Title of Regulation: 18VAC125-20. Regulations Governing the Practice of Psychology (amending 18VAC125-20-10, 18VAC125-20-150).

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

Public Hearing Information:

October 27, 2020 - 9:45 a.m. - WebEx meeting - A link and instructions to access the electronic meeting will be posted at https://townhall.virginia.gov/L/ViewMeeting.
cfm?MeetingID=31196 on the Virginia Regulatory Town Hall.

Public Comment Deadline: October 30, 2020.

Agency Contact: Jaime Hoyle, Executive Director, Board of Psychology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 327-4435, or email jaime.hoyle@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Psychology the authority to promulgate regulations to administer the regulatory system and states that such regulation "shall not conflict with the purposes and intent of ... Chapter 1 (§ 54.1-100 et seq.)" of the Code of Virginia. Section 54.1-100 of the Code of Virginia specifies that a regulation shall not be imposed except for the purpose of protection of the health, safety, and welfare of the public, which is the intent of this action.

Purpose: The purpose of this regulatory action is to specify in regulations the interpretation of the board that conversion therapy has the potential for significant harm if practiced with persons younger than 18 years of age. The regulations define the term consistent with accepted usage within the profession and consistent with policy statements by state and national professional organizations.

Substance: For the purposes of the regulatory action, "conversion therapy" or "sexual orientation change efforts" is defined as any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. "Conversion therapy" does not include counseling that provides assistance to a person undergoing gender transition or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change an individual's sexual orientation or gender identity in any direction.

Issues: The primary advantage to the public is protection for children who might otherwise be subjected to reparative or conversion therapy. The board does not believe there are disadvantages because practitioners can provide assistance to a person undergoing gender transition or counseling that offers acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development.

There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Psychology (Board) proposes to amend 18VAC125-20 Regulations Governing the Practice of Psychology (regulations) in order to add a definition of "conversion therapy" and a stipulation that licensees shall not engage in conversion therapy with individuals under 18 years of age.

Background. During the 2018 General Assembly Session, Delegates Patrick A. Hope and Betsy B. Carr introduced a bill (HB 363) that provided a definition of "sexual orientation change efforts" (SOCE) and would "prohibit any health care provider or person who performs counseling as part of his training for any profession licensed by a regulatory board of the Department of Health Professions (DHP) from engaging in sexual orientation change efforts with a person under 18 years of age."¹ The bill was referred to the Committee on Health, Welfare and Institutions and assigned to a subcommittee where, in the course of their deliberations, the question was raised as to why the issue had not already been addressed by licensing boards. The bill was passed by indefinitely and left in subcommittee.

Subsequently, the President of the Board of Psychology recommended that the Director of DHP convene a workgroup to discuss the issue. The workgroup met on October 5, 2018, and included representatives from the Boards of Counseling, Medicine, Psychology and Social Work. After substantial debate, most members concurred that there was a need for more protection of children. It was agreed that each board would have to make the decision whether to promulgate regulation.

The proposed amendments mirror the language of HB 363, and define conversion therapy in some detail:

"Conversion therapy" means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. Conversion therapy does not include:

1. Psychological services that provide assistance to a person undergoing gender transition; or

2. Psychological services that provide acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such services do not seek to change an individual's sexual orientation or gender identity in any direction.

This definition appears to be consistent with those adopted by the American Psychological Association, the American Psychiatric Association, and other professional associations.²

In general, DHP reports that licensed psychologists are not taught conversion therapy as part of their professional training, and that the agency has not received any complaints or reports of licensees practicing conversion therapy. However, national associations of psychologists and medical professionals have adopted resolutions and position statements based on research conducted over the past two decades regarding the effects of conversion therapy, particularly on minors.^3,4,5 Hence, the Board is proposing these amendments based on its authority to impose regulations for the protection of the health, safety, and welfare of the public. The Boards of Counseling, Psychology, Medicine, and Nursing have also initiated regulatory actions with nearly identical proposed changes.⁶

In contrast, some religious organizations continue to offer conversion therapy. The organizations, including programs aimed at teenagers and young adults, may use different terminologies such as 'ex-gay ministry', 'reparative therapy', or 'promoting healthy sexuality' but the programs seek to change the individual's sexual orientation or gender identity, thus appearing to meet the Board's definition of conversion therapy. However, religious counselors (rabbis, priests, ministers, or clergymen) are exempt from the requirement for licensure.⁷ As a result, the content of this regulation would not apply to them. Accordingly, the Board has no authority to take disciplinary action against religious organizations and affiliated counselors who continue to provide conversion therapy, unless they are also licensed by the Board.

