18VAC30-20 Regulations Governing the Practice of Audiology and Speech-Language Pathology

REGULATIONS

Vol. 32 Iss. 7 - November 30, 2015

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY

Chapter 20

Proposed Regulation

Title of Regulation: 18VAC30-20. Regulations Governing the Practice of Audiology and Speech-Language Pathology (amending 18VAC30-20-240).

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

Public Hearing Information:

December 11, 2015 - 8:40 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Conference Center, 2nd Floor, Richmond, VA

Public Comment Deadline: January 29, 2016.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Audiology and Speech-Language Pathology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Audiology and Speech-Language Pathology the authority to promulgate regulations that are reasonable and necessary to administer effectively the regulatory system. Authority for the board to adopt regulations for a person practicing as an assistant speech-language pathologist (SLPA) is found in the amendment to § 54.1-2600 of the Code of Virginia in Chapter 661 of the 2014 Acts of the Assembly.

Purpose: Chapter 661 of the 2014 Acts of Assembly authorizes a person "who has met the qualifications prescribed by the Board" to practice as an assistant speech-language pathologist under the supervision of a licensed speech-language pathologist. The purpose of the proposed regulatory action is to set out the qualifications for such a person, the scope of his practice, and the responsibilities of the licensed supervisor.

The practice of speech-language pathology includes "facilitating development and maintenance of human communication through programs of screening, identifying, assessing and interpreting, diagnosing, habilitating and rehabilitating speech-language disorders" (§ 54.1-2600 of the Code of Virginia). Unlicensed assistants may be utilized to extend but not replace the practice of a licensed SLP. The American Speech-Language-Hearing Association white paper on the scope of practice for assistants states: "The decision to shift responsibility for implementation of the more repetitive, mechanical, or routine clinical activities to SLPA's should be made only by qualified professionals and only when the quality of care and level of professionalism will not be compromised." The proposed regulatory action for the establishment of assistant competency and scope of practice is essential to ensure the quality and continuity of care under the legal and professional responsibility of a licensed SLP to protect the health and safety of clients receiving speech-language services.

Substance: Current regulations in 18VAC30-20-240 specify that a licensed speech-language pathologist shall provide documented supervision to unlicensed assistants, shall be held fully responsible for his performance and activities, and shall ensure that he performs only those activities that do not constitute the practice of speech-language pathology and that are commensurate with his level of training. Further, regulations provide that the identity of the unlicensed assistant shall be disclosed to the client prior to treatment and shall be made a part of the client's file.

Amendments to set out the qualifications of an assistant speech-language pathologist to include a bachelor's degree or associate's degree and specific training as necessary to be determined by the supervising SLP. Minimal competency in performance must be documented before the supervising SLP can assign tasks to the assistant. After demonstration of competency, the assistant may perform duties planned, designed, and supervised by a licensed SLP. Regulations specify which duties are appropriate to the practice of an assistant and which would constitute licensed practice of an SLP and therefore are not to be performed by an unlicensed assistant. Generally speaking, activities that require assessment and professional judgment in speech-language pathology are not appropriate for delegation to an assistant. Finally, regulations specify the supervisory responsibilities of the licensed SLP for the activities of the assistant, the number of assistants who may be supervised, the frequency with which there must be on-site supervision of assistants, and the frequency with which the licensed SLP must personally see and evaluate the client. Ultimate responsibility for the client and the outcomes of his care and treatment remains with the licensed SLP.

Issues: The primary advantage to the public is minimal qualifications for unlicensed assistants who are providing direct services to clients and clearer specifications about the appropriate role of an assistant and responsibility of a supervisor. There are no disadvantages as persons receiving services are better protected by proposed regulations.

There are no real advantages and disadvantages to the agency or the Commonwealth, except greater clarity and specification in regulation to reduce ambiguity for licensees.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 661 of the 2014 Acts of the Assembly, the Board of Audiology and Speech-Language Pathology proposes to amend its regulation to clarify rules for supervising unlicensed assistants and to set education and/or experience requirements that assistants must have in order for licensed speech-language pathologists to be able to hire or supervise them.

