The maximum permissible cost for monitoring and calibration shall be set by the commission through the remote alcohol monitoring regulations, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for administrative support and offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft and accidental damage. Fees for the first monthly monitoring and calibration visit will be collected from the user in advance at the time of installation and monthly thereafter when services are rendered.

24VAC35-70-100. Remote alcohol monitoring device retrieval.

A. Prior to retrieval of the remote alcohol monitoring device, the service provider must receive written or electronic authorization from the ASAP. This requirement also applies to offenders with a court-ordered Virginia remote alcohol monitoring requirement who are receiving services from a service provider in another state.

B. Offenders may not have their remote alcohol monitoring device retrieved or replaced by another manufacturer without written or electronic authorization from the commission. Whenever retrieval of a remote alcohol monitoring device is approved by the commission for the purpose of changing service providers, and the authorized retrieval is a result of a determination that the initial service provider failed to provide a level of service meeting contract requirements, the remote alcohol monitoring regulations, or the Code of Virginia, the original service provider shall bear the costs associated with orientation of the device by the new service provider.

C. Once the remote alcohol monitoring device has been retrieved, the service provider shall send an authorized report to the ASAP via a method established by the commission documenting that the remote alcohol monitoring device has been retrieved by the service provider.

D. No fee shall be charged to the offender for retrieval of the remote alcohol monitoring device.

24VAC35-70-110. Records and reporting.

A. The service provider shall be subject to announced or unannounced site reviews by the commission for the purpose of inspecting the facilities and offender records. Upon request, access to all service provider locations, records, and financial information shall be provided to the commission for the purpose of verifying compliance with state laws, commission regulations, and service provider agreements.

B. In accordance with federal confidentiality guidelines, all personal and medical information provided to the service provider regarding offenders shall be kept confidential. If the information is temporarily held at the offender's service center, it shall be stored in a locked filing cabinet when unattended by a service provider employee.

C. After providing orientation for a remote alcohol monitoring device, the service provider shall provide the ASAP, within 24 hours, an orientation report that includes:

1. The name, address, and telephone number of the offender; and

2. The serial number of the offender's remote alcohol monitoring device.

D. After performing a monitoring and calibration check, the service provider shall submit to the ASAP, within 24 hours, all data generated, to include:

1. Name of the offender whose device was monitored;

2. Name, address, and telephone number of the monitoring official;

3. Date of monitoring and calibration;

4. Make, model, and serial number of the remote alcohol monitoring device;

5. Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device;

6. Noncompliance with conditions of the ASAP or remote alcohol monitoring program;

7. Offender concerns;

8. Charges incurred for the monitoring visit;

9. Date of the next scheduled monitoring visit;

10. For devices that use a breath sample, a photo of each person who has delivered an accepted breath test sample or missed a retest on the remote alcohol monitoring device;

11. A reference photo of the offender; and

12. All identified alcohol-related violations.

E. In addition, the service provider shall have available monthly reports detailing:

1. Device orientations during the period covered;

2. Calibrations performed during the period by date and offender name, detailing any unit replacements made during the monitoring period;

3. Datalogger information from all remote alcohol monitoring devices;

4. Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device;

5. Device failure due to material defect or improper device set up; and

6. A summary of complaints received and corrective action taken.

F. The manufacturer or the manufacturer's service provider shall be responsible for purchasing and providing necessary computer hardware and software to convey all data and information requested by the commission if the equipment is not already present at the commission office or the ASAP.

G. Accurate reports shall be submitted to the ASAP in the format specified by the commission.

H. The service provider shall provide a copy of the most recent "ASAP Remote Alcohol Monitoring Agreement" to each offender at each offender's remote alcohol monitoring installation appointment and shall require the offender to read and sign the agreement.

24VAC35-70-120. General manufacturer requirements.

Remote alcohol monitoring manufacturers that are approved to perform remote alcohol monitoring services in the Commonwealth of Virginia and their service providers shall:

1. Abide by all commission memorandums, directives, contract terms, and regulations pertaining to the statewide remote alcohol monitoring program unless prohibited by state law;

2. Resolve offender, court, Department of Motor Vehicles, ASAP, commission, and other stakeholder complaints as directed by the commission;

3. Provide orientation for all ASAP remote alcohol monitoring device authorizations within the time parameters set forth by the commission. In situations where a remote alcohol monitoring service facility becomes inoperable due to a large-scale weather event or other verified unforeseen circumstances, the manufacturer shall contact the commission within 24 hours with an action plan to mitigate the impact to customer service;

4. Resolve remote alcohol monitoring service facility compliance issues as directed by the commission;

5. Obtain approval from the commission before disseminating any offender training or advertising materials used in association with the Virginia remote alcohol monitoring program;

6. Make modifications to the company website of the manufacturer or the manufacturer's service provider that is used to review monthly calibration reports upon reasonable request by the commission. Reasonable requests include changes due to language that is confusing, misleading, offensive, or inaccurate; changes required due to updated technology; changes to comply with the Code of Virginia or the remote alcohol monitoring regulations; or changes due to workload changes or product enhancements;

7. Assume full liability for action taken or not taken by an ASAP or the commission due to failure by a manufacturer or a manufacturer's service provider to report an alcohol-related violation to the local ASAP as required by this chapter or due to inaccurate or misleading reporting, whether electronic or hard copy, provided by the manufacturer or the manufacturer's service provider;

8. Be accountable for Virginia offenders with remote alcohol monitoring devices set up for use by its company in another state and ensure that all Virginia remote alcohol monitoring processes, regulations, requests for proposal terms, contract terms, and commission requirements are met unless prohibited by state law;

9. Notify the commission within 15 days of disciplinary action received from a state where the manufacturer conducts or has conducted remote alcohol monitoring business. This notification shall include the reason for the disciplinary action. This requirement applies regardless of the existence of an appeal;

10. Provide information technology assistance and training upon reasonable request by the commission; and

11. Report all changes to the remote alcohol monitoring device software or firmware, whether temporary or permanent, to the commission within 30 days of release in the Commonwealth of Virginia.

