TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

Title of Regulation: 4VAC20-490. Pertaining to Sharks (amending 4VAC20-490-20, 4VAC20-490-42).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 1, 2025.

Agency Contact: Zachary Widgeon, Director of Communications, Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651, telephone (757) 414-0713, FAX (757) 247-2002, or email zachary.widgeon@mrc.virginia.gov.

Summary:

In compliance with Addendum VII of the Atlantic States Marine Fisheries Commission's Spiny Dogfish Fishery Management Plan and the Spiny Dogfish Framework Adjustment 6 from the Mid-Atlantic Fisheries Management Council, the amendments (i) add two definitions and (ii) prohibit overnight soaks for spiny dogfish permit holders on gill nets with 5.25-to-10-inch mesh sizes from November through March in specified areas off of the Delmarva Peninsula and Virginia Beach.

4VAC20-490-20. Definitions.

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

"Agent" means any person who possesses the Commercial Fisherman Registration License, fishing gear license, or fishing permit of a registered commercial fisherman in order to fish that commercial fisherman's gear or sell that commercial fisherman's harvest.

"Annual quota" means Virginia's 10.795% share of the annual coastwide commercial spiny dogfish quota managed by the Atlantic States Marine Fisheries Commission.

"Carcass length" means that length measured in a straight line from the anterior edge of the first dorsal fin to the posterior end of the shark carcass.

"Circle Hook hook" means a non-offset, non-stainless steel hook with the point turned sharply and straight back toward the shank.

"COLREGS Line" means the COLREGS Demarcation Line, as defined in the Code of Federal Regulations (33 CFR 80.510 Chesapeake Bay Entrance, VA).

"Commercial shark fisherman" means any commercial fisherman permitted to land or possess sharks (excluding spiny dogfish) that has landed and sold one pound of shark or more (excludes spiny dogfish) in that calendar year (January 1 through December 31).

"Commercially permitted aggregated large coastal shark" means any of the following species:

Blacktip, Carcharhinus limbatus

Bull, Carcharhinus leucas

Lemon, Negaprion brevirostris

Nurse, Ginglymostoma cirratum

Silky, Carcharhinus falciformis

Spinner, Carcharhinus brevipinna

Tiger, Galeocerdo cuvier

"Commercially permitted hammerhead shark" means any of the following species:

Great hammerhead, Sphyrna mokarran

Scalloped hammerhead, Sphyrna lewini

Smooth hammerhead, Sphyrna zygaena

"Commercially permitted nonblacknose small coastal shark" means any of the following species:

Atlantic sharpnose, Rhizoprionodon terraenovae

Bonnethead, Sphyrna tiburo

Finetooth, Carcharhinus isodon

"Commercially permitted pelagic shark" means any of the following species:

Blue, Prionace glauca

Porbeagle, Lamna nasus

Thresher, Alopias vulpinus

"Commercially prohibited shark" means any of the following species:

Atlantic angel, Squatina dumeril

Basking, Cetorhinus maximus

Bigeye sand tiger, Odontaspis noronhai

Bigeye sixgill, Hexanchus nakamurai

Bigeye thresher, Alopias superciliosus

Bignose, Carcharhinus altimus

Blacknose, Carcharhinus acronotus

Caribbean reef, Carcharhinus perezii

Caribbean sharpnose, Rhizoprionodon porosus

Dusky, Carcharhinus obscurus

Galapagos, Carcharhinus galapagensis

Longfin mako, Isurus paucus

Narrowtooth, Carcharhinus brachyurus

Night, Carcharhinus signatus

Oceanic whitetip, Carcharhinus longimanus

Sand tiger, Carcharias taurus

Sevengill, Heptranchias perlo

Shortfin mako, Isurus oxyrinchus

Sixgill, Hexanchus griseus

Smalltail, Carcharhinus porosus

Whale, Rhincodon typus

White, Carcharodon carcharias

"Control rule" means a time-certain date, past, present, or future, used to establish participation in a limited entry fishery and may or may not include specific past harvest amounts.

"Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area" means all tidal waters of the Atlantic Ocean that are bounded by a line beginning at a point at Latitude 38° 27.00' N, Longitude 75° 06.00' W; thence southeasterly to a point at Latitude 38° 21.00' N, Longitude 74° 48.00' W; thence southerly to a point at Latitude 37° 30.00' N, Longitude 75° 12.00' W; thence northwesterly to a point at Latitude 37° 48.00' N, Longitude 75° 30.00' W; thence northeasterly to a point at Latitude 38° 27.00' N, Longitude 75° 06.00' W, which is the point of beginning.

"Dressed weight" means the result from processing a fish by removal of head, viscera, and fins, but does not include removal of the backbone, halving, quartering, or otherwise further reducing the carcass.

"Finning" means removing the fins and returning the remainder of the shark to the sea.

"Fork length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the fork of the tail along the midline, using a straight-line measure, not measured over the curve of the body.

"Large mesh gill net" means any gill net with a stretched mesh of greater than five inches.

"Longline" means any fishing gear that is set horizontally, either anchored, floating, or attached to a vessel, and that consists of a mainline or groundline, greater than 1,000 feet in length, with multiple leaders (gangions) and hooks, whether retrieved by hand or mechanical means.

"Movable gill net" means any gill net other than a staked gill net.

"Permitted commercial gear" means rod and reel, handlines, shark shortlines, small mesh gill nets, large mesh gill nets, pound nets, and weirs.

"Recreational shore angler" means a person neither fishing from a vessel nor transported to or from a fishing location by a vessel.

"Recreational vessel angler" means a person fishing from a vessel or transported to or from a fishing location by a vessel.

"Recreationally permitted shark" means any of the following species:

Atlantic sharpnose, Rhizoprionodon terraenovae

Blacknose, Carcharhinus acronotus

Blacktip, Carcharhinus limbatus

Blue, Prionace glauca

Bonnethead, Sphyrna tiburo

Bull, Carcharhinus leucas

Finetooth, Carcharhinus isodon

Great hammerhead, Sphyrna mokarran

Lemon, Negaprion brevirostris

Nurse, Ginglymostoma cirratum

Porbeagle, Lamna nasus

Scalloped hammerhead, Sphyrna lewini

Smooth dogfish, Mustelus canis

Smooth hammerhead, Sphyrna zygaena

Spinner, Carcharhinus brevipinna

Thresher, Alopias vulpinus

Tiger, Galeocerdo cuvier

"Recreationally prohibited shark" means any of the following species:

Atlantic angel, Squatina dumeril

Basking, Cetorhinus maximus

Bigeye sand tiger, Odontaspis noronhai

Bigeye sixgill, Hexanchus nakamurai

Bigeye thresher, Alopias superciliosus

Bignose, Carcharhinus altimus

Caribbean reef, Carcharhinus perezii

Caribbean sharpnose, Rhizoprionodon porosus

Dusky, Carcharhinus obscurus

Galapagos, Carcharhinus galapagensis

Longfin mako, Isurus paucus

Narrowtooth, Carcharhinus brachyurus

Night, Carcharhinus signatus

Oceanic whitetip, Carcharhinus longimanus

Sand tiger, Carcharias taurus

Sandbar, Carcharhinus plumbeus

Sevengill, Heptranchias perlo

Shortfin mako, Isurus oxyrinchus

Silky, Carcharhinus falciformis

Sixgill, Hexanchus griseus

Smalltail, Carcharhinus porosus

Whale, Rhincodon typus

White, Carcharodon carcharias

"Research only shark" means any of the following species:

Sandbar, Carcharhinus plumbeus

"Shark shortline" means a fish trotline that is set horizontally, either anchored, floating, or attached to a vessel, and that consists of a mainline or groundline, 1,000 feet in length or less, with multiple leaders (gangions) and no more than 50 corrodible circle hooks, whether retrieved by hand or mechanical means.

"Small mesh gill net" means any gill net with a stretched mesh of equal to or less than five inches.

"Smooth dogfish" means any shark of the species Mustelus canis. Smooth dogfish are also known as "smoothhound shark."

"Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.

"Spiny dogfish" means any shark of the species Squalus acanthias.

"Virginia Atlantic Sturgeon Bycatch Reduction Area" means all tidal waters of the Atlantic Ocean that are bounded by a line beginning at a point at Latitude 37° 18.00' N, Longitude 75° 54.00' W; thence southeasterly to a point at Latitude 36° 48.00' N, Longitude 75° 36.00' W; thence southwesterly to a point at Latitude 36° 33.00' N, Longitude 75° 51.00' W; thence northwesterly to a point at Latitude 36° 54.00' N, Longitude 76° 06.00' W; thence northeasterly to a point at Latitude 37° 18.00' N, Longitude 75° 54.00' W, which is the point of beginning.

4VAC20-490-42. Spiny dogfish commercial quota and harvest limitations.

A. The fishing year for spiny dogfish shall be from May 1 of the current calendar year through April 30 of the following calendar year. For the fishing year, the commercial spiny dogfish landings quota shall be limited to annual quota except as specified in subsection B of this section.

B. If a quota transfer occurs between Virginia and another state or region participating in the Interstate Fishery Management Plan for spiny dogfish, Virginia's annual quota for the fishing year shall be limited to the annual quota amount as adjusted for transfers.

C. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia any spiny dogfish harvested from federal waters for commercial purposes after it has been announced that the federal quota for spiny dogfish has been taken.

D. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia more than 7,500 pounds of spiny dogfish per day for commercial purposes.

E. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia any spiny dogfish for commercial purposes after the annual quota specified in subsections A and B of this section has been landed and announced as such.

F. Any spiny dogfish harvested from state waters or federal waters, for commercial purposes, shall only be sold to a federally permitted dealer.

G. It shall be unlawful for any buyer of seafood to receive any spiny dogfish after any commercial harvest or annual quota described in this section has been landed and announced as such.

H. It shall be unlawful for any person fishing for spiny dogfish with a Virginia Spiny Dogfish Permit to leave any gill net gear with a mesh size equal to or greater than 5.25 inches and less than 10 inches in the Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area or the Virginia Atlantic Sturgeon Bycatch Reduction Area between 8 p.m. through 5 a.m. the following day from November 1 through March 31.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

Title of Regulation: 4VAC20-1090. Pertaining to Licensing Requirements and License Fees (amending 4VAC20-1090-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 1, 2025.

Agency Contact: Zachary Widgeon, Director of Communications, Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651, telephone (757) 414-0713, FAX (757) 247-2002, or email zachary.widgeon@mrc.virginia.gov.

Summary:

The amendments establish (i) a new commercial gear license using extended drift gill nets up to 6,000 feet and (ii) a fee of $100 for the license.

4VAC20-1090-30. License fees.

The following listing of license fees applies to any person who purchases a license for the purpose of harvesting for commercial purposes or fishing for recreational purposes during any calendar year. The fees listed below include a $1.00 agent fee.

1. COMMERCIAL LICENSES
Commercial Fisherman Registration License	$190.00
Commercial Fisherman Registration License for a person 70 years of age or older	$90.00
Delayed Entry Registration	$190.00
Delayed Entry Registration License for a person 70 years of age or older	$90.00
Seafood Landing License for each boat or vessel	$175.00
For each Commercial Fishing Pier over or upon subaqueous beds (mandatory)	$83.00
Seafood Buyer's License -- For each boat or motor vehicle	$63.00
Seafood Buyer's License -- For each place of business	$126.00
Clam Aquaculture Product Owner's Permit	$10.00
Oyster Aquaculture Product Owner's Permit	$10.00
Clam Aquaculture Harvester's Permit	$5.00
Oyster Aquaculture Harvester's Permit	$5.00
Nonresident Harvester's License	$444.00
2. OYSTER RESOURCE USER FEES
Any licensed commercial fisherman harvesting oysters by hand	$50.00
For any harvester using one or more gear types to harvest oysters or for any registered commercial fisherman who solely harvests or possesses any bushel limit described in 4VAC20-720-80, only one oyster resource user fee per year shall be paid	$300.00
On any business shucking or packing no more than 1,000 gallons of oysters	$500.00
On any business shucking or packing more than 1,000 but no more than 10,000 gallons of oysters	$1,000.00
On any business shucking or packing more than 10,000 but no more than 25,000 gallons of oysters	$2,000.00
On any business shucking or packing more than 25,000 gallons of oysters	$4,000.00
On any oyster buyer using a single truck or location	$100.00
On any oyster buyer using multiple trucks or locations	$300.00
Commercial aquaculture operation, on riparian assignment or general oyster planting grounds	$50.00
3. OYSTER HARVESTING, SHUCKING, RELAY, AND BUYERS LICENSES
Any person purchasing oysters caught from the public grounds of the Commonwealth or the Potomac River, for a single place of business with one boat or motor vehicle used for buying oysters	$50.00
Any person purchasing oysters caught from the public grounds of the Commonwealth or the Potomac River, for a single place of business with multiple boats or motor vehicles used for buying oysters	$100.00
For each person taking oysters by hand, or with ordinary tongs	$10.00
For each single-rigged patent tong boat taking oysters	$35.00
For each double-rigged patent tong boat taking oysters	$70.00
Oyster Dredge Public Ground	$50.00
Oyster Hand Scrape	$50.00
To shuck and pack oysters, for any number of gallons under 1,000	$12.00
To shuck and pack oysters, for 1,000 gallons, up to 10,000	$33.00
To shuck and pack oysters, for 10,000 gallons, up to 25,000	$74.00
To shuck and pack oysters, for 25,000 gallons, up to 50,000	$124.00
To shuck and pack oysters, for 50,000 gallons, up to 100,000	$207.00
To shuck and pack oysters, for 100,000 gallons, up to 200,000	$290.00
To shuck and pack oysters, for 200,000 gallons or over	$456.00
To relay condemned shellfish from a general oyster planting ground	$150.00
4. BLUE CRAB HARVESTING AND SHEDDING LICENSES, EXCLUSIVE OF CRAB POT LICENSES
For each person taking or catching crabs by dip nets	$13.00
For ordinary trotlines	$13.00
For patent trotlines	$51.00
For each single-rigged crab-scrape boat	$26.00
For each double-rigged crab-scrape boat	$53.00
For up to 210 peeler pots	$36.00
For up to 20 tanks and floats for shedding crabs	$9.00
For more than 20 tanks or floats for shedding crabs	$19.00
For each crab trap or crab pound	$8.00
5. CRAB POT LICENSES
For up to 85 crab pots	$48.00
For over 85 but not more than 127 crab pots	$79.00
For over 127 but not more than 170 crab pots	$79.00
For over 170 but not more than 255 crab pots	$79.00
For over 255 but not more than 425 crab pots	$127.00
6. HORSESHOE CRAB, LOBSTER, AND SHRIMP LICENSES
For each person harvesting horseshoe crabs by hand	$16.00
For each boat engaged in fishing for or landing of lobster using less than 200 pots	$41.00
For each boat engaged in fishing for or landing of lobster using 200 pots or more	$166.00
For each person commercial shrimp trawling	$100.00
7. CLAM HARVESTING LICENSES
For each person taking or harvesting clams by hand, rake, or with ordinary tongs	$24.00
For each single-rigged patent tong boat taking clams	$58.00
For each double-rigged patent tong boat taking clams	$84.00
For each boat using clam dredge (hand)	$19.00
For each boat using clam dredge (power)	$44.00
For each boat using hydraulic dredge to catch soft shell clams	$83.00
For each person taking surf clams	$124.00
Water Rake Permit	$24.00
8. CONCH (WHELK) HARVESTING LICENSES
For each boat using a conch dredge	$58.00
For each person taking channeled whelk by conch pot	$51.00
9. FINFISH HARVESTING LICENSES
Each pound net	$41.00
Each stake gill net of 1,200 feet in length or under, with a fixed location	$24.00
All other gill nets up to 600 feet	$16.00
All other gill nets over 600 feet and up to 1,200 feet	$24.00
Extended drift gill net up to 6,000 feet	$100.00
Each person using a cast net or throw net or similar device	$13.00
Each fyke net head, weir, or similar device	$13.00
For fish trotlines	$19.00
Each person using or operating a fish dip net	$9.00
On each haul seine used for catching fish, under 500 yards in length	$48.00
On each haul seine used for catching fish, from 500 yards in length to 1,000 yards in length	$146.00
For each person using commercial hook and line	$31.00
For each person using commercial hook and line for catching striped bass only	$31.00
For up to 100 fish pots	$19.00
For over 100 but not more than 300 fish pots	$24.00
For over 300 fish pots	$62.00
For up to 100 eel pots	$19.00
For over 100 but not more than 300 eel pots	$24.00
For over 300 eel pots	$62.00
For each person electrofishing catfish	$100.00
10. MENHADEN HARVESTING LICENSES Any person purchasing more than one of the following licenses, as described in this subsection, for the same vessel shall pay a fee equal to that for a single license for the same vessel.
On each boat or vessel under 70 gross tons fishing for the purse seine menhaden reduction sector	$249.00
On each vessel 70 gross tons or over fishing for the purse seine menhaden reduction sector	$996.00
On each boat or vessel under 70 gross tons fishing for the purse seine menhaden bait sector	$249.00
On each vessel 70 gross tons or over fishing for the purse seine menhaden bait sector	$996.00
11. COMMERCIAL GEAR FOR RECREATIONAL USE
Up to five crab pots with a terrapin excluder device	$36.00
Up to five crab pots without a terrapin excluder device	$46.00
Crab trotline (300 feet maximum)	$10.00
One crab trap or crab pound	$6.00
One gill net up to 300 feet in length	$9.00
Fish dip net	$7.00
Fish cast net	$10.00
Up to two eel pots	$10.00
12. SALTWATER RECREATIONAL FISHING LICENSE
Individual, resident (one year)	$17.50
Individual, resident (two years)	$33.50
Individual, resident (three years)	$49.50
Individual, resident (four years)	$65.50
Individual, nonresident (one year)	$25.00
Temporary 10-Day, resident	$10.00
Temporary 10-Day, nonresident	$10.00
Recreational boat, resident	$48.00
Recreational boat, nonresident, provided a nonresident may not purchase a recreational boat license unless his boat is registered in Virginia	$76.00
Head Boat/Charter Boat, resident, six or less passengers	$190.00
Head Boat/Charter Boat, nonresident, six or less passengers	$380.00
Head Boat/Charter Boat, resident, more than six passengers, plus $5.00 per person, over six persons	$190.00
Head Boat/Charter Boat, nonresident, more than six passengers, plus $5.00 per person, over six persons	$380.00
Rental Boat, resident, per boat, with maximum fee of $703	$14.00
Rental Boat, nonresident, per boat, with maximum fee of $1270	$18.00
Commercial Fishing Pier (Optional)	$632.00
Disabled Resident Lifetime Saltwater License	$10.00
Disabled Nonresident Lifetime Saltwater License	$10.00
Reissuance of Saltwater Recreational Boat License	$5.00
13. COMBINED SPORTFISHING LICENSE This license is to fish in all inland waters and tidal waters of the Commonwealth during open season.
Residents	$39.50
Nonresidents	$71.00
14. COMBINED SPORTFISHING TRIP LICENSE This license is to fish in all inland waters and tidal waters of the Commonwealth during open season for five consecutive days.
Residents	$24.00
Nonresidents	$31.00
15. TIDAL BOAT SPORTFISHING LICENSE
Residents	$126.00
Nonresidents	$201.00
16. LIFETIME SALTWATER RECREATIONAL FISHING LICENSES
Individual Resident Lifetime License	$276.00
Individual Nonresident Lifetime License	$500.00
Individual Resident Lifetime License age 45 - 50 years of age	$132.00
Individual Nonresident Lifetime License age 45 - 50 years of age	$240.00
Individual Resident Lifetime License age 51 - 55 years of age	$99.00
Individual Nonresident Lifetime License age 51 - 55 years of age	$180.00
Individual Resident Lifetime License age 56 - 60 years of age	$66.00
Individual Nonresident Lifetime License age 56 - 60 years of age	$120.00
Individual Resident Lifetime License age 61 - 64 years of age	$35.00
Individual Nonresident Lifetime License age 61 - 64 years of age	$60.00
Individual Resident Lifetime License age 65 years of age and older	$5.00

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

Title of Regulation: 4VAC20-1190. Pertaining to Gill Net Control Date (amending 4VAC20-1190-10, 4VAC20-1190-15, 4VAC20-1190-30, 4VAC20-1190-40, 4VAC20-1190-50; adding 4VAC20-1190-55).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 1, 2025.

Agency Contact: Zachary Widgeon, Director of Communications, Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651, telephone (757) 414-0713, FAX (757) 247-2002, or email zachary.widgeon@mrc.virginia.gov.

Summary:

The amendments establish a licensed gear type for an extended drift gill net, develop regulations for its use, and increase eligibility and participation in the fishery, creating a new regulated commercial fishery during the summer months when commercial fishing options are limited.

4VAC20-1190-10. Purpose.

The purpose of this chapter is to establish a control date, gear specifications, limited entry, and transfer and licensing requirements for conservation and management of the gill net fishery through limited entry.

4VAC20-1190-15. Definitions.

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

"Extended drift gill net" means a drift gill net not to exceed 6,000 feet in total length, where one end is attached to a vessel.

"Gill net" means all gill nets up to 600 feet, or all gill nets over 600 feet and up to 1,200 feet, except any stake gill net of 1,200 feet in length or under with a fixed location or any extended drift gill net.

4VAC20-1190-30. Limited entry and permits.

A. Either a Class A resident gill net permit Resident Gill Net Permit, a Class A nonresident gill net permit Nonresident Gill Net Permit, or a Class B gill net permit Gill Net Permit shall be required for a harvester before purchasing a gill net license.

B. A commercial fisherman is shall be considered qualified for the Class A resident gill net permit Resident Gill Net Permit if he the commercial fisherman is a resident of the Commonwealth of Virginia, possesses a valid Virginia Commercial Fisherman Registration License, and satisfies one of the following conditions:

1. Possessed a valid Virginia gill net license prior to December 31, 2005;

2. Possessed a valid Virginia gill net license and documented on Virginia mandatory reporting forms harvest from legally licensed gill nets for at least 100 days in any one year from 2006 through 2008; or

3. Possessed a valid Virginia gill net license and documented on Virginia mandatory reporting forms harvest from legally licensed gill nets for at least 60 days in any two years from 2006 through 2008.

C. A commercial fisherman is shall be considered qualified for the Class A nonresident gill net permit Nonresident Gill Net Permit if he the commercial fisherman is not a resident of the Commonwealth of Virginia, possesses a valid Virginia Commercial Fisherman Registration License, and satisfies one of the following conditions:

1. Possessed a valid Virginia gill net license prior to December 31, 2005;

2. Possessed a valid Virginia gill net license and documented on Virginia mandatory reporting forms harvest from legally licensed gill nets for at least 100 days in any one year from 2006 through 2008; or

3. Possessed a valid Virginia gill net license and documented on Virginia mandatory reporting forms harvest from legally licensed gill nets for at least 60 days in any two years from 2006 through 2008.

D. A harvester is shall be considered qualified for the Class B gill net permit Gill Net Permit if he the harvester does not satisfy the requirements described in subsection B or C of this section.

4VAC20-1190-40. Permit limitations.

A. Class A resident gill net Resident Gill Net permittees or Class A nonresident gill net Nonresident Gill Net permittees shall be authorized to purchase any number of gill net licenses, provided the maximum footage associated with all purchased gill net licenses does not exceed 12,000 feet.

B. Class B gill net permittees shall be authorized to purchase any number of gill net licenses, provided the maximum footage associated with all purchased gill net licenses does not exceed 6,000 feet.

C. A person who does not qualify for either a Class A resident gill net permit Resident Gill Net Permit, a Class A nonresident gill net permit Nonresident Gill Net Permit, or a Class B gill net permit Gill Net Permit shall not be authorized to purchase any gill net license.

D. A legal gill net permit shall be in the possession of any gill net permittee or his the permittee's agent who is placing, setting, or fishing that permittee's gill net.

E. It shall be unlawful for more than one gill net limited entry permittee aboard any vessel at any time to set, place, or fish any gill nets, except those gill nets legally licensed to only one gill net permittee.

4VAC20-1190-50. Permit transfers.

A. Class A resident gill net Resident Gill Net permittees may only transfer that permit to another registered commercial fisherman who is a resident of the Commonwealth of Virginia. The transferor and the transferee shall have documented all prior fishing activity on Virginia mandatory reporting forms and shall not be under any sanction by the Marine Resources Commission for noncompliance with the regulation. Transfers must be approved by the commissioner, or his the commissioner's designee, and are permanent. The permanent transfer authorizes the transferee to possess a Class A resident permit Resident Gill Net Permit, and the transferor shall lose his eligibility for that Class A resident gill net permit Resident Gill Net Permit.

B. Class A nonresident gill net Nonresident Gill Net permittees may only transfer that permit to another commercial fisherman who is not a resident of the Commonwealth of Virginia. The transferor and the transferee shall have documented all prior fishing activity on Virginia mandatory reporting forms and shall not be under any sanction by the Marine Resources Commission for noncompliance with the regulation. Transfers must be approved by the commissioner, or his the commissioner's designee, and are permanent. The permanent transfer authorizes the transferee to possess a Class A nonresident permit Nonresident Gill Net Permit, and the transferor shall lose his eligibility for that Class A nonresident gill net permit Nonresident Gill Net Permit.

4VAC20-1190-55. Extended drift gill nets.

A. It shall be unlawful to operate an extended drift gill net anywhere except within the mainstem of the Chesapeake Bay as well as the coastal waters of Virginia east of the COLREGS line up to the three nautical mile limit.

B. It shall be unlawful to operate an extended drift gill net except from May 1 through October 15 of each calendar year.

C. It shall be unlawful to operate an extended drift gill net except from 30 minutes prior to sunset through 9 a.m.

D. The license holder shall stay within 100 yards of the extended drift gill net gear when in the water.

E. Extended drift gill net gear shall be marked in accordance with 4VAC20-430 and shall also be marked with:

1. Two all-around lights in a vertical line with the upper being red and the lower being white. The base of the bottom white light shall be 7.5 feet above the water line.

2. A light and radar reflector attached to the end-marker flag furthest from the vessel.

F. Registered commercial fishermen and licensed seafood buyers shall allow those authorized by the commission to observe or to sample harvest and seafood products associated with extended drift gill net gear to obtain biological information for scientific and management purposes.

TITLE 9. ENVIRONMENT

DEPARTMENT OF ENVIRONMENTAL QUALITY

Final Regulation

Title of Regulation: 9VAC15-60. Small Renewable Energy Projects (Solar) Permit by Rule (amending 9VAC15-60-10 through 9VAC15-60-140).

Statutory Authority: § 10.1-1197.6 of the Code of Virginia.

Effective Date: June 18, 2025.

Agency Contact: Susan Tripp, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 664-3470, or email susan.tripp@deq.virginia.gov.

Summary:

Pursuant to Chapter 688 of the 2022 Acts of Assembly, the amendments (i) add and clarify definitions; (ii) add prime agricultural soils and forest lands to the existing requirement for the analysis of the beneficial and adverse impacts to natural resources; (iii) add mitigation plan requirements for prime agricultural soils and forest lands; (iv) clarify the timeframe for submitting a notice of intent; (v) clarify that avoidance mitigation as it relates to cemeteries is required to ensure consistency with state law; (vi) clarify requirements for site plans and public participation requirements; (vii) specify operation, recordkeeping, and reporting requirements; (viii) clarify which sizes of projects are exempt from permitting and the procedures for modification or transfer of ownership of a permitted facility; (ix) incorporate other provisions previously identified in the 2019 solar permit by rule amendments, excluding fees; and (x) improve overall regulatory structure, procedures, and use.

Changes since proposed include (i) removing requirements to mitigate C1 and C2 forest cores; (ii) replacing the definition of mitigation districts; (iii) revising the in-lieu fee (ILF) calculation; (iv) aligning conservation easement requirements with Department of Forestry guidelines in response to public comment; (v) requiring that the Office of Working Land Preservation be designated as the trustee for the ILF trust fund in response to public comment; and (vi) removing the mitigation credit for preservation of riparian forest buffers.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

9VAC15-60-10. Definitions.

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

"Active cropping including hayland" means annual management of disturbed areas for row crops or cut hay, including at least one row crop harvest or two hay cuttings per year for the lifetime of project. Row crops shall use approved conservation tillage practices.

"Administratively complete application" means an application the department has determined meets the requirements of this chapter.

"Applicant" means the developer, owner, or operator who that submits an application to the department for a permit by rule pursuant to this chapter.

"Archive search" means a search of DHR's cultural resource inventory for the presence of previously recorded archaeological sites and for architectural structures and districts.

"Brownfield" means real property [ ;, ] the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant as defined in § 10.1-1230 of the Code of Virginia.

[ "C1 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Outstanding category (C1) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment. ]

[ "C2 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Very High category (C2) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment. ]

"Coastal Avian Protection Zones" or "CAPZ" means the areas designated on the map of "Coastal Avian Protection Zones" generated on the department's Coastal GEMS geospatial data system (9VAC15-60-120 C 1).

"Commencement of commercial operation" means the date when the project has commenced to generate electricity for sale, excluding the sale of test generation.

"Concentrating photovoltaics" or "CPV" means PV systems with equipment to focus or direct sunlight on the PV cells. For purposes of this chapter, CPV is included in the definition of PV.

"Conservation easement" means a perpetual easement complying with the requirements of 9VAC15-60-60 [ G F ].

"Conserved land" means land subject to a conservation easement in accordance with 9VAC15-60-60 [ G F ].

"Contiguous forest land" means forest land that is adjoining, including areas separated by (i) any waterbody [ less than 200 feet in width ]; (ii) roads, driveways, or impervious surfaces, including compacted gravel, 40 feet or less in width; and (iii) clearings for utilities 200 feet or less in width.

"Department" or "DEQ" means the Department of Environmental Quality, its director, or the director's designee.

"DCR" means the Department of Conservation and Recreation.

"DGIF" means the Department of Game and Inland Fisheries.

"DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard" means the assessment tool used to establish target conditions for pollinator-friendly habitat.

"DHR" means the Department of Historic Resources.

"Disturb" means to act in such a way as to create land disturbance.

"Disturbance zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small solar energy project [ and ] within [ 100 feet ] of [ from the boundary of the directly impacted area ]. For purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the disturbance zone shall include the panel zones, open areas, and screening zones of the project.

"Document certification" means the statement as prescribed in 9VAC15-60-30 B 2 a, signed by the responsible person and submitted with the application documents or any supplemental information submitted to the department for a PBR.

"DOF" means the Department of Forestry.

"DWR" means the Department of Wildlife Resources.

"Establishment and maintenance of pollinator smart habitat/vegetation" means establishment and maintenance of pollinator smart vegetation in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. This shall meet short-term and long-term erosion and sediment control (ESC) standards and may require change of cover type or species mix following initial ESC stabilization. Pollinator habitat shall cover at least 30% of the disturbed area claimed for this credit.

"Forest land" has the same meaning as provided in § 10.1-1178 of the Code of Virginia, except that any parcel shall be considered forest land if it was forested at least two years prior to the department's receipt of a permit application. For the purposes of defining forest land in this context, forest trees shall not be limited to commercial timber trees.

[ "Forest lands enrolled in a program for forestry preservation" means any forest land enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia, including forest land that has been withdrawn from a forestal district with approval of the local governing body pursuant to § 15.2-4314 of the Code of Virginia as part of the local governing body's approval of the solar project. ]

"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.

"Integrated PV" means photovoltaics incorporated into building materials, such as shingles.

"Interconnection point" means [ the each ] point or points where the solar energy project connects to a project substation for transmission to the electrical grid.

"Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land.

"Managed grazing" means active grazing by sheep or other livestock for the project lifetime, using appropriate management (e.g., rotational grazing), and maintaining greater than 75% living vegetative cover.

"Megawatt" or "MW" means a measurement of power; 1,000 kilowatts equals one MW.

"Mitigation district" means [ each river watershed as defined in § 33.2-247 of the Code of Virginia, including the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and New River Basin with the following exceptions: the Atlantic Ocean is combined with the Chesapeake Bay and its Small Coastal Basins east of the Chesapeake Bay and labeled "Eastern Shore," the Chesapeake Bay and its Small Coastal Basins west of the Chesapeake Bay is combined with adjacent major river basins, and the James River Basin has been divided into upper, middle, and lower basins the following groups of planning districts as defined in § 15.2-4202 of the Code of Virginia: Chesapeake, including the George Washington, Middle Peninsula, and Northern Neck districts; Eastern Shore, including the Accomack-Northampton district; Northern Piedmont, including the Northern Virginia, Rappahannock-Rapidan, and Thomas Jefferson districts; Richmond-Hampton Roads, including the Commonwealth Regional, Hampton Roads, and Plan RVA districts; Shenandoah Valley, including Central Shenandoah and Northern Shenandoah Valley districts; Southside, including the Commonwealth, Central Virginia, Southside, and West Piedmont districts; and Southwest, including the Cumberland Plateau, LENOWISCO, Mount Rogers, New River Valley, and Roanoke Valley-Alleghany districts ].

"Mitigation ratio" means the ratio of the area conserved to the area disturbed. For example, a ratio of one to two would require one-half acre conserved for each acre of disturbance.

[ "Mitigation zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small solar energy project. ]

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species,; rare or state significant state-significant natural communities or geologic sites,; and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth as defined in § 10.1-209 of the Code of Virginia.

"Notice of intent" or "NOI" means notification, in a manner acceptable to the department, by an applicant stating intent to submit documentation for a permit under this chapter.

"Open area" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, any area beyond the panel zone within the site boundary of a project.

"Operator" means the person responsible for the overall operation and management of a solar energy project.

"Other solar technologies" means materials or devices or methodologies of producing electricity from sunlight other than PV or CPV.

"Owner" means the person who that owns all or a portion of has all of a controlling interest in a solar energy project.

"Panel zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the area underneath the solar arrays, including inter-row spacing within a disturbance zone.

"Parking lot" means an improved area, usually divided into individual spaces and covered with pavement or gravel, intended for the parking of motor vehicles.

"Permit by rule," "PBR," or "permit" means provisions of the regulations this chapter stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.

"Phase I archaeological survey" means systematic identification-level archaeological investigations as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) within the project area and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Phase I architectural survey" means comprehensive, reconnaissance-level documentation as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) of all standing buildings or structures 50 years of age or older within the project area and surrounding areas with a view to the project and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Photovoltaic" or "PV" means materials and devices that absorb sunlight and convert it directly into electricity by semiconductors.

"Photovoltaic cell" or "PV cell" means a solid state device that converts sunlight directly into electricity. PV cells may be connected together to form PV modules, which in turn may be combined and connected to form PV arrays (often called PV panels).

"Photovoltaic system" or "PV system" means PV cells, which may be connected into one or more PV modules or arrays, including any appurtenant wiring, electric connections, mounting hardware, power-conditioning equipment (inverter), and storage batteries.

"Preconstruction" means any time prior to commencing land-clearing operations during related approval processes occurring prior to beginning land-disturbing activities necessary for the installation of energy-generating structures at the small solar energy project.

"Previously disturbed or repurposed areas" means the land area within the property boundary of industrial or commercial properties, including brownfields or previously mined areas. It does not include active or fallow agricultural land or silvicultural land use.

"Prime agricultural soils" means soils recognized as prime farmland by the U.S. Department of Agriculture. Prime agricultural soils are further defined in 7 CFR 657.5(a)(2) (January 1, 2024).

"Project" refers to all aspects of small solar energy facility development, including planning, permitting, construction, commissioning, and decommissioning.

"Rated capacity" means the maximum capacity of a solar energy project based on Photovoltaic USA Test Conditions (PVUSA Test Conditions) rating, measured in MW.

"Responsible person" means (i) for a corporation or limited liability company, a president, secretary, treasurer, or vice-president in charge of a principal business function or any other person that performs similar policy or decision-making functions for the corporation or limited liability company; (ii) for a partnership or sole proprietorship, a general partner or the proprietor, respectively; and (iii) for a local government entity or state, federal, or other public agency, either a principal executive officer or ranking elected official.

[ "Riparian forest buffer" means a woodland riparian buffer preserved or installed and maintained around a waterbody with perennial flow. The riparian buffer shall be a minimum width of 35 feet as measured from the top of the channel bank to the edge of the mitigation zone, cropland, hayland, or pasture and in accordance with DCR Specifications for NO. FR-3 or DCR Specifications for NO. WQ-1 contained in the Virginia Agricultural BMP Cost-Share Manual. ]

"Screening zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, a vegetated visual barrier.

"Site" means the area [ containing of ] a solar energy project that is under common ownership or operating control. Electrical infrastructure and other appurtenant structures up to the interconnection point shall be considered to be within the site.

"Small renewable energy project" means (i) an electrical generation facility with a rated capacity not exceeding 150 megawatts MW that generates electricity only from sunlight or wind; (ii) an electrical generation facility with a rated capacity not exceeding 100 megawatts MW that generates electricity only from falling water, wave motion, tides, or geothermal power; or (iii) an electrical generation facility with a rated capacity not exceeding 20 megawatts MW that generates electricity only from biomass, energy from waste, or municipal solid waste; (iv) an energy storage facility that uses electrochemical cells to convert chemical energy with a rated capacity not exceeding 150 MW; or (v) a hybrid project composed of an electrical generation facility that meets the parameters established in clause (i), (ii), or (iii) of this definition and an energy storage facility that meets the parameters established in clause (iv) of this definition.

"Small solar energy project," "solar energy project," or "project" means a small renewable energy project that (i) generates electricity from sunlight, consisting of one or more PV systems and other appurtenant structures and facilities within the boundaries of the site; and (ii) is designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts MW. Two or more solar energy projects otherwise spatially separated but under common ownership or operational control, which are connected to the electrical grid under a single interconnection agreement, shall be considered a single solar energy project. Nothing in this definition shall imply that a permit by rule is required for the construction of test structures to determine the appropriateness of a site for the development of a solar energy project.

"Threatened and endangered," "T&E," "state threatened or endangered species," or "state-listed species" means (i) any wildlife species designated as a Virginia endangered or threatened species by DGIF DWR pursuant to the §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130 or (ii) any species designated as a Virginia endangered or threatened species by VDACS pursuant to Chapter [ 11 10 ] (§ 3.2-1000 et seq.) of Title 3.2 of the Code of Virginia and 2VAC5-320-10.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

"Virginia Natural Landscape Assessment Ecological Cores" means large patches of natural land with at least 100 contiguous acres of interior, which begins 100 meters inward from the nearest edge between natural and unnatural land covers identified by the Virginia Natural Landscape Assessment performed by the Virginia Natural Heritage Program within DCR.

"VLR" means the Virginia Landmarks Register (9VAC15-60-120 B 1).

"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in VLR.

"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.

"Wildlife" means wild animals; except, however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.

9VAC15-60-20. Authority and applicability Applicability.

A. This regulation is issued under authority of Article 5 (§ 10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia. The regulation contains requirements for solar-powered electric generation projects consisting of PV systems and associated facilities with a single interconnection to the electrical grid that are designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts.

B. A. The department has determined that a permit by rule is required for small solar energy projects with a rated capacity greater than five megawatts MW and a disturbance zone greater than 10 acres, provided that the projects do not otherwise meet the criteria for Part III (9VAC15-60-130) of this chapter, and this regulation contains the. The permit by rule provisions for these projects are contained in Part II (9VAC15-60-30 et seq.) of this chapter.

