18VAC115-60 Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners

REGULATIONS

Vol. 25 Iss. 20 - June 08, 2009

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF COUNSELING

Chapter 60

Fast-Track Regulation

Titles of Regulations: 18VAC115-20. Regulations Governing the Practice of Professional Counseling (amending 18VAC115-20-45, 18VAC115-20-130).

18VAC115-50. Regulations Governing the Practice of Marriage and Family Therapy (amending 18VAC115-50-40, 18VAC115-50-110).

18VAC115-60. Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners (amending 18VAC115-60-50, 18VAC115-60-130).

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

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on July 8, 2009.

Effective Date: July 23, 2009.

Agency Contact: Evelyn B. Brown, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Counseling the authority to promulgate regulations to administer the regulatory system.

Purpose: The purpose of the action is to clarify and correct an oversight in the recent revisions of regulations. In an action that became final on September 3, 2008, the board added provisions for licensure by endorsement to allow persons who did not have educational and residency experience consistent with what is required for licensure in Virginia to be licensed based in part on their clinical experience in another state. It was assumed that the "clinical practice for five of the last six years" immediately preceding a licensure application in Virginia was "post-licensure" experience, so there would be a history of ethical, competent practice in another state on which to base a licensure decision in Virginia. Since the regulation does not specify "post-licensure" experience, a person has applied for licensure based on years of prelicensure experience in internship or residency. The board must clarify its intent in order to ensure that an applicant who does not otherwise meet its licensure requirements is competent and safe to practice – based on years of independent clinical practice as a licensee of another state board.

The Board of Counseling has two certified and three licensed professions. For many years, all of those professions, as well as those regulated by the Boards of Psychology and Social Work, have had a regulatory requirement for a practitioner to report incompetent or unprofessional conduct by another practitioner within the same profession and regulated by the same board. Several years ago, the Board of Counseling revised its regulations for the three licensed professions to require reporting of any mental health provider licensed by any health regulatory board. Board counsel subsequently decided that the mandate for reporting on any mental health provider exceeded the mandate in § 54.1-2400.6, which requires a practitioner to inform his patient of his right to report misconduct. Therefore, in an action that became final on July 25, 2007, regulations were changed from requiring reporting of any other mental health provider to informing the client of his right to report. At that time, the board failed to recapture the older language about reporting of another practitioner within the same profession. The reinstatement of the reporting requirement in the fast-track action will make all five Board of Counseling regulations consistent with each other and with regulations for psychology and social work. Without the amendment, the misconduct of another counselor, marriage and family therapy or licensed substance abuse may go unreported and harm to patients or their families would continue.

Rationale for Using Fast-Track Process: The fast-track process is being used to promulgate the amendments because there is unanimous agreement with the changes proposed. The action is not controversial and will resolve questions and issues that have come to the board in recent months.

Substance: The proposed action would insert “post-licensure” to the clinical experience required for licensure by endorsement and would reinsert a requirement to report misconduct by another licensee within the same profession in the standards of conduct.

Issues: There are no disadvantages to the public. For applicants who do not meet Virginia’s requirements for education and experience, the years of post-licensure clinical practice in another state provide a measure of competency that is important to persons who will receive mental health services by those licensees. A requirement for the licensee to report known or suspected violations of law or regulation within his profession also protects the public from persons who are incompetent or unethical in their practice.

There are no disadvantages to the agency or the Commonwealth. Clarification of the regulations will resolve some issues or questions that have been raised in recent months.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Counseling (Board) proposes to amend its regulations governing the practices of professional counseling, marriage and family therapy and licensed substance abuse practitioners. Specifically, the Board proposes to clarify that experience required for licensure by endorsement in these fields must be post-licensure experience. The Board also proposes to require that all individuals licensed under these regulations must report incompetent or unprofessional behavior on the part of other individuals licensed under the same regulations (i.e., professional counselors will be required to report incompetent practice of other professional counselors).