Estimated Benefits and Costs. For the reasons described above, it is unlikely that psychologists licensed by the Board presently provide conversion therapy. Moreover, programs that are conducted in a religious setting by rabbis, priests, ministers or clergymen are exempt from licensure. Hence, although the proposed regulation has received 351 public comments and may appear to be controversial, it is unlikely to have substantive economic impact.

To the extent that the Board's licensees are currently engaging in conversion therapy with individuals under 18 years of age, they may now have to change their practice, lose clients, or face disciplinary action if they fail to comply with the regulation. However, as mentioned previously, conversion therapy is not an evidence-based practice and is hence not included in the curriculum at accredited psychology programs and not practiced by the vast majority of licensed psychologists. Any current license-holders choosing to forfeit their licensure in favor of continuing to practice conversion therapy may continue to do so if employed as a rabbi, priest, minister or clergyman, as long as they belong to "an established and legally cognizable church, denomination or sect" and remain "accountable to its established authority."⁸

Clients under age 18, who seek to receive, or continue receiving, conversion therapy from licensed providers, and their parents, may now face certain indirect costs if they choose to find other providers. The amount of the cost would depend upon the availability of providers, including religious counselors. Conversely, children and their parents may be benefited to the degree the board's action limits the availability of conversion therapy. The degree of this benefit would depend upon the extent to which the harms cited by the professional organizations noted above would have occurred but for this regulatory action.

Businesses and Other Entities Affected. As mentioned above, some licensed psychologists who may also have been working in a religious setting may have to alter their practice or face disciplinary action, but DHP estimates that these are most likely a very small fraction of the overall number of license-holders.⁹ Although DHP does not have an estimate of the number of affected providers, the agency reports that the vast majority of current license-holders likely do not engage in conversion therapy at all (in either religious or secular settings) since it has been considered contrary to the "professional code of ethics" for more than a decade.

Small Businesses¹⁰ Affected. Although many licensed practitioners may be employed in a small business setting, DHP estimates that only a very small fraction of the overall number of license-holders would be affected by the regulation at all, and there is no reason to suggest that those affected are more likely to be working in a small business. Even so, the cost of complying with the regulation is unlikely to be significant. Finally, there are no alternatives to the regulation that would provide greater flexibility while also meeting its policy objectives.

Localities¹¹ Affected.¹² The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed amendments are unlikely to affect the overall number of psychologists.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use and value of private property. Real estate development costs are not affected.

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¹See http://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil&
val=hb363

²See https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf?response_type=embed and citations therein.

³See https://www.apa.org/about/policy/sexual-orientation The American Psychological Association convened a task force whose 2009 report Appropriate Therapeutic Responses to Sexual Orientation states "…Thus, the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE. We found that there was some evidence to indicate that individuals experienced harm from SOCE." See https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (Executive Summary)

⁴See https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy. In a 2013 Position Statement, the American Psychiatric Association stated that it "does not believe that same-sex orientation should or needs to be changed, and efforts to do so represent a significant risk of harm by subjecting individuals to forms of treatment which have not been scientifically validated and by undermining self-esteem when sexual orientation fails to change. No credible evidence exists that any mental health intervention can reliably and safely change sexual orientation; nor, from a mental health perspective does sexual orientation need to be changed." Downloaded from https://www.psychiatry.org/home/policy-finder

⁵See https://www.ama-assn.org/press-center/press-releases/ama-adopts-new-policies-during-first-day-voting-interim-meeting

⁶See Board of Counseling Action 5225 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5225), Board of Social Work Action 5241 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5241), and Board of Medicine Action 5412 (https://townhall.virginia.gov/L/viewaction.cfm?actionid=5412) and Board of Nursing Actions 5430 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5430 and (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5441).

⁷As per COV § 54.1-3501 Exemption from requirements of licensure: The activities, including marriage and family therapy, counseling, or substance abuse treatment, of rabbis, priests, ministers or clergymen of any religious denomination or sect when such activities are within the scope of the performance of their regular or specialized ministerial duties, and no separate charge is made or when such activities are performed, whether with or without charge, for or under auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination or sect, and the person rendering service remains accountable to its established authority.

⁸Ibid.

⁹According to the ABD, the overall numbers of licensees are as 3,379 clinical psychologists, 100 school psychologists, 29 applied psychologists, and 865 residents in counseling.

¹⁰Pursuant 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."

¹¹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹²§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Psychology concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendments define conversion therapy and establish that the standard of practice for persons licensed or registered by the board preclude the provision of conversion therapy to persons younger than 18 years of age.

Part I
General Provisions

18VAC125-20-10. Definitions.

The following words and terms, in addition to the words and terms defined in § 54.1-3600 of the Code of Virginia, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"APA" means the American Psychological Association.

"APPIC" means the Association of Psychology Postdoctoral and Internship Centers.

