Compliance Analysis Overview

POLYGRAPH ADVISORY BOARD

APPLICATION REVIEW MATRIX

CRIMINAL HISTORY

Approved January 15, 2015

The following convictions will not be reviewed by the Board:

All felony convictions with no subsequent reportable convictions, unless the conviction resulted in incarceration where the release date is less than one year from the application date. This does not include convictions involving murder, manslaughter, sexual assault or any sexual crime, rape, robbery, indecent liberties, fraud, embezzlement, abduction, assaulting a law enforcement office, resisting arrest, larceny, breaking and entering, burglary or similar convictions.

Felony convictions for possession of controlled substance more than five years old with no other convictions. For convictions less than five years old if the applicant has completed a deterrence program.

Misdemeanor convictions more than five years from the date of application.

Misdemeanor convictions for possession or distribution of marijuana or controlled substances with no other convictions.

Misdemeanor convictions for simple assault (except domestic assault and assaulting a law enforcement officer), disorderly conduct, and/or trespassing.

DUI convictions where the applicant has completed VASAP or another similar program accepted by the court or DMV after the latest conviction.

This does not include felony convictions.

POLYGRAPH ADVISORY BOARD

APPLICATION REVIEW MATRIX

CRIMINAL HISTORY

Approved January 15, 2015

The following convictions will not be reviewed by the Board:

All felony convictions with no subsequent reportable convictions, unless the conviction resulted in incarceration where the release date is less than one year from the application date. This does not include convictions involving murder, manslaughter, sexual assault or any sexual crime, rape, robbery, indecent liberties, fraud, embezzlement, abduction, assaulting a law enforcement office, resisting arrest, larceny, breaking and entering, burglary or similar convictions.

Felony possession of controlled substances over five years old with no other convictions; if less than five years old, completion of a deterrence program is required.

Misdemeanor convictions over five years old from application date.

Misdemeanor possession or distribution of marijuana or controlled substances with no other convictions.

Misdemeanor convictions for simple assault (excluding domestic and law enforcement), disorderly conduct, or trespassing.

DUI convictions if the applicant completed VASAP or similar court/DMV-approved program after the latest conviction.

This excludes felony convictions.

DIRECTOR’S POLICY #100-17 POSTING INFORMATION IN PUBLIC ACCESS AREAS Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-17 Posting Information in Public Access Areas [POL401-100_17-v4] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-17 Posting Information in Public Access Areas (Effective 10/31/2011) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to identify the types of information and promotional materials that may be displayed in the Department’s public access areas.

II. POLICY STATEMENT: Only those informational materials produced by the Department of Professional and Occupational Regulation or another state, local or federal authority associated with one of the Department’s programs may be displayed in DPOR’s public access areas. All other information and items (including but not limited to awards and certificates presented to the Department) may be displayed at the Director’s discretion. The Communications Director shall coordinate the placement of information. Nothing in this policy shall permit placement of materials in any public area DPOR shares with other building tenants.

III. DEFINITIONS: Public Access Areas For the purposes of this policy, DPOR public access areas are located on the fourth floor in the reception area and the sitting area outside of the reception area, and on the first floor in the DPOR Customer Assistance suite. DPOR public access areas do not include Perimeter Center Conference Center waiting areas, hallways or rooms.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. EXCEPTIONS The following items are exempt from the criteria set forth in this policy.

1. A photograph of the governor
2. The pictorial history of the Department’s Directors
3. Employee Recognition plaques and photographs B. REQUESTS Requests to display information and promotional materials shall be submitted to the Communications Director for consideration. Only those items produced by the organizations included in the Policy Statement with the intent of increasing public awareness and/or educating regulants may be displayed in the Department’s public access areas.

C. REMOVAL OF INFORMATION AND MATERIALS Information shall be displayed until the materials are no longer current or for a length of time established by the Communications Director.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.08 13:55:45 -04'00'

DIRECTOR’S POLICY #100-17 POSTING INFORMATION IN PUBLIC ACCESS AREAS Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-17 Posting Information in Public Access Areas [POL401-100_17-v4] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-17 Posting Information in Public Access Areas (Effective 10/31/2011) Page 1 of 1

Approved By:

I. PURPOSE: This policy identifies the types of information and promotional materials allowed in the Department’s public access areas.

II. POLICY STATEMENT: Only materials produced by DPOR or other authorized government entities related to its programs may be displayed in DPOR’s public access areas. Other items, including awards and certificates, may be displayed at the Director’s discretion. The Communications Director shall coordinate placement. Materials cannot be placed in shared public areas with other tenants.

III. DEFINITIONS: DPOR public access areas are on the fourth floor (reception and sitting area outside it) and the first floor in the Customer Assistance suite. They exclude conference center waiting areas, hallways, or rooms.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. EXCEPTIONS: Items exempt from this policy’s criteria.

1. A photograph of the governor
2. The pictorial history of the Department’s Directors
3. Employee Recognition plaques and photos. B. REQUESTS: Requests to display materials must be submitted to the Communications Director. Only items from organizations in the Policy Statement, aimed at increasing public awareness or educating regulants, may be displayed in public access areas.

C. REMOVAL OF INFORMATION AND MATERIALS: Materials shall be displayed until outdated or for a period set by the Communications Director.

Digitally signed by Jay W. DeBoer, approving this document, on 2017.06.08 13:55:45 -04'00'.

Policy Title: Director’s Policy #100-14 Public Service Hours Effective: 09/24/2009

DIRECTOR’S POLICY #100-14

PUBLIC SERVICE HOURS Effective Date: September 24, 2009 Approved By:

I. PURPOSE: The purpose of this policy is to establish public service hours for the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation public service hours are 8:15 a.m. to 5:00 p.m. Monday through Friday with the exception of those days when state offices are closed due to holidays, inclement weather, emergencies, or as otherwise lawfully directed.

III. DEFINITIONS:

N/A

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. PUBLIC SERVICE HOURS ESTABLISHED BY THE DIRECTOR The Director of the Department of Professional and Occupational Regulation shall establish the Department’s public service hours in accordance with operational and customer service guidelines set for state agencies.

Submitted By: Dawn Waters, Policy, Planning & Public Records Director Guidance Document: Yes Supersedes: Director’s Policy #100-14 Public Service Hours (Effective 05/21/2003) Page 1 of 1

Jay DeBoer I am approving this document 2009.09.24 14:56:42 -04'00'

Policy Title: Director’s Policy #100-14 Public Service Hours Effective: 09/24/2009

DIRECTOR’S POLICY #100-14

PUBLIC SERVICE HOURS Effective Date: September 24, 2009 Approved By:

I. PURPOSE: This policy establishes public service hours for the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: The Department’s public service hours are 8:15 a.m. to 5:00 p.m. Monday–Friday, excluding days when state offices are closed due to holidays, weather, emergencies, or lawful directives.

III. DEFINITIONS:

N/A

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. PUBLIC SERVICE HOURS ESTABLISHED BY THE DIRECTOR The Director shall set the Department’s public service hours per operational and customer service guidelines for state agencies.

Submitted By: Dawn Waters, Policy, Planning & Public Records Director Guidance Document: Yes Supersedes: Director’s Policy #100-14 Public Service Hours (Effective 05/21/2003) Page 1 of 1

Jay DeBoer I am approving this document 2009.09.24 14:56:42 -04'00'

EXAMINATIONS POLICY #600-03 RESTRICTED PARTICIPATION IN EXAMINATION DEVELOPMENT & REVIEW Effective Date: June 3, 2014

Approved By:

I. PURPOSE: The purpose of this policy is to identify individuals who are not permitted to participate in the development or review of examinations used by or on behalf of the Department of Professional and Occupational Regulation (Department) or its policy boards.

II. POLICY STATEMENT: In order to ensure examination security and integrity, any individual affiliated with a regulated school, course or program shall not be permitted to participate in the development or review of examinations used by or on behalf of the Department or its policy boards.

III. DEFINITIONS: Regulated school, course or program Educational providers and curricula approved by the Department or its policy boards to qualify individuals for a license, certificate or registration.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. RESTRICTED PARTICIPATION The following are not permitted to participate in the development or review of examinations used by or on behalf of the Department or its policy boards:

1. Owners or employees of a regulated school, course or program, including instructors;
2. Instructors currently regulated by the Department or one of its policy boards;
3. Individuals with a contractual relationship with a regulated school, course or program;
4. Anyone disciplined by a regulatory board or agency in any jurisdiction for violation of laws and regulations related to educational services or activities; or
5. Individuals convicted of a felony or misdemeanor related to educational services or activities.

B. WAIVER OF RESTRICTION The Director of the Department may, in his sole discretion, waive the restrictions stated in this policy for good cause shown, which said cause shall be stated in writing and retained on file.

Policy Title: Examinations Policy #600-03 RESTRICTED PARTICIPATION IN EXAM DEVELOPMENT & REVIEW [POL543-600_03-v1] Effective: 06/03/2014 Submitted By: Mark Courtney, Senior Director, Regulatory & Public Affairs Guidance Document: Yes Supersedes: n/a Page 1 of 1

Digitally signed by DeBoer Jay mkw69795 Reason: I am approving this document Date: 2014.06.03 09:55:29 -04'00'

EXAMINATIONS POLICY #600-03 RESTRICTED PARTICIPATION IN EXAMINATION DEVELOPMENT & REVIEW Effective Date: June 3, 2014

Approved By:

I. PURPOSE: This policy identifies individuals barred from participating in examination development or review for the Department or its policy boards.

II. POLICY STATEMENT: To ensure exam security and integrity, individuals affiliated with a regulated school, course, or program shall not participate in exam development or review for the Department or its policy boards.

III. DEFINITIONS: Regulated school, course, or program—educational providers and curricula approved by the Department or its policy boards to qualify individuals for licensure, certification, or registration.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. RESTRICTED PARTICIPATION: The following are barred from participating in exam development or review for the Department or its policy boards:

1. Owners or employees of a regulated school, course or program, including instructors;
2. Instructors currently regulated by the Department or its policy boards;
3. Individuals with a contractual relationship with a regulated school, course or program;
4. Anyone disciplined by a regulatory board or agency for violations related to educational laws or activities; or
5. Individuals convicted of a felony or misdemeanor related to educational services or activities.

B. WAIVER OF RESTRICTION: The Department Director may waive restrictions for good cause, which must be documented in writing and retained on file.

Policy Title: Examinations Policy #600-03 RESTRICTED PARTICIPATION IN EXAM DEVELOPMENT & REVIEW [POL543-600_03-v1] Effective: 06/03/2014 Submitted By: Mark Courtney, Senior Director, Regulatory & Public Affairs Guidance Document: Yes Supersedes: n/a Page 1 of 1

Digitally signed by DeBoer Jay mkw69795 Reason: I am approving this document Date: 2014.06.03 09:55:29 -04'00'

Policy Title: Human Resources Policy #200-18 Equal Employment Opportunity Effective: 03/17/2010 Submitted By: Pratt Stelly, Human Resources Director Guidance Document: Yes Supersedes: Human Resources Policy #200-18 Equal Employment Opportunity (Effective 03/05/2010) Page 1 of 1

Approved By:

I. PURPOSE: In accordance with DHRM Policy 2.05 Equal Employment Opportunity, the purpose of this policy is to document the Department of Professional and Occupational Regulation’s commitment to EEO in all aspects of human resource management.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation shall comply with all state and federal laws pertaining to Equal Employment Opportunity and all applicable Executive Orders and Directives.

III. DEFINITIONS:

N/A IV. RELATED DOCUMENTS:  DHRM Policy 2.05 Equal Employment Opportunity  Governor’s Executive Order Number Six (2010)  Governor’s Executive Directive Number One (2010)

V. GENERAL PROVISIONS:

A. APPLICABILITY The provisions of this policy prohibit against discrimination in all aspects of the hiring process and employment practices including: hiring, demotion, promotion, role change, in-band adjustment, layoff, and transfer; application of performance management and development; application of corrective actions, including disciplinary actions; and, compensation, pay practices, and other terms, conditions, and privileges of employment.

B. MONITORING AND COMPLIANCE

1. The Human Resources Section shall monitor all aspects of DPOR human resource management to ensure compliance with all federal, state and agency EEO requirements and provisions.
2. The Human Resources Section shall investigate any allegation of discrimination by gathering information and corresponding with state and federal agencies regarding any discrimination claims.

HUMAN RESOURCES POLICY #200-18 EQUAL EMPLOYMENT OPPORTUNITY Effective Date: March 17, 2010 Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2010.03.17 14:52:26 -04'00'

Policy Title: Human Resources Policy #200-18 Equal Employment Opportunity Effective: 03/17/2010 Submitted By: Pratt Stelly, HR Director Guidance Document: Yes Supersedes: Policy #200-18 (Effective 03/05/2010) Page 1 of 1

Approved By:

I. PURPOSE: In accordance with DHRM Policy 2.05, this policy documents the Department of Professional and Occupational Regulation’s commitment to EEO in all HR aspects.

II. POLICY STATEMENT: The Department shall comply with all state and federal laws, Executive Orders, and Directives related to EEO.

III. DEFINITIONS:

N/A IV. RELATED DOCUMENTS:  DHRM Policy 2.05  Governor’s Executive Order Six (2010)  Governor’s Executive Directive One (2010)

V. GENERAL PROVISIONS:

A. APPLICABILITY This policy prohibits discrimination in hiring, demotion, promotion, role change, in-band adjustment, layoff, transfer, performance management, corrective actions, and employment terms.

B. MONITORING AND COMPLIANCE

1. The Human Resources Section shall monitor all DPOR HR management to ensure compliance with federal, state, and agency EEO requirements.
2. The Human Resources Section shall investigate discrimination allegations by gathering information and coordinating with relevant agencies.

HUMAN RESOURCES POLICY #200-18 EQUAL EMPLOYMENT OPPORTUNITY Effective Date: March 17, 2010 Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2010.03.17 14:52:26 -04'00'

LICENSING & REGULATION POLICY #300-02 APPLICATION & APPLICATION FEE EXPIRATION Effective Date: July 1, 2018 Policy Title: Licensing & Regulation Policy #300-02 Application & Application Fee Expiration [POL427-300_02-v3] Effective: 07/01/2018 Submitted By: Mary Broz-Vaughan, Deputy Director of Communications & Board Operations Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-02 Application & Application Fee Expiration (Effective 10/31/2011) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to document the length of time license applications are valid.

II. POLICY STATEMENT: Unless otherwise stated in Department or Board regulations, initial and reinstatement applications for licensure, certification or registration shall be valid for one year from the date the application is received by the Department of Professional and Occupational Regulation (DPOR). If the requested authorization to practice the profession or occupation is not granted within the period established by this policy, the application shall expire.

III. DEFINITIONS: Application For the purposes of this policy only, applications shall include applications for initial licensure, certification or registration; applications for reinstatement of licensure, certification or registration; and all required supplemental documentation and fees. Renewal applications are excluded from the provisions of this policy.

IV. RELATED DOCUMENTS:

N/A V. GENERAL PROVISIONS: A. Unless otherwise stated in Department or Board regulations, initial and reinstatement applications for licensure, certification or registration shall expire one year from the date the application is received by the Department.

B. Fees associated with unexpired reinstatement applications shall be assessed once per transaction (decision to approve or deny). This includes reinstatement applications valid for more than one year pursuant to Department or Board regulations.

C. Application and reinstatement fees associated with unexpired applications may be transferred to another application in the same board or regulatory program at the Board’s discretion. This includes updated applications requested by the Board or regulatory program.

D. Application and reinstatement fees for expired applications are nonrefundable and shall not be applied or transferred to another application.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.26 14:35:24 -04'00'

LICENSING & REGULATION POLICY #300-02 APPLICATION & APPLICATION FEE EXPIRATION Effective Date: July 1, 2018 Policy Title: Licensing & Regulation Policy #300-02 Application & Application Fee Expiration [POL427-300_02-v3] Effective: 07/01/2018 Submitted By: Mary Broz-Vaughan, Deputy Director of Communications & Board Operations Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-02 Application & Application Fee Expiration (Effective 10/31/2011) Page 1 of 1

Approved By:

I. PURPOSE: This policy documents the validity period of license applications.

II. POLICY STATEMENT: Unless regulations specify otherwise, initial and reinstatement applications are valid for one year from receipt by DPOR; if not granted within this period, they expire.

III. DEFINITIONS: For this policy, applications include initial, reinstatement, supplemental documentation, and fees; renewal applications are excluded.

IV. RELATED DOCUMENTS:

N/A V. GENERAL PROVISIONS: Unless regulations specify otherwise, initial and reinstatement applications expire one year from receipt.

B. Fees for unexpired reinstatement applications are assessed once per decision, including those valid over one year per regulations.

C. Unexpired application and reinstatement fees may be transferred to another application within the same board or program at the Board’s discretion, including updates.

D. Fees for expired applications are nonrefundable and cannot be transferred or applied elsewhere.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.26 14:35:24 -04'00'

FINANCE POLICY #700-04 REVENUE REFUNDS Effective Date: July 1, 2018 Policy Title: Finance Policy #700-04 Revenue Refunds [POL405-700_04-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-04 Revenue Refunds (Effective 02/10/2012) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to establish guidelines for refunding fees and other monies paid to the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation shall process revenue refunds in an accurate and timely manner and in accordance with state policy and Board regulations.

III. DEFINITIONS: Overpayment A payment that exceeds the amount due to the Department.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. REVENUE REFUNDS

1. The Department shall issue refunds for overpayments of fees and monetary penalties.
2. The Department shall issue refunds for Contractor and Real Estate Transaction Recovery Fund assessments and Appraiser National Registry fees collected from applicants not granted a license.
3. Application fees for licenses, certifications, and registrations and renewal fees are non-refundable.
4. The Finance Section shall process refund requests in accordance with state procedures. a. All checks will be made payable to the regulant regardless of who paid the fee. However, refunds of overpayments may be made to the payer if the payment was for the benefit of more than one regulant. b. Non-regulant refunds shall be made to the original payer. c. Checks will be mailed to the address of record unless different mailing instructions are submitted with the refund request. d. Overpayments made with a credit card shall be refunded to the credit card. Overpayments more than 180 days old will be refunded by check.
5. Whenever a refund request from a regulant is not authorized, the section that received the refund request shall be responsible for informing the regulant.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.17 11:31:16 -04'00'

FINANCE POLICY #700-04 REVENUE REFUNDS Effective Date: July 1, 2018 Policy Title: Finance Policy #700-04 Revenue Refunds [POL405-700_04-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-04 Revenue Refunds (Effective 02/10/2012) Page 1 of 1

Approved By:

I. PURPOSE: This policy establishes guidelines for refunding fees and monies paid to the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: The Department shall process revenue refunds accurately, timely, and in accordance with state policy and Board regulations.

III. DEFINITIONS: Overpayment A payment that exceeds the amount due to the Department.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. REVENUE REFUNDS

1. The Department shall refund overpayments of fees and penalties.
2. The Department shall refund Contractor and Real Estate Recovery Fund assessments and Appraiser Registry fees from applicants not licensed.
3. Application fees for licenses, certifications, registrations, and renewals are non-refundable.
4. The Finance Section shall process refunds per state procedures: a. Checks payable to the regulant; overpayment refunds may go to the payer if for multiple regulants. b. Non-regulant refunds go to the original payer. c. Checks mailed to record address unless instructions differ. d. Credit card overpayments refunded to card; over 180 days old by check.
5. If a regulant's refund request is denied, the receiving section must inform the regulant.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.17 11:31:16 -04'00'

ADMINISTRATION POLICY #500-02 CONTRACT AND PURCHASE ORDER MODIFICATIONS Effective Date: July 1, 2018

Policy Title: Administration Policy #500-02 Contract and Purchase Order Modifications [POL410-500_02-v3] Effective: 07/01/2018 Submitted By: Cassandra Lewis, Administration and Financial Services Director Guidance Document: Yes Supersedes: Administration Policy #500-02 Contract and Purchase Order Modifications (Effective 01/01/2017) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to establish agency restrictions on contract and purchase order modifications.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation (DPOR) shall comply with the requirements of Chapters 3.5, 10.12, and 14.4 of the DPS Agency Procurement and Surplus Property Manual (APSPM), Chapter 10 of the Virginia Information Technologies Agency IT Procurement Manual (ITPM) and §2.2-4309 of the Code of Virginia as it relates to contract modifications and purchase order changes.

A change order shall be processed for all issued purchase orders when requested by the supplier, or when the invoiced dollar value is greater or less than 10% of the total purchase order value.

III. DEFINITIONS: Contract An agreement enforceable by law, between two or more competent parties, to do or not to do something, not prohibited by law, for consideration. A contract is any type of agreement or order for the procurement of goods or services.

Purchase Order A document used to execute a purchase transaction with a vendor. It serves as a notice to a vendor that an award has been made and that performance can be initiated under the terms and conditions of the contract. It includes a description of what good/service is ordered, how much is needed, and what it will cost. A PO is a legal offer to buy goods and services.

IV. RELATED DOCUMENTS:  DPS Agency Procurement & Surplus Property Manual (APSPM)  Virginia Information Technologies Agency IT Procurement Manual (ITPM)  § 2.2-4309 of the Code of Virginia  Commonwealth of Virginia Vendors Manual V. GENERAL PROVISIONS: A supplier may request a contract modification or purchase order change by contacting the contract administrator or the DPOR Procurement Office. Any request to change contract price, quality, quantity, delivery or cancellation will be evaluated for validity and price reasonableness. The supplier will receive approved changes through Virginia’s eProcurement portal (eVA) or by other written notification.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.06 10:25:10 -04'00'

ADMINISTRATION POLICY #500-02 CONTRACT AND PURCHASE ORDER MODIFICATIONS Effective Date: July 1, 2018

Policy Title: Administration Policy #500-02 Contract and Purchase Order Modifications [POL410-500_02-v3] Effective: 07/01/2018 Submitted By: Cassandra Lewis, Administration and Financial Services Director Guidance Document: Yes Supersedes: Administration Policy #500-02 (Effective 01/01/2017) Page 1 of 1

Approved By:

I. PURPOSE: This policy establishes agency restrictions on contract and purchase order modifications.

II. POLICY STATEMENT: DPOR shall comply with Chapters 3.5, 10.12, 14.4 of the DPS APSPM, Chapter 10 of the Virginia IT Procurement Manual (ITPM), and §2.2-4309 of the Virginia Code regarding contract modifications and purchase order changes.

A change order shall be processed for all purchase orders when requested by the supplier or if the invoiced amount exceeds or is less than 10% of the total value.

III. DEFINITIONS: Contract An agreement enforceable by law, between two or more competent parties, to do or not to do something, not prohibited by law, for consideration. A contract is any type of agreement or order for the procurement of goods or services.

Purchase Order A document used to execute a purchase transaction with a vendor. It serves as a notice to a vendor that an award has been made and that performance can be initiated under the terms and conditions of the contract. It includes a description of what good/service is ordered, how much is needed, and what it will cost. A PO is a legal offer to buy goods and services.

IV. RELATED DOCUMENTS:  DPS Agency Procurement & Surplus Property Manual (APSPM)  Virginia Information Technologies Agency IT Procurement Manual (ITPM)  § 2.2-4309 of the Code of Virginia  Commonwealth of Virginia Vendors Manual V. GENERAL PROVISIONS: A supplier may request a contract modification or purchase order change by contacting the contract administrator or the DPOR Procurement Office. Any request to change contract price, quality, quantity, delivery or cancellation will be evaluated for validity and price reasonableness. The supplier will receive approved changes through Virginia’s eProcurement portal (eVA) or by other written notification.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.06 10:25:10 -04'00'

EXAMINATION POLICY #600-01 EXAMINATION FEES Effective Date: October 17, 2018 Policy Title: Examinations Policy #600-01 Examination Fees [POL543-600_01-v7] Effective: 10/17/2018 Submitted By: Shannon Webster, Director of Education and Examinations Guidance Document: Yes Supersedes: Examinations Policy #600-01 Examination Fees (Effective 03/17/2010) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to ensure accurate and consistent handling of examination fees received by the Department of Professional and Occupational Regulation (DPOR).

II. POLICY STATEMENT: The Department shall utilize consistent and objective standards in handling examination fees. This policy applies only to those fees collected for examinations administered in-house. This policy does not apply to fees paid directly to vendors under contract with DPOR.

III. DEFINITIONS: Extenuating Circumstances For the purposes of this policy, extenuating circumstances refer to specific events, conditions, or situations beyond the candidate’s control (e.g., hospitalization, short-term disability, death or illness in the candidate’s family, or a call to active duty in the United States military).

IV. RELATED DOCUMENTS:

N/A V. GENERAL PROVISIONS: A. All examination fees are non-refundable and due on or before the applicable examination fee deadline. Examination fees received are applied to the upcoming scheduled administration unless a candidate explicitly requests approval to apply for a different administration date.

B. Candidates whose fees are received after the examination fee deadline shall automatically be scheduled for the next regular examination administration.

C. A candidate whose examination fee is received past the deadline shall not be eligible to sit for that administration unless the Director of Education and Examinations, in his sole discretion, grants a waiver based on evidence of extenuating circumstances.

D. Fees paid for a scheduled examination for which a candidate fails to appear shall be forfeited, unless the candidate requests a one-time approval to apply the missed examination fees to the next regularly scheduled administration. Approval will be granted only upon evidence of extenuating circumstances. If approved, examination fees will only be forwarded once to the next scheduled examination date.

E. All examination fees shall remain active for one year from the date of receipt by the Department or until the examination is administered, whichever occurs first. After that time, all fees shall be forfeited.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.10.18 12:10:10 -04'00'

EXAMINATION POLICY #600-01 EXAMINATION FEES Effective Date: October 17, 2018 Policy Title: Examinations Policy #600-01 Examination Fees [POL543-600_01-v7] Effective: 10/17/2018 Submitted By: Shannon Webster, Director of Education and Examinations Guidance Document: Yes Supersedes: Examinations Policy #600-01 Examination Fees (Effective 03/17/2010) Page 1 of 1

Approved By:

I. PURPOSE: This policy ensures accurate, consistent handling of examination fees received by DPOR.

II. POLICY STATEMENT: The Department shall utilize consistent and objective standards in handling examination fees. This policy applies only to those fees collected for examinations administered in-house. This policy does not apply to fees paid directly to vendors under contract with DPOR.

III. DEFINITIONS: Extenuating circumstances are events beyond the candidate’s control, such as hospitalization, short-term disability, family illness, or active military duty.

IV. RELATED DOCUMENTS:

N/A V. GENERAL PROVISIONS: A. All examination fees are non-refundable and due on or before the applicable examination fee deadline. Examination fees received are applied to the upcoming scheduled administration unless a candidate explicitly requests approval to apply for a different administration date.

B. Fees received after the deadline will automatically schedule candidates for the next exam.

C. Late fee receipt disqualifies a candidate unless the Director grants a waiver for extenuating circumstances.

D. Fees paid for a scheduled examination for which a candidate fails to appear shall be forfeited, unless the candidate requests a one-time approval to apply the missed examination fees to the next regularly scheduled administration. Approval will be granted only upon evidence of extenuating circumstances. If approved, examination fees will only be forwarded once to the next scheduled examination date.

E. All examination fees shall remain active for one year from the date of receipt by the Department or until the examination is administered, whichever occurs first. After that time, all fees shall be forfeited.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.10.18 12:10:10 -04'00'

EXAMINATIONS POLICY #600-03 RESTRICTED PARTICIPATION IN EXAMINATION DEVELOPMENT & REVIEW Effective Date: June 3, 2014

Approved By:

I. PURPOSE: The purpose of this policy is to identify individuals who are not permitted to participate in the development or review of examinations used by or on behalf of the Department of Professional and Occupational Regulation (Department) or its policy boards.

II. POLICY STATEMENT: In order to ensure examination security and integrity, any individual affiliated with a regulated school, course or program shall not be permitted to participate in the development or review of examinations used by or on behalf of the Department or its policy boards.

III. DEFINITIONS: Regulated school, course or program Educational providers and curricula approved by the Department or its policy boards to qualify individuals for a license, certificate or registration.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. RESTRICTED PARTICIPATION The following are not permitted to participate in the development or review of examinations used by or on behalf of the Department or its policy boards:

1. Owners or employees of a regulated school, course or program, including instructors;
2. Instructors currently regulated by the Department or one of its policy boards;
3. Individuals with a contractual relationship with a regulated school, course or program;
4. Anyone disciplined by a regulatory board or agency in any jurisdiction for violation of laws and regulations related to educational services or activities; or
5. Individuals convicted of a felony or misdemeanor related to educational services or activities.

B. WAIVER OF RESTRICTION The Director of the Department may, in his sole discretion, waive the restrictions stated in this policy for good cause shown, which said cause shall be stated in writing and retained on file.

Policy Title: Examinations Policy #600-03 RESTRICTED PARTICIPATION IN EXAM DEVELOPMENT & REVIEW [POL543-600_03-v1] Effective: 06/03/2014 Submitted By: Mark Courtney, Senior Director, Regulatory & Public Affairs Guidance Document: Yes Supersedes: n/a Page 1 of 1

Digitally signed by DeBoer Jay mkw69795 Reason: I am approving this document Date: 2014.06.03 09:55:29 -04'00'

EXAMINATIONS POLICY #600-03 RESTRICTED PARTICIPATION IN EXAMINATION DEVELOPMENT & REVIEW Effective Date: June 3, 2014

Approved By:

I. PURPOSE: This policy identifies individuals barred from participating in examination development or review for the Department or its policy boards.

II. POLICY STATEMENT: To ensure examination security and integrity, individuals affiliated with a regulated school, course, or program shall not participate in examination development or review for the Department or its policy boards.

III. DEFINITIONS: Regulated school, course, or program—educational providers and curricula approved by the Department or its policy boards to qualify individuals for licensure, certification, or registration.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. RESTRICTED PARTICIPATION: The following are not permitted to participate in examination development or review for the Department or its policy boards:

1. Owners or employees of a regulated school, course or program, including instructors;
2. Instructors currently regulated by the Department or one of its policy boards;
3. Individuals with a contractual relationship with a regulated school, course or program;
4. Anyone disciplined by a regulatory board or agency in any jurisdiction for violation of laws and regulations related to educational services or activities; or
5. Individuals convicted of a felony or misdemeanor related to educational services or activities.

B. WAIVER OF RESTRICTION: The Department Director may waive restrictions for good cause, which must be in writing and retained on file.

Policy Title: Examinations Policy #600-03 RESTRICTED PARTICIPATION IN EXAM DEVELOPMENT & REVIEW [POL543-600_03-v1] Effective: 06/03/2014 Submitted By: Mark Courtney, Senior Director, Regulatory & Public Affairs Guidance Document: Yes Supersedes: n/a Page 1 of 1

Digitally signed by DeBoer Jay mkw69795 Reason: I am approving this document Date: 2014.06.03 09:55:29 -04'00'

LICENSING & REGULATION POLICY #300-03 EXPEDITED LICENSING OF MILITARY SPOUSES Effective Date: October 7, 2016 Policy Title: Licensing & Regulation Policy #300-03 Expedited Licensing of Military Spouses [POL406-300_03-v4] Effective: 10/07/2016 Submitted By: Mary Broz-Vaughan, Communications Director Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-03 Expedited Licensing of Military Spouses (Effective 07/01/2016) Page 1 of 1

Approved By:

I.

PURPOSE: The purpose of this policy is to document the requirements that must be met for military spouses to qualify for expedited processing of license applications under the provisions of § 54.1-119 of the Code of Virginia.

II. POLICY STATEMENT: Pursuant to § 54.1-119 of the Code of Virginia, the Department of Professional and Occupational Regulation shall expedite the processing of applications for military spouses that meet the qualifications set forth in statute.

III. DEFINITIONS: Expedited processing Processing of applications under the provisions of § 54.1-119 of the Code of Virginia is performed as soon as practicable and not based on order of receipt.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. APPLICABILITY This policy applies to those applicants who hold a license, certificate, registration, permit or other authorization in another jurisdiction where the Virginia Board has deemed the entry requirements to be substantially equivalent to those in Virginia.

B. REQUIREMENTS The Department shall expedite the processing of applications for individuals that meet the following criteria.

1. The applicant shall submit a complete application.
2. The applicant must hold the same or similar license, certificate, registration, permit, or other authorization required for the practice of any business, profession or occupation issued by another jurisdiction based on requirements in such other jurisdiction that are substantially equivalent to those required in Virginia.
3. The applicant shall not have engaged in any act that would constitute grounds for disciplinary action.
4. The applicant’s spouse must be the subject of a military transfer to the Commonwealth of Virginia.
5. If the board is unable to complete the review of the documentation provided by the applicant or make a final determination regarding substantial equivalency within 20 days of receipt of a completed application, the board shall issue a temporary license, permit or certificate provided the applicant otherwise meets the qualifications set forth in subsection A of §54.1-119 of the Code of Virginia. A temporary license, permit or certificate shall be valid for twelve months or until the permanent license, permit or certificate is issued, whichever occurs first. Temporary licenses, permits or certificates shall not be renewed or reinstated.

C. NON-QUALIFIED APPLICANTS Applicants applying under the provisions of §54.1-119 of the Code of Virginia that do not appear to meet all requirements for expedited processing shall have their application reviewed, receive notification of deficiencies and be scheduled for any administrative proceedings in an expeditious manner.

D. EXEMPTIONS The provisions of §54.1-119 of the Code of Virginia do not apply to Branch Pilot licenses issued by other jurisdictions as they are not deemed substantially equivalent.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2016.10.07 15:00:50 -04'00'

LICENSING & REGULATION POLICY #300-03 EXPEDITED LICENSING OF MILITARY SPOUSES Effective Date: October 7, 2016 Policy Title: Licensing & Regulation Policy #300-03 Expedited Licensing of Military Spouses [POL406-300_03-v4] Effective: 10/07/2016 Submitted By: Mary Broz-Vaughan, Communications Director Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-03 Expedited Licensing of Military Spouses (Effective 07/01/2016) Page 1 of 1

Approved By:

I.

PURPOSE: This policy documents requirements for military spouses to qualify for expedited license processing under § 54.1-119 of the Virginia Code.

II. POLICY STATEMENT: Pursuant to § 54.1-119, the Department shall expedite applications for military spouses meeting statutory qualifications.

III. DEFINITIONS: Expedited processing under § 54.1-119 is performed as soon as practicable, not by receipt order.

IV. RELATED DOCUMENTS: n/a

V. GENERAL PROVISIONS:

A. APPLICABILITY: This policy applies to applicants holding a license, certificate, registration, permit, or authorization in another jurisdiction deemed substantially equivalent by the Virginia Board.

B. REQUIREMENTS: The Department shall expedite applications for individuals meeting the criteria.

1. The applicant shall submit a complete application.
2. The applicant must hold a license, certificate, registration, permit, or authorization from another jurisdiction with requirements substantially equivalent to Virginia's.
3. The applicant shall not have engaged in acts grounds for disciplinary action.
4. The applicant’s spouse must be transferred to Virginia for military reasons.
5. If review isn't complete within 20 days, the board shall issue a temporary license, valid for 12 months or until permanent issuance, which cannot be renewed or reinstated, if qualifications are met.

C. NON-QUALIFIED APPLICANTS: Applications not meeting requirements will be reviewed, deficiencies notified, and scheduled for administrative proceedings promptly.

D. EXEMPTIONS: §54.1-119 does not apply to Branch Pilot licenses issued elsewhere, as they are not deemed substantially equivalent.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2016.10.07 15:00:50 -04'00'

Policy Title: Compliance & Investigations #800-02 Filing of Complaints Against Regulants Effective: 03/05/2010 Submitted By: David Dorner, Investigations Director Guidance Document: Yes Supersedes: Enforcement #800-02 Filing of Complaints Against Regulants (Effective 02/10/2003) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to establish Department of Professional and Occupational Regulation guidelines for receiving complaints filed against regulants.

II. POLICY STATEMENT: Complaints against DPOR regulants shall be handled in accordance with § 54.1-307.1 of the Code of Virginia. The Department shall consider a complaint sufficient when the alleged facts, if shown to be true, would constitute a violation of law or regulation of any regulatory board within Subtitle II of Title 54.1 of the Code of Virginia or any of the programs which may be in another title of the Code for which any regulatory board within Subtitle II has enforcement responsibility.

III. DEFINITIONS:

N/A

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. COMPLAINT FILING DEADLINES In order to be investigated by the Department, complaints shall be filed in accordance with the provisions of § 54.1-307.1 of the Code of Virginia.

B. COMPLAINT FORMAT REQUIREMENTS

1. All complaints shall be submitted in writing except for: a. Situations where the complainant indicates that filing a written complaint will impose a hardship b. Life-threatening situations or situations that have resulted (or have the potential to result) in harm, personal injury or loss to a consumer or the public c. When the Department becomes aware of information indicating that a regulant has engaged in criminal activity that a regulatory board, through its regulations and applicable statutes, has determined may be related to the practice of the profession or occupation, for which disciplinary action may be taken.
2. Anonymous complaints may be accepted.

C. SOURCES OF COMPLAINTS

1. Information obtained from the media or other public source or from any court or other public record/document shall be deemed equivalent to a written complaint.
2. Written or verbal complaints resulting from information submitted to or obtained by any sworn investigator of the Compliance and Investigations Division indicating that a regulant has violated or is about to violate a law or regulation shall be accepted.
3. Written or verbal complaints submitted by other law enforcement or regulatory agencies shall be accepted.

COMPLIANCE & INVESTIGATIONS POLICY #800-02 FILING OF COMPLAINTS AGAINST REGULANTS Effective Date: March 5, 2010 Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2010.03.05 15:47:24 -05'00'

Policy Title: Compliance & Investigations #800-02 Filing of Complaints Against Regulants Effective: 03/05/2010 Submitted By: David Dorner, Investigations Director Guidance Document: Yes Supersedes: Enforcement #800-02 Filing of Complaints Against Regulants (Effective 02/10/2003) Page 1 of 1

Approved By:

I. PURPOSE: This policy establishes DPOR guidelines for receiving complaints against regulants.

II. POLICY STATEMENT: Complaints against DPOR regulants shall follow § 54.1-307.1 of the Virginia Code. A complaint is sufficient if true facts would violate law or regulation of any Subtitle II board or related program.

III. DEFINITIONS:

N/A

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. COMPLAINT FILING DEADLINES: Complaints must be filed per § 54.1-307.1 of Virginia Code for investigation.

B. COMPLAINT FORMAT REQUIREMENTS

1. All complaints must be written unless: a. hardship prevents writing b. life-threatening or harm situations c. Department learns of criminal activity related to practice for disciplinary action.
2. Anonymous complaints may be accepted.

C. SOURCES OF COMPLAINTS

1. Media, public sources, or court records are equivalent to written complaints.
2. Written or verbal complaints from investigators indicating violations or imminent violations shall be accepted.
3. Complaints from law enforcement or regulatory agencies shall be accepted.

COMPLIANCE & INVESTIGATIONS POLICY #800-02 FILING OF COMPLAINTS AGAINST REGULANTS Effective Date: March 5, 2010 Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2010.03.05 15:47:24 -05'00'

LICENSING & REGULATION POLICY #300-11 REGULANT NAME & ADDRESS CHANGES Effective Date: June 13, 2017 Policy Title: Licensing & Regulation Policy #300-01 Regulant Name & Address Changes [POL406-300_01-v7] Effective: 06/13/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-01 Regulant Name & Address Changes (Effective 10/09/2009) Page 1 of 1

Approved By:

I. PURPOSE: The purpose of this policy is to ensure consistent processing of name and address changes received by the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: DPOR shall accurately record all requests for name and address changes in a timely manner and in accordance with established EAGLES address definitions, licensing and enforcement systems data entry standards, and United States Postal Service Address Standards.

III. DEFINITIONS:

N/A IV. RELATED DOCUMENTS:  Data Entry Standards  USPS Address Standards

V. GENERAL PROVISIONS:

A. WRITTEN REQUESTS REQUIRED

1. Name and address change requests may be submitted by mail (including e-mail) or facsimile on a DPOR Name Change Form, DPOR Address Change Form or other written format. On-line address changes may be performed by the regulant on the Department’s website. Telephone requests for name and address changes shall not be accepted.
2. Individual name change requests must be accompanied by a copy of a marriage certificate, divorce decree, court order, or other official documentation that provides legal proof of the name change.
3. Business name change requests must be accompanied by all information required by the appropriate board regulations for changing a business name (based on State Corporation Commission or locality business requirements).

B. REQUESTS NOT INITIALLY RECEIVED BY THE APPROPRIATE LICENSING SECTION

1. Any regulatory board receiving a request for a name and/or address change not related to the profession or occupation handled by that section shall forward the request to the appropriate licensing section for processing.
2. Compliance and Investigations Division personnel who determine that a regulant’s name, main address and/or physical location is different from the name and address of record shall inform the regulant that a written request for the change with required documentation must be submitted to the appropriate licensing section at the Department of Professional and Occupational Regulation. The licensee’s record shall be changed only upon receipt of written notification.
3. Name and/or address changes submitted to the Education and Examinations Section will be posted to the candidate’s record, then forwarded to the appropriate licensing section to ensure three-year retention in the section’s daily files.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.14 15:13:48 -04'00'

LICENSING & REGULATION POLICY #300-11 REGULANT NAME & ADDRESS CHANGES Effective Date: June 13, 2017 Policy Title: Licensing & Regulation Policy #300-01 Regulant Name & Address Changes [POL406-300_01-v7] Effective: 06/13/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Licensing & Regulation Policy #300-01 Regulant Name & Address Changes (Effective 10/09/2009) Page 1 of 1

Approved By:

I. PURPOSE: To ensure consistent processing of name and address changes received by DPOR.

II. POLICY STATEMENT: DPOR shall record all name and address change requests promptly per EAGLES, licensing, enforcement, and USPS standards.

III. DEFINITIONS:

N/A IV. RELATED DOCUMENTS: Data Entry Standards, USPS Address Standards

V. GENERAL PROVISIONS:

A. WRITTEN REQUESTS REQUIRED

1. Name and address change requests may be submitted by mail (including e-mail) or facsimile on a DPOR Name Change Form, DPOR Address Change Form or other written format. On-line address changes may be performed by the regulant on the Department’s website. Telephone requests for name and address changes shall not be accepted.
2. Individual name change requests must include legal proof (e.g., marriage certificate, court order).
3. Business name change requests must include all info required by board regulations or local authorities.

B. REQUESTS NOT INITIALLY RECEIVED BY THE APPROPRIATE LICENSING SECTION

1. Boards receiving unrelated name/address change requests shall forward them to the appropriate licensing section.
2. Compliance and Investigations Division personnel who determine that a regulant’s name, main address and/or physical location is different from the name and address of record shall inform the regulant that a written request for the change with required documentation must be submitted to the appropriate licensing section at the Department of Professional and Occupational Regulation. The licensee’s record shall be changed only upon receipt of written notification.
3. Changes submitted to Education and Examinations will be posted to the candidate’s record and forwarded to ensure three-year retention.

Digitally signed by Jay W. DeBoer, Date: 2017.06.14 15:13:48 -04'00'

Policy Title: Director’s Policy #100-18 Alternative Dispute Resolution Effective: 09/25/2009

DIRECTOR’S POLICY #100-18

ALTERNATIVE DISPUTE RESOLUTION Effective Date: September 25, 2009 Approved By:

I. PURPOSE: The Commonwealth of Virginia recognizes that a fundamental function of government is collaborative problem solving, including the fair and efficient management of conflict and resolution of disputes. Litigation and other adversarial means of dispute resolution, while necessary at times, are costly in terms of dollars, human resources, and good will. §§ 2.2-4115-4119 of the Code of Virginia, the Virginia Administrative Dispute Resolution Act (VADRA) establishes an alternative, non-adversarial means of addressing stakeholder concerns while minimizing the costs associated with conflict management and dispute resolution.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation is committed to utilizing stakeholder collaboration and alternative dispute resolution processes, as appropriate and as set forth in the Virginia Administrative Dispute Resolution Act, as means by which the Department and affected parties may attempt to achieve mutually-agreed upon settlements of matters in controversy without incurring the costs associated with adversarial proceedings.

The VADRA Interagency Council shall serve as a resource for consultation and guidance.

III. DEFINITIONS: Alternative Dispute Resolution (ADR) A structured, non-adversarial approach (e.g., mediation, conciliation) to reaching a voluntary settlement between disputing parties, which is facilitated by a neutral party.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. DESIGNATION OF AGENCY DISPUTE RESOLUTION COORDINATOR

1. The Director shall designate a Dispute Resolution Coordinator (DRC) for the Department, and authorize him or her to attend DRC training provided by the VADRA Council. The Department’s Alternative Dispute Resolution Director may be designated as the agency Dispute Resolution Coordinator or may be asked to recommend another employee to the Director. In the event that the ADR Director does not serve as the DRC, the DRC shall report the information obtained during DRC training and meetings to the ADR Director.
2. The ADR Director, with the Director’s approval, shall be responsible for developing agency dispute resolution procedures and training agency personnel involved in implementing any written ADR procedures.

B. INTEGRATION OF ADR INTO DEPARTMENT OPERATIONS The Department shall conduct an annual review of its Strategic Plan, as well as its policies, procedures, operations, fiscal resources, and regulations to identify new opportunities for adopting collaborative practices and alternative dispute resolution processes.

Submitted By: Carol Mitchell, Alternative Dispute Resolution Director Guidance Document: Yes/No Supersedes: Director’s Policy #100-18 Alternative Dispute Resolution (Effective 05/23/2005) Page 1 of 2

Jay DeBoer I am approving this document 2009.09.25 15:32:42 -04'00'

Policy Title: Director’s Policy #100-18 Alternative Dispute Resolution Effective: 09/25/2009 Submitted By: Carol Mitchell, Alternative Dispute Resolution Director Guidance Document: Yes/No Supersedes: Director’s Policy #100-18 Alternative Dispute Resolution (Effective 05/23/2005) Page 2 of 2

C. VADRA COUNCIL

1. The Department shall cooperate with and provide assistance to the VADRA Council as requested, including providing periodic reports on the agency’s activities and any associated outcomes resulting from its efforts to promote and use collaborative practices, conflict management techniques, and alternative dispute resolution processes.
2. The Department shall acknowledge the VADRA Council as a resource for: a. training and briefing sessions b. information and technical assistance in the development and use of such practices in state government c. promoting networking among agency DRCs statewide d. coordinating and collaborating with similar initiatives in other states

Policy Title: Director’s Policy #100-18 Alternative Dispute Resolution Effective: 09/25/2009

DIRECTOR’S POLICY #100-18

ALTERNATIVE DISPUTE RESOLUTION Effective Date: September 25, 2009 Approved By:

I. PURPOSE: The Commonwealth of Virginia recognizes that a fundamental function of government is collaborative problem solving, including the fair and efficient management of conflict and resolution of disputes. Litigation and other adversarial means of dispute resolution, while necessary at times, are costly in terms of dollars, human resources, and good will. §§ 2.2-4115-4119 of the Code of Virginia, the Virginia Administrative Dispute Resolution Act (VADRA) establishes an alternative, non-adversarial means of addressing stakeholder concerns while minimizing the costs associated with conflict management and dispute resolution.

II. POLICY STATEMENT: The Department commits to stakeholder collaboration and ADR processes per VADRA to achieve mutually agreed settlements without adversarial costs.

The VADRA Interagency Council shall serve as a resource for guidance.

III. DEFINITIONS: Alternative Dispute Resolution (ADR) is a structured, non-adversarial approach (e.g., mediation, conciliation) to voluntary settlements facilitated by a neutral party.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. DESIGNATION OF AGENCY DISPUTE RESOLUTION COORDINATOR

1. The Director shall designate a Dispute Resolution Coordinator (DRC) for the Department, and authorize him or her to attend DRC training provided by the VADRA Council. The Department’s Alternative Dispute Resolution Director may be designated as the agency Dispute Resolution Coordinator or may be asked to recommend another employee to the Director. In the event that the ADR Director does not serve as the DRC, the DRC shall report the information obtained during DRC training and meetings to the ADR Director.
2. The ADR Director, with approval, shall develop agency dispute resolution procedures and train personnel involved in implementing them.

B. INTEGRATION OF ADR INTO DEPARTMENT OPERATIONS: The Department shall annually review its Strategic Plan, policies, procedures, operations, resources, and regulations to identify new ADR opportunities.

Submitted By: Carol Mitchell, ADR Director. Guidance Document: Yes/No. Supersedes: Director’s Policy #100-18 (Effective 05/23/2005) Page 1 of 2

Jay DeBoer I am approving this document 2009.09.25 15:32:42 -04'00'

Policy Title: Director’s Policy #100-18 Alternative Dispute Resolution Effective: 09/25/2009. Submitted By: Carol Mitchell, ADR Director. Guidance Document: Yes/No. Supersedes: Director’s Policy #100-18 (Effective 05/23/2005) Page 2 of 2

C. VADRA COUNCIL

1. The Department shall cooperate with and assist the VADRA Council, providing periodic reports on activities and outcomes related to collaborative practices, conflict management, and ADR.
2. The Department shall acknowledge the VADRA Council as a resource for: a. training and briefings; b. info and technical assistance; c. promoting networking among agency DRCs; d. coordinating with similar initiatives in other states.

COMPLIANCE & INVESTIGATIONS POLICY #800-01 CRIMINAL HISTORY & ONLINE PUBLIC RECORDS INFORMATION Effective Date: June 13, 2011

Policy Title: Compliance & Investigations Policy #800-01 Criminal History & OL Public Records [POL700-800_01-v1] Effective: 06/13/2011 Submitted By: Mark Courtney, Deputy Director Licensing & Regulation Division Guidance Document: Yes Supersedes: Compliance & Investigations Policy #800-01 Criminal History Information (Effective 03/05/2010) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to establish guidelines for requesting and handling criminal history and public records information in compliance with federal/state laws and applicable information system service/security agreements.

II. POLICY STATEMENT: The Compliance and Investigations Division of the Department of Professional and Occupational Regulation is authorized to enforce laws and conduct criminal investigations within its jurisdiction (§ 19.2-389 of the Code of Virginia). Pursuant to § 54.1-306 of the Code of Virginia, the Director and investigators are authorized to request and receive criminal history and public records information from Central Criminal Records Exchange (CCRE), Virginia Criminal Information Network (VCIN), National Crime Information Center (NCIC), the Interstate Identification Index (III) files, and the LexisNexis ® Accurint ® Public Records System. In addition, select Licensing and Regulation Division personnel are authorized to utilize the LexisNexis ® Public Records Depository for information verification purposes only.

III. DEFINITIONS: Criminal History Information Information regarding arrests and disposition received from the Central Criminal Records Exchange (CCRE), other state central bureaus, the FBI and other law enforcement agencies.

IV. RELATED DOCUMENTS:  DPOR IT Policy #400-03 Information Technology Security Program  Information Security Access Agreement

V. GENERAL PROVISIONS:

A. REQUESTS FOR CRIMINAL HISTORY INFORMATION

1. All Department of Professional and Occupational Regulation employees and consultants are required to sign an Information Security Access Agreement in accordance with Information Technology Policy #400-03, Information Technology Security Program.
2. Investigators may use criminal history information during a criminal investigation. Investigations are deemed criminal in nature until a determination has been made to proceed under the Administrative Process Act (APA) for a case decision. Matters of a criminal nature arising after an APA case decision shall be reviewed by the appropriate Executive Director and the Investigations Director. Licensing and Regulation Division staff who believe that an applicant has provided false information on an application regarding criminal convictions or any other false information shall forward that information to the Compliance and Investigations Division for alleged violations of §54.1-111 of the Code of Virginia or other applicable code section.
3. Investigator requests for criminal history information shall be directed to the investigator assigned to the secured VCIN terminal in the Compliance and Investigations Division.

B. USE AND DESTRUCTION OF CRIMINAL HISTORY INFORMATION

1. All criminal history information is confidential and its use is limited to those individuals who are authorized by statute to receive such information.
2. Criminal history printouts from the VCIN terminal shall not be copied or shared with personnel outside of the Compliance and Investigations Division. Criminal history documents shall not be stored in investigation files, but shall be secured with the investigators’ working papers during the investigation. Upon completion of the investigation, the records shall be shredded.

Digitally signed by Dixon Gordon gfq34896 Date: 2011.06.13 16:28:20 -04'00'

Policy Title: Compliance & Investigations Policy #800-01 Criminal History & OL Public Records [POL700-800_01-v1] Effective: 06/13/2011 Submitted By: Mark Courtney, Deputy Director Licensing & Regulation Division Guidance Document: Yes Supersedes: Compliance & Investigations Policy #800-01 Criminal History Information (Effective 03/05/2010) Page 2 of 2

C. LexisNexis

® ACCURINT

® PUBLIC RECORDS

1. All Compliance and Investigations and Licensing and Regulation Division personnel shall comply with the terms and conditions of the LexisNexis ® Non-FCRA (Fair Credit and Reporting Act) Agreement and the Department’s Information Security Access Agreement.
2. All LexisNexis ® Accurint ® Public Records inquiries shall be logged on the LexisNexis User Inquiry Log which shall be available for management inspection at all times.
3. Information obtained by the Licensing and Regulation Division from LexisNexis ® Accurint ® Public Records System shall be used for information verification purposes only and shall not be disclosed to anyone outside of DPOR. Only information verified through a publicly available source may be disclosed to an outside party.

COMPLIANCE & INVESTIGATIONS POLICY #800-01 CRIMINAL HISTORY & ONLINE PUBLIC RECORDS INFORMATION Effective Date: June 13, 2011

Policy Title: Compliance & Investigations Policy #800-01 Criminal History & OL Public Records [POL700-800_01-v1] Effective: 06/13/2011 Submitted By: Mark Courtney, Deputy Director Licensing & Regulation Division Guidance Document: Yes Supersedes: Compliance & Investigations Policy #800-01 Criminal History Information (Effective 03/05/2010) Page 1 of 2

Approved By:

I. PURPOSE: This policy establishes guidelines for requesting and handling criminal history and public records in compliance with laws and security agreements.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation's Compliance and Investigations Division is authorized to enforce laws and conduct criminal investigations (§ 19.2-389). Pursuant to § 54.1-306, the Director and investigators can request and receive criminal history and public records from CCRE, VCIN, NCIC, III files, and LexisNexis ® Accurint ®. Select Division personnel may use LexisNexis ® Public Records Depository for verification only.

III. DEFINITIONS: Criminal History Information is arrest and disposition data from CCRE, state bureaus, FBI, and law enforcement.

IV. RELATED DOCUMENTS: DPOR IT Policy #400-03 and Information Security Access Agreement

V. GENERAL PROVISIONS:

A. REQUESTS FOR CRIMINAL HISTORY INFORMATION

1. All Department of Professional and Occupational Regulation employees and consultants are required to sign an Information Security Access Agreement in accordance with Information Technology Policy #400-03, Information Technology Security Program.
2. Investigators may use criminal history information during a criminal investigation. Investigations are deemed criminal in nature until a determination has been made to proceed under the Administrative Process Act (APA) for a case decision. Matters of a criminal nature arising after an APA case decision shall be reviewed by the appropriate Executive Director and the Investigations Director. Licensing and Regulation Division staff who believe that an applicant has provided false information on an application regarding criminal convictions or any other false information shall forward that information to the Compliance and Investigations Division for alleged violations of §54.1-111 of the Code of Virginia or other applicable code section.
3. Investigator requests for criminal history information shall be directed to the investigator assigned to the secured VCIN terminal in the Compliance and Investigations Division.