Result of Analysis. There is insufficient data to gauge whether benefits will likely outweigh costs for these proposed changes.

Estimated Economic Impact. The Board recently promulgated standards for licensure by endorsement for professional counselors, marriage and family therapists and licensed substance abuse practitioners. Amongst these standards is a requirement that applicants for licensure by endorsement provide evidence of active clinical practice for five of the six years immediately preceding application for Virginia licensure. The Department of Health Professions (DHP) reports that the Board assumed it was understood that the clinical experience required would be experience post-licensure such that the applicant had a "history of ethical, competent practice in another state on which to base a licensure decision in Virginia". Since standards for licensure by endorsement became final (September 3, 2008), the Board has received an application from an individual who submitted evidence of pre-licensure experience (during internship or residency) to meet the Board’s requirements.

Since the Board did not originally specify that experience for this program must be post-licensure, it proposes to amend these regulations with that stipulation. DHP reports that the Board intends to allow pre-licensure experience to be counted toward meeting the requirements for licensure by endorsement until these proposed changes are promulgated. This proposed regulatory change will bring current regulations into line with the Board’s original intent. To the extent that independent, post-licensure experience is a better indicator of future competence of practice than would be supervised, pre-licensure experience, this proposed change may prove beneficial for the future patients of individuals licensed by endorsement. Individuals who have not been licensed for at least five years in another state, but who would meet experience requirements for licensure by endorsement if their pre-licensure experience were counted, will not be able to qualify for licensure by endorsement under these proposed standards. These individuals may incur costs if other avenues for Virginia licensure require more resources or if these individuals are required to wait (for perhaps several years) before being able to qualify for licensure by endorsement.

For many years the Board required licensed or certified professionals that were subject to its regulations to report incompetent or unlawful conduct by any other practitioner within the same profession and regulated by the same board. Several years ago, the Board changed this rule so that individuals licensed by the Board were required to report unprofessional or unlawful conduct for any mental health provider licensed by any health regulatory board. On advice of Board counsel, this provision was emended in 2007 to instead require these licensees to inform their patients of the patients’ right to report misconduct.

The Board now proposes to amend these regulations by reinserting old language that requires licensees to report incompetent or unlawful conduct by other practitioners within the same profession. This proposed change will make reporting requirements for the three professions covered by these regulations consistent with those of other Board regulants. DHP reports that licensees covered by these regulations are likely not cognizant of the fact that that reporting requirements were inadvertently left out of these regulations when they were last amended. Accordingly, this proposed amendment may not have the affect of changing current licensee behavior. To the extent that some licensees may begin reporting misconduct that they formerly would not have, patients may be better protected from unprofessional or unlawful conduct on the part of their counselors/therapists. On the other hand, licensees will now be liable for reporting known or suspected misconduct and so may run afoul of the Board for not reporting bad conduct if the Board decides that conduct should have been reported.

Businesses and Entities Affected. These proposed regulations will affect all individuals licensed by the Board of Counseling. DHP reported in 2007 that the Board then licensed 2,884 licensed professional counselors, 838 marriage and family therapists and 177 licensed substance abuse practitioners.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. If this regulatory action leads to a smaller number of individuals being licensed by endorsement, there may end up being marginally fewer professionals in these fields practicing in the Commonwealth than there would be under current regulations.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

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

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Board of Counseling concurs with the analysis of the Department of Planning and Budget on proposed amended regulations for 18VAC115-20, Regulations Governing the Practice of Professional Counselors, 18VAC115-50, Regulations Governing the Practice of Marriage and Family Therapy, 18VAC115-60, Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners.

Summary:

The proposed amendments (i) specify that clinical practice experience required for licensure by endorsement must be post-licensure and (ii) requires licensees to report known or suspected violations of another licensee.

18VAC115-20-45. Prerequisites for licensure by endorsement.