Result of Analysis. Benefits may outweigh costs for some of these proposed regulatory changes. For one regulatory change, there is insufficient information to ascertain whether benefits will outweigh costs. For one regulatory change, costs likely outweigh benefits.

Estimated Economic Impact. Current regulation requires licensed audiologists and licensed speech-language pathologists to provide documented supervision to their unlicensed assistants. Licensed audiologists and licensed speech-language pathologists are currently responsible for ensuring that assistants do not perform tasks that would constitute the practice of audiology or speech-language pathology¹ and must also ensure that assistants only perform tasks for which they have been trained.

In 2014, the General Assembly passed legislation, which reads "A person who has met the qualifications prescribed by the Board may practice as an assistant speech-language pathologist and may perform duties not otherwise restricted to the practice of a speech-language pathologist under the supervision of a speech-language pathologist."

Pursuant to this legislation, the Board now proposes to amend its regulation 1) so that rules for audiologists and speech-language pathologists are separate (with rules for audiologist supervision of assistants remaining unchanged), 2) to clarify the rules for supervision of assistants, 3) to specify which duties a speech-language pathologist assistant can perform and which would constitute the practice of speech-language pathology and 4) to set education requirements for those assistants. Most of the amendments that will clarify the rules for supervision and the duties that assistants may perform are not new but instead will formally delineate current practice in this regulation. Board staff reports, for instance, that the requirement for speech-language pathologists to provide on-site supervision of at least two assistant lead client sessions every 30 days and to directly provide at least one client session every 30 days is reported to be current practice in the field and is also required for CMS (Centers for Medicare and Medicaid Services) reimbursement for services. Clarifying changes such as these are unlikely to increase costs for any affected entity but will provide the benefit of greater understanding for the rules of supervision and provision of client services. Benefits will outweigh costs for these clarifying changes.

The Board newly proposes to limit the number of assistants that a speech-language pathologist may supervise at any time to two. Board staff reports that this limit is being imposed at the request of the Virginia Department of Education (VDOE) and of the speech-language pathologists that provided comment on the proposed regulation. To the extent that some speech-language pathologists may be currently supervising more than two assistants without compromising patient care, this change will likely adversely affect them as it will limit the number of clients they may serve. There is insufficient information available, however, to ascertain whether any benefits to clients that may accrue on account of speech-language pathologists being limited to two assistants will outweigh any adverse impacts to the speech-language pathologists themselves.

Board staff reports that the Board convened a Regulatory Advisory Panel (RAP) committee to provide subject matter expertise in developing the proposed regulation. This committee agreed that the responsibility for the training of assistants and for their practice belongs to the supervising speech-language pathologist. Board staff reports that the committee considered just requiring that assistants complete documented training with a licensed speech-language pathologist in topics that would allow them to complete assigned duties competently. By count, 7 of the 15 comments received at the NOIRA stage of this action suggested that assistants be required to have a bachelor's degree (one suggested that they be required to complete education specific to speech-language disorders). With that feedback the Board now proposes to require that assistants who are supervised by speech-language pathologists either 1) have been employed as an assistant in a U.S. jurisdiction at some time in the five years preceding the effective date of this proposed regulation or 2) have a bachelor's or associate's degree in any field and documented training by a speech-language pathologist. Board staff reports that the Board is not proposing formal education specifically in speech-language pathology because there are no associate's or bachelor's level programs in speech language pathology in the Commonwealth. Board staff further reports that there are several bachelors' programs in communication sciences and disorders in the Commonwealth: at Longwood University, the University of Virginia, James Madison University (JMU), Radford University, Old Dominion University (ODU), Hampton University and Norfolk State University.

