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

18VAC115-30. Regulations Governing the Certification of Substance Abuse Counselors and Substance Abuse Counseling (amending 18VAC115-30-30).

18VAC115-40. Regulations Governing the Certification of Rehabilitation Providers (amending 18VAC115-40-20).

18VAC115-50. Regulations Governing the Practice of Marriage and Family Therapy (amending 18VAC115-50-20).

18VAC115-60. Regulations Governing the Practice of Licensed Substance Abuse Treatment Practitioners (amending 18VAC115-60-20).

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

Public Hearing Information:

September 22, 2016 - 10 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Conference Center, 2nd floor, Henrico, VA

Public Comment Deadline: October 21, 2016.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility to promulgate regulations in accordance with the Administrative Process Act that are reasonable and necessary and the authority to levy and collect fees that are sufficient to cover all expenses for the administration of a regulatory program.

Section 54.1-113 of the Code of Virginia requires the board to revise the fees levied by it for certification or licensure and renewal so that the fees are sufficient but not excessive to cover expenses.

Purpose: The issue to be addressed is the need of the Board of Counseling to increase its fees to cover expenses for essential functions of review of applications, licensing, investigation of complaints against licensees, and adjudication and monitoring of disciplinary cases required for public health and safety in the Commonwealth.

Without adequate revenue to support licensing and discipline functions, applicants cannot be approved for licensure in a timely manner thus depriving the citizens of the Commonwealth with some of the mental health services that are needed. Additionally, if there is a substantial backlog of disciplinary cases, public health and safety may be at risk by allowing practitioners guilty of unprofessional conduct to continue in practice for several months awaiting a review and adjudication of an investigative report.

Substance: Renewal fees for the three licensed professions will increase from $105 to $130; for the certified professions, the increase will be from $55 to $65. Application and initial licensure fees for the licensed professions will increase from $140 to $175; for the certified professions, the increase will be from $90 to $115. All other fees will be increased by approximately 25%.

Issues: The primary advantage to the public is that increased fees will produce adequate revenue to fund the licensing and disciplinary activities of the board. With a shortfall of $339,084 projected in fiscal year 2021, there could be significant delays in licensing and in the investigation and adjudication of complaints against licensees. There are no disadvantages; increases in renewal fees should not significantly impact the cost of counseling services for Virginians.

There are no disadvantages to the agency; the advantage is that fees would be sufficient to cover expenditures, which is a requirement of the Code of Virginia.

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 to: 1) remove obsolete language on fee decreases that occurred in 2010 and 2) increase most fees for professional counselors, substance abuse counselors and substance abuse counseling assistants, rehabilitation providers, marriage and family therapist and substance abuse treatment practitioners who are governed by Board regulations.

Result of Analysis. Benefits outweigh costs for one proposed change. There is insufficient information to ascertain whether benefits will outweigh costs for other changes.

Estimated Economic Impact. In 2010, the Board promulgated a one-time fee reduction for its regulated entities because the Board had surplus revenues that were anticipated to exceed expenditures by greater than 10%. The Board now proposes to remove obsolete language for those fee reductions from the regulations for rehabilitation providers and substance abuse treatment practitioners. No one will incur costs on account of this proposed change. Removing this obsolete language will benefit individuals who read these regulations and might find that language confusing.

In addition to removing obsolete language from these regulations, the Board also proposes to raise most fees for professional counselors, substance abuse counselors and substance abuse counseling assistants, rehabilitation providers, marriage and family therapists and substance abuse treatment practitioners. The Board specifically proposes to raise renewal fees for the three professions it licenses from $105 to $130; renewal fees for the three professions that the Board certifies will increase from $55 to $65. Other fees associated with these professions will also increase as described in the charts below.