A. Every applicant for licensure by endorsement shall submit in one package the following:

1. A completed application;

2. The application processing fee;

3. Verification of all professional licenses or certificates ever held in any other jurisdiction. In order to qualify for endorsement the applicant shall have no unresolved action against a license or certificate. The board will consider history of disciplinary action on a case-by-case basis;

4. Documentation of having completed education and experience requirements as specified in subsection B of this section;

5. Verification of a passing score on a licensure examination in the jurisdiction in which licensure was obtained; and

6. An affidavit of having read and understood the regulations and laws governing the practice of professional counseling in Virginia.

B. Every applicant for licensure by endorsement shall meet one of the following:

1. Educational requirements consistent with those specified in 18VAC115-20-49 and 18VAC115-20-51 and experience requirements consistent with those specified in 18VAC115-20-52; or

2. If an applicant does not have educational and experience credentials consistent with those required by this chapter, he shall provide:

a. Documentation of education and supervised experience that met the requirements of the jurisdiction in which he was initially licensed as verified by an official transcript and a certified copy of the original application materials; and

b. Evidence of post-licensure clinical practice for five of the last six years immediately preceding his licensure application in Virginia.

3. In lieu of transcripts verifying education and documentation verifying supervised experience, the board may accept verification from the credentials registry of the American Association of State Counseling Boards or any other board-recognized entity.

Part V
Standards of Practice; Unprofessional Conduct; Disciplinary Actions; Reinstatement

18VAC115-20-130. Standards of practice.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board. Regardless of the delivery method, whether in person, by phone or electronically, these standards shall apply to the practice of counseling.

B. Persons licensed by the board shall:

1. Practice in a manner that is in the best interest of the public and does not endanger the public health, safety, or welfare;

2. Practice only within the boundaries of their competence, based on their education, training, supervised experience and appropriate professional experience and represent their education, training, and experience accurately to clients;

3. Stay abreast of new counseling information, concepts, applications and practices that are necessary to providing appropriate, effective professional services;

4. Be able to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes;

5. Document the need for and steps taken to terminate a counseling relationship when it becomes clear that the client is not benefiting from the relationship. Document the assistance provided in making appropriate arrangements for the continuation of treatment for clients, when necessary, following termination of a counseling relationship;

6. Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

7. Disclose to clients all experimental methods of treatment and inform clients of the risks and benefits of any such treatment. Ensure that the welfare of the clients is in no way compromised in any experimentation or research involving those clients;

8. Neither accept nor give commissions, rebates, or other forms of remuneration for referral of clients for professional services;

9. Inform clients of the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services to be performed; the limitations of confidentiality; and other pertinent information when counseling is initiated and throughout the counseling process as necessary. Provide clients with accurate information regarding the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements;

10. Select tests for use with clients that are valid, reliable and appropriate and carefully interpret the performance of individuals not represented in standardized norms;

11. Determine whether a client is receiving services from another mental health service provider, and if so, refrain from providing services to the client without having an informed consent discussion with the client and having been granted communication privileges with the other professional;

12. Use only in connection with one's practice as a mental health professional those educational and professional degrees or titles that have been earned at a college or university accredited by an accrediting agency recognized by the United States Department of Education, or credentials granted by a national certifying agency, and that are counseling in nature; and

13. Advertise professional services fairly and accurately in a manner that is not false, misleading or deceptive.

C. In regard to patient records, persons licensed by the board shall:

1. Maintain written or electronic clinical records for each client to include treatment dates and identifying information to substantiate diagnosis and treatment plan, client progress, and termination;

2. Maintain client records securely, inform all employees of the requirements of confidentiality and provide for the destruction of records that are no longer useful in a manner that ensures client confidentiality;

3. Disclose or release records to others only with clients' expressed written consent or that of their legally authorized representative in accordance with § 32.1-127.1:03 of the Code of Virginia;

4. Ensure confidentiality in the usage of client records and clinical materials by obtaining informed consent from clients or their legally authorized representative before (i) videotaping, (ii) audio recording, (iii) permitting third party observation, or (iv) using identifiable client records and clinical materials in teaching, writing or public presentations; and

5. Maintain client records for a minimum of five years or as otherwise required by law from the date of termination of the counseling relationship with the following exceptions:

a. At minimum, records of a minor child shall be maintained for five years after attaining the age of majority (18) or 10 years following termination, whichever comes later;

b. Records that are required by contractual obligation or federal law to be maintained for a longer period of time; or

c. Records that have transferred to another mental health service provider or given to the client or his legally authorized representative.