These education requirements will likely cost new assistant speech-language pathologists entering the field after this proposed regulation becomes effective at least $20,000 for a two year associate's degree to many more tens of thousands of dollars for a bachelor's degree at a traditional four year university. The bachelors' programs in communications sciences and disorders reported by Board staff, and for which DPB could find cost information, would cost between $48,384 at ODU to $98,000 at JMU for a four year degree. These greatly increased costs to enter the field will likely limit the number of individuals able to work as assistant speech-language pathologists. This, in turn, will likely increase costs for local school districts and health care institutions that hire the majority of speech-language pathologists that will be competing to hire from a smaller pool of approved assistants. Speech language pathologists who work in private practice will also see increased costs, or a decreased client capacity with fewer assistants. These education requirements will also put future assistants at a competitive disadvantage when compared to assistants now working as they will have paid much more to enter the field which will not be as remunerative for them once they account for the financial outlay of required formal education. It is also likely hard to justify this education requirement when 1) there is likely little nexus between requiring just any degree and competent practice as an assistant and 2) there is no suggestion that current assistants are practicing incompetently with training from their supervising speech-language pathologist. Without some evidence that current assistant practice is suffering from issues that formal education would specifically address, all affected entities, including clients, would likely benefit from amending the proposed regulation to eliminate the requirement for formal higher education. Costs likely outweigh benefits for this proposed change.

Businesses and Entities Affected. Board staff reports that this proposed regulation will affect all speech-language pathologists in the Commonwealth as well as any assistants that they supervise. The Board currently licenses 3,662 speech-language pathologists but Board staff does not know how many individuals are employed as speech-language pathologist assistants. According to the Department of Health Profession's Healthcare Workforce Data Center, as of 2013 approximately 14% of speech-language pathologists worked in private practice and so would likely qualify as small businesses. All other speech-language pathologists work for either large health care institutions or school systems.

Localities Particularly Affected. New education requirements for speech-language pathologist assistants will require a bachelor's or associate's degree of assistants hired for the first time to do this job after the effective date of this proposed regulation. Local school systems that have not been requiring this level of education in the assistants that they hire will likely have a smaller pool of individuals to hire from and may have to pay more to secure the services of these individuals.

Projected Impact on Employment. This regulatory action will likely decrease the number of individuals who may be hired as speech-language pathologists.

Effects on the Use and Value of Private Property. To the extent that this regulatory action raises the cost of hiring speech-language pathology assistants, private practice speech-language pathologists as well as large health institutions may either choose to hire fewer assistants (thus somewhat limiting the number of clients they may serve) or may have to cover increased salary costs. Both of these responses to increased costs would tend to slightly decrease profits.

Small Businesses: Costs and Other Effects. Private practice speech-language pathologists may experience increased employment costs for hiring assistants once assistants are required to have a bachelor's or associate's degree.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Absent some evidence that current speech-language pathologist assistants are practicing in ways that would raise competency issues that are best addressed by the formal education requirements in this proposed regulation, speech-language pathologists, their assistants and their clients will likely benefit from eliminating those requirements and allowing speech-language pathologists to provide training in the specific tasks that they plan to assign their assistants.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

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¹ Assistants may not 1) hold themselves out as being an audiologist or speech-language pathologist, 2) perform any tests or evaluations, 3) perform procedures that require professional clinical skills, 4) interpret results of tests or evaluations or provide interpretive information on client status or services, 5) participate in conferences or meetings without the presence of their supervisor or 6) write, develop or modify client treatment plans.

Agency's Response to Economic Impact Analysis: The Board of Audiology and Speech-Language Pathology does not concur with the analysis of the Department of Planning and Budget (DPB) on 18VAC30-20, Regulations Governing the Practice of Audiology and Speech-Language, relating to its assertions about the unnecessary burden of requiring an associate's degree or bachelor's degree for persons working as speech-language pathology assistants.