Fees for licensure of professional counselors:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Annual Active License Renewal	$105	$130	23.8%
Annual Inactive License Renewal	$55	$65	18.18%
Initial Licensure by Examination	$140	$175	25%
Initial Licensure by Endorsement	$140	$175	25%
Registration of Supervision	$50	$65	30%
Adding or Changing Supervisor	$25	$30	20%
Duplicate License	$5	$10	100%
Verification of Licensure to Another Jurisdiction	$25	$30	20%
Late Renewal	$35	$45	28.57%
Reinstatement of a Lapsed License	$165	$200	21.21%
Replacement or Additional Wall Certificate	$15	$25	66.67%
Reinstatement after Revocation or Suspension	$500	$600	20%

Fees for certification of substance abuse counselors and substance abuse counseling assistants:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Substance Abuse Counselor Annual Renewal	$55	$65	18.18%
Substance Abuse Counseling Assistant Annual Renewal	$40	$50	25%
Initial Certification by Examination	$90	$115	27.78%
Initial Certification by Endorsement	$90	$115	27.78%
Registration of Supervision	$50	$65	30%
Adding or Changing Supervisor	$25	$30	20%
Duplicate Certificate	$5	$10	100%
Late Renewal	$20	$25	25%
Reinstatement of a Lapsed Certificate	$100	$125	25%
Replacement or Additional Wall Certificate	$15	$25	66.67%
Reinstatement after Revocation or Suspension	$500	$600	20%

Fees for certification of rehabilitation providers:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Initial Certification by Examination	$90	$115	27.78%
Initial Certification by Endorsement	$90	$115	27.78%
Certification Renewal	$55	$65	18.18%
Duplicate Certificate	$5	$10	100%
Late Renewal	$20	$25	25%
Reinstatement of Lapsed Certificate	$100	$125	25%
Replacement or Additional Wall Certificate	$15	$25	66.67%
Reinstatement following Revocation or Suspension	$500	$600	20%

Fees for licensure of marriage and family therapists:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Annual Active License Renewal	$105	$130	23.8%
Annual Inactive License Renewal	$55	$65	18.18%
Initial Licensure by Examination	$140	$175	25%
Initial Licensure by Endorsement	$140	$175	25%
Registration of Supervision	$50	$65	30%
Adding or Changing Supervisor	$25	$30	20%
Duplicate License	$5	$10	100%
Verification of Licensure to Another Jurisdiction	$25	$30	20%
Late Renewal	$35	$45	28.57%
Reinstatement of a Lapsed License	$165	$200	21.21%
Replacement or Additional Wall Certificate	$15	$25	66.67%
Reinstatement after Revocation or Suspension	$500	$600	20%
One Time 2010 Reduction for Renewal of an Active License	$52	obsolete	N/A
One Time 2010 Reduction for Renewal of an Inactive License	$27	obsolete	N/A

Fees for licensure of substance abuse treatment practitioners:

FEE TYPE	CURRENT FEE	PROPOSED FEE	% INCREASE
Annual Active License Renewal	$105	$130	23.8%
Annual Inactive License Renewal	$55	$65	18.18%
Initial Licensure by Examination	$140	$175	25%
Initial Licensure by Endorsement	$140	$175	25%
Registration of Supervision	$50	$65	30%
Adding or Changing Supervisor	$25	$30	20%
Duplicate License	$5	$10	100%
Verification of Licensure to Another Jurisdiction	$25	$30	20%
Late Renewal	$35	$45	28.57%
Reinstatement of a Lapsed License	$165	$200	21.21%
Replacement or Additional Wall Certificate	$15	$25	66.67%
Reinstatement after Revocation or Suspension	$500	$600	20%
One Time 2010 Reduction for Renewal of an Active License	$52	obsolete	N/A
One Time 2010 Reduction for Renewal of an Inactive License	$27	obsolete	N/A

The Board proposes to raise these fees because current fee levels are forecasted to be inadequate to support Board activities by fiscal year 2021 (with current fees, the Board is projected to run a deficit of $339,084 in that year). These proposed fee increases will allow the Board to maintain licensing and disciplinary functions going into the future. Individuals licensed through the Board's regulations will incur costs equal to the fee increases they will be responsible for. Any increase in costs for entering or remaining in a profession can be expected to decrease the number of individuals choosing to do so (as their costs for continuing to work in the subject field would be increasing relative to other employment options). These fee increases, however, are relatively small and so would be unlikely to affect the employment decisions of most of the Board's licensees and certificate holders. To the extent that these regulatory programs are necessary to protect the health and safety of the citizens of Virginia, those citizens will benefit from fee increase to fund additional DHP staff positions to support the licensing and disciplinary functions of the Board.