C. B. The department has determined that different provisions should apply to projects that meet the criteria as set forth in Part III (9VAC15-60-130) of this chapter, and this regulation contains the. The requirements, if any, for these projects are contained in Part III (9VAC15-60-130 A and B) of this chapter. Projects that meet the criteria for Part III of this chapter are deemed to be covered by the permit by rule.

D. C. The department has determined that small renewable energy projects utilizing other solar technologies shall fulfill all of the requirements in 9VAC15-40 as prescribed for small wind energy projects, unless (i) the owner or operator of the proposed project presents to the department information indicating that the other solar technology presents no greater likelihood of significant adverse impacts to natural resources than does PV technology and (ii) the department determines that it is appropriate for the proposed project utilizing the other solar technology to meet the requirements of this chapter or of some modification to either 9VAC15-40 or this chapter, as prescribed by the department for that particular project.

[ D. No small renewable energy project for which an initial interconnection request application was received and accepted by the regional transmission organization or electric utility by December 31, 2024, shall be subject to the provisions of this chapter relating to analysis of and mitigation for disturbance of prime agricultural soils or forest land. ]

9VAC15-60-30. Application for permit by rule for small solar energy projects with rated capacity greater than five megawatts MW and disturbance zone greater than 10 acres.

A. The owner or operator of application for a small solar energy project with a rated capacity greater than five megawatts MW and a disturbance zone greater than 10 acres, provided that the project does not otherwise meet the criteria for Part III (9VAC15-60-130 A or B) of this chapter, shall submit to the department a complete application in which he satisfactorily accomplishes contain all of the following:

1. In accordance with § 10.1-1197.6 B 1 of the Code of Virginia, and as early in the project development process as practicable, furnishes to the department a notice of intent, to be published in the Virginia Register, that he intends to submit the necessary documentation for a permit by rule for a small renewable energy project; An NOI to submit the necessary documentation for a PBR, to be published in the Virginia Register of Regulations.

a. The applicant shall submit the NOI in a format approved by the department.

(1) The initial NOI shall be submitted to the department as early in the project development process as practicable, but [ for all NOIs submitted after June 18, 2025, ] at least 90 days prior to the start of the public comment period required under 9VAC15-60-90.

(2) [ The For all NOIs submitted after June 18, 2025, the ] NOI shall be submitted to the chief administrative officer and chief elected official of the locality in which the project is proposed to be located at the same time the NOI is submitted to the department.

b. Any NOI submitted after the [ effective date of this regulation June 18, 2025, ] shall expire if no application has been submitted within 48 months from the NOI submittal date, unless the department receives a written request for extension prior to the NOI expiration date. An NOI extension may be granted for an additional 36 months, at which time the NOI shall expire.

c. An applicant seeking changes for a project that results in an increase of MW or acreage shall submit a new NOI using a format approved by the department.

d. The applicant shall notify the department of any change of operator, ownership, or controlling interest for a project within 30 days of the transfer. No additional fee shall be assessed.

(1) The original applicant shall notify the department of the change by withdrawing the initial NOI in a format acceptable to the department.

(2) The new applicant shall submit an NOI in a format acceptable to the department.

(3) The department will not consider the change of operator, ownership, or controlling interest for a project effective until the department receives notification from both the original applicant and the new applicant.

2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a A certification by the governing body of the any locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;. [ The For any certification after June 18, 2025, the ] certification shall also include a statement of the area of the project enrolled in a forestry preservation program pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia (i.e., classified by the local assessor as forest for use-value assessment).

3. In accordance with § 10.1-1197.6 B 3 of the Code of Virginia, furnishes to the department copies Copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the small renewable energy project;.

4. In accordance with § 10.1-1197.6 B 4 of the Code of Virginia, furnishes to the department a A copy of the final interconnection agreement between the small renewable energy project and the regional transmission organization or transmission owner indicating that the connection of the small renewable energy project will not cause a reliability problem for the system. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section. When a final interconnection agreement is complete, it shall be provided to the department. The department shall forward a copy of the agreement or study to the State Corporation Commission;

a. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section.

b. The final agreement shall be provided to the department within 30 days of the date of execution.

c. The department shall forward a copy of the agreement or study to the State Corporation Commission.

5. In accordance with § 10.1-1197.6 B 5 of the Code of Virginia, furnishes to the department a A certification signed and stamped by a professional engineer licensed in Virginia that the maximum generation capacity of the small solar energy project, as designed, does not exceed 150 megawatts; MW.

6. In accordance with § 10.1-1197.6 B 6 of the Code of Virginia, furnishes to the department an An analysis of potential environmental impacts of the small renewable energy project's operations on attainment of national ambient air quality standards; (42 USC § 7409 as implemented by 9VAC5-30).

7. In accordance with § 10.1-1197.6 B 7 of the Code of Virginia, furnishes to the department, where relevant, an An analysis of the beneficial and adverse impacts of the proposed project on natural and historic resources. The owner or operator shall perform the analyses prescribed in pursuant to 9VAC15-60-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months;.

8. In accordance with § 10.1-1197.6 B 8 of the Code of Virginia, furnishes to the department a A mitigation plan pursuant to 9VAC15-60-60 that details reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions; provided, however, that the provisions of this subdivision shall only be required if the department determines, pursuant to 9VAC15-60-50, that the information collected pursuant to § 10.1-1197.6 B 7 of the Code of Virginia and 9VAC15-60-40 indicates that significant adverse impacts to wildlife or historic resources are likely. The mitigation plan shall be an addendum to the operating plan of the solar energy project, and the owner or operator shall implement the mitigation plan as deemed complete and adequate by the department. The mitigation plan shall be an enforceable part of the permit by rule; if a determination of likely significant adverse impacts has been made according to 9VAC15-60-50. The plan shall detail actions necessary to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions.

9. In accordance with § 10.1-1197.6 B 9 of the Code of Virginia, furnishes to the department a A certification signed and stamped by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-60-80;.

10. In accordance with § 10.1-1197.6 B 10 of the Code of Virginia, furnishes to the department an An operating plan that includes a description of how the project will be operated [ in compliance with its mitigation plan ], [ if such a mitigation plan is required pursuant to 9VAC15-60-50 ]; [ and any mitigation plan required due to findings under 9VAC15-60-50 ].

11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a A detailed site plan and context map meeting the requirements of 9VAC15-60-70;.

12. In accordance with § 10.1-1197.6 B 12 of the Code of Virginia, furnishes to the department a A certification signed by the applicant that the small solar energy project department has been notified that the applicant intends to apply for or has applied for or obtained all necessary environmental permits; for the project.

13. In accordance with § 10.1-1197.6 H and I of the Code of Virginia, furnishes to the department a A certification signed by the applicant that the small solar energy project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia or provides certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause, or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia;.

14. Prior to authorization of the project and in accordance with § 10.1-1197.6 B 13 and B 14 of the Code of Virginia, conducts a A summary report of the 30-day public review and comment period and holds a public meeting conducted pursuant to 9VAC15-60-90. The public meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project. Following the public meeting and public comment period, the applicant shall prepare a report summarizing, including a summary of the issues raised by the public and include, any written comments received, and the applicant's response to those comments. The report shall be provided to the department as part of this application; and

15. In accordance with 9VAC15-60-110, furnishes to the department the The appropriate fee fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

B. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department shall determine, after consultation with other agencies in the Secretariat of Natural and Historic Resources, whether the application is complete and whether it adequately meets the requirements of this chapter pursuant to § 10.1-1197.7 A of the Code of Virginia. An applicant seeking a PBR under this part shall submit the following:

1. All items identified in subsection A of this section submitted in a format acceptable to the department and all applicable fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

2. A cover letter submitted with the application that contains the following:

a. Document certification signed by a responsible person that contains the following statement:

"I certify under penalty of law that this application document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there may be significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

b. The name and contact information of the responsible person signing the document certification required under subdivision 2 a of this subsection; and

c. The name and contact information of the responsible person to receive the permit authorization.

C. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department will, after consultation with DCR, DHR, DOF, DWR, and VDACS, form a determination that an application is an administratively complete application or incomplete.

1. If the department determines that the application meets the requirements of this chapter, then the department shall notify the applicant in writing that he is authorized to construct and operate a small solar energy project pursuant to this chapter will form a determination that an application is an administratively complete application and notify the responsible person in writing that the person is authorized to construct and operate the facility pursuant to this chapter.

a. [ The Any ] authorization to construct and operate [ issued after June 18, 2025, ] shall become invalid if (i) a program of continuous construction or modification is not begun within 60 months from the date the PBR or modification authorization is issued or (ii) a program of construction or modification is discontinued for a period of 24 months or more, except for a department-approved period between phases of a phased construction project. Routine maintenance is not considered a modification of a project.

b. The department may grant an extension on a case-by-case basis.

c. The applicant for any project for which the PBR or modification authorization has been deemed invalid shall submit a new NOI, application documents, and appropriate fees to reactivate authorization.

2. If the department determines that the application does not meet the requirements of this chapter, then the department shall notify the applicant in writing and specify the deficiencies will form a determination that an application is incomplete, notify the applicant in writing, and specify the deficiencies.

3. If the applicant chooses to correct deficiencies in a previously submitted an incomplete application, the department shall follow the procedures of this subsection and notify the applicant whether the revised application meets the requirements of this chapter within 60 days of receiving the revised application (i) the applicant shall notify the department within 30 days of an incomplete notification, (ii) the department will follow the procedures of this subsection, and (iii) the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter.

4. If the application was not approved because a proposed mitigation plan was not provided by the applicant as part of the initial application and the department determines there are significant adverse impacts, the applicant shall provide a 45-day public comment period detailing reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts and to measure the efficacy of those actions. The public comment shall follow the procedures set forth in 9VAC15-60-90, except that the public comment period shall be 45 days.

5. The applicant may correct deficiencies in an application by submitting supplemental information, in which case the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter. If the applicant fails to submit necessary supplemental information within 90 days of the date the department provided notice of the deficiencies or within such additional time as the applicant requests and the department approves, the application shall be deemed withdrawn.

6. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC15-60-40. Analysis of the beneficial and adverse impacts on natural and historic resources.

A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following:

1. Desktop surveys and maps. The applicant shall obtain a wildlife report and map generated from DGIF's DWR's Virginia Fish and Wildlife Information Service web-based application (9VAC15-60-120 C 3) or from a data and mapping system including the most recent data available from DGIF's DWR's subscriber-based Wildlife Environmental Review Map Service of the following: (i) known wildlife species and habitat features on the site or within two miles of the boundary of the site and, (ii) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone, and (iii) desktop information for bald eagle nesting locations from the Center for Conservation Biology at the College of William and Mary.

2. Desktop map for avian resources in Coastal Avian Protection Zones (CAPZ). The applicant shall consult the "Coastal Avian Protection Zones" map generated on the department's Coastal GEMS geospatial data system (9VAC15-60-120 C 1) and determine whether the proposed solar energy project site will be located in part or in whole within one or more CAPZ.

B. Analyses of historic resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall also conduct perform a preconstruction historic resources analysis. The analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-60-120 B 2) in the appropriate discipline. The analysis shall include each of the following:

1. Compilation of known historic resources. The applicant shall gather information Information on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary and present this information identified on the context map referenced in 9VAC15-60-70 B, or as an overlay to this context map, as well as in tabular format.

2. Architectural survey. The applicant shall conduct a field A Phase I architectural survey of all architectural resources, including cultural landscapes, 50 years of age or older within the disturbance zone and within one-half mile of the disturbance zone boundary and evaluate an evaluation of the potential eligibility of any identified resource for listing in the VLR. The architectural survey area may be refined by the applicant based on an analysis of the project's existing viewshed to exclude areas that have no direct visual association with the project. The applicant shall provide detailed justification for any changes to the survey area.

3. Archaeological survey. The applicant shall conduct an A Phase I archaeological field survey of the disturbance zone and evaluate an evaluation of the potential eligibility of any identified archaeological site for listing in the VLR. As an alternative to performing this archaeological survey, the applicant may make a demonstration to the department that the project will utilize nonpenetrating footings technology and that any necessary grading of the site prior to construction does not have the potential to adversely impact any archaeological resource. To streamline archaeological investigations, the survey may execute research design that utilizes probability-based sampling guided by predictive [ modelling modeling ]. Such a research design shall be approved by DEQ and DHR for use in the project prior to conducting the fieldwork.

C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall also conduct a preconstruction desktop survey of natural heritage resources within the disturbance zone. D. Summary report. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subsections A, B, and C of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife and historic resources identified by these studies and analyses. and Virginia Natural Landscape Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal. The analyses shall include [ the following: 1. A a ] report of natural heritage resources using either the DCR online information service order form or the DCR subscriber-based Natural Heritage Data Explorer web application and include the most recent data available of the following:

[ a. 1. ] Documented occurrences of natural heritage resources within the disturbance zone;

[ b. 2. ] Intersection of the site with predicted suitable habitat (PSH) models developed by DCR for rare, threatened, and endangered species;

[ c. 3. ] Intersection of the site with the Virginia Natural Landscape Assessment Ecological Cores; and

[ d. 4. ] Onsite surveys for natural heritage resources recommended by DCR based on the analysis required under this subsection [ ; and 2. A completed DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard ].

D. The applicant shall conduct preconstruction mapping of prime agricultural soils on the site. The mapping of prime agricultural soils shall include the following:

1. The applicant shall use the U.S Department of Agriculture Natural Resources Conservation Service Web Soil Survey (Web Soil Survey) to map prime agricultural soils on the site. If the farmland classification of the soil map unit is "All areas are prime farmland," it shall be considered prime agricultural soils.

2. The applicant may propose to the department an alternative map of the prime agricultural soils on the site based on a report prepared by a professional soil scientist licensed by the Commonwealth of Virginia. This report shall include records of soil samples and other documentation proving the boundaries of prime agricultural soils on the site that are inconsistent with the Web Soil Survey.

3. The applicant shall tabulate the total area in acres of prime agricultural soils to be disturbed by the project.

E. The applicant shall conduct preconstruction mapping of forest land on the site. The mapping of forest land shall include the following:

1. All forest land within the boundaries of the site;

2. Areas of the site enrolled in a forestry preservation program pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia (i.e., classified by the local assessor as forest for use-value assessment); and

3. Tabulation of the total area in acres of (i) contiguous forest land to be disturbed by the project and (ii) forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia to be disturbed by the project.

F. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subsections A, B, C, D, and E of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife, historic resources, natural heritage resources, prime agricultural soils, and forest lands identified by these studies and analyses.

9VAC15-60-50. Determination of likely significant adverse impacts.

A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-60-40 A document that any of the following conditions exists:

1. State-listed T&E wildlife are found to occur within the disturbance zone or the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach.

2. The disturbance zone is located in part or in whole within zones zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map.

B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-60-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

C. The department will find that significant adverse impacts to natural heritage resources [ and ecological cores ] are likely whenever the analysis prescribed by 9VAC15-60-40 C indicates that impacts to natural heritage resources [ or Virginia Natural Landscape Assessment Ecological Cores with a Conservation Rank of C1 or C2 ] will occur within the disturbance zone as verified by a site visit. No mitigation will be required solely as a result of predicted suitable habitat (PSH) models.

D. A project shall be deemed to have a significant adverse impact if it would disturb more than 10 acres of prime agricultural soils.

E. A project shall be deemed to have a significant adverse impact if it would disturb more than 50 acres of contiguous forest lands or if it would disturb forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia.

9VAC15-60-60. Mitigation plan.

A. If the department determines that significant adverse impacts to wildlife or historic resources or both are likely, then the applicant shall prepare a mitigation plan. The applicant shall prepare a mitigation plan for any resource for which a significant adverse impact determination has been made as a result of the analyses pursuant to 9VAC15-60-40. The plan shall detail actions by the applicant to avoid, minimize, or otherwise mitigate such impacts and shall be an enforceable part of the PBR. Mitigation included in a siting agreement and approved by a local governing body pursuant to subsection B of § 15.2-2316.7 of the Code of Virginia or zoning use conditions approved by the locality pursuant to § 15.2-2288.8 of the Code of Virginia may satisfy the mitigation obligations required for the PBR if (i) the local requirements conform to the regulations established by DEQ and (ii) the local requirement is incorporated as a specific condition of the PBR approval.

B. Mitigation measures for significant adverse impacts to wildlife shall include the following:

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-60-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided, and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 through October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 through August 31) and one mile beyond the northern and southern reaches of the disturbance zone (hereinafter "sea turtle nest survey zone") between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and nonnesting emergences.

b. If construction is scheduled during the nesting season, then including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings. Proposed project lighting shall be submitted to DWR and the U.S. Fish and Wildlife Service for approval prior to construction.

3. For projects located in part or in whole within zones zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map, contribute $1,000.00 $1,000 per megawatt MW of rated capacity, or partial megawatt MW thereof, to a fund designated by the department in support of scientific research investigating or minimizing the impacts of projects in CAPZ on avian resources. Payment of mitigation fee is due at the time of application submittal.

C. Mitigation measures for significant adverse impacts to historic resources shall include the following:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the solar energy project or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will shall be mitigated through archaeological data recovery approved by DHR and DEQ.

D. [ Mitigation measures for significant adverse impacts to natural heritage resources described in Virginia Natural Landscape Assessment Ecological Cores shall include all reasonable measures to avoid and minimize significant adverse impacts. The applicant shall demonstrate in its mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. Additional proposed actions shall include practices to minimize or offset significant adverse impact through activities to protect, restore, or enhance the affected or similar resource. If impacts to C1 or C2 forest cores cannot be avoided, mitigation shall be required in the form of a conservation easement. For disturbance of C1 forest cores, the applicant shall provide a conservation easement for land containing C1 forest cores within the same mitigation district at a mitigation ratio of seven to one. For disturbance of C2 forest cores, the applicant shall provide a conservation easement for land containing C2 forest cores within the same mitigation district at a mitigation ratio of two to one.

E. ] Mitigation measures for significant adverse impacts to prime agricultural soils shall include the following:

1. For prime agricultural soils disturbed by the project, the applicant shall provide mitigation by a conservation easement for [ land containing ] prime agricultural soils within the mitigation district at a mitigation ratio of one to one.

2. [ The mitigation ratio may be reduced by providing conserved land containing riparian forest buffers within the easement. For riparian forest buffers, the mitigation ratio shall be reduced to one to two. Riparian forest buffers shall be a minimum of 35 feet. The portion of a riparian forest buffer exceeding 300 feet in width shall not count for purposes of the enhanced mitigation ratio.

3. ] Actions to preserve prime agricultural soils on the project site shall be counted as partial mitigation per Table 1. [ The applicant may apply different options to different areas of the site, but options may not be combined on the same portion of the site. ]

Table 1 Partial Mitigation Options to Preserve Prime Agricultural Soils
Mitigation Option	Mitigation Actions Required	Mitigation Ratio
Option 1: No Change in Grade	Areas with no change in grade or topsoil removal, no trenching, maintenance of > 75% living vegetative cover, and decompaction to > 6" after decommissioning.	1:10
Option 2: Preservation of Topsoil	Areas with changes in grade due to cut and fill with removal and return of topsoil, decompaction of topsoil [ and subsoil to 6" ] following installation, maintenance of > 75% living vegetative cover for project lifetime, and decompaction to > 24" and surface soil amendment after decommissioning.	1:4
Option 3: Decompaction of Surface Soil on Cut/Fill Areas	Areas with changes in grade due to cut and fill without topsoil salvage and return, decompaction of surface soil following installation, maintenance of > 75% living vegetative cover for project lifetime, and surface soil decompaction and soil amendment to > 6" after decommissioning.	1:2

Preserving soil on site shall reduce but not eliminate the requirement for an easement or in-lieu fee.

[ 4. 3. ] Implementation of a plan to maintain any of the following management alternatives in combination with onsite soil mitigation pursuant to subdivision [ 3 2 ] of this subsection shall decrease the required area of off-site conservation easement by 25% [ of the remaining obligation ]: managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation, including certification and monitoring in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. [ The plan shall include adequate guarantees that the management alternatives will be maintained during the term of the permit and shall only count areas of the site subject to the management alternative. ] The plan shall be submitted with the application and approved by the department.

[ 5. 4. ] If a project is deemed to have a significant adverse impact, that is, disturb more than 10 acres of prime agricultural soils, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 11 acres of prime agricultural soils shall require mitigation for 11 acres, not one acre.

[ 6. 5. ] When significant adverse impacts affect prime agricultural soils overlain by forest land, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one. For example, disturbance of 11 acres of prime agricultural soils overlain by forest land shall require 11 acres of conserved forest land.

[ 7. 6. ] An applicant may propose innovative alternatives to the required mitigation [ , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found ]. An example could include restoration of a degraded site to restore the characteristics of prime agricultural soils. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

[ F. E. ] Mitigation measures for significant adverse impacts to forest land shall include the following:

1. For contiguous forest land or forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia disturbed by the project, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one.

2. [ The ratio of land required in the conservation easement may be reduced by providing land containing existing riparian forest buffers within the easement. For riparian forest buffers the mitigation ratio shall be reduced to one to two. Such buffers shall be a minimum of 35 feet. The portion of a riparian forest buffer exceeding 300 feet in width shall not count for purposes of the enhanced mitigation ratio.

3. ] If a project shall be deemed to have a significant adverse impact, that is, disturb more than 50 acres of contiguous forest land, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 51 acres of contiguous forest land shall require mitigation for 51 acres, not one acre.

[ 4. 3. ] An applicant may propose innovative alternatives to the required mitigation [ , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found ]. An example could include afforestation of degraded land. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

[ G. F. ] The requirements for any conservation easements required by this section shall include the following:

1. The applicant shall submit with the PBR application a plan to obtain any easements necessary to provide the required mitigation. The plan shall include:

a. Identification of the proposed conserved land, provided the area of conserved land may be increased or decreased subsequent to submission of the plan as needed to meet the mitigation ratios approved with the application;

b. The current use of the proposed conserved land;

c. The identity of the proposed grantor and holder of any easements;

d. A brief description of the agreements with the proposed grantor and holder; and

e. A title report confirming the ownership of the conserved land and the existence of any liens, encumbrances, or restrictions.

2. Closing on any required easements shall occur within one year of the date of issuance of the PBR, unless extended by the department for good cause. Any superior lien shall be subordinated to the easement at closing.

3. The holder of the easement shall be either (i) a holder in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) that is accredited by the Land Trust Accreditation Commission or its designated subsidiary entity or (ii) a public body in accordance with the Open-Space Land Act (§ 10.1-1700 et seq. of the Code of Virginia).

4. A conservation easement shall contain a third-party right of enforcement as defined in § 10.1-1009 of the Code of Virginia granted to the department.

5. A conservation easement shall encumber land in the same mitigation district as the area disturbed. [ In the event the applicant cannot locate land in the same mitigation district, the department may allow the land to be in an adjacent mitigation district. ]

6. No land shall count for purposes of mitigation that is already subject to an easement or deed restriction restricting development. However, land that is restricted by an easement acquired for the purpose of mitigating solar development as part of a banking arrangement or advance purchase and is not [ subject to another quid pro quo applied to support another benefit ], such as a tax credit, may be counted for mitigation. Land that is not counted for mitigation may still be included in a conservation easement.

7. Every conservation easement for prime agricultural soils shall allow agricultural activities on the conserved land. Every conservation easement for forest land shall allow silvicultural activities on the conserved land. [ Every conservation easement for C1 or C2 forest cores shall restrict disturbance of the conserved land. ]

8. [ Easements for forest mitigation Conservation easements ] shall be consistent with [ the Easement Term Guidelines adopted by DOF. Easements for mitigation of prime agricultural soils shall be generally consistent with the Virginia Outdoors Foundation (VOF) easement template for Working Farm/Intensive Agriculture. Easements for mitigation of C1 or C2 forest cores shall be consistent with the VOF easement template for protection of natural areas this chapter and Department of Forestry guidelines for forest and agriculture conservation ].

9. Within 30 days of closing on any easement, the applicant shall submit to the department copies of the easement and related surveys and baseline reports required by the holder.

[ H. 10. The department shall base its decision on whether the proposed conservation easement complies with the foregoing requirements of subsection F of this section on a recommendation from the Department of Forestry. The Department of Forestry shall charge the applicant a reasonable fee to review the proposed easement.

G. ] As an alternative to providing a conservation easement, an applicant may pay an in-lieu fee calculated as follows:

1. The in-lieu fee for mitigation will be determined by the department by adding the projected administrative costs, including agency staff time, [ trustee costs ], legal fees, due diligence costs, stewardship fees paid to the holder, and other associated fees, to the predicted cost of a perpetual easement necessary to protect the required acreage of land. The predicted cost of a perpetual easement [ for prime agricultural soil ] shall be equal to the [ greater of (i) $3,000 per acre adjusted annually by the percent change (2024 base year) in Virginia cropland value determined by the USDA National Agricultural Statistics Service or (ii) the difference between the most recent assessed use value per acre of forest or agricultural land, as applicable, and the full assessed value per acre of the land affected by the solar project prior to reassessment as a solar use. The applicant shall provide the department evidence of the assessed values from the local assessor. In the event the jurisdiction where the project is proposed does not participate in use-value assessment, the applicant may provide a calculation of the use value provided by difference between the average fair market value of agricultural land and the average cropland use value (without risk) for Land Class I and [ Land Class II ] in the agricultural statistics district in which the project is located. The predicted cost of a perpetual easement for forest land shall be equal to the difference between the average fair market value of forest land and the average forest use value for good site productivity in the forest inventory analysis survey unit in which the project is located. The department will publish the values for each district annually based on data from ] the Virginia State Land Evaluation Advisory Council.

2. The [ department will select a Department of Forestry shall serve as the ] trustee to administer the in-lieu fees in trust with the purpose of acquiring conservation easements consistent with the acreage and location of the mitigation requirements. [ Notwithstanding the foregoing requirements of this subdivision G 2, the trustee shall have discretion to combine fees from different applicants and make the final determination of the acreage and location of conservation easements within the mitigation district where the disturbance occurs. ]

3. The in-lieu fee shall be paid to the trustee prior to beginning construction as directed by the department at the time of issuance of the PBR. [ Payment of the in-lieu fee in full shall satisfy the mitigation obligations without waiting for acquisition of easements by the trustee. ] The trustee shall pay the administrative costs of the department for the in-lieu fee program from the in-lieu fees received.

9VAC15-60-70. Site plan and context map requirements.

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show, for project review, may include multiple pages, and shall include, the following: (i) the boundaries of the site; (ii) the location, height, and dimensions of all existing and proposed PV systems, other structures, fencing, and other infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels.

1. Boundaries of the site, disturbance zone, [ including 100-foot buffer, mitigation zone, ] areas of solar panels, open areas, and screening areas;

2. Prime agricultural soils;

3. Contiguous forest lands and lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia;

4. A tabulation of all the areas enumerated in subdivisions 1, 2, and 3 of this subsection;

5. Location, height, and dimensions of all existing and proposed PV systems, other structures, fencing, and other infrastructure;

6. Location, grades, and dimensions of all temporary and permanent onsite and access roads from the nearest county or state-maintained road;

7. Waterbodies, waterways, wetlands, and drainage channels;

8. Expected types and approximate areas of permanent stormwater management facilities;

9. Location of any cemetery subject to protection from damage pursuant to § 18.2-127 of the Code of Virginia; and

10. Location of any mitigation measures and resources subject to mitigation [ required pursuant to 9VAC15-60-60, as applicable ].

B. The applicant shall submit a context map including the area encompassed by the site and within five miles of the site boundary. The context map shall show state and federal resource lands and other protected areas, Coastal Avian Protection Zones, Chesapeake Bay Resource Protection Areas pursuant to 9VAC25-830-80, historic resources, state roads, waterways, locality boundaries, forests, open spaces, farmland, brownfield sites, and transmission and substation infrastructure.

C. In the event an approved PBR includes mitigation requirements pursuant to 9VAC15-60-60 [ D, ] E, [ or ] F [ , or G ] and the proposed [ mitigation disturbance ] zone changes from what is shown on the site plan approved with the PBR, the applicant shall submit a final development site plan including tabulation of areas required pursuant to subsection A of this section. The final development site plan shall be submitted to the department along with conservation easements or the in-lieu fees required pursuant to 9VAC15-60-60. Provided the changes were the result of optimizing technical, environmental, and cost considerations and do not materially alter the environmental effects caused by the facility or do not alter any other environmental permits that the Commonwealth requires the applicant to obtain, the final development site plan shall not be deemed a revision of the PBR.

D. The applicant shall submit as-built post-construction site plans to the department within six months after commencement of commercial operation that show the physical features, topography, and land cover of the area within the site. The plans shall contain the following:

1. The boundaries of the site, disturbance zone, [ with 100-foot buffer identified, ] open areas, and screening areas;

2. Panel placement;

3. Mitigation required pursuant to 9VAC15-60-60, as applicable; and

4. Location of any avoided cultural resources as a result of project design.

E. All site plans submitted pursuant to this section shall be accompanied by digital files containing the information in a geographic information system (GIS) file format.

9VAC15-60-80. Small solar energy project design standards [ and operational plans ].

[ A. ] The design and installation of the small solar energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation if a mitigation plan is required pursuant to 9VAC15-60-50 or 9VAC15-60-60, as applicable.

[ B. The applicant shall prepare an operation plan detailing operational parameters for the project, including (i) remote monitoring or staffing requirements, (ii) emergency procedures and contacts, (iii) vegetation to be used within the disturbance zone, and (iv) application frequency of herbicides over the life of the project. ]

9VAC15-60-90. Public participation.

A. Before the initiation of any construction at the small solar energy project, the applicant shall comply with this section. The owner or operator shall first publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation informing the public that he intends to construct and operate a project eligible for a permit by rule. No later than the date of newspaper publication of the initial notice, the owner or operator shall submit to the department a copy of the notice along with electronic copies of all documents that the applicant plans to submit in support of the application. The notice shall include: The applicant shall conduct a public comment period for public review of all application documents required by 9VAC15-60-30 and include a summary report of the public comment as part of the PBR application. The report shall include documentation of the public comment period and public meeting and include a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

B. The applicant shall publish a notice announcing a 30-day comment period. The notice shall be published once a week for two consecutive weeks in a local newspaper of general circulation. The notice shall include the following:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of PV systems, and approximate maximum height of PV systems;

2. A statement that the purpose of the public participation is to (i) acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will shall be met, (ii) identify issues of concern, (iii) facilitate communication, and (iv) establish a dialogue between the owner or operator and persons who may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection C D of this section, and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection D E of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will shall be available for inspection.

B. C. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

C. D. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

D. E. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality, or, if the project is located in more than one locality, in a place proximate to the location of the proposed project.

E. F. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.

9VAC15-60-100. Change PBR change of ownership, project modifications, termination and reporting.

A. Change of ownership. A permit by rule A PBR may be transferred to a new owner or operator if through an administrative amendment to the permit. The department will incorporate the administrative changes to the PBR after receipt of the following:

1. The current owner or operator notifies the department at least 30 days in advance of the transfer date by submittal of a notice per subdivision 2 of this subsection Notification of the change in a format acceptable to the department;

2. The notice shall include a written agreement between the existing and new the majority or plurality owner or operator containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

3. The transfer of the permit by rule to the new owner or operator shall be effective on the date specified in the agreement described in subdivision 2 of this subsection; and

4. Information required for a change of ownership shall be submitted to the department within 30 days of the transfer date.

The department will not consider the change of operator, ownership, or controlling interest for a project to be effective until the department receives notification from both the original applicant and the new applicant.

B. Project modifications. Provided project modifications are in accordance with the requirements of this permit by rule and do not increase the rated capacity of the small solar energy project, the owner or operator of a project authorized under a permit by rule may modify its design or operation or both by furnishing to the department new certificates prepared by a professional engineer, new documentation required under 9VAC15-60-30, and the appropriate fee in accordance with 9VAC15-60-110. The department shall review the received modification submittal in accordance with the provisions of subsection B of 9VAC15-60-30. A PBR name may be changed through an administrative amendment to the permit. Notification information shall be submitted in a format acceptable to the department.

C. Permit by rule termination. The department may terminate the permit by rule whenever the department finds that: 1. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter; or 2. After the department has taken enforcement actions pursuant to 9VAC15-60-140, the owner or operator persistently operates the project in significant violation of the project's mitigation plan. Prior to terminating a permit by rule pursuant to subdivision 1 or 2 of this subsection, the department shall hold an informal fact-finding proceeding pursuant to § 2.2-4019 of the Virginia Administrative Process Act in order to assess whether to continue with termination of the permit by rule or to issue any other appropriate order. If the department determines that it should continue with the termination of the permit by rule, the department shall hold a formal hearing pursuant to § 2.2-4020 of the Virginia Administrative Process Act. Notice of the formal hearing shall be delivered to the owner or operator. Any owner or operator whose permit by rule is terminated by the department shall cease operating his small solar energy project. Modification to an existing PBR, with the exception of administrative changes, shall be in accordance with the provisions of 9VAC15-60-30 B.

1. The applicant shall submit all information, documents, and studies supporting the modification. Information that is unchanged in the existing PBR shall not be submitted.

2. In addition to the information required in subdivision 1 of this subsection, a modification to an existing PBR shall also require a certification from the local government pursuant to 9VAC15-60-30 A 2, a public comment period pursuant to 9VAC15-60-90, and the appropriate fee pursuant to 9VAC15-60-110.

3. Upon receipt of all required documents, the department will review the received modification submittal in accordance with the provisions of 9VAC15-60-30 C.

4. Routine maintenance, including activity necessary to maintain the permitted capacity of the project, is not considered a modification.

D. Recordkeeping and reporting shall be provided as follows:

1. The owner or operator shall furnish notification of the following milestones:

a. The date the project began construction within 30 days after such date;

b. Commencement of commercial operation within 30 days of such date;

[ c. The date of any onsite construction or significant onsite maintenance that could impact the project's mitigation and avoidance plan within 15 days after such date;

d. c. ] A map of the project post construction clearly showing panel configuration relative to any required mitigation and incorporating any onsite changes resulting from any onsite construction or significant onsite maintenance that could impact the project mitigation and avoidance plan within 90 days of completion of such work; and

[ e. d. ] For projects that contain mitigation for view shed protection or historic resources, a post-construction demonstration of completed mitigation requirements according to the approved mitigation or landscape plan within 90 days of completion of such work.

2. A copy of the site map clearly showing any resources to be avoided or mitigated shall be maintained on site during construction.

3. Upon request, the owner shall furnish to the department copies of records required to be kept by this permit by rule.

4. Within 30 days of notification, the owner shall provide any information requested by the department.

9VAC15-60-110. Fees for projects subject to Part II of this chapter.

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit by rule Fees shall be collected for a PBR or a modification to an existing permit by rule PBR for a small solar energy project subject to Part II (9VAC15-60-30 et seq.) of this chapter. No fee shall be required for administrative permit changes pursuant to 9VAC15-60-100 A or B.

B. Permit fee payment and deposit. Fees for permit by rule PBR applications or modifications shall be paid by the applicant as follows:

1. Due date. All permit application, fees or modification, or CAPZ mitigation fees, if applicable, are due on submittal day of the at the time of application or modification package submittal.

2. Method of payment. Fees shall be collected utilizing, where practicable, an online payment system. Until such system is operational, fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

a. Fees shall be in United States currency, except that agencies and institutions of the Commonwealth of Virginia may submit interagency transfers for the amount of the fee.

b. The department may provide a means to pay fees electronically. When fees are collected electronically pursuant to this part through credit cards, business transaction costs to the department associated with processing such payments may be assessed.

3. Incomplete payments. All incomplete payments shall be deemed nonpayments.

4. Late payment. No PBR application or modification submittal will be deemed complete until the department receives proper payment.

a. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account.

b. The department is entitled to all remedies available under the Code of Virginia in collecting any past due amount.

C. Fee schedules. Each application for a permit by rule PBR and each application for a modification of a permit by rule PBR is a separate action and shall be assessed a separate fee. The amount of the permit application fee is based on the costs associated with the permitting program required by this chapter. The fee schedules are shown in the following table: Table 2.

Type of Action	Fee
Permit by rule application – by rated capacity: >5 MW up to and including 25 MW >25 MW up to and including 50 MW >50 MW up to and including 75 MW >75 MW up to and including 150 MW	$8,000 $10,000 $12,000 $14,000
Permit by rule modification – for any project subject to Part II of this chapter	$4,000

Table 2 Fee Schedules
Type of Action	Fee
PBR application > 5 MW up to and including 25 MW	$8,000
PBR application > 25 MW up to and including 50 MW	$10,000
PBR application > 50 MW up to and including 75 MW	$12,000
PBR application > 75 MW up to and including 150 MW	$14,000
PBR modification > 5 MW up to and including 150 MW	$4,000

All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment:

1. Applicant name, address, and daytime telephone number;

2. Responsible person name, address, and daytime telephone number, if different from the applicant;

3. Name of the project and project location;

4. Whether the fee is for a new PBR issuance or permit modification;

5. The amount of fee submitted; and

6. The existing permit number.

D. Use of fees. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter, including permit by rule PBR processing, permit by rule PBR modification processing, and inspection and monitoring of small solar energy projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this chapter and in § 10.1-1197.6 E of the Code of Virginia.

E. Fund. The fees, received by the department in accordance with this chapter, shall be deposited in the Small Renewable Energy Project Fee Fund as specified in § 10.1-1197.6 F of the Code of Virginia.

F. Periodic review of fees. Beginning July 1, 2013, and periodically thereafter, the The department shall periodically review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.

9VAC15-60-120. Internet accessible resources.

A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.

B. Internet available resources.

1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: http://www.dhr.virginia.gov/registers/register.htm. https://www.dhr.virginia.gov/programs/historic-registers/.

2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: http://www.nps.gov/history/local-law/arch_stnds_9.htm. https://www.doi.gov/pam/asset-management/historic-preservation/pqs.

3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, 600 East Main Street, 24th Floor, Richmond, Virginia. Available at the following Internet address: http://www.dcr.virginia.gov/natural_heritage/ncintro.shtml. https://www.dcr.virginia.gov/natural-heritage/natural-communities/.

4. Virginia's Comprehensive Wildlife Conservation Strategy, 2005 2015 (referred to as the Virginia Wildlife Action Plan), Virginia Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, Virginia. Virginia Department of Wildlife Resources, 7870 Villa Park Drive, Suite 400, Henrico, Virginia. Available at the following Internet address: http://www.bewildvirginia.org/wildlifeplan/ https://dwr.virginia.gov/wildlife/wildlife-action-plan/wildlife-action-plan-2015/.

C. Internet applications.

1. Coastal GEMS application, 2010, Virginia Department of Environmental Quality. Available at the following Internet address: http://www.deq.virginia.gov/coastal/coastalgems.html. https://www.deq.virginia.gov/our-programs/coastal-zone-management/coastal-mapping/coastal-gems. NOTE: This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, (804) 698-4000.