D. In regard to dual relationships, persons licensed by the board shall:

1. Avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. Examples of such relationships include, but are not limited to, familial, social, financial, business, bartering, or close personal relationships with clients. Counselors shall take appropriate professional precautions when a dual relationship cannot be avoided, such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs;

2. Not engage in any type of sexual intimacies with clients or those included in a collateral relationship with the client and not counsel persons with whom they have had a sexual relationship. Counselors shall not engage in sexual intimacies with former clients within a minimum of five years after terminating the counseling relationship. Counselors who engage in such relationship after five years following termination shall have the responsibility to examine and document thoroughly that such relations do not have an exploitive nature, based on factors such as duration of counseling, amount of time since counseling, termination circumstances, client's personal history and mental status, or adverse impact on the client. A client's consent to, initiation of or participation in sexual behavior or involvement with a counselor does not change the nature of the conduct nor lift the regulatory prohibition;

3. Not engage in any sexual relationship or establish a counseling or psychotherapeutic relationship with a supervisee. Counselors shall avoid any nonsexual dual relationship with a supervisee in which there is a risk of exploitation or potential harm to the supervisee or the potential for interference with the supervisor's professional judgment; and

4. Recognize conflicts of interest and inform all parties of the nature and directions of loyalties and responsibilities involved.

E. Persons licensed by this board shall report to the board known or suspected violations of the laws and regulations governing the practice of professional counseling.

F. Persons licensed by the board shall advise their clients of their right to report to the Department of Health Professions any information of which the licensee may become aware in his professional capacity indicating that there is a reasonable probability that a person licensed or certified as a mental health service provider, as defined in § 54.1-2400.1 of the Code of Virginia, may have engaged in unethical, fraudulent or unprofessional conduct as defined by the pertinent licensing statutes and regulations.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (18VAC115-20)

Registration of Supervision, LPC Form 1– Post Graduate Degree Supervised Experience, (rev. 8/08).

Quarterly Evaluation, LPC Form 1-QE (rev. 8/08).

Licensure Verification of Out-of-State Supervisor, LPC Form 1-LV (rev. 8/08).

Licensure Application, LPC Form 2 (rev. 8/08).

Verification of Supervision – Post-Graduate Degree Supervised Experience, Form LPC 2-VS (rev. 8/08).

Coursework Outline Form, Form LPC 2-CO (rev. 8/08).

Verification of Internship Hours Towards the Residency, Form LPC 2-IR (rev. 8/08).

Verification of Internship, Form LPC 2-VI (rev. 8/08).

Verification of Licensure, Form LPC 2-VL (rev. 8/08).

Supervision Outline Form – Examination Applicants Only, Form LPC 2-SO (rev. 8/08).

Verification of Post-Licensure Clinical Practice, Endorsement Applicants Only, Form LPC-ECP (rev. 8/08) 8/09).

Continuing Education Summary Form (LPC) (rev. 8/07).

Application for Reinstatement of a Lapsed License (rev. 8/07).

18VAC115-50-40. Application for licensure by endorsement.

A. Every applicant for licensure by endorsement shall submit in one package:

1. A completed application;

2. The application processing and initial licensure fee prescribed in 18VAC115-50-20; and

3. Documentation of licensure as follows:

a. Verification of all professional licenses or certificates ever held in any other jurisdiction. In order to qualify for endorsement the applicant shall have no unresolved action against a license or certificate. The board will consider history of disciplinary action on a case-by-case basis;

b. Documentation of a marriage and family therapy license obtained by standards specified in subsection B of this section; or

c. If currently holding an unrestricted license as a professional counselor in Virginia, documentation of successful completion of the requirements set forth in 18VAC115-50-50, 18VAC115-50-55 and 18VAC115-50-60.

