REGISTER INFORMATION PAGE
Vol. 37 Iss. 20 - May 24, 2021

THE VIRGINIA REGISTER OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

Unless exempted by law, an agency wishing to adopt, amend, or repeal regulations must follow the procedures in the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Typically, this includes first publishing in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposed regulation in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety, and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar of Regulations no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register.

If the Governor finds that the final regulation contains changes made after publication of the proposed regulation that have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register. Pursuant to § 2.2-4007.06 of the Code of Virginia, any person may request that the agency solicit additional public comment on certain changes made after publication of the proposed regulation. The agency shall suspend the regulatory process for 30 days upon such request from 25 or more individuals, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an alternative to the standard process set forth in the Administrative Process Act for regulations deemed by the Governor to be noncontroversial. To use this process, the Governor's concurrence is required and advance notice must be provided to certain legislative committees. Fast-track regulations become effective on the date noted in the regulatory action if fewer than 10 persons object to using the process in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency may adopt emergency regulations if necessitated by an emergency situation or when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or fewer from its enactment. In either situation, approval of the Governor is required. The emergency regulation is effective upon its filing with the Registrar of Regulations, unless a later date is specified per § 2.2-4012 of the Code of Virginia. Emergency regulations are limited to no more than 18 months in duration; however, may be extended for six months under the circumstances noted in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Virginia Register and are on the Register of Regulations website at register.dls.virgina.gov.

During the time the emergency regulation is in effect, the agency may proceed with the adoption of permanent regulations in accordance with the Administrative Process Act. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

CITATION TO THE VIRGINIA REGISTER

The Virginia Register is cited by volume, issue, page number, and date. 34:8 VA.R. 763-832 December 11, 2017, refers to Volume 34, Issue 8, pages 763 through 832 of the Virginia Register issued on
December 11, 2017.

The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.

Members of the Virginia Code Commission: John S. Edwards, Chair; Marcus B. Simon, Vice Chair; Ward L. Armstrong; Nicole Cheuk; Rita Davis; Leslie L. Lilley; Jennifer L. McClellan; Christopher R. Nolen; Don L. Scott, Jr.; Charles S. Sharp; Samuel T. Towell; Malfourd W. Trumbo.

Staff of the Virginia Register: Karen Perrine, Registrar of Regulations; Anne Bloomsburg, Assistant Registrar; Nikki Clemons, Regulations Analyst; Rhonda Dyer, Publications Assistant; Terri Edwards, Senior Operations Staff Assistant.

PUBLICATION SCHEDULE AND DEADLINES
Vol. 37 Iss. 20 - May 24, 2021

May 2021 through June 2022

Volume: Issue

Material Submitted By Noon*

Will Be Published On

37:20

May 5, 2021

May 24, 2021

37:21

May 19, 2021

June 7, 2021

37:22

June 2, 2021

June 21, 2021

37:23

June 16, 2021

July 5, 2021

37:24

June 30, 2021

July 19, 2021

37:25

July 14, 2021

August 2, 2021

37:26

July 28, 2021

August 16, 2021

38:1

August 11, 2021

August 30, 2021

38:2

August 25, 2021

September 13, 2021

38:3

September 8, 2021

September 27, 2021

38:4

September 22, 2021

October 11, 2021

38:5

October 6, 2021

October 25, 2021

38:6

October 20, 2021

November 8, 2021

38:7

November 3, 2021

November 22, 2021

38:8

November 15, 2021 (Monday)

December 6, 2021

38:9

December 1, 2021

December 20, 2021

38:10

December 17, 2021

January 3, 2022

38:11

December 31, 2021

January 17, 2022

38:12

January 14, 2022

January 31, 2022

38:13

January 26, 2022

February 14, 2022

38:14

February 9, 2022

February 28, 2022

38:15

February 23, 2022

March 14, 2022

38:16

March 9, 2022

March 28, 2022

38:17

March 23, 2022

April 11, 2022

38:18

April 6, 2022

April 25, 2022

38:19

April 20, 2022

May 9, 2022

38:20

May 4, 2022

May 23, 2022

38:21

May 18, 2022

June 6, 2022

*Filing deadlines are Wednesdays unless otherwise specified.

PERIODIC REVIEWS AND SMALL BUSINESS IMPACT REVIEWS
Vol. 37 Iss. 20 - May 24, 2021

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

BOARD OF JUVENILE JUSTICE

Report of Findings

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Board of Juvenile Justice conducted a periodic review and a small business impact review of 6VAC35-41, Regulation Governing Juvenile Group Homes and Halfway Houses, and determined that this regulation should be amended.

The proposed regulatory action to amend 6VAC35-41, which is published in this issue of the Virginia Register, serves as the report of findings.

Contact Information: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23219, telephone (804) 598-3902, FAX (804) 371-6497, or email kristen.peterson@djj.virginia.gov.

TITLE 12. HEALTH

DEPARTMENT OF HEALTH

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 12VAC5-195, Virginia WIC Program. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins May 24, 2021, and ends June 14, 2021.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.

Contact Information: Robin Buskey, Policy Analyst, Office of Family Health Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 863-7253.

DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 12VAC35-240, Eugenics Sterilization Compensation Program. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins May 24, 2021, and ends June 14, 2021.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.

Contact Information: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 4th Floor, Richmond, VA 23219, telephone (804) 225-2252.

NOTICES OF INTENDED REGULATORY ACTION
Vol. 37 Iss. 20 - May 24, 2021

TITLE 12. HEALTH
Waivered Services
Withdrawal of Notice of Intended Regulatory Action

Title of Regulation: 12VAC30-120. Waivered Services (amending 12VAC30-120-370).

Statutory Authority: § 32.1-325 of the Code of Virginia.

Notice is hereby given that the Department of Medical Assistance Services has WITHDRAWN the Notice of Intended Regulatory Action for 12VAC30-120, Waivered Services, that was published in 28:18 VA.R. 1494 May 21, 2012. The notice was published concurrently with an emergency action that was effective May 2, 2012, through May 1, 2013. The amendments described in the notice were addressed through a fast-track regulatory action that was published in 30:6 VA.R. 707-713 November 18, 2013; therefore, the notice is withdrawn.

Agency Contact: Emily McClellan, Regulatory Manager, Division of Policy and Research, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

VA.R. Doc. No. R12-2787; Filed April 22, 2021

REGULATIONS
Vol. 37 Iss. 20 - May 24, 2021

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
DEPARTMENT (BOARD) OF JUVENILE JUSTICE
Proposed

Title of Regulation: 6VAC35-41. Regulation Governing Juvenile Group Homes and Halfway Houses (amending 6VAC35-41-10, 6VAC35-41-20, 6VAC35-41-40 through 6VAC35-41-120, 6VAC35-41-140 through 6VAC35-41-165, 6VAC35-41-180 through 6VAC35-41-220, 6VAC35-41-250, 6VAC35-41-260, 6VAC35-41-280 through 6VAC35-41-310, 6VAC35-41-330, 6VAC35-41-360 through 6VAC35-41-410, 6VAC35-41-440 through 6VAC35-41-470, 6VAC35-41-490, 6VAC35-41-510, 6VAC35-41-520, 6VAC35-41-540 through 6VAC35-41-570, 6VAC35-41-590 through 6VAC35-41-630, 6VAC35-41-650, 6VAC35-41-660, 6VAC35-41-680 through 6VAC35-41-820, 6VAC35-41-840 through 6VAC35-41-930, 6VAC35-41-950 through 6VAC35-41-1110, 6VAC35-41-1160 through 6VAC35-41-1320; adding 6VAC35-41-905, 6VAC35-41-935, 6VAC35-41-1005; repealing 6VAC35-41-30, 6VAC35-41-270, 6VAC35-41-800, 6VAC35-41-1120 through 6VAC35-41-1150).

Statutory Authority: §§ 16.1-309.9 and 66-24 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 23, 2021.

Agency Contact: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23219, telephone (804) 598-3902, FAX (804) 371-6497, or email kristen.peterson@djj.virginia.gov.

Basis: Pursuant to § 16.1-309.9 of the Code of Virginia, the board is required to develop, promulgate, and approve standards for the development, implementation, operation, and evaluation of the community-based programs, services, and facilities authorized by the Virginia Juvenile Community Crime Control Act. Additionally, the board is entrusted with general, discretionary authority to promulgate regulations by § 66-10 of the Code of Virginia, which authorizes the board to promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth.

Purpose: The proposed amendments are a result of a comprehensive review of this chapter conducted by department staff and facility administrators from group homes, shelter care facilities, and other nonsecure residential facilities regulated by the department. The amendments are necessary to clarify ambiguous or confusing provisions, eliminate requirements that are impractical or impose undue burdens on the regulants, incorporate active variances, and enact new requirements aimed at enhancing safety and security and improving the level of services available to juveniles placed in group homes and similar nonsecure juvenile residential facilities. The amendments also align with changes that have occurred since the department's last review of the regulation.

Prison Rape Elimination Act (PREA) of 2003 (P.L. 108-79) provides for the analysis of the incidence and effects of prison rape in federal, state, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape. PREA created a commission charged with developing standards for the elimination of prison rape. The final rule for these standards became effective in 2012; however, juvenile correctional facilities had until October 2017 to comply with the standards related to staffing requirements and staffing ratios. Although group homes and other similar facilities under the department's jurisdiction are not secure facilities as contemplated by PREA, PREA's staffing ratios provide a safe and reasonable benchmark for ensuring the safety of residents in nonsecure juvenile facilities both while on campus and while off campus participating in facility-sponsored events. The regulation's existing requirements regarding staffing ratios in group homes do not align with the required staffing ratios in PREA, and the proposed amendments will conform Virginia's regulations to these requirements.

The proposed amendments incorporate existing variances that acknowledge that residents in independent living (IL) programs are developing skills and behaviors for successful IL and therefore do not need the same protections or level of supervision as residents in other group home facilities. The variances currently in place for IL programs address resident nutrition and staffing during resident emergencies. Because these variances are not permanent, the applicable IL program must seek authorization from the board prior to the variance expiration date in order to renew its provisions.

Unlike the other residential facilities regulated by the board, juvenile correctional centers (JCCs) and secure juvenile detention centers (JDCs), group homes, shelter care facilities, and other similar facilities are prohibited from placing residents behind locked doors or in secure areas where they are not free to leave. Whenever residents are confined in their rooms in JCCs and JDCs, staff must conduct periodic room checks to ensure the resident is safe. This requirement is not in place for group homes and similar facilities. The proposal directs group home staff to conduct periodic checks on residents in the facility once every 30 minutes or more often if the circumstances justify additional checks. IL programs are excused from this requirement.

Substance: The department recommends the following new provisions to the chapter:

6VAC35-41-935, requiring staff (except staff in IL programs) to conduct periodic checks of each resident in the facility at least once every 30 minutes or more often if the circumstances justify.

6VAC35-41-1005, allowing staff in IL programs an exception to the general one-to-16 staffing ratio requirement so that in emergencies, a direct care staff in these programs may leave the facility for no longer than one hour to attend to a resident who is away from the facility and in need of immediate assistance.

The department recommends several substantive amendments to existing language in this regulation:

6VAC35-41-10, amending various definitions, including: (i) IL programs (amended to require the director to approve these programs, rather than the board); (ii) on duty (expanded to include the time an employee is responsible for the direct care of residents, as well as the direct supervision of such residents); and (iii) rest day (amended to allow staff to perform nonsupervisory duties on rest days). Additionally, definitions were added for the following new terms: contractor, grievance, legally authorized representative, planned admission, tuberculosis risk assessment, tuberculosis screening, and wilderness program.

6VAC35-41-40, striking the provision requiring facilities to ensure that failure to comply with the regulation does not pose an immediate and direct danger to residents.

6VAC35-41-50, replacing the board with the director as the individual authorized to set age limits in group homes.

6VAC35-41-60, replacing the board with the audit team leader as the entity to whom reports and information demonstrating compliance with the regulatory requirements must be submitted.

6VAC35-41-90, directing facilities to describe in the serious incident report the manner in which the incident was communicated to the director or the director's designee.

6VAC35-41-105, clarifying that group home staff are only required to alert the facility administrator to criminal activity suspected to have occurred at the facility or at a facility-sponsored activity.

6VAC35-41-110, requiring emergency grievances be acted on rather than heard within eight hours, establishing a new definition for emergency grievance (set out in 6VAC35-41-10), and requiring the completion and documentation of grievances be in accordance with facility procedures.

6VAC35-41-140, authorizing group homes to utilize residents in human research only if the facilities comply with Chapter 170 of the department's regulations and amending the definition of human research to mirror Chapter 170's definition.

6VAC35-41-160, removing the mandate that facilities not subject to the rules of the governing authority or a local government personnel office follow the Department of Human Resources minimum entry-level qualifications.

6VAC35-41-165, clarifying that tuberculosis risk assessments must be completed and evidenced on an assessment form containing the elements on the form published by the Virginia Department of Health and limiting the authority to interpret the results of the assessment to a physician, a physician assistant, nurse practitioner, or registered nurse. The proposal makes similar changes to 6VAC35-41-1210, which addresses tuberculosis screenings for residents.

6VAC35-41-180, prohibiting employees in group homes who are hired under the fingerprint exception from working directly with residents until all required background checks have been satisfied. 6VAC35-41-180 and 6VAC35-41-290 also prohibit group homes from hiring employees or contractors or taking on volunteers who have been convicted of certain barrier crimes listed in § 19.2-392.02 of the Code of Virginia.

6VAC35-41-190 and 6VAC35-41-300, eliminating the requirement that group home staff address population control during employee and volunteer orientation.

6VAC35-41-200, removing the mandate that training accord with the provider's training plan.

6VAC35-41-210, removing the duty of direct care and direct supervision staff to receive 40 hours of annual training, instead requiring such staff to receive an unspecified volume of training in certain topics and 15 hours of additional training in other topics. The proposal also requires the refresher training applicable to medication administrators to include a review of the requirements for medication administration set out in 6VAC35-41-1280.

6VAC35-41-310, adding personnel records for contractors to the list of records that must be maintained and eliminating the requirement that facilities retain annual performance evaluations in the employee's personnel record. The proposal also clarifies that personnel records of interns may be limited to the required background checks and requires the facilities to maintain all such personnel records confidentially and securely.

6VAC35-41-330, making the facility's duty to keep separate health records on each resident mandatory rather than discretionary.

6VAC35-41-360, authorizing the facility administrator to identify which safety, emergency, and communications equipment and systems are critical and to require only those items to be subject to periodic testing, inspection, and maintenance.

6VAC35-41-440, broadening the prohibition against smoking in certain areas of the facility by imposing an absolute prohibition on resident possession, purchase, use, or distribution of tobacco products or nicotine vapor products and prohibiting staff, contractors, volunteers, interns, or visitors from using such products in any areas of the facility or its premises.

6VAC35-41-470, removing the directive that animals maintained on the premises be housed a reasonable distance from sleeping and living areas.

6VAC35-41-490, requiring the emergency preparedness and response plan to identify evacuation means for any individual in the facility who may require special accommodations rather than limiting the targets to residents with disabilities.

6VAC35-41-510, prohibiting strip searches and visual anal and vaginal cavity searches in group homes, in addition to the existing prohibition on manual and instrumental searches of such body cavities.

6VAC35-41-550, directing group homes to provide external parties (other than parents or guardians) responsible for transporting residents whom the facility has flagged for additional monitoring due to suicide inclinations or other special medical needs with a department-approved form identifying pertinent information necessary for the resident's safe transportation.

6VAC35-41-560, removing the qualifier that facilities may not place residents alone in a locked room, instead imposing an absolute prohibition on confining residents in locked rooms, regardless of whether they are alone or with others.

6VAC35-41-565, specifying that the assessment needed to determine whether a resident is a member of a vulnerable population must occur immediately upon a resident's admission to a group home facility.

6VAC35-41-570, providing that the resident's mail referenced in this section includes electronic mail and specifying where first class letters and packages received for transferred or released residents must be forwarded.

6VAC35-41-590, removing the facility's obligation to make visitation procedures available to other interested persons in addition to the resident and parent or legal guardian.

6VAC35-41-620, replacing the drought-related exceptions to the directive that facilities allow residents an opportunity to shower daily with a more generalized exception that applies if there is a documented emergency.

6VAC35-41-650 and 6VAC35-41-1000, allowing IL programs exceptions from certain nutrition-related provisions.

6VAC35-41-680, clearly distinguishing between recreational requirements in wilderness programs and in group home facilities by expressly exempting wilderness programs from the provisions of this section. The proposal incorporates many of the requirements applicable to wilderness programs into recreational programs for group home facilities.

6VAC35-41-700, requiring the facility to obtain written permission from the parent or legal guardian and the resident before using the resident for fundraising activities.

6VAC35-41-730, making the individual who referred the resident, and not the provider, the entity responsible for completing the application for admission into the group home facility.

6VAC35-41-750 and 6VAC35-41-780, removing the language regarding self-admissions to shelter care facilities. The proposal also removes this reference from the definition of emergency admission.

6VAC35-41-800, repealing the provision that prohibits group homes from placing residents outside the facility before obtaining a placing agency license from the Department of Social Services.

6VAC35-41-890, removing the directive that the department approve procedures related to positive relationships with facility neighbors.

6VAC35-41-900, eliminating facility discretion to allow residents to visit the homes of staff members, in favor of an absolute prohibition.

6VAC35-41-910, repealing the provision prohibiting direct care staff from taking on nondirect care responsibilities if they interfere with the staff's direct care duties.

6VAC35-41-920, allowing IL program staff to leave the facility temporarily to attend to a resident off-site in an emergency, provided certain requirements are met.

6VAC35-41-930, modifying the required staff-to-resident ratios from the current one-to-10 to one-to-eight and adding language giving the facility administrator discretion to determine appropriate staffing ratios for off-campus trips if the ratios do not fall below the one-to-eight directive; striking the current one-to-15 staff-to-resident ratio mandate in IL programs; and striking the requirement to have one direct care staff on duty for every 30 residents in facilities on every floor where residents are sleeping.

6VAC35-41-950, moving the requirements in this section to a new section, eliminating the requirement that work assignments in group homes accord with the resident's individual service plan, and striking the provision requiring parents to consent to such work assignment and applicable rates of pay.

6VAC35-41-970, replacing the board with the facility administrator as the entity authorized to approve the materials and curricula for IL programs and eliminating the facility's obligation to utilize a department-approved assessment tool to assess living skills for residents in IL programs.

6VAC35-41-980, removing the directive to have trained staff administer the assessment tool currently required in 6VAC35-41-970.

6VAC35-41-1000, removing as impractical the requirement that IL programs ensure adequate nutrition of each resident by maintaining menus of meals served on file.

6VAC35-41-1010, 6VAC35-41-1020, 6VAC35-41-1030, 6VAC35-41-1040, and 6VAC35-41-1070, narrowing the application of the wilderness program provisions to exclude facilities or programs that are not focused primarily on wilderness activities.

6VAC35-41-1010, replacing the board with the director as the individual authorized to approve wilderness programs.

6VAC35-41-1020, requiring the same one-to-eight staff-to-resident ratios in wilderness programs as in group homes.

6VAC35-41-1040, eliminating the requirement that each resident in a wilderness program has adequate personal storage.

6VAC35-41-1070, directing the trip coordinator for wilderness programs to ensure that a certified lifeguard supervises all aquatic activity.

6VAC35-41-1080, striking the provision that gives family-oriented groups (FOGs) the discretion to determine, through written procedures, how and when various parties must be notified of serious incidents. The new provision imposes the same serious incident report (SIR) reporting requirements on staff in FOGs as other nonsecure residential facilities pursuant to 6VAC35-41-90.

6VAC35-41-1100, requiring FOGs to conduct and document inspections on smoke alarm devices at least monthly and directing every bed in a FOG to have mattresses, pillows, linens, and similar items, cleaned once every seven days.

6VAC35-41-1100, subjecting FOGs to a number of additional regulatory provisions currently applicable to other nonsecure residential facilities.

6VAC35-41-1120, 6VAC35-41-1130, and 6VAC35-41-1140, repealing these sections because the department does not regulate respite care facilities. Separate provisions that address respite care facilities in other areas of the regulation also are removed (6VAC35-41-1170 C and 6VAC35-41-1250 D).

6VAC35-41-1260, requiring group homes to maintain first aid kits in facility vehicles as well as in the facility.

6VAC35-41-1270, allowing an exception to the rule requiring one of certain identified individuals to accompany residents being transported away from a group home for outside medical treatment. The exception permits facility staff to send a staff member to the medical facility as soon as reasonably possible if staff accompanying the resident would jeopardize resident or staff safety in the facility.

6VAC35-41-1280, modifying the definition of medication incident by excluding from the list of such incidents occasions when facilities fail to administer medication due to repeated, unsuccessful attempts to obtain the medication.

6VAC35-41-1300, removing the directive that staff review support plans for residents needing additional supports and be prepared to implement such plans prior to working alone with the assigned resident.

6VAC35-41-1310, striking the mandate that facilities base their use of timeout and the frequency of resident checks during timeout on the resident's chronological and developmental levels. Instead, the proposal requires that the facility evaluate whether the resident is prepared to be released from timeout during each 15-minute check.

Issues: Each of the amendments proposed in this regulatory action is expected to ensure the safety and well-being of residents and staff in nonsecure residential facilities, thereby benefiting the public. The heightened monitoring requirements proposed in 6VAC35-41-935 and increased staffing protocols will ensure that residents are accounted for and may reduce the likelihood of injuries or other incidents. Imposing notification requirements on facility staff when external parties are transporting certain residents off site will put such parties on notice that additional monitoring may be warranted. Expanded smoking prohibitions will reduce the likelihood that tobacco and nicotine vapor products fall into the hands of residents for whom possession of such products is unlawful. These changes are expected to benefit the department and the Commonwealth as a whole to the extent that more effective programming in the community decreases the likelihood of commitment to the department or recidivism upon release.

A handful of amendments may impose additional burdens on affected group homes or department staff, but the additional protections resulting from these amendments are expected to outweigh any burdens to facility and department staff.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to: 1) voluntarily adopt staffing ratios of the federal 2003 Prison Rape Elimination Act, 2) require facility staff to conduct periodic room checks, 3) change the specific number of hours applicable to different types of annual training, 4) require facilities to act on rather than hear a resident's emergency grievances within a specific time period, 5) establish information sharing requirements when individuals who do not work in the facility transport residents off-site, 6) require that a first-aid kit be maintained in facility and in transport vehicles, 7) no longer require facilities to make visitation procedures available to persons other than the resident, parents, or legal guardians, 8) incorporate existing variances granted to one independent living program, 9) no longer require parental consent for work assignments, and 10) streamline many existing requirements and clarify regulatory language.

Background. This regulation establishes the minimum standards with which staff in non-secure juvenile group homes and similar non-secure facilities must comply. These facilities are operated by local governments or groups thereof (commissions), but are subject to certification by the Board. The primary purpose of the regulation is to ensure safety and rehabilitation of residents within these facilities. The regulation addresses a wide range of topics applicable to group homes, including personnel requirements, physical plant, facility safety and security, residents rights, program operations, health care services, and behavior support and management. The regulation also applies to other non-secure facilities such as independent living programs,1 wilderness programs,2 and family-oriented group homes.3 Currently, there are 13 group homes and three independent living programs. However, there are no wilderness or family-oriented group homes operated in the Commonwealth currently.

The proposed amendments are a result of a comprehensive review conducted by the Department of Juvenile Justice (DJJ) staff and facility administrators from group homes regulated by DJJ.

Estimated Benefits and Costs. This action contains proposals for numerous changes. Most of the changes are intended to eliminate requirements that the Board either believes are impractical or that impose small but undue burdens on regulated facilities; other proposed changes would improve the clarity of the language. The changes that appear to be substantive are discussed below.

In 2003, Congress enacted the Prison Rape Elimination Act (PREA) to "provide for the analysis of the incidence and effects of prison rape in federal, state, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape." The act created a commission charged with developing standards for the elimination of prison rape. The final rule for these standards became effective in 2012; however, juvenile correctional facilities had until October 2017 to comply with the standards related to staffing requirements and staffing ratios. Although group homes under the department's jurisdiction are not "secure facilities" as contemplated by PREA, according to DJJ the staffing ratios in the PREA provide a safe and reasonable benchmark for ensuring the safety of residents in non-secure juvenile facilities, both while on campus and during facility-sponsored events held off campus. Currently, the regulation's existing requirements regarding staffing ratios in group homes and independent living programs do not align with the staffing ratios in PREA, and the proposed amendments would conform Virginia's regulations to these requirements.

The proposal changes the current one to 10 on-site staffing ratio (staff/residents) during awake hours applicable in group homes to one to eight in order to conform to the PREA staffing ratios. The proposal also gives the facility administrator the discretion to increase appropriate staffing ratios while residents are off-site and participating in facility sponsored activities or events. The administrator must consider which residents are participating, the nature of the event, and other factors but shall never allow less than one direct care staff member for every eight or fewer residents off-site.

Although, this change represents a 25% increase in the staffing ratio, at present there are no group homes with more than seven residents based on information received from 12 out of 13 facilities in response to a recent survey. It must be noted that the recent resident counts reflected in the survey were significantly impacted by COVID-19 and do not reflect the average daily population numbers for previous years. Even then though, DJJ reports that the majority of the group homes were already in compliance with the PREA staffing ratios. In the unlikely event that a specific facility does not meet the proposed ratios under their existing staffing policies, this change may result in additional personnel costs. If additional personnel are needed, such additional costs will be borne by the locality or commission responsible for the facility's operation. On the other hand, an increased staffing ratio would help ensure that residents are accounted for and properly monitored, which may reduce the likelihood of injuries or other incidents.

The three independent living programs have been and would continue to be exempt from the staffing ratios. Instead, they are currently required to maintain at least one direct care staff member awake, on duty, and responsible for supervision of every 15 residents on the premises during all hours, regardless of whether residents are scheduled to be awake or asleep. The proposal relaxes the one to 15 staffing requirement in independent living programs to one to 16. Although, this change represents a 6.25% reduction in required staffing at independent living programs, it would have no immediate impact on current facilities because no independent living program has more than eight residents at this time.

Unlike the other residential facilities regulated by the board (secure juvenile correctional centers and secure juvenile detention centers), group homes and other similar non-secure facilities are prohibited from placing residents alone behind locked doors or in secure areas where they are not free to leave. Whenever residents are confined in their rooms in secure facilities, staff must conduct periodic room checks to ensure the resident is safe. This requirement is not in place for group homes and similar non-secure facilities. The regulation proposes to change this, by directing staff in all types of non-secure facilities except independent living programs to conduct periodic checks on residents in the facility once every 30 minutes, or more often if the circumstances justify additional checks. The proposal directs that these checks be documented in accordance with written procedures. Independent living programs are exempt from this requirement. According to DJJ, residents in independent living programs are developing skills to live independently; therefore, periodic checks are not necessary for such programs. The proposal is intended to ensure that group homes are adequately monitoring residents within their independent living programs to ensure their safety.

DJJ conducted a survey of the 13 group homes and three independent living programs regulated to determine what impact the proposed new requirements would have. The respondents indicated that the proposed change would not affect their facilities because staff were already conducting these checks.

Emergency grievances. The proposal requires that resident's emergency grievances be acted on, rather than heard, within eight hours. The proposal adds language that requires the grievance responses to be completed and documented in accordance with facility procedures. According to DJJ, grievances of this nature may pose an immediate risk of hardship or harm to a resident and demand urgency. This provision would prevent the facility from hearing the grievance within the eight-hour period but then extending the review or determination regarding the grievance well beyond the eight-hour limit.

This change may necessitate additional resources to meet the deadline depending upon the complexity of the grievance or reallocation of existing resources currently available but would ensure both a prompt review and response. While the specific costs associated with the change cannot be determined, DJJ does not expect this change to result in significant administrative expenses.

Information to external parties. The proposal directs all types of non-secure facilities to provide a DJJ-approved form to external parties when they transport residents flagged for additional monitoring due to recent suicide attempts or ideations or because of special medical needs. The form must identify pertinent information concerning the resident's additional monitoring needs if such information reasonably could be considered necessary for the resident's safe transportation and supervision. This directive would not apply if the carrier is the resident's parent or guardian or if an emergency renders completion of the form impracticable or infeasible.

This proposal would create additional responsibilities for existing staff but is intended to ensure that such external parties take measures necessary to help the resident's and their safety during transportation. The facilities would have flexibility regarding how to implement this provision and may be able to control the burden on facility resources. Therefore, the magnitude of the impact cannot be determined. On the other hand, when external parties are transporting certain residents off-site, the proposed change would put such parties on notice that additional monitoring may be warranted.

First-aid kits. The proposal adds language requiring that a first-aid kit must be maintained within the facility and in facility vehicles used to transport residents. This amendment is intended to help staff of facilities respond to minor resident injuries while on premises and in transporting residents off-site. According to DJJ, this requirement is consistent with most facilities' current practices. Thus, non-secure facilities are not expected to incur significant additional expenses because most already meet this requirement.

Staff training. The proposal removes the obligation of staff in group homes and other non-secure facilities to complete 40 hours of training annually on specified topics (i.e., suicide prevention, child abuse and neglect, mandatory reporting, residents' rights, standard precautions, and behavior intervention procedures), in favor of a requirement that they receive an unspecified volume of training on those topics. The proposal also establishes that the currently unspecified volume of additional annual training be appropriate to an individual's job duties, and that it must be at least 15 hours. According to DJJ, these two changes would allow non-secure facilities to better tailor staff training to meet the needs of staff while ensuring enough training appropriate to the individual's job duties. The net impact of these two changes is expected to be a reduction in annual training hours, freeing up resources to devote to facility operations and to residents, and a likely reduction in administrative expenses.

The proposal also strikes the requirement to maintain a training plan. Non-secure facility training plans generally ensure that staff are complying with existing regulations. DJJ points out that a training plan is not required under the comparable regulations that govern secure facilities, that a training plan is unnecessary, and that the absence of a training plan would not prevent facilities from satisfying the training mandates in this section. Thus, no significant effect is expected from this particular change.

Visitation procedures. The proposal removes the obligation to make visitation procedures available to "other interested persons important to the resident" in addition to the resident, parents or legal guardians. According to DJJ, the phrase "other interested persons important to the resident" is vague, impractical, and has the potential to strain unnecessarily facility resources. Under the proposal, facilities would maintain the discretion to provide other interested parties with these procedures, but would no longer be under a mandate. Eliminating the requirement to provide visitation procedures to "other interested persons important to the resident" may reduce the amount of materials needed for distribution, which may result in a small administrative savings.

Inclusion of active variances. The proposed amendments incorporate existing variances currently in place for one of the independent living programs addressing resident nutrition and staffing during resident emergencies. Because these variances are not permanent, the affected independent living program must seek reauthorization periodically from the board prior to the variance expiration date in order to renew its provisions.

One of the variances proposed to be incorporated allows the sole direct care staff member on duty to leave an independent living program facility in emergencies for no longer than one hour to attend to a resident off-site who needs immediate assistance. This language reflects an active variance currently in place for one independent living program.

The other variance proposed to be incorporated is the exemption to the requirement that the facility maintain a file with menus of all meals served. According to DJJ, this provision is not practical for residents in independent living programs who may work several jobs or hours that prevent them from preparing their own meals and maintaining documentation of what they prepared. This change is consistent with a variance issued to the same independent living program in 2016 that excuses its apartment-style program from the menu retention requirement due to these limitations.

Because the proposed regulatory change is consistent with the existing variances, the change should have no significant impact on the program with the variances other than producing small administrative cost savings due to avoidance of repeated variance applications. Under the proposal, the other two independent living programs would also be eligible for the same exceptions and may realize some administrative cost savings.

Parental consent for employment. The proposal removes the requirement to obtain consent from the parent or legal guardian for work assignments (paid or unpaid) including chores or outside employment, and instead requires the facility administrator to collaborate with the parent or legal guardian and the referring agency before approving such work assignments. This provision preserves the parent's right to weigh in on these decisions but ultimately recognizes the possibility that parents or legal guardians may not always be considering the resident's best interests in making these determinations. According to DJJ, this change could improve employability of some of the residents.

Businesses and Other Entities Affected. The Board currently regulates 13 group homes and three independent living programs operated by local governments or local commissions.4 Proposed changes to the regulatory provisions would affect these facilities as well as their staff. According to a recent survey conducted by DJJ, to which 15 of the 16 facilities responded, there are 62 residents at 15 of these facilities. The range of residents per facility is between zero and eight, the average being 4.1 residents.

As noted, the proposals for maintaining first-aid kits and acting on emergency grievances may introduce additional administrative costs. On the other hand, the proposals to provide more flexibility in staff training, narrowing who must be given the visitation procedures, and incorporation of active variances may provide some administrative cost savings. An adverse economic impact5 on affected facilities is not indicated because the magnitude of the possible costs that may be introduced to them appears to be insignificant.

Local law enforcement, divisions of social services, and other local entities that work closely with residents or are responsible for transporting residents in these facilities may benefit from the enhanced notification provisions as to the mental state of the resident being transported. Aside from the administrative benefits from incorporation of the existing variances made available to the other two independent living programs, no other entities appear to be disproportionately affected.

Small Businesses6 Affected: The proposed regulation may indirectly affect small businesses only insofar as a small business provides a program or service subject to this regulation. Also, none of the proposed changes appears to have a significant economic impact. Thus, the proposed amendments should not have an adverse effect on small businesses.

Localities7 Affected.8 As stated, the 16 facilities are operated by local governments or local commissions. These facilities are located in County of Arlington, City of Falls Church, City of Fredericksburg, County of Fairfax (3), Prince William County, City of Alexandria, City of Virginia Beach (3), City of Lynchburg, City of Portsmouth, Chesterfield County, City of Martinsville, and York County.

The additional administrative costs that may be introduced by the amendments appear to be insignificant. Thus, the amendments do not appear to affect any locality adversely or disproportionately.

Projected Impact on Employment. According to DJJ, the removal of the parental consent for a resident's work assignments may improve employability of some of the residents, which would moderately add to the labor supply. No significant impact on employment is expected from other changes.

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

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1"Independent living program" is defined as "a competency-based program specifically approved by the director to provide residents with the opportunity to develop the skills necessary to become independent decision makers and self-sufficient adults and to live successfully on their own following completion of the program."

2"Wilderness program" is defined as "a residential program that provides treatment and services to residents primarily through experiential wilderness expeditions."

3"Family-oriented group home" is defined as "a private home in which residents may reside upon placement by a lawful placing agency."

4Data source: DJJ

5Adverse 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.

6Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

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

Agency's Response to Economic Impact Analysis: The responsible Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's economic impact analysis and are in agreement with the analysis.

Summary:

The proposed amendments (i) voluntarily adopt staffing ratios of the federal 2003 Prison Rape Elimination Act, (ii) require facility staff to conduct periodic room checks, (iii) change the specific number of hours applicable to different types of annual training, (iv) require facilities to act on rather than hear a resident's emergency grievances within a specific time period, (v) establish information sharing requirements when individuals who do not work in the facility transport residents off site, (vi) require that a first-aid kit be maintained in facility and in transport vehicles, (vii) no longer require facilities to make visitation procedures available to persons other than the resident, parents, or legal guardians, (viii) incorporate existing variances granted to one independent living program, (ix) no longer require parental consent for work assignments, and (x) streamline existing requirements and clarify regulatory language.

6VAC35-41-10. Definitions.

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

"Annual" means within 13 months of the previous event or occurrence.

"Aversive stimuli" means physical forces, such as sound, electricity, heat, cold, light, water, or noise, or substances, such as hot pepper, pepper sauce, or pepper spray, measurable in duration and intensity, that when applied to a resident are noxious or painful to the resident.

"Behavior management" means the principles and methods employed to help a resident achieve positive behavior and to address and correct a resident's inappropriate behavior in a constructive and safe manner in accordance with written procedures governing program expectations, treatment goals, and resident and employee safety and security.

"Board" means the Board of Juvenile Justice.

"Case record" or "record" means written or electronic information relating to one regarding a resident and the resident's family, if applicable. This information includes, but is not limited to, social, medical, psychiatric, and psychological records; reports; demographic information; agreements; all correspondence relating to care of the resident; individual service plans with periodic revisions; aftercare plans and discharge summary; and any other information related to the resident.

"Contraband" means any an item possessed by or accessible to a resident or found within a facility or on its premises that (i) that is prohibited by statute, regulation, or facility procedure, (ii) that is not acquired through approved channels or in prescribed amounts, or (iii) that may jeopardize the safety and security of the facility or individual residents.

"Contractor" means an individual who (i) has entered into a legal agreement with a juvenile residential facility to provide services directly to a resident, (ii) will work with the resident more than twice per month, and (iii) in the provision of the contractual services, will be alone with the resident.

"Department" or "DJJ" means the Department of Juvenile Justice.

"Direct care staff" means the staff whose primary job responsibilities are (i) maintaining the safety, care, and well-being of residents and (ii) implementing the structured program of care and behavior management program.

"Direct supervision" means that the act of staff may work working with residents while not in the presence of direct care staff. Staff members who provide direct supervision are responsible for maintaining the safety, care, and well-being of the residents in addition to providing services or performing the primary responsibilities of that position.

"Director" means the Director director of the Department of Juvenile Justice department.

"Emergency" means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action, such as a fire, chemical release, loss of utilities, natural disaster, taking of hostages hostage situation, major disturbances disturbance, escape, and or bomb threats threat. Emergency does not include regularly scheduled employee time off or other situations that could be reasonably could be anticipated.

"Emergency admission" means the unplanned or unexpected admission of a resident in need of immediate care.

"Facility administrator" means the individual who has the responsibility is responsible for the on-site management and operation of the facility on a regular basis or that individual's designee.

"Family oriented "Family-oriented group home" means a private home in which residents may reside upon placement by a lawful placing agency.

"Grievance" means a written communication developed by a resident to report a real or imagined wrong or other cause for complaint or protest, particularly involving a claim of unfair treatment.

"Group home" means a juvenile residential facility that is a community based, home-like single dwelling, or its acceptable equivalent community-based dwelling, other than the private home of the operator, and that does not exceed the capacity approved by the regulatory authority. director. For the purpose of this chapter, a group home includes a halfway house that houses residents in transition from a commitment to the department., a shelter care facility, or an independent living facility.

"Health care record" means the complete record of medical screening and examination information and ongoing records of medical and ancillary service delivery, including all findings, diagnoses, treatments, dispositions, prescriptions, and their administration.

"Health care services" means preventive and therapeutic actions taken for the physical and mental well-being of a resident. Health care services include medical, dental, orthodontic, mental health, family planning, obstetrical, gynecological, health education, and other ancillary services.

"Health-trained personnel" means an individual who is trained by a licensed health care provider to perform specific duties, such as administering health care screenings, reviewing screening forms for necessary follow-up care, preparing residents and records for outside medical visits, and assisting in the implementation of certain medical orders.

"Human research" means a systematic investigation, including research development, testing, and evaluation utilizing human subjects that is designed to develop or contribute to generalized knowledge. Human research shall not be deemed to include research exempt from federal research regulation pursuant to 45 CFR 46.101(b).

"Independent living program" means a competency-based program specifically approved by the director to provide residents with the opportunity to develop the skills necessary to become independent decision makers and self-sufficient adults and to live successfully on their own following completion of the program.

"Individual service plan" or "service plan" means a written plan of action developed, revised as necessary, and reviewed at specified intervals to meet the needs of a resident. The individual service plan specifies (i) measurable short-term and long-term goals and (ii) the objectives, strategies, and time frames for reaching the goals.

"Juvenile residential facility" or "facility" means a publicly or privately operated facility or placement where 24-hour per day nonsecure residential program that is required to be certified and that provides 24-hour-per-day care is provided to residents who are separated from their parents or legal guardians and that is required to be certified. As used in this regulation, the term includes, but is not necessarily limited to, group homes, family-oriented group homes, and halfway houses independent living programs and excludes juvenile correctional centers and juvenile detention centers.

"Legally authorized representative" means, in the following specified order of priority, (i) the parent or parents having custody of a minor; (ii) the legal guardian of a minor; (iii) the spouse of a minor, except where a suit for divorce has been filed and the divorce decree is not yet final; or (iv) a person or judicial or other body authorized by law or regulation to provide consent on behalf of a minor, including an attorney in fact appointed under a durable power of attorney, provided the power grants the individual the authority to make such a decision.

"Legal mail" means written material that is sent to or received from a designated class of correspondents, as defined in written procedures, which shall include any court, legal counsel, administrator of the grievance system, or administrator of the department, facility, provider or governing authority.

"Living unit" means the space in which a particular group of residents in under the care of a juvenile residential facility resides. A living unit contains sleeping areas rooms, bath and toilet facilities, and a living room or its equivalent for use by the residents of the living unit. Depending upon its design, a building may contain one living unit or several separate living units.

"Medication incident" means an error made in administering a medication to a resident, including the following: (i) a resident is given incorrect medication, (ii) medication is administered to an incorrect resident, (iii) an incorrect dosage is administered, (iv) medication is administered at a wrong time or not at all, and (v) the medication is administered through an improper method. A medication incident shall not include (a) a resident's refusal of appropriately offered medication or (b) a facility's failure to administer medication due to repeated, unsuccessful attempts to obtain such medication.

"On duty" means the period of time an employee is responsible for the direct care or direct supervision of one or more residents.

"Parent" or "legal guardian" means (i) a biological or adoptive parent who has legal custody of an individual, including either parent if custody is shared under a joint decree or agreement; (ii) a biological or adoptive parent with whom the individual resident regularly resides; (iii) a person judicially appointed as a legal guardian of a resident; or (iv) a person who exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption, or otherwise by operation of law.

"Physical restraint" means the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

"Placement" means an activity by any person that provides the provision of assistance to a placing agency, parent, or legal guardian in locating and effecting the movement of a resident to a juvenile residential facility.

"Placing agency" means (i) any a person, group, court, court service unit, or agency licensed or authorized by law to place residents in a juvenile residential facility or (ii) a local board of social services authorized to place residents in a juvenile residential facility.

"Planned admission" means the admission of a resident following evaluation of an application for admission and execution of a written placement agreement.

"Premises" means the tracts of land on which any part of a facility is located and any buildings on such tracts of land.

"Provider" means the person, corporation, partnership, association, locality, commission, or public agency to whom a license or certificate to operate a juvenile residential facility is issued and who that is legally responsible for compliance with the regulatory and statutory requirements relating to the facility.

"Regulatory authority" means the board or the department as if designated by the board.

"Resident" means an individual who is legally placed in, formally placed in, or admitted to a juvenile residential facility for supervision, care, training, or treatment on a 24-hour per day 24-hour-per-day basis.

"Rest day" means a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to supervision in a juvenile residential facility.

"Rules of conduct" means a listing list of a facility's rules or regulations that is maintained to inform residents and others of (i) the behavioral expectations of the behavior management program, about (ii) behaviors that are not permitted, and about (iii) the sanctions that may be applied when impermissible behaviors occur.

"Shelter care facility" means a nonsecure facility or an emergency shelter specifically approved to provide a range of services, as needed, on an individual basis not to exceed 90 days.

"Timeout" means a systematic behavior management technique program component designed to reduce or eliminate inappropriate or problematic behavior by having a staff require a resident to move to a specific location that is away from a source of reinforcement for a specific period of time or until the problem behavior has subsided.

"Tuberculosis risk assessment" means an assessment involving a series of questions designed to determine whether a person requires a tuberculosis screening.

"Tuberculosis screening" means the administration of a tuberculin skin test, chest x-ray, or interferon gamma release assay blood test to determine whether tuberculosis bacteria is present in an individual's body.

"Volunteer or intern" means an individual or group who voluntarily provides goods and services without competitive compensation.

"Vulnerable population" means a resident or group of residents who have been assessed as reasonably likely to be exposed to the possibility of being attacked or harmed, either physically or emotionally.

"Weapon" means (i) a pistol, revolver, or other weapon intended to propel a missile of any kind by action of an explosion; (ii) any dirk, bowie knife (except a pocket knife having a folding metal blade of less than three inches), switchblade knife, ballistic knife, machete, straight razor, slingshot, spring stick, metal knucks, or blackjack; (iii) nun chucks or other flailing instrument with two or more rigid parts that swing freely; and (iv) throwing star or oriental dart.

"Wilderness program" means a residential program that provides treatment and services to residents primarily through experiential wilderness expeditions.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or in electronic form.

6VAC35-41-20. Applicability.

This chapter applies to group homes, halfway houses, shelter care, and other applicable juvenile residential facilities regulated by the board as authorized by statute. Parts I (6VAC35-41-10 et seq.) through VI (6VAC35-41-710 et seq.), XII X (6VAC35-41-1150 et seq.), and XIII XI (6VAC35-41-1290 et seq.) of this chapter apply to all juvenile residential facilities, with the exception of family-oriented group homes, governed by this regulation unless specifically excluded. Parts VII (6VAC35-41-950) (6VAC35-41-960) through XI (6VAC35-41-1120 et seq.) IX (6VAC35-41-1080 et seq.) of this chapter apply only to the specific programs or facilities as indicated.

6VAC35-41-30. Previous regulations terminated. (Repealed.)

This chapter replaces the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51) and the Standards for Juvenile Residential Facilities (6VAC35-140) for the regulation of all juvenile residential facilities as defined herein. The Standards for the Interim Regulation of Children's Residential Facilities and the Standards for Juvenile Residential Facilities remain in effect for juvenile detention facilities and juvenile correctional centers, regulated by the board, until such time as the board adopts new regulations related thereto.

6VAC35-41-40. Certification.

A. The provider shall comply with the provisions of the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (6VAC35-20). The provider shall:

1. Demonstrate compliance with this chapter, other applicable regulations issued by the board, and applicable statutes and regulations; and

2. Implement approved plans of action to correct findings of noncompliance; and

3. Ensure no noncompliance may pose any immediate and direct danger to residents.

B. The provider shall maintain the documentation necessary to demonstrate compliance with this chapter for a minimum of three years.

C. The current certificate shall be posted at all times in each facility in a place conspicuous to the public.

6VAC35-41-50. Age of residents.

A. Facilities shall admit residents only in compliance with the age limitations approved by the board director in establishing the facility's certification capacity, except as provided in subsection B of this section.

B. A facility shall not admit a resident who is above the age approved for certification. A resident may remain in the facility above the age of certified capacity age only (i) to allow the resident to complete a program identified in the resident's individual service plan and (ii) if a discharge plan has been established. This subsection does not apply to shelter care programs.

6VAC35-41-60. Relationship to the regulatory authority.

A. All reports and information as the regulatory authority may require to establish compliance with this chapter and other applicable regulations and statutes shall be submitted to or made available to the regulatory authority audit team leader.

B. A written report of any contemplated changes in operation that would affect the terms of the certificate or the continuing eligibility for certification shall be submitted to the regulatory authority. A change may not be implemented prior to approval by the regulatory authority.

6VAC35-41-70. Relationship with the department.

A. The director or the director's designee shall be notified within five working days of any significant change in administrative structure or newly hired facility administrator.

B. Any of the following that may be related to the health, safety, or human rights of residents shall be reported to the director or designee within 10 days: (i) lawsuits against the facility or its governing authority and (ii) settlements with the facility or its governing authority.

6VAC35-41-80. Variances and waivers.

A. Board action may be requested by the facility administrator A facility may request board action to relieve a facility from having to meet or develop a plan of action for the requirements of a specific section or subsection of this regulation chapter, provided the section or subsection is a noncritical regulatory requirement. The variance request may be granted either permanently or for a determined period of time, as provided in the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (6VAC35-20).

B. Any such A variance may not be implemented prior to approval of by the board.

C. When the facility administrator has submitted a variance request to the director or the director's designee concerning a noncritical regulatory requirement, and board action has been requested formally by the director or the director's designee, the director may, but is not required to, grant a waiver temporarily excusing the facility from meeting the requirements of a specific section or subsection of this chapter. The waiver shall be subject to the requirements in 6VAC35-20-93.

6VAC35-41-90. Serious incident reports.

A. The following events shall be reported within 24 hours to: (i) the placing agency, (ii) the parent or legal guardian, or both, as applicable and appropriate, and (iii) the director or the director's designee:

1. Any A serious incident, accident, illness, or injury to the resident;

2. Any An overnight absence from the facility without permission;

3. Any A runaway;

4. Any A fire, hostage or situation, emergency situation, or natural disaster that jeopardizes may jeopardize the health, safety, and welfare of the residents; and

5. Any A suspected case of child abuse or neglect at the facility, on a facility event or excursion, or involving facility staff as provided in 6VAC35-41-100 (suspected child abuse or neglect).

The 24-hour reporting requirement may be extended provider may extend the 24-hour reporting requirement when the emergency situation or natural disaster has made such communication impossible (e.g., modes of communication are not functioning), such as when modes of communication are not functioning. In such these cases, notice shall be provided as soon as feasible thereafter.

B. The provider shall notify the director or the director's designee within 24 hours of any events detailed in subsection A of this section and all other situations required by the regulatory authority of which the facility has been notified.

C. Any incident Incidents involving the death of a resident shall be reported to the individuals specified in subsections subsection A and B of this section without undue delay. If an incident involving the death of a resident occurs at the facility, the facility shall notify the parents or legal guardians, as appropriate and applicable, of all residents in the facility provided such the notice does not violate any confidentiality requirements or jeopardize any law-enforcement or child protective services investigation or the prosecution of any criminal cases related to the incident.

D. The facility shall (i) prepare and maintain a written report of the events listed in subsections A and B of this section and (ii) submit a copy of the written report to the director or the director's designee. The report shall contain the following information:

1. The date and time the incident occurred;

2. A brief description of the incident;

3. The action taken as a result of the incident;

4. The name of the person who completed the report;

5. The name or identifying information of the person who made the report to who, in accordance with subsection A of this section, notified the placing agency and to either the parent or legal guardian, as appropriate and applicable, and the manner in which the information was communicated; and

6. The name of or identifying information provided by the person to whom the report was made, including any law enforcement or child protective service personnel.

E. The resident's record shall contain a written reference (i) that an incident occurred and (ii) of all applicable reporting.

F. In addition to the requirements of this section, any serious incident incidents involving an allegation of child abuse or neglect at the facility, at a facility sponsored facility-sponsored event, or involving facility staff shall be governed by 6VAC35-41-100 (suspected child abuse or neglect).

6VAC35-41-100. Suspected child abuse or neglect.

A. When there is a reason to suspect that a child is an abused or neglected child, the matter shall be reported immediately to the local department of social services, or to the state Department of Social Services toll-free child abuse and neglect hotline as required by § 63.2-1509 of the Code of Virginia and in accordance with the written procedures.

B. Written procedures shall be distributed to all staff members and shall at a minimum provide for the following:

1. Handling accusations against staff;

2. Reporting and documenting suspected cases of child abuse and neglect;

3. Cooperating during any an investigation; and

4. Measures to be taken to ensure the safety of the resident and the staff.

C. Any case Cases of suspected child abuse or neglect against a resident shall be reported and documented as required in 6VAC35-41-90 (serious incident reports). The resident's record shall contain a written reference that a report was made.

6VAC35-41-105. Reporting criminal activity.

A. Staff shall be required to report to the facility administrator for appropriate action all known criminal activity suspected to have occurred at the facility or at a facility-sponsored activity by residents or staff, including but not limited to any physical abuse, sexual abuse, or sexual harassment, to the facility administrator for appropriate action.

B. The facility administrator, in accordance with written procedures, shall notify the appropriate persons or agencies, including law enforcement, child protective services, if applicable and appropriate, and the department as appropriate and applicable, of suspected criminal violations by residents or staff. Suspected criminal violations relating to the health and safety or human rights of residents shall be reported to the director or designee.

C. The facility shall assist and cooperate with the investigation of any such complaints and allegations as necessary subject to restrictions in federal or state law.

6VAC35-41-110. Grievance procedure.

A. Written procedure procedures shall provide require that residents are oriented to and have continuing access to a grievance procedure that provides for:

1. Resident participation in the grievance process with assistance from staff upon request;

2. Investigation of the grievance by an objective employee who is not the subject of the grievance;

3. Documented, timely responses to all grievances with the reasons for the decision, in accordance with facility procedures;

4. At least one level of appeal;

5. Administrative review of grievances;

6. Protection from retaliation or threat of retaliation for filing a grievance; and

7. Hearing of an emergency grievance Action within eight hours on grievances that pose an immediate risk of hardship or harm to a resident.

B. Each resident Residents shall be oriented to the grievance procedure in an age or and developmentally appropriate manner.

C. The grievance procedure shall be (i) be written in clear and simple language; (ii) provide the express definition of grievance as set out in 6VAC35-41-10; and (ii) (iii) be posted in an area easily accessible to residents and their parents and legal guardians.

D. Staff shall assist and work cooperatively with other employees in facilitating the grievance process.

6VAC35-41-120. Responsibilities of the provider or governing authority.

A. The provider shall clearly identify clearly and in writing the corporation, association, partnership, individual, or public agency that is the holder of the certificate (governing authority) and that serves as the facility's governing authority. Any change in the identity or corporate status of the governing authority or provider shall be reported to the director or the director's designee.

B. The governing authority shall appoint a facility administrator to whom it delegates the authority and responsibility for administrative direction of the facility.

C. A written decision-making plan shall be developed and implemented and shall provide for a staff person with the qualifications of a facility administrator to be designated to assume the temporary responsibility for the operation of the facility. Each in the absence of the facility administrator. The plan shall include an organizational chart.

D. The provider shall have a written statement of its (i) purpose, (ii) population served, and (iii) available services for each facility subject to this regulation.

E. Written procedures shall be developed and implemented to monitor and evaluate quality assurance in each facility. Improvements shall be implemented when indicated.

6VAC35-41-140. Participation of residents in human research.

A. The provider shall have procedures, approved by its governing authority, to govern the review, approval, and monitoring of human research. Human research means any systematic investigation, including research development, testing, and evaluating, involving human subjects, including but not limited to a resident or his parents, guardians, or family members, that is designed to develop or contribute to generalized knowledge. Human research does not include statistical analysis of information readily available on the subject that does not contain any identifying information or research exempted by federal research regulations pursuant to 45 CFR 46.101(b). Providers that allow residents to participate in human research shall comply with the provisions of the Regulation Governing Juvenile Data Requests and Research Involving Human Subjects (6VAC35-170) and Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia. The testing of medicines or drugs for implementation or research is prohibited.

B. Information on residents shall be maintained as provided in 6VAC35-41-330 (maintenance of records), and all records and information related to the human research shall be kept confidential in accordance with § 16.1-300 of the Code of Virginia, 6VAC35-170, and other applicable laws and regulations.

C. The provider may require periodic progress reports of any research project and a formal final report of all completed research projects.

6VAC35-41-145. Operational procedures.

Current operational procedures shall be readily accessible to all staff.

6VAC35-41-150. Job descriptions.

A. There shall be a written job description for each position that, at a minimum, includes the:

1. Job title or position;

2. Duties and responsibilities of the incumbent;

3. Job title or identification of the immediate supervisor; and

4. Minimum education, experience, knowledge, skills, and abilities required for entry-level performance of the job.

B. A copy of the job description shall be given to each person assigned to a position prior to assuming that position's duties.

6VAC35-41-160. Qualifications.

A. Facilities subject to (i) the rules and regulations of a governing authority or (ii) the rules and regulations of a local government personnel office shall develop written minimum entry-level qualifications in accord accordance with the rules and regulations of the supervising personnel authority. Facilities not subject to rules and regulations of the governing authority or a local government personnel office shall follow the minimum entry-level qualifications of the Virginia Department of Human Resource Management.

B. When services or consultations are obtained on a contractual basis, they shall be provided by professionally qualified personnel.

C. Each facility shall provide documentation of contractual agreements or staff that verifies every contractor's or employee's expertise to provide educational services, counseling services, psychological services, medical services, or any other the services needed to serve assist the residents in accordance with the facility's program description as defined by the facility's criteria of admission, required by 6VAC35-41-730 B (application for admission).

6VAC35-41-165. Employee tuberculosis screening and follow-up.

A. On or before the an employee's start date at the facility each, the employee shall submit evidence of freedom from have received a tuberculosis in a communicable form that is no older than 30 days risk assessment, as evidenced by completion of an assessment form containing the elements found on the current assessment form published by the Virginia Department of Health. The documentation shall indicate the screening results as to whether there is an absence of tuberculosis in a communicable form risk assessment shall be no older than 30 days and may be administered by health-trained personnel in a juvenile residential facility, provided the results of the assessment are interpreted by a physician, physician assistant, nurse practitioner, or registered nurse.

B. Each In addition to the initial tuberculosis risk assessment required in subsection A of this section, each employee shall submit evidence of an annual evaluation of freedom from risk assessment indicating the individual's risk of being exposed to tuberculosis in a communicable form.

C. Employees shall undergo a subsequent tuberculosis screening or evaluation, as applicable, in the following circumstances: if indicated based on the results of the initial or annual tuberculosis risk assessment.

1. The employee comes into contact with a known case of infectious tuberculosis; or

2. The employee develops chronic respiratory symptoms of three weeks duration.

D. If an employee comes into contact with a known case of infectious tuberculosis or develops chronic respiratory symptoms of three weeks' duration, the employee shall consult the employee's local health department or other medical professional for additional screening.

E. Employees suspected of having tuberculosis in a communicable form shall not be permitted to return to work or have contact with staff or residents until a physician has determined that the individual does not have tuberculosis in a communicable form.

E. F. Any active case of tuberculosis developed contracted by an employee or a resident shall be reported to the local health department in accordance with the requirements of the Commonwealth of Virginia State Board of Health Regulations for Disease Reporting and Control (12VAC5-90).

F. G. Documentation of any the screening results shall be retained in a manner that maintains the confidentiality of information.

G. H. The detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis shall be performed consistent with the current requirements of the Virginia Department of Health's Division of Tuberculosis Prevention and Control and the federal Department of Health and Human Services Centers for Disease Control and Prevention.

6VAC35-41-180. Employee and volunteer background checks.

A. Except as provided in subsection B of this section, all persons who (i) accept a position of employment at, (ii) volunteer on a regular basis and will be alone with a resident in the performance of their duties, or (iii) (ii) provide contractual services directly to a resident on a regular basis and will be alone with a resident in the performance of their duties in a juvenile residential facility shall undergo the following background checks, in accordance with § 63.2-1726 of the Code of Virginia, to ascertain whether there are criminal acts or other circumstances that would be detrimental to the safety of residents in the facility:

1. A reference check;

2. A criminal history check;

3. A fingerprint check with the Virginia State Police and Federal Bureau of Investigation (FBI);

4. A central registry check with Child Protective Services; and

5. A driving record check if applicable to the individual's job duties.

B. To minimize vacancy time when the fingerprint checks required by subdivision A 3 of this section have been requested, employees may be hired, pending the results of the fingerprint checks, provided:

1. All of the other applicable components of subsection A of this section have been completed;

2. The applicant is given written notice that continued employment is contingent on the fingerprint check results as required by subdivision A 3 of this section; and

3. Employees hired under this exception shall not be allowed to be alone work directly with residents and may work with residents only when under the direct supervision of staff whose background checks have been completed, until such time as all background checks are completed.

C. Documentation of compliance with this section shall be retained in the individual's personnel record as provided in 6VAC35-41-310 (personnel records).

D. Written procedures shall provide for the supervision of nonemployee persons, who are not subject to the provisions of subsection A of this section and who have contact with residents.

E. No juvenile residential facility regulated by the department shall hire for employment or contract services or allow a person to volunteer who has been convicted of any barrier crimes listed in § 19.2-392.02 of the Code of Virginia, subject to the exceptions permitted under § 63.2-1726 of the Code of Virginia.

6VAC35-41-190. Required initial orientation.

A. Before the expiration of the employee's seventh work day at the facility, each employee shall be provided with a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the program;

4. The facility's organizational structure;

5. Security, population control, emergency preparedness, and evacuation procedures in accordance with 6VAC35-41-490 (emergency and evacuation procedures);

6. Emergency preparedness and evacuation procedures in accordance with 6VAC35-41-490;

7. The practices of confidentiality;

7. 8. The residents' rights; and

8. 9. The basic requirements of and competencies necessary to perform in the positions.

B. Prior to working with residents while not under the direct supervision of staff who have completed all applicable orientations and training, each direct care staff shall receive a basic orientation on the following:

1. The facility's program philosophy and services;

2. The facility's behavior management program;

3. The facility's behavior intervention procedures and techniques, including the use of least restrictive interventions and physical restraint;

4. The residents' rules of conduct and responsibilities;

5. The residents' disciplinary and grievance procedures;

6. Child abuse and neglect and mandatory reporting;

7. Standard precautions; and

8. Documentation requirements as applicable to the position's duties.

C. Volunteers shall be oriented in accordance with 6VAC35-41-300 (orientation and training for volunteers or interns).

6VAC35-41-200. Required initial training.

A. Each full-time and part-time employee and relief staff shall complete initial, comprehensive training that is specific to the individual's occupational class, is based on the needs of the population served, and ensures that the individual has the competencies to perform in the position.

1. Direct care staff shall receive at least 40 hours of training, inclusive of all training required by this section, in their first year of employment.

2. Contractors shall receive training required to perform their position responsibilities in a juvenile residential facility.

B. Within 30 days following the employee's start date at the facility or before the employee is responsible for the direct supervision of a resident, all direct care staff and staff who provide direct supervision of the residents while delivering services, with the exception of workers employed by contract to provide behavioral health or health care services, shall complete training in the following areas:

1. Emergency preparedness and response;

2. First aid and cardiopulmonary resuscitation, unless the individual is currently certified, with certification required as applicable to their duties;

3. The facility's behavior management program;

4. The residents' rules of conduct and the rationale for the rules;

5. The facility's behavior intervention procedures, with physical and mechanical restraint training required as applicable to their duties;

6. Child abuse and neglect;

7. Mandatory reporting;

8. Maintaining appropriate professional relationships;

9. Interaction among staff and residents;

10. Suicide prevention;

11. Residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-41-560 (prohibited actions);

12. Standard precautions; and

13. Procedures applicable to the employees' position positions and consistent with their work profiles.

C. Employees who administer medication shall have, have completed successfully, prior to such administration, successfully completed a medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medication.

D. Training shall be required by and provided as appropriate to the individual's job duties and in accordance with the provider's training plan.

E. D. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

F. E. Volunteers and interns shall be trained in accordance with 6VAC35-41-300 (orientation and training for volunteers or interns).

6VAC35-41-210. Required retraining.

A. Each employee, relief staff, and contractor shall complete retraining that is specific to the individual's occupational class and the position's job description and addresses any professional development needs.

B. All staff shall complete an annual training refresher on the facility's emergency preparedness and response plan and procedures.

C. All direct care staff and staff who provide direct supervision of the residents while delivering services, with the exception of workers who are employed by contract to provide behavioral health or health care services, shall complete at least 40 hours of training annually that shall include training annual refresher training in the following areas:

1. Suicide prevention;

2. Child abuse and neglect;

3. Mandatory reporting;

4. Residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-41-560 (prohibited actions);

5. Standard precautions; and

6. Behavior intervention procedures.

D. Staff required by their position to have whose positions require certification in cardiopulmonary resuscitation and first aid shall receive training sufficient to maintain current certifications.

E. Employees who administer medication shall complete an annual refresher training on the administration of medication. The refresher training shall include a review of the components required in 6VAC35-41-1280.

F. Retraining shall (i) be required by and provided as appropriate to the individual's job duties, and (ii) address any needs identified by the individual and the supervisor, if applicable, and (iii) be in accordance with the provider's training plan. In addition to the training hours required in subsection C of this section, facilities shall ensure that staff receive at least 15 hours of additional training.

G. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

H. Staff who have not timely completed required retraining shall not be allowed to have direct care responsibilities pending completion of the retraining requirements.

6VAC35-41-220. Written personnel procedures.

The provider shall have and implement provider approved provider-approved written personnel procedures and make these readily accessible to each staff member.

6VAC35-41-250. Notification of change in driver's license status.

Staff whose job responsibilities may involve transporting residents shall (i) maintain a valid driver's license and (ii) report to the facility administrator or designee any change in their driver's license status, including but not limited to suspensions, restrictions, and revocations.

6VAC35-41-260. Physical or mental health of personnel.

When an individual poses a direct threat significant risk of substantial harm to the health and safety of a resident, others at the facility, or the public or is unable to perform essential job-related functions, that individual shall be removed immediately from all duties involved in the direct care or direct supervision of residents. The facility may require a medical or mental health evaluation to determine the individual's fitness for duty prior to returning to duties involving the direct care or direct supervision of residents. The results of any medical information or documentation of any disability related disability-related inquiries shall be maintained separately from the employee's personnel records maintained in accordance with 6VAC35-41-310 (personnel records). For the purpose of this section a direct threat means a significant risk of substantial harm.

6VAC35-41-270. Definition of volunteers or interns. (Repealed.)

For the purpose of this chapter, volunteer or intern means any individual or group who of their own free will provides goods and services without competitive compensation.

6VAC35-41-280. Selection and duties of volunteers or interns.

A. Any A facility that uses volunteers or interns shall develop and implement written procedures governing their selection and use. Such The procedures shall provide for the objective evaluation of persons and organizations in the community who wish to associate with the residents.

B. Volunteers and interns shall have qualifications appropriate for the services provided.

C. The responsibilities of interns and individuals who volunteer on a regular basis shall be clearly defined in writing.

D. Volunteers and interns shall neither be responsible neither for the duties of direct care staff nor for the direct supervision of the residents.

6VAC35-41-290. Background checks for volunteers or interns.

A. Any individual who (i) volunteers on a regular basis or is an intern and (ii) will be alone with a resident in the performance of that position's duties shall be subject to the background check requirements provided for applicable to employees in 6VAC35-41-180 A (employee and volunteer background checks).

B. Documentation of compliance with the background check requirements shall be maintained for each intern and each volunteer for whom a background check is required. Such records shall be kept in accordance with 6VAC35-41-310 (personnel records).

C. A facility that uses volunteers or interns shall have procedures for supervising volunteers or interns, on whom background checks are not required or whose background checks have not been completed, and who have contact with residents.

D. No juvenile residential facility regulated by the department shall allow a person to volunteer on a regular basis and be alone with a resident in the performance of that position's duties if the person has been convicted of a barrier crime listed in § 19.2-392.02 of the Code of Virginia, subject to the exceptions permitted under § 63.2-1726 of the Code of Virginia.

6VAC35-41-300. Orientation and training for volunteers or interns.

A. Volunteers and interns shall be provided with a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the facility;

4. The facility's organizational structure;

5. Security, population control, emergency, emergency preparedness, and evacuation procedures;

6. Emergency, emergency preparedness, and evacuation procedures;

7. The practices of confidentiality;

7. 8. The residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-41-560 (prohibited actions); and

8. 9. The basic requirements of and competencies necessary to perform their duties and responsibilities.

B. Volunteers and interns shall be trained within 30 days from their start date at the facility in the following:

1. Any procedures that are applicable to their duties and responsibilities; and

2. 1. Their duties and responsibilities in the event of a facility evacuation; and

2. Procedures applicable to their duties and responsibilities.

6VAC35-41-310. Personnel records.

A. Separate up-to-date written or automated personnel records shall be maintained on each (i) employee and, (ii) volunteer or intern, and (iii) contractor on whom a background check is required.

B. The records of each employee shall include:

1. A completed employment application form or other written material providing the individual's name, address, phone number, and social security number or other unique identifier;

2. Educational background and employment history;

3. Documentation of required reference check;

4. Annual performance evaluations;

5. 4. Date of employment for each position held and date of separation;

6. 5. Documentation of compliance with requirements of Virginia law regarding child protective services and criminal history background investigations;

7. 6. Documentation of the verification of any educational requirements and of professional certification or licensure if required by the position;

8. 7. Documentation of all training required by this chapter and any other training received by individual staff; and

9. 8. A current job description.

C. If applicable, health care records, including reports of any required health examinations, shall be maintained separately from the other records required by this section.

D. The personnel records of volunteers or interns and contractual service providers contractors may be limited to documentation of compliance with the background checks as required by 6VAC35-41-180 (employee and volunteer background checks).

E. The personnel records required in subsection A of this section shall be maintained in a secure location and shall remain confidential from unauthorized access.

6VAC35-41-330. Maintenance of resident's records.

A. A separate written or automated case record shall be maintained for each resident that shall include all correspondence and documents received by the facility relating to the care of that resident and documentation of all case management services provided.

B. A separate health care record may shall be kept maintained on each resident. The resident's active health care records shall be readily accessible in case of emergency and shall be made available to authorized staff consistent with applicable state and federal statutes and regulations.

C. Each case record and health care record shall be kept (i) up to date, (ii) in a uniform manner, and (ii) (iii) confidential from unauthorized access.

D. Written procedures shall provide for the management of all records, written and automated, written records and shall describe confidentiality, accessibility, security, and retention of records pertaining to residents, including:

1. Access, duplication, dissemination, and acquisition of information only to persons legally authorized according to federal and state laws;

2. Facilities For facilities using automated records shall address procedures that include, the manner in which such records will be: (i) protected from unauthorized access, including unauthorized Internet access; (ii) protected from loss; (iii) protected from unauthorized alteration; and (iv) backed up.

a. How records are protected from unauthorized access;

b. How records are protected from unauthorized Internet access;

c. How records are protected from loss;

d. How records are protected from unauthorized alteration; and

e. How records are backed up;

3. Security measures to protect records (i) from loss, unauthorized alteration, inadvertent or unauthorized access, or disclosure of information; and (ii) during transportation of records between service sites;

4. Designation of the person responsible for records management; and

5. Disposition of records in the event if the facility ceases to operate operations.

E. Written procedure shall specify what information is available to the resident.

F. Active and closed written records shall be kept in secure locations or compartments that are accessible to authorized staff and shall be protected from unauthorized access, fire, and flood.

G. All case records shall be retained as governed by The Library of Virginia.

6VAC35-41-360. Equipment and systems inspections and maintenance.

A. All safety Safety, emergency, and communications equipment and systems, as identified by the facility administrator, shall be inspected, tested, and maintained by designated staff in accordance with the manufacturer's recommendations or instruction manuals or, absent such requirements, in accordance with a schedule that is approved by the facility administrator. Testing of such equipment and systems shall, at a minimum, be conducted at least quarterly. The facility administrator shall develop written procedures for the development, maintenance, and review of safety, emergency, and communications equipment and systems that the facility administrator identifies as critical, as well as the testing intervals for such equipment and systems.

B. Whenever safety, emergency, and communications equipment or a system is found to be systems are determined defective, corrective action shall be taken to rectify the situation and to repair, remove, or replace the defective equipment or systems.

6VAC35-41-370. Heating and cooling systems and ventilation.

A. Heat shall be distributed in all rooms occupied by the residents such that a temperature no less than 68°F is maintained, unless otherwise mandated by state or federal authorities.

B. Air conditioning or mechanical ventilating systems, such as electric fans, shall be provided in all rooms occupied by residents when the temperature in those rooms exceeds 80°F unless otherwise mandated by state or federal authorities.

6VAC35-41-380. Lighting.

A. Sleeping rooms and activity areas in the facility shall provide natural lighting.

B. All areas within buildings shall be lighted for safety, and the lighting shall be sufficient for the activities being performed.

C. There shall be night lighting sufficient to observe residents.

D. Each facility shall have a plan for providing alternative lighting in case of emergencies.

E. Outside entrances and parking areas shall be lighted.

6VAC35-41-390. Plumbing and water supply; temperature.

A. Plumbing shall be maintained in operational condition, as designed.

B. An adequate supply of hot and cold running water shall be available at all times.

C. Precautions shall be taken to prevent scalding from running water. Water Hot water temperatures should shall be maintained at 100°F to 120°F.

6VAC35-41-400. Toilet facilities.

A. There shall be at least one bathtub or bathtub alternative in each facility.

B. There shall be at least one toilet, one hand basin, and one shower or tub for every eight residents for facilities certified before July 1, 1981.

C. There shall be one toilet, one hand basin, and one shower or tub for every four residents in any building constructed or structurally modified after July 1, 1981. Facilities certified after December 28, 2007, shall comply with the one-to-four ratio.

D. The maximum number of staff members on duty in the living unit shall be counted in determining the required number of toilets and hand basins when if a separate bathroom is not provided for staff.

E. There shall be at least one mirror securely fastened to the wall at a height appropriate for use in each room where hand basins are located.

F. When bathrooms are not If a facility has a bathroom that is not designated for individual use:

1. Each toilet Toilets shall be enclosed for privacy, and

2. Bathtubs and showers shall provide visual privacy for bathing by through the use of enclosures, curtains, or other appropriate means.

G. Windows in bathrooms and dressing areas shall provide allow for privacy.

6VAC35-41-410. Sleeping areas rooms.

A. Males and females shall have separate sleeping areas rooms.

B. No more than four residents shall share a bedroom or sleeping area room.

C. Beds shall be at least three feet apart at the head, foot, and sides; and double-decker bunk beds shall be at least five feet apart at the head, foot, and sides.

D. Sleeping quarters rooms in facilities established, constructed, or structurally modified after July 1, 1981, shall have:

1. At least 80 square feet of floor area in a bedroom accommodating one person;

2. At least 60 square feet of floor area per person in rooms accommodating two or more persons; and

3. Ceilings with a primary height at least 7-1/2 feet in height exclusive of protrusions, duct work, or dormers.

E. Mattresses shall be fire retardant as evidenced by documentation from the manufacturer except in buildings equipped with an automated sprinkler system as required by the Virginia Uniform Statewide Building Code (13VAC5-63).

F. Each resident shall be assigned drawer space and closet space, or their equivalent, that is storage space for storage of clothing and personal belongings. The storage space shall be accessible to from the sleeping area for storage of clothing and personal belongings room.

G. Windows in sleeping areas rooms and dressing areas shall provide allow for privacy.

H. Every sleeping area Sleeping rooms shall have a door that may be closed for privacy or quiet and this door shall that may be opened readily opened in case of a fire or other emergency.

6VAC35-41-440. Smoking prohibitions.

Smoking shall be prohibited in living areas and in areas where residents participate in programs. Residents shall be prohibited from possessing, purchasing, using, or distributing tobacco products or nicotine vapor products. Tobacco products, including cigarettes, cigars, smokeless tobacco, pipe tobacco, bidis, and wrappings and vapor products, such as electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, or similar products or devices shall not be used by staff, contractors, volunteers, interns, or visitors in any areas of the facility or its premises.

6VAC35-41-450. Space utilization.

A. Each facility shall provide for the following:

1. A living room;

2. An indoor recreation area with appropriate recreation materials;

3. An outdoor recreation area;

4. A dining area, where meals are served, that is equipped with tables and benches or chairs;

5. A visitation area that permits informal communication between residents and visitors, including the opportunity for physical contact, in accordance with written procedures;

6. Kitchen facilities and equipment for the preparation and service of meals with any walk-in refrigerators or freezers equipped to permit emergency exits;

7. Space and equipment for laundry, if laundry is done at the facility;

8. Space for the storage of items such as first aid equipment, household supplies, recreational equipment, luggage, out-of-season clothing, and other materials; and

9. Space for administrative activities including, as appropriate to the program, confidential conversations and the storage of records and materials.

B. Spaces or areas may be interchangeably utilized for multiple purposes but shall be in functional condition for the designated purposes.

6VAC35-41-460. Maintenance of the buildings and grounds.

A. The interior and exterior of all buildings and grounds shall be safe, maintained, and reasonably free of clutter and rubbish. This includes, but is not limited to, requirement applies to all areas of the facility and to items within the facility, including (i) required locks, mechanical devices, indoor and outdoor equipment, and furnishings; and (ii) all areas where residents, staff, and visitors may reasonably may be expected to have access.

B. All buildings shall be reasonably free of stale, musty, or foul odors.

C. Buildings shall be kept reasonably free of flies, roaches, rats, and other vermin.

6VAC35-41-470. Animals on the premises.

A. Animals maintained on the premises shall be housed at a reasonable distance from sleeping, living, eating, and food preparation areas, as well as a safe distance from water supplies. be:

1. Housed a reasonable distance from eating and food preparation areas, as well as a safe distance from water supplies;

2. Tested, inoculated, and licensed as required by law; and

3. Provided with clean sleeping areas and adequate food and water.

B. Animals maintained on the premises shall be tested, inoculated, and licensed as required by law.

C. The premises shall be kept reasonably free of stray domestic animals.

D. Pets shall be provided with clean sleeping areas and adequate food and water.

6VAC35-41-490. Emergency and evacuation procedures.