2. [ Virginia Natural Landscape Assessment, Virginia Department of Conservation and Recreation. Available at the following Internet address: for detailed information on ecological cores go to ] http://www.dcr.virginia.gov/natural_heritage/vclnavnla.shtm. [ https://www.dcr.virginia.gov/natural-heritage/vaconvisvnla. ] Land maps may be viewed at DCR's Land Conservation Data Explorer Geographic Information System website at http://www.vaconservedlands.org/gis.aspx. NOTE: The website is maintained by DCR. Actual shapefiles and metadata are available for free by contacting a DCR staff person at vaconslands@dcr.virginia.gov or DCR, Division of Natural Heritage, 217 Governor Street, Richmond, Virginia 23219, (804) 786-7951. [ Links for data access are provided through this website.

3. ] Virginia Fish and Wildlife Information Service 2010, Virginia Department of Game and Inland Fisheries., Virginia Department of Wildlife Resources. Available at the following Internet address: http://www.vafwis.org/fwis/. NOTE: https://services.dwr.virginia.gov/fwis/. This website is maintained by DGIF DWR and is accessible to the public as "visitors," or to registered subscribers. Registration, however, is required for access to resource-specific or species-specific locational data and records. Assistance and information may be obtained by contacting DGIF, Fish and Wildlife Information Service, 4010 West Broad Street, Richmond, Virginia 23230, (804) 367-6913. DWR, Fish and Wildlife Information Service, email: vafwis_support@dwr.virginia.gov.

[ 4. 3. ] DWR Wildlife Environmental Review Map Service (WERMS). Available at the following Internet address: https://dwr.virginia.gov/gis/werms/.

Part III

Provisions for Projects Less Than or Equal to Five Megawatts MW or Less Than or Equal to 10 Acres or Meeting Certain Categorical Criteria

9VAC15-60-130. Small solar energy projects less than or equal to five megawatts MW or less than or equal to 10 acres or meeting certain categorical criteria.

A. The owner or operator of a small solar energy project is not required to submit any notification or certification to the department if he meets at least one of the following criteria:

1. The small solar energy project has either a rated capacity equal to or less than 500 kilowatts or a disturbance zone equal to or less than two acres; or

2. The small solar project falls within at least one of the following categories, without regard to the rated capacity or the disturbance zone of the project:

a. The small solar energy project is mounted on a single-family or duplex private residence.

b. The small solar energy project is mounted on one or more buildings less than 50 years old or, if 50 years of age or older, have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

c. The small solar energy project is mounted over one or more existing parking lots, existing roads, or other previously disturbed areas and any impacts to undisturbed areas do not exceed an additional two acres.

d. The small solar energy project utilizes integrated PV only, provided that the building or structure on which the integrated PV materials are used is less than 50 years old or, if 50 years of age or older, has been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

B. The owner or operator of a small solar energy project with either a rated capacity greater than 500 kilowatts and less than or equal to five megawatts or a disturbance zone greater than two acres and less than or equal to 10 acres shall notify the department and shall submit a certification by the governing body of the locality or localities wherein the project will be located that the project complies with all applicable land use ordinances.

A. The following projects shall be subject to this section.

1. Projects with a rated capacity greater than one MW and less than or equal to five MW;

2. Projects with a disturbance zone greater than two acres and less than or equal to 10 acres; and

3. Projects located on previously disturbed or repurposed areas [ without regard to the with a ] rated capacity up to and including 150 MW [ or where the size of the disturbance zone and any impact to undisturbed areas is greater than two acres or less than or equal to 10 acres and no impacts to more than two acres of undisturbed land beyond the designated disturbed area ]. Projects located on a brownfield site [ should shall ] work with the DEQ Office of Remediation Programs (ORP) to verify the brownfield [ determination designation ].

B. An applicant seeking a PBR under this part shall submit the following:

1. An NOI in a format approved by the department.

2. A certification by the governing body of any locality wherein the project will be located that the project complies with all applicable land use ordinances.

C. The applicant of a project is not required to submit any notification or certification to the department if the applicant meets at least one of the following criteria:

1. The project has either a rated capacity equal to or less than one MW or a disturbance zone equal to or less than two acres; or

2. The project falls within at least one of the following categories, without regard to the rated capacity or the disturbance zone of the project:

a. The project is mounted on a single-family or duplex private residence.

b. The project is mounted on one or more buildings less than 50 years old, or if 50 years of age or older, have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

c. The project is mounted over one or more existing parking lots [ , or ] existing roads [ , or other previously disturbed areas ] and any impacts to undisturbed areas do not exceed an additional two acres.

d. The project utilizes integrated PV only, provided that the building or structure on which the integrated PV materials are used is less than 50 years old, or if 50 years of age or older, has been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

9VAC15-60-140. Enforcement.

A. The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus, or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

B. Pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the department may terminate the permit by rule whenever the department finds that the applicant has:

1. Knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter;

2. Failed to comply with the conditions or commitments stated within the permit by rule application; or

3. Violated the project's mitigation plan.

FORMS (9VAC15-60)

Web Soil Survey (WSS), Natural Resources Conservation Service, United States Department of Agriculture, Version 3.4.0. Available at the following Internet address: https://websoilsurvey.nrcs.usda.gov/app/

DOCUMENTS INCORPORATED BY REFERENCE (9VAC15-60)

Guidelines for Conducting Historic Resources Survey in Virginia, Virginia Department of Historic Resources, originally published October 2011, revised September 2017, https://www.dhr.virginia.gov/

Virginia Pollinator-Smart/Bird Habitat Scorecard, Proposed or Retrofit Solar Sites, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 2.0a, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

Virginia Pollinator-Smart/Bird Habitat Scorecard, Established Solar Sites, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 2.0b, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

Pollinator-Smart Comprehensive Manual, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 1.2 originally published October 2011, revised December 2019, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

[ Virginia Agricultural BMP Cost Share Manual, DCR specifications for No. FR-3 (Woodland Buffer Filter Area), Virginia Department of Conservation and Recreation, revised April 2023, https://www.dcr.virginia.gov

Virginia Agricultural BMP Cost Share Manual, DCR specifications for No. WQ-1 (Riparian Grass Filter Strips), Virginia Department of Conservation and Recreation, revised April 2023, https://www.dcr.virginia.gov

Virginia Department of Forestry (VDOF), Easement Term Guidelines, Virginia Department of Forestry, August 2017, https://dof.virginia.gov/

VOF Template February 7, 2018 Working Farm/Intensive Agriculture, Virginia Outdoors Foundation, February 7, 2018, https://www.vof.org/ ]

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Final Regulation

Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (amending 12VAC35-105-20, 12VAC35-105-590, 12VAC35-105-1370, 12VAC35-105-1840).

Statutory Authority: §§ 37.2-203 and 37.2-400 of the Code of Virginia.

Effective Date: June 18, 2025.

Agency Contact: Susan Puglisi, Regulatory Research Specialist, Office of Regulatory Affairs, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Room 411, Richmond, VA 23219, telephone (804) 385-6549, FAX (804) 371-4609, TDD (804) 371-8977, or email susan.puglisi@dbhds.virginia.gov.

Background: Qualified mental health professionals (QMHPs) and qualified mental health professional - trainees (QMHP-Ts) provide "collaborative behavioral health services" as employees or independent contractors of the Department of Behavioral Health and Developmental Services (DBHDS) or of providers licensed by the department. DBHDS is responsible for regulating providers by establishing and enforcing minimum health, safety, and welfare requirements to protect individuals receiving services; however, regulatory boards at the Department of Health Professions (DHP) set the qualifications and scope of practice for health care practitioners. Under the current DBHDS licensing regulations, any QMHP is allowed to supervise supportive or maintenance mental health services, without additional training or experience prerequisites.

Summary:

The amendments conform the licensing regulations governing QMHPs and QMHP-Ts with requirements in Chapter 595 of the 2024 Acts of Assembly by aligning staffing and supervision provisions with competency and qualification standards established by the Board of Counseling that require licensed providers that employ or contract with QMHPs to impose more stringent supervision standards. Specifically, the amendments clarify that only QMHPs with at least three years of experience and completion of DHP supervisor training qualify to supervise non-acute, non-clinical collaborative behavioral health services.

12VAC35-105-20. Definitions.

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

"Abuse" means, as defined by § 37.2-100 of the Code of Virginia, any act or failure to act by an employee or other person responsible for the care of an individual in a facility or program operated, licensed, or funded by the department, excluding those operated by the Virginia Department of Corrections, that was performed or was failed to be performed knowingly, recklessly, or intentionally, and that caused or might have caused physical or psychological harm, injury, or death to an individual receiving care or treatment for mental illness, developmental disabilities, or substance abuse. Examples of abuse include acts such as:

1. Rape, sexual assault, or other criminal sexual behavior;

2. Assault or battery;

3. Use of language that demeans, threatens, intimidates, or humiliates the individual;

4. Misuse or misappropriation of the individual's assets, goods, or property;

5. Use of excessive force when placing an individual in physical or mechanical restraint;

6. Use of physical or mechanical restraints on an individual that is not in compliance with federal and state laws, regulations, and policies, professional accepted standards of practice, or the individual's individualized services plan; or

7. Use of more restrictive or intensive services or denial of services to punish an individual or that is not consistent with the individual's individualized services plan.

"Activities of daily living" or "ADLs" means personal care activities and includes bathing, dressing, transferring, toileting, grooming, hygiene, feeding, and eating. An individual's degree of independence in performing these activities is part of determining the appropriate level of care and services.

"Addiction" means a primary, chronic disease of brain reward, motivation, memory, and related circuitry. Addiction is defined as the inability to consistently abstain, impairment in behavioral control, persistence of cravings, diminished recognition of significant problems with one's behaviors and interpersonal relationships, and a dysfunctional emotional response. Like other chronic diseases, addiction often involves cycles of relapse and remission. Without treatment or engagement in recovery activities, addiction is progressive and can result in disability or premature death.

"Admission" means the process of acceptance into a service as defined by the provider's policies.

"Allied health professional" means a professional who is involved with the delivery of health or related services pertaining to the identification, evaluation, and prevention of diseases and disorders, such as a certified substance abuse counselor, certified substance abuse counseling assistant, peer recovery support specialist, certified nurse aide, or occupational therapist.

"ASAM" means the American Society of Addiction Medicine.

"Assertive community treatment service" or "ACT" means a self-contained interdisciplinary community-based team of medical, behavioral health, and rehabilitation professionals who use a team approach to meet the needs of an individual with severe and persistent mental illness. ACT teams:

1. Provide person-centered services addressing the breadth of an individual's needs, helping the individual achieve his personal goals;

2. Serve as the primary provider of all the services that an individual receiving ACT services needs;

3. Maintain a high frequency and intensity of community-based contacts;

4. Maintain a very low individual-to-staff ratio;

5. Offer varying levels of care for all individuals receiving ACT services and appropriately adjust service levels according to each individual's needs over time;

6. Assist individuals in advancing toward personal goals with a focus on enhancing community integration and regaining valued roles, such as worker, family member, resident, spouse, tenant, or friend;

7. Carry out planned assertive engagement techniques, including rapport-building strategies, facilitating meeting basic needs, and motivational interviewing techniques;

8. Monitor the individual's mental status and provide needed supports in a manner consistent with the individual's level of need and functioning;

9. Deliver all services according to a recovery-based philosophy of care; and

10. Promote self-determination, respect for the individual receiving ACT as an individual in such individual's own right, and engage peers in promoting recovery and regaining meaningful roles and relationships in the community.

"Authorized representative" means a person permitted by law or 12VAC35-115 to authorize the disclosure of information or consent to treatment and services or participation in human research.

"Behavior intervention" means those principles and methods employed by a provider to help an individual receiving services to achieve a positive outcome and to address challenging behavior in a constructive and safe manner. Behavior intervention principles and methods shall be employed in accordance with the individualized services plan and written policies and procedures governing service expectations, treatment goals, safety, and security.

"Behavioral treatment plan," "functional plan," or "behavioral support plan" means any set of documented procedures that are an integral part of the individualized services plan and are developed on the basis of a systematic data collection, such as a functional assessment, for the purpose of assisting individuals to achieve the following:

1. Improved behavioral functioning and effectiveness;

2. Alleviation of symptoms of psychopathology; or

3. Reduction of challenging behaviors.

"Board" or "state board" means, as defined by § 37.2-100 of the Code of Virginia, the State Board of Behavioral Health and Developmental Services. The board has statutory responsibility for adopting regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the commissioner or the department.

"Brain injury" means any injury to the brain that occurs after birth that is acquired through traumatic or nontraumatic insults. Nontraumatic insults may include anoxia, hypoxia, aneurysm, toxic exposure, encephalopathy, surgical interventions, tumor, and stroke. Brain injury does not include hereditary, congenital, or degenerative brain disorders or injuries induced by birth trauma.

"Care," "treatment," or "support" means the individually planned therapeutic interventions that conform to current acceptable professional practice and that are intended to improve or maintain functioning of an individual receiving services delivered by a provider.

"Case management service" or "support coordination service" means services that can include assistance to individuals and their family members in accessing needed services that are responsive to the individual's needs. Case management services include identifying potential users of the service; assessing needs and planning services; linking the individual to services and supports; assisting the individual directly to locate, develop, or obtain needed services and resources; coordinating services with other providers; enhancing community integration; making collateral contacts; monitoring service delivery; discharge planning; and advocating for individuals in response to their changing needs. "Case management service" does not include assistance in which the only function is maintaining service waiting lists or periodically contacting or tracking individuals to determine potential service needs.

"Clinical experience" means providing direct services to individuals with mental illness or the provision of direct geriatric services or special education services. Experience may include supervised internships, practicums, and field experience.

"Clinically managed high-intensity residential care" or "Level of care 3.5" means a substance use treatment program that offers 24-hour supportive treatment of individuals with significant psychological and social problems by credentialed addiction treatment professionals in an interdisciplinary treatment approach. A clinically managed high-intensity residential care program provides treatment to individuals who present with significant challenges, such as physical, sexual, or emotional trauma; past criminal or antisocial behaviors, with a risk of continued criminal behavior; an extensive history of treatment; inadequate anger management skills; extreme impulsivity; and antisocial value system.

"Clinically managed low-intensity residential care" or "Level of care 3.1" means providing an ongoing therapeutic environment for individuals requiring some structured support in which treatment is directed toward applying recovery skills; preventing relapse; improving emotional functioning; promoting personal responsibility; reintegrating the individual into work, education, and family environments; and strengthening and developing adaptive skills that may not have been achieved or have been diminished during the individual's active addiction. A clinically managed low-intensity residential care program also provides treatment for individuals suffering from chronic, long-term alcoholism or drug addiction and affords an extended period of time to establish sound recovery and a solid support system.

"Clinically managed population specific high-intensity residential services" or "Level of care 3.3" means a substance use treatment program that provides a structured recovery environment in combination with high-intensity clinical services provided in a manner to meet the functional limitations of individuals. The functional limitations of individuals who are placed within this level of care are primarily cognitive and can be either temporary or permanent.

"Collaborative behavioral health services" means the same as the term is defined in § 54.1-3500 of the Code of Virginia.

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Community-based crisis stabilization" means services that are short term and designed to support an individual and the individual's natural support system following contact with an initial crisis response service or as a diversion to a higher level of care. Providers deliver community-based crisis stabilization services in an individual's natural environment and provide referrals and linkage to other community-based services at the appropriate level of care. Interventions may include mobile crisis response, brief therapeutic and skill-building interventions, engagement of natural supports, interventions to integrate natural supports in the de-escalation and stabilization of the crisis, and coordination of follow-up services. Coordination of specialized services to address the needs of co-occurring developmental disabilities and substance use disorders are also available through this service. Services include advocacy and networking to provide linkages and referrals to appropriate community-based services and assist the individual and the individual's family or caregiver in accessing other benefits or assistance programs for which the individual may be eligible. Community-based crisis stabilization is a non-center, community-based service. The goal of community-based crisis stabilization services is to stabilize the individual within the community and support the individual or the individual's support system (i) as part of an initial mobile crisis response; (ii) during the period between an initial mobile crisis response and entry into an established follow-up service at the appropriate level of care; (iii) as a transitional step-down from a higher level of care if the next level of care service is identified but not immediately available for access; or (iv) as a diversion to a higher level of care.

"Community gero-psychiatric residential services" means 24-hour care provided to individuals with mental illness, behavioral problems, and concomitant health problems who are usually 65 years of age or older in a geriatric setting that is less intensive than a psychiatric hospital but more intensive than a nursing home or group home. Services include assessment and individualized services planning by an interdisciplinary services team, intense supervision, psychiatric care, behavioral treatment planning and behavior interventions, nursing, and other health-related services.

"Complaint" means an allegation of a violation of this chapter or a provider's policies and procedures related to this chapter.

"Conveyance" means a motor vehicle that serves as the mobile component of a mobile MAT program.

"Co-occurring disorders" means the presence of more than one and often several of the following disorders that are identified independently of one another and are not simply a cluster of symptoms resulting from a single disorder: mental illness, a developmental disability, substance abuse (substance use disorders), or brain injury.

"Co-occurring services" means individually planned therapeutic treatment that addresses in an integrated concurrent manner the service needs of individuals who have co-occurring disorders.

"Corrective action plan" means the provider's pledged corrective action in response to cited areas of noncompliance documented by the regulatory authority.

"Correctional facility" means a facility operated under the management and control of the Virginia Department of Corrections.

"Credentialed addiction treatment professional" means a person who possesses one of the following credentials issued by the appropriate health regulatory board: (i) an addiction-credentialed physician or physician with experience or training in addiction medicine; (ii) a licensed nurse practitioner or a licensed physician assistant with experience or training in addiction medicine; (iii) a licensed psychiatrist; (iv) a licensed clinical psychologist; (v) a licensed clinical social worker; (vi) a licensed professional counselor; (vii) a licensed nurse practitioner with experience or training in psychiatry or mental health; (viii) a licensed marriage and family therapist; (ix) a licensed substance abuse treatment practitioner; (x) a resident who is under the supervision of a licensed professional counselor (18VAC115-20-10), licensed marriage and family therapist (18VAC115-50-10), or licensed substance abuse treatment practitioner (18VAC115-60-10) and is registered with the Virginia Board of Counseling; (xi) a resident in psychology who is under supervision of a licensed clinical psychologist and is registered with the Virginia Board of Psychology (18VAC125-20-10); or (xii) a supervisee in social work who is under the supervision of a licensed clinical social worker and is registered with the Virginia Board of Social Work (18VAC140-20-10).

"Crisis" means a deteriorating or unstable situation often developing suddenly or rapidly that produces acute, heightened, emotional, mental, physical, medical, or behavioral distress.

"Crisis education and prevention plan" or "CEPP" means a department-approved, individualized, client-specific document that provides a concise, clear, and realistic set of supportive interventions to prevent or de-escalate a crisis and assist an individual who may be experiencing a behavioral loss of control. The goal of the CEPP is to identify problems that have arisen in the past or are emergent in order to map out strategies that offer tools for the natural support system to assist the individual in addressing and de-escalating problems in a healthy way and provide teaching skills that the individual can apply independently.

"Crisis planning team" means the team who is consulted to plan the individual's safety plan or crisis ISP. The crisis planning team consists, at a minimum, of the individual receiving services, the individual's legal guardian or authorized representative, and a member of the provider's crisis staff. The crisis planning team may include the individual's support coordinator, case manager, the individual's family, or other identified persons, as desired by the individual, such as the individual's family of choice.

"Crisis receiving center," "CRC," or "23-hour crisis stabilization" means a community-based, nonhospital facility providing short-term assessment, observation, and crisis stabilization services for up to 23 hours. This service is accessible 24 hours per day, seven days per week, 365 days per year, and is indicated when an individual requires a safe environment for initial assessment and intervention. This service includes a thorough assessment of an individual's behavioral health crisis, psychosocial needs, and supports in order to determine the least restrictive environment most appropriate for stabilization. Key service functions include rapid assessment, crisis intervention, de-escalation, short-term stabilization, and appropriate referrals for ongoing care. This distinct service may be co-located with other services such as crisis stabilization units.

"Crisis stabilization" means direct, intensive nonresidential or residential care and treatment to nonhospitalized individuals experiencing an acute crisis that may jeopardize their current community living situation. Crisis stabilization is intended to avert hospitalization or rehospitalization; provide normative environments with a high assurance of safety and security for crisis intervention; stabilize individuals in crisis; and mobilize the resources of the community support system, family members, and others for ongoing rehabilitation and recovery.

"Crisis stabilization unit," "CSU," or "residential crisis stabilization unit" is a community-based, short-term residential treatment unit. CSUs serve as primary alternatives to inpatient hospitalization for individuals who are in need of a safe, secure environment for assessment and crisis treatment. CSUs also serve as a step-down option from psychiatric inpatient hospitalization and function to stabilize and reintegrate individuals who meet medical necessity criteria back into their communities.

"Day support service" means structured programs of training, assistance, and specialized supervision in the acquisition, retention, or improvement of self-help, socialization, and adaptive skills for adults with a developmental disability provided to groups or individuals in nonresidential community-based settings. Day support services may provide opportunities for peer interaction and community integration and are designed to enhance the following: self-care and hygiene, eating, toileting, task learning, community resource utilization, environmental and behavioral skills, social skills, medication management, prevocational skills, and transportation skills. The term "day support service" does not include services in which the primary function is to provide employment-related services, general educational services, or general recreational services.

"Department" means the Virginia Department of Behavioral Health and Developmental Services.

"Developmental disability" means a severe, chronic disability of an individual that (i) is attributable to a mental or physical impairment or a combination of mental and physical impairments other than a sole diagnosis of mental illness; (ii) is manifested before the individual reaches 22 years of age; (iii) is likely to continue indefinitely; (iv) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency; and (v) reflects the individual's need for a combination and sequence of special interdisciplinary or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. An individual from birth to nine years of age, inclusive, who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the criteria described in clauses (i) through (v) if the individual without services and supports has a high probability of meeting those criteria later in life.

"Developmental services" means planned, individualized, and person-centered services and supports provided to individuals with developmental disabilities for the purpose of enabling these individuals to increase their self-determination and independence, obtain employment, participate fully in all aspects of community life, advocate for themselves, and achieve their fullest potential to the greatest extent possible.

"Diagnostic and Statistical Manual of Mental Disorders" or "DSM" means the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM-5, of the American Psychiatric Association.

"Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.

"Discharge" means the process by which the individual's active involvement with a service is terminated by the provider, individual, or individual's authorized representative.

"Discharge plan" means the written plan that establishes the criteria for an individual's discharge from a service and identifies and coordinates delivery of any services needed after discharge.

"Dispense" means to deliver a drug to an ultimate user by or pursuant to the lawful order of a practitioner, including the prescribing and administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery (§ 54.1-3400 et seq. of the Code of Virginia).

"Emergency service" means unscheduled and sometimes scheduled crisis intervention, stabilization, and referral assistance provided over the telephone or face-to-face, if indicated, available 24 hours a day and seven days per week. Emergency services also may include walk-ins, home visits, jail interventions, and preadmission screening activities associated with the judicial process.

"Group home or community residential service" means a congregate service providing 24-hour supervision in a community-based home having eight or fewer residents. Services include supervision, supports, counseling, and training in activities of daily living for individuals whose individualized services plan identifies the need for the specific types of services available in this setting.

"HCBS Waiver" means a Medicaid Home and Community Based Services Waiver.

"Home and noncenter based" means that a service is provided in the individual's home or other noncenter-based setting. This includes noncenter-based day support, supportive in-home, and intensive in-home services.

"Individual" or "individual receiving services" means a current direct recipient of public or private mental health, developmental, or substance abuse treatment, rehabilitation, or habilitation services and includes the terms "consumer," "patient," "resident," "recipient," or "client". When the term is used in this chapter, the requirement applies to every individual receiving licensed services from the provider.

"Individualized services plan" or "ISP" means a comprehensive and regularly updated written plan that describes the individual's needs, the measurable goals and objectives to address those needs, and strategies to reach the individual's goals. An ISP is person-centered, empowers the individual, and is designed to meet the needs and preferences of the individual. The ISP is developed through a partnership between the individual and the provider and includes an individual's treatment plan, habilitation plan, person-centered plan, or plan of care, which are all considered individualized service plans.

"Informed choice" means a decision made after considering options based on adequate and accurate information and knowledge. These options are developed through collaboration with the individual and the individual's authorized representative, as applicable, and the provider with the intent of empowering the individual and the individual's authorized representative to make decisions that will lead to positive service outcomes.

"Informed consent" means the voluntary written agreement of an individual or that individual's authorized representative to surgery, electroconvulsive treatment, use of psychotropic medications, or any other treatment or service that poses a risk of harm greater than that ordinarily encountered in daily life or for participation in human research. To be voluntary, informed consent must be given freely and without undue inducement; any element of force, fraud, deceit, or duress; or any form of constraint or coercion.

"Initial assessment" means an assessment conducted prior to or at admission to determine whether the individual meets the service's admission criteria; what the individual's immediate service, health, and safety needs are; and whether the provider has the capability and staffing to provide the needed services.

"Inpatient psychiatric service" means intensive 24-hour medical, nursing, and treatment services provided to individuals with mental illness or substance abuse (substance use disorders) in a hospital as defined in § 32.1-123 of the Code of Virginia or in a special unit of a hospital.

"Instrumental activities of daily living" or "IADLs" means meal preparation, housekeeping, laundry, and managing money. A person's degree of independence in performing these activities is part of determining appropriate level of care and services.

"Intellectual disability" means a disability originating before 18 years of age, characterized concurrently by (i) significant subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

"Intensity of service" means the number, type, and frequency of staff interventions and other services provided during treatment at a particular level of care.

"Intensive in-home service" means family preservation interventions for children and adolescents who have or are at risk of serious emotional disturbance, including individuals who also have a diagnosis of developmental disability. Intensive in-home service is usually time-limited and is provided typically in the residence of an individual who is at risk of being moved to out-of-home placement or who is being transitioned back home from an out-of-home placement. The service includes 24-hour per day emergency response; crisis treatment; individual and family counseling; life, parenting, and communication skills; and case management and coordination with other services.

"Intermediate care facility/individuals with intellectual disability" or "ICF/IID" means a facility or distinct part of a facility certified by the Virginia Department of Health as meeting the federal certification regulations for an intermediate care facility for individuals with intellectual disability and persons with related conditions and that addresses the total needs of the residents, which include physical, intellectual, social, emotional, and habilitation, providing active treatment as defined in 42 CFR 435.1010 and 42 CFR 483.440.

"Investigation" means a detailed inquiry or systematic examination of the operations of a provider or its services regarding an alleged violation of regulations or law. An investigation may be undertaken as a result of a complaint, an incident report, or other information that comes to the attention of the department.

"Licensed mental health professional" or "LMHP" means a physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, certified psychiatric clinical nurse specialist, licensed behavior analyst, or licensed psychiatric/mental health nurse practitioner.

"Location" means a place where services are or could be provided.

"Mandatory outpatient treatment order" means an order issued by a court pursuant to § 37.2-817 of the Code of Virginia.

"Medical detoxification" means a service provided in a hospital or other 24-hour care facility under the supervision of medical personnel using medication to systematically eliminate or reduce the presence of alcohol or other drugs in the individual's body.

"Medical evaluation" means the process of assessing an individual's health status that includes a medical history and a physical examination of an individual conducted by a licensed medical practitioner operating within the scope of his license.

"Medically managed intensive inpatient service" or "Level of care 4.0" means an organized service delivered in an inpatient setting, including an acute care general hospital, psychiatric unit in a general hospital, or a freestanding psychiatric hospital. This service is appropriate for individuals whose acute biomedical and emotional, behavioral, and cognitive problems are so severe that they require primary medical and nursing care. Services at this level of care are managed by a physician who is responsible for diagnosis, treatment, and treatment plan decisions in collaboration with the individual.

"Medically monitored intensive inpatient treatment" or "Level of care 3.7" means a substance use treatment program that provides 24-hour care in a facility under the supervision of medical personnel. The care provided includes directed evaluation, observation, medical monitoring, and addiction treatment in an inpatient setting. The care provided may include the use of medication to address the effects of substance use. This service is appropriate for an individual whose subacute biomedical, emotional, behavioral, or cognitive problems are so severe that they require inpatient treatment but who does not need the full resources of an acute care general hospital or a medically managed intensive inpatient treatment program.

"Medication" means prescribed or over-the-counter drugs or both.

"Medication administration" means the legally permitted direct application of medications, as enumerated by § 54.1-3408 of the Code of Virginia, by injection, inhalation, ingestion, or any other means to an individual receiving services by (i) persons legally permitted to administer medications or (ii) the individual at the direction and in the presence of persons legally permitted to administer medications.

"Medication-assisted opioid treatment" or "opioid treatment service" means an intervention of administering or dispensing of medications, such as methadone, buprenorphine, or naltrexone approved by the federal Food and Drug Administration for the purpose of treating opioid use disorder.

"Medication-assisted treatment" or "MAT" means the use of U.S. Food and Drug Administration approved medications in combination with counseling and behavioral therapies to provide treatment of substance use disorders. Medication-assisted treatment includes medications for opioid use disorder as well as medications for treatment of alcohol use disorder.

"Medication error" means an error in administering a medication to an individual and includes when any of the following occur: (i) the wrong medication is given to an individual, (ii) the wrong individual is given the medication, (iii) the wrong dosage is given to an individual, (iv) medication is given to an individual at the wrong time or not at all, or (v) the wrong method is used to give the medication to the individual.

"Medication storage" means any area where medications are maintained by the provider, including a locked cabinet, locked room, or locked box.

"Mental Health Community Support Service" or "MCHSS" means the provision of recovery-oriented services to individuals with long-term, severe mental illness. MHCSS includes skills training and assistance in accessing and effectively utilizing services and supports that are essential to meeting the needs identified in the individualized services plan and development of environmental supports necessary to sustain active community living as independently as possible. MHCSS may be provided in any setting in which the individual's needs can be addressed, skills training applied, and recovery experienced.

"Mental health intensive outpatient service" means a structured program of skilled treatment services focused on maintaining and improving functional abilities through a time-limited, interdisciplinary approach to treatment. This service is provided over a period of time for individuals requiring more intensive services than an outpatient service can provide and may include individual, family, or group counseling or psychotherapy; skill development and psychoeducational activities; certified peer support services; medication management; and psychological assessment or testing.

"Mental health outpatient service" means treatment provided to individuals on an hourly schedule, on an individual, group, or family basis, and usually in a clinic or similar facility or in another location. Mental health outpatient services may include diagnosis and evaluation, screening and intake, counseling, psychotherapy, behavior management, psychological testing and assessment, laboratory, and other ancillary services, medical services, and medication services. Mental health outpatient service specifically includes:

1. Mental health services operated by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia;

2. Mental health services contracted by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia; or

3. Mental health services that are owned, operated, or controlled by a corporation organized pursuant to the provisions of either Chapter 9 (§ 13.1-601 et seq.) or Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 of the Code of Virginia.

"Mental health partial hospitalization service" means time-limited active treatment interventions that are more intensive than outpatient services, designed to stabilize and ameliorate acute symptoms and serve as an alternative to inpatient hospitalization or to reduce the length of a hospital stay. Partial hospitalization is provided through a minimum of 20 hours per week of skilled treatment services focused on individuals who require intensive, highly coordinated, structured, and interdisciplinary ambulatory treatment within a stable environment that is of greater intensity than intensive outpatient, but of lesser intensity than inpatient.

"Mental illness" means, as defined by § 37.2-100 of the Code of Virginia, a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.

"Missing" means a circumstance in which an individual is not physically present when and where he should be and his absence cannot be accounted for or explained by his supervision needs or pattern of behavior.

"Mobile crisis response" means a type of community-based crisis stabilization service that is available 24 hours per day, seven days per week, 365 days per year to provide rapid response, assessment, and early intervention to individuals experiencing a behavioral health crisis. Services are deployed in real time to the location of the individual experiencing a behavioral health crisis. The purpose of this service is to (i) de-escalate the behavioral health crisis and prevent harm to the individual or others; (ii) assist in the prevention of the individual's acute exacerbation of symptoms; (iii) develop an immediate plan to maintain safety; and (iv) coordinate care and linking to appropriate treatment services to meet the needs of the individual.

"Mobile medication-assisted treatment program" or "mobile MAT program" means a MAT operating from a motor vehicle or conveyance that serves as a mobile component to a licensed MAT location registered with the U.S. Drug Enforcement Administration as required by 21 CFR 1301.11 et seq.

"Motivational enhancement" means a person-centered approach that is collaborative, employs strategies to strengthen motivation for change, increases engagement in substance use services, resolves ambivalence about changing substance use behaviors, and supports individuals to set goals to change their substance use.

"Neglect" means, as defined by § 37.2-100 of the Code of Virginia, the failure by a person or a program or facility operated, licensed, or funded by the department, excluding those operated by the Department of Corrections, responsible for providing services to do so, including nourishment, treatment, care, goods, or services necessary to the health, safety, or welfare of an individual receiving care or treatment for mental illness, developmental disabilities, or substance abuse.

"Neurobehavioral services" means the assessment, evaluation, and treatment of cognitive, perceptual, behavioral, and other impairments caused by brain injury that affect an individual's ability to function successfully in the community.

"Office of Human Rights" means the Department of Behavioral Health and Developmental Services Office of Human Rights.

"Person-centered" means focusing on the needs and preferences of the individual; empowering and supporting the individual in defining the direction for his life; and promoting self-determination, community involvement, and recovery.

"Provider" means, as defined by § 37.2-403 of the Code of Virginia, any person, entity, or organization, excluding an agency of the federal government by whatever name or designation, that delivers (i) services to individuals with mental illness, developmental disabilities, or substance abuse (substance use disorders) or (ii) residential services for individuals with brain injury. The person, entity, or organization shall include a hospital as defined in § 32.1-123 of the Code of Virginia, community services board, behavioral health authority, private provider, and any other similar or related person, entity, or organization. It shall not include any individual practitioner who holds a license issued by a health regulatory board of the Department of Health Professions or who is exempt from licensing pursuant to §§ 54.1-2901, 54.1-3001, 54.1-3501, 54.1-3601, and 54.1-3701 of the Code of Virginia.

"Psychosocial rehabilitation service" means a program of two or more consecutive hours per day provided to groups of adults in a nonresidential setting. Individuals must demonstrate a clinical need for the service arising from a condition due to mental, behavioral, or emotional illness that results in significant functional impairments in major life activities. This service provides education to teach the individual about mental illness, substance abuse, and appropriate medication to avoid complication and relapse and opportunities to learn and use independent skills and to enhance social and interpersonal skills within a consistent program structure and environment. Psychosocial rehabilitation includes skills training, peer support, vocational rehabilitation, and community resource development oriented toward empowerment, recovery, and competency.

"Qualified developmental disability professional" or "QDDP" means a person who possesses at least one year of documented experience working directly with individuals who have a developmental disability and who possesses one of the following credentials: (i) a doctor of medicine or osteopathy licensed in Virginia, (ii) a registered nurse licensed in Virginia, (iii) a licensed occupational therapist, or (iv) completion of at least a bachelor's degree in a human services field, including sociology, social work, special education, rehabilitation counseling, or psychology.

"Qualified mental health professional" or "QMHP" means a person who by education and experience is professionally qualified and registered by the Board of Counseling in accordance with 18VAC115-80 to provide collaborative mental health services for adults or children the same as the term is defined in § 54.1-3500 of the Code of Virginia. A QMHP does not engage in independent or autonomous practice. A QMHP provides services as an employee or independent contractor of the department or a provider licensed by the department.

"Qualified mental health professional-adult" or "QMHP-A" means a person who by education and experience is professionally qualified and registered with the Board of Counseling in accordance with 18VAC115-80 to provide collaborative mental health services for adults. A QMHP-A provides services as an employee or independent contractor of the department or a provider licensed by the department. A QMHP-A may be an occupational therapist who by education and experience is professionally qualified and registered with the Board of Counseling in accordance with 18VAC115-80.

"Qualified mental health professional-child" or "QMHP-C" means a person who by education and experience is professionally qualified and registered with the Board of Counseling in accordance with 18VAC115-80 to provide collaborative mental health services for children. A QMHP-C provides services as an employee or independent contractor of the department or a provider licensed by the department. A QMHP-C may be an occupational therapist who by education and experience is professionally qualified and registered with the Board of Counseling in accordance with 18VAC115-80.

"Qualified mental health professional-trainee" or "QMHP-T" means a person receiving supervised training in order to qualify as a QMHP in accordance with 18VAC115-80 and who is registered with the Board of Counseling the same as the term is defined in § 54.1-3500 of the Code of Virginia.

"Qualified paraprofessional in mental health" or "QPPMH" means a person who meets at least one of the following criteria: (i) is registered with the United States Psychiatric Association (USPRA) as an Associate Psychiatric Rehabilitation Provider (APRP); (ii) has an associate degree in a related field (social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, human services counseling) and at least one year of experience providing direct services to individuals with a diagnosis of mental illness; (iii) is licensed as an occupational therapy assistant, and supervised by a licensed occupational therapist, with at least one year of experience providing direct services to individuals with a diagnosis of mental illness; or (iv) has a minimum of 90 hours classroom training and 12 weeks of experience under the direct personal supervision of a QMHP-A QMHP providing services to individuals with mental illness and at least one year of experience, including the 12 weeks of supervised experience.

"Quality improvement plan" means a detailed work plan developed by a provider that defines steps the provider will take to review the quality of services it provides and to manage initiatives to improve quality. A quality improvement plan consists of systematic and continuous actions that lead to measurable improvement in the services, supports, and health status of the individuals receiving services.

"Recovery" means a journey of healing and transformation enabling an individual with a mental illness to live a meaningful life in a community of his choice while striving to achieve his full potential. For individuals with substance abuse (substance use disorders), recovery is an incremental process leading to positive social change and a full return to biological, psychological, and social functioning. For individuals with a developmental disability, the concept of recovery does not apply in the sense that individuals with a developmental disability will need supports throughout their entire lives although these may change over time. With supports, individuals with a developmental disability are capable of living lives that are fulfilling and satisfying and that bring meaning to themselves and others they know.

"REACH crisis therapeutic home" or "REACH CTH" means a residential home with crisis stabilization REACH service for individuals with a developmental disability and who are experiencing a mental health or behavior crisis.

"REACH mobile crisis response" means a REACH service that provides mobile crisis response for individuals with a developmental disability and who are experiencing a mental health or behavior crisis.

"Referral" means the process of directing an applicant or an individual to a provider or service that is designed to provide the assistance needed.

"Regional education assessment crisis services habilitation" or "REACH" means the statewide crisis system of care that is designed to meet the crisis support needs of individuals who have a developmental disability and are experiencing mental health or behavior crisis events that put the individuals at risk for homelessness, incarceration, hospitalization, or danger to self or others.

"Residential" or "residential service" means providing 24-hour support in conjunction with care and treatment or a training program in a setting other than a hospital or training center. Residential services provide a range of living arrangements from highly structured and intensively supervised to relatively independent and requiring a modest amount of staff support and monitoring. Residential services include residential treatment, group homes, supervised living, community gero-psychiatric residential, ICF/IID, sponsored residential homes, medical and social detoxification, and neurobehavioral services.

"Residential crisis stabilization service" means (i) providing short-term, intensive treatment to nonhospitalized individuals who require multidisciplinary treatment in order to stabilize acute psychiatric symptoms and prevent admission to a psychiatric inpatient unit; (ii) providing normative environments with a high assurance of safety and security for crisis intervention; and (iii) mobilizing the resources of the community support system, family members, and others for ongoing rehabilitation and recovery.