B. Every applicant for licensure by endorsement shall meet one of the following:

1. Educational requirements consistent with those specified in 18VAC115-50-50 and 18VAC115-50-55 and experience requirements consistent with those specified in 18VAC115-50-60; or

2. If an applicant does not have educational and experience credentials consistent with those required by this chapter, he shall provide:

a. Documentation of education and supervised experience that met the requirements of the jurisdiction in which he was initially licensed as verified by an official transcript and a certified copy of the original application materials; and

b. Evidence of post-licensure clinical practice for five of the last six years immediately preceding his licensure application in Virginia.

3. In lieu of transcripts verifying education and documentation verifying supervised experience, the board may accept verification from the credentials registry of the American Association of State Counseling Boards or any other board-recognized entity.

18VAC115-50-110. Standards of practice.

A. The protection of the public's health, safety and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board. Regardless of the delivery method, whether in person, by phone or electronically, these standards shall apply to the practice of marriage and family therapy.

B. Persons licensed by the board shall:

1. Practice in a manner that is in the best interest of the public and does not endanger the public health, safety, or welfare;

2. Practice only within the boundaries of their competence, based on their education, training, supervised experience and appropriate professional experience and represent their education, training, and experience accurately to clients;

3. Stay abreast of new marriage and family therapy information, concepts, applications and practices that are necessary to providing appropriate, effective professional services;

4. Be able to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes;

5. Document the need for and steps taken to terminate a counseling relationship when it becomes clear that the client is not benefiting from the relationship. Document the assistance provided in making appropriate arrangements for the continuation of treatment for clients, when necessary, following termination of a counseling relationship;

6. Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

7. Disclose to clients all experimental methods of treatment and inform client of the risks and benefits of any such treatment. Ensure that the welfare of the client is not compromised in any experimentation or research involving those clients;

8. Neither accept nor give commissions, rebates or other forms of remuneration for referral of clients for professional services;

9. Inform clients of the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services to be performed; the limitations of confidentiality; and other pertinent information when counseling is initiated and throughout the counseling process as necessary. Provide clients with accurate information regarding the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements;

10. Select tests for use with clients that are valid, reliable and appropriate and carefully interpret the performance of individuals not represented in standardized norms;

11. Determine whether a client is receiving services from another mental health service provider, and if so, refrain from providing services to the client without having an informed consent discussion with the client and having been granted communication privileges with the other professional;

12. Use only in connection with one's practice as a mental health professional those educational and professional degrees or titles that have been earned at a college or university accredited by an accrediting agency recognized by the United States Department of Education, or credentials granted by a national certifying agency, and that are counseling in nature; and

13. Advertise professional services fairly and accurately in a manner that is not false, misleading or deceptive.

C. In regard to patient records, persons licensed by the board shall:

1. Maintain written or electronic clinical records for each client to include treatment dates and identifying information to substantiate diagnosis and treatment plan, client progress, and termination;

2. Maintain client records securely, inform all employees of the requirements of confidentiality and provide for the destruction of records that are no longer useful in a manner that ensures client confidentiality;

3. Disclose or release client records to others only with clients' expressed written consent or that of their legally authorized representative in accordance with § 32.1-127.1:03 of the Code of Virginia;

4. Ensure confidentiality in the usage of client records and clinical materials by obtaining informed consent from clients or their legally authorized representative before (i) videotaping, (ii) audio recording, (iii) permitting third party observation, or (iv) using identifiable client records and clinical materials in teaching, writing, or public presentations; and

5. Maintain client records for a minimum of five years or as otherwise required by law from the date of termination of the counseling relationship with the following exceptions:

a. At minimum, records of a minor child shall be maintained for five years after attaining the age of majority (18) or 10 years following termination, whichever comes later;

b. Records that are required by contractual obligation or federal law to be maintained for a longer period of time; or

c. Records that have transferred to another mental health service provider or given to the client or his legally authorized representative.