A. The provider shall develop a written emergency preparedness and response plan for each facility. The plan shall address:

1. Documentation of contact with the local emergency coordinator to determine (i) local disaster risks, (ii) communitywide plans to address different disasters and emergency situations, and (iii) assistance, if any, that the local emergency management office will provide to the facility in an emergency;

2. Analysis of the provider's capabilities and potential hazards, including natural disasters, severe weather, fire, flooding, work place violence or terrorism, missing persons, severe injuries, or other emergencies that would disrupt the normal course of service delivery;

3. Written emergency management procedures outlining specific responsibilities for provision of administrative direction and management of response activities; coordination of logistics during the emergency; communications; life safety of employees, contractors, interns, volunteers, visitors and residents; property protection; community outreach; and recovery and restoration;

4. Written emergency response procedures for assessing the situation; protecting residents, employees, contractors, interns, volunteers, visitors, equipment and vital records; and restoring services. Emergency procedures shall address:

a. Communicating with employees, contractors, and community responders;

b. Warning and notification of notifying residents;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations to emergency shelters or alternative sites and accounting for all residents;

e. Relocating residents, if necessary;

f. Notifying parents and legal guardians, as applicable and appropriate;

g. Alerting emergency personnel and sounding alarms;

h. Locating and shutting off utilities when necessary; and

i. Providing for a planned, personalized means of effective egress evacuation for residents who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking individuals with disabilities or who require special accommodations, such as vision-impaired, hearing-impaired, or nonambulatory individuals.

5. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape routes, and list lists of major resources such as local emergency shelters; and

6. Schedule for testing the implementation of the plan and conducting emergency preparedness drills.

B. The provider shall develop emergency preparedness and response training for all employees to ensure they are prepared to implement the emergency preparedness plan in the event of an emergency. Such The training shall include the employees' responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures, including evacuation of residents with special needs (i.e., deaf, blind, nonambulatory); or who require special accommodations;

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency information for residents including medical information; and

5. Utilizing community support services.

C. Contractors and, volunteers, and interns shall be oriented in their responsibilities in implementing the emergency preparedness plan in the event of an emergency.

D. The provider shall review and document the review of the emergency preparedness plan annually and make necessary revisions. Such The revisions shall be communicated to employees, contractors, interns, and volunteers and incorporated into training for employees, contractors, interns, and volunteers and orientation of residents to services.

E. In the event of If a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, occurs, the provider shall take appropriate action to protect the health, safety, and welfare of the residents and to remedy the conditions condition as soon as possible. The provider first shall respond and stabilize the disaster or emergency. After the disaster or emergency is stabilized, the provider shall report the disaster or emergency in accordance with 6VAC35-41-90.

F. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, the provider should first respond and stabilize the disaster or emergency. After the disaster or emergency is stabilized, the provider shall report the disaster or emergency in accordance with 6VAC35-41-90 (serious incident reports).

G. F. Floor plans showing primary and secondary means of emergency exiting exits shall be posted on each floor in locations where they can be seen are easily by visible to staff and residents.

H. G. The responsibilities of the residents in implementing the emergency procedures shall be communicated to all residents within seven days following admission or a substantive change in the procedures.

I. At H. The facility shall conduct at least one evacuation drill (the simulation of the facility's emergency procedures) shall be conducted in which its emergency and evacuation procedures are simulated each month in each building occupied by residents. During any three consecutive calendar months, at least one evacuation drill shall be conducted during each shift.

J. I. Evacuation drills shall include, at a minimum:

1. Sounding of emergency alarms;

2. Practice in evacuating buildings;

3. Practice in alerting emergency authorities;

4. Simulated use of emergency equipment; and

5. Practice in accessing resident emergency information.

K. J. A record shall be maintained for each evacuation drill and shall include the following:

1. Buildings in which the drill was conducted;

2. Date and time of the drill;

3. Amount of time taken to evacuate the buildings;

4. Specific problems encountered;

5. Staff tasks completed including:

a. Head count, and

b. Practice in notifying emergency authorities; and

6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.

L. K. The facility shall assign one staff member who shall ensure that all requirements regarding the emergency preparedness and response plan and the evacuation drill program are met.

6VAC35-41-510. Searches of residents.

A. Each facility that conducts searches shall have procedures that provide that all searches shall be subject to the following:

1. Searches of residents' persons shall be conducted only for the purposes of maintaining facility security and controlling contraband while protecting, and only in a manner that protects the dignity of the resident.

2. Searches are shall be conducted only by personnel who are trained and authorized to conduct such searches.; and

3. The resident shall not be touched any more than is necessary to conduct the search.

B. Facilities that do not conduct searches of residents shall have a procedure prohibiting them.

C. Patdown Pat-down and frisk searches shall be conducted by trained personnel of the same sex as the resident being searched, except in emergencies.

D. Strip searches and visual inspections of the vagina and anal cavity areas shall only be permitted (i) if ordered by a court; (ii) if conducted by law-enforcement personnel acting in his official capacity; or (iii) if the facility obtains the approval of the regulatory authority to conduct such searches. A facility that conducts such searches shall have a procedure that provides that the searches shall be subject to the following:

1. The search shall be performed by personnel of the same sex as the resident being searched;

2. The search shall be conducted in an area that ensures privacy; and

3. Any witness to the search shall be of the same sex as the resident.

E. Manual and D. Strip searches and visual, manual, or instrumental searches of the anal cavity or vagina shall be prohibited unless court ordered prohibited.

6VAC35-41-520. Telephone access and emergency numbers.

A. There shall be at least one continuously operable, nonpay telephone accessible to staff in each building in which residents sleep or participate in programs.

B. There shall be an emergency telephone number where a staff person may be immediately contacted immediately, 24 hours a day and seven days per week.

C. An emergency telephone number shall be provided to residents and the adults responsible for their care when a resident is away from the facility and not under the supervision of direct care staff or law-enforcement officials.

6VAC35-41-540. Weapons.

A. The possession, use, and storage of weapons in facilities or on the premises where residents are reasonably expected to have access are prohibited except when specifically authorized by statutes or regulations or provided in subsection B of this section. For the purpose of this section, weapons shall include but will not be limited to (i) any pistol, revolver, or other weapon intended to propel a missile of any kind by action of an explosion; (ii) any dirk, bowie knife, except a pocket knife having a folding metal blade of less than three inches, switchblade knife, ballistic knife, machete, straight razor, slingshot, spring stick, metal knucks, or blackjack; (iii) nunchucks or other flailing instrument with two or more rigid parts that swing freely; and (iv) throwing star or oriental dart.

B. Weapons shall be permitted if they are in the possession of a licensed security personnel or law-enforcement officer while in the course of his duties.

6VAC35-41-550. Transportation.

A. It The facility shall be the responsibility of the facility to have responsible for having transportation available or to make making the necessary arrangements for routine and emergency transportation.

B. There shall be The facility shall have written safety rules for transportation of residents and, if applicable, for the use and maintenance of vehicles.

C. If a person or entity other than the juvenile residential facility assumes custody of the resident for purposes of transportation, and the facility has flagged the resident for additional monitoring due to (i) a recent suicide attempt, (ii) recent suicidal ideations, or (iii) special medical needs, the facility shall:

1. Provide the person or entity responsible for transporting the resident, except the resident's parent or guardian, with a department-approved form that identifies pertinent information known to the juvenile residential facility concerning the need for additional monitoring, provided the information reasonably could be considered necessary for the resident's safe transportation and supervision, and

2. Notify the transporting party that such information must remain confidential in accordance with applicable laws, rules, and regulations regarding confidentiality of juvenile records.

D. The facility shall be excused from meeting the requirements of subsection C of this section if an emergency renders completion of the form impracticable or infeasible.

C. E. The facility shall have a procedure for the verification of appropriate licensure for staff whose duties involve transporting residents.

6VAC35-41-560. Prohibited actions.

The following actions are prohibited:

1. Discrimination in violation of the Constitution of the United States, the Constitution of the Commonwealth of Virginia, and state and federal statutes and regulations;

2. Deprivation of drinking water or food necessary to meet a resident's daily nutritional needs, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

3. Denial of contacts and visits with the resident's attorney, a probation officer, the department, the regulatory authority, a supervising agency representative, or representatives of other agencies or groups as required by applicable statutes or regulations;

4. Bans on contacts and visits with family or legal guardians, except as permitted by other applicable state regulations or by order of a court of competent jurisdiction;

5. Any action that is Actions that are humiliating, degrading, or abusive, including but not limited to physical abuse, sexual abuse, and sexual harassment;

6. Corporal punishment, which is administered through the intentional inflicting infliction of pain or discomfort to the body through actions, such as, but not limited to (i) striking or hitting with any part of the body or with an implement; (ii) pinching, pulling, or shaking; or (iii) any similar action actions that normally inflicts inflict pain or discomfort;

7. Subjection to unsanitary living conditions;

8. Denial of opportunities for bathing or access to toilet facilities, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

9. Denial of health care;

10. Deprivation of appropriate services and treatment;

11. Application of aversive stimuli, except as permitted pursuant to other applicable state regulations Aversive stimuli means any physical forces (e.g., sound, electricity, heat, cold, light, water, or noise) or substances (e.g., hot pepper, pepper sauce, or pepper spray) measurable in duration and intensity that when applied to a resident are noxious or painful to the individual;

12. Administration of laxatives, enemas, or emetics, except as ordered by a licensed physician or poison control center for a legitimate medical purpose and documented in the resident's record;

13. Deprivation of opportunities for sleep or rest, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

14. Placement of a resident alone in a locked room or a secured area where the resident is prevented from leaving;

15. Use of mechanical restraints (e.g., handcuffs, waist chains, leg irons, disposable plastic cuffs, leather restraints, or a restraint chair) chairs;

16. Use of pharmacological restraints; and

17. Other constitutionally prohibited actions.

6VAC35-41-565. Vulnerable population.

A. The Immediately upon a resident's admission, the facility shall implement a procedure for assessing determining whether a resident is a member of a vulnerable population. Factors including the resident's height and size, English proficiency, sexual orientation, history of being bullied, or history of self-injurious behavior may be considered in determining whether a resident is a member of a vulnerable population. The resident's own views with respect to the resident's safety shall be considered.

B. If the assessment facility determines a resident is a member of a vulnerable population, the facility shall implement any identified additional precautions such as heightened need for supervision, additional safety precautions, or separation from certain other residents. The facility shall consider on a case-by-case basis whether a placement would ensure the resident's health and safety and whether the placement would present management or security problems.

C. For the purposes of this section, vulnerable population means a resident or group of residents who have been assessed to be reasonably likely to be exposed to the possibility of being attacked or harmed, either physically or emotionally (e.g., very young residents; residents who are small in stature; residents who have limited English proficiency; residents who are gay, lesbian, bi-sexual, transgender, or intersex; residents with a history of being bullied or of self-injurious behavior).

6VAC35-41-570. Residents' mail.

A. A resident's incoming or outgoing mail may be delayed or withheld only in accordance with this section or as permitted by other applicable regulations or by order of a court.

B. In accordance with written procedures, staff may open and inspect residents' incoming and outgoing nonlegal mail, including electronic nonlegal mail, for contraband. When based on legitimate facility interests of order and security, nonlegal mail, including electronic nonlegal mail, may be read, censored, or rejected. In accordance with written procedures, the resident shall be notified, as appropriate, when incoming or outgoing letters, including electronic letters, are withheld in part or in full redacted.

C. In the presence of the resident recipient and in accordance with written procedures, staff may open to inspect for contraband, but shall not read, legal mail. Legal mail shall mean any written material that is sent to or received from a designated class of correspondents, as defined in procedures, which shall include any court, legal counsel, administrators of the grievance system, or administrators of the department, facility, provider, or governing authority.

D. Staff shall not read mail, including electronic mail, addressed to parents, immediate family members, legal guardian, guardian guardians, guardians ad litem, counsel, courts, officials of the committing authority, public official officials, or grievance administrators unless permission has been obtained from a court or the facility administrator has determined that there is a reasonable belief that the security of a facility is threatened. When so authorized, staff may read such mail only in the presence of a witness and in accordance with written procedures.

E. Except as otherwise provided, incoming and outgoing letters shall be held for no more than 24 hours and packages for no more than 48 hours, excluding weekends and holidays.

F. Cash, stamps, and other specified items specified in written procedures may be held for the resident.

G. Upon request, each resident shall be given postage and writing materials for all legal correspondence mail and at least two other letters per week.

H. Residents shall be permitted to correspond at their own expense with any person or organization, provided such the correspondence does not pose a threat to facility order and security and is not being used to violate or to conspire to violate the law.

I. First class letters and packages received for residents who have been transferred or released shall be forwarded. to the resident's last known address or forwarding address or returned to sender.

J. Written procedure governing correspondence of residents shall be made available to all staff and residents and shall be, reviewed annually, and updated as needed.

6VAC35-41-590. Visitation.

A. Residents shall be permitted to given reasonable visiting privileges, consistent with written procedures, that take into account (i) the need for security and order, (ii) the behavior of individual residents and visitors, (iii) the importance of helping the resident maintain strong family and community ties, and (iv) the welfare of the resident, and (v) whenever. Whenever possible, the facility shall provide flexible visiting hours.

B. Copies of the written visitation procedures shall be made available to the parents, or legal guardians, when appropriate, legal guardians, appropriate, and the resident, and other interested persons important to the resident no later than the time of admission except that when. When parents or legal guardians do not participate in the admission process, however, visitation procedures shall be mailed, to them, either electronically or via first class mail, to them by the close of the next business day after admission, unless a copy has already been provided to the individual.

6VAC35-41-600. Contact with attorneys, courts, and law enforcement.

A. Residents shall have uncensored, confidential contact with their legal representative in writing, as provided for writing subject to the exceptions provided in 6VAC35-41-570 (residents' mail), by telephone, or in person.

B. Residents shall not be denied access to the courts.

C. Residents shall not be required to submit to questioning by law enforcement, law-enforcement, though they may do so voluntarily.

1. Residents' consent shall be obtained prior to any contact with law enforcement.

2. No employee may coerce a resident's decision to consent to have contact with law enforcement.

3. Each facility shall have procedures for establishing a resident's consent to any such contact questioning by law-enforcement and for documenting the resident's decision. The procedures may provide for require (i) notification of the parent or legal guardian, as appropriate and applicable, prior to the commencement of questioning; and (ii) opportunity, at the resident's request, to confer with an attorney, parent or guardian, or other person in making the decision deciding whether to consent to questioning.

6VAC35-41-610. Personal necessities and hygiene.

A. At admission, each resident shall be provided the following:

1. An adequate supply of personal necessities for hygiene and grooming;

2. A separate bed equipped with a mattress, a pillow, blankets, bed linens, and, if needed, a waterproof mattress cover; and

3. Individual washcloths and towels.

B. At the time of issuance, all items shall be clean and in good repair.

C. Personal necessities shall be replenished as needed.

D. The washcloths, towels, and bed linens shall be cleaned or changed, at a minimum, once every seven days and more often, often if needed. Bleach or another sanitizing agent approved by the federal Environmental Protection Agency to destroy bacteria shall be used in the laundering of such linens and table bed linens.

E. Staff shall promote good personal hygiene of residents by monitoring and supervising hygiene practices each day and by providing instruction when needed.

6VAC35-41-620. Showers.

Residents shall have the opportunity to shower daily, except when a declaration of a state of emergency due to drought conditions has been issued by the Governor or water restrictions have been issued by the locality. Under these exceptional circumstances showers shall be restricted as determined by the facility administrator after consultation with local health officials. The alternate schedule implemented under these exceptional circumstances shall account for cases of medical necessity related to health concerns and shall be in effect only until such time as the water restrictions are lifted there is a documented emergency.

6VAC35-41-630. Clothing.

A. Provision shall be made for each resident to have an adequate supply of clean and size-appropriate clothing and shoes for indoor and outdoor wear.

B. Clothes and shoes shall be similar in style to those generally worn by individuals of the same age in the community who are engaged in similar activities.

C. Residents shall have the opportunity to participate in the selection of their clothing.

D. Residents shall be allowed to take personal clothing when leaving the facility.

6VAC35-41-650. Nutrition.

A. Each resident, except as provided in subsection B of this section, shall be provided a daily diet that (i) consists of at least three nutritionally balanced meals and an evening snack, (ii) includes an adequate variety and quantity of food for the age of the resident, and (iii) meets any applicable federal nutritional requirements.

B. Special diets or alternative dietary schedules, as applicable, shall be provided in the following circumstances: (i) when prescribed by a physician or (ii) when necessary to observe the established religious dietary practices of the resident. In such circumstances, the meals shall meet t any applicable federal nutritional requirements.

C. Menus of actual meals served shall be kept on file for at least six months. in accordance with applicable federal requirements.

D. Staff who eat in the presence of the residents shall be served the same meals as the residents unless a special diet has been prescribed by a physician for the staff or residents or the staff or residents are observing established religious dietary practices.

E. There shall not be more than 15 hours between the evening meal and breakfast the following day, except when the facility administrator approves an extension of time between meals on weekends and holidays. When an extension is granted on a weekend or holiday, there shall never be more than 17 hours between the evening meal and breakfast.

F. Providers shall assure ensure that food is available to residents who for documented medical or religious reasons need to eat breakfast before the 15 or 17 hours have expired.

G. The provisions of this section shall not apply to independent living programs, which shall be subject to the provisions applicable to nutrition in 6VAC35-41-1000.

6VAC35-41-660. School enrollment and study time.

A. The facility shall make all reasonable efforts to enroll each resident of compulsory school attendance age in an appropriate educational program within five school business days after admission and in accordance with § 22.1-254 of the Code of Virginia and Regulations Governing the Reenrollment of Students Committed to the Department of Juvenile Justice (8VAC20-660), if applicable. Documentation of the enrollment and any attempt to enroll the resident shall be maintained in the resident's record.

B. Each provider Providers shall develop and implement written procedures to ensure that each resident has adequate study time.

6VAC35-41-680. Recreation.

A. The provider shall have a written description of its recreation program that describes activities that are consistent with the facility's total program and with the ages, developmental levels, interests, and needs of the residents that includes. The recreation program shall include:

1. Opportunities for individual and group activities, both structured and unstructured;

2. Use of available community recreational resources and facilities;

3. Scheduling of activities so that they do not conflict with meals, religious services, educational programs, or other regular events; and

4. Regularly scheduled indoor and outdoor recreational activities that are structured to develop skills and attitudes. pro-social attitudes; and

5. Appropriate recreational materials for indoor and outdoor use.

B. The provider shall develop and implement written procedures to ensure protect the safety of residents participating in recreational activities that include by ensuring that:

1. How activities will be Activities are directed and supervised by individuals knowledgeable in the safeguards required for the activities;

2. How residents Residents are assessed for suitability for an activity and the supervision provided; and appropriately supervised;

3. How safeguards Safeguards for water related water-related activities will be are provided, including ensuring that a certified life guard lifeguard supervises all swimming activities and that the provider attempts to determine the resident's swimming ability by consulting the swimmer's parent or legal guardian; and

4. All participants are equipped and clothed appropriately and wearing safety gear appropriate for the activity in which the resident is engaging.

C. For all overnight recreational trips away from the facility, the provider shall document trip planning to include:

1. A supervision plan for the entire duration of the activity including awake and sleeping hours that meets the specific staffing ratio requirements set out in 6VAC35-41-930;

2. A plan for safekeeping and distribution of medication;

3. An overall emergency, safety, and communication plan for the activity, including resident accountability, prompt evacuation, and identification of emergency numbers of for facility administration administrators and outside emergency services;

4. Staff training and experience requirements for each activity;

5. Resident preparation for each activity;

6. A plan to ensure that all the necessary equipment for the and gear that will be used in connection with the specified activity is certified, if required; in good repair; in operable condition; and age, body-size, and otherwise appropriate for the activity;

7. A trip schedule giving addresses and phone numbers of locations to be visited and how the location was chosen and evaluated;

8. A plan to evaluate residents' physical health throughout the activity and to ensure that the activity is conducted within the boundaries of the resident's capabilities, dignity, and respect for self-determination;

9. A plan to ensure that a certified life guard lifeguard supervises all swimming activities in which residents participate; and

10. Documentation of any variations from trip plans and reason for the variation.

D. All For overnight recreational trips away from the facility, the facility administrator shall ensure that:

1. A telephone is located in each area where residents sleep or participate in programs;

2. First-aid kits are accessible at all times and contain supplies that are appropriate for the activity;

3. A separate bed, bunk, cot, or sleeping bag is available for each resident and staff member attending the overnight trip; and

4. Bedding is clean, dry, sanitary, and in good repair.

E. The facility shall obtain written permission from each resident's parent or legal guardian for all overnight out-of-state or out-of-country recreational trips require written permission from each resident's legal guardian. trips. Documentation of the written permission shall be kept maintained in the resident's case record.

F. The provisions of this section shall not apply to wilderness programs, which shall be subject to the provisions of 6VAC35-41-1010 through 6VAC35-41-1070.

6VAC35-41-690. Residents' funds.

A. The provider shall implement written procedures for safekeeping and for recordkeeping of any money that belongs or is provided to residents, including allowances, if applicable.

B. A resident's personal funds, including any allowance or earnings, shall be used for the resident's benefit, for payments ordered by a court, or to pay restitution for damaged property or personal injury as determined by disciplinary procedures.

6VAC35-41-700. Fundraising.

The provider shall not use residents in its fundraising activities without the written permission of both the parent or legal guardian, as appropriate and applicable, and the consent of residents.

6VAC35-41-710. Placement pursuant to a court order.

A. When a resident is placed in a facility pursuant to a court order, the requirements of the following requirements shall be met by maintaining a copy of a court order in the resident's case record provisions of this chapter do not apply:

1. 6VAC35-41-730 (application for admission).

2. 6VAC35-41-740 (admission procedures).

3. 6VAC35-41-750 (written placement agreement).

4. 6VAC35-41-780 (emergency admissions).

5. 6VAC35-41-810 (discharge procedures).

B. The facility shall maintain a copy of the court order in the resident's case records instead of the documentation required by the regulatory sections enumerated in subsection A of this section.

6VAC35-41-720. Readmission to a shelter care program.

A. When a resident is readmitted to a shelter care facility within 30 days from discharge, the requirements of the following requirements shall provisions of this chapter do not apply:

1. 6VAC35-41-730 (application for admission).

2. 6VAC35-41-740 (admission procedures).

B. When a resident is readmitted to a shelter care facility within 30 days from discharge, the facility shall:

1. Review and update all information on the face sheet as provided in 6VAC35-41-340 (face sheet);

2. Complete a health screening in accordance with 6VAC35-41-1200 (health screening at admission);

3. Complete the required admission and orientation process as provided in 6VAC35-41-760 (admission); and

4. Update in the case record any other information regarding the resident that has changed since discharge.

6VAC35-41-730. Application for admission.

A. Except for placements pursuant to a court order or resulting from a transfer between residential facilities located in Virginia and operated by the same governing authority, all admissions shall be based on evaluation of an application for admission.

B. Providers shall develop and fully complete, an application for admission and ensure that the referral source has fully completed the application prior to a resident's acceptance for care, an application for admission that is designed to compile information necessary to determine:. The provider shall ensure that the completed application for each admitted resident is placed in the resident's case record.

C. The application for admission shall consist of information necessary to determine:

1. The suitability of the prospective resident's admission;

2. The educational needs of the prospective resident;

2. 3. The mental health, emotional, and psychological needs of the prospective resident;

3. 4. The physical health needs, including the immunization needs, of the prospective resident;

4. 5. The protection needs of the prospective resident;

5. The suitability of the prospective resident's admission;

6. The behavior support needs of the prospective resident; and

7. Information necessary to develop a service plan and a behavior support plan.

C. Each facility D. Providers shall develop and implement written procedures to assess each prospective resident as part of the application process to ensure that:

1. The needs of the prospective resident can be addressed by the facility's services;

2. The facility's staff are trained to meet the prospective resident's needs; and

3. The admission of the prospective resident would not pose any a significant risk to (i) the prospective resident or (ii) the facility's residents or staff.

6VAC35-41-740. Admission procedures.

A. Except for placements pursuant to a court order, the facility shall admit only those residents who are determined to be compatible with the services provided through the facility.

B. The facility's written criteria for admission shall include the following:

1. A description of the population to be served;

2. A description of the types of services offered;

3. Intake and admission procedures;

4. Exclusion criteria to define those that identify behaviors or problems that for which the facility does not have the lacks the experienced or trained staff with experience or training necessary to manage the behaviors; and

5. Description of how educational services will be provided to the population being served.

6VAC35-41-750. Written placement agreement.

A. Except for placements pursuant to a court order or when a resident admits himself to a shelter care facility, each resident's case record shall contain, prior to a routine planned admission, a completed placement agreement signed by a facility representative and the parent, legal guardian, or placing agency. Routine admission means the admittance of a resident following evaluation of an application for admission and execution of a written placement agreement.

B. The written placement agreements agreement shall:

1. Authorize the resident's placement;

2. Address acquisition of and consent for any medical treatment needed by the resident;

3. Address the rights and responsibilities of each party involved;

4. 3. Address financial responsibility for the placement;

5. 4. Address visitation with the resident; and

6. 5. Address the education plan for the resident and the responsibilities of all parties. regarding the plan; and

6. Address the rights and all other responsibilities of each party involved.

6VAC35-41-760. Admission.

A. Written procedure governing the admission and orientation of residents to the facility shall provide for:

1. Verification of legal authority for placement;

2. Search of the resident and the resident's possessions, including inventory and storage or disposition of property, as appropriate;

3. Health screening;

4. Notification of parents and legal guardians, as applicable and appropriate, including of (i) the resident’s admission, (ii) information on visitation, and (iii) general information, including how the resident's parent or legal guardian may request information and register concerns and complaints with the facility. The facility shall ask the parent or legal guardian regarding whether the resident has any immediate medical concerns or conditions;

5. Interview with the resident to answer questions and obtain information;

6. Explanation to the resident of program services and schedules;

7. An orientation on the residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-41-560 (prohibited actions); and

8. Assignment of the resident to a housing unit or room.

B. When a resident is readmitted to a shelter care facility within 30 days from discharge, the facility shall administer all searches and screenings, provide all notifications, and update the all information required in subsection A of this section.

6VAC35-41-770. Orientation to facility rules and disciplinary procedures.

A. During the orientation to the facility, residents shall be given written information describing facility rules, the sanctions for rule violations, and the facility's disciplinary process. These The written information shall be explained to the resident and documented by the dated signature of the resident and staff.

B. Where a language or literacy problem exists that can lead to a resident misunderstanding the facility rules and regulations, staff or a qualified person under the supervision of staff shall assist the resident.

6VAC35-41-780. Emergency admissions.

Providers accepting emergency admissions, which are the unplanned or unexpected admission of a resident in need of immediate care excluding self-admittance to a shelter care facility or a court ordered placement, shall:

1. Develop and implement written procedures governing such admissions that shall include procedures require the provider to make and document prompt efforts to obtain (i) a written placement agreement signed by the parent or legal guardian or (ii) the order of a court order;

2. Place in each resident's record the order of a court, court order, a written request for care or documentation of an oral request for care, and justification of for why the resident is to be being admitted on an emergency basis; and

3. Except for placements pursuant to court orders, clearly document clearly in the written assessment information gathered for the emergency admission that the individual meets the facility's criteria for admission.

6VAC35-41-790. Resident transfer between residential facilities located in Virginia and operated by the same governing authority.

A. Except for transfers pursuant to a court order, when a resident is transferred from one facility to another facility operated by the same provider or governing authority, the sending facility shall provide the receiving facility, at the time of transfer, a written summary of (i) the resident's progress while at the sending facility; (ii) the justification for the transfer; (iii) the resident's current strengths and needs; and (iv) any medical needs, medications, and restrictions and, if necessary, instructions for meeting these needs.

B. Except for transfers pursuant to a court order, when a resident is transferred from one facility to another facility operated by the same provider or governing authority, the receiving facility shall document at the time of transfer:

1. Preparation measures accomplished through sharing information with the resident, the family, and the placing agency about the receiving facility, the staff, the population served, activities, and criteria for admission;

2. Notification to the family, if as applicable and appropriate;, the resident, the placement agency, and the legal guardian; and

3. Receipt of the written summary from the sending facility required by subsection A of this section.

6VAC35-41-800. Placement of residents outside the facility. (Repealed.)

A resident shall not be placed outside the facility prior to the facility obtaining a placing agency license from the Department of Social Services, except as permitted by statute or by order of a court of competent jurisdiction.

6VAC35-41-810. Discharge procedures.

A. The provider shall have written criteria for discharge that shall include:

1. Criteria for a resident's completing the program that are consistent with the facility's programs and services;

2. Conditions under which a resident may be discharged before completing the program; and

3. Procedures for assisting placing agencies in placing the residents should the facility cease operation.

B. The provider's criteria for discharge shall be accessible to prospective residents, parents or legal guardians, and placing agencies.

C. Residents younger than 18 years of age shall be discharged only to the parent or legal guardian, legally authorized representative, or foster parent with the written authorization of a representative of the legal guardian. Residents over the age of 17 18 years of age or older or who have been emancipated may assume responsibility for their own discharge.

D. As appropriate and applicable, information concerning current medications, need for continuing therapeutic interventions, educational status, and other items important to the resident's continuing care shall be provided to the parent or legal guardian or legally authorized representative, as appropriate.

E. Residents shall be permitted to take personal clothing when discharged from the facility.

6VAC35-41-820. Discharge documentation.

A. Except for residents discharged pursuant to a court order, the case record of a discharged resident shall contain the following:

1. Documentation that discharge planning occurred prior to the planned discharge date;

2. Documentation that discussions with the parent or legal guardian, placing agency, and resident regarding discharge planning occurred prior to the planned discharge date;

3. A written discharge plan developed prior to the planned discharge date; and

4. As soon as possible, but no later than 30 days after discharge, a comprehensive discharge summary placed in the resident's record and, which also shall be sent to the placing agency. The discharge summary shall review the following:

a. Services The services provided to the resident;

b. The resident's progress toward meeting service plan objectives;

c. The resident's continuing needs and recommendations, if any, for further services and care, if any;

d. Reasons The reasons for discharge and names of persons to whom the resident was discharged;

e. Dates The dates of admission and discharge; and

f. Date The date the discharge summary was prepared and the signature of the person preparing who prepared it.

B. When a resident is discharged pursuant to a court order, the case record shall contain a copy of the court order.

6VAC35-41-840. Structured programming.

A. Each facility shall implement a comprehensive, planned, and structured daily routine, including appropriate supervision designed to:

1. Meet the residents' physical and emotional needs;

2. Provide protection, guidance, and appropriate supervision;

3. Ensure the delivery of program services; and

4. Meet the objectives of any individual service plan, if applicable.

B. Each facility shall have goals, objectives, and strategies consistent with the facility's mission and program objectives utilized when working with all residents until the residents' individualized individual service plans are developed. These goals, objectives, and strategies shall be provided to the residents in writing during orientation to the facility.

C. Residents shall be allowed to participate in the facility's programs, as applicable, upon admission.

6VAC35-41-850. Daily log.

A. A daily communication log shall be, in accordance with facility procedures, maintained, in accordance with facility procedures, to inform staff of significant happenings or problems experienced by residents.

B. The date and time of the entry and the identity of the individual making each entry shall be recorded.

C. If the facility records log book-type information its log on a computer, all entries shall post the date, time, and identity of the person making an entry. The computer program shall prevent previous entries from being overwritten.

6VAC35-41-860. Individual service plan.

A. An individual service plan shall be developed and placed in the resident's record within 30 days following admission and implemented immediately thereafter. The initial individual service plan shall be distributed to the resident; the resident's family, legal guardian, or legally authorized representative; the placing agency; and appropriate facility staff.

B. Individual service plans shall describe in measurable terms the:

1. Strengths and needs of the resident;

2. Resident's current level of functioning;

3. Goals, objectives, and strategies established for the resident including a behavior support plan, if appropriate;

4. Projected family involvement;

5. Projected date for accomplishing each objective; and

6. Status of the projected discharge plan and estimated length of stay, except that this requirement shall not apply to a facility that discharges only upon receipt of the order of a court of competent jurisdiction.

C. Each individual service plan shall include the date it was developed and the signature of the person who developed it.

D. The individual service plan shall be reviewed within 60 days of the development of the plan and within each 90-day period thereafter. The individual service plan shall be revised as necessary. Any changes to the plan shall be made in writing. All participants shall receive copies of the revised plan.

E. The resident and facility staff shall participate in the development of the individual service plan.

F. The (i) supervising agency and (ii) resident's parents, legal guardian, or legally authorized representative, if appropriate and applicable, shall be given the opportunity to participate in the development of the resident's individual service plan.

G. Copies of the individual service plan shall be provided to the (i) resident; (ii) parents or legal guardians, as appropriate and applicable, and (iii) the placing agency.

6VAC35-41-870. Quarterly reports.

A. Except when a resident is placed in a shelter care program, the resident's progress toward meeting his individual service plan goals shall be reviewed and a progress report shall be prepared within 60 days of the development of the plan and within each 90-day period thereafter and. The progress report shall review the status of the following:

1. Resident's The resident's progress toward meeting the plan's objectives;

2. Family's The family's involvement;

3. Continuing The continuing needs of the resident;

4. Resident's The resident's progress towards toward discharge; and

5. Status The status of discharge planning.

B. Each quarterly progress report shall include the date it was developed and the signature of the person who developed it.

C. All quarterly progress reports shall be distributed to the resident; the resident's family, parent, legal guardian, or legally authorized representative; the placing agency; and appropriate facility staff.

6VAC35-41-880. Therapy.

Therapy, if provided, shall be provided by an individual Individuals providing therapy shall be: (i) licensed as a therapist therapists by the Department of Health Professions or (ii) who is licensure eligible for licensure and working under the supervision of a licensed therapist unless exempted from these requirements under the Code of Virginia.

6VAC35-41-890. Community relationships.

A. Opportunities shall be provided Facilities shall provide opportunities for the residents to participate in activities and to utilize resources in the community.

B. In addition to the requirements of 6VAC35-41-290 (background checks for volunteers or interns), written procedures shall govern how the facility will determine if participation in such community activities or programs would be in the residents' best interest.

C. Each facility shall have a staff community liaison who shall be responsible for facilitating cooperative relationships with neighbors, the school system, local law enforcement, local government officials, and the community at large.

D. Each provider Providers shall develop and implement written procedures for promoting positive relationships with the neighbors that shall be approved by the department their neighbors.

6VAC35-41-900. Resident visitation at the homes of staff.

Resident visitation at Residents shall be prohibited from visiting the homes of staff is prohibited unless written permission from the (i) resident's parent or legal guardian, as applicable and appropriate, (ii) the facility administrator, and (iii) the placing agency is obtained before the visitation occurs. The written permission shall be kept in the resident's record.

6VAC35-41-905. Work and employment.

A. Paid and unpaid work assignments, including chores, are assigned by or carried out at the facility shall be in accordance with the developmental level, health, and ability of the resident.

B. Chores shall not interfere with school programs, study periods, meals, or sleep.

C. Work assignments or employment outside the facility, including reasonable rates of pay, shall be approved by the facility administrator, upon collaboration with the referring agency and the parent or legal guardian.

D. In both work assignments and employment, the facility administrator shall evaluate the appropriateness of the work and fairness of the pay.

6VAC35-41-910. Additional assignments of direct care staff. (Repealed.).

If direct care staff assume nondirect care responsibilities, such responsibilities shall not interfere with the staff's direct care duties.

6VAC35-41-920. Staff supervision of residents.

A. No member of the direct care staff shall be on duty and responsible for the direct care of residents more than six consecutive days without a rest day, except in an emergency. For the purpose of this section, a rest day shall mean a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to the operation of the facility.

B. Direct care staff shall have an average of at least two rest days per week in any four-week period.

C. Direct care staff shall not be on duty more than 16 consecutive hours, except in an emergency.

D. There Except as provided in subsection G of this section, there shall be at least one trained direct care staff member who has satisfied the requirements in 6VAC35-41-200 and, if applicable, 6VAC35-41-210 on duty and actively supervising residents at all times that one or more residents are present.

E. Whenever residents are being supervised by staff, there shall be at least one staff person present with a current basic certification in standard first aid and a current certificate in cardiopulmonary resuscitation issued by a recognized authority.

F. The provider shall develop and implement written procedures that address staff supervision of residents including contingency plans for resident illnesses, emergencies, and off-campus activities, and resident preferences. These procedures shall be based on the:

1. Needs of the population served;

2. Types of services offered;

3. Qualifications of staff on duty; and

4. Number of residents served.

G. Notwithstanding the requirements in subsection D of this section, the trained direct care staff member who is present, on duty, and actively supervising residents in an independent living program shall be authorized, in emergency situations, to leave the facility for no longer than one hour to attend to a resident who is away from the facility and is in need of immediate assistance. Facilities that elect to exercise this option must observe the following rules:

1. The direct care staff must provide notice to the facility administrator or other supervisor before leaving the facility;

2. Residents who remain at the facility shall be provided with an emergency telephone number or other means of immediately communicating with a staff member; and

3. The facility shall have written procedures governing this exception.

6VAC35-41-930. Staffing pattern.

A. During the hours that residents are scheduled to be awake, there shall be at least one direct care staff member awake, on duty, and responsible for supervision of every 10 eight residents, or portion thereof, on the premises or participating in off-campus, facility sponsored activities, except that independent living programs shall have at least one direct care staff member awake, on duty, and responsible for supervision of every 15 residents on the premises or participating in off-campus, facility sponsored activities.

B. During the hours that residents are scheduled to sleep, there shall be no less fewer than one direct care staff member on duty and responsible for supervision of every 16 residents, or portion thereof, on the premises.

C. There shall be at least one direct care staff member on duty and responsible for the supervision of residents in each building where residents are sleeping. This requirement does not apply to approved independent living programs.

D. On each floor where residents are sleeping, there shall be at least one direct care staff member awake and on duty for every 30 residents or portion thereof.

D. The facility administrator shall have the discretion to determine the appropriate staffing ratios when residents are participating in off-campus, facility-sponsored activities or events after taking into account the residents who are participating, the nature of the event, and any other factors important in establishing the appropriate ratio. There shall never be fewer than one direct care staff member present for every eight residents or portion thereof while attending off-campus, facility-sponsored activities.

E. The provisions of this section shall not apply to independent living programs. Staffing for independent living programs shall be provided in accordance with 6VAC35-41-1005.

6VAC35-41-935. Periodic monitoring of residents.

A. Whenever residents are present in the facility, staff shall conduct periodic checks on each resident in the facility at least once every 30 minutes and more often if justified by the circumstances. Each check shall be documented in accordance with written procedures.

B. The requirement provided in subsection A of this section shall not apply to independent living programs.

6VAC35-41-950. Work and employment. (Repealed.).

A. Assignment of chores that are paid or unpaid work assignments shall be in accordance with the age, health, ability, and service plan of the resident.

B. Chores shall not interfere with school programs, study periods, meals, or sleep.

C. Work assignments or employment outside the facility, including reasonable rates of pay, shall be approved by the facility administrator with the knowledge and consent of the parent or legal guardian, as appropriate and applicable.

D. In both work assignments and employment the facility administrator shall evaluate the appropriateness of the work and the fairness of the pay.

Part VIII VII

Independent Living Programs

6VAC35-41-960. Independent living programs. (Repealed.).

A. Independent living programs shall be a competency based program, specifically approved by the board to provide the opportunity for the residents to develop the skills necessary to become independent decision makers, to become self-sufficient adults, and to live successfully on their own following completion of the program.

B. Independent living programs shall have a written description of the curriculum and methods used to teach living skills, which shall include finding and keeping a job, managing personal finances, household budgeting, hygiene, nutrition, and other life skills.

6VAC35-41-970. Independent living programs curriculum; curricula and assessment.

A. Each An independent living program must shall demonstrate that use of a structured program using that incorporates materials and curriculum curricula approved by the board is being used facility administrator to teach independent living skills. The curriculum must curricula shall include information regarding each of the areas listed in subsection B C of this section.

B. An independent living program shall have a written description of the curricula and methods used to teach living skills.

C. Within 14 days of placement, the provider must complete an assessment, including strengths and needs, of the resident's life living skills using an independent living assessment tool approved by the department. The assessment must cover covering the following areas:

1. Money management and consumer awareness;

2. Food management;

3. Personal Hygiene and personal appearance;

4. Social skills;

5. Health and sexuality Physical and mental health;

6. Housekeeping;

7. Transportation;

8. Educational planning and career planning;

9. Job seeking skills;

10. Job maintenance skills;

11. Emergency and safety skills;

12. Knowledge of community resources;

13. Interpersonal skills and social relationships;

14. Legal skills matters;

15. Leisure activities; and

16. Housing.

C. The resident's individualized service plan shall include, in addition to the requirements found in 6VAC35-41-860 (individual service plan), goals, objectives, and strategies addressing each of the areas listed in subsection B of this section, as applicable.

D. The independent living program shall document each resident's progress toward developing independent living skills.

6VAC35-41-980. Employee training in independent living programs.

Each An independent living program shall develop and implement procedures to train that require training of all direct care staff within 14 days of employment before the expiration of the staff's 14th work day on the content of the independent living curriculum, curricula, the use of the independent living materials, the application of the assessment tool, and the documentation methods used. Documentation of the training shall be kept maintained in the employee's staff personnel record.

6VAC35-41-990. Medication management in independent living programs.

If an independent living program allows residents age 18 years or older are to share in the responsibility for administering their own medication with the provider, the independent living program shall develop and implement written procedures that include:

1. Training for the resident Resident training in self administration self-administration and recognition of side effects;

2. Method The method for storage and safekeeping of medication;

3. Method The method for obtaining approval for the resident to self administer self-administer medication from a person authorized by law to prescribe medication; and

4. Method The method for documenting the administration of medication.

6VAC35-41-1000. Nutrition procedure in independent living programs.

Each independent Independent living program programs shall develop and implement written procedures that ensure that each resident is receiving adequate nutrition as required in 6VAC35-41-650 A, and B, and C (nutrition).

6VAC35-41-1005. Staffing in independent living programs.

During all hours, regardless of whether residents are scheduled to be awake or asleep, an independent living program shall have at least one direct care staff member awake, on duty, and responsible for supervision of every 16 residents on the premises; however, in accordance with subsection G of 6VAC35-41-920, the direct care staff member shall be authorized in emergency situations to leave the facility for no longer than one hour to attend to a resident who is away from the facility and is in need of immediate assistance.

Part IX VIII

Wilderness Programs and Adventure Activities

6VAC35-41-1010. Wilderness program Requirements for wilderness programs.

A. The provider must shall obtain approval by from the board prior to director before operating a primitive camping wilderness program.

B. Any A wilderness program must meet the following conditions: (i) maintain a nonpunitive environment; (ii) have an experience a written curriculum; and (iii) accept only residents only who are nine years of age or older who cannot presently function at home, in school, or in the community.

C. Any A wilderness work program or wilderness work camp program shall have a written program description covering:

1. Its The program's intended resident population;

2. How work assignments, education, vocational training, and treatment will be interrelated;

3. The length of the program;

4. The type and duration of treatment and supervision to be provided upon release or discharge; and

5. The program's behavioral expectations, incentives, and sanctions.

6VAC35-41-1020. Wilderness Procedures for wilderness programs or adventure activities; training.

A. All wilderness programs and providers that take residents on wilderness or adventure activities shall develop and implement written procedures that include:

1. Staff and resident training and experience requirements for each activity;

2. Resident training and experience requirements for each activity;

3. 2. Specific staff to resident staff-to-resident ratio and supervision plan that is appropriate for each activity, including sleeping arrangements and supervision during night time hours. The ratio and supervision plan shall meet the requirements set out in 6VAC35-41-930;

4. 3. Plans to evaluate and document each participant's physical health throughout the activity;

5. 4. Preparation and planning needed for each activity and time frames;

6. 5. Arrangement, maintenance, and inspection of activity areas;

7. 6. A plan to ensure that any equipment and gear that is to be used in connection with a specified wilderness or adventure activity is appropriate to the activity, certified if required, in good repair, in operable condition, and age and body size appropriate;

8. 7. Plans to ensure that all ropes and paraphernalia used in connection with rope rock climbing, rappelling, high and low ropes courses, or other adventure activities in which ropes are used are approved annually by an appropriate certifying organization and have been inspected by staff responsible for supervising the adventure activity before engaging residents in the activity;

9. 8. Plans to ensure that all participants are appropriately equipped, clothed, and wearing safety gear, such as a helmet, goggles, safety belt, life jacket, or a flotation device, that is appropriate to the adventure activity in which the resident is engaged;

10. 9. Plans for food and water supplies and management of these resources;

11. 10. Plans for the safekeeping and distribution of medication;

12. 11. Guidelines to ensure that resident participation is conducted falls within the boundaries of the resident's capabilities, dignity, and respect for self-determination;

13. 12. Overall emergency, safety, and communication plans for each activity including rescue procedures, frequency of drills, resident accountability, prompt evacuation, and notification of outside emergency services; and

14. 13. Review of trip plans by the trip coordinator.

B. Direct care workers staff hired by wilderness campsite programs and providers that take residents on wilderness or adventure activities shall be trained in a wilderness first aid course.

6VAC35-41-1030. Initial physical for wilderness programs or adventure activities.

Initial physical forms used by wilderness campsite programs and providers that take residents on wilderness or adventure activities shall include:

1. A statement notifying the doctor of the types of activities the resident will be participating in; and

2. A statement signed by the doctor stating that the individual's health does not prevent him from participating in the described activities.

6VAC35-41-1040. Physical environment of wilderness programs or adventure activities.

A. Each resident shall have adequate personal storage area.

B. Fire A. If combustion-type heating devices, campfires, or other sources of combustion are present, fire extinguishers of a 2A 10BC rating shall be maintained so that it is never necessary to travel more than or available within 75 feet to a fire extinguisher from combustion-type heating devices, campfires, or other of the source of combustion.

C. B. Artificial lighting shall be provided in a safe manner.

D. C. All areas of the campsite shall be lighted for safety when occupied by residents.

E. D. A telephone or other means of communication is required at shall be accessible in each area where residents sleep or participate in programs.

F. E. First aid kits used by wilderness campsite programs and providers that take residents on adventure activities shall be appropriate for the activity appropriate and shall be accessible at all times.

6VAC35-41-1050. Sleeping areas of wilderness programs or adventure activities.

If a wilderness program requires outdoor, off-campus, or alternative overnight sleeping arrangements, the following provisions shall apply:

A. In lieu 1. Instead of or in addition to dormitories, cabins, or barracks for housing residents, primitive campsites may be used.

B. Sleeping areas 2. Areas in which residents sleep shall be protected by screening or other means to prevent admittance of flies and mosquitoes.

C. 3. A separate bed, bunk, or cot, or sleeping bag, if applicable, shall be made available for each person.

D. 4. A mattress cover shall be provided for each mattress, as applicable.

E. Bedding 5. Bedding, if used, shall be clean, dry, sanitary, and in good repair.

F. Bedding 6. Bedding, if used, shall be adequate to ensure protection and comfort in cold weather.

G. 7. Sleeping bags, if used, shall be fiberfill and rated for 0°F.

H. 8. Linens shall be changed as often as required for cleanliness and sanitation but not less frequently than once a week every seven days.

I. 9. Staff shall be of the same sex may as each resident in a tent or sleeping room in order to share a the tent or sleeping area room with the residents.

6VAC35-41-1060. Personal necessities in wilderness programs or adventure activities.

A. Each resident Residents participating in wilderness programs shall be provided with an adequate supply of clean clothing and footwear that is sturdy, suitable for outdoor living the activity planned, and is appropriate to the geographic location and season.

B. Sturdy, water resistant, outdoor footwear shall be provided for each resident.

6VAC35-41-1070. Trip or activity coordination for wilderness programs or adventure activities.

A. All wilderness Wilderness programs and facilities that take residents on wilderness or adventure activities must shall designate one staff person to be the trip coordinator who will be responsible for all facility wilderness or adventure trips.

1. This person must The trip coordinator shall have experience in and knowledge regarding wilderness activities and be trained in a wilderness first aid course. The individual must trip coordinator also shall have at least one year experience at the facility and be familiar with the facility facility's procedures, staff, and residents.

2. Documentation regarding this knowledge and experience shall be found placed in the individual's staff personnel record.

3. The trip coordinator will shall review all trip plans and procedures and will shall ensure that staff and residents meet the requirements as outlined in the facility's procedure regarding each wilderness or adventure activity to take place during planned as part of the trip.

4. The trip coordinator will review all trip plans and procedures and will ensure that staff and residents meet the requirements as outlined in the facility's procedure regarding each wilderness or adventure activity to take place during the trip.

B. The trip coordinator shall conduct a post trip debriefing within 72 hours of the group's return to base to evaluate individual and group goals as well as the trip as a whole.

C. The trip coordinator will shall be responsible for (i) writing a summary of the debriefing session and shall be responsible for; and (ii) ensuring that procedures are updated to reflect improvements needed.

D. A trip folder will shall be developed for each wilderness or adventure activity conducted away from the facility and shall include:

1. Medical release forms including pertinent medical information on the trip participants;

2. Phone numbers for administrative staff and emergency personnel;

3. Daily trip logs;

4. Incident reports;

5. Swimming A swimming proficiency list if the trip is near water;

6. Daily logs;

7. Maps of the area covered by the trip; and

8. Daily plans.

E. The provider shall ensure that before engaging Before allowing participants to engage in any aquatic activity, each resident shall be classified by the trip coordinator or his designee shall develop a list that classifies residents according to swimming ability in one of two classifications: swimmer and nonswimmer. This ability. The list shall be placed in the trip folder as required in subsection D of this section, and the resident's classification shall be documented in the resident's record and in the trip folder.

F. The provider trip coordinator shall ensure that lifesaving equipment is provided for all aquatic activities and is placed so that it is immediately available in case of an emergency. At a minimum, the The equipment shall include:

1. A whistle or other audible signal device; and

2. A lifesaving throwing device.

G. The trip coordinator shall ensure that all aquatic activity is supervised by a certified lifeguard.

Part X IX

Family Oriented Family-Oriented Group Homes

6VAC35-41-1080. Requirements of family oriented group home systems.

Family oriented Family-oriented group home systems shall have written procedures for:

1. Setting the number of residents to be housed in each home and room of the home and prohibiting individuals less younger than 18 years of age from sharing sleeping rooms with and individuals older than 17 who are 18 years of age from sharing sleeping rooms or older without specific approval from the facility administrator;

2. Providing supervision of and guidance for the family oriented family-oriented group home parents and relief staff;

3. Admitting and orienting residents;

4. Preparing a treatment an individual service plan for each resident within 30 days of admission or 72 hours in the case of a shelter care facility, and reviewing the plan quarterly;

5. Providing appropriate programs and services from intake through release;

6. Providing residents with spending money;

7. Managing resident records and releasing information;

8. Providing medical and dental care to residents;

9. Notifying parents and guardians, as appropriate and applicable, the placing agency, and the department of any serious incident as specified in written procedures;

10. Making a program supervisor or designated staff person available to residents and house parents 24 hours a day; and

11. 10. Ensuring the secure control of any firearms and ammunition in the home that firearms and ammunition are secured in a manner so as to prevent unauthorized access by juvenile residents in the home.

6VAC35-41-1090. Examination by physician.

Each resident admitted to a family oriented family-oriented group home shall have a physical examination including tuberculosis screening within 30 days of admission unless the resident was examined within six months prior to admission to the program.

6VAC35-41-1100. Requirements of family oriented group homes.

Each family oriented family-oriented group home shall have:

1. A fire extinguisher, inspected annually;

2. Smoke alarm devices in working condition according to inspections conducted at least monthly and documented by facility staff;

3. Alternative methods of escape from second story;

4. Modern sanitation facilities;

5. 4. Freedom from physical hazards;

6. 5. A written emergency plan that is communicated to all new residents at orientation;

7. 6. An up-to-date listing of medical and other emergency resources in the community;

8. 7. A separate bed for each resident, with clean sheets equipped with a mattress, pillow, blankets, bed linens, and if needed, a waterproof mattress cover. The blankets and linens weekly; shall be cleaned at least once every seven days and more often, if needed. Bleach or another sanitizing agent approved by the federal Environmental Protection Agency to destroy bacteria shall be used in the laundering of bed linens;

9. 8. A bedroom that is well illuminated and ventilated; is in reasonably good repair; is not a hallway, unfinished basement or attic; and provides conditions allows for privacy;

10. 9. A place to store residents' clothing and personal items;

11. Sanitary 10. Modern sanitary toilet and bath facilities that are adequate for the number of residents;

12. 11. A safe and clean place for indoor and outdoor recreation;

13. 12. Adequate furniture;

14. 13. Adequate laundry facilities or laundry services;

15. 14. A clean and pleasant dining area;

16. 15. Adequate and nutritionally balanced meals; and

17. 16. Daily provision of clean size-appropriate clothing and shoes for indoor and outdoor wear and articles necessary for maintaining proper personal hygiene. All such items shall be clean and in good repair.

6VAC35-41-1110. Other applicable regulations.

Each In addition to the requirements listed in 6VAC35-41-1080 through 6VAC35-41-1100, each family oriented group home also shall also be subject to and comply with the requirements of the following provisions of this chapter:

1. 6VAC35-41-180 (employee and volunteer background checks) 1. 6VAC35-41-90;

2. 6VAC35-41-190 (required initial orientation) 2. 6VAC35-41-180;

3. 6VAC35-41-200 (required initial training); and

4. VAC35-41-210 (required retraining). 3. 6VAC35-41-190;

4. 6VAC35-41-200;

5. 6VAC35-41-210;

6. 6VAC35-41-560;

7. 6VAC35-41-565;

8. 6VAC35-41-570;

9. 6VAC35-41-580;

10. 6VAC35-41-590;

11. 6VAC35-41-600;

12. 6VAC35-41-620;

13. 6VAC35-41-640;

14. 6VAC35-41-660;

15. 6VAC35-41-670;

16. 6VAC35-41-690; and

17. 6VAC35-41-700.

Part XI

Respite Care

6VAC35-41-1120. Definition of respite care. (Repealed.)

Respite care facility shall mean a facility that is specifically approved to provide short-term, periodic residential care to residents accepted into its program in order to give the parents or legal guardians temporary relief from responsibility for their direct care.

6VAC35-41-1130. Admission and discharge from respite care. (Repealed.)

A. Acceptance of an individual as eligible for respite care by a respite care facility is considered admission to the facility. Each individual period of respite care is not considered a separate admission.

B. A respite care facility shall discharge a resident when the legal guardian no longer intends to use the facility's services.

6VAC35-41-1140. Updating health records in respite care. (Repealed.)

Respite care facilities shall update the information required by 6VAC35-41-1170 B (health care procedures) at the time of each stay at the facility.

Part XII X

Health Care Services

6VAC35-41-1150. Definitions applicable to health care services. (Repealed.)

"Health authority" means the individual, government authority, or health care contractor responsible for organizing, planning, and monitoring the timely provision of appropriate health care services, including arrangements for all levels of health care and the ensuring of quality and accessibility of all health services, consistent with applicable statutes and regulations, prevailing community standards, and medical ethics.

"Health care record" means the complete record of medical screening and examination information and ongoing records of medical and ancillary service delivery including, but not limited to, all findings, diagnoses, treatments, dispositions, prescriptions, and their administration.

"Health care services" means those actions, preventative and therapeutic, taken for the physical and mental well-being of a resident. Health care services include medical, dental, orthodontic, mental health, family planning, obstetrical, gynecological, health education, and other ancillary services.

"Health trained personnel" means an individual who is trained by a licensed health care provider to perform specific duties such as administering health care screenings, reviewing screening forms for necessary follow-up care, preparing residents and records for sick call, and assisting in the implementation of certain medical orders.

6VAC35-41-1160. Provision of health care services.

Treatment by nursing Nursing personnel shall be performed provide treatment pursuant to the laws and regulations governing the practice of nursing within the Commonwealth. Other health trained health-trained personnel shall provide care within their level of training and certification.

6VAC35-41-1170. Health care procedures.

A. The provider shall have and implement written procedures for promptly:

1. Arranging for the provision of medical and dental services for health problems identified at admission;

2. Arranging for the provision of routine ongoing and follow-up medical and dental services after admission;

3. Arranging for emergency medical and mental health care services, as appropriate and applicable, for each resident as provided by statute or by the agreement with the resident's parent or legal guardian;

4. Arranging for emergency medical and mental health care services, as appropriate and applicable, for any resident experiencing or showing signs of suicidal or homicidal thoughts, symptoms of mood or thought disorders, or other mental health problems; and

5. Ensuring that the required information in subsection B of this section is accessible and up to date.

B. The following written information concerning each resident shall be readily accessible to staff who may have to respond to a medical or dental emergency:

1. Name, address, and telephone number of the physician and dentist to be notified;

2. Name, address, and telephone number of a relative or other person to be notified;

3. Medical insurance company name and policy number or Medicaid number;

4. Information concerning:

a. Use of medication;

b. All allergies, including medication allergies;

c. Substance abuse and use;

d. Significant past and present medical problems; and

5. Written permission for emergency medical care, dental care, and obtaining immunizations or a procedure and contacts for obtaining consent.

C. Facilities approved to provide respite care shall update the information required by subsection B of this section at the time of each stay at the facility.

6VAC35-41-1180. Health trained Health-trained personnel.

A. Health trained Health-trained personnel shall provide care as appropriate to their level of training and certification and shall not administer health care services for which they are not qualified or specifically trained.

B. The facility shall retain documentation of the training received by health trained health-trained personnel necessary to perform any designated health care services. Documentation of applicable, current licensure or certification shall constitute compliance with this section.

6VAC35-41-1190. Consent to and refusal of health care services.

A. The knowing and voluntary agreement, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion, of a person who is capable of exercising free choice (informed consent) to health care shall be obtained from the resident, parent, guardian, or legal custodian as required by law. Consent to health care services shall be provided in accordance with § 54.1-2969 of the Code of Virginia. The juvenile residential facility shall obtain consent from the resident or parent or legal custodian as required by law before providing health care services to a resident. The consent shall be knowing and voluntary, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion.

B. The resident, parent, guardian, or legal custodian, as applicable, shall be advised by an appropriately trained medical professional of (i) the material facts regarding the nature, consequences, and risks of the proposed treatment, examination, or procedure and (ii) the alternatives to it.

C. Residents may refuse in writing medical treatment and care. This subsection does not apply to medication refusals that are governed by 6VAC35-41-1280 (medication).

D. When health care is rendered against the resident's will, it shall be in accordance with applicable laws and regulations.

6VAC35-41-1200. Health screening at admission.

The juvenile residential facility shall require that:

1. To prevent newly arrived residents who pose a health or safety threat to themselves or others from being admitted to the general population jeopardizing the health of other residents, all residents shall immediately upon admission shall undergo a preliminary health screening consisting of a structured interview and observation by health care personnel or health trained staff health-trained personnel. As necessary to maintain confidentiality, all or a portion of the interview shall be conducted with the resident without outside the presence of the parent or guardian.

2. Residents admitted to the facility who pose are identified during the screening required in subsection A of this section as posing a health or safety threat to themselves or others shall not be admitted to the facility's general population but provision shall be made for them to receive comparable services. be separated from all other residents in the facility until they are no longer a risk. During the period of separation, provision shall be made for the residents to receive comparable services.

3. Immediate health care is provided to residents who need it.

6VAC35-41-1210. Tuberculosis screening.

A. Within seven days of placement arrival at a facility, each resident shall have had a screening risk assessment for tuberculosis. as evidenced by documentation by a medical professional or the completion of an assessment form containing the elements found on the current assessment form published by the Virginia Department of Health. The screening risk assessment can shall be no older than 30 days. The risk assessment may be administered by health-trained personnel; however, results of the assessment shall be interpreted by a physician, physician assistant, nurse practitioner, or registered nurse.

B. A screening In addition to the initial risk assessment required in subsection A of this section, a risk assessment for tuberculosis shall be completed annually on each resident., as evidenced by documentation by a medical professional or the completion of a form containing the elements of the assessment form published by the Virginia Department of Health.

C. If the physician, physician assistant, nurse practitioner, or registered nurse, having interpreted the results of the risk assessment, determines a tuberculosis screening is necessary, the facility shall refer the resident to the local health department or a medical professional for additional screening.

D. The facility's assessment and screening practices shall be performed consistent with any current recommendations of the Virginia Department of Health, Division of Tuberculosis Prevention and Control and the federal Department of Health and Human Services Centers for Disease Control and Prevention for the detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis.

E. For any residents determined to have tuberculosis in a communicable form, the facility shall observe the requirements in 6VAC35-41-1230.

F. Active cases of tuberculosis contracted by a resident shall be reported to the local health department in accordance with the requirements of the Commonwealth of Virginia State Board of Health Regulations for Disease Reporting and Control (12VAC5-90).

G. The provider shall retain documentation of the assessment and screening results in a manner that maintains the confidentiality of information.

6VAC35-41-1220. Medical examinations and treatment.

A. Except for residents placed in a shelter care facility, each A resident accepted for care who has been accepted into a juvenile residential facility as a planned admission shall have a physical examination performed by or under the direction of a licensed physician no earlier than 90 days prior to admission to the facility or no later than seven days following admission, except (i) the report of an examination within the preceding 12 months shall be acceptable if a resident transfers from one facility licensed or certified by a state agency to another and (ii) a physical examination shall be conducted within 30 days following an emergency admission if a report of physical examination is not available. A resident placed in a facility pursuant to an emergency admission process shall have a physical within 90 days following the emergency admission.

B. Each resident shall have an annual physical examination by or under the direction of a licensed physician and an annual dental examination by a licensed dentist.

6VAC35-41-1230. Infectious or communicable diseases.

A. A resident with a communicable disease shall not be admitted unless a licensed physician certifies that:

1. The facility is capable of providing care to the resident without jeopardizing residents and staff; and

2. The facility is aware of the required treatment for the resident and the procedures to protect residents and staff.

The requirements of this subsection shall not apply to shelter care facilities.

B. The facility shall implement written procedures approved by a medical professional that:

1. Address staff (i) interactions with residents with infectious, communicable, or contagious medical conditions; and (ii) use of standard precautions;

2. Require staff training in standard precautions, initially and annually thereafter; in accordance with 6VAC35-41-200 and 6VAC35-41-210; and

3. Require staff to follow procedures for dealing with residents who have infectious or communicable diseases.

6VAC35-41-1240. Suicide prevention.

Written procedure procedures shall provide (i) for a suicide prevention and intervention program, developed in consultation with a qualified medical or mental health professional, and (ii) for all direct care staff to be trained in the implementation of the program in accordance with 6VAC35-41-200 and 6VAC35-41-210.

6VAC35-41-1250. Residents' health care records.

A. Each resident's health care record shall include written documentation of (i) the initial physical examination, (ii) an annual physical examination by or under the direction of a licensed physician including any recommendation for follow-up care, and (iii) documentation of the provision of follow-up medical care recommended by the physician or as indicated by the needs of the resident.

B. The resident's active health care records (i) shall be (i) kept confidential and inaccessible from unauthorized persons, (ii) shall be readily accessible in case of emergency, and (iii) shall be made available to authorized staff consistent with applicable state and federal statutes and regulations.

C. Each physical examination report shall include:

1. Information necessary to determine the health and immunization needs of the resident, including:

a. Immunizations administered at the time of the exam;

b. Vision exam;

c. Hearing exam;

d. General physical condition including documentation of apparent freedom from communicable disease, including tuberculosis;

e. Allergies, chronic conditions, and handicaps disabilities, if any;

f. Nutritional requirements including special diets, if any;

g. Restrictions on physical activities, if any; and

h. Recommendations for further treatment, immunizations, and other examinations indicated;

2. Date of the physical examination; and

3. Signature of a licensed physician, the physician's designee, or an official of a local health department.

D. Each A resident's health care record shall include written documentation of (i) an annual examination by a licensed dentist and (ii) documentation of follow-up dental care recommended by the dentist or as indicated by the needs of the resident. This requirement does not apply to shelter care facilities and respite care facilities.

E. Each resident's health care record shall include notations of health and dental complaints and injuries and shall summarize symptoms and treatment given.

F. Each resident's health care record shall include or document the facility's efforts to obtain treatment summaries of ongoing psychiatric or other mental health treatment and reports, if applicable.

6VAC35-41-1260. First aid kits.

A. A well-stocked first aid kit shall be maintained, within the facility, as well as in facility vehicles used to transport residents, together with an inventory of its contents, and readily accessible for dealing with minor injuries and medical emergencies.

B. First aid kits should shall be monitored in accordance with established facility written procedures to ensure kits are maintained, stocked, and ready for use.

6VAC35-41-1270. Hospitalization and other outside medical treatment of residents.

A. When a resident needs hospital care or other medical treatment outside the facility:

1. The resident shall be transported safely; and

2. A The facility shall ensure that a parent or legal guardian, a staff member, or a law-enforcement officer, as appropriate, shall accompany accompanies the resident and stay at least during admission. remains with the resident until the resident is admitted. If sending a staff member would result in inadequate coverage at the juvenile residential facility, the provider shall deploy a staff member to the hospital or outside medical facility as soon as reasonably possible.

2. If a law-enforcement officer conducts the transport, the provider shall comply with the provisions of subsection C of 6VAC35-41-550 unless exempted under subsection D of 6VAC35-41-550.

B. If a parent or legal guardian does not accompany the resident to the hospital or other off-site medical treatment outside the facility, the parent or legal guardian provider shall be informed inform the parent or legal guardian as soon as practicable that the resident was taken outside the facility off-site for medical attention as soon as is practicable.

6VAC35-41-1280. Medication.

A. All medication shall be properly labeled consistent with the requirements of the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia). Medication prescribed for individual use shall be so labeled.

B. All medication shall be securely locked, unless otherwise ordered by a physician on an individual basis for keep-on-person or equivalent use.

C. All staff responsible for medication administration who do not hold a license issued by the Virginia Department of Health Professions authorizing the administration of medications shall have successfully completed a medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medications before they can may administer medication. All staff who administer medication shall complete an annual refresher medication training.

D. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the effects.

E. A program of medication, including procedures regarding the use of over-the-counter medication pursuant to written or verbal orders signed by personnel authorized by law to give such orders, shall be initiated for a resident only when prescribed in writing by a person authorized by law to prescribe medication. This includes over-the-counter medication administered pursuant to a written or verbal order that is issued by personnel authorized by law to give such orders.

F. All medications shall be administered in accordance with the physician's or other prescriber's instructions and consistent with the requirements of § 54.2-2408 § 54.1-3408 of the Code of Virginia and the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia).

G. A medication administration record shall be maintained of that identifies all medicines received by each resident and shall include that includes:

1. Date The date the medication was prescribed or most recently refilled;

2. Drug The drug name;

3. Schedule The schedule for administration;

4. Strength The strength;

5. Route The route;

6. Identity The identity of the individual who administered the medication; and

7. Dates The dates on which the medication was discontinued or changed.

H. In the event of If a medication incident or an adverse drug reaction, occurs, first aid shall be administered if indicated. Staff shall promptly contact a poison control center, pharmacist, nurse, or physician and shall take actions as directed. If the situation is not addressed in standing orders, the attending physician shall be notified as soon as possible and the actions taken by staff shall be documented. A medical incident shall mean an error made in administering a medication to a resident including the following: (i) a resident is given incorrect medication; (ii) medication is administered to an incorrect resident; (iii) an incorrect dosage is administered; (iv) medication is administered at a wrong time or not at all; and (v) the medication is administered through an improper method. A medication error does not include a resident's refusal of appropriately offered medication.

I. Written procedures shall provide for require (i) the documentation of medication incidents, (ii) the review of medication incidents and reactions and making any implementation of necessary improvements, (iii) the storage of controlled substances, and (iv) the distribution of medication off campus. The procedures must be shall be approved by a health care professional. Documentation of this approval shall be retained.

J. Medication refusals shall be documented including action taken by staff. The facility shall follow procedures for managing such refusals that shall address:

1. Manner The manner by which medication refusals are documented, and

2. Physician follow-up, as appropriate.

K. Disposal and storage of unused, expired, and discontinued medications and medical implements shall be in accordance with applicable laws and regulations.

L. The telephone number of a regional poison control center and other emergency numbers shall be posted on or next to each nonpay telephone that has access to an outside line in each building in which residents sleep or participate in programs.

M. Syringes and other medical implements used for injecting or cutting skin shall be locked and inventoried in accordance with facility procedures.

Part XIII XI

Behavior Support and Management

6VAC35-41-1290. Behavior management.

A. Each facility shall implement a behavior management program. Behavior management shall mean those principles and methods employed to help a resident achieve positive behavior and to address and correct a resident's inappropriate behavior in a constructive and safe manner in accordance with written procedures governing program expectations, treatment goals, and residents' and employees' safety and security.

B. Written procedures governing this program shall provide the following:

1. A description of the rules of conduct and behavioral expectations for the resident;

2. Orientation of residents as provided in 6VAC35-41-770 (orientation to facility rules and disciplinary procedures);

3. A description of a system of privileges and sanctions that is used and available for use.;

4. Specification of the staff members who may authorize the use of privileges and sanctions; and

5. Documentation requirements when sanctions are imposed.

C. Written information concerning the procedures of the provider's behavior management program shall be provided prior to before admission to prospective residents, parents or legal guardians, and placing agencies. For court-ordered and emergency admissions, this information shall be provided to: according to the following timelines:

1. Residents shall receive the information within 12 hours following admission;

2. Placing agencies shall receive the information within 72 hours following the resident's admission; and

3. Legal Parents or legal guardians shall receive the information within 72 hours following the resident's admission.

D. When substantive revisions are made to procedures governing the provider's behavior management of resident behavior program, written information concerning the revisions shall be provided before implementation to:

1. Residents prior to implementation Residents; and

2. Legal Parents or legal guardians and placing agencies prior to implementation.

E. The facility administrator or designee shall review the behavior management program and procedures at least annually to determine appropriateness for the population served.

F. Any time residents are present, staff must who have completed required trainings in behavior management shall be present who have completed all trainings in behavior management.

6VAC35-41-1300. Behavior support.

A. Each A facility shall have a procedure regarding written procedures governing behavior support plans for use with residents who need supports in addition to those provided in the facility's behavior management program that addresses. The procedures shall address the circumstances under which such the plans shall be utilized.

Such B. The behavior support plans shall support the resident's self-management of his own the resident's behavior and shall include:

1. Identification of positive and problem behavior;

2. Identification of triggers for behaviors;

3. Identification of successful intervention strategies for problem behavior;

4. Techniques for managing anger and anxiety; and

5. Identification of interventions that may escalate inappropriate behaviors.

B. C. Individualized behavior support plans shall be developed in consultation with the:

1. Resident;

2. Legal guardian, if applicable;

3. Resident's parents, if applicable;

4. Program director;

5. Placing agency staff; and

6. Other applicable individuals.

C. Prior to working alone with an assigned resident, each D. Each staff member shall review and be prepared to implement the assigned resident's behavior support plan.

6VAC35-41-1310. Timeout.

A. A facility may use a systematic behavior management technique program component designed to reduce or eliminate inappropriate or problematic behavior by having a staff require a resident to move to a specific location that is away from a source of reinforcement for a specific period of time or until the problem behavior has subsided (timeout) timeout under the following conditions:

1. The provider shall develop and implement written procedures governing the conditions under which a resident may be placed in timeout and the maximum period of timeout.

2. The conditions and maximum period of timeout shall be based on the resident's chronological and developmental level.

3. The area in which a resident is placed shall not be locked nor the door secured in a manner that prevents the resident from opening it.

4. 3. A resident in timeout shall be able to communicate with staff.

5. 4. Staff shall check on monitor the resident in the timeout area at least every 15 minutes and more often depending on the nature of the resident's disability, condition, and behavior the circumstances. During each check on the resident, staff shall evaluate and document whether the resident is prepared to be released from timeout.

B. Use of timeout and staff checks on the residents shall be documented.

6VAC35-41-1320. Physical restraint.

A. Physical restraint shall be used as a last resort only after less restrictive interventions have failed or to control residents whose behavior poses a risk to the safety of the resident, others, staff, or the public others.

1. Staff shall use the least force deemed reasonable to be reasonably necessary to eliminate the risk or to maintain security and order and shall never use physical restraint as punishment or with the intent to inflict injury.

2. Staff may physically restrain a resident only after less restrictive behavior interventions have failed or when failure to restrain would result in harm to the resident or others.

3. Physical restraint shall be implemented, monitored, and discontinued only by staff who have been trained in the proper and safe use of restraint.

4. Physical restraint shall mean the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

B. Written The facility shall have written procedures governing the use of physical restraint shall that include:

1. The staff position who will write responsible for writing the report and the timeframe; for completing the report;

2. The staff position who will review responsible for reviewing the report and timeframe; the timeframe for reviewing the report; and

3. Methods to be followed should physical restraint, less intrusive interventions, or measures permitted by other applicable state regulations prove unsuccessful in calming and moderating the resident's behavior.

C. All Each application of physical restraints restraint shall be reviewed and evaluated in order to plan for provide continued staff development for and performance improvement.

D. Each application of physical restraint shall be fully documented in the resident's record including:

1. Date The date and time of the incident;

2. Staff involved The staff involved in the restraint;

3. Justification The justification for the restraint;

4. Less restrictive behavior interventions that were unsuccessfully attempted prior to using physical restraint;

5. Duration The duration of the restraint;

6. Description A description of the method or methods of physical restraint techniques used;

7. Signature The signature of the person completing the report and date; and

8. Reviewer's The reviewer's signature and date.

NOTICE: The following forms used in administering the regulation have been filed by the agency. Amended or added forms are reflected in the listing and are published following the listing. Online users of this issue of the Virginia Register of Regulations may also click on the name to access a form. The forms are also available from the agency contact or may be viewed at the Office of Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

FORMS (6VAC35-41)

Virginia Department of Health TB Risk Assessment Form, TB512 (eff. 11/2016)

DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-41)

Compliance Manual - Group Homes and Halfway Houses, effective January 1, 2014, Virginia Department of Juvenile Justice

VA.R. Doc. No. R17-4879; Filed April 21, 2021
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
DEPARTMENT (BOARD) OF JUVENILE JUSTICE
Proposed

Title of Regulation: 6VAC35-101. Regulation Governing Juvenile Secure Detention Centers (amending 6VAC35-101-10, 6VAC35-101-20, 6VAC35-101-40 through 6VAC35-101-110, 6VAC35-101-130 through 6VAC35-101-155, 6VAC35-101-170 through 6VAC35-101-210, 6VAC35-101-240, 6VAC35-101-250, 6VAC35-101-260, 6VAC35-101-310, 6VAC35-101-330 through 6VAC35-101-380, 6VAC35-101-400 through 6VAC35-101-430, 6VAC35-101-460 through 6VAC35-101-580, 6VAC35-101-600 through 6VAC35-101-740, 6VAC35-101-770 through 6VAC35-101-840, 6VAC35-101-860 through 6VAC35-101-900, 6VAC35-101-920 through 6VAC35-101-1100, 6VAC35-101-1130, 6VAC35-101-1140, 6VAC35-101-1160 through 6VAC35-101-1250, 6VAC35-101-1270; adding 6VAC35-101-152, 6VAC35-101-175, 6VAC35-101-177, 6VAC35-101-185, 6VAC35-101-187, 6VAC35-101-195, 6VAC35-101-197, 6VAC35-101-635, 6VAC35-101-1105, 6VAC35-101-1115, 6VAC35-101-1145, 6VAC35-101-1153 through 6VAC35-101-1158; repealing 6VAC35-101-30, 6VAC35-101-270, 6VAC35-101-280, 6VAC35-101-290, 6VAC35-101-300, 6VAC35-101-1090, 6VAC35-101-1110, 6VAC35-101-1150).

Statutory Authority: §§ 16.1-322.7 and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 23, 2021.

Agency Contact: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 588-3902, FAX (804) 371-6497, or email kristen.peterson@djj.virginia.gov.

Basis: The board is entrusted with general, discretionary authority to promulgate regulations by § 66-10 of the Code of Virginia, which authorizes the board to promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth. Additionally, § 16.1-309.9 of the Code of Virginia requires the board to approve minimum standards for the construction and equipment of detention homes or other facilities and for food, clothing, medical attention, and supervision of juveniles housed in these facilities and programs.

Purpose: The proposed amendments are the result of a comprehensive review of this chapter conducted by department staff, representatives from the Virginia Juvenile Detention Association, various state agencies, and several juvenile justice advocates. The amendments are necessary to streamline the language and clarify ambiguous or confusing provisions. The amendments also impose new requirements that align with changes that have occurred since the department's last review of the regulation, as well as recommendations the department received.

In 2003, Congress enacted the Prison Rape Elimination Act (PREA) (P.L. 108-79) to provide for the analysis of the incidence and effects of prison rape in federal, state, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape. PREA created a commission charged with developing standards for the elimination of prison rape. The final rule for these standards became effective in 2012; however, juvenile correctional facilities had until October 2017 to comply with the standards related to staffing requirements and staffing ratios. Although many detention centers have adopted written procedures or are employing practices that align with PREA's mandates, the department's existing regulatory provisions regarding staffing ratios directly conflict with the PREA standards for juvenile facilities. Maintaining detention center existing staffing ratios could increase the likelihood of detention rape or assault incidents. Therefore, the department is proposing amendments to these provisions that align with the mandates in PREA.