"Board" means the Virginia Board of Psychology.

"Candidate for licensure" means a person who has satisfactorily completed the appropriate educational and experience requirements for licensure and has been deemed eligible by the board to sit for the required examinations.

"Conversion therapy" means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. Conversion therapy does not include:

1. Psychological services that provide assistance to a person undergoing gender transition; or

2. Psychological services that provide acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such services do not seek to change an individual's sexual orientation or gender identity in any direction.

"Demonstrable areas of competence" means those therapeutic and assessment methods and techniques, and populations served, for which one can document adequate graduate training, workshops, or appropriate supervised experience.

"Internship" means an ongoing, supervised, and organized practical experience obtained in an integrated training program identified as a psychology internship. Other supervised experience or on-the-job training does not constitute an internship.

"NASP" means the National Association of School Psychologists.

"NCATE" means the National Council for the Accreditation of Teacher Education.

"Practicum" means the pre-internship clinical experience that is part of a graduate educational program.

"Professional psychology program" means an integrated program of doctoral study designed to train professional psychologists to deliver services in psychology.

"Regional accrediting agency" means one of the six regional accrediting agencies recognized by the United States Secretary of Education established to accredit senior institutions of higher education.

"Residency" means a post-internship, post-terminal degree, supervised experience approved by the board.

"School psychologist-limited" means a person licensed pursuant to § 54.1-3606 of the Code of Virginia to provide school psychology services solely in public school divisions.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular, documented individual consultation, guidance, and instruction with respect to the skills and competencies of the person supervised.

"Supervisor" means an individual who assumes full responsibility for the education and training activities of a person and provides the supervision required by such a person.

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

18VAC125-20-150. 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. Psychologists respect the rights, dignity, and worth of all people, and are mindful of individual differences.

B. Persons licensed by the board shall:

1. Provide and supervise only those services and use only those techniques for which they are qualified by training and appropriate experience. Delegate to their employees, supervisees, residents, and research assistants only those responsibilities such persons can be expected to perform competently by education, training, and experience. Take ongoing steps to maintain competence in the skills they use;

2. When making public statements regarding credentials, published findings, directory listings, curriculum vitae, etc., ensure that such statements are neither fraudulent nor misleading;

3. Neither accept nor give commissions, rebates, or other forms of remuneration for referral of clients for professional services. Make appropriate consultations and referrals consistent with the law and based on the interest of patients or clients;

4. Refrain from undertaking any activity in which their personal problems are likely to lead to inadequate or harmful services;

5. Avoid harming patients or clients, research participants, students, and others for whom they provide professional services and minimize harm when it is foreseeable and unavoidable. Not exploit or mislead people for whom they provide professional services. Be alert to and guard against misuse of influence;

6. Avoid dual relationships with patients, clients, residents, or supervisees that could impair professional judgment or compromise their well-being (to include but not limited to treatment of close friends, relatives, employees);

7. Withdraw from, adjust, or clarify conflicting roles with due regard for the best interest of the affected party or parties and maximal compliance with these standards;

8. Not engage in sexual intimacies or a romantic relationship with a student, supervisee, resident, therapy patient, client, or those included in collateral therapeutic services (such as a parent, spouse, or significant other) while providing professional services. For at least five years after cessation or termination of professional services, not engage in sexual intimacies or a romantic relationship with a therapy patient, client, or those included in collateral therapeutic services. Consent to, initiation of, or participation in sexual behavior or romantic involvement with a psychologist does not change the exploitative nature of the conduct nor lift the prohibition. Since sexual or romantic relationships are potentially exploitative, psychologists shall bear the burden of demonstrating that there has been no exploitation;

9. Keep confidential their professional relationships with patients or clients and disclose client records to others only with written consent except: (i) when a patient or client is a danger to self or others, (ii) as required under § 32.1-127.1:03 of the Code of Virginia, or (iii) as permitted by law for a valid purpose;

10. Make reasonable efforts to provide for continuity of care when services must be interrupted or terminated;

11. Inform clients of professional services, fees, billing arrangements, and limits of confidentiality before rendering services. Inform the consumer prior to the use of collection agencies or legal measures to collect fees and provide opportunity for prompt payment. Avoid bartering goods and services. Participate in bartering only if it is not clinically contraindicated and is not exploitative;

12. Construct, maintain, administer, interpret, and report testing and diagnostic services in a manner and for purposes which are appropriate;

13. Keep pertinent, confidential records for at least five years after termination of services to any consumer;

14. Design, conduct, and report research in accordance with recognized standards of scientific competence and research ethics; and

15. Report to the board known or suspected violations of the laws and regulations governing the practice of psychology; and

16. Not engage in conversion therapy with any person younger than 18 years of age.