B. USE AND DESTRUCTION OF CRIMINAL HISTORY INFORMATION

1. All criminal history information is confidential and its use is limited to those individuals who are authorized by statute to receive such information.
2. Criminal history printouts from the VCIN terminal shall not be copied or shared with personnel outside of the Compliance and Investigations Division. Criminal history documents shall not be stored in investigation files, but shall be secured with the investigators’ working papers during the investigation. Upon completion of the investigation, the records shall be shredded.

Digitally signed by Dixon Gordon gfq34896 Date: 2011.06.13 16:28:20 -04'00'

Policy Title: Compliance & Investigations Policy #800-01 Criminal History & OL Public Records [POL700-800_01-v1] Effective: 06/13/2011 Submitted By: Mark Courtney, Deputy Director Licensing & Regulation Division Guidance Document: Yes Supersedes: Compliance & Investigations Policy #800-01 Criminal History Information (Effective 03/05/2010) Page 2 of 2

C. LexisNexis

® ACCURINT

® PUBLIC RECORDS

1. All Compliance and Investigations and Licensing and Regulation Division personnel shall comply with the terms and conditions of the LexisNexis ® Non-FCRA (Fair Credit and Reporting Act) Agreement and the Department’s Information Security Access Agreement.
2. All LexisNexis ® Accurint ® Public Records inquiries shall be logged on the LexisNexis User Inquiry Log which shall be available for management inspection at all times.
3. Information obtained by the Licensing and Regulation Division from LexisNexis ® Accurint ® Public Records System shall be used for information verification purposes only and shall not be disclosed to anyone outside of DPOR. Only information verified through a publicly available source may be disclosed to an outside party.

DIRECTOR’S POLICY #100-05 LICENSE SUSPENSIONS Effective Date: May 22, 2017 Policy Title: Director’s Policy #100-05 License Suspensions [POL401-100_05-v3] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-05 License Suspensions (Effective 09/18/2009) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to establish procedures for suspending and removing suspensions on licenses, certifications, registrations, and other authorizations issued by the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: Disciplinary and court ordered suspensions (under the provisions of § 63.2-1937 of the Code of Virginia) shall be processed by the Executive Director of the appropriate regulatory program in accordance with the terms of the disciplinary or court order.

This policy shall not apply to dishonored check suspensions which are processed in accordance with § 54.1-104 of the Code of Virginia.

III. DEFINITIONS: Suspension The temporary interruption of a professional privilege or authorization (e.g., license, certification, registration, or other authorization to engage in a business, trade, profession, or occupation issued by the Commonwealth of Virginia pursuant to those sections of Title 54.1 of the Code of Virginia).

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. LICENSE SUSPENSIONS

1. Disciplinary Suspensions a. The Executive Director shall suspend the license, certification, registration, or other authorization and insert a comment in the record history to indicate the reason for the suspension. b. The Executive Director shall notify the regulant of the suspension by certified mail, return receipt requested. The notification shall include instructions regarding renewal requirements that must be met during the suspension.
2. Court-ordered Suspensions a. All inquiries regarding court orders and suspension should be directed to the Deputy Director for Communications and Board Operations. All court orders received by the Department directing that a license be suspended shall be hand-delivered upon receipt to the FOIA and Records Manager. b. The FOIA and Records Manager shall record the court order in the electronic subpoena log, retain a scanned copy in the shared Subpoena Log folder and forward the court order to suspend to the Deputy Director for Communications and Board Operations who will identify the appropriate Executive Director to process the suspension. c. The Executive Director shall suspend the license, certification, registration, or other authorization and insert a comment in the record history to indicate that the license was suspended by court order. d. The Executive Director shall notify the regulant of the suspension by certified mail, return receipt requested. The notification shall include instructions regarding renewal requirements that must be met during the suspension.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.05.22 14:35:50 -04'00'

Policy Title: Director’s Policy #100-05 License Suspensions [POL401-100_05-v3] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-05 License Suspensions (Effective 09/18/2009) Page 2 of 2

B. REMOVAL OF THE SUSPENSION

1. Disciplinary Suspensions The Executive Director shall remove the suspension, indicate the reason for the removal of the suspension in the record history and forward the license, certification or registration to the regulant. The expiration date shall be the same date that was in effect at the time of suspension. The Executive Director shall notify the regulant in writing of any requirements that must be met in order to preserve his or her license status. If the suspension lasted for one year or less, the regulant shall have 30 days to comply with any renewal requirements that should have been met during the period of suspension. If the suspension exceeded one year, the regulant shall be required to meet any renewal, reinstatement or re-application requirements (as documented in the board regulations) that would apply for the length of time that elapsed since the license suspension date.
2. Court-ordered Suspensions a. All court orders received by the Department directing the removal of the suspension shall be hand-delivered upon receipt to the FOIA and Records Manager. b. The FOIA and Records Manager shall record the court order in the electronic subpoena log, retain a scanned copy in the shared Subpoena Log folder and forward the court order to remove the suspension to the Deputy Director for Communications and Board Operations who will identify the appropriate Executive Director to process the suspension removal. c. The Executive Director shall remove the suspension, indicate the reason for the removal of the suspension in the record history and forward the license, certification or registration to the regulant. The expiration date shall be the same date that was in effect at the time of suspension. The Executive Director shall notify the regulant in writing of any requirements that must be met in order to preserve his or her license status. If the suspension lasted for one year or less, the regulant shall have 30 days to comply with any renewal requirements that should have been met during the period of suspension. If the suspension exceeded one year, the regulant shall be required to meet any renewal, reinstatement or re-application requirements (as documented in the board regulations) that would apply for the length of time that elapsed since the license suspension date. d. Pursuant to § 63.2-1937 of the Code of Virginia, no processing or administrative fee shall be charged to a person for removal of the suspension from their license, certificate, registration, or other authorization.

DIRECTOR’S POLICY #100-05 LICENSE SUSPENSIONS Effective Date: May 22, 2017 Policy Title: Director’s Policy #100-05 License Suspensions [POL401-100_05-v3] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-05 License Suspensions (Effective 09/18/2009) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to establish procedures for suspending and removing suspensions on licenses, certifications, registrations, and other authorizations issued by the Department of Professional and Occupational Regulation.

II. POLICY STATEMENT: Disciplinary and court ordered suspensions (under the provisions of § 63.2-1937 of the Code of Virginia) shall be processed by the Executive Director of the appropriate regulatory program in accordance with the terms of the disciplinary or court order.

This policy shall not apply to dishonored check suspensions which are processed in accordance with § 54.1-104 of the Code of Virginia.

III. DEFINITIONS: Suspension The temporary interruption of a professional privilege or authorization (e.g., license, certification, registration, or other authorization to engage in a business, trade, profession, or occupation issued by the Commonwealth of Virginia pursuant to those sections of Title 54.1 of the Code of Virginia).

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. LICENSE SUSPENSIONS

1. Disciplinary Suspensions a. The Executive Director shall suspend the license, certification, registration, or other authorization and insert a comment in the record history to indicate the reason for the suspension. b. The Executive Director shall notify the regulant of the suspension by certified mail, return receipt requested. The notification shall include instructions regarding renewal requirements that must be met during the suspension.
2. Court-ordered Suspensions a. All inquiries regarding court orders and suspension should be directed to the Deputy Director for Communications and Board Operations. All court orders received by the Department directing that a license be suspended shall be hand-delivered upon receipt to the FOIA and Records Manager. b. The FOIA and Records Manager shall record the court order in the electronic subpoena log, retain a scanned copy in the shared Subpoena Log folder and forward the court order to suspend to the Deputy Director for Communications and Board Operations who will identify the appropriate Executive Director to process the suspension. c. The Executive Director shall suspend the license, certification, registration, or other authorization and insert a comment in the record history to indicate that the license was suspended by court order. d. The Executive Director shall notify the regulant of the suspension by certified mail, return receipt requested. The notification shall include instructions regarding renewal requirements that must be met during the suspension.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.05.22 14:35:50 -04'00'

Policy Title: Director’s Policy #100-05 License Suspensions [POL401-100_05-v3] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-05 License Suspensions (Effective 09/18/2009) Page 2 of 2

B. REMOVAL OF THE SUSPENSION

1. Disciplinary Suspensions The Executive Director shall remove the suspension, indicate the reason for the removal of the suspension in the record history and forward the license, certification or registration to the regulant. The expiration date shall be the same date that was in effect at the time of suspension. The Executive Director shall notify the regulant in writing of any requirements that must be met in order to preserve his or her license status. If the suspension lasted for one year or less, the regulant shall have 30 days to comply with any renewal requirements that should have been met during the period of suspension. If the suspension exceeded one year, the regulant shall be required to meet any renewal, reinstatement or re-application requirements (as documented in the board regulations) that would apply for the length of time that elapsed since the license suspension date.
2. Court-ordered Suspensions a. All court orders received by the Department directing the removal of the suspension shall be hand-delivered upon receipt to the FOIA and Records Manager. b. The FOIA and Records Manager shall record the court order in the electronic subpoena log, retain a scanned copy in the shared Subpoena Log folder and forward the court order to remove the suspension to the Deputy Director for Communications and Board Operations who will identify the appropriate Executive Director to process the suspension removal. c. The Executive Director shall remove the suspension, indicate the reason for the removal of the suspension in the record history and forward the license, certification or registration to the regulant. The expiration date shall be the same date that was in effect at the time of suspension. The Executive Director shall notify the regulant in writing of any requirements that must be met in order to preserve his or her license status. If the suspension lasted for one year or less, the regulant shall have 30 days to comply with any renewal requirements that should have been met during the period of suspension. If the suspension exceeded one year, the regulant shall be required to meet any renewal, reinstatement or re-application requirements (as documented in the board regulations) that would apply for the length of time that elapsed since the license suspension date. d. Pursuant to § 63.2-1937 of the Code of Virginia, no processing or administrative fee shall be charged to a person for removal of the suspension from their license, certificate, registration, or other authorization.

BOARD FOR PROFESSIONAL &

OCCUPATIONAL REGULATION

GUIDELINES Evaluation of Petitions for Regulation

9960 Mayland Drive, Suite 400 Richmond, Virginia 23233 (804) 367-8500 http://www.dpor.virginia.gov

TABLE OF CONTENTS

Introduction ............................................................................................... 1

Standards for Regulation ................................................................................ 1

Criteria .................................................................................................... 2

Application of Criteria…………………………………………………… ................... 3

Procedures ................................................................................................. 4

Who may request a study?..................................................................... 4 How is a study conducted? .................................................................... 5 What happens to the results? ................................................................. 6

APPENDIX A: Statutory Authority .................................................................. 7

APPENDIX B: Supplemental Questions to Address Criteria .................................. 11

1

INTRODUCTION

The Board for Professional and Occupational Regulation (the Board) established these guidelines for reviewing the proposed regulation of professions and occupations in order to inform interested parties of the Board’s statutory authority and its approach toward conducting studies and evaluations.

The Board initially developed study guidelines as the result of a recognized need to document best practices and procedures used in prior studies. BPOR originally incorporated portions of the Policies and Procedures for the Evaluation of the Need to Regulate Health Occupations and Professions (1998), issued by the Virginia Board for Health Professions, into those guidelines.

The Board updated its guidelines for the Department of Professional land Occupational Regulation (DPOR) in September 2016, to reflect changes made when the General Assembly enacted Chapter 467 during the 2016 Session.

STANDARDS FOR REGULATION

Section 54.1-310 of the Code of Virginia (Code) provides the statutory authority for the Board to evaluate and make recommendations to the Governor, General Assembly, and DPOR Director on matters of professional and occupational regulation, as well as propose administrative systems to accomplish the necessary degree of regulation.

The legislature, however, is the sole entity empowered to make the final determination over whether a profession or occupation warrants regulation, pursuant to subsection A of § 54.1-311. Only upon approval from the General Assembly can a profession be regulated, with enabling legislation specifying the degree of regulation and the overall regulatory framework to administer the program (e.g., board, advisory committee, registry).

The Commonwealth’s philosophy on the regulation of professions and occupations is that: The occupational property rights of an individual may be abridged only to the extent necessary to protect the public. Section 54.1-100 clearly enumerates the overarching principle to guide the Board’s approach to all reviews of professional and occupational regulation:

The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgement is necessary for the protection or preservation of the health, safety, and welfare of the public and

2 (ii) any such abridgement is no greater than necessary to protect or preserve the public health, safety, and welfare.

Before the Commonwealth can interfere with an individual’s right to engage freely in their chosen field, the Code states that all four of the following pre-conditions must be satisfied in order to justify the exercise of the state’s police powers:

1. The unregulated practice of a profession or occupation can harm or endanger the health, safety or welfare of the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

1. The practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work or labor;

1. The practice of the profession or occupation requires specialized skill or training and the public needs, and will benefit by, assurances of initial and continuing professional and occupational ability; and

1. The public is not effectively protected by other means.

The following Criteria and Procedures used to guide the Board in its studies are derived from the clear guidance codified by the General Assembly, provided in their entirety in Appendix A (Statutory Authority).

CRITERIA

Based on the parameters enumerated in § 54.1-311, and informed by the Commonwealth’s philosophical predisposition toward public protection, the Board adopts the following criteria to guide its evaluations. Appendix B provides additional factors to consider for each standard, as well as sample questions to assist with data collection.

1. Risk for Harm to the Consumer—The unregulated practice of the profession or occupation will harm or endanger the public’s health, safety or welfare. The harm is recognizable and not remote or dependent on tenuous argument. The harm results from: a. practices inherent in the occupation, b. characteristics of the clients served c. the setting or supervisory arrangements for the delivery of services, or d. any combination of these factors.

3

1. Specialized Skills and Training—The practice of the profession or occupation requires specialized education and training, and the public needs assurance of competence.

1. Autonomous Practice—The functions and responsibilities of the practitioner require independent judgment, and the members of the occupational group practice autonomously.

1. Scope of Practice—The scope of practice is distinguishable from other licensed, certified, and registered professions and occupations.

1. Economic Impact—The economic cost(s) to the public of regulating the occupational group are justified. Such costs may result from restriction of the supply of practitioners, as well as expense associated with administration of regulatory boards or agencies.

1. Alternatives to Regulation—No alternatives to state regulation of the profession or occupation exist that adequately protect the public. Examples of methods to address the risk for public harm that do not require professional regulation include inspections, injunctions, disclosure requirements, and the strengthening of consumer protection laws and regulations.

1. Least Restrictive Regulation—If it is determined that state regulation of the occupation or profession is necessary, only the least restrictive level of occupational regulation consistent with public protection will be recommended to the Governor, the General Assembly and DPOR Director.

Application of criteria In conducting studies, the Board will evaluate requests for regulating a professional or occupational group by assessing the criteria against the potential degrees of regulation, from least restrictive (registration) to most restrictive (licensure). The following outline delineates the characteristics of registration, certification, and licensure, and criteria applicable to each category.

Registration. Registration requires only that an individual or entity file his name, location, and possibly background information with the Commonwealth. No entry standard is typically established for a registration program.

• RISK POTENTIAL: Low, though consumers need to know that redress is possible.
• SKILL & TRAINING: Variable; can be differentiated from ordinary work or labor.
• AUTONOMY: Variable.
• SCOPE OF PRACTICE: N/A  APPLICATION OF CRITERIA: Criteria 4, 5 and 6 must be met.

4

Certification. Certification by the state is a form of voluntary regulation, also known as "title protection." No scope of practice is reserved to a particular group; rather, only those individuals who meet certification standards (generally defined in terms of education and minimum competencies that can be measured) may use the protected title.

• RISK POTENTIAL: Moderate; attributable to the nature of the practice, consumer vulnerability, or practice setting and level of supervision.
• SKILL & TRAINING: Specialized; can be differentiated from ordinary work.

Individual must complete specific education, experience, or examination requirements.

• AUTONOMY: Variable. Some independent decision-making; majority of practice actions directed or supervised by others.
• SCOPE OF PRACTICE: Definable in legally enforceable terms.  APPLICATION OF CRITERIA: Criteria 1 through 6 must be met.

Licensure. Licensure is mandatory and the most restrictive form of professional regulation. State licensure typically confers a monopoly upon a specific profession or occupation within a well-defined scope of practice. It generally involves the statutory delineation of practice reserved to a select group based on unique, identifiable, minimal competencies deemed necessary to protect the public.

• RISK POTENTIAL: High; attributable to the nature of the profession or occupation.
• SKILL & TRAINING: Highly specialized education required.
• AUTONOMY: High; practices independently with little or no direct supervision.
• SCOPE OF PRACTICE: Definable in legally enforceable terms.  APPLICATION OF THE CRITERIA: Criteria 1 through 6 must be met.

Alternatives. In cases where the Board identifies a potential risk to an unregulated profession or occupation, but other criteria is insufficient to substantiate that licensure, certification, or registration are appropriate remedies, other recommendations may be warranted. In accordance with Criteria 6 and 7, the Board must consider less restrictive means to protect the public’s health, safety, and welfare than interfering in the occupational property rights of individuals.

PROCEDURES

During the 2016 Session, the General Assembly passed legislation prescribing a process for objective assessment of proposals to regulate currently unregulated professions or occupations (House Bill 499, sponsored by Delegate Yancey).

5

Who may request a study?

Petitions for the Board to conduct a study must be submitted in accordance with the process outlined in § 54.1-310.1, summarized below:

• Request for evaluation must be received by the Board no later than December 1, and be filed with a statement of support by either:

1. at least 10 members of the professional or occupational group for which regulation is being sought, or
2. at least 10 individuals who are not affiliated with such professional or occupational group.

• Request for evaluation shall include, at a minimum:

1. A description of the professional or occupational group proposed for regulation;
2. A list of associations, organization, and other groups representing the practitioners of such group proposed for regulation, and an estimate of the number of practitioners in the Commonwealth from each group;
3. A definition of the problems to be solved by the proposed regulation of the professional or occupational group and the reasons why such regulation is necessary;
4. Reasons why registration, certification, licensure, or other type of regulation is being proposed and why that regulatory alternative was chosen;
5. Benefit(s) to the public that would result from the proposed regulation of such professional or occupational group;
6. Cost(s) associated with the proposed regulation, to practitioners of the group to be regulated as well as to the public; and
7. A description of what type of criteria might disqualify an applicant from approval for certification, licensure, or renewal (e.g., education, experience, examination, other entry requirements) and how such anticipated disqualifications serve public safety or commercial or consumer protection interests.

Provided a request satisfies the statutory requirements of subsections A, B, and C of § 54.1-310.1, the Board shall complete its analysis and evaluation no later than November 1 of the year following the request submission, and issue a report on its findings to the appropriate legislative bodies.

The Board may decline to conduct a review only if it (1) issued a report on the requested professional or occupational group within the immediately preceding three years and (2) finds no information in the newly submitted request that would cause a change in the prior report’s recommendation.

How is a study conducted?

6 Pursuant to subsection D of § 54.1-310.1, upon receipt of a petition for regulation that satisfies all statutory requirements, the Board shall conduct its analysis based on the Criteria above, as derived from § 54.1-311.

The Board adopts a work plan specific to each study, detailing the background for the evaluation, its scope, and the specific methodology to be employed. Generally, in addition to the Criteria, work plans include a comprehensive review of the relevant literature such as:

• Job analyses to identify the knowledge, skills, and abilities that define a profession and distinguish it from related professions;
• Laws and regulations of other jurisdictions;
• Insurance rates and the extent of coverage based upon their actuarial assessment of the risk posed by the insured group;
• Civil suits, assessments of the type of work and work settings involved in practice, and evaluations of similar professions’ claim histories, among other factors; and
• Data commonly used to develop credentialing examinations.

Job analysis and insurance rate data, in particular, are selected because (1) they are generally readily available; (2) most occupations and professions have professionally developed examinations based on job analyses, and (3) most professions have insurance. Moreover, the sources can be considered relatively objective because they were designed for purposes other than to promote regulation of the profession or occupation. Finally, job analyses and actuarial risk predictions each offer specific insight into the level of potential harm to consumers, as well as a more thorough understanding of what comprises the necessary entry-level competencies to practice the profession.

The work plan also provides opportunities for the Board to receive public comment. In some instances, additional information is gathered through surveys of practitioners, regulatory boards in other states, or other parties knowledgeable about the issues germane to the profession or occupation.

After adoption of the work plan by the Board, staff prepares a draft report based on the research and data gathered from identified sources. The Board then reviews, edits as necessary and issues its findings on whether the public interest requires the requested professional or occupational group be regulated.

What happens to the results?

No later than November 1 of the year following the request submission, the study report (including findings and recommendations) is submitted to the requesting group, the DPOR Director, the Governor, the House Committee on General Laws, the Senate Committee on General Laws and Technology, and the Joint Commission on Administrative Rules.

7

Staff also posts the report on the DPOR website and disseminates copies to interested parties upon request.

8 APPENDIX A | Statutory Authority

§ 54.1-310. Powers and duties of Board.

A. The Board shall have the following powers and duties:

1. Provide a means of citizen access to the Department.
2. Provide a means of publicizing the policies and programs of the Department in order to educate the public and elicit public support for Department activities.
3. Monitor the policies and activities of the Department and have the right of access to departmental information.
4. Advise the Governor and the Director on matters relating to the regulation of professions and occupations.
5. Promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) necessary to carry out its responsibilities.

1. Evaluate constantly each profession and occupation in the Commonwealth not otherwise regulated for consideration as to whether such profession or occupation should be regulated and, if so, the degree of regulation that should be imposed. Whenever it determines that the public interest requires that a profession or occupation which is not regulated by law should be regulated, the Board shall recommend to the General Assembly next convened a regulatory system accompanied by comprehensive regulations necessary to conduct the degree of regulation required.

B. Upon the regulation of a profession or occupation as set forth in subsection A, the Board shall have the power and duty to promulgate supplemental regulations necessary to effectuate the purposes and intent of this chapter and to establish regulatory boards to administer the system of regulation and the regulations recommended by the Board and approved by the General Assembly.

§ 54.1-310.1. Petitions for regulation; review by Board; report.

A. Any professional or occupational group or organization, any person, or any other interested party that proposes the regulation of any unregulated professional or occupational group shall submit a request to the Board no later than December 1 of any year for analysis and evaluation during the following year.

B. The Board shall review the request only when filed with a statement of support for the proposed regulation signed by at least 10 members of the professional or occupational group for which regulation is being sought or at least 10 individuals who are not members of the professional or occupational group.

C. The request shall include, at a minimum, the following information:

9

1. A description of the group proposed for regulation, including a list of associations, organizations, and other groups representing the practitioners in the Commonwealth, and an estimate of the number of practitioners in each group;
2. A definition of the problems to be solved by regulation and the reasons why regulation is necessary;
3. The reasons why registration, certification, licensure, or other type of regulation is being proposed and why that regulatory alternative was chosen;
4. The benefit to the public that would result from the proposed regulation;
5. The cost of the proposed regulation; and
6. A description of any anticipated disqualifications on an applicant for certification, licensure, or renewal and how such disqualifications serve public safety or commercial or consumer protection interests.

D. Upon receipt of a request submitted in accordance with the requirements of subsection C, the Board shall conduct an analysis and evaluation of any proposed regulation based on the criteria enumerated in § 54.1-311.

E. The Board may decline to conduct a review only if it:

1. Previously conducted an analysis and evaluation of the proposed regulation of the same professional or occupational group;
2. Issued a report not more than three years prior to the submission of the current proposal to regulate the same professional or occupational group; and
3. Finds that no new information has been submitted in the request that would cause the Board to alter or modify the recommendations made in its earlier report on the proposed regulation of the professional or occupational group.

F. The Board shall submit a report with its findings on whether the public interest requires the requested professional or occupational group be regulated to the House Committee on General Laws, the Senate Committee on General Laws and Technology, and the Joint Commission on Administrative Rules no later than November 1 of the year following the request submission.

§ 54.1-311. Degrees of regulation.

A. Whenever the Board determines that a particular profession or occupation should be regulated, or that a different degree of regulation should be imposed on a regulated profession or occupation, it shall consider the following degrees of regulation in the order provided in subdivisions 1 through 5. The Board shall regulate only to the degree necessary to fulfill the need for regulation and only upon approval by the General Assembly.

10

1. Private civil actions and criminal prosecutions. -- Whenever existing common law and statutory causes of civil action or criminal prohibitions are not sufficient to eradicate existing harm or prevent potential harm, the Board may first consider the recommendation of statutory change to provide more strict causes for civil action and criminal prosecution.
2. Inspection and injunction. -- Whenever current inspection and injunction procedures are not sufficient to eradicate existing harm, the Board may promulgate regulations consistent with the intent of this chapter to provide more adequate inspection procedures and to specify procedures whereby the appropriate regulatory board may enjoin an activity which is detrimental to the public well-being. The Board may recommend to the appropriate agency of the Commonwealth that such procedures be strengthened or it may recommend statutory changes in order to grant to the appropriate state agency the power to provide sufficient inspection and injunction procedures.
3. Registration. -- Whenever it is necessary to determine the impact of the operation of a profession or occupation on the public, the Board may implement a system of registration.
4. Certification. -- When the public requires a substantial basis for relying on the professional services of a practitioner, the Board may implement a system of certification.
5. Licensing. -- Whenever adequate regulation cannot be achieved by means other than licensing, the Board may establish licensing procedures for any particular profession or occupation.

B. In determining the proper degree of regulation, if any, the Board shall determine the following:

1. Whether the practitioner, if unregulated, performs a service for individuals involving a hazard to the public health, safety or welfare.
2. The opinion of a substantial portion of the people who do not practice the particular profession, trade or occupation on the need for regulation.
3. The number of states which have regulatory provisions similar to those proposed.
4. Whether there is sufficient demand for the service for which there is no regulated substitute and this service is required by a substantial portion of the population.
5. Whether the profession or occupation requires high standards of public responsibility, character and performance of each individual engaged in the profession or occupation, as evidenced by established and published codes of ethics.
6. Whether the profession or occupation requires such skill that the public generally is not qualified to select a competent practitioner without some assurance that he has met minimum qualifications.
7. Whether the professional or occupational associations do not adequately protect the public from incompetent, unscrupulous or irresponsible members of the profession or occupation.

11

1. Whether current laws which pertain to public health, safety and welfare generally are ineffective or inadequate.
2. Whether the characteristics of the profession or occupation make it impractical or impossible to prohibit those practices of the profession or occupation which are detrimental to the public health, safety and welfare. 10. Whether the practitioner performs a service for others which may have a detrimental effect on third parties relying on the expert knowledge of the practitioner.

12 APPENDIX B | Supplemental Questions to Address Criteria

1. Risk for Harm to the Consumer.

 Provide a description of the typical functions performed and services provided by members of this occupational group.

 Has the public actually been harmed by unregulated providers or by providers who are regulated in other states? If so, how is the evidence of harm documented (i.e., court case or disciplinary or other administrative action)? Was it physical, emotional, mental, social, or financial?

 If no evidence of actual harm is available, what aspects of the group’s practice constitute a potential for harm?

 To what can the harm be attributed? Elaborate as necessary.

• lack of skills
• lack of knowledge
• lack of ethics
• lack of supervision
• practices inherent in the occupation
• characteristics of the clients being served
• characteristics of the practice setting
• other (specify)

 Does a potential for fraud exist because of the inability of the public to make an informed choice in selecting a competent practitioner?

 Is the public seeking regulation or greater accountability of this group?

1. Specialized Skills and Training.

 What are the educational or training requirements for entry into this occupation?

Are these programs accredited? By whom?

• Are sample curricula available?
• Are there training programs in Virginia?

 If no programs exist in Virginia, what information is available on programs elsewhere that prepare practitioners for practice in the Commonwealth? What are

13 the minimum competencies (knowledge, skills, and abilities) required for entry into the profession? How were they derived?

 Are there national, regional, and/or state examinations available to assess entry-level competency?

• Who develops and administers the examination?
• What content domains are tested?
• Are the examinations psychometrically sound, in keeping with The Standards for Educational and Psychological Testing?

 Are there requirements and mechanisms for ensuring continuing competence? For example, are there mandatory education requirements, re-examination, peer review, practice audits, institutional review, practice simulations, or self-assessment models?

 Why does the public require state assurance of initial and continuing competence?

What assurances does the public have already through private credentialing or certification or institutional standards, etc.?

 Are there recognized or emerging specialties (or levels or classifications) within the occupational grouping? If so:

• What are these specialties?
• How are they recognized? (by whom and through what mechanisms, e.g., specialty certification by a national association, society or other organization?)
• What are the various levels of specialties in terms of the functions or services performed by each?
• How can the public differentiate among these levels or specialties for classification of practitioners?

 Is a “generic” regulatory program appropriate, or should classifications (specialties/levels) be regulated separately (e.g., basic licensure with specialty certification)?

1. Autonomous Practice.

 Which functions typically performed by this practitioner group are unsupervised (i.e., neither directly monitored nor routinely checked)?

• What proportion of the practitioner’s time is spent in unsupervised activity?
• Who is legally accountable/liable for acts performed with no supervision?

14

 Which functions are performed only under supervision?

• Is the supervision direct (i.e., the supervisor is on the premises and responsible) or general (i.e., supervisor is responsible but not necessarily on the premises)?Who provides the supervision? How frequently? Where? For what purpose?
• Who is legally accountable/liable for acts performed under supervision?
• Is the supervisor a member of a regulated profession (please elaborate)?
• What is contained in a typical supervisory or collaborative arrangement protocol?

 Does the practitioner of this occupation supervise others? Describe the nature of this supervision (as above).

 What is a typical work setting like, including supervisory arrangements and interaction of the practitioner with other regulated/unregulated occupations and professions?

 Does this occupational group treat or serve a specific consumer population?

 Are consumers referred to this occupational group for services? If so, by whom?

Describe a typical referral mechanism.

 Are consumers referred from this occupational group for services? If so, to what practitioners are such referrals made? Describe a typical referral mechanism.

 How and on what basis are decisions to refer made?

1. Scope of Practice.

 Which functions of this occupation are similar to those performed by other occupational groups?

• Which group(s)?
• Are the other groups regulated by the state?
• If so, why might the applicant group be considered different?

 Which functions of this occupation are distinct from other similar occupational groups?

15

• Which group(s)?
• Are the other groups regulated by the state?

 How will the regulation of this occupational group affect the scope of practice, marketability, and economic status of the other, similar groups (whether regulated or unregulated)? 

1. Economic Impact.

 What are the range and average incomes of members of this occupational group in the Commonwealth? In adjoining states? Nationally?

 What are the typical current fees for services provided by this group in the Commonwealth? In adjoining states? Nationally?

 Is there any evidence that cost for services provided by this occupational group will increase if the group becomes state regulated? In other states, have there been any effects on fees/salaries attributable to state regulation?

 Would state regulation of this occupation restrict other groups from providing services given by this group?

• Are any of the other groups able to provide similar care at lower costs?
• How is it that this lower cost is possible?

 Are there current shortages/oversupplies of practitioners in Virginia? In the region?

Nationally?

1. Alternatives to Regulation. .

 What laws or regulations currently exist to govern:

• Facilities in which practitioners practice or are employed?
• Standards or practice?

 Does the occupational group participate in a nongovernmental credentialing program, either thorough a national certifying agency or professional association.

• How are the standards set and enforced in the program?
• What is the extent of participation of practitioners in the program?

16

 Does a Code of Ethics exist for this profession?

• What is it?
• Who established the Code?
• How is it enforced?
• Is adherence mandatory?

 Does any peer group evaluation mechanism exist in Virginia or elsewhere? Elaborate.

 How is a practitioner disciplined and for what causes? Violation of standards of care?

Unprofessional conduct? Other causes?

 Do any other means exist within the occupational group to protect the consumer from negligence or incompetence (e.g., insurance, review boards that handle complaints)?

How are challenges to a practitioner’s competency handled?

1. Least Restrictive Regulation

 Should the occupation or profession be regulated?

 If so, what is the most appropriate level of regulation?

BOARD FOR PROFESSIONAL &

OCCUPATIONAL REGULATION

GUIDELINES Evaluation of Petitions for Regulation

9960 Mayland Drive, Suite 400 Richmond, Virginia 23233 (804) 367-8500 http://www.dpor.virginia.gov

TABLE OF CONTENTS

Introduction ............................................................................................... 1

Standards for Regulation ................................................................................ 1

Criteria .................................................................................................... 2

Application of Criteria…………………………………………………… ................... 3

Procedures ................................................................................................. 4

Who may request a study?..................................................................... 4 How is a study conducted? .................................................................... 5 What happens to the results? ................................................................. 6

APPENDIX A: Statutory Authority .................................................................. 7

APPENDIX B: Supplemental Questions to Address Criteria .................................. 11

1

INTRODUCTION

The Board for Professional and Occupational Regulation (the Board) established these guidelines for reviewing proposed regulation of professions and occupations to inform interested parties of its statutory authority and approach to studies.

The Board developed study guidelines to document best practices and incorporated parts of the 1998 Policies and Procedures for evaluating the need to regulate health occupations and professions.

The Board updated its guidelines for DPOR in September 2016 to reflect changes from Chapter 467 enacted during the 2016 Session.

STANDARDS FOR REGULATION

Section 54.1-310 of the Code authorizes the Board to evaluate and recommend to the Governor, General Assembly, and DPOR Director on regulation matters and propose administrative systems.

The legislature alone has final authority to determine if a profession warrants regulation, per § 54.1-311. Only with General Assembly approval can regulation occur, with legislation defining scope and framework.

The Commonwealth’s philosophy states occupational property rights may only be abridged as necessary to protect the public. Section 54.1-100 guides the Board’s review approach:

Every person’s right to engage in lawful professions is protected by U.S. and Virginia Constitutions. Rights can only be abridged reasonably for public health, safety, and welfare.

2 (ii) such abridgement must be no greater than necessary to protect public health, safety, and welfare.

Before interference, the Code requires four preconditions to justify exercising police powers:

1. The unregulated practice of a profession or occupation can harm or endanger the health, safety or welfare of the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

1. The practice of the profession or occupation has inherent qualities that distinguish it from ordinary work or labor;

1. The practice requires specialized skill or training, and the public needs and benefits from assurances of initial and ongoing professional ability; and

1. The public is not effectively protected by other means.

The following Criteria and Procedures used to guide the Board in its studies are derived from the clear guidance codified by the General Assembly, provided in their entirety in Appendix A (Statutory Authority).

CRITERIA

Guided by § 54.1-311 and public protection philosophy, the Board adopts criteria for evaluations. Appendix B offers additional factors and sample questions.

1. Risk for Harm to the Consumer—Unregulated practice will harm or endanger public health, safety, or welfare. Harm is recognizable, not remote, from: a. inherent practices, b. client characteristics, c. setting or supervision, or d. combinations.

3

1. Specialized Skills and Training—The practice requires specialized education and training, with public assurance of competence.

1. Autonomous Practice—Practitioners' functions require independent judgment, and members practice autonomously.

1. Scope of Practice—It is distinguishable from other licensed, certified, and registered professions.

1. Economic Impact—Costs to the public from regulation are justified, including restricted practitioner supply and administrative expenses.

1. Alternatives to Regulation—No adequate non-regulatory methods exist; alternatives include inspections, injunctions, disclosures, and stronger consumer laws.

1. Least Restrictive Regulation—If regulation is necessary, only the least restrictive level protecting the public will be recommended to the Governor, General Assembly, and DPOR Director.

In studies, the Board evaluates regulation requests by assessing criteria across degrees from least restrictive (registration) to most (licensure). The outline details characteristics and criteria for each.

Registration requires filing name, location, and possibly background info; no entry standards are typically set.

• RISK POTENTIAL: Low, though consumers need to know that redress is possible.
• SKILL & TRAINING: Variable; can be differentiated from ordinary work or labor.
• AUTONOMY: Variable.
• SCOPE OF PRACTICE: N/A  APPLICATION OF CRITERIA: Criteria 4, 5 and 6 must be met.

4

State certification is voluntary regulation or "title protection." It does not reserve scope but allows those meeting standards (education, competencies) to use the protected title.

• RISK POTENTIAL: Moderate; due to practice nature, consumer vulnerability, setting, or supervision level.
• SKILL & TRAINING: Specialized; can be differentiated from ordinary work.

Individual must complete specific education, experience, or examination requirements.

• AUTONOMY: Variable. Some independent decision-making; majority of practice actions directed or supervised by others.
• SCOPE OF PRACTICE: Definable in legally enforceable terms.  APPLICATION OF CRITERIA: Criteria 1 through 6 must be met.

Licensure. Licensure is mandatory and the most restrictive form of professional regulation. State licensure typically confers a monopoly upon a specific profession or occupation within a well-defined scope of practice. It generally involves the statutory delineation of practice reserved to a select group based on unique, identifiable, minimal competencies deemed necessary to protect the public.

• RISK POTENTIAL: High; due to profession's nature.
• SKILL & TRAINING: Highly specialized education required.
• AUTONOMY: High; practices independently with little or no direct supervision.
• SCOPE OF PRACTICE: Definable in legally enforceable terms.  APPLICATION OF THE CRITERIA: Criteria 1 through 6 must be met.

Alternatives. When the Board finds potential risk to an unregulated profession but criteria do not justify licensure, certification, or registration, other recommendations may be warranted. The Board must consider less restrictive means to protect public health, safety, and welfare than infringing on occupational property rights, per Criteria 6 and 7.

PROCEDURES

In 2016, the General Assembly enacted legislation establishing a process for objective assessment of proposals to regulate unregulated professions (House Bill 499, sponsored by Delegate Yancey).

5

Who may request a study?

Petitions for the Board to conduct a study must be submitted in accordance with the process outlined in § 54.1-310.1, summarized below:

• Evaluation requests must be received by December 1, with support statements from:

1. at least 10 members of the group seeking regulation, or
2. at least 10 individuals not affiliated with the group.

Request for evaluation must include at least:

1. Description of the proposed regulated group;
2. List of associations and groups representing practitioners, with practitioner estimates in the Commonwealth;
3. Definition of problems to be solved and reasons regulation is necessary;
4. Reasons for proposing registration, certification, licensure, or regulation, and why this option was chosen;
5. Public benefits from the proposed regulation of the group;
6. Costs associated with the proposed regulation to practitioners and the public; and
7. A description of what type of criteria might disqualify an applicant from approval for certification, licensure, or renewal (e.g., education, experience, examination, other entry requirements) and how such anticipated disqualifications serve public safety or commercial or consumer protection interests.

If a request meets statutory requirements of subsections A, B, and C of § 54.1-310.1, the Board shall complete analysis and evaluation by November 1 of the following year and report findings to relevant legislative bodies.

The Board may decline review if it (1) issued a report on the group within the past three years and (2) finds no new information warranting a change in the prior recommendation.

How is a study conducted?

Under subsection D of § 54.1-310.1, upon receiving a petition meeting statutory requirements, the Board shall analyze based on the Criteria from § 54.1-311.

The Board adopts a study-specific work plan outlining background, scope, and methodology. It also includes a review of relevant literature, including:

• Job analyses identifying knowledge, skills, and abilities that define and distinguish the profession;
• Laws and regulations of other jurisdictions;
• Insurance rates and coverage extent based on actuarial risk assessment;
• Civil suits, work settings, and claim histories of similar professions, among other factors; and
• Data commonly used to develop credentialing examinations.

Job analysis and insurance rate data, in particular, are selected because (1) they are generally readily available; (2) most occupations and professions have professionally developed examinations based on job analyses, and (3) most professions have insurance. Moreover, the sources can be considered relatively objective because they were designed for purposes other than to promote regulation of the profession or occupation. Finally, job analyses and actuarial risk predictions each offer specific insight into the level of potential harm to consumers, as well as a more thorough understanding of what comprises the necessary entry-level competencies to practice the profession.

The work plan allows public comment and may include surveys of practitioners, other state regulatory boards, or knowledgeable parties for additional information.

After the Board adopts the work plan, staff drafts a report from research data. The Board reviews, edits, and issues findings on whether regulation is needed for the group.

What happens to the results?

By November 1 of the following year, the study report, including findings and recommendations, is submitted to the requesting group, DPOR Director, Governor, House and Senate Committees on General Laws, and the Joint Commission on Administrative Rules.

7

Staff posts the report on the DPOR website and distributes copies upon request.

8 APPENDIX A | Statutory Authority

§ 54.1-310. Powers and duties of Board.

A. The Board's powers and duties include:

1. Provide citizen access to the Department.
2. Publicize Department policies and programs to educate and gain public support.
3. Monitor Department policies and activities; access departmental information.
4. Advise Governor and Director on profession and occupation regulation.
5. Promulgate regulations per the Administrative Process Act (§ 2.2-4000) to fulfill responsibilities.

1. Continuously evaluate unregulated professions for regulation; recommend to the General Assembly a regulatory system with necessary regulations when public interest requires.

B. When regulating a profession or occupation under subsection A, the Board shall promulgate necessary regulations to fulfill this chapter's purpose and establish regulatory boards to administer the system and regulations approved by the General Assembly.

§ 54.1-310.1. Petitions for regulation; review by Board; report.

A. Any group, organization, individual, or interested party proposing regulation of an unregulated profession must submit a request to the Board by December 1 for analysis and evaluation the following year.

B. The Board reviews requests only if supported by at least 10 members of the group or 10 non-members.

C. The request must include the following information:

9

1. Describe the proposed regulated group, including associations, organizations, and practitioner estimates;
2. Define problems regulation will solve and reasons for necessity;
3. Reasons for proposing registration, certification, licensure, or regulation, and why this alternative was selected;
4. Public benefits from the proposed regulation;
5. Cost of the proposed regulation;
6. Anticipated disqualifications for applicants and how they protect public safety and consumers.

D. Upon receiving a request meeting subsection C, the Board shall analyze the proposed regulation based on criteria in § 54.1-311.

E. The Board may decline review only if:

1. Previously analyzed and evaluated the same professional or occupational regulation;
2. Issued a report within three years before the current regulation proposal; and
3. Finds no new information warrants altering previous recommendations on regulation;

F. The Board shall submit findings on regulation needs to the House and Senate Committees and Joint Commission by November 1 of the following year.

§ 54.1-311. Degrees of regulation.

A. When the Board decides a profession should be regulated or a different regulation level is needed, it shall consider degrees in order, regulating only as necessary with General Assembly approval.

10

1. When current civil and criminal laws are insufficient to prevent harm, the Board may recommend statutory changes for stricter causes.
2. If current inspection and injunction procedures are inadequate, the Board may promulgate regulations or recommend statutory changes to strengthen them.
3. When necessary to assess a profession's public impact, the Board may implement registration.
4. When public reliance on professional services is needed, the Board may implement certification.
5. When other regulation is insufficient, the Board may establish licensing procedures.

B. When determining regulation degree, the Board shall consider:

1. Whether unregulated practitioners perform hazardous services affecting public health, safety, or welfare.
2. Public opinion on the need for regulation from non-practitioners.
3. Number of states with similar regulatory provisions.
4. Whether sufficient demand exists for the service with no regulated substitute required by a substantial population.
5. Whether the profession requires high standards of responsibility, character, and performance, evidenced by established codes of ethics.
6. Whether the profession requires skill that the public cannot reliably assess without assurance of minimum qualifications.
7. Whether professional associations fail to adequately protect the public from incompetent or irresponsible members.

11

1. Whether current laws related to public health, safety, and welfare are ineffective or inadequate.
2. Whether the profession's characteristics make it impractical to prohibit practices detrimental to public health, safety, or welfare. 10. Whether the practitioner’s services may harm third parties relying on their expertise.

12 APPENDIX B | Supplemental Questions to Address Criteria

1. Risk for Harm to the Consumer.

 Describe typical functions and services provided by this occupational group.

 Has the public been harmed by unregulated or out-of-state providers? How is harm documented (e.g., court, disciplinary action)? Was it physical, emotional, mental, social, or financial?

 If no harm evidence exists, what practices pose potential harm?

 What causes the harm? Elaborate as needed.

• lack of skills
• lack of knowledge
• lack of ethics
• lack of supervision
• practices inherent in the occupation
• Characteristics of clients served
• characteristics of the practice setting
• other (specify)

 Is there potential for fraud due to the public's inability to choose a competent practitioner?

 Is the public seeking regulation or greater accountability of this group?

1. Specialized Skills and Training.

 What are the educational or training requirements for entry?

Are these programs accredited? By whom?

• Are sample curricula available?
• Are there training programs in Virginia?

 If no Virginia programs exist, what info is available on programs elsewhere preparing practitioners for the Commonwealth? What are

13 the minimum competencies (knowledge, skills, and abilities) required for entry into the profession? How were they derived?

 Are there national, regional, and/or state examinations available to assess entry-level competency?

• Who develops and administers the examination?
• What content domains are tested?
• Are the exams psychometrically sound per The Standards for Educational and Psychological Testing?

 Are there requirements to ensure continuing competence, such as mandatory education, re-exams, peer review, audits, institutional review, simulations, or self-assessment?

 Why does the public require state assurance of initial and continuing competence?

What assurances does the public have already through private credentialing or certification or institutional standards, etc.?

 Are there recognized or emerging specialties (or levels or classifications) within the occupational grouping? If so:

• What are these specialties?
• How are they recognized (e.g., certification by a national organization)?
• What are the levels of specialties based on functions or services?
• How can the public distinguish among these levels or specialties?

 Is a “generic” regulatory program appropriate, or should classifications (specialties/levels) be regulated separately (e.g., basic licensure with specialty certification)?

1. Autonomous Practice.

 Which functions performed by this group are unsupervised (not directly monitored or routinely checked)?

• What proportion of time is spent in unsupervised activity?
• Who is liable for acts performed without supervision?

14

 Which functions are performed only under supervision?

• Is supervision direct (on premises) or general? Who supervises, how often, where, and for what purpose?
• Who is liable for acts under supervision?
• Is the supervisor a member of a regulated profession?
• What is in a typical supervisory or collaborative protocol?

 Does this practitioner supervise others? Describe the supervision (as above).

 Describe a typical work setting, including supervision and interactions with other occupations and professions.

 Does this group serve a specific consumer population?

 Are consumers referred to this group? If so, by whom?

Describe a typical referral mechanism.

 Are consumers referred from this group? If so, to which practitioners? Describe a typical referral process.

 How and on what basis are decisions to refer made?

1. Scope of Practice.

 Which functions of this occupation are similar to other groups?

• Which group(s)?
• Are the other groups state-regulated?
• If so, why might the applicant group differ?

 Which functions are unique to this occupation?

15

• Which group(s)?
• Are the other groups regulated by the state?

How will regulating this occupational group impact the scope, marketability, and economic status of similar groups (regulated or unregulated)?

1. Economic Impact.

What are the income ranges and averages for this group in the Commonwealth, adjoining states, and nationally?

 What are the typical current fees for services provided by this group in the Commonwealth? In adjoining states? Nationally?

Is there evidence that service costs will rise if regulated? Have fees or salaries changed in other states due to regulation?

Would state regulation restrict other groups from providing this occupation's services?

• Can other groups provide similar care at lower costs?
• How is this lower cost possible?

 Are there current shortages/oversupplies of practitioners in Virginia? In the region?

Nationally?

1. Alternatives to Regulation. .

What laws or regulations currently govern:

• Facilities in which practitioners practice or are employed?
• Standards or practice?

Does the group participate in nongovernmental credentialing through a national certifying agency or professional association?

• How are the standards set and enforced in the program?
• What is practitioners' participation extent in the program?

16

Does this profession have a Code of Ethics?

• What is it?
• Who established the Code?
• How is it enforced?
• Is adherence mandatory?

Is there a peer evaluation mechanism in Virginia or elsewhere? Elaborate.

 How is a practitioner disciplined and for what causes? Violation of standards of care?

Unprofessional conduct? Other causes?

Are there other measures within the group to protect consumers from negligence or incompetence (e.g., insurance, review boards)?

How are challenges to a practitioner’s competency handled?

1. Least Restrictive Regulation

 Should the occupation or profession be regulated?

If yes, what is the appropriate regulation level?

EXAMINATION POLICY #600-02 EXAMINATION SITE CONDUCT Effective Date: December 1, 2019

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 1 of 3

Approved By:

I. PURPOSE: The purpose of this policy is to establish guidelines for Department of Professional and Occupational Regulation and examination vendor/contractor staff to follow when dealing with prohibited conduct or irregularities at examination sites.

II. POLICY STATEMENT: Pursuant to § 54.1-102 of the Code of Virginia, it is unlawful for any person to procure or assist another individual to procure, through theft, fraud or other illegal means, a license, certificate, permit, or other authorization issued by the Department. Conduct exhibited by an examination candidate at examination sites that compromises the validity, reliability and security of the examination as well as the efficient and effective administration of the examination is prohibited.

III. DEFINITIONS: Prohibited Conduct Any behavior taking place before, during, or after an examination that compromises the validity, reliability or security of an examination; is disturbing to others; or detracts from the efficient and effective administration of an examination including, but not limited to:

• Looking at another candidate’s computer screen, test booklet, or giving improper assistance to another candidate during administration of an examination.
• Unauthorized use of electronic devices. These devices include but are not limited to: cell phones, smart watches, audio and video recording devices, cameras, spy equipment, and other communication devices.
• Use of notes, sample tests, references, answer keys, calculators, manuals, note pads, or other aids that have not been explicitly approved for use during the examination.
• Copying, recording, transmitting or attempting to copy, record, or transmit examination items, questions, answers, or other content in any form. This includes writing in authorized reference materials during open-book exams and writing in or on unauthorized note or scratch pads.
• Reconstructing or attempting to reconstruct from memory any examination content for any purpose.
• Receiving, soliciting, or possessing current or prior examination content from a person who was not explicitly authorized in writing by DPOR to share the examination content.
• Communicating with any person before, during, or after the examination about specific examination items, questions, answers, or other confidential examination content.
• Exhibiting irrational or disruptive behavior at the examination site.
• Continuing to respond to exam questions whether verbal, online, or in writing after time has been called.

Digitally signed by Mary Broz Vaughan Date: 2019.12.16 15:59:08 -05'00'

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 2 of 3

• Impersonating or attempting to impersonate an examination candidate, or using or attempting to use false identification to take an examination.
• Allowing another person to take or attempt to take your examination.
• Failure to follow any provision of the Candidate Information Bulleting/Handbook or instructions given at the examination site.
• Any non-compliance with § 54.1-102 of the Code of Virginia.

Irregularity Report This report is prepared by DPOR examination proctor(s) that details irregularities encountered during the administration of an in-house examination. Examples of irregularities include emergencies, improper identification, disturbances, or any prohibited conduct defined above.

IV. RELATED DOCUMENTS:  Testing Irregularity Report  Examination Agreement

V. GENERAL PROVISIONS:

A. EXAMINATION SITE CONDUCT AGREEMENT Prior to administration of the examination, all approved examination candidates shall be required to read, complete, sign, and submit an Examination Agreement provided by the Department of Professional and Occupational Regulation which acknowledges the candidate’s understanding of actions that constitute prohibited conduct and any consequences associated with the conduct.

B. HANDLING PROHIBITED CONDUCT When prohibited conduct is observed at an examination site, proctors are encouraged to exercise sound judgment in handling each incident. Proctors are discouraged from confronting hostile candidates, making physical contact with a candidate, or placing themselves in a position where the candidate could harm them. If possible, the conduct should be brought to the attention of a second proctor to corroborate the incident. All observations of prohibited conduct shall be handled in accordance with the specific guidelines below and documented on a Testing Irregularity Report. Specific guidelines are as follows.

1. In situations where a candidate is looking at another candidate’s computer screen, answer sheet/test booklet, or giving assistance to another candidate during administration of an examination, the proctor shall reclaim all examination materials and expel the candidate from the test site.
2. In situations where there is unauthorized use of electronic devices, notes, unauthorized notes or scratch pads, sample tests, references, and answer keys during the administration of an examination, the proctor shall reclaim all examination materials and expel the candidate from the test site.
3. In situations where the candidate is copying, recording, transmitting, or attempting to copy, record, or transmit in writing, electronically or by other means, any part of an examination, with or without intent to remove the material from the examination room, the proctor shall reclaim all examination materials, both authorized and unauthorized, and expel the candidate from the test site.
4. In situations where a candidate exhibits distracting or disruptive behavior at the examination site: a. The proctor shall discuss the observed behavior with the exam candidate and request correction of the behavior. b. If the prohibited conduct continues, the proctor shall reclaim all examination materials and expel the candidate from the test site.
5. Continuing to respond to exam questions whether verbal, online, or in paper/pencil format after time has been called: a. The proctor shall warn the candidate that time has been called.

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 3 of 3

b. After the initial warning, any continuation of the prohibited conduct shall result in the collection of all examination materials and expulsion from the test site.

1. Any determination of false identity, impersonation, or an attempt to use false identification to impersonate an examination candidate will result in immediate expulsion from the test site. The proctor shall reclaim all examination materials, document the incident, and make copies of any documents provided by the candidate.

EXAMINATION POLICY #600-02 EXAMINATION SITE CONDUCT Effective Date: December 1, 2019

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 1 of 3

Approved By:

I. PURPOSE: This policy establishes guidelines for DPOR and vendor staff to handle prohibited conduct or irregularities at examination sites.

II. POLICY STATEMENT: Pursuant to § 54.1-102, it is unlawful to assist in illegally obtaining a license or permit. Candidate conduct that compromises exam validity, reliability, security, or administration is prohibited.

III. DEFINITIONS: Prohibited Conduct includes behavior before, during, or after an exam that compromises validity, reliability, security, or disrupts administration, including but not limited to:

• Looking at another candidate’s screen, test booklet, or giving improper assistance during the exam.
• Unauthorized use of electronic devices. These devices include but are not limited to: cell phones, smart watches, audio and video recording devices, cameras, spy equipment, and other communication devices.
• Use of notes, sample tests, references, answer keys, calculators, manuals, notepads, or other unapproved aids.
• Copying, recording, transmitting, or attempting to do so for exam content in any form, including writing in authorized references during open-book exams or on unauthorized notes.
• Reconstructing or attempting to reconstruct exam content from memory.
• Receiving, soliciting, or possessing exam content from unauthorized persons.
• Communicating about exam items, questions, answers, or confidential content before, during, or after.
• Exhibiting irrational or disruptive behavior at the examination site.
• Continuing to answer exam questions after time has been called.

Digitally signed by Mary Broz Vaughan Date: 2019.12.16 15:59:08 -05'00'

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 2 of 3

• Impersonating or attempting to impersonate a candidate, or using false ID.
• Allowing another person to take or attempt your exam.
• Failure to follow any instructions in the Candidate Bulletin/Handbook or at the exam site.
• Non-compliance with § 54.1-102 of Virginia Code.

Irregularity Report: Prepared by DPOR proctors to document irregularities during in-house exams, including emergencies, improper ID, disturbances, or prohibited conduct.

IV. RELATED DOCUMENTS: Testing Irregularity Report, Examination Agreement

V. GENERAL PROVISIONS:

A. EXAMINATION SITE CONDUCT AGREEMENT: Before testing, candidates must read, complete, sign, and submit an Examination Agreement acknowledging prohibited conduct and consequences.

B. HANDLING PROHIBITED CONDUCT: When observed, proctors should exercise judgment, avoid confrontation or physical contact, seek second proctor confirmation if possible, and document incidents per guidelines.

1. If a candidate looks at another’s screen, test booklet, or assists, the proctor shall reclaim all materials and expel the candidate.
2. If unauthorized devices, notes, scratch pads, sample tests, references, or answer keys are used, the proctor shall reclaim all materials and expel the candidate.
3. In cases where a candidate copies, records, transmits, or attempts to do so in any form, the proctor shall reclaim all examination materials and expel the candidate from the test site.
4. If a candidate exhibits disruptive behavior, the proctor shall discuss it and request correction; if it persists, reclaim all materials and expel the candidate.
5. If a candidate responds after time is called, the proctor shall warn them.