Businesses and Entities Affected. Board staff reports that the Board currently licenses 4,383 professional counselors, 847 marriage and family therapists and 176 substance abuse treatment practitioners. The Board also certifies 1,685 substance abuse counselors, 170 substance abuse counseling assistants and 250 rehabilitation providers. All of these individuals, as well as any individuals who choose to seek licensure or certification in the future, will be affected by these proposed regulations. Board staff reports that certified substance abuse counselors and substance abuse counseling assistants work for employers such as government agencies and health care systems but many individuals in the other licensed or certified groups are likely independent practitioners who would qualify as small businesses.

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

Projected Impact on Employment. Raising licensure and certification fees may cause some individuals who are licensed or certified to leave their professions. As these fee increases are small, that effect would likely be negligible in this instance.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs in the Commonwealth.

Small Businesses:

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

Costs and Other Effects. Small business licensees and certificate holders will incur costs equal to the proposed increase in fees in their professions.

Alternative Method that Minimizes Adverse Impact. There are likely no alternative methods that would both meet the Board's goal of increasing staff to meet workload needs and further minimize adverse impacts for regulated entities.

Adverse Impacts:

Businesses. Licensees and certificate holders who practice independently will incur costs on account of this proposed regulation that are equal to the fee increases in their professions.

Localities. Localities in the Commonwealth are unlikely to see any adverse impacts on account of this proposed regulatory change.

Other Entities. Individual licensees and certificate holders who are employed by other entities will incur costs on account of this proposed regulation that are equal to the fee increases in their professions.

Agency's Response to Economic Impact Analysis: The Board of Counseling does not concur with the analysis of the Department of Planning and Budget on proposed amended regulations for fee increases. On page 6 of the analysis, it is stated that: "The Board proposes to raise these fees to fund their part of the six positions that were recently approved for the Department of Health Professions." In fact, the department's request for additional full-time positions was made in December of 2015, and members of the board received a letter from the director in May of 2015 advising them of the need to increase fees. There was no contemplation of any additional positions at the time the board adopted a Notice of Intended Regulatory Action in September of 2015. The need to increase fees was related to the budget and projected revenues and expenditures at the end of the 2014-2016 biennium.

The one new position approved for the Board of Counseling in the department's next budget is a replacement for a temporary employee who has been with the board since 2011. Therefore, there will be some additional costs associated with converting a temporary position to a full-time employee, but those costs are unrelated to the action taken to increase fees to cover expenditures as mandated by § 54.1-113 of the Code of Virginia.

The board further disagrees with the statements that "any increase in costs for entering or remaining in a profession can be expected to decrease the number of individuals choosing to do so" and "raising licensure and certification fees may cause some individuals who are licensed or certified to leave their professions." An increase of $25 in annual renewal costs for a licensed profession (less than one family dinner at a fast-food restaurant) is unlikely to affect anyone's decision to remain in that profession. An increase of $10 for certified professions is also not likely to cause someone to leave. Likewise, a $35 increase in application costs for a licensed profession is unlikely to decrease the number of individuals choosing to enter the profession.

The analysis also failed to note that the board has not had a fee increase in over 15 years and has, in fact, reduced renewal fees four times during that period. Therefore, the licensure and certification costs under the Board of Counseling have been kept well below all other costs related to entering or maintaining these professions in the last 15 years.

Summary:

The proposed amendments (i) increase renewal fees for licensed professional counselors, marriage and family therapists, and substance abuse professionals (licensed professions) from $105 to $130 and for certified substance abuse counselors and rehabilitation providers (certified professions) from $55 to $65; (ii) increase application and initial licensure fees for the licensed professions from $140 to $175 and for the certified professions from $90 to $115; and (iii) increase all other fees by approximately 25%.

