Regulatory Alert

A Convenient Guide to Regulatory Activity in the Commonwealth

August, 2004

The Regulatory Alert is intended to assist General Assembly members with tracking of the myriad regulations being proposed by agencies in the Commonwealth. The goal of this project is to provide a timely, simple and accurate summary of the rules that are being proposed by agencies, boards, and commissions. Highlighting regulations when they are published as “proposed regulations” should alert General Assembly members that the critical public participation phase of the rulemaking process is well underway—it is during the public participation process that the questions of a member or constituent may be most effectively communicated to the agency and examined by the individuals crafting the regulatory proposal.

The Regulatory Alert is not intended to be a substitute for the comprehensive information on agency rulemaking activity that is currently published biweekly in the Virginia Register of Regulations or the notification services offered by the Regulatory Town Hall web site maintained by the Department of Planning and Budget. It is hoped that this addition to the Legislative Record will assist all members as they monitor the development, modification and repeal of administrative rules in the Commonwealth.

Access the Virginia Register of Regulations on-line at http://register.state.va.us/issfiles.htm or contact hbutros@leg.state.va.us or the Code Commission staff at (804) 786-3591 for further information.

Proposed Regulations Open to Public Comment

TITLE 3. ALCOHOLIC BEVERAGES

Alcoholic Beverage Control Board (20:23 VA.R. 2485-2488 7/26/04)

The proposed amendments (i) remove certification and chemical analysis requirements for new beer and wine products proposed for sale in Virginia and (ii) allow the use of resealable “growlers” for the sale of beer in all on- and off-premises beer retail establishments. The current regulation requires the submission to the board of a certification or a sample for analysis for all wine and beer products prior to their sale in Virginia. Since the formulation of all products approved for sale in the United States is approved by the federal Bureau of Alcohol, Tobacco and Firearms, the board considered and chose to adopt the alternative of relying on the federal approval rather than requiring a separate analysis for the purposes of the Commonwealth. Growlers are currently only allowed for use by brewpubs.

The Department of Alcoholic Beverage Control will accept
written public comment through September 27, 2004.

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

Criminal Justice Services Board (20:22 VA.R. 2312-2317 7/12/04)

6 VAC 20-180. Crime Prevention Specialists (amending 6 VAC 20-180-10 through 6 VAC 20-180-50, adding 6 VAC 20-180-60).

The intent of the amended language is to expand the program to allow the chief executive of any local, state or federal government agency to designate staff who serve in a law-enforcement, crime prevention, or criminal justice capacity to become certified as crime prevention specialists. The current law restricts certification to staff from local and state law-enforcement agencies. Proposed amendments update training topics to include current issues such as homeland security and expand requirements to require addressing four topics on the list in the regulation rather than two topics. Training requirements for recertification are expanded from one to two topics on the list noted in the regulation. All non-law-enforcement applicants will also be required to obtain permission from the law-enforcement agency having jurisdiction where the crime prevention specialist shall serve, and a decertification section has been added in cases of misrepresentation or conviction of a crime.

The Department of Criminal Justice Services will accept
written public comment through September 10, 2004.

TITLE 8. EDUCATION

State Board of Education (20:23 VA.R. 2491-2494 7/26/04)

8 VAC 20-690. Regulations for Scoliosis Screening Program (adding 8 VAC 20-690-10 through 8 VAC 20-690-50).

The proposed regulations implement the requirements of House Bill 1834, enacted by the 2003 Session of the General Assembly, and codified in § 22.1-273.1 of the Code of Virginia, which requires all local school boards to implement a scoliosis screening program that requires either the provision of parent educational information on scoliosis or the provision of regular scoliosis screenings for students in grades 5 through 10. The proposed regulations provide school boards with the requirements that they must adhere to in order to fulfill the statutory mandate. The regulations (i) require local school divisions to either provide parent educational information on scoliosis for students in grades 5 through 10 or implement a program of regular screening for scoliosis for students in grades 5 through 10; (ii) provide that parents may opt their child out of any screening program; (iii) mandate that parents receive education information describing the purpose and need for scoliosis screening; (iv) require school boards conducting scoliosis screenings to adhere to certain procedures and requirements; and (v) mandate training of school personnel and volunteers in acceptable screening procedures.

The Board of Education will accept written public comment through September 25, 2004.