"Residential treatment service" means providing an intensive and highly structured clinically based mental health, substance abuse, or neurobehavioral service for co-occurring disorders in a residential setting other than an inpatient service.

"Respite care service" means providing for a short-term, time-limited period of care of an individual for the purpose of providing relief to the individual's family, guardian, or regular caregiver. Persons providing respite care are recruited, trained, and supervised by a licensed provider. These services may be provided in a variety of settings including residential, day support, in-home, or a sponsored residential home.

"Restraint" means the use of a mechanical device, medication, physical intervention, or hands-on hold to prevent an individual receiving services from moving his body to engage in a behavior that places him or others at imminent risk. There are three kinds of restraints:

1. Mechanical restraint means the use of a mechanical device that cannot be removed by the individual to restrict the individual's freedom of movement or functioning of a limb or portion of an individual's body when that behavior places him or others at imminent risk.

2. Pharmacological restraint means the use of a medication that is administered involuntarily for the emergency control of an individual's behavior when that individual's behavior places him or others at imminent risk and the administered medication is not a standard treatment for the individual's medical or psychiatric condition.

3. Physical restraint, also referred to as manual hold, means the use of a physical intervention or hands-on hold to prevent an individual from moving his body when that individual's behavior places him or others at imminent risk.

"Restraints for behavioral purposes" means using a physical hold, medication, or a mechanical device to control behavior or involuntarily restrict the freedom of movement of an individual in an instance when all of the following conditions are met: (i) there is an emergency; (ii) nonphysical interventions are not viable; and (iii) safety issues require an immediate response.

"Restraints for medical purposes" means using a physical hold, medication, or mechanical device to limit the mobility of an individual for medical, diagnostic, or surgical purposes, such as routine dental care or radiological procedures and related post-procedure care processes, when use of the restraint is not the accepted clinical practice for treating the individual's condition.

"Restraints for protective purposes" means using a mechanical device to compensate for a physical or cognitive deficit when the individual does not have the option to remove the device. The device may limit an individual's movement, for example, bed rails or a gerichair, and prevent possible harm to the individual or it may create a passive barrier, such as a helmet to protect the individual.

"Restriction" means anything that limits or prevents an individual from freely exercising his rights and privileges.

"Risk management" means an integrated system-wide program to ensure the safety of individuals, employees, visitors, and others through identification, mitigation, early detection, monitoring, evaluation, and control of risks.

"Root cause analysis" means a method of problem solving designed to identify the underlying causes of a problem. The focus of a root cause analysis is on systems, processes, and outcomes that require change to reduce the risk of harm.

"Screening" means the process or procedure for determining whether the individual meets the minimum criteria for initial assessment.

"Seclusion" means the involuntary placement of an individual alone in an area secured by a door that is locked or held shut by a staff person, by physically blocking the door, or by any other physical means so that the individual cannot leave the area.

"Serious incident" means any event or circumstance that causes or could cause harm to the health, safety, or well-being of an individual. The term "serious incident" includes death and serious injury.

"Level I serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider and does not meet the definition of a Level II or Level III serious incident. Level I serious incidents do not result in significant harm to individuals but may include events that result in minor injuries that do not require medical attention or events that have the potential to cause serious injury, even when no injury occurs.

"Level II serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider that results in a significant harm or threat to the health and safety of an individual that does not meet the definition of a Level III serious incident. "Level II serious incident" includes a significant harm or threat to the health or safety of others caused by an individual. Level II serious incidents include:

1. A serious injury;

2. An individual who is or was missing;

3. An emergency room visit;

4. An unplanned psychiatric or unplanned medical hospital admission of an individual receiving services other than licensed emergency services, except that a psychiatric admission in accordance with an individual's wellness plan shall not constitute an unplanned admission for the purposes of this chapter;

5. Choking incidents that require direct physical intervention by another person;

6. Ingestion of any hazardous material; or

7. A diagnosis of:

a. A decubitus ulcer or an increase in severity of level of previously diagnosed decubitus ulcer;

b. A bowel obstruction; or

c. Aspiration pneumonia.

"Level III serious incident" means a serious incident, whether or not the incident occurs while in the provision of a service or on the provider's premises, that results in:

1. Any death of an individual;

2. A sexual assault of an individual; or

3. A suicide attempt by an individual admitted for services, other than licensed emergency services, that results in a hospital admission.

"Serious injury" means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician, doctor of osteopathic medicine, physician assistant, or nurse practitioner.

"Service" means, as defined by § 37.2-403 of the Code of Virginia, (i) planned individualized interventions intended to reduce or ameliorate mental illness, developmental disabilities, or substance abuse (substance use disorders) through care, treatment, training, habilitation, or other supports that are delivered by a provider to individuals with mental illness, developmental disabilities, or substance abuse (substance use disorders). Services include outpatient services, intensive in-home services, medication-assisted opioid treatment services, inpatient psychiatric hospitalization, community gero-psychiatric residential services, assertive community treatment and other clinical services; day support, day treatment, partial hospitalization, psychosocial rehabilitation, and habilitation services; case management services; and supportive residential, special school, halfway house, in-home services, crisis stabilization, and other residential services; and (ii) planned individualized interventions intended to reduce or ameliorate the effects of brain injury through care, treatment, or other supports provided in residential services for persons with brain injury.

"Shall" means an obligation to act is imposed.

"Shall not" means an obligation not to act is imposed.

"Signed" or "signature" means a handwritten signature, an electronic signature, or a digital signature, as long as the signer showed clear intent to sign.

"Skills training" means systematic skill building through curriculum-based psychoeducational and cognitive-behavioral interventions. These interventions break down complex objectives for role performance into simpler components, including basic cognitive skills such as attention, to facilitate learning and competency.

"Sponsored residential home" means a service where providers arrange for, supervise, and provide programmatic, financial, and service support to families or persons (sponsors) providing care or treatment in their own homes for individuals receiving services.

"State methadone authority" means the Virginia Department of Behavioral Health and Developmental Services, which is authorized by the federal Center for Substance Abuse Treatment to exercise the responsibility and authority for governing the treatment of opiate addiction with an opioid drug.

"Substance abuse (substance use disorders)" means, as defined by § 37.2-100 of the Code of Virginia, the use of drugs enumerated in the Virginia Drug Control Act (§ 54.1-3400 et seq.) without a compelling medical reason or alcohol that (i) results in psychological or physiological dependence or danger to self or others as a function of continued and compulsive use or (ii) results in mental, emotional, or physical impairment that causes socially dysfunctional or socially disordering behavior; and (iii), because of such substance abuse, requires care and treatment for the health of the individual. This care and treatment may include counseling, rehabilitation, or medical or psychiatric care.

"Substance abuse intensive outpatient service" or "Level of care 2.1" means structured treatment provided to individuals who require more intensive services than is normally provided in an outpatient service but do not require inpatient services. Treatment consists primarily of counseling and education about addiction-related and mental health challenges delivered a minimum of nine to 19 hours of services per week for adults or six to 19 hours of services per week for children and adolescents. Within this level of care an individual's needs for psychiatric and medical services are generally addressed through consultation and referrals.

"Substance abuse outpatient service" or "Level of care 1.0" means a center-based substance abuse treatment delivered to individuals for fewer than nine hours of service per week for adults or fewer than six hours per week for adolescents on an individual, group, or family basis. Substance abuse outpatient services may include diagnosis and evaluation, screening and intake, counseling, psychotherapy, behavior management, psychological testing and assessment, laboratory and other ancillary services, medical services, and medication services. Substance abuse outpatient service includes substance abuse services or an office practice that provides professionally directed aftercare, individual, and other addiction services to individuals according to a predetermined regular schedule of fewer than nine contact hours a week. Substance abuse outpatient service also includes:

1. Substance abuse services operated by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia;

2. Substance abuse services contracted by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia; or

3. Substance abuse services that are owned, operated, or controlled by a corporation organized pursuant to the provisions of either Chapter 9 (§ 13.1-601 et seq.) or Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 of the Code of Virginia.

"Substance abuse partial hospitalization services" or "Level of care 2.5" means a short-term, nonresidential substance use treatment program provided for a minimum of 20 hours a week that uses multidisciplinary staff and is provided for individuals who require a more intensive treatment experience than intensive outpatient treatment but who do not require residential treatment. This level of care is designed to offer highly structured intensive treatment to those individuals whose condition is sufficiently stable so as not to require 24-hour-per-day monitoring and care, but whose illness has progressed so as to require consistent near-daily treatment intervention.

"Suicide attempt" means a nonfatal, self-directed, potentially injurious behavior with an intent to die as a result of the behavior regardless of whether it results in injury.

"Supervised living residential service" means the provision of significant direct supervision and community support services to individuals living in apartments or other residential settings. These services differ from supportive in-home service because the provider assumes responsibility for management of the physical environment of the residence, and staff supervision and monitoring are daily and available on a 24-hour basis. Services are provided based on the needs of the individual in areas such as food preparation, housekeeping, medication administration, personal hygiene, treatment, counseling, and budgeting.

"Supportive in-home service" (formerly supportive residential) means the provision of community support services and other structured services to assist individuals, to strengthen individual skills, and that provide environmental supports necessary to attain and sustain independent community residential living. Services include drop-in or friendly-visitor support and counseling to more intensive support, monitoring, training, in-home support, respite care, and family support services. Services are based on the needs of the individual and include training and assistance. These services normally do not involve overnight care by the provider; however, due to the flexible nature of these services, overnight care may be provided on an occasional basis.

"Systemic deficiency" means violations of regulations documented by the department that demonstrate multiple or repeat defects in the operation of one or more services.

"Telehealth" shall have the same meaning as "telehealth services" in § 32.1-122.03:1 of the Code of Virginia.

“Telemedicine" shall have the same meaning as "telemedicine services" in § 38.2-3418.16 of the Code of Virginia.

"Therapeutic day treatment for children and adolescents" means a treatment program that serves (i) children and adolescents from birth through 17 years of age and under certain circumstances up to 21 years of age with serious emotional disturbances, substance use, or co-occurring disorders or (ii) children from birth through seven years of age who are at risk of serious emotional disturbance, in order to combine psychotherapeutic interventions with education and mental health or substance abuse treatment. Services include: evaluation; medication education and management; opportunities to learn and use daily living skills and to enhance social and interpersonal skills; and individual, group, and family counseling.

"Time out" means the involuntary removal of an individual by a staff person from a source of reinforcement to a different, open location for a specified period of time or until the problem behavior has subsided to discontinue or reduce the frequency of problematic behavior.

"Volunteer" means a person who, without financial remuneration, provides services to individuals on behalf of the provider.

"Written," "writing," and "in writing" include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 of the Code of Virginia is or is not affixed.

12VAC35-105-590. Provider staffing plan.

A. The provider shall implement a written staffing plan that includes the types, roles, and numbers of employees and contractors that are required to provide the service. This staffing plan shall reflect the:

1. Needs of the individuals receiving services;

2. Types of services offered;

3. Service description;

4. Number of individuals to receive services at a given time; and

5. Adequate number of staff required to safely evacuate all individuals during an emergency.

B. The provider shall develop a written transition staffing plan for new services, added locations, and changes in capacity.

C. The provider shall meet the following staffing requirements related to supervision.

1. The provider shall describe how employees, volunteers, contractors, and student interns will be supervised in the staffing plan and how that supervision will be documented.

2. Supervision of employees, volunteers, contractors, and student interns shall be provided by persons who have experience in working with individuals receiving services and in providing the services outlined in the service description.

3. Supervision shall be appropriate to the services provided and the needs of the individual. Supervision shall be documented.

4. Supervision shall include responsibility for approving assessments and individualized services plans, as appropriate. This responsibility may be delegated to an employee or contractor who meets the qualification for supervision as defined in this section.

5. Supervision of mental health, substance abuse, or co-occurring services that are of an acute or clinical nature such as outpatient, inpatient, intensive in-home, or day treatment shall be provided by a licensed mental health professional or a mental health professional who is license-eligible and registered with a board of the Department of Health Professions.

6. Supervision of mental collaborative behavioral health, substance abuse, or co-occurring services that are of a supportive or maintenance nature, such as psychosocial rehabilitation or mental health supports, shall be provided by (i) a QMHP-A, registered QMHP who has practiced for three years and completed the supervisor training required by the Department of Health Professions; (ii) a licensed mental health professional, who has completed the supervisor training required by the Department of Health Professions; or (iii) a mental health professional person under supervision who is license-eligible and, registered with a board of the Board of Counseling, Board of Psychology, or Board of Social Work, and has completed the supervisor training required by the Department of Health Professions. An individual A registered QMHP who meets these requirements is a QMHP-T may supervise activities within the QMHP's scope not provide this type of. This supervision must occur under the broader required direction of and in collaboration with the LMHP or licensed eligible mental health professional.

7. Supervision of developmental services shall be provided by a person with at least one year of documented experience working directly with individuals who have developmental disabilities and holds at least a bachelor's degree in a human services field such as sociology, social work, special education, rehabilitation counseling, nursing, or psychology. Experience may be substituted for the education requirement.

8. Supervision of brain injury services shall be provided, at a minimum, by a clinician in the health professions field who is trained and experienced in providing brain injury services to individuals who have a brain injury diagnosis including (i) a doctor of medicine or osteopathy licensed in Virginia; (ii) a psychiatrist who is a doctor of medicine or osteopathy specializing in psychiatry and licensed in Virginia; (iii) a psychologist who has a master's degree in psychology from a college or university with at least one year of clinical experience; (iv) a social worker who has a bachelor's degree in human services or a related field (social work, psychology, psychiatric evaluation, sociology, counseling, vocational rehabilitation, human services counseling, or other degree deemed equivalent to those described) from an accredited college or university with at least two years of clinical experience providing direct services to individuals with a diagnosis of brain injury; (v) a Certified Brain Injury Specialist; (vi) a registered nurse licensed in Virginia with at least one year of clinical experience; or (vii) any other licensed rehabilitation professional with one year of clinical experience.

D. The provider shall employ or contract with persons with appropriate training, as necessary, to meet the specialized needs of and to ensure the safety of individuals receiving services in residential services with medical or nursing needs; speech, language, or hearing problems; or other needs where specialized training is necessary.

E. Providers of brain injury services shall employ or contract with a neuropsychologist or licensed clinical psychologist specializing in brain injury to assist, as appropriate, with initial assessments, development of individualized services plans, crises, staff training, and service design.

F. Staff in direct care positions providing brain injury services shall have at least a high school diploma and two years of experience working with individuals with disabilities or shall have successfully completed an approved training curriculum on brain injuries within six months of employment.

12VAC35-105-1370. Treatment team and staffing plan.

A. ACT services are delivered by interdisciplinary teams.

1. ACT teams shall have sufficient staffing composition to meet the varying needs of individuals served by the team as required by this section. Each ACT team shall meet the following minimum position and staffing requirements:

a. Team leader. There shall be one full-time LMHP with three years of work experience in the provision of mental health services to adults with serious mental illness; a resident who is under the supervision of a licensed professional counselor in accordance with 18VAC115-20-10 and who is registered with the Virginia Board of Counseling with three years of experience in the provision of mental health services to adults with serious mental illness; a resident in psychology who is under supervision of a licensed clinical psychologist and is registered with the Virginia Board of Psychology in accordance with 18VAC125-20-10 and who has three years of experience in the provision of mental health services to adults with serious mental illness; a supervisee, in social work who is under the supervision of a licensed clinical social worker and who is registered with the Virginia Board of Social Work in accordance with 18VAC140-20-10 and who has three years of experience in the provision of mental health services to adults with serious mental illness; or one full-time registered QMHP-A QMHP with at least three years of experience in the provision of mental collaborative behavioral health services to adults with serious mental illness who was employed by the provider as a team leader prior to July 1, 2020. The team leader shall oversee all aspects of team operations and shall provide direct services to individuals in the community.

b. Nurses. ACT nurses shall be full-time employees or contractors with the following minimum qualifications: a registered nurse shall have one year of experience in the provision of mental health services to adults with serious mental illness, or a licensed practical nurse shall have three years of experience in the provision of mental health services to adults with serious mental illness.

(1) Small ACT teams shall have at least one full-time nurse, who shall be either an RN or an LPN;

(2) Medium ACT teams shall have at least one full-time RN and at least one additional full-time nurse who shall be an LPN or RN; and

(3) Large ACT teams shall have at least one full-time RN and at least two additional full-time nurses who shall be LPNs or RNs.

c. Vocational specialist. There shall be one or more full-time vocational specialist, who shall be a registered QMHP with demonstrated expertise in vocational services through experience or education.

d. Co-occurring disorder specialist. There shall be one or more full-time co-occurring disorder specialists, who shall be a LMHP; a resident who is under the supervision of a licensed professional counselor in accordance with 18VAC115-20-10 and who is registered with the Virginia Board of Counseling; a resident in psychology who is under supervision of a licensed clinical psychologist and is registered with the Virginia Board of Psychology in accordance with 18VAC125-20-10; a supervisee in social work who is under the supervision of a licensed clinical social worker and who is registered with the Virginia Board of Social Work in accordance with 18VAC140-20-10; registered QMHP; or a certified substance abuse specialist (CSAC) with training or experience working with adults with co-occurring serious mental illness and substance use disorder.

e. ACT peer specialists. There shall be one full-time equivalent peer recovery specialists who is or has been a recipient of mental health services for severe and persistent mental illness. The peer specialist shall be certified as a peer recovery specialist in accordance with 12VAC35-250, or shall become certified in the first year of employment. The peer specialist shall be a fully integrated team member who provides peer support directly to individuals and provides leadership to other team members in understanding and supporting each individual's recovery goals.

f. Program assistant. There shall be one full-time or two part-time program assistants with skills and abilities in medical records management who shall operate and coordinate the management information system, maintain accounts and budget records for individual and program expenditures, and perform administrative support activities.

g. Psychiatric care provider. There shall be one physician who is board certified in psychiatry or who is board eligible in psychiatry and is licensed to practice medicine in Virginia or a psychiatric nurse practitioner practicing within the scope of practice as defined in 18VAC90-30-120. An equivalent ratio of 16 hours of psychiatric time per 50 individuals served must be maintained. The psychiatric care provider shall be a fully integrated team member who attends team meetings and actively participates in developing and implementing each individual ISP.

h. Generalist clinical staff. There shall be additional clinical staff with the knowledge, skill, and ability required, based on the population and age of individuals being served, to carry out rehabilitation and support functions, at least 50% of whom shall be LMHPs, QMHP-As QMHPs, QMHP-Ts, or QPPMHs.

(1) Small ACT teams shall have at least one generalist clinical staff;

(2) Medium ACT teams shall have at least two generalist clinical staff; and

(3) Large ACT teams shall have at least three generalist clinical staff.

2. Staff-to-individual ratios for ACT Teams:

a. Small ACT teams shall maintain a caseload of no more than 50 individuals and shall maintain at least one staff member per eight individuals, in addition to a psychiatric care provider and a program assistant.

b. Medium ACT teams shall maintain a caseload of no more than 74 individuals and shall maintain at least one staff member per nine individuals, in addition to a psychiatric care provider and a program assistant.

c. Large ACT teams shall maintain a caseload of no more than 120 individuals and shall maintain at least one staff member per nine individuals, in addition to a psychiatric care provider and a program assistant.

B. ACT teams shall be available to individuals 24 hours per day and shall operate a minimum of 12 hours each weekday and eight hours each weekend day and each holiday.

C. The ACT team shall make crisis services directly available 24 hours a day but may arrange coverage through another crisis services provider if the team coordinates with the crisis services provider daily.

D. The ACT team shall operate an after-hours on-call system and shall be available to individuals by telephone and in person when needed as determined by the team.

E. ACT teams in development may submit a transition plan to the department for approval that will allow for "start-up" when newly forming teams are not in full compliance with the ACT model relative to staffing patterns and individuals receiving services capacity. Approved transition plans shall be limited to a six-month period.

12VAC35-105-1840. Staffing.

A. Crisis receiving centers shall meet the following staffing requirements:

1. A licensed psychiatrist or nurse practitioner shall be available to the program, either in person or via telemedicine, 24 hours per day, seven days per week;

2. An LMHP, LMHP-R, LMHP-RP, or LMHP-S shall be available for conducting assessments;

3. Nursing services shall be provided by a registered nurse (RN) or a licensed practical nurse (LPN). Nursing staff shall be available 24 hours per day, in person. LPNs shall work directly under the supervision of a physician, nurse practitioner, or RN; and

4. Medical, psychological, psychiatric, laboratory, and toxicology services shall be available by consult or referral.

B. Community-based crisis stabilization shall meet the following staffing requirements:

1. An LMHP, LMHP-R, LMHP-RP, or LMHP-S shall conduct assessments and, for any CEPP not authored by an LMHP, review, and if the LMHP, LMHP-R, LMHP-RP, or LMHP-S agrees, sign the CEPP;

2. All staff are required to utilize a working global positioning system (GPS) enabled smart phone or GPS-enabled tablet;

3. Any time staff are dispatched for the provision of mobile crisis response, the provider shall dispatch a team that meets at least one of the following staffing composition requirements:

a. If a single person is dispatched for mobile crisis response:

(1) One licensed staff member; or

(2) One certified pre-screener.

b. If the provider dispatches a team for mobile crisis, the team shall include:

(1) One licensed staff member and one peer recovery specialist (PRS);

(2) One licensed staff member and one certified substance abuse counselor (CSAC), CSAC-supervisee, or certified substance abuse counselor assistant (CSAC-A);

(3) One licensed staff member and one QMHP (QMHP-A, QMHP-C, or QMHP-T);

(4) One PRS, and either one QMHP (QMHP-A or QMHP-C) or one CSAC or CSAC-supervisee. A licensed staff member shall be required to be available via telemedicine for the assessment;

(5) One CSAC-A, and either one QMHP (QMHP-A or QMHP-C) or one CSAC or CSAC-supervisee. A licensed staff member shall be required to be available via telemedicine for the assessment;

(6) Two QMHPs (QMHP-A, QMHP-C, or one QMHP and one QMHP-T; however, the team shall not be two QMHP-Ts). A licensed staff member shall be required to be available via telemedicine for the assessment;

(7) Two CSACs. A licensed staff member shall be required to be available via telemedicine for the assessment; or

(8) One QMHP (QMHP-A or QMHP-C), and one CSAC or CSAC-supervisee. A licensed staff member shall be required to be available via telemedicine for the assessment.

C. Crisis stabilization units shall meet the following staffing requirements:

1. A licensed psychiatrist or psychiatric nurse practitioner shall be available 24 hours per day, seven days per week either in person or via telemedicine;

2. An LMHP, LMHP-R, LMHP-RP, or LMHP-S shall be available to conduct an assessment;

3. Nursing services shall be provided by either an RN or an LPN. Nursing staff shall be available in person 24 hours per day, seven days per week. LPNs shall work directly under the supervision of a physician, nurse practitioner, or an RN; and

4. Medical, psychological, psychiatric, laboratory, and toxicology services shall be available by consult or referral.

D. REACH shall meet the staffing standards specific to its licensed services. The service shall also meet the REACH standards. A REACH crisis therapeutic home shall meet both the crisis stabilization unit standards and the REACH standards.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF DENTISTRY

Reproposed Regulation

Title of Regulation: 18VAC60-21. Regulations Governing the Practice of Dentistry (amending 18VAC60-21-10; adding 18VAC60-21-165).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Public Hearing Information:

June 13, 2025 - 9:05 a.m. - Department of Health Professions, Perimeter Building, 9960 Mayland Drive, Second Floor, Board Room Four, Henrico, VA 23233.

Public Comment Deadline: June 18, 2025.

Agency Contact: Jamie Sacksteder, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4581, FAX (804) 698-4266, or email jamie.sacksteder@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Dentistry the authority to promulgate regulations to administer the regulatory system. Section 54.1-2708.5 of the Code of Virginia provides for digital scans for use in the practice of dentistry and the practice of digital scan technicians.

Purpose: Chapters 37 and 220 of the 2020 Acts of the Assembly set out the safeguards that must be in place for the practice of teledentistry, including the training and supervision of a digital scan technician if used in the practice. The purpose of the regulation is to specify the responsibility of the dentist for such training and supervision in order to protect the safety and health of patients receiving dental care via teledentistry.

Substance: The proposed regulation (i) establishes requirements for a training program approved by the board to take digital scans of intraoral and extraoral hard and soft tissues for use in teledentistry; (ii) sets out the responsibilities of the dentist for the practice of teledentistry and the training and supervision of a digital scan technician; and (iii) establishes requirements for records that may be requested by the board.

Issues: The primary advantage to private citizens is that digital scan technicians will be required to have board-approved training prior to performing digital scans on a patient, thereby ensuring the safety of patients who receive digital dental scans outside a dentist's office. There are no disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Chapters 37 and 220 (identical bills), of the 2020 Acts of Assembly,² the Board of Dentistry (board) proposes to require dentists to ensure that digital scan technicians that engage in the practice of teledentistry are trained and supervised. The legislation defines teledentistry as "the delivery of dentistry between a patient and a dentist who holds a license to practice dentistry issued by the Board through the use of telehealth systems and electronic technologies or media, including interactive, two-way audio or video."

Background. According to the Department of Health Professions (DHP), complaints were expressed by Virginia residents who were improperly fitted for dental appliances provided by dental improvement companies. Dental scans taken of a patient's oral cavity by a digital scan technician serve as the blueprint for the fitting and fabricating of dental appliances. Improper or inaccurate dental scans often result in ill-fitting dental appliances, causing pain and discomfort. In response to these concerns, the Virginia General Assembly enacted Chapters 37 and 220 of the 2020 Acts of Assembly. The legislation requires digital scan technicians to practice under the supervision of a dentist licensed in Virginia and to complete training approved by the board. Although the legislation authorizes the board to approve training programs for digital scan technicians and require dentists to ensure technicians have received appropriate training, it does not authorize the direct regulation of digital scan technicians. According to DHP, "the board does not have the statutory authority to license, certify, or register digital scan technicians. The [Virginia] Code requires the board to approve training and does not grant authority to regulate digital scan technicians." Although the legislation did not authorize the board to regulate dental improvement companies or digital scan technicians, the board is authorized to regulate dentists. Accordingly, the board proposes to require dentists to supervise the technicians and ensure that technicians complete training offered by any of the following: (i) any sponsor listed in 18VAC60-21-250 C;³ (ii) the American Association of Orthodontists and constituent and component or branch associations, including the Virginia Association of Orthodontists; or (iii) a training program certified by the manufacturer of the digital scanner.

Estimated Benefits and Costs: As evidenced by the consumer complaints the board has received, the use of digital scans in the dental industry is not new, though DHP does not have data to assess its extent. For a variety of concerns such as consumer satisfaction, liability, and productivity, it would be reasonable to assume that dentists and manufacturers of the scans have an incentive to ensure that such technicians are equipped with proper training. Thus, it is likely that most digital scan technicians are already provided with some basic skills. The main purpose and effect of the legislation and the proposed regulatory language would therefore be to strengthen enforcement. Currently, the board does not have authority to take action against dentists who may employ technicians who are not trained in the practice of teledentistry.⁴ To the extent the proposed changes deter unscrupulous or untrained individuals from participating in teledentistry, health and safety risks to patients should be mitigated to some degree. The proposed language does not specify the scope of training, only that the technician receive training provided by one of the entities listed and works under the supervision of the dentist. Thus, there appears to be flexibility in designing the contents, length, and the method of training, which would ultimately determine its cost. It appears the most common form of training is provided by the manufacturers, which is offered online free of charge to promote their equipment. The board is proposing to authorize this training and also the two additional sources noted. There are no fees associated with this action, and no requirement for a scan technician to attend subsequent digital scan training sessions after initial training is complete. However, the board currently does not have an estimate on what the training could cost.

Businesses and Other Entities Affected. The proposed amendments directly affect dentists who employ digital scan technicians in the practice of teledentistry and indirectly affect the technicians. The board does not have information on the number of entities that are likely to be affected by the regulatory change. The legislation requires a Virginia license for any dentist who directs the taking of a digital scan via teledentistry, but there is no identifiable license for teledentistry. While the board does not have specific data on dentists practicing by teledentistry, the board notes that there was a substantial increase in the number of applicants for licensure from out-of-state in fiscal year (FY) 2021; in FY 2020, there were 184 applicants from out-of-state and in FY 2021 there were 259 such applicants. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ 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. The main effect of the proposed changes is to strengthen enforcement. Thus, no adverse economic impact⁶ on any entities is indicated.

Small Businesses⁷ Affected.⁸ Although the proposed regulation applies to any dentist employing digital scan technicians in the practice of teledentistry, the board reports that most dentists who are affected would likely be employees of a national corporation. No adverse economic impact on small businesses is indicated.

Localities⁹ Affected.¹⁰ No effect on localities is expected.

Projected Impact on Employment. The proposed changes should deter untrained individuals from participating in teledentistry. Otherwise, no effect on total employment is expected.

Effects on the Use and Value of Private Property. The proposed changes do not appear to have an effect on the use and value of private property or the real estate development costs.

_____________________________

¹ Section 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.

² https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0037 & https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0220.

³ https://law.lis.virginia.gov/admincode/title18/agency60/chapter21/section250/.

⁴ It should be noted that the scope of the proposed changes is limited to use of digital scans in the practice of teledentistry (i.e., taking of digital dental scans outside of a dentist's office). If the digital scans are taken at a dentist office, the board already has authority to take action against the dentist.

⁵ Pursuant 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.

⁶ 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.

⁷ Pursuant 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."

⁸ If 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.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Dentistry concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Chapters 37 and 220 of the 2020 Acts of Assembly, the proposed amendments (i) include in definitions aspects of digital scan technician practice as used in teledentistry, (ii) establish requirements for the training and practice of digital scan technicians, and (iii) provide the responsibilities, including documentation, of a dentist providing direction to a digital scan technician.

18VAC60-21-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2700 of the Code of Virginia:

"Appliance"

"Board"

"Dental hygiene"

"Dental hygienist"

"Dentist"

"Dentistry"

"Digital scan"

"Digital scan technician"

"Digital work order"

"License"

"Maxillofacial"

"Oral and maxillofacial surgeon"

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

"AAOMS" means the American Association of Oral and Maxillofacial Surgeons.

"ADA" means the American Dental Association.

"Advertising" means a representation or other notice given to the public or members thereof, directly or indirectly, by a dentist on behalf of himself the dentist, the dentist's facility, the dentist's partner or associate, or any dentist affiliated with the dentist or the dentist's facility by any means or method for the purpose of inducing the purchase, sale, or use of dental methods, services, treatments, operations, procedures, or products, or to promote continued or increased use of such dental methods, treatments, operations, procedures, or products.

"CODA" means the Commission on Dental Accreditation of the American Dental Association.

"Dental assistant I" means any unlicensed person under the direction of a dentist or a dental hygienist who renders assistance for services provided to the patient as authorized under this chapter but shall does not include an individual serving in purely an administrative, secretarial, or clerical capacity.

"Dental assistant II" means a person under the direction and direct supervision of a dentist who is registered by the board to perform reversible, intraoral procedures as specified in 18VAC60-21-150 and 18VAC60-21-160.

"Mobile dental facility" means a self-contained unit in which dentistry is practiced that is not confined to a single building and can be transported from one location to another.

"Nonsurgical laser" means a laser that is not capable of cutting or removing hard tissue, soft tissue, or tooth structure.

"Portable dental operation" means a nonfacility in which dental equipment used in the practice of dentistry is transported to and utilized on a temporary basis at an out-of-office location, including patient homes, schools, nursing homes, or other institutions.

"Radiographs" means intraoral and extraoral radiographic images of hard and soft tissues used for purposes of diagnosis.

C. The following words and terms relating to supervision as used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Direct supervision" means that the dentist examines the patient and records diagnostic findings prior to delegating restorative or prosthetic treatment and related services to a dental assistant II for completion the same day or at a later date. The dentist prepares the tooth to be restored and remains immediately available in the office to the dental assistant II for guidance or assistance during the delivery of treatment and related services. The dentist examines the patient to evaluate the treatment and services before the patient is dismissed.

"Direction" means the level of supervision (i.e., immediate, direct, indirect, or general) that a dentist is required to exercise with a dental hygienist, a dental assistant I, a dental assistant II, or a certified registered nurse anesthetist or the level of supervision that a dental hygienist is required to exercise with a dental assistant to direct and oversee the delivery of treatment and related services. For the purpose of a digital scan technician, "direction" means the written or electronic instructions provided by a dentist to a digital scan technician in the form of a work order for a digital scan of a patient and the dentist's specified availability to consult with a digital scan technician while the scan is taken.

"General supervision" means that a dentist completes a periodic comprehensive examination of the patient and issues a written order for hygiene treatment that states the specific services to be provided by a dental hygienist during one or more subsequent appointments when the dentist may or may not be present. Issuance of the order authorizes the dental hygienist to supervise a dental assistant performing duties delegable to dental assistants I.

"Immediate supervision" means the dentist is in the operatory to supervise the administration of sedation or provision of treatment.

"Indirect supervision" means the dentist examines the patient at some point during the appointment and is continuously present in the office to advise and assist a dental hygienist, a dental assistant, or a certified registered nurse anesthetist who is (i) delivering hygiene treatment, (ii) preparing the patient for examination or treatment by the dentist, (iii) preparing the patient for dismissal following treatment, or (iv) administering topical local anesthetic, sedation, or anesthesia as authorized by law or regulation.

"Remote supervision" means that a supervising dentist is accessible and available for communication and consultation with a dental hygienist during the delivery of dental hygiene services, but such dentist may not have conducted an initial examination of the patients who are to be seen and treated by the dental hygienist and may not be present with the dental hygienist when dental hygiene services are being provided. For the purpose of practice by a public health dental hygienist, "remote supervision" means that a public health dentist has regular, periodic communications with a public health dental hygienist regarding patient treatment, but such dentist may not have conducted an initial examination of the patients who are to be seen and treated by the dental hygienist and may not be present with the dental hygienist when dental hygiene services are being provided. For the purpose of supervision of a digital scan technician, remote supervision means that a directing dentist is accessible and available for communication and consultation in the practice of teledentistry.

D. The following words and terms relating to sedation or anesthesia as used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Analgesia" means the diminution or elimination of pain.

"Continual" or "continually" means repeated regularly and frequently in a steady succession.

"Continuous" or "continuously" means prolonged without any interruption at any time.

"Deep sedation" means a drug-induced depression of consciousness during which patients cannot be easily aroused but respond purposefully following repeated or painful stimulation. Reflex withdrawal from a painful stimulus is not considered a purposeful response. The ability to independently maintain ventilatory function may be impaired. Patients may require assistance in maintaining a patent airway, and spontaneous ventilation may be inadequate. Cardiovascular function is usually maintained.

"General anesthesia" means a drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation. The ability to independently maintain ventilator function is often impaired. Patients often require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function may be impaired.

"Inhalation" means a technique of administration in which a gaseous or volatile agent, including nitrous oxide, is introduced into the pulmonary tree and whose primary effect is due to absorption through the pulmonary bed.

"Inhalation analgesia" means the inhalation of nitrous oxide and oxygen to produce a state of reduced sensation of pain with minimal alteration of consciousness.

"Local anesthesia" means the elimination of sensation, especially pain, in one part of the body by the topical application or regional injection of a drug.

"Minimal sedation" means a drug-induced state during which patients respond normally to verbal commands. Although cognitive function and physical coordination may be impaired, airway reflexes and ventilator and cardiovascular functions are unaffected. Minimal sedation includes the diminution or elimination of anxiety through the use of pharmacological agents in a dosage that does not cause depression of consciousness and includes "inhalation analgesia" when used in combination with any such sedating agent administered prior to or during a procedure.

"Moderate sedation" means a drug-induced depression of consciousness, during which patients respond purposefully to verbal commands, either alone or accompanied by light tactile stimulation. Reflex withdrawal from a painful stimulus is not considered a purposeful response. No interventions are required to maintain a patent airway, and spontaneous ventilation is adequate. Cardiovascular function is usually maintained.

"Monitoring" means to observe, interpret, assess, and record appropriate physiologic functions of the body during sedative procedures and general anesthesia appropriate to the level of sedation as provided in Part VII (18VAC60-21-260 et seq.) of this chapter.

"Parenteral" means a technique of administration in which the drug bypasses the gastrointestinal tract (i.e., intramuscular, intravenous, intranasal, submucosal, subcutaneous, or intraocular).

"Provide" means, in the context of regulations for moderate sedation or deep sedation or general anesthesia, to supply, give, or issue sedating medications. A dentist who does not hold the applicable permit cannot be the provider of moderate sedation or deep sedation or general anesthesia.

"Titration" means the incremental increase in drug dosage to a level that provides the optimal therapeutic effect of sedation.

"Topical oral anesthetic" means any drug, available in creams, ointments, aerosols, sprays, lotions, or jellies, that can be used orally for the purpose of rendering the oral cavity insensitive to pain without affecting consciousness.

"Vital signs" means clinical measurements, specifically pulse rate, respiration rate, and blood pressure, that indicate the state of a patient's essential body functions.

18VAC60-21-165. Delegation to digital scan technicians for use in teledentistry.

A. A dentist who delegates the taking of a digital scan by a digital scan technician shall ensure that the technician has a certificate of completion from a training program approved by the board that includes:

1. Training in prepping the patient, taking and evaluating the quality of a digital scan, safety protocols, and dental terminology given by a sponsor approved for continuing education as set forth in 18VAC60-21-250 C; and

2. In-office training by the manufacturer on the proper operation of the digital scanner that includes orientation to the process and protocols for taking and evaluating digital scans for fabrication of a restoration or an appliance.

B. The dentist who directs a digital scan technician to take digital scans shall establish:

1. Written or electronic protocols for the practice of teledentistry in compliance with § 54.1-2711 B and C of the Code of Virginia;

2. Written or electronic protocols and procedures for the performance of digital scans by digital scan technicians in compliance with § 54.1-2708.5 B of the Code of Virginia; and

3. A written or electronic work order for a digital scan that includes the required components of a dental work order.

C. The dentist who directs a digital scan technician to take digital scans shall be:

1. Licensed by the board to practice dentistry in the Commonwealth;

2. Accessible and available for communication and consultation with the digital scan technician at all times during the patient interaction; and

3. Ultimately responsible for communicating with the patient or the patient's representative the specific treatment the patient will receive, which aspects of treatment will be delegated to qualified personnel, and the direction required for such treatment, in accordance with this chapter and the Code of Virginia.

D. The directing dentist shall make available to the board any requested:

1. Protocols and procedures as specified in subsection B of this section;

2. Evidence that the digital scan technician has complied with the training requirements of subsection A of this section; and

3. Written or electronic work orders used for digital scans.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-110. Regulations Governing the Practice of Licensed Acupuncturists (amending 18VAC85-110-80, 18VAC85-110-145, 18VAC85-110-176, 18VAC85-110-177; repealing 18VAC85-110-20, 18VAC85-110-179, 18VAC85-110-181).

Statutory Authority: §§ 54.1-2400 and 54.1-2956.9 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Medicine to promulgate regulations to administer the regulatory system. Section 54.1-2956.10 of the Code of Virginia requires the board to regulate the practice and licensure of acupuncturists.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protects the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed acupuncturists.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments was the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the changes remove or modify provisions that are redundant of statutory requirements, are not related to the practice of acupuncture, are outdated, or are otherwise ineffectual.

