Vol. 35 Iss. 11 - January 21, 2019



Initial Agency Notice

Title of Regulation: 18VAC115-60. Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners.

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

Name of Petitioner: Michael Hayter.

Nature of Petitioner's Request: To amend regulations to waive the requirement for an examination for licensed clinical social workers who can show clinical experience based in substance abuse services to become licensed substance abuse treatment practitioners. Licensed professional counselors currently have such a waiver.

Agency Plan for Disposition of Request: In accordance with Virginia law, the petition will be filed with the Registrar of Regulations and published on January 21, 2019, with public comment requested until February 20, 2019. It will also be placed on the Virginia Regulatory Town Hall and made available for comments to be posted electronically. At its first meeting following the close of comment, scheduled for May 31, 2019, the board will consider the request to amend regulations and all comment received in support or opposition. The petitioner will be informed of the board's response and any action it approves.

Public Comment Deadline: February 20, 2019.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, or email

VA.R. Doc. No. R19-20; Filed December 18, 2018, 8:40 a.m.

w  ––––––––––––––––––  w



Agency Decision

Title of Regulation: 24VAC35-30. VASAP Case Management Policy and Procedure Manual.

Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

Name of Petitioner: Cynthia Ellen Hites.

Nature of Petitioner's Request: Petition to amend Virginia Administrative Code 24VAC35-30, pursuant to § 2.2-4007. "I, Cynthia Ellen Hites, as a citizen of the Commonwealth of Virginia, pursuant to Virginia Code § 2.2-4007, do humbly submit this petition for the following amendment to Virginia Administrative Code 24VAC35-30 (VASAP Policy and Procedures Manual). Part VII Ignition Interlock Violations: "Under no circumstances shall the ASAP accept any other means of clearing a failing BAC registered on an interlock device other than the interlock device itself. This includes, but is not limited to, preliminary breath machines, urine screens, etc." This clause leaves absolutely no failsafe for the citizens who have not been drinking, yet are violated by the ASAP for readings of alcohols aside from ethanol. The BAIIDs measure all alcohols, therefore a scientific failsafe must be put in place to protect innocent citizens from the devices registering a compound aside from ethanol as drinking liquor, thus creating "false violations." I propose the following language be adopted, in lieu of the current: "Upon client request, the ASAP shall accept proof of a urine screen, or blood test from an accredited lab that results in a negative reading for EtOH for the time frame in question. Also to be considered in conjunction with BAIID data logs are officially filed reports or eyewitness testimony from city police and/or state police that contradict the ignition interlock device." This unethical guessing game of "pin the tail on the alcohol" must cease, because it is making what is inherently objective, subjective to case workers' knowledge, or opinion, of ethanol metabolization. Electrochemical fuel cells are not ethanol specific. The law (Virginia Administrative Code 24VAC35-60-70) is written as such that it fundamentally contradicts itself, rendering it scientifically impossible. One can either have an electrochemical fuel cell, or ethanol specificity, but not both. Only a gas chromatograph - mass spectrometer can distinguish EtOH from its dozens of cousins; and the law, courts, VASAP and ASAPs must take that into account. While completely sober for months, I was held hostage on nine different days, for the duration of twenty-three high BrAC readings, as police administered their PBTs which read ZERO, sometimes simultaneously to the BAIID lockouts, and sometimes only mere minutes after the BAIID gave readings as high as 0.07 BrAC. No ethanol was present during any high BrAC events, and that fact is borne out in the extreme elimination (and impossible absorption) rates. One of the nine events included an initial startup at 0.000 BrAC, then rose within three minutes to 0.07 upon rolling retest, then back to zero, all within a span of 24 minutes. A BrAC for ethanol of 0.07 will take over four hours to achieve total elimination. Also, directly refuting the ignition interlock readings are the contradicting PBTs, the police eyewitness reports, and negative urine screen. If scientific failsafes had been in place, perhaps such an egregious miscarriage of justice would not have occurred in my case, at least not to such an outrageous degree. I beg of the Commission members to take this petition under advisement. Virginians' liberties are being traipsed upon by the ignition interlock companies and by the ASAP's inability to ferret out "real" ethanol violations. Please begin to utilize science, for the sake of what's right, to help prevent any more collateral damage at the hands of such an unsophisticated and antiquated technology. Humbly and most sincerely, Cynthia Ellen Hites."

Agency Decision: Request denied.

Statement of Reason for Decision: The Commission on VASAP is authorized by the Code of Virginia to develop regulations pertaining to the ignition interlock program. A process is in place to ensure that all positive alcohol readings registered on an ignition interlock device are carefully reviewed by local and state VASAP staff to verify that a violation has occurred. Clients are not sent back to court for noncompliance unless a violation is apparent. Clients who choose to challenge the results of positive ignition interlock tests are welcome to collect (at their own expense) any information to support their contentions. This may include BAC testing (urine, blood, breath) from an independent laboratory, eye witness testimony, and other evidence. This additional evidence will not be considered by VASAP. Such client-provided evidence is best reviewed by the court during the noncompliance hearing for determination of its admissibility and probative value. Accordingly, the petition is denied.

Agency Contact: Richard Foy, Field Service Specialist, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, or email

VA.R. Doc. No. R18-44; Filed December 17, 2018, 1:37 P.m.