TITLE 9. ENVIRONMENT

State Water Control Board (20:22 VA.R. 2317-2320 7/12/04)

9 VAC 25-260. Water Quality Standards - Bottom Creek (amending 9 VAC 25-260-30).

The proposed amendment designates a segment of Bottom Creek in Montgomery and Roanoke Counties for special protection as an exceptional state water.

State Water Control Board (20:22 VA.R. 2320-2323 7/12/04)

9 VAC 25-260. Water Quality Standards - Lake Drummond (amending 9 VAC 25-260-30).

The proposed amendments designate Lake Drummond and portions of Brown Mountain Creek, Laurel Fork, North Fork of the Buffalo River, Peddler River, Ramseys Draft, and Whitetop Laurel Creek for special protection as exceptional state waters.

State Water Control Board (20:22 VA.R. 2323-2326 7/12/04)

9 VAC 25-260. Water Quality Standards - Little Stony Creek (amending 9 VAC 25-260-30).

The proposed amendment designates a segment of Little Stony Creek in Giles County for special protection as an exceptional state water.

State Water Control Board (20:22 VA.R. 2326-2331 7/12/04)

9 VAC 25-260. Water Quality Standards - Ragged Island (amending 9 VAC 25-260-30).

The proposed amendment designates a portion of the main stem of Ragged Island Creek in Isle of Wight County for special protection as an exceptional state water.

The Department of Environmental Quality will accept written public comment
on all of the above designations through September 10, 2004.

State Water Control Board (20:22 VA.R. 2331-2344 7/12/04)

9 VAC 25-660. Virginia Water Protection General Permit for Impacts Less Than One-Half of an Acre (amending 9 VAC 25-660-10 through 9 VAC 25-660-100).

The amendments correct several administrative procedures, clarify application and permitting requirements, and allow for a more efficient application review process. Since implementation of this regulation in October 2001, it has become evident that these minor corrections are needed to improve applications for coverage, timeframes for issuance of authorizations, and coordination with the U.S. Army Corps of Engineers State Program General Permit (SPGP-01). No change to the upper thresholds of coverage under this regulation or to the 2:1 compensation ratio for wetland impacts is being proposed.

State Water Control Board (20:22 VA.R. 2344-2362 7/12/04)

9 VAC 25-670. Virginia Water Protection General Permit for Facilities and Activities of Utility and Public Service Companies Regulated by the Federal Energy Regulatory Commission or the State Corporation Commission and Other Utility Line Activities (amending 9 VAC 25-670-10 through 9 VAC 25-670-100).

The proposed amendments revise this general permit regulation to correct several administrative procedures, clarify application and permitting requirements and allow for a more efficient application review process. Since implementation of this regulation in October 2001, it has become evident that these minor corrections are needed to improve applications for coverage, timeframes for issuance of authorizations, and coordination with the U.S. Army Corps of Engineers State Program General Permit (SPGP-01). No change to the upper thresholds of coverage under this regulation is being proposed.

State Water Control Board (20:22 VA.R. 2362-2381 7/12/04)

9 VAC 25-680. Virginia Water Protection General Permit for Linear Transportation Projects (amending 9 VAC 25-680-10 through 9 VAC 25-680-100).

The proposed amendments correct several administrative procedures, clarify application and permitting requirements, and allow for a more efficient application review process. Since implementation of this regulation in October 2001, it has become evident that these minor corrections are needed to improve applications for coverage, timeframes for issuance of authorizations, and coordination with the U.S. Army Corps of Engineers State Program General Permit (SPGP-01). No change to the upper thresholds of coverage under this regulation is being proposed.

State Water Control Board (20:22 VA.R. 2381-2401 7/12/04)

VAC 25-690. Virginia Water Protection General Permit for Impacts from Development and Certain Mining Activities (amending 9 VAC 25-690-10 through 9 VAC 25-690-100).

The proposed regulatory action corrects several administrative procedures, clarifies application and permitting requirements and allows for a more efficient application review process. Since implementation of this regulation in October 2001, it has become evident that these minor corrections are needed to improve applications for coverage, timeframes for issuance of authorizations, and coordination with the U.S. Army Corps of Engineers State Program General Permit (SPGP-01). No change to the upper thresholds of coverage under this regulation is being proposed.

The Department of Environmental Quality will accept written public comment
on all of the proposed amendments through September 10, 2004.