Substance: The amendments repeal redundant statutory provisions in regulation, including provisions related to (i) public participation; (ii) outdated descriptions of national exams; (iii) fees related to voluntary practice by out-of-state licensees; (iv) the handling of patient records that were intended to cover physicians; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) communications to patients; (vii) advertising restrictions; and (viii) solicitation or remuneration in exchange for referral.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to delete outdated or redundant provisions and clarify some provisions to be consistent with current practice.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove outdated language and references to the Code of Virginia that are redundant, and to update certain provisions so that they accurately reflect current practice.² The most substantive changes are summarized as follows: 18VAC85-110-80 contains examination requirements for licensure. The Point Location Examination would be removed from this section since this examination is no longer given. 18VAC85-110-145 contains the registration requirements for voluntary practice by out-of-state trainers, including a $10 fee. The board proposes to remove this fee. 18VAC85-110-176 contains requirements pertaining to patient records. These requirements include maintaining records for six years following the last patient encounter, except in specific cases; informing patients of the timeframe for record retention and destruction; and only destroying records in a manner that protects patient confidentiality. These requirements would be removed and replaced with a more general requirement that practitioners maintain a patient record in accordance with policies and procedures of the employing entity. For practitioners who are sole proprietors, the proposed text would require them to develop policies for the maintenance of patient records and adhere to these policies. 18VAC85-110-179 (Advertising ethics) and 18VAC85-110-181 (Solicitation or remuneration in exchange for referral) are repealed in entirety. Section 54.1- 2915 A 1 of the Code of Virginia makes fraud or deceit in the practice of any branch of the healing arts unprofessional conduct and as such, subject to disciplinary action by the board. The language in 18VAC85-110-181 repeats language already contained in § 54.1-2962.1 of the Code of Virginia. The remaining changes would be to remove references to other chapters of the Virginia Administrative Code or references to statute.³

Estimated Benefits and Costs: According to the Department of Health Professions (DHP), the $10 fee for an individual licensed out-of-state to register for voluntary practice itself costs more administratively to collect than $10. Thus, eliminating the fee would be beneficial in that it would both reduce the cost for out-of-state licensed acupuncturists volunteering in Virginia and net costs for the board. The proposed changes pertaining to the retention of patient records in 18VAC85-110-176 are intended to reduce the burden on practitioners. DHP reports that the current requirements were developed by the board in the early 2000s specifically for physicians (MDs and DOs) but were also applied to other professions, including athletic training and acupuncture.⁴ The board now finds these requirements to be too burdensome for licensed acupuncturists, because they do not handle the same type of records that are maintained by physicians.⁵ However, DHP states that licensed acupuncturists would still be bound by the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA), which sets a floor on the recordkeeping requirements for entities that employ licensed acupuncturists or for licensed acupuncturists who are sole proprietors. Thus, removing the more restrictive requirements in the regulation would not compromise patient privacy. Accordingly, licensed acupuncturists who are sole proprietors may face a one-time cost in developing their own HIPAA-compliant recordkeeping policy, but would also benefit to the extent that the proposed changes reduce their ongoing costs of record retention; thus, their net costs are not expected to increase. DHP does not track the number of licensed acupuncturists who are self-employed or currently subject to the more restrictive requirements; thus, it is unclear how many practitioners would be affected. Removing the other instances of text that either refers to another regulation, is obsolete (no longer applicable), is repetitive of other regulatory text, or is duplicative of statute would have no impact on requirements for licensed acupuncturists or the public.

Businesses and Other Entities Affected. The proposed amendments affect the 599 acupuncturists licensed in the Commonwealth,⁶ as well as their patients and employers. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ 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. The proposed changes are not anticipated to create any net new costs. Thus, an adverse impact is not indicated.

Small Businesses⁸ Affected.⁹ DHP does not track the number of licensed acupuncturists who are sole proprietors. Therefore, based upon the available data it is not clear if the proposed amendments adversely affect small businesses.

Localities¹⁰ Affected.¹¹ The proposed amendments do not appear to disproportionally affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments are not likely to have a substantive impact on total employment.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the value of private property. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 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.

² See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2152.

³ See the Agency Background Document (ABD), pp. 7-9 for the specific references that would be removed: https://townhall.virginia.gov/l/GetFile.cfm?File=26\6119\9838\AgencyStatement_DHP_9838_v2.pdf.

⁴ The board proposes to similarly repeal these requirements for athletic trainers as well. See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9837.

⁵ ABD, p. 7.

⁶ Source: https://www.dhp.virginia.gov/about/stats/2023Q4/04CurrentLicenseCountQ4FY2023.pdf.

⁷ Pursuant 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.

⁸ Pursuant 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."

⁹ If 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.

¹⁰ "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.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

As a result of a 2022 periodic review, the amendments repeal redundant statutory provisions in regulation, including provisions related to (i) public participation; (ii) outdated descriptions of national exams; (iii) fees related to voluntary practice by out-of-state licensees; (iv) the handling of patient records that were intended to cover physicians; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) communications to patients; (vii) advertising restrictions; and (viii) solicitation or remuneration in exchange for referral.

18VAC85-110-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-110-80. Examination requirements for licensure.

The examination requirements for licensure shall consist of:

1. Passing the NCCAOM comprehensive written examination, resulting in current, active certification by the NCCAOM at the time the application is filed with the board; 2. Passing the Point Location Examination; and

3. 2. Completing the CNT course as administered by the CCAHM.

18VAC85-110-145. Registration for voluntary practice by out-of-state licensees.

Any licensed acupuncturist who does not hold a license to practice in Virginia and who seeks registration to practice under subdivision 27 of § 54.1-2901 of the Code of Virginia on a voluntary basis under the auspices of a publicly supported, all volunteer, nonprofit organization that sponsors the provision of health care to populations of underserved people shall:

1. File an application for registration on a form provided by the board at least five business days prior to engaging in such practice;

2. Provide a complete record of professional licensure in each state in which he the acupuncturist has held a license and a copy of any current license;

3. Provide the name of the nonprofit organization, and the dates and location of the voluntary provision of services; 4. Pay a registration fee of $10; and

5. 4. Provide a notarized statement from a representative of the nonprofit organization attesting to its compliance with provisions of subdivision 27 of § 54.1-2901 of the Code of Virginia.

18VAC85-110-176. Patient records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of patient records.

B. Practitioners shall provide patient records to another practitioner or to the patient or his personal representative in a timely manner and in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. B. Practitioners shall properly manage patient records and shall maintain timely, accurate, legible and complete patient records.

D. C. Practitioners shall maintain a patient record for a minimum of six years following the last patient encounter with the following exceptions: 1. Records of a minor child, including immunizations, shall be maintained until the child reaches the age of 18 or becomes emancipated, with a minimum time for record retention of six years from the last patient encounter regardless of the age of the child; 2. Records that have previously been transferred to another practitioner or health care provider or provided to the patient or his personal representative; or 3. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time in accordance with policies and procedures of the employing entity. In the event the practitioner is a sole proprietor, the practitioner shall develop policies for maintenance of patient records and adhere to those policies.

E. From October 19, 2005, practitioners shall post information or in some manner inform all patients concerning the time frame for record retention and destruction. Patient records shall only be destroyed in a manner that protects patient confidentiality, such as by incineration or shredding. F. When a practitioner is closing, selling or relocating his practice, he shall meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the patient's choice or provided to the patient.

18VAC85-110-177. Practitioner-patient communication; termination of relationship.

A. Communication with patients.

1. Except as provided in § 32.1-127.1:03 F of the Code of Virginia, a practitioner shall accurately inform a patient or his the patient's legally authorized representative of his the patient's professional assessment and prescribed treatment or plan of care in understandable terms. A No practitioner shall not deliberately make a false or misleading statement regarding the practitioner's skill or the efficacy or value of a treatment, or procedure prescribed or directed by the practitioner in the treatment of any disease or condition.

2. A practitioner shall present information to a patient or his legally authorized representative in understandable terms and encourage participation in the decisions regarding the patient's care.

3. 2. Before any acupuncture treatment or procedure is performed, informed consent shall be obtained from the patient. Practitioners shall inform patients of the risks, benefits, and alternatives of the recommended treatment that a reasonably prudent licensed acupuncturist practicing in Virginia would tell a patient. In the instance of a minor or a patient who is incapable of making an informed decision on his the patient's own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

B. Termination of the practitioner/patient practitioner-patient relationship.

1. The practitioner or the patient may terminate the relationship. In either case, the practitioner shall make a copy of the patient record available, except in situations where denial of access is allowed by law.

2. A No practitioner shall not terminate the relationship or make his services unavailable without documented notice to the patient that allows for a reasonable time to obtain the services of another practitioner.

18VAC85-110-179. Advertising ethics. (Repealed.)

A. Any statement specifying a fee, whether standard, discounted or free, for professional services which does not include the cost of all related procedures, services and products which, to a substantial likelihood, will be necessary for the completion of the advertised service as it would be understood by an ordinarily prudent person shall be deemed to be deceptive or misleading, or both. Where reasonable disclosure of all relevant variables and considerations is made, a statement of a range of prices for specifically described services shall not be deemed to be deceptive or misleading.

B. Advertising a discounted or free service, examination, or treatment and charging for any additional service, examination, or treatment that is performed as a result of and within 72 hours of the initial office visit in response to such advertisement is unprofessional conduct unless such professional services rendered are as a result of a bonafide emergency. This provision may not be waived by agreement of the patient and the practitioner.

C. Advertisements of discounts shall disclose the full fee that has been discounted. The practitioner shall maintain documented evidence to substantiate the discounted fees and shall make such information available to a consumer upon request.

D. A licensee shall disclose the complete name of the specialty board that conferred the certification when using or authorizing the use of the term "board certified" or any similar words or phrase calculated to convey the same meaning in any advertising for his practice.

E. A licensee of the board shall not advertise information that is false, misleading, or deceptive. For an advertisement for a single practitioner, it shall be presumed that the practitioner is responsible and accountable for the validity and truthfulness of its content. For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner or practitioners responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years.

18VAC85-110-181. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility or institution as defined in § 37.2-100 of the Code of Virginia or hospital as defined in § 32.1-123 of the Code of Virginia.

Remuneration shall be defined as compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320a-7b(b), as amended, or any regulations promulgated thereto.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-130. Regulations Governing the Practice of Licensed Midwives (amending 18VAC85-130-30, 18VAC85-130-100, 18VAC85-130-110, 18VAC85-130-130; repealing 18VAC85-130-20, 18VAC85-130-140, 18VAC85-130-150).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.9 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Medicine to promulgate regulations to administer the regulatory system. Section 54.1-2957.9 of the Code of Virginia requires the Board of Medicine to regulate and license professional midwives in the Commonwealth.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protect the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed midwives.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments was the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the amendments remove or modify provisions that are redundant of statutory requirements, are not related to the practice of midwifery, are outdated, or are otherwise ineffectual.

Substance: The amendments repeal redundant statutory provisions or useless directions, including provisions related to (i) public participation; (ii) the handling of patient records that were intended to cover physicians; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (iv) practitioner-client communication; (v) advertising restrictions; and (vi) solicitation or remuneration in exchange for referral.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. As a result of a 2022 periodic review² and in response to Executive Order 19 (2022)³ (EO 19), the Board of Medicine (board) is proposing editorial updates to this regulation governing midwives.

Background. As a result of a 2022 periodic review and in order to reduce regulatory requirements as directed by EO 19, the board proposes to revise or delete language that duplicates statutory requirements, is not related to the practice of midwifery, is outdated, or is otherwise ineffectual. The affected regulatory language pertains to a reference to a public participation regulation; provisions related to handling of patient records that apply to physicians but not midwives; provisions related to the sale, closure, or transfer of a practice that are duplicate statutory provisions; revisions related to communications to patients; advertising restrictions; and solicitation or remuneration in exchange for referral.

Estimated Benefits and Costs: The Department of Health Professions states and it so appears that the proposed changes to this regulation are editorial in nature and would not affect the practice of midwifery. For example, removing duplicative or redundant references, such as to the public participation regulation or provisions in the Code of Virginia that deal with advertising restrictions, would not make that regulation or the Code of Virginia any less enforceable or applicable. However, to the extent that midwives and other members of the public relied upon these regulatory provisions to better understand the requirements that pertain to midwives, some lack of clarity may result. Otherwise, no significant economic impact is expected to result from the proposed changes.

Businesses and Other Entities Affected. As of March 2023, there are 116 individuals licensed as professional midwives. None of the licensed midwives would be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ 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. The proposed changes are editorial in nature and do not alter rights or obligations of midwives. Thus, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments apply throughout the Commonwealth and do not introduce costs for local governments.

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

Effects on the Use and Value of Private Property. No effect on the use and value of private property or the real estate development costs is expected.

_____________________________

¹ Section 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.

² https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2154.

³ https://townhall.virginia.gov/EO-19-Development-and-Review-of-State-Agency-Regulations.pdf.

⁴ Pursuant 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.

⁵ Pursuant 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."

⁶ If 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.

⁷ "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.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

As a result of a 2022 periodic review, the amendments repeal redundant statutory provisions or useless directions, including provisions related to (i) public participation; (ii) the handling of patient records that were intended to cover physicians; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (iv) practitioner-client communication; (v) advertising restrictions; and (vi) solicitation or remuneration in exchange for referral.

18VAC85-130-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-130-30. Fees.

Unless otherwise provided, the following fees shall not be refundable:

1. The application fee for a license to practice as a midwife shall be $277.

2. The fee for biennial active license renewal shall be $312; the additional fee for late renewal of an active license within one renewal cycle shall be $105.

3. The fee for biennial inactive license renewal shall be $168; the additional fee for late renewal of an inactive license within one renewal cycle shall be $55.

4. The fee for reinstatement of a license that has expired for a period of two years or more shall be $367 in addition to the late fee. The fee shall be submitted with an application for licensure reinstatement.

5. The fee for a letter of good standing or verification of a license to another jurisdiction shall be $10.

6. The fee for an application for reinstatement if a license has been revoked or if an application for reinstatement has been previously denied shall be $2,000.

7. The fee for a duplicate wall certificate shall be $15.

8. The fee for a duplicate renewal license shall be $5.00.

9. The handling fee for a returned check or a dishonored credit card or debit card shall be $50.

10. For 2021, the fee for renewal of an active license shall be $250, and the fee for renewal of an inactive license shall be $125.

18VAC85-130-100. Client records.

A. Practitioners shall comply with provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of client records.

B. Practitioners shall provide client records to another practitioner or to the client or the client's personal representative in a timely manner in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. Practitioners shall properly manage client records and shall maintain timely, accurate, legible, and complete client records. Practitioners shall clearly document objective findings, decisions, and professional actions based on continuous assessment for ongoing midwifery care.

D. Practitioners shall document a client's decisions regarding choices for care, including informed consent or refusal of care. Practitioners shall clearly document when a client's decisions or choices are in conflict with the professional judgment and legal scope of practice of the licensed midwife.

E. Practitioners shall maintain a client record for a minimum of six years following the last client encounter with the following exceptions:

1. Records of a minor child shall be maintained until the child reaches the age of 18 years of age or becomes emancipated, with a minimum time for record retention of six years from the last client encounter regardless of the age of the child;

2. Records that have previously been transferred to another practitioner or health care provider or provided to the client or the client's personal representative do not have to be kept for a minimum of six years following the last client encounter; or

3. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time.

F. Practitioners shall in some manner inform all clients concerning the time frame timeframe for record retention and destruction. Client records shall only be destroyed in a manner that protects client confidentiality, such as by incineration or shredding.

G. When a practitioner is closing, selling or relocating a practice, the practitioner shall meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the client's choice or provided to the client.

18VAC85-130-110. Practitioner-client communication; termination of relationship.

A. Communication with clients.

1. Except as provided in § 32.1-127.1:03 F of the Code of Virginia, a practitioner shall accurately inform a client or the client's legally authorized representative of the client's assessment and prescribed plan of care in understandable terms. A No practitioner shall not deliberately make a false or misleading statement regarding the practitioner's skill or the efficacy or value of a treatment or procedure directed by the practitioner.

2. A practitioner shall present information relating to the client's care to a client or the client's legally authorized representative in understandable terms and encourage participation in the decisions regarding the client's care.

3. 2. Before any invasive procedure is performed, informed consent shall be obtained from the client. Practitioners shall inform clients of the risks, benefits, and alternatives of the recommended procedure that a reasonably prudent licensed midwife practicing in Virginia would tell a client. In the instance of a minor or a client who is incapable of making an informed decision on the client's own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

B. Termination of the practitioner/client practitioner-client relationship.

1. The practitioner or the client may terminate the relationship. In either case, the practitioner shall make a copy of the client record available, except in situations where denial of access is allowed by law.

2. Except as provided in § 54.1-2962.2 of the Code of Virginia, a No practitioner shall not terminate the relationship or make services unavailable without documented notice to the client that allows for a reasonable time to obtain the services of another practitioner.

18VAC85-130-130. Advertising ethics.

A. Any statement specifying a fee, whether standard, discounted or free, for professional services that does not include the cost of all related procedures, services and products that, to a substantial likelihood, will be necessary for the completion of the advertised service as it would be understood by an ordinarily prudent person shall be deemed to be deceptive or misleading, or both. Where reasonable disclosure of all relevant variables and considerations is made, a statement of a range of prices for specifically described services shall not be deemed to be deceptive or misleading.

B. Advertising a discounted or free service, examination, or treatment and charging for any additional service, examination, or treatment that is performed as a result of and within 72 hours of the initial office visit in response to such advertisement is unprofessional conduct unless such professional services rendered are as a result of a bona fide emergency. This provision may not be waived by agreement of the client and the practitioner.

C. Advertisements of discounts shall disclose the full fee that has been discounted. The practitioner shall maintain documented evidence to substantiate the discounted fees and shall make such information available to a consumer upon request.

D. A licensee shall disclose the complete name of the board that conferred the certification when using or authorizing the use of the term "board certified" or any similar words or phrase calculated to convey the same meaning in any advertising for the licensee's practice.

E. A No licensee of the board shall not advertise information that is false, misleading, or deceptive. For an advertisement for a single practitioner, it shall be presumed that the practitioner is responsible and accountable for the validity and truthfulness of its the advertisement content. For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner or practitioners responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years. Documentation, scientific and otherwise, supporting claims made in an advertisement shall be maintained and available for the board's review for at least two years.

18VAC85-130-140. Vitamins, minerals and food supplements. (Repealed.)

A. The recommendation or direction for the use of vitamins, minerals or food supplements and the rationale for that recommendation shall be documented by the practitioner. The recommendation or direction shall be based upon a reasonable expectation that such use will result in a favorable client outcome, including preventive practices, and that a greater benefit will be achieved than that which can be expected without such use.

B. Vitamins, minerals, or food supplements, or a combination of the three, shall not be sold, dispensed, recommended, prescribed, or suggested in doses that would be contraindicated based on the individual client's overall medical condition and medications.

C. The practitioner shall conform to the standards of the practitioner's particular branch of the healing arts in the therapeutic application of vitamins, minerals or food supplement therapy.

18VAC85-130-150. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility as defined in § 37.2-100 of the Code of Virginia, or hospital as defined in § 32.1-123 of the Code of Virginia.

Remuneration shall be defined as compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320a-7b(b), as amended, or any regulations promulgated thereto.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-150. Regulations Governing the Practice of Behavior Analysis (amending 18VAC85-150-150; repealing 18VAC85-150-20, 18VAC85-150-110, 18VAC85-150-180).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.16 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the board to promulgate regulations to administer the regulatory system. Section 54.1-2957.16 of the Code of Virginia requires that the Board of Medicine promulgate regulations for the licensure of behavior analysts and assistant behavior analysts.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protect the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed behavior analysts and assistant behavior analysts.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments were the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the amendments delete or modify provisions that, as currently effective, are redundant of statutory requirements, are not related to the practice of behavior analysis, are outdated, or are otherwise ineffectual.

Substance: The amendments repeal redundant statutory provisions or useless directions in regulation, including provisions related to (i) public participation; (ii) the restatement of scope of practice provisions in statute; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; and (iv) solicitation or remuneration in exchange for referral.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to delete unnecessary and duplicative references, to both another regulation and to statute.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove a reference to one board regulation as well as references to the Code of Virginia. The board has determined that these references are unnecessary because they are redundant, in part because the statutory references merely repeat language already found in the Code of Virginia.² The most substantive changes are summarized as follows: 18VAC85-150-20 would be repealed as being unnecessary because it directs readers to 18VAC85-11 for information regarding the involvement of the public in the development of all of the board's regulations. 18VAC85-150-110, which summarizes the scope of practice of behavior analysts, would be repealed in part because the scope of practice is already delineated in § 54.1-2900 of the Code of Virginia.³ In addition, 18VAC85-150-110 also refers to behavior analysts supervisory responsibilities, which is covered in 18VAC85-150-120 and 18VAC85-150-130 of the same regulation.⁴ The remaining changes would also delete language that duplicates statute and thus is redundant.⁵

Estimated Benefits and Costs: Since the proposed changes would not change the practice of behavior analysis as it is currently practiced, it is unlikely that behavior analysts, their employers, or clients would incur any benefits or costs other than those benefits that may result simply from streamlining the regulatory text. However, to the extent that behavior analysts or the public rely upon the regulation for references to the Code of Virginia, the proposed changes may decrease clarity regarding the requirements applicable to this profession. No information exists with which to determine the extent to which this reliance occurs.

Businesses and Other Entities Affected. DHP reports that there are 2,523 licensed behavior analysts and 259 licensed assistant behavior analysts as of March 31, 2023. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ 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. Since the proposed amendments would not result in an increase in net costs for any entity, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments would not impact small businesses.

Localities⁹ Affected.¹⁰The proposed amendments do not disproportionally affect any particular localities or create costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect the employment of behavior analysts, or have any impact on employment in general.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the value of private property. Real estate development costs would not be affected.

_____________________________

¹ Section 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.

² See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2156.

³ See https://law.lis.virginia.gov/vacode/title54.1/chapter29/section54.1-2900/. Specifically, "Practice of behavior analysis" is defined to mean the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.

⁴ 18VAC85-150-120 and 18VAC85-150-130 would not be amended. See https://law.lis.virginia.gov/admincode/title18/agency85/chapter150/section120/ and https://law.lis.virginia.gov/admincode/title18/agency85/chapter150/section130/.

⁵ See the Agency Background Document, p. 7 for the specific references that would be removed: https://townhall.virginia.gov/L/GetFile.cfm?File=26\6115\9834\AgencyStatement_DHP_9834_v2.pdf.

⁶ Pursuant 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.

⁷ Pursuant 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."

⁸ If 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.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

As a result of a 2022 periodic review, the amendments repeal redundant statutory provisions or useless directions in regulation, including provisions related to (i) public participation; (ii) the restatement of scope of practice provisions in statute; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; and (iv) the solicitation or remuneration in exchange for referral.

18VAC85-150-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-150-110. Scope of practice. (Repealed.)

The practice of a behavior analyst includes:

1. Design, implementation, and evaluation of environmental modifications using the principles and methods of behavior analysis to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior; and

2. Supervision of licensed assistant behavior analysts and unlicensed personnel.

18VAC85-150-150. Client records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of client records.

B. Practitioners shall provide client records to another practitioner or to the client or his the client's personal representative in a timely manner in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. Practitioners shall properly manage and keep timely, accurate, legible, and complete client records.

D. Practitioners who are employed by a health care institution, educational institution, school system, or other entity in which the individual practitioner does not own or maintain his the practitioner's own records shall maintain client records in accordance with the policies and procedures of the employing entity.

E. Practitioners who are self-employed or employed by an entity in which the individual practitioner owns and is responsible for client records shall:

1. Maintain a client record for a minimum of six years following the last client encounter with the following exceptions:

a. Records of a minor child shall be maintained until the child reaches the age of 18 years of age or becomes emancipated, with a minimum time for record retention of six years from the last client encounter regardless of the age of the child;

b. Records that have previously been transferred to another practitioner or health care provider or provided to the client or his the client's legally authorized representative; or

c. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time.

2. Post information or in some manner inform all clients concerning the time frame timeframe for record retention and destruction. Client records shall only be destroyed in a manner that protects client confidentiality, such as by incineration or shredding.

3. When closing, selling, or relocating his practice, meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the client's choice or provided to the client or legally authorized representative.

18VAC85-150-180. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility or institution as defined in § 37.2-100 of the Code of Virginia or hospital as defined in § 32.1-123 of the Code of Virginia.

Remuneration shall be defined as compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320 a-7b(b), as amended, or any regulations promulgated thereto.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-170. Regulations Governing the Practice of Genetic Counselors (amending 18VAC85-170-10, 18VAC85-170-100, 18VAC85-170-110, 18VAC85-170-140, 18VAC85-170-150, 18VAC85-170-160; repealing 18VAC85-170-20, 18VAC85-170-170).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.18 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Medicine to promulgate regulations to administer the regulatory system. Section 54.1-2957.19 of the Code of Virginia requires the Board of Medicine to license and regulate genetic counselors.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protect the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed genetic counselors.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments was the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the changes remove or modify provisions that are redundant of statutory requirements, are not related to the practice of genetic counseling, are outdated, or are otherwise ineffectual.

Substance: The amendments remove redundant statutory provisions or useless directions, including provisions related to (i) outdated definitions; (ii) public participation; (iii) scope of practice provisions that are redundant of statute or nonsensical for genetic counselors based on their scope of practice in § 54.1-2900 of the Code of Virginia, which does not include providing gene therapy or authorizing the use of genetic or diagnostic testing in an emergency setting; (iv) continuing education audit provisions; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) practitioner-patient communication; and (vii) solicitation or remuneration in exchange for referral.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to delete outdated or redundant provisions and clarify some provisions to be consistent with current practice.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove outdated language and references to the Code of Virginia that are redundant and to update certain provisions so that they accurately reflect current practice.² The most substantive changes are summarized as follows: The definition of "conscience clause" is based on a provision in the Code of Virginia that was repealed in 2021; thus, this definition would be removed. 18VAC85-170-100 D currently states that the board shall periodically conduct random audits. The board reports that it does not have the staff or the ability to conduct such audits and has only performed one or two such audits in the last two decades and seeks to delete this provision. The Department of Health Professions (DHP) noted that the board does investigate and respond to complaints against practitioners, and that removing this provision in the regulation would not increase the risk to the public since the board has not conducted such an audit in many years. 18VAC85-170-150, governing communications with patients, currently contains language copied over from corresponding sections in the regulation for physicians, which does not reflect the work and responsibilities of genetic counselors. For instance, 18VAC85-170-150 A 3 contains requirements for informed consent for genetic procedures with specific requirements for minors and in emergency situations. This language is identical to 18VAC85-20-28 A 3, which governs practitioner-patient communication for physicians, except that 18VAC85-170-150 uses the term "genetic procedure" instead of "surgery" or "invasive procedure".³ However, the board reports that the scope of practice for genetic counselors is very different from that of physicians, so the language should not apply to genetic counselors. The board notes that a genetic counselor's involvement with patients is limited to consultation after examining test results and that the risks involved in such consultation are minimal. In addition, the board reports that a genetic counselor would not be involved in an emergency intervention, so the person who would be subject to obtaining informed consent or being exempted in that situation is the physician.⁴ To the extent that this occurs in practice, the impact of this change would be minimal. However, to the extent that a genetic counselor also advises on the type of tests to administer and the potential consequences of testing, including in emergency interventions, the impact would be greater. The actual extent of the impact cannot be determined based upon available information. The proposed language would still require genetic counselors to obtain documented informed consent in accordance with the policies of the health care entity and consistent with the standard of care. The remaining changes would be to remove references to other chapters of the Virginia Administrative Code or to remove language that is redundant of statute.⁵

Estimated Benefits and Costs: Since the proposed changes would not change the practice of genetic counseling as it is currently practiced, and largely serves to update the regulatory text, neither genetic counselors, nor their employers or clients are likely to incur any benefits or costs other than those benefits that result simply from ensuring the regulatory text is clear and up-to-date. However, to the extent that behavior analysts or the public rely upon the regulation for references to the Code of Virginia, the proposed changes that would remove these references may decrease clarity regarding the requirements applicable to this profession. No information exists with which to determine the extent to which this reliance occurs.

Businesses and Other Entities Affected. DHP reports that there are 593 licensed genetic counselors as of March 31, 2023. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ 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. Since the proposed amendments would not result in an increase in net costs for any entity, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments would not impact small businesses.

Localities⁹ Affected.¹⁰ The proposed amendments do not disproportionally affect any particular localities or create costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect the employment of genetic counselors, or have any impact on employment in general.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the value of private property. Real estate development costs would not be affected.

_____________________________

¹ Section 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.

² See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2158.

³ See https://law.lis.virginia.gov/admincode/title18/agency85/chapter20/section28/ for the corresponding language governing physicians in 18VAC85-20.

⁴ Email from DHP dated May 1, 2023. DHP further notes that the language being repealed was initially included in this regulation for consistency with 18VAC85-20 and that although this intent is understandable, in practice this does not translate to usable regulations for many professions regulated by the board. Those professions need individual provisions that reflect the realities of their professions and practices.

⁵ See the Agency Background Document, pp. 7-8 for the specific references that would be removed: https://townhall.virginia.gov/L/GetFile.cfm?File=26\6114\9833\AgencyStatement_DHP_9833_v3.pdf.

⁶ Pursuant 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.

⁷ Pursuant 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."

⁸ If 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.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

As a result of a 2022 periodic review, the amendments remove redundant statutory provisions or useless directions, including provisions related to (i) outdated definitions; (ii) public participation; (iii) scope of practice provisions that are redundant of statute or nonsensical for genetic counselors based on their scope of practice in § 54.1-2900 of the Code of Virginia, which does not include providing gene therapy or authorizing the use of genetic or diagnostic testing in an emergency setting; (iv) continuing education audit provisions; (v) the sale, closure, or transfer of a practice that are redundant of statutory provisions; (vi) practitioner-patient communication; and (vii) solicitation or remuneration in exchange for referral.

18VAC85-170-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2900 of the Code of Virginia:

"Board"

"Genetic counselor"

"Practice of genetic counseling"

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

"ABGC" means the American Board of Genetic Counseling.

"ABMG" means the American Board of Medical Genetics.

"Active practice" means a minimum of 160 hours of professional practice as a genetic counselor within the 24-month period immediately preceding application for reinstatement or reactivation of licensure. The active practice of genetic counseling may include supervisory, administrative, educational, or consultative activities or responsibilities for the delivery of such services.

"Conscience clause" means the provision of § 54.1-2957.21 of the Code of Virginia.

"NSGC" means the National Society of Genetic Counselors.

18VAC85-170-20. Public participation. (Repealed.)

A separate board regulation, Public Participation Guidelines (18VAC85-11), provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-170-100. Continuing education requirements.

A. In order to renew an active license biennially, a licensee shall complete the Continued Competency Activity and Assessment Form that is provided by the board indicating completion of at least 50 contact hours of continuing learning activities as follows:

1. A minimum of 30 of the 50 hours shall be in Category 1 activities approved by the ABGC, the ABMG, or the NSGC and may include in-service training, self-study courses, continuing education courses, or professional workshops.

2. No more than 20 of the 50 hours may be Category 2 activities or professional activity credits, which may include consultation with another counselor or a physician, independent reading or research, authorship, clinical supervision, volunteer leadership in the profession, preparation for a presentation, or other such experiences that promote continued learning.

B. A licensee shall be exempt from the continuing education requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The licensee shall retain in his records of the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of its active licensees to determine compliance. The licensees selected for the audit shall provide all supporting documentation within 30 days of receiving notification of the audit.

E. D. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

F. E. The board may grant an extension of the deadline for continuing competency requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

G. F. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

18VAC85-170-110. General responsibility.

A genetic counselor shall engage in the practice of genetic counseling, as defined in § 54.1-2900 of the Code of Virginia. The practice of genetic counseling may include supervisory, administrative, educational, or consultative activities or responsibilities for the delivery of such services.

18VAC85-170-140. Patient records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of patient records.

B. Practitioners shall provide patient records to another practitioner or to the patient or his the patient's personal representative in a timely manner in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. Practitioners shall properly manage and keep timely, accurate, legible, and complete patient records.

D. Practitioners who are employed by a health care institution or other entity in which the individual practitioner does not own or maintain his the individual practitioner's own records shall maintain patient records in accordance with the policies and procedures of the employing entity.

E. Practitioners who are self-employed or employed by an entity in which the individual practitioner owns and is responsible for patient records shall:

1. Maintain a patient record for a minimum of six years following the last patient encounter with the following exceptions:

a. Records of a minor child shall be maintained until the child reaches the age of 18 years of age or becomes emancipated, with a minimum time for record retention of six years from the last patient encounter regardless of the age of the child;

b. Records that have previously been transferred to another practitioner or health care provider or provided to the patient or his the patient's personal representative; or

c. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time.

2. Post information or in some manner inform all patients concerning the timeframe for record retention and destruction. Patient records shall only be destroyed in a manner that protects patient confidentiality, such as by incineration or shredding.

3. When closing, selling, or relocating his practice, meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the patient's choice or provided to the patient.

18VAC85-170-150. Practitioner-patient communication; termination of relationship.

A. Communication with patients.

1. Except as provided in § 32.1-127.1:03 F of the Code of Virginia, a practitioner shall accurately present information to a patient or his the patient's legally authorized representative in understandable terms and encourage participation in decisions regarding the patient's care.

2. A No practitioner shall not deliberately withhold pertinent findings or information or make a false or misleading statement regarding the practitioner's skill or the efficacy or value of a medication, treatment, or procedure provided or directed by the practitioner in the treatment of any disease or condition.

3. When a genetic procedure or diagnostic test is recommended, documented informed consent shall be obtained from the patient in accordance with the policies of the health care entity and consistent with the standard of care. Practitioners shall inform patients of the risks, benefits, and alternatives of the recommended procedure that a reasonably prudent practitioner practicing genetic counseling in Virginia would tell a patient.

a. In the instance of a minor or a patient who is incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

b. An exception to the requirement for consent prior to performance of a genetic procedure may be made in an emergency situation when a delay in obtaining consent would likely result in imminent harm to the patient.

c. For the purposes of this provision, "genetic procedure" means any diagnostic or therapeutic procedure performed on a patient that is not part of routine, general care and for which the usual practice within the health care entity is to document specific informed consent from the patient or surrogate decisionmaker prior to proceeding.

4. Practitioners shall adhere to requirements of § 32.1-162.18 of the Code of Virginia for obtaining informed consent from patients prior to involving them those patients as subjects in human research, with the exception of retrospective chart reviews.

B. Termination of the practitioner-patient relationship.

1. The practitioner or the patient may terminate the relationship. In either case, the practitioner shall make the patient record available, except in situations where denial of access is allowed by law.

2. A No practitioner shall not terminate the relationship or make his the practitioner's services unavailable without documented notice to the patient that allows for a reasonable time to obtain the services of another practitioner.

18VAC85-170-160. Practitioner responsibility.

A. A No practitioner shall not:

1. Perform procedures or techniques that are outside the scope of his practice or for which he is not trained and individually competent;

2. 1. Knowingly allow subordinates to jeopardize patient safety or provide patient care outside of the subordinate's scope of practice or area of responsibility. Practitioners shall delegate patient care only to subordinates who are properly trained and supervised;

3. 2. Engage in an egregious pattern of disruptive behavior or interaction in a health care setting that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient; or

4. 3. Exploit the practitioner-patient relationship for personal gain.

B. Advocating for patient safety or improvement in patient care within a health care entity shall not constitute disruptive behavior, provided the practitioner does not engage in behavior prohibited in subdivision A 3 2 of this section.

18VAC85-170-170. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility as defined in § 37.2-100 of the Code of Virginia or hospital as defined in § 32.1-123 of the Code of Virginia.

"Remuneration" means compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320a-7b(b), as amended, or any regulations promulgated thereto.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF PHARMACY

Fast-Track Regulation

Title of Regulation: 18VAC110-21. Regulations Governing the Licensure of Pharmacists and Registration of Pharmacy Technicians (repealing 18VAC110-21-140, 18VAC110-21-150).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Caroline Juran, RPh, Executive Director, Board of Pharmacy, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4456, FAX (804) 527-4472, or email caroline.juran@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Pharmacy to promulgate regulations to administer the regulatory system.

Purpose: This action is essential to protect the health, safety, and welfare of citizens because the General Assembly has authorized the board to regulate pharmacy techs, and clarifying and simplifying requirements advances that goal. The goal of this regulatory change is to remove regulatory requirements that are outdated as written and have been made obsolete by changes in statute.

Rationale for Using Fast-Track Rulemaking Process: This action is noncontroversial and appropriate for the fast-track rulemaking process because the amendments repeal outdated sections, which improves clarity for licensees.

Substance: The amendments repeal 18VAC110-21-140 and 18VAC110-21-150.

Issues: The primary advantage to the public is that the removal of outdated requirements will alleviate confusion about the meaning and intent of the regulation. There are no disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Pharmacy (board) proposes to repeal two obsolete sections from the regulatory text.

Background. Pursuant to Chapters 102 and 237 of the 2020 Acts of Assembly,² a previous regulatory action³ combined 18VAC110-21-140 and 18VAC110-21-150 into a new section, 18VAC110-21-141, to be consistent with the new legislation. Subsequently, 18VAC110-21-140 and 18VAC110-21-150 expired on July 1, 2022, and 18VAC110-21-141 became effective. However, 18VAC110-21-140 and 18VAC110-21-150 remain in the regulation. In this regulatory action, the board proposes to repeal those two obsolete sections in their entirety.

Estimated Benefits and Costs: The proposed changes repeal 18VAC110-21-140 and 18VAC110-21-150 that were replaced by 18VAC110-21-141 effective July 1, 2022, to be consistent the new legislation. Since these two sections are obsolete, their repeal is not expected to create any economic impact other than eliminating potentially confusing language in the regulatory text.

Businesses and Other Entities Affected. The proposed changes would affect all readers of the regulation by clarifying that the sections being repealed are no longer relevant. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ 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. The two sections being repealed have been replaced by new section 18VAC110-21-141 effective July 1, 2022, and have been obsolete since then. Thus, no adverse or disproportionate impact on any entity is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not affect localities or local government.

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

Effects on the Use and Value of Private Property. No effect on the use and value of private property or real estate development costs is expected.

_____________________________

¹ Section 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.

² https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0102 and https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0237.

³ https://townhall.virginia.gov/L/ViewStage.cfm?stageid=9634.

⁴ Pursuant 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.

⁵ Pursuant 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."

⁶ If 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.

⁷ "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.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Pharmacy concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments repeal 18VAC110-21-140 and 18VAC110-21-150, which were made obsolete by the promulgation of 18VAC110-21-141 in December 2022.

18VAC110-21-140. Application for registration as a pharmacy technician . (Repealed.)

A. Any person wishing to apply for registration as a pharmacy technician shall submit the application fee and an application on a form approved by the board.

B. To be registered as a pharmacy technician, an applicant shall provide evidence of the following:

1. Satisfactory completion of a board-approved training program; and

2. A passing score on a board-approved examination.

C. In lieu of the requirements of subsection B of this section, an applicant may provide evidence of current PTCB certification or NHA certification.