Policy Title: Examination Policy #600-02 Examination Site Conduct [POL543-600_02-v16] Effective: 12/01/2019 Submitted By: Shannon Webster, Director of Education & Examinations Guidance Document: Yes Supersedes: Examination Policy #600-02 Examination Site Conduct (Effective 06/26/2014) Page 3 of 3

b. After the initial warning, continued prohibited conduct will lead to collection of all exam materials and candidate expulsion.

1. Any false identity, impersonation, or attempt to use false ID results in immediate expulsion; the proctor shall reclaim materials, document, and copy documents.

Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 1 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

DIRECTOR’S POLICY #100-02

AMERICANS WITH DISABILITIES ACT COMPLIANCE

Approved By:

Effective Date: May 26, 2023 Digitally signed by Demetrios J. Melis Date: 2023.06.07 11:48:19

• 04'00'

I. PURPOSE: The purpose of this policy is to ensure full compliance with the provisions of the Americans with Disabilities Act (ADA) by establishing a sufficient, equitable and consistent process for handling requests for accommodations/modifications submitted to the Department of Professional and Occupational Regulation (DPOR) or to any contractor acting on their behalf.

II. POLICY STATEMENT: Subtitle A of Title II of the Americans with Disabilities Act (ADA) of 1990, as amended, states, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” DPOR shall apply objective standards when processing requests for accommodations/modifications under the provisions of the ADA.

III. DEFINITIONS: Auxiliary aids/services Services and devices designed to provide audio and visual communication to persons with hearing, speech and vision impairments. Examples include, but are not limited to qualified interpreters, transcription services, written materials, telephone handset amplifiers, assistive listening devices/systems, closed caption decoders, videotext displays and telecommunications devices for deaf persons (TDDs) for individuals with hearing impairments and Braille materials, audio recordings and large print materials for individuals with visual impairments.

Disability A physical or mental impairment that substantially limits one or more of the major life activities of an individual. The term does not include psychoactive substance use disorders (affecting the mind or behavior) resulting from the current illegal use of drugs.

Disabled individual An individual with a physical or mental impairment that substantially limits one or more major life activities of the individual; has a record of an impairment that substantially limits one or more major life activities; or is regarded as having an impairment that substantially limits a major life activity, regardless of whether the individual actually has an impairment.

Major life activities Activities including such things as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

Mental impairment Mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness and specific learning disabilities.

Physical impairment Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs (including speech organs that are not respiratory such as vocal cords, soft palate, tongue, etc.), respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine.

Qualified individual An individual with a disability who, with or without reasonable accommodations/modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 2 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

IV. RELATED DOCUMENTS: Americans with Disabilities Act (ADA)

V. GENERAL PROVISIONS:

A.

GENERAL GUIDELINES

1. If the Department can demonstrate that a particular accommodation/modification would fundamentally alter the nature of the service, program or activity, it is not required to make that accommodation/modification.
2. The question of whether a temporary impairment constitutes a disability shall be resolved on a case-by-case basis, with consideration given to the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual. The ADA Committee shall determine whether the temporary impairment constitutes a disability.
3. Persons with disabilities who pose a significant health or safety risk to others may not be deemed “qualified” based on the Department’s individualized assessment of current medical evidence (or the best available objective evidence). Using this objective evidence, DPOR shall consider the nature, duration and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable accommodations/modifications of policies, practices or procedures will mitigate the risk.

B.

PUBLIC MEETINGS AND HEARINGS

1. All DPOR meetings, disciplinary proceedings and hearings involving the public shall be held in locations that are accessible to disabled individuals. All public meeting notices on the Virginia Regulatory Town Hall shall indicate that the location is accessible to persons with disabilities and an interpreter for the hearing impaired will be provided upon request. All other public notices shall include the following language: Persons desiring to participate in the meeting and requiring special accommodations/modifications or interpretive services should contact the Department at (804) 367-8519 at least ten (10) days prior to the meeting so that suitable arrangements can be made for the appropriate accommodation/modification. The Department of Professional and Occupational Regulation fully complies with the Americans with Disabilities Act.
2. All requests for accommodation/modification under the ADA shall be directed to the ADA Coordinator. The Department shall make every effort to provide reasonable accommodations/modifications for all public meetings.
3. The Department shall not place special charges on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment, such as making accommodations/modifications required to provide program accessibility or providing qualified interpreters.

C.

ADA COMMITTEE

1. The Department shall establish an ADA Committee comprised of the following positions: ADA Committee Members Section/Division Status Deputy Director Compliance & Investigations ADA Coordinator Director or Assistant Director Human Resources Member Director Alternative Dispute Resolution/CID Member Director Workforce Development/LRPD Member Board Executive Director Licensing & Regulatory Programs Division Member (selected by LRPD Deputy Director) Section Director or Manager Compliance & Investigations Division Member (selected by CID Deputy Director) Manager or Director Executive Member (selected by Agency Director) Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 3 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

1. The ADA Committee shall have the authority to resolve any disagreements, disputes, or grievances. The Committee shall report to the DPOR Director.
2. Committee appointments shall remain in effect until notified in writing of a replacement.

D. PUBLICATIONS

1. All Department publications distributed to the public, including employment advertising, consumer guidance, biennial reports, regulations, manuals and handbooks shall comply with Title II of the ADA. All publications shall include a statement that the Department of Professional and Occupational Regulation complies with the Americans with Disabilities Act.
2. Upon request, a publication shall be available in alternative formats unless it would place an undue financial and administrative burden on the Department, or fundamentally alter the nature of the publication.

E. EXAMINATIONS

1. General a. The Department shall ensure that all examinations administered by or on behalf of DPOR shall measure the actual ability of an individual rather than reflect limitations caused by the disability. b. The Department or any examination vendor acting on their behalf shall offer all examinations in an accessible location and provide auxiliary aids and services for qualified individuals with disabilities. c. DPOR or their authorized examination vendor shall bear the cost of any accommodation/modification and/or auxiliary aids provided for qualified individuals with disabilities.
2. Applications for Accommodation/Modification a. All DPOR and vendor examination applications shall include an area where qualified applicants indicate their need for accommodations/modifications when taking the examination. b. Applicants requesting accommodations/modifications under the ADA are asked to submit a completed ADA Accommodation/Modification Request Form or other similar DPOR-approved document prepared by the examination vendor to the Department. Upon request, the Department will provide assistance completing the forms. c. Applicants requesting accommodation/modification under the provisions of the ADA are required to meet the same application deadlines established for non-disabled applicants. d. Applicants with documentation of having received the same or similar accommodation/modification in a previous test situation may be permitted to submit that information instead of preparing new documentation. The Workforce Development Director shall make all decisions regarding the sufficiency of existing documentation. e. All disability-related candidate records shall be classified as confidential information. Access to the information shall be limited to individuals who are responsible for processing the applicant’s request for accommodation/modification.
3. Approval of Requests for Accommodation/Modification a. Executive Directors in the Licensing and Regulatory Programs Division shall refer all requests for accommodation/modification to the Workforce Development Section for processing. b. Requests denied by the examination vendor shall be forwarded to the Workforce Development Section of the Department for review and possible reconsideration before it is communicated to the applicant. c. With the exception of national examinations, which are not covered by this policy, the Workforce Development Director shall approve/deny all accommodation/modification requests for DPOR on-site examinations and notify the ADA Coordinator of any accommodations/modifications to be made for the Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 4 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

candidate. d. Examination vendors shall coordinate all approved requests for ADA accommodations/modifications.

1. Accommodations/Modifications a. Testing accommodations shall be provided to qualified individuals with disabilities to enable the individuals to demonstrate their knowledge of the subject being tested by removing any architectural, communication, and transportation barriers or by providing auxiliary aids or services. When offering testing accommodations, DPOR shall focus on the individual need of the applicant, which may result in different accommodations for the same disability. b. Accommodation requests that are deemed inappropriate or unreasonable by the Examinations Director or Board section may be discussed with the candidate and/or professional recommending the accommodation to reach a mutually agreeable solution. c. Reasonable testing accommodations include a distraction-free space, an alternative location, test schedule variation, extended time, a scribed exam, sign language interpreters, readers, adaptive equipment and modifications of test presentation/response format. d. Requests for a time extension shall be evaluated on a case-by-case basis, in which consideration is given to the type of accommodations being provided, the disability involved, and the type of test being administered. In situations where a reader is used, time and one-half is usually appropriate. A request for unlimited time shall not be considered reasonable. It is the responsibility of the professional completing the supporting documentation to recommend an appropriate time extension.

F.

RECORD KEEPING All documents related to the denial of an ADA accommodation/modification request shall be maintained by the Department for a period of one year from the date of denial. In situations where charges of discrimination are filed against the Department, all documentation shall be retained until the final disposition of the case. A copy of this information shall be provided to the ADA Coordinator upon request.

G. APPEAL/GRIEVANCE PROCEDURES

1. The Department has adopted an agency grievance procedure to provide prompt and equitable resolution of ADA violation claims. Complaints should be addressed to the ADA Coordinator, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, (804) 367-8500.
2. Complaints may be filed verbally or in writing. All complaints must contain the name and address of the person filing the complaint and a brief description of the alleged violation.
3. Complaints must be filed within five (5) working days from the date the complainant becomes aware of the alleged violation.
4. Following a complaint, an informal but thorough investigation shall be conducted by the Department’s ADA Committee. All interested persons and their representatives shall be afforded an opportunity to submit evidence to substantiate their position.
5. The ADA Committee’s decision regarding the validity of the ADA complaint shall be issued in writing by the ADA Committee, and a copy of this decision will be forwarded to the complainant no later than five (5) workdays after its filing, if possible.
6. The ADA Coordinator shall maintain the Department’s files and records related to ADA complaints for three (3) years.
7. The complainant may request reconsideration of the decision in instances where the complainant is dissatisfied with the resolution. The request for reconsideration shall be made to the Agency Director within five (5) days of receiving the committee decision. The Director shall evaluate the request for reconsideration and prepare a written response to the complainant within five (5) workdays, if possible.

Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 5 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

1. The right of the person to a prompt and equitable resolution of the complaint filed hereunder shall not be impaired by the person’s pursuit of other remedies such as the filing of an ADA complaint with the responsible federal department or agency. Use of this grievance procedure is not a prerequisite to the pursuit of other remedies.
2. These rules shall be construed to protect the substantive rights of interested persons to meet appropriate due process standards, and to assure that the Department complies with the ADA when implementing regulations. 10. The timeframes outlined above may be modified if both the Department and the complainant agree to the modification.

Policy Title: Submitted By: Supersedes: Director’s Policy #100-02 Americans with Disabilities Act Compliance [POL401-100_02-v6] Effective: 05/26/2023 R. Thomas Payne II, Deputy Director, CID Guidance Document: Yes Page 1 of 5 Director’s Policy #100-02 Americans with Disabilities Act Compliance (Effective 05/22/2017)

DIRECTOR’S POLICY #100-02

AMERICANS WITH DISABILITIES ACT COMPLIANCE

Approved By:

Effective Date: May 26, 2023 Digitally signed by Demetrios J. Melis Date: 2023.06.07 11:48:19

• 04'00'

I. PURPOSE: This policy ensures ADA compliance by establishing a fair, consistent process for handling accommodation/modification requests submitted to DPOR or its contractors.

II. POLICY STATEMENT: Subtitle A of Title II of the ADA of 1990 states no qualified individual with a disability shall be excluded or denied benefits from public services or activities. DPOR shall use objective standards for processing accommodation requests.

III. DEFINITIONS: Auxiliary aids/services are devices and services providing audio/visual communication for hearing, speech, and vision impairments, including interpreters, transcription, written materials, amplifiers, assistive listening, caption decoders, TDDs, Braille, audio recordings, and large print.

Disability: A physical or mental impairment that substantially limits major life activities; excludes impairments from illegal drug use.

Disabled individual An individual with a physical or mental impairment that substantially limits one or more major life activities of the individual; has a record of an impairment that substantially limits one or more major life activities; or is regarded as having an impairment that substantially limits a major life activity, regardless of whether the individual actually has an impairment.

Major life activities Activities including such things as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

Mental impairment: Disorders like intellectual disability, brain syndrome, emotional or mental illness, and learning disabilities.

Physical impairment: Any disorder, disfigurement, or loss affecting neurological, musculoskeletal, sensory, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic, skin, or endocrine systems.

Qualified individual: Someone with a disability who, with or without reasonable accommodations, barriers removal, or auxiliary aids, meets eligibility for services or participation in public programs.

Same as paragraph 1; no change needed

IV. RELATED DOCUMENTS: Americans with Disabilities Act (ADA)

V. GENERAL PROVISIONS:

A.

GENERAL GUIDELINES

1. If the Department demonstrates that an accommodation/modification would fundamentally alter the service, program, or activity, it is not required to provide it.
2. Whether a temporary impairment is a disability shall be decided case-by-case, considering duration and impact on major life activities. The ADA Committee shall make this determination.
3. Persons with disabilities posing significant health or safety risks may not be deemed “qualified” based on individualized assessment of medical or objective evidence, considering risk nature, duration, severity, likelihood, and if accommodations mitigate the risk.

B.

PUBLIC MEETINGS AND HEARINGS

1. DPOR meetings, proceedings, and hearings must be accessible. Notices on the Virginia Regulatory Town Hall must state accessibility and interpreter availability. Other notices must request 10 days’ notice for accommodations. DPOR complies with ADA.
2. All ADA accommodation requests shall be directed to the ADA Coordinator. The Department will make every effort to provide reasonable accommodations for public meetings.
3. The Department shall not charge individuals with disabilities for costs of measures ensuring nondiscriminatory treatment, including accommodations, modifications, or interpreters.

C.

ADA COMMITTEE

1. The ADA Committee shall include specified positions: Deputy Director, ADA Coordinator, Director/Assistant Director HR, Directors of ADR/CID, Workforce Development/LRPD, Board Executive Director, Section/Division Directors, Managers, and Agency Director, as detailed in the policy.

1. The ADA Committee shall resolve disputes and grievances and report to the DPOR Director.
2. Committee appointments remain until replaced in writing.

D. PUBLICATIONS

1. All public Department publications, including ads, reports, regulations, manuals, and handbooks, shall comply with Title II of the ADA and include a statement of compliance.
2. Publications shall be available in alternative formats upon request unless it causes undue burden or fundamentally alters the publication.

E. EXAMINATIONS

1. General a. The Department shall ensure that all examinations administered by or on behalf of DPOR shall measure the actual ability of an individual rather than reflect limitations caused by the disability. b. The Department or any examination vendor acting on their behalf shall offer all examinations in an accessible location and provide auxiliary aids and services for qualified individuals with disabilities. c. DPOR or their authorized examination vendor shall bear the cost of any accommodation/modification and/or auxiliary aids provided for qualified individuals with disabilities.
2. Applications must include a request area. Requests require a completed form or similar documentation. Deadlines are the same. Prior documentation may suffice. Records are confidential, limited to responsible staff.
3. Requests are referred to the Workforce Development Section. Vendor-denied requests are reviewed before informing the applicant. The Director approves/denies requests for on-site exams, excluding national exams.

d. Examination vendors shall coordinate all approved ADA accommodation requests.

1. Accommodations/Modifications a. Testing accommodations shall be provided to qualified individuals with disabilities to enable the individuals to demonstrate their knowledge of the subject being tested by removing any architectural, communication, and transportation barriers or by providing auxiliary aids or services. When offering testing accommodations, DPOR shall focus on the individual need of the applicant, which may result in different accommodations for the same disability. b. Accommodation requests that are deemed inappropriate or unreasonable by the Examinations Director or Board section may be discussed with the candidate and/or professional recommending the accommodation to reach a mutually agreeable solution. c. Reasonable testing accommodations include a distraction-free space, an alternative location, test schedule variation, extended time, a scribed exam, sign language interpreters, readers, adaptive equipment and modifications of test presentation/response format. d. Requests for a time extension shall be evaluated on a case-by-case basis, in which consideration is given to the type of accommodations being provided, the disability involved, and the type of test being administered. In situations where a reader is used, time and one-half is usually appropriate. A request for unlimited time shall not be considered reasonable. It is the responsibility of the professional completing the supporting documentation to recommend an appropriate time extension.

F.

RECORD KEEPING: All documents related to denied ADA requests shall be kept for one year; if discrimination charges are filed, retain until case final; copies available upon request.

G. APPEAL/GRIEVANCE PROCEDURES

1. The Department’s grievance procedure resolves ADA claims promptly. Complaints go to the ADA Coordinator at 9960 Mayland Drive, Richmond, VA 23233, (804) 367-8500.
2. Complaints may be verbal or written, including the complainant’s name, address, and a brief violation description.
3. Complaints must be filed within five working days of awareness of the violation.
4. The ADA Committee shall conduct an informal investigation, allowing interested persons and representatives to submit evidence.
5. The ADA Committee shall issue a written decision on the complaint, and send a copy within five workdays if possible.
6. The ADA Coordinator shall keep ADA complaint records for three years.
7. Dissatisfied complainants may request reconsideration within five days to the Agency Director, who will respond in five workdays if possible.

Same as paragraph 1; no change needed

1. Pursuing other remedies does not impair the right to a prompt, equitable resolution through this grievance process, which is not a prerequisite for other remedies.
2. These rules protect substantive rights, ensure due process, and compliance with the ADA. Timeframes may be modified if both parties agree.

FINANCE POLICY #700-03 ACCOUNTS RECEIVABLE & DEBT COLLECTION Effective Date: July 1, 2018 Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 1 of 4

Approved By:

I. PURPOSE: The purpose of this policy is to establish guidelines for the management and collection of accounts receivable as required by the State Comptroller.

II. POLICY STATEMENT: The Department of Professional and Occupational Regulation shall take all appropriate and cost effective actions to aggressively collect its accounts receivable in accordance with the Code of Virginia and Commonwealth Accounting Policies and Procedures.

III. DEFINITIONS: Accounts Receivable Any amount owed to the Department, including monetary penalties, recovery fund payments, employee reimbursements, and miscellaneous billings arising from the sale of goods or services. An accounts receivable is also referred to as a receivable. Receivables do not include travel advances, which are addressed separately in Finance Policy #700-01 Travel and Business Meals.

Monetary Penalties Penalties assessed against licensees under § 54.1-202 of the Code of Virginia for the violation of any statute or regulation pertaining to a regulatory board of the Department.

Other Receivables Amounts owed for services rendered (e.g., license transcripts, FOIA requests, employee reimbursements, and other miscellaneous billings).

Recovery Fund Payments Amounts owed for Recovery Fund claims paid in accordance with § 54.1-1120, § 54.1-2114 and § 55-530.1 of the Code of Virginia.

IV. RELATED DOCUMENTS:  Commonwealth Accounting Policies and Procedures Topic 20505 Accounts Receivable  Set-Off Program Information Guide (published by the Virginia Department of Taxation)  Attorney General Debt Collection Procedures  Certification of Final Order Form  Director’s Policy #100-05 License Suspensions  Finance Procedure 600-601 Receivables  Finance Procedure 600-505 Recovery Fund Receivables

V. GENERAL PROVISIONS:

A. MONETARY PENALTIES

1. Creation of the Receivable The approval of any Consent or Final Order that assesses monetary penalties or costs creates a receivable. The receivable is due from the moment the Director signs the Order. However, most Orders give the debtor a fixed amount of time to pay before the account is deemed past due.
2. License Suspension The licensing sections are responsible for monitoring disciplinary orders until compliance is obtained. If the order assesses penalties or costs and payment is not made by the due date, the account is deemed to be past due and the Executive Director shall suspend the debtor’s license for non-payment according to the provisions of Director’s Policy #100-05 License Suspensions.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.26 14:36:29 -04'00'

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 2 of 4

1. Collection Efforts on Unpaid Accounts Following the license suspension, but not more than 30 days after the payment due date, the board shall notify the Finance Section of the need for collection. The Finance Section shall employ the collection procedures outlined in Finance Procedure #600-601 Receivables to collect the amount owed to the Department.

B. RECOVERY FUND CLAIMS

1. Payment from the Fund Recovery Fund claims are paid pursuant to approved Final Orders. The payment of any Recovery Fund claim creates an immediate obligation for the regulant to repay the Fund with interest.

Upon payment from the Fund, the Finance Section shall employ the collection procedures outlined in Finance Procedure #600-505 Recovery Fund Receivables to collect the amount owed.

1. License Revocation The Finance Section shall notify the regulatory board sections whenever a payment is made from the Recovery Funds. Upon receiving this notice, the board sections shall revoke the regulant’s license except for claims against the Contractor Transaction Recovery Fund or when prevented by bankruptcy.
2. Calculation of Interest The Department shall assess interest on all Recovery Fund accounts receivable according to the Virginia Debt Collection Act § 2.2-4805 of the Code of Virginia. Interest is imposed at the judgment rate as provided in § 6.2-302 of the Code of Virginia.

C. OTHER RECEIVABLES The Information Management Section is responsible for billing and collecting all license transcripts, FOIA and other public record fees. If any billed amount remains unpaid on the last day of any quarter, the Information Management Section shall report the amount owed to the Finance Section so that it can be included in the Comptroller’s Quarterly Accounts Receivable Report. In the event that the Information Management Section is unable to obtain payment from the debtor within a reasonable time period, they shall forward the account and all supporting documentation to the Finance Section for further collection efforts.

D. PARTIAL PAYMENTS

1. The Department does not accept installment agreements and debtors must pay the full amount owed on or before the required payment due date.
2. If partial payment is made, the Department will receipt the funds and apply them to the appropriate account. The receipt does not constitute an installment agreement and will not prevent or stop outside collection efforts if full payment is not received before the required due date. In addition, the debtor’s license shall remain suspended for nonpayment and/or the regulant will be ineligible to reapply for a new license until the account is paid in full.
3. Partial payments in disciplinary cases will be applied to costs first and penalties second. All collections on monetary penalties will be deposited to the State Literary Fund in accordance with § 19.2-353 of the Code of Virginia. Partial payments in recovery fund cases will be applied to accrued interest first and then to the principal balance.

E. DEBT SET-OFF MATCHES

1. Debt Set-Off The Department participates in the Department of Taxation’s Individual Debt Set-Off Collection Program and the state Comptroller's Debt Set-Off program. These programs intercept state tax

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 3 of 4

refunds, lottery winnings, and targeted vendor payments and use them to offset debts owed to state agencies.

1. Debtor Notification The state Department of Taxation notifies DPOR via e-mail when available funds have been matched to the agency’s debt. Within ten calendar days of the match date, the Finance Section shall notify the debtor in writing that the Department of Taxation is holding available funds against the debt. The purpose of the letter is to inform debtors that they have thirty calendar days to contest the validity of the debt before the funds are seized.
2. Right to Contest The debtor has the right to contest the validity of a claim before the set-off agency. The debtor must give written notice of his desire to contest a claim within 30 calendar days of the mailing date of the set-off agency’s letter. This will suspend further set-off action.

When the Finance Section receives notice that a debtor is contesting, they shall schedule a Set-Off Hearing. The Finance Section shall select a Presiding Officer that has no prior involvement in the circumstances that culminated in the dispute. The Presiding Officer shall establish a date, time and place for the hearing and shall notify the debtor of these facts using certified mail within ten days of receiving the hearing request.

1. Hearing Procedures a. The Presiding Officer shall conduct the Set-Off Hearing on the appointed date. The scope of the hearing shall be limited to determining whether the amount in set-off is an obligation that remains due and owed to the Department. The underlying basis of the debt shall not be addressed in the Set-Off Hearing. b. A representative from the Finance Section shall attend the hearing to present the Department’s evidence and may call witnesses on the Department’s behalf. The debtor shall also be allowed to submit evidence relevant to the matter and to call witnesses. A tape recorder or court reporter shall provide a record of the proceedings. c. The Presiding Officer shall consider all the evidence presented at the hearing and shall make a determination as to whether the Department is entitled to the amount held in set-off.

While usually made at the conclusion of the hearing, the Presiding Officer may elect to delay the decision if additional information is needed. In such cases, the Presiding Officer shall notify the debtor of the hearing outcome within three days of receiving the additional information. After the final determination of the validity of the debt is determined, the Finance Section shall finalize the match in the Debt Set-Off system in order to collect or release the funds being held.

1. Failure to Appear The debtor’s failure to appear at the hearing at the appointed time and place shall be deemed a forfeiture of their opportunity to contest the claim and final set-off shall be awarded by default.
2. Appeal/Grievance Procedures The decision of the Presiding Officer shall be final. However, this does not prevent the debtor from appealing the decision in circuit court as provided in § 58.1-527 of the Code of Virginia. All appeals must be filed in circuit court within thirty days of the Department’s decision.

F. BANKRUPTCY STAYS Bankruptcy law requires the Department to suspend collection efforts against individuals or companies that have filed bankruptcy. To ensure compliance with this law, any DPOR employee who receives notice of a bankruptcy (including those received through the Recovery Fund process) should immediately forward a copy of the notice to the Financial Services Director. The Financial Services

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 4 of 4

Section staff will remove the account from the tax set-off program and notify the outside collection agent or Office of the Attorney General of the need to suspend collection efforts until the bankruptcy case is closed. The Financial Services Director or designee shall take appropriate action to protect the Department’s interests during the bankruptcy proceedings.

G. DELEGATION OF AUTHORITY The Director has authorized the Executive Director and Board Administrator of the board issuing the order to sign the Certification of Final Order that accompanies account referrals to the Office of the Attorney General.

FINANCE POLICY #700-03 ACCOUNTS RECEIVABLE & DEBT COLLECTION Effective Date: July 1, 2018 Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 1 of 4

Approved By:

I. PURPOSE: This policy establishes guidelines for managing and collecting accounts receivable as required by the State Comptroller.

II. POLICY STATEMENT: The Department shall take all appropriate, cost-effective actions to aggressively collect accounts receivable per the Code of Virginia and Commonwealth policies.

III. DEFINITIONS: Accounts Receivable is any amount owed to the Department, including penalties, recovery fund payments, reimbursements, and miscellaneous billings from goods or services. Travel advances are excluded, addressed in Policy #700-01.

Monetary Penalties Penalties assessed against licensees under § 54.1-202 of the Code of Virginia for the violation of any statute or regulation pertaining to a regulatory board of the Department.

Other Receivables Amounts owed for services rendered (e.g., license transcripts, FOIA requests, employee reimbursements, and other miscellaneous billings).

Recovery Fund Payments Amounts owed for Recovery Fund claims paid in accordance with § 54.1-1120, § 54.1-2114 and § 55-530.1 of the Code of Virginia.

IV. RELATED DOCUMENTS:  Commonwealth Accounting Policies and Procedures Topic 20505 Accounts Receivable  Set-Off Program Information Guide (published by the Virginia Department of Taxation)  Attorney General Debt Collection Procedures  Certification of Final Order Form  Director’s Policy #100-05 License Suspensions  Finance Procedure 600-601 Receivables  Finance Procedure 600-505 Recovery Fund Receivables

V. GENERAL PROVISIONS:

A. MONETARY PENALTIES

1. Creation of the Receivable The approval of any Consent or Final Order that assesses monetary penalties or costs creates a receivable. The receivable is due from the moment the Director signs the Order. However, most Orders give the debtor a fixed amount of time to pay before the account is deemed past due.
2. License Suspension The licensing sections are responsible for monitoring disciplinary orders until compliance is obtained. If the order assesses penalties or costs and payment is not made by the due date, the account is deemed to be past due and the Executive Director shall suspend the debtor’s license for non-payment according to the provisions of Director’s Policy #100-05 License Suspensions.

Digitally signed by Jay W. DeBoer DN: cn=Jay W. DeBoer, o=DPOR, ou=Director,, email=jay.deboer@dpor.virginia.gov, c=US Date: 2018.07.26 14:36:29 -04'00'

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 2 of 4

1. Collection Efforts on Unpaid Accounts Following the license suspension, but not more than 30 days after the payment due date, the board shall notify the Finance Section of the need for collection. The Finance Section shall employ the collection procedures outlined in Finance Procedure #600-601 Receivables to collect the amount owed to the Department.

B. RECOVERY FUND CLAIMS

1. Payment from the Fund Recovery Fund claims are paid pursuant to approved Final Orders. The payment of any Recovery Fund claim creates an immediate obligation for the regulant to repay the Fund with interest.

Upon payment from the Fund, the Finance Section shall employ the collection procedures outlined in Finance Procedure #600-505 Recovery Fund Receivables to collect the amount owed.

1. License Revocation The Finance Section shall notify the regulatory board sections of Recovery Fund payments. Upon notice, the board shall revoke the regulant’s license except for claims against the Contractor Transaction Recovery Fund or if prevented by bankruptcy.
2. Calculation of Interest The Department shall assess interest on all Recovery Fund accounts receivable per Virginia Debt Collection Act § 2.2-4805, at the judgment rate in § 6.2-302.

C. OTHER RECEIVABLES The Information Management Section is responsible for billing and collecting all license transcripts, FOIA and other public record fees. If any billed amount remains unpaid on the last day of any quarter, the Information Management Section shall report the amount owed to the Finance Section so that it can be included in the Comptroller’s Quarterly Accounts Receivable Report. In the event that the Information Management Section is unable to obtain payment from the debtor within a reasonable time period, they shall forward the account and all supporting documentation to the Finance Section for further collection efforts.

D. PARTIAL PAYMENTS

1. The Department does not accept installment agreements; debtors must pay the full amount by the due date.
2. Partial payments will be receipted and applied to the account but do not constitute an installment agreement or stop outside collection efforts if full payment is not received before the due date. The license remains suspended for nonpayment, and the regulant cannot reapply until paid in full.
3. In disciplinary cases, partial payments are applied to costs first, penalties second; collections on penalties go to the State Literary Fund § 19.2-353. In recovery fund cases, payments go to interest first, then principal.

E. DEBT SET-OFF MATCHES

1. Debt Set-Off The Department participates in the Department of Taxation’s Individual Debt Set-Off Collection Program and the state Comptroller's Debt Set-Off program. These programs intercept state tax

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 3 of 4

refunds, lottery winnings, and targeted vendor payments and use them to offset debts owed to state agencies.

1. Debtor Notification The Department of Taxation notifies DPOR via email when funds match the debt. Within ten days, the Finance Section shall notify the debtor in writing, giving thirty days to contest before funds are seized.
2. Right to Contest Debtors may contest claim validity before the set-off agency by written notice within 30 days of the letter, suspending further set-off action.

When the Finance Section receives notice that a debtor is contesting, they shall schedule a Set-Off Hearing. The Finance Section shall select a Presiding Officer that has no prior involvement in the circumstances that culminated in the dispute. The Presiding Officer shall establish a date, time and place for the hearing and shall notify the debtor of these facts using certified mail within ten days of receiving the hearing request.

1. Hearing Procedures a. The Presiding Officer shall conduct the Set-Off Hearing to determine if the amount is owed; the debt’s basis is not addressed. b. A Finance representative shall present evidence and call witnesses; the debtor may do the same. Proceedings will be recorded. c. The Presiding Officer will decide if the Department is entitled to the set-off amount.

While usually made at the conclusion of the hearing, the Presiding Officer may elect to delay the decision if additional information is needed. In such cases, the Presiding Officer shall notify the debtor of the hearing outcome within three days of receiving the additional information. After the final determination of the validity of the debt is determined, the Finance Section shall finalize the match in the Debt Set-Off system in order to collect or release the funds being held.

1. Failure to Appear Failure to appear at the hearing forfeits the opportunity to contest; final set-off will be awarded by default.
2. Appeal/Grievance Procedures The Presiding Officer’s decision is final but may be appealed in circuit court within 30 days as per § 58.1-527.

F. BANKRUPTCY STAYS Bankruptcy law requires the Department to suspend collection efforts against individuals or companies that have filed bankruptcy. To ensure compliance with this law, any DPOR employee who receives notice of a bankruptcy (including those received through the Recovery Fund process) should immediately forward a copy of the notice to the Financial Services Director. The Financial Services

Policy Title: Finance Policy #700-03 Accounts Receivable & Debt Collection [POL405-700_03-v7] Effective: 07/01/2018 Submitted By: Jeff Waite, Financial Services Director Guidance Document: Yes Supersedes: Finance Policy #700-03 Accounts Receivable & Debt Collection (Effective 02/10/2012) Page 4 of 4

Section staff will remove the account from the tax set-off program and notify the outside collection agent or Office of the Attorney General of the need to suspend collection efforts until the bankruptcy case is closed. The Financial Services Director or designee shall take appropriate action to protect the Department’s interests during the bankruptcy proceedings.

G. DELEGATION OF AUTHORITY The Director has authorized the Executive Director and Board Administrator of the board issuing the order to sign the Certification of Final Order that accompanies account referrals to the Office of the Attorney General.

DIRECTOR’S POLICY #100-01 ESTABLISHING, REVISING AND REPEALING DEPARTMENT POLICY Effective Date: May 22, 2017 Policy Title: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy [POL401-100_01-v10] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy (Effective 09/21/2009) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to establish procedures for creating, revising and repealing Department of Professional and Occupational Regulation (DPOR) Policy.

II. POLICY STATEMENT: Department of Professional and Occupational Regulation policies shall conform to all state and federal requirements. In the absence of a Department policy, applicable state policies, directives and guidelines shall apply to the situation. DPOR policies shall be accessible to all employees in electronic format in the shared DPOR Policy Manual folder.

III. DEFINITIONS: Guidance document Any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.

Policy Overall plan or guiding principles intended to influence and determine present and future Department decisions.

IV. RELATED DOCUMENTS:  Department of Human Resource Management Policies  DPOR Director’s Policy #100-13 Establishing & Revising Department Procedures

V. GENERAL PROVISIONS:

A. INFORMATION MANAGEMENT DIRECTOR

1. The DPOR Information Management Director shall advise agency staff on the policy development process to ensure appropriate categorization of policy and procedure documents. In addition, the Information Management Director shall draft or collaborate on the drafting of agency policy; coordinate any policy review activities; and ensure that all agency policies comply with federal, state and Department directives.
2. The Information Management Director shall determine the appropriate level of employee input or feedback, if any, prior to submitting the final policy to the DPOR Director for review and approval. Employee involvement in policy development may be limited to a senior management review or expanded to include a general solicitation of input/feedback from all employees.
3. The Information Management Director shall determine whether the policy should be classified as a Guidance Document. Policies that meet the definition of a guidance document shall be posted to the Virginia Regulatory Town Hall.

B. CRITERIA FOR ESTABLISHING POLICY The decision to establish a DPOR policy shall be based on one or both of the following criteria:

1. A policy is required in order to address a critical issue within the Department.
2. A policy is required by federal or state laws, policies or guidelines (e.g., Equal Employment Opportunity, State Travel Regulations, Virginia Freedom of Information Act, and Virginia Department of Human Resource Management Policies).

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.05.22 14:32:03 -04'00'

Policy Title: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy [POL401-100_01-v10] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy (Effective 09/21/2009) Page 2 of 2

C. INITIATING POLICY CHANGES

1. The DPOR Director, Deputy Director(s) and Division Directors may e-mail requests for a new policy as well as amendment to, or deletion of, an existing policy to the Information Management Director.
2. Any DPOR employee may request a policy change by submitting their request through his/her Division Deputy or Director. The request should identify the policy, the type of policy change (create, revise or delete) and a brief justification for the requested change.

D. REVIEW PROCESS

1. Requests to create, revise or repeal a policy must be justified and consistent with federal, state and Department guidelines. The Information Management Director shall notify the requester of any reasons for not processing the policy change request and may offer alternative ways of addressing the issue (e.g., use of state policy, agency procedures, work unit desk procedures, agency guidelines).
2. Any input/feedback obtained through an employee review, shall be summarized for the Director to consider when reviewing the final draft of the policy.
3. The Information Management Director shall submit a final draft of the policy to the DPOR Director for review and approval. Any additional changes requested by the Director shall be incorporated by the Information Management Director and resubmitted to the Director for signature.

E. POLICY AVAILABILITY The approved copy of agency policies shall be posted to the electronic DPOR Policy Manual on the shared I:\ drive.

The Information Management Director shall notify all employees of policy changes by e-mail.

DIRECTOR’S POLICY #100-01 ESTABLISHING, REVISING AND REPEALING DEPARTMENT POLICY Effective Date: May 22, 2017 Policy Title: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy [POL401-100_01-v10] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy (Effective 09/21/2009) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to establish procedures for creating, revising and repealing Department of Professional and Occupational Regulation (DPOR) Policy.

II. POLICY STATEMENT: Department of Professional and Occupational Regulation policies shall conform to all state and federal requirements. In the absence of a Department policy, applicable state policies, directives and guidelines shall apply to the situation. DPOR policies shall be accessible to all employees in electronic format in the shared DPOR Policy Manual folder.

III. DEFINITIONS: Guidance document Any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.

Policy Overall plan or guiding principles intended to influence and determine present and future Department decisions.

IV. RELATED DOCUMENTS:  Department of Human Resource Management Policies  DPOR Director’s Policy #100-13 Establishing & Revising Department Procedures

V. GENERAL PROVISIONS:

A. INFORMATION MANAGEMENT DIRECTOR

1. The DPOR Information Management Director shall advise agency staff on the policy development process to ensure appropriate categorization of policy and procedure documents. In addition, the Information Management Director shall draft or collaborate on the drafting of agency policy; coordinate any policy review activities; and ensure that all agency policies comply with federal, state and Department directives.
2. The Information Management Director shall determine the appropriate level of employee input or feedback, if any, prior to submitting the final policy to the DPOR Director for review and approval. Employee involvement in policy development may be limited to a senior management review or expanded to include a general solicitation of input/feedback from all employees.
3. The Information Management Director shall determine whether the policy should be classified as a Guidance Document. Policies that meet the definition of a guidance document shall be posted to the Virginia Regulatory Town Hall.

B. CRITERIA FOR ESTABLISHING POLICY The decision to establish a DPOR policy shall be based on one or both of the following criteria:

1. A policy is required in order to address a critical issue within the Department.
2. A policy is required by federal or state laws, policies or guidelines (e.g., Equal Employment Opportunity, State Travel Regulations, Virginia Freedom of Information Act, and Virginia Department of Human Resource Management Policies).

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.05.22 14:32:03 -04'00'

Policy Title: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy [POL401-100_01-v10] Effective: 05/22/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-01 Establishing, Revising & Repealing Department Policy (Effective 09/21/2009) Page 2 of 2

C. INITIATING POLICY CHANGES

1. The DPOR Director, Deputy Director(s) and Division Directors may e-mail requests for a new policy as well as amendment to, or deletion of, an existing policy to the Information Management Director.
2. Any DPOR employee may request a policy change by submitting their request through his/her Division Deputy or Director. The request should identify the policy, the type of policy change (create, revise or delete) and a brief justification for the requested change.

D. REVIEW PROCESS

1. Requests to create, revise or repeal a policy must be justified and consistent with federal, state and Department guidelines. The Information Management Director shall notify the requester of any reasons for not processing the policy change request and may offer alternative ways of addressing the issue (e.g., use of state policy, agency procedures, work unit desk procedures, agency guidelines).
2. Any input/feedback obtained through an employee review, shall be summarized for the Director to consider when reviewing the final draft of the policy.
3. The Information Management Director shall submit a final draft of the policy to the DPOR Director for review and approval. Any additional changes requested by the Director shall be incorporated by the Information Management Director and resubmitted to the Director for signature.

E. POLICY AVAILABILITY The approved copy of agency policies shall be posted to the electronic DPOR Policy Manual on the shared I:\ drive.

The Information Management Director shall notify all employees of policy changes by e-mail.

DIRECTOR’S POLICY #100-06 SUBPOENAS, SERVICE OF PROCESS AND NOTICES Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 1 of 3

Approved By:

I. PURPOSE: The purpose of this policy is to provide Department of Professional and Occupational Regulation employees with procedures for receiving, documenting, distributing and responding to a subpoena, process or notice. This policy shall supplement Director’s Policy #100-04, Release of Information.

II. POLICY STATEMENT: The processing of all subpoenas and other notices served on the Department shall be handled in a timely and accurate manner according to the guidelines set forth in this policy. When notification of counsel is required, original documents shall be hand delivered to the Office of the Attorney General within one day of service on, or receipt in the Department.

III. DEFINITIONS: Appeal Petition a superior court to review the decision of an inferior court or administrative agency.

Long Arm Statute A state law providing jurisdiction, via substituted service of process, over non-resident individuals or businesses licensed by the Department of Professional and Occupational Regulation.

Notice of Appeal A document stating an intention to appeal a board case decision received by the Director (as Agency Secretary).

Petition for Appeal A document filed with the clerk of the circuit court named in the first notice of appeal, served on the Director (Agency Secretary) and all parties involved, appealing a board case decision.

Process A summons, writ, warrant or mandate to appear or respond in court.

Service of Process The formal delivery of a writ, summons or other legal notice to an official authorized to accept (Director or his designee) or on the party to whom it is directed.

Subpoena A writ commanding a person to appear at a certain time and place to give testimony on a specific matter.

Subpoena duces tecum A court process, initiated by a party in litigation compelling production of specific documents and other items in the custody of the Department which are material or relevant to facts in issue in a pending judicial proceeding.

IV. RELATED DOCUMENTS:  Director's Policy #100-04 Release of Information

V. GENERAL PROVISIONS:

A. SERVICE ON THE DIRECTOR’S OFFICE

1. All service shall be accepted by the Director’s Office. The Executive Assistant to the agency Director typically receives all service on the Department. Reception desk personnel may accept service during regular business hours (8:15 a.m. to 5:00 p.m.) only when the Director’s Office is closed. In the Executive Assistant’s absence, the Records and FOIA Manager or her designee in the Information Management Section serves as backup.
2. The employee receiving the service shall indicate the date, time, method of receipt and person receiving the document on the front page of the subpoena, process or notice.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.08 13:43:02 -04'00'

Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 2 of 3

1. An electronic log and copy of all service received by the Department shall be maintained on the shared directory Subpoena Log for a period of three years.

B. IMMEDIATE REFERAL TO THE OFFICE OF THE ATTORNEY GENERAL

1. The Director’s Executive Assistant or her designee is responsible for immediate e-mail transmittal and hand delivery of the original documents to the Office of the Attorney General in the following situations: a. Appeals of case decisions involving an applicant or licensee b. Appeals of case decisions involving the Real Estate or Contractors Transaction Recovery Fund c. Service on the Director pursuant to the Long Arm Statutes in Title 54.1 of the Code of Virginia d. Any service, which names the Department, any regulatory board within the Department, any board member or any Department employee as a defendant e. Service on any board member f. Service or delivery of any documents, notices, petitions, etc. that call for a Department response within a specified period of time g. A subpoena duces tecum for statutorily exempt information that may compromise the integrity of the Department’s licensure, mediation, conciliation or investigative processes (e.g., examinations, confidential dispute resolution materials, active investigations of unlicensed activity) h. A subpoena duces tecum served on the Department less than five workdays prior to the date for compliance
2. The Director’s Executive Assistant or her designee shall send a facsimile of all service related to personnel matters to the Office of the Attorney General and immediately deliver the original document to the Human Resources Office.
3. In situations when the time for compliance with a subpoena duces tecum issued by an attorney (pursuant to § 16.1-89 of the Code of Virginia) is less than fourteen days after service of the subpoena, and the Director deems there are grounds for objecting to the subpoena, the Records and FOIA Manager shall contact the Office of the Attorney General.
4. The Records and FOIA Manager shall immediately notify the Office of the Attorney General of any service received by the Department that is not covered in Sections B or C of this policy.

C. APPEALS

1. The Director’s Executive Assistant shall arrange for hand delivery of all original copies of Notices/Petitions for Appeal to the Office of the Attorney General. A copy of the notice/petition and the OAG transmittal letter shall be forwarded to the appropriate Executive Director. Copies of Real Estate and Contractor Transaction Recovery Fund appeals shall be forwarded to the Recovery Fund Administrator in the Adjudication Section.
2. Within two days of receiving a Notice/Petition for Appeal, the appropriate Executive Director is responsible for contacting the Office of the Attorney General and coordinating any response and appeal record preparation with board counsel. The Executive Director is responsible for preparing and certifying the appeal record according to any requirements set forth by the Office of the Attorney General and Rule 2A:3 of the Rules of Supreme Court of Virginia. Each Executive Director shall designate a person who shall be responsible for record preparation in their absence.

D. LONG-ARM STATUTE COMPLIANCE

1. The Director’s Executive Assistant or her designee shall forward all process served on the Department pursuant to Title 54.1 to the appropriate Executive Director to mail to the regulant’s last known address of record.

Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 3 of 3

1. The Executive Director shall retain any undelivered documents that are returned to the Department for a period of three years.

E. SUBPOENA DUCES TECUM

1. All subpoenas for records responses shall be prepared by the Information Management Section.
2. All records released in response to a subpoena duces tecum shall bear the official seal of the Department of Professional and Occupational Regulation.
3. Records released in response to a subpoena duces tecum shall be authenticated by the record custodian and the person to whom the custodian reports on the face of the documents as true copies of the original records pursuant to § 54.1-112 of the Code of Virginia.
4. A subpoena duces tecum for statutorily exempt information that may compromise the integrity of the Department’s licensure, mediation, conciliation or investigative processes (e.g., examinations, confidential dispute resolution materials, active investigations of unlicensed activity) or other protected information/documents (e.g., nine-digit social security numbers, medical records, tax records) shall be handled in the following manner. a. All non-exempt documents shall be copied and certified in their entirety pursuant to § 54.1-112 of the Code of Virginia. b. All statutorily exempt information and documents shall be redacted and/or removed from the subpoena response. c. A cover letter stating the style of the case; name of the court; identification of the contents (i.e., “documents presented pursuant to subpoena duces tecum issued on [date] by [issuing party]”); and applied exemptions (i.e., “pursuant to [applicable statute], the following protected information/documents have been redacted/excluded from this response”) shall accompany the response. d. A copy of the subpoena duces tecum shall be attached to the subpoena response package.

F. TESTIMONY

1. The Records and FOIA Manager, upon request by a subpoenaed employee, shall contact the issuing party to determine if a License Transcript or other authenticated records would be an acceptable alternative to personal testimony. The subpoenaed individual shall be responsible for obtaining the proper written release from a subpoena if documents are accepted in lieu of the requested testimony.
2. The person named in the subpoena is responsible for ensuring compliance with the terms of the subpoena.

This includes being prepared to testify at any criminal, civil or administrative proceeding at the time and place designated on the subpoena.

DIRECTOR’S POLICY #100-06 SUBPOENAS, SERVICE OF PROCESS AND NOTICES Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 1 of 3

Approved By:

I. PURPOSE: The purpose of this policy is to provide Department of Professional and Occupational Regulation employees with procedures for receiving, documenting, distributing and responding to a subpoena, process or notice. This policy shall supplement Director’s Policy #100-04, Release of Information.

II. POLICY STATEMENT: The processing of all subpoenas and other notices served on the Department shall be handled in a timely and accurate manner according to the guidelines set forth in this policy. When notification of counsel is required, original documents shall be hand delivered to the Office of the Attorney General within one day of service on, or receipt in the Department.

III. DEFINITIONS: Appeal Petition a superior court to review the decision of an inferior court or administrative agency.

Long Arm Statute A state law providing jurisdiction, via substituted service of process, over non-resident individuals or businesses licensed by the Department of Professional and Occupational Regulation.

Notice of Appeal A document stating an intention to appeal a board case decision received by the Director (as Agency Secretary).

Petition for Appeal A document filed with the clerk of the circuit court named in the first notice of appeal, served on the Director (Agency Secretary) and all parties involved, appealing a board case decision.

Process A summons, writ, warrant or mandate to appear or respond in court.

Service of Process The formal delivery of a writ, summons or other legal notice to an official authorized to accept (Director or his designee) or on the party to whom it is directed.

Subpoena A writ commanding a person to appear at a certain time and place to give testimony on a specific matter.

Subpoena duces tecum A court process, initiated by a party in litigation compelling production of specific documents and other items in the custody of the Department which are material or relevant to facts in issue in a pending judicial proceeding.

IV. RELATED DOCUMENTS:  Director's Policy #100-04 Release of Information

V. GENERAL PROVISIONS:

A. SERVICE ON THE DIRECTOR’S OFFICE

1. All service shall be accepted by the Director’s Office. The Executive Assistant to the agency Director typically receives all service on the Department. Reception desk personnel may accept service during regular business hours (8:15 a.m. to 5:00 p.m.) only when the Director’s Office is closed. In the Executive Assistant’s absence, the Records and FOIA Manager or her designee in the Information Management Section serves as backup.
2. The employee receiving the service shall indicate the date, time, method of receipt and person receiving the document on the front page of the subpoena, process or notice.

Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.08 13:43:02 -04'00'

Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 2 of 3

1. An electronic log and copy of all service received by the Department shall be maintained on the shared directory Subpoena Log for a period of three years.

B. IMMEDIATE REFERAL TO THE OFFICE OF THE ATTORNEY GENERAL

1. The Director’s Executive Assistant or her designee is responsible for immediate e-mail transmittal and hand delivery of the original documents to the Office of the Attorney General in the following situations: a. Appeals of case decisions involving an applicant or licensee b. Appeals of case decisions involving the Real Estate or Contractors Transaction Recovery Fund c. Service on the Director pursuant to the Long Arm Statutes in Title 54.1 of the Code of Virginia d. Any service, which names the Department, any regulatory board within the Department, any board member or any Department employee as a defendant e. Service on any board member f. Service or delivery of any documents, notices, petitions, etc. that call for a Department response within a specified period of time g. A subpoena duces tecum for statutorily exempt information that may compromise the integrity of the Department’s licensure, mediation, conciliation or investigative processes (e.g., examinations, confidential dispute resolution materials, active investigations of unlicensed activity) h. A subpoena duces tecum served on the Department less than five workdays prior to the date for compliance
2. The Director’s Executive Assistant or her designee shall send a facsimile of all service related to personnel matters to the Office of the Attorney General and immediately deliver the original document to the Human Resources Office.
3. In situations when the time for compliance with a subpoena duces tecum issued by an attorney (pursuant to § 16.1-89 of the Code of Virginia) is less than fourteen days after service of the subpoena, and the Director deems there are grounds for objecting to the subpoena, the Records and FOIA Manager shall contact the Office of the Attorney General.
4. The Records and FOIA Manager shall immediately notify the Office of the Attorney General of any service received by the Department not covered in Sections B or C of this policy.

C. APPEALS

1. The Director’s Executive Assistant shall arrange for hand delivery of all original copies of Notices/Petitions for Appeal to the Office of the Attorney General. A copy of the notice/petition and the OAG transmittal letter shall be forwarded to the appropriate Executive Director. Copies of Real Estate and Contractor Transaction Recovery Fund appeals shall be forwarded to the Recovery Fund Administrator in the Adjudication Section.
2. Within two days of receiving a Notice/Petition for Appeal, the appropriate Executive Director is responsible for contacting the Office of the Attorney General and coordinating any response and appeal record preparation with board counsel. The Executive Director is responsible for preparing and certifying the appeal record according to any requirements set forth by the Office of the Attorney General and Rule 2A:3 of the Rules of Supreme Court of Virginia. Each Executive Director shall designate a person who shall be responsible for record preparation in their absence.

D. LONG-ARM STATUTE COMPLIANCE

1. The Director’s Executive Assistant or designee shall forward all process served under Title 54.1 to the appropriate Executive Director to mail to the regulant’s last known address.

Policy Title: Director’s Policy #100-06 Subpoenas, Service of Process and Notices [POL401_100-06_v6] Effective: 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-06 Subpoenas, Service of Process and Notices (Effective 09/18/2009) Page 3 of 3

1. The Executive Director shall retain undelivered documents returned to the Department for three years.

E. SUBPOENA DUCES TECUM

1. All subpoenas for records responses shall be prepared by the Information Management Section.
2. All records released in response to a subpoena duces tecum shall bear the official seal of the Department of Professional and Occupational Regulation.
3. Records released in response to a subpoena duces tecum shall be authenticated by the record custodian and the person to whom they report as true copies of the original records pursuant to § 54.1-112 of the Code of Virginia.
4. A subpoena for statutorily exempt info that may compromise the Department’s processes or protected info shall be handled as follows: a. Non-exempt documents shall be copied and certified per § 54.1-112; b. Exempt info shall be redacted or removed; c. A cover letter with case style, court name, contents, and exemptions shall accompany the response; d. The subpoena shall be attached to the response package.

F. TESTIMONY

1. The Records and FOIA Manager, upon request by a subpoenaed employee, shall contact the issuing party to determine if a License Transcript or other authenticated records would be an acceptable alternative to personal testimony. The subpoenaed individual shall be responsible for obtaining the proper written release from a subpoena if documents are accepted in lieu of the requested testimony.
2. The person named in the subpoena shall ensure compliance with its terms.

This includes being prepared to testify at any criminal, civil or administrative proceeding at the time and place designated on the subpoena.

DIRECTOR’S POLICY #100-11 INTERNET WEBSITE Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-11 Internet Website [POL401_100-11_v6] Effective 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-11 Internet Web Site (Effective 02/25/2010) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to provide clear and concise Internet website content guidelines to the Department of Professional and Occupational Regulation employees and contractors to ensure continuous access to accurate information through consistent management of the Department’s website, including authorized placement and removal of information.

II. POLICY STATEMENT: The Department’s Internet website shall present information about the Department’s mission, regulations and services provided to regulants and the public. To the extent possible, the Department shall provide data and on-line services to regulants and the general public. The contents of the Department’s Internet website are the property of the Department of Professional and Occupational Regulation and are subject to the Virginia Freedom of Information Act.

III. DEFINITIONS: Data services Regulant information available for public disclosure, including but not limited to license status and disciplinary actions.

Internet A global web of interconnected networks and computers.

Hyperlink/link In hypertext systems, such as the World Wide Web, a link is a reference or connection to another document or Internet site.

Online services Interactive transactions offered to regulants and the general public.

Web coordinator An individual within the Communications and Board Operations Division responsible for website updates, security and maintenance as well as ensuring website availability to the Department and the general public.

Website A site (location) on the World Wide Web. Each website contains a home or main page that typically serves as an index or table of contents to other documents stored on the site. The site may also contain additional documents, files and links to other sites. Each site is owned and managed by an individual, company or organization.

Website liaison An individual designated within each operational unit to review and prepare website information relevant to the work unit.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. WEBSITE FORMAT The Department Communications Director shall be responsible for the layout and content of the DPOR website.

Web site page templates shall be developed or provided by the Communications Director in consultation with the site vendor.

B. GENERAL

1. The Communications Director shall oversee the Department’s website to ensure that the information on the site is professional, clear, accurate, current and concise.
2. Each operational unit shall designate a website liaison responsible for the accuracy of the unit’s website Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.08 13:43:38 -04'00'

Policy Title: Director’s Policy #100-11 Internet Website [POL401_100-11_v6] Effective 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-11 Internet Web Site (Effective 02/25/2010) Page 2 of 2

information. The website liaison shall consult with the Communications Director prior to submitting any substantive website changes to the Web Coordinator.

1. The Department’s Internet website and its document collection may include hyperlinks to sites on the World Wide Web or Internet. Links that have value as educational, reference or research tools or relate to the mission of the Department and the Commonwealth of Virginia may be included on the Department’s website.

Any proposed links shall be submitted for approval to the Communications Director.