In 2016, the Virginia Code Commission promulgated regulations intended to provide state agencies with guidance on filing, submitting, and publishing agency regulatory actions. The regulations prohibit state agencies from incorporating documents of their own creation into the agency's regulations unless the agency establishes that the documents or circumstances are unique and unusual. Some of the provisions in the existing regulation require detention centers to adhere to department-developed procedures or guidelines in violation of the Code Commission's regulations. The department is proposing amendments to remove these invalid provisions.

Legislation (Senate Bill 215) introduced during the 2016 Session of the General Assembly would have required the department to promulgate regulations that specified the parameters for imposing room confinement in juvenile correctional centers and juvenile detention centers. Although the legislation ultimately failed, it prompted the department to make room confinement a focal point for examination during the comprehensive review of this chapter. As a result of this review, the committee determined that additional restrictions were needed to ensure adequate monitoring protocols are in place, restriction periods are approved through proper channels, and medical and mental health professionals are assessing the impact on residents who are on room restriction for extended periods. These protocols will help to ensure the safety of residents who are confined to their rooms.

At least one juvenile detention center currently contracts with the federal government to house residents under the federal government's custody. This program operates separately from the facility's predispositional and postdispositional programs. The department recently identified a gap in its certification authority that prevented the certification unit from inspecting and reviewing files of and interviewing residents under the federal government's custody. This gap had prevented the department from verifying facility compliance with its regulations and from ensuring the safety of the program participants. The department has addressed this issue through a fast-track regulatory action requiring these contracts to include provisions that bind the program to the department's certification regulations and that give the department access to residents within the program. This proposal includes additional amendments to the fast-track change clarifying that such contracts must be in writing and communicated to the department.

Chapter 599 of the 2020 Acts of Assembly directs the Board of Juvenile Justice, in collaboration with the Department of Behavioral Health and Developmental Services, to establish regulations governing the housing of youth who are detained in a juvenile correctional facility pursuant to contracts with the federal government. In order to carry out this directive, the department has convened a committee of representatives from juvenile detention centers, Department of Juvenile Justice staff, the Office of Refugee Resettlement, and the Department of Behavioral Health and Developmental Services. The department anticipates filing a separate regulatory action once this committee completes its work.

The use of mechanical restraints, and more specifically, the mechanical restraint chair in secure juvenile facilities has generated significant controversy in recent years. When the proper approvals, restrictions, and monitoring controls are not in place or when staff utilize these devices negligently, they can be dangerous to residents in secure facilities. Virginia's current regulations impose very few restrictions on the use of mechanical restraints and the restraint chair. Furthermore, this chapter is completely silent with respect to rules governing the use of spit guards used to curtail spitting and biting, as well as other protective devices. These omissions could leave both staff and residents susceptible to injury and juvenile detention centers (JDCs) vulnerable to litigation.

Having each of these protections in place is essential to protect the health, safety, and welfare of residents, staff, and visitors in JDCs and individuals in the community. Having clear, concise regulations in place will help JDCs operate more safely and efficiently, thus meeting the overall rehabilitation and community safety goals of the department.

Substance:

The department recommends the following new provisions to the chapter:

6VAC35-101-630 and 6VAC35-101-635, incorporating the provisions of department-developed Guidelines for Transporting Juveniles in Detention, which establish rules related to vehicular transportation of detained juveniles, transportation of violent and disruptive residents, and transportation of residents traveling outside the jurisdictional boundaries or to specified destinations.

6VAC35-101-1100, outlining new parameters for residents placed in room restriction, including residents restricted for safety and security or for violating a rule of the facility.

6VAC35-101-1105, outlining the protocol when JDCs place residents in disciplinary room restriction as a consequence for violating a facility rule and after the resident has been afforded the protections of the disciplinary process.

6VAC35-101-1130, 6VAC35-101-1140, 6VAC35-101-1145, 6VAC35-101-1153, 6VAC35-101-1154, 6VAC35-101-1155, 6VAC35-101-1156, 6VAC35-101-1157, and 6VAC35-101-1158, establishing new restrictions on the use of mechanical restraints, protective devices, including spit guards, and mechanical restraint chairs.

The department recommends several substantive amendments to existing language in this regulation:

Add language requiring JDCs that enter into agreements to detain residents under custody of a separate entity to document the agreement in writing, notify the department immediately of such agreement, and provide the department with a copy of the agreement. Remove the explicit provision mandating that facilities that fail to comply with a regulatory requirement must ensure this noncompliance will not pose a danger to residents. Remove the requirement that facility staff report serious incidents in accordance with department procedures.

Add provisions to reflect the statutory language that prohibits JDCs from hiring for employment or bringing on as volunteers or contractors certain individuals convicted of applicable barrier crimes. Remove the directive that every employee's records contain annual performance evaluations. Strike the requirement that the resident's face sheet include the address of the applicable Court Service Unit (CSU).

Allow facility administrators to identify in written procedures the critical safety, emergency, and communications equipment that must be inspected, tested, and maintained regularly. Modify the ratio of showers or bathtubs to residents for facilities constructed or structurally modified on or after December 28, 2007, from one-to-four to one-to-five. Expand the types of tobacco prohibited and the category of individuals precluded from using tobacco products in areas of the JDC premises where residents may see or smell the product. Strike the mandate that animals maintained on the premises be housed a reasonable distance from sleeping and living areas.

Amend the facility's emergency preparedness training requirements to cover the implementation of evacuation procedures that encompass all individuals with disabilities (e.g., visitors) who may be in the facility rather than focusing solely on residents with disabilities. Remove the facility administrator's broad authority to approve manual and instrumental anal or vaginal cavity searches and permit such searches only pursuant to court order, except in exigent circumstances in which the resident requires medical attention. Add language directing JDCs, when allowing third parties to assume temporary custody of residents for purposes of transportation, to provide these parties with written information known to the JDC concerning the immediate medical needs and mental health condition of the resident, including the resident's recent suicidal ideations or suicide attempts.

Replace references to physician with health care professional throughout the regulation in order to allow other health officials (e.g., nurses) within the facility to make decisions concerning (i) deprivation of food or water for legitimate medical purposes; (ii) administration of special diets or alternative dietary schedules; and (iii) whether the facility is capable of caring for residents with confirmed communicable diseases. Direct the facility to consider the resident's own views regarding the resident's safety in determining whether the resident is a member of a vulnerable population. Require that first class mail received for released or transferred residents be forwarded to the resident's last known address or forwarding address or returned to sender. Allow for an exception for certain specified purposes to the requirement that residents receive daily opportunities to shower provided required approvals are obtained and the exception is authorized in written procedures. Permit special diets, with required approvals, for residents who have used food or utensils to threaten facility security.

Require facilities to conduct a general assessment of the resident's physical condition during the admission process and prohibit the facility from admitting certain impaired individuals, individuals in need of medical attention, or individuals who require immediate emergency medical treatment, until they have been medically cleared for admission. Remove the requirement that a resident receive orientation before being assigned to a housing unit or sleeping room. Allow JDCs to supplement the mental health screening instrument used to conduct the statutorily mandated screenings with additional questions or observations. Allow the facility to establish the manner by which the identity of individuals making entries into the daily log will be recorded. Restrict a resident's ability to assist in support functions to those tasks that are part of the established, structured program. Modify the required staffing ratios from one-to-10 to one-to-18 during resident waking hours and direct JDCs to develop, implement, and document a staffing plan providing for adequate staffing and video monitoring, where applicable. Strike the requirement that a resident's paid or unpaid work assignments accord with the resident's individual service plan.

Mandate that first aid kits be maintained in facility vehicles used to transport residents. Expand the list of entities a staff member may contact to respond to a medication incident to include a hospital. Explicitly exclude from the definition of medication incident a JDC's failure to administer medication due to repeated unsuccessful attempts to obtain the medication.

Explicitly establish the parameters that must be addressed in written procedures regarding cooling-off periods related to communication, staff monitoring, and documentation. Require the facility administrator to collect information specifically on the use of room restriction and cooling-off periods and to review the information annually to inform the facility's practices. Remove the JDC's duty to document the rationale for failing to complete the disciplinary report within the required 12 hours, or the appeal within the required 24 hours, if the delay results from the resident's scheduled sleeping hours. Remove the facility's duty to notify the resident in writing of the results of a disciplinary appeal, instead allowing the resident and staff to certify in writing that the resident was informed of the appeal results. Strike the provision that makes the duty to place a disciplinary report in the resident's case record contingent upon a guilty outcome in a disciplinary proceeding. Expand the information that must be addressed in written procedures governing room restriction to include its consequences, factors to consider before restricting a resident, circumstances under which a resident should be debriefed, and the conditions that warrant consultation with a mental health professional and expanded monitoring for restricted residents exhibiting self-injurious behavior. Increase the frequency of required room checks during room restriction from 30-minute intervals to 15-minute intervals. Clarify that the type of daily exercise that JDCs must afford restricted residents is large muscle exercise and allow for exceptions only if approved by the facility administrator or the facility administrator's designee. Require the facility administrator or the facility administrator's designee to provide written approval, including a rationale for why the continued room restriction is necessary, for any room restriction beyond 24 hours. Require a qualified mental health professional (QMHP) or qualified medical professional to conduct an assessment of a resident's mental health and medical status if the room restriction is anticipated to exceed 72 hours. The assessment must occur within the initial 72-hour room restriction period and on a daily basis following the 72-hour period until the resident is released from restriction. Expand the individuals authorized to extend room restriction beyond five days to include QMHPs, in addition to medical providers. Direct the facility administrator, as part of the facility administrator's daily personal contact with each restricted resident, to assess and document whether nondisciplinary-restricted residents are prepared to return to general population and whether any restricted resident requires a mental health evaluation. Provide that residents placed in room restriction may not be housed more than one to a room. Prohibit JDCs from restricting legally required educational programming or special education services during disciplinary room restriction. Remove the facility administrator's absolute bar on restricting reading and writing and mandate that the facility administrator provide opportunities for these activities according to the restricted resident's safety and security needs. Impose a number of restrictions on the use of spit guards in juvenile detention centers. At original publication, this form reflected the board's May 6, 2019, decision to prohibit staff from using spit guards on residents for any period. The board reconsidered and overturned this decision on March 11, 2020, and amendments to the regulation will allow JDC staff to use spit guards on residents but limit the types of spit guards that may be used and the manner in which they may be applied. Impose additional restrictions on the purposes for which mechanical restraints and the mechanical restraint chair may be used. Impose other restrictions and controls on the use of mechanical restraints, protective devices, and restraint chairs, including, for example, limiting the duration of use, requiring certain medical staff to be notified at various stages of the process, imposing various additional documentation requirements, requiring staff to film use of the chair, requiring DJJ monitoring visits for each restraint chair use, and requiring annual reporting to and review by the board. Specify that JDC staff may secure residents to hospital beds or wheelchairs if in outside medical settings and with certain written approval. Allow JDCs to have a system of accountability in place rather than a written record of routine and emergency restraint equipment distribution. Clarify that staff must first take appropriate action to stabilize the threat or harm when a mechanically restrained resident exhibits self-injurious behavior, before consulting with a mental health professional.

Replace the board with the director as the entity authorized to certify JDC post-dispositional programs and remove the requirement that this approval be based on the facility's compliance with the postdispositional regulatory provisions.

To make the regulation easier to navigate, the department is recommending rearranging a number of the personnel-related provisions addressing background checks, orientation, and training for employees and certain contractors and volunteers in JDCs. This necessitates the repeal of an entire article on volunteers and interns and the creation of several new provisions in another article to incorporate these repealed provisions.

Issues: Many of the amendments proposed in this regulatory action are expected to be advantageous to the public. As a result of the proposed additional monitoring and documentation requirements for residents placed in room restriction and on cooling-off periods, resident safety and facility security will be enhanced. JDCs will be equipped with additional information to determine the effectiveness and benefits of their behavior management programs and intervention techniques. Safety will be enhanced among JDC staff and residents due to modified staff to resident ratios, compliance with the PREA mandates, and expanded smoking prohibitions.

Similarly, additional controls placed on the use of mechanical restraints, protective devices, and the mechanical restraint chair will help to ensure that residents who are mechanically restrained due to behavior that threatens themselves or others or impedes critical facility operations will be restrained in a manner that ensures their safety.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to: 1) adopt additional safeguards for the use of mechanical restraints and mechanical restraint chairs and new requirements for spit guards, 2) adopt additional safeguards for room confinement, 3) incorporate in the regulation staffing ratios of the federal 2003 Prison Rape Elimination Act, 4) reduce the number of showers or bathtubs required for residents, 5) exclude certain types of medication incidents from documentation requirements, 6) incorporate current guidance on transportation of juveniles in detention into the regulation, 7) require that a first-aid kit be maintained in facility and in transport vehicles, 8) clarify that facilities serving residents under custody of separate entities have contracts in writing and that this be communicated to the Department of Juvenile Justice (DJJ), and 9) streamline many existing requirements and clarify regulatory language.

Background. This regulation establishes the minimum standards with which staff in secure juvenile detention centers must comply. These facilities are operated by local governments or groups thereof (commissions), but are subject to certification by the board. The primary purpose of the regulation is to ensure safety and security within these facilities. The regulation addresses personnel and staffing requirements, physical environment, facility safety and security, residents' rights, program operations, health care, and behavior management for juvenile detention centers operating pre-dispositional programs solely or both pre-dispositional and post-dispositional programs.

This regulatory action includes comprehensive amendments. The proposed amendments are the result of a review of this chapter conducted by DJJ staff, representatives from the Virginia Juvenile Detention Association, various state agencies, and several juvenile justice advocates.

Estimated Benefits and Costs. This action contains proposals for numerous changes. Some of the changes are intended to limit the use of various types of restraints; many are intended to eliminate requirements that the Board either believes are impractical or that impose small but undue burdens on regulated facilities; remaining changes would improve the clarity of the language. The changes that appear to be substantive are discussed.

Mechanical restraints and chairs. The proposal amends the language regarding the use of mechanical restraints1 and mechanical restraint chairs,2 and adds new language allowing the use of spit guards3 so long as certain precautions are taken. According to DJJ, the use of mechanical restraints, and more specifically, the mechanical restraint chair in secure juvenile facilities has generated significant controversy in recent years. When the proper approvals, restrictions, and monitoring controls are not in place or when staff utilize these devices negligently, they can be dangerous to residents in secure facilities. In addition, this regulation currently is silent with respect to rules governing the use of spit guards used to curtail spitting and biting, as well as other protective devices. The current regulation imposes few restrictions on the use of mechanical restraints and the restraint chair.

The proposal places additional restrictions on the purposes for which mechanical restraints and the mechanical restraint chair may be used, and imposes other restrictions and controls on the use of mechanical restraints and restraint chairs, including, for example: training, limiting the duration of use, requiring certain medical staff to be notified at various stages of the process, imposing various additional documentation requirements, requiring staff to film use of the chair, requiring DJJ monitoring visits for each restraint chair use, and requiring annual reporting to and review by the board. DJJ reports that these provisions are consistent with the National Commission on Correctional Health Care Standards for Health Services in Juvenile Detention and Confinement Facilities.

The proposed amendments are expected to impose additional administrative costs for those detention centers that opt to utilize the mechanical restraints/restraint chair and do not have the video equipment, sufficient staff, trained staff, or adequate electronic or other storage space to meet the new requirements. DJJ indicates that there are 12 or 13 facilities that currently utilize or have the mechanical restraint chair. An estimate of the cost cannot be provided at this time, as it is not clear which facilities would continue utilizing the mechanical restraint chair and the extent to what additional equipment or staff would be necessary. These changes however would also help ensure their proper use, enable the department to assess whether the facility has complied with the new regulatory requirements, and that residents who are restrained due to behavior that threatens themselves or others or impedes critical facility operations are restrained in a manner that ensures their safety.

The proposal also adds new language regarding the use of spit guards to control the transmission of communicable diseases and prevent other injuries to staff and residents. The proposed language limits the types of spit guards that may be used and the manner in which they may be applied. Staff must be trained and documentation must be maintained whenever spit guards are utilized. Compliance with the new requirements when utilizing spit guards would introduce additional costs associated with training and documentation of procedures followed and should help ensure their proper use. To the degree that the effectiveness of spit guards improves with their use as prescribed leads to a decrease in the spread of communicable diseases, a benefit would be conferred upon the individuals who would otherwise contract the disease and any costs that may result.

Room confinement. The Board proposes to introduce additional restrictions for room confinement to ensure adequate monitoring protocols are in place, restriction periods are approved through proper channels, and medical and mental health professionals are assessing the impact on residents who are on room restriction for extended periods.4 The board proposes relevant amendments that include increasing the frequency of required room checks during room restriction from 30-minute intervals to 15-minute intervals, requiring the facility administrator or his designee to provide written approval for any room restriction beyond 24 hours, and requiring a qualified medical professional to conduct an assessment of a resident's mental health and medical status if the room restriction is anticipated to exceed 72 hours. According to DJJ, these changes reflect the national trend towards more monitoring protocols and additional opportunities for resident/staff interaction.

The enhanced mental and medical health assessment requirements for residents restricted in excess of 72 hours constitutes a mandate for detention centers and Community Service Boards (CSBs) that would create additional administrative costs for CSBs responsible for conducting mental health assessments and addressing residents' mental health needs. DJJ notes that very few detention centers have mental health clinicians on staff and must rely primarily on local CSBs to provide these services. To the extent such services are not subsidized by the Commonwealth, they must be funded by localities.

These new, more specific directives may create additional monitoring, data-gathering and analysis responsibilities for staff in detention centers, which may require additional positions or an update to existing systems or software and may result in an increased workload for existing staff. DJJ indicates that vast majority of facilities utilize room confinement. While these changes are anticipated to impose significant additional administrative responsibilities on detention center staff that may necessitate hiring additional personnel, the changes would help ensure that room restriction is administered in a manner that is safe for both residents and staff and produces the most positive outcome for residents.

Federal Prison Rape Elimination Act.

In 2003, Congress enacted the Prison Rape Elimination Act (PREA) to "provide for the analysis of the incidence and effects of prison rape in federal, state, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape." The act created a commission charged with developing standards for the elimination of prison rape. The final rule for these standards became effective in 2012; however, juvenile correctional facilities had until October 2017 to comply with the standards related to staffing requirements and staffing ratios. According to DJJ the staffing ratios in the PREA provide a safe and reasonable benchmark for ensuring the safety of residents.

The proposal would modify the direct care employee to resident staffing ratio from 1:10 to 1:8 during waking hours on the premises, or during participation in off-campus, facility sponsored activities, in order to comply with the standards applicable to juvenile residential facilities under PREA. DJJ reports that many detention centers have adopted written procedures or are employing practices that align with PREA's mandates. In the event that a specific detention center does not meet the proposed ratio currently, this proposed change may result in additional personnel costs. If additional personnel are needed, such additional costs would be borne by the locality or commission responsible for the facility's operation. On the other hand, an increased staffing ratio would help ensure that residents are accounted for and properly monitored, which may reduce the likelihood of injuries or other incidents.

Ratio of showers or bathtubs to residents.

The proposal amends the ratio of showers or bathtubs to residents in new facilities that may be constructed to require one shower or tub for every five, rather than four, residents. This proposal would give localities seeking to construct new detention centers or renovate existing facilities additional space for programming and may decrease construction or facility operational costs. According to DJJ, two detention centers are currently in the planning phase for a new or renovated facility.

Medication incidents. The proposal changes the definition of medication incidents to exclude a detention center's unsuccessful attempts to obtain medication. This change would reduce some of the administrative burden associated with documentation of these specific incidents.

Information to external parties. Detention centers are responsible for transporting their residents to local medical and dental appointments and local psychological and psychiatric evaluations but are not required to transport them to appointments outside Virginia's geographical boundaries or more than 25 miles, one way, from the facility. The proposal incorporates requirements from the Guidelines for Transporting Juveniles in Detention, which were issued by the Board in 2004 to establish administrative and safety guidelines local detention center staff must follow when transporting or allowing others to transport residents outside the facility. As these changes are part of existing guidelines that have been incorporated by reference into the regulation and have been in place for detention centers since 2004, this proposed amendment would have no additional impact on residents, staff, or facility operations.

First-aid kits. The proposal adds language requiring that a first-aid kit be maintained within the facility and in facility vehicles used to transport residents. This amendment is intended to help staff of facilities respond to minor resident injuries while on premises and in transporting residents off-site. According to DJJ, most facilities have a fleet of vehicles for these purposes, and many already maintain first aid kits in their vehicles to comply with local ordinances. Thus, facilities are not expected to incur significant additional expenses because most already meet this requirement.

Residents under custody of separate entities.5

According to DJJ, at least one juvenile detention center currently contracts with the federal government to house residents under the federal government's custody. This program operates separately from the facility's pre-dispositional and post-dispositional programs. DJJ recently identified a gap in its certification authority that prevented the certification unit from inspecting and reviewing files of and interviewing residents under the federal government's custody. This gap had prevented DJJ from verifying such facilities' compliance with its regulations and from ensuring the safety of the program participants. DJJ previously addressed this issue in 2019 through a fast-track regulatory action6 requiring these contracts to include provisions that bind the program to the department's certification regulations and that give the department access to residents within the program. This proposal includes additional amendments to the regulatory requirements adopted as part of the previous fast-track change. These proposed changes would clarify that such contracts must be in writing and communicated to the department, which would not introduce any additional significant costs.

Businesses and Other Entities Affected. The Board currently regulates 24 detention centers operated by local governments or local commissions.7 The average daily population statewide was 521 in fiscal year 2019 and 452 in fiscal year 2020. The proposed changes to the regulatory provisions would affect these facilities as well as their staff and residents.

As discussed, detention centers that have been utilizing or opt to use mechanical restraints, mechanical restraint chair, spit guards, and room confinement would be most significantly affected due to added costs in terms of training, staffing, and equipment to comply with the proposed requirements. DJJ indicates that there are 12 or 13 facilities that currently utilize or have a mechanical restraint chair and that vast majority of facilities utilize room confinement. An adverse economic impact8 is indicated on those affected facilities. The proposals for reduced shower or bathtub ratio and excluding certain medication incidents from reporting should reduce compliance costs. The remaining changes do not appear to have a significant economic impact.

Local CSBs may also be affected due to the enhanced mental and medical health assessment requirements for residents placed in room confinement. No data are current available to assess any potential costs that may result.

Small Businesses9 Affected:

The proposed regulation may indirectly affect small businesses only insofar as a small business provides a program or service subject to this regulation. Some of these businesses may meet the definition of a small business and may be publicly or privately operated. DJJ does not have sufficient information to determine the number of businesses that contract with local detention centers, the number of such businesses that meet the definition of small businesses, or the extent to which such businesses would be impacted by the proposed amendments. Also, none of the proposed changes appears to have a direct economic impact on businesses. Thus, no adverse impact on small business is indicated.

Localities10 Affected.11

As stated, the 24 juvenile detention centers are operated by local governments or local commissions. These facilities are located in City of Charlottesville, City of Chesapeake, Chesterfield County, Prince George County, County of Fairfax, Henrico County, City of Bristol/Highland County, Powhatan County, Leesburg/Loudoun County, City of Lynchburg, James City County, City of Newport News, Christiansburg/Montgomery County, City of Norfolk, City of Alexandria, City of Winchester, Prince Edward County, Prince William County, City of Fredericksburg, City of Richmond, City of Roanoke, Staunton County, City of Virginia Beach, and City of Danville.

To the extent the proposed additional training, monitoring, and documentation requirements are applicable, they are anticipated to result in additional costs for local juvenile detention centers, which would be borne by the locality or commissions responsible for their operation. The proposed amendments regarding mechanical restraints, restraint chairs, spit guards, and room confinement would impact only those detention centers that utilize them. DJJ indicates that there are 12 or 13 facilities that currently utilize or have a mechanical restraint chair and that vast majority of facilities utilize room confinement. There are two detention centers currently in the planning phase for a new or renovated facility and may benefit from the reduced shower or bathtub ratio. The juvenile detention center located in Staunton County currently contracts with the federal government to house residents under the federal government's custody, which would be particularly affected by the changes discussed under the heading "Residents under custody of separate entities." Consequently, an adverse economic impact on localities is indicated.

Projected Impact on Employment. The proposed additional training, monitoring, and documentation requirements would add to the demand for labor by the affected facilities. Consequently, there may be a moderate increase in employment.

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

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1"Mechanical restraint" is defined as an approved mechanical device that involuntarily restricts the freedom of movement or voluntary functioning of a limb or portion of an individual's body as a means of controlling his physical activities when the individual being restricted does not have the ability to remove the device. For purposes of this chapter, mechanical restraints shall include flex cuffs, handcuffs, leather restraints, leg irons, restraining belts and straps, waist chains, and anti-mutilation gloves. For purposes of this chapter, mechanical restraints shall not include mechanical restraint chairs.

2"Mechanical restraint chair" is defined as an approved chair used to restrict the freedom of movement or voluntary functioning of a portion of an individual's body as a means of controlling his physical activities while the individual is seated and either stationary or being transported.

3"Spit guard" is defined as a device designed for the purpose of preventing the spread of communicable diseases as a result of spitting or biting.

4DJJ notes that Senate Bill 215 introduced during the 2016 Virginia General Assembly session would have required promulgation of regulations that specified the parameters for imposing room confinement in juvenile correctional centers and juvenile detention centers. Although the legislation ultimately failed, it prompted DJJ to make room confinement a focal point for examination during the comprehensive review of this chapter.

5DJJ notes that during the 2020 legislative session the General Assembly enacted legislation (2020 Acts of Assembly, Chapter 599) directing the Board, in collaboration with the Department of Behavioral Health and Developmental Services to establish regulations governing the housing of such youth who are detained in a juvenile correctional facility pursuant to contracts with the federal government. In order to carry out this directive, DJJ has convened a committee of representatives from juvenile detention centers, DJJ staff, the Office of Refugee Resettlement, and the Department of Behavioral Health and Developmental Services. DJJ anticipates filing a separate regulatory action once this committee completes its work.

6https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8371

7Data source: DJJ

8Adverse 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.

9Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

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

Agency Response to the Economic Impact Analysis: The responsible Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's economic impact analysis and are in agreement with the analysis.

Summary:

The proposed amendments (i) adopt additional safeguards for the use of mechanical restraints and mechanical restraint chairs and new requirements for spit guards,(ii) adopt additional safeguards for room confinement, (iii) incorporate staffing ratios of the federal 2003 Prison Rape Elimination Act, (iv) reduce the number of showers or bathtubs required for residents, (v) exclude certain types of medication incidents from documentation requirements, (vi) incorporate current guidance on transportation of juveniles in detention into the regulation, (vii) require that a first-aid kit be maintained in facility and in transport vehicles, (viii) clarify that facilities serving residents under custody of separate entities have contracts in writing and that this be communicated to the Department of Juvenile Justice, and (ix) streamline existing requirements and clarify regulatory language.

6VAC35-101-10. Definitions.

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

"Annual" means within 13 months of the previous event or occurrence.

"Aversive stimuli" means physical forces, such as sound, electricity, heat, cold, light, water, or noise, or substances, such as hot pepper, pepper sauce, or pepper spray, measurable in duration and intensity that, when applied to a resident, are noxious or painful to the resident.

"Behavior management" means those the principles and methods employed to help a resident achieve positive behavior and to address and correct a resident's inappropriate behavior in a constructive and safe manner in accordance with written procedures governing program expectations and resident and employee staff safety and security.

"Board" means the Board of Juvenile Justice.

"Case record" or "record" means written or electronic information relating to one regarding a resident and the resident's family, if applicable. This information includes, but is not limited to, social, medical, psychiatric, and psychological records; reports; demographic information; agreements; all correspondence relating to care of the resident; individual service plans with periodic revisions; aftercare plans and discharge release summary; and any other information related to the resident.

"Contraband" means any an item possessed by or accessible to a resident or found within a detention center or on its premises that (i) that is prohibited by statute, regulation, or the facility's procedure, (ii) that is not acquired through approved channels or in prescribed amounts, or (iii) that may jeopardize the safety and security of the detention center or individual residents.

"Contractor" means an individual who has entered into a legal agreement with a secure juvenile detention center to provide services directly to a resident on a regular basis.

"Cooling-off period" means a temporary period in which a resident either is placed or voluntarily places himself in a room or area for a maximum period of 60 minutes to calm the resident or deescalate a volatile situation.

"Department" means the Department of Juvenile Justice.

"Detention center" or "secure juvenile detention center" means a local, regional, or state, publicly or privately operated, secure custody facility that houses individuals who are ordered to be detained pursuant to the Code of Virginia. This term does not include juvenile correctional centers.

"Direct care staff" means the staff whose primary job responsibilities are (i) maintaining the safety, care, and well-being of residents, (ii) implementing the structured program of care and the behavior management program, and (iii) maintaining the security of the facility.

"Direct supervision" means the act of working with residents while not in the presence of direct care staff. Staff members who provide direct supervision are responsible for maintaining the safety, care, and well-being of the residents in addition to providing services or performing the primary responsibilities of that position.

"Director" means the Director director of the Department of Juvenile Justice department.

"Disciplinary room restriction" means the placement of a resident in room restriction as a consequence after application of the disciplinary process, as provided for in 6VAC35-101-1080 for a violation of a rule of the facility.

"Emergency" means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action, such as a fire, chemical release, loss of utilities, natural disaster, taking of hostages hostage situation, major disturbances disturbance, escape, and or bomb threats threat. Emergency does not include regularly scheduled employee time off or other situations that reasonably could be reasonably anticipated.

"Facility administrator" means the individual who has the responsibility is responsible for the on-site management and operation of the detention center on a regular basis.

"Full search" means the removal of some or all of a resident's clothing and a visual inspection of all body parts, including vaginal and anal cavity areas, in order to determine whether contraband is present or to inspect for physical injuries.

"Health care record" means the complete record of medical screening and examination information and ongoing records of medical and ancillary service delivery including, but not limited to, all findings, diagnoses, treatments, dispositions, and prescriptions and their administration.

"Health care services" means those actions, preventative and therapeutic, actions taken for the physical and mental well-being of a resident. Health care services include medical, dental, orthodontic, mental health, family planning, obstetrical, gynecological, health education, and other ancillary services.

"Health trained personnel" means an individual who is trained by a licensed health care provider to perform specific duties such as administering health care screenings, reviewing screening forms for necessary follow-up care, preparing residents and records for sick call, responding to resident medical concerns, and assisting in the implementation of certain medical orders.

"Human research" means a systematic investigation, including research development, testing, and evaluation utilizing human subjects that is designed to develop or contribute to generalized knowledge. Human research shall not be deemed to include research exempt from federal research regulation pursuant to 45 CFR 46.101(b).

"Individual service plan" or "service plan" means a written plan of action developed, revised as necessary, and reviewed at specified intervals to meet the needs of a resident. The individual service plan specifies (i) measurable short-term and long-term goals; (ii) the objectives, strategies, and time frames for reaching the goals; and (iii) the individuals responsible for carrying out the plan.

"Legal mail" means a written communication that is sent to or received from a designated class of correspondents, as defined in written procedures, which shall include any court, legal counsel, or administrator of the grievance system, the governing authority, the department, or the regulatory authority.

"Legal representative" means (i) a court-appointed or retained attorney or a paralegal, investigator, or other representative from that attorney's office; or (ii) an attorney visiting for the purpose of a consultation if requested by the resident or the resident's parent if the resident is a minor.

"Living unit" means the space in a detention center in which a particular group of residents resides that contains sleeping areas rooms, bath and toilet facilities, and a living room or its equivalent for use by the residents. Depending upon its design, a building may contain one living unit or several separate living units.

"Mechanical restraint" means an approved mechanical device that involuntarily restricts the freedom of movement or voluntary functioning of a limb or portion of an individual's body as a means of controlling the individual's physical activities when the individual being restricted does not have the ability to remove the device. For purposes of this chapter, mechanical restraints shall include flex cuffs, handcuffs, leather restraints, leg irons, restraining belts and straps, waist chains, and anti-mutilation gloves. For purposes of this chapter, mechanical restraints shall not include mechanical restraint chairs.

"Mechanical restraint chair" means an approved chair used to restrict the freedom of movement or voluntary functioning of a portion of an individual's body as a means of controlling the individual's physical activities while the individual is seated and either stationary or being transported.

"Medication incident" means any one of the following errors made in administering a medication to a resident: (i) a resident is given incorrect medication, (ii) medication is administered to the incorrect resident, (iii) an incorrect dosage is administered, (iv) medication is administered at the wrong time or not at all, or (v) the medication is administered through an improper method. For purposes of this regulation, a medication incident does not include (i) a resident's refusal of appropriately offered medication; or (ii) a facility's failure to administer medication due to repeated, unsuccessful attempts to obtain such medication.

"Mental health clinician" means a person with a master's degree or higher in psychology, counseling, or social work with an emphasis on mental health treatment who is employed in the practice of treating mental disorders.

"On duty" means the period of time during which an employee is responsible for the direct care or direct supervision of one or more residents or the performance of the position's duties.

"Parent" or "legal guardian" means (i) a biological or adoptive parent who has legal custody of a resident, including either parent if custody is shared under a joint decree or agreement; (ii) a biological or adoptive parent with whom a resident regularly resides; (iii) a person judicially appointed as a legal guardian of a resident; or (iv) a person who exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption, or otherwise by operation of law.

"Physical restraint" means the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

"Postdispositional detention program" means a program in a detention center serving residents who are subject to a sentence or dispositional order for placement in the detention center for a period exceeding 30 days pursuant to subdivision A 16 of § 16.1-278.8 and subsection B of § 16.1.284.1 of the Code of Virginia.

"Premises" means the tracts of land on which within the secure perimeter where any part of a detention center is located and any buildings on such tracts of land.

"Protective device" means an approved device placed on a portion of a resident's body to protect the resident or staff from injury.

"Qualified mental health professional" means a person who by education and experience is professionally qualified and registered by the Board of Counseling to provide collaborative mental health services for adults or children.

"Regulatory authority" means the board or the department as if designated by the board.

"Resident" means an individual who is confined in a detention center.

"Rest day" means a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to supervision in a detention center.

"Room restriction" means the involuntary restriction of a resident to a sleeping room, except during normal sleeping hours, for the purpose of (i) ensuring the safety of the resident, staff, or others; (ii) ensuring the security of the facility; or (iii) holding the resident accountable for a violation of a rule of the facility. For purposes of this regulation, room restriction shall include disciplinary room restriction but shall not include any cooling-off period.

"Rules of conduct" means a listing list of a detention center's rules or regulations that is maintained to inform residents and others of the behavioral expectations of the behavior management program, about behaviors that are not permitted, and about the sanctions that may be applied when impermissible behaviors occur.

"Spit guard" means a device designed for the purpose of preventing the spread of communicable diseases as a result of spitting or biting.

"Volunteer or intern" means an individual or group who voluntarily provides goods and services without competitive compensation and who is under the direction and authority of the detention center.

"Vulnerable population" means a resident or group of residents who has been determined by designated detention center staff as reasonably likely to be exposed to the possibility of being attacked or harmed, either physically or emotionally.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or in electronic form.

6VAC35-101-20. Applicability.

Parts I (6VAC35-101-10 et seq.) though VIII (6VAC35-101-1070 et seq.) of this chapter apply to juvenile detention centers for both that operate predispositional and or postdispositional programs unless specifically excluded. Part IX (6VAC35-101-1160 et seq.) of this chapter only applies solely to detention centers operating postdispositional detention programs for residents sentenced for a period exceeding 30 days pursuant to subdivision A 16 of § 16.1-278.8 and subsection B of § 16.1.284.1 of the Code of Virginia.

6VAC35-101-30. Previous regulations terminated. (Repealed.)

This chapter replaces the Standards for the Interim Regulation of Children's Residential Facilities (6VAC 35-51) and the Standards for Juvenile Residential Facilities (6VAC35-140) for the regulation of all detention centers as defined herein. The Standards for the Interim Regulation of Children's Residential Facilities and the Standards for Juvenile Residential Facilities remain in effect for juvenile correctional centers and group homes, regulated by the board, until such time as the board adopts new regulations related thereto.

6VAC35-101-40. Certification.

A. The detention center shall comply maintain a current certification demonstrating compliance with the provisions of the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (6VAC35-20). The detention center shall:

1. Demonstrate compliance with this chapter, other applicable regulations issued by the board, and applicable statutes and regulations; and

2. Implement approved plans of action to correct findings of noncompliance; and

3. Ensure no noncompliances may pose any immediate and direct danger to residents.

B. Documentation necessary to demonstrate compliance with this chapter shall be maintained for a minimum of three years.

C. The current certificate shall be posted at all times in a place conspicuous to the public.

6VAC35-101-45. Contracts between juvenile detention centers and separate entities.

A. When a detention center enters into an agreement with a separate entity for the purpose of detaining a juvenile in the separate entity's custody, the agreement shall provide that the program housing the juvenile shall be subject to 6VAC35-20, Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities. satisfy the following requirements:

1. For purposes of demonstrating compliance with this chapter, the agreement shall allow the department the same access to the detained juvenile and to the records and reports for the detained juvenile as is authorized currently under § 16.1-309.10 of the Code of Virginia and 6VAC35-20 for all other residents in the detention center.

2. Nothing in this section shall prevent the detention center and the separate entity from agreeing that services and treatment shall exceed the requirements of this chapter for those youth in the custody of the separate entity.

1. The agreement shall be in writing;

2. The agreement shall require the program housing the juvenile to be subject to 6VAC35-20, Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities; and

3. For purposes of demonstrating compliance with this chapter, the agreement shall allow the department the same access to the detained juvenile and to the records and reports for the detained juvenile as is authorized currently under § 16.1-309.10 of the Code of Virginia and 6VAC35-20 for all other residents in the detention center.

B. Upon entering into the agreement, the detention center shall (i) notify the department immediately and (ii) provide a copy of the written agreement to the department.

C. Nothing in this section shall prevent the detention center and the separate entity from agreeing that services and treatment shall exceed the requirements of this chapter for those youth in the custody of the separate entity.

6VAC35-101-50. Relationship to the regulatory authority.

A. All reports and information as the regulatory authority may require to establish compliance with this chapter and other applicable regulations and statutes shall be submitted to or made available to the regulatory authority audit team leader.

B. A written report of any contemplated changes in operation that would affect the terms of the certificate or the continuing eligibility for certification shall be submitted to the regulatory authority. A change may not be implemented prior to approval by the regulatory authority.

6VAC35-101-60. Relationship with the department.

A. The director or the director's designee shall be notified within five working days of any significant change in administrative structure or newly hired facility administrator.

B. Any of the following that may be related to the health, safety, or human rights of residents shall be reported to the director or the director's designee within 10 days: (i) lawsuits against the detention center or its governing authority and (ii) settlements with the detention center or its governing authority.

6VAC35-101-70. Variances and waivers.

A. Board action may be requested by the A facility administrator may request board action to relieve a detention center from having to meet or develop a plan of action for the requirements of a specific section or subsection of this regulation chapter, provided the section or subsection is a noncritical regulatory requirement. The variance request may be granted either permanently or for a determined period of time, as provided in the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (6VAC35-20).

B. Any such A variance may not be implemented prior to approval of the board.

C. When the facility administrator has submitted a variance request to the director or the director's designee concerning a noncritical regulatory requirement and board action has been requested formally by the director or the director's designee, the director may, but is not required to, grant a waiver temporarily excusing the facility from meeting the requirements of a specific section or subsection of this chapter. The waiver shall be subject to the requirements in 6VAC35-20-93.

6VAC35-101-80. Serious incident reports.

A. The following events shall be reported, in accordance with department procedures, within 24 hours to (i) the applicable court service unit; (ii) either the parent or legal guardian, as appropriate and applicable; and (iii) the director or the director's designee:

1. Any A serious incident, accident, illness, or injury to the resident;

2. The death of a resident;

3. Any A suspected case of child abuse or neglect at the detention center, on a detention center-sponsored event or excursion, or involving detention center staff as provided in 6VAC35-101-90 (suspected child abuse and neglect);

4. Any A disaster, fire, emergency, or other condition that may jeopardize the health, safety, and welfare of residents; and

5. Any A resident's absence from the detention center without permission.

B. The detention center shall notify the director or the director's designee within 24 hours of any events detailed in subsection A of this section and all any other situations event required by the regulatory authority of which the facility has been notified.

C. If an incident involving the death of a resident occurs at the facility, the facility shall notify the parents or legal guardians, as appropriate and applicable, of all residents in the facility provided such notice does not violate any confidentiality requirements or jeopardize any law-enforcement or child protective services investigation or the prosecution of any criminal cases related to the incident.

D. The facility shall (i) prepare and maintain a written report of the events listed in subsections A and B of this section and (ii) submit a copy of the written report to the director or the director's designee. The report shall contain the following information:

1. The date and time the incident occurred;

2. A brief description of the incident;

3. The action taken as a result of the incident;

4. The name of the person who completed the report;

5. The name or identifying information of the person who made the report to the applicable court service unit, the director, and to either the parent or legal guardian, as appropriate and applicable, and the date and time on which the report was made; and

6. The name or identifying information of the person to whom the report was made, including any law-enforcement or child protective service personnel.

E. The resident's record shall contain a written reference (i) that an incident occurred and (ii) of all applicable reporting.

F. In addition to the requirements of this section, any serious incident incidents involving an allegation of child abuse or neglect at the detention center, at a detention center-sponsored event, or involving detention center staff shall be governed by 6VAC35-101-90 (suspected child abuse or neglect).

6VAC35-101-90. Suspected child abuse or neglect.

A. When there is reason to suspect that a resident is an abused or neglected child, the matter shall be reported immediately to the local department of social services or to the state Department of Social Services toll-free child abuse and neglect hotline as required by § 63.2-1509 of the Code of Virginia and in accordance with written procedures.

B. Written procedures shall be distributed to all staff members and shall at a minimum provide for:

1. Handling accusations against staff;

2. Reporting and documenting suspected cases of child abuse and neglect;

3. Cooperating during any an investigation; and

4. Measures to be taken to ensure the safety of the residents and the staff.

C. Any case Cases of suspected child abuse or neglect against a resident shall be reported and documented as required in 6VAC35-101-80 (serious incident reports). The resident's record shall contain a written reference that a report was made.

6VAC35-101-95. Reporting criminal activity.

A. Written procedures shall require staff to report all known criminal activity suspected to have been committed by residents or staff to the facility administrator, including but not limited to any physical abuse, sexual abuse, or sexual harassment and the offenses listed in §§ 53.1-203 (felonies by prisoners); 18.2-55 (bodily injuries caused by prisoners); 18.2-48.1 (abduction by prisoners); 18.2-64.1 (carnal knowledge of certain minors); 18.2-64.2 (carnal knowledge of an inmate, parolee, probationer, detainee, or pretrial or posttrial offender); and 18.2-477.1 (escapes from juvenile facility) of the Code of Virginia.

B. The facility administrator, in accordance with written procedures, shall notify the appropriate persons or agencies, including law enforcement, child protective services if applicable and appropriate, and the department, if applicable and appropriate, of suspected criminal violations by residents or staff. Suspected criminal violations relating to the health and safety or human rights of residents shall be reported to the director or designee.

C. The detention center shall assist and cooperate with the investigation of any such complaints and allegations as necessary, subject to restrictions in federal or state law.

6VAC35-101-100. Grievance procedure.

A. Written procedure shall provide require that residents are oriented to and have continuing access to a grievance procedure that provides for:

1. Resident participation in the grievance process with assistance from staff upon request;

2. Investigation of the grievance by an impartial, objective employee who is not the subject of the grievance;

3. Documented, timely responses to all grievances with the reasons for the decision, in accordance with written procedures;

4. At least one level of appeal;

5. Administrative review of grievances;

6. Protection of residents from retaliation or threat of retaliation for filing a grievance; and

7. Hearing of an emergency grievance within eight hours.

B. Each resident Residents shall be oriented to the grievance procedure in an age or and developmentally appropriate manner.

C. The grievance procedure shall be (i) written in clear and simple language and (ii) posted in an area easily accessible to residents and their parents and legal guardians.

D. Staff shall assist and work cooperatively with other employees in facilitating the grievance process.

6VAC35-101-110. Responsibilities of the governing authority.

A. The detention center's governing body or authority (governing authority) shall be clearly identified in writing.

B. The governing authority shall appoint a facility administrator to whom it delegates the authority and responsibility for the on-site administrative direction of the detention center.

C. A written decision-making plan shall be developed and implemented and shall provide for a staff person with the qualifications of a facility administrator to be designated to assume the temporary responsibility for the operation of the detention center in the absence of the facility administrator. Each plan shall include an organizational chart.

D. Written procedures shall be developed and implemented to monitor and evaluate service quality and effectiveness on a systematic and on-going basis. Improvements shall be implemented when indicated.

6VAC35-101-130. Participation of residents in human research.

A. Written procedures approved by its governing authority shall govern the review, approval, and monitoring of human research. Human research means any systematic investigation, involving a resident or a resident's parents, guardians, or family members as the subject of the research, which may expose the subject to physical or psychological injury and which departs from the application of established and accepted therapeutic methods appropriate to meet the individual's needs. Human research does not include statistical analysis of information readily available on the subject that does not contain any identifying information or research exempted by federal research regulations pursuant to 45 CFR 46.101(b). Residents shall not be used as subjects of human research except as provided in 6VAC35-170 (Regulation Governing Juvenile Data Requests and Research Involving Human Subjects) and in accordance with Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia. The testing of medicines or drugs for experimentation or research is prohibited.

B. Information on residents shall be maintained as provided in 6VAC35-101-330 (maintenance of residents' records) and all records and information related to the human research shall be kept confidential in accordance with applicable laws and regulations.

C. The procedures may require periodic progress reports of any research project and a formal final report of all completed research projects. Written procedures governing the human research of residents may be implemented in the facility, provided they are consistent with 6VAC35-170 and Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia.

6VAC35-101-140. Job descriptions.

A. There shall be a written job description for each position that, at a minimum, includes the:

1. Job title or position;

2. Duties and responsibilities of the incumbent;

3. Job title or identification of the immediate supervisor; and

4. Minimum education, experience, knowledge, skills, and abilities required for entry-level performance of the job.

B. A copy of the job description shall be given to each person assigned to a position prior to before assuming that position's duties.

6VAC35-101-150. Qualifications.

A. Detention centers subject to (i) the rules and regulations of the governing authority or (ii) the rules and regulations of a local government personnel office shall develop written minimum entry-level qualifications in accordance with the rules and regulations of the supervising personnel authority. Detention centers not subject to rules and regulations of the governing authority or a local government personnel office shall follow the minimum entry-level qualifications of the Virginia Department of Human Resource Management.

B. When services or consultations are obtained on a contractual basis, they shall be provided by professionally qualified personnel.

6VAC35-101-152. Selection and duties of volunteers or interns.

A. A detention center that uses volunteers or interns shall develop and implement written procedures governing their selection and use. The procedures shall provide for the objective evaluation of persons and organizations in the community who wish to associate with the residents.

B. Volunteers and interns shall have qualifications appropriate for the services provided.

C. The responsibilities of interns and individuals who volunteer on a regular basis shall be defined clearly in writing.

D. Volunteers and interns shall be responsible neither for the duties of direct care staff nor for the direct supervision of residents.

6VAC35-101-155. Employee tuberculosis screening and follow-up.

A. On or before the employee's start date at the facility and at least annually thereafter each employee shall submit the results of a tuberculosis screening assessment that is no older than 30 days. The documentation shall indicate the screening results as to whether there is an absence of tuberculosis in a communicable form.

B. Employees shall undergo a subsequent tuberculosis screening or evaluation, as applicable, in the following circumstances:

1. The employee comes into contact with a known case of infectious tuberculosis; and or

2. The employee develops chronic respiratory symptoms of three weeks' duration.

C. Employees suspected of having tuberculosis in a communicable form shall not be permitted to return to work or have contact with staff or residents until a physician has determined that the individual does not have tuberculosis in a communicable form.

D. Any An active case of tuberculosis developed by an employee or a resident shall be reported to the local health department in accordance with the requirements of the Commonwealth of Virginia State Board of Health Regulations for Disease Reporting and Control (12VAC5-90).

E. Documentation of any the screening results shall be retained in a manner that maintains the confidentiality of information.

F. The detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis shall be performed in accordance with any the current recommendations of the Virginia Department of Health's Division of Tuberculosis Prevention and Control and the federal Department of Health and Human Services Centers for Disease Control and Prevention.

6VAC35-101-170. Employee and volunteer background checks.

A. Except as provided in subsection B of this section, all persons who (i) accept a position of employment at, (ii) volunteer on a regular basis and will be alone with a resident in the performance of their duties, or (iii) provide contractual services directly to a resident on a regular basis and will be alone with a resident in the performance of that person's duties a juvenile detention center shall undergo the following background checks in accordance with § 63.2-1726 of the Code of Virginia to ascertain whether there are criminal acts or other circumstances that would be detrimental to the safety of residents:

1. A reference check;

2. A criminal history record check;

3. Fingerprint checks with the Virginia State Police and Federal Bureau of Investigation (FBI);

4. A central registry check with Child Protective Services; and

5. A driving record check if applicable to the individual's job duties.

B. To minimize vacancy time, when the fingerprint checks required by subdivision A 3 of this section have been requested, employees may be hired, pending the results of the fingerprint checks, provided:

1. All of the other applicable components of subsection A of this section have been completed;

2. The applicant is given written notice that continued employment is contingent on the fingerprint check results required by subdivision A 3 of this section; and

3. Employees hired under this exception shall not be allowed to be alone work directly with residents and may work with residents only when under the direct supervision of staff whose background checks have been completed until such time as all the requirements of this section are completed.

C. Documentation of compliance with this section shall be retained in the individual's personnel record as provided in 6VAC35-101-310 (personnel records).

D. Written procedures shall provide for the supervision of nonemployee persons, who are not subject to the provisions of subsection A of this section who have contact with residents.

E. No juvenile detention center shall hire for employment a person who has been convicted of a barrier crime listed in § 19.2-392.02 of the Code of Virginia, subject to the exceptions permitted under § 63.2-1726 of the Code of Virginia.

6VAC35-101-175. Contractor background checks.

A. A contractor who will be alone with a resident in the performance of the contractor's duties shall undergo the following background checks in accordance with § 63.2-1726 of the Code of Virginia to ascertain whether there are criminal acts or other circumstances that would be detrimental to the safety of residents.

1. A reference check;

2. A criminal history record check;

3. Fingerprint checks with the Virginia State Police and Federal Bureau of Investigation;

4. A central registry check with Child Protective Services; and

5. A driving record check if applicable to the individual's duties.

B. Documentation of compliance with this section shall be retained in the individual's personnel record as provided in 6VAC35-101-310.

C. No juvenile detention center shall hire for contract services a contractor who meets the requirements of subsection A of this section and who has been convicted of a barrier crime listed in § 19.2-392.02 of the Code of Virginia, subject to the exceptions permitted under § 63.2-1726 of the Code of Virginia.

6VAC35-101-177. Volunteer and intern background checks.

A. A person who volunteers or interns on a regular basis and will be alone with a resident in the performance of volunteer or intern duties in a juvenile detention center shall undergo the following background checks in accordance with § 63.2-1726 of the Code of Virginia to ascertain whether there are criminal acts or other circumstances that would be detrimental to the safety of residents;

1. A reference check;

2. A criminal history record check;

3. Fingerprint checks with the Virginia State Police and Federal Bureau of Investigation (FBI);

4. A central registry check with Child Protective Services; and

5. A driving record check if applicable to the individual's duties.

B. Documentation of compliance with the background check requirements shall be maintained for each volunteer or intern for whom a background check is required. The records shall be maintained in accordance with 6VAC35-101-310.

C. A detention center that uses volunteers or interns shall have procedures for supervising volunteers or interns on whom background checks are not required or whose background checks have not been completed who have contact with residents.

D. No juvenile detention center shall allow any person to volunteer who has been convicted of any barrier crime listed in § 19.2-392.02 of the Code of Virginia, subject to the exceptions permitted under subsection B of § 63.2-1726 of the Code of Virginia.

6VAC35-101-180. Required initial orientation for employees.

A. Initial orientation shall be provided to all full-time and, part-time staff, and relief staff, and contractors who provide services to residents on a regular basis, in accordance with each position's job description.

B. Before the expiration of the individual's seventh work day at the facility, each employee shall be provided with receive a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the program;

4. The facility's organizational structure;

5. Security, population control, emergency preparedness, and evacuation procedures as provided for in accordance with 6VAC35-101-510 (emergency and evacuation procedures);

6. The practices of confidentiality;

7. The residents' rights, including the prohibited actions provided for in 6VAC35-101-650;

8. The basic requirements of and competencies necessary to perform in his positions position;

9. The facility's program philosophy and services;

10. The facility's behavior management program as provided for in 6VAC35-101-1070 (behavior management);

11. The facility's behavior intervention procedures and techniques, including the use of least restrictive interventions and physical restraint;

12. The residents' rules of conduct and responsibilities;

13. The residents' disciplinary process as provided for in 6VAC35-101-1080 (disciplinary process);

14. The residents' grievance procedures as provided for in 6VAC35-101-100 (grievance procedure);

15. Child abuse and neglect and mandatory reporting as provided for in 6VAC35-101-80 (serious incident reports) and 6VAC35-101-90 (suspected child abuse or neglect);

16. Standard precautions as provided for in 6VAC35-101-1010 (infectious or communicable diseases); and

17. Documentation requirements as applicable to the position's duties.

C. Volunteers shall be oriented in accordance with 6VAC35-101-300 (volunteer and intern orientation and training).

6VAC35-101-185. Required initial orientation for contractors.

A. Contractors shall receive an initial orientation regarding the expectations of working within a secure environment.

B. Contractors shall be oriented in their responsibilities in implementing the evacuation plan in the event of an emergency, in accordance with 6VAC35-101-510.

6VAC35-101-187. Required initial orientation for volunteers and interns.

Volunteers and interns shall be provided with a basic, initial orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the facility;

4. The facility's organizational structure;

5. Security, population control, emergency, emergency preparedness, and evacuation procedures;

6. The practices of confidentiality;

7. Resident rights, including the prohibited actions provided for in 6VAC35-101-650; and

8. The basic requirements of and competencies necessary to perform their duties and responsibilities.

Article 4

Training and Retraining

6VAC35-101-190. Required initial training for employees.

A. Each full-time Full-time and part-time employee employees and relief staff shall complete initial, comprehensive training that is specific to the individual's their occupational class, is based on the needs of the population served, and ensures that the individual has they have the competencies to perform the position's duties. Direct care staff shall receive at least 40 hours of training, inclusive of all training required by this section, in their first year of employment.

1. Direct care staff shall receive at least 40 hours of training, inclusive of all training required by this section, in their first year of employment.

2. Contractors shall receive training required to perform their position responsibilities in a detention center.

B. Within 30 days following the employee's start date at the facility or before the employee is responsible for the direct care or direct supervision of a resident, all direct care staff and staff who provide direct supervision of the residents shall complete training in the following areas:

1. Emergency preparedness and response as provided for in 6VAC35-101-510 (emergency and evacuation procedures);

2. The facility's behavior management program as provided for in 6VAC35-101-1070 (behavior management);

3. The residents' rules of conduct and the rationale for the rules;

4. The facility's behavior intervention procedures, with including physical and mechanical restraint training and protective device training, required as applicable to their duties and as required by subsection D C of this section, and room restriction and disciplinary room restriction, as provided for in 6VAC35-101-1100 and 6VAC35-101-1105;

5. Child abuse and neglect and mandatory reporting, as provided for in 6VAC35-101-80 (serious incident reports) and 6VAC35-101-90 (suspected child abuse or neglect);

6. Maintaining appropriate professional boundaries and relationships;

7. Interaction Appropriate interaction among staff and residents;

8. Suicide prevention as provided for in 6VAC35-101-1020 (suicide prevention);

9. Residents' rights, including but not limited to prohibited actions provided for in 6VAC35-101-650 (prohibited actions);

10. Standard precautions as provided for in 6VAC35-101-1010 (infectious or communicable diseases); and

11. Procedures applicable to the employees' employee's position and consistent with their the employee's work profiles profile.

C. Employees who are authorized by the facility administrator to restrain a resident, as provided for in 6VAC35-101-1090 (physical restraint) and, 6VAC35-101-1130 (mechanical restraints), and 6VAC35-101-1153 shall be trained in the facility's approved restraint techniques within 90 days of such authorization and prior to before applying any restraint techniques.

D. Employees who administer medication shall, prior to such administration, as provided for in 6VAC35-101-1060 (medication), and in accordance with the provisions of § 54.1-3408 of the Code of Virginia, either (i) have successfully completed a medication management training program approved by the Board of Nursing or (ii) be licensed certified by the Commonwealth of Virginia to administer medication.

E. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

F. Volunteers and interns shall be trained in accordance with 6VAC35-101-300 (volunteer and intern orientation and training).

G. E. Employees who perform the duties required in 6VAC35-101-800 (admission and orientation) shall be trained in the requirements contained therein.

6VAC35-101-195. Required initial training for contractors.

A. Contractors shall receive training required to perform their position responsibilities in a detention center.

B. When a contractor enters into an agreement to provide a resident with services for which licensure by a professional organization is required, documentation of licensure shall constitute compliance with this section.

6VAC35-101-197. Required initial training for volunteers and interns.

Volunteers and interns shall be trained within 30 days from their start date at the facility in the following:

1. Their duties and responsibilities in the event of a facility evacuation as provided for in 6VAC35-101-510; and

2. All other procedures that are applicable to their duties and responsibilities.

6VAC35-101-200. Retraining requirements for employees.

A. Each full-time and part-time employee and relief staff shall complete retraining that is specific to the individual's occupational class, the position's job description, and that addresses any professional development needs.

B. All full-time and part-time employees and relief staff shall complete an annual training refresher on the facility's emergency preparedness and response plan and procedures as provided for in 6VAC35-101-480 (emergency and evacuation procedures) 6VAC35-101-510.

C. All direct care staff shall receive at least 40 hours of training annually that shall include training on the following:

1. Suicide prevention as provided for in 6VAC35-101-1020 (suicide prevention);

2. Standard precautions as provided for in 6VAC35-101-1010 (infectious or communicable diseases);

3. Maintaining appropriate professional relationships;

4. Interaction Appropriate interaction among staff and residents;

5. Residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-101-650 (prohibited actions);

6. Child abuse and neglect and mandatory reporting as provided for in 6VAC35-101-80 (serious incident reports) and 6VAC35-101-90 (suspected child abuse or neglect); and

7. Behavior intervention procedures, including room restriction and disciplinary room restriction, as provided in 6VAC35-101-1100 and 6VAC35-101-1105.

D. All staff approved to apply physical restraints, as provided for in 6VAC35-101-1090 (physical restraint) shall be trained as needed to maintain the applicable current certification.

E. All staff approved to apply mechanical restraints, protective devices, or the mechanical restraint chair shall be retrained annually as required by 6VAC35-101-1130 (mechanical restraints) and 6VAC35-101-1153.

F. Employees who administer medication, as provided for in 6VAC35-101-1060 (medication), shall complete an annual refresher training, which shall, at a minimum, include a review of the components required in 6VAC35-101-1060.

G. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

H. G. Staff who have not timely completed required retraining shall not be allowed to have direct care responsibilities pending completion of the required retraining requirements.

6VAC35-101-210. Written personnel procedures.

Written personnel procedures approved by the governing authority or facility administrator shall be developed, approved by the governing authority or facility administrator, implemented, and readily accessible to each staff member.

6VAC35-101-240. Notification of change in driver's license status.

Staff whose job responsibilities may involve transporting residents shall be required to (i) maintain a valid driver's license and (ii) report to the facility administrator or the facility administrator's designee any change in their driver's license status including but not limited to suspensions, restrictions, and or revocations.

6VAC35-101-250. Political activity.

Written procedures governing any campaigning, lobbying, and political activities conducted by employees that are consistent with applicable statutes and state or local policies of the detention center shall be developed and, implemented. The procedure shall be, and made available to all employees. The written procedures shall be consistent with applicable statutes and state or local policies.

6VAC35-101-260. Physical or mental health of personnel.

When an individual poses a direct threat significant risk of substantial harm to the health and safety of a resident, others at the facility, or the public, or the individual's self or is unable to perform essential job-related functions, that individual shall be removed immediately from all duties involved in the direct care or direct supervision of residents. The facility may require a medical or mental health evaluation to determine the individual's fitness for duty prior to before returning to duties involving the direct care or direct supervision of residents. The results of any medical information or documentation of any disability-related inquiries shall be maintained separately from the employee's personnel records maintained in accordance with 6VAC35-101-310 (personnel records). For the purpose of this section a direct threat means a significant risk of substantial harm.

6VAC35-101-270. Definition of volunteers or interns. (Repealed.)

For the purpose of this chapter, volunteer or intern means any individual or group who of their own free will provides goods and services without competitive compensation.

6VAC35-101-280. Selection and duties of volunteers and interns. (Repealed.)

A. Any detention center that uses volunteers or interns shall develop and implement written procedures governing their selection and use. Such procedures shall provide for the objective evaluation of persons and organizations in the community who wish to associate with the residents.

B. Volunteers and interns shall have qualifications appropriate for the services provided.

C. The responsibilities of interns and individuals who volunteer on a regular basis shall be clearly defined in writing.

D. Volunteers and interns shall neither be responsible for the duties of direct care staff nor for the direct supervision of the residents.

6VAC35-101-290. Background checks for volunteers and interns. (Repealed.)

A. Any individual who (i) volunteers on a regular basis or is an intern and (ii) will be alone with a resident in the performance of that person's duties shall be subject to the background check requirements in 6VAC35-101-170 A (employee and volunteer background checks).

B. Documentation of compliance with the background check requirements shall be maintained for each intern and volunteer for whom a background check is required. Such records shall be kept in accordance with 6VAC35-101-310 (personnel records).

C. A detention center that uses volunteers or interns shall have procedures for supervising volunteers or interns, on whom background checks are not required or whose background checks have not been completed, who have contact with residents.

6VAC35-101-300. Volunteer and intern orientation and training. (Repealed.)

A. Volunteers and interns shall be provided with a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the facility;

4. The facility's organizational structure;

5. Security, population control, emergency, emergency preparedness, and evacuation procedures;

6. The practices of confidentiality;

7. The residents' rights, including but not limited to the prohibited actions provided for in 6VAC35-101-650 (prohibited actions); and

8. The basic requirements of and competencies necessary to perform their duties and responsibilities.

B. Volunteers and interns shall be trained within 30 days from their start date at the facility in the following:

1. Any procedures that are applicable to their duties and responsibilities; and

2. Their duties and responsibilities in the event of a facility evacuation as provided for in 6VAC35-101-510 (emergency and evacuation procedures).

6VAC35-101-310. Personnel records.

A. Separate, up-to-date written or automated personnel records shall be maintained on each (i) employee and (ii) volunteer or intern on whom a background check is required.

B. The personnel records of each employee shall include:

1. A completed employment application form or other written material providing the individual's name, address, phone number, and social security number or other unique identifier;

2. Educational background and employment history;

3. Documentation of required reference check;

4. Annual performance evaluations;

5. 4. Date of employment for each position held and separation date;

6. 5. Documentation of compliance with requirements of Virginia law regarding child protective services and criminal history background investigations;

7. 6. Documentation of the verification of any educational requirements and of professional certification or licensure, if required by the position;

8. 7. Documentation of all training required by this chapter and any other training received by individual staff; and

9. 8. A current job description.

C. If applicable, health care records, including reports of any required health examinations, shall be maintained separately from the other records required by this section.

D. Personnel records on contract service providers and contractors, volunteers, and interns may be limited to the verification of the completion of any required verifying that the applicable background checks have been completed as required by 6VAC35-101-170 (employee and volunteer background checks).

6VAC35-101-330. Maintenance of residents' records.

A. A separate written or automated case record shall be maintained for each resident, that which shall include all correspondence and documents received by the detention center relating to the care of that resident and documentation of all case management services provided.

B. A separate health care record shall be kept on each resident. The resident's active health care records shall be kept in accordance with this section, 6VAC35-101-1030 (residents' health care records), this section, and applicable laws and regulations.

C. Each case record and health care record shall be kept (i) up to date, (ii) in a uniform manner, and (iii) confidential from unauthorized access. Case records shall be released only in accordance with §§ 16.1-300 and 16.1-309.1 of the Code of Virginia and applicable state and federal laws and regulations.

D. Written procedures shall provide for the management of all records, written and automated, and shall describe address confidentiality, accessibility, security, and retention of records pertaining to residents, including:

1. Access, duplication, dissemination, and acquisition of information only to persons legally authorized according to federal and state laws;

2. If automated records are utilized, the procedures shall address:

a. How records are protected from unauthorized access, including unauthorized Internet access or other unauthorized electronic access;

b. How records are protected from unauthorized Internet access;

c. b. How records are protected from loss;

d. c. How records are protected from unauthorized alteration; and

e. d. How records are backed up.

3. Security measures to protect records from (i) from loss, unauthorized alteration, inadvertent or unauthorized access, or disclosure of information; and (ii) during transportation of records between service sites;

4. Designation of person responsible for records management; and

5. Disposition of records in the event the detention center ceases to operate.

E. The procedure shall specify what information is available to the resident.

F. Active and closed written records shall be kept in secure locations or compartments that are accessible only to authorized staff and shall be protected from unauthorized access, fire, and flood.

G. All case records shall be retained as governed by The Library of Virginia.

6VAC35-101-340. Face sheet.

A. At the time of admission, each resident's record shall include, at a minimum, a completed face sheet that contains the following:

1. The resident's full name, last known residence, birth date, birthplace, sex, race, unique numerical identifier, religious preference, and admission date; and

2. Names, addresses, and telephone numbers of the applicable court service unit, emergency contacts, and parents or legal guardians, as appropriate and applicable; and

3. The name and telephone number of the applicable court service unit.

B. Information shall be updated when changes occur.

C. Upon discharge, the (i) date of discharge and (ii) name of the person to whom the resident was discharged, if applicable, shall be added to the face sheet.

6VAC35-101-350. Buildings and inspections.

A. All newly constructed buildings, major renovations to buildings, and temporary structures shall be inspected and approved by the local building official. Approval shall be documented by a certificate of occupancy.

B. A current copy of the facility's annual inspection by fire prevention authorities indicating that all buildings and equipment are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51) shall be maintained. If the fire prevention authorities have failed to timely inspect the detention center's buildings and equipment, documentation of the facility's request to schedule the annual inspection as well as and documentation of any necessary follow-up with fire prevention authorities shall be maintained.

C. A detention center shall maintain a current copy of the detention center's its annual inspection and approval, in accordance with state and local inspection laws, regulations, and ordinances, of the systems listed below shall be maintained in this subsection. These required inspections shall be of the include:

1. General sanitation;

2. Sewage disposal system;

3. Water supply; and

4. Food service operations.

D. Building plans and specifications for new construction, change in use of existing buildings, and any structural modifications or additions to existing buildings shall be submitted to and approved by the regulatory authority and by other appropriate regulatory agencies. Any planned construction, renovation, enlargement, or expansion of a detention center shall follow the submission and approval requirements of the Regulation Governing State Reimbursement of Local Juvenile Residential Facility Costs (6VAC35-30) and of any other applicable regulatory authorities.

6VAC35-101-360. Equipment and systems inspections and maintenance.

A. All safety Safety, emergency, and communications equipment and systems, as identified by the facility administrator, shall be inspected, tested, and maintained by designated staff in accordance with the manufacturer's recommendations or instruction manuals or, absent such requirements, in accordance with a schedule that is approved by the facility administrator. Testing of such equipment and systems shall, at a minimum, be conducted quarterly. The facility administrator shall develop written procedures for the development, maintenance, and review of safety, emergency, and communications equipment and systems that the facility administrator identifies as critical, as well as the testing intervals for such equipment and systems.

B. Whenever safety, emergency, and or communications equipment or a system is found to be systems are determined to be defective, immediate steps shall be taken to rectify the situation and to repair, remove, or replace the defective equipment or systems.

6VAC35-101-370. Alternate power source.

The facility shall have access to an alternate power source for use in an to maintain essential services in an emergency.

6VAC35-101-380. Heating and cooling systems and ventilation.

A. Heat shall be distributed in all rooms occupied by the residents such that a temperature no less than 68°F is maintained, unless otherwise mandated by state or federal authorities.

B. Air conditioning or mechanical ventilating systems, such as electric fans, shall be provided in all rooms occupied by residents when the temperature in those rooms exceeds 80°F unless otherwise mandated by state or federal authorities.

6VAC35-101-400. Plumbing and water supply; temperature.

A. Plumbing shall be maintained in operational condition, as designed.

B. An adequate supply of hot and cold running water shall be available at all times.

C. Precautions shall be taken to prevent scalding from running water. Water temperatures should Hot water temperatures shall be maintained at 100°F to 120°F.

6VAC35-101-410. Drinking water.

A. In all detention centers constructed after January 1, 1998, all sleeping areas rooms shall have fresh drinking water for the residents' use.

B. All activity areas shall have potable drinking water available for the residents' use.

6VAC35-101-420. Toilet facilities.

A. There shall be one toilet facilities and one hand basin available for resident use in all sleeping rooms for each detention center building constructed or structurally modified after January 1, 1998.

B. There shall be at least one toilet, one hand basin, and one shower or bathtub for every eight residents for detention centers center buildings constructed on or before December 27, 2007. There shall be one toilet, one hand basin, and at least one shower or tub for every four five residents in any building constructed or structurally modified on or after December 28, 2007.

C. There shall be at least one bathtub in each facility.

D. The maximum number of staff members on duty in the living unit shall be counted in determining the required number of toilets and hand basins when a separate bathroom is not provided for staff.

6VAC35-101-430. Sleeping areas rooms.

A. Males and females shall have separate sleeping rooms.

B. Beds shall be at least three feet apart at the head, foot, and sides; and double-decker beds shall be at least five feet apart at the head, foot, and sides.

C. Sleeping quarters rooms established, constructed, or structurally modified after July 1, 1981, shall have:

1. At least 80 square feet of floor area in a bedroom accommodating one person;

2. At least 60 square feet of floor area per person in rooms accommodating two or more persons; and

3. Ceilings with a primary height of at least 7-1/2 feet in height, exclusive of protrusions, duct work, or dormers.

D. Mattresses shall be fire retardant as evidenced by documentation from the manufacturer except in buildings equipped with an automated sprinkler system as required by the Virginia Uniform Statewide Building Code (13VAC5-63).

E. The environment of sleeping areas During sleeping hours, living units and sleeping rooms shall be, during sleeping hours, maintained in a manner that is conducive to sleep and rest.

6VAC35-101-460. Smoking prohibition.

Residents shall be prohibited from using, possessing, purchasing, or distributing tobacco products or nicotine vapor products. Tobacco products, including cigarettes, cigars, pipes, and smokeless tobacco, such as chewing tobacco or snuff, pipe tobacco, bidis, and wrappings and vapor products, such as electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, or similar products or devices shall not be used by staff, contractors, volunteers, interns, or visitors in any areas of the facility or its premises where residents may see or smell the tobacco product.

6VAC35-101-470. Space utilization.

A. Each detention center shall provide for the following:

1. Indoor and outdoor recreation areas;

2. Kitchen facilities and equipment for the preparation and service of meals;

3. Space and equipment for laundry, if laundry is done at the detention center;

4. A designated visiting area that permits informal communication between residents and visitors, including opportunity for physical contact in accordance with written procedures;

5. Storage space for items such as first aid equipment, household supplies, recreational equipment, and other materials;

6. Space for administrative activities including, as appropriate to the program, confidential conversations and the storage of records and materials; and

7. A central medical room area with medical examination facilities rooms or other spaces developed and equipped in consultation with the health authority.

B. If a school programs program is operated at the facility, school classrooms shall be designed in consultation with appropriate education authorities to comply with applicable state and local requirements.

C. Spaces or areas may be interchangeably utilized interchangeably but shall be in functional condition for the designated purposes purpose.

6VAC35-101-480. Kitchen operation and safety.

A. Meals shall be served in areas equipped with tables and benches or chairs that are size and age appropriate for the residents.

B. Written procedures shall govern access to all areas where food or utensils are stored and the inventory and control of all culinary equipment to which the residents reasonably may be expected to have access.

C. Walk-in refrigerators and freezers shall be equipped to permit emergency exits.

D. Bleach or another sanitizing agent approved by the federal Environmental Protection Agency to destroy bacteria shall be used in laundering table and kitchen linens.

E. Residents shall not be permitted to work in the detention center's food service.

6VAC35-101-490. Maintenance of the buildings and grounds.

A. The interior and exterior of all buildings and grounds shall be safe, maintained, and reasonably free of clutter and rubbish. This includes, but is not limited to, requirement applies to all areas of the facility and to items within the facility, including (i) required locks, mechanical devices, indoor and outdoor equipment, and furnishings and (ii) all areas where residents, staff, and visitors reasonably may be expected to have access.

B. All buildings shall be reasonably free of stale, musty, or foul odors.

C. Buildings shall be kept reasonably free of flies, roaches, rats, and other vermin.

6VAC35-101-500. Animals on the premises.

A. Animals maintained on the premises shall be housed at a reasonable distance from sleeping, living, eating, and food preparation areas, as well as a safe distance from water supplies:

1. Housed a reasonable distance from eating and food preparation areas, as well as a safe distance from water supplies;

2. Tested, inoculated, and licensed as required by law; and

3. Provided with clean sleeping areas and adequate food and water.

B. Animals maintained on the premises shall be tested, inoculated, and licensed as required by law.

C. B. The premises shall be kept reasonably free of stray domestic animals.

D. Pets shall be provided with clean sleeping areas and adequate food and water.

6VAC35-101-510. Emergency and evacuation procedures.

A. A detention center shall develop a written emergency preparedness and response plan shall be developed. The plan which shall address:

1. Documentation of contact with the local emergency coordinator to determine (i) local disaster risks; (ii) communitywide plans to address different disasters and emergency situations; and (iii) assistance, if any, that the local emergency management office will provide to the detention center in an emergency;

2. Analysis of the detention center's capabilities and potential hazards, including natural disasters, severe weather, fire, flooding, work place work-place violence or terrorism, missing persons, severe injuries, or other emergencies that would disrupt the normal course of service delivery;

3. Written emergency management procedures outlining specific responsibilities for provision of administrative direction and management of response activities; coordination of logistics during the emergency; communications; life safety of employees, contractors, interns, volunteers, visitors, and residents; property protection; fire protection service; community outreach; and recovery and restoration;

4. Written emergency response procedures for assessing the situation; protecting residents, employees, contractors, interns, volunteers, and visitors; equipment and vital records; and restoring services. Emergency procedures shall address:

a. Communicating with employees, contractors, and community responders;

b. Warning and notification of notifying residents;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations to emergency shelters or alternative sites and accounting for all residents;

e. Relocating residents, if necessary;

f. Notifying parents and legal guardians, as applicable and appropriate;

g. Alerting emergency personnel and sounding alarms;

h. Locating and shutting off utilities when necessary; and

i. Providing for a planned, personalized means of effective egress evacuation for residents individuals with disabilities who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking require special accommodations, such as deaf, blind, and nonambulatory individuals.

5. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape evacuation routes, and list lists of major resources such as local emergency shelters; and

6. Schedule for testing the implementation of the plan and conducting emergency preparedness drills.

B. Emergency preparedness and response training shall be developed and required for all employees to ensure they are prepared to implement the emergency preparedness plan in the event of an emergency. Such training shall be conducted in accordance with 6VAC35-101-180 (required initial orientation) through 6VAC35-101-200 (retraining) and include shall outline the employees' responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures, including evacuation of residents individuals with special needs (i.e., disabilities who require special accommodations, such as deaf, blind, nonambulatory) and nonambulatory individuals;

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency information for residents including medical information; and

5. Utilizing community support services.

C. Contractors and, volunteers, and interns shall be oriented in their responsibilities in implementing the evacuation plan in the event of an emergency. Such The orientation shall be in accordance with the requirements of 6VAC35-101-180 (required initial orientation) 6VAC35-101-185 and 6VAC35-101-300 (volunteer and intern orientation and training) 6VAC35-101-187.

D. The An annual review of the emergency preparedness plan shall be conducted and documented, and revisions shall be made as deemed necessary. Such revisions shall be communicated to employees, contractors, interns, and volunteers and incorporated into training for employees, contractors, interns and volunteers, and orientation of residents to services.

E. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, the detention center shall take appropriate actions shall be taken to protect the health, safety, and welfare of the residents and to remedy the conditions as soon as possible.

F. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, the detention center first should shall respond and stabilize the disaster or emergency. After Once the disaster or emergency is stabilized, the detention center shall report the disaster or emergency shall be reported to the legal guardian and parents or legal guardians, the applicable court service unit units and the director no later than 24 hours after the incident occurs in accordance with 6VAC35-101-80. Additionally, the detention center shall report within 24 hours of the incident the conditions at the detention center and the disaster or emergency shall be reported to the director or the director's designee as soon as possible, but no later than 24 hours after the incident occurs and in accordance with 6VAC35-101-80 (serious incident reports).