18VAC110-21-150. Criteria for approval for training programs (Effective until July 1, 2022). (Repealed.)

A. Any person wishing to apply for approval of a pharmacy technician training program shall submit the application fee, a sample certificate, and an application on a form approved by the board and meet the criteria established in this section.

B. The curriculum of a training program for pharmacy technicians shall include instruction in applicable current laws and regulations and in the tasks that may be performed by a pharmacy technician to include the following or any other task restricted to pharmacy technicians in regulation:

1. The entry of prescription information and drug history into a data system or other recordkeeping system;

2. The preparation of prescription labels or patient information;

3. The removal of the drug to be dispensed from inventory;

4. The counting, measuring, or compounding of the drug to be dispensed;

5. The packaging and labeling of the drug to be dispensed and the repackaging thereof;

6. The stocking or loading of automated dispensing devices or other devices used in the dispensing process; and

7. The acceptance of refill authorization from a prescriber or the prescriber's authorized agent provided there is no change to the original prescription.

C. Each program shall have a program director who shall be either (i) a pharmacist with a current license in any jurisdiction and who is not currently suspended or revoked in any jurisdiction in the United States; (ii) a pharmacy technician with at least one year of experience performing technician tasks who holds a current registration in Virginia or current PTCB certification and who is not currently suspended or revoked as a pharmacy technician in any jurisdiction; or (iii) other person approved and deemed qualified by the board to be a program director.

D. Instructors for the core components listed in subsection B of this section shall meet the requirements for the program director listed in subsection C of this section. The program director may serve as an instructor.

E. The length of the program shall be sufficient to prepare a program participant to sit for the board-approved examination and demonstrate entry-level competency.

F. The program shall maintain records of program participants either on site or at another location where the records are readily retrievable upon request for inspection. A program shall provide a certificate of completion, including the program approval number, to participants who successfully complete the program and provide verification of completion of the program for a participant upon request by the board. Records shall be maintained for two years from date of completion or termination of program.

G. The program shall report within 14 days any substantive change in the program to include a change in program name, program certificate, program director, instructors, name of institution or business if applicable, address, program content, length of program, or location of records.

H. A pharmacy technician training program approval expires after two years, after which the program may apply for renewal. For continued approval, the program shall submit the renewal application, renewal fee, and a self-evaluation report on a form provided by the board at the time of renewal notification. Renewal of a program's approval is at the discretion of the board, and the decision to renew shall be based on documentation of continued compliance with the criteria set forth in this section.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF PHYSICAL THERAPY

Final Regulation

Title of Regulation: 18VAC112-20. Regulations Governing the Practice of Physical Therapy (amending 18VAC112-20-27, 18VAC112-20-65, 18VAC112-20-81, 18VAC112-20-121, 18VAC112-20-131, 18VAC112-20-200).

Statutory Authority: §§ 54.1-2400 and 54.1-3474 of the Code of Virginia.

Effective Date: June 18, 2025.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Physical Therapy, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4674, FAX (804) 527-4413, or email ptboard@dhp.virginia.gov.

Summary:

The amendments (i) repeal the current requirement that applicants for licensure by endorsement provide evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada or 60 hours obtained within the past four years; (ii) remove the list of approved continuing education providers from the regulation; (iii) eliminate specified recordkeeping requirements concerning advertising; and (iv) repeal obsolete language.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

18VAC112-20-27. Fees.

A. Unless otherwise provided, fees listed in this section shall not be refundable.

B. Licensure by examination. 1. The application fee shall be $140 for a physical therapist and $100 for a physical therapist assistant.

2. The fees for taking all required examinations shall be paid directly to the examination services.

C. Licensure by endorsement. The fee for licensure by endorsement shall be $140 for a physical therapist and $100 for a physical therapist assistant.

D. Licensure renewal and reinstatement.

1. The fee for active license renewal for a physical therapist shall be $135 and for a physical therapist assistant shall be $70 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the active license renewal fee for a physical therapist shall be $70 and for a physical therapist assistant shall be $35.

2. The fee for an inactive license renewal for a physical therapist shall be $70 and for a physical therapist assistant shall be $35 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the inactive license renewal fee for a physical therapist shall be $35 and for a physical therapist assistant shall be $18.

3. A fee of $50 for a physical therapist and $25 for a physical therapist assistant for processing a late renewal within one renewal cycle shall be paid in addition to the renewal fee.

4. The fee for reinstatement of a license that has been expired for two or more years shall be $180 for a physical therapist and $120 for a physical therapist assistant and shall be submitted with an application for licensure reinstatement.

E. Other fees.

1. The fee for an application for reinstatement of a license that has been revoked shall be $1,000; the fee for an application for reinstatement of a license that has been suspended shall be $500.

2. The fee for a duplicate license shall be $5 $5.00, and the fee for a duplicate wall certificate shall be $15.

3. The handling fee for a returned check or a dishonored credit card or debit card shall be $50.

4. The fee for a letter of good standing or verification to another jurisdiction shall be $10.

5. The application fee for direct access certification shall be $75 for a physical therapist to obtain certification to provide services without a referral.

6. The state fee for obtaining or renewing a compact privilege to practice in Virginia shall be $50.

18VAC112-20-65. Requirements for licensure by endorsement.

A. A physical therapist or physical therapist assistant who holds a current, unrestricted license in the United States, its territories, the District of Columbia, or Canada may be licensed in Virginia by endorsement.

B. An applicant for licensure by endorsement shall submit:

1. Documentation of having met the educational requirements prescribed in 18VAC112-20-40 or 18VAC112-20-50. In lieu of meeting such requirements, an applicant may provide evidence of clinical practice consisting of at least 2,500 hours of patient care during the five years immediately preceding application for licensure in Virginia with a current, unrestricted license issued by another United States jurisdiction or Canadian province;

2. The required application, fees, and credentials to the board, including a criminal history background check as required by § 54.1-3484 of the Code of Virginia;

3. A current report from the National Practitioner Data Bank (NPDB);

4. Evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another United States jurisdiction or Canada, or 60 hours obtained within the past four years;

5. 4. Documentation of passage of an examination equivalent to the Virginia examination at the time of initial licensure or documentation of passage of an examination required by another state or Canadian province at the time of initial licensure in that state or province; and

6. 5. Documentation of active practice in physical therapy in another United States jurisdiction or Canada for at least 320 hours within the four years immediately preceding his application for licensure. A physical therapist who does not meet the active practice requirement shall successfully complete 320 hours in a traineeship in accordance with requirements in 18VAC112-20-140.

C. A physical therapist assistant seeking licensure by endorsement who has not actively practiced physical therapy for at least 320 hours within the four years immediately preceding his application for licensure shall successfully complete 320 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

18VAC112-20-81. Requirements for direct access certification.

A. An applicant for certification to provide services to patients without a referral as specified in § 54.1-3482.1 of the Code of Virginia shall hold an active, unrestricted license as a physical therapist in Virginia and shall submit evidence satisfactory to the board that he the applicant has one of the following qualifications:

1. Completion of a transitional program in physical therapy as recognized by the board; or

2. At least three years of postlicensure, active practice with evidence of 15 contact hours of continuing education in medical screening or differential diagnosis, including passage of a postcourse examination. The required continuing education shall be offered by a provider or sponsor listed as approved by the board as provided in 18VAC112-20-131 and may be face-to-face or online education courses.

B. In addition to the evidence of qualification for certification required in subsection A of this section, an applicant seeking direct access certification shall submit to the board:

1. A completed application as provided by the board;

2. Any additional documentation as may be required by the board to determine eligibility of the applicant; and

3. The application fee as specified in 18VAC112-20-27.

18VAC112-20-121. Practice of dry needling.

A. Dry needling is not an entry level skill but an advanced procedure that requires additional post-graduate training.

1. The training shall be specific to dry needling and shall include emergency preparedness and response, contraindications and precautions, secondary effects or complications, palpation and needle techniques, and physiological responses.

2. The training shall consist of didactic and hands-on laboratory education and shall include passage of a theoretical and practical examination. The hands-on laboratory education shall be face-to-face.

3. The training shall be in a course approved or provided by a sponsor listed approved by the board as provided in subsection B of 18VAC112-20-131.

4. The practitioner shall not perform dry needling beyond the scope of the highest level of the practitioner's training.

B. Prior to the performance of dry needling, the physical therapist shall obtain informed consent from the patient or the patient's representative. The informed consent shall include the risks and benefits of the technique. The informed consent form shall be maintained in the patient record.

C. Dry needling shall only be performed by a physical therapist trained pursuant to subsection A of this section and shall not be delegated to a physical therapist assistant or other support personnel.

18VAC112-20-131. Continued competency requirements for renewal of an active license.

A. In order to renew an active license biennially, a physical therapist or a physical therapist assistant shall complete at least 30 contact hours of continuing learning activities within the two years immediately preceding renewal. In choosing continuing learning activities or courses, the licensee shall consider the following: (i) the need to promote ethical practice, (ii) an appropriate standard of care, (iii) patient safety, (iv) application of new medical technology, (v) appropriate communication with patients, and (vi) knowledge of the changing health care system.

B. To document the required hours, the licensee shall maintain the Continued Competency Activity and Assessment Form that is provided by the board and that shall indicate completion of the following:

1. A minimum of 20 of the contact hours required for physical therapists and 15 of the contact hours required for physical therapist assistants shall be in Type 1 courses. For the purpose of this section, "course" means an organized program of study, classroom experience, or similar educational experience that is directly related to the clinical practice of physical therapy and approved or provided by one of the following organizations or any of its components:

a. The Virginia Physical Therapy Association;

b. The American Physical Therapy Association;

c. Local, state, or federal government agencies;

d. Regionally accredited colleges and universities;

e. Health care organizations accredited by a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to assure compliance with Medicare conditions of participation;

f. The American Medical Association - Category I Continuing Medical Education course;

g. The National Athletic Trainers' Association;

h. The Federation of State Boards of Physical Therapy;

i. The National Strength and Conditioning Association; or

j. Providers approved by other state licensing boards for physical therapy an organization approved by the board.

One credit hour of a college course shall be considered the equivalent of 15 contact hours of Type 1 continuing education.

2. No more than 10 of the contact hours required for physical therapists and 15 of the contact hours required for physical therapist assistants may be Type 2 activities or courses, which may or may not be offered by an approved organization, but which shall be related to the clinical practice of physical therapy. For the purposes of this subdivision, Type 2 activities may include:

a. Consultation with colleagues, independent study, and research or writing on subjects related to practice.

b. Delivery of physical therapy services, without compensation, to low-income individuals receiving services through a local health department or a free clinic organized in whole or primarily for the delivery of health services for up to two of the Type 2 hours.

c. Attendance at a meeting of the board or disciplinary proceeding conducted by the board for up to two of the Type 2 hours.

d. Classroom instruction of workshops or courses.

e. Clinical supervision of students and research and preparation for the clinical supervision experience.

Forty hours of clinical supervision or instruction shall be considered the equivalent of one contact hour of Type 2 activity.

3. Documentation of specialty certification by the American Physical Therapy Association may be provided as evidence of completion of continuing competency requirements for the biennium in which initial certification or recertification occurs.

4. Documentation of graduation from a transitional doctor of physical therapy program may be provided as evidence of completion of continuing competency requirements for the biennium in which the physical therapist was awarded the degree.

C. A licensee shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure by examination in Virginia.

D. The licensee shall retain his records on the completed form Continued Competency Activity and Assessment Form with all supporting documentation for a period of four years following the renewal of an active license.

E. The licensees selected in a random audit conducted by the board shall provide the completed Continued Competency Activity and Assessment Form and all supporting documentation within 30 days of receiving notification of the audit.

F. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

G. The board may grant an extension of the deadline for continuing competency requirements for up to one year for good cause shown upon a written request from the licensee prior to the renewal date.

H. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters, upon a written request from the licensee prior to the renewal date.

18VAC112-20-200. Advertising ethics.

A. Any statement specifying a fee, whether standard, discounted, or free, for professional services that does not include the cost of all related procedures, services, and products that, to a substantial likelihood, will be necessary for the completion of the advertised service as it would be understood by an ordinarily prudent person shall be deemed to be deceptive or misleading, or both. Where reasonable disclosure of all relevant variables and considerations is made, a statement of a range of prices for specifically described services shall not be deemed to be deceptive or misleading.

B. Advertising a discounted or free service, examination, or treatment and charging for any additional service, examination, or treatment that is performed as a result of and within 72 hours of the initial office visit in response to such advertisement is unprofessional conduct unless such professional services rendered are as a result of a bona fide emergency. This provision may not be waived by agreement of the patient and the practitioner.

C. No licensee or holder of a compact privilege of the board shall advertise information that is false, misleading, or deceptive. Advertisements of discounts shall disclose the full fee that has been discounted. The practitioner shall maintain documented evidence to substantiate the discounted fees and shall make such information available to a consumer upon request.

D. A No licensee or holder of a compact privilege shall not use the term "board certified" or any similar words word or phrase calculated to convey the same meaning in any advertising for his the practitioner's practice unless he the practitioner holds certification in a clinical specialty issued by the American Board of Physical Therapy Specialties.

E. A licensee or holder of a compact privilege of the board shall not advertise information that is false, misleading, or deceptive. For an advertisement for a single practitioner, it shall be presumed that the practitioner is responsible and accountable for the validity and truthfulness of its content. For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years.

F. Documentation, scientific and otherwise, supporting claims made in an advertisement shall be maintained and available for the board's review for at least two years.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR WATERWORKS AND WASTEWATER WORKS OPERATORS AND ONSITE SEWAGE SYSTEM PROFESSIONALS

Proposed Regulation

Title of Regulation: 18VAC160-40. Onsite Sewage System Professionals Licensing Regulations (amending 18VAC160-40-10 through 18VAC160-40-100, 18VAC160-40-110, 18VAC160-40-120 through 18VAC160-40-170, 18VAC160-40-180 through 18VAC160-40-230, 18VAC160-40-240 through 18VAC160-40-270, 18VAC160-40-280, 18VAC160-40-290, 18VAC160-40-300 through 18VAC160-40-360, 18VAC160-40-370, 18VAC160-40-380, 18VAC160-40-390, 18VAC160-40-410, 18VAC160-40-420, 18VAC160-40-430 through 18VAC160-40-510; adding 18VAC160-40-115, 18VAC160-40-175, 18VAC160-40-235, 18VAC160-40-295, 18VAC160-40-365, 18VAC160-40-385, 18VAC160-40-405, 18VAC160-40-415, 18VAC160-40-425, 18VAC160-40-515, 18VAC160-40-520; repealing 18VAC160-40-105, 18VAC160-40-275, 18VAC160-40-400).

Statutory Authority: §§ 54.1-201 and 54.1-2301 of the Code of Virginia.

Public Hearing Information:

July 10, 2025 - 2 p.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Second Floor, Board Room Two, Richmond, VA 23233.

Public Comment Deadline: July 18, 2025.

Agency Contact: Cameron Parris, Regulatory Operations Administrator, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-9183, FAX (866) 350-5354, or email cameron.parris@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia authorizes the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals to promulgate regulations necessary to ensure continued competency and prevent deceptive or misleading practices by practitioners and to effectively administer the regulatory system. Section 54.1-2301 D of the Code of Virginia requires the board to adopt regulations for the licensure of onsite soil evaluators, installers of alternative onsite sewage systems, and operators of alternative onsite sewage systems.

Purpose: The board is responsible for regulating individuals who install or operate onsite sewage systems and perform the duties of an onsite soil evaluator by requiring that such individuals obtain a license in order to engage in these occupations. Soil evaluators who lack sufficient expertise to perform these duties may pose a risk to the public health and welfare, including the potential for environmental damage and contamination of the water supply. In addition, the improper installation or operation of an onsite septic system can pose a substantial risk of financial harm to property owners who will be responsible for assuming the costs to remediate damage and repair and replace defective systems. As mandated by the General Assembly, the board protects the public welfare, in part, by establishing through regulation the minimum qualifications for entry into the profession, as well as the minimum requirements for the provision onsite sewage system services.

Substance: The proposed amendments:

1. Add, remove, and revise definitions.

2. Increase to 24 months the time (i) an applicant has to pass the required examination once an application has been approved and (ii) in which a license may be reinstated after expiration.

3. Remove (i) provisions regarding temporarily reduced fees; (ii) references to interim licenses or authorized onsite soil evaluator licenses as prerequisite credentials to qualify for licensure; (iii) references to minimum education requirements for journeyman conventional installer licenses, journeyman alternative installer licenses, master alternative onsite sewage system installer licenses, and journeyman conventional operator licenses; (iv) references to an individual's inability to simultaneously hold both a master and journeyman license in the same class or hold both a conventional and alternative master onsite sewage system installer license; (v) requirements that a licensee provide a physical address and report certain changes to the board; and (vi) obsolete provisions.

4. Limit the requirement to report (i) felony convictions to only those convictions that have occurred within 20 years of the date of application and (ii) misdemeanor convictions to only those convictions involving lying, cheating, or stealing, and (iii) to the board if the licensee is convicted of any non-marijuana misdemeanor..

5. Require applicants to disclose any disciplinary action taken against a professional or occupational license issued to the applicant.

6. Require that an applicant be in compliance with the standards of conduct and practice outlined in Part IX of the regulation at the time of application while the application is under review and when the license is in effect.

7. Provide that passing examination scores are valid for a period of 10 years from the date of examination to mitigate a barrier to entry for individuals who were previously licensed but allowed the license to expire and lapse.

8. Consolidate provisions regarding who may verify qualifying experience submitted by an applicant for an onsite sewage system installer license, an onsite sewage system operator license, or an onsite soil evaluator license and add several types of individuals who are able to verify qualifying experience submitted by an applicant for these license types.

9. Reduce the amount of qualifying experience and educational hours needed to obtain licenses for applicants who hold certain education and experience pre-requisites and expand prerequisites to provide additional pathways for applicants who hold a journeyman conventional onsite sewage system operator license.

10. Provide for individuals to qualify for an exemption from the examination requirement for a master conventional onsite sewage system installer license by (i) completing 40 hours of board-approved training and being actively engaged in the duties of a conventional installer for at least six years immediately preceding application or (ii) being actively engaged in the duties of a conventional installer for at least 10 years immediately preceding application.

11. Provide that an alternative onsite sewage system that exceeds 10,000 gallons per day design flow must have its operation and maintenance performed by either (i) an individual who is licensed as an alternative onsite sewage system operator and a Class 4 or higher wastewater works operator or (ii) an individual who is licensed as an alternative onsite sewage system operator and an individual who is licensed as a Class 4 or higher wastewater works operator who are working together pursuant to an employment relationship, contract, or other written agreement.

12. Allow individuals to qualify for licensure with three years of documented qualifying experience and examination and allow individuals with certain pre-requisites to qualify for certain licenses, as follows:

- An individual with a master conventional onsite sewage system installer or a journeyman alternative onsite sewage system operator license may qualify for licensure as a master conventional onsite sewage system operator with six months of documented qualifying experience and examination;

- An individual with either a master or journeyman conventional or alternative onsite sewage system operator license may qualify for a journeyman conventional onsite sewage installer license with three months of qualifying experience;

- An individual with either a master or journeyman alternative onsite sewage system operator license may qualify for a journeyman alternative onsite sewage installer license with three months of qualifying experience;

- An individual who held or holds a master conventional onsite soil evaluator license may qualify for licensure as a master alternative onsite soil evaluator with 18 months of documented qualifying experience;

- An individual with a master alternative onsite sewage system operator license may qualify for licensure with three months of verified qualifying experience and examination;

- An individual with a master conventional or a journeyman alternative installer license may qualify for licensure with one year of qualifying experience and examination; and

- An individual with no prerequisite, but who has completed a Virginia Department of Health (VDH) onsite sewage system training program, may qualify for licensure as a (i) journeyman alternative onsite soil evaluator with one year of documented qualifying experience or (ii) master alternative onsite soil evaluator with two years of documented qualifying experience.

13. Allow for "applied sciences" as an acceptable discipline for a bachelor's degree, master's degree, or associate's degree that may be used to qualify for licensure as a master soil evaluator and add "electrical principles" as an acceptable topic for CPE for renewal of onsite sewage system installer and onsite sewage system operator licenses.

14. Require individuals to reinstate a license by submitting a reinstatement application that includes payment of a reinstatement fee and proof of completing required continuing professional education (CPE) for license renewal.

15. Decrease by two hours the amount of CPE contact hours required during a renewal cycle for the following licensees: master and journeyman alternative onsite soil evaluators, master and journeyman alternative onsite sewage system installers, master and journeyman alternative sewage system operators, master conventional onsite soil evaluators, master conventional onsite sewage system installers, and master conventional onsite sewage system operators. For all licensees, safety subjects will not count for more than one-fourth of total required CPE hours.

16. Provide (i) general requirements applicable to training courses that may be used to substitute for required experience to qualify an applicant for licensure and (ii) that the application requirements for approval of a training course must include the information and supporting documents that must be submitted with an application.

17. Require a training course provider to (i) provide each course participant with a certificate of course completion or other proof of completion the participant may use as proof of training course completion; (ii) establish and maintain a record, which must be available for inspection during normal business hours by the board's representatives, for each course participant for a minimum of five years; and (iii) report any changes to the information provided in the application for course approval within 90 days of the change.

18. Provide that course approval may be withdrawn by the board for (i) a change that results in noncompliance with Part VIII of the regulation and (ii) failure to comply with the reporting requirements of 18VAC160-40-415 and that the board may conduct an audit of any approved training course provider to ensure compliance with the regulation.

19. Extend to 60 days the timeframe for licensees to report a change of name or address and provide that a licensee reporting a name change must provide acceptable documentation to the board that verifies the name change.

20. Significantly revise prohibited acts, including reordering to group similar types of offenses together and adding a prohibition on failure to comply with (i) the maintenance of license provisions in 18VAC160-40-450, (ii) the conflicts of interest standards in 18VAC160-40-480, and (iii) response to inquiry and provision of records requirements in 18VAC160-40-500.

21. Prohibit (i) soliciting or accepting financial or other valuable consideration from material or equipment suppliers for specifying their products or services and (ii) soliciting or accepting gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with a client or employer in connection with work for which the licensee is responsible, unless the circumstances are full disclosed to, and agreed to by, all interested parties in writing.

22. Provide for a licensee's responsibilities for regulated activities performed onsite, which include that the decision-maker on site must be a licensee of the appropriate class (conventional or alternative). In addition, a journeyman or master of the appropriate class must be on site where regulated activities are performed.

23. Provide for the pumping of alternative onsite sewage systems by conventional onsite sewage system operators. A conventional onsite sewage system operator with the appropriate sewage handling permit issued by VDH or a local independent health department may pump an alternative onsite sewage system without an alternative onsite sewage system operator present, provided the conventional operator performs the pumping at the request and direction of the alternative operator. The conventional operator is only permitted to pump the tank and is not authorized to perform any other functions associated with the operation and maintenance of the alternative onsite sewage system.

Issues: The primary advantages to the public and the regulated community are that the amendments to the regulation will (i) provide needed updating and clarification, including incorporating the board's previous interpretive guidance; (ii) reduce the regulatory burden, including revising entry requirements to allow for more pathways for individuals to qualify for licensure, while still protecting the public health, safety, and welfare; (iii) remove requirements in the regulation that are not necessary to protect the public welfare; and (iv) enhance standards of conduct and practice to protect members of the public. An anticipated advantage is that the proposed amendments potentially increase the number of individuals who may qualify for licensure, and, therefore, who may be available to members of the public to provide onsite sewage system services. The primary advantage of the regulatory change to the Commonwealth is that it will permit the agency to more ably administer the licensure program. There are no identifiable disadvantages to the public, the agency, or the Commonwealth. The agency does not anticipate any substantial disadvantages to the regulated community.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals (board) proposes to (i) significantly reduce entry qualifications for all licenses, (ii) reduce continuing education hours for most occupations, (iii) require training course providers to provide each course participant with a certificate of completion or other documentation, (iv) increase the timeframe for applicants to pass a board-approved exam after application approval from 12 to 24 months and allow passing license examination scores to remain valid for a period of 10 years from the date of examination, (v) revise license reinstatement requirements, (vi) make criminal conviction disclosures to enter an occupation less stringent while making reporting of such offenses after the initial licensure more stringent, and (vii) expand the type of operators who can work on large alternative onsite sewage systems.

Background. This regulation applies to those who install or operate onsite sewage systems, and those who perform the duties of an onsite soil evaluator, by requiring that such individuals obtain a license in order to engage in these occupations. Residences and businesses located on properties that do not have access to public sewer systems must rely on onsite septic systems to properly and safely dispose of wastewater they produce. The Department of Professional and Occupational Regulation (DPOR) states that according to a Virginia Department of Health estimate, there are at least 1,131,0941 existing onsite septic systems in Virginia. The substantive changes between the current and the proposed regulation fall under seven categories.

Estimated Benefits and Costs: License qualifications: This regulation sets out qualifications for all licensed occupations (installers, operators, soil evaluators) in tables that specify the prerequisite license type or specialty that the applicant must already have to qualify for the type of license that is sought (e.g., an applicant for a master installer license must already be a journeyman installer). In addition to the prerequisites, the tables specify whether a licensing exam is required, the type and length of training required, and the type and length of qualifying experience required. In summary, the revisions to the entry qualifications for onsite sewage system installers include (i) reduced qualifying experience requirements for master conventional, journeyman alternative, and master alternative installers; (ii) provisions allowing for individuals to qualify for master installer licenses without holding prerequisite credentials; (iii) a provision allowing for individuals with requisite training and experience to be exempt from the examination requirement for a master conventional installer license; and (iv) expanding the types of individuals who may verify experience. Revisions to the entry qualifications for onsite sewage system operators include (i) reduced qualifying experience requirements for master conventional and journeyman alternative operators; (ii) a provision allowing for individuals with master conventional installer or journeyman alternative operator licenses to qualify for a master conventional operator license; (iii) a provision allowing for individuals with master conventional operator licenses to qualify for a master alternative operator license; and (iv) an expansion of the types of individuals who may verify experience. Revisions to the entry qualifications for onsite soil evaluators include (i) reduced qualifying experience requirements for applicable, master conventional and master alternative onsite soil evaluators; (ii) provisions allowing for individuals to qualify for journeyman alternative and master alternative onsite soil evaluator licenses without holding prerequisite credentials; and (iii) an expansion of the types of individuals who may verify experience. More specifically, revisions to the tables can be found in following sections of the regulation: 120, 130, 140, 150, 160, 180, 190, 200, 210, 220, 240, 250, 260, and 270.² In short, this action contains comprehensive and significant reductions to qualifications required for all occupations licensed by the board. The proposed changes to the prerequisites generally include allowing additional specialty licenses or creating new prerequisites for some occupations. Such changes would expand the eligible applicant pools where this occurs. For some occupations, the proposed changes would provide an exemption from the examination. In those cases, affected applicants would likely save money in terms of the exam fee (i.e., $80), plus the time and effort to prepare for and take the exam; conversely, DPOR would likely see a reduction in fee revenues. The proposal would also reduce the number of training hours and the length of experience for some occupations. Such changes would allow applicants to save training costs, allow them to be licensed more quickly, and increase the likelihood of earning higher wages, which may potentially reduce the revenues of trade schools. Finally, the proposal would also expand the individuals who can verify experience, which may also lead to an increase in the pool of qualified applicants for certain license types. However, no data are available to quantify the expected reductions in fee costs, the increase in the eligible applicant pool, reductions in training costs, and increase in earning potential.

Continuing education: This action proposes a two-hour reduction in continuing education requirements for license renewal for all soil evaluators, operators, and installers, excluding those at the journeyman conventional level. The specific reductions can be found in section 330. These changes would reduce the time approximately 1,607 regulants must devote to continuing education once every two years. In theory, assuming providers collect $10 per hour for courses, the estimated lost revenue to training providers would be $16,070 per year ($10 an hour multiplied by two hours then multiplied by 1,607 regulants and divided by two years). This amount would also represent the savings to the regulants. In practice however, while shorter continuing education classes should reduce the costs of continuing education providers, whether or how much the price charged for such education would decrease is not known.

Training providers: This action would require training course providers to provide each course participant with a certificate of completion or other documentation that a participant may use as proof of training course completion. This change may impose additional time or administrative costs. This action also makes changes to recordkeeping requirements for training providers, which may affect costs.

License examination: One of the proposed changes in this category would increase the timeframe for applicants to pass a board-approved exam after application approval from 12 to 24 months. A longer time period to pass the exam should increase the likelihood of obtaining a passing score and improve the exam success rate. Another related change would allow passing license examination scores to remain valid for a period of 10 years from the date of examination. This change would make it easier to obtain re-licensure in the event a license becomes expired and is no longer eligible for reinstatement. An applicant whose passing score on the license examination is still valid would not have to pay the $80 examination fee or spend time preparing for and taking the re-examination.

License reinstatement: The proposal would increase the license reinstatement period from 12 months to 24 months. This change extends the period of time an individual has to reinstate an expired license without the need to obtain a new license and without having to incur associated costs. On the other hand, the proposal would also require an individual reinstating a license to provide proof of completing required continuing hours to reinstate. This may impose an increased administrative cost on those who reinstate a license. This could potentially affect about 22 individuals per year.

Disclosure and reporting of criminal offenses: This action would (i) specify that applicants for licensure must disclose felony convictions from the last 20 years instead of all felony convictions; and (ii) limit the scope of misdemeanor convictions that must be disclosed to those involving lying, cheating, or stealing. Less stringent disclosure requirements may encourage applicants who may have previously been discouraged from applying based on their prior criminal history. Once such convictions are disclosed, the board determines if the conviction would merit a disqualification for licensure. In that sense, the narrowed range of offenses requiring disclosure may lead to reduced administrative costs for the agency to evaluate and may also result in fewer disqualifications. For example, DPOR reports that over the last three years the board has conducted 20 informal fact-finding conferences (IFFs) regarding past felony convictions. Of those 20 IFFs, there were five cases that solely involved felony convictions that occurred over 20 years prior to the application date. With the average cost of an hour-long IFF at around $471, the agency would have saved $2,355 (number of IFFs for felonies over 20 years prior multiplied by cost of IFF) over the past three years or $785 per year. Conversely, for those already licensed, the proposal would be revised to remove the provision that specified certain types of misdemeanor offenses which be reported. A licensee would be required to report any misdemeanor conviction, with the exception of marijuana convictions. This change would expand the range of misdemeanor offenses that must be reported to the board. In that sense, the extended range of offenses requiring reporting may lead to increased administrative costs for the agency to evaluate and potentially result in more disciplinary actions.

Large alternative onsite sewage systems: The proposal would revise the licensure requirements for the operation and maintenance of alternative onsite sewage systems that are designed to exceed 10,000 gallons flow per day to be less restrictive. Currently, owners of large alternative onsite sewage systems must have the system operated by an individual who is licensed as both a Class 4 wastewater works operator and as an alternative onsite sewage system operator. However, the board reports that there are only approximately 50 individuals who hold both credentials. Thus, owners may not be able to find, or pay for, an individual who has both types of licenses under the current rules. Under the proposal, however, up to 325 Class 4 wastewater operators and 245 alternative onsite sewage system operators could potentially satisfy the regulatory requirements. This essentially means that the supply of operators for these systems would increase, which in turn may lead to a reduction in service prices.

Businesses and Other Entities Affected. According to DPOR, as of February 1, 2025, there were 1,731 individuals who hold an active license as an onsite sewage system installer, onsite sewage system operator, or onsite soil evaluator; and 23 training providers. The proposed action would also affect an undetermined number of unlicensed individuals who might seek an onsite sewage system professional license. No entity appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ The proposed changes may reduce the revenues of training providers; it may also add administrative costs for the continuing education providers and reduce their revenues. Thus, an adverse impact is indicated.

Small Businesses⁵ Affected.⁶ Onsite sewage system professional licenses are issued to individuals, and not to business entities. However, many licensed onsite sewage system professionals are likely owners or employees of business entities that meet the definition of small business in § 2.2-4007.1 of the Code of Virginia. In addition, training providers are likely business entities that meet the definition of "small business" in § 2.2-4007.1 of the Code of Virginia. The costs and benefits of this regulatory change are identified. To the extent that additional costs are assumed by small business entities, this regulatory change would impact small businesses. Types and Estimated Number of Small Businesses Affected: There are 23 training providers that are likely small businesses. Costs and Other Effects: The proposal is expected to add to compliance costs or reduce revenues of training and continuing education providers. Alternative Method that Minimizes Adverse Impact: There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities⁷ Affected.⁸ The proposed amendments do not introduce costs for localities, nor do they affect any locality more than others.

Projected Impact on Employment. Less stringent qualification requirements may cause more applicants entering the profession. However, that does not mean that there would be an increase in the workforce as they may be simply switching jobs. Thus, the net impact on employment is difficult to predict.

Effects on the Use and Value of Private Property. The potential negative cost and revenue impact on training and continuing education providers may negatively affect their asset values. No impact on real estate development costs is expected.

_____________________________

¹ Section 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.

² See https://townhall.virginia.gov/L/ViewXML.cfm?textid=19139.

³ Pursuant 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.

⁴ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant 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."

⁶ If 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.

⁷ "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.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Response to Economic Impact Analysis: The Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments (i) significantly reduce entry qualifications for all licenses, (ii) reduce continuing education hours for most occupations, (iii) require training course providers to provide each course participant with a certificate of completion or other documentation, (iv) increase the timeframe for applicants to pass a board-approved exam after application approval to 24 months and allow passing license examination scores to remain valid for a period of 10 years from the date of examination, (v) revise license reinstatement requirements, (vi) make criminal conviction disclosures to enter an occupation less stringent while making reporting of such offenses after the initial licensure more stringent, and (vii) expand the type of operators who can work on large alternative onsite sewage systems.

18VAC160-40-10. Definitions.

A. Section 54.1-2300 of the Code of Virginia provides definitions of the following terms and phrases as used in this chapter:

"Board"

"Onsite sewage system"

"Operator"

"Wastewater works"

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

"Address of record" means the mailing address designated by the licensee to receive notices and correspondence from the board.

"Alternative onsite sewage system" means a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge.

"Alternative onsite sewage system installer" means an individual licensed by the board to construct, install, and repair conventional and alternative onsite sewage systems.

"Alternative onsite sewage system operator" means an individual licensed by the board to operate and maintain conventional and alternative onsite sewage systems.

"Alternative onsite soil evaluator" means an individual licensed by the board to evaluate soils and soil properties in relationship to the effect of these properties on the use and management of these soils as the locations for conventional and alternative onsite sewage systems, to certify in accordance with applicable state regulations and local ordinances that sites are suitable for conventional and alternative onsite sewage systems, and to design conventional and alternative onsite sewage systems suitable for the soils.

"Applicant" means an individual who submits has submitted an application with the appropriate fee and other required documentation for licensure.

"Application" means a completed, board-prescribed form submitted with the appropriate fee and other required documentation.

"Authorized onsite soil evaluator" means an individual holding an authorized onsite soil evaluator certification issued by the Virginia Department of Health that was valid on June 30, 2009.

"Category" means journeyman or master as applicable to the professionals under the board's purview.

"Class" means conventional or alternative as applicable to the professionals under the board's purview.

"CPE" means continuing professional education.

"Contact hour" means 50 minutes of participation in a structured training activity.

"Conventional onsite sewage system" means a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield.

"Conventional onsite sewage system installer" means an individual licensed by the board to construct, install, and repair conventional onsite sewage systems.

"Conventional onsite sewage system operator" means an individual licensed by the board to operate and maintain conventional onsite sewage systems.

"Conventional onsite soil evaluator" means an individual licensed by the board to evaluate soils and soil properties in relationship to the effects of these properties on the use and management of these soils as the locations for conventional and alternative onsite sewage systems, to certify in accordance with applicable state regulations and local ordinances that sites are suitable for conventional and alternative onsite sewage systems, and to design conventional onsite sewage systems suitable for the soils.

"Department" means the Virginia Department of Professional and Occupational Regulation.

"DEQ" means the Department of Environmental Quality.

"Direct supervision" means being immediately available and fully responsible for the provision of onsite sewage system services regulated pursuant to Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia and this chapter.

"Interim license" refers to the initial issuance of professional licenses during the implementation of the onsite sewage system professionals licensure program. Such licenses were limited to four years and not renewable.

"Journeyman" means an individual who possesses the minimum skills and competency to install or maintain onsite sewage systems or assist in the evaluation of soil sites as suitable for conventional and alternative onsite sewage systems and to design onsite sewage systems, all while under the direct supervision of a master licensee.

"Licensee" means an individual holding a valid license issued by the board.

"Licensure" means a method of regulation whereby the Commonwealth, through the issuance of a license, authorizes a person possessing the character and minimum skills to engage in the practice of a profession or occupation that is unlawful to practice without such license.

"Maintenance" or "maintain" means, unless otherwise provided in local ordinance, (i) performing adjustments to equipment and controls or (ii) in-kind replacement of normal wear and tear parts that do not require a construction permit for adjustment or replacement of the component, such as light bulbs, fuses, filters, pumps, motors, sewer lines, conveyance lines, distribution boxes, header lines, or other like similar components. Maintenance includes pumping the tanks or cleaning the building sewer on a periodic basis. Notwithstanding any local ordinance, "maintenance" does not include replacement of tanks, drainfield piping, subsurface drainfields, or work requiring a construction permit and a licensed onsite sewage system installer. Unless otherwise prohibited by local ordinance, a conventional onsite sewage system installer or an alternative onsite sewage system installer may perform maintenance work limited to in-kind replacement of light bulbs, fuses, filters, pumps, sewer lines, conveyance lines, distribution boxes, and header lines.

"Master" means an individual who possesses the minimum skills and competency to install or maintain onsite sewage systems or evaluate soil sites as suitable for conventional and alternative onsite sewage systems and to design conventional and alternative onsite sewage systems.

"Operate" means the act of (i) placing into or taking out of service a unit process or (ii) making or causing adjustments in the operation of a unit process at a treatment works.

"Profession" means the practice of onsite soil evaluation, onsite sewage system installation, and onsite sewage system operation and maintenance.

"Professional" means an onsite sewage system installer, onsite sewage system operator, or onsite soil evaluator who is licensed pursuant to the provisions of this chapter and is in good standing with the board to practice his the profession in this the Commonwealth.

"Renewal" means the process and requirements for periodically approving the continuance of a license.

"Sewage" means water-carried and nonwater-carried human excrement or kitchen, laundry, shower, bath, or lavatory wastes separately or together with such underground, surface, storm, or other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments, or other places.

"Training credit" means a unit of board-approved training or formal education completed by an individual that may be used to substitute for experience when applying for a license.

"Treatment works" means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including pumping, power, and other equipment and appurtenances, septic tanks and any works, including land, that are or will be (i) an integral part of the treatment processes or (ii) used for ultimate disposal or of residues or effluent resulting from such treatment.

"VDH" means the Virginia Department of Health.

18VAC160-40-20. Application procedures.

A. All applicants seeking licensure shall must submit an application with the appropriate fee in 18VAC160-40-40. Applications shall will be made on forms provided by the board or the board's agent.

1. By submitting the application form and fee to the department, the applicant certifies that the applicant has read and understands the applicable statutes and the board's regulations.

2. The receipt of an application and the deposit of fees by the board does not indicate approval of the application by the board.