1. Data and online services shall be developed by the Information Systems Division in cooperation with the appropriate operational units and shall not be subject to the content review and approval provisions of this policy.
2. Applications and other forms developed in accordance with Information Management Procedure #1002 Forms Design shall not be subject to the content review and approval provisions of this policy. Requests to post applications and forms shall be submitted to the Forms Design Analyst or Web Coordinator with a copy to the appropriate operational unit.

C. CHANGES TO THE DEPARTMENT WEBSITE

1. Each operational unit shall perform periodic reviews of the information on the Department’s website.
2. The unit’s website liaison shall e-mail new or revised information to the DPOR Web Coordinator. Substantive changes to website content shall be reviewed by the Communications Director prior to submittal to the Web Coordinator.
3. The Web Coordinator will transfer files to the Department’s website. If necessary, links to access the information will be added or modified by the Web Coordinator. E-mail notification shall be sent to the website liaison when the new information is available to the public.
4. Web content files shall be supplied in an Internet ready form as an HTML document, Adobe Acrobat .pdf format, or graphic format such as .jpd, .gif or .bmp. Forms and license applications shall be available in Adobe .pdf format only.

D. RETENTION OF INFORMATION ON THE DEPARTMENT’S WEBSITE

1. Information may remain on the Department’s website for as long as it is current.
2. Any unique information available only on the Department’s website (and not in any other format) shall be printed by the unit’s website liaison and forwarded to the Information Management Section for retention in a state archives file. Website information that is a duplication of a public record available in another format does not require separate record retention consideration.

DIRECTOR’S POLICY #100-11 INTERNET WEBSITE Effective Date: June 8, 2017 Policy Title: Director’s Policy #100-11 Internet Website [POL401_100-11_v6] Effective 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-11 Internet Web Site (Effective 02/25/2010) Page 1 of 2

Approved By:

I. PURPOSE: The purpose of this policy is to provide clear and concise Internet website content guidelines to the Department of Professional and Occupational Regulation employees and contractors to ensure continuous access to accurate information through consistent management of the Department’s website, including authorized placement and removal of information.

II. POLICY STATEMENT: The Department’s Internet website shall present information about the Department’s mission, regulations and services provided to regulants and the public. To the extent possible, the Department shall provide data and on-line services to regulants and the general public. The contents of the Department’s Internet website are the property of the Department of Professional and Occupational Regulation and are subject to the Virginia Freedom of Information Act.

III. DEFINITIONS: Data services Regulant information available for public disclosure, including but not limited to license status and disciplinary actions.

Internet A global web of interconnected networks and computers.

Hyperlink/link In hypertext systems, such as the World Wide Web, a link is a reference or connection to another document or Internet site.

Online services Interactive transactions offered to regulants and the general public.

Web coordinator An individual within the Communications and Board Operations Division responsible for website updates, security and maintenance as well as ensuring website availability to the Department and the general public.

Website A site (location) on the World Wide Web. Each website contains a home or main page that typically serves as an index or table of contents to other documents stored on the site. The site may also contain additional documents, files and links to other sites. Each site is owned and managed by an individual, company or organization.

Website liaison An individual designated within each operational unit to review and prepare website information relevant to the work unit.

IV. RELATED DOCUMENTS:

N/A

V. GENERAL PROVISIONS:

A. WEBSITE FORMAT The Department Communications Director shall be responsible for the layout and content of the DPOR website.

Web site page templates shall be developed or provided by the Communications Director in consultation with the site vendor.

B. GENERAL

1. The Communications Director shall oversee the Department’s website to ensure that the information on the site is professional, clear, accurate, current and concise.
2. Each operational unit shall designate a website liaison responsible for the accuracy of the unit’s website Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.08 13:43:38 -04'00'

Policy Title: Director’s Policy #100-11 Internet Website [POL401_100-11_v6] Effective 06/08/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-11 Internet Web Site (Effective 02/25/2010) Page 2 of 2

information. The website liaison shall consult with the Communications Director prior to submitting any substantive website changes to the Web Coordinator.

1. The Department’s Internet website and its document collection may include hyperlinks to sites on the World Wide Web or Internet. Links that have value as educational, reference or research tools or relate to the mission of the Department and the Commonwealth of Virginia may be included on the Department’s website.

Any proposed links shall be submitted for approval to the Communications Director.

1. Data and online services shall be developed by the Information Systems Division in cooperation with the appropriate operational units and shall not be subject to the content review and approval provisions of this policy.
2. Applications and other forms developed in accordance with Information Management Procedure #1002 Forms Design shall not be subject to the content review and approval provisions of this policy. Requests to post applications and forms shall be submitted to the Forms Design Analyst or Web Coordinator with a copy to the appropriate operational unit.

C. CHANGES TO THE DEPARTMENT WEBSITE

1. Each operational unit shall perform periodic reviews of the information on the Department’s website.
2. The unit’s website liaison shall e-mail new or revised information to the DPOR Web Coordinator. Substantive changes to website content shall be reviewed by the Communications Director prior to submittal to the Web Coordinator.
3. The Web Coordinator will transfer files to the Department’s website. If necessary, links to access the information will be added or modified by the Web Coordinator. E-mail notification shall be sent to the website liaison when the new information is available to the public.
4. Web content files shall be supplied as HTML, Adobe Acrobat .pdf, or graphic formats like .jpd, .gif, or .bmp. Forms and license applications shall be available only in Adobe .pdf.

D. RETENTION OF INFORMATION ON THE DEPARTMENT’S WEBSITE

1. Information may remain on the Department’s website for as long as it is current.
2. Unique information only on the Department’s website shall be printed by the unit’s liaison and forwarded to the Information Management Section for retention in a state archives file. Duplicate website information that is a public record in another format does not require separate retention.

DIRECTOR’S POLICY #100-04 RELEASE OF INFORMATION Effective Date: June 5, 2017 Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 1 of 7

Approved By:

I. PURPOSE: The purpose of this policy is to provide Department of Professional and Occupational Regulation (DPOR) employees with guidelines for responding to requests for information. As a DPOR guidance document, it is intended to provide the public with a general understanding of DPOR’s record disclosure practices.

II. POLICY STATEMENT: Pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia), the Department of Professional and Occupational Regulation assumes a predisposition toward full disclosure of all public records in the Department’s possession. Specific exclusions shall apply in accordance with § 54.1-108 and §§ 2.2-3705.1 through 2.2-3706 of the Code of Virginia and, in the absence of any board policy to the contrary, when the Department exercises its discretionary authority to withhold personal or confidential information that may compromise an individual’s safety and security. A subpoena duces tecum for the production of records shall be processed in accordance with Director’s Policy #100-06, Subpoenas, Service of Process and Notices.

III. DEFINITIONS: Personal information As defined in § 2.2-3801 of the Code of Virginia is information that (i) describes, locates or indexes anything about an individual including, but not limited to, his social security number, driver's license number, agency-issued identification number, student identification number, real or personal property holdings derived from tax returns, and his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or (ii) affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such individual; and the record of his presence, registration, or membership in an organization or activity, or admission to an institution. "Personal information" shall not include routine information maintained for the purpose of internal office administration whose use could not be such as to affect adversely any data subject nor does the term include real estate assessment information.

Public record Recorded information that documents a transaction or activity by or with any public officer, agency or employee of an agency. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.

The medium (e.g., electronic documents and mail) on which such information is recorded has no bearing on the determination of whether the record is a public record or whether it is subject to public disclosure.

Record Custodian A public official or official designee in charge of an office housing public records.

IV. RELATED DOCUMENTS:  Virginia Freedom of Information Act  Government Data Collection and Dissemination Practices Act  Director’s Policy #100-06 Subpoenas, Service of Process and Notices Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.05 10:55:39 -04'00'

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 2 of 7

V. GENERAL PROVISIONS:

A. CUSTODIAN OF RECORD

1. The Records and FOIA Manager shall serve as the custodian of all Department records with specific positions designated as custodians for disclosure and authentication purposes. In the absence of the designated custodians, the Records and FOIA Manager and the Information Management Director shall authenticate records for court submission. The following individuals shall serve as custodians of any record created, processed and/or maintained by their respective sections. These individuals shall designate a backup custodian to perform record authentications in their absence. a. Executive Directors in the Communications and Board Operations Division b. Directors in the Compliance and Investigations Division (Investigations, Alternative Dispute Resolution, Complaint Analysis and Resolution, Adjudication, and Fair Housing) with Field Supervisors and Investigators designated as record custodians for the purpose of authenticating licensing and investigation records in court. c. Human Resources Director d. Senior Manager Administrative and Financial Services e. Budget and Financial Services Director f. Education and Examinations Director

B. RESPONDING TO INFORMATION REQUESTS

1. All requests for records are subject to the provisions of the Virginia Freedom of Information Act. A requester is not required to reference FOIA in order to be subject to the provisions of the Act.
2. Generally, DPOR does not require FOIA requests to be submitted in writing; however, in situations where the requested records are not identified with reasonable specificity (Code of Virginia § 2.2-3704.B), DPOR may require a detailed written or e-mail request to ensure accurate response preparation.
3. To prepare a response within five workdays of receipt, immediate delivery of a FOIA request to the appropriate (responsible) section is essential. The first workday following receipt of the request is considered day one when calculating the response deadline.
4. The Records and FOIA Manager shall make all decisions concerning routine FOIA requests and provide guidance to DPOR staff in determining the appropriate response to information requests. Specific exclusions shall apply in accordance with § 54.1-108 and §§ 2.2-3705.1 through 2.2-3706 of the Code of Virginia and any applicable board or agency policies. Non-routine FOIA requests from the public shall be communicated to the Information Management Director. Non-routine requests from the media and elected officials shall be communicated to the Deputy Director for Communications and Board Operations.
5. In accordance with § 2.2-3704.F of the Code of Virginia, DPOR may assess reasonable charges for the actual costs associated with accessing, duplicating, supplying or searching for records. Documents requested by a federal, state or local governmental or law-enforcement agency shall be provided at no cost. Photocopies are available for $.25 per page for 40 or more pages. Copies of less than 40 pages shall be available at no charge.

Furthermore, pursuant to § 2.2-3704.H unless approved by the Information Management Director, DPOR shall require advanced payment for requests that are likely to exceed $200 prior to preparing the response.

1. Pursuant to § 2.2-3704.I of the Code of Virginia, before processing a request for records, DPOR may require payment of any amount owed for previous FOIA requests that remain unpaid for at least 30 days. A letter requesting payment prior to providing additional records shall be mailed within five workdays of receiving the new request.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 3 of 7

C. RECORD CATEGORIES AND FOIA RESPONSE ASSIGNMENTS

1. Applications Direct record requests to: Information Management Section Applications for admission to examinations or for licensure are exempt from public disclosure (§ 54.1-108.2 of the Code of Virginia). Applications include initial, reinstatement and upgrade applications, as well as license maintenance documents that include social security numbers or other personal information.

However, applications are subject to disclosure when: a. Requested by the regulant/applicant (or any party authorized by the regulant or applicant). The regulant or their representative may obtain copies of their own applications for admission to examinations or licensure (§ 54.1-108.2 of the Code of Virginia). b. Requested by agencies in another state, district, or territory of the United States where the information is requested by the state, district, or territory in connection with an application for a service, privilege or right under their laws. Requests shall be made in a manner that substantiates the requester’s affiliation (on official letterhead or by e-mail) and states the reason for the request. c. Requested by any federal, state or local law enforcement agencies to be used in conjunction with an investigation or authentication of credentials. Requests shall be made in a manner that substantiates the requester’s affiliation (on official letterhead or by e-mail) and states the reason for the request. A letter or e-mail from the Department must accompany the information verifying that DPOR is releasing this information for investigative or authentication purposes only.

1. Bonds Direct record requests to: Licensing Section Copies of and information related to performance bonds required for licensure (including the amount of the bond and the issuer) are subject to public disclosure upon request.
2. Certifications of Regulant Status Direct record requests to: Licensing Section Individual licensing sections are responsible for preparing Certifications of Regulant Status in accordance with DPOR Licensing and Regulation Procedure #903, Certifications of Regulant Status.
3. Complaint Files Direct information requests to: Compliance and Investigations Division The Compliance and Investigations Division is responsible for responding to general inquiries regarding the number and nature of complaints against a specific respondent. Open complaints may be publicly acknowledged when a Department investigation has determined that sufficient evidence exists to establish probable cause that there was a violation of a law or regulation; however, the case file is exempt from disclosure until case closure. Cases where probable cause has been found are disclosed on the Department’s web site. Nothing in this policy shall conflict with the release of complaint information during disciplinary investigations as provided for in the Administrative Process Act.

Direct record requests to: Information Management Section a. Closed case files are subject to public disclosure with the following exclusions: 1) Application Case Files Application file information resulting in licensure shall be transferred to the license application file and handled according to Section V.C.1 of this policy.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 4 of 7

2) Criminal (Unlicensed Activity) Case Files a) Criminal incident information as defined in § 2.2-3706.A of the Code of Virginia and closed unlicensed cases may be exempt from public disclosure when the release is likely to jeopardize an ongoing investigation or the safety of an individual; cause a suspect to flee or evade detection; or result in the destruction of evidence. No exclusion applies when disclosure is not likely to cause the above-referenced damage. b) Criminal incident information as defined in § 2.2-3706.A of the Code of Virginia and closed unlicensed cases may be exempt from public disclosure when the release is likely to jeopardize an ongoing investigation or the safety of an individual; cause a suspect to flee or evade detection; or result in the destruction of evidence. No exclusion applies when disclosure is not likely to cause the above-referenced damage. c) The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed. 3) Alternative Dispute Resolution Files All memoranda, work products or other materials contained in the case file of a mediator are confidential and all materials in the case file of a mediation program pertaining to a specific mediation are confidential. Any communication made in or in connection with mediation, that relates to the dispute, including communications to schedule mediation, whether made to a mediator, a mediation program, a party, or any other person is confidential. Confidential materials and communications are not subject to the provisions of the Virginia Freedom of Information Act, nor discovery in any judicial or administrative proceeding unless permitted under § 2.2-4119 of the Code of Virginia. b. The Information Management Section is responsible for preparing closed disciplinary and fair housing complaint files in response to FOIA requests. Prior to releasing closed files, information exempt from public disclosure pursuant to Section V.E of this policy shall be removed or redacted. Unless specifically requested by an involved party, e-mail addresses contained in closed case files shall be disclosed. c. Open case files are exempt from public disclosure under the provisions of § 54.1-108.3 of the Code of Virginia. Nothing in this policy shall conflict with the release of complaint information during complaint investigations as provided for in the Administrative Process Act. d. Orders (final and consent) and written settlement agreements resulting from a voluntary alternative dispute resolution proceeding e.g., conciliation, mediation or facilitation are subject to public disclosure unless the involved parties agree in writing that the agreement is to remain confidential and the respective board determines that disclosure is not required to further the purposes of the law. e. Due to the public forum in which an informal fact-finding conference is held, IFF transcripts contained in case files (both open and closed) are subject to public disclosure. Open file IFF transcripts may be released by Adjudication Section staff.

1. Contracts and Procurement Records Direct record requests to: Procurement Section of Administrative and Financial Services Division Procurement and contract records may be released in accordance with § 2.2-4342 of the Code of Virginia.
2. Electronic Mail Direct record request to: Custodian of Record All documents sent or received on the state electronic mail system and any associated attachments are subject to public disclosure. Specific exclusions shall apply in accordance with § 54.1-108 and §§ 2.2-3705.1 through 2.2-3706 of the Code of Virginia and any applicable board or agency policies. When responding to

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 5 of 7

requests for electronic mail, the content of the e-mail transmission shall be used to determine if the record is subject to any disclosure exemptions.

1. Examination Information Direct record requests to: Education and Examinations Section or Information Management Section a. Examination questions, papers, booklets, answer sheets and scoring keys are exempt from public disclosure pursuant to § 54.1-108.1 and § 2.2-3705.1.4 of the Code of Virginia, except in situations where the Department deems that the validity or security of future examinations will not be compromised. At the discretion of the Executive Director, examination information may be released to other state agencies. b. Examination scores may be released to candidates or other jurisdictions (on Certifications of Regulant Status) if permitted by board regulation and policy.
2. Financial Records Direct record requests to: Finance Section of Administrative and Financial Services Division Requests for records maintained by the Finance Section shall be submitted to the Budget and Financial Services Director.
3. Governor’s Working Papers Direct record requests to: Custodian of Record Reports, projects, correspondence and other documents classified as working papers of the Office of the Governor, Lieutenant Governor, the Attorney General, the members of the General Assembly, or the Division of Legislative Services are not subject to public disclosure. 10. Legal Documents Direct record requests to: Custodian of Record a. Written advice of legal counsel to DPOR or the officers or employees of the Department, and any other related correspondence are protected by attorney-client privilege and therefore, not subject to public disclosure. b. Legal memoranda and other work products compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711 are exempt from public disclosure. 11. License Maintenance Records Direct record requests to: Information Management Section License maintenance records such as name and address changes, fee payment records and renewal cards are subject to public disclosure with the redaction of any information exempt from public disclosure per Section V.E of this policy. 12. License Transcripts Direct record requests to: Information Management Section a. License Transcripts summarize the activity associated with the license, certification or registration from initial date of licensure through fee/license expiration date. Usually prepared for court submission, License Transcripts are frequently used as an alternative to Department staff providing personal testimony regarding a specific license or lack thereof. They are prepared by the Information Management Section and authenticated by the appropriate licensing section. Other information prepared by Information Management for court in lieu of testimony include copies of official records (orders, regulation booklets, etc.) authenticated in accordance with § 54.1-112 of the Code of Virginia.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 6 of 7

b. License Transcripts are available for a fee of $40.00 per requested individual/business entity name; however, no fee shall be charged to organizations providing legal aid to the indigent or governmental/law enforcement agencies participating in an active criminal investigation. c. Upon request (from DPOR staff or a Commonwealth Attorney), License Transcripts may be prepared and authenticated by field investigators and regional supervisors to corroborate investigator testimony. 13. Meeting Minutes and Documents Direct record requests to: Licensing Section or Information Management Section a. Draft minutes of public meetings are available on the Department website and the Commonwealth Calendar no later than ten workdays following conclusion of the meeting (§ 2.2-3707.1 of the Code of Virginia). Final meeting minutes are available within three workdays of final approval of the minutes. b. Documents recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to §

1. 2-3711 are not subject to public disclosure. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting. 14. Personnel Records Direct record requests to: Human Resources Section a. All requests for individual employee records shall be handled by the Human Resource Section according to the provisions of the Department of Human Resource Management Policy 6.05 Personnel Records Disclosure, the Virginia Freedom of Information Act and any guidance from the Office of the Attorney General. With the exception of the information listed in the next section, no employee information shall be released to a third party without the written consent of the subject employee. b. Upon disclosure of the following information to a third party, the Human Resource Section shall notify the subject employee of the release of information including the name and address of the individual requesting the information. 1) Employee’s position 2) Employee’s job classification 3) Dates of employment 4) Annual salary, official salary or rate of pay if such pay exceeds $10,000 per year 15. Property Registration Files Direct record requests to: Property Registration Office of the Common Interest Community Section Property registration files are available in electronic format for public disclosure. 16. Recovery Fund Files Direct record requests to: Custodian of Record Copies of Contractor and Real Estate Recovery Fund claim files are available upon request, regardless of case status. 17. Regulant Lists Direct record requests to: Information Management Section Statewide regulant lists for specific boards and occupations are available electronically for distribution on CD, DVD or e-mail.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 7 of 7

D. OTHER DISCLOSABLE INFORMATION While the Virginia Freedom of Information Act addresses the disclosure of “records”, other “information” shall be available to the public in order to afford them with the consumer protection associated with using appropriately credentialed practitioners. The appropriate licensing section is responsible for responding to general inquiries regarding licenses and licensing requirements. The licensing, certification, and registration information listed below may be released to the public via telephone, facsimile, e-mail or any other form of communication agreed to by both the requester and the Department.

1. Last 4 digits only of a licensee’s social security number or Virginia DMV Control Number
2. License number
3. Date of initial licensure
4. Expiration date of license
5. License classification
6. Method of obtaining license (e.g., exam, reciprocity, comity)
7. License classification
8. License status
9. Address of record (alternate addresses of individual regulants may be disclosed if the physical address required at the time of licensure has been replaced in order to protect regulant privacy) 10. E-mail address (if available) 11. Identity of individuals required as a condition of business licensure (e.g., qualified individuals, designated employees, brokers, compliance agents, responsible management) and the company with which they are affiliated. 12. Bond information

E. OTHER NON-DISCLOSABLE INFORMATION

1. 9 character social security numbers or Virginia DMV control numbers (at the Executive Director’s discretion, social security numbers/DMV control numbers may be disclosed on Certifications of Regulant Status)
2. Bank routing and account numbers
3. Credit/debit card numbers
4. Examination scores, pass/fail status or number of times an examination was taken by a candidate/licensee unless a board policy to the contrary exists
5. State income, business and estate tax returns and personal property tax returns are exempt from public disclosure.
6. Any information that may compromise the privacy or safety of an individual or business (i.e., medical/mental records, scholastic records, etc.) may be disclosed only upon approval of the Director, Deputy Directors, or Information Management Director.

F. PROCEDURE FOR CORRECTING PERSONAL INFORMATION Pursuant to § 2.2-3806.A.5 of the Code of Virginia, in the event that a regulant determines that the Department’s information on that person is inaccurate, obsolete or irrelevant, the individual may submit a written request for correction, removal or amendment to the Information Management Section. The Information Management Director shall be responsible for reviewing the request, determining if corrective action is warranted and coordinating any corrective action and written response to the requester.

DIRECTOR’S POLICY #100-04 RELEASE OF INFORMATION Effective Date: June 5, 2017 Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 1 of 7

Approved By:

I. PURPOSE: The purpose of this policy is to provide Department of Professional and Occupational Regulation (DPOR) employees with guidelines for responding to requests for information. As a DPOR guidance document, it is intended to provide the public with a general understanding of DPOR’s record disclosure practices.

II. POLICY STATEMENT: Pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia), the Department of Professional and Occupational Regulation assumes a predisposition toward full disclosure of all public records in the Department’s possession. Specific exclusions shall apply in accordance with § 54.1-108 and §§ 2.2-3705.1 through 2.2-3706 of the Code of Virginia and, in the absence of any board policy to the contrary, when the Department exercises its discretionary authority to withhold personal or confidential information that may compromise an individual’s safety and security. A subpoena duces tecum for the production of records shall be processed in accordance with Director’s Policy #100-06, Subpoenas, Service of Process and Notices.

III. DEFINITIONS: Personal information As defined in § 2.2-3801 of the Code of Virginia is information that (i) describes, locates or indexes anything about an individual including, but not limited to, his social security number, driver's license number, agency-issued identification number, student identification number, real or personal property holdings derived from tax returns, and his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or (ii) affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such individual; and the record of his presence, registration, or membership in an organization or activity, or admission to an institution. "Personal information" shall not include routine information maintained for the purpose of internal office administration whose use could not be such as to affect adversely any data subject nor does the term include real estate assessment information.

Public record Recorded information that documents a transaction or activity by or with any public officer, agency or employee of an agency. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.

The medium (e.g., electronic documents and mail) on which such information is recorded has no bearing on the determination of whether the record is a public record or whether it is subject to public disclosure.

Record Custodian A public official or official designee in charge of an office housing public records.

IV. RELATED DOCUMENTS:  Virginia Freedom of Information Act  Government Data Collection and Dissemination Practices Act  Director’s Policy #100-06 Subpoenas, Service of Process and Notices Digitally signed by Jay W. DeBoer Reason: I am approving this document Date: 2017.06.05 10:55:39 -04'00'

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 2 of 7

V. GENERAL PROVISIONS:

A. CUSTODIAN OF RECORD

1. The Records and FOIA Manager shall serve as the custodian of all Department records with specific positions designated as custodians for disclosure and authentication purposes. In the absence of the designated custodians, the Records and FOIA Manager and the Information Management Director shall authenticate records for court submission. The following individuals shall serve as custodians of any record created, processed and/or maintained by their respective sections. These individuals shall designate a backup custodian to perform record authentications in their absence. a. Executive Directors in the Communications and Board Operations Division b. Directors in the Compliance and Investigations Division (Investigations, Alternative Dispute Resolution, Complaint Analysis and Resolution, Adjudication, and Fair Housing) with Field Supervisors and Investigators designated as record custodians for the purpose of authenticating licensing and investigation records in court. c. Human Resources Director d. Senior Manager Administrative and Financial Services e. Budget and Financial Services Director f. Education and Examinations Director

B. RESPONDING TO INFORMATION REQUESTS

1. All requests for records are subject to the provisions of the Virginia Freedom of Information Act. A requester is not required to reference FOIA in order to be subject to the provisions of the Act.
2. Generally, DPOR does not require FOIA requests in writing; however, if records are not identified with reasonable specificity (Code of Virginia § 2.2-3704.B), DPOR may require a detailed written or email request for accurate response.
3. To respond within five workdays, FOIA requests must be delivered immediately to the responsible section. The day after receipt counts as day one for the deadline.
4. The Records and FOIA Manager decides routine FOIA requests and guides staff. Exclusions follow § 54.1-108, §§ 2.2-3705.1–2.2-3706. Virginia law and policies apply. Non-routine public requests go to the Information Management Director; media and officials to the Deputy Director.
5. Under § 2.2-3704.F, DPOR may charge actual costs for access, duplication, or search. Requests by government agencies are free. Photocopies cost $.25 per page for 40+ pages; fewer are free.

Furthermore, pursuant to § 2.2-3704.H unless approved by the Information Management Director, DPOR shall require advanced payment for requests that are likely to exceed $200 prior to preparing the response.

1. Under § 2.2-3704.I, DPOR may require payment of unpaid amounts from previous FOIA requests overdue by 30 days. A payment request letter will be mailed within five workdays of new requests.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 3 of 7

C. RECORD CATEGORIES AND FOIA RESPONSE ASSIGNMENTS

1. Requests for applications go to: Information Management Section. Applications for exams or licensure are exempt from disclosure (§ 54.1-108.2). This includes initial, reinstatement, upgrade, and license maintenance documents with personal info.

However, applications are subject to disclosure when: a. Requested by the regulant/applicant (or any party authorized by the regulant or applicant). The regulant or their representative may obtain copies of their own applications for admission to examinations or licensure (§ 54.1-108.2 of the Code of Virginia). b. Requested by agencies in another state, district, or territory of the United States where the information is requested by the state, district, or territory in connection with an application for a service, privilege or right under their laws. Requests shall be made in a manner that substantiates the requester’s affiliation (on official letterhead or by e-mail) and states the reason for the request. c. Requested by any federal, state or local law enforcement agencies to be used in conjunction with an investigation or authentication of credentials. Requests shall be made in a manner that substantiates the requester’s affiliation (on official letterhead or by e-mail) and states the reason for the request. A letter or e-mail from the Department must accompany the information verifying that DPOR is releasing this information for investigative or authentication purposes only.

1. Requests for bonds go to: Licensing Section. Performance bonds for licensure, including amount and issuer, are publicly disclosable upon request.
2. Requests go to: Licensing Section. Individual licensing sections prepare Certifications of Regulant Status per DPOR Procedure #903.
3. Requests go to: Compliance and Investigations Division. They handle inquiries about complaints. Open complaints may be publicly acknowledged if probable cause exists; case files are exempt until closure. Disclosed on website after probable cause. Policy aligns with the Administrative Process Act.

Direct record requests to: Information Management Section a. Closed case files are subject to public disclosure with the following exclusions: 1) Application Case Files Application file information resulting in licensure shall be transferred to the license application file and handled according to Section V.C.1 of this policy.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 4 of 7

2) Criminal (Unlicensed Activity) Case Files a) Criminal incident information as defined in § 2.2-3706.A of the Code of Virginia and closed unlicensed cases may be exempt from public disclosure when the release is likely to jeopardize an ongoing investigation or the safety of an individual; cause a suspect to flee or evade detection; or result in the destruction of evidence. No exclusion applies when disclosure is not likely to cause the above-referenced damage. b) Criminal incident information as defined in § 2.2-3706.A of the Code of Virginia and closed unlicensed cases may be exempt from public disclosure when the release is likely to jeopardize an ongoing investigation or the safety of an individual; cause a suspect to flee or evade detection; or result in the destruction of evidence. No exclusion applies when disclosure is not likely to cause the above-referenced damage. c) The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed. 3) Alternative Dispute Resolution Files All memoranda, work products or other materials contained in the case file of a mediator are confidential and all materials in the case file of a mediation program pertaining to a specific mediation are confidential. Any communication made in or in connection with mediation, that relates to the dispute, including communications to schedule mediation, whether made to a mediator, a mediation program, a party, or any other person is confidential. Confidential materials and communications are not subject to the provisions of the Virginia Freedom of Information Act, nor discovery in any judicial or administrative proceeding unless permitted under § 2.2-4119 of the Code of Virginia. b. The Information Management Section is responsible for preparing closed disciplinary and fair housing complaint files in response to FOIA requests. Prior to releasing closed files, information exempt from public disclosure pursuant to Section V.E of this policy shall be removed or redacted. Unless specifically requested by an involved party, e-mail addresses contained in closed case files shall be disclosed. c. Open case files are exempt from public disclosure under the provisions of § 54.1-108.3 of the Code of Virginia. Nothing in this policy shall conflict with the release of complaint information during complaint investigations as provided for in the Administrative Process Act. d. Orders (final and consent) and written settlement agreements resulting from a voluntary alternative dispute resolution proceeding e.g., conciliation, mediation or facilitation are subject to public disclosure unless the involved parties agree in writing that the agreement is to remain confidential and the respective board determines that disclosure is not required to further the purposes of the law. e. Due to the public forum in which an informal fact-finding conference is held, IFF transcripts contained in case files (both open and closed) are subject to public disclosure. Open file IFF transcripts may be released by Adjudication Section staff.

1. Requests go to: Procurement Section. Records may be released per § 2.2-4342.
2. Requests go to: Custodian of Record. Emails and attachments are public unless exclusions apply (§ 54.1-108, §§ 2.2-3705.1–2.2-3706).

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 5 of 7

requests for electronic mail, the content of the e-mail transmission shall be used to determine if the record is subject to any disclosure exemptions.

1. Requests go to: Education and Examinations or Information Management. a. Exam materials are exempt (§ 54.1-108.1, § 2.2-3705.1.4) unless release won't compromise security. May be released to agencies at discretion. b. Scores may be released to candidates or jurisdictions if allowed by policy.
2. Requests go to: Finance Section. Submit requests to the Budget and Financial Services Director.
3. Requests go to: Custodian of Record. Working papers of officials are not public. a. Legal advice and related correspondence are privileged. b. Litigation or investigation work products are exempt under § 2.2-3711. License maintenance records are public with exemptions. License Transcripts summarize license activity, often for court, and are authenticated per § 54.1-112.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 6 of 7

b. License Transcripts are available for a fee of $40.00 per requested individual/business entity name; however, no fee shall be charged to organizations providing legal aid to the indigent or governmental/law enforcement agencies participating in an active criminal investigation. c. Upon request (from DPOR staff or a Commonwealth Attorney), License Transcripts may be prepared and authenticated by field investigators and regional supervisors to corroborate investigator testimony. 13. Meeting Minutes and Documents Direct record requests to: Licensing Section or Information Management Section a. Draft minutes of public meetings are available on the Department website and the Commonwealth Calendar no later than ten workdays following conclusion of the meeting (§ 2.2-3707.1 of the Code of Virginia). Final meeting minutes are available within three workdays of final approval of the minutes. b. Documents recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to §

1. 2-3711 are not subject to public disclosure. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting. Requests go to: Human Resources for personnel records, handled per policies and FOIA. Employee info (except as noted) requires employee consent; disclosures notify employees. Requests for property registration go to: Property Registration. Recovery Fund claims are available from Custodian. Regulant lists are available electronically from: Information Management.

Policy Title: Director’s Policy #100-04 Release of Information [POL401-100_04-v16] Effective: 06/05/2017 Submitted By: Dawn Waters, Information Management Director Guidance Document: Yes Supersedes: Director’s Policy #100-04 Release of Information (Effective 04/01/2015) Page 7 of 7

D. OTHER DISCLOSABLE INFORMATION While the Virginia Freedom of Information Act addresses the disclosure of “records”, other “information” shall be available to the public in order to afford them with the consumer protection associated with using appropriately credentialed practitioners. The appropriate licensing section is responsible for responding to general inquiries regarding licenses and licensing requirements. The licensing, certification, and registration information listed below may be released to the public via telephone, facsimile, e-mail or any other form of communication agreed to by both the requester and the Department.

1. Last 4 digits only of a licensee’s social security number or Virginia DMV Control Number
2. License number
3. Date of initial licensure
4. Expiration date of license
5. License classification
6. Method of obtaining license (e.g., exam, reciprocity, comity)
7. License classification
8. License status
9. Address of record (may be disclosed if replaced for privacy). E-mail (if available). Identity of individuals per licensure conditions (e.g., qualified persons, brokers) and their affiliations. Bond info.

E. OTHER NON-DISCLOSABLE INFORMATION

1. Last 9 digits of SSN or DMV control numbers may be disclosed on Certifications of Regulant Status at the Executive Director’s discretion.
2. Bank routing and account numbers
3. Credit/debit card numbers
4. Examination scores, pass/fail status, or attempts unless policy states otherwise.
5. State income, estate, business, and personal property tax returns are exempt from disclosure.
6. Information compromising privacy or safety (e.g., medical, scholastic) may only be disclosed with approval of the Director, Deputy Directors, or Information Management Director.

F. PROCEDURE FOR CORRECTING PERSONAL INFORMATION Pursuant to § 2.2-3806.A.5 of the Code of Virginia, in the event that a regulant determines that the Department’s information on that person is inaccurate, obsolete or irrelevant, the individual may submit a written request for correction, removal or amendment to the Information Management Section. The Information Management Director shall be responsible for reviewing the request, determining if corrective action is warranted and coordinating any corrective action and written response to the requester.

Boar Member Training INDEX Page 1 of 1 Last Updated – 7/27/23 INDEX | Board Member Manual

This manual is designed to provide you with materials for reference during your term as a board member. This manual contains:  General DPOR Information o Timeline of Regulatory Programs o 2020-2022 Biennial Report o Organizational Chart  Roles & Responsibilities of Board Members o Code of Conduct  Board Meetings Overview  Laws + Regulations o Code of Virginia ♦Title 54.1 ♦State and Local Government Conflict of Interests Act (COIA) ♦Administrative Process Act (APA) ♦Freedom of Information Act (FOIA) o FOIA Council Informational Materials  Regulatory Review Process o DPB Flowcharts o Executive Directive o Executive Order  Application IFFs  Examinations Overview  Disciplinary Process  Financial Overview  Legislative Process  Media Relations 1980s & 90s

1983 | AUCTIONEERS

1984 | GEOLOGISTS 1988 | ASBESTOS WORKERS & CONTRACTORS

1989 | SOIL SCIENTISTS

1990 | CERTIFIED INTERIOR DESIGNERS

1990 | REAL ESTATE APPRAISERS

1991 | WASTE MANAGEMENT FACILITY OPERATORS 1992 | NAIL TECHNICIANS 1993 | DOC re-named Dept. of Professional & Occupational Regulation (DPOR)

1994 | TRADESMEN 1994 | LEAD ABATEMENT WORKERS & CONTRACTORS 1998 | CEMETERY COMPANIES & SALESPERSONS 1998 | PROFESSIONAL BOXING & WRESTLING

1998 | BACKFLOW PREVENTION DEVICE WORKERS 1783 BRANCH PILOTS 1920s, 30s & 40s ARCHITECTS, PROFESSIONAL ENGINEERS & LAND SURVEYORS | 1920

1924 | REAL ESTATE 1938 | CONTRACTORS 1948 | Dept. of Professional & Occupational Registration (DPO) created

TIMELINE OF

REGULATORY PROGRAMS Protecting Virginians by regulating certain professions and occupations dates back to the seventeenth century, when pilots navigating the Commonwealth's waterways gave "branches" to show a ship's captain they were capable of directing the ship to safe harbor. In 1670, Virginia’s House of Burgesses formalized the regulation of this profession, and in 1783, the House of Delegates created the Board for Branch Pilots.

OPTICIANS | 1954 BARBERS & COSMETOLOGISTS | 1962

POLYGRAPH EXAMINERS | 1968

HEARING AID SPECIALISTS | 1970 WATER & WASTEWATER WORKS OPERATORS | 1971 DPO re-named Dept. of Commerce (DOC) | 1977 dpor.virginia.gov 1950s, 60s & 70s

LANDSCAPE ARCHITECTS | 1980 CERTIFIED HOME INSPECTORS | 2001 2000s 2010s

MOLD REMEDIATORS | 2011

DPOR PROVIDES LEADERSHIP AND SUPPORT TO 18 REGULATORY BOARDS + THE BOARD FOR PROFESSIONAL & OCCUPATIONAL REGULATION

TODAY

RESIDENTIAL BUILDING ENERGY ANALYSTS | 2011

TIME-SHARE RESELLER REGISTRATION | 2012

APPRAISAL MANAGEMENT COMPANIES | 2014

CNG AUTO MECHANICS | 2014 (DEREGULATED IN 2020)

AMATEUR MARTIAL ARTS | 2015

METH LAB REMEDIATION CONTRACTORS | 2016

FIRE SPRINKLER INSPECTORS | 2019

GAS-FITTERS | 2001

WAX TECHNICIANS | 2002 TATTOOISTS & BODY PIERCERS | 2004

WETLAND DELINEATORS | 2004

ELEVATOR MECHANICS | 2004

WATER WELL CONTRACTORS | 2007

ESTHETICIANS | 2007

COMMON INTEREST COMMUNITY MANAGERS | 2008

ONSITE SEWAGE SYSTEM PROFESSIONALS | 2009

DEREGULATED IN 2012 UPGRADED TO LICENSED IN 2017 Delivering Results Today Accelerating Opportunities for Tomorrow Biennial Report 2020-2022 About DPOR The Department of Professional and Occupational Regulation protects the health, safety and welfare of the public by licensing qualified individuals and businesses and enforcing standards of professional conduct for professions and occupations as designated by statute.

DPOR oversees 18 regulatory boards in addition to the Board for Professional and Occupational Regulation.

Through its boards, DPOR regulates more than 300,000 individuals and businesses, and hundreds of license types.

Our Mission Our Vision The Department of Professional and Occupational Regulation will be the Commonwealth’s most effective agency, discovering creative ways to integrate regulatory efficiency with consumer protection via a commitment to exceptional customer service, efficient business processes, technological proficiency, and empowered employees.

What We Do DPOR issues professional credentials—licenses, certificates and registrations—in the least intrusive, least burdensome and most efficient way.

We are charged with ensuring the minimum competency necessary to practice without harming the public, not enhancing professional stature or limiting competition by keeping newcomers out. Policy boards determine the minimum standards necessary to enter a profession and qualify applicants based on a combination of education, experience and examination.

DPOR also enforces standards of professional conduct. The agency investigates reports of regulatory violations and seeks to obtain compliance with the law or, when necessary, to discipline the licensee. Regulatory board sanctions against licensees include fines, probationary terms, suspension or license revocation.

Unlicensed activity—practicing a profession without a required state license—is a misdemeanor criminal violation. Regulatory boards do not have jurisdiction over unlicensed individuals. In cases involving allegations of unlicensed practice, DPOR attempts to obtain compliance with licensing requirements or works with local law enforcement to assist in bringing criminal charges. Ultimately, unlicensed activity is outside the boards' legal jurisdiction and prosecution is at the discretion of local law enforcement officials.

As a non-general fund agency, DPOR is financed solely by revenue collected through fees paid by licensees. Fees are adjusted periodically, as required by the "Callahan Act" (§ 54.1-113 of the Code of Virginia), to ensure revenues are sufficient to cover expenses, but not excessive.

How We Do It DPOR strives to promote a positive business climate, ensure a competent workforce and provide exceptional customer service. As an executive branch agency under the Secretary of Labor, we support Virginia's economic vitality by helping qualified individuals start businesses and work in their chosen fields. We protect the public by verifying minimum competency, investigating complaints, and upholding professional compliance with state laws and regulations.

Why We Do It Our Boards Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects Asbestos, Lead & Home Inspectors Athlete Agents Auctioneers Barbers and Cosmetology Boxing, Martial Arts, and Professional Wrestling Branch Pilots Cemetery Common Interest Community Contractors Fair Housing Hearing Aid Specialists and Opticians Polygraph Examiners Professional and Occupational Regulation Real Estate Real Estate Appraisers Professional Soil Scientists, Wetland Professionals, and Geologists Tradesmen Waste Management Facility Operators Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals

Board Activity By the numbers Applications Renewals + Reinstatements 59,952 264,368 41,158 Name + Address Changes 210,393 Online Transactions Contractor Remedial Education Classes Contractors Who Attended Classes 37 915 Regulatory Actions With Public Comment Opportunities Public Hearings 41 4 Volunteer Board Members 229 Regulatory Boards 15 3 1 Advisory Boards Policy Boards Executive Office Jennifer Sayegh DPOR Director Kishore Thota Chief Deputy Director Demetrios "Mitch" Melis Policy and Legislative Affairs Manager Kerri O'Brien Communications and Digital Media Manager

The Policy and Legislative Affairs Manager coordinates the agency's legislative affairs, assist with constituent services, and acts as a liaison to the office of the Secretary of the Commonwealth in managing DPOR's 185 board appointments.

Appointed by the Governor, the Chief Deputy Director provides executive level support to the Director. The Chief Deputy also leads organization-wide innovation and transformation efforts to improve the agency's structure, performance, and technology.

Appointed by the Governor, the Director is responsible for managing the daily operations of the agency while continuously positioning the organization to be adaptable and responsive to both internal and external priorities.

The Communications and Digital Media Manager is responsible for DPOR's external and internal communications. They support the mission of providing timely and accurate information to the public through both conventional and social media.

CORE MISSION FUNCTIONS Compliance and Investigations Licensing

THE COMPLIANCE AND

INVESTIGATIONS DIVISION

REVIEWS CONSUMER REPORTS

AGAINST LICENSEES TO

DETERMINE WHETHER DPOR IS

AUTHORIZED TO PROCESS THE

COMPLAINT.

DPOR ONLY PROCESSES

COMPLAINTS AGAINST

INDIVIDUALS OR BUSINESSES

THAT ARE SUBJECT TO THE

LAWS OR REGULATIONS OF ITS

REGULATORY BOARDS.

Stephen Kirschner/Deputy Director of Licensing & Regulatory Programs Tom Payne/Deputy Director of Compliance & Investigations

OUR 200 EMPLOYEES SERVE

MORE THAN 300,000

INDIVIDUALS AND BUSINESSES

ACROSS SEVERAL HUNDRED

LICENSE TYPES, RANGING

FROM ARCHITECTS AND

CONTRACTORS TO

COSMETOLOGISTS AND

PROFESSIONAL WRESTLERS.

APPLICANTS SEEKING

LICENSURE OR CERTIFICATION

IN REGULATED PROFESSIONS

MUST MEET CERTAIN ENTRY

QUALIFICATIONS. DPOR AND

ITS BOARDS ESTABLISH ENTRY

REQUIREMENTS.

Support Divisions Administrative and Financial Services Responsible for accounting, budgeting, procurement and various other operational needs of the agency and its boards.

Information Technology Responsible for the deployment and support of all current technology as well as planning for furture strategic technology initiatives.

Human Resources Responsible for benefits administration, recruiting, hiring and retaining talent, performance management, employee engagement, and other internal workforce development.

Additional Programs Office of the Common Interest Community Ombudsman The Office of the Common Interest Community Ombudsman offers assistance and information to association members regarding the rights and processes available to them through their respective condominium, cooperative, or property owners' associations.

Virginia Fair Housing Office The Fair Housing Office is responsible for investigating housing discrimination complaints. Federal and state fair housing laws protect people from discrimination when trying to rent an apartment, buy a house, obtain a mortgage, or purchase homeowner's insurance.

Contractor Recovery Fund The Virginia Contractor Transaction Recovery Act provides relief to eligible consumers who have incurred losses through the improper or dishonest conduct of a licensed residential contractor. The Recovery Fund is supported entirely by assessments paid by licensed contractors, not by any tax revenues.

Real Estate Recovery Fund The Virginia Real Estate Transaction Recovery Act provides relief to eligible consumers who have incurred losses through the improper or dishonest conduct of a licensed real estate salesperson, broker, or firm. The Recovery Fund is supported entirely by assessments paid by licensees, not by any tax revenues.

Common Interest Community Recovery Fund The Common Interest Community Management Recovery Fund provides a mechanism for a receiver who has been appointed by a court as a result of defalcation of an association by its common interest community manager to recover an award of reasonable fees, costs, and expenses. The Recovery Fund is supported by assessments paid by licensees and registered associations.

On March 12, 2020, through Executive Order 51 Governor Ralph Northam declared a state of emergency in response to the COVID-19 pandemic. The order directed state government to render appropriate assistance to prepare for and mitigate the effects of the COVID-19 outbreak and in part, the measure authorized executive branch agency heads to waive state requirements and regulations on behalf of their regulatory boards with the concurrence of the respective cabinet secretary. DPOR continued providing services throughout the pandemic through the modification of business practices and implementing authorized emergency actions.

Notable Efforts :

• Maintained operations during lockdown periods.
• Converted its call center to a virtual call center and created a process for incoming mail to be digitized for remote license processing.
• Developed business processes that allowed most employees to telework.
• Waived license expiration dates for 15 months, ensuring those experiencing economic hardship could continue to work without the burden of license fees.
• Waived certain requirements allowing several professions to continue to practice during mandatory lockdowns with virtual rather than physical presence.
• Executed regulatory waivers allowing schools and training providers to remain open using online instruction methods.
• Modified public meetings to implement social distancing requirements and conducted over 25 virtual board meetings that allowed remote public access and participation.
• Expedited license reinstatements to ensure individuals would qualify for unemployment insurance.

DPOR's Biennial Summary In 2018, the Joint Legislative Audit and Review Commission (JLARC) studied the operations and performance of the Department of Professional and Occupational Regulation (DPOR). The study included a review of the department’s staffing and organization, its processing of occupational licenses, and enforcement of occupational rules. The final report included 36 recommendations for legislative and executive action. Subsequently in May 2019, DPOR engaged the Performance Management Group (PMG) of VCU's Wilder School of Government and Public Affairs to complete an organizational assessment of the agency.

While these assessments were conducted in the previous biennium, they remain a relevant roadmap and strategy to improve the organization and to better fulfill its mission of applying the least restrictive occupational licensing while adequately protecting the public. Current DPOR leadership has worked diligently to implement the assessments' recommendations.

Pandemic Response DPOR's Biennial Summary During the state of emergency, DPOR did see a slight drop in its licensure count. With the launch of the Rebuild! VA recovery fund, the agency contacted over 4,000 small businesses to announce the small business grant program. DPOR provided information about the available $10,000 grants. In 2021, licensure numbers began to tick up again and have continued an upward trajectory.

In December of 2020, in response to a JLARC study recommendation, the Board for Professional and Occupational Regulation (BPOR) released its final report on the need for continued regulation of certain professions and occupations. The purpose of the report was to determine the appropriate level of regulation, if any, for currently licensed soil scientists, waste management facility operators, and landscape architects. In addition, BPOR evaluated the potential impacts of deregulation on currently certified common interest community manager employees, interior designers, backflow prevention device workers, and wetland delineators. BPOR came up with key findings and recommendations for each occupation. BPOR found some level of regulation was appropriate and the agency has continued to evaluate these findings.

Pandemic Recovery BPOR Advisory Board Study 2022 Initiating Transformation In January 2022, after the inauguration of Governor Glenn Youngkin, public services and business began to return to normal as Virginia re-opened. On January 15, 2022 Governor Glenn Youngkin appointed Demetrios "Mitch" Melis Director of DPOR. DPOR immediately began taking steps to implement Governor Youngkin's initiatives to re-build Virginia's workforce, reduce regulatory burdens, improve customer service and ensure government meets the needs of the citizens it serves.

Organizational Restructuring Created a separate division solely to oversee licensing and provide support to DPOR Boards Realigned IT Director position to report directly to the agency director Established three positions to focus on legislative, regulatory, and public affairs respectively Focusing on Core Mission Services Assembled a cross-functional "tiger team" to address critical staffing shortages Recruited and filled 30 previously vacant full-time positions in Q3 and Q4 of FY22 Reduced recruiting time by 33% Change Starts with People DPOR's Workforce Building a Culture of Excellence Initiated employee engagement, recognition, and leadership programs Utilized cross-functional teams to foster collaboration and transcend silos Implemented agile project management and continuous process improvement methodologies Cultivating and Empowering Success 2022 Initiating Transformation Continued Today, citizens expect government agencies to provide a modern technology-based and user-friendly experience rivaling the private sector.

Through digital transformation, DPOR will improve the citizen and customer experience while also delivering transparency and predictability to government services.

Enterprise Technology Modernization Hired technology consulting firm to assess business needs and recommend technology solutions to replace legacy licensing system End-goal of providing fully digital citizen-centered licensing experience Emphasis will be placed on a rapid and iterative implementation and deployment to provide immediate value to customers Empowering Possibilities Established a dedicated office to serve as a constant internal transformation resource OPI empowers employees to continuously improve the organization's performance and challenge the status quo A Catalyst for Continuous Improvement and Transformation Office of Performance & Innovation (OPI) Internal Support Operations Emphasis placed on the importance of providing high quality internal support services to DPOR's external customer facing teams DPOR's executive management team meets weekly to ensure high quality internal service delivery from Human Resources, Administration and Financial Services, and Information Technology Providing Excellence in Internal Service Delivery to Improve External Customer Service Licensing Working to issue licenses, certifications, registrations, and other authorizations to qualified individuals and businesses in an efficient manner.

Total Regulant Population as of June 30, 2022 320,971 2019 2020 2021 2022 400,000 300,000 200,000 100,000 0 DPOR experienced a dip in licensure in 2020 during the height of the COVID Pandemic. In 2021 and 2022 the regulant count began to rebound.

DPOR now continues to see growth in the number of licenses, certificates and registrations it issues.

Licensure Count 312,400 311,997 316,196 320,971 Licensing Insight Licensing Hearings Outcomes of License Application Cases Requiring IFF + Board Determinations Less than one percent of all applications require additional review for criminal convictions, adverse financial or disciplinary history, or special consideration of education or experience qualifications. In accordance with the Virginia Administrative Process Act those applications are referred to a Licensing Informal Fact-Finding (IFF) conference. Boards ultimately approved 81% of all applications referred for a Licensing IFF this biennium.

An Informal Fact-Finding Conference is a due process administrative proceeding to obtain further facts “on the record” about a specific matter. It is an opportunity for an applicant or licensee to present evidence and provide the board with information relating to their case. If the IFF is required due to an applicant’s criminal conviction(s), the board will be seeking information relating to the nine factors described in § 54.1-204.B of the Code of Virginia, to assist its deliberations about whether the criminal history is related to the profession and if a license should be issued. 89% 73% 80% Approved After IFF Approved After IFF Approved After IFF *Denials primarily for experience waivers *Denials primarily for disciplinary action or false information on application Board for Contractors 14,707 Applications 89 Referred to IFF Real Estate Board 17,447 Applications 88 Referred to IFF Board for Barbers and Cosmetology 11,375 Applications 44 Referred to IFF *Denials primarily for disciplinary action or false information on application 4 of 14,707 Applications (0.02%) Denied for Criminal History After IFF 12 of 17,447 (0.07%) Denied for Criminal History After IFF 0 of 11,375 (0.0%) Applications Denied for Criminal History After IFF Compliance and Investigations Working to enforce standards of professional conduct by investigating reports of regulatory violations, seeking compliance with legal requirements or disciplining the regulant.

Disciplinary Cases By The Numbers 296 Disciplinary IFFs Due process administrative proceedings that give notice of potential disciplinary action and an opportunity to respond 434 Prima Facie Cases Files forwarded directly to the board without the need for a disciplinary IFF, if respondent agrees to waive the proceeding or does not respond to the IFF Notice 617 Final Orders Board orders resulting from disciplinary IFFs and prima facie case files 843 Consent Orders Voluntary, negotiated settlement agreements that bypass a disciplinary IFF and go directly to the board for ratification Complaint Summary 0 1,000 2,000 3,000 4,000 Disciplinary Unlicensed Fair Housing Other* *Not all complaints received involve violations of laws or regulations under DPOR jurisdiction. 3624 866 638 579 Disciplinary Complaints By Board Contractors 47% All others 24% Real Estate 20% Barbers & Cosmetology 9% Fair Housing Complaints By Protected Class Disability 33% Race 24% Source of Funds

1. 8% Familial Status 7% Sex 7% National Origin 5% Color 4% Elderliness 3% Sexual Orientation 2% Complaints Received

FY21: 257 FY22: 361 Monetary Relief To Complainants $449,625.17

Cases Settled With Monetary Relief 71 Common Interest Community Recovery Fund $239,467 Complaint Resolutions Contractor Recovery Fund DPOR and its regulatory boards CANNOT require any individual or business to refund money, correct deficiencies, or provide other personal remedies. Unlicensed activity is a misdemeanor criminal offense.

Civil or criminal court is often a consumer's only recourse for private remedy. DPOR administers recovery funds for eligible consumers who are unable to collect on a judgment against a contractor or real estate licensee. We also work with local law enforcement and prosecutors to combat unlicensed activity and fraud.

Real Estate Recovery Fund Unlicensed Activity

$938,400/FY 2021 $657,750 /FY 2022 104 Claim Payments 91 Prima Facie Cases 13 IFF Conferences $ 1 Claim Payment $ 159 Criminal Warrants Obtained by DPOR

Court-Ordered restitution in DPOR- Assisted Criminal Prosecutions $19,551 2 Claim Payments 0 Prima Facie Cases 2 IFF Conferences $1.6 Million $178,689 $239,467 Immediately upon assuming office in January 2022, Governor Glenn Youngkin issued Executive Directive Number One to reduce the regulatory burden on businesses and citizens across the Commonwealth. The order builds upon House Bill 883 which established a regulatory reduction pilot program with guideposts of 25 percent regulatory reductions across the Executive Branch. DPOR was one of two agencies selected to take part in the pilot program which concluded in 2021 and reached the reduction goal primarily through streamlining.

Executive Directive One: Regulatory Reform What is the intended purpose of the regulation?

Who does the regulation ultimately protect?

Does the regulation protect the health, safety, or welfare of the public from a recognizable harm, not remote or dependent upon tenuous argument?

Is there a less restrictive way to accomplish this protection?

Is the regulation still relevant and necessary?

DPOR Boards are actively engaged in comprehensive and targeted line-by-line reviews of regulations. The regulatory review process is uniformly being applied to reduce demonstrable regulatory burdens impacting businesses and individuals.

Focused Review Process All regulatory changes are made in accordance with the Virginia Administrative Process Act and undergo a standard three stage process of executive branch review as well as designated opportunities for public comment. Transparency to the public and input from all interested stakeholders are of utmost importance throughout the regulatory review process.

Legislative Activity and Updates House Joint Resolutions 561 was introduced during the 2021 Session of the General Assembly. The legislation directed an evaluation of “the efficacy of the Commonwealth’s occupational licensing laws for construction trades.” DPOR convened the Trade Exploration Work Group, a committee comprised of representatives of multiple organizations from the construction industry. After assessing the regulatory framework and research findings against statutory criteria for occupational licensing, the Work Group adopted proposals that enjoy broad though not unanimous support.