G. Floor plans showing primary and secondary means of emergency exiting exits shall be posted on each floor in locations where they can be seen easily by are clearly visible to staff and residents.

H. The responsibilities of the residents in implementing resident's responsibility to implement the emergency and evacuation procedures shall be communicated to all residents within seven days following admission or a substantive change in the procedures.

I. At The detention center shall conduct at least one evacuation drill (the simulation of the detention center's emergency procedures) shall be conducted in which its emergency procedures are simulated each month in each building occupied by residents. During any three consecutive calendar months, at least one evacuation drill shall be conducted during each shift.

J. Evacuation drills shall include, at a minimum:

1. Sounding of emergency alarms;

2. Practice in evacuating buildings;

3. Practice in alerting emergency authorities;

4. Simulated use of emergency equipment; and

5. Practice in accessing resident emergency information.

K. A record shall be maintained for each evacuation drill and shall include the following:

1. Buildings The building in which the drill was conducted;

2. Date The date and time of the drill;

3. Amount The amount of time taken to evacuate the buildings;

4. Specific The specific problems encountered, if applicable;

5. Staff The staff tasks completed, including head counts and practice in notifying emergency authorities:

a. Head count, and

b. Practice in notifying emergency authorities; and

6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.

L. One staff member shall be assigned to who shall ensure that all requirements regarding the emergency preparedness and response plan and the evacuation drill program are met.

6VAC35-101-520. Control center.

To maintain the internal security, a control center that is secured from residents' access shall be staffed 24 hours a day, seven days a week, and shall integrate all external and internal security functions and communications networks.

6VAC35-101-530. Control of perimeter.

A. In accordance with a written plan, the detention center's perimeter shall be controlled by appropriate means to provide ensure that residents remain within the perimeter and to prevent unauthorized access by the public.

B. Pedestrians and vehicles shall enter and leave at designated points in the perimeter.

6VAC35-101-540. Escapes.

Written procedure procedures shall govern the action staff actions to be taken regarding escapes and any must take to address a resident's escape or unauthorized absence from the facility without permission. Any such The procedure shall provide for authorize the release of information consistent with subject to the provisions of § 16.1-309.1 of the Code of Virginia.

6VAC35-101-550. Contraband.

Written procedure shall provide for the control, detection, and disposition of contraband. Such procedures shall govern searches of residents, as required by 6VAC35-101-560 (searches of residents), and other individuals, and searches of the premises and shall provide for respecting the protection of residents' rights.

6VAC35-101-560. Searches of residents.

A. Written procedures shall govern searches of residents, including patdown and frisk searches, strip full searches, and body cavity searches, and shall include the following:

1. Searches of residents' persons shall be conducted only for the purposes of maintaining facility security and controlling contraband while protecting the dignity of the resident.

2. Searches are shall be conducted only by personnel who are authorized to conduct such searches.

3. The resident shall not be touched any more than is necessary to conduct the search.

B. Patdown and frisk searches shall be conducted by employees of the same sex as the resident being searched, except in emergencies.

C. Strip Full searches and visual inspections of the vagina and anal cavity areas shall be subject to the following:

1. The search shall be performed by personnel of the same sex as the resident being searched;

2. The search shall be conducted in an area that ensures privacy; and

3. Any witness to the search shall be of the same sex as the resident.

D. Manual and instrumental searches of the anal cavity or vagina, not including medical examinations or procedures conducted by medical personnel for medical purposes, shall be:

1. Performed only with the written authorization of the facility administrator or by a pursuant to court order or upon occurrence of an exigent circumstance requiring medical attention;

2. Conducted by a qualified medical professional;

3. Witnessed by personnel of the same sex as the resident; and

4. Fully documented in the resident's medical file.

6VAC35-101-570. Communications systems.

A. There shall be a means for of communicating between the control center and living areas units.

B. The detention center shall be able to provide communications in an emergency.

6VAC35-101-580. Telephone access and emergency numbers.

A. There shall be at least one continuously operable, nonpay telephone accessible to staff in each building in which residents sleep or participate in programs.

B. There shall be an emergency telephone number where a staff person may be immediately contacted immediately, 24 hours a day, seven days per week.

C. An emergency telephone number shall be provided to residents and the adults responsible for their care when a resident is away from the facility and not under the supervision of direct care staff or law-enforcement officials.

6VAC35-101-600. Weapons.

Written procedures shall be developed and implemented to govern the possession and use of firearms, pellet guns, air guns, and other weapons on the detention center's premises. The procedure shall provide that no prohibit firearms, pellet guns, air guns, or other weapons shall be permitted on the premises unless the weapons are:

1. In the possession of and use used by authorized law-enforcement personnel admitted to facilities in response to emergencies; or

2. Stored in secure weapons lockers outside the secure perimeter of the facility by law-enforcement personnel conducting official business at the facility.

6VAC35-101-610. Area and equipment restrictions.

Written procedure procedures shall govern the inventory and control of all security, maintenance, recreational, and medical equipment of the detention center to which residents reasonably may be expected to have access.

6VAC35-101-620. Power equipment.

Written The facility shall develop and implement written safety rules shall be developed and implemented for the use and maintenance of power equipment.

6VAC35-101-630. Transportation of residents.

A. Except as otherwise provided in 6VAC35-101-635, a detention center shall follow the requirements of this section if a resident requires transportation.

B. Each detention center shall have transportation available or make the necessary arrangements for routine facility-approved and emergency transportation of residents.

1. Pursuant to § 16.1-254 of the Code of Virginia, each detention center shall be responsible for transporting juvenile residents in their custody to all local medical and dental appointments and all local psychological and psychiatric evaluations.

2. Unless otherwise provided by agreement, the detention center shall not be required to transport youth to appointments that are outside of the geographical boundaries of the Commonwealth or that are more than 25 miles from the facility in one direction.

3. A detention center may assign its own staff to transport a detained juvenile or may enter into an agreement or contract with a public or private agency to provide the transportation services for the juvenile.

B. There shall be written safety rules for transportation of residents and for the use of vehicles. C. Written safety and security procedures shall be implemented governing the use of vehicles and the transportation of residents outside the detention center and from one jurisdiction to another. The written procedures shall be in accordance with § 16.1-254 of the Code of Virginia and shall, at a minimum, provide the following:

1. No juvenile shall be transported with an adult suspected of or charged with a criminal act.

2. If a person or entity other than the detention center assumes custody of the resident for purposes of transportation, the detention center shall:

a. Provide the person or entity, except the resident's parent or guardian, with a written document that identifies any pertinent information known to the detention center concerning the juvenile's immediate medical needs or mental health condition that reasonably could be considered necessary for the juvenile's safe transportation and supervision, including the resident's recent suicidal ideations or suicide attempts. Any such information shall remain confidential, in accordance with § 16.1-300 of the Code of Virginia and applicable rules and regulations regarding confidentiality of juvenile records.

b. Provide the individual transporting the resident with any medication the resident may be required to take during transport or while absent from the facility.

3. The frequency and manner of searches of residents, the manner by which communications will be accomplished during transit, the ratio of staff to residents, and the parameters for use of mechanical restraints shall be in accordance, respectively, with 6VAC35-101-560, 6VAC35-101-580, 6VAC35-101-890, and 6VAC35-101-1130, and shall accord with written procedures.

4. If the vehicle transporting the resident becomes inoperable, is involved in an accident, or encounters a similar emergency, the individual transporting the resident shall notify the individual's agency immediately and contact local law enforcement for assistance, if necessary. Detention center staff transporting residents shall observe the required staffing ratios and shall never leave a resident unattended.

5. If a juvenile absconds during transport, the detention center staff conducting the transport shall report the incident immediately in accordance with 6VAC35-101-80.

6. If a juvenile requires a meal during transit, the detention center shall provide a bagged lunch, if feasible.

C. D. Written procedure shall provide for the verification of appropriate licensure for staff whose duties involve transporting residents.

E. The detention center shall observe the following if a resident requires transport to a local medical or dental appointment:

1. If detention center staff transport the detained juvenile to a local medical or dental appointment as authorized in subdivision B 3 of this section, the detention center shall not be obligated to pay for any costs associated with the appointment, unless provided for otherwise by agreement.

2. The detention center may require notice of the date and time of the local medical appointment, dental appointment, or psychological and psychiatric evaluation at least 72 hours in advance.

F. When the medical staff of a detention center have made a written determination that a resident's medical condition can be treated without transporting the resident to a routine or previously scheduled appointment, the detention center is not required to transport the resident unless ordered by a court.

G. A juvenile who was confined in a juvenile detention center immediately prior to a court hearing may not be transported to a juvenile correctional center's intake unit directly from court upon commitment. Instead, the juvenile shall be returned to the detention center until the department completes the commitment packet and arranges transportation for the resident.

6VAC35-101-635. Transportation of violent or disruptive youth or youth traveling to specified destinations.

A. Only juvenile detention center staff or law-enforcement personnel, excluding the Department of the State Police, may transport violent and disruptive juveniles.

B. The court service unit responsible for supervising the juvenile or the agency or parent seeking placement shall be responsible for transporting a detained juvenile to a residential placement pursuant to § 16.1-294 of the Code of Virginia, unless otherwise ordered by the court.

C. The chief judge of the juvenile and domestic relations district court shall designate an appropriate agency to transport detained juveniles who do not meet the requirements of subsection A of this section and are traveling to any one of the following destinations: (i) destinations across jurisdictional boundaries or that are more than 25 miles from the detention home in one direction when there is not a standing administrative agreement or commission charter governing transportation of detained residents; (ii) destinations in other states; (iii) other secure detention facilities, such as detention centers or jails, when there is not a standing administrative agreement governing transportation of residents; (iv) a law-enforcement agency for interrogation; (v) funerals, death bed visits, and other extreme circumstances; (vi) other destinations as determined by the court; and (vii) any other destination that is not (a) designated in 6VAC35-101-630 B 1 or (b) a special placement made pursuant to § 16.1-286 of the Code of Virginia. Appropriate agencies may include the detention center, the court service unit, a local law-enforcement agency, or a public or private agency but may not include the Department of State Police.

D. The transportation of a juvenile detained in a postdispositional detention program to any destination listed in subsection C of this section must be at the designation of the court by individual court order, by standing order, or by court approval of the plan for treating postdispositionally detained juveniles required in 6VAC35-101-1180.

E. Consistent with the requirements in § 37.1-67.01 of the Code of Virginia, when a court commits a juvenile to a mental hospital or training center for observation, the committing court shall designate the appropriate law-enforcement agency, other than the Department of State Police, to transport the juvenile.

6VAC35-101-640. Transportation of residents; Detention center transfer to department.

A. Residents shall be transported in accordance with Guidelines for Transporting Juveniles in Detention issued by the board in accordance with § 16.1-254 of the Code of Virginia.

B. When a resident is transported transferred to the department from a detention center, all information pertaining to the resident's medical, educational, behavioral, and family circumstances during the resident's stay in detention shall be sent either in a written document or electronically to the department (i) with the resident, if the detention center is given at least 24 hours notice; or (ii) within 24 hours after the resident is transported, if such notice is not given.

6VAC35-101-650. Prohibited actions.

A. The following actions are prohibited Residents shall not be subjected to the following actions:

1. Discrimination in violation of the Constitution of the United States, the Constitution of the Commonwealth of Virginia, and state and federal statutes and regulations;

2. Deprivation of drinking water or food necessary to meet a resident's daily nutritional needs, except as ordered by a licensed physician health care professional for a legitimate medical purpose and documented in the resident's record;

3. Denial of contacts and visits with the resident's attorney, a probation officer, the regulatory authority, a supervising agency representative, or representatives of other agencies or groups as required by applicable statutes or regulations;

4. Any action that is humiliating, degrading, or abusive, including but not limited to any form of physical abuse, sexual abuse, or sexual harassment;

5. Corporal punishment, which is administered through the intentional inflicting infliction of pain or discomfort to the body through actions such as, but not limited to (i) striking or hitting with any part of the body or with an implement; (ii) pinching, pulling, or shaking; or (iii) any similar action that normally inflicts pain or discomfort;

6. Subjection to unsanitary living conditions;

7. Deprivation of opportunities for bathing or access to toilet facilities, except as ordered by a licensed physician health care professional for a legitimate medical purpose and documented in the resident's record;

8. Denial of health care;

9. Denial of appropriate services and treatment;

10. Application of aversive stimuli, except as permitted pursuant to other applicable state regulations; aversive stimuli means any physical forces (e.g., sound, electricity, heat, cold, light, water, or noise) or substances (e.g., hot pepper, pepper sauce, or pepper spray) measurable in duration and intensity that when applied to a resident are noxious or painful to the individual;

11. Administration of laxatives, enemas, or emetics, except as ordered by a licensed physician health care professional or poison control center for a legitimate medical purpose and documented in the resident's health care record;

12. Deprivation of opportunities for sleep or rest, except as ordered by a licensed physician health care professional for a legitimate medical purpose and documented in the resident's health care record;

13. Use of pharmacological restraints; and

14. Other constitutionally prohibited actions.

B. Employees shall be trained on the prohibited actions as provided in 6VAC35-101-190 (required initial training) and 6VAC35-101-200 (retraining); volunteers and interns shall be trained given a basic orientation on prohibited actions as provided in 6VAC35-101-300 (volunteer and intern orientation and training) 6VAC35-101-187; and residents shall be oriented on the prohibited actions as provided in 6VAC35-101-800 (admission and orientation).

6VAC35-101-655. Vulnerable population.

A. The facility shall implement a procedure for assessing whether a resident is a member of a vulnerable population. Factors including the resident's height and size, English proficiency, sexual orientation, history of being bullied, or history of self-injurious behavior may be considered in determining whether a resident is a member of a vulnerable population. The resident's own views with respect to the resident's safety shall be taken into consideration.

B. If the assessment determines a resident is a member of a vulnerable population, the facility shall implement any identified additional precautions such as heightened need for supervision, additional safety precautions, or separation from certain other residents. The facility shall consider on a case-by-case basis whether a placement would ensure the resident's health and safety and whether the placement would present management or security problems.

C. For the purposes of this section, vulnerable population means a resident or group of residents who have been assessed to be reasonably likely to be exposed to the possibility of being attacked or harmed, either physically or emotionally (e.g., very young residents; residents who are small in stature; residents who have limited English proficiency; residents who are gay, lesbian, bi-sexual, transgender, or intersex; residents with a history of being bullied or of self-injurious behavior).

6VAC35-101-660. Residents' mail.

A. A resident's incoming or outgoing mail may be delayed or withheld only in accordance with this section, as permitted by other applicable regulations, or by order of a court.

B. Staff may open and inspect residents' incoming and outgoing nonlegal mail for contraband. When based on legitimate interests of the facility's order and security, nonlegal mail may be read, censored, or rejected in accordance with written procedures. The resident shall be notified when incoming or outgoing letters are withheld in part or in full or redacted, as appropriate.

C. In the presence of the resident recipient and in accordance with written procedures, staff may open legal mail to inspect for contraband, but shall not read, legal mail it. Legal mail shall mean any written material that is sent to or received from a designated class of correspondents, as defined in procedures, which shall include any court, legal counsel, or administrators of the grievance system, the governing authority, the department, or the regulatory authority.

D. Staff shall not read outgoing mail addressed to parents, immediate family members, legal guardians, guardian ad litems guardians ad litem, counsel, courts, officials of the committing authority, public officials, or grievance administrators unless permission has been obtained from a court or the facility administrator or his designee has determined that there is a reasonable belief that the security of the facility is threatened. When so authorized, staff may read such mail in accordance with written procedures.

E. Except as otherwise provided, incoming and outgoing letters shall be held for no more than 24 hours and packages for no more than 48 hours, excluding weekends and holidays.

F. If requested by the resident, postage and writing materials shall be provided for unlimited outgoing legal correspondence mail and at least two other letters per week.

G. First-class letters and packages received for residents who have been transferred or released shall be forwarded to the resident's last known address or forwarding address or returned to sender.

H. Written procedure governing resident correspondence of residents shall be made available to all staff and residents and shall be reviewed annually and updated as needed.

6VAC35-101-670. Telephone calls.

Telephone Residents shall be permitted to make telephone calls shall be permitted in accordance with written procedures that take into account the need for security and order, resident behavior, and program objectives.

6VAC35-101-680. Visitation.

A. A resident's contacts and visits with family or legal guardians shall not be subject to unreasonable limitations, and any limitation limitations shall be implemented only as permitted by written procedures, other applicable regulations, or by order of a court.

B. Residents shall be permitted reasonable visiting privileges and, whenever possible, flexible visiting hours, consistent with written procedures, that take into account (i) the need for security and order, (ii) the behavior of the residents and visitors, and (iii) the importance of helping the resident maintain strong family and community ties, and (iv) whenever possible, flexible visiting hours.

C. Visitation procedures shall be provided upon request to the parent or legal guardian, as appropriate and applicable, and the residents.

6VAC35-101-690. Contact with attorneys, courts, and law enforcement.

A. Residents shall have uncensored, confidential contact with their legal representative in writing, as required by 6VAC35-101-660 (residents' mail), by telephone, or in person. Reasonable limits may be placed on such contacts as necessary to protect the security and order of the facility. For the purpose of this section a legal representative is defined as (i) a court appointed or retained attorney or a paralegal, investigator, or other representative from that attorney's office or (ii) an attorney visiting for the purpose of a consultation if requested by the resident.

B. Residents shall not be denied access to the courts.

C. Residents shall not be required to submit to questioning by law enforcement, although they may do so voluntarily.

1. Residents' consent shall be obtained prior to before any contact with law enforcement.

2. No employee may coerce a resident's decision to consent to have contact with law enforcement.

3. Each facility shall have written procedures for establishing a resident's consent to any such contact and for documenting the resident's decision. The procedures may provide for require (i) notification of the parent or legal guardian, as appropriate and applicable, prior to before the commencement of questioning; and (ii) opportunity, at the resident's request, to confer with an attorney, parent or legal guardian, or other person in making the decision deciding whether to consent to questioning.

6VAC35-101-700. Personal necessities.

A. At admission, each resident shall be provided the following:

1. An adequate supply of personal necessities for hygiene and grooming;

2. Size appropriate clothing and shoes for indoor and outdoor wear;

3. A separate bed equipped with a mattress, a pillow, blankets, bed linens, and, if needed, a waterproof mattress cover; and

4. Individual washcloths and towels.

B. At the time of issuance, all items shall be clean and in good repair.

C. Personal necessities shall be replenished as needed.

D. The washcloths, towels, and bed linens shall be cleaned or changed, at a minimum, at least once every seven days and more often, if needed. Bleach or another sanitizing agent approved by the federal Environmental Protection Agency to destroy bacteria shall be used in the laundering of such linens and table linens.

E. After issuance, blankets shall be cleaned or changed as needed.

6VAC35-101-710. Showers.

Residents shall have the opportunity to shower daily except as provided in written procedures for the purpose of maintaining facility security or for the special management of maladaptive behavior if approved by the facility administrator, the facility administrator's designee, or a qualified mental health professional.

6VAC35-101-730. Residents' privacy.

Residents shall be provided privacy from routine sight supervision by staff members of the opposite sex while bathing, dressing, or conducting toileting activities, except when constant supervision is necessary to protect the resident due to mental health issues involving self-injurious behaviors or suicidal ideations or attempts. This section does not apply to medical personnel performing medical procedures or to staff providing assistance to residents whose physical or mental disabilities dictate the need for assistance with these activities as justified in the resident's health care record.

6VAC35-101-740. Nutrition.

A. Each resident, except as provided in subsection B of this section, shall be provided a daily diet that (i) consists of at least three nutritionally balanced meals and an evening snack, (ii) includes an adequate variety and quantity of food for the age of the resident, and (iii) meets minimum applicable federal nutritional requirements.

B. Special diets or alternative dietary schedules, as applicable, shall be provided (i) when prescribed by a physician licensed health care professional or (ii) when necessary to observe the established religious dietary practices of the resident. In such circumstances, the meals shall meet the minimum applicable federal nutritional requirements. Special diets may be provided to a resident who has used food or culinary equipment inappropriately, resulting in a threat to facility security, provided the facility administrator, the facility administrator's designee, or a qualified mental health professional provides written approval.

C. Menus of actual meals served shall be kept on file for at least six months.

D. Staff who eat in the presence of the residents shall be served the same meals as the residents unless a special diet has been prescribed by a physician for the staff or residents or the staff or residents are observing established religious dietary practices.

E. There shall not be more than 15 hours between the evening meal and breakfast the following day, except when the facility administrator approves an extension of time between meals on weekends and holidays. When an extension is granted on a weekend or holiday, there shall never be more than 17 hours between the evening meal and breakfast.

F. Food shall be made Each detention center shall ensure that food is available to residents who, for documented medical or religious reasons, need to eat breakfast before the 15 hours have expired.

6VAC35-101-770. Recreation.

A. The detention center shall have a written description of its recreation program that describes activities that are consistent with the detention center's total program and with the ages, developmental levels, interests, and needs of the residents that includes:. The recreation program shall include:

1. Opportunities for individual and group activities;

2. Opportunity for large muscle exercise daily;

3. Scheduling so that activities do not conflict with meals, religious services, or educational programs, or other regular events;

4. Provision of a variety of equipment for each indoor and outdoor recreation period; and

5. Regularly scheduled indoor and outdoor recreational activities. Outdoor recreation will shall be available whenever practicable in accordance with the facility's recreation program. Staff shall document any adverse weather conditions, threat to facility security, or other circumstances preventing outdoor recreation.

B. The recreational program shall (i) address the means by which residents will be medically assessed for any physical limitations or necessary restrictions on physical activities and (ii) provide for the supervision of and safeguards for residents, including when participating in water-related and swimming activities.

6VAC35-101-780. Residents' funds.

A. The facility shall develop and implement written procedures for safekeeping and for recordkeeping of any money that belongs to residents.

B. Residents' personal funds shall be used only (i) for their the resident's benefit; (ii) for payment of any fines, restitution, costs, or support ordered by a court; or (iii) to pay restitution for damaged property or personal injury as determined by the disciplinary process.

6VAC35-101-790. Fundraising.

Residents shall not be used in fundraising activities without the written permission of the parent or legal guardian, as applicable, and the consent of the residents.

6VAC35-101-800. Admission and orientation.

A. Written procedure governing the admission and orientation of residents shall provide for:

1. Verification of legal authority for placement;

2. Search of the resident and the resident's possessions, including inventory and storage or disposition of property, as appropriate and required by 6VAC35-101-800 (admission and orientation) this section and 6VAC35-101-810 (residents' personal possessions);

3. A general assessment of the resident's physical condition by staff. The facility administrator or the facility administrator's designee shall not admit for custody an individual who is (i) visibly under the influence of alcohol or drugs and deemed to require medical attention; or (ii) in need of immediate emergency medical attention, until the individual has received written medical clearance from a physician or qualified mental health professional in an outside medical setting.

4. Health screening of the resident as required by 6VAC35-101-980 (health screening at admission);

4. 5. Mental health screening of the resident as required by 6VAC35-101-820 (mental health screening);

5. Notification of 6. Notice to the parent or legal guardian of admission, during which facility staff shall include an inquiry regarding ask whether the resident has any immediate medical concerns or conditions;

6. 7. Provision to the parent or legal guardian of information on (i) visitation, (ii) how to request information, and (iii) how to register concerns and complaints with the facility;

7. 8. Interview with the resident to answer questions and obtain information; and

8. 9. Explanation to the resident of program services and schedules.

B. The resident shall receive an orientation to the following:

1. The behavior management program as required by 6VAC35-101-1070 (behavior management);

a. During the orientation, residents shall be given written information describing rules of conduct, the sanctions for rule violations, and the disciplinary process. These shall be explained to the resident and documented by the dated signature of the resident and staff.

b. Where If a language or literacy problem exists that can lead to a resident misunderstanding the rules of conduct and related regulations, staff or a qualified person under the supervision of staff shall assist the resident.

2. The grievance procedure as required by 6VAC35-101-100 (grievance procedure);

3. The disciplinary process as required by 6VAC35-101-1080 (disciplinary process);

4. The resident's responsibilities in implementing the emergency procedures as required by 6VAC35-101-510 (emergency and evacuation procedures); and

5. The resident's rights, including but not limited to the prohibited actions provided for in 6VAC35-101-650 (prohibited actions).

C. Such orientation shall occur prior to assignment of the resident to a housing unit or room.

D. Staff performing admission and orientation requirements contained in this section shall be trained prior to performing such duties.

6VAC35-101-810. Residents' personal possessions.

A. Residents' Each detention center shall inventory every resident's personal possessions shall be inventoried upon admission and such inventory shall be documented document the information in the resident's case record. When a resident arrives at a facility with items not permitted in the detention center, staff shall:

1. Dispose of contraband items in accordance with written procedures; and

2. If the items are nonperishable property that the resident may otherwise legally possess, securely store the property and return it to the resident upon release.

B. Each detention center shall implement a written procedure regarding the disposition of personal property unclaimed by residents after release from the facility.

6VAC35-101-820. Mental health screening.

A. Each resident shall undergo a mental health screening, as required by § 16.1-248.2 of the Code of Virginia, administered by trained staff, to ascertain the resident's suicide risk level and need for a mental health assessment. Such screening shall include the following:

1. A preliminary mental health screening, at the time of admission, consisting of a structured interview and observation as provided in facility procedures; and

2. The administration of an objective mental health screening instrument within 48 hours of admission.

B. The mental health screening shall include the following:

1. A preliminary mental health screening at the time of admission, consisting of a structured interview and observation, as provided in facility procedures; and

2. The administration of an objective, department-approved mental health screening instrument within 48 hours of admission. The facility may supplement the screening instrument with additional questions or observations, as authorized in the facility's written procedures.

C. If the mental health screening indicates that a mental health assessment is needed, it the assessment shall take place be conducted within 24 hours of such the determination as required in pursuant to the requirements set out in § 16.1-248.2 of the Code of Virginia.

6VAC35-101-830. Classification plan.

Residents shall be assigned Detention center staff shall assign residents to sleeping rooms and living units according to a written plan that takes into consideration the detention center center's design, staffing levels, and the behavior and characteristics of individual residents.

6VAC35-101-840. Discharge Release.

A. Residents shall be released from a detention center only in accordance with written procedure.

B. Each resident's record shall contain a copy of the documentation authorizing the resident's discharge release.

C. Residents shall be discharged released only to the parent, legal guardian, or legally authorized representative.

D. As applicable and appropriate, information concerning current medications shall be provided to the parent, legal guardian, or legally authorized representative.

6VAC35-101-860. Structured programming.

A. Each facility shall implement a comprehensive, planned, and structured daily routine, including appropriate supervision, designed to:

1. Meet the residents' physical, emotional, and educational needs;

2. Provide protection, guidance, and supervision;

3. Ensure the delivery of program services; and

4. Meet the objectives of any the resident's individual service plan, if applicable.

B. The structured daily routine shall be followed for all weekday and weekend programs and activities. Deviations from the schedule shall be documented.

6VAC35-101-870. Written communication between staff; daily log.

A. Procedures The detention center shall be implemented providing for the implement written procedures requiring the creation and maintenance of a daily log or other daily written means of communication between staff, such as the use of daily logs. This means of communication shall be maintained to inform staff of significant happenings incidents or problems experienced by residents, such as any resident medical or dental complaints or injuries.

B. The date and time of the entry and the identity of the individual making each entry shall be recorded Log entries shall provide clear indication of the date and time that entries are made. The individual making entries shall be identified in the manner set out in facility procedures.

C. If the means of communication between staff is electronic, all entries shall post the date, time, and name of the person making an entry be made in accordance with subsection B of this section. The computer program shall prevent previous entries from being overwritten.

6VAC35-101-880. Additional assignments of direct care staff.

A. Direct care staff and staff responsible for the direct supervision of residents may assume the duties of nondirect care personnel only when these duties do not interfere with their direct care or direct supervision responsibilities.

B. Residents shall may assist in support functions that are part of the established, structured program, such as building and grounds maintenance and housekeeping, but may not be solely responsible for support these functions, including but not necessarily limited to, food service, maintenance of building and grounds, and housekeeping.

6VAC35-101-890. Staff supervision of residents.

A. Staff shall provide 24-hour awake supervision seven days a week.

B. No member of the direct care staff shall be on duty and responsible for the direct care of residents for more than six consecutive days without a rest day, except in an emergency. For the purpose of this section, rest day shall mean a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to the operation of a detention center. Such duties shall include participation in any training that is required by (i) this chapter, (ii) the employee's job duties, or (iii) the employee's supervisor.

C. Direct care staff shall have an average be scheduled an average of at least two rest days per week in any four-week period.

D. Direct care staff shall not be on duty more than 16 consecutive hours except in an emergency.

E. When both males and females are housed in the same living unit, at least one male and one female staff member shall be actively supervising at all times.

F. Staff shall always be in plain view of another staff person when entering an area occupied by residents of the opposite sex.

G. Staff shall regulate the movement of residents within the detention center in accordance with written procedures.

H. Written procedures shall be implemented governing the transportation of residents outside the detention center and from one jurisdiction to another.

6VAC35-101-900. Staffing pattern.

A. The facility shall develop, implement, and document a staffing plan that provides for adequate levels of staffing and, where applicable, video monitoring to ensure the safe supervision of residents on the premises. The facility administrator shall review the staffing plan annually.

B. During the hours that residents are scheduled to be awake, there shall be at least one direct care staff member awake, on duty, and responsible for supervision of every 10 eight residents, or portion thereof, on the premises or participating in attending off-campus, detention center- sponsored activities.

B. C. During the hours that residents are scheduled to sleep there shall be no less fewer than one direct care staff member on duty and responsible for the supervision of every 16 residents, or portion thereof, on the premises.

C. D. There shall be at least one direct care staff member on duty and responsible for the supervision of residents in each building where residents are sleeping.

D. E. At all times, there shall be no less fewer than one direct care staff member with current certifications in standard first aid and cardiopulmonary resuscitation on duty for every 16 residents, or portion thereof, being supervised by staff.

6VAC35-101-920. Work and employment.

A. Assignment of chores, that are paid or unpaid work assignments, Paid and unpaid work assignments, including chores, that are assigned by or carried out at the juvenile detention center shall be in accordance with the age, health, and ability, and service plan of the resident.

B. Chores Assignments specified in subsection A of this section shall not interfere with school programs, study periods, meals, or sleep.

C. In both work assignments and employment the The facility administrator or the facility administrator's designee shall evaluate the appropriateness of the work and the fairness of the pay for external employment opportunities for residents.

6VAC35-101-930. Health authority.

The facility administrator shall designate a physician, nurse, nurse practitioner, psychiatrist, government authority, health administrator, health care contractor, or health agency to serve as the facility's health authority responsible for organizing, planning, and monitoring the timely provision of appropriate health care services, including arrangements for all levels of health care and the ensuring of quality and accessibility of all health services, consistent with applicable statutes and regulations, prevailing community standards, and medical ethics.

6VAC35-101-940. Provision of health care services.

Treatment by nursing Nursing personnel shall be performed provide treatment pursuant to the laws and regulations governing the practice of nursing within the Commonwealth. Other health trained personnel shall provide care within their level of training and certification.

6VAC35-101-950. Health care procedures.

A. Written The facility shall develop and implement written procedures shall be developed and implemented for:

1. Providing or arranging for the provision of medical and dental services for health problems identified at admission;

2. Providing or arranging for the provision of on-going ongoing and follow-up medical and dental services after admission;

3. Providing or arranging for the provision of dental services for residents who present with acute dental concerns;

4. Providing emergency services for each resident as provided by statute or by the agreement with the resident's legal guardian, as applicable;

5. Providing emergency services for any resident experiencing or showing signs of suicidal or homicidal thoughts, symptoms of mood or thought disorders, or other mental health problems; and

6. Ensuring that the required information in subsection B of this section is accessible and up to date.

B. The following written information concerning each resident shall be readily accessible to designated staff who may have need to respond to a medical or dental emergency:

1. Name, address, and telephone number of the physician and dentist to be notified;

2. Name, address, and telephone number of a relative or other person to be notified; and

3. Information concerning:

a. Use of medication;

b. All allergies Allergies, including medication allergies;

c. Substance abuse and use; and

d. Significant past and present medical problems.

6VAC35-101-960. Health trained Health-trained personnel.

A. Health trained Health-trained personnel shall provide care as appropriate to their level of training and certification and shall not administer health care services for which they are not qualified or specifically trained.

B. The facility shall retain documentation of the training received by health trained health-trained personnel necessary to perform any designated health care services. Documentation of applicable, current licensure or certification shall constitute compliance with this section.

6VAC35-101-970. Consent to and refusal of health care services.

A. Health Consent to health care services, as defined in 6VAC35-101-10 (definitions), shall be provided in accordance with § 54.1-2969 of the Code of Virginia. The knowing and voluntary agreement, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion, of a person who is capable of exercising free choice (informed consent) to health care shall be obtained from the resident or parent or legal custodian, as required by law. The juvenile detention center shall obtain consent from the resident or parent or legal guardian, as required by law, before providing health care services to a resident. The consent shall be knowing and voluntary, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion.

B. The An appropriately trained medical professional shall advise the resident and parent or legal guardian, as appropriate and applicable, shall be advised by an appropriately trained medical professional of (i) the material facts regarding the nature, consequences, and risks of the proposed treatment, examination, or procedure and (ii) the alternatives to it the proposed treatment, examination, or procedure.

C. Residents may refuse in writing medical treatment and care. Facilities shall have written procedures for:

1. Explaining the implications of refusals refusal; and

2. Documenting the reason for the refusal.

This subsection does not apply to medication refusals that, which are governed by 6VAC35-101-1060 (medication).

D. When health care is rendered against the resident's will, it shall be in accordance with applicable laws and regulations.

6VAC35-101-980. Health screening at admission.

A. To prevent newly arrived residents who pose a health or safety threat to themselves or others from being admitted to the general population, all residents shall immediately upon admission undergo a preliminary health screening upon admission consisting of a structured interview and observation by health care personnel or health trained health-trained personnel, as defined in 6VAC35-101-10 (definitions), as approved by the health authority.

B. Residents admitted Admitted residents who pose are identified during the screening required in subsection A of this section as posing a health or safety threat to themselves or others shall be separated from the detention center's general population but until they are no longer a risk. During the period of separation, provision shall be made for them to receive comparable services.

C. Immediate health care is shall be provided to admitted residents who need it.

6VAC35-101-990. Tuberculosis screening.

A. Within five days of admission to the facility, each resident shall have had undergone a screening assessment for tuberculosis. The screening assessment can shall be no older than 30 days.

B. A screening assessment for tuberculosis shall be completed annually on each resident.

C. The facility's screening practices shall be performed in a manner consistent with any current recommendations of the Virginia Department of Health, Division of Tuberculosis Prevention and Control and the federal Department of Health and Human Services Centers for Disease Control and Prevention for the detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis.

6VAC35-101-1000. Residents' medical examination; responsibility for preexisting conditions.

A. Within five days of admission, all residents who are not directly transferred from another detention center shall be medically examined by a physician or a qualified health care practitioner operating under the supervision of a physician to determine if the resident requires medical attention or poses a threat to the health of staff or other residents. A full medical examination is not required if there is documented evidence of a complete health examination within the previous 90 days; in such cases, a physician or qualified health care practitioner shall review the resident's health care record and update as necessary.

B. Each physical examination report shall include:

1. Information necessary to determine the health and immunization needs of the resident, including:

a. Immunizations administered at the time of the exam;

b. Vision exam;

c. Hearing exam;

d. A statement of the resident's general physical condition and documentation of communicable disease status, including tuberculosis;

e. Allergies, chronic conditions, and disabilities, if any;

f. Nutritional requirements, including special diets, if any;

g. Restrictions on physical activities, if any; and

h. Recommendations for further treatment, immunizations, and other examinations indicated.

2. Date of the physical examination; and

3. Signature of a licensed physician, the physician's designee, or an official of a local health department.

C. A detention center shall not accept financial responsibility for preexisting medical, dental, psychological, or psychiatric conditions, except on an emergency basis.

6VAC35-101-1010. Infectious or communicable diseases.

A. A resident with a confirmed communicable disease shall not be housed in the general population unless a licensed physician health care professional certifies that:

1. The facility is capable of providing care to the resident without jeopardizing residents and staff; and

2. The facility is aware of the required treatment for the resident and the procedures to protect residents and staff.

B. The facility shall implement written procedures approved by a medical health care professional that:

1. Address staff (i) interactions with residents with infectious, communicable, or contagious medical conditions; and (ii) use of standard precautions;

2. Require staff training in standard precautions, initially and annually thereafter in accordance with 6VAC35-101-190 and 6VAC35-101-200; and

3. Require staff to follow procedures for dealing with residents who have infectious or communicable diseases.

6VAC35-101-1020. Suicide prevention.

Written procedure shall provide for require (i) a suicide prevention and intervention program developed in consultation with a qualified medical or mental health professional and (ii) all direct care staff to be trained and retrained in the implementation of the program, in accordance with 6VAC35-101-190 and 6VAC35-101-200.

6VAC35-101-1030. Residents' health care records.

A. Each resident's health care record shall include written documentation of (i) the initial physical examination, (ii) an annual physical examination by or under the direction of a licensed physician including any recommendation for follow-up care, and (iii) documentation of the provision of follow-up medical care recommended by the physician or as indicated by the needs of the resident.

B. Each physical examination report shall include:

1. Information necessary to determine the health and immunization needs of the resident, including:

a. Immunizations administered at the time of the exam;

b. Vision exam;

c. Hearing exam;

d. General physical condition, including documentation of apparent freedom from communicable disease, including tuberculosis;

e. Allergies, chronic conditions, and handicaps, if any;

f. Nutritional requirements, including special diets, if any;

g. Restrictions on physical activities, if any; and

h. Recommendations for further treatment, immunizations, and other examinations indicated.

2. Date of the physical examination; and

3. Signature of a licensed physician, the physician's designee, or an official of a local health department.

C. B. Each resident's health care record shall include:

1. Notations of health and dental complaints and injuries and, a summary of the residents resident's symptoms, and the treatment given; and

2. A copy of the information required in subsection B of 6VAC35-101-950 (health care procedures).

6VAC35-101-1040. First aid kits.

A. A well-stocked first aid kit shall be maintained, within the facility, as well as in facility vehicles used to transport residents. The first aid kit shall contain an inventory of contents, be stocked with and in accordance with an inventory of contents, and be readily accessible for dealing with minor injuries and medical emergencies.

B. First aid kits should shall be monitored in accordance with established facility written procedures to ensure kits are maintained, stocked, and ready for use.

6VAC35-101-1050. Hospitalization and other outside medical treatment of residents.

A. When a resident needs hospital care or other medical treatment outside the detention center:, a staff member or a law-enforcement officer, as appropriate, shall accompany the resident until appropriate security arrangements are made. This subdivision shall not apply to the transfer of residents under The Psychiatric Inpatient Treatment of Minors Act (§ 16.1-355 et seq. of the Code of Virginia).

1. The resident shall be transported safely; and

2. A staff member or a law-enforcement officer, as appropriate, shall accompany the resident until appropriate security arrangements are made. This subdivision shall not apply to the transfer of residents under The Psychiatric Inpatient Treatment of Minors Act (§ 16.1-355 et seq. of the Code of Virginia).

B. In accordance with applicable laws and regulations, the parent or legal guardian, as appropriate and applicable, shall be informed that the resident was taken outside the facility for medical attention as soon as is practicable.

6VAC35-101-1060. Medication.

A. All medication shall be properly labeled consistent with the requirements of the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia). Medication prescribed for individual use shall be so labeled.

B. All medication shall be securely locked, except (i) as required by 6VAC35-101-1250 (delivery of medication in postdispositional programs) or (ii) if otherwise ordered by a physician on an individual basis for keep-on-person or equivalent use. Except as (i) authorized in written procedures pursuant to 6VAC35-101-1250 or (ii) otherwise ordered by a physician on an individual basis for keep-on-person or equivalent use, all medication shall be locked securely.

C. All staff responsible for medication administration who do not hold a license issued by the Virginia Department of Health Professions authorizing the administration of medications shall, in accordance with the provisions of § 54.1-3408 of the Code of Virginia, either (i) have successfully completed a medication training program approved by the Board of Nursing or (ii) be licensed by the Commonwealth of Virginia to administer medications before they can may administer medication as stated provided in 6VAC35-101-190 (required initial training). Such staff members shall undergo an annual refresher training as stated provided in 6VAC35-101-200 (retraining).

D. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the effects.

E. A program of medication, including procedures regarding the use of over-the-counter medication pursuant to written or verbal orders issued by personnel authorized by law to give such orders, shall be initiated for a resident only when prescribed in writing by a person authorized by law to prescribe medication. A program of medication shall be initiated for a resident only when prescribed in writing by a person authorized by law to prescribe medication. This includes over-the-counter medication administered pursuant to a written or verbal order that is issued by personnel authorized by law to give such orders.

F. All medications shall be administered in accordance with the physician's or other prescriber's instructions and consistent with the requirements of § 54.2-2408 § 54.1-3408 of the Code of Virginia and the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia).

G. A medication administration record shall be maintained of that identifies all medicines received by each resident and shall include that includes:

1. Date the medication was prescribed or most recently refilled;

2. Drug Medication name;

3. Schedule for administration;

4. Strength;

5. Route;

6. Identity of the individual who administered the medication; and

7. Dates Date the medication was discontinued or changed.

H. In the event of If a medication incident or an adverse drug reaction occurs, first aid shall be administered if indicated. Staff shall promptly contact a poison control center, hospital, pharmacist, nurse, or physician and shall take actions as directed. If the situation is not addressed in standing orders, the attending physician shall be notified as soon as possible and the actions taken by staff shall be documented. A medication incident shall mean an error made in administering a medication to a resident including the following: (i) a resident is given incorrect medication; (ii) medication is administered to the incorrect resident; (iii) an incorrect dosage is administered; (iv) medication is administered at a wrong time or not at all; and (v) the medication is administered through an improper method. A medication error does not include a resident's refusal of appropriately offered medication.

I. Written procedures shall provide for require (i) the documentation of medication incidents, (ii) the review of medication incidents and reactions and making any implementation of necessary improvements, (iii) the storage of controlled substances, and (iv) the distribution of medication off campus. The procedures must be approved by a health care professional. Documentation of this approval shall be retained.

J. Medication refusals and the actions taken by staff shall be documented including action taken by staff. The facility shall follow written procedures for managing such the refusals which shall address:

1. Manner The manner by which medication refusals are documented; and

2. Physician follow-up, as appropriate.

K. Disposal and storage of unused, expired, and discontinued medications and medical implements shall be in accordance with applicable laws and regulations.

L. The telephone number of a regional poison control center and other emergency numbers shall be posted on or next to each nonpay telephone that has access to an outside line in each building in which residents sleep or participate in programs.

M. Syringes and other medical implements used for injecting or cutting skin shall be locked and inventoried in accordance with facility procedures.

Article 1

Behavior, Discipline, and Room Restriction

6VAC35-101-1070. Behavior management.

A. A behavior management program shall be implemented in each facility. Behavior management shall mean those principles and methods employed to help a resident achieve positive behavior and to address and correct a resident's inappropriate behavior in a constructive and safe manner in accordance with written procedures governing program expectations and the residents' and employees' safety and security.

B. Written procedures governing this program shall provide the following:

1. A listing list of the rules of conduct and behavioral expectations for the resident;

2. Orientation of residents to the behavior management program as required by 6VAC35-101-800 (admission and orientation);

3. The definition and listing list of a system of privileges and sanctions consequences that is used and are available for use. Sanctions, the specific behaviors or offenses that may result in the imposition of the listed privileges or consequences, and the maximum duration of the consequence for the delineated behavior or offense. Consequences (i) shall be listed in the order of their relative degree of restrictiveness; (ii) may include a "cooling off" cooling-off period where a resident is placed in a room for no more than 60 minutes; and (iii) shall contain alternatives to room confinement disciplinary room restriction;

4. The specification of the staff members who may authorize the use of each privilege and sanction;

5. Documentation requirements when privileges are applied and sanctions or consequences are imposed;

6. The specification of the processes for implementing such procedures; and

7. Means of documenting and monitoring of the program's implementation, including, but not limited to, an on-going ongoing administrative review of the implementation to ensure conformity with the procedures.

C. A facility that allows for and utilizes a cooling-off period as part of its behavior management program shall develop and follow written procedures that:

1. Identify the area in which a resident will serve a cooling-off period;

2. Require that any resident serving a cooling-off period shall have a means of communicating with staff either verbally or electronically;

3. Require that staff check the resident serving a cooling-off period visually at least once every 15 minutes and more often if indicated by the circumstances; and

4. Provide that each cooling-off period is documented in a manner that (i) identifies whether the cooling-off period is resident-selected or compulsory and (ii) ensures the information is accessible to staff and is capable of being reviewed in accordance with subsection E of this section.

C. D. When substantive revisions are made to the behavior management program, written information concerning the revisions shall be provided to the residents, and direct care staff shall be oriented on the changes prior to before implementation.

D. E. The facility administrator shall review collect information on the detention center's behavior intervention techniques and procedures at least, including the use of room restriction and cooling-off periods and shall review the information annually or more frequently to inform the facility's practice and determine appropriateness for the population served.

6VAC35-101-1080. Disciplinary process.

A. Procedures. Written procedures shall govern the disciplinary process that and shall contain the following:

1. Graduated sanctions consequences and progressive discipline;

2. Training on the disciplinary process and rules of conduct; and

3. Documentation on the administration of privileges and sanctions consequences as provided in the behavior management program.

B. Disciplinary report. A disciplinary report shall be completed when it is alleged that a resident has violated a rule of conduct for which room confinement restriction, including a bedtime earlier than that provided on the daily schedule, may be imposed as a sanction.

1. All disciplinary reports shall contain the following:

a. A description of the alleged rule violation, including the date, time, and location;

b. A listing list of any staff present at the time of the alleged rule violation;

c. The signature of the resident and the staff who completed the report; and

d. The sanctions, if any, consequences imposed, if any.

2. A disciplinary report shall not be required when a resident is placed in his restricted to a room or area for a "cooling off" period, as defined in 6VAC35-101-10 and in accordance with written procedures, that does not exceed 60 minutes.

C. Review of rule violation. A review of the disciplinary report shall be conducted by an impartial person. After the resident receives notification of the alleged rule violation, the resident shall be provided with the opportunity to admit or deny the charge.

1. The resident may admit to the charge, in writing, and accept the sanction (i) prescribed for the offense or (ii) as amended by the impartial person.

2. The resident may deny the charge, and the impartial person shall:

a. Meet in person with the resident;

b. Review the allegation with the resident;

c. Provide the resident with the opportunity to present evidence, including witnesses;

d. Provide, upon the request of the resident, Upon the resident's request, provide for an impartial staff member to assist the resident in the conduct of conducting the review;

e. Render a decision and inform the resident of the decision and rationale supporting this decision;

f. Complete the review within 12 hours of the time of the alleged rule violation, including weekends and holidays, unless the time frame ends during but excluding the resident's scheduled sleeping hours. In such circumstances, the delay shall be documented and the review shall be conducted within the same time frame thereafter;

g. Document the review, including any statement of the resident, evidence, witness testimony, the decision, and the rationale for the decision; and

h. Advise the resident of the right to appeal the decision.

D. Appeal. The resident shall have the right to appeal the decision of the impartial person.

1. The resident's claim appeal shall be reviewed by the facility administrator or designee and shall be decided within 24 hours of the alleged rule violation, including weekends and holidays, unless the time frame ends during the resident's scheduled sleeping hours. In such circumstances, the delay shall be documented and the review shall be conducted within the same time frame thereafter. The review by the facility administrator may be conducted via electronic means but excluding the resident's scheduled sleeping hours.

2. The resident shall be notified in writing of the results immediately thereafter, and the signature of the resident and the staff shall be documented, indicating that the resident was informed of the results of the appeal.

E. Report retention. If the resident is found guilty of the rule violation, a copy of the disciplinary report shall be placed in the case record. If a resident is found not guilty of the alleged rule violation, the disciplinary report shall be removed from the resident's case record and shall be maintained as required by 6VAC35-101-330 (maintenance of residents' records). Disciplinary reports shall be maintained in the resident's case record as required by 6VAC35-101-330.

6VAC35-101-1090. Physical restraint. (Repealed.)

A. Physical restraint shall be used as a last resort only after less restrictive interventions have failed or to control residents whose behavior poses a risk to the safety of the resident, others, or the public.

1. Staff shall use the least force deemed reasonable to be necessary to eliminate the risk or to maintain security and order and shall never use physical restraint as punishment or with the intent to inflict injury.

2. Staff may physically restrain a resident only after less restrictive behavior interventions have failed or when failure to restrain would result in harm to the resident or others.

3. Physical restraint may be implemented, monitored, and discontinued only by staff who have been trained in the proper and safe use of restraint.

4. For the purpose of this section, physical restraint shall mean the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

B. Written procedures shall govern the use of physical restraint and shall include:

1. The staff position who will write the report and time frame;

2. The staff position who will review the report and time frame;

3. Methods to be followed should physical restraint, less intrusive interventions, or measures permitted by other applicable state regulations prove unsuccessful in calming and moderating the resident's behavior; and

4. An administrative review of the use of physical restraints to ensure conformity with the procedures.

C. Each application of physical restraint shall be fully documented in the resident's record including:

1. Date and time of the incident;

2. Staff involved;

3. Justification for the restraint;

4. Less restrictive behavior interventions that were unsuccessfully attempted prior to using physical restraint;

5. Duration;

6. Description of method or methods of physical restraint techniques used;

7. Signature of the person completing the report and date; and

8. Reviewer's signature and date.

6VAC35-101-1100. Room confinement and isolation restriction.

A. Written procedures shall govern how and when residents may be confined to a locked room for both segregation and isolation purposes. governing room restriction shall address the following:

1. The actions or behaviors that may result in room restriction;

2. The factors that should be considered before placing a resident in room restriction, such as age, developmental level, or disability;

3. The circumstances under which a debriefing with the resident should occur, the party that should conduct the debriefing, and the topics that should be discussed in the debriefing, including the cause and impact of the room restriction and the appropriate measures post-release to support positive resident outcomes; and

4. When and under what conditions staff must consult with a mental health professional and monitor the resident as directed by the mental health professional if a resident placed in room restriction exhibits self-injurious behavior.

B. Whenever a resident is confined to a locked room, including but not limited to being placed in isolation room restriction, staff shall check the resident visually at least every 30 15 minutes and more often if indicated by the circumstances. Staff shall conduct a check at least every 15 minutes in accordance with approved procedures when the resident is on suicide watch.

C. Residents who are confined to a room, including but not limited to being placed in isolation, room restriction shall be afforded the opportunity for at least one hour of physical exercise, large muscle activity outside of the locked room, every calendar day unless the resident's behavior or other circumstances justify an exception. The reasons for any such exception shall be approved by the facility administrator or the facility administrator's designee and shall be documented.

D. Unless a resident is placed in disciplinary room restriction, as provided in 6VAC35-101-1105, the resident shall be afforded the same opportunities as any other resident in general population, including treatment, education, and as much time out of the resident's room as security considerations allow. Exceptions may be made in accordance with established procedures when justified by clear and substantiated evidence.

D. E. If a resident is confined to his placed in room restriction for any reason for more than 24 hours, the facility administrator or the facility administrator's designee shall be notified and shall provide written approval for the continued room restriction. The written approval shall include a rationale of why the continued room restriction is necessary.

E. F. If the confinement room restriction extends to more than 72 hours, the (i) confinement restriction and (ii) steps being taken or planned to resolve the situation shall be immediately reported immediately to the director or the facility administrator's designee. If this report is made verbally, it shall be followed immediately with a written, faxed, or secure email report in accordance with written procedures. For room restriction anticipated to exceed 72 hours, the medical and mental health status of the resident shall be assessed by a qualified medical health professional or qualified mental health professional within the initial 72-hour room restriction period and on a daily basis after the 72-hour period has elapsed until the resident is released from room restriction.

F. G. Room confinement, including isolation or administrative confinement, restriction shall not exceed five consecutive days except when ordered by a medical provider or a qualified mental health professional.

G. H. When confined to a placed in room restriction, the resident shall have a means of communication with staff, either verbally or electronically.

H. I. The facility administrator or the facility administrator's designee shall make daily personal contact with each resident who is confined to a locked placed in room, including being placed in isolation, each day of confinement restriction in order to ensure that all such residents, with the exception of those placed in disciplinary room restriction, are restricted only for the minimum amount of time required to address the resident's negative behavior or threat. During the daily visit, the facility administrator shall assess and document (i) whether the resident is prepared to return to general population, unless the resident is placed in disciplinary room restriction for a specified time period; and (ii) whether the resident requires a mental health evaluation.

I. During isolation, the resident is not permitted to participate in activities with other residents and all activities are restricted, with the exception of (i) eating, (ii) sleeping, (iii) personal hygiene, (iv) reading, and (v) writing.

J. Residents who are placed in room restriction shall be housed no more than one to a room.

K. The provisions of this section shall apply to all forms of room restriction, including disciplinary room restriction, unless otherwise provided.

6VAC35-101-1105. Disciplinary room restriction.

A. Unless otherwise provided, when a resident is placed in disciplinary room restriction, the provisions of 6VAC35-101-1100 shall apply.

B. Written procedures governing disciplinary room restriction shall:

1. Specify that residents may be placed in room restriction only after application of the disciplinary process, as provided for in 6VAC35-101-1080; and

2. Comply with the behavior management requirements set out in 6VAC35-101-1070.

C. Residents placed in disciplinary room restriction generally shall not be permitted to participate in activities with other residents, and all activities are restricted unless an exception is issued by the facility administrator or his designee. The following activities, however, shall not be restricted: (i) eating, (ii) sleeping, (iii) personal hygiene, (iv) any legally required educational programming or special education services; and (v) large muscle activity, except as permitted in 6VAC35-101-1100 C. The facility administrator or the facility administrator's designee shall provide opportunities for residents placed in disciplinary room restriction to engage in reading or writing activities in accordance with the safety and security needs of the resident.

6VAC35-101-1110. Administrative confinement. (Repealed.)

A. Residents shall be placed in administrative confinement only by the facility administrator or designee, as a last resort for the safety of the residents. The reason for such placement shall be documented in the resident's case record.

B. Residents who are placed in administrative confinement shall be housed no more than two to a room. Single occupancy rooms shall be available when indicated for residents with severe medical disabilities, residents suffering from serious mental illness, sexual predators, residents who are likely to be exploited or victimized by others, and residents who have other special needs for single housing.

C. Residents who are placed in administrative confinement shall be afforded basic living conditions approximating those available to the facility's general population and, as provided for in approved procedures, shall be afforded privileges similar to those of the general population. Exceptions may be made in accordance with established procedures when justified by clear and substantiated evidence. If residents who are placed in administrative confinement are confined to a room or placed in isolation, the provisions of 6VAC35-101-1100 (room confinement and isolation) and 6VAC35-1140 (monitoring restrained residents) apply, as applicable.

D. Administrative confinement means the placement of a resident in a special housing unit or designated individual cell that is reserved for special management of residents for purposes of protective custody or the special management of residents whose behavior presents a serious threat to the safety and security of the facility, staff, general population, or themselves. For the purpose of this section, protective custody shall mean the separation of a resident from the general population for protection from or for other residents for reasons of health or safety.

Article 2

Physical Restraint

6VAC35-101-1115. Physical restraint.

A. Physical restraint shall be used as a last resort only after less restrictive interventions have failed or to control residents whose behavior poses a risk to the safety of the resident, staff, or others.

1. Staff shall use the least force deemed reasonably necessary to eliminate the risk or to maintain security and order and shall never use physical restraint as punishment or with the intent to inflict injury.

2. Physical restraint may be implemented, monitored, and discontinued only by staff who have been trained in the proper and safe use of restraint in accordance with the requirements in 6VAC35-101-190 and 6VAC35-101-200.

B. Each detention center shall implement written procedures governing the use of physical restraint, which shall include:

1. The staff position that will write the report and timeframe for completing the report;

2. The staff position that will review the report and timeframe for completing the review;

3. Methods to be followed should physical restraint, less intrusive interventions, or measures permitted by other applicable state regulations prove unsuccessful in calming and moderating the resident's behavior; and

4. An administrative review of the use of each physical restraint to ensure conformity with the procedures.

C. Each application of physical restraint shall be fully documented in the resident's case record. The document shall include:

1. Date and time of the incident;

2. Staff involved;

3. Justification for the restraint;

4. Less restrictive behavior interventions that were unsuccessfully attempted before using physical restraint;

5. Duration of the restraint;

6. Description of the method or methods of physical restraint techniques used;

7. Signature of the person completing the report and date; and

8. Reviewer's signature and date.

Article 3

Mechanical Restraints and Protective Devices

6VAC35-101-1130. Mechanical restraints and protective devices.

A. Written procedure shall govern the use of mechanical restraints. Such procedures shall be approved by the department and shall specify:

1. The conditions under which handcuffs, waist chains, leg irons, disposable plastic cuffs, leather restraints, and a mobile restraint chair may be used;

2. That the facility administrator or his designee shall be notified immediately upon using restraints in an emergency situation;

3. That restraints shall never be applied as punishment or a sanction;

4. That residents shall not be restrained to a fixed object or restrained in an unnatural position;

5. That each use of mechanical restraints, except when used to transport a resident or during video court hearing proceedings, shall be recorded in the resident's case file or in a central log book; and

6. That a written record of routine and emergency distribution of restraint equipment be maintained.

B. Written procedure shall provide that (i) all staff who are authorized to use restraints shall receive training in such use, including how to check the resident's circulation and how to check for injuries and (ii) only trained staff shall use restraints.

A. Mechanical restraints and protective devices may be used for the following purposes subject to the restrictions enumerated in this section: (i) to control residents whose behavior poses an imminent risk to the safety of the resident, staff, or others; (ii) for purposes of controlled movement, either from one area of the facility to another or to a destination outside the facility; and (iii) to address emergency situations.

B. A detention center that uses mechanical restraints or protective devices shall observe the following general requirements:

1. Mechanical restraints and protective devices shall be used only for as long as necessary to address the purposes established in subsection A of this section. Once the imminent risk to safety has been abated, the resident has reached the resident's intended destination within the facility or has returned to the facility from a destination off-site, or the emergency situation has been resolved, the mechanical restraint or protective device shall be removed;

2. The facility administrator or the facility administrator's designee shall be notified immediately upon using mechanical restraints or protective devices in an emergency situation;

3. The facility shall not use mechanical restraints or protective devices as a punishment or a sanction;

4. Residents shall not be restrained to a fixed object or restrained in an unnatural position. For purposes of this section, securing a resident to a hospital bed or wheelchair may be permitted in an outside medical setting upon written approval by the facility administrator;

5. A mental health clinician, qualified mental health professional, or other qualifying licensed medical professional may order termination of a mechanical restraint or protective device at any time upon determining that the item poses a health risk;

6. Each use of a mechanical restraint or protective device, except when used to transport a resident or during video court hearing proceedings, shall be recorded in the resident's case file or in a central log book;

7. A written system of accountability shall be in place to ensure routine and emergency distribution of mechanical restraints and protective devices; and

8. All staff who are authorized to use mechanical restraints or protective devices shall receive training in such use in accordance with 6VAC35-101-190 and 6VAC35-101-200, and only trained staff shall use restraint or protective devices.

C. A detention center that uses a mechanical restraint to control a resident whose behavior poses a safety risk in accordance with subdivision A 1 of this section shall notify a health care provider and a mental health clinician or qualified mental health professional before continuing to use the restraint and, if applicable, the accompanying protective device if the imminent risk has been abated, but the facility determines that continued use of the mechanical restraint is necessary to maintain security due to the resident's ongoing credible threat to injure the resident's self or others. This may include instances in which the resident verbally expresses the intent to continue the actions that required the restraint.

D. A detention center may not use a protective device unless such use is in connection with a restraint and shall remove the device when the resident is released from the restraint.

E. In addition to the requirements in subsections A through D of this section, if staff in a juvenile detention center use a spit guard to control resident behavior, they shall observe the following requirements:

1. Staff may not use a spit guard unless it possesses the following characteristics:

a. The spit guard's design may not inhibit the resident's ability to breathe;

b. The spit guard must be constructed to allow for visibility; and

c. The spit guard must be manufactured and sold specifically for the prevention of biting or spitting.

2. The spit guard may be used only on a resident who (i) previously has bitten or spit on a person at the facility or (ii) in the course of a current restraint, threatens or attempts to spit on or bite or actually spits on or bites a staff member.

3. The spit guard must be applied in a manner that will not inhibit the resident's ability to breathe.

4. While the spit guard remains in place, staff shall provide for the resident's reasonable comfort and ensure the resident's access to water and meals, as applicable.

5. Staff must employ constant supervision of the resident while the spit guard remains in place to observe whether the resident exhibits signs of respiratory distress. If any sign of respiratory distress is observed, staff shall take immediate action to prevent injury and to notify supervisory staff.

6. Staff may not use a spit guard on a resident who is unconscious, vomiting, or in obvious need of medical attention.

6VAC35-101-1140. Monitoring restrained residents placed in mechanical restraints.

A. Written procedure shall provide that when if a resident is placed in mechanical restraints, staff shall:

1. Provide for the resident's reasonable comfort and ensure the resident's access to water, meals, and toilet; and

2. Make a direct personal face-to-face check on the resident at least every 15 minutes and more often if the resident's behavior warrants, such checks shall include monitoring the resident's circulation in accordance with the procedure provided for in 6VAC35-101-1130 B. Staff shall attempt to engage verbally with the resident during each periodic check. These efforts may include explaining the reasons for which the resident is being restrained or the steps necessary to be released from the restraint or otherwise attempting to deescalate the resident. During each check, a health-trained staff member shall monitor the resident for signs of circulation and for injuries.

B. If a resident remains in a mechanical restraint for a period that exceeds one hour, the resident shall be permitted to exercise each limb for a minimum of 10 minutes every two hours to prevent blood clots.

C. When a resident is placed in mechanical restraints for more than two hours cumulatively in a 24-hour period, with the exception of use in routine transportation of residents, staff shall immediately shall consult with a health care provider and a qualified mental health professional or mental health clinician. This consultation shall be documented.

C. D. If the resident, after being placed in mechanical restraints, exhibits self-injurious behavior, staff shall (i) staff shall immediately take appropriate action to ensure the threat or harm is stabilized; (ii) consult with and document that they have consulted with a mental health clinician or qualified mental health professional immediately thereafter and (ii) document the consultation; and (iii) monitor the resident shall be monitored in accordance with established protocols, including constant supervision, if appropriate. Any such protocols shall be in compliance with the procedures required by 6VAC35-101-1150 (restraints for medical and mental health purposes).

6VAC35-101-1145. Written procedures regarding mechanical restraints and protective devices.

A detention center that uses mechanical restraints or protective devices shall develop and implement written procedures approved by the facility administrator that reflect the requirements established in this article.

6VAC35-101-1150. Restraints for medical and mental health purposes (Repealed). (Repealed.)

Written procedure shall govern the use of restraints for medical and mental health purposes. Written procedure shall identify the authorization needed; when, where, and how restraints may be used; for how long; and what type of restraint may be used.

Article 4

Mechanical Restraint Chairs

6VAC35-101-1153. Mechanical restraint chair; general provisions.

A detention center that utilizes a mechanical restraint chair shall observe the following requirements, regardless of whether the chair is used for purposes of controlled movement in accordance with 6VAC35-101-1154 or for other purposes in accordance with 6VAC35-101-1155:

1. The restraint chair shall never be applied as punishment or as a sanction.

2. All staff authorized to use the restraint chair shall receive training in such use in accordance with 6VAC35-101-190 and 6VAC35-101-200.

3. The facility administrator or the facility administrator's designee shall provide approval before a resident may be placed in the restraint chair.

4. Staff shall notify the health authority, designated in accordance with 6VAC35-101-930, immediately upon placing the resident in the restraint chair to assess the resident's medical and mental health condition, to ascertain whether the restraint is contraindicated based on the resident's physical condition or behavior or whether other accommodations are necessary, and to advise whether, on the basis of serious danger to self or others, the resident should be in a medical or mental health unit for emergency involuntary treatment. The requirements of this subdivision shall not apply when the restraint chair is requested by a resident for whom such voluntary use is part of an approved plan of care by a mental health clinician or qualified mental health professional in accordance with 6VAC35-101-1155 C.

5. If the resident, after being placed in the mechanical restraint chair, exhibits self-injurious behavior, staff shall (i) take appropriate action to ensure the threat or harm is stabilized; and (ii) consult a mental health clinician or qualified mental health professional immediately thereafter and obtain approval for continued use of the restraint chair.

6. The health authority, a mental health clinician, a qualified mental health professional, or other qualifying licensed medical professional may order termination of restraint chair use at any time upon determining that use of the chair poses a health risk.

7. Each use of the restraint chair shall constitute a serious incident, to which the provisions of 6VAC35-101-80 shall apply.

8. Each use of the restraint chair shall be documented in the resident's case file or in a central logbook. The documentation shall include:

a. Date and time of the incident;

b. Staff involved in the incident;

c. Justification for the restraint;

d. Less restrictive interventions that were attempted or an explanation of why the restraint chair is the least restrictive intervention available to ensure the resident's safe movement;

e. Duration of the restraint;

f. Signature of the person documenting the incident and date;

g. Indication that all applicable approvals required in this article have been obtained; and

h. Reviewer's signature and date.

9. Staff shall conduct a debriefing of the restraint after releasing the resident from the chair.

6VAC35-101-1154. Mechanical restraint chair use for controlled movement; conditions.

A. A detention center shall be authorized to use a mechanical restraint chair for purposes of controlled movement of a resident from one area of the facility to another, provided the following conditions are satisfied:

1. The resident's refusal to move from one area of the facility to another poses a direct and immediate threat to the resident or others or interferes with required facility operations; and

2. Use of the restraint chair is the least restrictive intervention available to ensure the resident's safe movement.

B. When the facility utilizes the restraint chair in accordance with this section, staff shall remove the resident from the chair immediately upon reaching the intended destination. If staff, upon reaching the intended destination, determine that continued restraint is necessary, staff shall consult with a mental health clinician for approval of the continued restraint.

6VAC35-101-1155. Mechanical restraint chair use for purposes other than controlled movement; conditions for use.

A. A detention center shall be authorized to use a mechanical restraint chair for purposes other than controlled movement provided the following conditions are satisfied:

1. The resident's behavior or actions present a direct and immediate threat to the resident or others;

2. Less restrictive alternatives were attempted but were unsuccessful in bringing the resident under control or abating the threat;

3. The resident remains in the restraint chair only for as long as necessary to abate the threat or help the resident gain self-control.

B. Once the direct threat is abated, if staff determines that continued restraint is necessary to maintain security due to the resident's ongoing credible threat to injure resident self or others, staff shall consult a mental health clinician or qualified mental health professional for approval of the continued restraint. The ongoing threat may include instances in which the resident verbally expresses the intent to continue the actions that required the restraint.

C. The detention center shall be excused from the requirements in subsections A and B of this section when the restraint chair is requested by a resident for whom such voluntary use is part of an approved plan of care by a qualified mental health professional or mental health clinician.

D. Whenever a resident is placed in a restraint chair for purposes other than controlled movement, staff shall observe the following monitoring requirements:

1. Employ constant, one-on-one supervision until the resident is released from the chair. Staff shall attempt to engage verbally with the resident during the one-on-one supervision. These efforts may include explaining the reasons for which the resident is being restrained or the steps necessary to be released from the restraint or otherwise attempting to deescalate the resident;

2. Ensure that a health-trained staff monitors the resident for signs of circulation and for injuries at least once every 15 minutes in accordance with written procedures; and

3. Ensure that the resident is reasonably comfortable and has access to water, meals, and toilet.

6VAC35-101-1156. Monitoring residents placed in a mechanical restraint chair.

A. If a resident remains in the restraint chair for a period that exceeds one hour, the resident shall be permitted to exercise each limb for a minimum of 10 minutes every two hours to prevent blood clots.

B. A detention center shall ensure that a video record of the following is captured and retained for a minimum of three years in accordance with 6VAC35-101-40:

1. The placement of a resident in a restraint chair when a resident is restrained for purposes of controlled movement;

2. The entire restraint, from the time the resident is placed in the restraint chair until the resident's release when a resident is restrained in the chair for purposes other than controlled movement. The detention center may satisfy this requirement by positioning the restraint chair within direct view of an existing security camera.

6VAC35-101-1157. Department monitoring visits; annual reporting; board review.

A. If a detention center uses a mechanical restraint chair to restrain a resident, regardless of the purpose or duration of the use, the detention center shall be subject to a monitoring visit conducted by the department pursuant to the authority provided in 6VAC35-20-60. The purpose of the monitoring visit shall be to assess the detention center's compliance with the provisions of this article.

B. Upon completion of the monitoring visit, the department shall provide the detention center with a written report of its findings in accordance with 6VAC35-20-90. A detention center cited for noncompliance with a regulatory requirement pursuant to this monitoring visit may request a variance or appeal the finding of noncompliance in accordance with 6VAC35-20-90.

C. The department shall document each monitoring visit conducted pursuant to subsection A of this section and provide a written report to the board annually that details, at a minimum, the following information regarding each separate incident in which the restraint chair is used:

1. The facility in which the chair is used;

2. The date and time of the use;

3. A brief description of the restraint, including the purpose for which the restraint was applied, the duration of the restraint, and the circumstances surrounding the resident's release from the restraint;

4. The extent to which the detention center complied with the regulatory requirements related to mechanical restraint chair use, as set forth in 6VAC35-101-1153 through 6VAC35-101-1158; and

5. The plans identified to address findings of noncompliance, if applicable.

D. The annual report shall be placed on the agenda for the next regularly scheduled board meeting for the board's consideration and review.

6VAC35-101-1158. Written procedures regarding mechanical restraint chairs.

A detention center that uses a mechanical restraint chair to restrain a resident shall develop and implement written procedures approved by the facility administrator that reflect the requirements established in this article.

6VAC35-101-1160. Approval of postdispositional detention programs.

A detention center that accepts placements in a postdispositional detention program, as defined herein in 6VAC35-101-10, must be approved by the board certified by the director to operate a postdispositional detention program. The certificate issued by the board director shall state that the detention center is approved to operate a postdispositional detention program and the maximum number of residents that may be included in the postdispositional detention program. The board will base its approval of the postdispositional detention program on the program's compliance with provisions of 6VAC35-101-1160 (approval of postdispositional detention programs) through 6VAC35-101-1270 (release from a postdispositional detention program).

6VAC35-101-1170. Agreement with court service unit.

The postdispositional detention program shall request enter into a written agreement with the court service unit of the committing court defining ordering placement into the program. The agreement shall define working relationships and responsibilities in the implementation and utilization of the postdispositional detention program.

6VAC35-101-1180. Placements in postdispositional detention programs.

A. A detention center that accepts placements in a postdispositional detention program shall have written procedure procedures ensuring reasonable utilization of the detention center for both predispositional detention and the postdispositional detention program. This procedure shall provide for a process to ensure that the postdispositional detention program does not cause the detention center to exceed its rated capacity.

B. When a court orders a resident detained in a postdispositional detention program, the detention center shall:

1. Obtain from the court service unit a copy of the court order, the resident's most recent social history, and any other written information considered by the court during the sentencing hearing; and

2. Develop a written plan with the court service unit within five business days to enable such residents to take part in one or more locally available treatment programs appropriate for their rehabilitation that may be provided in the community or at the detention center. The plan shall address how the resident will be transported and may authorize detention center staff, court service unit staff, or any other responsible adult approved by the detention center to carry out the transport.

C. When a detention center accepts placements in a postdispositional detention program, the detention center shall:

1. Provide programs or services for the residents in the postdispositional detention program that are not routinely available to predispositionally detained residents. This requirement shall not prohibit residents in the postdispositional detention program from participating in predispositional services or any other available programs; and

2. Establish a schedule clearly identifying the times and locations of programs and services available to residents in the postdispositional detention program.

D. Upon the receipt of (i) a referral of the probation officer of a potential resident who meets the prerequisite criteria for placement provided in § 16.1-284.1 of the Code of Virginia or (ii) an order of the court, the detention center shall conduct the statutorily required assessment as to whether a resident is an appropriate candidate for placement in a postdispositional detention program. The assessment shall assess determine the resident's need for services using a process that is outlined in writing, approved by the department, and agreed to by both the facility administrator and the director of the court service unit. Based on these identified needs, the assessment shall indicate the appropriateness of the postdispositional detention program for the resident's rehabilitation.

E. When programs or services are not available in the detention center, a resident in a postdispositional detention program may be considered for temporary release from the detention center to access such programs or services in the community.

1. Prior to Before any such temporary release, both the detention center and the court service unit shall agree in writing as to the suitability of the resident to be temporarily released for this purpose.

2. Residents who present a significant risk to themselves or others shall not be considered suitable candidates for participation in programs or services outside the detention center or for paid employment outside the detention center. Such residents may participate in programs or services within the detention center, as applicable, appropriate, and available.

6VAC35-101-1190. Program description.

The postdispositional detention program shall have a written statement of its:

1. Purpose and philosophy;

2. Treatment objectives;

3. Criteria and requirements for accepting residents;

4. Criteria for measuring a resident's progress;

5. General rules of conduct and the behavior management program, with specific expectations for behavior and appropriate sanctions;

6. Criteria and procedures for terminating services, including terminations prior to before the resident's successful completion of the program;

7. Methods and criteria for evaluating program effectiveness; and

8. Provisions for appropriate custody, supervision, and security when programs or services are delivered outside the detention center.

6VAC35-101-1200. Individual service plans in postdispositional detention programs.

A. A written plan of action, the The individual service plan, shall be developed and placed in the resident's record within 30 days following admission and implemented immediately thereafter. The individual service plan shall:

1. Be revised as necessary and reviewed at intervals; and

2. Specify (i) measurable short-term and long-term goals; (ii) the objectives, strategies, and time frames for reaching the goals; and (iii) the individuals responsible for carrying out the plan.

B. Individual service plans shall describe in measurable terms the:

1. Strengths and needs of the resident;

2. Resident's current level of functioning;

3. Goals, objectives, and strategies established for the resident;

4. Projected family involvement; and

5. Projected date for accomplishing each objective.

C. Each individual service plan shall include the date it was developed and the signature of the person who developed it.

D. The resident and facility staff shall participate in the development of the individual service plan.

E. The (i) supervising agency and (ii) resident's parents, legal guardian, or legally authorized representative, if appropriate and applicable, shall be given the opportunity to participate in the development of the resident's individual service plan.

F. The initial individual service plan shall be distributed to the resident, the resident's parents or legal guardian as appropriate and applicable, and the applicable court service unit.

G. Staff responsible for daily implementation of the resident's individual service plan shall be able to describe the resident's behavior in terms of the objectives in the plan.

6VAC35-101-1210. Progress reports in postdispositional detention programs.

A. There shall be a documented review of each resident's progress in accordance with § 16.1-284.1 of the Code of Virginia. The review shall report the resident's:

1. Resident's progress Progress toward meeting the plan's objectives;

2. Family's involvement; and

3. Continuing needs of the resident.

B. Each progress report shall include (i) the date it was developed and (ii) the signature of the person who developed it.

6VAC35-101-1220. Case management services in postdispositional detention programs.

A. The facility shall implement and follow written procedures governing case management services that shall address:

1. Helping the resident and the parents or legal guardian to understand the effects on the resident of separation from the family and the effect of group living;

2. Assisting the resident and the family to maintain in maintaining their relationships and prepare preparing for the resident's future care;

3. Utilizing appropriate community resources to provide services and maintain contacts with such resources;

4. Helping the resident strengthen his capacity to function productively in interpersonal relationships;

5. Conferring with the child care staff to help them understand the resident's needs in order to promote adjustment to group living; and

6. Working with the resident, the family, or any placing agency that may be involved in planning for the resident's future and in preparing the resident for the return home or to another family, for independent living, or for other residential care.

B. The provision of case management services shall be documented in the case record.

6VAC35-101-1230. Residents' health care records in postdispositional detention programs.

A. In addition to the requirements of 6VAC35-101-1030 (residents' health care records), each resident's health care record shall include or document all efforts to obtain treatment summaries of ongoing psychiatric or other mental health treatment and reports, if applicable.

B. In addition to the information required by 6VAC35-101-950 (health care procedures), the following information shall be readily accessible to staff who may have need to respond to a medical or dental emergency:

1. Medical insurance company name and policy number or Medicaid number; and

2. Written permission for emergency medical care, dental care, and obtaining immunizations or a procedure and contacts for obtaining consent.

6VAC35-101-1240. Services by licensed professionals in postdispositional detention programs.