At its meeting on June 11, 2015, the board considered the economic impact analysis prepared by DPB and chose to retain its original proposal for the following reasons:

1) While an assistant will perform activities as directed and supervised by a licensed speech-language pathologist (SLP), he will be providing significant services to clients, often with children or the elderly. The assistant must have the knowledge and skills to assist with screenings, assist with assessments, follow a treatment plan and document results, assist with programming devices and in training the client on such devices, and document performance and report to the SLP. Members concurred that a post-secondary level of education was essential for the core knowledge and skills to train an assistant for safe, competent practice. Much in the same way a basic baccalaureate degree is necessary to secure admission in graduate programs, the board believes an associate's or bachelor's degree should be the foundational educational level for an assistant who will then receive special training in speech-language pathology duties.

2) By setting the qualification at the associate or bachelor level, the regulation may open opportunities for persons who hold those degrees but do not have specialized training and experience that qualifies them for employment.

3) It is not accurate to state that there are no bachelor's level programs in speech-language pathology or communication disorders. The agency background document has been revised to clarify that such programs and degrees are available and do graduate several hundred persons each year.

4) Current capacity for hiring bachelor's degree persons should be more than adequate to meet demand. A master's degree is required for licensure as an SLP. Recent information from masters-level programs in speech-language pathology or communication-speech disorders in Virginia indicates that there are significantly more applicants with bachelor's degrees than slots in graduate programs. At James Madison University, there were 249 applications for the online program, and 20 were admitted; there were 349 applications for the on-campus program; 22 were admitted. At Longwood University, there were 240 applications, 50 were admitted with intent of securing a class of 22. At the University of Virginia, there were 300 applicants for 25 available seats. It is apparent that there are several hundred graduates who have an interest in speech-language disorders who do not qualify for licensure but would benefit from the opportunity to be hired as an assistant and gain valuable knowledge and experience to possibly help secure a position in a graduate program.

5) According to the Speech-Language Hearing Association of Virginia and the members of the Ad Hoc Committee and the board, speech-language pathologists who work in private practices do not currently hire persons as SLP assistants who have less than a bachelor's degree, so it is not accurate to state there they will see increased costs or a decreased client capacity.

6) The economic impact analysis stated that the Assistant Attorney General advised the board that it must include a requirement for "formal education." In fact, the Assistant Attorney General advised that the law specified that the board must set "qualifications" for an assistant speech-language pathologist and that allowing them to be trained on the job was not necessarily a qualification for practice.

7) Finally, there were six persons who commented on the Notice of Intended Regulatory Action that a bachelor's degree in speech-language or communication disorders should be the minimum qualification for an assistant SLP; two others stated that the minimum qualification should be a bachelor of arts degree or a bachelor of sciences degree.

Summary:

The proposed regulations for the supervision of unlicensed assistants include the (i) responsibility of the licensed speech-language pathologist for the training and assignment of duties of an assistant, (ii) qualifications of an assistant, (iii) duties that may be performed by an assistant, (iv) scope of practice of a speech-language pathologist that may not be delegated to an assistant, (v) the level and limitation on supervision of assistants, and (vi) the obligation of the licensee to provide the necessary level of supervision to ensure quality of care, including on-site observation of at least two client sessions for each assistant every 30 days and direct delivery of service to each client at least every 30 days.

18VAC30-20-240. Supervisory responsibilities; supervision of unlicensed assistants.

A. Responsibility of a licensee.

1. A licensed audiologist and speech-language pathologist shall provide documented supervision to who supervises unlicensed assistants shall document such supervision, shall be held fully responsible for their performance and activities, and shall ensure that they perform only those activities which that do not constitute the practice of audiology or speech-language pathology and which that are commensurate with their level of training.

2. A licensed speech-language pathologist who supervises unlicensed assistants shall document such supervision, shall be held fully responsible for their performance and activities, and shall ensure that they perform only those activities that do not constitute the practice of speech-language pathology and that are commensurate with their level of training.

a. A speech-language pathologist shall not supervise an assistant without the speech-language pathologist's knowledge and consent by the assistant and the licensee documented prior to assumption of supervisory responsibilities.

b. The frequency in which the speech-language pathologist personally delivers treatment or services to a client who is receiving some services from an assistant shall be up to the professional judgment of the speech-language pathologist and shall be determined by the treatment needs of the client, the type of services being provided, and the setting in which the client is being served, but shall occur at least every 30 days.