Senate Bill 1410, which expanded military service member housing protections, passed during the 2021 Session. The bill amended the Virginia Fair Housing Law to prohibit discrimination in the sale or rental of dwellings by any person or entity, and prohibit discrimination by “any person or other entity, including any lending institution, whose business includes engaging in residential real estate-related transactions.” The bill also provided that the term "residential real estate-related transaction" means any of the following: the making or purchasing of loans or providing other financial assistance (i) for purchasing, constructing, improving, repairing, or maintaining a dwelling or (ii) secured by residential real estate; or the selling, brokering, insuring, or appraising of residential real property. 2021 Virginia General Assembly Fair Housing Law Occupational Licensing Laws for Construction Trades Legislative Activity and Updates During the 2022 Session of the General Assembly, the legislature passed Senate Bill 693 which directed the Common Interest Community Board to review the feasibility of allowing audio and video recordings to be submitted with a notice of final adverse decision as a record pertinent to the decision in accordance with 54.1-2354.4 of the Code of Virginia. The Board conducted a review with assistance from a committee comprised of common interest community attorneys, citizens residing in common interest communities, Board members, and the Common Interest Community Ombudsman. Based on the committee’s findings and conclusion, the Board finds it would not be feasible to allow the submission of audio and video recordings with a notice of final adverse decision and is opposed to any legislative or regulatory changes allowing for it. 2022 Virginia General Assembly In accordance with Chapter 421 of the 2022 Virginia Acts of Assembly (Senate Bill 740), DPOR established a work group for the purpose of discussing matters related to the study of the adequacy of current laws addressing standards for structural integrity and for maintaining reserves to repair, replace, or restore capital components in Common Interest Communities. The Structural Integrity and Reserves Work Group has held two of its five meetings planned in different regions of the Commonwealth. The meetings held in Richmond and Roanoke included presentations covering a variety of topics relevant to the issues being studied. The next three meetings are scheduled and will take place in Arlington, Newport News and Richmond within the next six months.

Notice of Final Adverse Decision; Audio and Video Recordings Standards for Structural Integrity and Reserves for Capital Components Financial Insight In 2019, the legislature directed DPOR to place its overall fund balance in reserve, to offset future costs associated with organizational restructuring and replacement of the agency's information technology systems. The reserve funds may also be applied to cover ongoing operational expenses of the Department and its boards.

In Cumulative Fund Balance over biennium

The reserve fund addresses JLARC's recommendation to reduce the boards' cumulative fund balance.

As a non-general fund agency, DPOR is funded by license fees, not by any tax revenues.

Our fees are relatively low and affordable, and set in accordance with the Administrative Process Act's public participation and executive branch review requirements.

Reserve Fund Balance as of June 30, 2022 Unencumbered Fund Balance as of June 30, 2022 $19 Million

1. 7% $22,268,683 $21,450,546 End of FY 20 End of FY 22 Million $2.5

REGULATORY BOARD

REVENUES

EXPENDITURES

PUBLIC

MEETINGS

EXAMINATIONS

ADMINISTERED

COMPLAINTS

RECEIVED

REGULANT POPULATION (AS OF 6/30/22) Architects, Professional Engineers, Land Surveyors, Certied Interior Designers & Landscape Architects $3,604,762 $3,746,455 20 4,824 111 45,666 Asbestos, Lead & Home Inspectors $581,219 $558,274 11 218 87 5,962 Athlete Agents $74,600 $97 0 N/A 0 61 Auctioneers $75,759 $103,934 4 85 27 1,245 Barbers & Cosmetology $8,226,428 $7,823,996 19 18,555 500 74,659 Boxing, Martial Arts & Professional Wrestling $179,513 $211,944 4 N/A 5 701 Branch Pilots $5,040 $6,503 14 12 3 39 Cemetery $95,140 $74,233 4 N/A 58 1,076 Common Interest Communities $1,097,966 $1,554,962 10 N/A 535 7,823 Contractors $15,892,251 $16,054,125 32 41,711 2,648 87,870 Fair Housing $62,005 $62,005 7 N/A 635 2,069 Hearing Aid Specialists & Opticians $226,725 $271,261 6 441 13 2,664 Polygraph Examiners $24,760 $23,068 2 38 2 341 Professional Soil Scientists, Wetland Professionals & Geologists $90,365 $114,623 3 129 1 1,190 Real Estate $9,170,430 $9,862,264 37 30,750 884 78,980 Real Estate Appraisers $602,857 $375,084 6 237 101 4,162 Waste Management Facility Operators $39,150 $53,253 4 177 3 612 Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals $610,719 $576,575 11 2,879 56 5,851

TOTALS $40,569,689 $41,472,646 194 100,056 5,674 320,971 BOARD STATISTICS Milestones and Moments Virginia Fair Housing 50th Anniversary Board Member Training Conference Virginia’s Fair Housing Office at the Department of Professional and Occupational Regulation celebrated its 50th anniversary. The office was created with the passage of Virginia's Fair Housing Law in 1972, just four years after the passage of the federal Fair Housing Act in 1968.

For half a century, Virginia's Fair Housing Office has worked to ensure that buyers, sellers, tenants, landlords and all citizens in the Commonwealth are educated about Virginia's Fair Housing Law.

The Virginia Fair Housing Office remains committed to working with private and public partners to identify housing barriers and provide equal opportunities for thousands of Virginians to live in affordable housing.

In October 2022, DPOR hosted over 130 board members, guests, and staff for a two-day training in Williamsburg.

The event included a welcome from Secretary of the Commonwealth Kay Coles James and Deputy Secretary Anthony Reedy. Former Secretary of Commerce and Trade James Cheng delivered the keynote address.

Secretary of Labor George Slater, Department of Labor and Industry Commissioner Gary Pan, and DPOR Director Mitch Melis led a panel discussing workforce development. Other conference sessions included: New Board Member Forum Licensing Trends Roundtable Discussions Replacing Red Tape with Green Tape: Regulatory Reduction and Public Protection Robert’s Rules of Order Overview of Agency Structure and Complaint Process Panel Discussion with Experienced Board Members Overview of the Freedom of Information Act

DPOR DIRECTOR RUFUS STEWART F i n a n c e D i r e c t o r

AMIRA HADID CHIDI EZE O p e r a t i o n D i r e c t o r

OLIVIA WILSON

TEDDY YU

JULIANA SILVA

CIA RODRIGUEZ

ESTELLE DARCY

BAILEY DUPONT

AARON LOEB

O R G A N I Z A T I O N A L C H A R T

CHIEF DEPUTY

DIRECTOR COMMUNICATIONS &

DIGITAL MEDIA

MANAGER POLICY &

LEGISLATIVE AFFAIRS

MANAGER LICENSING &

REGULATORY

PROGRAMS

DEPUTY DIRECTOR

HUMAN RESOURCES

DIRECTOR COMPLIANCE &

INVESTIGATIONS

DEPUTY DIRECTOR

TEDDY YU

INVESTIGATIONS

COMPLAINT ANALYSIS & RESOLUTION

COMMON INTEREST

COMMUNITY

OMBUDSMAN

ADJUDICATION

POST ADJUDICATION

LICENSING

EXECUTIVE

ASSISTANT

BCHOP

APELS/BMAW

CWA

REAL ESTATE ADMINISTRATIVE &

FINANCIAL

SERVICES DIRECTOR BUDGET &

FINANCIAL

SERVICES

ADMINISTRATIVE

SERVICES

INFORMATION

TECHNOLOGY

DIRECTOR

INFORMATION

MANAGEMENT

VIRGINIA

FAIR HOUSING

OFFICE

OFFICE OF

PERFORMANCE AND

INNOVATION

ORGANIZATIONAL CHART

JUNE 2023

CONTRACTORS EXAMINATIONS Board Member Training ROLES + RESPONSIBILITIES Page 1 of 2

Roles + Responsibilities The primary responsibility of a regulatory board is to protect the public by establishing entry requirements to ensure minimum competence and standards of conduct for licensees. These requirements and standards are established in regulation.

The Board exercises its authority by acting as a Board, through the adoption of motions at properly noticed Board meetings. Individual members do not have the authority to take Board action.

As a Board Member you should:  Attend all meetings, except in the case of emergency. Most boards schedule meetings at least a year in advance. Your attendance is critical to ensuring the presence of a quorum for all actions. If you cannot attend, let your Board Executive Director know in advance. Failure to have a quorum could result in last-minute cancellation of a meeting. The result could be respondents, applicants, fellow board members, and other interested persons traveling a considerable distance and incurring travel costs only to arrive and find out that a meeting cannot be held due to lack of a quorum.  Read all agenda materials prior to a meeting. You are not eligible to vote on case decisions involving disciplinary action and granting of a license if you have not read the complete record.  Handle all application and complaint files with confidentiality. Do not discuss Board business with friends and family. Do not discuss board business with fellow Board members outside of a properly noticed meeting, including through the use of e-mail or text message. Do not discuss cases with applicants or respondents outside of the Informal Fact-Finding Conference or Board meeting.  Review all board business to determine whether you have a potential conflict of interest. Personal, business, and family relationships may result in a conflict of interest. Some conflicts will require you to disclose your relationship with the licensee or applicant; other conflicts may require you to remove yourself from voting on a case. You are required to complete a conflict of interest statement at every Informal Fact-Finding Conference and Board meeting.

Board Member Training ROLES + RESPONSIBILITIES Page 2 of 2 L  Refer investigative matters to Compliance and Investigations. The Code of Virginia gives DPOR investigators the authority to investigate. The role of a Board member is to participate in the case decision making process at Informal Fact-Finding Conferences and Board Meetings.  Submit all travel vouchers promptly. Staff will assist you with the preparation of a travel voucher at each of your meetings. Please bring original receipts with you so that all reimbursements can be processed in a timely manner.  Contact your Board Executive Director when you receive a press inquiry. Open investigations should not be discussed with the press. Information regarding press contacts will be shared with the DPOR Communications Director who will coordinate contacts and provide follow-up if appropriate.  Familiarize yourself with relevant provisions of the Code of Virginia. o Refer to Section 5 April 27, 2015 Page 1 of 2 Virginia Department of Professional and Occupational Regulation Board Member Code of Conduct This Code of Conduct is a set of behavioral expectations intended to assure the public that the board and its members uphold the highest level of integrity and ethical standards in preserving the health, safety, and welfare of the public. Board members and staff will conduct themselves in a manner that is respectful of the process and all participants, including board members, staff, applicants, regulants, respondents, witnesses, participants, complainants, and the public during conferences, hearings, and meetings.

The following guidelines and protocols, along with the observance of and compliance with relevant regulations, statutes, and established procedures, provide the foundation for assuring the public trust in the regulatory program administered by the board:

1. Being a member of the board is a privilege to serve the public.
2. Board members shall disclose any actual or perceived conflict of interest and recuse themselves from those decisions, when appropriate.
3. Board members shall avoid any relationships or activities that may, or appear to, influence, either directly or indirectly, the performance of his official duties as a board member.
4. Board members shall refrain from any contact with applicants, respondents, witnesses, and their legal counsel with a pending matter before the board.
5. Board members shall maintain confidentiality and safeguard all materials that are confidential.
6. Board members shall not discuss or conduct board business outside properly noticed meetings of the board.
7. Board members shall not represent the board or participate in board activities while impaired.

April 27, 2015 Page 2 of 2

1. Board members shall refrain from actions that expose the board to unnecessary legal, ethical, or financial risks.
2. Board members shall accept and support decisions of the board regardless of personal opinion, regardless of whether they voted with the majority. 10. Maintaining appropriate boundaries in relationships with other members of the board and staff. 11. Always acting in the best interest of the board by conducting oneself with honesty and integrity at all times. 12. Board members shall conduct themselves in accordance with the following guidelines while in an official capacity as a member of the board: a. Members shall be on-time for all meetings, preferably arriving five to ten minutes prior to the starting time of meetings; b. Members shall review all materials in advance of a meeting or proceeding and alert staff to any potential or actual conflicts prior to the meeting or proceeding; c.

Members shall ensure that their demeanor, behavior, and body language remains professional and respectful at all times; d. Members shall treat all people fairly regardless of race, gender, ethnic origin, or disability; e. Members shall refrain from speeches and expressing personal opinions not based on evidence in the record and avoid repeating questions unless a clear answer was not given; f.

Silencing personal devices; g. Informing staff if they are going to be late for or absent from a meeting; h. Being fair, equitable, impartial, and consistent; i.

Allowing for the orderly conduct of all meetings, hearings, or conferences; and j.

Protecting the rights to due process.

Board Member Training BOARD MEETINGS Page 1 of 2 1 Board Meetings Overview The statutes relating to your specific Board set forth quorum requirements. A Board cannot act without a quorum present; therefore, your attendance at meetings is critical.

It is also important for you to notify your Board Executive Director as far in advance as possible if you are unable to attend.

Voting to impose sanctions requires a majority vote of those “qualified” to vote.

Members who have presided over the Informal Fact-Finding Conference, or who have a conflict that would prevent them from voting, are not “qualified.” However, members who are absent from the meeting are “qualified” unless disqualified for another reason. Therefore, instances may occur where a quorum is present to meet, but a majority of those qualified is either not present, or a split vote prevents getting a majority vote of those “qualified.” Again, these statutory provisions make your attendance at meetings very important.

Boards operate by motion and vote, and typically the chairman votes. None of the DPOR Boards have formally adopted Robert’s Rules of Order; however, the rules generally serve as a guide in facilitating the conduct of an efficient meeting.

THE AGENDA Public Comment Period - The first item on the agenda is a public comment period.

During this time, individuals may address the Board on any issue that is not on the agenda. Comment is limited to five minutes. A Board response is not required; however, the Board may request staff to look into issues raised and discuss them at a later time.

Adoption of Minutes - The second agenda item is the adoption of minutes from prior Board meetings and Informal Fact-Finding Conferences. Remember, your minutes are a record of what occurred at the meeting. Corrections should be limited to the accuracy of the minutes. If you wish to discuss an item referenced in the minutes, you may request that the chair add the item to the agenda.

Disciplinary and Application Cases - The major portion of most agendas is the handling of disciplinary and application (licensing) cases. Participants may speak on a case; again their time is limited to five minutes. A participant is anyone who participated in the Informal Fact-Finding Conference.

Board Member Training BOARD MEETINGS Page 2 of 2

The Administrative Process Act (APA) requires that participants be given an opportunity to address the Board; however, the APA prohibits the submission of additional evidence at the Board meeting. The Board’s decision is to be based on the record from the Informal Fact-Finding Conference. If you have a question of a participant, your question should be clarifying in nature only; you should not elicit new evidence.

Miscellaneous Items - The remaining portion of the agenda will include miscellaneous items such as regulatory review or briefings on issues the Board may wish to address.

Boards should follow the agenda! The result is a more productive and efficient meeting and a more organized flow to the meeting minutes. In addition, members of the public can better follow your actions and plan their attendance to hear items of interest.

FREEDOM OF INFORMATION ACT REQUIREMENTS The Freedom of Information Act (FOIA) governs most aspects of your Board meetings.

FOIA requires that your meetings be publicly noticed. The notices are published by the Registrar of Regulations in the Register (http://register.dls.virginia.gov/) and are posted on the Regulatory Town Hall (http://townhall.virginia.gov/) as well as the Commonwealth Calendar (https://commonwealthcalendar.virginia.gov/).

FOIA prohibits the discussion of Board business outside of a properly noticed meeting.

FOIA also requires that your meetings be held in open session, with few exceptions. You may go into closed session to discuss legal advice with counsel, to discuss examination issues, or for the deliberation of disciplinary cases.

DPOR encourages open government and the basic premise of FOIA follows the philosophy of “government in the sunshine;” therefore all Boards are encouraged to handle as much business as possible in open session. Should a Board choose to go into closed session, the Board must adopt a motion that states the statutory basis for the closed session and includes a list of non-members who will remain in the room, along with the reason. For example, you may wish to have your Board Executive Director present in a closed session for the purpose of aiding you in your discussion. If you are receiving legal advice, your counsel will be present. When you return to open session you must adopt a certification that states that only matters listed in your motion were discussed in the closed session.

FOIA also requires that minutes be taken of all meetings. Draft minutes are posted on the Regulatory Town Hall website within 10 days of your meeting. Final minutes are posted within three days of the meeting.

Board Member Training LAWS + REGULATIONS Page 1 of 1 L Laws + Regulations Laws (statutes) are adopted by the General Assembly and compiled in the Code of Virginia. A listing of statutes relevant to our boards is contained on the next page. You also may access the most up-to-date version of the entire Code online at http://law.lis.virginia.gov/vacode.

Each of your board-specific statutes sets forth provisions relating to the composition of your board; quorum requirements; the necessity for licensure; exemptions from licensure, etc.

Regulations are promulgated by the board in accordance with the Administrative Process Act and are compiled in the Virginia Administrative Code (VAC). The VAC is accessible online at http://law.lis.virginia.gov/admincode.

All regulations must be authorized by statute. A review of the regulatory process is provided in Section 6.

Law/Statute Regulation Code of Virginia § 54.1-XXXX Virginia Administrative Code

18 VAC XX-YY-ZZZ

• Adopted by the General Assembly and approved the Governor
• Can only be enacted, amended, and repealed by an act of the legislature
• Statutory revisions only occur during General Assembly sessions (once per year beginning in January)
• Must be authorized by the General Assembly (through enabling legislation)
• Adopted by a state government agency (board)
• Can be enacted, amended, and repealed by agency (board)
• Regulatory review process can be initiated at any time Board Member Training STATUTES Page 1 of 2 1 Code of Virginia Statutory provisions governing DPOR and each of its Boards fall under Title 54.1 of the Code of Virginia. All chapters are hyperlinked below for easy navigation.

In addition, each Board page on the agency website (www.dpor.virginia.gov) provides links to applicable statutes and regulations.

The first three chapters of Title 54.1 apply to the Department as a whole and each of its Boards.

Chapter 1 General Provisions Chapter 2 General Provisions Chapter 3 Department of Professional and Occupational Regulation The remaining chapters are program-specific.

Chapter 4 Architects, Professional Engineers, Land Surveyors, Landscape Architects and Interior Designers Chapter 5 Asbestos, Lead, and Home Inspection Contractors and Workers Chapter 5.2 Athlete Agents Chapter 6 Auctioneers Chapter 7 Barbers and Cosmetologists Chapter 8.1 Boxing and Wrestling Events Chapter 9 Branch Pilots Chapter 11 Contractors Chapter 15 Hearing Aid Specialists and Opticians Chapter 18 Polygraph Examiners Chapter 20.1 Real Estate Appraisers Chapter 20.2 Real Estate Appraisal Management Companies Chapter 21 Real Estate Brokers and Salespersons Chapter 22 Soil Scientists, Wetland Delineators, and Geologists Chapter 22.1 Waste Management Facility Operators Chapter 23 Waterworks and Wastewater Works Operators Chapter 23.1 Cemetery Operators, Perpetual Care Trust Funds and Preneed Burial Contracts Chapter 23.2 Fair Housing Chapter 23.3 Common Interest Communities Board Member Training STATUTES Page 2 of 2

In addition, you are required by statute to become familiar with the State and Local Government Conflict of Interests Act (COIA) upon your appointment to the Board, and to review the Act each year. (Title 2.2, Chapter 31, §§ 2.2-3100 thru 2.2-3131) The Administrative Process Act (APA) governs the way Boards promulgate regulations and make case decisions. (Title 2.2, Chapter 40, §§ 2.2-4000 thru 2.2-4033) The Freedom of Information Act (FOIA) governs most aspects of your meetings and also governs the Department’s Release of Information Policy. (Title 2.2, Chapter 37, §§

1. 2-3700 thru 2.2-3714) Finally, members of some Boards need to be familiar with other provisions unique to their program area. Your Board Executive Director will review these provisions with you.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 1 ACCESS TO PUBLIC MEETINGS under the

VIRGINIA FREEDOM OF

INFORMATION ACT I. STATUTORY GUIDANCE The Virginia Freedom of Information Act (FOIA) is largely a procedural act, and the provisions relating to meetings set forth the procedures that a public body must follow in conducting an open meeting and convening in a closed meeting. This outline breaks down the procedural requirements, such as what is required in posting a notice and certifying a closed meeting, and provides practical advice for conducting meetings that comply with FOIA. Appendix A sets forth in detail the requirements for making a motion to convene a closed meeting. Appendix B describes commonly used meeting exemptions of general applicability.

II. OPEN MEETINGS GENERALLY

WHAT IS A MEETING UNDER FOIA?

A “meeting” is defined as “meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708.2, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body” where the business of the public body is being discussed or transacted. (Emphasis added.)1

WHAT IS NOT A MEETING UNDER FOIA?

1. The gathering of employees of a public body;
2. The gathering or attendance of two or more members of a public body at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, the gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body, and the public business is not discussed; or
3. The gathering or attendance of two or more members of a public body at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members 1 Statutory reference: § 2.2-3701. FOIA Council Opinions AO-4-00, AO-20-01, AO-40-01, AO-46-01, AO-02-02,

AO-06-02, AO-13-03, AO-15-04, AO-20-04, AO-11-05, AO-02-06, AO-10-07, AO-12-08, AO-03-09, AO-05-11,

AO-07-14.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 2 individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.2

MAY A PUBLIC BODY CONDUCT A MEETING BY CONFERENCE CALL OR OTHER

ELECTRONIC METHOD?

Maybe. Prior to July 1, 2007, no local governing body or any other type of local public body was permitted to conduct a meeting through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business. However, state public bodies may conduct such meetings under specified circumstances. Since July 1, 2007, all public bodies (state, local and regional) may also allow participation by their members via teleconference or other electronic means under certain limited circumstances.3

IF IT IS A MEETING, WHAT DOES FOIA REQUIRE?

If it is a meeting under FOIA, the law requires that:

1. Notice of the meeting be given;
2. The meeting must be open to the public; and
3. Minutes of the meeting must be taken and preserved.4

WHAT IS SUFFICIENT NOTICE?

Notice must contain the date, time, and location of the meeting.

WHERE TO POST THE NOTICE?

As of July 1, 2017, FOIA requires that all public bodies post notices in three locations:

1. On its official public government website, if any;
2. In a prominent public location at which notices are regularly posted; and
3. At the office of the clerk of the public body or, in the case of a public body that has no clerk, at the office of the chief administrator.

State public bodies must also post notice on a central, publicly available electronic calendar maintained by the Commonwealth. Publication of meeting notices by electronic means by other public bodies shall be encouraged.5

WHO ELSE IS ENTITLED TO NOTICE OF MEETINGS?

Any person who annually files a written request for notification with a public body is entitled to receive direct notification of all meetings of that public body. If the person requesting notice does not object, the public body may provide the notice electronically. 2 Statutory references: §§ 2.2-3701. FOIA Council Opinions AO-4-00, AO-10-00, AO-46-01, AO-02-02, AO-13-03, AO-12-04, AO-12-08, AO-05-11, AO-07-14. 3 Statutory reference: § 2.2-3708.2 (formerly §§ 2.2-3708 and 2.2-3708.1). FOIA Advisory Opinions AO-1-01, AO- 16-02, AO-21-04, AO-12-08, AO-07-09. 4 Statutory references: §§ 2.2-3700, 2.2-3707. FOIA Council Opinions AO-40-01, AO-06-02, AO-17-02, AO-13-03, AO-15-04. 5 Statutory reference: § 2.2-3707(C). FOIA Council Opinions AO-18-01, AO-43-01, AO-08-07, AO-03-09.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 3 The request for notice shall include the requester’s name, address, zip code, daytime telephone number, electronic mail address, if available, and organization, if any.6

WHEN TO POST THE NOTICE?

For regular meetings: The notice must be posted at least three working days prior to the meeting.

For special, emergency, or continued meetings: Notice, reasonable under the circumstance, of special, emergency, or continued meetings must be given at the same time as the notice provided members of the public body conducting the meeting. FOIA defines an emergency as “an unforeseen circumstance rendering the notice required by FOIA impossible or impracticable and which circumstance requires immediate action.” 7

MAY THE PUBLIC OR MEDIA RECORD THE MEETING?

Yes. Any person may photograph, film, record, or otherwise reproduce any portion of a meeting required to be open.8

MAY A PUBLIC BODY RESTRICT THE USE OF RECORDING DEVICES?

Yes. The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming, or recording a meeting to prevent interference with the proceedings. However, public bodies are not permitted to conduct meetings required to be open in any building or facility where such recording devices are prohibited.9

WHEN MUST AGENDA MATERIALS BE AVAILABLE TO THE PUBLIC/MEDIA?

At least one copy of the proposed agenda and all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body. The proposed agendas for meetings of state public bodies where at least one member has been appointed by the Governor shall state whether or not public comment will be received at the meeting and, if so, the approximate point during the meeting when public comment will be received.10

ARE THERE ANY EXCEPTIONS FOR TAKING MINUTES?

Yes. Minutes are required to be taken only at open meetings; minutes are not required to be taken during closed meetings. Minutes are also not required to be taken at deliberations of:

1. Standing and other committees of the General Assembly;
2. Legislative interim study commissions and committees, including the Virginia Code Commission; 6 Statutory reference: § 2.2-3707(E). FOIA Council Opinions AO-3-01, AO-13-03, AO-23-03, AO-08-07. 7 Statutory references: §§ 2.2-3701, 2.2-3707(C),(D). FOIA Council Opinions AO-13-00, AO-3-01, AO-18-01, AO- 06-02, AO-08-07. 8 Statutory reference: § 2.2-3707(G). FOIA Council Opinions AO-03-03, AO-10-05. 9 Statutory reference: § 2.2-3707(G). FOIA Council Opinions AO-03-03, AO-10-05. 10 Statutory reference: § 2.2-3707(F). FOIA Council Opinions AO-3-01, AO-35-01, AO-23-03, AO-05-12.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 4

1. Study committees or commissions appointed by the Governor; or
2. Study commissions or study committees, or any other committees or subcommittees appointed by the governing body or school board of a county, city or town, except where the membership of the commission, committee or subcommittee includes a majority of the members of the governing body.11

WHAT DO MINUTES HAVE TO LOOK LIKE?

Minutes are required (except as noted above) of all open meetings, and must include: the date, time, and location of the meeting; the members of the public body present and absent; a summary of matters discussed; and a record of any votes taken. In addition, motions to enter into a closed meeting and certification after a closed meeting must be recorded in the minutes.12

ARE MINUTES PUBLIC RECORDS UNDER FOIA?

Yes. Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual recordings, are public records and must be released upon request.13

IS THERE AN AFFIRMATIVE OBLIGATION TO POST MINUTES?

Yes, but only for state agencies in the executive branch.

All boards, commissions, councils, and other public bodies created in the executive branch of state government and subject to FOIA must post minutes of their meetings on their official public government website and on a central electronic calendar maintained by the Commonwealth. Draft minutes of meetings must be posted as soon as possible but no later than 10 working days after the conclusion of the meeting. Final approved meeting minutes must be posted within three working days of final approval of the minutes. 14

MUST ALL VOTES OF A PUBLIC BODY TAKE PLACE IN AN OPEN MEETING?

Yes. Any and all votes taken to authorize the transaction of any public business must be taken and recorded in an open meeting.

A public body may not vote by secret or written ballot.15

IS IT A FOIA VIOLATION TO POLL MEMBERS OF A PUBLIC BODY?

No. Nothing in FOIA prohibits separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member’s position with respect to the transaction of public business. Such contact may be done in person, by telephone, or by electronic communication, provided the contact is done on a basis that does not constitute a meeting as defined in FOIA.16 11 Statutory reference: § 2.2-3707(H). FOIA Council Opinion AO-08-07. 12 Statutory references: §§ 2.2-3707(H), 2.2-3712(A),(D). FOIA Council Opinions AO-25-04, AO-01-06, AO-05-15. 13 Statutory reference: § 2.2-3707(H). FOIA Council Opinions AO-13-03, AO-25-04. 14 Statutory reference: § 2.2-3707.1. 15 Statutory reference: § 2.2-3710(A). FOIA Council Opinions AO-9-00, AO-15-02, AO-01-03, AO-13-03, AO-01- 05, AO-05-09, AO-07-09, AO-02-17. 16 Statutory reference: § 2.2-3710(B). FOIA Council Opinions AO-08-02, AO-15-02, AO-01-03, AO-07-09.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 5

III. CLOSED MEETING PROCEDURES

WHAT DOES A PUBLIC BODY HAVE TO DO TO CLOSE A MEETING?

In order to conduct a closed meeting, the public body must take an affirmative recorded vote in an open meeting approving a motion that:

1. Identifies the subject matter for the closed meeting;
2. States the purpose of the closed meeting; and
3. Makes specific reference to the applicable exemption from the open meeting requirements.

The motion must be set forth in detail in the minutes of the open meeting.

A general reference to the provisions of FOIA, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting is not sufficient to satisfy the requirements for holding a closed meeting.17

WHAT MAY BE DISCUSSED DURING A CLOSED MEETING?

A public body holding a closed meeting must restrict its discussions during the closed meeting to those matters specifically exempted from the provisions of FOIA and identified in the motion.18

AT THE END OF A CLOSED MEETING, WHAT DOES THE PUBLIC BODY HAVE TO

DO?

At the conclusion of any closed meeting, the public body holding the meeting must immediately reconvene in an open meeting and take a roll call or other recorded vote certifying that to the best of each member’s knowledge:

1. Only public business matters lawfully exempted from open meeting requirements under this chapter, and
2. Only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.

The vote must be included in the minutes of the open meeting.

Any member of the public body who believes that there was a departure from the requirements of (1) or (2) above must state so prior to the vote and indicate the substance of the departure that, in his judgment, has taken place. This statement must also be recorded in the minutes of the open meeting.19 17 Statutory reference: § 2.2-3712(A). FOIA Council Opinions AO-8-00, AO-19-00, AO-14-01, AO-38-01, AO-45-

01, AO-08-02, AO-17-02, AO-02-04, AO-24-04, AO-01-05, AO-06-07, AO-13-07, AO-04-08, AO-13-09, AO-03- 13, AO-02-16, AO-03-17. 18 Statutory reference: § 2.2-3712(C). FOIA Council Opinions AO-8-00, AO-13-07, AO-13-09, AO-02-16. 19 Statutory references: § 2.2-3712(D),(E). FOIA Council Opinions AO-8-00, AO-17-02, AO-02-04, AO-06-07,

AO-04-08, AO-02-16, AO-03-17.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 6

WHEN DO DECISIONS MADE IN A CLOSED MEETING BECOME OFFICIAL

ACTIONS OF THE PUBLIC BODY?

Decisions become official when the public body reconvenes in an open meeting, reasonably identifies the substance of the decision, and takes a recorded vote on the resolution, ordinance, rule, contract, regulation, or motion agreed to in the closed meeting. Otherwise, no resolution, ordinance, rule, contract, regulation, or motion adopted, passed, or agreed to in the closed meeting is effective.

Public officers improperly selected due to the failure of the public body to comply with the other provisions of § 2.2-3711 will become de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.20

CAN THERE BE A CLOSED MEETING WITHOUT FIRST HAVING AN OPEN

MEETING?

No. A closed meeting can take place only within the context of an open meeting, even if the closed meeting is the only agenda item. A closed meeting motion must be made and voted upon in an open meeting. After the conclusion of the closed meeting, the members of the public body must reconvene in an open meeting to vote to certify that they restricted their discussion during the closed meeting to those matters specifically exempted from the provisions of FOIA and identified in the motion. Because votes must be taken at open meetings, public bodies must convene in open meeting both before and after any closed meeting.21 # 20 Statutory references: §§ 2.2-3711(B),(C), 2.2-3712(H). FOIA Council Opinions AO-23-01, AO-38-01, AO-15-02, AO-01-03, AO-13-03, AO-24-04, AO-01-05, AO-13-09. 21 FOIA Council Opinions AO-02-04, AO-06-07, AO-08-07, AO-13-09, AO-02-10.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 7 APPENDIX A How To Make A Motion To Convene A Closed Meeting The Requirements Section 2.2-3712(A) states that [n]o closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements. (Emphasis added.) FOIA Council opinions have held that a motion that lacks any of these three elements is insufficient under the law and would constitute a procedural violation.22 Here’s a step-by-step look at how to put together a motion that meets all three requirements:

1. Identify the subject matter:  The identification of the subject goes beyond a general reference to the exemption, and provides the public with information as to specifically why the closed meeting will be held. The subject matter describes the particular fact, scenario, or circumstances that will be discussed by the public body during the closed meeting.  The specificity required for identification of the subject must be determined on a case-by-case basis. It involves balancing FOIA’s policy of affording citizens every opportunity to witness the operations of government with the need of the public body to hold certain discussions in private. The identification of the subject need not be so specific as to defeat the reason for holding a closed meeting in the first place.  Examples of identification of the subject: discussion of candidates for the appointment of a new city manager; discussion of the appropriate disciplinary action to take against a high school student for violation of school policy; discussion of probable litigation relating to highway construction.23
2. State the purpose:  The purpose refers to the general, statutorily allowed meeting exemptions set forth at § 2.2-3711(A). Section 2.2-3711(A) states that public bodies may only hold closed meetings for the following purposes (emphasis added) and then sets forth the exemptions.  Examples of purposes: personnel matters; student admissions or discipline; consultation with legal counsel.
3. Make specific reference to the applicable exemption:  All of the meetings exemptions can be found at § 2.2-3711(A). It is not enough to cite this general Code provision, because § 2.2-3711(A) includes 44 different exemptions.

Instead, the citation must be as specific as possible. 22 FOIA Advisory Opinions AO-14-01, AO-38-01, AO-45-01, AO-08-02, AO-24-04, AO-01-05, AO-06-07, AO-04- 08, AO-13-09, AO-02-10, AO-03-13, AO-02-16. 23 Example of probable litigation taken from FOIA Advisory Opinion AO-14-01.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 8  Examples of specific Code references: § 2.2-3711(A)(1); § 2.2-3711(A)(2); § 2.2-

3711(A)(7).

Putting It All Together Based upon the analysis above, here are three examples of motions to go into closed session that satisfy the minimum requirements of § 2.2-2712(A). It is always appropriate to include more information, and any motion should be tailored with additional facts describing the particular scenario being addressed by the public body.

1. I move that (insert name of public body) convene in closed session to discuss the candidates being considered for the appointment of a new city manager pursuant to the personnel exemption at § 2.2-3711(A)(1) of the Code of Virginia.
2. I move that (insert name of public body) convene in closed session to discuss the appropriate disciplinary action to take against an individual high school student for violation of school policy pursuant to the scholastic exemption at § 2.2-3711(A)(2) of the Code of Virginia.
3. I move that (insert name of public body) convene in closed session to meet with legal counsel about probable litigation relating to highway construction pursuant to the consultation with legal counsel exemption at § 2.2-3711(A)(7) of the Code of Virginia.

Remember, the appropriateness of any given motion is fact-based, and no “fill-in-the-blank” model motion will work in all situations. When drafting a motion, go down the checklist and ensure that you have included all three elements. Keep in mind the balancing required to keep citizens informed of the workings of a public body while maintaining the integrity of the closed session. Please do not hesitate to contact the FOIA Council to discuss these requirements or the sufficiency of a specific motion. #

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 9 APPENDIX B Meeting Exemptions Of General Applicability As of July 2011, FOIA contains more than 40 open meeting exemptions. Although many of these exemptions apply to specific agencies or to very content-specific discussions, there are several open meeting exemptions of general applicability that may be used by virtually all public bodies.

The open meeting exemptions of general applicability are listed below, with the corresponding statutory citation, as a reference tool. § 2.2-3711(A)(1): Personnel. Provides an exemption for: Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board. Nothing in this subdivision, however, shall be construed to authorize a closed meeting by a local governing body or an elected school board to discuss compensation matters that affect the membership of such body or board collectively. § 2.2-3711(A)(2): Students. Provides an exemption for: Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any public institution of higher education in the Commonwealth or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board. § 2.2-3711(A)(3): Acquisition & disposition of property. Provides an exemption for: Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. § 2.2-3711(A)(4): Privacy. Provides an exemption for: The protection of the privacy of individuals in personal matters not related to public business. § 2.2-3711(A)(5): Prospective business. Provides an exemption for: Discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business’ or industry’s interest in locating or expanding its facilities in the community.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 10 § 2.2-3711(A)(6): Investment of public funds. Provides an exemption for: Discussion or consideration of the investment of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected. § 2.2-3711(A)(7): Legal advice or briefings regarding actual or probable litigation. Provides an exemption for: Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body.

For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter. § 2.2-3711(A)(8): Legal advice regarding specific legal matters. Provides an exemption for: Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter. § 2.2-3711(A)(12): Tests & exams. Provides an exemption for: Discussion or consideration of tests, examinations, or other records excluded from this chapter pursuant to subdivision 4 of § 2.2-3705.1. § 2.2-3711(A)(16): Medical. Provides an exemption for: Discussion or consideration of medical and mental health records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.5. § 2.2-3711(A)(19): Public safety. Provides an exemption for: Discussion of plans to protect public safety as it relates to terrorist activity or specific cybersecurity threats or vulnerabilities and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such matters or a related threat to public safety; discussion of information subject to the exclusion in subdivision 2 or 14 of § 2.2-3705.2, where discussion in an open meeting would jeopardize the safety of any person or the security of any facility, building, structure, information technology system, or software program; or discussion of reports or plans related to the security of any governmental facility, building or structure, or the safety of persons using such facility, building or structure. § 2.2-3711(A)(29). Contracts. Provides an exemption for: Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 11 § 2.2-3711(A)(39). Economic development. Provides an exemption for: Discussion or consideration of information subject to the exclusion in subdivision 3 of §

1. 2-3705.6 related to economic development.

Last updated July 2018

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 1 ACCESS TO PUBLIC RECORDS under the

VIRGINIA FREEDOM OF INFORMATION ACT I. STATUTORY GUIDANCE The Virginia Freedom of Information Act (FOIA) is largely a procedural act, and §§ 2.2-3704 and

1. 2-3704.01 of the Code of Virginia guides users as to how to make or respond to a FOIA request for public records. The remainder of this outline breaks down these procedural requirements and provides practical advice for adhering to FOIA when making or responding to a request. Further detailed guidance regarding charges for the production of records is provided in a separate document entitled “Taking the Shock Out of FOIA Charges: A Guide to Allowable Charges under the Freedom of Information Act.”

WHAT IS A PUBLIC RECORD UNDER FOIA?

A “public record” is any writing or recording, in any format, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. For example, public records may be in the form of handwritten notes, typewritten documents, electronic files, audio or video recordings, photographs, or any other written or recorded media.

ARE DRAFT OR PRELIMINARY VERSIONS ALSO CONSIDERED PUBLIC RECORDS?

Yes. The definition of “public record” does not distinguish between draft or preliminary versions and final versions, so both are considered public records under FOIA.1

II. MAKING A REQUEST FOR RECORDS WHO MAY REQUEST RECORDS UNDER FOIA?  Citizens of the Commonwealth;  Representatives of newspapers and magazines with circulation in the Commonwealth; and  Representatives of radio and television stations broadcasting in or into the Commonwealth.

MUST A REQUEST MENTION “FOIA” SPECIFICALLY?

No. The request need not make reference to FOIA in order to invoke its provisions or to impose the time limits for response by a public body.

MUST A REQUEST BE MADE IN WRITING?

No. A written request is not required. However, from a practical point of view, it is suggested that the request be made in writing (or use any request form provided by the public body). Writing is recourse for both parties!2 1 FOIA Council Opinions AO-3-00, AO-05-09. 2 FOIA Council Opinion AO-07-11.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 2

MAY A PUBLIC BODY REQUIRE A REQUESTER TO FILL OUT A REQUEST FORM?

No. A public body may develop a request form that it asks requesters to fill out, but a public body may not insist that its form be used before it begins work on a FOIA request. [NOTE: It is suggested that if the requester refuses to fill in the form or to put the request in writing, the public body should fill out its own form—remember, writing is recourse.]3

MAY A PUBLIC BODY REQUIRE A REQUESTER TO PROVIDE HIS NAME AND LEGAL

ADDRESS?

Yes. A public body may require a requester to provide his name and legal address before processing a FOIA request. [NOTE: This is a tool a public body may use, but FOIA does not mandate that public bodies get identification first.]4

II. RESPONDING TO A REQUEST FOR RECORDS

HOW LONG DOES A PUBLIC BODY HAVE TO RESPOND TO A REQUEST?

A public body must respond within five working days of receipt of the request. [NOTE: Count the day after receipt as day 1.]5 REMEMBER: Failure to respond to a request for records shall be deemed a denial of the request and constitutes a violation of FOIA.6

WHAT ARE THE PERMISSIBLE RESPONSES TO A REQUEST?

As of July 1, 2007, a public body must make one of the five responses allowed by FOIA:

1. Provide the requested records to the requester;
2. The requested records are being entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with FOIA;
3. The requested records are being provided in part and are being withheld in part because the release of part of the records is prohibited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with FOIA;
4. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body; or
5. It is not practically possible to provide the requested records OR to determine whether they are available within the five-work-day period, and the public body 3 FOIA Council Opinions AO-18-04, AO-07-11. 4 FOIA Council Opinion AO-07-11. 5 FOIA Council Opinions AO-34-01, AO-47-01, AO-05-06, AO-02-08, AO-07-08, AO-07-11, AO-06-14, AO-01-17. 6 FOIA Council Opinions AO-10-02, AO-12-03, AO-18-03, AO-01-08, AO-07-08, AO-01-17.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 3 needs an additional seven work days in which to provide one of the four preceding responses.7

WHEN DOES A RESPONSE NEED TO BE IN WRITING?

If any part of the answer is “NO” (i.e., response 2 OR 3 above), the response must:

1. Be in writing;
2. Identify with reasonable particularity the subject matter of withheld records; and
3. Cite, as to each category of withheld records, the specific section of the Code of Virginia that authorizes the records to be withheld.

If the records are being entirely withheld (i.e., response 2) then the response must also identify with reasonable particularity the volume of the withheld records.

If the answer is “we cannot find it” or “it does not exist” (i.e., response 4 above), the response must:

1. Be in writing, and
2. If the public body knows that another public body has the records, it must provide contact information for the other public body.

If the answer is “we need more time” and the public body would like seven additional working days to respond (i.e., response 5 above), the response must:

1. Be in writing, and
2. Specify the conditions that make production of the records within the five-work-day period impossible.

HOW DOES A PUBLIC BODY RESPOND IF A RECORD CONTAINS EXEMPT AND

NONEXEMPT INFORMATION?

Generally, if a record contains exempt and nonexempt information, the public body must release the record and delete or excise the exempt portion of the record.

MUST A PUBLIC BODY CREATE A RECORD IN RESPONSE TO A FOIA REQUEST?

Generally, no public body is required to create a new record if the requested record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.8

HOW MUCH MAY A PUBLIC BODY CHARGE FOR PRODUCING RECORDS?

A public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. A public body may not charge extraneous or surplus fees unrelated to the production of the records. [NOTE: This 7 Prior to July 1, 2007, FOIA permitted four responses to a records request; FOIA Council Opinions AO-1-00, AO-21-

01, AO-12-03, AO-18-03, AO-16-04, AO-05-05, AO-05-06, AO-11-07, AO-12-07, AO-03-08, AO-07-08, AO-13-08, AO-01-09, AO-07-11, AO-02-12, AO-01-17. 8 FOIA Council Opinions AO-11-00, AO-6-01, AO-11-01, AO-35-01, AO-49-01, AO-01-02, AO-03-02, AO-10-02,

AO-11-03, AO-04-04, AO-10-04, AO-16-04, AO-05-05, AO-06-05, AO-09-07, AO-11-07, AO-07-08, AO-12-09, AO-

07-11, AO-04-15.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 4 means that a public body cannot factor in expenses such as overhead or the cost of benefits paid to employees.] Charges for copies must not exceed the actual cost of duplication.

A citizen may request that the public body estimate the cost of supplying the requested records in advance. As mentioned previously, further detailed guidance regarding charges for the production of records is provided in a separate document entitled “Taking the Shock Out of FOIA Charges: A Guide to Allowable Charges under the Freedom of Information Act.”9

CAN A PUBLIC BODY REQUIRE ADVANCE PAYMENT?

When a public body determines in advance that the charges for supplying the requested records are likely to exceed $200, it may require the requester to pay a deposit before proceeding with the request. This deposit may not exceed the amount of the advance determination, and the public body must credit it towards the final cost of supplying the records. If a public body asks for the advance deposit, the five-working-day period to respond to the request will be tolled until the deposit is paid.10

WHAT CAN A PUBLIC BODY DO IF A REQUESTER DOES NOT PAY FOR RECORDS

PROVIDED UNDER FOIA?

Before responding to a new request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.

DO THESE SAME REQUIREMENTS APPLY TO A REQUEST FOR ELECTRONIC

RECORDS?

Yes. Like all other records, regardless of format, a public body may only charge a reasonable, not to exceed actual, cost for producing public records maintained in an electronic data processing system or computer database. And like other records, when electronic records or databases contain both exempt and nonexempt records, the public body must supply the nonexempt information and excise or delete the exempt information. The excision of exempt fields from a database is not considered the creation of a new record under FOIA.

A public body must provide electronic records in any medium identified by the requester, if that medium is used by the public body in the regular course of business. If the public body has the capability, this includes the option of posting the records on a website or delivering the records to an email address. A public body is not required to produce records in a format not regularly used by the public body. However, a public body must make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and the public body, including the payment of reasonable costs.11 9 FOIA Council Opinions AO-1-00, AO-21-01, AO-25-01, AO-32-01, AO-39-01, AO-49-01, AO-05-02, AO-10-02,

AO-14-02, AO-08-03, AO-20-03, AO-21-03, AO-01-04, AO-04-04, AO-16-04, AO-23-04, AO-06-05, AO-02-07, AO- 09-07, AO-06-09, AO-07-11, AO-03-12, AO-05-13, AO-02-14, AO-04-15. 10 FOIA Council Opinions AO-21-01, AO-14-02, AO-04-04, AO-16-04, AO-08-09, AO-07-11. 11 FOIA Council Opinions AO-11-00, AO-10-02, AO-11-02, AO-14-02, AO-21-03, AO-05-05, AO-08-09, AO-05-13.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 5 APPENDIX Records Exemptions of General Applicability FOIA contains over 100 exemptions for records. Although many of these exemptions apply to specific agencies or to very content-specific records, there are several records exemptions of general applicability that may be used by virtually all public bodies. The records exemptions of general applicability are listed below, with the corresponding statutory citation, as a reference tool. § 2.2-3705.1(1): Personnel. Provides an exemption for: Personnel information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of such information and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such information shall be disclosed. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.

No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1; (ii) records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees. The provisions of this subdivision, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less. § 2.2-3705.1(2): Attorney-client privilege. Provides an exemption for: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. § 2.2-3705.1(3): Attorney work product. Provides an exemption for: Legal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. § 2.2-3705.1(4): Tests and examinations. Provides an exemption for: Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student’s performance, (ii) any employee or employment seeker’s qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by a public body.

As used in this subdivision, “test or examination” shall include (a) any scoring key for any such test or examination and (b) any other document that would jeopardize the security of the test or examination. Nothing contained in this subdivision shall prohibit the release of VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 6 test scores or results as provided by law, or limit access to individual records as provided by law. However, the subject of such employment tests shall be entitled to review and inspect all records relative to his performance on such employment tests.

When, in the reasonable opinion of such public body, any such test or examination no longer has any potential for future use, and the security of future tests or examinations will not be jeopardized, the test or examination shall be made available to the public. However, minimum competency tests administered to public school children shall be made available to the public contemporaneously with statewide release of the scores of those taking such tests, but in no event shall such tests be made available to the public later than six months after the administration of such tests. § 2.2-3705.1(5): Closed meetings. Provides an exemption for: Records recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to § 2.2-3711. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting. § 2.2-3705.1(6): Vendor proprietary information. Provides an exemption for: Vendor proprietary information software that may be in the public records of a public body. For the purpose of this subdivision, "vendor proprietary information software" means computer programs acquired from a vendor for purposes of processing data for agencies or political subdivisions of the Commonwealth. § 2.2-3705.1(7): Computer software. Provides an exemption for: Computer software developed by or for a state agency, state-supported institution of higher education or political subdivision of the Commonwealth. § 2.2-3705.1(8): Cost estimates of real property. Provides an exemption for: Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. § 2.2-3705.1(10): Personal contact information. Provides an exemption for: Personal contact information furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the person who is the subject of the record. As used in this subdivision, "personal contact information" means the information provided to the public body for the purpose of receiving electronic mail from the public body and includes home or business (i) address, (ii) email address, or (iii) telephone number or comparable number assigned to any other electronic communication device. § 2.2-3705.1(12): Contracts. Provides an exemption for: Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such information would adversely affect VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 7 the bargaining position or negotiating strategy of the public body. Such information shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of information relating to such transactions shall be governed by the Virginia Public Procurement Act. § 2.2-3705.1(13): Account numbers. Provides an exemption for: Account numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body. However, access shall not be denied to the person who is the subject of the information. For the purposes of this subdivision, "financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, savings and loan companies or associations, and credit unions. § 2.2-3705.2(2): Security systems. Provides an exemption for: Information that describes the design, function, operation, or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system. § 2.2-3705.2(14): Critical infrastructure, cybersecurity, antiterrorism and related public safety information. Provides an exemption for: Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants: a. Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems; b. Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program; c. Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or d. Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 8 The same categories of records of any person or entity submitted to a public body for the purpose of antiterrorism response planning or cybersecurity planning or protection may be withheld from disclosure if such person or entity in writing (a) invokes the protections of this subdivision, (b) identifies with specificity the records or portions thereof for which protection is sought, and (c) states with reasonable particularity why the protection of such records from public disclosure is necessary to meet the objective of antiterrorism, cybersecurity planning or protection, or critical infrastructure information security and resilience. Such statement shall be a public record and shall be disclosed upon request.

Any public body receiving a request for records excluded under clauses (a) and (b) of this subdivision 14 shall notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with §

1. 2-3704.

Nothing in this subdivision 14 shall prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event.

As used in this subdivision, "critical infrastructure information" means the same as that term is defined in 6 U.S.C. § 131. § 2.2-3705.4(1): Students. Provides an exemption for: Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed. § 2.2-3705.5(1): Health. Provides an exemption for: Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 9 Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Health records shall only be reviewed and shall not be copied by such administrator or chief medical officer. The information in the health records of a person so confined shall continue to be confidential and shall not be disclosed by the administrator or chief medical officer of the facility to any person except the subject or except as provided by law.

Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person.

For the purposes of this chapter, statistical summaries of incidents and statistical data concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. No such summaries or data shall include any information that identifies specific individuals receiving services. § 2.2-3705.6(3): Economic development and retention. Provides an exemption for: Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body. § 2.2-3705.6(10): Prequalification to bid. Provides an exemption for: Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of §

1. 2-4317. # Updated July 2018

Virginia Freedom of Information Advisory Council 1

E-MAIL:

USE, ACCESS & RETENTION

The use of e-mail in the business place has become routine and is a preferred mode of communication. For state and local government officials and employees, the application of the Virginia Freedom of Information Act (FOIA) relating to access to records and the Virginia Public Records Act (the PRA) relating to the retention of records comes into play.

Government officials and employees frequently ask two key questions about the use of e-mail --"Can the public and media access my e-mail under FOIA?" and "Do I have to save my e-mail?"

This document will attempt to answer these questions and provide guidance about the use and management of e-mail by state and local government.

The nature of e-mail E-mail generally refers to any communication that requires an electronic device for storage and/or transmission.1 E-mail is a medium for correspondence -- essentially, e-mail is the "envelope" for the communication. For purposes of FOIA & the PRA, e-mail provides a medium for communication, much like a telephone or the U.S. Mail provides a means of communication. The fact that a communication is sent via e-mail is not alone conclusive of whether that e-mail must be accessible to the public under FOIA or retained pursuant to the PRA; one must look at the text and substance of the communication to determine whether it is indeed a public record.

The Virginia Freedom of Information Act FOIA addresses access to public records. Section 2.2-3701 of the Code of Virginia defines public records for purposes of FOIA to include "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business."

1 Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).

Virginia Freedom of Information Advisory Council 2

Clearly an e-mail would fall under this broad definition of a public record, because it applies to all writings and recordings…set down by…mechanical or electronic recording…however stored, regardless of physical form or characteristics. As noted above, e-mail is just the medium, or the envelope, used to convey the communication.

Just as a letter sent via U.S. Mail from one public official to another concerning public business would be a public record under FOIA, so would that same communication sent via e-mail.

FOIA requires that unless subject to a statutory exemption, all public records must be open to inspection and copying. Therefore, an e-mail relating to public business would be accessible just like any other public record, and may be withheld from public disclosure only if a particular exemption applies to the content of the e-mail.

The Virginia Public Records Act While FOIA governs access to records held by state and local government, the PRA governs how long a government entity must retain certain records. The PRA defines "public record" for purposes of records retention, and like FOIA, the definition is fairly broad and would include e-mail as a public record. Section 42.1-77 defines a public record to include recorded information that documents a transaction or activity by or with any public officer, agency or employee of the state government or its political subdivisions. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.

The PRA sets forth different retention schedules for different types of records. Several factors shape how long a record needs to be held. Many records are only kept for so long as business requires them to be kept, although if a record has historical significance or is created by an agency head or director, it may need to be kept longer. For example, certain records are required to be maintained permanently, such as records from standing committees of the General Assembly, annual reports of state agencies, and correspondence of agency directors. Other records need only be kept so long as they are administratively necessary, such as reminders of events like blood drives or fund raisers, courtesy copies of correspondence, or messages received from a listserv. Along the continuum, other records may be required to be retained for 30 days to ten years, depending on their content. After the retention time has expired for a particular document, then that record may be destroyed pursuant to the guidelines set forth by the Library of Virginia.2

In providing guidance for adhering to the PRA, the Library of Virginia notes that e-mail should be treated the same as paper correspondence. Again, e-mail is only the medium,

2 PRA is administered by the Library of Virginia. For more details on retention schedules for particular types of records or for a particular agency, or for information regarding the proper disposal of records, please contact the Library of Virginia. Records retention information and contact information is also available on the Library's website at http://www.lva.lib.va.us/whatwedo/records/index.htm.

Virginia Freedom of Information Advisory Council 3 or the envelope, by which the correspondence is sent; the retention schedule for a particular e-mail will depend on its content and should be preserved the same as its paper equivalent. Both incoming and outgoing e-mail should be retained, along with any attachments sent via e-mail.

Tips for using and managing e-mail All e-mails related to public business are subject to the provisions of FOIA and the PRA, and should be managed in the same manner as all other public records.

There is a tendency with e-mail to hit the delete button as soon as you are finished with a particular message. However, consideration must be given to whether that particular e-mail must be retained for purposes of the PRA -- you can't automatically delete your e-mail, just as you can't automatically throw away paper correspondence and records.

FOIA governs access to records. The PRA dictates how long you are required to keep certain records. If a government entity keeps an e-mail (or any other record) for longer than its retention schedule requires, that e-mail will still be subject to FOIA if requested.

Conversely, if a government entity properly disposes of a record pursuant to a retention schedule, and a subsequent FOIA request is made for that record, FOIA does not require the government entity to recreate the record.

E-mail is often used as a substitute for a telephone call, and is quite informal. However, e-mail creates a record of that communication that must be retained pursuant to the PRA and will be available upon request to the public under FOIA. Consider the consequence of choice to use e-mail instead of the telephone -- it may not be in your best interest to be as informal on e-mail as you are on the telephone.