B. The board may make further inquiries and investigations with respect to the applicant's qualifications to confirm or amplify information supplied. All applications shall must be completed in accordance with the instructions contained in this chapter section and on the application. Applications will not be considered complete until all required documents are received by the board. If an examination is required for licensure, the applicant will not be permitted to sit for the applicable board-approved examination until the application is complete and approved.

C. The applicant will be notified within 30 days of the board's receipt of an initial application if the application is incomplete. An individual who fails to complete the process within 12 months of receipt of the application in the board's office must submit a new application. If applicable, the applicant has 12 24 months from approval of the application to pass the board-approved examination. Failure to pass the board-approved examination within 12 24 months of approval will result in the applicant being required to submit a new application to be considered for licensure.

D. The applicant shall must immediately report all changes in information supplied with the application, if applicable, prior to the issuance of the license or expiration of the application or examination period.

18VAC160-40-30. General fee requirements.

All fees are nonrefundable and shall will not be prorated. The date on which the fee is received by the department or its the department's agent will determine whether the fee is on time. Checks or money orders shall must be made payable to the Treasurer of Virginia.

18VAC160-40-40. Fee schedule.

Fees for an onsite sewage system professional license are as provided in this section.

Fee Type	Fee Amount	When Due
Initial application (for each profession, class, and category of license)	$100	With application
Renewal (for each profession, class, and category of license)	$80	With renewal application
Reinstatement (for each profession, class, and category of license)	$105 (renewal fee + $25 reinstatement fee)	With reinstatement application

For licenses expiring on or after January 31, 2018, and before January 31, 2020, the renewal fee shall be $50. For reinstatement applications received after January 31, 2018, and on or before January 31, 2020, the total reinstatement fee shall be $75.

18VAC160-40-50. Examination fee.

The fee fees for examination or reexamination is all examinations are subject to charges to the department by an outside vendor based on a contract entered into in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). Fees may be adjusted and charged to the candidate in accordance with this contract.

18VAC160-40-60. General requirements for licensure.

A. In addition to the specific qualifications for each profession, class, and category of licensure, each applicant for licensure shall must meet the requirements provided in this section: 1..

B. The applicant shall must be at least 18 years old.

2. C. The applicant shall disclose his must provide a mailing address, which will serve as the address of record. A post office box is only acceptable as a mailing the address of record when a physical address is also provided.

3. D. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall must disclose the following information:

a. 1. All felony convictions that occurred within 20 years of the date of application.

b. 2. All misdemeanor convictions, except marijuana convictions, involving lying, cheating, or stealing that occurred within three years of the date of application.

Any plea of nolo contendere or finding of guilt regardless of adjudication or deferred adjudication shall be considered a conviction for the purposes of this section. The record of conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt.

B. The board, at in its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia. C. The applicant has the right to request further review of any such action by the board under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

E. The applicant shall must report any suspension, revocation, or surrender of a license, certification, or registration in connection with a disciplinary action taken by any board or that has been subject of discipline in any jurisdiction prior to applying for licensure administrative body in any jurisdiction against a professional or occupational license, certification, or registration issued to the applicant, to include any suspension, revocation, or surrender of a license, certification, or registration, imposition of a monetary penalty, or requirement to take remedial education or other corrective action. The board at in its discretion may deny licensure to any applicant based on for any prior suspensions, revocations, or surrenders of licenses based on disciplinary action taken by any board or administrative body in any jurisdiction. The applicant has the right to request further review of any such action by the board under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

F. The applicant for licensure must be in compliance with the standards of conduct and practice set forth in Part IX (18VAC160-40-440 et seq.) of this chapter at the time of application, while the application is under review by the board, and at all times when the license is in effect.

18VAC160-40-70. Education and training for experience.

A. Each individual applying for a license may receive credit for up to half of the required experience for:

1. Satisfactory completion of postsecondary courses in wastewater, biology, chemistry, geology, hydraulics, hydrogeology, engineering, environmental science, agronomy, earth science, environmental health, or soil science at the rate of one month per semester hour or two-thirds of a month per quarter hour; or

2. Satisfactory completion of board-approved onsite sewage system installer or, onsite sewage system operator, or onsite soil evaluation training courses, as applicable to the license sought, at the rate of one month for each training credit earned. Up to one training credit is will be awarded for each 10 hours of classroom contact time or for each 20 hours of laboratory exercises and field trip contact time. Training credit is will not be earned for breaks, meals, or receptions, and time other than classroom, laboratory, and field trip contact time. A training credit awarded is equivalent to one month of experience.

B. Education used to meet the education requirements to qualify for licensure may not be substituted for experience.

18VAC160-40-80. Examination procedures and conduct.

A. Upon approval of the application In those instances where an applicant is required to take an examination for licensure, the board will notify the applicant of his the applicant's eligibility to take the applicable examination upon approval of the application. The license will not be issued prior to the receipt of a passing score for the applicable examination.

B. An applicant who does not receive a passing score within one year 12 months after the date of approval of the application by the board to sit for the examination must submit a new application and meet entry requirements in effect at the time of the submittal of the new application.

C. In those instances where the applicant is required to take an examination for licensure, the The applicant shall must follow all rules established by the board with regard to conduct at the examination. Such rules shall will include written instructions communicated prior to the examination date and instructions communicated at the site, either written or oral, on the date of the examination. Failure to comply with all rules established by the board and the testing organization with regard to conduct at the examination shall will be grounds for denial of the application, voiding of examination scores, or any combination thereof.

D. A passing examination score received by an applicant is valid for a period of 10 years from the date of the examination.

18VAC160-40-90. Individuals certified or licensed in another jurisdiction.

Any applicant holding a valid an active, current license or certificate in another jurisdiction shall must meet the requirements of this chapter, including having equivalent experience and education. The applicant shall must pass the appropriate board-approved examination to become licensed in those instances where an examination for licensure is required.

18VAC160-40-100. Full-time experience or equivalent.

For the purpose of this part chapter, experience requirements are expressed in terms of calendar periods of full-time employment as an operator, installer, or onsite soil evaluator in the same class for which licensure is sought.

1. A year of full-time employment is defined as a minimum of 1,760 hours during a 12-month period or a minimum of 220 workdays in a 12-month period. A workday is defined as performing or assisting in the duties of an installer, operator, or onsite soil evaluator to the extent required for the proper installation or maintenance of onsite sewage systems or the evaluation of soil and soil properties for suitability as locations for onsite sewage systems. More than 1,760 hours or 220 workdays during a 12-month period will not be considered as more than one year of full-time employment.

2. Partial credit may be given for actual hours of work experience if the applicant works less than full time.

18VAC160-40-105. Master licenses; conversion of licenses on April 1, 2017. (Repealed.)

A. An individual holding a current license issued by the board that was valid on March 31, 2017, will be issued a master license in the same class and category of license, and with the same expiration date.

1. A conventional onsite sewage system installer license that is current on March 31, 2017, will be converted to a master conventional onsite sewage system installer license.

2. An alternative onsite sewage system installer license that is current on March 31, 2017, will be converted to a master alternative onsite sewage system installer license.

3. A conventional onsite sewage system operator license that is current on March 31, 2017, will be converted to a master conventional onsite sewage system operator license.

4. An alternative onsite sewage system operator license that is current on March 31, 2017, will be converted to a master alternative onsite sewage system operator license.

5. A conventional onsite soil evaluator license that is current on March 31, 2017, will be converted to a master conventional onsite soil evaluator license.

6. An alternative onsite soil evaluator license that is current on March 31, 2017, will be converted to a master alternative onsite soil evaluator license.

B. Any license issued pursuant to this section may be subject to disciplinary action in accordance with this chapter for any violation of the regulations that occurred under the license held prior to conversion in accordance with this section.

18VAC160-40-110. License required.

A. No individual shall may install a conventional or alternative onsite sewage system without a valid onsite sewage system installer license issued by the board in the appropriate class.

B. An individual cannot simultaneously hold valid master and journeyman onsite sewage system installer licenses in the same class. Issuance of a master onsite sewage system installer license in a specific class shall void the journeyman onsite sewage system installer license in the same class.

C. An individual cannot simultaneously hold valid conventional and alternative master onsite sewage system installer licenses or conventional and alternative journeyman onsite sewage system installer licenses. Issuance of a master alternative onsite sewage system installer license shall void the conventional onsite sewage system installer license.

D. B. A journeyman onsite sewage system installer must work under the direct supervision of a licensed master onsite sewage system installer with the appropriate class of license. A master onsite sewage system installer is responsible for supervising the provision of onsite sewage system installations by any journeyman onsite sewage system installers under his the master onsite sewage system installer's direct supervision. A master alternative onsite sewage system installer licensee may supervise a journeyman conventional onsite sewage system installer licensee.

E. C. Experience used to qualify for licensure cannot be verified by a journeyman onsite sewage system installer.

18VAC160-40-115. Documented qualifying experience for onsite sewage system installers.

All qualifying experience submitted by an applicant in accordance with this part must be verified by one or more of the following:

1. Master conventional or alternative onsite soil evaluator;

2. Master conventional or alternative onsite sewage system installer;

3. Master conventional or alternative onsite sewage system operator;

4. Professional engineer;

5. VDH permitting or inspection official;

6. Professional geologist;

7. DEQ wastewater official; or

8. For experience gained outside of Virginia, an equivalent credential to these licenses.

18VAC160-40-120. Qualifications for journeyman conventional onsite sewage system installer licenses.

An applicant for licensure as a journeyman conventional onsite sewage system installer shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Employee, owner, director, or officer of a properly licensed contractor with a conventional sewage disposal system contracting (SDS CDS) or alternative sewage disposal system contracting (ADS) specialty issued by the Virginia Board for Contractors	No	No	Six months of full-time experience assisting with the installation of conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
2.	Master conventional or alternative onsite sewage system operator license or journeyman conventional or alternative onsite sewage system operator license	No		Three months of full-time experience operating conventional or alternative onsite sewage systems
3.	None	No	No	One year of full-time experience assisting with the installation of conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator

18VAC160-40-130. Qualifications for master conventional onsite sewage system installer licenses.

An applicant for licensure as a master conventional onsite sewage system installer shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Employee, owner, director, or officer of a properly licensed contractor with a conventional sewage disposal system contracting (SDS CDS) or alternative sewage disposal system contracting (ADS) specialty issued by the Virginia Board for Contractors	Yes	20 hours of training approved by the board covering basic installation of conventional or alternative onsite sewage systems	One year Six months of full-time experience installing conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
2.	Employee, owner, director, or officer of a properly licensed contractor with a conventional sewage disposal system contracting (SDS CDS) or alternative sewage disposal system contracting (ADS) specialty issued by the Virginia Board for Contractors	Yes	No	Two years One year of full-time experience installing conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
3.	Interim conventional onsite sewage system installer or journeyman Journeyman conventional or alternative onsite sewage system installer license	Yes	20 hours of training approved by the board covering basic installation of conventional or alternative onsite sewage systems	Two years Three months of full-time experience installing conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
4.	Interim conventional onsite sewage system installer journeyman Journeyman conventional or alternative onsite sewage system installer license	Yes	No	Three years Six months of full-time experience installing conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
5.	Master conventional or alternative onsite sewage system operator license	Yes	No	Three months of full-time experience installing conventional or alternative onsite sewage systems
6.	None	Yes	No	Two years of full-time experience installing conventional or alternative onsite sewage systems

18VAC160-40-140. (Reserved) Qualification for exemption from examination for master conventional onsite sewage system installer applicants.

A. Applicants seeking licensure as a master conventional onsite sewage system installer may be exempt from the examination, provided that the applicant meets the requirements of 18VAC160-40-60 and provides documentation acceptable to the board of one of the following:

1. The applicant has completed a minimum of 40 hours of board-approved training and has been actively engaged in performing the duties of a conventional onsite sewage system installer for at least six years immediately preceding application; or

2. The applicant has been actively engaged in performing the duties of a conventional onsite sewage system installer for at least 10 years immediately preceding application.

B. Documentation of qualifying experience may be verified by a master conventional or alternative onsite soil evaluator, a master conventional or alternative onsite sewage system installer, a master conventional or alternative onsite sewage system operator, a professional engineer, an authorized onsite soil evaluator, VDH permitting or inspection official, professional geologist, DEQ wastewater official, or, for experience gained outside of Virginia, an equivalent credential to these licenses.

18VAC160-40-150. Qualifications for journeyman alternative onsite sewage system installer licenses.

An applicant for licensure as a journeyman alternative onsite sewage system installer shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Employee, owner, director, or officer of a properly licensed contractor with a an alternative sewage disposal system contracting (SDS ADS) specialty issued by the Virginia Board for Contractors	No	No	One year of full-time experience assisting with the installation of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
2.	Master alternative onsite sewage system operator license or journeyman alternative onsite sewage system operator license	No		Three months of full-time experience assisting with the installation of alternative onsite sewage systems
3.	None	No	No	Two years 18 months of full-time experience assisting with the installation of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator

18VAC160-40-160. Qualifications for master alternative onsite sewage system installer licenses.

An applicant for licensure as a master alternative onsite sewage system installer shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Employee, owner, director, or officer of a properly licensed contractor with a an alternative sewage disposal system contracting (SDS ADS) specialty issued by the Virginia Board for Contractors	Yes	No	Two years of full-time experience installing alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
2.	Employee, owner, director, or officer of a properly licensed contractor with a an alternative sewage disposal system contracting (SDS ADS) specialty issued by the Virginia Board for Contractors	Yes	20 hours of training approved by the board covering the basic installation of alternative onsite sewage systems	18 months of full-time experience installing alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
3.	No	Yes	20 hours of training approved by the board covering basic installation of alternative onsite sewage systems	Three years 30 months of full-time experience installing alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
4.	Interim alternative onsite sewage system installer or Master conventional onsite sewage system installer or journeyman alternative onsite sewage system installer license	Yes	No	18 months One year of full-time experience installing alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator
5.	Master alternative onsite sewage system operator license	Yes	No	Three months of full-time experience installing alternative onsite sewage systems
6.	None	Yes	No	Three years of full-time experience installing alternative onsite sewage systems

18VAC160-40-170. License required.

A. No individual shall may operate or maintain a conventional or alternative onsite sewage system without a valid onsite sewage system operator license issued by the board in the appropriate class.

B. An individual cannot simultaneously hold valid master and journeyman onsite sewage system operator licenses in the same class. Issuance of a master onsite sewage system operator license in a specific class shall void the journeyman onsite sewage system operator license in the same class.

C. An individual cannot simultaneously hold valid conventional and alternative master onsite sewage system operator licenses or conventional and alternative journeyman onsite sewage system operator licenses. Issuance of a master alternative onsite sewage system operator license shall void the conventional onsite sewage system operator license.

D. B. A journeyman onsite sewage system operator must work under the direct supervision of a licensed master onsite sewage system operator with the appropriate class of license. A master onsite sewage system operator is responsible for supervising the operation and maintenance of the onsite sewage system by any journeyman onsite sewage system operator under his the master onsite sewage system operator's responsibility. A master alternative onsite sewage system operator licensee may supervise a journeyman conventional onsite sewage system operator licensee.

E. C. Experience used to qualify for licensure cannot be verified by a journeyman onsite sewage system operator.

F. No individual shall act as an D. An alternative onsite sewage system operator of an alternative onsite sewage system that exceeds 10,000 gallons per day design flow without possessing must have operations and maintenance performed by either (i) an individual who is licensed as both an alternative onsite sewage system operator and a Class 4 or higher wastewater works operator license in addition to an alternative onsite sewage system operator license or (ii) an individual who is licensed as an alternative onsite sewage system operator and an individual who is licensed as a Class 4 or higher wastewater works operator who are working together pursuant to an employment relationship, contract, or other written agreement.

18VAC160-40-175. Documented qualifying experience for onsite sewage system operators.

All qualifying experience submitted by an applicant in accordance with this part must be verified by one or more of the following:

1. Master conventional or alternative onsite soil evaluator;

2. Master conventional or alternative onsite sewage system operator;

3. Master conventional or alternative onsite sewage system installer;

4. Professional engineer;

5. VDH permitting or inspection official;

6. Professional geologist;

7. DEQ wastewater official; or

8. For experience gained outside of Virginia, an equivalent credential to these licenses.

18VAC160-40-180. Qualifications for journeyman conventional onsite sewage system operator licenses.

An applicant for licensure as a journeyman conventional onsite sewage system operator shall must furnish acceptable documentation that the following qualification has been met:

Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
None	No	No	Six months of full-time experience assisting with the operation and maintenance of conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator

18VAC160-40-190. Qualifications for master conventional onsite sewage system operator licenses.

An applicant for licensure as a master conventional onsite sewage system operator shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Wastewater works operator license	Yes	No	None
2.	No	Yes	10 hours of education approved by the board covering the basics of operation and maintenance of conventional onsite sewage systems	Six months of full-time experience in the operation and maintenance of conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator
3.	Master conventional onsite sewage system installer or journeyman alternative onsite sewage system operator license	Yes	No	Six months of full-time experience in the operation and maintenance of conventional or alternative onsite sewage systems
4.	No	Yes	No	One year Nine months of full-time experience in the operation and maintenance of conventional or alternative onsite sewage systems verified by one or more of the following: an onsite soil evaluator, an onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator

18VAC160-40-200. Qualification for exemption from examination for master conventional onsite sewage system operator applicants.

Applicants seeking licensure as a master conventional onsite sewage system operator may be exempt from the examination provided the applicant:

1. Is able to satisfactorily demonstrate that he the applicant has been actively engaged in performing the duties of a conventional onsite sewage system operator for at least four years immediately preceding application. Documentation of qualifying experience may be verified by a master conventional or alternative onsite soil evaluator, a master conventional or alternative onsite sewage system operator, a master conventional or alternative onsite sewage system installer, a professional engineer, or an authorized onsite soil evaluator, a VDH permitting or inspection official, a professional geologist, a DEQ wastewater official, or, for experience gained outside of Virginia, an equivalent credential to these licenses; and

2. Meets the requirements of 18VAC160-40-60.

18VAC160-40-210. Qualifications for journeyman alternative onsite sewage system operator licenses.

An applicant for licensure as a journeyman alternative onsite sewage operator shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	None	No	20 hours of education approved by the board covering the basics of operation and maintenance of alternative onsite sewage systems	One year Nine months of full-time experience assisting with the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative sewage system operator, a professional engineer, or an authorized onsite soil evaluator
2.	None	No	None	Two years 18 months of full-time experience assisting with the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative sewage system operator, a professional engineer, or an authorized onsite soil evaluator

18VAC160-40-220. Qualifications for master alternative onsite sewage system operator licenses.

An applicant for licensure as a master alternative onsite sewage system operator shall must furnish acceptable documentation that one of the following has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Held or holds a master conventional onsite sewage system operator license	Yes	10 Eight hours of training approved by the board covering the basics of operation and maintenance of alternative onsite sewage systems	One year of full-time experience in the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator
2.	Held or holds a master or journeyman conventional onsite sewage system operator license	Yes	No	18 months of full-time experience in the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator
3.	None	Yes	20 16 hours of training approved by the board covering the basics of operation and maintenance of alternative onsite sewage systems	Two years of full-time experience in the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator
4.	Wastewater works operator license	Yes	No	Six months of full-time experience in the operation and maintenance of alternative onsite sewage systems verified by one or more of the following: an alternative onsite soil evaluator, an alternative onsite sewage system operator, a professional engineer, or an authorized onsite soil evaluator
5.	Wastewater works operator license	Yes	20 16 hours of training approved by the board in basics of operation and maintenance of alternative onsite sewage systems	No

18VAC160-40-230. License required.

A. Notwithstanding the provisions of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, no individual shall may perform the duties of an onsite soil evaluator without possessing a valid license issued by the board.

B. An individual cannot simultaneously hold master and journeyman onsite soil evaluator licenses in the same class. Issuance of a master onsite soil evaluator license in a specific class shall void the journeyman onsite soil evaluator license in the same class.

C. An individual cannot simultaneously hold valid conventional and alternative master onsite soil evaluator licenses or conventional and alternative journeyman onsite soil evaluator licenses. Issuance of an alternative master onsite soil evaluator license shall void the conventional onsite soil evaluator license.

D. B. A journeyman onsite soil evaluator must work under the direct supervision of a master onsite soil evaluator with the appropriate class of license. A master onsite soil evaluator of an equal or greater class is responsible for supervising the provision of onsite soil evaluations and designs by any journeyman onsite soil evaluator under his the master onsite soil evaluator's responsibility.

E. C. Experience to qualify for licensure cannot be verified by a journeyman onsite soil evaluator.

18VAC160-40-235. Documented qualifying experience for onsite soil evaluators.

All qualifying experience submitted by an applicant in accordance with this part must be verified by one or more of the following:

1. Master conventional or alternative onsite soil evaluator;

2. Master conventional or alternative onsite sewage system installer;

3. Master conventional or alternative onsite sewage system operator;

4. Professional engineer;

5. VDH permitting or inspection official;

6. Professional geologist;

7. DEQ wastewater official; or

8. For experience gained outside of Virginia, an equivalent credential to these licenses.

18VAC160-40-240. Qualifications for journeyman conventional onsite soil evaluator licenses.

An applicant for licensure as a journeyman conventional onsite soil evaluator shall must furnish acceptable documentation that one of the following has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Virginia professional Professional soil scientist license	No	No	No
2.	No	No	No	One and one-half years 18 months of full-time experience assisting in the evaluation of site and soil conditions and design of conventional onsite sewage systems verified by one or more of the following: an authorized soil evaluator, a professional engineer, or an onsite soil evaluator
3.	No	No	VDH onsite sewage system training program	One year of full-time experience assisting in the evaluation of site and soil conditions and design of conventional onsite sewage systems verified by one or more of the following: an authorized soil evaluator, a professional engineer, or an onsite soil evaluator

18VAC160-40-250. Qualifications for master conventional onsite soil evaluator licenses.

An applicant for licensure as a master conventional onsite soil evaluator shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	No	Yes	Master's or bachelor's degree	Two years of full-time experience evaluating site and soil conditions and designing conventional onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an onsite soil evaluator
2.	No	Yes	Associate's degree	Three years 30 months of full-time experience evaluating site and soil conditions and designing conventional onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an onsite soil evaluator
3.	No	Yes	VDH onsite sewage system training program	Two years of full-time experience evaluating site and soil conditions and designing conventional onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an onsite soil evaluator
4.	Journeyman or interim conventional onsite soil evaluator	Yes	No	Three Two years of full-time experience evaluating site and soil conditions and designing conventional onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an onsite soil evaluator
5.	Virginia professional Professional soil scientist license	Yes	No	One year of full-time experience evaluating site and soil conditions and designing conventional onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an onsite soil evaluator.

18VAC160-40-260. Qualifications for journeyman alternative onsite soil evaluator licenses.

An applicant for licensure as a journeyman alternative onsite soil evaluator shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	Virginia professional Professional soil scientist license	No	No	One year of full-time experience assisting in the evaluation of site and soil conditions and design of alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator , a professional engineer, or an alternative soil evaluator
2.	Possess or held either a valid interim alternative onsite soil evaluator license or a conventional onsite soil evaluator license	No	No	One year of full-time experience assisting in the evaluation of site and soil conditions and design of alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator a professional engineer, or an alternative soil evaluator
3.	An authorized onsite soil evaluator No	No	No VDH onsite sewage system training program	One year of full-time experience assisting in the evaluation of site and soil conditions and design of alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative soil evaluator
4.	No	No	No	Two years of full-time experience assisting in the evaluation of site and soil conditions and design of alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative soil evaluator

18VAC160-40-270. Qualifications for master alternative onsite soil evaluator licenses.

An applicant for licensure as a master alternative onsite soil evaluator shall must furnish acceptable documentation that one of the following qualifications has been met:

	Prerequisites	Exam Required	Education Required	Documented Qualifying Experience
1.	No	Yes	Master's or bachelor's degree	Two years of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative onsite soil evaluator
2.	No	Yes	Associate's degree	Three years 30 months of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative onsite soil evaluator
3.	No	Yes	VDH onsite sewage system training program	Two years of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems
4.	Held or holds a master conventional onsite soil evaluator license, interim alternative onsite soil evaluator license, or a journeyman alternative onsite soil evaluator license, or authorized onsite soil evaluator license	Yes	No	Two years 18 months of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative onsite soil evaluator
4. 5.	No	Yes	No	Four Three years of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative onsite soil evaluator
5. 6.	Virginia licensed professional Professional soil scientist license	Yes	No	Two years of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator, a professional engineer, or an alternative onsite soil evaluator

18VAC160-40-275. Verification of experience by authorized onsite soil evaluators. (Repealed.)

An authorized onsite soil evaluator who is verifying experience pursuant to Part II of this chapter and who holds no other license listed as qualified to verify experience may only verify experience obtained before July 1, 2009.

18VAC160-40-280. Acceptable degree programs and verification procedures.

A. Applicants seeking to qualify for licensure based on completion of an associate's, bachelor's, or master's degree shall must submit an official transcript from the school where the applicable degree was obtained. Only degrees a degree from an accredited college or university that is approved or accredited by the Commission on Colleges of the Southern Association of Colleges and Schools, a regional or national accreditation association, or by an accrediting agency that is recognized by the U.S. Secretary of Education will be considered. The following degrees shall will be considered to qualify in accordance with 18VAC160-40-250 and 18VAC160-40-270:

1. Bachelor's or, master's, or associate's degree in soil science, biology, chemistry, engineering, engineering technology, environmental science, geology, agronomy, earth science, or environmental health, wastewater works, or applied sciences.

2. Associate's degree in wastewater works, environmental science, or engineering technology.

3. 2. Bachelor's degree in a related physical, biological, environmental, or chemical science that includes a minimum of 40 semester credit hours in any combination of science and math.

B. Any applicant who has earned a degree from an institution outside of the United States shall must have the degree authenticated and evaluated by an education credential evaluation services. The board reserves the right to reject any evaluation submitted by the applicant.

18VAC160-40-290. Expiration and renewal Renewal required.

A. A license shall will expire two years from the last day of the month in which it was issued.

B. Prior to the expiration date shown on the license, the board shall mail a renewal notice to the licensee's address of record. The licensee shall return a renewal notice and the applicable renewal fee. Failure to receive a renewal notice from the board does not relieve the licensee of the obligation to renew. If the licensee fails to receive the renewal notice, a copy of the license may be submitted with the required fee as an application for renewal.

C. By submitting the renewal fee, the licensee is certifying his continued compliance with the Standards of Practice and Conduct (Part IX (18VAC160-40-440 et seq.) of this chapter) as established by the board. In addition, by submitting the renewal fee, licensees are certifying compliance with the continuing professional education requirements of this chapter.

18VAC160-40-295. Procedures for renewal.

A. Prior to the expiration date shown on the license, the board will send a renewal notice to the licensee's address of record.

B. Prior to the expiration date shown on the license, a licensee desiring to renew a license must return to the board a renewal notice and the applicable renewal fee specified in 18VAC160-40-40.

C. Failure to receive a renewal notice from the board does not relieve the licensee of the obligation to renew. If the licensee fails to receive the renewal notice, a copy of the license may be submitted with the required fee as an application for renewal.

D. By submitting the renewal fee, the licensee is affirming that the continuing professional education requirements of 18VAC160-40-330 have been met and that the licensee is in continued compliance with this chapter.

18VAC160-40-300. Reinstatement.

A. If all the requirements for renewal of the license as specified provided in 18VAC160-40-290 are not completed by the licensee within 30 days of after the license expiration date on the license, a reinstatement fee shall of the license will be required as established in 18VAC160-40-40.

B. A license may be reinstated for up to one year 24 months following the expiration date of the license upon submittal of the reinstatement application consisting of (i) payment of the reinstatement fee specified in 18VAC160-40-40 and (ii) proof of CPE in accordance with 18VAC160-40-330. Any licensee who fails to reinstate After 24 months, the license within 12 months after the expiration date shall apply for a new license and meet entry requirements in effect at the time of submittal of the new application. The will not be reinstated under any circumstances, and the individual shall be deemed to be eligible to sit for the examination for the same profession, class, and category of license as the expired license, if an examination is applicable must apply as a new applicant and meet entry requirements current at the time of submittal of the new application.

C. By submitting the reinstatement fee application, the licensee individual is certifying his affirming that the individual is in continued compliance with the Standards of Practice and Conduct (Part IX (18VAC160-40-440 et seq.) of this chapter) as established by the board. In addition, by submitting the reinstatement fee, licensees are certifying compliance with the continued professional education requirements of this chapter.

D. Any regulated activity conducted subsequent to the license expiration date may constitute unlicensed activity and be subject to prosecution under Chapter 1 (§ 54.1-100 et seq.) of Title 54.1 of the Code of Virginia.

18VAC160-40-310. Status of license during period prior to reinstatement.

A. A licensee who applies for reinstatement of the reinstates a license shall will be subject to all laws and regulations as if the regulant had regarded as having been continuously licensed without interruption. The licensee shall will remain under and be subject to the disciplinary authority of the board during the entire period.

B. Any regulated activity conducted subsequent to the license expiration date may constitute unlicensed activity and be subject to prosecution under Chapter 1 (§ 54.1-100 et seq.) of Title 54.1 of the Code of Virginia.

18VAC160-40-320. Board discretion to deny renewal or reinstatement.

A. The board may deny renewal or reinstatement of license for the same reasons as the board may refuse initial licensure or discipline a licensee. The licensee has the right to request further review of any such action by the board under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The board may deny renewal or reinstatement of a licensee if the licensee has been subject to a disciplinary proceeding by the board and has not met the terms of an agreement for licensure, has not satisfied all sanctions, or has not fully paid monetary penalties and costs imposed by the board.

18VAC160-40-330. Continuing professional education.

A. Each licensee shall have completed must complete the following number of continuing professional education (CPE) contact hours during each renewal cycle. CPE provisions do not apply to for the renewal of licenses that were held for less than two years on the date of expiration.

License Type	CPE Contact Hours Required
1. Master alternative onsite soil evaluator	16 14
2. Master alternative onsite sewage system installer	16 14
3. Master alternative onsite sewage system operator	16 14
4. Master conventional onsite soil evaluator	12 10
5. Master conventional onsite sewage system installer	12 10
6. Master conventional onsite sewage system operator	8 6
7. Journeyman alternative onsite soil evaluator	8 6
8. Journeyman alternative onsite sewage system installer	8 6
9. Journeyman alternative onsite sewage system operator	8 6
10. Journeyman conventional onsite soil evaluator	4
11. Journeyman conventional onsite sewage system installer	4
12. Journeyman conventional onsite sewage system operator	4

B. The licensee may request additional time to meet the CPE courses completed during the license period immediately prior to the expiration date of the license shall be acceptable in order to renew the license requirement. However, CPE courses completed during a current license renewal cycle to satisfy the CPE requirements of the preceding licensing renewal cycle shall will be valid only for that preceding license renewal cycle and shall will not be accepted for subsequent renewal cycles. The grant of any request for additional time to meet the CPE requirement is at the discretion of the board.

C. The licensee will not receive credit for completing the same CPE course with the same content more than once during a license period renewal cycle.

D. A licensee may receive CPE credit for teaching a course that otherwise meets the requirements of this chapter; however, additional credit shall will not be given for subsequent offering of a course or activity with the same content within the same licensing renewal cycle. In addition, a licensee may receive two hours of CPE no more than once during a single licensing renewal cycle for the initial development or substantial updating of a CPE course.

E. For all licenses, safety subjects shall will not count for more than one half one-fourth of the total required CPE hours.

18VAC160-40-340. CPE subject matter for onsite sewage system installers.

The following course topics will be accepted for CPE credit for onsite sewage system installers:

1. Sewage system installation;

2. Operating and maintaining equipment;

3. Security and safety procedures;

4. General science and, mathematical, and electrical principles;

5. Administrative knowledge and procedures applicable to the profession;

6. Laws and regulations applicable to the profession; and

7. Monitoring, evaluating and adjusting treatment processes (alternative onsite sewage system installers only); and 8. Management and supervision principles (master onsite sewage system installers only; maximum of four contact hours).

18VAC160-40-350. CPE subject matter for onsite sewage system operators.

The following course topics will be accepted for CPE credit for onsite sewage system operators:

1. Onsite system operations;

2. Monitoring, evaluating, and adjusting treatment processes;

3. Operating and maintaining equipment;

4. Security and safety procedures;

5. General science and, mathematical, and electrical principles;

6. Administrative knowledge applicable to the profession; and

7. Laws and regulations applicable to the profession; and 8. Management and supervision principles (applicable to master onsite sewage system operators only; maximum of four contact hours).

18VAC160-40-360. CPE subject matter for onsite soil evaluators.

The following course topics will be accepted for CPE credit for onsite soil evaluators:

1. Site and soil evaluations;

2. Security and safety procedures;

3. Mapping, cartography, and geographic information systems;

4. System design;

5. Inspections;

6. General science and mathematical principles;

7. Administrative knowledge and procedures applicable to the profession; and

8. Laws and regulations applicable to the profession; and 9. Management and supervision principles (applicable to master onsite soil evaluators only; maximum of four contact hours).

18VAC160-40-365. CPE courses on management and supervision principles.

In addition to the topics provided in 18VAC160-40-340, 18VAC160-40-350, and 18VAC160-40-360, a master licensee may receive a maximum of four contact hours of CPE credit for completion of training in management and supervision principles.

18VAC160-40-370. Use of training credits and formal education for CPE credit.

Any course approved by the board for substitution as training credits or formal education semester hours, as provided for in 18VAC160-40-70 or 18VAC160-40-280, shall will also be acceptable on an hour-for-hour basis for CPE contact hours. One semester hour of college credit shall will equal 15 CPE contact hours, and one-quarter hour of college credit shall will equal 10 CPE contact hours. The training credits or formal education must be applicable to the license for which CPE credit is sought.

18VAC160-40-380. Maintenance of CPE.

A. For Each licensee must maintain evidence of the satisfactory completion of CPE for a period of at least two years following the end of the license renewal cycle for which the CPE was taken, the. Such documentation must be provided to the board or its duly authorized agents upon request. The following evidence shall will be maintained to document completion of the required CPE.:

1. Evidence of completion of a structured training activity, which shall consist of that contains the name, address, and telephone number of the sponsor;

2. The dates the licensee participated in the training;

3. Description of the subject matter presented; and

4. A statement from the sponsor verifying the number of CPE contact hours completed.

B. The board may conduct an audit of its licensees to ensure compliance with the applicable CPE requirements. Licensees who are selected for audit shall must provide the necessary documentation stipulated in this section.

18VAC160-40-385. Training courses, generally.

In accordance with 18VAC160-40-70 A 2, training courses approved by the board may be substituted for experience. All training courses must be approved by the board in accordance with the provisions of this part. Training courses may be delivered using distance, virtual, or online education technology. Training courses may be approved retroactively; however, no applicant will receive credit for the training course until such approval is granted by the board. Training courses that meet the requirements of 18VAC160-40-430 may be accepted for substitution of experience without approval by the board.

18VAC160-40-390. Approval of training courses.

A. Training courses may be substituted for experience pursuant to the provisions of 18VAC160-40-70. With the exception of training courses provided pursuant to 18VAC160-40-430, training courses that may be substituted for required experience must be approved by the board prior to commencing in accordance with the provisions of this section.

B. Each A training provider seeking course approval shall of a training course must submit an application for training course approval on a form provided by the board. Only classroom, laboratory, and field trip contact time will be used to compute training credits. No credit will be given for breaks, meals, or receptions. The application must include:

1. Organization. The board will only approve The name of the training offered by a provider that is an identifiable organization with a mission statement outlining its functions, structure, process, and philosophy and that has a staff of one or more persons with the authority to administer and coordinate the training course.;

2. Training course records. The board will only approve training offered by a provider that maintains records for all participants for a minimum of seven years and that has a written policy on retention and release of records. Provider contact person, address, email address, and telephone number;

3. Instructors. The board will only approve training conducted by personnel who have demonstrated competency in the subject being taught, an understanding of the learning objective, and knowledge of the learning process to be used. Training course title;

4. Objectives. The board will only approve courses that have a series of stated objectives that are pertinent to the tasks performed by the licensee. The training course content must be consistent with those objectives. Identification of the profession, category, and class of license to which the course is applicable;

5. Course completion requirements. For successful completion of a training course, participants must attend 90% or more of the class contact time and must demonstrate their learning through written examinations, completion of a project, oral examination, or other similar assessment techniques. Method of delivery;

6. Detailed course schedule, including begin and end times, and a list of planned breaks;

7. Instructor qualifications, including name, license number, if applicable, and a list of trade-appropriate designations, as well as a professional resume with a summary of teaching experience and subject matter knowledge and qualifications acceptable to the board;

8. Training course syllabus or outline;

9. Materials to be provided to participants; and

10. A description of the means that will be used to assess the learning of each participant to determine successful completion of the training course, such as examinations, projects, personal evaluations by the instructor, or other recognized evaluation techniques.

18VAC160-40-400. Application for training course approval. (Repealed.)

A. The board shall consider the following information, to be submitted by the course provider or instructor on forms provided by the board:

1. Course information.

a. Course title;

b. Planned audience;

c. Name of provider;

d. Name, physical address, email address, and phone number of contact person;

e. Scheduled presentation dates;

f. Detailed course schedule, hour by hour including begin and end times;

g. List of planned breaks;

h. Scheduled presentation location; and

i. Identification of the profession, category, and class of license to which the course is applicable and relevancy to the identified license type.

2. Instructor qualifications.

a. Name of instructor;

b. Title;

c. Employer;

d. Board license number or numbers, if applicable; and

e. Summary of qualifications to teach the course.

3. Training materials.

a. Course objectives. A listing of the course objectives stated in terms of the skills and knowledge the participant will be able to demonstrate as a result of the training.

b. Course outline. A detailed outline showing the planned activities that will occur during the training course, including major topics, planned presentation sequence, laboratory and field activities, audiovisual presentations, and other major activities.

c. Course reference materials. A list of the name, publisher, and publication date for commercially available publications. For reference materials developed by the course provider or available exclusively through the course, a copy of the reference.

d. Audiovisual support materials. A listing of any commercially available audiovisual support material that will be used in the program. A brief description of any provider or instructor generated audiovisual material that will be used.

e. Handouts. Identification of all commercially available handout materials that will be used, as well as copies of other planned handouts.

4. Determination of successful completion. A description of the means that will be used to assess the learning of each participant to determine successful completion of training program, such as examinations, projects, personal evaluations by the instructor, or other recognized evaluation techniques. Correspondence and other distance learning courses must include appropriate testing procedures to verify completion of the course.

B. Recurring training programs. If there are plans to present the same course of instruction routinely at multiple locations with only minor modifications and changes, the board may approve the overall program rather than individual presentations if so requested by the provider.

1. The board shall consider all of the information listed in subsection A of this section except those items related to specific offerings of the course.

2. Board approval will apply only to those specific offerings certified by the provider as having been conducted by instructors meeting the established criteria and in accordance with the board-approved course outlines and objectives.

18VAC160-40-405. Documentation of training course completion required.

All training course providers must provide each participant with a certificate of training course completion or other documentation that the participant may use as proof of training course completion. Such documentation must contain the hours completed, the date of training, and the training course identification number assigned by the board.

18VAC160-40-410. Maintenance of training course approval records.

