Title of Regulation: 22VAC30-50. Policies and Procedures for Administering the Commonwealth Neurotrauma Initiative Trust Fund (amending 22VAC30-50-40 through 22VAC30-50-70, 22VAC30-50-120).

Statutory Authority: §§ 51.5-131 and 51.5-181 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 9, 2021.

Effective Date: June 25, 2021.

Agency Contact: Charlotte Arbogast, Policy Advisor, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7093, FAX (804) 662-7663, TDD (800) 464-9950, or email charlotte.arbogast@dars.virginia.gov.

Basis: The Commonwealth Neurotrauma Initiative (CNI) Trust Fund is authorized under Article 12 (§ 51.5-178 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia. Specifically, § 51.5-181 of the Code of Virginia requires that the Commissioner of the Department for Aging and Rehabilitative Services (DARS) promulgate regulations establishing procedures and policies for soliciting and receiving grant applications and criteria for reviewing and ranking such applications, including goals, timelines, forms, eligibility, and mechanisms to ensure avoidance of any conflicts of interest or appearances thereof. In addition, § 51.5-131 of the Code of Virginia authorizes the commissioner to promulgate regulations necessary to carry out the provisions of the laws of the Commonwealth administered by DARS.

Purpose: The CNI Trust Fund is a special nonreverting fund established in the Code of Virginia that provides funding to Virginia-based organizations, institutions, and researchers to address the needs of people with acquired neurotrauma. Neurotrauma is defined as injury to the central nervous system (i.e., a traumatic spinal cord or brain injury) that results in loss of physical functions, cognitive functions, or both. The source of revenue for the CNI Trust Fund is a portion of the reinstatement fees that are charged before restoring an operator's license to any person whose driver's license has been revoked or suspended upon conviction for specified dangerous driving offenses. In accordance with the Code of Virginia and 22VAC30-50, the CNI Trust Fund Program provides funding for projects that are either researched-based or community-based rehabilitative programs and services.

As outlined in 22VAC30-50-30, the regulatory chapter establishes (i) policies and procedures for soliciting and receiving applications for grants from the fund, (ii) criteria for reviewing and ranking such applications, and (iii) procedures for distributing moneys in the fund. The chapter requirements ensure fidelity to the purpose of the CNI Trust Fund and proper use of public funds to improve the lives of individuals who have acquired neurotrauma.

Rationale for Using Fast-Track Rulemaking Process: This fast-track rulemaking regulatory action was initiated following a periodic review of the chapter. Section 51.5-181 of the Code of Virginia stipulates the commissioner shall receive the recommendations of the CNI Trust Fund Advisory Board prior to promulgating or revising any such regulations. In accordance, the department shared the potential regulatory revisions with the CNI Trust Fund Advisory Board, and the CNI Trust Fund Advisory Board unanimously endorsed the changes proposed by the department through the fast-track rulemaking process, therefore the action is deemed noncontroversial.

Substance: The following changers are being made to this chapter:

In 22VAC30-50-40, strike case decisions reference language. This does not apply to the CNI Trust Fund Program. DARS and the CNI Trust Fund Advisory Board do not make case decisions related to 22VAC30-50.

In 22VAC30-50-50, correct the subdivision reference from 12 to 9. The reference relates to the Freedom of Information Act exclusions in § 2.2-3705.5 of the Code of Virginia.

In 22VAC30-50-60, improve clarity and align with practice and requirements in 22VAC30-50-120.

In 22VAC30-50-70, strike the word "three" in relation to the reference to Virginia medical schools.

In 22VAC30-50-120, improve clarity and align with practice and requirements in 22VAC30-50-60.

Issues: The primary advantages of the revisions are to clarify language that is ambiguous and align the chapter with the Code of Virginia and current practices. The regulatory action poses no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Following a periodic review,¹ the Department for Aging and Rehabilitative Services (DARS) proposes to clarify existing regulatory text.

Background. This regulation establishes: (i) policies and procedures for soliciting and receiving applications for grants from the Commonwealth Neurotrauma Initiative (CNI) Trust Fund, (ii) criteria for reviewing and ranking such applications, and (iii) procedures for distributing moneys in the fund.