The Library of Virginia discourages the practice of maintaining permanent records solely in electronic format, without a paper or microfilm backup.3 For records that do not need to be maintained permanently, these e-mails can be printed out and stored in a traditional, paper file (and the electronic copy can be deleted) or electronic folders can be created on the computer to organize e-mails based on functions, subjects or activities. The Library of Virginia suggests that these folders are assigned to your home directory on the computer, and not on the network. By way of example, at the FOIA Council we print a copy of all of the FOIA questions that we receive via e-mail, along with our corresponding response, and file the paper copy in a chronological file. After we have printed a copy to retain for our records, we delete the e-mail off of the computer.

Public officials and employees should not commingle personal and official e-mails.

Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an e-mail management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained with other public records that relate to the same content.

3 Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).

An Easy Guide to FOIA for Boards of Visitors

While the below video is for Boards of Visitors, the concepts are the same for all boards with the following caveats:

E-meetings – because the Department does not have the technological infrastructure to support e-meetings in compliance with the law (§ 2.2-3708 of the Code of Virginia), our boards do not meet electronically.

Records must be maintained by DPOR in order to appropriately respond to FOIA requests and subpoenas as well as comply with appropriate retention schedules. Therefore, it is crucial that you be careful not to communicate with fellow board members outside of board meetings. Such communication may create records (e-mails, etc…) we would not necessarily be aware of when responding to requests for information, nor could we ensure that they are appropriately retained. The Department operates in a culture of openness, meaning that our business – the people’s business – is conducted in a public forum!

Board Member Training

Page 1 of 5

REGULATORY REVIEW

Last Updated 12/15/21

Regulatory Review Process

Title 54.1 of the Code of Virginia provides the statutory authority for regulatory boards. The regulatory review process is governed by the Administrative Process Act (§ 2.2-4000 et seq.) and the Governor’s Executive Order.

A regulation is promulgated (enacted), amended, or repealed through a regulatory action. All regulatory actions are tracked through the Virginia Regulatory Town Hall website (http://townhall.virginia.gov/). The website contains a wealth of information about the regulatory process, including Questions & Answers excerpted below.

Register as a public user on Town Hall to choose the boards/agencies and types of actions for which you want to receive notifications.

To sign up, visit: http://townhall.virginia.gov/L/Register.cfm.

What is a regulation?

A regulation is a general rule governing people's rights or conduct that is implemented by a state agency and has the force of law. Agencies put regulations in place in order to administer and enforce specific state laws and to implement general agency objectives. Each regulation must be authorized by statute. Each chapter of the Virginia Administrative Code (VAC) contains a single regulation.

How is a regulation promulgated?

A regulation is created, amended, or repealed through a regulatory action.

Typically, regulatory actions take at least 18 to 36 months from start to finish. The process is designed to ensure the public has an opportunity to participate in the rulemaking process and that all perspectives are considered in the development of a final regulation.

In addition, proposed regulations must meet the Governor’s policy goals and are usually subject to an economic impact analysis. Absent special circumstances (detailed at the end of this section), each regulatory action goes through a mandatory three-stage process.

Board Member Training Page 2 of 5 REGULATORY REVIEW Last Updated 12/15/21 STAGE 1: Notice of Intended Regulatory Action (NOIRA) The public receives notification that a regulatory change is under consideration, along with a general description of the changes to be considered. Once the NOIRA is published in the Virginia Register of Regulations and appears on the Town Hall website, this first stage provides at least a 30-day period during which the board receives comments from the public. The board reviews these comments as it develops the proposed regulation.

STAGE 2: Proposed After taking into account the public comment received during the NOIRA stage, the board prepares the full text of the regulation and a statement explaining the substance of the proposed regulatory action. In addition, the Department of Planning and Budget (DPB) prepares an economic impact analysis (EIA).

Once the proposed stage is published in the Register and appears on the Town Hall website, a minimum 60-day public comment period must occur. The board summarizes comments received and provides a response, which may include modifying the proposed text of the regulation.

STAGE 3: Final The public is provided with the full text of the regulation, this time with an explanation of any changes made since the proposed stage. Once the final stage is published in the Register and appears on the Town Hall website, the regulation becomes effective after a final adoption period of at least 30 days.

SPECIAL CIRCUMSTANCES EMERGENCY REGULATIONS: Sometimes, the General Assembly passes a law requiring an emergency regulation. Emergency regulations are effective for up to 18 months—with an option to extend up to an additional six months—and bypass the usual three-stage regulatory process. A board will promulgate an emergency regulation and, at the same time, begin a regulatory action for a permanent replacement regulation using the standard three-stage process.

EXEMPT REGULATIONS: Certain regulatory actions are exempt from the three-stage process: actions of designated agencies, regulations setting rates or prices or relating to internal agency operations, and regulations with technical changes or amendments strictly limited to conforming to changes in federal or state law.

Most exempt regulations are published in Final form only; however, some exempt actions can include notice and publication of Proposed text.

Board Member Training

Page 3 of 5

REGULATORY REVIEW

Last Updated 12/15/21 FAST-TRACK REGULATIONS: The fast-track rulemaking process is for regulatory actions that are expected to be non-controversial. After review by the Governor, notice of a proposed fast-track rulemaking is published in the Register and appears on the Town Hall website. Then, if no objections are raised during the 60-day public comment period, the regulation becomes effective 15 days after the close of the public comment period (unless the regulation is withdrawn or a later effective date is specified by the agency).

However, if concerns are raised by during the public comment period suggesting the proposed regulation is not non-controversial, the regulatory action is “pulled” from the fast-track and continued using the standard regulatory process.

Specifically, the law (§ 2.2-4012.1) requires a fast-track action be terminated based on objections from the following:

• Any member of the applicable standing committee of the Senate or House of Delegates;
• Any member of the Joint Commission on Administrative Rules (JCAR); or
• Ten or more members of the public.

The board does not need to start over from the very beginning, however, because the initial publication of the fast-track regulation in the Register serves as the NOIRA (Stage 1).

What is the Virginia Administrative Code (VAC)?

The Virginia Administrative Code (VAC) is the official source for Virginia's regulations. The VAC consists of approximately 1,250 chapters (regulations). You can link to the official text of a regulation in the VAC on each Chapter Information page of the Town Hall website.

Below is the format of a VAC citation:

EXAMPLE: 18 VAC 120-11-10 18 Title Number: There are 24 titles in the Virginia Administrative Code.

For example, Title 18 contains regulations pertaining to Professional and Occupational Licensing.

VAC Abbreviation for Virginia Administrative Code. 120 Agency/Board Number: There are more than 100 boards in Virginia.

For example, Agency 120 of Title 18 contains regulations of the Department and Director-regulated programs (i.e.., Boxing, Martial Arts & Professional Wrestling; Polygraph Examiners).

Board Member Training Page 4 of 5 REGULATORY REVIEW Last Updated 12/15/21 11 Chapter Number: There are more than 1,000 chapters in the Virginia Administrative Code. Each chapter contains one regulation. For example, Chapter 11 under Title 18, Agency 120 contains a regulation about the Public Participation Guidelines (PPGs) applicable to all DPOR programs. 10 Section Number: Each regulation is divided into parts (e.g., definitions, purpose, and scope). For example, Section 10 of this citation is about the purpose of PPGs to promote public involvement.

What is the Virginia Administrative Process Act (APA)?

The Virginia Administrative Process Act (APA) provides the basic framework for rulemaking in Virginia. Article 2 of the APA, in particular, sets out the stages of the regulatory process, including notice and comment; requires agencies to implement guidelines on how the public can be involved in the rulemaking process; and outlines procedures for executive branch review of regulations.

What is executive branch review?

Before a stage of a regulatory action becomes available for public comment, it often undergoes review by the Office of Attorney General, the Department of Planning and Budget, the subject matter area Cabinet Secretary, and the Governor. Executive branch review includes certifying that the regulation is consistent with statutory authority and assessing its economic costs and benefits.

As an accountability measure, the oversight phase helps ensure regulations are clearly written and easily understandable to the regulated community and the public; essential to protect public health, safety, and welfare; and the least burdensome and intrusive regulation possible.

What is an economic impact analysis (EIA)?

An economic impact analysis (EIA) is prepared by the Department of Planning and Budget (DPB). An EIA summarizes the costs and benefits that are expected to result from the implementation of the regulatory language. The analysis includes an evaluation of any unintended consequences the new rule may have and assessment of any less intrusive and more cost effective alternatives. The EIA must also include information on the number and types of entities affected by a regulatory action, and estimates on the effects the regulation may have on particular localities, on employment, and on the use and value of private property.

DPB must complete its economic analysis within 45 days from the date of a regulatory action’s submission. EIAs can be found on the Stage Information page for each proposed regulatory action.

Board Member Training

Page 5 of 5

REGULATORY REVIEW

Last Updated 12/15/21 What are guidance documents?

Guidance documents are developed by state agencies and boards to provide general information to agency staff or the public on how to implement or interpret state law or agency regulations. Guidance documents are often helpful in understanding how agencies apply and enforce regulations. Links to guidance document lists can be found on Board and Chapter Information pages.

What is the Virginia Register of Regulations?

The Virginia Register of Regulations is the official publication of legal record in Virginia for regulatory actions. Citations to the Register are available on each Stage Information page of the Town Hall.

Standard regulatory process: Basic outline Notice of Intended Regulatory Action (NOIRA) Agency submits NOIRA for executive branch review.

Agency is authorized by Governor to submit NOIRA for publication.

NOIRA is published in The Virginia Register of Regulations.

Submit your comment during the 30-day public comment period.

Proposed regulation Agency considers public comment and submits proposed regulation.

Governor approves proposed regulation.

Proposed regulation is published in the Register and notification is sent to all registered Town Hall users.

Submit your comment during the 60-day public comment period.

Final regulation Agency/board considers public comment and adopts final regulation.

Governor approves final regulation.

Final regulation is published in the Register and email notification sent to registered public Town Hall users. 30-day final adoption period begins Regulation becomes effective (unless it is suspended or 25+ people request an additional public comment period).

A regulatory stage is announced as follows: An automatic email notification is sent to registered Town Hall users.

Ten days later, a regulatory stage is published in The Virginia Register of Regulations, the official publication of legal record for regulations in Virginia.

When the stage is published in the Register, a public comment forum opens on the Town Hall and remains open through the end of the public comment period.

Source: Sections 2.2-4006 through 2.2-4017 of the Code of Virginia (Article 2 of the Administrative Process Act) Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation and Regulation Division, 11/18 Fast-track regulations Fast-track regulation is adopted and submitted on the Town Hall website for executive branch review.

Executive branch review: (In order of review) Office of the Attorney General Department of Planning and Budget: Cabinet Secretary Governor Fast-track regulation is published in the Register. 30-day public comment period begins.

Town Hall public comment forum opens.

Within 14 days of approval by Governor, agency submits fast-track regulation to the Virginia Register via the Town Hall.

Ten days before publication in the Register: Email notification is sent automatically to Town Hall registered users. 15 days after the close of the public comment period, the regulation becomes effective. (unless the regulation is withdrawn or a later effective date is specified by the agency).

The fast-track process is for proposed regulations that are expected to be noncontroversial. Whether a proposed regulation is noncontroversial is determined by the process detailed on this page.

Source: Section 2.2-4012.1 of the Code of Virginia If, during the public comment period, an objection to the fast-track regulation is received from:

• Any member of the applicable standing committee of Senate,
• Any member of the applicable standing committee of the House of Delegates,
• Any member of the Joint Commission on Administrative Rules (JCAR), or
• 10 or more members of the public, then publication of the fast-track regulation will serve as the Notice of Intended Regulatory Action (NOIRA) and standard rulemaking process is followed to promulgate the regulation.

Produced by the Virginia Department of Planning and Budget’s Planning. Evaluation, and Evaluation, 11/2018 How a regulation is fast-tracked: Emergency regulation Agency/board adopts emergency regulation and submits it on the Town Hall for executive branch review.

Executive branch review (in order of review): Office of the Attorney General Department of Planning and Budget Cabinet Secretary Governor Ten days after Town Hall notice, the emergency regulation is published in the Register If NOIRA for permanent replacement regulation was also filed, then 30-day public comment period begins and Town Hall public comment forum opens.

Agency sends emergency regulation to The Virginia Register of Regulations via the Town Hall and it becomes effective on the date of filing (unless otherwise indicated by the agency).

Automatic email notification is sent to registered Town Hall users.

An emergency regulation is:

• Promulgated if there is an "emergency situation" or legislation states that a regulation must be promulgated within 280 days.
• Effective upon filing with the Registrar of Regulations.
• Effective for up to 18 months, and this period may be extended up to 6 months if the Governor approves.
• Usually replaced with a permanent regulation; if so, a Notice of Intended Regulatory Action (NOIRA) to promulgate the permanent replacement regulation must be filed at the same time as the emergency regulation.

Source: Section 2.2-4011 of the Code of Virginia How it is promulgated: Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 Periodic review of regulations using Feature on Town Hall Agency starts a periodic review of the regulation on the Virginia Regulatory Town Hall & submits an announcement for publication in The Virginia Register of Regulations.

Periodic review announcement is published in the Register.

Official public comment period (minimum 21 days) begins.

Town Hall public comment forum opens.

Ten days before publication in the Register: Automatic email notification is sent to Town Hall registered users.

No later than 120 days after the close of the public comment period/forum, the agency posts a periodic review result to appear in the Register & Town Hall, & is emailed to registered Town Hall users.

This report will indicate one of the following: Every state regulation must be reviewed every four years to: (1) ensure it is supported by statutory authority (as determined by the Office of the Attorney General), (2) determine that the regulation is (a) necessary for the protection of public health, safety and welfare and (b) clearly written and easily understandable, and to (3) make sure its economic impact on small businesses is minimized as much as possible. ****** Sources: Sections 2.2-4017 and 2-2-4007.1 of the Code of Virginia and Executive Order 14 (as amended July 16, 2018) Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 How does the periodic review feature on Town Hall work?

The regulation will be amended or repealed.

The regulation will be retained as is.

Public comment period ends.

Public comment forum closes.

How to ask an agency to change a regulation or create a new one Tell the agency in a written communication the following: The substance and purpose of the rulemaking that is requested and, if an existing regulation, include the citation to the Virginia Administrative Code, e.g.,

1 VAC 2-30).

The legal authority of the agency/board to take the action requested, e.g., Code of Virginia § 12.3-45, i.e., the language that says a board or agency can or must promulgate regulations.

Mention, "Code of Virginia Section 2.2-4007" and "petition for new or amended regulation” to signal the agency on how to handle your request.

Notice is published in the Register.

Town Hall public comment forum opens for 21 days to receive comment on your petition.

Within 14 days of receiving your request, the agency must send a notice with your name, the nature of your request, and its plan for handling your request to the Virginia Register.

The notice appears on Town Hall & email notification is sent to Town Hall registered users.

Within 90 days (under most circumstances), the agency issues a written decision granting or denying your request.

The agency's decision must include its reasons for taking action or not taking action.

The agency’s decision appears in the Register & on the Town Hall. Email notification is also sent to Town Hall registered users.

Note: Agency decisions regarding requests to change a rule are not subject to court review This is how you can request an agency/board to develop a new regulation or amend an existing regulation.

Source: Section 2.2-4007 of the Code of Virginia Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 What you need to do and what will happen: Public comment period/forum closes.

EXECUTIVE DIRECTIVE NUMBER ONE (2022)

LAYING A STRONG FOUNDATION FOR JOB CREATION AND ECONOMIC GROWTH THROUGH TARGETED REGULATORY REDUCTIONS By virtue of the authority vested in me as Governor, I hereby issue this Executive Directive to reduce the regulatory burden on businesses and citizens across our Commonwealth.

Importance of the Initiative Excessive regulation imposes a significant burden on Virginia’s economy. Restrictions, prohibitions, and requirements can exist within the administrative code for years without review, while new laws and regulations are steadily added. The growing regulatory burden on businesses and individuals requires time, money and energy for compliance. This represents opportunity loss that inhibits job creation and economic growth.

Nearly four years ago, the General Assembly passed House Bill 883 (2018), directing the Department of Planning and Budget (“DBP”) to administer a three-year regulatory reduction pilot program. This pilot program identified important information about our regulatory processes, including a concerning lack of consistency across agencies, that underscores the need to review and address agencies’ regulatory capabilities. Further, the program provides important guideposts for the 25 percent regulatory reductions that should be pursued across the Executive Branch.

Directive Accordingly, pursuant to the authority vested in me as the Chief Executive Officer of the Commonwealth and pursuant to Article V of the Constitution of Virginia and the laws of the Commonwealth, I hereby direct all Executive Branch entities under my authority to initiate regulatory processes to reduce by at least 25 percent the number of regulations not mandated by federal or state statute, in consultation with the Office of the Attorney General, and in a manner consistent with the laws of the Commonwealth. 1

I hereby further direct the Secretary of Finance provide me with a report providing the following information dealing with promulgation of regulations related to regulatory reduction as authorized by House Bill 883 (2018):

• Recommendations for ensuring complete documentation of any specific legislative mandates directing agencies to promulgate regulatory requirements;
• An inventory of all exemptions from the Administrative Process Act and analysis of whether continuing these exemptions is in the best interests of the citizens of the Commonwealth. Such analysis shall also provide recommendations for legislative action to implement these recommendations;
• Recommendations on additional efforts needed to ensure consistency across agencies in the approach to regulatory development and review;
• Recommendations for improvements to the existing periodic review process, including documenting the statutory authority and certifying the number of regulatory requirements in the regulation at the time of review;
• The feasibility and effectiveness of expanding the regulatory reduction pilot program to other agencies; and
• The feasibility and effectiveness of implementing a 2-for-1 regulatory budget.

The Secretary is authorized to utilize staff of the Department of Planning and Budget in preparing this report. All Executive branch agencies are directed to cooperate with all requests from the Secretary of Finance and Department of Planning and Budget in carrying out this Executive Directive.

Effective Date This Executive Directive shall be effective upon its signing and shall remain in force and effect unless amended or rescinded by future executive order or directive.

Given under my hand and under the Seal of the Commonwealth of Virginia, this 15th day of January, 2022.

Glenn Youngkin, Governor 2

Attest: Kelly Thomasson, Secretary of the Commonwealth 3

NUMBER FOURTEEN (2018) (AMENDED) DEVELOPMENT AND REVIEW OF STATE AGENCY REGULATIONS Importance of the Initiative By virtue of the authority vested in me as Governor under Article V of the Constitution of the Commonwealth of Virginia and under the laws of the Commonwealth, including, but not limited to, §§ 2.2-4013 and 2.2-4017 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby establish policies and procedures for the review of all new regulations and changes to existing regulations proposed by state agencies, which shall include all agencies, boards, commissions, and other entities of the Commonwealth within the executive branch authorized to promulgate regulations. Nothing in this Executive Order shall be construed to limit my authority under the Code of Virginia, including to require an additional 30-day public comment period, file a formal objection to a regulation, suspend the effective date of a regulation with the concurrence of the applicable body of the General Assembly, or to exercise any other rights and prerogatives existing under Virginia law.

Definitions The following acronyms and definitions are set out for ease of use and represent only a summary of terms and acronyms related to the regulatory review process. More detailed descriptions and definitions appear in the Administrative Process Act (APA), § 2.2-4000, et seq. of the Code of Virginia. “Agency Background Document” (ABD) refers to a form completed by agencies and uploaded on the Virginia Regulatory Town Hall website for each regulatory stage in order to describe and explain the regulatory action. The form for each stage is available on the Town Hall. “Administrative Process Act” (APA) refers to § 2.2-4000, et seq. of the Code of Virginia, which contains provisions setting forth the process for promulgating regulations in Virginia. 2 “Day” means a calendar day. “Virginia Department of Planning and Budget” (DPB) refers to the state entity that reviews regulatory proposals for economic and policy impact and manages the Virginia Regulatory Town Hall website. “Economic Impact Analysis” (EIA) refers to a report prepared by DPB that evaluates the estimated costs and benefits of a regulatory proposal. “Emergency rulemaking process” refers to the process used (1) when there is an emergency situation as determined by the agency and affirmed by the Governor that an emergency regulation is necessary, or (2) when a Virginia statutory law, Acts of Assembly (such as the appropriation act), federal law, or federal regulation requires that a state regulation be effective in 280 days or fewer from its enactment. “Executive Branch Review” refers to the review of a regulatory proposal at various stages by the executive branch before the regulatory proposal is published in the Virginia Register of Regulations and is available for public comment. “Exempt rulemaking process” refers to the process by which agency actions exempt from the promulgation requirements of Article 2 of the APA can be adopted and filed directly with the Office of the Registrar of Regulations (Registrar) and are not subject to Executive Branch Review outlined in this executive order. Agencies should consult with their respective cabinet secretary prior to promulgating a regulation under the exempt process. “Fast-track rulemaking process” refers to the process utilized for rules that are expected to be noncontroversial. “Mandate” refers to a directive from the General Assembly, the federal government, or a court that requires that a regulation be promulgated, amended, or repealed in whole or part. “Notice of Intended Regulatory Action” (NOIRA) refers to the first stage in the standard rulemaking process under Article 2 of the APA. “Office of the Attorney General” (OAG) refers to the state agency headed by the Attorney General. The OAG reviews regulatory proposals at the emergency stage, the fast-track stage, and the proposed stage. In addition, the OAG must review a proposal at the final stage if changes with substantial impact, as determined by either the promulgating agency or DPB, have been made since the proposed stage. “The Virginia Register of Regulations” (Register) refers to an official legal publication that provides information about proposed and final changes to Virginia’s regulations. “Rulemaking or regulatory process” refers to the four types of rulemaking processes in Virginia: (1) emergency, (2) fast-track, (3) standard, and (4) exempt. 3 “Standard rulemaking process” refers to the default rulemaking process in Virginia. If a regulatory proposal does not meet the criteria for exempt, fast-track, or emergency rulemaking, it goes through the standard rulemaking process, generally consisting of three stages: NOIRA, proposed, and final. “The Virginia Regulatory Town Hall website” (Town Hall) refers to the website managed by DPB and used by agencies to post regulatory proposals and to facilitate the regulatory review process. “Virginia Administrative Code” (VAC) refers to Virginia’s official legal publication for regulations.

Policy and Principles The executive branch agencies of the Commonwealth must consider, review, and promulgate numerous regulations each year. This Executive Order sets out procedures and requirements to ensure the efficiency and quality of Virginia’s regulatory process. All state employees who draft, provide policy analysis for, or review regulations shall carefully consider and apply the principles outlined below during the regulatory development and review process.

General A. All regulatory activity should be undertaken with the least possible intrusion into the lives of the citizens of the Commonwealth and be necessary to protect the public health, safety, and welfare. Accordingly, agencies shall consider:

1. The use of user fees or permits;
2. The use of information disclosure requirements, rather than regulatory mandates, so that the public can make more informed choices;
3. The use of performance standards in place of required techniques or behavior; and
4. The consideration of reasonably available alternatives in lieu of regulation.

B. Where applicable, and to the extent permitted by law, it shall be the policy of the Commonwealth that only regulations necessary to interpret the law or to protect the public health, safety, or welfare shall be promulgated. These principles shall be considered when an agency performs its periodic review of regulations pursuant to §

1. 2-4017 and this Executive Order.

C. Regulations shall be clearly written and easily understandable.

D. Regulations shall be designed to achieve their intended objective in the most efficient, cost effective manner. 4 Regulatory Development A. Regulatory development shall be based on the best reasonably available and reliable scientific, economic, and other information concerning the need for, and consequences of, the intended regulation. Agencies shall specifically cite the best reasonably available and reliable scientific, economic, or statistical data as well as any other information in support of regulatory proposals.

B. Regulatory development shall be conducted in accordance with the statutory provisions related to impact on small businesses. DPB shall work with state agencies to address these requirements during the regulatory review process, including notifications, as appropriate, to the Joint Commission on Administrative Rules.

C. During regulatory development, agencies shall consider the impact on existing and potential Virginia employers and their ability to maintain and increase the number of jobs in the Commonwealth, as well as the cost of compliance to the general public.

Public Participation A. Agencies shall actively seek input for proposed regulations from interested parties, stakeholders, citizens, and members of the General Assembly.

B. In addition to requirements established in Article 2 of the APA, agencies shall post all rulemaking actions on Town Hall to ensure that the public is adequately informed of rulemaking activities.

C. All legal requirements and guidelines related to public participation shall be strictly followed to ensure that citizens have reasonable access and opportunity to present comments and concerns. Agencies shall inform interested persons of (1) Town Hall’s email notification service that can send information regarding specific regulations, regulatory actions, and meetings about which citizens are interested, and (2) the process to submit comments in Town Hall public comment forums. Agencies shall establish procedures that provide for a timely written response to all comments and the inclusion of suggested changes that would improve the quality of the regulation.

Other A. Agencies, as well as reviewing entities, shall perform their tasks in the regulatory process as expeditiously as possible and shall adhere to the timeframes set out in this Executive Order.

B. Regulations are subject to periodic evaluation, review, and modification, as appropriate, in accordance with the APA, policy initiatives of the Governor, and legislation. 5 C. Each agency head will be held accountable for ensuring that the policies and objectives specified in this Executive Order are followed. Agency heads shall ensure that information requested by DPB, a Cabinet Secretary, or the Office of the Governor, in connection with this Executive Order, is provided on a timely basis.

Incomplete regulatory packages may be returned to the appropriate agency by DPB.

Applicability The review process in this Executive Order applies to rulemakings initiated by agencies of the Commonwealth of Virginia in accordance with Article 2 of the APA.

With the exception of the requirements governing the periodic review of existing regulations, the posting of meeting agenda and minutes, and the posting of guidance documents, agencies and agency regulatory action exempt from Article 2 of the APA are not subject to the requirements of this Executive Order. Nonetheless, the Governor, a Cabinet Secretary, or the Chief of Staff to the Governor may request in writing that an agency comply with all or part of the requirements of this Executive Order for regulations exempt from Article 2 of the APA.

Copies of such requests shall be forwarded to the Governor’s Policy Office and DPB. In addition, a Cabinet Secretary may request in writing that certain Article 2 exempt regulations be further exempted from all or part of the requirements of this Executive Order.

These procedures shall apply in addition to those already specified in the APA, the agencies’ public participation guidelines, and the agencies’ basic authorizing statutes. As of July 16, 2018, these procedures shall apply to all regulatory actions and stages that have been submitted to DPB for any stage of Executive Branch Review.

Any failure to comply with the requirements set forth herein shall in no way affect the validity of a regulation, create any cause of action or provide standing for any person under Article 5 of the APA (§ 2.2-4025 et seq. of the Code of Virginia), or otherwise challenge the actions of a government entity responsible for adopting or reviewing regulations.

Regulatory Review Process Regulations shall be subject to Executive Branch Review as specified herein. All agency regulatory packages shall be submitted via Town Hall. For each stage of the regulatory development process, agencies shall complete and post the applicable ABD on Town Hall to describe the regulatory action and inform the public about the substance and reasons for the rulemaking. Agencies shall ensure that the correct regulatory text is synchronized with the appropriate stage information page on Town Hall.

If a regulatory package is submitted to DPB, and DPB determines that the package is not substantially complete, then DPB shall notify the agency within 10 days. At that time, the agency must withdraw the package from Town Hall and resubmit the package after all missing elements identified by DPB have been added. Agencies shall submit regulatory packages to the Registrar for publication on Town Hall within 14 days of being authorized to do so. 6 In rulemakings where there are two or more stages, the filing of each stage shall be submitted on Town Hall as expeditiously as the subject matter allows and no later than 180 days after the conclusion of the public comment period for the prior stage.

A. Standard Rulemaking Process

NOIRA Stage The NOIRA shall include the nature and scope of the regulatory changes being considered and the relevant sections of the VAC. This package shall include draft regulatory text if it is available.

DPB shall review the NOIRA to determine whether it complies with all requirements of this Executive Order and applicable statutes, and whether the contemplated regulatory action comports with the policy of the Commonwealth as set forth herein. Within 14 days of receiving a complete NOIRA review package from the agency, the Director of DPB or his designee shall advise the appropriate Cabinet Secretary and the Governor of DPB’s determination.

If the Director of DPB or his designee advises the appropriate Cabinet Secretary and the Governor that the NOIRA presents issues requiring further review, the NOIRA shall be forwarded to the Cabinet Secretary. The Cabinet Secretary shall review the NOIRA within 14 days and forward a recommendation to the Governor. If DPB does not find issues requiring further review, the agency shall be authorized to submit the NOIRA to the Register for publication after the Governor approves the NOIRA.

The Chief of Staff to the Governor or his designee is hereby authorized to approve or disapprove NOIRAs on behalf of the Governor.

Public comments received following publication of the NOIRA should be encouraged and carefully considered in developing the proposed stage of a regulatory proposal.

Proposed Stage Following the initial public comment period required by § 2.2-4007.01 of the Code of Virginia, and taking into account the comments received, the agency shall prepare a regulatory review package.

At this stage, the proposed regulation and regulatory review package shall be in as close to final form as possible, including completed review by all appropriate regulatory advisory panels or negotiated rulemaking panels. New issues that were not disclosed to the public when the NOIRA was published shall not be addressed at the proposed stage.

The order of Executive Branch Review shall be as follows: 7 a. OAG. The OAG will conduct a review of the proposed regulation and produce a memorandum assessing the agency’s legal authority to promulgate the regulation and determining whether the content of the proposed regulation conflicts with existing law. The OAG may also provide any advice, recommendations, or other comments for consideration by the Governor with respect to the proposed regulation.

After the OAG has completed its review, the package will be submitted to DPB. b. DPB. DPB shall review the proposed regulatory package to determine whether it complies with all requirements of this Executive Order, applicable statutes, and other policies of the Commonwealth. Consistent with § 2.2-4007.04 of the Code of Virginia, within 45 days of receiving a complete regulatory review package, the Director of DPB or his designee shall prepare a policy analysis and EIA, and advise the appropriate Cabinet Secretary and the Governor of the results of the review. c. Cabinet Secretary. The Cabinet Secretary shall review the proposed regulation package within 14 days and forward a recommendation to the Governor. d. Governor. The Chief of Staff to the Governor or his designee is hereby authorized to approve or disapprove proposed regulations on behalf of the Governor.

Revised Proposed Stage (Optional) Following the public comment period of the proposed stage, required by § 2.2-4007.03 of the Code of Virginia, the agency may wish to make additional changes and/or receive additional public comment by publishing a revised proposed regulation (as allowed by § 2.2-4007.03 of the Code of Virginia). The order of Executive Branch Review for the revised proposed stage shall be the same as for the Proposed Stage, with the exception that DPB will perform its duties within 21 days.

Final Stage Following the approval of the proposed regulation package or the revised proposed regulation package, and taking into account all comments received during the prior stage, the rulemaking entity shall revise the proposed regulation.

If any change with substantial impact—as determined by DPB—has been made to the regulatory text between the proposed and final stages, the agency shall obtain a letter from the OAG certifying that the agency has authority to make the additional changes.

The order of Executive Branch Review shall be as follows: 8 a. DPB. DPB shall review the final stage package to determine whether it complies with all requirements of this Executive Order, applicable statutes, and other policies of the Commonwealth. In particular, DPB shall assess the effect of any substantive changes made since the publication of the proposed regulation and the responsiveness of the agency to public comment. Within 21 days of receiving a complete final regulation package from the agency, the Director of DPB or his designee shall prepare a policy analysis advising the appropriate Cabinet Secretary and the Governor of the results of the review. b. Cabinet Secretary. The Cabinet Secretary shall review the final stage regulation package within 14 days and forward a recommendation to the Governor. c. Governor. The Chief of Staff to the Governor or his designee is hereby authorized to approve or disapprove proposed final regulations on behalf of the Governor.

B. Fast-Track Rulemaking Process The fast-track rulemaking process is for rules that are expected to be noncontroversial.

DPB shall review the fast-track regulation to determine whether it complies with all other requirements of this Executive Order and applicable statutes, and whether the contemplated regulatory action comports with the policies of the Commonwealth as set forth herein. DPB shall request the Governor’s Office to determine if the fast-track process is appropriate when there is any question as to whether a package should be allowed to proceed in this manner. The Governor or his designee retains sole discretion to disapprove use of the fast-track rulemaking process when the Governor or his designee determines it is not in the public interest.

After a fast-track regulation has been submitted on Town Hall, Executive Branch Review will proceed as follows:

1. OAG. The OAG will conduct a review of the proposed fast-track regulation and produce a memorandum assessing the agency’s legal authority to promulgate the regulation and determining that the content of the proposed regulation does not conflict with existing law. The OAG may also provide any advice, recommendations, or other comments for consideration by the Governor with respect to the fast-track regulation. After the OAG has completed its review, the package will be submitted to DPB.
2. DPB. DPB shall determine within 10 days or less whether the regulatory package is appropriate for the fast-track rulemaking process and communicate 9 this decision to the agency. After a package has been determined to be appropriate for the fast-track process, the Director of DPB or his designee shall have 30 days to prepare a policy analysis and EIA, and advise the appropriate Cabinet Secretary and the Governor of the results of the review.
3. Cabinet Secretary. The Cabinet Secretary shall review the fast-track regulation package within 14 days and forward a recommendation to the Governor.
4. Governor. The Chief of Staff to the Governor or his designee is hereby authorized to approve or disapprove fast-track regulations on behalf of the Governor.

C. Emergency Rulemaking Process Emergency regulations may be promulgated by an agency if it determines there is an emergency situation, consults with the OAG, and obtains the approval of the Governor or his designee. Emergency regulations may also be promulgated where Virginia statutory law, an Act of Assembly such as the appropriation act, federal law, or federal regulation requires that a state regulation be effective in 280 days or fewer from its enactment and the regulation is not exempt from the APA.

If the agency plans to replace the emergency regulation with a permanent regulation, it should file an Emergency/NOIRA stage. The order of Executive Branch Review shall be as follows:

OAG. The OAG will conduct a review of the proposed emergency regulation and produce a memorandum assessing the agency’s legal authority to promulgate the regulation and determining that the content of the proposed regulation does not conflict with existing law. The OAG may also provide any advice, recommendations, or other comments for consideration by the Governor with respect to the proposed emergency regulation. After the OAG has completed its review, the package will be submitted to DPB.

DPB. DPB shall review the proposed emergency regulatory package to determine whether it complies with all requirements of this Executive Order, applicable statutes, and other policies of the Commonwealth. Within 14 days of receiving a complete emergency regulation package from the agency, the Director of DPB or his designee shall prepare a policy analysis, and advise the appropriate Secretary and the Governor of the results of the review.

Cabinet Secretary. The Cabinet Secretary shall review the proposed emergency regulation package within 10 days and forward a recommendation to the Governor.

Governor. The Chief of Staff to the Governor or his designee is hereby authorized to approve or disapprove emergency regulations on behalf of the 10 Governor.

An emergency regulation shall be effective for up to 18 months and may be extended for up to an additional six months if, despite the rulemaking entity’s best efforts, a permanent replacement regulation cannot become effective before the emergency regulation expires. If an agency wishes to extend an emergency regulation beyond its initial effective period, the agency shall submit an emergency extension request to the Governor’s Office via Town Hall as soon as the need for the extension is known, but no later than 30 days before the emergency regulation is set to expire. The emergency extension request must be granted prior to the expiration date of the emergency regulation, pursuant to § 2.2-4011(D) of the Code of Virginia.

D. Periodic Review of Existing Regulations Existing state regulations shall be reviewed every four years to determine whether they should be continued without change or be amended or repealed, consistent with the stated objectives of applicable law, to minimize the economic impact on small businesses in a manner consistent with the stated objectives of applicable law, as regarding § 2.2-4007.1 of the Code of Virginia.

The regulatory review shall include: (1) the continued need for the rule; (2) the nature and complaints or comments received concerning the regulation from the public; (3) the complexity of the regulation; (4) the extent to which the regulation overlaps, duplicates, or conflicts with federal or state law or regulation; and (5) the length of time since the regulation has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the regulation.

Prior to commencement of the periodic regulatory review, the agency shall publish a notice of the review in the Register and post the notice on Town Hall. The agency shall provide a minimum of 21 days for public comment after publication of the notice. No later than 120 days after close of the public comment period, the agency shall publish a report of the findings of the regulatory review in the Register and post the report on Town Hall.

The periodic review shall include (1) a review by the Attorney General or his designee to ensure statutory authority for regulations, and (2) a determination by the Governor or his designee, whether the regulations are (a) necessary for the protection of public health, safety and welfare and (b) clearly written and easily understandable.

The periodic review must be conducted on Town Hall and may be accomplished either during the course of a comprehensive regulatory action using the standard rulemaking process, or by using the periodic review feature as follows:

1. If during the course of a comprehensive rulemaking, using the standard regulatory process, the agency plans to undertake a standard regulatory action, then the agency can fulfill the periodic review requirement by including a notice of a periodic review in the NOIRA. When the proposed stage is submitted for Executive Branch Review, the ABD shall include the result of 11 the periodic review. When a regulation has undergone a comprehensive review as part of a regulatory action and when the agency has solicited public comment on the regulation, a periodic review shall not be required until four years after the effective date of the regulatory action.
2. Using the periodic review feature. If, at the time of the periodic review, the agency has no plans to begin a comprehensive rulemaking using the standard rulemaking process, then the agency shall use the periodic review feature to announce and report the result of a periodic review using the appropriate Town Hall form. If the result of the periodic review is to amend or repeal the regulation, the agency shall link the periodic review with the subsequent action to amend or repeal the regulation.

Electronic Availability of Petitions and Documents Agencies shall post petitions for rulemaking and decisions to grant or deny the petitions on Town Hall, in accordance with the timeframes established in § 2.2-4007 of the Code of Virginia.

Executive branch agencies shall post the notice of, and agenda for, a public regulatory meeting on Town Hall at least seven days prior to the date of the meeting, except if it is necessary to hold an emergency meeting in which case the agenda shall be posted as soon as possible.

In addition, agencies that promulgate regulations and keep minutes of regulatory meetings shall post such minutes of those meetings on Town Hall in accordance with the timeframes established in §§ 2.2-3707 and 2.2-3707.1 of the Code of Virginia.

Agencies shall post all guidance documents or a link to each agency guidance document, as defined by § 2.2-4101 of the Code of Virginia on Town Hall. Any changes to a guidance document or a guidance document link shall be reflected on Town Hall within 10 days of the change. 12 Effective Date of the Executive Order This Executive Order amends Executive Order No. 14 (2018) issued by Governor Ralph S. Northam and rescinds Executive Order No. 58 (1999) issued by Governor James S. Gilmore, III. This Executive Order shall become effective on July 16, 2018, and shall remain in full force and effect until June 30, 2022, unless amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia on this 16th day of July, 2018.

Ralph S. Northam, Governor Attest: Kelly Thomasson, Secretary of Commonwealth Board Member Training APPLICATION IFFs Page 1 of 1 L Application IFFs Applications that are complete and satisfy the legal prerequisites for licensure or certification may, in most instances, be approved by the board’s licensing section staff.

Final determinations about applications that appear not to meet the board’s entry requirements—for reasons such as disclosure of prior criminal convictions or adverse disciplinary action, or failure to satisfy experience, education, or financial standards— must be made by the full Board, however, because a decision not to approve an application or otherwise deny licensure cannot be delegated to staff.

Therefore, deficient applications are referred for an Informal Fact-Finding (IFF) conference to provide the applicant an opportunity to offer additional information to assist the Board in making its determination. (Only if the applicant wishes to pursue the matter; upon notification of the process, some applicants do not choose to move forward and instead withdraw their applications.) The Board’s licensing section prepares a Referral Memorandum outlining the issues to be considered at the IFF.

DPOR staff prepares and sends a Notice of the IFF, alerting the applicant of the right to appear before the Presiding Officer in support of the application. At the IFF, staff presents information from the application file—only those issues referenced in the Referral Memorandum can be considered—to the Presiding Officer (who may be a Board member), and a court reporter transcribes the entire proceeding. The applicant and any witnesses may offer additional evidence to the Presiding Officer during the IFF.

In addition, if the Presiding Officer determines additional information is needed, the record may be left open for the applicant to provide the information, or an additional IFF may be convened.

A summary is written, based solely on the information in the Agency Record, and a recommendation is made whether or not to approve the application. Staff members assist the Presiding Officer with preparation of the Summary & Recommendation, which is presented to the full Board for a final decision at its next meeting.

The Board reviews the Agency Record—which includes the application file, Referral Memorandum, exhibits, transcript, and Summary & Recommendation—prior to making its case decision, and is limited to considering only the information contained in the Agency Record. The Board can approve the application, deny the application, enter into an Agreement for Licensure (approval conditioned on specific terms), or reconvene the IFF to gather additional information (with concurrence from the applicant).

Board Member Training EXAMINATIONS OVERVIEW Page 1 of 5 Examinations Overview Examinations—along with appropriate education and experience—are used to assure the public that an individual possesses the minimum competence required to practice a profession at the entry level. The Examinations section provides centralized services for all regulatory programs that require applicants to pass a test as a prerequisite to licensure or certification.

Once approved to sit for a test, the Examinations section works with the candidate until the test is successfully passed or the candidate makes no further attempts. Responsible for the testing of approximately 50,000 individuals per year, the Examinations section supports the agency in the following areas:

• Development and administration of in-house examinations;
• Oversight of development and administration of contracted and national exams;
• Managing all contracted exam services and evaluating vendor performance;
• Conducting examination workshops with contracted vendors;
• Communicating with exam candidates, including development of Candidate Information Bulletins;
• Reviewing Americans with Disabilities Act (ADA) accommodation requests;
• Scheduling examinations and providing candidates with individual test results;
• Maintaining exam security and investigating violations or cheating incidents;
• Scoring exams and posting results on the Department's automated system;
• Developing diagnostic reports for failing candidates and rescheduling new testing;
• Answering inquiries about examinations and resolving complaints; and
• Providing statistical data to the Department, Boards, and others.

All licensing examinations must measure entry-level knowledge and skills, and be developed with the ultimate goal of discriminating between minimally competent and incompetent candidates in order to protect the public’s health, safety, and welfare. Tests must be administered in a standardized manner to maintain security, and all aspects of the program should be documented to justify how:

• The content of the examination is designed;
• Items are developed, reviewed, and edited;
• Examination forms are assembled ;
• Candidates register and schedule;

Board Member Training EXAMINATIONS OVERVIEW Page 2 of 5

• The examination is administered;
• The test is analyzed, scored, and reported; and
• Security is maintained.

All licensing examinations must be fair, valid, reliable, and defensible. Whether the examination used is developed in-house, by a national organization, or contracted out to a test developer, the Department is ultimately responsible for ensuring the administration of a fair, valid, reliable, and defensible examination.

EXAMINATION DEVELOPMENT All exams must be reviewed to ensure the testing reflects the knowledge and skills necessary for current, competent performance in Virginia from the perspective of public protection. In order for a test to measure the competency of a candidate, it must be both valid and reliable.

Test Validity Validity refers to how well a test measures what it is supposed to measure. For professional regulation, an exam is considered valid if it accurately measures competencies for safe and effective entry-level performance. This standard is met by establishing a link between the questions on the examination and the tasks essential to public protection that are actually performed on the job. This linkage is initially established through a job or task analysis.

This criterion is satisfied by establishing a passing score that defines the minimum level of competence in terms of examination performance for public protection, which is normally accomplished with a cut-score study. A cut-score study consists of a panel of SMEs who review each exam item, or an “item bank” of questions, and estimate the percentage of competent candidates who will answer each question correctly. When the proportions established by the panel are summed across all questions, the result is a recommended minimum cut-score or passing score.

The use of the cut-score study and statistical methods of computing the cut-score (such as the Angoff method) separates criterion-referenced examinations from norm-referenced examinations. All licensing examinations used by the Department are criterion-referenced, which set minimum competency based on how the individual candidate performs. The agency, an appointed representative, or SME committee will be asked to approve the cut-score derived from a cut-score study.

Board Member Training EXAMINATIONS OVERVIEW Page 3 of 5 Test Reliability Reliability refers to how well a test produces stable and consistent results. An examination is said to be reliable, or to generate reliable scores, if it consistently passes candidates who can demonstrate the knowledge, skills, and abilities needed to perform the job competently. (Alternatively, a reliable exam should consistently fail candidates who cannot demonstrate such knowledge, skills, and abilities.) Reliability is necessary for an exam, but is also must be valid. For example, a scale that is off by five pounds will read your weight every day with an excess of five pounds.

The scale is reliable in that it consistently reports the same weight each day, but it is not valid because it adds five pounds to your actual weight and therefore is not a true measure of what you weigh.

Item Writing After the job analysis is complete and the tasks required of minimally competent entry-level practitioners are determined, the test specifications are created. Test specifications outline the content of the examination and indicate the relative emphasis to be given to various content areas.

Test items are usually written at an item writing workshop at which a panel of SMEs meets to prepare and review actual questions to be used. The review aspect of this process is very important, and panel members receive specific guidance on item writing techniques. All items approved by the panel are placed in the item bank for future use in examinations.

During examination construction, the actual questions to be used on a particular form (version) of the exam are selected or pulled from the item bank and placed in the test form. Exam vendors typically use automated systems to store and retrieve items in a method to ensure each form is equivalent to the next in content and difficulty level.

Post-Examination Analysis A statistical analysis of examination performance is typically completed after test administration. Performance values, or p-values, are calculated on each question to indicate the percentage of candidates who answered correctly. Items with low p-values are reviewed by the agency or other SMEs to determine a reason why the item did not perform well.

If the item is clearly written and otherwise valid and reliable, the item remains in the exam regardless of the p-value. If problems are discovered, the exam can be adjusted by dropping items from the test or multiple keying items as necessary.

Board Member Training EXAMINATIONS OVERVIEW Page 4 of 5 R Practical or “Hands-On” Performance Examinations Several professions require the candidate to demonstrate skills in addition to passing a written (or theory) examination. Some practical examinations are administered by vendors and others by Board member practitioners themselves.

Practical examinations are more time-consuming and costly to administer than written examinations, as well as being more challenging to develop since they must be designed to be objective in an inherently subjective environment.

EXAMINATION ADMINISTRATION In-House Exam Administration Examinations section staff or professional proctors hired on a temporary basis conduct the exam at the Department or an off-site facility.

Contracted Exam Administration Vendor administers, proctors, provides test site(s) for exam pursuant to contract terms.

Scoring Exam scoring procedures vary depending on the profession. Most contracted examinations are scored by the vendor and then reported to the Department’s automated system electronically, which then generates pass/fail letters to candidates.

Some vendors have the capability of reporting scores to the candidate immediately while at the test site, while others send the pass/fail notices to candidates directly.

No vendor issues a license or certificate; only the Department issues credentials on behalf of the Boards.

Examination Security Test security and integrity are maintained by the Examinations section for in-house examinations, and by the vendor for contracted examinations. When exam review by Board members or SMEs is required, specific content must never be divulged to potential candidates or to the general public. Exam workshop participants are required to sign a statement of non-disclosure.

The Department’s Examination Site Conduct policy addresses disruptive and prohibited conduct (e.g., abusive behavior or cheating) by candidates during exam administration.

Board Member Training EXAMINATIONS OVERVIEW Page 5 of 5 Candidate Information Bulletins Candidate Information Bulletins (CIBs) provide information on general exam content, reference materials, fees, test dates, application deadlines, test sites, and scoring procedures.

CIBs are created by both the Examinations section and the contracted vendor.

Examination Fees Board Regulations may include specific fee schedules or fees based on negotiated contracts with vendors. Exam fees cover administrative costs such as reviewing candidate applications, scheduling, examination development and production costs, scoring, and reporting.

Some exam fees are paid directly to the vendor to compensate fully for exam development and administration; other fees are paid directly to the Department. Fees are generally non-refundable, unless the candidate can document extenuating circumstances supporting a request for exam cancellation or postponement (depending on the profession).

In addition to exam fees, some professions also assess application fees to cover the cost of reviewing candidates’ initial applications to determine exam eligibility.

ACCOMMODATING CANDIDATES WITH DISABILITIES Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) addresses accommodations related to testing for qualified individuals with disabilities. Candidates with disabilities must be offered examinations in an accessible place and manner. Qualified disabled candidates cannot be charged for special accommodations, special services, or alternate test formats.

Examples of ADA accommodations include: qualified readers, sign-language interpreters, additional test-taking time, and Braille-format examinations.

The Department and its exam vendors are aware of the requirements of the ADA, which are addressed in Department Policy 100-02: Americans with Disabilities Act Compliance.

Board Member Training DISCIPLINARY PROCESS Page 1 of 2 L Disciplinary Process Disciplinary complaints are received by the Complaint Analysis and Resolution (CAR) section. CAR intake staff members docket and conduct an initial analysis of the complaint, which may include collecting additional information and giving the respondent (licensee) an opportunity to submit a written response to the allegations.

If the inital review determines DPOR has jurisdiction over the complaint and suggests probable cause exists to support a violation of the Board’s regulations or statutes, the complaint is forwarded to the Investigations section or, when appropriate, to the Alternative Dispute Resolution (ADR) section. Otherwise, the complaint is closed.

The Investigations section collects information to support the alleged violations.

Investigators obtain additional evidence, interview witnesses, perform site visits as needed, and draft a Report of Findings. If the investigation indicates a regulatory violation may have occurred, the agency attempts to resolve the complaint through ADR (mediation), compliance, or a Consent Order.

CAR Legal Analysts handle Consent Orders, which are voluntary settlement agreements between the respondent and the Board regarding the violation(s) and appropriate sanctions. If the complaint is not resolved through one of these methods, it is referred to the Adjudication section for an Informal Fact-Finding (IFF) conference, the due process administrative proceeding used to gather information Boards must use in determining disciplinary action.

The Adjudication section sends a Notice of the IFF to the respondent, alerting the licensee of the right to appear before the presiding officer—who may be a Board member, former Board member, or staff member—and respond to the complaint. At the IFF conference, Adjudication staff presents the Department’s case to the presiding officer, and a court reporter transcribes the entire proceeding. The respondent, and any other appropriate witnesses, may present additional evidence to the presiding officer.

After the IFF conference, a Consent Order may still be offered; however, if a voluntary agreement is not reached, staff members assist the presiding officer in preparing a Summary & Recommendation for presentation to the Board at its next meeting. This document consists of the facts learned during the IFF conference and suggested sanctions for any regulatory violation(s) identified. When it meets, the full Board may accept, amend, or reject the IFF recommendation.

Board Member Training DISCIPLINARY PROCESS Page 2 of 2

Prima Facie disciplinary cases are those in which the respondent waives the right to an IFF. These cases are presented to the Board with the investigative Report of Findings (ROF) and recommended sanctions, without the need for the administrative proceeding.

The Compliance & Investigations Division is also responsible for helping to enforce criminal laws, such as practicing without a license and filing false or fraudulent license applications. After investigation, criminal matters are referred to local Commonwealth’s Attorneys for further action; ultimately, however, the decision whether to pursue prosecution remains at the discretion of local officials.

Board Member Training FINANCIAL OVERVIEW Page 1 of 5

Financial Overview Regulatory Fees The activities of the Department and its regulatory boards are funded entirely from licensing fees. The general powers and duties of the boards related to financing their programs are addressed in the Code of Virginia, § 54.1-201: To levy and collect fees for certification or licensure and renewal that are sufficient to cover all expenses for the administration and operation of the regulatory board and a proportionate share of the expenses of the Department of Professional and Occupational Regulation and the Board of Professional and Occupational Regulation.

In § 54.1-113, the Code addresses the board’s responsibilities for setting fee amounts, mandating that all DPOR regulatory boards conduct biennial reviews and make revisions periodically, “so that the fees are sufficient but not excessive to cover expenses.” The Budget and Analysis section maintains a detailed accounting of each board’s revenues and expenditures to support this duty to establish fees and maintain adequate revenues. The section also provides monthly reports to inform the board of its financial status. After the close of each biennium, or more frequently if necessary, the section reviews the financial position of each board, prepares projections of expected revenues and expenditures for the next biennium, and makes recommendations concerning the need to adjust its fees.

If fee adjustments are necessary, the Budget and Analysis section will prepare alternative fee structures for the board’s consideration. The recommendations are designed to maintain the board’s financial stability, as well as to comply with statutory requirements and the Department’s procedures for establishing fees.

Fee changes must be proposed and published for public comment under the provisions of the Administrative Process Act (APA), similar to other regulations. Fees do not become effective until the processes and approvals required by the APA are completed, which generally takes a minimum of 18-36 months. For that reason, each regulatory board’s current and projected financial position are monitored closely to plan for any upcoming need for fee adjustments, and recommendations for fee adjustments are presented to the board to ensure adequate time to complete required processes and maintain financial stability.

Board Member Training FINANCIAL OVERVIEW Page 2 of 5 Budgets Licensing fees are established at amounts that provide sufficient revenue to pay the operating expenses of each board and the Department. Amounts collected from fees are designated as non-general fund revenues, which means they are collected for a specific purpose (professional and occupational licensure), and must be expended for that purpose. The Department receives no general fund (i.e., tax) revenues from the Commonwealth.

Revenues collected by the Department must be appropriated before they can be expended, meaning the General Assembly first must authorize the appropriation in the state budget each year. The Department’s appropriation represents the amount of money it is authorized to spend each year.

Each fiscal year, the Department establishes an internal operating budget that distributes available funds (the appropriation) to support all the operations and activities of the Department and the regulatory boards. During the budgeting process, managers have the opportunity to explain plans and request funding for specific activities for the year. Board Executive Directors or Board Administrators may ask the board for input during this process about plans for regulatory actions, travel and training, board meetings, changes in regulatory requirements, or other planned activities that affect funding needs. The agency director approves the final operating budget based on the Department’s total available funds/appropriation.

Board Expenses and Reimbursements Costs that relate to a single board’s activities are reported in a separate department code established for each board, and are charged directly to the board. Costs commonly charged directly to a board include board member travel costs, board member or staff training, printing, postage, and legal services.

Board members may incur certain expenses associated with working or traveling on official board business, which may be reimbursed within the requirements of state and agency travel policies. Board members are reimbursed for mileage when traveling to and from board meetings and authorized workshops or conventions. Lodging costs and meals are also reimbursed when the board member is in overnight travel status (subject to state spending caps).

Before traveling, board members should familiarize themselves with the basic provisions of state travel regulations by reading the travel brochure. Board members should contact their Board Executive Director or the Finance Office to obtain advance approval for overnight travel or assistance with travel-related questions.

Board Member Training FINANCIAL OVERVIEW Page 3 of 5 1 Penalty Collections for Consent and Final Orders Monetary penalties collected pursuant to a board’s disciplinary actions are deposited to a special state fund known as the Literary Fund and are not available for spending by the Department.

The Literary Fund provides low-interest loans to localities for funding school building projects. State law mandates all monetary penalties be deposited into this fund, thereby ensuring the boards’ clear independence from any appearance of improper assessment of penalties.

BOARD FINANCIAL STATEMENTS Cost Allocation System Section 54.1-113 of the Code of Virginia (Callahan Act) requires the Department to account for revenues collected for each board, and expenses allocated to each board, on a biennial (two-year) basis. That information is used for the purpose of maintaining or adjusting fees so that revenues collected are sufficient to cover expenses, but not excessive.

In order to reasonably and appropriately allocate and account for each board’s expenses in a reasonable and appropriate manner, the Department uses a Cost Allocation System.