TITLE 12. HEALTH

State Board of Health (20:23 VA.R. 2494-2503 7/26/04)

12 VAC 5-585. Biosolids Use Regulations (amending 12 VAC 5-585-310, 12 VAC 5-585- 460, 12 VAC 5-585-480 and 12 VAC 5-585-490).

The proposed amendments (i) require entities issued permits for land application of biosolids to provide written evidence of financial responsibility to the Virginia Department of Health (VDH) and to each locality in which they are permitted to land-apply biosolids; (ii) require permit holders to inform VDH, the affected local governments, and the treatment facility from which the biosolids originated of complaints and to begin an investigation within 24 hours of receiving a complaint; (iii) require permitted entities to provide notification in writing at least 15 days prior to commencing the land application process to local governments in whose jurisdiction biosolids are being applied; (iv) require permitted entities to post signs at all land application sites at least 48 hours prior to the application of biosolids; and (v) hold permit holders responsible for the cleanup and removal of biosolids spilled during transport to the land application site or to and from a storage facility.

The Board of Health will accept written public comment through September 24, 2004.

Department of Medical Assistance Services (20:23 VA.R. 2503-2511 7/26/04)

12 VAC 30-10. State Plan Under Title XIX of the Social Security Act Medical Assistance Program; General Provisions (amending 12 VAC 30-10- 650).
12 VAC 30-130. Amount, Duration and Scope of Selected Services (amending 12 VAC 30-130-290, 12 VAC 30-130- 310, 12 VAC 30-130-320, 12 VAC 30-130-330, 12 VAC 30-130-400; and adding 12 VAC 30-130-335).

The proposed amendments modify the drug utilization review program’s claims process and provider requirements. The proposed amendments update the referenced documents used to obtain data and allow DMAS to reject or deny claims that conflict with criteria established by the Drug Utilization Review Board.

The Department of Medical Assistance Services will accept written
public comment through September 24, 2004.

Department of Medical Assistance Services (20:23 VA.R. 2511-2519 7/26/04)

12 VAC 30-50. Amount, Duration, and Scope of Medical and Remedial Care Services (amending 12 VAC 30-50-130, 12 VAC 30-50-229.1, 12 VAC 30-50-530).

The proposed amendments expand Medicaid coverage of school health services to include audiology services, medical evaluation services, school health assistant services, and transportation services. All health services will be strictly tied to the student’s Individualized Educational Program. This proposal modifies program requirements for prior authorization and the ordering of services.

The Department of Medical Assistance Services will accept written
public comment through September 24, 2004.

Department of Medical Assistance Services (20:23 VA.R. 2519-2535 7/26/04)

12 VAC 30-50. Amount, Duration and Scope of Medical and Remedial Care Services (amending 12 VAC 30-50-210).
12 VAC 30-80. Methods and Standards for Establishing Payment Rates; Other Types of Care (amending 12 VAC 30-80-40).
12 VAC 30-130. Amount, Duration and Scope of Selected Services (adding 12 VAC 30-130-1000).

The proposed amendments modify Medicaid’s coverage of prescription pharmacy services in two ways: (i) implementation of the preferred drug list and prior authorization requirements for those prescription (legend) drugs that are not approved for the agency’s preferred drug list or prior authorization requirements for preferred drugs or other drugs, including new drugs, due to clinical considerations as determined by the Pharmacy and Therapeutics Committee; and (ii) implementation of utilization review requirements in cases where recipients use high numbers of prescription drugs (high drug threshold). As part of the preferred drug list program, this action also proposes to institute state supplemental rebates between the Commonwealth and pharmaceutical manufacturers. Furthermore, language is being added, consistent with federal requirements, that sets out Virginia’s methodology for its reimbursement of generic drugs, known as the Virginia Maximum Allowable Cost, in order to conform the state regulations with the federally approved State Plan.

The Department of Medical Assistance Services will accept written
public comment through September 24, 2004.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

Board for Opticians (20:23 VA.R. 2536-2540 7/26/04)

18 VAC 100-20. Board for Opticians Regulations (adding 18 VAC 100-20-53).

The proposed amendments establish registration for voluntary practice by out-of-state licensees pursuant to Chapter 740 of the 2002 Acts of Assembly.

The Board for Opticians will accept written public comment through September 24, 2004.

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