B. 3. The identity of the unlicensed assistant shall be disclosed to the client prior to treatment and shall be made a part of the client's file.

B. Qualifications of a speech-language pathologist assistant.

1. A person acting as a speech-language pathologist assistant shall have:

a. A bachelor's degree or associate's degree and documented training by a licensed speech-language pathologist in topics related to the client population to be served; or

b. Employment as a speech-language pathologist assistant in a United States jurisdiction within the last five years preceding (the effective date of the regulations).

2. A speech-language pathologist supervising an assistant shall be responsible for determining that the knowledge, skills, and clinical experience of the assistant are sufficient to ensure competency to perform all tasks to which the assistant is assigned. The speech-language pathologist shall document competency after training and direct observation of the assistant's performance of such tasks, and a record of skills and competencies shall be maintained.

C. Scope of practice of a speech-language pathologist assistant. After demonstration and documentation of competency for the duties to be assigned, an assistant shall only engage in those duties planned, designed, and supervised by a licensed speech-language pathologist, to include the following:

1. Assist with speech, language, and hearing screenings without clinical interpretation of results.

2. Assist during assessment of a client exclusive of administration or interpretation.

3. Perform activities for each session that are routine and do not require professional judgment, in accordance with a plan developed and directed by the speech-language pathologist who retains the professional responsibility for the client.

4. Document a client's performance and report information to the supervising speech-language pathologist.

5. Assist with programming augmentative and alternative communication devices and assist the client in repetitive use of such devices.

6. Sign or initial informal treatment notes and, upon request, co-sign formal documents with the supervising speech-language pathologist.

7. Engage in the following activities:

a. Preparing materials;

b. Scheduling appointments and activities;

c. Preparing charts, records, or graphs and performing other clerical duties;

d. Performing checks and maintenance of equipment; and

e. Assisting a client with transitioning to and from therapy sessions.

8. Perform duties not otherwise restricted to the practice of speech-language pathology.

D. A speech-language pathologist assistant shall not engage in the practice of speech-language pathology, including the following:

1. Represent himself as a speech-language pathologist.

2. Perform standardized or nonstandardized diagnostic tests or formal or informal evaluations.

3. Perform procedures that require a professional level of clinical acumen and technical skill.

4. Tabulate or interpret results and observations of feeding and swallowing evaluations or screenings performed by a speech-language pathologist.

5. Participate in formal conferences or meetings without the presence of the supervising speech-language pathologist.

6. Provide interpretative information to the client, the family of the client, or others regarding the client's status or service.

7. Write, develop, or modify a client's treatment plan.

8. Assist in or provide services as specified in subsection C of this section unless directed by the supervising speech-language pathologist.

9. Sign any formal documents in lieu of the supervising speech-language pathologist.

10. Select a client for service or discharge a client from service.

11. Make a decision on the need for additional services or make referrals for service.

12. Disclose clinical or confidential information either orally or in writing to anyone other than the supervising speech-language pathologist, unless mandated by law or authorized by the supervising speech-language pathologist.

13. Develop or determine the swallowing or feeding strategies or precautions for a client or provide feeding or swallowing treatment.

E. Supervision of an assistant in speech-language pathology.

1. The practice of an assistant shall only be supervised by a speech-language pathologist who retains full legal and ethical responsibility for the client. A speech-language pathologist shall only supervise the equivalent of two full-time assistants.

2. The speech-language pathologist shall provide the level of supervision to the speech-language pathologist assistant necessary to ensure quality of care to include on-site supervision of at least two client sessions for each assistant being supervised every 30 days to directly observe and evaluate the performance of the assistant. The speech-language pathologist shall document such on-site observation and evaluation in the client record for each session.

VA.R. Doc. No. R15-4179; Filed November 9, 2015, 9:58 a.m.