Under this system, direct expenditures of each board are identified from accounting records. Other costs incurred by the agency to provide operational support are then identified and distributed to each board using specific allocation methodologies.

Through cost allocation, the revenues collected through regulatory fees and the total expenses incurred to support operations are accounted for by each individual board.

Format Because of the requirements of the Callahan Act, the Cost Allocation System is designed to account for each board’s financial position for an entire biennium. A biennium begins on July 1st of each even-numbered year, and ends on June 30th of the next even-numbered year.

The Cost Allocation System produces two financial statements for each board: Statement of Financial Activity: Produced for each board on a monthly basis, the Board name, biennium, and current month are reported in the heading. The first column lists each item by type, beginning with revenues, and then details expenditures by Cost Category (see explanations below). The second column reports revenues collected and each type of expenditure for the current month.

Board Member Training FINANCIAL OVERVIEW Page 4 of 5

The third and fourth columns provide a comparison of financial activity for the previous and the current biennium. Each column reports the board’s total financial activity from the beginning of the applicable biennium through the report month. The third column reports the board’s financial activity as of the same month in the previous biennium. The fourth column is a statement of the board’s financial position for the current biennium to date, including the balance brought forward from the previous biennium and the cash/revenue balance at the close of the current month.

The final section of the Statement reports the board’s actual Callahan Act percentage at the close of the previous biennium. It also reports the target Callahan Act percentage for the end of the current biennium (once the target becomes available). The target percentage is determined from the fee analysis performed for each board after the close of each biennium, and represents where the board is expected to be in the course of planned operations and any fee adjustments as required by the Callahan Act.

Supporting Statement of Year-to-Date Activity: Summarizes each board’s financial activity on a fiscal year basis for the purpose of monitoring plans and variances from budgeted amounts.

Although the Callahan Act requires accounting on a biennial basis, most operational planning and budgeting for board activities is conducted on an annual basis. For monitoring purposes, the agency’s budgets for each type of expenditure are entered into the Cost Allocation System to provide estimates of anticipated annual costs for each board in each category. Because the allocations are based on volume and activity levels (see explanations below), which may not be constant, allocated budget amounts and actual allocated expenses can vary substantially. This statement can assist the boards in understanding underlying causes for such variations, and how operational, economic, regulatory, or legal activities affect budget and actual allocations.

The Statement of Year-to-Date Activity details each type of expenditure for each month and provides a fiscal year-to-date total. It reports the budget allocated to the board for each type of expenditure, and the remaining budget. It then provides a straight-line projection of estimated costs at the close of the fiscal year (assuming that all costs remain relatively stable and continue at the same rate for the remainder of the year), and provides projected variances from budgeted amounts.

Cost Categories and Allocation Methodologies Board Expenditures consist of charges incurred directly in support of board operations, such as travel, per diem, printing, and postage. Board Expenditures include the board’s share of the costs of processing fees, based on the number of fees processed for each board during the month.

Board Member Training FINANCIAL OVERVIEW Page 5 of 5 L Board Administration represents the cost of staff supporting regulatory program operations. The allocated cost is based on each board’s number of licensees.

Exam Administration represents the cost of providing direct support in the development, administration, and contracting of exams. Costs are allocated based on percentages of time and effort given to each board by Examination staff, and number of exams given.

Enforcement represents the costs associated with complaint processing, investigation, and adjudication. Costs are allocated based on enforcement activity for each board.

Legal Service charges include billings from the Office of Attorney General for support provided to each board, and other legal costs that are charged directly to the board.

Information Systems represents charges incurred for information technology services and information management. The costs are allocated based on each board’s percentage of licensees.

Facilities Management includes rent and equipment, mailroom and procurement, supplies, and maintenance costs incurred in support of board activities. The costs are allocated based on staff assigned to each board.

Agency Administration includes the Department’s general administrative support and overhead costs. Charges are allocated based on each board’s percentage of licensees.

Transfers/Other is the category used to allocate other charges to each board. The most common type of charge reported here is transfers to the General Fund of the Commonwealth when mandated in the Appropriations Act, or to pay the agency’s share of central state processes and support costs. The charges are allocated based on each board’s percentage of licensees.

Fee Analysis Information accumulated through the Cost Allocation System provides the data required for analysis of each board’s financial position after the close of each biennium, and justifies any recommended fee adjustments. The Budget and Analysis section discusses financial position, projections, and recommendations for any fee adjustments with each board as needed.

Board Member Training LEGISLATIVE PROCESS Page 1 of 2 L Legislative Process Title 54.1 of the Code of Virginia provides the statutory authority for regulatory boards and programs at DPOR. The law sets the parameters within which a board regulates, as well as establishes the board’s authority for enforcement of the law. Any additions to the Code or revisions to an existing statute must be passed by the General Assembly and signed by the Governor.

Each summer, the Governor’s Policy Office solicits legislative proposals from all executive branch agencies for consideration. In determining whether to approve agency legislative requests, the Administration considers whether the proposal is necessary to comply with federal law or a recent court decision, or whether the proposal is essential to the operation of state government.

The Governor’s Policy Office reviews the numerous legislative proposals it receives from all state agencies and selects only those deemed “critical” for inclusion in the Administration’s legislative package to the General Assembly.

DPOR boards and their members must observe the following process to initiate legislative proposals for a given year.

At regularly scheduled meetings, a board may identify additions to a statute it believes are needed. The board may also identify provisions within existing law it believes should be revised or deleted. When such amendments are discussed in concept, the board also must consider whether alternative, non-legislative means are available to achieve the same results (e.g., via regulation, guidance document, internal policy, etc.).

Because several of DPOR’s boards may submit proposals in any given year, not all proposals will be included in the agency’s final list of submissions presented to the Administration. The Department’s Legislative Director is responsible for compiling all board-approved requests that have arisen during the year, prioritizing them along with the Department’s own legislative initiatives (which may affect agency-wide administrative functions, for instance, or general statutes involving all boards), and drafting statutory language for submission to the Attorney General’s Office to obtain assurance proposals are constitutional and in compliance with state and federal law.

Board Member Training LEGISLATIVE PROCESS Page 2 of 2 L All Board proposals must follow the procedures for introduction described above, as outlined by the Governor’s Chief of Staff. If the Governor elects not to include particular proposals in the Administration package, Board members must not seek outside entities to pursue legislation.

Legislation affecting your regulatory program may be introduced by an outside entity, such as a professional association or individual constituent. In such cases, DPOR will inform the Board of the bill and its analysis of the potential impact, and whether the Administration is taking a position on the proposal or seeking amendments. Frequently, the Governor’s Office will deliberately not take a specific position (pro or con) on a piece of legislation.

If the Governor does approve a legislative proposal to move forward, DPOR will work with the Administration to promote the bill’s passage. Board members may be requested by the agency to lend support through the legislative process.

Regardless of the subject matter of a particular bill, you may only express your opinion as an individual citizen–not as a Board member–to avoid speaking improperly on behalf of the Board or the Administration. As an appointee representing an executive branch agency, it is important you avoid any appearance of usurping the Governor’s prerogative to take policy positions.

Notify your Board Executive Director immediately if you receive inquiries from a General Assembly member or legislative staff regarding proposals affecting a board or the agency in general. Please feel free to contact your Board Executive Director or DPOR’s Legislative Director at any time with questions or concerns you may have about this process.

Board Member Training MEDIA RELATIONS Page 1 of 2 Last Updated – 7/27/23 Media Relations The Department recognizes the importance of providing accurate and timely information, as well as the value of pursuing a proactive, vibrant outreach strategy.

Therefore, the agency strives to respond promptly to information queries and also to seek out external communications opportunities.

As public servants, all DPOR staff and Board members must keep in mind that our work is available for public consideration. The agency operates in a culture of openness, meaning that our business—the people’s business—is conducted in a public forum and that we welcome public input, attention, and comment.

An inquiry from a reporter should not be seen as a threat, but as an excellent opportunity to tell the DPOR story. When we do talk with the public, either directly or through the media, it is important the agency message is clear, consistent, and knowledgeable—and so we ask staff and Board members to observe the following procedures.

Official agency messages related to DPOR or its regulatory boards are issued by the Communications Manager to broadcast and print media outlets and posted on the DPOR website and agency social media platforms (e.g., Facebook, YouTube).

As public figures, Board members may wish to review the Employee Use of Social Media Policy #100-03 for additional guidance about online communications. However, nothing governs or prevents your use of your own personal social media platforms where the content is unrelated to DPOR or your role as an appointee and board member.

At times, a licensee or regulatory program may become involved in a highly visible or controversial news event. DPOR will respond to media inquiries with information subject to public disclosure, in accordance with the agency’s Release of Information Policy #100-04. If a reporter requires technical expertise or requests to speak directly to a Board member, DPOR staff may provide whatever contact number you prefer for public dissemination.

Board members may speak with reporters if they choose, or refer media inquiries to the Communications Manager for response—whatever is your personal preference. In either case, staff and Board members must advise the Communications Manager or applicable Board Executive Director of media-related contacts they receive as soon as possible for situational awareness.

Board Member Training MEDIA RELATIONS Page 2 of 2 Last Updated 7/27/23 DPOR acknowledges open disciplinary cases once an investigation has determined sufficient evidence exists to establish probable cause of a violation. However, no specific information concerning a complaint under investigation by the Regulatory Programs and Compliance section or under review by a regulatory board should be released to the media or the public until the case is closed, pursuant to § 54.1-108.

Boar Member Training INDEX Page 1 of 1 Last Updated – 7/27/23 INDEX | Board Member Manual

This manual is designed to provide you with materials for reference during your term as a board member. This manual contains:  General DPOR Information o Timeline of Regulatory Programs o 2020-2022 Biennial Report o Organizational Chart  Roles & Responsibilities of Board Members o Code of Conduct  Board Meetings Overview  Laws + Regulations o Code of Virginia ♦Title 54.1 ♦State and Local Government Conflict of Interests Act (COIA) ♦Administrative Process Act (APA) ♦Freedom of Information Act (FOIA) o FOIA Council Informational Materials  Regulatory Review Process o DPB Flowcharts o Executive Directive o Executive Order  Application IFFs  Examinations Overview  Disciplinary Process  Financial Overview  Legislative Process  Media Relations 1980s & 90s

1983 | AUCTIONEERS

1984 | GEOLOGISTS 1988 | ASBESTOS WORKERS & CONTRACTORS

1989 | SOIL SCIENTISTS

1990 | CERTIFIED INTERIOR DESIGNERS

1990 | REAL ESTATE APPRAISERS

1991 | WASTE MANAGEMENT FACILITY OPERATORS 1992 | NAIL TECHNICIANS 1993 | DOC re-named Dept. of Professional & Occupational Regulation (DPOR)

1994 | TRADESMEN 1994 | LEAD ABATEMENT WORKERS & CONTRACTORS 1998 | CEMETERY COMPANIES & SALESPERSONS 1998 | PROFESSIONAL BOXING & WRESTLING

1998 | BACKFLOW PREVENTION DEVICE WORKERS 1783 BRANCH PILOTS 1920s, 30s & 40s ARCHITECTS, PROFESSIONAL ENGINEERS & LAND SURVEYORS | 1920

1924 | REAL ESTATE 1938 | CONTRACTORS 1948 | Dept. of Professional & Occupational Registration (DPO) created

TIMELINE OF

REGULATORY PROGRAMS Protecting Virginians by regulating certain professions and occupations dates back to the seventeenth century, when pilots navigating the Commonwealth's waterways gave "branches" to show a ship's captain they were capable of directing the ship to safe harbor. In 1670, Virginia’s House of Burgesses formalized the regulation of this profession, and in 1783, the House of Delegates created the Board for Branch Pilots.

OPTICIANS | 1954 BARBERS & COSMETOLOGISTS | 1962

POLYGRAPH EXAMINERS | 1968

HEARING AID SPECIALISTS | 1970 WATER & WASTEWATER WORKS OPERATORS | 1971 DPO re-named Dept. of Commerce (DOC) | 1977 dpor.virginia.gov 1950s, 60s & 70s

Landscape Architects; Certified Home Inspectors (1980); 2000s-2010s.

MOLD REMEDIATORS | 2011

DPOR PROVIDES LEADERSHIP AND SUPPORT TO 18 REGULATORY BOARDS + THE BOARD FOR PROFESSIONAL & OCCUPATIONAL REGULATION

TODAY

RESIDENTIAL BUILDING ENERGY ANALYSTS | 2011

TIME-SHARE RESELLER REGISTRATION | 2012

APPRAISAL MANAGEMENT COMPANIES | 2014

CNG AUTO MECHANICS | 2014 (DEREGULATED IN 2020)

AMATEUR MARTIAL ARTS | 2015

METH LAB REMEDIATION CONTRACTORS | 2016

FIRE SPRINKLER INSPECTORS | 2019

GAS-FITTERS | 2001

WAX TECHNICIANS | 2002 TATTOOISTS & BODY PIERCERS | 2004

WETLAND DELINEATORS | 2004

ELEVATOR MECHANICS | 2004

WATER WELL CONTRACTORS | 2007

ESTHETICIANS | 2007

COMMON INTEREST COMMUNITY MANAGERS | 2008

ONSITE SEWAGE SYSTEM PROFESSIONALS | 2009

Deregulated in 2012, licensed in 2017. DPOR protects public health, safety, welfare by licensing and enforcing standards for professions as statutes specify.

DPOR oversees 18 regulatory boards plus the Board for Professional & Occupational Regulation.

DPOR regulates over 300,000 individuals, businesses, and hundreds of license types through its boards.

Our Mission Our Vision The Department of Professional and Occupational Regulation will be the Commonwealth’s most effective agency, discovering creative ways to integrate regulatory efficiency with consumer protection via a commitment to exceptional customer service, efficient business processes, technological proficiency, and empowered employees.

What We Do DPOR issues professional credentials—licenses, certificates and registrations—in the least intrusive, least burdensome and most efficient way.

DPOR ensures minimum competency to practice safely; policy boards set standards based on education, experience, and exams, not to limit competition.

DPOR enforces conduct standards, investigates violations, and disciplines licensees via fines, probation, suspension, or revocation.

Unlicensed activity—practicing a profession without a required state license—is a misdemeanor criminal violation. Regulatory boards do not have jurisdiction over unlicensed individuals. In cases involving allegations of unlicensed practice, DPOR attempts to obtain compliance with licensing requirements or works with local law enforcement to assist in bringing criminal charges. Ultimately, unlicensed activity is outside the boards' legal jurisdiction and prosecution is at the discretion of local law enforcement officials.

As a non-general fund agency, DPOR is financed solely by revenue collected through fees paid by licensees. Fees are adjusted periodically, as required by the "Callahan Act" (§ 54.1-113 of the Code of Virginia), to ensure revenues are sufficient to cover expenses, but not excessive.

How We Do It DPOR strives to promote a positive business climate, ensure a competent workforce and provide exceptional customer service. As an executive branch agency under the Secretary of Labor, we support Virginia's economic vitality by helping qualified individuals start businesses and work in their chosen fields. We protect the public by verifying minimum competency, investigating complaints, and upholding professional compliance with state laws and regulations.

Why We Do It Our Boards Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects Asbestos, Lead & Home Inspectors Athlete Agents Auctioneers Barbers and Cosmetology Boxing, Martial Arts, and Professional Wrestling Branch Pilots Cemetery Common Interest Community Contractors Fair Housing Hearing Aid Specialists and Opticians Polygraph Examiners Professional and Occupational Regulation Real Estate Real Estate Appraisers Professional Soil Scientists, Wetland Professionals, and Geologists Tradesmen Waste Management Facility Operators Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals

Board Activity By the numbers Applications Renewals + Reinstatements 59,952 264,368 41,158 Name + Address Changes 210,393 Online Transactions Contractor Remedial Education Classes Contractors Who Attended Classes 37 915 Regulatory Actions With Public Comment Opportunities Public Hearings 41 4 Volunteer Board Members 229 Regulatory Boards 15 3 1 Advisory Boards Policy Boards Executive Office Jennifer Sayegh DPOR Director Kishore Thota Chief Deputy Director Demetrios "Mitch" Melis Policy and Legislative Affairs Manager Kerri O'Brien Communications and Digital Media Manager

The Policy and Legislative Affairs Manager coordinates the agency's legislative affairs, assist with constituent services, and acts as a liaison to the office of the Secretary of the Commonwealth in managing DPOR's 185 board appointments.

Appointed by the Governor, the Chief Deputy Director provides executive level support to the Director. The Chief Deputy also leads organization-wide innovation and transformation efforts to improve the agency's structure, performance, and technology.

Appointed by the Governor, the Director manages daily operations and ensures adaptability to internal and external priorities.

The Communications and Digital Media Manager is responsible for DPOR's external and internal communications. They support the mission of providing timely and accurate information to the public through both conventional and social media.

Core functions: Compliance, Investigations, Licensing.

THE COMPLIANCE AND

INVESTIGATIONS DIVISION

REVIEWS CONSUMER REPORTS

AGAINST LICENSEES TO

DETERMINE WHETHER DPOR IS

AUTHORIZED TO PROCESS THE

COMPLAINT.

DPOR ONLY PROCESSES

COMPLAINTS AGAINST

INDIVIDUALS OR BUSINESSES

THAT ARE SUBJECT TO THE

LAWS OR REGULATIONS OF ITS

REGULATORY BOARDS.

Stephen Kirschner/Deputy Director of Licensing & Regulatory Programs Tom Payne/Deputy Director of Compliance & Investigations

OUR 200 EMPLOYEES SERVE

MORE THAN 300,000

INDIVIDUALS AND BUSINESSES

ACROSS SEVERAL HUNDRED

LICENSE TYPES, RANGING

FROM ARCHITECTS AND

CONTRACTORS TO

COSMETOLOGISTS AND

PROFESSIONAL WRESTLERS.

APPLICANTS SEEKING

LICENSURE OR CERTIFICATION

IN REGULATED PROFESSIONS

MUST MEET CERTAIN ENTRY

QUALIFICATIONS. DPOR AND

ITS BOARDS ESTABLISH ENTRY

REQUIREMENTS.

Support Divisions Administrative and Financial Services responsible for accounting, budgeting, procurement, and operational needs of the agency and its boards.

Information Technology responsible for deploying, supporting current technology and planning future strategic initiatives.

Human Resources responsible for benefits, recruiting, hiring, retention, performance management, employee engagement, and workforce development.

Additional Programs Office of the Common Interest Community Ombudsman The Office of the Common Interest Community Ombudsman offers assistance and information to association members regarding the rights and processes available to them through their respective condominium, cooperative, or property owners' associations.

Virginia Fair Housing Office The Fair Housing Office is responsible for investigating housing discrimination complaints. Federal and state fair housing laws protect people from discrimination when trying to rent an apartment, buy a house, obtain a mortgage, or purchase homeowner's insurance.

Contractor Recovery Fund under the Virginia Contractor Transaction Recovery Act offers relief to consumers harmed by licensed residential contractors; funded solely by contractor assessments, not taxes.

Real Estate Recovery Fund under the Virginia Real Estate Transaction Recovery Act provides relief for consumers harmed by licensed real estate professionals; funded by licensee assessments only.

Common Interest Community Management Recovery Fund allows court-appointed receivers to recover fees, costs, and expenses due to community manager defalcation; funded by licensees and associations assessments.

On March 12, 2020, Governor Northam declared a COVID-19 emergency, authorizing agency heads to waive regulations; DPOR maintained services via modified practices and emergency actions.

Notable Efforts :

• Maintained operations during lockdown periods.
• Converted call center to virtual and digitized incoming mail for remote license processing.
• Developed processes enabling most employees to telework.
• Waived license expiration dates for 15 months, allowing those in hardship to work without license fees.
• Waived requirements enabling professions to practice virtually during lockdowns.
• Executed waivers allowing schools and trainers to stay open via online instruction.
• Modified meetings for social distancing, held over 25 virtual meetings with remote access.
• Expedited license reinstatements to qualify individuals for unemployment.

DPOR's Biennial Summary In 2018, the Joint Legislative Audit and Review Commission (JLARC) studied the operations and performance of the Department of Professional and Occupational Regulation (DPOR). The study included a review of the department’s staffing and organization, its processing of occupational licenses, and enforcement of occupational rules. The final report included 36 recommendations for legislative and executive action. Subsequently in May 2019, DPOR engaged the Performance Management Group (PMG) of VCU's Wilder School of Government and Public Affairs to complete an organizational assessment of the agency.

While these assessments were conducted in the previous biennium, they remain a relevant roadmap and strategy to improve the organization and to better fulfill its mission of applying the least restrictive occupational licensing while adequately protecting the public. Current DPOR leadership has worked diligently to implement the assessments' recommendations.

Pandemic Response DPOR's Biennial Summary During the state of emergency, DPOR did see a slight drop in its licensure count. With the launch of the Rebuild! VA recovery fund, the agency contacted over 4,000 small businesses to announce the small business grant program. DPOR provided information about the available $10,000 grants. In 2021, licensure numbers began to tick up again and have continued an upward trajectory.

In December 2020, BPOR issued a report on regulating certain professions, including soil scientists, waste operators, landscape architects, and others, recommending continued regulation and ongoing evaluation.

Pandemic Recovery BPOR Advisory Board Study 2022 Initiating Transformation In January 2022, after the inauguration of Governor Glenn Youngkin, public services and business began to return to normal as Virginia re-opened. On January 15, 2022 Governor Glenn Youngkin appointed Demetrios "Mitch" Melis Director of DPOR. DPOR immediately began taking steps to implement Governor Youngkin's initiatives to re-build Virginia's workforce, reduce regulatory burdens, improve customer service and ensure government meets the needs of the citizens it serves.

Organizational Restructuring Created a separate division solely to oversee licensing and provide support to DPOR Boards Realigned IT Director position to report directly to the agency director Established three positions to focus on legislative, regulatory, and public affairs respectively Focusing on Core Mission Services Assembled a cross-functional "tiger team" to address critical staffing shortages Recruited and filled 30 previously vacant full-time positions in Q3 and Q4 of FY22 Reduced recruiting time by 33% Change Starts with People DPOR's Workforce Building a Culture of Excellence Initiated employee engagement, recognition, and leadership programs Utilized cross-functional teams to foster collaboration and transcend silos Implemented agile project management and continuous process improvement methodologies Cultivating and Empowering Success 2022 Initiating Transformation Continued Today, citizens expect government agencies to provide a modern technology-based and user-friendly experience rivaling the private sector.

Through digital transformation, DPOR will improve the citizen and customer experience while also delivering transparency and predictability to government services.

Enterprise Technology Modernization Hired technology consulting firm to assess business needs and recommend technology solutions to replace legacy licensing system End-goal of providing fully digital citizen-centered licensing experience Emphasis will be placed on a rapid and iterative implementation and deployment to provide immediate value to customers Empowering Possibilities Established a dedicated office to serve as a constant internal transformation resource OPI empowers employees to continuously improve the organization's performance and challenge the status quo A Catalyst for Continuous Improvement and Transformation Office of Performance & Innovation (OPI) Internal Support Operations Emphasis placed on the importance of providing high quality internal support services to DPOR's external customer facing teams DPOR's executive management team meets weekly to ensure high quality internal service delivery from Human Resources, Administration and Financial Services, and Information Technology Providing Excellence in Internal Service Delivery to Improve External Customer Service Licensing Working to issue licenses, certifications, registrations, and other authorizations to qualified individuals and businesses in an efficient manner.

As of June 30, 2022, total regulants were 320,971. Licenses dipped in 2020 during COVID but rebounded in 2021-2022.

DPOR continues to grow in issued licenses, certificates, and registrations.

Licenses issued: 312,400; 81% of applications referred for IFF were approved. Less than 1% needed review for criminal, financial, or disciplinary issues, per VA law.

IFF is a due process to gather facts; applicants or licensees present evidence. Approval rates: 89%, 73%, 80%. Denials mainly for experience, discipline, or false info. Criminal history denials: 0.02%-0.07%. Compliance investigates violations and enforces standards.

Disciplinary Cases By The Numbers 296 Disciplinary IFFs Due process administrative proceedings that give notice of potential disciplinary action and an opportunity to respond 434 Prima Facie Cases Files forwarded directly to the board without the need for a disciplinary IFF, if respondent agrees to waive the proceeding or does not respond to the IFF Notice 617 Final Orders Board orders resulting from disciplinary IFFs and prima facie case files 843 Consent Orders Voluntary, negotiated settlement agreements that bypass a disciplinary IFF and go directly to the board for ratification Complaint Summary 0 1,000 2,000 3,000 4,000 Disciplinary Unlicensed Fair Housing Other* *Not all complaints received involve violations of laws or regulations under DPOR jurisdiction. 3624 866 638 579 Disciplinary Complaints By Board Contractors 47% All others 24% Real Estate 20% Barbers & Cosmetology 9% Fair Housing Complaints By Protected Class Disability 33% Race 24% Source of Funds

1. 8% Familial Status 7% Sex 7% National Origin 5% Color 4% Elderliness 3% Sexual Orientation 2% Complaints Received

FY21: 257 FY22: 361 Monetary Relief To Complainants $449,625.17

Settlements: 71 cases, $239,467 via Common Interest Community Fund. DPOR cannot require refunds or remedies; unlicensed activity is a misdemeanor.

Civil or criminal court is often a consumer's only recourse for private remedy. DPOR administers recovery funds for eligible consumers who are unable to collect on a judgment against a contractor or real estate licensee. We also work with local law enforcement and prosecutors to combat unlicensed activity and fraud.

Real Estate Recovery Fund Unlicensed Activity

$938,400/FY 2021 $657,750 /FY 2022 104 Claim Payments 91 Prima Facie Cases 13 IFF Conferences $ 1 Claim Payment $ 159 Criminal Warrants Obtained by DPOR

Court-Ordered restitution in DPOR- Assisted Criminal Prosecutions $19,551 2 Claim Payments 0 Prima Facie Cases 2 IFF Conferences $1.6 Million $178,689 $239,467 Immediately upon assuming office in January 2022, Governor Glenn Youngkin issued Executive Directive Number One to reduce the regulatory burden on businesses and citizens across the Commonwealth. The order builds upon House Bill 883 which established a regulatory reduction pilot program with guideposts of 25 percent regulatory reductions across the Executive Branch. DPOR was one of two agencies selected to take part in the pilot program which concluded in 2021 and reached the reduction goal primarily through streamlining.

Executive Directive One: Regulatory Reform—Purpose of regulation?

Who does the regulation ultimately protect?

Does the regulation protect public health, safety, or welfare from a recognizable harm?

Is there a less restrictive way to accomplish this protection?

Is the regulation still relevant and necessary?

DPOR Boards actively review regulations line-by-line to reduce burdens on businesses and individuals.

All regulatory changes follow the Virginia Administrative Process Act, with three review stages and public comment, emphasizing transparency and stakeholder input.

In 2021, HJR 561 directed evaluating construction trade licensing; DPOR formed the Trade Exploration Work Group, which adopted broadly supported proposals after review.

In 2021, SB 1410 expanded housing protections, prohibiting discrimination in sales, rentals, and related transactions, including loans and real estate services. In 2022, SB 693 directed the Common Interest Community Board to review recording submissions; the Board found it unfeasible and opposed changes. In 2022, SB 740 created a work group to review laws on structural standards and reserves; two meetings held, three upcoming in various regions.

Notice of Final Adverse Decision; Audio and Video Recordings Standards for Structural Integrity and Reserves for Capital Components Financial Insight In 2019, the legislature directed DPOR to place its overall fund balance in reserve, to offset future costs associated with organizational restructuring and replacement of the agency's information technology systems. The reserve funds may also be applied to cover ongoing operational expenses of the Department and its boards.

In Cumulative Fund Balance over biennium

The reserve fund addresses JLARC's recommendation to reduce the boards' cumulative fund balance.

DPOR, a non-general fund agency, is funded by license fees, not taxes.

Fees are low, set per the Administrative Process Act's public participation and review requirements.

As of June 30, 2022, reserve and unencumbered fund balances totaled $19 million.

1. 7% $22,268,683 $21,450,546 End of FY 20 End of FY 22 Million $2.5

REGULATORY BOARD

REVENUES

EXPENDITURES

PUBLIC

MEETINGS

EXAMINATIONS

ADMINISTERED

COMPLAINTS

RECEIVED

REGULANT POPULATION (AS OF 6/30/22) Architects, Professional Engineers, Land Surveyors, Certied Interior Designers & Landscape Architects $3,604,762 $3,746,455 20 4,824 111 45,666 Asbestos, Lead & Home Inspectors $581,219 $558,274 11 218 87 5,962 Athlete Agents $74,600 $97 0 N/A 0 61 Auctioneers $75,759 $103,934 4 85 27 1,245 Barbers & Cosmetology $8,226,428 $7,823,996 19 18,555 500 74,659 Boxing, Martial Arts & Professional Wrestling $179,513 $211,944 4 N/A 5 701 Branch Pilots $5,040 $6,503 14 12 3 39 Cemetery $95,140 $74,233 4 N/A 58 1,076 Common Interest Communities $1,097,966 $1,554,962 10 N/A 535 7,823 Contractors $15,892,251 $16,054,125 32 41,711 2,648 87,870 Fair Housing $62,005 $62,005 7 N/A 635 2,069 Hearing Aid Specialists & Opticians $226,725 $271,261 6 441 13 2,664 Polygraph Examiners $24,760 $23,068 2 38 2 341 Professional Soil Scientists, Wetland Professionals & Geologists $90,365 $114,623 3 129 1 1,190 Real Estate $9,170,430 $9,862,264 37 30,750 884 78,980 Real Estate Appraisers $602,857 $375,084 6 237 101 4,162 Waste Management Facility Operators $39,150 $53,253 4 177 3 612 Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals $610,719 $576,575 11 2,879 56 5,851

TOTALS $40,569,689 $41,472,646 194 100,056 5,674 320,971 BOARD STATISTICS Milestones and Moments Virginia Fair Housing 50th Anniversary Board Member Training Conference Virginia’s Fair Housing Office at the Department of Professional and Occupational Regulation celebrated its 50th anniversary. The office was created with the passage of Virginia's Fair Housing Law in 1972, just four years after the passage of the federal Fair Housing Act in 1968.

For half a century, Virginia's Fair Housing Office has worked to ensure that buyers, sellers, tenants, landlords and all citizens in the Commonwealth are educated about Virginia's Fair Housing Law.

The Virginia Fair Housing Office remains committed to working with private and public partners to identify housing barriers and provide equal opportunities for thousands of Virginians to live in affordable housing.

In October 2022, DPOR hosted over 130 board members, guests, and staff for a two-day training in Williamsburg.

The event included a welcome from Secretary of the Commonwealth Kay Coles James and Deputy Secretary Anthony Reedy. Former Secretary of Commerce and Trade James Cheng delivered the keynote address.

Secretary of Labor George Slater, Department of Labor and Industry Commissioner Gary Pan, and DPOR Director Mitch Melis led a panel discussing workforce development. Other conference sessions included: New Board Member Forum Licensing Trends Roundtable Discussions Replacing Red Tape with Green Tape: Regulatory Reduction and Public Protection Robert’s Rules of Order Overview of Agency Structure and Complaint Process Panel Discussion with Experienced Board Members Overview of the Freedom of Information Act

DPOR DIRECTOR RUFUS STEWART F i n a n c e D i r e c t o r

AMIRA HADID CHIDI EZE O p e r a t i o n D i r e c t o r

OLIVIA WILSON

TEDDY YU

JULIANA SILVA

CIA RODRIGUEZ

ESTELLE DARCY

BAILEY DUPONT

AARON LOEB

O R G A N I Z A T I O N A L C H A R T

CHIEF DEPUTY

DIRECTOR COMMUNICATIONS &

DIGITAL MEDIA

MANAGER POLICY &

LEGISLATIVE AFFAIRS

MANAGER LICENSING &

REGULATORY

PROGRAMS

DEPUTY DIRECTOR

HUMAN RESOURCES

DIRECTOR COMPLIANCE &

INVESTIGATIONS

DEPUTY DIRECTOR

TEDDY YU

INVESTIGATIONS

COMPLAINT ANALYSIS & RESOLUTION

COMMON INTEREST

COMMUNITY

OMBUDSMAN

ADJUDICATION

POST ADJUDICATION

LICENSING

EXECUTIVE

ASSISTANT

BCHOP

APELS/BMAW

CWA

REAL ESTATE ADMINISTRATIVE &

FINANCIAL

SERVICES DIRECTOR BUDGET &

FINANCIAL

SERVICES

ADMINISTRATIVE

SERVICES

INFORMATION

TECHNOLOGY

DIRECTOR

INFORMATION

MANAGEMENT

VIRGINIA

FAIR HOUSING

OFFICE

OFFICE OF

PERFORMANCE AND

INNOVATION

ORGANIZATIONAL CHART

JUNE 2023

CONTRACTORS EXAMINATIONS Board Member Training ROLES + RESPONSIBILITIES Page 1 of 2

The primary responsibility of a regulatory board is to protect the public by establishing entry requirements to ensure minimum competence and standards of conduct for licensees. These requirements and standards are established in regulation.

The Board exercises its authority by acting through motions at properly noticed meetings. Individual members do not have authority to act alone.

As a Board Member you should:  Attend all meetings, except in the case of emergency. Most boards schedule meetings at least a year in advance. Your attendance is critical to ensuring the presence of a quorum for all actions. If you cannot attend, let your Board Executive Director know in advance. Failure to have a quorum could result in last-minute cancellation of a meeting. The result could be respondents, applicants, fellow board members, and other interested persons traveling a considerable distance and incurring travel costs only to arrive and find out that a meeting cannot be held due to lack of a quorum.  Read all agenda materials prior to a meeting. You are not eligible to vote on case decisions involving disciplinary action and granting of a license if you have not read the complete record.  Handle all application and complaint files with confidentiality. Do not discuss Board business with friends and family. Do not discuss board business with fellow Board members outside of a properly noticed meeting, including through the use of e-mail or text message. Do not discuss cases with applicants or respondents outside of the Informal Fact-Finding Conference or Board meeting.  Review all board business to determine whether you have a potential conflict of interest. Personal, business, and family relationships may result in a conflict of interest. Some conflicts will require you to disclose your relationship with the licensee or applicant; other conflicts may require you to remove yourself from voting on a case. You are required to complete a conflict of interest statement at every Informal Fact-Finding Conference and Board meeting.

Board Member Training ROLES + RESPONSIBILITIES Page 2 of 2 L  Refer investigative matters to Compliance and Investigations. The Code of Virginia gives DPOR investigators the authority to investigate. The role of a Board member is to participate in the case decision making process at Informal Fact-Finding Conferences and Board Meetings.  Submit all travel vouchers promptly. Staff will assist you with the preparation of a travel voucher at each of your meetings. Please bring original receipts with you so that all reimbursements can be processed in a timely manner.  Contact your Board Executive Director when you receive a press inquiry. Open investigations should not be discussed with the press. Information regarding press contacts will be shared with the DPOR Communications Director who will coordinate contacts and provide follow-up if appropriate.  Familiarize yourself with relevant provisions of the Code of Virginia. o Refer to Section 5 April 27, 2015 Page 1 of 2 Virginia Department of Professional and Occupational Regulation Board Member Code of Conduct This Code of Conduct is a set of behavioral expectations intended to assure the public that the board and its members uphold the highest level of integrity and ethical standards in preserving the health, safety, and welfare of the public. Board members and staff will conduct themselves in a manner that is respectful of the process and all participants, including board members, staff, applicants, regulants, respondents, witnesses, participants, complainants, and the public during conferences, hearings, and meetings.

Guidelines and protocols, along with compliance with regulations, statutes, and procedures, underpin public trust in the board's regulatory program.

1. Board membership is a privilege to serve the public.
2. Board members shall disclose actual or perceived conflicts of interest and recuse themselves when appropriate.
3. Board members shall avoid relationships or activities that may influence their official duties, directly or indirectly.
4. Board members shall refrain from contact with applicants, respondents, witnesses, or legal counsel regarding pending matters before the board.
5. Board members shall maintain confidentiality and safeguard all confidential materials.
6. Board members shall not discuss or conduct board business outside properly noticed meetings.
7. Board members shall not represent the board or participate in board activities while impaired.

April 27, 2015 Page 2 of 2

1. Board members shall refrain from actions that expose the board to unnecessary legal, ethical, or financial risks.
2. Board members shall support decisions regardless of personal opinion, maintain appropriate boundaries, act with honesty and integrity, be punctual, review materials in advance, and alert staff to conflicts.

Members shall maintain professional, respectful demeanor; treat all fairly regardless of race, gender, ethnicity, or disability; refrain from personal opinions not based on record evidence; avoid repeating questions unless necessary.

Silence personal devices; inform staff of lateness or absence; be fair, impartial, and consistent.

Ensure orderly conduct of meetings, hearings, or conferences.

Protect due process rights.

Board statutes specify quorum requirements; a quorum is necessary for action. Your attendance is critical.

Notify your Executive Director in advance if unable to attend.

Imposing sanctions requires a majority vote of qualified voters.

Members presiding over conferences or with conflicts are not qualified to vote. Absent members are qualified unless disqualified. Quorum and qualified majority are essential; attendance is critical.

Boards operate by motion and vote; chair usually votes. Robert’s Rules of Order are a general guide, not formally adopted.

Agenda begins with a public comment period.

Individuals may address the Board on non-agenda issues for five minutes. No response required; issues may be reviewed later.

Second agenda item: adopt minutes from previous meetings. Corrections should only address accuracy. Discuss items by requesting addition to agenda.

Most agendas focus on disciplinary and licensing cases. Participants may speak for five minutes; participants include those involved in the conference.

Board Member Training BOARD MEETINGS Page 2 of 2

The Administrative Process Act (APA) requires that participants be given an opportunity to address the Board; however, the APA prohibits the submission of additional evidence at the Board meeting. The Board’s decision is to be based on the record from the Informal Fact-Finding Conference. If you have a question of a participant, your question should be clarifying in nature only; you should not elicit new evidence.

Remaining agenda items include regulatory reviews and issue briefings.

Follow the agenda for productive, efficient meetings and organized minutes. Public can better follow actions and plan attendance.

FOIA governs most aspects of Board meetings.

FOIA requires public notice via the Register, Town Hall, and Commonwealth Calendar.

FOIA prohibits discussing Board business outside noticed meetings.

Meetings must be open, with exceptions for legal advice, examination issues, or disciplinary deliberations in closed session.

DPOR promotes open government; closed sessions require a motion citing legal basis, listing non-members present, and a certification upon return confirming only listed matters were discussed.

Minutes must be recorded; drafts posted within 10 days, final within 3 days.

Board Member Training LAWS + REGULATIONS Page 1 of 1 L Laws + Regulations Laws (statutes) adopted by the General Assembly are in the Virginia Code. A list relevant to our boards is on the next page. The full Code is online at http://law.lis.virginia.gov/vacode.

Each board-specific statute details composition, quorum, licensure requirements, exemptions, etc.

Board regulations are promulgated under the Administrative Process Act and compiled in the Virginia Administrative Code (VAC), accessible at http://law.lis.virginia.gov/admincode.

All regulations require statutory authorization. Section 6 reviews the regulatory process.

Virginia Law/Statute § 54.1-XXXX and Administrative Code

18 VAC XX-YY-ZZZ

• Adopted by the General Assembly and approved the Governor
• Only enacted, amended, or repealed by legislation.
• Statutory revisions occur only during annual General Assembly sessions beginning in January.
• Authorization requires enabling legislation by the General Assembly.
• Adopted by a state government agency (board)
• Can be enacted, amended, and repealed by agency (board)
• Regulatory review can be initiated anytime; statutes governing DPOR and Boards are under Title 54.1 of the Code of Virginia, with chapters hyperlinked below.

Each Board webpage (www.dpor.virginia.gov) links to statutes and regulations.

Chapters 1-3 of Title 54.1 apply to the Department and all Boards.

Chapters 1-3 are General Provisions and the Department; remaining chapters are program-specific.

Chapters 4-23 cover specific professions and topics; statutes are on page 2.

In addition, you are required by statute to become familiar with the State and Local Government Conflict of Interests Act (COIA) upon your appointment to the Board, and to review the Act each year. (Title 2.2, Chapter 31, §§ 2.2-3100 thru 2.2-3131) The Administrative Process Act (APA) governs the way Boards promulgate regulations and make case decisions. (Title 2.2, Chapter 40, §§ 2.2-4000 thru 2.2-4033) The Freedom of Information Act (FOIA) governs most aspects of your meetings and also governs the Department’s Release of Information Policy. (Title 2.2, Chapter 37, §§

1. Members of some Boards must know provisions specific to their area; the Executive Director will review these.

Virginia FOIA Advisory Council 1: Access to Public Meetings under the

VIRGINIA FREEDOM OF

FOIA provides procedural guidance for open and closed meetings, including notice posting, certification, motions, and exemptions, detailed in Appendices A and B.

II. OPEN MEETINGS GENERALLY

WHAT IS A MEETING UNDER FOIA?

A “meeting” includes work sessions, physical or virtual, with up to three members or a quorum, where public business is discussed or transacted.

WHAT IS NOT A MEETING UNDER FOIA?

1. Gathering of public body employees;
2. Gathering or attendance of two or more public body members at a place or event not called or arranged to discuss or transact public business, and no business is discussed; or
3. Members attending public forums, candidate events, or debates to inform voters, not to transact or discuss public business, even if performing official duties.

AO-06-02, AO-13-03, AO-15-04, AO-20-04, AO-11-05, AO-02-06, AO-10-07, AO-12-08, AO-03-09, AO-05-11,

AO-07-14.

VIRGINIA FOIA ADVISORY COUNCIL 2 individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.2

MAY A PUBLIC BODY CONDUCT A MEETING BY CONFERENCE CALL OR OTHER

ELECTRONIC METHOD?

Before July 1, 2007, local bodies couldn't meet remotely; since then, all public bodies may do so under certain conditions.

IF IT IS A MEETING, WHAT DOES FOIA REQUIRE?

If it is a meeting under FOIA, the law requires that:

1. Notice of the meeting be given;
2. The meeting must be open to the public; and
3. Minutes must be recorded and preserved.

WHAT IS SUFFICIENT NOTICE?

Notice must include date, time, and location.

WHERE TO POST THE NOTICE?

As of July 1, 2017, FOIA requires that all public bodies post notices in three locations:

1. On its official public government website, if any;
2. In a prominent public location at which notices are regularly posted; and
3. At the clerk's office or, if none, at the chief administrator's office.

State bodies must post notices on a central electronic calendar; other bodies are encouraged to do so.

WHO ELSE IS ENTITLED TO NOTICE OF MEETINGS?

Persons filing a yearly request are entitled to meeting notices, which may be sent electronically if no objection. References provided.

Notice requests must include name, address, zip, phone, email, and organization if any.

WHEN TO POST THE NOTICE?

Regular meeting notices must be posted at least three days prior.

For special, emergency, or continued meetings: Notice, reasonable under the circumstance, of special, emergency, or continued meetings must be given at the same time as the notice provided members of the public body conducting the meeting. FOIA defines an emergency as “an unforeseen circumstance rendering the notice required by FOIA impossible or impracticable and which circumstance requires immediate action.” 7

MAY THE PUBLIC OR MEDIA RECORD THE MEETING?

Anyone may record or photograph open meetings.

MAY A PUBLIC BODY RESTRICT THE USE OF RECORDING DEVICES?

Yes. The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming, or recording a meeting to prevent interference with the proceedings. However, public bodies are not permitted to conduct meetings required to be open in any building or facility where such recording devices are prohibited.9

WHEN MUST AGENDA MATERIALS BE AVAILABLE TO THE PUBLIC/MEDIA?

Proposed agendas and materials must be publicly available when provided to members; agendas for state bodies must state if public comment is accepted and when.

ARE THERE ANY EXCEPTIONS FOR TAKING MINUTES?

Minutes are required only for open meetings; not for closed or deliberations.

1. Standing and other committees of the General Assembly;
2. Legislative interim study commissions and committees, including the Virginia Code Commission; 6 Statutory reference: § 2.2-3707(E). FOIA Council Opinions AO-3-01, AO-13-03, AO-23-03, AO-08-07. 7 Statutory references: §§ 2.2-3701, 2.2-3707(C),(D). FOIA Council Opinions AO-13-00, AO-3-01, AO-18-01, AO- 06-02, AO-08-07. 8 Statutory reference: § 2.2-3707(G). FOIA Council Opinions AO-03-03, AO-10-05. 9 Statutory reference: § 2.2-3707(G). FOIA Council Opinions AO-03-03, AO-10-05. 10 Statutory reference: § 2.2-3707(F). FOIA Council Opinions AO-3-01, AO-35-01, AO-23-03, AO-05-12.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 4

1. Study committees or commissions appointed by the Governor; or
2. Committees or subcommittees appointed by local governing bodies or school boards, unless the majority are members of the governing body.

WHAT DO MINUTES REQUIRE?

Open meeting minutes must include date, time, location, members present/absent, discussion summary, votes, and motions to close and certifications.

ARE MINUTES PUBLIC RECORDS UNDER FOIA?

Minutes, drafts, and recordings of open meetings are public records and must be released upon request.

IS THERE AN AFFIRMATIVE OBLIGATION TO POST MINUTES?

This applies only to state executive agencies.

All boards, commissions, councils, and other public bodies created in the executive branch of state government and subject to FOIA must post minutes of their meetings on their official public government website and on a central electronic calendar maintained by the Commonwealth. Draft minutes of meetings must be posted as soon as possible but no later than 10 working days after the conclusion of the meeting. Final approved meeting minutes must be posted within three working days of final approval of the minutes. 14

MUST ALL PUBLIC BODY VOTES OCCUR IN OPEN MEETINGS?

All votes on public business must be recorded in open meetings.

A public body may not vote by secret or written ballot.15

IS POLLING PUBLIC BODY MEMBERS A FOIA VIOLATION?

No. Nothing in FOIA prohibits separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member’s position with respect to the transaction of public business. Such contact may be done in person, by telephone, or by electronic communication, provided the contact is done on a basis that does not constitute a meeting as defined in FOIA.16 11 Statutory reference: § 2.2-3707(H). FOIA Council Opinion AO-08-07. 12 Statutory references: §§ 2.2-3707(H), 2.2-3712(A),(D). FOIA Council Opinions AO-25-04, AO-01-06, AO-05-15. 13 Statutory reference: § 2.2-3707(H). FOIA Council Opinions AO-13-03, AO-25-04. 14 Statutory reference: § 2.2-3707.1. 15 Statutory reference: § 2.2-3710(A). FOIA Council Opinions AO-9-00, AO-15-02, AO-01-03, AO-13-03, AO-01- 05, AO-05-09, AO-07-09, AO-02-17. 16 Statutory reference: § 2.2-3710(B). FOIA Council Opinions AO-08-02, AO-15-02, AO-01-03, AO-07-09.

VIRGINIA FOIA ADVISORY COUNCIL 5

III. CLOSED MEETING PROCEDURES

WHAT MUST A PUBLIC BODY DO TO CLOSE A MEETING?

In order to conduct a closed meeting, the public body must take an affirmative recorded vote in an open meeting approving a motion that:

1. Identifies the subject matter for the closed meeting;
2. States the purpose of the closed meeting; and
3. References the applicable exemption from open meeting requirements.

The motion must be set forth in detail in the minutes of the open meeting.

A general reference to the provisions of FOIA, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting is not sufficient to satisfy the requirements for holding a closed meeting.17

WHAT MAY BE DISCUSSED DURING A CLOSED MEETING?

A public body holding a closed meeting must restrict its discussions during the closed meeting to those matters specifically exempted from the provisions of FOIA and identified in the motion.18

AT THE END OF A CLOSED MEETING, WHAT DOES THE PUBLIC BODY HAVE TO

DO?

At the conclusion of any closed meeting, the public body holding the meeting must immediately reconvene in an open meeting and take a roll call or other recorded vote certifying that to the best of each member’s knowledge:

1. Only exempted public business matters under this chapter, and
2. Only matters identified in the motion that convened the closed meeting were considered by the public body.

The vote must be included in the minutes of the open meeting.

Any member of the public body who believes that there was a departure from the requirements of (1) or (2) above must state so prior to the vote and indicate the substance of the departure that, in his judgment, has taken place. This statement must also be recorded in the minutes of the open meeting.19 17 Statutory reference: § 2.2-3712(A). FOIA Council Opinions AO-8-00, AO-19-00, AO-14-01, AO-38-01, AO-45-

01, AO-08-02, AO-17-02, AO-02-04, AO-24-04, AO-01-05, AO-06-07, AO-13-07, AO-04-08, AO-13-09, AO-03- 13, AO-02-16, AO-03-17. 18 Statutory reference: § 2.2-3712(C). FOIA Council Opinions AO-8-00, AO-13-07, AO-13-09, AO-02-16. 19 Statutory references: § 2.2-3712(D),(E). FOIA Council Opinions AO-8-00, AO-17-02, AO-02-04, AO-06-07,

AO-04-08, AO-02-16, AO-03-17.

VIRGINIA FOIA ADVISORY COUNCIL 6

WHEN DO CLOSED MEETING DECISIONS BECOME OFFICIAL?

ACTIONS OF THE PUBLIC BODY?

Decisions become official when the public body reconvenes in an open meeting, reasonably identifies the substance of the decision, and takes a recorded vote on the resolution, ordinance, rule, contract, regulation, or motion agreed to in the closed meeting. Otherwise, no resolution, ordinance, rule, contract, regulation, or motion adopted, passed, or agreed to in the closed meeting is effective.

Public officers improperly selected due to the failure of the public body to comply with the other provisions of § 2.2-3711 will become de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.20

CAN A CLOSED MEETING OCCUR WITHOUT AN OPEN MEETING?

MEETING?

No. A closed meeting can take place only within the context of an open meeting, even if the closed meeting is the only agenda item. A closed meeting motion must be made and voted upon in an open meeting. After the conclusion of the closed meeting, the members of the public body must reconvene in an open meeting to vote to certify that they restricted their discussion during the closed meeting to those matters specifically exempted from the provisions of FOIA and identified in the motion. Because votes must be taken at open meetings, public bodies must convene in open meeting both before and after any closed meeting.21 # 20 Statutory references: §§ 2.2-3711(B),(C), 2.2-3712(H). FOIA Council Opinions AO-23-01, AO-38-01, AO-15-02, AO-01-03, AO-13-03, AO-24-04, AO-01-05, AO-13-09. 21 FOIA Council Opinions AO-02-04, AO-06-07, AO-08-07, AO-13-09, AO-02-10.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 7 APPENDIX A How To Make A Motion To Convene A Closed Meeting The Requirements Section 2.2-3712(A) states that [n]o closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements. (Emphasis added.) FOIA Council opinions have held that a motion that lacks any of these three elements is insufficient under the law and would constitute a procedural violation.22 Here’s a step-by-step look at how to put together a motion that meets all three requirements:

1. Identify the subject matter:  The identification of the subject goes beyond a general reference to the exemption, and provides the public with information as to specifically why the closed meeting will be held. The subject matter describes the particular fact, scenario, or circumstances that will be discussed by the public body during the closed meeting.  The specificity required for identification of the subject must be determined on a case-by-case basis. It involves balancing FOIA’s policy of affording citizens every opportunity to witness the operations of government with the need of the public body to hold certain discussions in private. The identification of the subject need not be so specific as to defeat the reason for holding a closed meeting in the first place.  Examples of identification of the subject: discussion of candidates for the appointment of a new city manager; discussion of the appropriate disciplinary action to take against a high school student for violation of school policy; discussion of probable litigation relating to highway construction.23
2. State the purpose:  The purpose refers to the general, statutorily allowed meeting exemptions set forth at § 2.2-3711(A). Section 2.2-3711(A) states that public bodies may only hold closed meetings for the following purposes (emphasis added) and then sets forth the exemptions.  Examples of purposes: personnel matters; student admissions or discipline; consultation with legal counsel.
3. Make specific reference to the applicable exemption:  All of the meetings exemptions can be found at § 2.2-3711(A). It is not enough to cite this general Code provision, because § 2.2-3711(A) includes 44 different exemptions.

Instead, the citation must be as specific as possible. 22 FOIA Advisory Opinions AO-14-01, AO-38-01, AO-45-01, AO-08-02, AO-24-04, AO-01-05, AO-06-07, AO-04- 08, AO-13-09, AO-02-10, AO-03-13, AO-02-16. 23 Example of probable litigation taken from FOIA Advisory Opinion AO-14-01.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 8  Examples of specific Code references: § 2.2-3711(A)(1); § 2.2-3711(A)(2); § 2.2-

3711(A)(7).

Putting It All Together Based upon the analysis above, here are three examples of motions to go into closed session that satisfy the minimum requirements of § 2.2-2712(A). It is always appropriate to include more information, and any motion should be tailored with additional facts describing the particular scenario being addressed by the public body.

1. I move that (public body) convene in closed session to discuss city manager candidates under § 2.2-3711(A)(1).
2. I move that (public body) hold a closed session to discuss high school disciplinary action under § 2.2-3711(A)(2).
3. I move that (public body) meet with legal counsel on highway litigation under § 2.2-3711(A)(7).

Remember, the appropriateness of any given motion is fact-based, and no “fill-in-the-blank” model motion will work in all situations. When drafting a motion, go down the checklist and ensure that you have included all three elements. Keep in mind the balancing required to keep citizens informed of the workings of a public body while maintaining the integrity of the closed session. Please do not hesitate to contact the FOIA Council to discuss these requirements or the sufficiency of a specific motion. #

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 9 APPENDIX B Meeting Exemptions Of General Applicability As of July 2011, FOIA contains more than 40 open meeting exemptions. Although many of these exemptions apply to specific agencies or to very content-specific discussions, there are several open meeting exemptions of general applicability that may be used by virtually all public bodies.

The open meeting exemptions of general applicability are listed below, with the corresponding statutory citation, as a reference tool. § 2.2-3711(A)(1): Personnel. Provides an exemption for: Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board. Nothing in this subdivision, however, shall be construed to authorize a closed meeting by a local governing body or an elected school board to discuss compensation matters that affect the membership of such body or board collectively. § 2.2-3711(A)(2): Students. Provides an exemption for: Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any public institution of higher education in the Commonwealth or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board. § 2.2-3711(A)(3): Acquisition & disposition of property. Provides an exemption for: Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. § 2.2-3711(A)(4): Privacy. Provides an exemption for: The protection of the privacy of individuals in personal matters not related to public business. § 2.2-3711(A)(5): Prospective business. Provides an exemption for: Discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business’ or industry’s interest in locating or expanding its facilities in the community.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 10 § 2.2-3711(A)(6): Investment of public funds. Provides an exemption for: Discussion or consideration of the investment of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected. § 2.2-3711(A)(7): Legal advice or briefings regarding actual or probable litigation. Provides an exemption for: Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body.

For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter. § 2.2-3711(A)(8): Legal advice regarding specific legal matters. Provides an exemption for: Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter. § 2.2-3711(A)(12): Tests & exams. Provides an exemption for: Discussion or consideration of tests, examinations, or other records excluded from this chapter pursuant to subdivision 4 of § 2.2-3705.1. § 2.2-3711(A)(16): Medical. Provides an exemption for: Discussion or consideration of medical and mental health records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.5. § 2.2-3711(A)(19): Public safety. Provides an exemption for: Discussion of plans to protect public safety as it relates to terrorist activity or specific cybersecurity threats or vulnerabilities and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such matters or a related threat to public safety; discussion of information subject to the exclusion in subdivision 2 or 14 of § 2.2-3705.2, where discussion in an open meeting would jeopardize the safety of any person or the security of any facility, building, structure, information technology system, or software program; or discussion of reports or plans related to the security of any governmental facility, building or structure, or the safety of persons using such facility, building or structure. § 2.2-3711(A)(29). Contracts. Provides an exemption for: Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 11 § 2.2-3711(A)(39). Economic development. Provides an exemption for: Discussion or consideration of information subject to the exclusion in subdivision 3 of §

1. 2-3705.6 related to economic development.