D. In regard to dual relationships, persons licensed by the board shall:

1. Avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. Examples of such relationships include, but are not limited to, familial, social, financial, business, bartering, or close personal relationships with clients. Counselors shall take appropriate professional precautions when a dual relationship cannot be avoided, such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs;

2. Not engage in any type of sexual intimacies with clients or those included in a collateral relationship with the client and not counsel persons with whom they have had a sexual relationship. Marriage and family therapists shall not engage in sexual intimacies with former clients within a minimum of five years after terminating the counseling relationship. Marriage and family therapists who engage in such relationship after five years following termination shall have the responsibility to examine and document thoroughly that such relations do not have an exploitive nature, based on factors such as duration of counseling, amount of time since counseling, termination circumstances, client's personal history and mental status, or adverse impact on the client. A client's consent to, initiation of or participation in sexual behavior or involvement with a marriage and family therapist does not change the nature of the conduct nor lift the regulatory prohibition;

3. Not engage in any sexual relationship or establish a counseling or psychotherapeutic relationship with a supervisee. Marriage and family therapists shall avoid any nonsexual dual relationship with a supervisee in which there is a risk of exploitation or potential harm to the supervisee or the potential for interference with the supervisor's professional judgment; and

4. Recognize conflicts of interest and inform all parties of the nature and directions of loyalties and responsibilities involved.

E. Persons licensed by this board shall report to the board known or suspected violations of the laws and regulations governing the practice of marriage and family therapy.

F. Persons licensed by the board shall advise their clients of their right to report to the Department of Health Professions any information of which the licensee may become aware in his professional capacity indicating that there is a reasonable probability that a person licensed or certified as a mental health service provider, as defined in § 54.1-2400.1 of the Code of Virginia, may have engaged in unethical, fraudulent or unprofessional conduct as defined by the pertinent licensing statutes and regulations.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (18VAC115-50)

Marriage and Family Therapist Licensure Application, MFT Form 2 (rev. 8/08).

Verification of Licensure, MFT Form 2-VL (rev. 8/08).

Verification of Supervision – Post-Graduate Degree Supervised Experience, MFT Form 2-VS (rev. 8/08).

Licensure Verification of Out-of-State Supervisor, MFT Form 1-LV (rev. 8/08).

Quarterly Evaluation, MFT Form 1-QE (rev. 8/08).

Coursework Outline Form for Marriage and Family Therapist Licensure, MFT Form 2-CO (rev. 8/08).

Verification of Internship, MFT Form 2-VI (rev. 8/08).

Verification of Internship Hours Towards the Residency, MFT Form 2-IR (rev. 8/08).

Supervision Outline Examination Applicants Only, MFT Form 2-SO (rev. 8/08).

Verification of Post-Licensure Clinical Practice, Endorsement Applicants Only, Form MFT-ECP (rev. 8/08) 8/09).

Registration of Supervision - Marriage and Family Therapist Licensure, MFT Form 1 (rev. 8/08).

Application for Reinstatement of a Lapsed License (rev. 8/07).

Continuing Education Summary Form (LMFT) (rev. 8/07).

18VAC115-60-50. Prerequisites for licensure by endorsement.

A. Every applicant for licensure by endorsement shall submit in one package:

1. A completed application;

2. The application processing and initial licensure fee;

3. Verification of all professional licenses or certificates ever held in any other jurisdiction. In order to qualify for endorsement, the applicant shall have no unresolved disciplinary action against a license or certificate. The board will consider history of disciplinary action on a case-by-case basis;

4. Further documentation of one of the following:

a. A current substance abuse treatment license in good standing in another jurisdiction obtained by meeting requirements substantially equivalent to those set forth in this chapter; or

b. A mental health license in good standing in a category acceptable to the board which required completion of a master's degree in mental health to include 60 graduate semester hours in mental health; and