When a postdispositional detention program refers a resident to a licensed professional in private practice, the program shall check with the appropriate licensing authority's Internet web page or by other appropriate means to verify that the individual is appropriately licensed.

6VAC35-101-1250. Delivery of medication in postdispositional detention programs.

A detention center that accepts postdispositional placements exceeding 30 consecutive days pursuant to § 16.1-284 § 16.1-284.1 of the Code of Virginia shall have implement and follow written procedures, approved by its health authority, that either permits permit or prohibits prohibit self-medication by postdispositional residents. The procedures may distinguish between residents who receive postdispositional services entirely within the confines of the detention center and those who receive any postdispositional services outside the detention center. The procedures shall conform to the specific requirements of the Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia).

6VAC35-101-1270. Release from a postdispositional detention program.

In addition to the requirements in 6VAC35-101-840 (discharge), information concerning the resident's need for continuing therapeutic interventions, educational status, and other items important to the resident's continuing care shall be provided to the legal guardian or legally authorized representative, as appropriate, at the time of the resident's discharge release from the facility.

DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-101)

Guidelines for Transporting Juveniles in Detention, revised September 8, 2004, Virginia Department of Juvenile Justice

Compliance Manual - Juvenile Secure Detention Centers, effective January 1, 2014, Virginia Department of Juvenile Justice

VA.R. Doc. No. R17-4832; Filed April 28, 2021
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Withdrawal of Proposed Regulation

Title of Regulation: 8VAC20-40. Regulations Governing Educational Services for Gifted Students (amending 8VAC20-40-20, 8VAC20-40-40, 8VAC20-40-55, 8VAC20-40-60).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Notice is hereby given that the State Board of Education has WITHDRAWN the regulatory action for 8VAC20-40, Regulations Governing Educational Services for Gifted Students, the Notice of Intended Regulatory Action for which was published in 36:2 VA.R. 89 September 16, 2019. On March 12, 2021, the State Board of Education received two letters from the African American Superintendents Advisory Council (AASAC): one letter addressing advancing racial equity in Virginia's public schools, and another letter encouraging the board to issue guidance on the governance of academic-year Governor's Schools. The impetus behind the letter requesting the board to issue guidance on the governance of academic-year Governor's Schools came from House Bill 2305 introduced during the 2021 Session of the General Assembly, requiring the board to "issue guidance on the governance of academic year Governor's Schools, including communication and outreach practices, admissions policies, and guidelines on diversity, equity, and inclusion training." This bill was passed by indefinitely in the Senate's Education and Health Committee. Subsequently and pursuant to § 2.2-4016 of the Code of Virginia, the State Board of Education voted to withdraw the proposed stage of the regulatory action regarding 8VAC20-40, Regulations Governing Educational Services for Gifted Students, at the board's April 22, 2021, meeting to provide staff and the board additional time to respond to potential action items and solicit public feedback and engagement.

Agency Contact: Donna Poland, Specialist, Governor's Schools and Gifted Education, Department of Education, 101 North 14th Street, Richmond, VA 23219, telephone (804) 225-2884, or email donna.poland@doe.virginia.gov.

VA.R. Doc. No. R20-6142; Filed April 27, 2021
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Action Withdrawn

Title of Regulation: 8VAC20-131. Regulations Establishing Standards for Accrediting Public Schools in Virginia (amending 8VAC20-131-5; adding 8VAC20-131-185).

Statutory Authority: § 22.1-253.13 of the Code of Virginia.

Notice is hereby given that the State Board of Education has WITHDRAWN the proposed regulatory action for 8VAC20-131, Regulations Establishing Standards for Accrediting Public Schools in Virginia, that was published in 31:24 VA.R. 2151-2156 July 27, 2015. Chapter 183 of the 2021 Acts of Assembly requires the board to promulgate regulations establishing standards for the accreditation of public virtual schools that enroll students full time. The original intent of the legislation was to address situations where a student would be enrolled in a public schools and take all coursework virtually, rather than in a traditional "brick and mortar" environment. For reasons unknown to Department of Education staff, this regulatory action did not proceed to the final stage.

The climate and necessity of virtual learning expanded drastically in 2020 due to the COVID-19 pandemic. The pandemic has highlighted areas of need for Virginia's public education system to ensure equity of opportunity for all students. As school divisions pivoted to support students through multiple instructional methods including hybrid and virtual formats, several factors have had a large impact on consistent, effective implementation of quality instruction, including (i) lack of broadband infrastructure and access for all students; (ii) lack of devices for each student to access virtual instruction; (iii) lack of capacity of school divisions and professional development for educators to support the shift to virtual teaching and learning; and (iv) the inadequacy of a virtual format to meet many students' needs, particularly students with special needs and younger students. While promulgating regulations establishing standards for accreditation of public virtual schools may not address each aspect of those inadequacies, more consistent standards and expectations would likely have a positive impact on quality instruction and student achievement. The State Board of Education intends to start a new regulatory action by issuing a new Notice of Intended Regulatory Action in the coming months.

Agency Contact: Holly M. Coy, Assistant Superintendent, Policy, Equity and Communications, State Board of Education, P.O. Box 2120, Richmond, VA 23218-2120, telephone (804) 225-2092, or email holly.coy@doe.virginia.gov.

VA.R. Doc. No. R12-3261; Filed April 27, 2021
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Final

REGISTRAR'S NOTICE: The State Air Pollution Control Board is claiming an exemption from the Administrative Process Act in accordance with Item 378 B of Chapter 1289 of the 2020 Acts of Assembly and Chapter 56 of the 2020 Acts of Assembly, Special Session I. Item 378 B exempts the actions of the board relating to the adoption of regulations necessary to implement the provisions of the acts.

Title of Regulation: 9VAC5-145. Regulations for Control of Greenhouse Gases (Rev. D20) (adding 9VAC5-145-100 through 9VAC5-145-150).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Effective Date: June 1, 2021.

Agency Contact: Gary Graham, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4178, or email gary.graham@deq.virginia.gov.

Summary:

Pursuant to Item 378 B of Chapter 1289 of the 2020 Acts of Assembly and Chapter 56 of the 2020 Acts of Assembly, Special Session I, the amendments incorporate by reference the prohibitions and restricted end-uses of 40 CFR Part 82, Subpart G, Appendices U and V and provide exemptions for (i) sell-through and use of products and equipment manufactured prior to the compliance dates in the regulation that are required by the federal American Innovation and Manufacturing Act of 2020 and (ii) extruded polystyrene boardstock products and equipment manufactured in Virginia intended only for sale and distribution outside of Virginia.

Chapter 145

Regulations for Control of Greenhouse Gases

9VAC5-145-100. Applicability, prohibitions, and exemptions.

A. The sale, lease, rent, installation, or entry into commerce in the Commonwealth of Virginia by any person of any products or equipment that use or will use hydrofluorocarbons for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, is prohibited after the effective date specified in 9VAC5-145-120.

B. Except where an existing system is retrofitted, nothing in this chapter requires a person that acquired prior to the effective date of the restrictions specified in 9VAC5-145-120, a product or equipment containing a substance prohibited under this chapter, to cease use of that product or equipment.

C. The prohibitions of this chapter do not apply to products or equipment in specific applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, that were manufactured prior to the effective date of the restrictions specified in 9VAC5-145-120.

D. Notwithstanding subsection A of this section, the uses of hydrofluorocarbons specified in subdivisions 1 and 2 of this subsection are exempt from the prohibitions for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

1. This chapter does not restrict the use of hydrofluorocarbons in the manufacturing process by extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia to produce products for sale and distribution outside of the Commonwealth, as long as the manufacturer and the distributors of that product can demonstrate (i) that the extruded polystyrene boardstock or billet product is intended for distribution and sale, lease, rental, installation, or entry into commerce outside of the Commonwealth of Virginia and (ii) that the manufacturer and distributors have taken reasonable precautions to assure that the extruded polystyrene boardstock or billet product is not distributed within the Commonwealth for sale, lease, rental, installation, or entry into commerce. This exemption does not apply to extruded polystyrene boardstock or billet products that are sold, leased, rented, installed, or otherwise entered into commerce by any person to retail outlets within the Commonwealth. This exemption shall expire on the date specified in 9VAC5-145-130 B.

2. This chapter does not restrict the management or use of a regulated substance for which the Administrator of the U. S. Environmental Protection Agency has provided a mandatory allocation of allowances pursuant to Section 103 (e)(4)(B)(iv)(I) of the American Innovation and Manufacturing Act of 2020 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (H.R. 133 (116th)) for the exclusive use in applications solely for:

a. A propellant in metered dose inhalers;

b. Defense sprays;

c. Structural composite preformed polyurethane foam for marine use and trailer use;

d. The etching of semiconductor material or wafers and the cleaning of chemical vapor deposition chambers within the semiconductor manufacturing sector;

e. Mission-critical military end-uses, such as armored vehicle engine and shipyard fire suppression systems and systems used in deployable and expeditionary applications; and

f. Onboard aerospace fire suppression.

3. The exemption in subdivision 2 of this subsection shall expire on December 28, 2025, or in the event the Administrator of the U.S. Environmental Protection Agency has extended providing the allocation of allowances for certain essential uses pursuant to Section 103 (e)(4)(B)(v)(II) of the American Innovation and Manufacturing Act of 2020 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (H.R. 133 (116th)) to the date that extension ends, whichever is later.

E. The provisions of this chapter apply throughout the Commonwealth of Virginia.

9VAC5-145-110. Definitions.

A. For the purpose of applying this chapter and the prohibitions on hydrofluorocarbons for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this chapter, all terms not defined in this section shall have the meanings given them in 9VAC5-10, General Definitions, unless otherwise required by context.

C. Terms defined.

"Aerosol propellant" means a liquefied or compressed gas, used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Air conditioning equipment" means chillers, both centrifugal chillers and positive displacement chillers, intended for comfort cooling of occupied spaces.

"Application" means a specific use within a major industrial sector end-use.

"Bunstock" means a large solid block-like structure formed during the production of polyurethane, polyisocyanurate, phenolic, or polystyrene insulation.

"Capital cost" means an expense incurred in the production of goods or in rendering services, including the cost of engineering, purchase, and installation of components or systems, and instrumentation; and contractor and construction fees.

"Centrifugal chiller" means air conditioning equipment that utilizes a centrifugal compressor in a vapor-compression refrigeration cycle typically used for commercial comfort air conditioning, but not for cooling for industrial process cooling and refrigeration.

"Class I substance" means any ozone-depleting compound defined in the Clean Air Act, 42 USC § 7671(3).

"Class II substance" means any ozone-depleting compound defined in the Clean Air Act, 42 USC § 7671(4).

"Cold storage warehouse" means a cooled facility designed to store meat, produce, dairy products, and other products delivered to other locations for sale to the ultimate consumer.

"Component" means a part of a refrigeration system, including condensing units, compressors, condensers, evaporators, and receivers, and all of its connections and subassemblies, without which the refrigeration system will not properly function or will be subject to failures.

"Cumulatively replaced" means the addition of or change in multiple components within a three-year period.

"Effective date" means the date after which new or retrofit equipment or products are prohibited, where applicable.

"End-use" means processes or classes of specific applications within industry sectors listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

"Flexible polyurethane" means a nonrigid synthetic foam containing polymers created by the reaction of isocyanate and polyol, including that used in furniture, bedding, and chair cushions.

"Foam" means a product with a cellular structure formed via a foaming process in a variety of materials that undergo hardening via a chemical reaction or phase transition.

"Foam blowing agent" means substance that functions as a source of gas to generate bubbles or cells in the mixture during the formation of foam.

"Foam system" means a multipart liquid material that expands when mixed to form a solid or flexible substance in which thin films of material separate pockets of gas.

"Greenhouse gases" means, for the purposes of this chapter, the aggregate group of the following gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

"Household refrigerators and freezers" means refrigerators, refrigerator-freezers, freezers, and miscellaneous household refrigeration appliances intended for residential use. For the purposes of this chapter, the definition of household refrigerators and freezers does not include household refrigerators and freezers - compact or household refrigerators and freezers - built-in.

"Household refrigerators and freezers - built-in" means refrigerators, refrigerator-freezers, and freezers intended for residential use with 7.75 cubic feet or greater total volume and 24 inches or less depth not including doors, handles, and custom front panels; with sides that are not finished and not designed to be visible after installation; and designed, intended, and marketed exclusively to be installed totally encased by cabinetry or panels that are attached during installation and securely fastened to adjacent cabinetry, walls, or floor and equipped with an integral factory-finished face or to accept a custom front panel.

"Household refrigerators and freezers - compact" means refrigerators, refrigerator-freezers, and freezers intended for residential use with a total refrigerated volume of less than 7.75 cubic feet (220 liters).

"Hydrofluorocarbon" or "HFC" means a class of greenhouse gases that are saturated organic compounds containing hydrogen, fluorine, and carbon.

"Integral skin polyurethane" means a synthetic self-skinning foam containing polyurethane polymers formed by the reaction of an isocyanate and a polyol, including those used in car steering wheels and dashboards.

"Manufacturer" means a person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces any product that contains or uses hydrofluorocarbons or is an importer or domestic distributor of such a product.

"Metered dose inhaler" or "MDI" means a device that delivers a measured amount of medication as a mist that a patient can inhale, typically used for bronchodilation to treat symptoms of asthma, chronic obstructive pulmonary disease (COPD), chronic bronchitis, emphysema, and other respiratory illnesses. A MDI consists of a pressurized canister of medication in a case with a mouthpiece.

"Mixture" means a blend of two or more compounds.

"New" means:

1. Products or equipment that are manufactured after June 1, 2021;

2. Products or equipment that are first installed for an intended purpose with new or used components;

3. Products or equipment that are expanded by the addition of components to increase system capacity after June 1, 2021; or

4. Products or equipment replaced or cumulatively replaced such that the cumulative capital cost after June 1, 2021, of replacement exceeds 50% of the capital cost of replacing the whole system.

"Phenolic insulation board" means boards, blocks or other shapes fabricated with phenolic foam.

"Polyolefin" means the foam sheets and tubes made of polyolefin, a macromolecule formed by the polymerization of olefin monomer units.

"Polystyrene extruded boardstock and billet" means a foam formed from predominantly styrene monomer and produced on extruding machines in the form of continuous foam slabs that can be cut and shaped into panels and used for roofing, walls, flooring, and pipes.

"Polystyrene extruded sheet" means polystyrene foam, including that used for packaging, buoyancy or floatation and food-service items such as hinged polystyrene containers (for take-out from restaurants), food trays (meat and poultry) plates, bowls, and retail egg containers.

"Polyurethane" means a polymer formed principally by the reaction of an isocyanate and a polyol, including polyisocyanurate (polyiso).

"Positive displacement chiller" means vapor compression cycle chillers that use positive displacement compressors and are typically used for commercial comfort air conditioning. For the purpose of this chapter, positive displacement chiller does not include cooling for industrial process cooling and refrigeration.

"Refrigerant" or "refrigerant gas" means any substance, including blends and mixtures, that is used for heat transfer purposes.

"Refrigerated food processing and dispensing equipment" means retail food refrigeration equipment that is designed to process and dispense food and beverages that are intended for immediate or near-immediate consumption, including chilled and frozen beverages, ice cream, and whipped cream. This end-use excludes water coolers and units designed solely to cool and dispense water.

"Refrigeration equipment" means any stationary device that is designed to contain and use refrigerant gas to establish or maintain colder than ambient temperatures in a confined space, including retail or commercial refrigeration equipment, household refrigerators and freezers, and cold storage warehouses.

"Remote condensing units" means retail refrigeration equipment or units that have a central condensing portion and may consist of one or more compressors, condensers, and receivers assembled into a single unit, which may be located external to the sales area. The condensing portion and often other parts of the system are located outside the space or area cooled by the evaporator. Remote condensing units are commonly installed in convenience stores, specialty shops (e.g., bakeries, butcher shops), supermarkets, restaurants, and other locations where food is stored, served, or sold.

"Residential use" means use by a private individual of a substance, or a product containing the substance, in or around a permanent or temporary household, during recreation, or for any personal use or enjoyment. Use within a household for commercial or medical applications is not residential use, nor is use in automobiles, watercraft, or aircraft.

"Retail food refrigeration" or "commercial refrigeration" means equipment designed to store and display chilled or frozen goods for commercial sale, including stand-alone units, refrigerated food processing and dispensing equipment, remote condensing units, supermarket systems, and vending machines.

"Retrofit" means the replacement of the refrigerant used in refrigeration equipment with a different refrigerant and any related changes to the refrigeration equipment required to maintain its operation and reliability following refrigerant replacement.

"Rigid polyurethane and polyisocyanurate laminated boardstock" means laminated board insulation made with polyurethane or polyisocyanurate foam, including that used for roofing and walls but not including rigid polyurethane appliance foam, rigid polyurethane commercial refrigeration and sandwich panels, rigid polyurethane marine flotation foam, rigid polyurethane spray foam, and rigid polyurethane one-component foam sealants.

"Rigid polyurethane appliance foam" means polyurethane insulation foam in household appliances.

"Rigid polyurethane commercial refrigeration and sandwich panels" means polyurethane foam used to provide insulation in walls and doors, including that used for commercial refrigeration equipment, and used in doors, including garage doors.

"Rigid polyurethane high-pressure two-component spray foam" means a liquid polyurethane foam system sold as two parts (i.e., A-side and B-side) in nonpressurized containers that is field or factory applied in situ using high-pressure proportioning pumps at 800 to 1,600 pounds per square inch (psi) and an application gun to mix and dispense the chemical components.

"Rigid polyurethane low-pressure two-component spray foam" means a liquid polyurethane foam system sold as two parts (i.e., A-side and B-side) in containers that are pressurized to less than 250 psi during manufacture of the system for application without pumps and are typically applied in situ relying upon a liquid blowing agent or gaseous foam blowing agent that also serves as a propellant.

"Rigid polyurethane marine flotation foam" means buoyancy or flotation polyurethane foam used in boat and ship manufacturing for both structural and flotation purposes.

"Rigid polyurethane one-component foam" means a polyurethane foam generally packaged in aerosol cans that is applied in situ using a gaseous foam blowing agent that is also the propellant for the aerosol formulation.

"Rigid polyurethane slabstock and other" means a rigid closed-cell polyurethane foam formed into slabstock insulation for panels and fabricated shapes for pipes and vessels.

"Stand-alone low-temperature unit" means a stand-alone unit that maintains food or beverages at temperatures at or below 32°F (0°C).

"Stand-alone medium-temperature unit" means a stand-alone unit that maintains food or beverages at temperatures above 32°F (0°C).

"Stand-alone unit" means retail refrigerators, freezers, and reach-in coolers (either open or with doors) where all refrigeration components are integrated and the refrigeration circuit may be entirely brazed or welded. These systems are charged with refrigerant at the factory and typically require only an electricity supply to begin operation.

"Substance" means any chemical, product substitute, or alternative manufacturing process, whether new or retrofit, intended for use in the end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

"Substitute" means a chemical, product replacement, or alternative manufacturing process, whether new or retrofit, that is used to perform a function previously performed by a class I substance or class II substance.

"Supermarket systems" means multiplex or centralized retail food refrigeration equipment systems designed to cool or refrigerate, which typically operate with racks of compressors installed in a machinery room and which includes both direct and indirect systems.

"Use" means any utilization of any substance, including utilization in a manufacturing process or product in the Commonwealth of Virginia, consumption by the end-user in the Commonwealth, or in intermediate applications in the Commonwealth, such as formulation or packaging for other subsequent applications. For the purposes of this chapter, use excludes residential use, but it does not exclude manufacturing for the purpose of residential use.

"Vending machine" means a self-contained unit that dispenses goods that must be kept cold or frozen.

9VAC5-145-120. Compliance.

A. Unless otherwise specified in this chapter, no owner or other person shall engage in or permit the manufacture, sale, lease, rental, installation, or entry into commerce in Virginia of any equipment or product in violation of prohibitions prescribed under this chapter after the effective date of the prohibition.

B. The effective date of the prohibitions in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, shall be January 1, 2022, unless a later effective date is specified in those appendices or in 9VAC5-145-130.

C. Nothing in this chapter shall preclude the department's use of any credible evidence or information in determining whether a person is in compliance with the applicable requirements.

9VAC5-145-130. Special provisions applicable to extruded polystyrene boardstock and billet manufacturers.

A. Extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia that manufacture on and after January 1, 2022, in accordance with 9VAC5-145-100 D using hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, shall comply with the following requirements:

1. Submit a compliance date feasibility study to the department no later than January 1, 2022, that contains a compliance schedule for meeting the prohibition on the use of hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, in the manufacturing process for extruded polystyrene boardstock and billet.

2. The compliance date feasibility study shall be prepared in a manner acceptable to the department.

3. The compliance date feasibility study may contain a mitigation action plan for reducing HFC emissions in the Commonwealth of Virginia from January 1, 2022, until the prohibition compliance date recommended in the compliance date feasibility study required in subdivision 1 of this subsection. The mitigation action plan may detail and describe HFC mitigation efforts whether planned or implemented at the manufacturing facility, including dates of completion for any planned efforts.

B. Notwithstanding the requirements of subsection A of this section, extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia shall be prohibited from using hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, in the manufacturing process for extruded polystyrene boardstock and billet on and after January 1, 2036.

9VAC5-145-140. Labeling and administrative requirements.

A. As of January 1, 2022, except for acceptable uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, any person that manufactures for sale or entry into commerce in the Commonwealth of Virginia, products or equipment in the air-conditioning, refrigeration, foam, or aerosol propellant end-uses listed in those appendices, shall provide a written disclosure to the buyer.

1. For motor-bearing refrigeration and air-conditioning equipment that is neither factory-charged nor pre-charged with refrigerant, the required disclosure or label shall state: "This equipment is prohibited from using any substance on the 'List of Prohibited Substances' for that specific end-use, in accordance with state regulations for hydrofluorocarbons."

2. Except for products and equipment with existing labeling required by state building codes and safety standards that contain the information required in subdivisions 2 a and 2 b of this subsection, for refrigeration and air-conditioning equipment that are factory-charged or pre-charged with a hydrofluorocarbon or hydrofluorocarbon blend the required disclosure or label shall include:

a. The date of manufacture; and

b. The refrigerant and foam blowing agent that the product or equipment contains.

3. For foam products, the disclosure or label shall include one of the following alternatives:

a. The date of manufacture and either:

(1) Identification of the foam blowing agent that the product contains; or

(2) A reference to a Safety Data Sheet (complying with 29 CFR 1910.1200 requirements), provided that the Safety Data Sheet identifies the foam blowing agent the product contains; or

b. The statement "Where sold, compliant with state HFC regulations."

4. For aerosol propellants, the disclosure or label shall include one of the following alternatives:

a. The date of manufacture and either:

(1) Identification of the aerosol propellant that the product contains; or

(2) A reference to a Safety Data Sheet (complying with 29 CFR 1910.1200 requirements), provided that the Safety Data Sheet identifies the propellant that the product contains; or

b. The statement "Where sold, compliant with state HFC regulations."

B. If not combined with a written disclosure statement required by another jurisdiction, the written disclosure shall include the following statement signed by an authorized representative of the manufacturer: "I certify under penalty of law that the statements and information submitted in this document are to the best of my knowledge and belief true, accurate, and complete."

C. The manufacturer may substitute a date code representing the date of manufacture for the date of manufacture required in subsection A of this section.

9VAC5-145-150. Records and reporting.

A. As of January 1, 2022, any person that manufactures any product or equipment for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, for sale, lease, rental, installation, or entry into commerce in the Commonwealth of Virginia shall keep and maintain for five years records of the following information:

1. The date of manufacture of the equipment or product;

2. The refrigerant, aerosol propellant, and foam blowing agent blend that the equipment or product is designed to use;

3. The refrigerant, aerosol propellant, and foam blowing agent in the equipment or product; and

4. Information sufficient to demonstrate that the product or equipment does not contain any substances prohibited or restricted for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, or that the product is exempt in accordance with 9VAC5-145-110.

B. As of January 1, 2022, any person who manufactures any product or equipment for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, for sale, lease, rental, installation, or entry into commerce in the Commonwealth of Virginia shall make the required records available to the department upon request.

C. If a manufacturer uses a date code to meet disclosure or labeling requirements in 9VAC5-145-140 A, the manufacturer shall provide an explanation of the date code to the department upon request.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC5-145)

40 CFR Part 82 Subpart G Appendix U effective on January 3, 2017

40 CFR Part 82 Subpart G Appendix V effective on January 3, 2017

VA.R. Doc. No. R21-6745; Filed May 03, 2021
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Final

REGISTRAR'S NOTICE: The following regulatory action is exempt from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The State Water Control Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 9VAC25-71. Regulations Governing the Discharge of Sewage and Other Wastes from Boats (amending 9VAC25-71-70).

Statutory Authority: § 62.1-44 of the Code of Virginia; 33 USC § 1322.

Effective Date: June 23, 2021.

Agency Contact: Justin L. Williams, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4185, FAX (804) 698-4178, or email justin.williams@deq.virginia.gov.

Summary:

The amendments add two newly designated boating No Discharge Zones (NDZ) in Gloucester County to conform to the U.S. Environmental Protection Agency's federal designation of those areas as No Discharge Zones. The NDZs were developed in accordance with § 312 of the federal Clean Water Act and § 62.1-44.33 of the Code of Virginia.

9VAC25-71-70. Listing of designated no discharge zones in the Commonwealth of Virginia.

The following are designated no discharge zones:

1. Smith Mountain Lake in the counties of Bedford, Franklin and Pittsylvania, Virginia, from Smith Mountain Dam (Gap of Smith Mountain) upstream to the 795.0 foot contour (normal pool elevation) in all tributaries, including waters to above the confluence with Back Creek in the Roanoke River arm, and to the Brooks Mill Bridge (Route 834) on the Blackwater River arm.

2. The Lynnhaven River Watershed in the City of Virginia Beach, Virginia, including all contiguous waters south of the Lesner Bridge at Lynnhaven Inlet (latitude 36°54'27.90" N and longitude 76°05'30.90" W) and north of the watershed break point at the intersection of West Neck Creek and Dam Neck Road (latitude 36°47'17.60" N and longitude 76°04'14.62" W).

3. Broad Creek, Jackson Creek, and Fishing Bay Watersheds in lower Middlesex County, Virginia: the Broad Creek Watershed No Discharge Zone is defined as all contiguous waters south of the line formed between the points formed by latitude 37°33'46.3" N and longitude -76°18'45.9" W and north to latitude 37°33'47.4" N and longitude -76°19'24.7" W. The Jackson Creek Watershed No Discharge Zone is defined as all contiguous waters west of the of the line formed between the points formed by latitude 37°32'40" N and longitude -76°19'40.6" W at Stove Point Neck and latitude 37°32'46.8" N and longitude -76°19'15.6" W at the western point of the entrance to the eastern prong of Jackson Creek. The Fishing Bay Watershed No Discharge Zone is defined as all contiguous waters north of the line formed between the points formed by latitude 37°32'01.9" N and longitude -76°21'43.5" W at the southernmost tip of Bland Point and latitude 37°31'29.4" N and longitude -76°19'53.6" W at the southernmost tip of Stove Point. This area includes all of Fishing Bay and encompasses Moore Creek and Porpoise Cove.

4. Sarah Creek in Gloucester County, Virginia, including all contiguous waters north of the line formed between the point formed by latitude 37º14'58.34" N and longitude 76º29'39.17" W and east to latitude 37º15'00.81" N and longitude 76º28'37.84" W.

5. Perrin River in Gloucester County, Virginia, including all contiguous waters north of the line formed between the point formed by latitude 37º 15'43.52" N and longitude 76º25'25.71" W and east to latitude 37º15'50.63" N and longitude 76º25'11.84" W.

VA.R. Doc. No. R21-6759; Filed April 28, 2021
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Final

REGISTRAR'S NOTICE: The State Water Control Board is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 3 of the Code of Virginia, which excludes regulations that consist only of changes in style or form or corrections of technical errors. The State Water Control Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 9VAC25-720. Water Quality Management Planning Regulation (amending 9VAC25-720-60).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1313(e) of the Clean Water Act.

Effective Date: June 23, 2021.

Agency Contact: Valerie Rourke, Department of Environmental Quality, 1111 East Main Street, Suite 1400 P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4158, FAX (804) 698-4178, or email valerie.rourke@deq.virginia.gov.

Summary:

The amendment corrects an erroneous permit number for a discharger.

9VAC25-720-60. James River Basin.

EDITOR'S NOTE: Subsection A, Tables B1 through B4, and Tables B6 and B7 of 9VAC25-720-60 are not amended; therefore, that text is not set out.

B. Stream segment classifications, effluent limitations including water quality based effluent limitations, and wasteload allocations.

TABLE B5 - UPPER JAMES-JACKSON RIVER SUBAREA WASTELOAD ALLOCATIONS BASED ON EXISTING DISCHARGE POINT1

MAP LOCATION

STREAM NAME

SEGMENT NUMBER

SEGMENT CLASSIFICATION STANDARDS

MILE to2 MILE

DISCHARGER

VPDES PERMIT NUMBER

VPDES PERMIT LIMITS BOD5 kg/day

303(e)3 WASTELOAD ALLOCATION BOD5 kg/day

1

Jackson River

2-1

E.L.

93.05-

Virginia Trout

VA0071722

N/A

Secondary

B

Warm Springs Run

2-1

E.L.

3.62-0.00

Warm Springs STP

VA0028233

9.10

Secondary

3

Back Creek

2-1

W.Q.

16.06-8.46

VEPCO

VA0053317

11.50

11.50

C

X-trib to Jackson River

2-1

E.L.

0.40-0.0

Bacova

VA0024091

9.10

Secondary

D

Hot Springs Run

2-1

E.L.

5.30-0.00

Hot Springs Reg. STP

VA0066303

51.10

Secondary

E

X-trib to Cascades Creek

2-1

E.L.

3.00-0.00

Ashwood-Healing Springs STP

VA0023726

11.30

Secondary

F

Jackson River

2-1

E.L.

50.36-

U.S. Forest Service Bolar Mountain

VA0032123

1.98

Secondary

G

Jackson River

2-1

E.L.

43.55

U.S. Army COE Morris Hill Complex

VA0032115

1.70

Secondary

H

Jackson River

2-1

E.L.

29.84-

Alleghany County Clearwater Park

VA0027955

5.70

Secondary

4

Jackson River

2-1

E.L.

25.99

Covington City Water Treatment Plant

VA0058491

N/A

Secondary

5

Jackson River

2-2

W.Q.

24.64-19.03

Westvaco

VA0003646

4,195.00

4,195.004

6

Covington City5 Asphalt Plant

VA0054411

N/A

N/A

7

Hercules, Inc6

VA0003450

94.00

94.00

J

Jackson River

2-2

W.Q.

19.03-10.5

Covington STP

VA0025542

341.00

341.00

K

Jackson River

10.5-0.0

Low Moor STP7

VA0027979

22.70

22.70

M

D.S. Lancaster CC8

VA0028509

3.60

3.60

L

Selma STP9

VA0028002

59.00

59.00

10

The Chessie System10

VA0003344

N/A

N/A

N

Clifton Forge STP11

VA0002984

227.00

227.00

11

Lydall12

VA0002984

6.00

6.00

P

Iron Gate STP13

VA0020541

60.00

60.00

8

Paint Bank Branch

2-2

E.L.

1.52

VDGIF Paint Bank Hatchery

VA0098432

N/A

Secondary

I

Jerrys Run

2-2

E.L.

6.72-

VDOT 1-64 Rest Area

VA0023159

0.54

Secondary

AA

East Branch (Sulfer Spring)

2-2

E.L.

2.16

Norman F. Nicholas

VA0078403

0.05

Secondary

BB

East Branch (Sulfer Spring)

2-2

E.L.

1.91-

Daryl C. Clark

VA0067890

0.068

Secondary

9

Smith Creek

2-2

E.L.

3.44-

Clifton Forge Water Treatment Plant

VA0006076

N/A

Secondary

O

Wilson Creek

2-2

E.L.

0.20-0.0

Cliftondale14 Park STP

VA0027987

24.00

Secondary

2

Pheasanty Run

2-3

E.L.

0.01-

Coursey Springs

VA0006491

434.90

Secondary

Q

Grannys Creek

2-3

E.L.

1.20-

Craig Spring Conference Grounds

VA0027952

3.40

Secondary

CC

X-trib to Big Creek

2-3

E.L.

1.10-

Homer Kelly Residence

VA0074926

0.05

Secondary

12

Mill Creek

2-3

E.L.

0.16-

Columbia Gas Transmission Corp.

VA0004839

N/A

Secondary

R

John Creek

2-3

E.L.

0.20-

New Castle STP (old)

VA0024139

21.00

Secondary

S

Craig Creek

2-3

E.L.

48.45-36.0

New Castle STP (new)

VA0064599

19.90

Secondary

T

Craig Creek

2-3

E.L.

46.98-

Craig County Schools McCleary E.S.

VA0027758

0.57

Secondary

DD

Eagle Rock Creek

2-3

E.L.

0.08-

Eagle Rock STP15 (Proposed)

VA0076350

2.30

Secondary

U

X-trib to Catawba Creek

2-3

E.L.

0.16

VDBHDS Catawba Hospital

VA0029475

13.60

Secondary

14

Catawba Creek

2-3

E.L.

23.84

Tarmac-Lonestar

VA0078393

0.80

Secondary

FF

Borden Creek

2-3

E.L.

2.00-

Shenandoah Baptist Church Camp

VA0075451

0.88

Secondary

EE

X-trib to Borden Creek

2-3

E.L.

0.36

David B. Pope

VA0076031

0.07

Secondary

V

X-trib to Catawba Creek

2-3

E.L.

3.21-

U.S. FHA Flatwood Acres

VA0068233

0.03

Secondary

W

Catawba Creek

2-3

E.L.

11.54-

Fincastle STP

VA0068233 VA0060364

8.50

Secondary

X

Looney Mill Creek

2-3

E.L.

1.83-

VDOT I-81 Rest Area

VA0023141

0.91

Secondary

Y

X-trib to Stoney

2-3

E.L.

0.57

VDOC Field Unit No. 25 Battle Creek

VA0023523

1.10

Secondary

Z

James River

2-3

E.L.

308.5-286.0

Buchanan STP

VA0022225

27.00

Secondary

Notes:

N/A Currently No BOD5 limits or wasteload have been imposed by the VPDES permit. Should BOD5 limits (wasteload) be imposed a WQMP amendment would be required for water quality limited segments only.

1Secondary treatment levels are required in effluent limiting (E.L.) segments. In water quality limiting (W.Q.) segments quantities listed represent wasteload allocations.

2Ending river miles have not been determined for some effluent limited segments.

3These allocations represent current and original (1977 WQMP) modeling. Future revisions may be necessary based on Virginia State Water Control Board modeling.

4The total assimilative capacity at critical stream flow for this portion of Segment 2-2 has been modeled and verified by Hydroscience, Inc. (March 1977) to be 4,914 kg/day BOD5.

5The discharge is to an unnamed tributary to the Jackson River at Jackson River mile 22.93.

6The discharge is at Jackson River mile 19.22.

7The discharge is to the mouth of Karnes Creek, a tributary to the Jackson River at Jackson River mile 5.44.

8The discharge is at Jackson River mile 6.67.

9The discharge is at Jackson River mile 5.14.

10The discharge is at Jackson River mile 4.72.

11The discharge is at Jackson River mile 3.46.

12The discharge is at Jackson River mile 1.17.

13The discharge is at Jackson River mile 0.76.

14The discharge is to the mouth of Wilson Creek, a tributary to the Jackson River at Jackson River mile 2.44.

15The discharge is to the mouth of Eagle Rock Creek, a tributary to the Jackson River at Jackson River mile 330.35.

EDITOR'S NOTE: Subsection C of 9VAC25-720-60 is not amended; therefore, the text of that subsection is not set out.

VA.R. Doc. No. R21-6760; Filed April 28, 2021
TITLE 12. HEALTH
DEPARTMENT OF HEALTH
Proposed

Title of Regulation: 12VAC5-403. Certification of Doulas (adding 12VAC5-403-10 through 12VAC5-403-70).

Statutory Authority: §§ 32.1-12 and 32.1-77.1 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 23, 2021.

Agency Contact: Robin Buskey, Policy Analyst, Office of Family Health Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 863-7253, or email robin.buskey@vdh.virginia.gov.

Basis: The State Board of Health is authorized to make, adopt, promulgate, and enforce regulations by § 32.1-12 of the Code of Virginia. Section 32.1-77.1 of the Code of Virginia requires the board to adopt regulations that set forth the requirements for the use of the title "state-certified doula" and the training and education necessary to satisfy the requirements for certification by the department as a state-certified doula.

Purpose: The purpose of this regulation is compliance with the Code of Virginia and to provide standardized doula certification requirements in the Commonwealth of Virginia. Certification requirements for state-certified doulas shall reflect national best practices pertaining to community-based doula training and certification. Individuals practicing as state-certified doulas will have attained the required training, through entities approved by the State Board of Health, to provide coaching, outreach, and navigation services to Virginia's most hard-to-reach pregnant women to ensure that disadvantaged populations are equipped with the knowledge to receive the most appropriate medical and social supports to meet their needs. A standardized doula certification model is also beneficial to supporting and maintaining the doula workforce. This regulatory action will ensure that the content is clearly written.

Substance: This new regulation will include definitions for community-based and state-certified doulas as well as other relevant terminology. The regulation will outline the minimum training and education requirements for state-certified doulas based on the core competences for doula certification used by national organizations and community based organizations in Virginia. In addition, the regulation will describe the minimum standards required of the entity approved by the board that is to be responsible for confirming state-certified doulas, approving the training and education to meet doula certification requirements, and maintaining a registry of state-certified doulas available to the general public.

Issues: The primary advantage of the proposed regulatory action to the public is the establishment of statewide doula certification requirements and a public registry. Currently, anyone can identify as a certified doula because the Commonwealth of Virginia has no central repository or public registry that identifies certified doulas or that collects data on the number of doulas practicing in the state. Establishing minimum training and education criteria for state certification of doulas based on national standards and best practices will provide assurance to the public that state-certified doulas have met those requirements. A certifying body, which will be approved by the State Board of Health, will verify that doulas practicing in the Commonwealth have completed the required training to attain certification and provide doula care to pregnant women. Health care providers, community-based organizations, and payers may be assured of standardized training requirements when vetting this critical workforce. The public registry will include all doulas certified in Virginia and will make identification of state-certified doulas easier and more accessible to the public. One disadvantage associated with this regulatory action to the public is the potential costs to applicants seeking to become a state-certified doula as they will likely incur an application fee. Another potential issue regarding standardizing doula certification requirements is that the regulation may present a perceived barrier to doulas who are currently practicing without certification. This regulation will be written to ensure that these individuals are not prohibited from continuing to practice.

A primary advantage of the proposed regulatory action to the Commonwealth is that the action supports development of the doula workforce, the need for which aligns with research supporting the benefits of emotional support provided by support personnel, such as doulas, on labor outcomes. The March of Dimes July 2018 position statement, "Statement on Doulas and Birth Outcomes," outlines evidence and guidance in support of doula care. Specifically, the March of Dimes supports increased access to doula care as one tool to help improve birth outcomes and reduce the higher rates of maternal morbidity and mortality among women of color in the United States; advocates for all payers to provide coverage for doula services; and recognizes the importance of increased training, support, and capacity development for doulas, including doulas from racially, ethnically, socioeconomically, and culturally diverse communities. There are no other known disadvantages to the public associated with this regulatory change.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 724 of the 2020 Acts of Assembly, the State Board of Health (Board) seeks to promulgate a new regulation to establish the certification process and related standards for "state-certified doulas." Doulas are "nonmedical professionals who provide critical physical, emotional, and informational support to pregnant women during pregnancy, delivery, and the postpartum period."1 The proposed regulation aims to establish the minimum requirements to be considered a "state-certified doula" in Virginia, which are based on standards used by national organizations as well as community-based organizations in Virginia. The proposed new regulation also outlines the minimum standards required of the Board-approved entity that would be responsible for confirming state-certified doulas, approving the training and education to meet doula certification requirements, and maintaining a registry of state-certified doulas available to the general public.

Background. Based on data collected between 2004 and 2013, the Virginia Department of Health (VDH) reports that the maternal mortality rate for African-American women is over two times as high as white women.2 This finding has led to increased efforts among policymakers to combat the racial and ethnic disparities in maternal mortality rates in the state.3 These efforts are backed by a growing body of medical research spanning the last three decades, which has informed advocacy efforts by organizations like the March of Dimes.4 For example, a 1991 randomized controlled trial found that continuous emotional support during labor significantly reduced the rate of caesarean section deliveries and forceps deliveries. The authors found similar patterns for duration of labor, prolonged infant hospitalization, and maternal fever and concluded by calling for a review of current obstetrics practices.5 More recent research has explored a wider range of pregnancy and birth outcomes,6 focused on racial/ethnic disparities in obstetric outcomes,7 and specifically analyzed the effects of continuous labor support specifically among Medicaid recipients,8 as well as the cost-effectiveness of doing so.9

Pursuant to these research findings and public advocacy efforts, Chapter 724 of the 2020 Acts of Assembly sought to formalize the doula workforce in Virginia by directing the Board to implement a certification process and develop a registry of state-certified doulas. Specifically, Chapter 724 added a new section, § 32.1-77.1. State-certified doulas; certification to the Code of Virginia (Code) in which a "state-certified doula" was defined as "a trained, community-based nonmedical professional who provides continuous physical, emotional, and informational support to a pregnant person during the antepartum or intrapartum period or during the period up to one year postpartum and who has been certified by a body approved by the Board for such purpose in accordance with the provisions of this section."

The Code directs the Board to set forth (i) the requirements for the use of the title of "state-certified doula," and (ii) the training and education necessary to satisfy these requirements. The Code also authorizes the Board to approve a certifying body that would (i) certify doulas in accordance with the Board's requirements, and (ii) approve entities to provide the required training and education. The Code also specifies that "a person who is certified by a national credentialing organization that is approved by the body approved by the Board [the certifying body] for such purpose," but who did not receive training or education from an entity approved by the body, shall be eligible for state certification.

In addition, the Code also requires VDH to create and maintain a publicly-accessible registry of state-certified doulas, as well as a list of entities that have been approved by the certifying body to provide training and education to doulas. Lastly, the Code does not prohibit doulas who are not state-certified from practicing in Virginia; they would only be prohibited from using the title "state-certified doula" and would not be included in VDH's registry.

The content of the regulation as proposed largely conforms to the stipulations put forth in the Code. Sections of the proposed regulation are summarized:

  • Section 10 (Definitions) defines "state-certified doula" identical to the Code and adds definitions for terms contained in that definition, including "doula" and "community-based doula," "antepartum," "intrapartum," and "postpartum," "certifying body" and "training entity."
  • Section 20 (State-certified Doula) specifies that any person seeking to be a state-certified doula under this chapter shall be a community-based doula and meet the educational qualifications and hold a certification from the certifying body.
  • Section 30 (Qualifications) specifies that persons seeking to be a state-certified doula shall complete 60 hours of training provided by one or more entities approved by the certifying body, unless that person had already obtained an initial level of certification within three years prior to this regulation going into effect. In that case, the individual would have to submit evidence of completed coursework and certification to the certifying body and provide proof of completion of any unmet training requirements within one year of application.
  • Section 40 (Minimum standards for certifying bodies) lays out the criteria for the selection of a certifying body,10 the duties of the certifying body (including maintaining the registry and submitting an annual report to the Board) and the requirements to be enforced by the certifying body (namely, that certificate holders adhere to a code of ethics and complete 60 hours of training.)
  • Section 50 (Curriculum requirements) reiterates that persons seeking to be a state-certified doula shall complete a doula training and education program that has been approved by the certifying body, and that the certifying body shall approve the minimum requirements laid out by the Board.11 The minimum curriculum requirements are included in a separate document incorporated by reference (DIBR).12
  • Section 60 requires all state-certified doulas to undergo a minimum of 15 hours of continuing education every two years from the date of certification, in areas outlined in the curriculum presented in the DIBR.
  • Section 70 mirrors the Code in reiterating that this regulation does not require a doula to be certified by a certifying body approved by the Board in order to practice as a doula in Virginia.

VDH has indicated that the Department of Medical Assistance Services (DMAS) is conducting a rate study for potential Medicaid reimbursement of doula services. If the General Assembly authorizes DMAS to cover doula services for Medicaid recipients, individuals will need to satisfy doula state-certification requirements in order to receive Medicaid reimbursement. Therefore, the proposed regulation would pave the way for community-based doulas, many of whom already work in low-income and minority communities, to be compensated through Virginia's Medicaid program and potentially serve more individuals in those communities at lower direct cost to them.

Estimated Benefits and Costs. Individuals seeking doula services, health care providers, community-based organizations, and payers would benefit from the state certification process laid out in the proposed regulation by being assured of standardized training requirements when making hiring decisions or insurance reimbursement eligibility decisions. The public registry would include all doulas certified in Virginia, making it easier to not only find a community-based doula but also verify a doula's state certification.

Currently, the registry would benefit individuals who could afford to pay for doula services out-of-pocket or health care providers (including birthing centers) that are specifically looking for doulas who have met the particular training requirements laid out in the proposed regulation. However, if doula services become Medicaid-eligible, and subsequently, if other insurance payers sought to cover doula services, the registry would benefit individuals from a broader range of socio-economic backgrounds, including some of the more vulnerable and at-risk populations.

Costs created by the proposed amendment would primarily fall on individuals seeking to become state-certified doulas. In addition to paying for the 60 hours of mandated training, VDH indicates that applicants for certification would have to pay a fee of $100.13 Hospitals already seem to require doulas to present some form of certification in order to be allowed to accompany their clients. Although there are no standardized requirements for doula training or certification, there are nationally recognized organizations that offer both, and some doulas have likely obtained a certification already.14 VDH clarified that doulas who have already obtained a certification could use it toward meeting the training requirements in the proposed regulation if it had been obtained within the preceding three years, thereby reducing their cost of becoming state-certified.15

To ensure that state certification is financially accessible to community-based doulas, especially those belonging to low-income and minority communities, the certifying body would need to account for the cost of training in their selection of training entities. The Board could mitigate these costs by requiring the certifying body to selectively approve training entities that offer need-based financial aid, work with community organizations to offer scholarships, or generally keep the training costs low so that it is not a significant barrier to certification for community-based doulas. However, unless the General Assembly approves Medicaid-coverage for state-certified doulas, (or private insurers voluntarily decide to cover it,) it is unclear if community-based doulas would have sufficient incentive to incur the costs of training and state certification.16

Businesses and Other Entities Affected. As mentioned previously, community-based doulas would be primarily affected by the opportunity to become state-certified and be included in a registry, particularly if that also enables them to receive Medicaid reimbursement in the future. Since there is no central doula registry at present, the number of community-based doulas working in Virginia is unknown. In addition, the proposed regulation also affects individuals and health care providers seeking to hire doulas, as well as payers who may consider covering doula services in the future, by standardizing training requirements and creating a registry of state-certified doulas.

Small Businesses17 Affected. Most doulas (community-based or otherwise) likely work as independent contractors, but there is currently no data on the number of doulas practicing in Virginia, whether they are community-based, or if they are affiliated with specific health care providers. However, the proposed regulation only affects doulas seeking to become state certified, and certification is not necessary to continue to provide doula services.

Localities18 Affected.19 The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed regulation would create "state-certified doulas" as a category of nonmedical health care workers, with standardized training requirements and tiered oversight by the Board and the certifying body. Thus, the proposed regulation could lead to increased employment of state-certified doulas by individuals, health care providers, especially private practices specializing in obstetrics and gynecology, as well as birth centers. This would be more likely if doula services were covered by Medicaid or private payers as a result of the proposed regulation. Although the number of state-certified doulas who are employed cannot be predicted at this time, the certifying body could collect such data once it starts issuing certifications.

Effects on the Use and Value of Private Property. The proposed regulation is unlikely to affect the use and value of private property. Real estate development costs are not affected.

______________________________________________

1Agency Background Document (page 1) https://townhall.virginia.gov/L/GetFile.cfm?File=58\5574\9209\AgencyStatement_VDH_9209_v1.pdf

2See https://www.vdh.virginia.gov/content/uploads/sites/18/2016/04/PAMSS-Ten-Year-Trends-Report-2004-2013_final.pdf

3See https://www.governor.virginia.gov/newsroom/all-releases/2019/june/headline-840941-en.html

4The March of Dimes' July 2018 position statement, Statement on Doulas and Birth Outcomes, outlines evidence and guidance in support of doula care. Specifically, See https://www.marchofdimes.org/materials/Doulas and birth outcomes position statement final January 30 PM.pdf

5Kennell J, Klaus M, McGrath S, Robertson S, Hinkley C. Continuous emotional support during labor in a US hospital. A randomized controlled trial. JAMA 1991 May 1;265(17):2197-201. https://pubmed.ncbi.nlm.nih.gov/2013951/.

6Bohren MA, Hofmeyr GJ, Sakala C, Fukuzawa RK, Cuthbert A. Continuous support for women during childbirth. Cochrane Database Syst Rev. 2017 Jul 6;7(7):CD003766. https://pubmed.ncbi.nlm.nih.gov/28681500/

7Bryant AS, Worjoloh A, Caughey AB, Washington AE. Racial/ethnic disparities in obstetric outcomes and care: prevalence and determinants. Am J Obstet Gynecol. 2010 Apr;202(4):335-43. https://pubmed.ncbi.nlm.nih.gov/20060513/.

8Kozhimannil KB, Hardeman RR, Attanasio LB, Blauer-Peterson C, O'Brien M. Doula care, birth outcomes, and costs among Medicaid beneficiaries. Am J Public Health. 2013 Apr;103(4):e113-21. https://pubmed.ncbi.nlm.nih.gov/23409910/.

9Kozhimannil KB, Hardeman RR, Alarid-Escudero F, Vogelsang CA, Blauer-Peterson C, Howell EA. Modeling the Cost-Effectiveness of Doula Care Associated with Reductions in Preterm Birth and Cesarean Delivery. Birth. 2016 Mar;43(1):20-7. https://pubmed.ncbi.nlm.nih.gov/26762249/.

10Specifically, the proposed regulation states that "The Board of Health shall approve a certifying body that has adopted standards from a nationally recognized organization that has a doula certification that reflects national best practices pertaining to community-based doula training and certification to establish certified doula training and education programs and to approve or accept continuing education courses for renewing doula certification in Virginia." When asked for clarification by the Department of Planning and Budget (DPB), VDH stated that "the Virginia Certification Board will be recommended to the Board of Health as the certifying entity, but that recommendation will not be made until after the regulation has taken effect."

11VDH communicated to DPB that "The Virginia Certification Board, if approved by the Board of Health, will use the minimum curriculum requirements proposed by the Board."

12A link to the minimum requirements can be found at https://townhall.virginia.gov/L/ViewXML.cfm?textid=14908. When asked why these requirements were included in a DIBR, VDH reported that, "it is unlikely that changes to the actual regulatory text will be sought once the regulation is approved and in effect. However, curriculum topics will likely change based on updates to national best practices pertaining to doula training. When those changes occur, amendments to the DIBR will be submitted for review and approval as a regulatory action."

13See page 5: https://townhall.virginia.gov/l/GetFile.cfm?File=58\5574\9209\AgencyStatement_VDH_9209_v1.pdf. Although the fee is not mentioned in the Code or in the proposed text, VDH clarified that "the Virginia Certification Board, if approved by the Board of Health to be the certifying entity, will assess and collect a $100 application fee."

14See for example DONA International, the International Childbirth Education Association, Childbirth and Postpartum Professional Association, and BirthWorks. They all offer training and certification and maintain directories of their own members.

15Specifically, VDH reported that, Doulas who have already obtained a certification through an organization such as DONA would provide documentation of having completed a certification within three years and the minimum community-based doula training requirements. The certifying body will accept documentation of certification obtained through DONA, ICEA, CAPPA, BirthWorks, etc. The minimum community-based doula training requirements (see DIBR) are not automatically satisfied with a certification obtained through a doula certifying organization; therefore, an individual may have to take additional courses to satisfy the requirements to be considered a state-certified doula.

16As per the 2020 report of the workgroup convened to develop recommendations for a Virginia Medicaid Doula Benefit, Medicaid coverage for doulas would pay for itself and could yield modest cost-savings. See https://rga.lis.virginia.gov/Published/2020/RD629/PDF.

17Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

18"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.

19§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department of Health concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 724 of the 2020 Acts of Assembly, the proposed new regulation (i) establishes the minimum requirements to be considered a certified doula in Virginia based on the core competences for doula certification used by national organizations and community based organizations in Virginia and (ii) outlines the minimum standards required of the certifying body, which will be approved by the board and which will be responsible for confirming state-certified doulas, approving the training and education to meet doula certification requirements, and maintaining a registry of state-certified doulas available to the general public.

Chapter 403

Certification of Doulas

12VAC5-403-10. Definitions.

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

"Antepartum" means the period of pregnancy prior to labor and delivery.

"Certifying body" means an organization approved by the State Board of Health that has as one of its purposes the certification of doulas.

"Community-based doula" means a doula who often has shared lived experiences and is trained to provide extended, culturally congruent support to families throughout pregnancy to include antepartum, intrapartum, during labor and birth, and up to one year postpartum. Community-based doulas provide an expanded set of services and play a crucial role in improving outcomes and experiences for communities most affected by discrimination and disparities in health outcomes.

"Doula" means a trained nonmedical professional who provides continuous physical, emotional, and informational support to a pregnant person during the antepartum or intrapartum period or during the period up to one year postpartum.

"Intrapartum" means the period of pregnancy after the onset of labor through delivery.

"Postpartum" means the period of pregnancy following birth.

"State-certified doula" means a trained, community-based nonmedical professional who provides continuous physical, emotional, and informational support to a pregnant person during the antepartum or intrapartum period or during the period up to one year postpartum who has been certified by a certifying body approved by the State Board of Health.

"Training entity" means an organization that has a training and education programs that are approved by a certifying body approved by the State Board of Health to meet the curriculum requirements for community-based doula certification.

12VAC5-403-20. State-certified doula.

Any person seeking to be a state-certified doula under this chapter shall be a community-based doula and shall (i) meet the qualifications and education requirements established in this chapter and (ii) hold a certification as a certified doula from a certifying body approved by the State Board of Health.

12VAC5-403-30. Qualifications.

A. Any person seeking to be a state-certified doula under this chapter shall complete at least 60 hours of doula training. Training shall be provided by one or more entities approved by a certifying body approved by the State Board of Health.

B. The training and education requirements outlined in 12VAC5-403-50 shall not apply to doulas who have already obtained an initial level of certification within three years prior to (insert the effective date of this regulation) and are applying to be a state-certified doula through the certifying body approved by the State Board of Health, provided that the applicant provides proof of completion of any unmet training and education requirements within one year of application.

12VAC5-403-40. Minimum standards for certifying bodies.

A. The State Board of Health shall approve a certifying body that has adopted standards from a nationally recognized organization that has a doula certification that reflects national best practices pertaining to community-based doula training and certification to establish certified doula training and education programs and to approve or accept continuing education courses for renewing doula certification in Virginia.

B. The certifying body shall:

1. Maintain a registry of state-certified doulas that is accessible to the public and displays the certification status of doulas.

2. Submit to the State Board of Health an annual report by the end of every fiscal year that identifies the number of new and cumulative state-certified doulas and the number of new and cumulative training programs approved for the purpose of providing doula certification.

C. The certifying body shall require its certificate holders to:

1. Adhere to a code of ethics set forth by the certifying body.

2. Complete at least 60 hours of training and education provided by one or more training entities approved by the certifying body.

12VAC5-403-50. Curriculum requirements.

A. Unless the exception in 12VAC5-403-30 B is met, any person seeking to be a state-certified doula under this chapter shall complete doula training and education programs that have been approved by the certifying body. The curriculum requirements for the certified doula training and education programs are outlined in the Virginia Curriculum Requirements for the State-Certified Doula and shall be approved by the certifying body.

B. The curriculum requirements for the certified doula training and education programs shall include a minimum of 60 hours in the following topics:

1. Maternal and Infant Health Concepts and Approaches (2 hours).

a. Provision of perinatal support services from 1st trimester to telve months postpartum.

b. Provision of emotional and social support, including navigating pregnancy loss.

2. Lactation anticipatory guidance and support (10 hours).

3. Service Coordination and System Navigation (20 hours).

a. Provision of in-home prenatal and postpartum care support.

b. Assessing psychosocial and health needs, including perinatal mood and anxiety disorders (PMADs) screening.

c. Goal setting and prioritization of psychosocial and health needs.

d. Antepartum (high-risk) maternal care support.

e. Labor support.

f. Education and referrals for developmental screenings.

g. Resource navigation for wraparound services (i.e. intimate partner violence, domestic violence, oral health, family planning).

4. Health Promotion and Prevention (8 hours).

a. Provision of perinatal health education.

b. Provision of newborn parenting education

c. Provision of wellness and self-care coaching.

5. Advocacy, Outreach and Engagement (5 hours).

a. Serving as an advocate for respectful maternal care.

b. Intentional reflection of the community served.

c. Care coordination and social service navigation.

d. Provision of reproductive rights education, informed choice and decision making, and birth planning.

e. Child abuse and neglect mandatory reporting.

6. Communication (2 hours).

a. Respectful, client-centered maternal care.

b. Active listening.

c. Navigating patient families, medical support staff, and other support systems.

d. Responding to challenges.

7. Cultural Humility and Responsiveness (8 hours).

a. Intersectionality and cultural humility, including language access.

b. Health literacy.

c. Trauma-informed care.

8. Ethical Responsibilities and Professionalism (5 hours).

a. Code of Ethics, Standards of Practice, and HIPAA.

b. Required charting and documentation.

c. Serving as an accountability partner.

12VAC5-403-60. Continuing education.

Any person seeking to be a state-certified doula under this chapter shall be required to complete a minimum of 15 hours of continuing education every two years from the date of certification from a training entity approved by the certifying body pursuant to 12VAC5-403-40. These hours shall be in courses outlined in the Virginia Curriculum Requirements for the State-Certified Doula.

12VAC5-403-70. Certification not required.

This regulation does not require a doula to be certified by a certifying body approved by the State Board of Health in order to practice as a doula in Virginia.

VA.R. Doc. No. R21-6484; Filed April 21, 2021
TITLE 12. HEALTH
DEPARTMENT OF HEALTH
Final

Title of Regulation: 12VAC5-590. Waterworks Regulations (amending 12VAC5-590-10, 12VAC5-590-40, 12VAC5-590-50, 12VAC5-590-70, 12VAC5-590-100 through 12VAC5-590-150, 12VAC5-590-190 through 12VAC5-590-270, 12VAC5-590-290 through 12VAC5-590-392, 12VAC5-590-405, 12VAC5-590-421, 12VAC5-590-430, 12VAC5-590-440, 12VAC5-590-450, 12VAC5-590-470 through 12VAC5-590-580, 12VAC5-590-600, 12VAC5-590-610, 12VAC5-590-630, 12VAC5-590-640, 12VAC5-590-660, 12VAC5-590-670, 12VAC5-590-680, 12VAC5-590-700, 12VAC5-590-720, 12VAC5-590-730, 12VAC5-590-760, 12VAC5-590-770, 12VAC5-590-790, 12VAC5-590-810, 12VAC5-590-820, 12VAC5-590-840, 12VAC5-590-850, 12VAC5-590-860, 12VAC5-590-880, 12VAC5-590-900 through 12VAC5-590-960, 12VAC5-590-990 through 12VAC5-590-1020, 12VAC5-590-1040, 12VAC5-590-1050, 12VAC5-590-1080, 12VAC5-590-1090, 12VAC5-590-1110 through 12VAC5-590-1180, 12VAC5-590-1210, 12VAC5-590-1220, 12VAC5-590-1230; adding 12VAC5-590-35, 12VAC5-590-45, 12VAC5-590-55, 12VAC5-590-115, 12VAC5-590-372, 12VAC5-590-373, 12VAC5-590-374, 12VAC5-590-376, 12VAC5-590-377, 12VAC5-590-378, 12VAC5-590-382, 12VAC5-590-383, 12VAC5-590-384, 12VAC5-590-388, 12VAC5-590-391, 12VAC5-590-395, 12VAC5-590-401, 12VAC5-590-411, 12VAC5-590-415, 12VAC5-590-461, 12VAC5-590-475, 12VAC5-590-476, 12VAC5-590-515, 12VAC5-590-531, 12VAC5-590-532, 12VAC5-590-546, 12VAC5-590-565, 12VAC5-590-725, 12VAC5-590-865, 12VAC5-590-871 through 12VAC5-590-875, 12VAC5-590-881, 12VAC5-590-882, 12VAC5-590-883, 12VAC5-590-895, 12VAC5-590-975, 12VAC5-590-985, 12VAC5-590-1001 through 12VAC5-590-1005, 12VAC5-590-1065, 12VAC5-590-1081, 12VAC5-590-1082, 12VAC5-590-1235; repealing 12VAC5-590-20, 12VAC5-590-30, 12VAC5-590-60, 12VAC5-590-80, 12VAC5-590-160, 12VAC5-590-170, 12VAC5-590-180, 12VAC5-590-280, 12VAC5-590-400, 12VAC5-590-410, 12VAC5-590-420, 12VAC5-590-425, 12VAC5-590-460, 12VAC5-590-590, 12VAC5-590-620, 12VAC5-590-650, 12VAC5-590-690, 12VAC5-590-710, 12VAC5-590-740, 12VAC5-590-750, 12VAC5-590-780, 12VAC5-590-800, 12VAC5-590-870, 12VAC5-590-890, 12VAC5-590-970, 12VAC5-590-980, 12VAC5-590-1030, 12VAC5-590-1060, 12VAC5-590-1070, 12VAC5-590-1100, 12VAC5-590-1190, 12VAC5-590-1200, 12VAC5-590-1240 through 12VAC5-590-1280, Appendices A through E, Appendix G, Appendix I, Appendix L through P).

Statutory Authority: §§ 32.1-12 and 32.1-170 of the Code of Virginia.

Effective Date: June 23, 2021.

Agency Contact: Dwayne Roadcap, Office Director, Office of Drinking Water, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7522, or email dwayne.roadcap@vdh.virginia.gov.

Summary:

The amendments reorganize provisions; add new sections to expand or clarify existing requirements or incorporate new ones; remove obsolete information and duplication; update citations; correct sentence structure, grammar, spelling, and typographical errors; and improve consistency.

In Part I (General Framework for Waterworks Regulations), amendments (i) revise, add, or delete definitions; (ii) add units of measurement; (iii) add new sections regarding the Waterworks Advisory Committee, the relationship of the Waterworks Regulations to the Uniform Statewide Building Code, and administrative proceedings and enforcement requirements; (iv) clarify and streamline the permit process, including the requirements for obtaining a construction permit; and (v) add requirements and circumstances for issuance of a temporary operation permit.

In Part II (Operation Regulations for Waterworks), amendments (i) consolidate all water quality standards, maximum contaminant levels, action levels, treatment techniques, and maximum disinfectant levels and goals; (ii) revise and clarify the procedure for determining surface water influence of groundwater sources; (iii) revise and clarify the classification of waterworks, operator requirements, and operator attendance; (iv) add new sections for abandoning and reactivating wells; (v) reorganize operation report content requirements; (vi) revise and clarify cross-connection control program requirements; and (vii) generally reorganize content into smaller sections.

In Part III (Manual of Practice for Waterworks Design), amendments (i) update design water demand and waterworks capacity requirements; (ii) revise and clarify metering, building design, layout, laboratory design, and new source development requirements for groundwater sources, including springs; (iii) clarify well construction requirements and classification; (iv) distinguish and clarify construction, testing, and capacity requirements for wells located in designated groundwater management areas; (iv) revise and clarify water treatment processes by adding new sections for membrane filtration, bag and cartridge filtration, pre-engineered package treatment units, powdered activated carbon, disinfection processes using chloramines, chlorine dioxide, ultraviolet light, and ozone; (v) clarify design requirements for pump stations and equipment; (vi) distinguish atmospheric and pressure storage tank design requirements; (vii) add a new section on water loading stations; and (viii) generally reorganize content into new, smaller sections.

In Part IV (Exceptions for Noncommunity Waterworks) and the appendices, amendments move some requirements into Part II or III of the chapter and repeal Part IV and all appendices.

Amendments, identified as substantive by the agency, to the proposed regulation (i) add special monitoring requirements for sodium in drinking water; (ii) add a requirement that an owner shall document the Cross-Connection Control Program in a plan and submit the written plan to the department for review and approval and clarify owner and department must ensure cross-connections are adequately safeguarded; (iii) update and clarify requirements in the Cross-Connection Control Program; (iv) update conditions where actual or potential cross-connection hazards can be eliminated or controlled by allowing point-of-use isolation backflow protection instead of containment; (v) update low-hazard and high-hazard examples of backflow situations; and (vi) clarify design requirements for hydrants and flushing devices.

Article 1

Definitions

12VAC5-590-10. Definitions and units of measurement.

A. Definitions. As used in this chapter, the following words and, terms, and abbreviations shall have meanings respectively set forth unless the context clearly requires a different meaning:

"Action level" or "AL" means the concentration of lead or copper in water specified in 12VAC5-590-385, which determines, in some cases, the treatment requirements contained in 12VAC5-590-405 that an owner is required to complete.

"Administrative Process Act" or "APA" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. The APA is the basic law conferring authority on agencies either to make regulations or case decisions as well as to standardize court review thereof.

"Air gap separation" means the unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet supplying pure water to a tank, plumbing fixture, or other device and the rim of the receptacle point of the potable water outlet and the flood rim of the receiving vessel.

"Annual daily water demand" means the average rate of daily water usage over at least the most recent three-year period.

"ANSI" means the American National Standards Institute.

"Applied water" means water that is ready for filtration.

"Approved" means material, equipment, workmanship, process or method that has been accepted by the commissioner as suitable for the proposed use.

"ASME" means the American Society of Mechanical Engineers.

[ "ASSE" means the American Society of Sanitary Engineering. ]

"ASTM" means the American Society for Testing and Materials.

"Auxiliary water system" means any water supply or system on or available to the premises of the consumer other than the waterworks. These auxiliary waters may include water from a source such as wells, lakes, or streams; process fluids; or used water. They may be polluted or contaminated or, objectionable, or of questionable quality and constitute an unapproved water source supply or system over which the water purveyor waterworks owner does not have control.

"AWWA" means the American Water Works Association.

"Backflow" means the undesirable reversal of flow of water or mixtures of water and other liquids, mixtures gases, or other substances into the distribution piping of a waterworks from any source or sources other than its intended source.

"Backflow elimination method" means the air gap separation or physical disconnection that will eliminate the cross-connection.

"Backflow prevention assembly" means a mechanical unit, designed to [ control various cross-connections and ] stop the reversal of flow that includes an inlet and outlet shutoff valve and test cocks [ to facilitate testing of the assembly ]. Backflow prevention assemblies include the reduced pressure principle backflow prevention [ (RPZ) ] assembly, the double [ gate-double ] check valve assembly, and the pressure vacuum breaker assembly.

"Backflow prevention device" means any approved device, method, or type of construction intended to prevent backflow into a waterworks. a mechanical unit designed to [ control cross-connections and ] stop the reversal of flow that is not testable because it does not have inlet and outlet shutoff valves or test cocks. A backflow prevention device is not generally designed or constructed to withstand [ backpressure continuous pressure over 12 hours, or to control high hazards ]. A backflow prevention device generally includes the atmospheric type vacuum breakers and the dual check valve type devices.

"Backpressure backflow" means backflow caused by pressure in the downstream piping that is superior to the supply pressure at the point of consideration.

"Backsiphonage" means backflow caused by a reduction in pressure that causes a partial vacuum, creating a siphon effect.

"Bag filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They Bag filters are typically constructed of a nonrigid, fabric filtration media housed in a pressure vessel in which the direction of flow is from the inside of the bag to outside.

"Bank filtration" means a water treatment process that uses a well to recover surface water that has naturally infiltrated into groundwater through a river bed or bank(s) or bank. Infiltration is typically enhanced by the hydraulic gradient imposed by a nearby pumping water supply or other well(s) well.

"Best available technology" or "BAT" means the best practicable technology, treatment techniques, or other means that the [ commissioner department ] finds, after examination for efficacy under field conditions and not solely under laboratory conditions and in conformance with applicable EPA regulations, that are available (taking cost into consideration).

"Board" means the State Board of Health.

"Breakpoint chlorination" means the addition of chlorine to water until the chlorine demand has been satisfied and further additions result in a residual that is directly proportional to the amount added.

"Boil water advisory" and "boil water notice" mean a statement that informs consumers that drinking water is or may be contaminated and that the water should be boiled before being used for human consumption.

"BSSP" means a bacteriological sample siting plan.

"CAP" means a corrective action plan.

"Cartridge filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They Cartridge filters are typically constructed as rigid or semi-rigid, self-supporting filter elements housed in pressure vessels in which flow is from the outside of the cartridge to the inside.

"Chlorine" means dry chlorine.

"Chlorine gas" means dry chlorine in the gaseous state.

"Chlorine solution (chlorine water)" means a solution of chlorine in water.

"Chronically noncompliant waterworks" or "CNC" means a waterworks that is unable to provide pure water for any of the following reasons: (i) the waterworks' record of performance demonstrates that it can no longer be depended upon to furnish pure water to the persons served; (ii) the owner has inadequate technical, financial, or managerial capacity to furnish pure water to the people served; (iii) the owner has failed to comply with an order issued by the board or the commissioner; (iv) the owner has abandoned the waterworks and has discontinued supplying pure water to the persons served; or (v) the owner is subject to a forfeiture order pursuant to § 32.1-174.1 of the Code of Virginia.

"Case decision" means an agency determination as defined in § 2.2-4001 of the Code of Virginia.

"CCCP" means a cross-connection control program.

"CCR" means consumer confidence report.

"CDC" means the Centers for Disease Control and Prevention.

"CFE" means the combined filter effluent.

"CFR" means the Code of Federal Regulations.

"Clean compliance history" means a record of no PMCL violations for microbiological contaminants, no monitoring violations under 12VAC5-590-370, and no coliform treatment technique trigger exceedances or treatment technique violations under 12VAC5-590-392.

"Coagulation" means a process using coagulant chemicals and mixing by which colloidal and suspended materials are destabilized and agglomerated into floc.

"Coliform bacteria group" means a group of bacteria predominantly inhabiting the intestines of man or animal but also occasionally found elsewhere. It includes all aerobic and facultative anaerobic, gram-negative, non-sporeforming bacilli that ferment lactose with production of gas. Also included are all bacteria that produce a dark, purplish-green colony with metallic sheen by the membrane filter technique used for coliform identification.

"Combined distribution system" means the interconnected distribution system consisting of the distribution systems of wholesale waterworks and of the consecutive waterworks that receive finished water.

"Commissioner" means the State Health Commissioner, who is the executive officer of the board.

"Community waterworks" means a waterworks that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

"Compliance cycle" means the nine-year calendar year cycle during which a waterworks shall monitor. Each compliance cycle consists of three three-year compliance periods. The first calendar year cycle begins began January 1, 1993, and ends ended December 31, 2001; the second begins January 1, 2002, and ends December 31, 2010; the third begins January 1, 2011, and ends December 31, 2019 with subsequent compliance cycles continuing thereafter.

"Compliance period" means a three-year calendar year period within a compliance cycle. Each compliance cycle has consists of three three-year compliance periods. Within the first compliance cycle, the first compliance period runs from January 1, 1993, to December 31, 1995; the second from January 1, 1996, to December 31, 1998; the third from January 1, 1999, to December 31, 2001 The first compliance period began January 1, 1993, and ended December 31, 1995, with subsequent compliance periods continuing thereafter.

"Comprehensive performance evaluation" or "CPE" means a thorough review and analysis of a treatment plant's performance-based capabilities and associated administrative, operational and maintenance practices. It is conducted to identify factors that may be adversely impacting a plant's capability to achieve compliance and emphasizes approaches that can be implemented without significant capital improvements. For purposes of compliance with 12VAC5-590-530 E 1 b (2), the comprehensive performance evaluation shall consist of at least the following components: assessment of plant performance, evaluation of major unit processes, identification and prioritization of performance limiting factors, assessment of the applicability of comprehensive technical assistance, and preparation of a CPE report.

"Comprehensive business plan" means a plan detailing the technical, managerial, and financial [ (TMF) ] commitments that the owner will make in order to assure that the waterworks will have the capability to provide water that complies with this chapter over the long term.

"Confirmation sample" means a sample to be collected by the owner within a specified time after the results of the initial sample are known to have exceeded a specified limit or standard in order to validate the initial result and to determine compliance.

"Confluent growth" means a continuous bacterial growth covering the entire filtration area of a membrane filter, or a portion thereof, in which bacterial colonies are not discrete.

"Consecutive waterworks" means a waterworks that has no water production or source facility of its own and that obtains all of its water from another permitted waterworks or receives some or all of its finished water from one or more wholesale waterworks. Consecutive waterworks may provide additional treatment to finished water. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

"Consolidated" means rock made from sedimentary, igneous, or metamorphic materials that have been metamorphosed or cemented together forming strata or bodies of rock.

"Consumer" means any person who drinks receiving water for human consumption from a waterworks.

"Consumer's water system" means any water system located on the consumer's premises, supplied by or in any manner connected to a waterworks.

"Containment" means the safeguard against backflow into a waterworks from a consumer's water system by installing an appropriate backflow prevention assembly, backflow prevention device, or backflow elimination method at the service connection [ or downstream of the service connection but before any unprotected takeoffs ].

"Contaminant" means any objectionable or hazardous physical, chemical, biological, or radiological substance or matter in water.

"Conventional filtration treatment" means a series of processes including coagulation, flocculation, sedimentation, and filtration resulting in substantial particulate removal.

"Corrosion inhibitor" means a substance capable of reducing the corrosivity of water toward metal plumbing materials, especially lead and copper, by forming a protective film on the interior surface of those materials.

"Cross connection" "Cross-connection" means any connection or structural arrangement, direct or indirect, to the waterworks whereby actual or potential link, connection, or physical arrangement, direct or indirect, between used water, an auxiliary water system, or other source of contamination [ or pollution ] to the waterworks through which backflow can occur.

"CT" or "CTcalc" means the product of "residual disinfectant concentration" (C) in mg/L determined before or at the first customer, and the corresponding "disinfectant contact time" (T) in minutes (i.e., "C" x "T").

"Daily fluid intake" means the daily intake of water for drinking and culinary use and is defined as two liters.

"Dechlorination" means the partial or complete reduction of residual chlorine in water by any chemical or physical process at a waterworks with a treatment facility.

"Degree of hazard" means the level of health hazard, as derived from an evaluation of the potential risk to health and the adverse effect upon the waterworks.

"DBPPs" means disinfection byproduct precursors.

"DBPs" means disinfection byproducts.

"DCLS" means the Virginia Department of General Services, Division of Consolidated Laboratory Services.

"Department" means the Virginia Department of Health.

"DEQ" means the Virginia Department of Environmental Quality.

"Diatomaceous earth filtration" means a process resulting in substantial particulate removal in which (i) a precoat cake of diatomaceous earth filter media is deposited on a support membrane (septum), and (ii) while the water is filtered by passing through the cake on the septum, additional filter media known as body feed is continuously added to the feed water to maintain the permeability of the filter cake.

"Direct filtration" means a series of processes including coagulation and filtration but excluding sedimentation resulting in substantial particulate removal.

"Disinfectant" means any oxidant (including chlorine) that is chemical and physical agents, including chlorine, chlorine dioxide, chloramines, ozone, and UV light, added to water in any part of the treatment or distribution process for the purpose of killing or deactivating inactivating pathogenic organisms.

"Disinfectant contact time" ("T" in CT calculations) means the time in minutes that it takes for water to move from the point of disinfectant application to the point where residual disinfectant concentration ("C") is measured.

"Disinfection" means a process that inactivates or destroys pathogenic organisms in water by chemical oxidants or equivalent agents use of a disinfectant.

"Disinfection profile" means a summary of Giardia lamblia or virus inactivation through the water treatment plant.

"Distribution main" means a water main pipeline whose primary purpose is to provide treated convey drinking water to service connections.

"District engineer" means the employee assigned by the Commonwealth of Virginia, Department of Health, Office of Drinking Water to manage its regulatory activities in a geographical area of the state consisting of a state planning district or subunit of a state planning district.

"Domestic or other nondistribution system plumbing problem" means a coliform contamination problem in a waterworks with more than one service connection that is limited to the specific service connection from which the coliform positive sample was taken.

"Distribution system" means a network of pipelines and appurtenances by which a waterworks delivers drinking water to its consumers.

"DOC" means the dissolved organic carbon in a water sample.

"Double [ gate-double ] check valve assembly" [ or "double check detector backflow assembly" ] means [ an approved a backflow prevention ] assembly composed of two single independently acting check valves including tightly closing shutoff valves located at each end of the assembly and [ petcocks and test gauges for testing the watertightness of each check valve test cocks to facilitate testing of the assembly, used for low hazard situations ].