18VAC115-20-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a professional counselor:

Active annual license renewal	$105 $130
Inactive annual license renewal	$55 $65
Initial licensure by examination: Application processing and initial licensure	$140 $175
Initial licensure by endorsement: Application processing and initial licensure	$140 $175
Registration of supervision	$50 $65
Add or change supervisor	$25 $30
Duplicate license	$5 $10
Verification of licensure to another jurisdiction	$25 $30
Late renewal	$35 $45
Reinstatement of a lapsed license	$165 $200
Replacement of or additional wall certificate	$15 $25
Returned check	$35
Reinstatement following revocation or suspension	$500 $600

B. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

18VAC115-30-30. Fees required by the board.

A. The board has established the following fees applicable to the certification of substance abuse counselors and substance abuse counseling assistants:

Substance abuse counselor annual certification renewal	$55 $65
Substance abuse counseling assistant annual certification renewal	$40 $50
Substance abuse counselor initial certification by examination: Application processing and initial certification	$90 $115
Substance abuse counseling assistant initial certification by examination: Application processing and initial certification	$90 $115
Initial certification by endorsement of substance abuse counselors: Application processing and initial certification	$90 $115
Registration of supervision	$50 $65
Add or change supervisor	$25 $30
Duplicate certificate	$5 $10
Late renewal	$20 $25
Reinstatement of a lapsed certificate	$100 $125
Replacement of or additional wall certificate	$15 $25
Returned check	$35
Reinstatement following revocation or suspension	$500 $600

B. All fees are nonrefundable.

18VAC115-40-20. Fees required by the board.

A. The board has established the following fees applicable to the certification of rehabilitation providers:

Initial certification by examination: Processing and initial certification	$90 $115
Initial certification by endorsement: Processing and initial certification	$90 $115
Certification renewal	$55 $65
Duplicate certificate	$5 $10
Late renewal	$20 $25
Reinstatement of a lapsed certificate	$100 $125
Replacement of or additional wall certificate	$15 $25
Returned check	$35
Reinstatement following revocation or suspension	$500 $600

B. Fees shall be paid to the board. All fees are nonrefundable.

18VAC115-50-20. Fees.

A. The board has established fees for the following:

Registration of supervision	$50 $65
Add or change supervisor	$25 $30
Initial licensure by examination: Processing and initial licensure	$140 $175
Initial licensure by endorsement: Processing and initial licensure	$140 $175
Active annual license renewal	$105 $130
Inactive annual license renewal	$55 $65
Penalty for late renewal	$35 $45
Reinstatement of a lapsed license	$165 $200
Verification of license to another jurisdiction	$25 $30
Additional or replacement licenses	$5 $10
Additional or replacement wall certificates	$15 $25
Returned check	$35
Reinstatement following revocation or suspension	$500 $600
One-time reduction for renewal of an active license due on June 30, 2010	$52
One-time reduction for renewal of an inactive license due on June 30, 2010	$27

B. Fees shall be paid to the board or its contractor or both in appropriate amounts as specified in the application instructions. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.

18VAC115-60-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as a substance abuse treatment practitioner:

Registration of supervision (initial)	$50 $65
Add/change supervisor	$25 $30
Initial licensure by examination: Processing and initial licensure	$140 $175
Initial licensure by endorsement: Processing and initial licensure	$140 $175
Active annual license renewal	$105 $130
Inactive annual license renewal	$55 $65
Duplicate license	$5 $10
Verification of license to another jurisdiction	$25 $30
Late renewal	$35 $45
Reinstatement of a lapsed license	$165 $200
Replacement of or additional wall certificate	$15 $25
Returned check	$35
Reinstatement following revocation or suspension	$500 $600
One-time reduction for renewal of an active license due on June 30, 2010	$52
One-time reduction for renewal of an inactive license due on June 30, 2010	$27

B. Fees shall be paid directly to the board or its contractor, or both, in appropriate amounts as specified in the application instructions. All fees are nonrefundable.

C. Examination fees shall be determined and made payable as determined by the board.