A. At times established by the board, the board may require that course providers that have previously obtained course approval provide the board with evidence, in a form set forth by the board, that the provider continues to comply with the requirements of this chapter. Failure to continue to comply with the board's requirements or respond to such a request may result in the board withdrawing its approval.

B. Substantial modifications or changes to the information provided in 18VAC160-40-390 and 18VAC160-40-400 must be reported to the board within 30 days of the change. Failure to report the changes as required may result in the withdrawal of approval by the board.

C. Any change of address of the training provider shall be reported in writing within 30 days of the change.

D. The board may conduct an audit of the training provider to ensure continued compliance with this chapter.

All providers of approved training courses must establish and maintain a record for each participant. The record must include the participant's name and address, the course name and hours attended, the course syllabus or outline, the names of the instructors, the date of successful completion, and the board's approved training course identification number. Records must be available for inspection during normal business hours by authorized representatives of the board. Providers must maintain these records for a minimum of five years.

18VAC160-40-415. Reporting of changes.

Any change in the information provided in 18VAC160-40-390 must be reported to the board within 90 days of the change. Any change in information submitted will be reviewed to ensure compliance with the provisions of this chapter.

18VAC160-40-420. Withdrawal of approval.

The board may withdraw approval of any provider a training course for the following reasons:

1. The course or courses being offered no longer meet meets the standards established by the board.

2. The provider, through an agent or otherwise, advertises its services in a fraudulent or deceptive way.

3. The provider, instructor, contact person, or designee of the provider falsifies any information relating to the application for approval, course information, or student participant records.

4. There is a change in the information regarding the training course, if the change results in noncompliance with this part.

5. The provider fails to comply with 18VAC160-40-415.

6. The provider fails to respond to the board or any of its agents.

18VAC160-40-425. Board authority to audit approved training courses.

The board may conduct an audit of any board-approved training course provider to ensure continued compliance with this chapter.

18VAC160-40-430. Training Acceptance of training courses offered by certain entities, board approval not required.

A. Training courses provided by (i) federal, state, or local government agencies; (ii) accredited colleges or universities approved or accredited by the Commission on Colleges of the Southern Association of Colleges and Schools; (iii) a regional or national accreditation association; or (iv) an accrediting agency that is recognized by the U.S. Secretary of Education do not require board approval to be used will be accepted for experience substitution, provided the training course information submitted to the board includes the following:

1. The course must include the continuing education hours awarded by the entity.

2. The course must be related to the profession, category, or class, if applicable, for which experience substitution is sought.

B. The board may require additional information from the provider as necessary to ensure compliance with this section. If such assurance cannot be made by the board, the training course may not be used for experience substitution, or the provider may pursue board approval pursuant to this chapter.

18VAC160-40-440. Grounds for disciplinary action.

The board may place a licensee on probation; impose a monetary penalty in accordance in § 54.1-202 A of the Code of Virginia; or revoke, suspend, or refuse to renew any license; or place a licensee on probation in accordance with § 54.1-201 A 7 of the Code of Virginia when the licensee has been found to have violated or cooperated with others in violating any provision of the regulations of the board or Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia.

18VAC160-40-450. Maintenance of license.

A. No license issued by the board shall may be assigned or otherwise transferred.

B. A licensee shall must report to the board, in writing, all changes any change of the address of record and name to the board within 30 days of the change and shall return the license to the board. In addition to the address of record, a physical address is required for each license. If the licensee holds more than one license, the licensee shall inform the board of all licenses, certificates, and registrations affected by the name or address change. The board shall not be responsible for the licensee's failure to receive notices or correspondence due to the licensee's failure to report a change of name or address. following:

1. The licensee's legal name. Such report must be accompanied by documentation acceptable to the board that verifies the name change.

2. The licensee's address, to include the physical address when applicable.

C. Any A change in any of the requirements and qualifications for licensure found in Part II (18VAC160-40-20 et seq.), III (18VAC160-40-110 et seq.), or IV (18VAC160-40-170 et seq.) of this chapter shall name or address must be reported to the board within 30 60 days of the change. The board is not responsible for the licensee's failure to receive notices, communications, or correspondence caused by the licensee's failure to report to the board any change of address.

18VAC160-40-460. Notice of adverse action.

A. Licensees shall A licensee must notify the board of the following actions against the licensee.

1. Any disciplinary action taken by any jurisdiction, board, or administrative body of competent jurisdiction, including any reprimand, license or certificate revocation, suspension or denial of a license, certificate, or registration, imposition of a monetary penalty, requirement for to take remedial education, or other corrective action.

2. Any voluntary surrendering of a related license, certificate, or registration done in connection with a disciplinary action in another taken by any jurisdiction, board, or administrative body.

3. Any conviction, finding of guilt, or plea of guilty, regardless of adjudication or deferred adjudication, in any jurisdiction of the United States of any misdemeanor involving lying, cheating, stealing, sexual offense, non-marijuana drug distribution, physical injury, or relating to the practice of the profession, except marijuana convictions, or of any felony, there being no appeal pending therefrom or the time for appeal having lapsed. Review of convictions shall will be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for the purpose of this section.

B. Notices to The notice must be given to the board must be made, in writing, within 30 days of the action. A copy of the order or other supporting documentation must accompany the notice. The record of conviction finding or case decision shall be considered prima facie evidence of a conviction or finding of guilt.

18VAC160-40-470. Prohibited acts.

The following acts are prohibited and any violation may result in disciplinary action by the board:

1. Violating, inducing another to violate, cooperating with another to violate, or combining or conspiring with or acting as agent, partner, or associate for another to violate any of the provisions of Chapter 1 (§ 54.1-100 et seq.), 2 (§ 54.1-200 et seq.), 3 (§ 54.1-300 et seq.), or 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia, or any of the regulations of the board.

2. Allowing a license issued by the board to be used by another.

3. 2. Obtaining or attempting to obtain a license by false or fraudulent representation, or maintaining or, renewing, or reinstating a license by false or fraudulent representation.

3. Failure to report a change pursuant to 18VAC160-40-450.

4. A licensee having been convicted, or found guilty, in any jurisdiction or having been disciplined by any jurisdiction, board, or administrative body in any jurisdiction of any offense or violation enumerated in 18VAC160-40-460. Review of convictions shall will be subject to the requirements of § 54.1-204 of the Code of Virginia.

5. Failing to inform the board in writing within 30 days that the licensee was convicted or found guilty in any jurisdiction or disciplined in by any jurisdiction, board, or administrative body of any offense or violation enumerated in 18VAC160-40-460.

6. Not demonstrating reasonable care, judgment, or application of the required knowledge, skill, and ability in the performance of the licensee's duties.

7. Having undertaken to perform or performed a professional assignment that the licensee is not qualified to perform by education, experience, training, appropriate class or category of licensure, or any combination thereof.

8. Failing to report a change as required by 18VAC160-40-450 6. Failure to comply with the requirements of 18VAC160-40-480.

9. Negligence 7. Actions constituting negligence, misconduct, or incompetence in the practice of the profession 10. Making any misrepresentation or engaging in acts of fraud or deceit in advertising, soliciting, or in providing professional services. 11. Failing to adequately supervise and review work performed by unlicensed employees or journeyman licensees under the direct supervision of the master licensee. 12., including:

a. Having undertaken to perform or performed a professional assignment that the licensee is not qualified to perform by education, experience, training, or appropriate class or category of licensure.

b. Not demonstrating reasonable care, judgment, or application of the required knowledge, skill, and ability in the performance of the licensee's duties.

c. Failure to adequately supervise and review work performed by unlicensed employees or journeyman licensees under the direct supervision of a master licensee.

d. Failure to obtain any permit, approval, or other document required by VDH or an independent local health department related to the design, installation, repair, or operation of an onsite sewage system. 13. Knowingly signing plans, drawings, reports, specifications, maps, or other documents related to an onsite sewage system not prepared or reviewed and approved by the licensee. 14. Knowingly misrepresenting factual information in expressing a professional opinion. 15. Failing

e. Failure to act in when providing professional services in a manner that safeguards the interests of the public.

8. Actions constituting engaging in improper, fraudulent, or dishonest conduct, including:

a. Making any misrepresentation or engaging in acts of fraud or deceit in advertising, soliciting, or in providing professional services.

b. Knowingly signing plans, drawings, reports, specifications, maps, or other documents related to an onsite sewage system that are not prepared or reviewed and approved by the licensee.

c. Knowingly misrepresenting factual information when expressing a professional opinion.

d. Allowing a license issued by the board to be used by another.

9. Failure to comply with the requirements of 18VAC160-40-500.

18VAC160-40-480. Conflicts of interest.

The licensee shall must:

1. Promptly and fully inform an employer or client of any interest, circumstance, or business association that may influence the licensee's judgment of or the quality of service.

2. Not accept compensation, financial or otherwise, from more than one party for services on or pertaining to the same project, unless the circumstances are fully disclosed to, and agreed to by, all interested parties in writing.

3. Neither solicit nor accept financial or other valuable consideration from material or equipment suppliers for specifying their products or services, unless the circumstances are fully disclosed to and agreed to by all interested parties in writing.

4. Not solicit or accept gratuities, directly or indirectly, from contractors or their, contractor agents, or other parties dealing with a client or employer in connection with work for which the licensee is responsible, unless the circumstances are fully disclosed to and agreed to by all interested parties in writing.

18VAC160-40-490. Licensee responsibility.

A. The primary obligation of the licensee is to the public. If the licensee's judgment is overruled and not adhered to when advising appropriate parties of circumstances of a substantial threat to the public health, safety, or welfare, the licensee shall must inform the employer and client, as applicable, of the possible consequences and notify appropriate authorities.

B. The licensee shall must sign, date, and include his the licensee's license number on all final work products prepared or reviewed and approved by the licensee. For work products performed by a journeyman licensee, the master licensee providing direct supervision shall sign, date, and include his the licensee's license number, along with the journeyman's signature, date, and license number on the final work product. A journeyman licensee shall will not submit a work project as final without the applicable master licensee's signature, date, and license number.

C. The licensee shall will not knowingly associate in a business venture with, or permit the use of the licensee's name by, any person or firm where there is reason to believe that person or firm is engaging in activity of a fraudulent or dishonest nature or is violating any law or regulation of the board.

D. A licensee who has direct knowledge that another individual or firm may be violating any of the provisions of this chapter or the provisions of Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia shall must immediately inform the board in writing and shall cooperate in furnishing any further information or assistance that may be required.

E. Except as provided in subsection F of this section, a licensee shall will not utilize the evaluations, design, drawings, or work of another licensee without the knowledge and written consent of the licensee or organization of ownership that originated the design, drawings, or work.

F. A licensee who relies on information in VDH files or has received permission to modify or otherwise utilize the evaluation, design, drawings, or work of another licensee pursuant to subsection E of this section or this subsection may certify that work only after a thorough review of the evaluation, design, drawings or work and after he the licensee determines that he the licensee is willing to assume full responsibility for all design, drawings, or work on which he the licensee relies for his the licensee's opinion.

18VAC160-40-500. Response to inquiry and provision of records.

A. A licensee must respond within 10 days to a request by the board or any of its the board's agents regarding any complaint filed with the department.

B. Unless otherwise specified by the board, a licensee of the board shall must produce to the board or any of its the board agents within 10 days of the request any document, book, or record concerning any transaction pertaining to a complaint filed in which the licensee was involved, or for which the licensee is required to maintain records. The board may extend such timeframe upon a showing of extenuating circumstances prohibiting delivery within such 10-day period.

C. A licensee shall will not provide a false, misleading, or incomplete response to the board or any of its agents seeking information in the investigation of a complaint filed with the board.

D. With the exception of the requirements of subsection A or B of this section, a licensee must respond to an inquiry by the board or its the board's agent within 21 days.

18VAC160-40-510. Master licensee's professional responsibilities.

A. Any work performed by a journeyman regulated pursuant to Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia and this chapter shall must be under the direct supervision of the master. Such master and journeyman shall must have an employment or written contractual relationship.

B. Each master shall must maintain documentation of the employment or contractual relationship with each journeyman under the master's direct supervision. Such documentation shall must be kept for a minimum of five years and shall must include, at a minimum, the beginning and ending dates of the employment or contractual relationship.

18VAC160-40-515. Licensee responsible for regulated activities performed on site.

A. For the installation of onsite sewage systems, the decision-maker and the individual executing the installation of approved permits must be licensed as a journeyman or master onsite sewage system installer in the appropriate class of license. In addition, a journeyman or master onsite sewage system installer in the appropriate class of license must be on site.

B. For operation and maintenance of onsite sewage systems, the decision-maker must be licensed as a journeyman or master onsite sewage system operator in the appropriate class of license. In addition, a journeyman or master onsite sewage system operator in the appropriate class of license must be on site where regulated activities are being performed.

C. For soil evaluation and design, the decision-maker must be licensed as a journeyman or master onsite soil evaluator in the appropriate class of license. In addition, a journeyman or master onsite soil evaluator in the appropriate class of license must be on site where regulated activities are being performed.

18VAC160-40-520. Pumping of alternative onsite sewage systems by conventional onsite sewage system operators.

A conventional onsite sewage system operator with the appropriate sewage handling permit issued by VDH or a local independent health department may pump an alternative onsite sewage system without the alternative onsite sewage system operator present, provided that the conventional onsite sewage system operator performs the pumping at the request and direction of the alternative onsite sewage system operator. The conventional onsite sewage system operator is only permitted to pump the tank and is not authorized to perform any other functions associated with the operation and maintenance of the alternative onsite sewage system.

TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMONWEALTH TRANSPORTATION BOARD

Proposed Regulation

Title of Regulation: 24VAC30-21. General Rules and Regulations of the Commonwealth Transportation Board (amending 24VAC30-21-10, 24VAC30-21-20, 24VAC30-21-50; repealing 24VAC30-21-30, 24VAC30-21-40).

Statutory Authority: § 33.2-210 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 18, 2025.

Agency Contact: Jo Anne Maxwell, Director, Governance and Legislative Affairs, Department of Transportation, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786-1830, or email joanne.maxwell@vdot.virginia.gov.

Basis: Section 33.2-210 of the Code of Virginia gives the Commonwealth Transportation Board (CTB) the authority to promulgate regulations for the protection of, for covering traffic on, and for the use of systems of state highways.

Purpose: The proposed amendments protect the health, safety, and welfare of citizens by reducing confusion for regulated entities by removing text that is unnecessary and by ensuring regulatory requirements are only associated with the most appropriate regulation and not unnecessarily restated in multiple regulations.

Substance: The proposed amendments (i) streamline regulatory text and remove requirements restated in other regulations, (ii) clarify definitions, and (iii) clarify the restrictions on activities occurring on bridges that form a part of the system of state highways.

Issues: The primary benefit to the public is that the proposed amendments ensure that the regulation is easy to read and understand. This action is not anticipated to present a disadvantage to the public or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Executive Order 19 (2022) and Executive Directive 1 (2022), the Commonwealth Transportation Board (CTB) proposes to amend the regulation governing activities, including maintenance work, that occur on highways that are under the jurisdiction of the CTB and Virginia Department of Transportation (VDOT). The proposed changes would update definitions, remove requirements that are duplicative of other VDOT regulations, and consolidate and streamline the remaining requirements.

Background. Executive Directive 1 (2022) directs executive branch entities under the authority of the Governor to initiate regulatory processes to reduce by at least 25% the number of regulations not mandated by federal or state statute, in consultation with the Office of the Attorney General, and in a manner consistent with the laws of the Commonwealth.² Accordingly, VDOT reports that the CTB conducted a review of this regulation and identified amendments that would remove redundant requirements and increase the clarity of the regulation. This action would also be used to conduct a new periodic review. The most substantive changes are summarized as follows: The definition of right-of-way in 24VAC30-21-10 would be updated to explicitly include the subsurface below and area above the property, which would clarify that work involving utilities that cross a highway are included in the purview of this regulation. This and other wording changes in the definition are intended to conform the definition to current law and practice. 24VAC30-21-20 currently pertains to permits and 24VAC30-21-30 pertains to the use of right-of-way; these sections would be combined. 24VAC30-21-30 would be repealed in its entirety and most requirements would be added to 24VAC30-21-20, which would be renamed "General provisions concerning permits and use of right-of-way". The permit requirement currently in 24VAC30-21-20 A would be amended to add a reference to 24VAC 30151 Land Use Permit Regulations and subsections B and C would be struck as they are duplicative of requirements in that regulation. A prohibition on parking, currently in 24VAC30-21-30, would be removed as it is duplicative of language in 24VAC30-640 Parking on Primary and Secondary Highways. Lastly, an exemption for highway maintenance vehicles or vessels currently in 24VAC30-21-30 would be expanded to included fire and law enforcement vehicles or vessels. All other requirements in 24VAC30-21-30 would be moved to 24VAC30-21-20 as is. 24VAC30-21-40 would be repealed in its entirety as it is duplicative of 24VAC30-73 Access Management Regulations and 24VAC30-151 Land Use Permit Regulations.

Estimated Benefits and Costs: The proposed amendments largely serve to clarify and streamline the text without changing the intent of the regulation. Thus, to the extent that the proposed changes are consistent with current practice and statute, they are not expected to create new costs. One of the proposed changes would newly exempt fire and law enforcement from restrictions on activities on bridges that are part of the highway network. These restrictions currently prohibit (i) fishing; (ii) using a bridge as a wharf from which to load or unload a vehicle, to deposit property, or for any other purpose except crossing; and (iii) fastening or laying a vessel alongside a bridge. To the extent that fire or law enforcement agencies need to tie a boat or other water vessel to a bridge, they would benefit from having these exemptions in the regulation rather than having to obtain permission from VDOT to do so.

Businesses and Other Entities Affected. The proposed changes would largely remove redundant language and clarify the text. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ Since the proposed changes do not change the substance of the regulation or create new costs, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities or affect costs for local governments.

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

Effects on the Use and Value of Private Property. The proposed amendments neither affect the use and value of private property nor real estate development costs.

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¹ Section 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.

² See https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/ed/ED-1-Regulatory-Reduction.pdf.

³ Pursuant 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.

⁴ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant 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."

⁶ If 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.

⁷ "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.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Commonwealth Transportation Board concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments (i) update definitions, (ii) combine 24VAC30-21-20 and 24VAC30-21-30, (iii) update cross-references, (iv) remove duplicative requirements, (v) clarify restrictions on activities occurring on bridges that form a part of the system of state highways, and (vi) expand exemptions for highway maintenance vehicles or vessels to include fire and law-enforcement vehicles or vessels.

24VAC30-21-10. Definitions.

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

"Board" means the Commonwealth Transportation Board.

"Commissioner" means the Commissioner of Highways, the individual who serves as the chief executive officer of the Virginia Department of Transportation (VDOT) or his designee.

"Commonwealth" means the Commonwealth of Virginia.

"Right of way "Right-of-way" means that property within the entire area of every way or place of whatever nature within the system of state highways under the ownership, control, or jurisdiction of the board or VDOT that is open or is to may be opened within the future for the use of the public for purposes of travel for public travel or use or both in the Commonwealth. This definition includes those rights-of-way in which the Commonwealth has a prescriptive easement for maintenance and public travel. The area set out above includes not only property within a right-of-way includes the traveled portion but the entire area within and without the traveled portion, from boundary line to boundary line, and also all way and associated boundary lines and the area in between, the subsurface below and area above the property, parking and recreation areas that are under the ownership, control, or jurisdiction of the board or VDOT, rest and service areas, and other permanent easements for a specific purpose appurtenant to the right-of-way.

"System of state highways" means all highways and, roads, streets, and trails under the ownership, control, or jurisdiction of the board VDOT, including, but not limited to, the primary, secondary, and interstate systems.

"VDOT" means the Virginia Department of Transportation, the Commissioner of Highways, or a designee.

24VAC30-21-20. General provisions concerning permits and use of right-of-way.

A. No work, occupancy, or nontransportation uses of any nature shall may be allowed or performed on the system of state highways or any real property under the ownership, control, or jurisdiction of the board or VDOT, including, but not limited to, the right of way right-of-way of any highway in the system of state highways, until written permission is first obtained from VDOT. Written permission under this section is granted by way of permit. In addition, pursuant to 24VAC30-151 or by the letting of a contract by and between VDOT or the board and any other party, which automatically grants to that party automatically such permission for the area under contract, unless otherwise stated in the contract. VDOT is authorized to establish specific requirements for such permits, including, but not limited to, permit authority, application procedure, and conditions under which a permit may be denied or revoked.

B. No land use permit shall be issued until the applicant has complied with the conditions set forth in and pursuant to applicable VDOT regulations filed as part of the Virginia Administrative Code.

C. Applicants to whom permits are issued shall at all times indemnify and save harmless the board, members of the board, the Commonwealth, and all Commonwealth employees, agents, and officers from responsibility, damage, or liability arising from the exercise of the privileges granted by these permits.

D. B. Any structure placed upon or within the right of way right-of-way pursuant to a permit issued by VDOT or otherwise shall be relocated or removed whenever ordered by VDOT. Such relocation or removal shall be accomplished at no expense to the Commonwealth unless VDOT agrees or has agreed otherwise.

C. The following restrictions apply to activities occurring on bridges forming a part of the system of state highways:

1. No person may fish or seine from any bridge except when facilities are provided for such purposes as set out in § 33.2-278 of the Code of Virginia.

2. No person may use any bridge as a wharf from which to load or unload a vehicle, as a place of deposit of property, or for any other purpose except crossing.

3. No master or owner of a vessel may make it fast to or lay it alongside such bridge.

4. Provisions of this subsection shall not apply to highway maintenance vehicles or vessels or fire and law-enforcement vehicles or vessels.

D. No person may, without the consent of VDOT, remove, injure, destroy, break, deface, or in any way tamper with property, real or personal, that is growing or has been placed on the right-of-way by or with the consent of VDOT.

E. No person may cause water to flow from any source upon the right-of-way, cause an increase of the water at present lawfully on the right-of-way, or concentrate the flow of water upon the right-of-way without the written consent of VDOT.

F. No road, railroad, or tracks of any description may be laid along, upon, or across any portion of a highway in the system of state highways without the written consent of VDOT.

24VAC30-21-30. General provisions concerning use of right of way. (Repealed.)

A. No person, firm, or corporation shall use or occupy the right of way of any highway for any purpose except travel, except as may be authorized by VDOT, either pursuant to regulation or as provided by law.

B. Except as permitted by subdivision 2 of this subsection, the following restrictions apply to activities occurring on bridges forming a part of the system of state highways:

1. No person, firm, or corporation shall stand or park a vehicle of any description on any bridge unless authorized by VDOT.

2. No person shall fish or seine from any bridge except when facilities are provided for such purposes as set out in § 33.2-278 of the Code of Virginia.

3. No person, firm, or corporation shall use any bridge as a wharf from which to load or unload any vehicle, as a place of deposit for any property, or for any other purpose except crossing.

4. No master or owner of any vessel shall make it fast to or lay it alongside such bridge.

5. Provisions of this subsection shall not apply to highway maintenance vehicles or vessels.

C. No person, firm, or corporation shall, without the consent of VDOT, remove, injure, destroy, break, deface, or in any way tamper with any property, real or personal, that is growing or has been placed on the right of way of any highway within the system of state highways by or with the consent of VDOT.

D. No person, firm, or corporation may cause water to flow from any source upon the right of way of any highway within the system of state highways, nor shall any person, firm, or corporation cause any increase of the water, at present, lawfully on the right of way of any highway or concentrate the flow of water upon the right of way of any highway in the system of state highways without the written consent of VDOT.

E. No road, railroad, or tracks of any description shall be laid along, upon, or across any portion of a highway in the system of state highways without the written consent of VDOT.

24VAC30-21-40. Board authority to regulate entrances from adjacent property to right of way of highways within the state highway system. (Repealed.)

The board, under § 33.2-210 of the Code of Virginia, reserves the power to regulate entrances from adjacent property upon the right of way of any highway within the system of state highways. No entrance of any nature shall be made, built, or constructed upon the right of way of any highway within the system of state highways until the location has been determined in the opinion of the commissioner or designee of VDOT to be acceptable from a public safety standpoint and, further, until approval has been granted by VDOT. The design and construction of such entrances as approved by the commissioner pursuant to §§ 33.2-241 and 33.2-245 of the Code of Virginia must comply with VDOT's regulations where applicable.

24VAC30-21-50. Placement of airport or heliport facilities.

No airport runways, heliports, or similar facilities, either private or commercial, shall may be placed adjacent to highway rights of way rights-of-way in such a manner as to impede the safe flow of vehicular traffic. Runways or similar facilities shall be placed a proper distance to allow a minimum glide slope for aircraft of 3° approaching said runway, or at a height over the roadway of 30 feet, whichever is greater. All airports or heliports, or both, proposed in the vicinity of highway rights of way rights-of-way shall take these minimum road clearances into consideration when planning the location of the end of their runways.

TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMONWEALTH TRANSPORTATION BOARD

Final Regulation

Title of Regulation: 24VAC30-200. Vegetation Control Regulations on State Rights-of-Way (amending 24VAC30-200-10, 24VAC30-200-20, 24VAC30-200-30; repealing 24VAC30-200-40).

Statutory Authority: § 33.1-210 of the Code of Virginia.

Effective Date: July 2, 2025.

Agency Contact: JoAnne P. Maxwell, Agency Regulatory Coordinator, Governance and Legislative Affairs Division, Department of Transportation, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786-1830, FAX (804) 225-4700, or email joanne.maxwell@vdot.virginia.gov.

Summary:

Pursuant to a comprehensive review of Vegetation Control Regulations on State Rights-of-Way (24VAC30-200) and in accordance with Executive Order 19 (2022), the amendments (i) remove the documents incorporated by reference from the chapter and add two land use permit forms containing requirements for vegetation control; (ii) make administrative updates, eliminate redundancy, clarify language, and align text with current practice; (iii) update restrictions on cutting vegetation and pruning vegetation in front of businesses; (iv) remove protection for nonnative flowering trees; (v) eliminate the requirement to create a picture frame effect around signs; (vi) remove size and print quality requirements for the photographs submitted with permit applications; and (vii) eliminate the phrase "chipped and beneficially used" to discourage leaving wood chips on site.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

24VAC30-200-10. Definitions.

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

"Agent" means the person, firm, or corporation representing the permittee.

"Board" means the Commonwealth Transportation Board as defined in § 33.2-200 of the Code of Virginia.

"Certified arborist" means an individual who has taken and passed the certification examination sponsored by the International Society of Arboriculture and who maintains a valid certification status.

"Cutting" means to completely remove at ground level.

"Daylighting" means to prune or remove vegetation to improve the motorists' view of an outdoor advertising structure or business.

"Department" means the Virginia Department of Transportation (VDOT) and its employees.

"Federal-aid primary highway" means any highway as defined in § 33.2-1200 of the Code of Virginia.

"Inspector" means any department employee designated by the Commissioner of Highways or local government official, authorized to review and approve or deny the permit application and landscape plan, inspect the work performed under authority of this chapter, and make a final approval concerning the work performed.

"Interstate system" means any highway as defined in § 33.2-100 of the Code of Virginia.

"Land Use Permit Regulations" means the regulations (24VAC30-151) promulgated by the board for the purpose of authorizing activities within the limits of state rights-of-way.

"Limited access highway" means any highway as defined in § 33.2-400 of the Code of Virginia.

"Local beautification project" means any project in a locality that includes installation of plant materials, using public or other funds, in any public right-of-way within a city or town, or on a highway or street in a county with the county manager form of government as defined in § 33.2-1221 of the Code of Virginia.

"Local government official" means an employee of a local government delegated authority by the city or town council or county board of supervisors where the public right-of-way is within the jurisdictional limits of a city or town on a highway or street not within the jurisdiction of the Commissioner of Highways under § 33.2-1202 of the Code of Virginia, or on a highway or street in a county with the county manager form of government.

"Permittee" means the person, firm, or corporation owning the outdoor advertising sign, advertisement, or advertising structure or the business for whom the vegetation control work is being performed.

"Pruning" means to remove branches from healthy vegetation in a manner that is acceptable using the natural method under the standards and guidelines listed in 24VAC30-200-40 published by the American National Standards Institute, the American Association of Nurserymen, and the International Society of Arboriculture specified in the terms of the permit.

"Specifications" means the current Virginia Department of Transportation's Road and Bridge Specifications (effective January 2002).

"Unsightly" means vegetation to be selectively removed at VDOT's or the local government official's discretion.

"Undesirable" means trees that are invasive, trees with defects, or trees that pose a significant safety risk.

24VAC30-200-20. General provisions.

A. Permits will be issued by the department to control vegetation in front of a sign/structure sign or structure that is not exempt from the provisions of § 33.2-1204 of the Code of Virginia or business that is visible from any highway as defined in § 33.2-1200 of the Code of Virginia and regulated by the territorial limitations as defined in § 33.2-1202 of the Code of Virginia, provided the vegetation control work meets the criteria set forth in § 33.2-1221 and this chapter. An application may be filed with the Commissioner of Highways department by an the owner's agent, including but not limited to companies that trim trees. In all other areas the local government official shall issue the permits.

B. All cutting to make an outdoor advertising structure or business more visible from the roadway shall be limited to vegetation with trunk base diameters of less than six inches. All cutting to make a business more visible from the roadway shall be limited to vegetation with trunk base diameters of less than two inches. All stumps shall be treated with a cut-stump pesticide applied by a licensed pesticide applicator with a license issued by the Virginia Department of Agriculture and Consumer Services in Category 6, as defined in 2VAC5-685-70. All pesticides shall be approved by the department or local government official prior to use. Selective thinning in accordance with specifications the terms of the permit or removal of unsightly undesirable vegetation will be allowed on an individual basis to enhance the health and growth of the best trees or to eliminate roadway hazards if recommended by the certified arborist supervising the work and agreed to by the department or local government official. Trees that are diseased, damaged by insects, unsightly, or that pose a safety hazard undesirable may be removed when recommended by the certified arborist supervising the work and approved by the department or local government official. When tree removal is recommended by the certified arborist and approved by this permit, the permittee shall provide a list of suitable trees and shrubs and a landscape plan to replace vegetation removed to the inspector or local government official for review and approval prior to issuance of the permit. The certified arborist and the department or local government official shall agree on size and species of replacement vegetation. The permittee shall plant, at his the permittee's expense, all replacement vegetation at the locations shown on the landscape plan in accordance with the specifications terms of the permit. The establishment period for replacement vegetation shall be in accordance with § 605.05 of the specifications the terms of the permit. No pruning of vegetation to make an outdoor advertising sign or business more visible from the roadway will be permitted if the cut at the point of pruning will exceed four inches in diameter. No pruning of vegetation to make a business more visible from the roadway will be permitted if the cut at the point of pruning will exceed two inches in diameter. No leader branches shall be cut off in such a manner as to retard the normal upright growth of the tree unless recommended by the certified arborist and approved by the department or local government official. All trees and brush removed shall be cut at ground level. Dogwood or other small native flowering trees on the site shall not be removed, unless undesirable. The use of climbing irons or spurs is positively forbidden in any tree.

C. When daylighting signs, every effort shall be made to form a picture frame around the sign with remaining vegetation so as to accent the beauty of the surrounding roadside. A picture frame effect shall be achieved by leaving vegetation in place that will cover the sign structure supports below the face as seen from the main-traveled way.

D. C. A permit must be obtained from the department or local government official prior to any vegetation control work on the state's rights-of-way. All work shall be performed by the permittee at his the permittee's expense, including permit and inspection fees.

E. D. A violation of this chapter shall, in addition to penalties provided in § 33.2-1229 of the Code of Virginia, result in a permittee or its, the permittee's agent, or both losing its a vegetation control permit privilege for five years. Additionally, the bond amount used to secure the permit will be used for any reparations to the site. Inadvertent violations of this permit will require replacement on a four-to-one basis with other suitable small trees approved by the department or local government official to enhance the roadside beauty. The department or local government official shall have full authority to determine specie and size of all replacement vegetation if inadvertent cutting occurs.

24VAC30-200-30. Special provisions.

A. The permittee shall attach two each 8" x 10" color glossy photographs (a closeup view and a distant view) with the permit application showing the vegetation to be controlled, the highway, and the sign or business.

The permit for selective pruning or, tree cutting, or both, will be inspected by the department or local government official and approval or denial given.

A permit may be denied any applicant, and all permits issued by the board department or local government official may be revoked, whenever, in the opinion of the inspector, the safety, use, or maintenance of the highway so requires or the integrity of the permit system so dictates.

If, during or before work begins, it is deemed necessary by the department or local government official to assign inspectors to the work, the permittee shall pay the department or local government issuing the permit an additional inspection fee in an amount that will cover the salary, expense and mileage allowance, and equipment rental, etc., of the inspector or inspectors assigned by the department or local government for handling work covered by this chapter. Said The inspection fee to must be paid promptly each month on bills rendered by the department or local government.

The absence of a state or local government inspector does not in any way relieve the permittee of his the permittee's responsibility to perform the work in accordance with provisions of § 33.2-1221 of the Code of Virginia, this chapter, or the permit.

B. The inspector or local government official shall be notified at least seven days in advance of the date any work is to be performed and when completed, in order than so that an inspection may be made.

C. No trees, shrubs, vines, or plant material, except as covered by this chapter, shall be cut or disturbed. Stubs and dead wood in trees covered by this chapter must be removed, whether occasioned by present requirements or not. Pruning of trees shall only be performed by qualified tree workers who, through related training or experience or both, are familiar with the techniques and hazards of arboricultural work, including trimming, maintaining, repairing or removing trees, and the equipment used in such operations. The supervisor, a certified arborist, and tree workers shall be approved by the inspector or local government official, prior to issuance of a permit to perform work under this chapter. The certified arborist supervising the work shall remain on-site on site whenever work is underway.

All brush, wood, etc., and other resulting slash shall be chipped and beneficially used or removed immediately and disposed of in accordance with the Solid Waste Management Regulations (9VAC20-81) of the Virginia Waste Management Board.

D. All access and work shall be accomplished from the abutting property side of rights-of-way on interstate and other limited access highways, except where a local beautification project has allowed landscape plant material to be planted within a median area. Plant material in median areas may be relocated to other areas within the local beautification project limits in accordance with an approved landscape plan. All work performed on VDOT department rights-of-way shall comply with the Virginia Work Area Protection Manual (part of 24VAC30-310-10 et seq. 24VAC30-315). Any damage caused to property owned by the Commonwealth shall be repaired or replaced in kind when work is complete.

All work done under this chapter on the right-of-way shall in all respects be subject to department or local government official directions and shall be completed to the satisfaction of the inspector or local government official, or his the inspector's or local government official's representative.

E. The department or local government official reserves the right to stop the work at any time the terms of this chapter are not satisfactorily complied with, and the department or local government official may, at its discretion, complete any of the work covered in the permit at the expense of the permittee. If it is in the best interest of traffic safety, the department or local government official may complete or have completed at the expense of the permittee any of the work that must be done to properly protect the traveling public.

F. The permittee shall immediately have corrected correct any condition that may arise as a result of this work that the department or local government official deems hazardous to the traveling public or state maintenance forces even though such conditions may not be specifically covered in this chapter or in the Land Use Permit Regulations (24VAC30-151).

G. Permittees and their permittee agents to whom permits are issued shall at all times indemnify and save harmless the Commonwealth Transportation Board board, local city or town councils, local boards of supervisors, and the Commonwealth of Virginia and its employees, agents, and officers from responsibility, damage, or liability arising from the exercise of the privilege granted in such permit except if political subdivisions are the applicants. Then special arrangements will be made whereby the agent of the political subdivision performing the work will indemnify and save harmless the board and others. All work shall be performed by the permittee at his the permittee's expense. All permit and inspection fees shall be paid to the department or local government official by the permittee.

H. The permittee agrees that if the work authorized by this chapter, including any work necessary to restore shoulders, ditches, and drainage structures to their original condition, is not completed by the permittee to the satisfaction of the department or local government official, the department or local government official will do whatever is required to restore the area within the right-of-way to department standards, and the permittee will pay to the Commonwealth or local government official the actual cost of completing the work. When the permittee is a political subdivision, this requirement will be satisfied by a sum certain that will appear in the permit.

I. Road and street connections and private and commercial entrances are to be kept in a satisfactory condition. Entrances shall not be blocked. Ample provisions must be made for safe ingress and egress to adjacent property at all times. Where entrances are disturbed, they shall be restored to the satisfaction of the department or local government official.

J. Road drainage shall not be blocked. The pavement, shoulders, ditches, roadside, and drainage facilities, shall be kept in an operable condition satisfactory to the department or local government official. Necessary precautions shall be taken by the permittee to ensure against siltation of adjacent properties, streams, etc., or other topographical features in accordance with the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq. of the Code of Virginia) and Erosion and Sediment Control Regulations (9VAC25-840).

K. Any conflicts with existing utility facilities shall be resolved between the permittee and the utility owners involved. The permittee shall notify and receive clearance from the utility owner or owners and comply with the Overhead High Voltage Line Safety Act (§ 59.1-406 et seq. of the Code of Virginia) before proceeding with work in the vicinity of utilities.

L. Where landscape is disturbed on state rights-of-way or local street and roads not under the jurisdiction of the Commissioner of Highways in accordance with § 33.2-1202 of the Code of Virginia, it shall be replaced with a minimum of two inches of topsoil and reseeded according to department specifications the terms of the permit.

24VAC30-200-40. Listing of documents incorporated by reference. (Repealed.)

Information pertaining to the availability and cost of any of these publications should be directed in writing to the Virginia Department of Transportation, 1401 East Broad Street, Richmond, Virginia 23219, or to the agency address indicated.

1. 24VAC30-151, Land Use Permit Regulations (2010), VDOT

2. VDOT Road and Bridge Specifications (effective January 2002), VDOT

3. 24VAC30-310-10, Virginia Supplement to the Manual on Uniform Traffic Control Devices (Virginia Work Area Protection Manual), VDOT

4. 4VAC50-30, Virginia Erosion and Sediment Control Regulations, Division of Soil and Water Conservation, Department of Conservation and Recreation, 203 Governor St., Richmond, VA 23219

5. 9VAC20-81, Solid Waste Management Regulations, Department of Environmental Quality, 629 E. Main St., Richmond, VA 23219

6. American National Standards Institute (ANSI) Standard for Tree Care Operations, Tree, Shrub and Other Woody Plant Maintenance-Standard Practices - ANSI A300-1995 (effective June 1, 1995), Pruning, Trimming, Repairing, Maintaining, and Removing Trees, and Cutting Brush-Safety Requirements - ANSI Z133.1-1994 (effective August 1, 1994), American National Standards Institute, 11 West 42nd Street, New York, NY 10036

7. American National Standards Institute (ANSI) American Standard for Nursery Stock - ANSI Z60.1-1996 (effective November 6, 1996), American Association of Nurserymen, 1250 I Street, N.W., Suite 500, Washington, DC 20005

8. Tree Pruning Guidelines (effective 1995), International Society of Arboriculture, P.O. Box GG, Savoy, IL 61874

FORMS (24VAC30-200)

Vegetation Control Application, Form TTB (rev. 10/98).

Land Use Permit Application for Outdoor Advertising Vegetation Control, LUP-OAVC (rev. 7/2024)

Land Use Permit Application for Vegetation Control Single Business, LUP-VCSB (rev. 7/2024)