"DPOR" means the Virginia Department of Professional and Occupational Regulation.

"Drawdown" means the difference, measured vertically, between the static water level in the well and the water level during pumping.

"Dual sample set" means a set of two samples collected at the same time and same location, with one sample analyzed for TTHM and the other sample analyzed for HAA5. Dual sample sets are collected for the purposes of conducting an initial distribution system evaluation (IDSE) under 12VAC5-590-370 B 3 e (2) and determining compliance with the TTHM and HAA5 MCLs under 12VAC5-590-370 B 3 e (3).

"Effective corrosion inhibitor residual" means, for the purpose of 12VAC5-590-405 A 1 only, a concentration sufficient to form a passivating film on the interior walls of a pipe.

[ "EDR" means electrodialysis reversal. ]

"Enhanced coagulation" means the addition of sufficient coagulant for improved removal of disinfection byproduct precursors by conventional filtration treatment.

"Enhanced softening" means the improved removal of disinfection byproduct precursors by precipitative softening.

"Entry point" means the place where water from the source after application of any treatment is delivered to the distribution system. Where two or more sources are combined before distribution, the entry point is the location that is representative of the blended water following all treatment.

"Equivalent residential connection" means a volume of water used equal to a residential connection that is 400 gallons per day unless supportive data indicates otherwise.

"Exception" means an approved deviation from a "shall" criteria contained in Part III (12VAC5-590-640 et seq.) of this chapter.

"EPA" means the U.S. Environmental Protection Agency.

"Exemption" means a conditional waiver of allowing a waterworks that satisfies the criteria in 12VAC5-590-150 to deviate from a specific PMCL or treatment technique requirement that is granted to a specific the waterworks for a limited period of time.

"Filter profile" means a graphical representation of individual filter performance, based on continuous turbidity measurements or total particle counts versus time for an entire filter run, from startup start-up to backwash inclusively, that includes an assessment of filter performance while another filter is being backwashed.

"Filtration" means a process for removing particulate matter from water by passage through porous media.

"Finished water" means water that is introduced into the distribution system of a waterworks and is intended for distribution and consumption without further treatment, except as treatment is necessary to maintain water quality in the distribution system [ (e.g., booster disinfection). ], addition of corrosion control chemicals).

"First draw sample" means a one-liter sample of tap water, collected in accordance with 12VAC5-590-375 B 2, that has been standing in plumbing pipes at least six hours and is collected without flushing the tap.

"Flocculation" means a process to enhance agglomeration or collection of smaller floc particles into larger, more easily settleable particles through gentle stirring by hydraulic or mechanical means.

"Flowing stream" means a course of running water flowing in a definite channel.

"Free available chlorine" means that portion of the total residual chlorine residual remaining in water at the end of a specified contact period that will react chemically and biologically as hypochlorous acid or hypochlorite ion.

"GAC10" means granular activated carbon filter beds with an empty-bed contact time of 10 minutes based on average daily flow and a carbon reactivation frequency of every 180 days, except that the reactivation frequency for GAC10 used as a best available technology for compliance with 12VAC5-590-410 C 2 b (1) (b) shall be 120 days.

"GAC20" means granular activated carbon filter beds with an empty-bed contact time of 20 minutes based on average daily flow and a carbon reactivation frequency of every 240 days.

"Governmental entity" means the Commonwealth, a town, city, county, service authority, sanitary district, or any other governmental body established under the Code of Virginia, including departments, divisions, boards, or commissions.

"GAC" means granular activated carbon.

"Gross alpha particle activity" means the total radioactivity due to alpha particle emission as inferred from measurements on a dry sample.

"Gross beta particle activity" means the total radioactivity due to beta particle emission as inferred from measurements on a dry sample.

"Groundwater" means all water obtained from sources not classified as surface water (or surface water sources).

"Groundwater system" means any waterworks that uses groundwater as its source of supply; however, a waterworks that combines all its groundwater with surface water or with groundwater under the direct influence of surface water prior to before treatment is not a groundwater system. Groundwater systems include consecutive waterworks that receive finished groundwater from a wholesale waterworks potable water from another groundwater source.

"Groundwater under the direct influence of surface water" or "GUDI" means any water beneath the surface of the ground with (i) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia, or Cryptosporidium. It also means or (ii) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH that closely correlate to climatological or surface water conditions. The commissioner GUDI source determinations shall be made by the department in accordance with 12VAC5-590-430 will determine direct influence of surface water.

"GWMA" means the groundwater management area designation by the State Water Control Board.

"Haloacetic acids (five)" or "HAA5" means the sum of the concentrations in milligrams per liter of the haloacetic acid compounds (monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid), rounded to two significant figures after addition acids, expressed in milligrams per liter (mg/L) as rounded to two significant figures. For the purpose of this chapter the HAA5 shall mean monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid.

"Halogen" means one of the chemical elements chlorine, bromine, fluorine, astatine, or iodine.

"Health hazard" means any condition, device, or practice in a waterworks or its operation that creates, or may create, a danger to the health and well-being of the water consumer.

"Health regulations" means regulations that include all primary maximum contaminant levels, treatment technique requirements, and all operational regulations, the violation of which would jeopardize the public health.

"HPC" means the heterotrophic plate count of a bacterial population.

"Human consumption" means drinking, food preparation, dishwashing, bathing, showering, hand washing, teeth brushing, and maintaining oral hygiene.

"Hypochlorite" means a solution of water and some form of chlorine, usually sodium hypochlorite the ionic component from the disassociation of hypochlorous acid that performs the function of disinfection. It is the available active ingredient in liquid hypochlorite disinfectants such as sodium and calcium hypochlorite.

"Initial compliance period" means for all regulated contaminants, the initial compliance period is the first full three-year compliance period beginning at least 18 months after promulgation with the exception of waterworks with 150 or more service connections for contaminants listed at Table 2.3, VOC 19-21; Table 2.3, SOC 19-33; and antimony, beryllium, cyanide (as free cyanide), nickel, and thallium that shall begin January 1993 the compliance period in which chemical [ monitoring begins and radiological monitoring began, and it is represented by the first full three-year compliance period beginning at least 18 months after rule promulgation. It applies to inorganic, organic, and radionuclide contaminants listed in Tables 340.1, 340.2, and 340.4, respectively ].

"Interchangeable connection" means an arrangement or device that will allow alternate but not simultaneous use of two sources of water.

"Isolation" means the safeguard against backflow into a waterworks from a consumer's water system by installing an appropriate backflow prevention assembly or device or by installing a backflow elimination method at the sources of potential contamination in the consumer's water system. This is also called point-of-use isolation.

"Karst geology" means an area predominantly underlain by limestone, dolomite, or gypsum and characterized by rapid underground drainage. Such These areas often feature sinkholes, caverns, and sinking or disappearing creeks. In Virginia, this generally includes all that area west of the Blue Ridge and, in Southwest Virginia, east of the Cumberland Plateau.

"Lake/reservoir" "Lake or reservoir" means a natural or manmade man-made basin or hollow on the Earth's surface in which water collects or is stored that may or may not have a current or single direction of flow.

"Large waterworks" means, for the purposes of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F, and 12VAC5-590-550 D only, a waterworks that serves more than 50,000 persons.

"Lead free" means the following: 1. When (i) when used with respect to solders and flux, refers to solders and flux containing not more than 0.2% lead; 2. When and (ii) when used with respect to pipes, and pipe fittings, refers to pipes and pipe fittings containing not more than 8.0% lead; pipe fittings, plumbing fittings, and plumbing fixtures, refers to the weighted average of wetted surfaces of pipes, pipe fittings, plumbing fittings, and plumbing fixtures containing not more than 0.25% lead.

3. When used with respect to plumbing fittings and fixtures intended by the plumbing manufacturer to dispense water for human ingestion, refers to fittings and fixtures that are in compliance with standards established in accordance with 42 USC § 300g-6(e).

"Lead service line" means a service line pipeline made of lead that connects the water distribution main to the building inlet and any lead pigtail, gooseneck, or other fitting that is connected to such lead line the lead pipeline.

"Leakage" means the loss of potable water from the distribution system, up to the points of service connections, through breaks or defects in piping and piping appurtenances.

"Legionella" means a genus of bacteria, some species of which have caused cause a type of pneumonia called Legionnaires disease.

"Level 1 assessment" means an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and, when possible, the likely reason that the waterworks triggered the assessment.

"Level 2 assessment" means an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and, when possible, the likely reason that the waterworks triggered the assessment in a more comprehensive investigation than a Level 1 assessment.

"Liquid chlorine" means a liquefied, compressed chlorine gas as shipped in commerce.

"Locational running annual average" or "LRAA" means the average of sample analytical results for samples taken at a particular monitoring location during the previous four calendar quarters.

"Log inactivation (log removal)" means that a 99% reduction is a 2-log inactivation; a 99.9% reduction is a 3-log inactivation; a 99.99% reduction is a 4-log inactivation the inactivation of organisms expressed on a logarithmic scale. For example, a 99.9% inactivation is a 3-log inactivation; whereas a 99.99% inactivation is a 4-log inactivation.

"Manmade beta particle and photon emitters" means all radionuclides emitting beta particles and/or photons listed in the most current edition of "Maximum Permissible Body Burdens and Maximum Permissible Concentration of Radionuclides in Air or Water for Occupational Exposure," National Bureau of Standards Handbook 69, except the daughter products of thorium-232, uranium-235 and uranium-238.

"Log removal" means the removal of organisms expressed on a logarithmic scale. For example, a 99.9% is a 3-log removal; whereas a 99.99% removal is a 4-log removal.

"Maximum contaminant level" or "MCL" means the maximum permissible level of a contaminant in pure potable water that is delivered to any user consumer of a waterworks. MCLs are set as close to the MCLGs as feasible using the best available treatment technology BAT. MCLs may be either "primary" (PMCL), meaning based on health considerations, or "secondary" (SMCL), meaning based on aesthetic considerations.

"Maximum contaminant level goal" or "MCLG" means the maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur [ and that allows an adequate margin of safety ]. [ Applying an adequate margin of safety to the MCLG allows the MCL to be set as the standard. ] Maximum contaminant level goals are nonenforceable health goals.

"Maximum daily water demand" means the rate of water usage during the day of maximum water use.

"Maximum residual disinfectant level" or "MRDL" means a level of a disinfectant added for water treatment that may not be exceeded at the consumer's tap without an unacceptable possibility of adverse health effects. For chlorine and chloramines, a waterworks is in compliance with the MRDL when the running annual average of monthly averages of samples taken in the distribution system, computed quarterly, is less than or equal to the MRDL. For chlorine dioxide, a waterworks is in compliance with the MRDL when daily samples are taken at the entrance to the distribution system and no two consecutive daily samples exceed the MRDL. MRDLs are enforceable in the same manner as maximum contaminant levels. There is convincing evidence that addition of a disinfectant is necessary for control of waterborne microbial contaminants. Notwithstanding the MRDLs listed in Table 2.12, operators may increase residual disinfectant levels of chlorine or chloramines (but not chlorine dioxide) in the distribution system to a level and for a time necessary to protect public health to address specific microbiological contamination problems caused by circumstances such as distribution line breaks, storm runoff events, source water contamination, or cross-connections.

"Maximum residual disinfectant level goal" or "MRDLG" means the maximum level of a disinfectant added for water treatment at which no known or anticipated adverse effect on the health of persons would occur, and that allows an adequate margin of safety. MRDLGs are nonenforceable health goals and do not reflect the benefit of the addition of the chemical for control of waterborne microbial contaminants.

"Maximum total trihalomethane potential" or "MTP" means the maximum concentration of total trihalomethanes (TTHMs) produced in a given water containing a residual disinfectant residual after seven days at a temperature of 25°C or above.

"Medium waterworks" means, for the purpose of 12VAC5-590-375 and 12VAC5-590-405 only, a waterworks that serves greater than 3,300 and less than or equal to 50,000 persons.

"Membrane filtration" means a pressure or vacuum-driven separation process in which particulate matter larger than one micrometer is rejected by an engineered barrier, primarily through a size exclusion mechanism, and that has a measurable removal efficiency of a target organism that can be verified through the application of a direct integrity test. This definition includes the common membrane technologies of microfiltration, ultrafiltration, nanofiltration, and reverse osmosis Included in this definition are the common membrane classifications of microfiltration (MF), ultrafiltration (UF), nanofiltration (NF), and reverse osmosis (RO).

"Membrane module" means the smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet.

"Membrane [ technologies technology ]" means [ those processes a process ] that [ use uses ] a permeable membrane to remove ions, molecules, or particles from the process stream, such as MF, UF, NF, RO, and [ EDR electrodialysis reversal (EDR) ].

"Membrane unit" means a group of membrane modules that share common valving that allows the unit to be isolated from the rest of the system for the purpose of integrity testing or other maintenance.

"Method detection limit" or "MDL" means the minimum concentration of a substance that can be measured and reported with 99% confidence that the analyte concentration is greater than zero and is determined from analysis of a sample in a given matrix containing the analyte.

"Microfiltration" or "MF" means a pressure-driven membrane technology that separates particles, based on the pore-size rating of the membrane, from a feed stream by using a sieving mechanism. Typically, MF can remove particles down to 0.1 micrometer in size.

"Most probable number" or "MPN" means that the density or number of organisms per unit volume that, in accordance with statistical theory, would be more likely than any other number to yield the observed test result or that would yield the observed test result with the greatest frequency, expressed as density of organisms per 100 milliliters. Results are computed from the number of positive findings of coliform-group organisms resulting from multiple-portion decimal-dilution plantings most likely to be present in a water sample and obtained from method-specific statistical MPN tables.

"MPA" means the microscopic particulate analysis method approved by EPA for use in the determination of whether a groundwater is under the influence of surface water.

"Nanofiltration" or "NF" means a pressure-driven membrane technology designed to remove multivalent ions ("softening") and other constituents based on the pore size, which ranges from one to 10 nanometers. Nanofiltration membranes typically operate under a pressure range of 600 to 1100 psi.

[ "Nondetected" or "ND" means a term typically used by laboratories to express the absence of an analyte in a test sample. ]

"Noncommunity waterworks" means a waterworks that is not a community waterworks, but operates at least 60 days out of the year.

"Nonpotable water" means water not classified as pure water.

"Nontransient noncommunity waterworks" or "NTNC" means a waterworks that is not a community waterworks and that regularly serves at least 25 of the same persons over six months out of the year. When used in the context of an NTNC, "regularly serves" means four or more hours per day, for four or more days per week, for 26 or more weeks per year.

"NSF" means [ NSF International, formerly known as ] the National Sanitation Foundation. [ NSF collaborates with ANSI and Canadian authorities on drinking water standards development (NSF/ANSI/CAN). ]

"Office" or "ODW" means the Commonwealth of Virginia, Department of Health, Office of Drinking Water.

"One hundred year flood level" elevation" or "100-year flood elevation" means the flood elevation that will, over a long period of time, be equaled or exceeded on the average once every 100 years that has a 1.0% probability of being equaled or exceeded in any given year.

"Operating staff" means individuals employed or appointed by an owner to work at a waterworks. Included in this definition are operators, whether or not the operator's license is appropriate for the classification and category of the waterworks, and unlicensed individuals.

"Operator" means any individual with the requisite skills, employed or appointed by any owner, and who is designated by such the owner to be the person in responsible charge, such as having full responsibility for the waterworks operations and any subordinate operating staff. The individual may be a supervisor, a shift operator, or a substitute in charge, and whose have duties include including testing or evaluation to control waterworks operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of waterworks.

"Optimal corrosion control treatment" means the corrosion control treatment that minimizes the lead and copper concentrations at users' consumers' taps while ensuring that the treatment does not cause the waterworks to violate any other section of this chapter.

"Optimum fluoride ion concentration" means that fluoride ion concentration recommended by the U.S. Public Health Service for protection from dental caries.

"Owner" or "water purveyor" means an individual, group of individuals, partnership, firm, association, institution, corporation, governmental entity, or the federal government that supplies or proposes to supply water to any person within this state the Commonwealth from or by means of any waterworks (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"PAC" means powdered activated carbon.

"PCBs" means polychlorinated biphenyls.

"PER" means a preliminary engineering report.

"Permit" means an authorization granted by the commissioner to construct or operate a waterworks.

"Permitted capacity" means the limiting hydraulic capability of the waterworks, taking into consideration the source water capacity, treatment facilities, finished water storage, delivery, and distribution system.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, or instrumentality thereof.

"pH" means the negative logarithm of the hydrogen ion concentration of an aqueous solution.

"Physical disconnection" means the removal or absence of pipes, fittings, or fixtures that connect a waterworks directly or indirectly to any other water system.

"Picocurie" or "pCi" means that quantity of radioactive material producing 2.22 nuclear transformations per minute.

"Plant intake" means the works or structures at the head of a conduit through which water is diverted from a source (e.g., river or lake) into the treatment plant.

"PMCL" means the [ same as "maximum contaminant level." primary maximum contaminant level of a contaminant based on health considerations. ]

"Point of disinfectant application" means the point where the disinfectant is applied and water downstream of that point is not subject to recontamination by surface water runoff.

"Point-of-entry treatment device" or "POE device" means a treatment device applied to the water entering a house or building for the purpose of reducing contaminants in the water distributed throughout the house or building.

"Point-of-use treatment device" or "POU device" means a treatment device applied to a single tap for the purpose of reducing contaminants in the water at that one tap.

"Pollution" means the presence of any foreign substance (chemical, physical, radiological, or biological) in water that tends to degrade its quality so as to constitute an unnecessary risk to human health or impair the usefulness of the water.

"Pollution hazard" means a condition through which an aesthetically objectionable or degrading material may enter the waterworks or a consumer's water system.

"Postchlorination" means the application of chlorine to water subsequent to treatment.

"Potable water" – see "Pure means the same as "pure water."

"Practical quantitation level" or "PQL" means the lowest level achievable by good laboratories within specified limits during routine laboratory operating conditions that can be reliably measured within specified limits of precision and accuracy during routine laboratory conditions.

"Prechlorination" means the application of chlorine to water prior to before filtration.

"Presedimentation" means a preliminary treatment process used to remove gravel, sand, and other particulate material from the source water through settling before the water enters the primary clarification and filtration processes in a water treatment plant.

"Pressure vacuum breaker assembly" means [ an a backflow prevention ] assembly designed to prevent backsiphonage and used for [ high-hazard high hazard ] or [ low-hazard low hazard ] situations, composed of an independently operating, spring-loaded check valve; an independently operating, spring-loaded air-inlet valve; and tightly closing shutoff valves located at each end of the assembly and fitted with properly located test cocks [ to facilitate testing of the assembly ].

"Primary disinfection" means disinfection to achieve a desired level of inactivation of targeted pathogenic organisms in water by chemical or physical agents as an integral part of the treatment process.

"Process fluids" means any fluid or solution that may be chemically, biologically, or otherwise contaminated or polluted that would constitute a health, pollutional environmental, or system hazard if introduced into the waterworks. This includes, but is not limited to: (i) polluted or contaminated water; (ii) used waters; (iii) cooling waters; (iv) contaminated natural waters taken from wells, lakes or reservoirs, streams, or irrigation systems; (v) chemicals in solution or suspension; or (vi) oils, gases, acids, alkalis, and other liquid and gaseous fluid used in industrial or other processes.

1. Polluted or contaminated water;

2. Process waters;

3. Used waters, originating from the waterworks that may have deteriorated in sanitary quality;

4. Cooling waters;

5. Contaminated natural waters taken from wells, lakes, streams, or irrigation systems;

6. Chemicals in solution or suspension; and

7. Oils, gases, acids, alkalis, and other liquid and gaseous fluid used in industrial or other processes, or for firefighting purposes.

"Process water" means water used for dissolving dry chemicals; diluting liquid chemicals; and operating chemical feeders, treatment facilities, or equipment.

"Project documents" means the engineer's report, design criteria, preliminary and final plans, specifications, and procurement documents for the construction of new waterworks or modifications to existing waterworks.

"Pure water" means water fit for human consumption that is (i) sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts and (ii) adequate in quantity and quality for the minimum health requirements of the persons served (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Raw water main" means a water main that conveys untreated water from a source to a treatment facility.

"QCRV" means the quality control release value used in challenge tests of microfiltration (MF) and ultrafiltration (UF) membrane filters.

"RAA" means running annual average.

"Reduced pressure principle backflow prevention device assembly" or [ "reduced pressure zone backflow prevention assembly" or ] "RPZ device assembly" means a device containing a minimum of two independently acting check valves together with an automatically operated pressure differential relief valve located between the two check valves an assembly designed to prevent backsiphonage or backpressure backflow [ and ] used for high or low hazard situations, composed of two independently operating spring-loaded check valves together with an independent, hydraulically operating pressure differential relief valve located between the two check valves. During normal flow and at the cessation of normal flow, the pressure between these two checks shall be less than the supply pressure. In case of leakage of either check valve, the differential relief valve, by discharging to the atmosphere, shall operate to maintain the pressure between the check valves at less than the supply pressure. The unit assembly shall include tightly closing shutoff valves located at each end of the device, RPZ assembly and each device shall be fitted with properly located test cocks [ to facilitate testing of the assembly ]. These devices shall be of the approved type.

"REM" means the unit of dose equivalent from ionizing radiation to the total body or any internal organ or organ system. A millirem (MREM) (mrem) is 1/1000 of a an REM.

"Repeat compliance period" means any subsequent compliance period after the initial compliance period.

"Residual disinfectant concentration" ("C" in CT Calculations) means the concentration of disinfectant measured in mg/L in a representative sample of water.

"Responsible charge" means designation by the owner of any individual to have duty and authority to operate or modify the operation of waterworks processes.

"Sanitary facilities" means piping and fixtures, such as sinks, lavatories, showers, and toilets, supplied with potable water and drained by wastewater piping.

"Reverse osmosis" or "RO" means a membrane technology designed to remove salts, low-molecular weight solutes, and all other constituents up to 0.0001 micron in size by applying a pressure in excess of osmotic pressure to force water through a semi-permeable membrane from a region of high solution concentration to a region of lower solution concentration.

"Sanitary defect" means a defect that could provide a pathway of entry for microbial contamination into the distribution system or that is indicative of a failure or imminent failure in a protective barrier that is already in place.

"Sanitary survey" means an evaluation conducted by ODW the department of a waterworks' water supply, facilities, equipment, operation, maintenance, monitoring records, and overall management of a waterworks to ensure the provision of pure potable water.

"SDWA" means the Safe Drinking Water Act (42 USC § 300f et seq.) and its amendments.

"Seasonal waterworks" means a noncommunity waterworks that is not operated as a waterworks on a year-round basis, and starts up and shuts down at the beginning and end of each operating season.

"Secondary water source" means any approved water source, other than a waterworks' primary source, connected to or available to that waterworks for emergency or other nonregular use.

"Secondary disinfection" means disinfection by chemical oxidants or equivalent agents applied at the entry point or in the distribution system to provide a residual disinfectant in water to maintain water quality and safeguard against chance contamination from permeation, leaching, intrusion, regrowth, or biofilms.

"Sedimentation" means a process for removal of solids before filtration by gravity or separation.

"Service connection" means the point of delivery of finished water to a customer's building service line as follows: from a waterworks to a consumer's water system, fire protection system, [ or ] irrigation system [ , ] and to all other points where finished water is delivered through the distribution system to a consumer. [ Generally, the service connection occurs at the water meter, or at the distribution main if no water meter is installed, or in the case of an owner of both the waterworks and the building supplied, the point of entry into the building. ] Service connections may be permanent, temporary, or emergency.

1. If a meter is installed, the service connection is the downstream side of the meter;

2. If a meter is not installed, the service connection is the point of connection to the waterworks;

3. When the water purveyor is also the building owner, the service connection is the entry point to the building.

"Service line sample" means a one-liter sample of water, collected in accordance with 12VAC5-590-375 B 2 c, that has been standing for at least six hours in a service line.

[ "Service line" means the pipeline or service pipe between the service connection and the building connection. ]

"Sewer" means any pipe or conduit used to convey sanitary sewage, stormwater, or industrial waste streams. Combined sewers convey both stormwater and sanitary sewage.

"Significant deficiency" means any defect in a waterworks' design, operation, maintenance, or administration, as well as the failure or malfunction of any waterworks component, that may cause, or has the potential to cause, an unacceptable risk to health or could affect the reliable delivery of pure potable water to consumers.

"Single-family structure" means, for the purpose of 12VAC5-590-375 B only, a building constructed as a single-family residence that is currently used as either a residence or a place of business.

"Site visit" means a tour of a waterworks by [ the ] department [ staff ] or other authorized persons for purposes including assessing and documenting its physical condition, operations, and compliance activities.

"Slow sand filtration" means a process involving passage of raw source water through a bed of sand at low velocity (generally less than 0.4 m/h), resulting in substantial particulate removal by physical and biological mechanisms.

"Small waterworks" means, for the purpose of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F and 12VAC5-590-550 D only, a waterworks that serves 3,300 persons or fewer.

"Standard sample" means that portion of finished drinking water that is examined for the presence of coliform bacteria.

"SMCL" means the [ same as "maximum contaminant level." secondary maximum contaminant level of a contaminant. SMCLs are based on aesthetic qualities related to the public acceptance of drinking water. ]

"SOP" means standard operating procedure.

"Source water" means water as it is pumped or otherwise withdrawn from a well, spring, stream, lake or reservoir, or any body of surface water (natural or impounded), and before any treatment.

"Supervisory control and data acquisition" or "SCADA" means a computer-controlled system used by a waterworks to monitor its operations. Typical design features may be specific to individual waterworks and include alarm, response, control, and data acquisition.

"Surface water" means all water open to the atmosphere and subject to surface runoff.

"SUVA" means specific ultraviolet absorption at 254 nanometers (nm), an indicator of the humic content of the water. It is a calculated parameter obtained by dividing a sample's ultraviolet absorption at a wavelength of 254 nm (UV254) [ (in m-1) (in m-1) ] by its concentration of dissolved organic carbon (DOC) DOC (in mg/L).

"Synthetic organic chemicals" or "SOC" means one of the family of organic manmade compounds generally utilized for agriculture or industrial purposes.

"Synthetic organic chemical" or "SOC" means a man-made organic compound, generally utilized for agriculture or industrial purposes. Table 340.2 lists SOCs regulated as contaminants.

"System hazard" means a condition posing an actual, or threat of, damage to the physical properties of the waterworks or a consumer's water system.

"Terminal reservoir" means an impoundment providing end storage of water prior to treatment.

"TDS" means total dissolved solids.

"TMF" means the technical, managerial, and financial capabilities to operate and maintain a waterworks.

"Too numerous to count" or "TNTC" means that the total number of bacterial colonies exceeds 200 on a 47-mm diameter membrane filter used for coliform detection.

"Total effective storage volume" means the volume available to store water in distribution reservoirs measured as the difference between the reservoir's overflow elevation and the minimum storage elevation. The minimum storage elevation is that elevation of water in the reservoir that can provide a minimum pressure of 20 psi at a flow as determined in 12VAC5-590-690 C to the highest elevation served within that reservoir's service area under systemwide maximum daily water demand.

"Total organic carbon" or "TOC" means total organic carbon in mg/L [ miiligrams milligrams ] per liter (mg/l) measured using heat, oxygen, ultraviolet irradiation, chemical oxidants, or combinations of these oxidants that convert organic carbon to carbon dioxide, rounded to two significant figures.

"Total trihalomethanes" or "TTHM" means the sum of the concentrations of the trihalomethanes (THMs) expressed in milligrams per liter (mg/L) and rounded to two significant figures. For the purpose of these regulations, the TTHMs this chapter, TTHM shall mean trichloromethane (chloroform), dibromochloromethane, bromodichloromethane, and tribromomethane (bromoform).

"Transient noncommunity waterworks" or "TNC" means a noncommunity waterworks that is not a nontransient noncommunity waterworks (NTNC). A TNC serves at least 25 persons daily for at least 60 days out of the year.

"Transmission main" means a water main whose primary purpose is to move significant quantities of treated water among service areas.

"Treatment" means any process that changes the chemical, physical, radiological, or bacteriological quality of water.

"Treatment technique requirement" or "TT" means a requirement that specifies for a contaminant a specific treatment technique(s) technology or process demonstrated to the satisfaction of the division department to lead to a reduction in the level of such a specific contaminant sufficient to comply with these regulations this chapter.

"Triggered source water monitoring" means monitoring required of any groundwater system as a result of a total coliform-positive sample in the distribution system.

"Trihalomethane" or "THM" means one of the family of organic compounds, named as derivatives of methane, wherein three of the four hydrogen atoms in methane are each substituted by a halogen atom in the molecular structure.

"Two-stage lime softening" means a process in which chemical addition and hardness precipitation occur in each of two distinct unit clarification processes in series prior to filtration.

"Ultrafiltration" or "UF" means a membrane technology designed to remove particles up to 0.01 micron in size.

"Unconsolidated" means loose sediment that has not been compacted, cemented, lithified, or metamorphosed into rock. Sediment may be derived from a sedimentary-type, igneous-type, metamorphic-type rock, which includes clay, silt, sand, gravel, and mixtures of these particle types.

"Uncovered finished water storage facility" means a tank, reservoir, or other facility used to store water that will undergo no further treatment to reduce microbial pathogens (except residual disinfection) and is directly open to the atmosphere.

"Unregulated contaminant" or "UC" means a contaminant for which a monitoring requirement has been established, but for which no MCL or treatment technique requirement has been established.

"USBC" means the Uniform Statewide Building Code (13VAC5-63).

"Used water" means any water supplied by a water purveyor from the waterworks to a consumer's water system after it has passed through the service connection and is no longer under the control of the owner.

"UV" means ultraviolet.

"Variance" means a conditional waiver of a specific regulation that is granted to a specific waterworks allowing a waterworks that satisfies the criteria in 12VAC5-590-140 to provide drinking water that does not fully comply with this chapter. A PMCL variance is a variance to a primary maximum contaminant level, or a treatment technique requirement. An operational variance is a variance to an operational regulation or a secondary maximum contaminant level SMCL. Variances for monitoring, reporting and public notification requirements will not be granted.

"Virus" means a microbe virus of fecal origin that is infectious to humans by waterborne transmission and must be preemptively inactivated through disinfection before human consumption.

"Volatile synthetic organic chemical" or "VOC" means one of the family of manmade organic compounds generally characterized by low molecular weight and rapid vaporization at relatively low temperatures or pressures.

"Volatile organic chemical" or "VOC" means an organic compound generally characterized by its low molecular weight and its tendency to vaporize rapidly at relatively low temperatures and pressures. Table 340.2 lists VOCs regulated as contaminants.

"VOSH" means the Virginia Occupational Safety and Health program.

"Waiver" means permission from the department to deviate from the monitoring and reporting requirements in this chapter for a specific contaminant.

"Waterborne disease outbreak" means the significant occurrence of acute infectious illness, epidemiologically associated with the ingestion of water from a waterworks that is deficient in treatment, as determined by the commissioner or the State Epidemiologist.

"Water purveyor" (same as owner).

"Water supply" means the source of water that shall have been taken into a waterworks from all including wells, streams, springs, lakes or reservoirs, and other bodies of surface waters (natural or impounded), and the tributaries thereto, and all impounded groundwater, but the. The term "water supply" shall not include any waters above the point of intake of such the waterworks (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Water supply main" or "main" means any water supply pipeline that is part of a waterworks distribution system.

"Water Well Completion Report" means a report form published by the State Water Control Board entitled "Water Well Completion Report," which requests specific information pertaining to the ownership, driller, location, geological formations penetrated, water quantity and quality encountered as well as construction of water wells. The form is to be completed by the well driller.

"Water treatment plant" means that portion of a waterworks intended specifically for water treatment; it may include, among other operations, coagulation, sedimentation, filtration, and disinfection.

"Waterworks" means a system that serves piped water for human consumption to at least 15 service connections or 25 or more individuals for at least 60 days out of the year. "Waterworks" includes all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure potable water except the piping and fixtures inside the building where such water is delivered (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Waterworks with a single service connection" means a waterworks that supplies drinking water to consumers via a single service line.

"Waterworks business operation plan" means the same as "comprehensive business plan."

"Wholesale waterworks" means a waterworks that treats source water as necessary to produce finished potable water and then delivers some or all of that finished potable water to another waterworks. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

B. As used in this chapter, the following units of measurement shall use the abbreviations as shown in this subsection:

C – degrees Celsius

CU – color units

ft2 – square feet of area

ft/min – feet per minute

ft/sec – feet per second

gpd – gallons per day

gpd/ft2 – gallons per day per square foot

gpm – gallons per minute

gpm/ft – gallons per minute per foot

gpm/ft2 – gallons per minute per square foot

in – inches

lb – pounds

lb/day – pounds per day

lb/ft2 – pounds per square foot

MFL – million fibers per liter

MGD – million gallons per day

mg/L – milligrams per liter

min – minutes

mJ/cm2 – millijoules per square centimeter

mrem – millirem

nm – nanometer (10-9 meter)

NTU – nephelometric turbidity units

pCi – picocuries

pCi/L – picocuries per liter

ppb – parts per billion, or micrograms per liter (μg/L)

ppm – parts per million, or milligrams per liter (mg/L)

ppq – parts per quadrillion, or pictograms per liter (pq/L)

ppt – parts per trillion, or nanograms per liter (ng/L)

psi – pounds per square inch

psig – pounds per square inch gauge

scfm/ft2 – standard cubic feet per minute per square foot

µm – micrometers (10-6 meter or microns)

µg/L – micrograms per liter

µS/cm – microSiemens per centimeter

W/m2 – Watts per square meter

Article 2

General Information

12VAC5-590-20. Authority for regulations. (Repealed.)

Article 2 (§ 32.1-5 et seq.) of Chapter 1 of Title 32.1 of the Code of Virginia provides that the State Board of Health has the duty to protect the public health and to ensure that all water supplies destined for public consumption be pure water. In order to discharge that duty, the board is empowered to supervise and regulate all waterworks and water supplies within the state (see Article 2 of Chapter 1 of Title 32.1 of the Code of Virginia).

12VAC5-590-30. Purpose of regulations. (Repealed.)

These regulations have been promulgated by the board to: 1. Ensure that all water supplies destined for public consumption be pure water; 2. Guide the commissioner in his determination of whether a permit for a public water supply or waterworks should be issued; and 3. Assist the owner or his authorized engineer in the preparation of an application, plans, specifications, reports and other data.

12VAC5-590-35. Delegation of authority.

The commissioner, or the commissioner's designee, may perform any act of the board provided under this chapter, except as limited by § 32.1-20 of the Code of Virginia.

12VAC5-590-40. Administration of regulations this chapter.

These regulations are administered by the following parties:

1. State Board of Health, which has responsibility A. The board is responsible for promulgating, amending, and repealing regulations which to ensure a supply of pure potable water.

2. State Health Commissioner, who is the executive officer B. The commissioner is vested with all the authority of the State Board of Health with the authority of the board when it is not in session, and subject to such rules and regulations as may be prescribed by the board.

3.Division of Water Supply Engineering, which C. The department is designated as the primary reviewing agent of the board for the purpose of administering this chapter. It examines and passes upon the technical aspects of all applications and plans for waterworks projects prior to the before drafting of a permit for final approval by the State Health Commissioner commissioner. It also has primary responsibility for monitoring waterworks operations to ensure that water supplied to the public is pure consumers is potable water.

4. Central and field offices, which are maintained by the division, the central office is located in Richmond, Virginia. The Office of Water Programs maintains six field offices which are responsible for activities of the division within their service areas. Applications for waterworks permits should be submitted to the appropriate field office. The addresses of the field offices and a description of the areas that they serve are listed in Appendix C.

5. Waterworks Advisory Committee, which shall be appointed by the commissioner, shall consist of thirteen appointed members and three ex officio members specified below. The commissioner shall appoint to the Waterworks Advisory Committee one individual each from the following: a member of the Virginia Section American Water Works Association; a member of the Virginia Society of Professional Engineers; a member of the Virginia Water Well Association, Inc.; a member of the Consulting Engineers Council; a water treatment plant operator having a valid license of the highest classification in waterworks issued by the State Board for Waterworks and Wastewater Works Operators; a faculty member of a state university or college whose principal field of teaching is Environmental Engineering; a community waterworks owner; a nontransient noncommunity (NTNC) representative; a representative from Virginia Rural Water Association; a representative from Virginia Water Projects, Inc.; a representative from the Virginia Municipal League; a representative from the Virginia Association of Counties; and a citizen representative. Ex officio members shall consist of the Director, Office of Water Programs, who shall act as chairman; Director, Division of Water Supply Engineering; and Director, Division of Consolidated Laboratory Services or their designees.

Appointed members shall serve at the discretion of the commissioner with staggered terms being of three years in duration. The Waterworks Advisory Committee shall make recommendations to the commissioner regarding waterworks and water supply policies, procedures and programs of the division.

12VAC5-590-45. Waterworks Advisory Committee.

A. A Waterworks Advisory Committee (WAC) shall be formed by the commissioner to [ peer ] review [ and make recommendations regarding ] the regulatory, policy, and legislative aspects of the department's authorities. [ Committee WAC ] members shall consist of industry professionals employed outside the department with longstanding expertise or vested interest in waterworks operations and represent a diverse group of stakeholders. Members shall be experts in the fields of water treatment technologies, public health, water quality, economics, environmental science, public utilities, community development, or industry regulations. A minimum of nine persons shall be appointed to the committee by the commissioner.

B. The WAC will convene at least quarterly.

C. WAC meetings will be considered public meetings. Notice of scheduled meetings will be posted on the Virginia Regulatory Town Hall at least [ seven three ] working days before the date of the meeting. Meeting minutes will be posted to the Virginia Regulatory Town Hall within 10 working days after the meeting.

D. Each member of the WAC shall hold office for a term of three years, except that:

1. With approval by the commissioner, members are eligible for reappointment to consecutive terms.

2. Each member of the WAC serves at the pleasure of the commissioner.

E. The commissioner shall appoint the chair of the WAC.

F. The WAC shall have a [ member of the ] department [ staff member ] serve as secretary.

12VAC5-590-50. Application of [ regulations this chapter ] to waterworks and water supplies in operation or planned prior to before [ the effective date of the regulations June 23, 2021 ].

Waterworks and water supplies which were in operation prior to the effective date of the regulations may continue operation if they comply with the operational regulations set forth in Part II. Operation permits, which will be in addition to all permits previously received, will be issued to such waterworks as soon as practicable after the effective date of these regulations.

A. Waterworks and water supplies unable to comply with Part II of this chapter may be issued the appropriate variances and/or exemptions in conjunction with the operation permit to allow continued operation during the period of adjustment. Any variances and/or exemptions will be issued in accordance with the procedures contained in Article 3 of Part I of this chapter The owner shall comply with Part II [ (12VAC5-540-340 et seq.) (12VAC5-590-340 et seq.) ] of this chapter unless a variance or exemption is issued by the commissioner.

B. Compliance with design criteria set forth in Parts Part III and IV of this chapter is necessary for waterworks modification limited to modifications to existing waterworks and for all construction of new waterworks commenced after the effective date of these revised regulations [ (insert effective date of this chapter) June 23, 2021 ]. Portions of waterworks not being modified are not required to comply with the design criteria of Part III (12VAC5-590-640 et seq.). Waterworks construction or modification is deemed to be commenced for purposes of this section upon receipt of final plans and specifications by the field office issuance of the construction permit.

C. Compliance with the requirements set forth in Parts Part III and IV of this chapter including those for materials, construction methods, and disinfection, etc., is necessary for all repairs to pipes, tanks, pumps, and appurtenances which that are part of a waterworks.

D. Volatile Synthetic Organic Chemicals (VOCs) and Unregulated Contaminants (UCs) Regulations are effective immediately for those community and NTNC waterworks which serve more than 10,000 persons. The VOC and UC regulations are effective immediately for community and NTNC waterworks serving 3,300 to 10,000 persons. The VOC and UC regulations become effective on January 1, 1991, for community and NTNC waterworks serving less than 3,300 persons. (See Table 2.7.)

E. The Lead and Copper Regulations establish a treatment technique that includes requirements for corrosion control treatment, water supply (source water) treatment, lead service line replacement, and public education. These requirements are triggered, in some cases, by lead and copper action levels measured in samples collected at consumers' taps. Unless otherwise indicated, each of the provisions of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F and 12VAC5-590-550 D applies to community waterworks and nontransient noncommunity waterworks. The requirements set forth in 12VAC5-590-375, 12VAC5-590-530 D and 12VAC5-590-550 D shall take effect on July 7, 1991.

12VAC5-590-55. Relationship of this chapter to the Uniform Statewide Building Code.

A. This chapter governs waterworks facilities from any source water to all service connections.

B. In accordance with § 36-98 of the Code of Virginia and the USBC, the USBC governs the construction of buildings and structures, including plumbing systems and backflow prevention [ methods ]. The USBC also governs the water service piping from the service connection to a building or structure.

C. Notwithstanding subsections A and B of this section, this chapter shall govern:

1. Water treatment, storage, pumping facilities, and water piping that are part of a waterworks and housed in any building or structure; and

2. Backflow prevention assemblies or elimination methods, or both, installed for containment and located downstream from the service connection, including where located in any building or structure.

Article 3

Procedures

12VAC5-590-60. Compliance with the Administrative Process Act. (Repealed.)

The provisions of the Administrative Process Act (Chapter 1.1:1 of Title 9) and Title 32.1 of the Code of Virginia govern this chapter. All procedures outlined below are in addition to, or in compliance with, the requirements of that Act.

12VAC5-590-70. Powers and procedures.

The board reserves the right to authorize utilize any lawful procedure for the enforcement of this chapter that is consistent with the provisions set forth herein and the provisions of Title 32.1 of the Code of Virginia.

12VAC5-590-80. Procedure. (Repealed.)

Regulations for the operations, construction, or modification of a waterworks or water supply are established, amended, or repealed only in accordance with the Administrative Process Act.

12VAC5-590-100. Exception; emergency regulations.

If the establishment of a regulation is necessary for the preservation of public health, safety, or welfare to meet any emergency not provided for by this chapter, the board or commissioner acting on behalf of the board when it is not in session may immediately promulgate and adopt the necessary regulation by complying with the procedures set forth in either § 2.2-4011 or § 32.1-13 of the Code of Virginia.

12VAC5-590-110. Enforcement.

All waterworks must be operated in compliance with the requirements as set forth in this chapter as follows:

1. A. Notice. Whenever the commissioner, his appointed representative, or the division department has reason to believe that a violation of Title 32.1 or of the Code of Virginia or of any section of this chapter has may have occurred or is may be occurring, the division department shall so notify the alleged violator. Such The notice shall (i) be in writing shall; (ii) cite the statute, regulation or regulations that are allegedly being violated, and shall; (iii) state the facts which that form the basis for believing that the violation has may have occurred or is may be occurring; and (iv) include information on the process for obtaining a final decision or fact finding from the department on whether or not a violation has occurred. A notice of violation This notification is not an official finding, case decision, or adjudication but may be accompanied by include a request that certain to the owner to respond timely and to take specific corrective action be taken by a stated deadline.

2. B. Orders. Pursuant to § 32.1-26 of the Code of Virginia, the commissioner board may issue orders to require any owner to comply with the provisions of Title 32.1 of the Code of Virginia or this chapter any law administered by it, the commissioner, or the department; any regulations promulgated by the board, including any section of this chapter; or any case decision of the board or commissioner. The order shall be signed by the commissioner and commissioner, acting on behalf of the board when it is not in session, will sign the order, and the order may require:

a. 1. The immediate cessation or correction of the violation;

b. 2. The acquisition or use of additional equipment, supplies, or personnel to ensure that the violation does not recur;

c. 3. The submission of a plan to prevent future violations;

d. 4. The submission of an application for a variance or exemption;

e. 5. Any other corrective action deemed necessary for proper compliance with the this chapter; or

f. Division review 6. An evaluation and approval, if appropriate, of the required submissions, if appropriate.

3. C. Compliance with effective orders and this chapter. The commissioner may act as the agent of the board to enforce all effective orders and this chapter. Should any owner fail to comply with any effective order or this chapter, the commissioner may:

a. 1. Institute a an administrative proceeding to revoke the owner's permit in accordance with 12VAC5-590-320 and § 32.1-174 of the Code of Virginia or other appropriate administrative remedies;

b. Apply to an appropriate court for an injunction or other legal process to prevent or stop any practice in violation of the order;

c. 2. Request attorney for the Commonwealth to bring a criminal action criminal prosecution by a Commonwealth's attorney with the appropriate jurisdiction in accordance with § 32.1-27 of the Code of Virginia;

d. 3. Request civil action by the Attorney General to bring an action for impose a civil penalty, injunction seek injunctive relief, or other appropriate remedy legal remedies pursuant to §§ 32.1-27 and 32.1-176 of the Code of Virginia; or

e. 4. Do any combination of the above subdivision C 1, C 2, or C 3 of this section.

4. D. Special order. Pursuant to § 32.1-175.01 of the Code of Virginia, the commissioner may, after an informal fact-finding proceeding held in accordance with § 2.2-4019 of the Code of Virginia, issue a special order that may include a civil penalty against an owner who violates the Public Water Supplies Law, §§ 32.1-167 through 32.1-176 of the Code of Virginia, this chapter, or any order of the board.

E. Graduated enforcement actions. Nothing in this section shall prevent the commissioner or the division from taking action prior to issuing an order or department from making efforts to obtain voluntary compliance through conference, warning, or other appropriate means before issuance of an order, instituting an administrative proceeding, or requesting an action by a Commonwealth's Attorney or the Attorney General.

5. Hearing as a matter of right (see 12VAC5-590-180).

12VAC5-590-115. Administrative proceedings.

A. Types of administrative proceedings. Administrative proceedings before the board, the commissioner, or the commissioner's designee, shall include the following forms depending upon the nature of the controversy and the interests of the named party involved.

1. An informal fact-finding proceeding is an informal conference between the department [ staff ] and the named party held in accordance with § 2.2-4019 of the Code of Virginia.

2. A formal hearing is an adjudicatory proceeding before the commissioner or a designated hearing officer held in accordance with § 2.2-4020 of the Code of Virginia.

B. Request for administrative proceeding. The named party may request an administrative proceeding by sending a request in writing to the department.

C. Administrative proceeding as a matter of right. The named party whose rights, duties, or privileges have been or may be affected by any action or inaction of the board, commissioner, or department in the administration of this chapter, has a right to both an informal fact-finding proceeding and a formal hearing; however, the commissioner reserves the right to require participation in an informal fact-finding proceeding before granting the request for a formal hearing.

12VAC5-590-120. Emergency Orders orders.

A. The commissioner may, pursuant to § 32.1-175 of the Code of Virginia, issue emergency orders in any case where there is an imminent danger to the public health resulting from the operation of any waterworks or the source of a water supply.

B. An emergency order may be communicated by the best practical notice under all the circumstances and is effective immediately upon receipt. The order may state any requirements necessary to remove the danger to the public health, including the immediate cessation of the operation of the waterworks or the use of any water supply. The commissioner may order the immediate cessation of the operation of any waterworks or the use of any water supply or the correction of any condition causing the production or distribution of any water constituting an imminent danger to the public health and welfare.

C. Violation of an emergency order is subject to civil enforcement and is punishable as a criminal misdemeanor.

D. Emergency orders shall be effective for a period determined by the commissioner.

E. Emergency orders may be appealed in accordance with the provisions of the Administrative Process Act APA.

12VAC5-590-125. Chronically noncompliant waterworks.

A. The commissioner may identify a waterworks as chronically noncompliant (CNC) whenever he determines that:

1. The waterworks has a documented performance record that demonstrates the waterworks is not a dependable supplier of potable water;

2. The owner has shown inadequate technical, financial, or managerial capabilities to provide potable water;

3. The owner has failed to comply with an order issued by the commissioner­;

4. The owner has abandoned the waterworks and has discontinued providing potable water to the consumers; or

5. The owner is subject to a forfeiture order pursuant to § 32.1-174.1 of the Code of Virginia.

B. Once A. If the commissioner [ or department ] determines that a waterworks is CNC a chronically noncompliant waterworks, as defined in § 32.1-167 of the Code of Virginia, he then the commissioner shall issue an order to the owner containing a schedule to bring the waterworks into compliance with this chapter and require the submission of a comprehensive business plan pursuant to § 32.1-172 B of the Code of Virginia waterworks business operation plan. If capital improvements are necessary to bring the waterworks into compliance, and the owner does not possess sufficient assets to make the necessary improvements, the order shall require the owner to make annual, good faith applications for loans, grants, or both, to appropriate financial institutions to secure funding for such improvements, until such the improvements are complete and operational. The owner shall provide a copy of the order to each consumer with a copy of the compliance schedule within 10 calendar days of issuance of the order.

C. The owner shall provide the commissioner a copy of the notice order was distributed and a signed certification of the distribution completion date within five calendar days of completing the notification required in subsection B of this section.

B. Within 15 calendar days of issuance of the commissioner's order, the owner shall certify in writing that a copy of the order was distributed to each consumer within the 10-day period specified in subsection A of this section.

D. C. The commissioner shall send a copy of the order to the chief administrative officer of the locality in which the waterworks is located for appropriate action under § 15.2-2146 of the Code of Virginia.

E. D. In addition to the provisions of § 32.1-27 of the Code of Virginia, any owner who violates this chapter, an order of the board, or a statute governing public water supplies shall be subject to those civil penalties provided in §§ 32.1-167 through 32.1-176 Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia.

12VAC5-590-130. Suspension of this chapter.

If, in the case of a manmade man-made or natural disaster, the commissioner finds determines that certain regulations cannot be complied with and that the public health is better served by access to semiregulated or nonregulated water supplies than by the closing of those affected supplies he may suspend, then the application enforcement of the chapter those regulations may be suspended for specific affected localities designated waterworks and institute a provisional regulatory scheme instituted until the disaster is abated the conditions that brought about the suspension have abated.

12VAC5-590-140. Variances.

A. The commissioner may grant a variance to a primary maximum contaminant level (PMCL), a PMCL, SMCL, treatment technique requirement, or an operational regulation, or a secondary maximum contaminant level (SMCL) by following the appropriate procedures set forth in this section.

1. Requirements for a variance. A PMCL variance may be granted to a waterworks from any requirement respecting with respect to a PMCL or SMCL upon a finding that:

a. Alternative sources of water supplies are not reasonably available to the waterworks;

b. The characteristics of the raw water sources which are source water that is reasonably available to the waterworks prevent prevents the waterworks from meeting the PMCL or SMCL requirements, and on condition that the waterworks installs the best available technology BAT, treatment techniques, or other means, which that the [ commissioner department ] finds are generally available (taking costs into consideration); and

c. The granting of a variance will not result in an unreasonable risk to the health of persons served by the waterworks.

2. The commissioner may grant a one or more treatment technique variance variances to a waterworks from any requirement of a specified treatment technique upon a finding that the waterworks applying for the variance has demonstrated that such the treatment technique is not necessary to protect the health of persons because of the nature of the raw water source of such source water at the waterworks.

3. The commissioner may grant a variance to a waterworks from an operational regulation or a SMCL if a thorough investigation reveals that the hardship imposed outweighs the benefits that may be received by the public and that the granting of such the variance does not subject the public to unreasonable health risks. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

4. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

B. Application Request for a variance. Any owner may apply in writing for a variance. The application should request shall be sent to the appropriate field office department for evaluation. All applications requests for a variance shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare;

6. Other information, if any, believed by the applicant owner to be pertinent to the application request; and

7. Such Any other information as may be required by the commissioner to make the determination.

8. C. For any application request made for a PMCL variance, the applicant owner shall also include;:

a. Explanation 1. An explanation in full and evidence of the best available treatment technology and techniques BAT;

b. Economic 2. The economic and legal factors relevant to the owner's ability to comply;

c. Analytical 3. The analytic results of raw water source water quality relevant to the variance request;

d. 4. A proposed compliance schedule including the date each step toward compliance will be achieved. Such The schedule shall include as a minimum the following dates:

(1) Date a. The date by which arrangement for an alternative raw water source source water or improvement of an existing raw water source source water will be completed;

(2) Date b. The date of initiation of the connection of the alternative raw water source source water or improvement of the existing raw water source source water; and

(3) Date c. The date by which final compliance is to be achieved.

e. 5. A plan for the provision of safe drinking potable water in the case of an excessive rise in the contaminant level for which the variance is requested; and

f. 6. A plan for interim control measures during the effective period of the variance.; and

7. A plan for notifying the consumers at least once every three months, or more frequently if determined by the commissioner, that the waterworks is operating under the conditions of a variance.

9. D. For any application request made for a treatment technique variance, the applicant owner must also include a statement that monitoring and other reasonable requirements prescribed by the commissioner as a condition to the variance will be performed.

C. E. Consideration of a variance application request.

1. The commissioner shall act on any variance application request submitted pursuant to subsection B of this section within 90 days of receipt of the application submittal.

2. The commissioner will consider comments received during the comment period and testimony in the record of a public hearing held before making a determination.

3. In the commissioner's consideration of whether the waterworks is unable to comply with a contaminant level required by this chapter (PMCL variance) because of the nature of the raw water source source water, the commissioner shall consider such factors as the following:

a. The availability and effectiveness of treatment methods BAT for which the variance is requested.; and

b. Cost The cost and other economic considerations such as implementing treatment, improving the quality of the source water, or using an alternate source.

3. 4. In the commissioner's consideration of whether a waterworks should be granted a variance to a required treatment technique because such the treatment is unnecessary to protect the public health (treatment technique variance), the commissioner shall consider such factors as the following:

a. Quality of the source water source including water quality data and pertinent sources of pollution.; and

b. Source protection measures employed by the waterworks.

4. 5. In the commissioner's consideration of whether a waterworks should be granted a variance to a required operational procedure or SMCL (operational variance), the commissioner shall consider such factors as the following:

a. The effect that such a variance would have on the adequate operation of the waterworks, including operator safety (in accordance with Virginia Occupational Safety and Health laws). in accordance with VOSH laws and regulations;

b. The cost and other economic considerations imposed by this requirement.; and

c. The effect that such a variance would have on the protection of the public health.

D. F. Disposition of a variance application request.

1. The commissioner may reject any application request for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180 If the commissioner proposes to deny the variance, the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the variance, the applicant shall be notified in writing of this decision. Such The notice shall identify the variance, the waterworks covered, and shall specify the period of time for which the variance will be effective.

a. For a PMCL variance as specified in subdivision A 1 of this section, such the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subdivision D F 3 of this section.

b. For a treatment technique variance as specified in subdivision A 2 of this section, such the notice shall provide that the variance may be terminated at any time upon a finding by the commissioner that the nature of the raw water source water is such that the specified treatment technique for which the variance was granted is necessary to protect the public health or upon a finding that the waterworks has failed to comply with monitoring and other requirements prescribed by the commissioner as a condition to the granting of the variance.

c. For an operational variance as specified in subdivision A 3 of this section, such the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the operational variance shall be the date of its issuance. A public hearing is not required before the issuance of an operational variance.

3. Schedules pursuant to PMCL and treatment technique variances:

a. The proposed schedule for compliance shall specify dates by which steps towards toward compliance are to be taken, including where applicable:

(1) Date by which arrangement for an the alternative water source water or improvement of the existing raw water. source water will be completed;

(2) Date of connection to the alternative raw water source water or improvement of the existing raw water. source water; and

(3) Date by which final compliance is to be achieved.

b. If the waterworks has no access to an alternative raw water source water and can effect or anticipate no adequate improvement of the existing raw water source water, then the proposed schedule may specify an indefinite time period for compliance until a new and effective treatment technology is developed, at which time a new compliance schedule shall be prescribed by the commissioner.

c. The schedule for implementation of interim control measures during the period of variance shall specify interim treatment techniques, methods, and equipment and dates by which steps toward meeting the interim control measures are to be met.

d. The schedule shall be prescribed by the commissioner at the time the variance is granted.

e. For a PMCL variance specified in subdivision A 1 of this section, the commissioner shall propose a schedule for:

(1). Compliance (including increments of progress) by the waterworks with each contaminant level requirement covered by the variance; and

(2). Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level covered by the variance.

E. G. Public hearings on PMCL and treatment technique variances and their schedules.

1. Notice of a public hearing shall be provided before a variance and schedule proposed by the commissioner pursuant to subsection D F of this section may take effect. A notice given pursuant to the preceding sentence this subsection may cover the granting of more than one variance and a public hearing held pursuant to such notice shall include each of the variances covered by the notice.

2. Notice of a public hearing on an application a request for a variance and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located. The notice shall include a summary of the proposed variance and its schedule and shall contain the time, date, and place of the public hearing. If the schedule exceeds five years from the date of the variance, then the rationale for the extended compliance schedule shall be discussed in the notice.

F. H. Issuance of variance.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such hearing, revise the proposed variance as necessary and prescribe the final schedule for compliance and interim measures for the waterworks granted a variance. If the schedule for compliance exceeds five years from the date of issuance of the variance, then the commissioner shall document the rationale for the extended compliance schedule.

2. Such The compliance schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter. Such schedule shall also consider if the waterworks is to become part of a regional waterworks. Such The compliance schedule shall provide the shortest practicable time schedule under the circumstances.

G. I. Posting of variances. All variances granted to any waterworks are nontransferable. Each variance must be attached to the permit of the waterworks to which it is granted. Each variance is a condition to that permit and is revoked when the permit is revoked.

H. J. No variances shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420, 12VAC5-590-388, 12VAC5-590-395, or 12VAC5-590-411.

12VAC5-590-150. Exemptions.

A. The commissioner may grant an exemption to any primary maximum contaminant level (PMCL) PMCL or treatment technique requirement by following the procedures set forth in this subsection section. An exemption may be granted to a waterworks from any requirement with respect to a PMCL or treatment technique requirement upon a finding that:

1. The waterworks [ must be is ] unable to implement measures to develop an alternative [ supply of source ] of water [ supply ];

2. The waterworks cannot reasonably make management or restructuring changes that will result in compliance or improve the quality of the drinking water;

3. Due to compelling factors (which may include economic factors), the waterworks is unable to comply with such contaminant level or treatment technique requirement requirements;

4. The granting of the exemption will not result in an unreasonable risk to the health of persons served by the waterworks;

5. The waterworks was in operation on the effective date of such contaminant level or treatment technique requirement requirements; and

6. The waterworks has not been granted a variance.

B. Application for exemption. A waterworks The owner may request an exemption for a waterworks by submitting a written application request to the appropriate field office department for evaluation. All applications requests for an exemption shall include the following information:

1. A citation to the regulation from which the exemption is requested;

2. Nature The nature and duration of the exemption requested;

3. Relevant The relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. Explanation An explanation of the compelling factors such as time or economic factors which that prevent such waterworks from achieving compliance;

5. Other information believed by the applicant owner to be pertinent to the application request;

6. A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

7. Such other Other information as may be required by the commissioner to make the determination.

C. Consideration of an exemption application request.

1. The commissioner shall act on any exemption application request submitted pursuant to subsection B of this section within 90 days of receipt of the application request.

2. In the commissioner's consideration of whether the waterworks is unable to comply due to compelling factors, the commissioner shall consider such factors as the following:

a. Construction The construction, installation, or modification of treatment equipment or systems;

b. The time needed to put into operation a new water treatment facility plant into operation to replace an existing waterworks which water treatment plant that is not in compliance;

c. The economic feasibility of compliance;

d. The availability of Drinking Water State Revolving Fund, a department program to assist waterworks in achieving the public health protection objectives of the SDWA, assistance or any other federal or state program that is reasonably likely to be available within the period of the exemption;

e. The consideration of rate increases, accounting changes, the appointment of a licensed operator under the state operator's licensure program, or contractual agreements for joint operation with one or more waterworks;

f. The activities consistent with Virginia's capacity development strategy to help the waterworks acquire and maintain technical, financial, and managerial capacity to come into compliance;

g. The ownership changes, physical consolidation with another waterworks, or other feasible and appropriate means of consolidation that would result in compliance; and

h. The availability of an alternative source of drinking water, including the feasibility of partnerships with neighboring waterworks, as identified by the waterworks or by the commissioner consistent with the capacity development strategy.

D. Disposition of an exemption application request.

1. The commissioner may reject any application request for an exemption by sending a rejection notice to the applicant owner. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180. If the commissioner proposes to deny the exemption, then the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the exemption, then the applicant owner shall be notified in writing of this decision. Such The notice shall identify the exemption and the waterworks covered and shall specify the termination date of the exemption. Such notice shall provide that the exemption Exemptions shall be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subsection F of this section.

3. The commissioner shall propose a schedule for:

a. Compliance (including increments of progress) by the waterworks with each contaminant level and treatment technique requirement covered by the exemption; and

b. Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level and treatment technique requirement covered by the exemption.

4. The schedule shall be prescribed by the commissioner at the time the exemption is granted.

5. For a waterworks that serves a population of not more than 3,300 persons and that needs financial assistance for the necessary improvements under the initial compliance schedule, an exemption granted by the commissioner may be for one or more additional two-year periods, but not to exceed a total of six additional years, only if the commissioner establishes that the waterworks is taking all practicable steps to meet the requirements of the exemption and the established compliance period. The commissioner will document the findings in granting an extension under this subdivision.

E. Public hearings on exemptions and their schedules.

1. Notice of a public hearing shall be provided before an exemption and schedule proposed by the commissioner pursuant to subsection D of this section may take effect. A Such notice given pursuant to the preceding sentence may cover the granting of more than one exemption, and a public hearing held pursuant to such the notice shall include each of the exemptions covered by the notice.

2. Notice of a public hearing on an application a request for an exemption and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located.

3. The notice shall include a summary of the proposed exemption and its schedule and shall contain the time, date, and place of the public hearing.

F. Issuance of exemption.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such the hearing, revise the proposed exemption as necessary and prescribe the final compliance schedule for compliance and interim measures for before issuing the exemption to the waterworks granted an exemption.

2. Such The schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter section. If the schedule for compliance exceeds five years from the date of issuance of the exemption, then the commissioner shall document the rationale for the extended compliance period. Such schedule shall also consider if the waterworks is to become part of a regional waterworks.

G. Posting of exemptions. All exemptions granted to any waterworks are nontransferable. Each exemption must be attached to the operation permit of the waterworks to which it is granted. Each exemption is a condition to that permit and is revoked when the permit is revoked.

H. No exemption shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420 B 1 b [ , ] 12VAC5-590-388, or 12VAC5-590-395.

12VAC5-590-160. Types of hearings. (Repealed.)

Hearings before the board, the commissioner, or their designees shall include any of the following forms depending upon the nature of the controversy and the interests of the parties involved.

1. An informal hearing is a meeting with the district engineer and field director and held in accordance with § 9-6.14:11 of the Code of Virginia. The field director may consider all evidence presented at the meeting which is relevant to the issue in controversy. Presentation of evidence, however, is entirely voluntary. The field office has no subpoena power. No verbatim record will be taken at the informal hearing, but the field director may make preliminary findings of fact, and may submit a copy of those preliminary findings, with recommendations, to the commissioner and or division director for review. A copy of the findings shall be mailed to the appellant.

2. The adjudicatory hearing is a formal, public, adjudicatory proceeding before the commissioner or a designated hearing officer held in conformance with § 9-6.14:12. Pursuant to the hearings process:

a. A Notice which states the time, place, and issues involved in the prospective hearing shall be sent to parties requesting the hearing by certified mail at least 15 calendar days before the hearing is to take place;

b. A record of the hearing will be made by a court reporter or other approved means. A copy of the transcript of the hearing, if transcribed, will be provided within a reasonable time to any person upon written request and payment of the cost. If the record is not transcribed, then the cost of preparation of the transcript will be borne by the party requesting the transcript;

c. All interested parties may attend the hearing and present evidence, expert or otherwise, that is material and relevant to the issues in controversy. The admissibility of evidence shall be in accordance with the Administrative Process Act. All parties may be represented by counsel;

d. The commissioner or hearing officer, pursuant to § 9-9.14:13 of the Code of Virginia, may issue subpoenas for the attendance of witnesses and the production of books, papers, maps, and records. The failure of a witness without legal excuse to appear or to testify or to produce documents may be reported by the commissioner to the appropriate circuit court; and

e. The commissioner may designate a hearing officer or subordinate to conduct the hearing, as provided in § 9-6.14:12 of the Code of Virginia, and to make written recommended findings of fact and conclusions of law to be submitted for review and final decision by the commissioner. The final decision of the commissioner shall be reduced to writing and will contain the explicit findings of fact upon which his decision is based. Copies of the decision shall be delivered to the owner affected by it. Notice of a decision will be served upon the parties and become a part of the record. Service may be by personal service or certified mail, return receipt requested.

3. A regulatory hearing is a public meeting of the board which is held for the purpose of adopting, amending, or repealing rules and regulations. A regulatory hearing requires that:

a. A notice shall be published, in at least one newspaper of general circulation in the commonwealth, not less than 60 days prior to the day on which the regulatory hearing is to be held. Such notice shall state the time, place, and nature of the hearing and the express terms or an informative survey of the rules that are to be adopted, amended, or repealed;

b. All interested persons may be present at the hearing and may present comments, arguments, objections, and evidence which concern the proposed rules; and

c. The board may adopt, repeal, or amend any rule or regulation which was included in the general notice published prior to the meeting. Rules and regulations may be adopted in the form in which they were described in the notice, or as amended at the hearing, provided the amendments do not alter the main purpose of the rule or regulation.

12VAC5-590-170. Request for hearing. (Repealed.)

Any person may request a hearing by sending a request, in writing, to the appropriate field office or the central office.

12VAC5-590-180. Hearing as a matter of right. (Repealed.)

Any person whose rights, duties or privileges have been or may be affected by any action or inaction of the board, its agents, or deputies in the administration of this chapter, shall have a right to both an informal and an adjudicatory hearing; however, the commissioner reserves the right to require participation in an informal hearing before granting the request for a full adjudicatory hearing.

12VAC5-590-190. Permits.

A. No owner or other person may cause or allow any waterworks to be operated in the Commonwealth without a written operation permit issued by the commissioner.

B. No owner or other person shall cause or allow the construction or change in the manner of transmission, storage, purification, treatment, or distribution of water (including the extension of water pipes for the distribution of water) at any waterworks or water supply in the Commonwealth without a written construction permit or a general permit for distribution mains from the commissioner. Furthermore, no owner or other person shall cause or permit any waterworks or water supply to be operated without a written operation permit issued by the commissioner which authorizes the operation of the waterworks or water supply. Conditions may be imposed on the issuance of any permit, and no waterworks or water supply may be constructed, modified, or operated in violation of these conditions.

C. Construction permits may not be required for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

D. Individual construction permits for distribution mains are not required for waterworks that obtain a general permit (see 12VAC5-590-300).

E. Conditions may be imposed on the issuance of any permit, and no waterworks may be constructed, modified, or operated in violation of these conditions.

12VAC5-590-200. Procedure for obtaining a construction permit.

A. Construction permits are issued by the Commissioner commissioner, but all requests for a construction permit are directed initially to the Field Office department. The procedure for obtaining the a construction permit includes the following steps:

(i) the submission of an application, (ii) a preliminary engineering conference, (iii) the submission of an engineer's report (optional at the discretion of the Field Director), and, (iv) the submission of plans, specifications, design criteria and other data in the number requested by the Division.

A. An application for a permit shall be submitted by the owner or authorized agent requesting permission to establish, construct, expand, modify, and/or operate a waterworks or water supply. The application shall clearly indicate whether the affected water supply is a community, nontransient noncommunity, or noncommunity waterworks.

B. A preliminary conference with the Division's appropriate District Engineer will be held. The applicant's engineer shall be prepared to set forth the water supply problems and the proposed solution in such a manner as to support his conclusions and recommendations.

C. The engineer's report and preliminary plans for waterworks shall present the following information where applicable:

1. General information - The report shall include:

a. A description of any existing waterworks and sewerage facilities.

b. Identification of the municipality or area served.

c. The name and mailing address of the owner.

2. Extent of waterworks system - The report shall include:

a. A description of the nature and extent of the area to be served.;

b. Provisions for extending the waterworks system to include additional areas.

c. An appraisal of the future requirements for service, including existing and potential industrial, commercial, institutional and other water supply needs.

3. Alternate plans - Where two or more solutions exist for providing public water supply facilities, each of which is feasible and practicable, the report shall discuss the alternate plans and give reasons for selecting the one recommended, including financial considerations.

4. Soil, groundwater conditions, and foundation problems - The report shall include:

a. A description of the character of the soil through which water mains are to be laid.

b. A description of foundation conditions prevailing at sites of proposed structures.

c. A description of the approximate elevation of ground water in relation to subsurface structures.

5. Water consumption - The report shall include:

a. A description of the population trends as indicated by available records, and the estimated population which will be served by the proposed water supply system or expanded system.

b. Present and estimated future water consumption values used as the basis of design.

c. Present and estimated future yield of the sources of supply.

6. Fire flow requirements: - if fire flows are to be provided, the quantity of fire flow which will be made available by the proposed or enlarged system shall be given.

7. Sewerage system available: - Describe the existing system and sewage treatment works, with special reference to its relationship to the existing or proposed waterworks which may affect the operation of the water supply system, or which may affect the quality of the water supply.

8. Source of water supply: - Describe the proposed source or sources of water supply to be developed and the reasons for their selection by supplying the following data:

a. Surface water sources

(1) Hydrological data, stream flow, and weather records;

(2) Safe yield, including all factors that may affect it;

(3) Maximum flood flow, together with approval for safety features of spillway and dam from appropriate reviewing authority;

(4) Summarized quality of raw water with special references to fluctuation in quality, changing meteorological conditions, sources of contamination, measures to protect the watershed, etc.

b. Groundwater sources

(1) Sites considered,

(2) Advantages of site selected,

(3) Elevation with respect to surroundings and 100-year flood,

(4) Probable character of geological formations through which source is to be developed,

(5) Unusual geological conditions affecting site,

(6) Summary of source exploration, test well depth and method of construction, placement of liners or screens; pumping test, hours, capacity; water level and specified yield, water quality,

(7) Possible sources of contamination.

9. Proposed treatment processes - Summarize and establish the adequacy of proposed processes for the treatment of the specified water under consideration (pilot studies may be required).

10. Waste disposal - Discuss the various wastes from the water treatment plant, their volume, proposed treatment and points for discharge.

11. Automatic equipment - Provide supporting data justifying automatic equipment, including servicing.

12. Project sites - The report shall include:

a. A discussion on various sites considered and advantages of the recommended one,;

b. A description of the proximity of residences, industries, and other establishments,

c. The location of potential sources of pollution that may influence the quality of the supply or interfere with the effective operation of the waterworks system, such as sewage absorption systems, septic tanks, privies, cesspools, sink holes, sanitary landfills, petroleum storage tanks, etc.

13. Financing - The report shall state:

a. The estimated cost of integral parts of the system,

b. The detailed estimated annual cost of operation,

c. The proposed method of financing, both capital charges and operating expenses.

14. Future extensions - Summarize planning for future needs and service.

1. Owners shall notify the department of all proposed construction projects, except distribution main projects that are permitted under the provisions of a general permit for distribution mains (see 12VAC5-590-300), or when the project is for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

2. The submission of a Waterworks Permit Application to the department on a form approved by the department.

3. Based on the application received, the department shall notify the owner if a preliminary engineering conference is required. A preliminary engineering conference shall be required for projects proposed using alternative delivery methods authorized under § 2.2-4380 of the Code of Virginia. The preliminary engineering conference shall define the scope of the project, project phasing, milestones, and deliverables. An evaluation procedure shall be agreed upon and the conference shall be documented.

4. The submission of preliminary engineering or intermediate design reports if required by the department. The need for and scope of the reports shall be established during the preliminary engineering conference.

5. The submission of a waterworks business operation plan that demonstrates the waterworks TMF [ capability capabilities ]. The waterworks business operation plan consists of four primary components:

a. Waterworks information that includes ownership data, a waterworks facility description, operator requirements, staffing needs, and staff training.

b. Management information that identifies critical business practices necessary for effective management and operation of the waterworks. Management information includes the requirements essential for managing and operating the waterworks and defines the processes, methods, and tasks necessary for complying with this chapter.

c. Financial information that identifies projects, considering the waterworks revenues and cash flow, [ which ] will be sufficient for meeting the cost of operation and maintenance for at least five full years from the initiation of operations. Financial information also demonstrates the owner's ability to direct the waterworks' finances to support technical and managerial capacities and includes a self-assessment consisting of the following [ several ] financial metrics: operating cash reserve, debt service coverage, emergency reserve, and revenue sufficiency.

d. Sustainability improvements that are identified throughout the waterworks business operation plan to address TMF aspects of the waterworks' business processes that need improvement.

6. The submission of plans, specifications, final design criteria, and other supporting design data. This submission may include manufacturers equipment data sheets, drawings, and specifications when the specific materials or equipment to be used in the project have been preselected by the owner with the engineer's concurrence.

B. Well site inspection. When, upon inspection by the department, one or more well locations are found suitable for well sites, tentative approval in writing shall be furnished to the owner authorizing the drilling of wells, the exact location where each well is to be drilled, and the well construction requirements. This tentative approval will become void after a 12-month period.

D. C. Plans for waterworks improvements construction shall provide the following information, where applicable:

1. A general layout which that includes:

a. Suitable title, to include name of waterworks,;

b. Name of owner of waterworks,;

c. Area or institution to be served,;

d. Scale, in feet,;

e. North Point,;

f. Datum used,;

g. Boundaries of the municipality or area to be served,

h. g. Date, address, and name of designing owner's engineer,;

i. Imprint of professional engineer's seal ( see 12VAC5-590-220),

j. Legible prints suitable for microfilming, with size not to exceed 30 inches by 42 inches,

k. h. Location and size of existing water mains, distribution system; and

l. i. Location and nature of existing waterworks structures and appurtenances affecting the proposed improvements construction noted on one sheet.

2. Detailed plans which that include, where applicable:

a. Stream crossings, providing profiles with elevations of the stream bed and the normal and extreme high and low water levels, water level;

b. Profiles having a horizontal scale of not more than 100 feet to the inch and a vertical scale of not more than 10 feet to the inch, with both scales clearly indicated,;

c. Location and size of the property to be used for the groundwater development with respect to known references such as street intersections or section lines,;

d. Topography and arrangement of present or planned wells or structures, with contour intervals not greater than two feet,;

e. Elevation of highest known flood level, floor of structure, upper terminal of protective casing, and outside surrounding grade, using United States Coast and Geodetic Survey, United States Geological Survey, or equivalent elevations where applicable as a reference,;

f. Schematic drawing A completed Uniform Water Well Completion Report, Form GW-2, and schematic drawings of well construction, showing diameter and depth of drillholes drill holes, casing and liner diameters and depths, grouting depths, elevations and designation of geological formation, water levels, and other details to describe the proposed well completely,;

g. Location If not previously submitted in the preliminary engineering report (PER): the location of all potential sources of pollution within 250 1,000 feet (or further, depending upon aquifer type and recharge area) of drilled wells, 100 feet of treated water storage facilities, five miles upstream from surface water intakes, and the entire drainage area of springs;

h. Size, length, identity, and location or of sewers, drains, water mains distribution systems, and water treatment plant structures;

i. Schematic flow diagrams and hydraulic profiles showing the flow through various water treatment plant units,;

j. Piping in sufficient detail to show flow through the water treatment plant, including waste lines,;

k. Location of all chemical feeding equipment and points of chemical application,;

l. All appurtenances, specific structures, equipment, water treatment plant waste disposal units, and point of discharge having any relationship to the plans for water mains and/or distribution system or waterworks structures,;

m. Location of sanitary or other facilities such as lavatories, showers, toilets, and lockers,;

n. Location, dimensions, and elevations of all proposed water treatment plant facilities,; and

o. Adequate description of all features not otherwise covered by the specifications.

E. Complete, detailed, technical specifications shall be supplied for the proposed project which include where applicable:

D. Specifications for waterworks construction improvements shall provide the following information, where applicable:

1. A program for keeping existing waterworks facilities in operation during construction of additional facilities so as to minimize interruption of service,;

2. Laboratory The laboratory facilities and equipment, as well as sampling taps and their locations,;

3. Number The number and design of treatment process components,;

4. Materials The materials or proprietary equipment for sanitary or other facilities including any necessary backflow or backsiphonage backflow protection,;

5. Workmanship,; and

6. Other equipment.

F. E. Design criteria. A summary of complete design criteria shall be submitted for the proposed project, containing but not limited to the following information, where applicable:

1. Yield of source of supply, Source water capacity;

2. Reservoir surface area,

3. Area of watershed,

4. 2. Estimated water consumption, including average day, maximum day, and peak hour flows;

5. 3. Number and type of proposed services,;

6. Fire-fighting 4. Firefighting requirements,;

7. 5. Basin capacities,;

8. 6. Retention times,;

9. 7. Unit loadings,;

10. 8. Filter area and proposed filtration rate,;

11. 9. Backwash rate,; and

12. 10. Feeder capacities and ranges.