Last updated July 2018

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 1 ACCESS TO PUBLIC RECORDS under the

VIRGINIA FREEDOM OF INFORMATION ACT I. STATUTORY GUIDANCE The Virginia Freedom of Information Act (FOIA) is largely a procedural act, and §§ 2.2-3704 and

1. Section 2-3704.01 guides FOIA requests; detailed charges guidance is in a separate document.

WHAT IS A PUBLIC RECORD UNDER FOIA?

A “public record” is any writing or recording, in any format, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. For example, public records may be in the form of handwritten notes, typewritten documents, electronic files, audio or video recordings, photographs, or any other written or recorded media.

ARE DRAFT OR PRELIMINARY VERSIONS PUBLIC RECORDS?

Yes. The definition of “public record” does not distinguish between draft or preliminary versions and final versions, so both are considered public records under FOIA.1

II. MAKING A REQUEST FOR RECORDS WHO MAY REQUEST RECORDS UNDER FOIA?  Citizens of the Commonwealth;  Representatives of newspapers and magazines with circulation in the Commonwealth; and  Representatives of radio and television stations broadcasting in or into the Commonwealth.

MUST A REQUEST MENTION “FOIA” SPECIFICALLY?

No. The request need not make reference to FOIA in order to invoke its provisions or to impose the time limits for response by a public body.

MUST A REQUEST BE MADE IN WRITING?

No. A written request is not required. However, from a practical point of view, it is suggested that the request be made in writing (or use any request form provided by the public body). Writing is recourse for both parties!2 1 FOIA Council Opinions AO-3-00, AO-05-09. 2 FOIA Council Opinion AO-07-11.

VIRGINIA FOIA ADVISORY COUNCIL 2

MAY A PUBLIC BODY REQUIRE REQUESTERS TO FILL OUT A FORM?

No. A public body may develop a request form that it asks requesters to fill out, but a public body may not insist that its form be used before it begins work on a FOIA request. [NOTE: It is suggested that if the requester refuses to fill in the form or to put the request in writing, the public body should fill out its own form—remember, writing is recourse.]3

MAY A PUBLIC BODY REQUIRE REQUESTER'S NAME AND LEGAL

ADDRESS?

Yes. A public body may require a requester to provide his name and legal address before processing a FOIA request. [NOTE: This is a tool a public body may use, but FOIA does not mandate that public bodies get identification first.]4

RESPONDING TO RECORD REQUESTS

HOW LONG TO RESPOND TO A REQUEST?

A public body must respond within five working days of receipt of the request. [NOTE: Count the day after receipt as day 1.]5 REMEMBER: Failure to respond to a request for records shall be deemed a denial of the request and constitutes a violation of FOIA.6

PERMISSIBLE RESPONSES TO A REQUEST?

Since July 1, 2007, a public body must respond with one of five FOIA responses:

1. Provide records to requester;
2. Records are fully withheld due to legal prohibition or FOIA discretion;
3. Records are partially provided and withheld due to legal or FOIA reasons;
4. Records not found or do not exist; if another body has them, provide contact info.
5. If records cannot be provided or verified within five days, explain the delay.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 3 needs an additional seven work days in which to provide one of the four preceding responses.7

When must a response be in writing?

If any answer part is “NO” (responses 2 OR 3), the response must:

1. Be in writing;
2. Identify with reasonable specificity the withheld records;
3. Cite the specific Virginia Code section authorizing each withheld category.

If the records are being entirely withheld (i.e., response 2) then the response must also identify with reasonable particularity the volume of the withheld records.

If the answer is “we cannot find it” or “it does not exist” (i.e., response 4 above), the response must:

1. Be in writing, and
2. If another body has the records, provide its contact info.

If the answer is “we need more time” and the public body would like seven additional working days to respond (i.e., response 5 above), the response must:

1. Be in writing, and
2. Specify conditions preventing production within five days.

HOW DOES A PUBLIC BODY RESPOND IF A RECORD CONTAINS EXEMPT AND

NONEXEMPT INFORMATION?

Generally, if a record contains exempt and nonexempt information, the public body must release the record and delete or excise the exempt portion of the record.

MUST A PUBLIC BODY CREATE A RECORD IN RESPONSE TO A FOIA REQUEST?

Generally, no public body is required to create a new record if the requested record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.8

HOW MUCH MAY A PUBLIC BODY CHARGE FOR PRODUCING RECORDS?

A public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. A public body may not charge extraneous or surplus fees unrelated to the production of the records. [NOTE: This 7 Prior to July 1, 2007, FOIA permitted four responses to a records request; FOIA Council Opinions AO-1-00, AO-21-

01, AO-12-03, AO-18-03, AO-16-04, AO-05-05, AO-05-06, AO-11-07, AO-12-07, AO-03-08, AO-07-08, AO-13-08, AO-01-09, AO-07-11, AO-02-12, AO-01-17. 8 FOIA Council Opinions AO-11-00, AO-6-01, AO-11-01, AO-35-01, AO-49-01, AO-01-02, AO-03-02, AO-10-02,

AO-11-03, AO-04-04, AO-10-04, AO-16-04, AO-05-05, AO-06-05, AO-09-07, AO-11-07, AO-07-08, AO-12-09, AO-

07-11, AO-04-15.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 4 means that a public body cannot factor in expenses such as overhead or the cost of benefits paid to employees.] Charges for copies must not exceed the actual cost of duplication.

A citizen may request that the public body estimate the cost of supplying the requested records in advance. As mentioned previously, further detailed guidance regarding charges for the production of records is provided in a separate document entitled “Taking the Shock Out of FOIA Charges: A Guide to Allowable Charges under the Freedom of Information Act.”9

CAN A PUBLIC BODY REQUIRE ADVANCE PAYMENT?

When a public body determines in advance that the charges for supplying the requested records are likely to exceed $200, it may require the requester to pay a deposit before proceeding with the request. This deposit may not exceed the amount of the advance determination, and the public body must credit it towards the final cost of supplying the records. If a public body asks for the advance deposit, the five-working-day period to respond to the request will be tolled until the deposit is paid.10

WHAT CAN A PUBLIC BODY DO IF A REQUESTER DOES NOT PAY FOR RECORDS

PROVIDED UNDER FOIA?

Before responding to a new request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.

DO THESE SAME REQUIREMENTS APPLY TO A REQUEST FOR ELECTRONIC

RECORDS?

Yes. Like all other records, regardless of format, a public body may only charge a reasonable, not to exceed actual, cost for producing public records maintained in an electronic data processing system or computer database. And like other records, when electronic records or databases contain both exempt and nonexempt records, the public body must supply the nonexempt information and excise or delete the exempt information. The excision of exempt fields from a database is not considered the creation of a new record under FOIA.

A public body must provide electronic records in any medium identified by the requester, if that medium is used by the public body in the regular course of business. If the public body has the capability, this includes the option of posting the records on a website or delivering the records to an email address. A public body is not required to produce records in a format not regularly used by the public body. However, a public body must make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and the public body, including the payment of reasonable costs.11 9 FOIA Council Opinions AO-1-00, AO-21-01, AO-25-01, AO-32-01, AO-39-01, AO-49-01, AO-05-02, AO-10-02,

AO-14-02, AO-08-03, AO-20-03, AO-21-03, AO-01-04, AO-04-04, AO-16-04, AO-23-04, AO-06-05, AO-02-07, AO- 09-07, AO-06-09, AO-07-11, AO-03-12, AO-05-13, AO-02-14, AO-04-15. 10 FOIA Council Opinions AO-21-01, AO-14-02, AO-04-04, AO-16-04, AO-08-09, AO-07-11. 11 FOIA Council Opinions AO-11-00, AO-10-02, AO-11-02, AO-14-02, AO-21-03, AO-05-05, AO-08-09, AO-05-13.

VIRGINIA FOIA ADVISORY COUNCIL 5 APPENDIX Records Exemptions of General Applicability FOIA contains over 100 exemptions for records. Although many of these exemptions apply to specific agencies or to very content-specific records, there are several records exemptions of general applicability that may be used by virtually all public bodies. The records exemptions of general applicability are listed below, with the corresponding statutory citation, as a reference tool. § 2.2-3705.1(1): Personnel. Provides an exemption for: Personnel information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of such information and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such information shall be disclosed. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.

No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1; (ii) records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees. The provisions of this subdivision, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less. § 2.2-3705.1(2): Attorney-client privilege. Provides an exemption for: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. § 2.2-3705.1(3): Attorney work product. Provides an exemption for: Legal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. § 2.2-3705.1(4): Tests and examinations. Provides an exemption for: Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student’s performance, (ii) any employee or employment seeker’s qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by a public body.

As used in this subdivision, “test or examination” shall include (a) any scoring key for any such test or examination and (b) any other document that would jeopardize the security of the test or examination. Nothing contained in this subdivision shall prohibit the release of VIRGINIA FOIA ADVISORY COUNCIL 6 test scores or results as provided by law, or limit access to individual records as provided by law. However, the subject of such employment tests shall be entitled to review and inspect all records relative to his performance on such employment tests.

When, in the reasonable opinion of such public body, any such test or examination no longer has any potential for future use, and the security of future tests or examinations will not be jeopardized, the test or examination shall be made available to the public. However, minimum competency tests administered to public school children shall be made available to the public contemporaneously with statewide release of the scores of those taking such tests, but in no event shall such tests be made available to the public later than six months after the administration of such tests. § 2.2-3705.1(5): Closed meetings. Provides an exemption for: Records recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to § 2.2-3711. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting. § 2.2-3705.1(6): Vendor proprietary information. Provides an exemption for: Vendor proprietary information software that may be in the public records of a public body. For the purpose of this subdivision, "vendor proprietary information software" means computer programs acquired from a vendor for purposes of processing data for agencies or political subdivisions of the Commonwealth. § 2.2-3705.1(7): Computer software. Provides an exemption for: Computer software developed by or for a state agency, state-supported institution of higher education or political subdivision of the Commonwealth. § 2.2-3705.1(8): Cost estimates of real property. Provides an exemption for: Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. § 2.2-3705.1(10): Personal contact information. Provides an exemption for: Personal contact information furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the person who is the subject of the record. As used in this subdivision, "personal contact information" means the information provided to the public body for the purpose of receiving electronic mail from the public body and includes home or business (i) address, (ii) email address, or (iii) telephone number or comparable number assigned to any other electronic communication device. § 2.2-3705.1(12): Contracts. Provides an exemption for: Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such information would adversely affect VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 7 the bargaining position or negotiating strategy of the public body. Such information shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of information relating to such transactions shall be governed by the Virginia Public Procurement Act. § 2.2-3705.1(13): Account numbers. Provides an exemption for: Account numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body. However, access shall not be denied to the person who is the subject of the information. For the purposes of this subdivision, "financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, savings and loan companies or associations, and credit unions. § 2.2-3705.2(2): Security systems. Provides an exemption for: Information that describes the design, function, operation, or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system. § 2.2-3705.2(14): Critical infrastructure, cybersecurity, antiterrorism and related public safety information. Provides an exemption for: Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants: a. Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems; b. Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program; c. Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or d. Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 8 The same categories of records of any person or entity submitted to a public body for the purpose of antiterrorism response planning or cybersecurity planning or protection may be withheld from disclosure if such person or entity in writing (a) invokes the protections of this subdivision, (b) identifies with specificity the records or portions thereof for which protection is sought, and (c) states with reasonable particularity why the protection of such records from public disclosure is necessary to meet the objective of antiterrorism, cybersecurity planning or protection, or critical infrastructure information security and resilience. Such statement shall be a public record and shall be disclosed upon request.

Any public body receiving a request for records excluded under clauses (a) and (b) of this subdivision 14 shall notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with §

1. 2-3704.

Nothing in this subdivision 14 shall prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event.

As used in this subdivision, "critical infrastructure information" means the same as that term is defined in 6 U.S.C. § 131. § 2.2-3705.4(1): Students. Provides an exemption for: Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed. § 2.2-3705.5(1): Health. Provides an exemption for: Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL 9 Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Health records shall only be reviewed and shall not be copied by such administrator or chief medical officer. The information in the health records of a person so confined shall continue to be confidential and shall not be disclosed by the administrator or chief medical officer of the facility to any person except the subject or except as provided by law.

Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person.

For the purposes of this chapter, statistical summaries of incidents and statistical data concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. No such summaries or data shall include any information that identifies specific individuals receiving services. § 2.2-3705.6(3): Economic development and retention. Provides an exemption for: Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body. § 2.2-3705.6(10): Prequalification to bid. Provides an exemption for: Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of §

1. 2-4317. # Updated July 2018

Virginia Freedom of Information Advisory Council 1

E-MAIL:

USE, ACCESS & RETENTION

The use of e-mail in the business place has become routine and is a preferred mode of communication. For state and local government officials and employees, the application of the Virginia Freedom of Information Act (FOIA) relating to access to records and the Virginia Public Records Act (the PRA) relating to the retention of records comes into play.

Government officials and employees frequently ask two key questions about the use of e-mail --"Can the public and media access my e-mail under FOIA?" and "Do I have to save my e-mail?"

This document provides guidance on email use and management for government.

The nature of e-mail E-mail generally refers to any communication that requires an electronic device for storage and/or transmission.1 E-mail is a medium for correspondence -- essentially, e-mail is the "envelope" for the communication. For purposes of FOIA & the PRA, e-mail provides a medium for communication, much like a telephone or the U.S. Mail provides a means of communication. The fact that a communication is sent via e-mail is not alone conclusive of whether that e-mail must be accessible to the public under FOIA or retained pursuant to the PRA; one must look at the text and substance of the communication to determine whether it is indeed a public record.

The Virginia Freedom of Information Act FOIA addresses access to public records. Section 2.2-3701 of the Code of Virginia defines public records for purposes of FOIA to include "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business."

1 Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).

Virginia Freedom of Information Advisory Council 2

Clearly an e-mail would fall under this broad definition of a public record, because it applies to all writings and recordings…set down by…mechanical or electronic recording…however stored, regardless of physical form or characteristics. As noted above, e-mail is just the medium, or the envelope, used to convey the communication.

E-mail communications between officials on public business are also public records under FOIA.

FOIA requires that unless subject to a statutory exemption, all public records must be open to inspection and copying. Therefore, an e-mail relating to public business would be accessible just like any other public record, and may be withheld from public disclosure only if a particular exemption applies to the content of the e-mail.

The Virginia Public Records Act While FOIA governs access to records held by state and local government, the PRA governs how long a government entity must retain certain records. The PRA defines "public record" for purposes of records retention, and like FOIA, the definition is fairly broad and would include e-mail as a public record. Section 42.1-77 defines a public record to include recorded information that documents a transaction or activity by or with any public officer, agency or employee of the state government or its political subdivisions. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.

The PRA sets forth different retention schedules for different types of records. Several factors shape how long a record needs to be held. Many records are only kept for so long as business requires them to be kept, although if a record has historical significance or is created by an agency head or director, it may need to be kept longer. For example, certain records are required to be maintained permanently, such as records from standing committees of the General Assembly, annual reports of state agencies, and correspondence of agency directors. Other records need only be kept so long as they are administratively necessary, such as reminders of events like blood drives or fund raisers, courtesy copies of correspondence, or messages received from a listserv. Along the continuum, other records may be required to be retained for 30 days to ten years, depending on their content. After the retention time has expired for a particular document, then that record may be destroyed pursuant to the guidelines set forth by the Library of Virginia.2

In providing guidance for adhering to the PRA, the Library of Virginia notes that e-mail should be treated the same as paper correspondence. Again, e-mail is only the medium,

2 PRA is administered by the Library of Virginia. For more details on retention schedules for particular types of records or for a particular agency, or for information regarding the proper disposal of records, please contact the Library of Virginia. Records retention information and contact information is also available on the Library's website at http://www.lva.lib.va.us/whatwedo/records/index.htm.

Virginia Freedom of Information Advisory Council 3 or the envelope, by which the correspondence is sent; the retention schedule for a particular e-mail will depend on its content and should be preserved the same as its paper equivalent. Both incoming and outgoing e-mail should be retained, along with any attachments sent via e-mail.

All emails related to public business are subject to FOIA and PRA and should be managed like other public records.

There is a tendency with e-mail to hit the delete button as soon as you are finished with a particular message. However, consideration must be given to whether that particular e-mail must be retained for purposes of the PRA -- you can't automatically delete your e-mail, just as you can't automatically throw away paper correspondence and records.

FOIA governs access to records. The PRA dictates how long you are required to keep certain records. If a government entity keeps an e-mail (or any other record) for longer than its retention schedule requires, that e-mail will still be subject to FOIA if requested.

Proper disposal per schedule means FOIA does not require record recreation after request.

E-mail is often used as a substitute for a telephone call, and is quite informal. However, e-mail creates a record of that communication that must be retained pursuant to the PRA and will be available upon request to the public under FOIA. Consider the consequence of choice to use e-mail instead of the telephone -- it may not be in your best interest to be as informal on e-mail as you are on the telephone.

The Library of Virginia discourages the practice of maintaining permanent records solely in electronic format, without a paper or microfilm backup.3 For records that do not need to be maintained permanently, these e-mails can be printed out and stored in a traditional, paper file (and the electronic copy can be deleted) or electronic folders can be created on the computer to organize e-mails based on functions, subjects or activities. The Library of Virginia suggests that these folders are assigned to your home directory on the computer, and not on the network. By way of example, at the FOIA Council we print a copy of all of the FOIA questions that we receive via e-mail, along with our corresponding response, and file the paper copy in a chronological file. After we have printed a copy to retain for our records, we delete the e-mail off of the computer.

Officials should keep personal and official emails separate.

Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an e-mail management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained with other public records that relate to the same content.

3 Library of Virginia, Electronic Records Guidelines (effective June 10, 2002).

An Easy Guide to FOIA for Boards of Visitors

The video for Boards of Visitors applies similarly to all boards, with caveats:

E-meetings – due to lack of infrastructure to support law-compliant e-meetings (§ 2.2-3708), our boards do not meet electronically.

Records must be maintained by DPOR in order to appropriately respond to FOIA requests and subpoenas as well as comply with appropriate retention schedules. Therefore, it is crucial that you be careful not to communicate with fellow board members outside of board meetings. Such communication may create records (e-mails, etc…) we would not necessarily be aware of when responding to requests for information, nor could we ensure that they are appropriately retained. The Department operates in a culture of openness, meaning that our business – the people’s business – is conducted in a public forum!

Board Member Training

Page 1 of 5

REGULATORY REVIEW

Last Updated 12/15/21

Regulatory Review Process

Title 54.1 of the Code of Virginia authorizes regulatory boards. The review process follows the Administrative Process Act (§ 2.2-4000) and the Governor’s Executive Order.

A regulation is promulgated (enacted), amended, or repealed through a regulatory action. All regulatory actions are tracked through the Virginia Regulatory Town Hall website (http://townhall.virginia.gov/). The website contains a wealth of information about the regulatory process, including Questions & Answers excerpted below.

Register on Town Hall to select boards/agencies and action types for notifications.

To sign up, visit: http://townhall.virginia.gov/L/Register.cfm.

What is a regulation?

A regulation is a lawfully authorized general rule by a state agency, enforcing laws and objectives. Each VAC chapter contains one regulation.

How is a regulation promulgated?

Regulations are created, amended, or repealed via regulatory actions.

Regulatory actions usually take 18–36 months, allowing public participation and consideration of all perspectives in rulemaking.

Proposed regulations must align with Governor’s policies and often include an economic impact analysis. Except in special cases, all go through a three-stage process.

Stage 1: NOIRA notifies the public of regulatory changes with a general description. Published in the Virginia Register and Town Hall, it offers at least 30 days for public comments, which the board reviews during regulation development.

Stage 2: After considering NOIRA comments, the board drafts the regulation and a statement; DPB prepares an economic impact analysis.

After publication, a minimum 60-day public comment period occurs. The board summarizes and responds, possibly modifying the regulation.

Stage 3: The final regulation includes changes since proposal. After publication, it becomes effective after at least 30 days.

Emergency regulations, enacted by law, last up to 18 months (extendable 6 months), bypassing the usual process. Simultaneously, a permanent regulation process begins.

Exempt regulations include actions by designated agencies, rate/price regulations, internal operations, and technical amendments conforming to law changes.

Most exempt regulations are published only in final form, though some include proposed notices.

Board Member Training

Page 3 of 5

REGULATORY REVIEW

Fast-track rulemaking is for non-controversial actions. After Governor review, notice is published. If no objections within 60 days, it becomes effective 15 days after the comment period ends.

If concerns arise during the comment period, the regulation is withdrawn from fast-track and processed normally.

Specifically, the law (§ 2.2-4012.1) requires a fast-track action be terminated based on objections from the following:

• Any member of the Senate or House standing committee;
• Any JCAR member; or
• Ten or more members of the public.

The board need not restart; initial fast-track publication in the Register counts as Stage 1 (NOIRA).

What is the Virginia Administrative Code (VAC)?

The VAC is Virginia's official regulations source, with about 1,250 chapters. Each chapter’s text is accessible via the Town Hall website.

Format of a VAC citation:

EXAMPLE: 18 VAC 120-11-10 18 Title Number: There are 24 titles in the Virginia Administrative Code.

Title 18 contains regulations on Professional and Occupational Licensing.

VAC is Virginia Administrative Code. Agency 120 has over 100 boards in Virginia.

For example, Agency 120 of Title 18 contains regulations of the Department and Director-regulated programs (i.e.., Boxing, Martial Arts & Professional Wrestling; Polygraph Examiners).

There are over 1,000 chapters in the Virginia Administrative Code, each with one regulation. Chapter 11 under Title 18, Agency 120, covers Public Participation Guidelines (PPGs). Section 10 addresses PPG purpose to promote public involvement.

What is the Virginia Administrative Process Act (APA)?

The APA provides the rulemaking framework, including stages like notice and comment, public involvement guidelines, and procedures for executive review.

What is executive branch review?

Before public comment, regulatory stages are reviewed by the Attorney General, Planning and Budget, Cabinet Secretary, and Governor, who certify legal authority and evaluate costs and benefits.

Oversight ensures regulations are clear, understandable, protect health, safety, welfare, and are minimally burdensome.

What is an economic impact analysis (EIA)?

DPB prepares EIAs summarizing costs, benefits, unintended consequences, alternatives, affected entities, local impacts, employment, and property values.

DPB completes EIAs within 45 days of submission; they are available on the Stage Information page.

Board Member Training

Page 5 of 5

REGULATORY REVIEW

Last Updated 12/15/21 What are guidance documents?

Guidance documents, developed by agencies, provide info on implementing or interpreting laws/regulations; links are on Board and Chapter pages.

What is the Virginia Register of Regulations?

The Virginia Register records legal regulatory actions; citations are on each Stage Information page of Town Hall.

Standard regulatory process: Basic outline Notice of Intended Regulatory Action (NOIRA) Agency submits NOIRA for executive branch review.

Agency is authorized by Governor to submit NOIRA for publication.

NOIRA is published in the Virginia Register.

Submit your comment during the 30-day public comment period.

Proposed regulation Agency considers public comment and submits proposed regulation.

Governor approves proposed regulation.

Proposed regulation is published in the Register and notification is sent to all registered Town Hall users.

Submit your comment during the 60-day public comment period.

Final regulation Agency/board considers public comment and adopts final regulation.

Governor approves final regulation.

Final regulation is published in the Register, notifications sent, and the 30-day adoption period begins; regulation becomes effective unless suspended or extended.

A stage is announced via automatic email to registered Town Hall users.

Ten days later, a regulatory stage is published in The Virginia Register of Regulations, the official legal record for Virginia regulations.

When published in the Register, a public comment forum opens on Town Hall and remains open until the end of the comment period.

Source: Sections 2.2-4006 through 2.2-4017 of the Code of Virginia (Article 2 of the Administrative Process Act) Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation and Regulation Division, 11/18 Fast-track regulations Fast-track regulation is adopted and submitted on the Town Hall website for executive branch review.

Executive review (in order): Office of the Attorney General, Department of Planning and Budget, Cabinet Secretary, Governor. Fast-track regulation is published in the Register, starting a 30-day comment period.

Town Hall public comment forum opens.

Within 14 days of approval by Governor, agency submits fast-track regulation to the Virginia Register via the Town Hall.

Ten days before Register publication, email notifications are sent to Town Hall users. The regulation becomes effective 15 days after comment period ends unless withdrawn or a later date is specified.

Fast-track applies to noncontroversial proposed regulations, as determined by the process on this page.

Source: Section 2.2-4012.1 of the Code of Virginia If, during the public comment period, an objection to the fast-track regulation is received from:

• Any Senate standing committee member,
• Any House of Delegates committee member,
• Any member of the Joint Commission on Administrative Rules (JCAR), or
• 10+ members of the public, then publication of the fast-track regulation serves as NOIRA, and standard rulemaking proceeds to promulgate the regulation.

Produced by the Virginia Department of Planning and Budget, 11/2018. Emergency regulation: agency/board adopts and submits it on Town Hall for review.

Review (in order): Office of the Attorney General, Department of Planning and Budget, Cabinet Secretary, Governor. Ten days after notice, emergency regulation is published. If NOIRA for permanent regulation was filed, a 30-day comment period and Town Hall forum begin.

Agency submits emergency regulation to Virginia Register via Town Hall; it becomes effective on filing date unless otherwise specified.

Automatic email notification is sent to registered Town Hall users.

An emergency regulation is:

• Promulgated if an "emergency situation" exists or legislation mandates promulgation within 280 days.
• Effective upon filing with the Registrar of Regulations.
• Effective up to 18 months, extendable up to 6 months with Governor approval.
• Usually replaced by a permanent regulation; if so, NOIRA to promulgate it must be filed simultaneously with the emergency regulation.

Source: Section 2.2-4011 of the Code of Virginia How it is promulgated: Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 Periodic review of regulations using Feature on Town Hall Agency starts a periodic review of the regulation on the Virginia Regulatory Town Hall & submits an announcement for publication in The Virginia Register of Regulations.

Periodic review announcement is published in the Register.

Official public comment period (minimum 21 days) begins.

Town Hall public comment forum opens.

Ten days before Register publication, email notifications are sent to Town Hall users.

No later than 120 days after the close of the public comment period/forum, the agency posts a periodic review result to appear in the Register & Town Hall, & is emailed to registered Town Hall users.

This report will indicate one of the following: Every state regulation must be reviewed every four years to: (1) ensure it is supported by statutory authority (as determined by the Office of the Attorney General), (2) determine that the regulation is (a) necessary for the protection of public health, safety and welfare and (b) clearly written and easily understandable, and to (3) make sure its economic impact on small businesses is minimized as much as possible. ****** Sources: Sections 2.2-4017 and 2-2-4007.1 of the Code of Virginia and Executive Order 14 (as amended July 16, 2018) Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 How does the periodic review feature on Town Hall work?

The regulation will be amended or repealed.

The regulation will be retained as is.

Public comment period ends.

Public comment forum closes.

To request regulation changes or creation, send written notice including the rule's substance, purpose, and, if existing, the citation to the Virginia Administrative Code.

1 VAC 2-30).

Include the legal authority, e.g., Code of Virginia § 12.3-45, authorizing the agency or board to promulgate regulations.

Mention "Code of Virginia § 2.2-4007" and "petition for new or amended regulation" to guide agency handling.

Notice is published in the Register.

Town Hall comment forum opens for 21 days to receive petition comments.

Within 14 days, the agency must notify the Virginia Register with your name, request details, and handling plan.

The notice appears on Town Hall & email notification is sent to Town Hall registered users.

Within 90 days, the agency issues a written decision granting or denying your request.

The agency's decision must include its reasons for action or inaction.

The agency’s decision appears in the Register and on Town Hall; email notifications are sent to registered users.

Note: Agency decisions regarding requests to change a rule are not subject to court review This is how you can request an agency/board to develop a new regulation or amend an existing regulation.

Source: Section 2.2-4007 of the Code of Virginia Produced by the Virginia Department of Planning and Budget’s Planning, Evaluation, and Regulation Division, 11/2018 What you need to do and what will happen: Public comment period/forum closes.

EXECUTIVE DIRECTIVE NUMBER ONE (2022)

LAYING A STRONG FOUNDATION FOR JOB CREATION AND ECONOMIC GROWTH THROUGH TARGETED REGULATORY REDUCTIONS. As Governor, I issue this Executive Directive to reduce regulatory burdens on businesses and citizens.

Importance of the Initiative: Excessive regulation burdens Virginia’s economy. Restrictions can remain unreviewed for years while new laws are added. This burdens compliance, causing opportunity loss and hindering growth.

Nearly four years ago, the General Assembly passed House Bill 883 (2018), directing the Department of Planning and Budget (“DBP”) to administer a three-year regulatory reduction pilot program. This pilot program identified important information about our regulatory processes, including a concerning lack of consistency across agencies, that underscores the need to review and address agencies’ regulatory capabilities. Further, the program provides important guideposts for the 25 percent regulatory reductions that should be pursued across the Executive Branch.

Pursuant to my authority, I direct all Executive Branch entities to reduce by at least 25% regulations not mandated by law, in consultation with the Attorney General, consistent with law.

I also direct the Secretary of Finance to report on regulations related to reduction as authorized by House Bill 883 (2018).

• Recommendations to ensure complete documentation of legislative mandates directing agencies to promulgate regulations;
• Inventory of all exemptions from the Administrative Process Act, analysis of their continued benefit, and recommendations for legislative action.
• Recommendations for additional efforts to ensure agency consistency in regulatory development and review.
• Recommendations to improve periodic review, including documenting statutory authority and certifying regulatory requirements at review.
• Feasibility and effectiveness of expanding the regulatory reduction pilot to other agencies;
• The feasibility and effectiveness of implementing a 2-for-1 regulatory budget.

The Secretary may use DPB staff to prepare the report. Agencies must cooperate with requests from the Secretary and DPB.

This Executive Directive is effective upon signing and remains in force unless amended or rescinded.

Given under my hand and the Seal of Virginia, this January 15, 2022.

Glenn Youngkin, Governor 2

Attest: Kelly Thomasson, Secretary of the Commonwealth 3

NUMBER FOURTEEN (2018) (AMENDED) DEVELOPMENT AND REVIEW OF STATE AGENCY REGULATIONS Importance of the Initiative By virtue of the authority vested in me as Governor under Article V of the Constitution of the Commonwealth of Virginia and under the laws of the Commonwealth, including, but not limited to, §§ 2.2-4013 and 2.2-4017 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby establish policies and procedures for the review of all new regulations and changes to existing regulations proposed by state agencies, which shall include all agencies, boards, commissions, and other entities of the Commonwealth within the executive branch authorized to promulgate regulations. Nothing in this Executive Order shall be construed to limit my authority under the Code of Virginia, including to require an additional 30-day public comment period, file a formal objection to a regulation, suspend the effective date of a regulation with the concurrence of the applicable body of the General Assembly, or to exercise any other rights and prerogatives existing under Virginia law.

Definitions The following acronyms and definitions are set out for ease of use and represent only a summary of terms and acronyms related to the regulatory review process. More detailed descriptions and definitions appear in the Administrative Process Act (APA), § 2.2-4000, et seq. of the Code of Virginia. “Agency Background Document” (ABD) refers to a form completed by agencies and uploaded on the Virginia Regulatory Town Hall website for each regulatory stage in order to describe and explain the regulatory action. The form for each stage is available on the Town Hall. “Administrative Process Act” (APA) refers to § 2.2-4000, et seq. of the Code of Virginia, which contains provisions setting forth the process for promulgating regulations in Virginia. 2 “Day” means a calendar day. “Virginia Department of Planning and Budget” (DPB) refers to the state entity that reviews regulatory proposals for economic and policy impact and manages the Virginia Regulatory Town Hall website. “Economic Impact Analysis” (EIA) refers to a report prepared by DPB that evaluates the estimated costs and benefits of a regulatory proposal. “Emergency rulemaking process” refers to the process used (1) when there is an emergency situation as determined by the agency and affirmed by the Governor that an emergency regulation is necessary, or (2) when a Virginia statutory law, Acts of Assembly (such as the appropriation act), federal law, or federal regulation requires that a state regulation be effective in 280 days or fewer from its enactment. “Executive Branch Review” refers to the review of a regulatory proposal at various stages by the executive branch before the regulatory proposal is published in the Virginia Register of Regulations and is available for public comment. “Exempt rulemaking process” refers to the process by which agency actions exempt from the promulgation requirements of Article 2 of the APA can be adopted and filed directly with the Office of the Registrar of Regulations (Registrar) and are not subject to Executive Branch Review outlined in this executive order. Agencies should consult with their respective cabinet secretary prior to promulgating a regulation under the exempt process. “Fast-track rulemaking process” refers to the process utilized for rules that are expected to be noncontroversial. “Mandate” refers to a directive from the General Assembly, the federal government, or a court that requires that a regulation be promulgated, amended, or repealed in whole or part. “Notice of Intended Regulatory Action” (NOIRA) refers to the first stage in the standard rulemaking process under Article 2 of the APA. “Office of the Attorney General” (OAG) refers to the state agency headed by the Attorney General. The OAG reviews regulatory proposals at the emergency stage, the fast-track stage, and the proposed stage. In addition, the OAG must review a proposal at the final stage if changes with substantial impact, as determined by either the promulgating agency or DPB, have been made since the proposed stage. “The Virginia Register of Regulations” (Register) refers to an official legal publication that provides information about proposed and final changes to Virginia’s regulations. “Rulemaking or regulatory process” refers to the four types of rulemaking processes in Virginia: (1) emergency, (2) fast-track, (3) standard, and (4) exempt. 3 “Standard rulemaking process” refers to the default rulemaking process in Virginia. If a regulatory proposal does not meet the criteria for exempt, fast-track, or emergency rulemaking, it goes through the standard rulemaking process, generally consisting of three stages: NOIRA, proposed, and final. “The Virginia Regulatory Town Hall website” (Town Hall) refers to the website managed by DPB and used by agencies to post regulatory proposals and to facilitate the regulatory review process. “Virginia Administrative Code” (VAC) refers to Virginia’s official legal publication for regulations.

Policy and Principles: Virginia agencies must consider, review, and promulgate regulations efficiently and effectively. All involved employees shall apply the principles below during development and review.

General A. Regulatory activity should minimally intrude on citizens’ lives and be necessary to protect health, safety, and welfare. Agencies shall consider:

1. The use of user fees or permits;
2. Use of information disclosure requirements instead of mandates, enabling public informed choices;
3. Use of performance standards instead of prescribed techniques or behaviors;
4. Consideration of reasonably available alternatives instead of regulation.

B. The Commonwealth’s policy is to promulgate only regulations necessary to interpret law or protect health, safety, or welfare, considered during periodic reviews.

1. 2-4017 and this Executive Order.

C. Regulations shall be clear and understandable.

D. Regulations shall achieve objectives efficiently and cost-effectively. A. Development shall rely on the best available scientific, economic, and other data, citing sources supporting proposals.

B. Development shall follow statutes on small business impact. DPB will assist agencies during review, including notifications to the Joint Commission.

C. Agencies shall consider impacts on Virginia employers, job maintenance, growth, and public compliance costs.

Public Participation A. Agencies shall seek input from stakeholders, citizens, and the General Assembly.

B. Agencies shall post all rulemaking actions on Town Hall, supplementing Article 2 requirements.

C. Agencies shall follow all public participation laws, inform citizens about Town Hall notifications and comment processes, and respond promptly to comments, including suggested improvements.

Other: Agencies and reviewers shall perform tasks promptly, adhering to the timeframes in this Order.

B. Regulations shall be periodically reviewed and modified per law, policy, and legislation. C. Agency heads are accountable for compliance and timely info sharing with DPB, Cabinet, and the Governor.

Incomplete packages may be returned by DPB to agencies.

The review process in this Executive Order applies to rulemakings initiated by Virginia agencies under Article 2 of the APA.

Except for periodic reviews, meeting postings, and guidance documents, agencies exempt from Article 2 of the APA are not subject to this Executive Order, but the Governor or officials may request compliance.

Requests shall be forwarded to the Governor’s Policy Office and DPB; Cabinet Secretaries may seek further exemptions in writing.

These procedures supplement the APA, agency guidelines, and statutes, applying from July 16, 2018, to all regulatory actions submitted to DPB for review.

Any failure to comply with the requirements set forth herein shall in no way affect the validity of a regulation, create any cause of action or provide standing for any person under Article 5 of the APA (§ 2.2-4025 et seq. of the Code of Virginia), or otherwise challenge the actions of a government entity responsible for adopting or reviewing regulations.

Regulatory packages shall be submitted via Town Hall; agencies must complete and post ABDs for each stage, ensuring text synchronization with stage info.

DPB shall notify agencies within 10 days if packages are incomplete; agencies must withdraw and resubmit after missing elements; stages must be filed promptly, within 180 days after prior comments.

A. Standard Rulemaking Process

The NOIRA shall specify the nature, scope, relevant VAC sections, and include draft regulatory text if available.

DPB shall review NOIRA for compliance and policy alignment; within 14 days, the Director or designee shall advise the Cabinet Secretary and Governor of the determination.

If issues arise, DPB forwards NOIRA to the Cabinet Secretary, who reviews in 14 days and recommends to the Governor; if no issues, agency may publish after approval.

The Governor’s Chief of Staff or designee may approve or disapprove NOIRAs.

Public comments after NOIRA publication should be encouraged and considered in developing the proposed stage.

After the initial public comment period, the agency shall prepare a regulatory review package, considering all comments.

The proposed regulation and review package should be near final, with all reviews complete; new issues not disclosed in NOIRA shall not be addressed.

Order: a. OAG reviews legal authority and conflicts, providing advice and recommendations for the Governor.

DPB reviews compliance within 45 days; prepares analysis; Cabinet Secretary reviews in 14 days; Governor’s Chief of Staff approves/disapproves.

After the public comment period, agencies may revise the proposed regulation; review order remains the same, with DPB duties within 21 days.

After approval, the rulemaking entity shall revise the regulation considering all prior comments.

If substantial changes are made, the agency must obtain OAG certification of authority.

DPB reviews final regulation for compliance and changes; within 21 days, analysis is prepared; Cabinet reviews in 14 days; Governor’s Chief of Staff approves/disapproves.

B. Fast-Track Rulemaking Process The fast-track rulemaking process is for rules that are expected to be noncontroversial.

DPB reviews fast-track regulations for compliance; requests Governor’s Office approval; Governor or designee may disapprove if not in public interest.

After a fast-track regulation has been submitted on Town Hall, Executive Branch Review will proceed as follows:

1. OAG will review the proposed fast-track regulation, produce a memorandum on legal authority and law compliance, and may advise the Governor. After review, submit to DPB.
2. DPB will decide within 10 days if the package qualifies for fast-track, then have 30 days to prepare a policy analysis and EIA, and inform the Cabinet Secretary and Governor.
3. Cabinet Secretary reviews the package within 14 days and recommends to the Governor.
4. Governor’s Chief of Staff or designee may approve or disapprove fast-track regulations.

Emergency regulations may be promulgated if an emergency exists, with OAG consultation and Governor approval; also when law or federal regulation mandates within 280 days.

If replacing with permanent regulation, file Emergency/NOIRA; review order follows.

OAG reviews legal authority and conflicts; provides advice; submits package to DPB after review.

DPB reviews compliance within 14 days; prepares analysis; advises Secretary and Governor.

Cabinet Secretary reviews in 10 days and recommends to Governor.

Governor’s Chief of Staff or designee may approve/disapprove emergency regulations.

An emergency regulation is effective for up to 18 months and may be extended up to six months if a permanent regulation cannot become effective before expiration. Agencies must submit extension requests to the Governor via Town Hall at least 30 days before expiration, and such requests must be granted before the regulation expires, pursuant to § 2.2-4011(D).

Existing regulations shall be reviewed every four years to decide whether to continue, amend, or repeal them, aiming to minimize small business impact, consistent with law, per § 2.2-4007.1.

The review shall assess: (1) continued need; (2) public comments; (3) complexity; (4) overlaps or conflicts with law; (5) time since last review or changes in technology or conditions.

Before review, agencies shall publish notice in the Register and on Town Hall, allow at least 21 days for comments, and publish a report within 120 days after comments close, in the Register and on Town Hall.

The review shall include: (1) Attorney General or designee’s review of statutory authority; (2) Governor or designee’s determination if regulations are necessary for public health, safety, welfare, and are clear and understandable.

The review shall be conducted on Town Hall, either during standard rulemaking or via the periodic review process.

1. During standard rulemaking, agencies can meet periodic review by including a notice in the NOIRA. After comprehensive review and public comment, periodic review is due four years post-effective date.
2. If no comprehensive rulemaking is planned, agencies shall report periodic review results via Town Hall, linking amendments or repeals to the review.

Agencies shall post petitions and decisions on Town Hall within timeframes per § 2.2-4007.

Agencies shall post notices and agendas at least 7 days before meetings, or immediately for emergency meetings, on Town Hall.

Agencies shall post minutes of regulatory meetings on Town Hall per §§ 2.2-3707 and 2.2-3707.1.

Agencies shall post all guidance documents or links on Town Hall, updating within 10 days of changes. This Executive Order amends EO 14 (2018), rescinds EO 58 (1999), effective July 16, 2018, until June 30, 2022, unless amended.

Given under my hand and the Seal of Virginia on July 16, 2018.

Ralph S. Northam, Governor. Attest: Kelly Thomasson, Secretary. Complete applications meeting legal prerequisites may be approved by licensing staff.

Decisions on applications not meeting requirements—such as criminal history, disciplinary actions, or standards—must be made by the full Board; staff cannot decide to deny licensure.

Deficient applications are referred for an IFF conference to allow applicants to provide additional info; some withdraw instead. Licensing prepares a Referral Memorandum for the IFF.

DPOR staff issues Notice of IFF, informing applicants of their right to appear. Staff presents issues from the Referral Memorandum; witnesses may provide evidence; proceedings are transcribed.

If needed, the record may be left open for additional info, or a new IFF may be held.

A summary is written, based solely on the information in the Agency Record, and a recommendation is made whether or not to approve the application. Staff members assist the Presiding Officer with preparation of the Summary & Recommendation, which is presented to the full Board for a final decision at its next meeting.

The Board reviews the Agency Record—which includes the application file, Referral Memorandum, exhibits, transcript, and Summary & Recommendation—prior to making its case decision, and is limited to considering only the information contained in the Agency Record. The Board can approve the application, deny the application, enter into an Agreement for Licensure (approval conditioned on specific terms), or reconvene the IFF to gather additional information (with concurrence from the applicant).

Examinations, with education and experience, ensure public that candidates meet minimum competence for entry-level practice. The Examinations section provides centralized testing services for all regulatory programs requiring exams for licensure or certification.

After approval, the Examinations section assists candidates until they pass or cease attempts, supporting about 50,000 tests annually.

• Development and administration of in-house examinations;
• Oversight of development and administration of contracted and national exams;
• Managing contracted exam services and evaluating vendors;
• Conducting examination workshops with contracted vendors;
• Communicating with candidates, including developing Bulletins;
• Reviewing ADA accommodation requests;
• Scheduling exams and providing results;
• Maintaining exam security and investigating violations or cheating incidents;
• Scoring exams and posting results on the Department's automated system;
• Developing diagnostic reports for failing candidates and rescheduling new testing;
• Answering inquiries about examinations and resolving complaints; and
• Providing statistical data to the Department, Boards, and others.

All licensing exams must assess entry-level knowledge and skills, discriminating minimally competent candidates to protect public health, safety, and welfare. Tests must be standardized and documented to justify:

• The content of the examination is designed;
• Items are developed, reviewed, and edited;
• Examination forms are assembled ;
• Candidates register and schedule;

Board Member Training EXAMINATIONS OVERVIEW Page 2 of 5

• The examination is administered;
• The test is analyzed, scored, and reported; and
• Security is maintained.

All exams must be fair, valid, reliable, and defensible. The Department is responsible for ensuring these standards, regardless of development source.

All exams must be reviewed to ensure they reflect current, competent performance in Virginia for public protection. Tests must be valid and reliable.

Test Validity Validity refers to how well a test measures what it is supposed to measure. For professional regulation, an exam is considered valid if it accurately measures competencies for safe and effective entry-level performance. This standard is met by establishing a link between the questions on the examination and the tasks essential to public protection that are actually performed on the job. This linkage is initially established through a job or task analysis.

A passing score, established via a cut-score study with SMEs reviewing items, defines minimum competence for public protection, based on candidate performance estimates.

Cut-score studies and methods like Angoff distinguish criterion-referenced exams, which set minimum competency based on individual performance, requiring approval from the agency or SME committee.

Board Member Training EXAMINATIONS OVERVIEW Page 3 of 5 Test Reliability Reliability indicates consistent, stable results, passing competent candidates and failing others. Reliability is essential but must be paired with validity, like a scale consistently off by five pounds.

A scale that consistently reports the same weight is reliable but not valid if it adds five pounds, thus not accurately measuring weight.

After job analysis, test specifications are created, outlining exam content and emphasis on content areas.

Test items are written at workshops where SMEs prepare and review questions. Approved items are stored in the item bank for future exams.

During exam construction, questions are selected from the item bank and placed in the test form. Vendors use automated systems to ensure form equivalence in content and difficulty.

Post-exam, a statistical analysis calculates p-values for each question to show correct response percentages. Low p-value items are reviewed for issues.

Valid, well-written items remain regardless of p-value. If issues arise, items can be dropped or re-keyed to adjust the exam.

Practical or “Hands-On” exams, required in some professions, demonstrate skills beyond written tests. They are administered by vendors or Board members.

Practical exams are more time-consuming, costly, and challenging to develop than written exams, as they must be objective in a subjective environment.

In-house exams are conducted by staff or hired proctors at the Department or off-site.

Contracted vendors administer, proctor, and provide test sites per contract.

Scoring varies by profession. Vendors typically score exams and report results electronically to the Department, which issues pass/fail letters.

Some vendors report scores immediately at the test site; others send pass/fail notices directly to candidates.

Vendors do not issue licenses; only the Department issues credentials for Boards.

Examination Security Test security is maintained by the Examinations section for in-house exams and vendors for contracted exams. Content must not be disclosed during reviews; participants sign non-disclosure agreements.

The Department’s Conduct policy addresses disruptive or prohibited conduct (e.g., cheating) during exams.

Board Member Training EXAMINATIONS OVERVIEW Page 5 of 5 Candidate Information Bulletins CIBs provide info on exam content, references, fees, dates, deadlines, sites, and scoring.

CIBs are created by the Examinations section and vendors.

Fees, set by regulations or contracts, cover application review, scheduling, exam development, scoring, and reporting costs.

Some fees go to vendors for exam costs; others go to the Department. Fees are non-refundable unless candidates document extenuating circumstances.

Some professions also charge application fees to review initial applications for eligibility.

ACCOMMODATING CANDIDATES WITH DISABILITIES ADA requires accessible testing for qualified individuals with disabilities, who cannot be charged for accommodations, services, or alternate formats.

ADA accommodations include readers, sign interpreters, extra time, and Braille exams.

The Department and vendors follow ADA requirements in Policy 100-02: ADA Compliance.

Disciplinary complaints are received by CAR, which docket and analyze them, collect info, and allow licensees to respond in writing.

If DPOR has jurisdiction and probable cause, the complaint is forwarded to Investigations or ADR; otherwise, it is closed.

Investigations gather info to support alleged violations.

Investigators gather evidence, interview witnesses, visit sites, and draft findings. If violations are indicated, the agency seeks resolution via ADR, compliance, or Consent Order.

CAR Legal Analysts handle Consent Orders, voluntary agreements on violations and sanctions. Unresolved complaints go to Adjudication for IFF, a due process hearing.

Adjudication sends IFF notices, informing licensees of their right to appear and respond. Staff present the case; witnesses may provide evidence.

After the IFF conference, a Consent Order may still be offered; however, if a voluntary agreement is not reached, staff members assist the presiding officer in preparing a Summary & Recommendation for presentation to the Board at its next meeting. This document consists of the facts learned during the IFF conference and suggested sanctions for any regulatory violation(s) identified. When it meets, the full Board may accept, amend, or reject the IFF recommendation.

Board Member Training DISCIPLINARY PROCESS Page 2 of 2

Prima Facie cases involve respondents waiving IFF rights. They are presented with the ROF and sanctions, bypassing administrative proceedings.

The Compliance & Investigations Division enforces criminal laws like practicing without a license and filing false applications. Criminal matters are referred to local Commonwealth’s Attorneys, who decide on prosecution.

Board Member Training FINANCIAL OVERVIEW Page 1 of 5

Financial Overview Regulatory Fees The Department and boards are funded solely by licensing fees. Virginia Code § 54.1-201 authorizes boards to levy and collect fees sufficient to cover all administrative and operational expenses, including a proportionate share of the Department’s costs.

Virginia Code § 54.1-113 requires boards to conduct biennial reviews and revise fees to ensure they are sufficient but not excessive. The Budget and Analysis section maintains detailed revenue and expenditure records, provides monthly financial reports, and reviews each board’s financial position after each biennium to recommend fee adjustments as needed.

If needed, the Budget and Analysis section prepares alternative fee structures for the board, aiming to ensure financial stability and statutory compliance.

Fee changes must be proposed and published for public comment under the APA. They become effective only after APA approval, which takes 18-36 months. Boards monitor financial positions to plan fee adjustments and ensure timely approval.

Licensing fees are set to cover each board’s and the Department’s operating expenses. These non-general fund revenues are designated for licensure purposes; the Department receives no general fund revenues from the Commonwealth.

Department revenues must be appropriated by the General Assembly before expenditure; the appropriation authorizes the Department’s annual spending.

Annually, the Department sets an internal budget distributing funds for operations and activities. Managers and board leaders provide input, and the agency director approves the final budget based on available funds.

Board Expenses and Reimbursements Costs that relate to a single board’s activities are reported in a separate department code established for each board, and are charged directly to the board. Costs commonly charged directly to a board include board member travel costs, board member or staff training, printing, postage, and legal services.

Board members may be reimbursed for travel, mileage, lodging, and meals when on official business, subject to state travel policies and caps.

Board members should review state travel regulations and seek prior approval from their Executive Director or Finance Office for overnight travel.

Penalties from disciplinary actions are deposited into the Literary Fund, a special state fund, and are not available for Department spending.

The Literary Fund offers low-interest loans for school projects. State law mandates penalties be deposited here, ensuring board independence from penalty assessments.

BOARD FINANCIAL STATEMENTS Section 54.1-113 of the Callahan Act requires the Department to account for revenues and expenses for each board biennially, to ensure fees cover costs without excess.

The Department uses a Cost Allocation System to appropriately allocate each board’s expenses.

The system identifies direct expenditures and allocates support costs to each board using specific methods.

Cost allocation accounts for each board’s revenues and expenses supporting operations.

Under the Callahan Act, the Cost Allocation System accounts for each board’s biennial financial position, from July 1 of even years to June 30 of the next.

The system produces two statements: a monthly Statement of Financial Activity with board name, biennium, and month, listing revenues and expenditures by category.

Board Member Training FINANCIAL OVERVIEW Page 4 of 5

Columns three and four compare current and previous biennium activities, showing totals from the biennium start to date, including balances and cash at month’s end.

The final section reports the previous biennium’s Callahan Act percentage and the target for the current biennium, based on fee analysis and operational projections.

YTD Activity Statement summarizes each board’s fiscal year financial activity to monitor plans and variances.

While the Callahan Act mandates biennial accounting, operational planning is annual. Budget estimates are entered into the system, and variations may occur due to activity levels, affecting explanations for differences.

The Statement of Year-to-Date Activity details each type of expenditure for each month and provides a fiscal year-to-date total. It reports the budget allocated to the board for each type of expenditure, and the remaining budget. It then provides a straight-line projection of estimated costs at the close of the fiscal year (assuming that all costs remain relatively stable and continue at the same rate for the remainder of the year), and provides projected variances from budgeted amounts.

Expenditures include direct costs like travel, per diem, printing, postage, and the board’s share of fee processing costs based on monthly fee volume.

Board Administration costs cover staff supporting operations, allocated based on the number of licensees.

Exam Administration costs support exam development, administration, and contracting, allocated by staff effort and exam volume.

Enforcement costs cover complaint processing, investigation, and adjudication, allocated based on enforcement activity per board.

Legal Service charges include billings from the Office of Attorney General for support to each board and other legal costs charged directly to the board.

Information Systems charges for IT services and management are allocated based on each board’s licensee percentage.

Facilities Management includes rent and equipment, mailroom and procurement, supplies, and maintenance costs incurred in support of board activities. The costs are allocated based on staff assigned to each board.

Agency Administration includes the Department’s general administrative support and overhead costs. Charges are allocated based on each board’s percentage of licensees.

Transfers/Other is the category used to allocate other charges to each board. The most common type of charge reported here is transfers to the General Fund of the Commonwealth when mandated in the Appropriations Act, or to pay the agency’s share of central state processes and support costs. The charges are allocated based on each board’s percentage of licensees.

Fee Analysis uses data from the Cost Allocation System to analyze each board’s financial position post-biennium and justify fee adjustments; the Budget section discusses finances and recommendations.

Title 54.1 of the Code of Virginia grants statutory authority for DPOR boards, defining regulation parameters and enforcement; amendments require General Assembly approval and gubernatorial signature.

Each summer, the Governor’s Policy Office solicits legislative proposals from agencies, considering federal compliance, court decisions, or essential state operations for approval.

The Policy Office reviews proposals and selects only “critical” ones for the legislative package to the General Assembly.

DPOR boards and members must follow the process to initiate legislative proposals annually.

At meetings, a board may propose statute additions, revisions, or deletions, and consider non-legislative alternatives like regulation or policy.

The Legislative Director compiles all board-approved proposals, prioritizes them with departmental initiatives, and drafts language for the Attorney General to ensure legality and compliance.

All proposals must follow procedures outlined by the Governor’s Chief of Staff; if not included, members must not seek outside legislative efforts.

Outside entities may introduce legislation; DPOR will inform the Board of the bill, impact, and Administration’s position, which may be neutral.

If approved, DPOR will collaborate with the Administration to promote the bill; members may be asked to support it.

Members may express personal opinions but not as Board representatives to avoid misrepresenting the Board or Administration.

Notify your Executive Director immediately of inquiries from legislators; contact them or DPOR’s Legislative Director with questions anytime.

Media Relations: The Department values accurate, timely info and proactive outreach, as of 7/27/23.

The agency aims to respond promptly to queries and seek external communication opportunities.

DPOR staff and Board members must remember their work is public, conducted openly, and welcomes input and comment.

Reporter inquiries are opportunities; staff and members should ensure messages are clear, consistent, and knowledgeable, following procedures.

Official messages are issued by the Communications Manager to media and posted on DPOR’s website and social media.

Board members may review Policy #100-03 for social media guidance; personal platforms unrelated to DPOR are not governed.

DPOR responds to media inquiries on controversial events per Policy #100-04; staff may provide contact info for Board members if needed.

Members may speak or refer inquiries to the Communications Manager; must notify staff of contacts promptly.

DPOR acknowledges open disciplinary cases after probable cause is established, but no info on ongoing investigations should be released until case closure, per § 54.1-108.