(1) Board-recognized national certification in substance abuse treatment;

(2) If the master's degree was in substance abuse treatment, two years of post-licensure experience in providing substance abuse treatment;

(3) If the master's degree was not in substance abuse treatment, five years of post-licensure experience in substance abuse treatment plus 12 credit hours of didactic training in the substance abuse treatment competencies set forth in 18VAC115-60-70 C; or

(4) Current substance abuse counselor certification in Virginia in good standing or a Virginia substance abuse treatment specialty licensure designation with two years of post-licensure or certification substance abuse treatment experience;

c. Documentation of education and supervised experience that met the requirements of the jurisdiction in which he was initially licensed as verified by an official transcript and a certified copy of the original application materials and evidence of post-licensure clinical practice for five of the last six years immediately preceding his licensure application in Virginia.

5. Verification of a passing score on a licensure examination as established by the jurisdiction in which licensure was obtained;

6. Official transcripts documenting the applicant's completion of the education requirements prescribed in 18VAC115-60-60 and 18VAC115-60-70; and

7. An affidavit of having read and understood the regulations and laws governing the practice of substance abuse treatment in Virginia.

B. In lieu of transcripts verifying education and documentation verifying supervised experience, the board may accept verification from the credentials registry of the American Association of State Counseling Boards or any other board-recognized entity.

Part V
Standards of Practice; Unprofessional Conduct; Disciplinary Actions; Reinstatement

18VAC115-60-130. Standards of practice.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board. Regardless of the delivery method, whether in person, by phone or electronically, these standards shall apply to the practice of substance abuse treatment.

B. Persons licensed by the board shall:

1. Practice in a manner that is in the best interest of the public and does not endanger the public health, safety, or welfare;

2. Practice only within the boundaries of their competence, based on their education, training, supervised experience and appropriate professional experience and represent their education, training and experience accurately to clients;

3. Stay abreast of new substance abuse treatment information, concepts, application and practices that are necessary to providing appropriate, effective professional services;

4. Be able to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes;

5. Document the need for and steps taken to terminate a counseling relationship when it becomes clear that the client is not benefiting from the relationship. Document the assistance provided in making appropriate arrangements for the continuation of treatment for clients, when necessary, following termination of a counseling relationship;

6. Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

7. Disclose to clients all experimental methods of treatment and inform clients of the risks and benefits of any such treatment. Ensure that the welfare of the clients is in no way compromised in any experimentation or research involving those clients;

8. Neither accept nor give commissions, rebates, or other forms of remuneration for referral of clients for professional services;

9. Inform clients of the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services to be performed; the limitations of confidentiality; and other pertinent information when counseling is initiated and throughout the counseling process as necessary. Provide clients with accurate information regarding the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements;

10. Select tests for use with clients that are valid, reliable and appropriate and carefully interpret the performance of individuals not represented in standardized norms;

11. Determine whether a client is receiving services from another mental health service provider, and if so, refrain from providing services to the client without having an informed consent discussion with the client and having been granted communication privileges with the other professional;

12. Use only in connection with one's practice as a mental health professional those educational and professional degrees or titles that have been earned at a college or university accredited by an accrediting agency recognized by the United States Department of Education, or credentials granted by a national certifying agency, and that are counseling in nature; and

13. Advertise professional services fairly and accurately in a manner that is not false, misleading or deceptive.

C. In regard to patient records, persons licensed by the board shall:

1. Maintain written or electronic clinical records for each client to include treatment dates and identifying information to substantiate diagnosis and treatment plan, client progress, and termination;

2. Maintain client records securely, inform all employees of the requirements of confidentiality and provide for the destruction of records that are no longer useful in a manner that ensures client confidentiality;

3. Disclose or release records to others only with clients' expressed written consent or that of their legally authorized representative in accordance with § 32.1-127.1:03 of the Code of Virginia;

4. Maintain client records for a minimum of five years or as otherwise required by law from the date of termination of the substance abuse treatment relationship with the following exceptions:

a. At minimum, records of a minor child shall be maintained for five years after attaining the age of majority (18) or 10 years following termination, whichever comes later;

b. Records that are required by contractual obligation or federal law to be maintained for a longer period of time; or

c. Records that have transferred to another mental health service provider or given to the client; and

5. Ensure confidentiality in the usage of client records and clinical materials by obtaining informed consent from clients or their legally authorized representative before (i) videotaping, (ii) audio recording, (iii) permitting third party observation, or (iv) using identifiable client records and clinical materials in teaching, writing or public presentations.