F. For community waterworks, a copy of the duly recorded (i) plat plan of the well lot or subdivision plan showing the well lot and (ii) dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks.

G. For noncommunity waterworks, the [ commissioner department ] may on a case-by-case basis require a copy of a duly recorded plat plan of a well lot and a dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks. In imposing such a requirement, the [ commissioner department ] shall take into consideration public health protection and the waterworks operations, treatment processes, and appurtenances.

12VAC5-590-210. Formal requirements Requirements for the submission of engineering data.

A. In accordance with Article 1 (§ 54.1-400 et seq.) of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, all drawings, specifications, and engineer's reports submitted for approval shall be prepared by or under the supervision of a licensed professional engineer legally qualified to practice in Virginia, unless submitted under § 54.1-408 of the Code of Virginia for practice of land surveying in subdivisions.

The front cover of each set of drawings, of each copy of the engineer's report, and of each copy of the specifications submitted for review shall bear the signed imprint of the seal of the licensed professional engineer who prepared or supervised the preparation and be signed with an original signature. In addition, each drawing submitted shall bear an imprint or a legible facsimile of such seal. B. The quantity, format, and method of submission shall meet the evaluation needs of the department and shall be consistent with the requirements in Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 of the Code of Virginia.

C. All reports, plans, and specifications shall be submitted to the field office department at least 60 days prior to before the date upon which action by the division department or commissioner is desired.

D. If the procedures for obtaining a construction permit in 12VAC5-590-200 are not complied with or if plans and specifications are found to be incomplete or inadequate for detailed review evaluation, then the plans and specifications will be returned to the submitting party. If revisions to the plans or specifications or both are necessitated, a letter will be sent to the owner and engineer who prepared them outlining the will be notified in writing of the necessary revisions. Revised plans, or specifications, or both constitute a resubmittal; however, the division will make every resubmission. Every effort will be made to complete the review of such evaluation of these revisions promptly. Preliminary plans and the engineer's report should be submitted for review prior to preparation of final plans.

12VAC5-590-220. Compliance with the Manual of Practice.

A. The design guidelines set forth in the Manual of Practice (Part III) Part III Manual of Practice for Waterworks Design (12VAC5-590-640 et seq.) of this chapter (Manual of Practice) specify general criteria for the design and construction of waterworks. The division commissioner may impose standards or requirements which that are more stringent than those contained in the Manual of Practice when required for critical areas or special conditions to meet drinking water quality standards. Any such special standards or requirements with a federal mandate shall take precedence over the criteria in the manual Manual of Practice and will be items which that warrant careful consideration at the preliminary engineering conference, referenced in 12VAC5-590-200 B.

B. Designs submitted for waterworks must demonstrate that the system waterworks will adequately safeguard public health. Submissions which that are in substantial compliance with the Manual of Practice or and any additional requirements of the department commissioner, as noted above in [ subdivision subsection ] A of this section, will be approved. Justification for a design may be required for those portions of the submitted design which that differ from the criteria of the division, set forth in the Manual of Practice, or accepted engineering practices and any established by the commissioner. Deviations from "shall" mandatory criteria which the design engineer, in his judgment, believes to be substantial in nature contained in the Manual of Practice shall be identified and justified. The division For each deviation, the commissioner may require changes in designs which are not in substantial compliance with the manual and which are not adequately justified by the engineer owner issue a design exception or require compliance with the criteria.

C. Final, complete, and detailed plans and specifications submitted in accordance with the provisions of 12VAC5-590-200 and 12VAC5-590-210 will be reviewed evaluated by the division department as soon as practicable upon receipt. Such plans Plans and specifications will be approved if they demonstrate substantial compliance with the design criteria set forth in the Manual of Practice and any established by the commissioner and if the waterworks, as constructed or modified, will be able to function in compliance with the operating regulations set forth in Part II (12VAC5-590-340 et seq.) of this chapter. One set of the approved plans and specifications will be stamped by the division and returned to the owner.

D. Compliance with the Manual of Practice for transient noncommunity waterworks is allowed the following exceptions as long as the conditions in subsection E of this section are satisfied:

1. The design of a transient noncommunity waterworks is not required to satisfy the professional engineer licensure requirement of 12VAC5-590-210 under the following conditions:

a. The waterworks shall serve no more than 100 persons per day.

b. The waterworks shall consist only of one supply of source water, a pressure tank no greater than 250 gallon capacity, and a single service connection.

c. The single service connection shall be a building or structure of less than 5,000 square feet total floor space. The determination of square footage shall be calculated using the outside perimeter of the building or structure.

2. Although the owner of a transient noncommunity waterworks is required to use a water well systems provider certified by DPOR for drilling wells, the remainder of the waterworks facility construction at a transient noncommunity waterworks may be performed by a master plumber or a certified water well systems provider, as defined in § 54.1-1129.1 of the Code of Virginia.

E. The conditions for exceptions to the Manual of Practice for transient noncommunity waterworks specified in subsection D of this section are as follows:

1. The owner shall submit a signed and dated statement attached to the permit application, certifying that subsection D of this section will be satisfied.

2. The owner shall submit information related to the design, construction, and materials used as required by the department.

12VAC5-590-230. Issuance of the construction permit.

A. Upon approval of the plans and specifications, the commissioner will issue a permit to the owner to construct or modify his the waterworks or water supply in accordance with the approved plans and specifications.

B. The construction permit shall be valid for a period of five years. If construction has not begun within five years but were to proceed in the future, then the owner shall reapply for a new construction permit.

C. The construction permit may include conditions for securing equipment certifications and performance validations.

12VAC5-590-240. Revisions of approved plans.

A. Any deviations from the approved plans and specifications affecting capacity, hydraulic conditions, operating units, the functioning of water treatment processes, or the quality of water to be delivered must be approved by the division department before any such changes of these deviations are made implemented.

B. Revised plans and specifications shall be submitted in time to permit allow the review evaluation and approval of such these plans or specifications before any construction work which that will be affected by such these changes is begun may begin.

12VAC5-590-250. Statement required upon completion of construction.

A. Upon completion of the construction or modification of the waterworks, the owner shall submit to the field office department a statement signed by a licensed professional engineer stating that the construction work was completed in accordance with the approved plans and specifications, revised only in accordance with the provisions of 12VAC5-590-240. This statement is called a statement of completion of construction and shall be based upon inspections of the waterworks during and after construction or modifications, that. These inspections are to be adequate to insure ensure the truth of the statement of completion of construction.

B. The project documents may require a performance validation report to confirm the design, performance criteria, and appropriate emergency procedures for specific processes and equipment. The project documents may also require operator training. If these requirements are included in the project documents, then the statement of completion of construction shall also include the performance validation report and a certification of successful operator training, as applicable.

12VAC5-590-260. Issuance of the operation permit.

A. Upon receipt of the 12VAC5-590-250 statement of completion of construction, receipt of all required certifications and test results, inspection by the department to ensure that the project has been satisfactorily completed in accordance with the approved design documents, and verification that bacteriological test results comply with the requirements set forth in Part II of this chapter, as appropriate, the commissioner will issue an operating operation permit. However, the commissioner may delay the granting of the permit pending inspection by the field office to insure that the work has been satisfactorily completed.

B. The owner shall not operate a waterworks without first having obtained an operation permit except as provided in 12VAC5-590-290.

C. The commissioner shall establish the type (community waterworks, NTNC, or TNC), classification, and permitted capacity of the waterworks and specify these on the operation permit. Conditions may be included with the permit for operator, monitoring, and reporting requirements.

12VAC5-590-270. Inspection and correction Start-up testing and inspections.

A. Within 30 days after Before placing a new or modified waterworks or water supply into operation following construction, the owner shall test the water produced at the entry point to the distribution system in a manner acceptable to the division department. The field office will be notified owner shall notify the department of the time and place of the tests. Results The owner shall send the results of the tests will be sent to the field office department.

B. The commissioner, a member of the board, or a member of the division [ has and department have ] a right to inspect any waterworks or water supply and to be present for any testing in accordance with Title 32.1 of the Code of Virginia.

12VAC5-590-280. Procedure for obtaining a construction permit for well sources. (Repealed.)

Since the quantity and quality of water from proposed wells cannot be anticipated, the following procedure shall be used:

1. Submittal of application--see 12VAC5-590-200 A.

2. Preliminary engineering conference--see 12VAC5-590-200 B.

3. When, upon inspection by the division's engineer, one or more well lots are found suitable for well sites, then tentative approval in writing will be furnished to the owner authorizing him to proceed with the drilling of the well or wells and this letter will specify the exact location on the lot where each well is to be drilled. Also, the letter will specify that the well shall be Class I or Class II, meeting the specifications set forth in Part III Article 2, Source Development. This tentative approval will become void after a 12-month period and the site must be reinspected before construction when so voided.

4. Submittal of engineer's report and preliminary plans--see 12VAC5-590-200 C.

5. Submittal of plans, specifications, and other data--see subsections D, E, and F of 12VAC5-590-200; 12VAC5-590-210 and 12VAC5-590-840. One of the following must also be submitted:

a. A copy of the plat plan showing that it has been duly recorded and signed by the clerk of the court, giving the deed book and page number and date of recording, will be required before a construction permit can be issued, or

b. If the well lot is identified on a recorded plan of the subdivision as a well lot, then this is acceptable, if recorded as required by this subsection.

In addition, a dedication document duly recorded with the clerk of the circuit court must be furnished stating that the well lot shall be used only for waterworks appurtenances as long as this lot is utilized as part of a waterworks.

6. Compliance with 12VAC5-590-220 through 12VAC5-590-270 is required.

12VAC5-590-290. Procedure for issuance of special permits for new or nonconventional methods, processes, and equipment Issuance of a temporary operation permit.

A. Water treatment methods, processes, and equipment which that are not covered by the design criteria of Part III or Part IV (12VAC5-590-640 et seq.) of this chapter, and which that in principle or application are new or nonconventional, are subject to a special temporary permit application procedure in lieu instead of that set forth in 12VAC5-590-200. A special temporary permit may be issued only after detailed review evaluation of all engineering data and after a period of extensive monitoring of the water treatment plant performance.

B. The policy of the board is to encourage The department encourages the development of any new or nonconventional methods, processes, and equipment which, that by virtue of treatability studies, appear to have application for the purification of raw water treatment. However, these new or nonconventional developments shall have been thoroughly tested in a full scale full-scale or representative pilot plant installation before approval of a plant utilizing this process these methods, processes, and equipment can be employed are approved and an operation permit issued. The result of this testing must results shall be submitted to the field office department. The testing required on new or nonconventional developments will shall generally follow these guidelines:

1. All procedures used in validating the process shall be conducted under the supervision of (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's engineering staff, or (iii) a testing firm acceptable to the division [ commissioner department ];

2. Samples shall be collected and analyzed in a manner which would that shall demonstrate water treatment plant effectiveness and efficiency under adverse conditions and over extended periods of time in the area of the proposed installation;

3. The data shall be from the continuous operation of a full scale full-scale or pilot plant treating the type of water to be handled;

4. Automatic indicating, recording, and totalizing flow measuring equipment shall be provided, and the total flow shall be measured and recorded daily;

5. At installations treating surface waters, employing coagulation, flocculation, sedimentation, filtration, and disinfection, automatic indicating and recording equipment shall be provided for continuously monitoring the turbidity of the raw water, settled water, and each filter effluent, as well as pH monitoring of the treated water (flash mix effluent);

6. 5. If the raw water source source water receives upstream discharges of treated industrial wastes or sewage effluents treated wastewater, then automatic indicating and recording equipment shall be provided for continuously monitoring the pH of raw the source and finished water and in addition to the chlorine residual of the finished water;

7. 6. The minimum sampling and analysis program will be established by the division [ commissioner department ] in accordance with the process under investigation; and,

8. 7. All analyses shall be made in accordance with the most current edition of Standard Methods for the Examination of Water and Wastewater, published by the American Public Health Association, the American Water Works Association, and the Water Pollution Control Federation or analytical methods approved in advance by the division utilize methods that are consistent with 12VAC5-590-440.

C. Detailed plans shall be submitted where possible showing how, in case of nonacceptance, the water treatment plant or unit water treatment methods, processes, and equipment will be converted to, or replaced with, a proven process. Also, financial resources must be assured to make the conversion (for example:, funds placed in escrow or a bond posted) posted.

D. After review evaluation of the plans and testing data, the commissioner will issue a construction permit if he is satisfied the performance data verifies that the method, process, or equipment will may efficiently produce water that will meet in accordance with the design specifications and the operation standards of Part II, and that the method, process, or equipment may be converted to a conventional technique, if necessary (12VAC5-590-340 et seq.) of this chapter.

E. Upon completion of construction or modification, a provisional temporary permit for a definite period of time will be issued for the operation of the new or nonconventional methods, processes, and equipment. Not more than one provisional temporary permit will be granted for a similar installation during the evaluation period. The provisional temporary operation permit shall require that:

1. The evaluation period shall be a minimum of 12 months and no longer than 18 months; and

2. The holder of a provisional temporary operation permit must shall submit reports on operation during the evaluation period as required by the division [ commissioner department ]. The reports shall be prepared by (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's operating or engineering staff, or (iii) a testing firm acceptable to the division organization.

F. The commissioner will issue an operation permit upon lapse of the provisional permit, if, on the basis of testing during that period, he finds that the new or nonconventional method, process, or equipment efficiently meets the operation standards of Part II. If the standards are not met, then the commissioner will issue an order which will require the alteration of the waterworks or water supply in a manner that will enable those standards to be met.

F. The commissioner may issue a temporary operation permit if the waterworks is not in compliance with this chapter and public health will not be jeopardized. The temporary permit may be issued for a period of time and subject to conditions as the commissioner may deem appropriate for the owner to achieve compliance with this chapter.

1. The commissioner may require, as a condition to a temporary operation permit, the submission of a waterworks business operation plan by new waterworks and existing waterworks that have demonstrated limited TMF [ capability capabilities ] or significant noncompliance with this chapter.

2. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590-200 A 5.

12VAC5-590-300. Procedure for obtaining Issuance of a general permit for construction of distribution mains.

In lieu A. Instead of obtaining a permit for each distribution main project, an owner may elect to obtain a general permit for the construction of distribution mains. These general permits are issued by the commissioner, but all requests for a general permit are directed initially to the field office department.

B. The following procedure for obtaining the requirements shall be satisfied for the issuance of a general permit shall be used:

1. The owner shall develop, adopt, and have division the [ commissioner's department's ] approval of general specifications and plan details covering water distribution main design and construction. The general specifications shall be at least as stringent as the requirements contained in this chapter.

2. The owner shall enter into a memorandum of understanding (MOU) with the division which outlines the following system-specific [ commissioner department ]. The [ commissioner department ] will outline the waterworks-specific requirements, and the owner's method of compliance with such the requirements:. The waterworks-specific requirements include the following:

a. The maximum size of pipe to be covered by the general permit;

b. The means for modifying the division department's approved general specifications and plan details;

c. The maintenance of engineering capabilities satisfactory to the division [ commissioner department ], either on-staff or through contractual arrangements;

d. The preparation of engineering plans and specifications for individual projects;

e. The maintenance of up-to-date distribution system maps and other appropriate records; and

f. The submission by the owner to the division department of appropriate reports, including an annual report and summary, concerning all projects constructed under the terms of the general permit MOU and information concerning changes to the distribution system.

C. Once the general specifications are approved and the MOU is agreed to by the [ commissioner department ], [ the commissioner will issue ] a general permit for distribution mains [ shall be issued ] with the MOU attached.

D. The general permit allows for the construction of distribution mains. The duration for the general permit is five years.

12VAC5-590-310. Amendment or reissuance of operation permits.

A. The commissioner may amend or reissue a an operation permit where (i) when there is a change in the manner of storage, the treatment, or the source of supply of the source water at the permitted location,; (ii) when the existing permit is no longer valid; or (iii) for any other cause incident to the protection of the public health,; or (iv) for the supplying of pure potable water, provided. A notice is may be required to be given to the owner, and, if one is required, a hearing held in accordance with the provisions of subdivisions 1 and 2 of 12VAC5-590-160 12VAC5-590-115.

B. The commissioner may require submission of a waterworks business operation plan as a condition to amend or reissue an operation permit. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590-200 A 5.

12VAC5-590-320. Revocation or suspension of a an operation permit.

A. The commissioner may suspend or revoke a an operation permit in accordance with Administrative Process Act the APA. Reasons for revocation of permits are as follows include:

1. Failure to comply with the conditions of the permit;

2. Violation of Title 32.1 of the Code of Virginia or of any of this chapter from which no variance or exemption has been granted;.

3. Change in ownership;

4. Abandonment of the waterworks and discontinuing the supplying of pure water; and

5. Any of the grounds specified in § 32.1-174 of the Code of Virginia.

1. The waterworks can no longer be depended upon to furnish potable water;

2. The capacity of the waterworks is inadequate for the purpose of furnishing potable water;

3. The owner has failed to abide by an order issued by the commissioner;

4. The owner has abandoned the waterworks and discontinued supplying potable water; or

5. The owner has failed to pay the waterworks operation fee required by § 32.1-171.1 of the Code of Virginia.

B. Procedure for revocation of operation permit. When revoking or suspending permits an operation permit in accordance with the above subsection A of this section, the commissioner shall:

1. Send a written notice of intent to suspend or revoke by certified mail to the last known address of the waterworks owner. The notice shall state the reasons for the proposed suspension or revocation of the operation permit, the authority under which the commissioner proposes to act, and shall give the time and place of the hearing; and offer the opportunity for an administrative proceeding in accordance with 12VAC5-590-115.

2. Provide at least 30 days advance notice of the hearing administrative proceeding.

C. An owner who is given notice of intent to revoke or suspend his permit has a right to a hearing as specified in 12VAC5-590-160 and 12VAC5-590-180.

12VAC5-590-330. Monitoring, records, and reporting.

A. The commissioner or the division department may require the owner or operator of any waterworks or water supply to install, use, and maintain monitoring equipment for the control and testing of water flowing through the water treatment plant to:

1. Identify and determine the cause of operational problems;

2. Determine the necessary corrective actions for these problems;

3. Ensure compliance with Part II of this chapter; and

4. Prepare the finished water for entry into the distribution system.

B. Sampling and testing shall be by methods approved by the division [ commissioner department ]. Test results shall be recorded, compiled, and reported to the field office department in [ a an acceptable manner and ] format [ approved by acceptable to the division commissioner ].

12VAC5-590-340. General Compliance standards.

A. All physical, chemical, bacteriological, or radiological analyses for the purpose of demonstrating compliance with primary and secondary maximum contaminant levels action levels or contaminants that do not have PMCLs but for which compliance samples must be analyzed by certified laboratories the requirements of this chapter shall be performed by [ the ] Commonwealth of Virginia, Department of General Services, Division of Consolidated Laboratory Services (DCLS) [ DCLS or ] in [ by ] laboratories [ certified by the that have received certification by EPA or DCLS as specified ] Division of Consolidated Laboratory Services [ DCLS for such purposes unless listed ] in 12VAC5-590-440 [ C ]. The owner is responsible for the collection and submission of all samples. The department may require sampling and testing that exceeds the minimal requirements specified in this chapter. A sample is deemed to have been collected only if and when its results are made known to the Office of Drinking Water department.

B. Specific limits. No attempt has been made to prescribe specific limits for every contaminant that might occur in a water supply or a waterworks. Although the need exists for continued attention to the entry of chemical, physical, bacteriological, and radiological substances into drinking water, the limits are confined to substances recognized as being detrimental to the health or well-being of the consumer or that cause significant degradation of the usefulness of the water. Limits for innumerable substances would require an impossible burden of analytical examination. The specific limits included in this chapter are listed in Tables 340.1 through 340.7.

C. Compliance is determined:

1. Based on sample results or calculated averages, where appropriate, rounded to the same number of significant figures as the PMCL, SMCL, AL, or MRDL of the contaminant in question, or

2. By the application of the specific treatment technique for particular contaminants (see 12VAC5-590-391).

EDITOR'S NOTE: Tables 340.1 through 340.7 are not further amended from the proposed regulation, therefore they are not published. View the tables as proposed at 36:6 VA.R. 475-845 November 11, 2019.

D. Notwithstanding the MRDLs in Table 340.7, an owner may increase the residual disinfectant level of chlorine or chloramines (but not chlorine dioxide) in the distribution system to a level and for a time necessary to protect public health. This may include specific microbiological contamination problems caused by circumstances such as distribution line breaks, storm runoff events, water supply contamination events, or cross-connection events.

12VAC5-590-350. Sanitary surveys Assessments and sanitary surveys.

A. Frequent assessments shall be made by the owner of the water supply source and waterworks to locate and identify health hazards to the waterworks. The manner and frequency of making these assessments, and the rate at which discovered health hazards are to be removed, shall be the responsibility of the owner. Every effort shall be made by the owner, to the extent of his jurisdiction, to prevent the degradation of the quality of water supply sources supplies.

B. The commissioner may perform sanitary surveys. Owners The department is required to perform sanitary surveys and site visits to assess the condition of a waterworks and its source water. Pursuant to § 32.1-25 of the Code of Virginia, the department [ personnel have the right, shall, upon presentation of appropriate credentials and ] with the owner's consent, [ have the right ] of entry onto the waterworks property and the facilities to inspect, investigate, evaluate, conduct tests, and collect samples for testing for the purposes of determining compliance with the provisions of any law, regulation, or order administered by the board or commissioner or any conditions in a permit, license, or certificate issued by the board or commissioner. The owner shall provide any existing information requested by the department that will enable the commissioner the department [ personnel ] to conduct the sanitary survey or site visit.

C. A sanitary survey includes, but is not limited to, an onsite evaluation of all of the following eight components:

1. Source;

2. Treatment;

3. Distribution system;

4. Finished water storage;

5. Pumps, pumping facilities, and controls;

6. Monitoring, reporting, data verification, and a special monitoring evaluation during each sanitary survey to determine whether the waterworks monitoring is appropriate or needs modification;

7. Waterworks system management and operation; and,

8. Number and classification of licensed operator(s) required in 12VAC5-590-460 operators. Licensed operators Operators shall also comply with all applicable regulations promulgated by the Virginia Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals, Department of Professional and Occupational Regulation and DPOR.

D. Significant deficiencies discovered as a result of a sanitary survey shall be addressed in accordance with the following:

1. The commissioner department shall issue written notification describing the significant deficiency to the owner.

2. Within 30 days of the significant deficiency significant-deficiency notification, the owner shall consult with the commissioner department regarding the appropriate corrective action with a schedule for implementing the corrective action. Any A waterworks with one or more significant deficiencies must have a Corrective Action Plan (CAP) CAP as described in 12VAC5-590-421 A.

3. Within 45 days of the significant deficiency significant-deficiency notification, the owner shall submit to the department a CAP with a schedule for meeting the requirements of 12VAC5-590-421 A.

12VAC5-590-360. Responsibility; Responsibilities of the owner.

A. The water utility owner or owner of the property served, to the extent of their respective jurisdictions, shall provide and maintain conditions through throughout the entirety of the water supply system waterworks in a manner which that will assure a high degree of capability and reliability to effect compliance with these standards comply with Part II (12VAC5-590-340 et seq.) of this chapter. This requirement shall pertain to the source of supply source water, transmission, treatment, transmission, storage, and distribution system facilities and the operation thereof. In addition, this requirement shall include specific and continuing assessment of the capability, effectiveness, and reliability of the treatment process in relation to potential contaminants in the source of supply. Finally, this requirement shall include the identification and evaluation of all The owner shall identify and evaluate factors having with the potential for impairing the quality of the water as delivered to customers and appropriate preventive and control the consumers. Preventative control measures identified in Part II of this chapter shall be promptly implemented to protect public health.

B. For the purpose of application of this chapter, responsibility for the conditions in the water supply system shall be considered to be held by: 1. The owner from the source of supply to the customer's service connection; and 2. The owner of the property served and the municipal, county, or other authority having legal jurisdiction from the customer's service connection to the free-flowing outlet. For the purpose of achieving compliance with this chapter, the owner shall exercise control of the waterworks from the source water to the service connection. This requirement does not imply ownership of or maintenance for any portion of the service line where local agreements and conditions dictate otherwise.

C. The property owner shall exercise control of all buildings, structures, and equipment up to the point of the service connection to the waterworks. This requirement does not limit or modify ownership of or maintenance for the service line, that may be specified by local agreements and conditions.

Article 2

General Information

12VAC5-590-370. Sampling frequency Monitoring requirements.

The commissioner may exempt consecutive waterworks that obtain potable water from another water system for distribution from all monitoring requirements in this section except for bacteriological (subsection A of this section); disinfectant residuals, disinfection byproducts, and disinfection byproduct precursors (subdivision B 3 of this section); and lead and copper (12VAC5-590-375). The required sampling frequencies are as follows:

A. Bacteriological monitoring.

1. The owner shall collect total coliform samples at specific sites and according to a schedule that is representative of water quality throughout the distribution system, which shall be documented in a written bacteriological sample siting plan (BSSP) BSSP. The BSSP shall be established or approved by the commissioner department after investigation of the source water, method of treatment and storage, and protection of the water concerned the final delivery of the drinking water through the distribution system. The BSSP shall include, but is not limited to, the following:

a. Specific routine, repeat, and triggered source water monitoring sites, identified by address or location.

b. Distribution map maps showing the location where specific sampling sites will be selected with all monitoring sites identified.

c. A minimum of three routine sample sites identified for each required routine sample for waterworks serving 3,300 or fewer people.

d. Sample A sample collection schedule with the number of routine samples required per monitoring period in accordance with Table 2.1 370.1 and subdivision A 4 of this section.

e. Repeat sample sites for each routine sample site that shall include the original routine location, at least one tap within five service connections upstream, and at least one tap within five service connections downstream with the following exceptions:

(1) Alternative repeat sample sites may be allowed when a routine site is one connection away from or at the end of a water supply distribution system main or as approved by the commissioner department;

(2) Groundwater waterworks A groundwater system serving 1,000 or fewer people may propose repeat sample sites, such as an entry point to the distribution system, that differentiate potential source water and distribution system contamination; or

(3) Groundwater waterworks A groundwater system serving 1,000 or fewer people with a single well source and no treatment may propose that one repeat sample be collected at the triggered source water monitoring site, provided that representative sampling of the distribution system is still achieved.

f. A repeat sampling site shall not be eliminated from future collections solely based on a history of questionable water quality unless the sampling point is unacceptable as determined by the commissioner department.

g. A seasonal waterworks may collect special samples in accordance with an approved start-up procedure pursuant to subdivision A 10 12 a of this section.

2. The minimum number of bacteriological samples for total coliform evaluation to be collected and analyzed monthly from the distribution system of a community waterworks, or nontransient noncommunity waterworks a NTNC shall be in accordance with Table 2.1. Owners of all 370.1. The owner of a (i) transient noncommunity waterworks TNC that use uses a surface water source or a groundwater source under the direct influence of surface water and or (ii) a large transient noncommunity TNC (serving 1,000 or more persons per day) waterworks shall collect and submit samples monthly for analysis in accordance with Table 2.1 370.1. Owners of For all other transient noncommunity waterworks TNCs, the owner shall collect and submit samples for analysis each calendar quarter in accordance with Table 2.1. 370.1. The minimum number of samples must be collected and submitted even if the waterworks has exceeded the E. coli PMCL or the total coliform treatment technique triggers.

3. The samples shall be taken collected at reasonably evenly spaced time intervals as practical throughout the month, except that a waterworks that use uses only groundwater serving and serves 4,900 or fewer people may collect all have the required samples collected on a single day if the samples are taken collected from different sites.

4. If the results of a sanitary survey or other factors determine that some other frequency is more appropriate than that stated in subdivisions A 2 and A 3 and A 4 of this section, then a modified BSSP may be required. The altered frequency shall be confirmed or changed on the basis of subsequent sanitary surveys or as otherwise determined by the commissioner department.

5. An The owner may conduct more compliance monitoring than is required by this section to investigate potential problems in the distribution system and to assist in uncovering problems. An The owner may take collect more than the minimum number of required routine samples. If the samples are taken collected in accordance with the existing BSSP and are representative of water quality throughout the distribution system, then all of the results shall be included in determining whether a coliform treatment technique has been triggered.

6. An The owner may propose repeat monitoring locations believed to be representative of a pathway for contamination of the distribution system. An The owner may elect to specify either alternative fixed locations or criteria for selecting repeat sampling sites on a situational basis in a standard operating procedure (SOP) SOP in its BSSP. The owner shall design the SOP to focus on the collection of repeat samples at locations that best verify and determine the extent of potential contamination of the distribution system area based on specific situations. The commissioner department shall require modifications to the SOP or require alternative monitoring locations as needed.

TABLE 2.1 370.1

Bacteriological Monitoring

POPULATION SERVED PER DAY

MINIMUM NUMBER OF SAMPLESa
(See subdivision A 2 of this section)

25 to 1,000b

1

1,001 to 2,500

2

2,501 to 3,300

3

3,301 to 4,100

4

4,101 to 4,900

5

4,901 to 5,800

6

5,801 to 6,700

7

6,701 to 7,600

8

7,601 to 8,500

9

8,501 to 12,900

10

12,901 to 17,200

15

17,201 to 21,500

20

21,501 to 25,000

25

25,001 to 33,000

30

33,001 to 41,000

40

41,001 to 50,000

50

50,001 to 59,000

60

59,001 to 70,000

70

70,001 to 83,000

80

83,001 to 96,000

90

96,001 to 130,000

100

130,001 to 220,000

120

220,001 to 320,000

150

320,001 to 450,000

180

450,001 to 600,000

210

600,001 to 780,000

240

780,001 to 970,000

270

970,001 to 1,230,000

300

1,230,001 to 1,520,000

330

1,520,001 to 1,850,000

360

1,850,001 to 2,270,000

2,270,001 to 3,020,000

3,020,001 to 3,960,000

3,960,001 or more

390

420

450

480

aMonthly monitoring is required for the following waterworks: (i) community, (ii) nontransient noncommunity, (iii) all noncommunity waterworks that use a surface water source, a GUDI source, or both, (iv) all seasonal waterworks, and (v) large noncommunity (serving more than 1,000 people per day). Quarterly monitoring is required for noncommuntity waterworks not specifically identified in the monthly requirements. Annual monitoring may be allowed at a TNC that meets the criteria specified in subdivision A 8 of this section.

bIncludes a waterworks that have at least 15 service connections, but serve fewer than 25 persons.

7. All bacteriological analyses shall be performed in accordance with 12VAC5-590-440 by the Division of Consolidated Laboratory Services (DCLS) DCLS or by a laboratory certified by the DCLS for drinking water samples.

8. Annual monitoring. The department may reduce the bacteriological monitoring frequency at a well-operated TNC from a quarterly sample to one annual sample, and the waterworks may remain at the annual monitoring frequency provided that all of the following conditions are continuously met:

a. The waterworks serves 1,000 or fewer people per day.

b. The waterworks uses groundwater only and is not under the influence of surface water.

c. The waterworks has a clean compliance history for a minimum of 12 consecutive months.

d. The most recent sanitary survey shows that the waterworks is free of sanitary defects or has corrected all identified sanitary defects.

e. The waterworks has a protected water source.

f. The waterworks meets existing approved construction standards.

g. The department has conducted an annual site visit within the last 12 months, and all identified sanitary defects have been corrected. For the purposes of this section, an annual site visit is equivalent to a voluntary Level 2 assessment that meets the criteria in 12VAC5-590-392 C. A sanitary survey may meet the requirement for an annual site visit in the year in which the sanitary survey is completed if all identified sanitary defects have been corrected.

8. 9. Increased monitoring.

a. A transient noncommunity waterworks TNC on quarterly or annual monitoring shall begin monthly monitoring in the month following an event if any of the following were to occur occurs: (i) the waterworks triggers a Level 2 assessment or two Level 1 assessments under the provisions of 12VAC5-590-392 in a rolling 12-month period, (ii) the waterworks has an E. coli PMCL violation, (iii) the waterworks has a coliform treatment technique violation, (iv) the owner has two monitoring violations under 12VAC5-590-370 A 2, or (v) the owner has one monitoring violation under 12VAC5-590-370 A 2 and one Level 1 assessment under 12VAC5-590-392 in a rolling 12-month period. Owners The owner shall continue monthly monitoring until the requirements in subdivisions A 9 a A 10 a and A 9 b A 10 b of this section are met. A waterworks on monthly monitoring for other reasons is not considered to be on increased monitoring for the purpose of this subdivision.

b. A TNC on annual monitoring that experiences one monitoring violation of 12VAC5-590-370 must begin quarterly monitoring in the quarter following the event. The owner shall continue quarterly monitoring until the conditions in subdivision A 11 of this section are continuously met and the department reduces the monitoring frequency.

9. 10. Returning to quarterly routine monitoring. The commissioner department may return the monitoring frequency of a transient noncommunity waterworks TNC subject to subdivision A 9 a of this section and using groundwater not under the influence of surface water to quarterly monitoring if:

a. The commissioner department has completed a sanitary survey or a site visit within the last 12 months, and the transient noncommunity waterworks TNC is free of sanitary defects and has a protected water source; and

b. The owner waterworks has maintained a clean compliance history, defined as a record of no PMCL violations for microbiological contaminants, no monitoring violations under 12VAC5-590-370, and no coliform treatment technique trigger exceedances or treatment technique violations under 12VAC5-590-392, for a minimum of 12 consecutive months following the event.

11. Returning to annual routine monitoring. The department may reduce the monitoring frequency of a TNC subject to subdivision A 9 of this section and using groundwater not under the influence of surface water to annual monitoring if:

a. An annual site visit or sanitary survey is conducted by the department, and all identified sanitary defects are corrected. The waterworks may substitute a voluntary Level 2 assessment for the annual site visit.

b. The waterworks has a protected water source and maintained a clean compliance history for a minimum of 12 consecutive months following the event.

c. The waterworks has in place or has adopted one or more of the following additional barriers to contamination: (i) an approved cross-connection control program, (ii) a licensed operator, (iii) continuous disinfection and maintenance of a residual in the distribution system in accordance with criteria specified by the department, (iv) demonstration of maintenance of at least a 4-log removal or inactivation of viruses in accordance with 12VAC5-590-379 A, or (v) other equivalent enhancements approved by the department.

10. 12. Seasonal waterworks monitoring.

a. All A seasonal waterworks shall demonstrate completion of an approved start-up procedure that may include start-up sampling prior to before serving water.

b. A seasonal waterworks shall monitor every month that it is in operation.

c. The commissioner department may waive any seasonal waterworks from some or all of the requirements for seasonal waterworks if the entire distribution system remains pressurized during the entire period that the waterworks is not operating.

d. Failure to complete an approved start-up procedure prior to before serving water is a treatment technique violation and requires the owner to provide public notification under Tier 2 conditions in 12VAC5-590-540 12VAC5-590-540 A 2.

e. Failure to submit certification of completion to the commissioner department after the owner completes an approved start-up procedure is a reporting violation and requires the owner to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

11. 13. Additional routine monitoring in the month following a total coliform-positive sample.

a. Owners The owner collecting samples on a quarterly or annual frequency shall collect at least three additional routine samples during the month following one or more total coliform-positive samples, with or without a Level 1 treatment trigger. The owner shall use the results of additional routine samples in coliform treatment technique trigger calculations under 12VAC5-590-392 B.

b. The requirements specified in subdivision A 11 13 a of this section may be waived by the commissioner department if:

(1) The commissioner department conducts a site visit before the end of the next month in which the waterworks provides water and has determined whether additional monitoring or corrective action is needed;

(2) The commissioner department has determined why the sample was total coliform positive and has established that the owner corrected the problem or will correct the problem before the end of the next month in which the waterworks serves water. In this case, the decision and the rationale for the decision shall be documented and approved in writing by the commissioner department. The commissioner department shall make this document available to EPA and the public. The documentation shall describe the specific cause of the total coliform-positive sample and what action the owner has taken or will take to correct this problem; or

(3) The commissioner department determines that the owner has corrected the contamination problem before collecting the set of repeat samples required in 12VAC5-590-380 D 3, and all repeat samples are total coliform negative. The commissioner department may waive the requirement for additional routine monitoring the next month.

c. The requirements specified in subdivision A 11 13 a of this section may not be waived by the commissioner department solely on the grounds that all repeat samples are total coliform negative.

12. 14. [ Failure to collect every required routine or additional routine sample in a compliance period is a monitoring violation and requires the owner Any one of the following is a monitoring violation: (i) failure to collect every required routine or additional routine sample in a compliance period, and (ii) failure to analyze for E. coli following a total coliform-positive sample. For each violation, the owner is required ] to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

13. 15. [ Failure to submit monitoring results after the owner properly conducts monitoring is a reporting violation and requires the owner Any one of the following is a reporting violation: (i) failure to submit monitoring results after the owner properly conducts monitoring, (ii) failure to submit a completed assessment form, and (iii) failure to notify the department following an E. coli-positive sample. The reporting requirements in 12VAC5-590-530 are applicable to this subdivision. For each violation, the owner is required ] to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

B. Chemical monitoring. The location of sampling points, the chemicals measured, the frequency, and the timing of sampling within each compliance period shall be established or approved by the commissioner department at the time of issuance of a waterworks operation permit because of changes in this chapter or conditions at the waterworks.

1. The commissioner department may increase required monitoring where necessary to detect variations within the waterworks and to provide quality control for any treatment processes that are employed.

2. Analysis of field composite samples shall not be allowed.

3. Samples for contaminants that may exhibit seasonal variations shall be collected during the period of the year when contamination is most likely to occur.

4. Failure to comply with the sampling schedules in this section [ , which includes the collection of confirmation samples cited in 12VAC5-590-382 A for inorganic chemicals, 12VAC5-590-382 B for nitrate and nitrite, and 12VAC5-590-383 A for organic chemicals, is a monitoring violation and ] shall require public notification pursuant to 12VAC5-590-540 A 3.

C. The department may allow a consecutive waterworks that obtains potable water from another waterworks to limit monitoring to bacteriological, residual disinfectant, DBPs, and lead and copper.

D. Monitoring requirements for a waterworks developing new sources of source water are provided in 12VAC5-590-820, 12VAC5-590-830, and 12VAC5-590-840.

E. The department may require an owner to collect additional samples to provide quality control for any treatment processes that are employed.

F. Surface water sampling requirements specified in 12VAC5-590-372 through 12VAC5-590-378 apply to GUDI sources.

EDITOR'S NOTE: Text stricken in 12VAC5-590-370 B through D in the proposed regulation has not been further amended, therefore it is not published. See proposed stricken text at 36:6 VA.R. 475-845 November 11, 2019.

12VAC5-590-372. Inorganic chemicals monitoring.

A. The owner of a community waterworks or a NTNC shall conduct monitoring to determine compliance with the PMCLs and SMCLs listed in Table 340.1 in accordance with this section. The owner of a TNC shall conduct monitoring to determine compliance with the nitrate, nitrite, and nitrate-nitrite PMCLs listed in Table 340.1 in accordance with this section.

B. If a waterworks draws water from more than one source and the sources are combined before distribution, then the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources being used).

C. When the results of sampling for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium exceed the applicable PMCL, the owner shall collect a confirmation sample, at the same sampling site, within two weeks of notification of the analytical results of the first sample.

D. Monitoring frequency.

1. Asbestos. The [ commissioner department ] has granted a statewide waiver for asbestos. If the statewide waiver is removed or if site-specific waterworks conditions warrant monitoring for asbestos, then monitoring to determine compliance with the PMCL for asbestos specified in Table 340.1 shall be conducted as follows:

a. The owner of a community waterworks or a NTNC shall monitor for asbestos during the first three-year compliance period of each nine-year compliance cycle.

b. If the statewide waiver is removed, and the owner believes the waterworks is not vulnerable to asbestos contamination from either its source water or due to corrosion of its asbestos-cement pipe, then the owner may apply to the [ commissioner department ] for a monitoring waiver for asbestos. If the [ commissioner department ] grants the monitoring waiver, then the owner is not required to monitor.

c. The [ commissioner department ] may grant a waiver based on a consideration of the following factors:

(1) Potential asbestos contamination of the source water; and

(2) The use of asbestos-cement pipe for finished water distribution and the corrosive nature of the water.

d. A waiver remains in effect until the completion of the compliance period (i.e., three years).

e. The owner of a waterworks vulnerable to asbestos contamination due solely to corrosion of its asbestos-cement pipe shall collect one sample at a tap served by the asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

f. The owner of a waterworks vulnerable to asbestos contamination due to its source water shall monitor at the entry points.

g. The owner of a waterworks vulnerable to asbestos contamination due both to its source water and corrosion of its asbestos-cement pipe shall collect one sample at a tap served by the asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

h. The owner of a waterworks that exceeds the PMCL as determined in 12VAC5-590-382 A shall monitor quarterly beginning in the next quarter after the exceedance occurred.

i. The department may decrease the quarterly monitoring requirement to the frequency specified in subdivision D 1 a of this section provided the department has determined that the waterworks is reliably and consistently below the PMCL. In no case shall the department make this determination unless the owner of a groundwater system collects a minimum of two quarterly samples or the owner of a waterworks that uses a surface water source, in whole or in part, collects a minimum of four quarterly samples.

2. Antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide (as free cyanide), fluoride, mercury, nickel, selenium, and thallium. Monitoring to determine compliance with the PMCL for these contaminants specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each groundwater source entry point during each compliance period.

b. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

c. The owner may apply to the department for a waiver from the monitoring frequencies specified in subdivisions D 2 a and D 2 b of this section.

(1) A condition of the waiver shall require that the owner collect a minimum of one sample while the waiver is effective. The waiver remains in effect for one compliance cycle (i.e., nine years).

(2) The department may grant a waiver provided the owner has monitored surface water source entry points, in whole or in part, annually for at least three years and has conducted a minimum of three rounds of monitoring at groundwater source entry points. At least one sample shall have been collected since January 1, 1990. The owner shall demonstrate that all previous analytical results were less than the PMCL. A waterworks that uses a new groundwater or surface water source is not eligible for a waiver until three rounds of monitoring from the new source have been completed.

(3) In determining the appropriate reduced monitoring frequency, the department shall consider:

(a) The reported concentrations from all previous monitoring;

(b) The degree of variation in reported concentrations; and

(c) Other factors that may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the waterworks configuration, changes in the waterworks operating procedures, or changes in stream flows or characteristics.

(4) A decision by the department to grant a waiver shall be made in writing and shall set forth the basis for the determination. The request for a waiver may be initiated by the department or upon an application by the owner. The owner shall specify the basis for the request. The department shall evaluate and, where appropriate, revise the determination of the appropriate monitoring frequency when the owner submits new monitoring data or when other data relevant to the appropriate monitoring frequency become available.

(5) No arsenic waivers shall be granted by the department.

d. The owner of a waterworks that exceed the PMCLs as calculated in 12VAC5-590-382 shall monitor quarterly beginning in the next quarter after the exceedance occurred. The department may decrease the quarterly monitoring requirement to the frequencies specified in subdivision D 2 a, D 2 b, or D 2 c of this section provided a determination has been made that the analytical results are reliably and consistently below the PMCL. In no case may the department make this determination unless the owner collects a minimum of two quarterly samples from each groundwater source entry point and a minimum of four quarterly samples from each surface water source entry point, in whole or in part.

3. Nitrate and combined nitrate-nitrite as nitrogen. Monitoring to determine compliance with the PMCL for nitrate and combined nitrate-nitrite as nitrogen specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample annually at each groundwater source entry point.

b. The owner shall collect one sample quarterly at each surface water source entry point, in whole or in part.

c. For groundwater source entry points at community and NTNCs, the repeat monitoring frequency shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. After four consecutive quarters of monitoring, the department may allow the owner to reduce the sampling frequency to annually after determining the results are reliably and consistently less than the PMCL.

d. For surface water source entry points, in whole or in part, the department may allow the owner to reduce the sampling frequency to annually if all analytical results from four consecutive quarters are less than 50% of the PMCL. The waterworks shall return to quarterly monitoring if the concentration found in any one sample is greater than or equal to 50% of the PMCL.

e. After any round of quarterly sampling is completed as required by subdivisions D 3 c and D 3 d of this section, the owner who is monitoring annually shall collect subsequent samples during the quarter that previously resulted in the highest analytical result.

f. No monitoring waivers shall be issued for nitrate or combined nitrate-nitrite as nitrogen.

4. Nitrite. Monitoring to determine compliance with the PMCL for nitrite specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each entry point during the initial compliance period.

b. After the initial sample, the owner of a waterworks where an analytical result for nitrite is less than 50% of the PMCL shall monitor at the frequency specified by the department.

c. The repeat monitoring frequency for an owner shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. The department may allow an owner to reduce the sampling frequency to annually after determining the analysis results are reliably and consistently less than the PMCL.

d. The owner of a waterworks that is monitoring annually shall collect each subsequent sample during the quarter that previously resulted in the highest analytical result.

e. No monitoring waivers shall be issued for nitrite.

5. Aluminum, chloride, copper, corrosivity, fluoride, foaming agents (surfactants), iron, manganese, silver, sulfate, and zinc. Monitoring to determine compliance with the SMCL for these contaminants specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each groundwater source entry point during each compliance period.

b. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

[ 6. Sodium. All community waterworks shall monitor for sodium as follows:

a. The number of samples to be collected shall be determined by the department based on the waterworks infrastructure and occurrence concentrations where applicable.

(1) The owner shall collect at least one sample annually at each surface water source entry point, in whole or in part.

(2) The owner shall collect one sample at each groundwater source entry point at least every three years.

(3) The department may require the owner to collect and analyze water samples for sodium more frequently where sodium content is variable.

b. Sodium shall be analyzed in accordance with methods and laboratory requirements identified in 12VAC5-590-440.

c. Sample results shall be submitted to the department in accordance with 12VAC5-590-530.

d. The department shall notify local and state health officials of the sodium levels.

e. The results of the special monitoring for sodium shall be included in the Consumer Confidence Report in accordance with 12VAC5-590-545 C 5 f. ]

12VAC5-590-373. Organic chemicals monitoring.

A. The owner of a community waterworks or a NTNC shall conduct monitoring to determine compliance with PMCLs listed in Table 340.2 in accordance with this section. Where two or more sources are combined before distribution, the owner shall sample at the entry point for the combined sources during periods of normal operation conditions.

1. The owner of a waterworks that uses groundwater shall collect a minimum of one sample at each entry point.

2. The owner of a waterworks that uses surface water, in whole or in part, shall collect a minimum of one sample at each entry point.

B. During the initial compliance period and each subsequent compliance period, the owner shall monitor during four consecutive calendar quarters for each contaminant listed in Table 340.2. A minimum of one sample at each entry point shall be collected during each calendar quarter.

C. Reduced monitoring.

1. Volatile organic chemicals (VOCs).

a. The requirement for four quarterly samples during [ the ] initial monitoring [ period ] as specified in subsection B of this section may not be reduced.

b. The department may decrease the requirement for quarterly monitoring during subsequent compliance periods provided it has been determined that the analytical results are reliably and consistently below the PMCL. [ In no case shall the department make this determination unless: ]

(1) [ In no case shall the department make this determination unless the The ] owner collects a minimum of two quarterly samples at each groundwater source entry point; or

(2) The owner collects a minimum of four quarterly samples at each surface water source entry point, in whole or in part.

c. If the department determines that the waterworks is reliably and consistently below the PMCL, then the department may allow the owner to monitor annually. The owner who monitors annually shall monitor during the quarter that previously yielded the highest analytical result.

d. For a groundwater system only. After a minimum of three years of annual sampling, the department may allow the owner with no previous detection of any VOCs listed in Table 340.2 to collect one sample during each compliance period.

e. The owner of a groundwater system that has three consecutive annual samples with no detection of a contaminant may apply to the department for a waiver [ , in accordance with 12VAC5-590-373 F ].

2. Synthetic organic chemicals (SOCs).

a. The owner of a waterworks serving more than 3,300 persons that does not detect any SOCs listed in Table 340.2 in the initial compliance period may reduce the sampling frequency to a minimum of two quarterly samples in one year during each repeat compliance period.

b. The owner of a waterworks serving fewer than [ than ] or equal to 3,300 persons that does not detect any SOCs listed in Table 340.2 in the initial compliance period may reduce the sampling frequency to a minimum of one sample during each repeat compliance period.

[ c. The department may decrease the requirement for quarterly monitoring during subsequent monitoring periods as specified in subsection B of this section provided the analytical results of the four quarterly samples required during the initial monitoring are reliably and consistently below the PMCL.

d. c. ] The department may reduce the [ increased quarterly ] monitoring required by subdivision [ B or ] D [ 1 ] of this section provided the department has determined that the analytical results are reliably and consistently below the PMCL. In no case shall the department make this latter determination unless:

(1) The owner collects a minimum of two quarterly samples at each groundwater source entry point.

(2) The owner collects a minimum of four quarterly samples at each surface water source entry point, in whole or in part.

[ e. d. ] If the department determines that the analytical results are reliably and consistently below the PMCL, the department may allow the owner to monitor annually. The owner of a waterworks that monitors annually shall monitor during the quarter that previously yielded the highest analytical result.

[ f. e. ] The owner of a waterworks that has three consecutive annual samples with no detection of a contaminant may apply to the department for a waiver for SOC monitoring by submitting a waiver application as specified in subdivisions [ E F ] 1 b and [ E F ] 2 b of this section. The waiver remains in effect for one compliance period (i.e., three years).

[ 3. Return to compliance. The owner of a waterworks that exceeds the PMCLs listed in Table 340.2 for VOCs or SOCs, as determined by 12VAC5-590-383, shall monitor quarterly. After a minimum of four consecutive quarterly samples that show the waterworks is in compliance as specified in 12VAC5-590-383 and the department determines that the analytical results are reliably and consistently below the PMCL, the owner may monitor at the frequency and time specified in subdivisions C 1 c and C 2 e of this section. ]

D. Increased monitoring.

1. If the owner of a waterworks that is on reduced monitoring detects a contaminant listed in Table 340.2 (see 12VAC5-590-383 A regarding confirmation samples), then the owner shall monitor quarterly at each sampling point where the contaminant was detected unless:

a. That contaminant was previously detected and the department determined it was reliably and consistently below the PMCL according to subdivisions C 1 b and C 2 [ d c ] of this section;

b. The historical sampling data do not indicate a meaningful increase in the contaminant concentration; and

c. The contaminant concentration does not exceed the PMCL.

2. [ The owner of a waterworks that exceeds the PMCLs listed in Table 340.2 for VOCs or SOCs, as determined by 12VAC5-590-383, shall monitor quarterly.

a. If, after a minimum of four consecutive quarterly samples that show the waterworks is in compliance as specified in 12VAC5-590-383; and

b. The department determines that the analytical results are reliably and consistently below the PMCL; then

c. The owner may monitor at the frequency and time specified in subdivisions C 1 c and C 2 d of this section.

E. Other monitoring requirements.

1. ] Vinyl chloride.

a. The owner of a groundwater system that has detected one or more of the following two-carbon organic compounds: trichloroethylene, tetrachloroethylene, 1,2-dichloroethane, 1,1,1-trichloroethane, cis-1,2-dichloroethylene, trans-1,2-dichloroethylene, or 1,1-dichloroethylene, shall monitor quarterly for vinyl chloride. A vinyl chloride sample shall be collected at each sampling point at which one or more of the two-carbon organic compounds were detected. If the results of the first analysis do not detect vinyl chloride, then the department may reduce the quarterly monitoring frequency of vinyl chloride monitoring to one sample during each compliance period.

b. The owner of a waterworks that [ uses surface water in whole or in part ] is required to monitor for vinyl chloride as specified by the department [ will monitor at each surface water source entry point, in whole or in part ].

[ 3. 2. ] If monitoring detects one or more of certain related contaminants (heptachlor and heptachlor epoxide), then subsequent monitoring shall analyze for all related contaminants.

[ 4. 3. ] For entry points sampled and analyzed for contaminants listed in Table 340.2, the following detection limits apply:

a. A VOC is detected at a level equal to or greater than 0.0005 mg/L; and

b. A SOC is detected at a level equal to or greater than defined by EPA under 40 CFR 141.24(h)(18) or by the department.

[ E. F. ] Monitoring waivers.

1. Groundwater source entry points.

a. The owner of a waterworks that does not detect a VOC contaminant listed in Table 340.2 may apply to the department for a waiver from the subsequent compliance period requirements of subsection B and [ subdivisions subdivision ] C 1 c [ and C 1 d ] of this section after completing the initial monitoring. A waiver shall be effective for no more two compliance periods (i.e., six years).

b. The owner of a waterworks may apply to the department for a SOC monitoring waiver from the requirements of subsection B and subdivision C 2 of this section. The owner must reapply for a waiver for each subsequent compliance period (i.e., three years).

2. Surface water source entry points, in whole or in part.

a. No VOC monitoring waivers shall be issued.

b. The owner of a waterworks that does not detect a SOC contaminant listed in Table 340.2 may apply to the [ commissioner department ] for a SOC monitoring waiver from the requirements of subsection B and subdivision C 2 of this section. The owner must reapply for a waiver for each subsequent compliance period (i.e., three years).

3. Monitoring waiver applications. The owner shall submit a monitoring waiver application for evaluation on a form approved by the department. The [ commissioner department ] may grant a waiver after an evaluation of the use, transport, storage, or disposal of any organic contaminant within the watershed or zone of influence of the source.

a. If an evaluation by the department reveals no previous use of the contaminants within the watershed or zone of influence, then a waiver may be granted.

b. If an evaluation by the department reveals either previous use of the contaminants or that use is unknown, then the following factors shall be used to determine whether a waiver is granted:

(1) Previous analytical results.

(2) The proximity of the source water to land use activities that are potential point or nonpoint sources of organic contamination and to potential conduits to groundwater. Point sources include spills and leaks of chemicals at or near a waterworks or at manufacturing, distribution, or storage facilities or from hazardous or municipal waste landfills and other waste handling or treatment facilities. Nonpoint sources for SOCs include the use of pesticides to control insects and weed pests on agricultural areas, forest lands, home and gardens, and other land application uses.

(3) The environmental persistence and transport of the contaminants listed in Table 340.2.

(4) The implementation of [ a watershed protection program for surface water systems and ] wellhead protection measures [ for groundwater systems ] by the owner.

(5) For groundwater well sources: well construction, well depth, soil type, geological conditions, and well structure integrity.

(6) Special factors, as follows:

(a) For VOCs, the number of persons served by the waterworks and the proximity of a smaller waterworks to a larger waterworks.

(b) For SOCs, elevated nitrate levels at the waterworks' source water.

(c) For SOCs, use of PCBs in equipment used in the production, storage, or distribution of water (i.e., PCBs used in pumps, transformers, and other equipment).

c. An entry point at which treatment has been installed to remove VOCs or SOCs is not eligible for a monitoring waiver for the VOCs or SOCs for which treatment has been installed.

d. All waterworks are granted a waiver from monitoring dioxin, endothall, and glyphosate unless the department determines that there is a source of these contaminants that poses a threat to the source water.

4. Condition for waivers.

a. Groundwater source entry points.

(1) As a condition of the VOC waiver, the owner shall collect one sample at each entry point during the time the waiver is effective (i.e., one sample during two compliance periods or six years) [ and update the waterworks vulnerability assessment ]. Based on this data, the department may reconfirm that the source is [ nonsusceptible nonvulnerable ]. If the department does not make this reconfirmation within three years of the initial determination, then the waiver is invalidated and the owner is required to sample annually.

(2) There are no conditions to SOC waivers.

b. Surface water source entry points, in whole or in part. There are no conditions to VOC and SOC waivers for waterworks in regard to these entry points.

12VAC5-590-374. Residual disinfectant, disinfection byproducts, and disinfection byproduct precursors monitoring.

A. Unless otherwise noted, an owner of a waterworks that uses a chemical disinfectant shall comply with the requirements of this section as follows:

1. The owner of a community waterworks or a NTNC shall comply with this section.

2. The owner of a TNC that uses any combination of a surface water source, a GUDI source, or a groundwater source and uses chlorine dioxide as a disinfectant or oxidant shall comply with all the requirements for chlorine dioxide in this section.

B. The owner shall collect all samples during normal operating conditions.

1. Analysis under this section for DBPs (TTHM, HAA5, chlorite, and bromate) shall be conducted by [ a laboratory laboratories ] that [ has have ] received certification by the [ EPA or ] DCLS [ as specified in 12VAC5-590-440, ] except as noted in subdivisions B 2 and B 3 of this section.

2. Measurement under this section of daily chlorite samples at the entry point to the distribution system, residual disinfectant (free chlorine, combined chlorine, total chlorine, and chlorine dioxide), alkalinity, [ bromide, ] TOC, SUVA (DOC and UV254), pH, and magnesium shall be made by a party approved by the department.

3. Residual disinfectant concentrations for free chlorine, combined chlorine, total chlorine, and chlorine dioxide shall be made using equipment deemed satisfactory by the department.

C. Monitoring plan. The owner required to monitor under this section shall develop and implement a monitoring plan. The owner shall maintain the plan and make it available for inspection by the department and the general public. The owner of a community waterworks or a NTNC that uses a surface water source, a GUDI source, or both and serves more than 3,300 people shall submit a copy of the monitoring plan to the department no later than the date of the first report required under 12VAC5-590-531 A. The department may also require the plan to be submitted by any other owner. After evaluation, the department may require changes in any of the plan elements. The plan shall include at least the following:

1. Specific locations and schedules with monitoring dates for collecting samples for any parameters included in this section.

2. How the owner will calculate compliance with PMCLs, MRDLs, and treatment techniques.

3. The sampling plan for a consecutive waterworks shall reflect the entire consecutive distribution system.

[ 4. All new waterworks shall comply with the monitoring location requirements of 40 CFR 141 Subpart U, Initial distribution system evaluations, in the development of the waterworks monitoring plan. ]

D. Failure to monitor in accordance with the monitoring plan required under subsection C of this section is a monitoring violation. Failure to monitor shall be treated as a violation for the entire period covered by the annual average where compliance is based on an RAA of monthly or quarterly samples or averages, and the owner's failure to monitor makes it impossible to determine compliance with PMCLs or MRDLs.

E. The owner may use only data collected under the provisions of this section to qualify for reduced monitoring.

F. TTHM and HAA5 monitoring. The owner of a community waterworks or a NTNC shall conduct the LRAA monitoring for TTHM and HAA5 at the frequency given below, unless otherwise indicated.

1. This subdivision establishes monitoring and other requirements for achieving compliance with PMCLs based on the LRAA for TTHM and HAA5, and for achieving compliance with MRDLs for chlorine and chloramines for certain consecutive waterworks.

2. This subdivision applies to a community waterworks or a NTNC that uses a primary or secondary disinfectant other than UV light or delivers water that has been treated with a primary or secondary disinfectant other than UV light.

3. Routine monitoring.

a. If the waterworks is a NTNC serving fewer than 10,000 people, then the owner shall monitor at the location or locations and dates identified in the monitoring plan in subsection C of this section, updated as required by subdivision F 3 e of this section.

b. The owner shall monitor at no fewer than the number of locations identified in Table 374.1:

Editor's Note: Tables 374.1 and 374.2 are not further amended from the proposed regulation, therefore they are not published. View the tables as proposed at 36:6 VA.R. 475-845 November 11, 2019.

c. The owner of a waterworks not using disinfection that then begins using a disinfectant other than UV light shall consult with the department to identify compliance monitoring locations. The owner shall develop a monitoring plan under subdivision F 3 e of this section to include those monitoring locations.

d. The owner shall use an approved method listed in 12VAC5-590-440 for TTHM and HAA5 analyses. Analyses shall be conducted by laboratories that have received certification by [ the ] EPA or DCLS as specified in 12VAC5-590-440.

e. The owner may revise the monitoring plan to reflect changes in treatment, distribution system operations and layout (including new service areas), or other factors that may affect TTHM or HAA5 formation, or for reasons approved by the department after consultation with the department regarding the need for changes and the appropriateness of the changes. If the owner changes monitoring locations, then the owner shall replace existing compliance monitoring locations with the lowest LRAA with new locations that reflect the current distribution system locations with expected high TTHM or HAA5 levels. The department may also require modifications in the monitoring plan. The owner of a waterworks using a surface water source, a GUDI source, or both and serving more than 3,300 people shall submit a copy of the modified monitoring plan to the department before the date the owner is required to comply with the revised monitoring plan.

4. Reduced monitoring.

a. The owner may reduce monitoring to the level specified in Table 374.2 any time the LRAA is less than or equal to 0.040 mg/L for TTHM and less than or equal to 0.030 mg/L for HAA5 at all monitoring locations. The owner may only use data collected under the provisions of this section to qualify for reduced monitoring. In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each water treatment plant treating a surface water source, a GUDI source, or both based on monitoring conducted under subsection J of this section.

b. The owner may remain on reduced monitoring as long as the TTHM LRAA is less than or equal to 0.040 mg/L and the HAA5 LRAA is less than or equal to 0.030 mg/L at each monitoring location (for waterworks with quarterly reduced monitoring) [ or each TTHM sample is less than or equal to 0.060 mg/L and each HAA5 sample is less than or equal to 0.045 mg/L (for waterworks with annual or less frequent monitoring) ]. In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each water treatment plant treating a surface water source or a GUDI source, based on monitoring conducted under subsection J of this section.

c. If the LRAA based on quarterly monitoring at any monitoring location exceeds either 0.040 mg/L for TTHM or 0.030 mg/L for HAA5 or if the annual (or less frequent) sample at any location exceeds either 0.060 mg/L for TTHM or 0.045 mg/L for HAA5, or if the source water annual average TOC level, before any treatment, is greater than 4.0 mg/L at any water treatment plant treating a surface water source, a GUDI source, or both then the owner shall resume routine monitoring under subdivision F 3 of this section or begin increased monitoring if subdivision F 5 of this section applies.

d. A waterworks may return to routine monitoring at the department's discretion.

5. Increased monitoring.

a. The owner of a waterworks required to monitor at a particular location annually or less frequently than annually under subdivision F 3 or F 4 of this section, shall increase monitoring to dual sample sets once per quarter (collected every 90 days) at all locations if a TTHM sample is greater than 0.080 mg/L or a HAA5 sample is greater than 0.060 mg/L at any location.

b. The owner may return to routine monitoring once the waterworks has conducted increased monitoring for at least four consecutive quarters and the LRAA for every monitoring location is less than or equal to 0.060 mg/L for TTHM and less than or equal to 0.045 mg/L for HAA5.

G. Chlorite. The owner of a community waterworks or a NTNC using chlorine dioxide, for disinfection or oxidation, shall conduct monitoring for chlorite.

1. Routine monitoring.

a. The owner shall collect daily samples at the entry point to the distribution system. For any daily sample that exceeds the chlorite PMCL listed in Table 340.6, the owner shall collect additional samples in the distribution system the following day at the locations required by subdivision G 1 c of this section, in addition to the sample required at the entrance to the distribution system.

b. The owner shall collect a three-sample set each month in the distribution system. The owner shall collect one sample at each of the following locations: near the first customer, at a location representative of average residence time, and at a location reflecting maximum residence time in the distribution system. Any additional routine sampling shall be conducted in the same manner (as three-sample sets, at the specified locations). The owner may use the results of additional monitoring conducted under subdivision G 1 c of this section to meet the requirement for monitoring in this subdivision G 1 b.

c. On each day following a routine sample monitoring result that exceeds the chlorite PMCL listed in Table 340.6 at the entrance to the distribution system, the owner is required to collect three chlorite distribution system samples at the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

2. Reduced monitoring.

a. Chlorite monitoring at the entrance to the distribution system required by subdivision G 1 a of this subsection may not be reduced.

b. Chlorite monitoring in the distribution system required by subdivision G 1 b of this section may be reduced to one three-sample set per quarter after one year of monitoring where no individual chlorite sample collected in the distribution system under subdivision G 1 b of this section has exceeded the chlorite PMCL listed in Table 340.6 and the owner has not been required to conduct monitoring under subdivision G 1 c of this section. The owner may remain on the reduced monitoring schedule until either any of the three individual chlorite samples collected quarterly in the distribution system under subdivision G 1 b of this section exceeds the chlorite PMCL or the owner is required to conduct monitoring under subdivision G 1 c of this section, at which time the owner shall revert to routine monitoring.

H. Bromate.

1. The owner of a community waterworks or a NTNC water treatment plant using ozone for disinfection or oxidation shall collect one sample per month and analyze it for bromate. The owner shall collect samples monthly at the entrance to the distribution system while the ozonation system is operating under normal conditions.

2. The owner required to analyze for bromate may reduce monitoring from monthly to quarterly if the waterworks RAA bromate concentration is less than or equal to 0.0025 mg/L based on monthly bromate measurements under subdivision H 1 of this section for the most recent four quarters. If a waterworks has qualified for reduced bromate monitoring under this subdivision, then the owner may remain on reduced monitoring as long as the RAA of quarterly bromate samples is equal to or less than 0.0025 mg/L. If the RAA bromate concentration is greater than 0.0025 mg/L, then the owner shall resume routine monitoring required by subdivision H 1 of this section.

I. Monitoring requirements for the residual disinfectant.

1. Chlorine and chloramines.

a. The owner of a waterworks that uses chlorine or chloramines shall measure the residual disinfectant level in the distribution system at the same point in the distribution system and at the same time as total coliform bacteria are sampled, as specified in 12VAC5-590-370 A and 12VAC5-590-380 D. The owner of a waterworks using a surface water source, a GUDI source, or both may use the results of the residual disinfectant concentration sampling found in 12VAC5-590-376 D instead of collecting separate samples.

b. Residual disinfectant level monitoring may not be reduced.

2. Chlorine dioxide.

a. The owner of a waterworks that uses chlorine dioxide for disinfection or oxidation shall collect daily samples at the entrance to the distribution system. For any daily sample that exceeds the MRDL listed in Table 340.7, the owner shall collect samples in the distribution system the following day at the locations required by subdivision I 2 b of this section, in addition to the sample required at the entrance to the distribution system.

b. On each day following a routine sample monitoring result that exceeds the MRDL listed in Table 340.7, the owner is required to collect three chlorine dioxide distribution system samples. If chlorine dioxide or chloramines are used to maintain a residual disinfectant in the distribution system, or if chlorine is used to maintain a residual disinfectant in the distribution system and there is no rechlorination after the entry point, then the owner shall collect three samples as close to the first customer as possible, at intervals of at least six hours. If chlorine is used to maintain a residual disinfectant in the distribution system and there are one or more rechlorination points after the entry point, then the owner shall collect one sample at each of the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

c. Chlorine dioxide monitoring may not be reduced.

3. Ozone. Ozone residual levels shall be monitored continuously and recorded. A portable ozone meter is recommended as a backup.

4. Additional monitoring and reporting requirements are specified in 12VAC5-590-500 to demonstrate log inactivation or removal of Giardia lamblia, virus, and Cryptosporidium.

J. Monitoring requirements for DBPPs.

1. The owner of a community waterworks or a NTNC using a surface water source, a GUDI source, or both and using conventional filtration treatment, as defined in 12VAC5-590-10, shall monitor each water treatment plant for TOC no later than the point of CFE turbidity monitoring and representative of the treated water. The owner shall also monitor for TOC in the source water before any treatment at the same time as monitoring for TOC in the treated water. These samples (source water and treated water) are referred to as paired samples. At the same time as the source water sample is collected, the owner shall monitor for alkalinity in the source water before any treatment. The owner shall collect one paired sample and one source water alkalinity sample per month per water treatment plant at a time representative of normal operating conditions and influent water quality.

2. The owner of a community waterworks or a NTNC that uses a surface water source, a GUDI source, or both with an average treated water TOC of less than 2.0 mg/L for two consecutive years, or less than 1.0 mg/L for one year, may reduce monitoring for both TOC and alkalinity to one paired sample and one source water alkalinity sample per water treatment plant per quarter. The owner shall revert to routine monitoring in the month following the quarter when the annual average treated water TOC is equal to or greater than 2.0 mg/L.

12VAC5-590-375. Lead and copper monitoring.

A. The owners owner of all a community and nontransient noncommunity waterworks waterworks or a NTNC shall monitor for lead and copper in tap water (subsection B of this section), water quality (corrosion) parameters in the distribution system and at entry points (subsection C of this section), and lead and copper in water supplies (subsection D of this section).

B. Monitoring requirements for lead and copper in tap water.

1. Sample site location.

a. By the commissioner determined date determined by the department for commencement of monitoring under subdivision B 4 a of this section, each the owner shall complete a materials evaluation of the distribution system in order to identify a pool of targeted sampling sites that meets the requirements of this subdivision, and that is sufficiently large to ensure that the owner can collect the number of lead and copper tap samples required in subdivision B 3 of this section. All sites from which first draw first-draw samples are collected shall be selected from this pool of targeted sampling sites. Sampling sites may not include faucets that have point-of-use POU devices or point-of-entry treatment POE devices designed to remove inorganic contaminants.

b. When the distribution system evaluation required in subdivision B 1 a of this section is insufficient to locate the requisite number of lead and copper sampling sites that meet the targeting criteria of this section, the owner shall review the sources of information listed below in order in subdivisions B 1 b (1), B 1 b (2), and B 1 b (3) of this section to identify a sufficient number of sampling sites. In addition, the owner shall seek to collect such information where possible in the course of its normal operations (e.g., checking service line materials when reading water meters or performing maintenance activities):

(1) All plumbing codes, permits, and records in the files of the building department or departments that indicate the plumbing materials that are installed within publicly and privately owned structures connected to the distribution system;

(2) All inspections and records of the distribution system that indicate the material composition of the service connections that connect a structure to the distribution system; and

(3) All existing water quality information, which includes the results of all prior analyses of the waterworks or individual structures connected to the waterworks, indicating locations that may be particularly susceptible to high lead or copper concentrations.

c. The sampling sites selected for a community waterworks' sampling pool (tier 1 (Tier 1 sampling sites) shall consist of single family single-family structures that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

NOTE: When multiple-family residences comprise at least 20% of the structures served by a waterworks, the owner may include these types of structures in the sampling pool.

d. The owner of any a community waterworks with insufficient tier Tier 1 sampling sites shall complete the sampling pool with tier Tier 2 sampling sites consisting of buildings, including multiple-family residences that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

e. The owner of any a community waterworks with insufficient tier Tier 1 and tier Tier 2 sampling sites shall complete the sampling pool with tier Tier 3 sampling sites, consisting of single family structures that contain copper pipes with lead solder installed before 1983. The owner of a community waterworks with insufficient tier Tier 1, tier Tier 2, and tier Tier 3 sampling sites shall complete the sampling pool with representative sites throughout the distribution system. For the purpose of this subdivision, a representative site is a site in which the plumbing materials used at that site would be commonly found at other sites served by the waterworks.

f. The sampling sites selected for a nontransient noncommunity waterworks (tier 1 NTNC (Tier 1 sampling sites) shall consist of buildings that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

g. The owner of a nontransient noncommunity waterworks NTNC with insufficient tier Tier 1 sites that meet the targeting criteria in subdivision B 1 f of this section shall complete the sampling pool with sampling sites that contain copper pipes with lead solder installed before 1983. If additional sites are needed to complete the sampling pool, the owner of a nontransient noncommunity waterworks NTNC shall use representative sites throughout the distribution system. For the purpose of this subdivision, a representative site is a site in which the plumbing materials used at that site would be commonly found at other sites served by the waterworks.

h. The owner of any a waterworks whose distribution system contains lead service lines shall draw 50% of the samples the owner collects during each monitoring period from sites that contain lead pipes, or copper pipes with lead solder, and 50% of the samples the owner collects from sites served by a lead service line. Any The owner who cannot identify a sufficient number of sampling sites served by a lead service line shall collect first draw first-draw tap samples from all of the sites identified as being served by such these lines.

2. Sample collection methods.

a. All tap samples for lead and copper, with the exception of lead service line samples collected under 12VAC5-590-405 C 4 and samples collected under subdivision B 2 e of this section, shall be first draw first-draw samples.

b. Each first-draw tap sample for lead and copper shall be one liter in volume, and have stood motionless in the plumbing system of each sampling site for at least six hours, and have been collected without flushing the tap. First draw First-draw samples from residential housing shall be collected from the cold-water kitchen tap or from a bathroom sink tap. First-draw samples from a nonresidential building shall be one liter in volume and shall be collected at an interior tap from which water is typically drawn for consumption. Non-first-draw samples collected in lieu of instead of first-draw samples pursuant to subdivision B 2 e of this section shall be one liter in volume and shall be collected at an interior tap from which water is typically drawn for consumption. First draw First-draw samples may be collected by the owner or the owner may allow residents to collect first draw first-draw samples after instructing the residents of the sampling procedures specified in this subdivision. To avoid problems of residents handling nitric acid, acidification of first draw first-draw samples may be done up to 14 days after the sample is collected. After acidification to resolubilize the metals, the sample must stand in the original container for the time specified in the approved EPA method before the sample can be analyzed. If an owner allows residents to perform sampling, then the owner may not challenge, based on alleged errors in sample collection, the accuracy of sampling results.

c. Each lead service line sample collected pursuant to 12VAC5-590-405 C 4 for the purpose of avoiding replacement shall be one liter in volume and have stood motionless in the lead service line for at least six hours. Lead service line samples shall be collected in one of the following three ways:

(1) At the tap after flushing the volume of water between the tap and the lead service line. The volume of water shall be calculated based on the interior diameter and length of the pipe between the tap and the lead service line;

(2) Tapping directly into the lead service line; or

(3) If the sampling site is a building constructed as a single-family residence, then allowing the water to run until there is a significant change in temperature that would be indicative of water that has been standing in the lead service line.

d. An The owner shall collect each first draw first-draw tap sample from the same sampling site from which the owner collected a previous sample. If, for any reason, the owner cannot gain entry to a sampling site in order to collect a follow-up tap sample, then the owner may collect the follow-up tap sample from another sampling site in the sampling pool as long as the new site meets the same targeting criteria and is within reasonable proximity of the original site.

e. The owner of a nontransient noncommunity waterworks NTNC, or a community waterworks that meets the criteria of 12VAC5-590-405 D 2 e (2) that does not have enough taps that can supply first-draw samples, as defined in subdivision B 2 b of this section, may apply to the district engineer department in writing to substitute non-first-draw samples. If approved by the commissioner department, such owners then an owner shall collect as many first-draw samples from appropriate taps as possible and identify sampling times and locations that would likely result in the longest standing time for the remaining sites.

3. Number of samples.

a. Owners The owner shall collect at least one sample during each monitoring period specified in subdivision B 4 of this section from the number of sites listed in the first column (standard monitoring) of the table in subdivision B 3 c of this section Table 375.1. The owner of a waterworks conducting reduced monitoring under subdivision B 4 d of this section shall collect at least one sample from the number of sites specified in the second column (reduced monitoring) of the table in subdivision B 3 c of this section Table 375.1 during each monitoring period specified in subdivision B 4 d of this section. Such reduced Reduced monitoring sites shall be representative of the sites required for standard monitoring. The commissioner department may specify sampling locations when an owner is conducting reduced monitoring.

b. The owner of a waterworks that has fewer than five drinking water taps that are normally used for human consumption meeting the sample site criteria of subdivision B 1 of this section to reach the required number of sample sites listed in the table in subdivision B 3 c of this section, Table 375.1 shall collect at least one sample from each tap and then shall collect additional samples from those taps on different days during the monitoring period to meet the required number of sites. Alternatively, the commissioner department may allow these owners the owner to collect a number of samples less than the number of sites specified in the table in subdivision B 3 c of this section Table 375.1, provided that 100% of all taps that are normally used for human consumption are sampled. The commissioner must department shall approve this reduction of the minimum number of samples in writing based on a request from the owner or onsite verification by the district engineer designated department representative.

c. The lead and copper tap sample table is as follows:

TABLE 375.1

Tap Samples for Lead and Copper

System Size WATERWORKS SIZE
(Number of People Served)

Number of Sites NUMBER OF SITES (Standard Monitoring)

Number of Sites NUMBER OF SITES (Reduced Monitoring)

greater Greater than 100,000

100

50

10,001-100,000

60

30

3,301 to 10,000

40

20

501 to 3,300

20

10

101 to 500

10

5

less Less than or equal to 100

5

5

4. Timing of monitoring.

a. Initial tap sampling. The first six-month monitoring period for small (serving less than 3,300 population), medium-size medium (serving 3,301 to 50,000 population), and large waterworks (serving greater than 50,000 population) shall be established by the commissioner department.

(1) Owners The owner of all a large waterworks shall monitor during two consecutive six-month periods.

(2) Owners The owner of all a small and medium-size or a medium waterworks shall monitor during each six-month monitoring period until the waterworks exceeds the lead or copper action level AL and is therefore required to implement the corrosion control treatment requirements under 12VAC5-590-405 A 2, in which case the owner shall continue monitoring in accordance with subdivision B 4 b of this section, or the waterworks meets the lead and copper action levels ALs during two consecutive six-month monitoring periods, in which case the owner may reduce monitoring in accordance with subdivision B 4 d of this section.

b. Monitoring after installation of corrosion control and water supply (source water) source water treatment.