The CNI Trust Fund is a special nonreverting fund established in § 51.5-178 et seq. of the Code of Virginia that provides funding to Virginia-based organizations, institutions, and researchers to address the needs of people with acquired neurotrauma. Neurotrauma is defined as "injury to the central nervous system (i.e., a traumatic spinal cord or brain injury) that results in loss of physical functions, cognitive functions, or both." The source of revenue for the CNI Trust Fund is a portion of the reinstatement fees that are charged before restoring an operator's license to any person whose driver's license has been revoked or suspended upon conviction for specified dangerous driving offenses.

According to DARS, almost all research or service projects are solicited through a Request for Proposals depending on the availability of funds. Most projects are funded for three years. Individual grants cannot exceed $300,000.

Estimated Benefits and Costs. The proposed changes in this action are strictly clarifying in nature and are not expected to affect the programs operation. Thus, no significant economic impact other than improving the clarity of the existing requirements is expected.

Businesses and Other Entities Affected. The CNI Trust Fund Program currently funds 11 ongoing projects. Seven projects are based in Virginia higher education institutions, which may include Virginia's public universities.² Four projects are based in community organizations or private research entities. However, there are no projected costs or impacts on the funded organizations or institutions that may seek CNI Trust Funds. Thus, no adverse³ or disproportionate economic impact is indicated.

Small Businesses⁴ Affected. Although small businesses may qualify for grants from the fund, none of the current 11 recipients is believed to be a for-profit small business. In addition, the proposed changes do not introduce costs or other effects for any entities. Thus, proposed amendments do not appear to adversely affect small businesses.

Localities⁵ Affected.⁶ The proposed amendments do not disproportionately affect any localities or introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect real estate development costs.

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¹https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2004

²Data source: Virginia Employment Commission

³Adverse 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.

⁴Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

^5"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.

⁶§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department for Aging and Rehabilitative Services concurs with the economic impact analysis performed by the Department of Planning and Budget.

Summary:

The amendments, which result from a periodic review of the regulation, make technical and clarifying changes to the policies and procedures for administering the Commonwealth Neurotrauma Initiative Trust Fund to better align the chapter with the Code of Virginia and current practices.

22VAC30-50-40. Compliance with the Administrative Process Act.

Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia (the Administrative Process Act) governs the promulgation and administration of this chapter and applies to any appeal of a case decision made pursuant to or based upon this chapter.

22VAC30-50-50. Application of exemption to the Virginia Freedom of Information Act.

Pursuant to subdivision 12 9 of § 2.2-3705.5 of the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 of the Code of Virginia, records submitted to the advisory board as a grant application, or accompanying a grant application, pursuant to Article 12 (§ 51.5-178 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia and this chapter are excluded from the requirement of open inspection to the extent that they contain medical or mental health records or other data identifying individual patients, or proprietary business or research-related information produced or collected by an applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, or scholarly issues. This exemption shall apply when the information has not been publicly released, published, copyrighted, or patented, if the disclosure of the information would be harmful to the competitive position of the applicant. The advisory board intends to rely upon this exemption in order to encourage the submission of applications.

22VAC30-50-60. Requests for proposals.

The advisory board shall solicit applications for grants of moneys from the fund by issuing RFPs from time to time. These RFPs shall be issued at the discretion of the advisory board and shall depend upon the availability of moneys in the fund. Each Notwithstanding 22VAC30-50-120, each application for a grant must be submitted in response to an actual RFP and received by a deadline specified in the RFP.

22VAC30-50-70. Grant reviewers and technical advisors.

The advisory board may choose, at any time, to appoint grant reviewers or other technical advisors, or both, to assist in reviewing and ranking applications. Such reviewers and advisors may represent medical researchers, medical practitioners, community-based service providers, consumers, advocates for consumers, or others deemed appropriate by the advisory board for this purpose. Reviewers and advisors shall be appointed so as to provide equal representation from Virginia's three medical schools. Reviewers and advisors shall be selected so as to avoid any conflict of interests or the appearance thereof, and the advisory board may choose reviewers and advisors residing or working outside Virginia to ensure impartiality. Whenever reviewers or advisors sit as a committee, the chair of the advisory board or his designee shall serve as chair of the committee but shall not vote on individual applications.

22VAC30-50-120. Unexpended funds.

Notwithstanding any other law to the contrary, the The commissioner may reallocate up to $500,000 from unexpended balances in the fund for new grant awards for research on traumatic brain and spinal cord injuries.