24VAC35-70-130. Service provider technician certification.

A. Service provider technicians and state directors are required to possess a Virginia Remote Alcohol Monitoring Certification Letter to perform any remote alcohol monitoring services in the Commonwealth of Virginia. Newly hired service provider technicians or state directors, however, may perform remote alcohol monitoring services under the direct supervision of a certified technician or state director for training purposes for up to 90 days prior to obtaining a Virginia Remote Alcohol Monitoring Certification Letter. In order to apply for a certification letter, manufacturers shall submit a completed application to the commission for approval of newly hired service provider technicians and state directors. The completed application shall include submission of:

1. A completed applicant form provided by the commission;

2. A complete local and national criminal history check;

3. A complete driver's record; and

4. Documentation issued by the commission of successful completion of the Virginia Remote Alcohol Monitoring Device Certification Exam.

Failure to submit a completed application will result in disqualification from consideration for a Virginia Remote Alcohol Monitoring Certification Letter by the commission to perform remote alcohol monitoring services in the Commonwealth of Virginia.

B. Applicants shall be required to complete a Virginia Remote Alcohol Monitoring Certification Exam. Successful completion of the exam requires a score of 80% or higher. Applicants who fail to successfully complete the state certification exam on the first attempt shall be allowed a second opportunity to successfully complete the exam. Applicants who fail to successfully complete the state certification exam on the second attempt shall not be allowed to reapply to provide remote alcohol monitoring services for the Commonwealth of Virginia for six months from the date of the second failed exam. Service providers shall be required to pay an administrative fee, as provided in 24VAC35-70-60 B 4, to the commission for all second and subsequent attempts to successfully complete the state certification exam. Applicants who successfully pass the state certification exam will receive documentation of successful completion from the commission that shall be submitted with the application for the Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia.

C. The commission may deny, revoke, suspend, or terminate a Virginia Remote Alcohol Monitoring Certification Letter for a service provider technician or state director 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 remote alcohol monitoring program;

4. Failing to demonstrate sufficient knowledge or skill required to perform remote alcohol monitoring services in the Commonwealth of Virginia;

5. Material misstatement or omission in an application; or

6. Defrauding any offender, manufacturer, service provider, or other person or entity in the conduct of the licensee's business.

A service provider technician or state director whose Virginia Remote Alcohol Monitoring Certification Letter has been denied, revoked, suspended or terminated may request judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In the event that the decision to suspend or revoke the Virginia Remote Alcohol Monitoring Certification Letter of a service provider's technician or state director is upheld, the service provider technician or state director shall not perform remote alcohol monitoring services in the Commonwealth of Virginia for the entire suspension period, or in the case of a revocation or termination, on a permanent basis. This prohibition includes any period during which the denial, suspension, revocation, or termination is being contested. The manufacturer is required to return the Virginia Remote Alcohol Monitoring Certification Letter to the commission within 15 days of the date that the certification was suspended, revoked, or terminated by the commission.

D. Once the completed application has been approved by the commission and all other qualifications have been met by the applicant, a Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia shall be issued to the applicant by the commission. The certification letter shall contain the effective date of the letter and a certification number specific to the applicant. The certification letter will be valid for a time period specified by the commission unless otherwise suspended, revoked, or terminated, but for no longer than the manufacturer contract end date. In the event that an applicant is not approved for a Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia, the commission will notify the manufacturer in writing within 10 days of the determination. The Virginia Remote Alcohol Monitoring Certification Letter is subject to review by the commission at its discretion during the course of the certification period.

E. An application to renew a Virginia Remote Alcohol Monitoring Certification Letter for a remote alcohol monitoring service provider technician or state director shall be submitted 30 days prior to the expiration date printed on the current certification letter. A service provider technician or state director who has had his state certification revoked or terminated shall be ineligible to reapply for a Virginia Remote Alcohol Monitoring Certification Letter unless otherwise approved by the commission.

F. Manufacturers are required to surrender Virginia Remote Alcohol Monitoring Certification Letters for service provider technicians and state directors who are no longer employed with their company. The surrendered certification letter shall be sent to the commission within 15 days of the date that the service provider technician or state director is no longer employed with the service provider or manufacturer.

G. In addition to the successful completion of the Virginia Remote Alcohol Monitoring Certification Exam required for application, the commission may order that a certified technician or state director already performing remote alcohol monitoring services in the Commonwealth of Virginia review requirements and retake the state certification exam to demonstrate that the technician or state director possesses the knowledge required to perform remote alcohol monitoring services. An exam retake fee is not applicable in this circumstance.

24VAC35-70-140. 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.