D. In regard to dual relationships, persons licensed by the board shall:

1. Avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. Examples of such relationships include, but are not limited to, familial, social, financial, business, bartering, or close personal relationships with clients. Counselors shall take appropriate professional precautions when a dual relationship cannot be avoided, such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs;

2. Not engage in any type of sexual intimacies with clients or those included in a collateral relationship with the client and not counsel persons with whom they have had a sexual relationship. Licensed substance abuse treatment practitioners shall not engage in sexual intimacies with former clients within a minimum of five years after terminating the counseling relationship. Licensed substance abuse treatment practitioners who engage in such relationship after five years following termination shall have the responsibility to examine and document thoroughly that such relations do not have an exploitive nature, based on factors such as duration of counseling, amount of time since counseling, termination circumstances, client's personal history and mental status, or adverse impact on the client. A client's consent to, initiation of or participation in sexual behavior or involvement with a licensed substance abuse treatment practitioner does not change the nature of the conduct nor lift the regulatory prohibition;

3. Not engage in any sexual relationship or establish a counseling or psychotherapeutic relationship with a supervisee. Licensed substance abuse treatment practitioners shall avoid any nonsexual dual relationship with a supervisee in which there is a risk of exploitation or potential harm to the supervisee or the potential for interference with the supervisor's professional judgment; and

4. Recognize conflicts of interest and inform all parties of the nature and directions of loyalties and responsibilities involved.

E. Persons licensed by this board shall report to the board known or suspected violations of the laws and regulations governing the practice of substance abuse treatment.

F. Persons licensed by the board shall advise their clients of their right to report to the Department of Health Professions any information of which the licensee may become aware in his professional capacity indicating that there is a reasonable probability that a person licensed or certified as a mental health service provider, as defined in § 54.1-2400.1 of the Code of Virginia, may have engaged in unethical, fraudulent or unprofessional conduct as defined by the pertinent licensing statutes and regulations.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (18VAC115-60)

Licensed Substance Abuse Treatment Practitioner Licensure Application, LSATP Form 2 (rev. 8/08).

Verification of Licensure, Form LSATP 2-VL (rev. 8/08).

Verification of Supervision – Post Graduate Degree Supervised Experience, LSATP 2-VS (rev. 8/08).

Supervisor's Experience and Education, (rev. 8/08).

Licensure Verification of Out-of-State Supervisor, LSATP Form 1-LV (rev. 8/08).

Coursework Outline Form, Form LSATP 2-CO (rev. 8/08).

Verification of Internship, Form LSATP 2-VI (rev. 8/08).

Verification of Internship Hours Towards the Residency, Form LSATP 2-IR (rev. 8/08).

Registration of Supervision – Post Graduate Degree Supervised Experience, LSATP Form 1 (rev. 8/08).

Quarterly Evaluation Form, LSATP Form 1-QE (rev. 8/08).

Supervision Outline Form – Examination Applicants Only, Form LSATP 2-SO (rev. 8/08).

Verification of Post-Licensure Clinical Practice, Endorsement Applicants Only, Form LSATP-ECP (rev. 8/08) 8/09).

Licensed Substance Abuse Treatment Practitioner Application for Reinstatement of a Lapsed Certificate (rev. 8/07).

Continuing Education Summary Form (LSATP) (rev. 8/07).

VA.R. Doc. No. R09-1724; Filed May 20, 2009, 11:18 a.m.