(1) The owner of any a large waterworks that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 d (4) shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 A 2 d (5).

(2) The owner of any a small or medium-size a medium waterworks that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 e (5) shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 A 2 d e (6).

(3) The owner of any a waterworks that installs source water treatment pursuant to 12VAC5-590-405 B 1 c shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 B 1 d.

c. Monitoring after the commissioner department specifies water quality parameter values for optimal corrosion control. After the commissioner department specifies the values for water quality control parameters under 12VAC5-590-405 A 1 f, the owner shall monitor during each subsequent six-month monitoring period, with the first monitoring period to begin on the date the commissioner department specifies the optimal values.

d. Reduced monitoring.

(1) The owner of a small or medium-size a medium waterworks that meets the lead and copper action levels ALs during each of two consecutive six-month monitoring periods may reduce the number of samples in accordance with subdivision B 3 of this section, and reduce the frequency of sampling to once per year. The owner of a small or a medium water system waterworks collecting fewer than five samples, as specified in subdivision B 3 b of this section, that meets the lead and copper action levels ALs during each of two consecutive six-month monitoring periods may reduce the frequency of sampling to once per year. In no case may the owner reduce the number of samples required below the minimum of one sample per available tap. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period.

(2) The owner of any a waterworks that meets the lead action level AL and maintains the range of values for the water quality control parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during each of two consecutive six-month monitoring periods may reduce the frequency of monitoring to once per year and to reduce the number of lead and copper samples in accordance with subdivision B 3 of this section if the owner receives written approval from the commissioner department. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period. The commissioner must review department shall evaluate monitoring, treatment, and other relevant information submitted by the owner in accordance with 12VAC5-590-530 F 12VAC5-590-532 and must shall notify the owner in writing when a determination is made that the owner is eligible to commence reduced monitoring pursuant to this subdivision. The commissioner must review, department shall evaluate and, where appropriate, revise his the determination when the owner submits new monitoring or treatment data, or when other data relevant to the number and frequency of tap sampling becomes available.

(3) The owner of a small or medium-size a medium waterworks that meets the lead and copper action levels ALs during three consecutive years of monitoring may reduce the frequency of monitoring for lead and copper from annually to once every three years. The owner of any a waterworks that meets the lead action level AL and maintains the range of values for the water quality control parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of monitoring may reduce the frequency of monitoring from annually to once every three years if the owner receives written approval from the commissioner department. Samples collected once every three years shall be collected no later than every third calendar year. The commissioner must review, department shall evaluate monitoring, treatment, and other relevant information submitted by the owner in accordance with 12VAC5-590-530 F 12VAC5-590-532 and must shall notify the owner in writing when a determination is made that the owner is eligible to commence reduced monitoring pursuant to this subdivision. The commissioner must review, department shall evaluate and where appropriate, revise his the determination when the owner submits new monitoring or treatment data, or when other data relevant to the number and frequency of tap sampling becomes available.

(4) The owner of a waterworks that reduces the number and frequency of sampling shall collect these samples from representative sites included in the pool of targeted sampling sites identified in subdivision B 1 of this section. Owners The owner sampling annually or less frequently shall conduct the lead and copper tap sampling during the months of June, July, August, or September. For a nontransient noncommunity waterworks NTNC that does not operate during the months of June through September, the commissioner department shall designate an alternate monitoring period that represents a time of normal operation for the waterworks. This sampling shall begin in the calendar year immediately following the end of the second consecutive six-month monitoring period of for the owners owner initiating annual monitoring, and during the three-year period following the end of the third consecutive calendar year of annual monitoring for the owners owner initiating triennial monitoring.

(5) The owner of any a waterworks that demonstrates for two consecutive six-month monitoring periods that the tap water lead level computed under 12VAC5-590-385 C is less than or equal to 0.005 mg/L and the tap water copper level computed under 12VAC5-590-385 C is less than or equal to 0.65 mg/L may reduce the number of samples in accordance with subdivision B 3 of this section and reduce the frequency of sampling to once every three calendar years.

(6) The owner of a small or medium-size a medium waterworks subject to reduced monitoring that exceeds the lead or copper action level AL shall resume sampling in accordance with subdivision B 4 c of this section and collect the number of samples specified for standard monitoring under subdivision B 3 of this section. Such The owner shall also conduct water quality parameter monitoring in accordance with subdivision C 2, 3, or 4 subdivisions C 2, C 3, and C 4 of this section (as appropriate) during the monitoring period in which the action level AL is exceeded. The owner of any such a waterworks may resume annual monitoring for lead and copper at the tap at the reduced number of sites specified in subdivision B 3 of this section after it has completed two subsequent consecutive six-month rounds of monitoring that meet the criteria of subdivision B 4 d (1) of this section or may resume triennial monitoring for lead and copper at the reduced number of sites after it demonstrates through subsequent rounds of monitoring that it meets the criteria of either subdivision B 4 d (3) or B 4 d (5) of this section.

(7) The owner of any a waterworks subject to the reduced monitoring frequency that fails to meet the lead action level ALs during any four-month monitoring period or that fails to operate at or above the minimum value or within the range of values for the water quality parameters specified by the commissioner department under 12VAC5-590-405 A 1 f for more than nine days in any six-month period specified in subdivision C 4 of this section shall conduct tap water sampling for lead and copper at the frequency specified in subdivision B 4 c of this section, collect the number of samples specified for standard monitoring under subdivision B 3 of this section, and resume monitoring for water quality parameters within the distribution system in accordance with subdivision C 4 of this section. This standard tap water sampling shall begin no later than the six-month period beginning January 1 of the calendar year following the lead action level AL exceedance or water quality parameter excursion. The owner of such a waterworks may resume reduced monitoring for lead and copper at the tap and for water quality parameters within the distribution system under the following conditions:

(a) The owner may resume annual monitoring for lead and copper at the tap at the reduced number of sites specified in subdivision B 3 of this section after completion of two subsequent six-month rounds of monitoring that meet the criteria of subdivision B 4 d 2 (2) of this section and the owner has received written approval from the commissioner department that it is appropriate to resume reduced monitoring on an annual frequency. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period.

(b) The owner may resume triennial monitoring for lead and copper at the tap at the reduced number of sites after demonstration through subsequent rounds of monitoring that it meets the criteria of either subdivision B 4 d (3) or B 4 d (5) of this section and the owner has received written approval from the commissioner department that it is appropriate to resume triennial monitoring.

(c) The owner may reduce the number of water quality parameter tap water samples required in accordance with subdivision C 5 a of this section and the frequency with which it collects such these samples in accordance with subdivision C 5 b of this section. The owner of such a waterworks may not resume triennial monitoring for water quality parameters at the tap until it demonstrates, in accordance with the requirements of subdivision C 5 b of this section, that it has requalified for triennial monitoring.

(8) The owner of any a waterworks subject to a reduced monitoring frequency under subdivision B 4 d of this section shall notify the district engineer department in writing in accordance with 12VAC5-590-530 F 1 c and 12VAC5-590-532 of any upcoming long-term change in the treatment or addition of a new water source water as described in this section. The commissioner must review department shall evaluate and approve the addition of a new water source water or long-term change in the water treatment before it is implemented by the owner. The commissioner department may require the owner to resume sampling in accordance with subdivision B 4 c of this section and collect the number of samples specified for standard monitoring under subdivision B 3 of this section or take other appropriate steps such as increased water quality parameter monitoring or re-evaluation of its corrosion control treatment given the potentially different water quality considerations.

5. Additional monitoring by owner. The results of any monitoring conducted in addition to the minimum requirements of this section shall be considered by the owner and the commissioner department in making any determinations (i.e., calculating the 90th percentile lead or copper level) under 12VAC5-590-385 C.

6. Invalidation of lead or copper tap water samples. A sample invalidated under this subdivision does not count toward determining lead or copper 90th percentile levels under 12VAC5-590-385 C or toward meeting the minimum monitoring requirements of subdivision B 3 of this section.

a. The commissioner department may invalidate a lead or copper tap water sample if at least one of the following conditions is met.:

(1) The laboratory establishes that improper sample analysis caused erroneous results.

(2) The commissioner department determines that the sample was taken collected from a site that did not meet the site selection criteria of this section.

(3) The sample container was damaged in transit.

(4) There is substantial reason to believe that the sample was subject to tampering.

b. The owner shall report the results of all samples to the district engineer department and all supporting documentation for samples the owner believes should be invalidated.

c. To invalidate a sample under subdivision B 6 a of this section, the decision and the rationale for the decision shall be documented in writing. The commissioner department may not invalidate a sample solely on the grounds that a follow-up sample result is higher or lower than that of the original sample.

d. The owner shall collect a replacement samples sample for any samples a sample invalidated under this section if, after the invalidation of one or more samples, the owner has too few samples to meet the minimum requirements of subdivision B 3 of this section. Any such A replacement samples sample shall be taken collected as soon as possible, but no later than 20 days after the date the [ commissioner department ] invalidates the sample or by the end of the applicable monitoring period, whichever occurs later. Replacement samples taken collected after the end of the applicable monitoring period shall not also be used to meet the monitoring requirements of a subsequent monitoring period. The replacement samples shall be taken collected at the same locations as the invalidated samples or, if that is not possible, at locations other than those already used for sampling during the monitoring period.

7. Monitoring waivers for small waterworks. The owner of any a small waterworks that meets the criteria of this subdivision may apply to the commissioner department to reduce the frequency of monitoring for lead and copper to once every nine years (i.e., a full waiver) if the owner meets all of the materials criteria specified in subdivision B 7 a of this section and all of the monitoring criteria specified in subdivision B 7 b of this section. The owner of any a small waterworks that meets the criteria in subdivisions B 7 a and B 7 b of this section only for lead, or only for copper, may apply to the commissioner department for a waiver to reduce the frequency of tap water monitoring to once every nine years for that contaminant only (i.e., a partial waiver).

a. Materials criteria. The owner shall demonstrate that the distribution system and service lines and all drinking water supply plumbing and plumbing connected to the waterworks, including plumbing conveying drinking water within all residences and buildings connected to the waterworks, are free of lead-containing materials or copper-containing materials, as those terms are defined in this subdivision, as follows:

(1) Lead. To qualify for a full waiver, or a waiver of the tap water monitoring requirements for lead (i.e., a lead waiver), the owner shall provide certification and supporting documentation to the commissioner department that the waterworks is free of all lead-containing materials, as follows:

(a) It contains no plastic pipes that contain lead plasticizers, or plastic service lines that contain lead plasticizers; and

(b) It is free of lead service lines, lead pipes, lead soldered pipe joints, and leaded brass or bronze alloy fittings and fixtures, unless such fittings and fixtures meet the specifications of any standard established pursuant to 42 USC § 300g-6(e) (SDWA § 1417(e)).

(b) Solders and flux contain no more than 0.2% lead; and

(c) The weighted average of wetted surface of pipes, pipe fittings, plumbing fittings, and plumbing fixtures contain no more than 0.25% lead.

(2) Copper. To qualify for a full waiver, or a waiver of the tap water monitoring requirements for copper (i.e., a copper waiver), the owner shall provide certification and supporting documentation to the commissioner department that the waterworks contains no copper pipes or copper service lines.

b. Monitoring criteria for waiver issuance. The owner shall have completed at least one six-month round of standard tap water monitoring for lead and copper at sites approved by the commissioner department and from the number of sites required by subdivision B 3 of this section and demonstrate that the 90th percentile levels for any and all rounds of monitoring conducted since the owner became free of all lead-containing or copper-containing materials, as appropriate, meet the following criteria:

(1) Lead levels. To qualify for a full waiver, or a lead waiver, the owner shall demonstrate that the 90th percentile lead level does not exceed 0.005 mg/L.

(2) Copper levels. To qualify for a full waiver, or a copper waiver, the owner shall demonstrate that the 90th percentile copper level does not exceed 0.65 mg/L.

c. Commissioner Department approval of waiver application. The commissioner department shall notify the owner of the waiver determination, in writing, setting forth the basis of his the decision and any condition of the waiver. As a condition of the waiver, the commissioner department may require the owner to perform specific activities (e.g., limited monitoring, periodic outreach to customers to remind them to avoid installation of materials that might void the waiver) to avoid the risk of lead or copper concentration of concern in tap water. The owner of a small waterworks shall continue monitoring for lead and copper at the tap as required by subdivisions B 4 a through B 4 d of this section, as appropriate, until it receives written notification from the commissioner department that the waiver has been approved.

d. Monitoring frequency for owners with waivers.

(1) An The owner with a full waiver shall conduct tap water monitoring for lead and copper in accordance with subdivision B 4 d (4) of this section at the reduced number of sampling sites identified in subdivision B 3 of this section at least once every nine years and provide the materials certification specified in subdivision B 7 a of this section for both lead and copper to the commissioner department along with the monitoring results. Samples collected every nine years shall be collected no later than every ninth calendar year.

(2) An The owner with a partial waiver shall conduct tap water monitoring for the waived contaminant in accordance with subdivision B 4 d (4) of this section at the reduced number of sampling sites specified in subdivision B 3 of this section at least once every nine years and provide the materials certification specified in subdivision B 7 a of this section pertaining to the waived contaminant along with the monitoring results. Such an The owner also shall continue to monitor for the nonwaived contaminant in accordance with requirements of subdivisions B 4 a through B 4 d of this section, as appropriate.

(3) Any The owner with a full or partial waiver shall notify the district engineer department in writing in accordance with 12VAC5-590-530 F 1 c 12VAC5-590-532 B 3 of any upcoming long-term change in the treatment or addition of a new source water, as described in that section 12VAC5-590-532. The commissioner must review department shall evaluate and approve the addition of a new source water or a long-term change in water treatment before it is implemented by the owner. The commissioner department has the authority to require the owner to add or modify waiver conditions (e.g., require recertification that the waterworks is free of lead-containing or copper-containing materials; require additional round or rounds of monitoring), if it deems such these modifications are necessary to address treatment or source water changes at the waterworks.

(4) If an owner with a full or partial waiver becomes aware that it is no longer free of lead-containing or copper-containing materials, as appropriate, (e.g., as a result of new construction or repairs), then the owner shall notify the district engineer department in writing no later than 60 days after becoming aware of such a the change.

e. Continued eligibility. If the owner continues to satisfy the requirements of subdivision B 7 d of this section, then the waiver will be renewed automatically, unless any of the conditions listed in subdivisions subdivision B 7 e (1), B 7 e (2), or B 7 e (3) of this section occurs. An The owner whose waiver has been revoked may reapply for a waiver at such time as it when the owner again meets the appropriate materials and monitoring criteria of subdivisions B 7 a and B 7 b of this section.

(1) A waterworks with a full waiver or a lead waiver no longer satisfies the materials criteria of subdivision B 7 a (1) of this section or has a 90th percentile lead level greater than 0.005 mg/L.

(2) A waterworks with a full waiver or a copper waiver no longer satisfies the materials criteria of subdivision B 7 a (2) of this section or has a 90th percentile copper level greater than 0.65 mg/L.

(3) The commissioner department notifies the owner, in writing, that the waiver has been revoked, setting forth the basis of the decision.

f. Requirements following waiver revocation. A waterworks whose full or partial waiver has been revoked by the commissioner department is subject to the corrosion control treatment and lead and copper tap water monitoring requirements, as follows:

(1) If the waterworks exceeds the lead or copper action level AL, then the owner shall implement corrosion control treatment in accordance with the deadlines specified in 12VAC5-590-405 A 2 e and any other applicable requirements of this section.

(2) If the waterworks meets both the lead and the copper action level ALs, then the owner shall monitor for lead and copper at the tap no less frequently than once every three years using the reduced number of sample sites specified in subdivision B 3 of this section.

g. Pre-existing waivers. Waivers for small waterworks approved by the commissioner department in writing prior to before April 11, 2000, shall remain in effect under the following conditions:

(1) If the waterworks has demonstrated that it is both free of lead-containing and copper-containing materials, as required by subdivision B 7 a of this section and that its 90th percentile lead levels and 90th percentile copper levels meet the criteria of subdivision B 7 b of this section, then the waiver remains will remain in effect so long as the owner continues to meet the waiver eligibility criteria of subdivision B 7 e of this section. The first round of tap water monitoring conducted pursuant to subdivision B 7 d of this section shall be completed no later than nine years after the last time the owner has monitored for lead and copper at the tap.

(2) If the waterworks has met the materials criteria of subdivision B 7 a of this section but has not met the monitoring criteria of subdivision B 7 b of this section, then the owner shall conduct one six-month round of standard tap water monitoring for lead and copper at sites approved by the commissioner department demonstrating that it meets the criteria of subdivision B 7 b of this section. Thereafter, the waiver shall remain in effect as long as the owner meets the continued eligibility criteria of subdivision B 7 e of this section. The first round of tap water monitoring conducted pursuant to subdivision B 7 d of this section shall be completed no later than nine years after the round of monitoring conducted pursuant to subdivision B 7 b of this section.

C. Monitoring requirements for water quality parameters. The owners of all large waterworks and all small and medium-size medium waterworks that exceed the lead or copper action level AL shall monitor for water quality parameters in addition to lead and copper in accordance with this section.

1. General requirements.

a. Sample collection methods.

(1) Tap samples shall be representative of water quality throughout the distribution system taking into account the number of persons served, the different sources of water, the different treatment methods employed by the waterworks, and seasonal variability. Tap sampling under this section is not required to be conducted at taps targeted for lead and copper sampling under subdivision B 1 of this section. Owners The owner may find it convenient to conduct tap sampling for water quality parameters at sites approved for coliform sampling.

(2) Samples collected at the entry point or points to the distribution system shall be from locations representative of each source water after treatment. If a waterworks draws water from more than one source water and the sources source waters are combined before distribution, then the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources source waters being used).

b. Number of samples.

(1) Owners The owner shall collect two tap samples from the standard monitoring number of sites given in Table 375.2 for applicable water quality parameters during each monitoring period specified under subdivision subdivisions C 2 through C 5 of this section from the following number of sites.

TABLE 375.2

Water Quality Monitoring for Lead and Copper

NUMBER OF SITES FOR WATER QUALITY PARAMETERS

System Size WATERWORKS SIZE

(Number of People Served)

Number of Sites for Water Quality Parameters STANDARD MONITORING

REDUCED MONITORING

greater Greater than 100,000

25

10

10,001-100,000

10

7

3,301 to 10,000

3

3

501 to 3,300

2

2

101 to 500

1

1

less Less than or equal to 100

1

1

(2) Except as provided in subdivision C 3 c of this section, owners the owner shall collect two samples for each applicable water quality parameter at each entry point to the distribution system during each monitoring period specified in subdivision C 2 of this section. During each monitoring period specified in subdivision subdivisions C 3 through, C 4, and C 5 of this section, owners the owner shall collect one sample for each applicable water quality parameter at each entry point to the distribution system.

2. Initial sampling. The owners owner of all a large waterworks shall measure the applicable water quality parameters as specified below at taps and at each entry point to the distribution system during each six-month monitoring period specified in subdivision B 4 a of this section. The owners owner of all a small and medium-size or a medium waterworks shall measure the applicable water quality parameters at the locations specified below during each six-month monitoring period specified in subdivision B 4 a of this section during which the waterworks exceeds the lead or copper action level AL.

a. At taps:

(1) pH;

(2) Alkalinity;

(3) Orthophosphate, when an inhibitor containing a phosphate compound is used;

(4) Silica, when an inhibitor containing a silicate compound is used;

(5) Calcium;

(6) Conductivity; and

(7) Water temperature.

b. At each entry point to the distribution system: all of the applicable parameters listed in subdivision C 2 a of this section.

3. Monitoring after installation of corrosion control. The owner of any a large waterworks which that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 d (4) shall measure the water quality parameters at the locations and frequencies specified below during each six-month monitoring period specified in subdivision B 4 b (1) of this section. The owner of any a small or medium-size a medium waterworks that installs optimal corrosion control treatment shall conduct such monitoring during each six-month monitoring period specified in subdivision B 4 b (2) of this section in which the waterworks exceeds the lead or copper action level AL.

a. At taps, two samples for:

(1) pH;

(2) Alkalinity;

(3) Orthophosphate, when an inhibitor containing a phosphate compound is used;

(4) Silica, when an inhibitor containing a silicate compound is used; and

(5) Calcium, when calcium carbonate stabilization is used as part of corrosion control.

b. Except as provided in subdivision C 3 c of this section, at each entry point to the distribution system, at least one sample no less frequently than every two weeks (bi-weekly) (biweekly) for:

(1) pH;

(2) When alkalinity is adjusted as part of optimal corrosion control, a reading of the dosage rate of the chemical used to adjust the alkalinity, and the alkalinity concentration; and

(3) When a corrosion inhibitor is used as part of optimal corrosion control, a reading of the dosage rate of the inhibitor used, and the concentration of orthophosphate or silica (whichever is applicable).

c. The owner of any a groundwater waterworks system may limit entry point sampling described in subdivision C 3 b of this section to those entry points that are representative of water quality and treatment conditions throughout the waterworks. If water from untreated ground water groundwater sources mixes with water from treated ground water groundwater sources, then the owner shall monitor for water quality parameters both at representative entry points receiving treatment and representative entry points receiving no treatment. Prior to Before the start of any monitoring under this subdivision, the owner shall provide to the commissioner department written information identifying the selected entry points and documentation, including information on seasonal variability, sufficient to demonstrate that the sites are representative of water quality and treatment conditions throughout the waterworks.

4. Monitoring after the commissioner department specifies water quality parameter values for optimal corrosion control. After the commissioner department specifies the values for applicable water quality control parameters reflecting optimal corrosion control treatment under 12VAC5-590-405 A 1 f, the owners owner of all a large waterworks shall measure the applicable water quality parameters in accordance with subdivision C 3 of this section and determine compliance with the requirements of 12VAC5-590-405 A 1 g every six months with the first six-month period to begin on either January 1 or July 1, whichever comes first, after the commissioner department specifies the optimal values under 12VAC5-590-405 A 1 f. The owner of any a small or medium-size a medium waterworks shall conduct such monitoring during each six-month monitoring period specified in this subdivision in which the waterworks exceeds the lead or copper action level AL. For the owner of any such a small and medium-size or a medium waterworks that is subject to a reduced monitoring frequency pursuant to subdivision B 4 d of this section at the time of the action level AL exceedance, the start of the applicable six-month period under this subdivision shall coincide with the start of the applicable monitoring period under subdivision B 4 d of this section. Compliance with the commissioner-designated department-designated optimal water quality parameter values shall be determined as specified under 12VAC5-590-405 A 1 g.

5. Reduced monitoring.

a. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment during each of two consecutive six-month monitoring periods under subdivision C 4 of this section shall continue monitoring at the entry point or points to the distribution system as specified in subdivision C 3 b of this section. The owner of such the waterworks may collect two tap samples for applicable water quality parameters from the following reduced number of sites during each six-month monitoring period shown in Table 375.2.

Size of Water System (Number of People Served)

Reduced Number of WQP Monitoring Sites

greater than 100,000

10

10,001 to 100,000

7

3,301 to 10,000

3

501 to 3,300

2

101 to 500

1

less than or equal to 100

1

b. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of monitoring may reduce the frequency with which the owner collects the number of tap samples for applicable water quality parameters specified in subdivision C 5 of this section from every six months to annually. This sampling begins during the calendar year immediately following the end of the monitoring period in which the third consecutive year of six-month monitoring occurs. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of annual monitoring under this subdivision may reduce the frequency with which it collects the number of tap samples for applicable water quality parameters specified in subdivision C 5 a of this section from annually to every three years. This sampling begins during the calendar year immediately following the end of the monitoring period in which the third consecutive year of six-month monitoring occurs.

c. The owner of a waterworks may reduce the frequency with which tap samples are collected for applicable water quality parameters specified in subdivision C 5 a of this section to every three years if the owner demonstrates during two consecutive monitoring periods that the tap water lead level at the 90th percentile is less than or equal to the PQL for lead (0.005 mg/L), that the tap water copper level at the 90th percentile is less than or equal to 0.65 mg/L for copper, and that the owner also has maintained the range of values for water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f. Monitoring conducted every three years shall be done no later than every third calendar year.

d. The owner of a waterworks that conducts sampling annually shall collect these samples evenly throughout the year so as to reflect seasonal variability.

e. The owner of any a waterworks subject to the reduced monitoring frequency that fails to operate at or above the minimum value or within the range of values for the water quality parameters specified by the commissioner department under 12VAC5-590-405 A 1 f for more than nine days in any six-month period specified in 12VAC5-590-405 A 1 g shall resume distribution system tap water sampling in accordance with the number and frequency requirements in subdivision C 4 of this section. Such an The owner may resume annual monitoring for water quality parameters at the tap at the reduced number of sites specified in subdivision C 5 of this section after completion of two subsequent consecutive six-month rounds of monitoring that meet the criteria of that subdivision or may resume triennial monitoring for water quality parameters at the tap at the reduced number of sites after demonstration through subsequent rounds of monitoring that the criteria of either subdivision C 5 b or C 5 c of this section has been met.

6. Additional monitoring by owners. The results of any monitoring conducted in addition to the minimum requirements of this section shall be considered by the owner and the commissioner department in making any determinations under this section or 12VAC5-590-405 A 1.

D. Monitoring requirements for lead and copper in water supplies (source water).

1. Sample location, collection methods, and number of samples.

a. The owner of a waterworks that fails to meet the lead or copper action level AL on the basis of tap samples collected in accordance with subsection A of this section shall collect lead and copper water supply source water samples in accordance with the following requirements regarding sample location, number of samples, and collection methods:

(1) The owner of a waterworks served by groundwater sources shall take collect a minimum of one sample at every entry point to the distribution system that is representative of each well after treatment (hereafter called a sampling point). The owner shall take collect one sample at the same sampling point unless conditions make another sampling point more representative of each source water or water treatment plant.

(2) The owner of a waterworks served by surface water sources shall take collect a minimum of one sample at every entry point to the distribution system after any application of treatment or in the distribution system at a point that is representative of each source after treatment (hereafter called a sampling point). The owner shall take collect each sample at the same sampling point unless conditions make another sampling point more representative of each source water or water treatment plant. Note that for the purpose of this subdivision, a waterworks served by a surface water source includes waterworks served by a combination of surface water and ground groundwater sources.

(3) If a waterworks draws water from more than one source water and the sources source waters are combined before distribution, then the owner shall collect samples at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources source waters being used).

(4) The commissioner department may reduce the total number of samples that must be analyzed by allowing the use of compositing. Compositing of samples shall be done by certified laboratory personnel. Composite samples from a maximum of five samples are allowed, provided that if the lead concentration in the composite sample is greater than or equal to 0.001 mg/L or the copper concentration is greater than or equal to 0.160 mg/L, then either a follow-up sample shall be collected and analyzed within 14 days at each sampling point included in the composite; or if duplicates of or sufficient quantities from the original samples from each sampling point used in the composite are available, then the owner may use these instead of resampling.

b. Where the results of sampling indicate an exceedance of maximum permissible water supply source water levels established under 12VAC5-590-405 B 4, the commissioner department may require that one additional sample be collected as soon as possible after the initial sample was taken collected (but not to exceed two weeks) at the same sampling point. If a commissioner required confirmation sample required by the department is taken collected for lead or copper, then the results of the initial and confirmation sample shall be averaged in determining compliance with the commissioner-specified department-specified maximum permissible levels. Any A sample value below the method detection limit MDL shall be considered to be zero. Any A value above the method detection limit MDL but below the PQL shall either be considered as the measured value or be considered one-half the PQL. The PQL for lead is equal to 0.005 mg/L, and the PQL for copper is equal to 0.050 mg/L.

2. Monitoring frequency after a waterworks exceeds a tap action level AL. The owner of any a waterworks which that exceeds the lead or copper action level AL at the tap shall collect one water supply source water sample from each entry point to the distribution system no later than six months after the end of the monitoring period during which the lead or copper action level AL was exceeded. For monitoring periods that are annual or less frequent, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or if the commissioner department has established an alternate monitoring period, the last day of that period.

3. Monitoring frequency after installation of water supply source water treatment. The owner of any a waterworks that installs water supply source water treatment pursuant to 12VAC5-590-405 B 1 c shall collect an additional source water supply sample from each entry point to the distribution system during two consecutive six-month monitoring periods by the deadline specified in 12VAC5-590-405 B 1 d.

4. Monitoring frequency after the commissioner department specifies maximum permissible water supply source water lead and copper levels or determines that water supply source water treatment is not needed.

a. An The owner shall monitor at the frequency specified below in subdivisions D 4 a (1) and D 4 a (2) of this section in cases where the commissioner department specifies maximum permissible water supply source water lead and copper levels under 12VAC5-590-405 B 1 e or determines that the owner is not required to install water supply source water treatment under 12VAC5-590-405 B 2 b.

(1) The owner of a waterworks using only groundwater shall collect samples once during the three-year compliance period in effect when the applicable commissioner department determination under subdivision D 4 a of this section is made. Owners of such waterworks The owner shall collect samples once during each subsequent compliance period. Triennial samples shall be collected every third calendar year.

(2) The owner of a waterworks using surface water (or a combination of surface water and groundwater) shall collect samples once during each year, the first annual monitoring period to begin during the year in which the applicable commissioner department determination is made under subdivision D 4 a of this section.

b. An The owner is not required to conduct water supply source water sampling for lead or copper if the waterworks meets the action level AL for the specific contaminant in tap water samples during the entire water supply source water sampling period applicable to the waterworks under subdivision D 4 a (1) or D 4 a (2) of this section.

5. Reduced monitoring frequency.

a. The owner of a waterworks using only groundwater may reduce the monitoring frequency for lead and copper in water supplies source waters to once during each nine-year compliance cycle provided that the samples are collected no later than every ninth calendar year and if the owner meets one of the following criteria:

(1) The owner demonstrates that the finished drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the commissioner department under 12VAC5-590-405 B 1 e during at least three consecutive compliance periods under subdivision D 4 a of this section; or

(2) The commissioner department has determined that water supply source water treatment is not needed and the owner demonstrates that, during the last three consecutive compliance periods in which sampling was conducted under subdivision D 4 a of this section, the concentration of lead in the water supply source water was less than or equal to 0.005 mg/L and the concentration of copper in the water supply source water was less than or equal to 0.65 mg/L.

b. The owner of a waterworks using surface water (or a combination of surface and ground waters) water and groundwater sources) may reduce the monitoring frequency for lead and copper in water supplies source waters to once during each nine-year compliance cycle provided that the samples are collected no later than every ninth calendar year and if the owner meets one of the following criteria:

(1) The owner demonstrates that finished drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the commissioner department under 12VAC5-590-405 B 1 e for at least three consecutive years; or

(2) The commissioner department has determined that water supply source water treatment is not needed and the owner demonstrates that, during the last three consecutive years, the concentration of lead in the water supply source water was less than or equal to 0.005 mg/L and the concentration of copper in the water supply source water was less than or equal to 0.65 mg/L.

c. Owners The owner of a waterworks that uses a new water supply source water is not eligible for reduced monitoring for lead or copper until concentrations in samples collected from the new supply source water during three consecutive monitoring periods are below the maximum permissible lead and copper concentrations specified in 12VAC5-590-405 B 1 e.

12VAC5-590-376. Surface water and GUDI sources treatment monitoring.

A. The owner of a waterworks that uses a surface water source, a GUDI source, or both and provides filtration treatment shall monitor in accordance with this section.

B. Turbidity measurements shall be performed on representative samples of the filtered water every four hours (or more frequently) that the waterworks serves water to the public. The owner may substitute continuous turbidity monitoring for grab sample monitoring if the owner validates the continuous measurement for accuracy on a regular basis using a protocol approved by the department. For a waterworks using slow sand filtration or filtration treatment other than conventional treatment, direct filtration, or diatomaceous earth filtration, the department may reduce the sampling frequency to once per day if the department determines that less frequent monitoring is sufficient to indicate effective filtration performance. For a waterworks serving 500 or fewer persons, the department may reduce the turbidity sampling frequency to once per day, regardless of the type of filtration treatment used, if the department determines that less frequent monitoring is sufficient to indicate effective filtration performance.

1. The owner of a waterworks supplied by a surface water source, a GUDI source, or both using conventional filtration treatment or direct filtration shall conduct continuous monitoring of turbidity for each individual filter. The turbidimeter shall be calibrated using the procedure specified by the turbidimeter manufacturer. The owner shall record the results of individual filter turbidity monitoring a minimum of every 15 minutes.

2. If there is a failure in the continuous turbidity monitoring equipment, then the owner shall conduct grab sampling every four hours instead of continuous monitoring but for no more than five working days (for a waterworks serving 10,000 or more persons) or 14 days (for a waterworks serving less fewer than 10,000 persons) following the failure of the equipment.

3. If a waterworks serving fewer than 10,000 persons consists of two or fewer filters, continuous monitoring of the CFE may be used instead of individual filter monitoring.

C. The residual disinfectant concentration of the water entering the distribution system shall be monitored continuously, and the lowest and highest values shall be recorded each day. If there is a failure in the continuous monitoring equipment, then grab sampling every four hours shall be conducted instead of continuous monitoring, but such grab sampling shall be conducted for no more than five working days following the failure of the equipment. The owner of a waterworks serving 3,300 or fewer persons may collect grab samples instead of continuous monitoring on an ongoing basis at the frequencies prescribed in Table 376.1.

1. The day's samples cannot be collected at the same time.

2. The sampling intervals are subject to department's evaluation and approval.

3. If at any time the residual disinfectant concentration falls below 0.2 mg/L in a waterworks using grab sampling instead of continuous monitoring, then the owner shall collect a grab sample every four hours until the residual disinfectant concentration is equal to or greater than 0.2 mg/L.

TABLE 376.1

Grab Sample Monitoring Frequency

WATERWORKS SIZE BY POPULATION

SAMPLES/DAY

500 or less

1

501 - 1,000

2

1,000 - 2,500

3

2,501 - 3,300

4

D. The residual disinfectant concentration shall be measured at least at the same points in the distribution system and at the same time as total coliform bacteria are sampled, as specified in 12VAC5-590-370 A and 12VAC5-590-380 D, except that the department may allow the owner of a waterworks that uses a groundwater source along with a surface water source, a GUDI source, or both to collect residual disinfectant samples at points other than the total coliform sampling points if the department determines that these points are more representative of treated (disinfected) water quality within the distribution system. Heterotrophic bacteria, measured as HPC as specified in 12VAC5-590-395 A 2 a (3), may be measured instead of residual disinfectant concentration.

E. The following information on the samples collected in the distribution system in conjunction with total coliform monitoring pursuant to 12VAC5-590-395 A 2 shall be reported monthly to the department by the owner:

1. Number of instances where the residual disinfectant concentration is measured;

2. Number of instances where the residual disinfectant concentration is not measured but heterotropic plate count (HPC) is measured;

3. Number of instances where the residual disinfectant concentration is measured but not detected and no HPC is measured;

4. Number of instances where no residual disinfectant concentration is detected and where the HPC is greater than 500/mL;

5. Number of instances where the residual disinfectant concentration is not measured and HPC is greater than 500/mL; and

6. For the current and previous month the waterworks serves water to the public, the value of "V," in percent, in the following formula:

V = [(c + d + e) / (a + b)] X 100

where

a = the value in subdivision E 1 of this section;

b = the value in subdivision E 2 of this section;

c = the value in subdivision E 3 of this section;

d = the value in subdivision E 4 of this section;

e = the value in subdivision E 5 of this section.

12VAC5-590-377. Physical constituent monitoring.

A. Monitoring to determine compliance with the SMCLs for color, odor, pH, and total dissolved solids as specified in Table 340.3 shall be conducted as follows:

1. The owner shall collect one sample at each groundwater source entry point during each compliance period.

2. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

B. Onsite daily turbidity measurements may be required to be performed on representative samples collected at each entry point for groundwater sources not required to filter, to determine compliance set forth in 12VAC5-590-379 B. The turbidity monitoring requirements for a waterworks required to filter are specified in 12VAC5-590-376 B.

12VAC5-590-378. Radiological monitoring.

A. The location of sampling points, the radionuclides measured in community waterworks, the frequency, and the timing of sampling within each compliance period shall be established or approved by the department. The department may increase required monitoring where necessary to detect variations within the waterworks. Failure to comply with the sampling schedules in this section will require public notification pursuant to 12VAC5-590-540 A 3.

B. The owner of a community waterworks shall conduct monitoring to determine compliance with the PMCLs listed in Table 340.4 and 12VAC5-590-388 in accordance with this section.

1. Monitoring requirements for gross alpha particle activity, radium-226, radium-228, and uranium.

a. The owner shall conduct initial monitoring to determine compliance with the PMCLs listed in Table 340.4 for gross alpha particle activity, radium-226, radium-228, and uranium. For the purposes of monitoring for gross alpha particle activity, radium-226, radium-228, uranium, and beta particle and photon radioactivity in drinking water, "detection limit" is defined as specified in Table 378.1.

(1) Applicability and sampling location for an existing community waterworks or its sources. The owner using groundwater, surface water, or both groundwater and surface water shall sample at every entry point to the distribution system that is representative of all sources being used under normal operating conditions. The owner shall collect each sample at the same entry point unless conditions make another sampling point more representative of each source.

(2) Applicability and sampling location for a new community waterworks or its sources. A new community waterworks or a community waterworks that uses a new source water shall begin to conduct initial monitoring for the new source water within the first quarter after initiating use. The owner shall conduct more frequent monitoring when directed by the department in the event of possible contamination or when changes in the distribution system or treatment processes occur that may increase the concentration of radioactivity in the finished water.

b. Initial monitoring. The owner shall conduct initial monitoring for gross alpha particle activity, radium-226, radium-228, and uranium as follows:

(1) The owner shall collect four consecutive quarterly samples at all entry points.

(2) For gross alpha particle activity, uranium, radium-226, and radium-228 monitoring, the department may waive the final two quarters of initial monitoring for an entry point if the results of the samples from the previous two quarters are below the detection limit as defined by and as specified in Table 378.1.

(3) If the average of the initial monitoring results for an entry point is above the PMCL, then the owner shall collect and analyze quarterly samples at that entry point until the owner has results from four consecutive quarters that are at or below the PMCL, unless the owner enters into another schedule as part of a formal compliance agreement with the department.

c. Reduced monitoring. The department may allow the owner to reduce the future frequency of monitoring from once every three years to once every six or nine years at each entry point, based on the following criteria:

(1) If the average of the initial monitoring results for each contaminant (i.e., gross alpha particle activity, uranium, radium-226, or radium-228) is below the detection limit as specified in Table 378.1, then the owner shall collect and analyze for that contaminant using at least one sample at that entry point every nine years.

(2) For gross alpha particle activity, combined radium, and uranium, if the average of the initial monitoring results for each contaminant is at or above the detection limit as specified in Table 378.1, but at or below half of the PMCL, then the owner shall collect and analyze for that contaminant using at least one sample at that entry point every six years.

(3) For gross alpha particle activity, combined radium, and uranium, if the average of the initial monitoring results for each contaminant is above half the PMCL but at or below the PMCL, then the owner shall collect and analyze at least one sample at that entry point every three years.

(4) The owner shall use the samples collected during the reduced monitoring period to determine the monitoring frequency for subsequent monitoring periods (e.g., if a waterworks entry point is on a nine-year monitoring period, and the sample result is above half the PMCL, then the next monitoring period for that entry point is three years).

(5) If the owner has a monitoring result that exceeds the PMCL while on reduced monitoring, then the owner shall collect and analyze quarterly samples at that entry point until the results from four consecutive quarters are below the PMCL, unless the waterworks enters into another schedule as part of a formal compliance agreement with the department.

d. Compositing. To fulfill quarterly monitoring requirements for gross alpha particle activity, radium-226, radium-228, or uranium, the owner may composite up to four consecutive quarterly samples from a single entry point if analysis is done within a year of the first sample. The department will treat analytical results from the composited sample as the average analytical result to determine compliance with the PMCLs and the future monitoring frequency. If the analytical result from the composited sample is greater than half the PMCL, then the department may direct the owner to collect additional quarterly samples before allowing the owner to sample under a reduced monitoring schedule.

e. A gross alpha particle activity measurement may be substituted for the required radium-226 measurement provided that the measured gross alpha particle activity does not exceed 5 pCi/L. A gross alpha particle activity measurement may be substituted for the required uranium measurement provided that the measured gross alpha particle activity does not exceed 15 pCi/L. The gross alpha measurement shall have a confidence interval of 95% (1.65 σ, where σ is the standard deviation of the net counting rate of the sample) for radium-226 and uranium. When an owner uses a gross alpha particle activity measurement instead of a radium-226 or uranium measurement, the gross alpha particle activity analytical result will be used to determine the future monitoring frequency for radium-226 or uranium. If the gross alpha particle activity result is less than the detection limit as specified in Table 378.1, then half the detection limit will be used to determine compliance and the future monitoring frequency.

2. Monitoring requirements for beta particle and photon radioactivity. To determine compliance with the PMCL in Table 340.4 for beta particle and photon radioactivity, an owner shall monitor at a frequency as follows:

a. The owner (using surface water or groundwater sources) designated by the department as vulnerable shall sample for beta particle and photon radioactivity. The owner shall collect quarterly samples for beta emitters and annual samples for tritium and strontium-90 at each entry point to the distribution system, beginning within one quarter after being notified by the department. A waterworks already designated by the department shall continue to sample until the department evaluates and either reaffirms or removes the designation.

(1) If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity at an entry point has an RAA (computed quarterly) less than or equal to 50 pCi/L (screening level), then the department may reduce the frequency of monitoring at that entry point to once every three years. The owner shall collect all samples required in subdivision B 2 a of this section during the reduced monitoring period.

(2) For a waterworks in the vicinity of a nuclear facility, the department may allow the owner to utilize environmental surveillance data collected by the nuclear facility instead of monitoring at the waterworks entry point, where the department determines the data is applicable to a particular waterworks. In the event that there is a release from a nuclear facility, the owner who is using surveillance data shall begin monitoring at the waterworks entry point in accordance with subdivision B 2 a of this section.

b. The owner (using a surface water, a groundwater source, or both) designated by the department as utilizing waters contaminated by effluents from nuclear facilities shall sample for beta particle and photon radioactivity. The owner shall collect quarterly samples for beta emitters and iodine-131 and annual samples for tritium and strontium-90 at each entry point to the distribution system, beginning within one quarter after being notified by the department. The owner of a waterworks already designated by the department as using waters contaminated by effluents from nuclear facilities shall continue to sample until the department evaluates and either reaffirms or removes the designation.

(1) Quarterly monitoring for gross beta particle activity shall be based on the analysis of monthly samples or the analysis of a composite of three monthly samples. The former procedure, analysis of monthly samples, is recommended.

(2) For iodine-131, a composite of five consecutive daily samples shall be analyzed once each quarter. As directed by the department, more frequent monitoring shall be conducted when iodine-131 is identified in the finished water.

(3) Annual monitoring for strontium-90 and tritium shall be conducted by means of the analysis of a composite of four consecutive quarterly samples or analysis of four quarterly samples. The latter procedure, analysis of monthly samples, is recommended.

(4) If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity at a sampling point has an RAA (computed quarterly) less than or equal to 15 pCi/L (screening level), then the department may reduce the frequency of monitoring at that sampling point to every three years. The owner shall collect all samples required in subdivision B 2 b of this section during the reduced monitoring period.

(5) For a waterworks in the vicinity of a nuclear facility, the department may allow the owner to utilize environmental surveillance data collected by the nuclear facility instead of the monitoring at the waterworks entry point, where the department determines the data is applicable to a particular waterworks. In the event that there is a release from a nuclear facility, the owner who is using surveillance data shall begin monitoring at the waterworks entry point in accordance with subdivision B 2 b of this section.

c. The owner of a waterworks designated by the department to monitor for beta particle and photon radioactivity cannot apply to the department for a waiver from the monitoring frequencies specified in subdivision B 2 a or B 2 b of this section.

d. The owner may analyze for naturally occurring potassium-40 beta particle activity from the same or equivalent sample used for the gross beta particle activity analysis. The owner is allowed to subtract the potassium-40 beta particle activity value from the total gross beta particle activity value to determine if the screening level is exceeded. The potassium-40 beta particle activity shall be calculated by multiplying elemental potassium concentrations (in mg/L) by a factor of 0.82.

e. If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity exceeds the appropriate screening level, then an analysis of the sample shall be performed to identify the major radioactive constituents present in the sample and the appropriate doses shall be calculated and summed to determine compliance with the PMCL for beta particles and photon radioactivity. Doses shall also be calculated and combined for measured levels of tritium and strontium to determine compliance.

f. The owner shall monitor monthly at each entry point that exceeds the PMCLs listed in Table 340.4 beginning the month after the exceedance occurs. The owner shall continue monthly monitoring until the waterworks has established, by a rolling average of three monthly samples, that the PMCL is being met. The owner who establishes that the PMCL is being met shall return to quarterly monitoring until the requirements set forth in subdivision B 2 a (1) or B 2 b (4) of this section are met.

3. General monitoring requirements for radionuclides.

a. The department may require more frequent monitoring than specified in subdivisions B 1 and B 2 of this section or may require confirmation samples at the department's discretion. The results of the initial and confirmation samples shall be averaged for use in compliance determinations.

b. The owner shall monitor at the time designated by the department during each compliance period.

c. The department has the discretion to delete results of obvious sampling or analytic errors.

d. Table 378.1 provides the minimum detection limits for radiological analyses.

TABLE 378.1

Minimum Detection Limits for Radiological Analyses

CONTAMINANT

DETECTION LIMIT
(pCi/L unless otherwise noted)

Gross alpha

3

Gross beta

4

Cesium-134

10

Iodine-131

1

Radium-226

1

Radium 228

1

Strontium-89

10

Strontium-90

2

Tritium

1,000

Uranium

1 (µg/L)

12VAC5-590-379. Groundwater waterworks system monitoring.

A. General monitoring requirements.

1. Owners The owner of a groundwater waterworks system, including consecutive and wholesale waterworks, shall conduct monitoring in accordance with this section, except that requirements do not apply to waterworks that combine all of their groundwater sources with surface water sources or with groundwater under the direct influence of surface water prior to GUDI sources before treatment in accordance with 12VAC5-590-420 12VAC5-590-395.

2. Source water monitoring for owners of by the owner of a groundwater waterworks system that do does not provide 4-log treatment of viruses for their groundwater sources before or at the first customer are is described in subsection B of this section.

3. Owners of The owner of a groundwater waterworks system that provide provides at least 4-log treatment of viruses before or at the first customer are is required to conduct compliance monitoring in accordance with 12VAC5-590-421 C.

4. Owners The owner of a groundwater waterworks system that have has confirmed fecal E. coli contamination, as determined by source water monitoring conducted under subsection B of this section or have has been notified of a significant deficiency as described in 12VAC5-590-350 D shall implement one or more of the corrective actions outlined in 12VAC5-590-421 A 1, as prescribed by the commissioner department.

5. Owners The owner of a groundwater waterworks system that do does not provide 4-log treatment of viruses before or at the first customer and are is not performing compliance monitoring shall provide a triggered source water monitoring plans plan to the commissioner department.

6. Any source water sample collected in accordance with this section shall be analyzed for E. coli using one of the analytical methods in 40 CFR 141.402(c).

B. Groundwater source microbial monitoring.

1. Triggered source water monitoring.

a. General requirements. Groundwater waterworks owners The groundwater system owner shall conduct triggered source water monitoring if both the conditions identified in subdivisions B 1 a (1) and B 1 a (2) of this section exist.

(1) The groundwater waterworks system owner does not provide at least 4-log treatment of viruses before or at the first customer for each groundwater source; and

(2) The groundwater waterworks system owner is notified that a sample collected under 12VAC5-590-370 A is total coliform-positive coliform positive and the sample is not invalidated under 12VAC5-590-380 E.

b. Sampling requirements. Groundwater waterworks owners The groundwater system owner shall collect, within 24 hours of notification of the total coliform-positive sample, one groundwater source water sample from each groundwater source in use at the time the total coliform-positive sample was collected under 12VAC5-590-370 A, except as provided in this subdivision B 1 b.

(1) The commissioner department may extend the 24-hour time limit on a case-by-case basis if the owner cannot collect the groundwater source water sample within 24 hours due to circumstances beyond his control. In the case of an extension, the commissioner department shall specify how much time the owner has to collect the sample.

(2) If approved by the commissioner department, owners the owner of a waterworks with more than one groundwater source may meet the requirements of this subdivision B 1 by sampling a representative groundwater source or sources. Owners The owner shall submit, for the commissioner's department's approval, a triggered source water monitoring plan that identifies one or more groundwater sources that are representative of each monitoring site in the waterworks' bacteriological sample siting report or that identifies groundwater sources that are hydro-geologically hydrogeologically similar and clearly identifies which sources will be sampled.

(3) A groundwater system serving 1,000 people or fewer may use a triggered source water sample collected from a groundwater source to meet both the requirements of 12VAC5-590-380 and to satisfy the monitoring requirements of this subdivision B 1 for a groundwater source.

c. Additional requirements.

(1) If an E. coli-positive triggered source water sample collected under this subdivision B 1 is not invalidated under subdivision B 2 of this section, then the groundwater waterworks system owner shall provide public notification and collect five additional source water samples from the same source within 24 hours of being notified of the E. coli-positive sample.

(a) If the E. coli-positive triggered source water sample is also used as a repeat sample, then an E. coli PMCL violation is incurred under 12VAC5-590-380 B 1 a.

(b) If a waterworks takes collects more than one repeat sample at the monitoring location required for triggered source water monitoring, then the number of additional source water samples required under subdivision B 1 c (1) of this section may be reduced by the number of repeat samples taken collected at that location that were not E. coli positive.

(2) If any of the five additional samples are E. coli positive, the groundwater system owner shall comply with the treatment technique requirements of 12VAC5-590-421.

d. Consecutive and wholesale waterworks.

(1) A consecutive groundwater waterworks system owner that has a total coliform-positive sample collected in accordance with 12VAC5-590-370 A shall notify the wholesale waterworks owner and the district engineer department within 24 hours of being notified of the total coliform-positive sample.

(2) A The wholesale groundwater waterworks system owner shall comply with the following:

(a) A The wholesale groundwater waterworks system owner that receives notice from a consecutive waterworks it serves that a sample collected in accordance with 12VAC5-590-370 A is total coliform-positive coliform positive shall, within 24 hours of being notified, collect a sample from its each groundwater source(s) source as described in subdivision B 1 of this section.

(b) If the sample collected under this subdivision B 1 is E. coli positive, then the wholesale groundwater system owner shall within 24 hours notify all consecutive waterworks served by that groundwater source of the E. coli coli-positive source water positive sample as described in 12VAC5-590-540 and shall meet the requirements of subdivision B 1 c of this section.

e. Exception to the triggered source water monitoring requirements. A groundwater system owner is not required to comply with the source water monitoring requirements of this subdivision B 1 if the commissioner department determines, and documents in writing, that:

(1) The total coliform-positive sample collected in accordance with 12VAC5-590-370 A is invalidated under 12VAC5-590-380 E.

(2) The total coliform-positive sample collected in accordance with 12VAC5-590-370 A is caused by a distribution system deficiency (sanitary defect).

(3) The total coliform-positive sample collected in accordance with 12VAC5-590-370 A was caused by distribution system conditions that will cause total coliform-positive samples.

2. Invalidation of an E. coli-positive groundwater source sample.

a. A The groundwater waterworks system owner may obtain the commissioner's department's invalidation of an E. coli-positive groundwater source sample collected under subdivision B 1 of this section only under the following conditions specified in subdivisions B 2 a (1) and (2) of this section:

(1) The groundwater waterworks system owner provides the commissioner department with written notice from the laboratory that improper sample analysis occurred; or

(2) The commissioner department determines and documents in writing that there is substantial evidence that the E. coli-positive groundwater source sample is not related to source water quality.

b. If the commissioner department invalidates an E. coli positive coli-positive groundwater source sample, then the groundwater system owner shall collect another source water sample under subdivision B 1 of this section within 24 hours of being notified by the commissioner department of the invalidation decision and have it the source water sample analyzed for E. coli.

3. Sampling location. All groundwater source samples required under subdivision B 1 of this section shall be collected at a location prior to before any treatment of the groundwater source unless otherwise approved by the commissioner department.

4. Public notification. The owner of a groundwater waterworks system with a source water sample collected under this subsection that is E. coli positive and that is not invalidated under subdivision B 2 of this section, including consecutive waterworks served by the groundwater source, shall conduct public notification as required in 12VAC5-590-540 A 1.

5. Monitoring violations. Failure to meet the monitoring requirements of subdivision B 1 of this section is a violation and requires the groundwater waterworks system owner to provide public notification as required in 12VAC5-590-540 A 3.

C. Monitoring requirements for source water.

1. The owner of a groundwater source utilizing chlorine disinfection or any other treatment or chemical addition that may alter or affect the bacteriological quality of the source water shall collect source water samples for bacteriological analysis in accordance with this section.

2. All bacteriological samples under this section shall be collected from the source water before any treatment or chemical addition.

a. The owner shall provide a suitable source water sample tap at each groundwater source.

b. If conditions indicate that it is not possible to install a source water sample tap, then an alternate sample location acceptable to the department may be utilized for this monitoring.

3. All samples shall be analyzed by a test method that will yield a most probable number (MPN) result for both total coliforms and E. coli.

4. Number of samples.

a. The number of routine source water samples to be collected and the frequency of sampling shall be determined by the department. The department will notify the owner of the source water sampling requirements.

b. As a minimum, the owner shall collect source water samples in accordance with Table 379.1.

TABLE 379.1

Monitoring Requirements for Source Water Samples

SOURCE TYPE

MINIMUM ROUTINE SOURCE WATER MONITORING FREQUENCY

PARAMETERS

Well located in non-karst geology

One sample per year

Total coliforms MPN
and E coli MPN

Well located in karst geology

One sample per calendar quarter

Total coliforms MPN
and E coli MPN

Spring

One sample per month

Total coliforms MPN
and E coli MPN

c. When a single sample result from a groundwater source that requires a routine source water monitoring frequency of less than monthly indicates total coliforms in excess of 50 colonies/100 mL or the presence of E. coli, the owner shall collect one confirmation sample within seven calendar days after notification of the results.

d. The department may require that additional source water samples be collected and will establish the specific number of samples and the monitoring frequency.

12VAC5-590-380. Bacteriological quality compliance.

A. Analytical methodology. 1. The standard sample volume for the coliform test shall consist of 100 milliliters, regardless of the analytical method used. 2. Owners need The owner needs only to determine the presence or absence of total coliforms and E. coli; a determination of total coliform density is not required for routine bacteriological monitoring at entry points or distribution system locations.

3. The time from sample collection to initiation of test medium incubation shall not exceed 30 hours.

4. Owners are encouraged but not required to hold samples below 10oC during transit.

5. If water having residual chlorine (measured as free, combined, or total chlorine) is to be analyzed, sufficient sodium thiosulfate (Na2S2O3) shall be added to the sample bottle before sterilization to neutralize any residual chlorine in the water sample.

B. PMCLs for microbial contaminants.

1. A waterworks is in compliance with the PMCL for E. coli unless any of the conditions identified in this subdivision occur. A violation may pose an acute risk to public health and is a Tier 1 condition requiring public notification as described in 12VAC5-590-540 A 1 when:

a. A repeat sample following a total coliform-positive routine sample is E. coli positive;

b. A repeat sample following an E. coli-positive routine sample is total coliform positive;

c. The owner fails to take collect all required repeat samples following an E. coli-positive routine sample; or

d. The owner fails to test for E. coli when any repeat sample tests positive for total coliform.

2. Compliance shall be determined with the PMCL for E. coli for each monitoring period for which monitoring for total coliforms is required.

C. The best available technology (BAT), treatment techniques, or other means available for achieving compliance with the PMCL for E. coli shall be:

1. Protection of wells from contamination by coliforms by appropriate placement and, construction, and maintenance of the wells;

2. Maintenance of a disinfectant detectable residual disinfectant throughout the distribution system;

3. Proper maintenance of the distribution system including appropriate pipe replacement and repair procedures, water main flushing programs, proper operation and maintenance of storage tanks and reservoirs, continual maintenance of positive water pressure in all parts of the distribution system, and an approved cross connection cross-connection control program;

4. Filtration and disinfection of a surface water or surface influenced groundwater source, a GUDI source, or both; and

5. Disinfection of groundwater using strong oxidants such as chlorine, chlorine dioxide, or ozone.

D. A total coliform-positive result is indicative of a breakdown in the protective barriers and shall be cause for repeat monitoring and special follow-up action to locate and eliminate the cause of contamination.

1. For each routine sample found to be total coliform positive, the waterworks owner shall collect a set of three repeat samples within 24 hours of being notified of the positive result. The commissioner department may extend the 24-hour limit on a case-by-case basis. For groundwater waterworks systems, the requirements of 12VAC5-590-379 shall also apply, and all repeat samples must be analyzed for E. coli using one of the analytical methods in 40 CFR 141.402(c).

a. The owner shall collect at least one repeat sample from the sampling tap where the original total coliform-positive sample was taken collected, and at least one repeat sample at a tap within five service connections upstream and at least one repeat sample at a tap within five service connections downstream of the original sampling site. If a total coliform-positive sample is at the end of the distribution system or one service connection away from the end of the distribution system, the owner must still take collect all required repeat samples.

b. The owner shall collect an additional set of repeat samples if one or more repeat samples in the current set of repeat samples is total coliform positive. The owner shall collect the additional set of repeat samples within 24 hours of being notified of the positive results, unless the commissioner department extends the limit as provided in this section. The owner shall continue to collect additional sets of repeat samples until either total coliforms are not detected in one complete set of repeat samples or the owner determines that a coliform treatment technique trigger specified in 12VAC5-590-392 B has been exceeded as a result of a repeat sample being total coliform positive and notifies the appropriate ODW field office department. If a trigger identified in 12VAC5-590-392 B is exceeded as a result of a routine sample being total coliform positive, an then the owner is required to conduct only one round of repeat monitoring for each total coliform-positive routine sample.

c. If the owner collects a routine sample before learning the results of the previous routine sample, and the sample is taken collected within five service connections of the initial routine sample, then the owner may count the subsequent sample as a repeat sample when the initial sample results are found to be total coliform positive.

d. If one or more repeat samples taken collected at the monitoring location required for triggered source water monitoring are E. coli positive, then the waterworks owner has exceeded the E. coli PMCL and must comply with the groundwater system treatment technique requirements specified in 12VAC5-590-421.

e. If all repeat samples taken collected at the monitoring location required for triggered source water monitoring are E. coli negative, and a repeat sample taken collected at a monitoring location other than the one required for triggered source water monitoring is E. coli positive, then the waterworks owner has exceeded the E. coli PMCL. However, the owner is not required to collect five additional source water samples from the same source within 24 hours of learning the E. coli-positive result.

f. The waterworks owner shall collect all repeat samples on the same day, except the commissioner department may allow the owner of a waterworks with a single service connection to collect the required set of repeat samples over a three-day period or to collect a larger volume repeat sample in one or more sample containers of any size as long as the total volume collected is at least 300 ml.

g. If a repeat sample taken collected at the monitoring location required for triggered source water monitoring is E. coli positive coli-positive, then the waterworks owner has exceeded the E. coli PMCL and must collect five additional source water samples from the same source within 24 hours of learning the E. coli-positive result.

2. Results of all routine and repeat samples not invalidated by the commissioner department shall be used to determine compliance with the PMCL for E. coli and whether a treatment technique trigger specified in 12VAC5-590-392 B has been exceeded.

3. Special purpose Special-purpose samples, such as those taken collected to determine whether disinfection practices are sufficient following pipe placement, replacement, or repair, and samples taken collected before start-up of a seasonal waterworks, shall not be used to determine compliance. Repeat samples are not considered special purpose special-purpose samples.

E. A total coliform-positive sample invalidated under this paragraph subsection does not count towards toward meeting the minimum monitoring requirements of this section. To invalidate a total coliform-positive sample under this subsection, the written decision and rationale shall be reviewed evaluated, approved, and signed by the commissioner department. The commissioner department shall make this document available to EPA and the public. The written documentation shall state the specific cause of the total coliform-positive sample and what action the owner has taken, or will take, to correct this problem. The commissioner department shall not invalidate a total coliform-positive sample solely on the grounds that all repeat samples are total coliform negative.

1. The commissioner department may invalidate a total coliform positive sample if any of the following conditions are met:

a. The laboratory establishes that improper sample analysis caused the total coliform-positive result;

b. The commissioner department, on the basis of the results of repeat samples collected as required by subdivision D 1 of this section, determines that the total coliform-positive sample resulted from a domestic or other nondistribution system plumbing problem. The commissioner department cannot invalidate a sample on the basis of repeat sample results unless all repeat sample(s) samples collected at the same tap as the original total coliform-positive sample are also total coliform positive, and all repeat samples collected at a location other than the original tap are total coliform negative (e.g., the commissioner department cannot invalidate a total coliform-positive sample on the basis of repeat samples if all the repeat samples are total coliform negative, or if the waterworks has only one service connection); or

c. The commissioner department has substantial grounds to believe that a total coliform-positive result is due to a circumstance or condition that does not reflect water quality in the distribution system. In this case, the waterworks owner shall still collect all repeat samples required under subdivision D 1 of this section, and use them to determine whether a coliform treatment technique trigger in 12VAC5-590-392 B has been exceeded.

2. A laboratory must invalidate a sample because of sampling interference (i.e., turbid culture in absence of (i) gas production, or (ii) acid reaction; exhibition of confluent growth; or production of colonies too numerous to count). The waterworks owners owner shall collect a replacement sample from the same location within 24 hours, and have it analyzed for the presence of total coliforms. The waterworks owner must continue to resample within 24 hours and have the samples analyzed until they obtain a valid result is obtained. The commissioner department may waive the 24-hour time limit on a case-by-case basis.

F. Escherichia coli (E. coli).

1. If any a routine or, repeat sample, or replacement sample is total coliform positive, then the waterworks owner shall analyze that the total coliform-positive culture medium to determine if E. coli are present. If E. coli are present, then the waterworks owner shall notify the appropriate ODW field office department by the end of the day when the waterworks owner is notified of the test result, unless the ODW's field office department is closed, in which case the appropriate ODW field office department must be notified before the end of the next business day.

2. The commissioner department has the discretion to allow a waterworks an owner, on a case-by-case basis, to forgo E. coli testing on a total coliform-positive sample if the owner assumes that the total coliform-positive sample is E. coli positive. Accordingly, the owner must notify the appropriate ODW field office department as specified in subdivision F 1 of this subsection and the provisions of subdivision B 1 of this section apply.

G. Groundwater sources.

1. Groundwater sources shall be disinfected in accordance with 12VAC5-590-1000 when the total coliform geometric mean of 20 or more raw water samples measured by a method yielding a multiple-portion decimal-dilution (MPN) result is greater than three 12VAC5-590-421 A 1 d when the results of the source water monitoring samples specified in 12VAC5-590-430 B 2 or 12VAC5-590-840 K 1 a indicate a total coliform concentration (geometric mean) of the 20 samples to be greater than 3 colonies/100 mL but less than 100 colonies/100 mL. The value 1.0 shall be used to represent a negative zero coliform result in the calculation of the geometric mean.

2. Groundwater sources containing a total coliform geometric mean of 100 or more organisms per 100 milliliters or with more than 10% of these samples exceeding 100 organisms per 100 milliliters constitutes unacceptable contamination for disinfection treatment only source monitoring results conducted in accordance with 12VAC5-590-430 B 2 or 12VAC5-590-840 K 1 a that indicate a total coliform concentration equal to or greater than 100 colonies/100 ml constitutes contamination that is not treatable by single-barrier disinfection treatment alone.

3. Groundwater sources shall be disinfected in accordance the requirements of 12VAC5-590-1000 12VAC5-590-421 A 1 d when the source water quality contributes to the waterworks' failure to meet the bacteriological PMCL specified in subsection B of this section.

4. Groundwater sources shall be disinfected in accordance with 12VAC5-590-421 A 1 d when the results of source development samples specified in 12VAC5-590-840 B 11 indicate the presence of E. coli in two or more samples.

5. Groundwater sources shall be disinfected in accordance with 12VAC5-590-421 A 1 d when the results of raw water monitoring conducted in accordance with 12VAC5-590-425 indicate the presence of E. coli in two or more samples during any running six-month period.

4. If the results of the source water monitoring required by 12VAC5-590-379 C or 12VAC5-590-430 B 2 indicate the presence of E. coli in two or more samples collected during any running six-month period, then the owner shall:

a. Issue a Tier 1 public notice in accordance with 12VAC5-590-540 A 1.

b. Provide disinfection treatment to achieve a 4-log virus inactivation and removal as specified in 12VAC5-590-421 A 1 d.

c. Conduct compliance monitoring as specified in 12VAC5-590-421 B and 12VAC5-590-421 C.

5. If the results of the source water monitoring required in 12VAC5-590-379 C indicate total coliform concentration in excess of 50 colonies/100 mL in three or more samples collected during any running six-month period or the presence of E. coli in two or more samples collected during any running six-month period, then the source water shall be reevaluated for GUDI determination in accordance with 12VAC5-590-430.

6. The department may require that any groundwater source be disinfected in accordance with the requirements of 12VAC5-590-421 A 1 d.

H. Groundwater systems conducting source water monitoring as described in 12VAC5-590-379 shall determine the presence or absence of E. coli. All samples shall be analyzed [ by laboratories that have received certification by EPA or DCLS as specified ] in [ accordance with ] 12VAC5-590-440 [ by the ] Division of Consolidated Laboratory Services (DCLS) [ DCLS or by a laboratory certified by the DCLS ] for drinking water samples analyses.

12VAC5-590-382. Inorganic chemicals compliance.

A. When the results of sampling for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium exceed the applicable PMCL, the owner shall collect a confirmation sample at the same sampling point within two weeks of notification of the analytical results of the first sample. The fluoride PMCL applies only to community waterworks.

1. The results of the initial and confirmation samples shall be averaged to determine compliance with subsection A of this section. The department has the discretion to delete results of obvious sampling errors.

2. Compliance with the PMCLs for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, and thallium listed in Table 340.1 shall be determined based on the analytical results obtained at each sampling point.

a. For the owner of a waterworks that conducts monitoring more frequently than annually, compliance with the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium is determined by an RAA at each sampling point. If the average at any sampling point is greater than the PMCL, then the waterworks is out of compliance. If any single sample would cause the annual average to be exceeded, then the waterworks is out of compliance immediately. A sample result below the MDL shall be calculated as zero for the purpose of determining the annual average. If the owner fails to collect the required number of samples, compliance (average concentration) shall be based on the total number of samples collected.

b. For the owner of a waterworks that monitors annually or less frequently, the waterworks is [ not ] out of compliance with the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium if the average of the original sample and a confirmation sample of a contaminant at any sampling point is greater than the PMCL. If sample results for the owner monitoring annually or less frequently exceed the PMCL, the owner shall begin quarterly sampling. The owner shall not be considered in violation of the PMCL until one year of quarterly sampling has been completed and the RAA is exceeded. However, if the confirmation sample is not collected, the owner is in violation of the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium. If the owner fails to collect the required number of samples, then compliance (average concentration) shall be based on the total number of samples collected.

B. Compliance with the PMCLs for nitrate and nitrite shall be determined based on the analytical results obtained at each sampling point. The waterworks is not out of compliance with the PMCL if the concentrations of these contaminants are equal to or below the PMCLs. Where nitrate or nitrite sample results exceed the PMCL, the owner shall collect a confirmation sample, from the same sampling point that exceeded the PMCL within 24 hours of the owner's receipt of the analytical results of the first sample. The results of the initial and confirmation sample shall be averaged to determine compliance. The owner unable to comply with the 24-hour sampling requirement shall immediately notify the consumers in the area served by the waterworks in accordance with 12VAC5-590-540 A 1. The owner exercising this option shall collect and analyze a confirmation sample within two weeks of notification of the analytical results of the first sample. The department may require more frequent monitoring. The department has the discretion to delete results of obvious sampling errors.

1. Nitrate nitrogen (NO3-N) levels not exceeding 20 mg/L may be allowed in a noncommunity waterworks if the owner:

a. Demonstrates to the satisfaction of the department that this water will not be available to children under six months of age;

b. Provides continuous posting of the fact that NO3-N levels exceed 10 mg/L and the potential health effects of exposure;

c. Notifies health officials annually of NO3-N levels that exceed 10 mg/L; and

d. The department shall determine that no adverse health effects will result.

2. Nitrite in water poses a significant health hazard. Water with nitrite-nitrogen concentrations over 1 mg/L should not be used for infant feedings.

C. Compliance with the SMCLs for aluminum, chloride, copper, corrosivity, fluoride, foaming agents, iron, manganese, silver, sulfate, or zinc shall be determined based on the analytical results obtained at each sampling point. When the result of a sample exceeds the applicable SMCL, the owner shall collect a confirmation sample at the same sampling point within two weeks of notification of the analytical results of the first sample. The results of the initial and confirmation samples shall be averaged to determine compliance. If the average concentration level of any of these constituents exceeds the SMCL, then the department shall determine whether treatment for the constituents can be accomplished or more suitable source waters are, or can be made, available. This determination shall be made as quickly as possible. If either of these alternatives is feasible, then corrective action shall be promptly implemented by the owner if deemed necessary by the department. Exceeding the fluoride SMCL requires annual public notice in accordance with 12VAC5-590-540 G.

12VAC5-590-383. Organic chemicals compliance.

A. When the results of sampling indicate positive results for contaminants listed in Table 340.2, the owner shall collect a confirmation sample at the same sampling point within two weeks of notification of the analytical results of the first sample.

B. The results of the initial and confirmation samples shall be averaged to determine waterworks compliance in accordance with subsection C of this section. The department has the discretion to delete results of obvious sampling errors.

C. Compliance with Table 340.2 shall be determined based on the analytical results obtained at each sampling point. A sample result below the detection limit shall be calculated as zero for the purposes of determining the annual average. If the owner fails to collect the required number of samples, then compliance (average concentration) shall be based on the total number of samples collected.

1. For the owner of a waterworks that conducts monitoring more frequently than annually, compliance is determined by an RAA of all samples collected at each sampling point. If the annual average of any sampling point is greater than the PMCL, then the waterworks is out of compliance. If the initial sample or a subsequent sample would cause the annual average to be exceeded, then the waterworks is out of compliance immediately. A sample result below the detection limit shall be calculated as zero for purposes of determining the annual average.

2. If the owner is conducting monitoring annually or less frequently, then the owner is not in violation if the average of the initial and confirmation samples is greater than the PMCL for that contaminant; however, the owner shall begin quarterly sampling. The owner will not be considered in violation of the PMCL until one year of quarterly sampling has been completed and the RAA is exceeded. If any sample will cause the RAA to exceed the PMCL at any sampling point, then the waterworks is immediately out of compliance with the PMCL.

12VAC5-590-384. Residual disinfectant, DBPs, and DBPPs compliance.

A. General requirements.

1. Where compliance is based on an RAA of monthly or quarterly samples or averages and the owner fails to monitor for TTHM, HAA5, or bromate, this failure to monitor shall be treated as a monitoring violation for the entire period covered by the annual average. Where compliance is based on an RAA of monthly or quarterly samples or averages and the owner's failure to monitor makes it impossible to determine compliance with MRDLs for chlorine and chloramines, this failure to monitor shall be treated as a monitoring violation for the entire period covered by the annual average.

2. All samples collected and analyzed under the provisions of this section shall be included in determining compliance, even if that number is greater than the minimum required.

3. The owner is in violation of the PMCL when the LRAA exceeds the PMCLs listed in Table 340.6 calculated based on four consecutive quarters of monitoring, or the LRAA calculated based on fewer than four quarters of data if the PMCL would be exceeded regardless of the monitoring results of subsequent quarters. The owner is in violation of the monitoring requirements for each quarter that a monitoring result would be used in calculating the LRAA if the owner fails to monitor.

B. Disinfection byproducts.

1. TTHM and HAA5.

a. The owner of a waterworks required to monitor quarterly shall calculate the LRAAs for TTHM and HAA5 using monitoring results collected under 12VAC5-590-374 F and determine that each LRAA does not exceed the PMCL in order to comply with the PMCLs listed in Table 340.6. If the owner fails to complete four consecutive quarters of monitoring, then the owner shall calculate compliance with the PMCL based on the average of the available data from the most recent four quarters. If the owner collects more than one sample per quarter at a monitoring location, then the owner shall average all samples collected in the quarter at that location to determine a quarterly average to be used in the LRAA calculation.

b. The owner of a waterworks required to monitor annually or less frequently shall determine that each sample collected is less than the PMCL in order to determine compliance with the PMCLs listed in Table 340.6. If any sample result exceeds the PMCL, then the owner shall comply with the requirements of 12VAC5–590-374 F 5. If no sample result exceeds the PMCL, then the sample result for each monitoring location is considered the LRAA for that monitoring location.

c. The owner is in violation of the monitoring requirements for each quarter that a monitoring result would be used in calculating an LRAA if the owner fails to monitor.

d. A waterworks has exceeded the operational evaluation level at any monitoring location where the sum of the two previous quarters' TTHM results plus twice the current quarter's TTHM result, divided by four to determine an average, exceeds 0.080 mg/L, or where the sum of the two previous quarters' HAA5 results plus twice the current quarter's HAA5 result, divided by four to determine an average, exceeds 0.060 mg/L.

(1) The owner of a waterworks that exceeds the operational evaluation level shall conduct an operational evaluation and submit a written report of the evaluation to the department on a form approved by the department no later than 90 days after being notified of the analytical result that caused the waterworks to exceed the operational evaluation level. The written report shall be made available to the public upon request.

(2) The operational evaluation report shall include an examination of the waterworks treatment and distribution operational practices, including source water conditions, storage tank operations, excess storage capacity, distribution system flushing, changes in source water or source water quality, and treatment changes or problems that may contribute to TTHM and HAA5 formation and what steps could be considered to minimize future exceedances.

(3) The owner may request and the department may allow the owner to limit the scope of the evaluation if the owner is able to identify the cause of the operational evaluation level exceedance. The request to limit the scope of the evaluation does not extend the schedule in subdivision B 1 d (1) of this section for submitting the written report. The department shall approve this limited scope of evaluation in writing, and the owner shall keep that approval with the completed report.

2. Bromate. Compliance shall be based on a running annual arithmetic average, computed quarterly, of monthly samples collected by the owner as prescribed by 12VAC5-590-374 H. For months in which the owner collects more than one sample, compliance is based on the average of all samples collected during the month. If the average result of the samples covering any consecutive four-quarter period exceeds the PMCL listed in Table 340.6, then the owner is in violation of the PMCL and shall notify the public pursuant to 12VAC5-590-540 A 2, in addition to reporting to the department pursuant to 12VAC5-590-530 and 12VAC5-590-531. If the owner fails to complete 12 consecutive months of monitoring, then compliance with the PMCL for the last four-quarter compliance period shall be based on the average of the available data.

3. Chlorite. Compliance shall be based on an arithmetic average of each three-sample set collected in the distribution system as prescribed by 12VAC5-590-374 G. If the arithmetic average of any three-sample set exceeds the PMCL listed in Table 340.6, then the owner is in violation of the PMCL and shall notify the public pursuant to 12VAC5-590-540 A 2, in addition to reporting to the department pursuant to 12VAC5-590-530 and 12VAC5-590-531.

C. Residual disinfectant.

1. Chlorine and chloramines.

a. Compliance shall be based on a running annual arithmetic average, computed quarterly, of monthly averages of all samples collected by the owner under 12VAC5-590-374 I 1 a. If the average covering any consecutive four-quarter period exceeds the MRDL listed in Table 340.7, then the owner is in violation of the MRDL and shall notify the public pursuant to 12VAC5-590-540 A 2, in addition to reporting to the department pursuant to 12VAC5-590-530 and 12VAC5-590-531.

b. In cases where the owner switches between the use of chlorine and chloramines for residual disinfection during the year, compliance shall be determined by including together all monitoring results of both chlorine and chloramines in calculating compliance. Reports submitted pursuant to 12VAC5-590-530 and 12VAC5-590-531 shall clearly indicate which residual disinfectant was analyzed for each sample.

c. Notwithstanding the MRDLs listed in Table 340.7, operators may increase the residual disinfectant levels of chlorine or chloramines in the distribution system to a level and for a time necessary to protect public health to address specific microbiological contamination problems caused by circumstances such as water main breaks in the distribution system, storm runoff events, source water contamination, or cross-connections.

2. Chlorine dioxide.

a. Acute violations. Compliance shall be based on consecutive daily samples collected by the owner under 12VAC5-590-374 I 2 a. If any daily sample collected at the