Title of Regulation: 18VAC115-40. Regulations Governing the Certification of Rehabilitation Providers (amending 18VAC115-40-20, 18VAC115-40-22, 18VAC115-40-25, 18VAC115-40-26, 18VAC115-40-30, 18VAC115-40-35, 18VAC115-40-38, 18VAC115-40-50).

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

Public Hearing Information:

October 9, 2020 - 10:05 a.m. - WebEx - The link and instructions to attend the electronic meeting will be in the agenda package posted prior to the meeting at http://www.dhp.virginia.gov and on the Virginia Regulatory Town Hall (www.townhall.virginia.gov).

Public Comment Deadline: November 13, 2020.

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: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Counseling the authority to promulgate regulations to administer the regulatory system. Specific authority for regulation of the profession of counseling is found in § 54.1-3505 of the Code of Virginia.

Purpose: Additional standards of conduct and causes for disciplinary action will provide further guidance to licensees on the expectations for ethical practice and give the board more explicit grounds on which to discipline practitioners for the purpose of protecting the health, safety, and welfare of the public.

Substance: In addition to edits for clarity and updating of terminology, the following changes were adopted.

18VAC115-22, clarify that unresolved disciplinary action in another jurisdiction may be grounds to deny certification, but the board will consider each on a case-by-case basis.

18VAC115-25, require "verification" of any other mental health or health license in another jurisdiction. Documentation is not necessary, provided the verification comes from the other jurisdiction; the only "licenses" the board is concerned about are mental health or health licenses.

18VAC115-26, replace the words "members" with the word "persons" who are in group supervision.

18VAC115-30, change the renewal date from January 31 to June 30 for consistency with renewal for other professions.

18VAC115-35, provide examples of "evidence" of continuing ability to perform the functions of a rehabilitation provider that may be required for reinstatement, such as continuing education or practice in another state.

18VAC115-38, add the requirement for notification of a name change and change the requirement from 30 to 60 days for submission of information on changes.

18VAC115-50, add the following grounds for disciplinary action that exist in other regulations for the Board of Counseling:

• Conducting one's practice in such a manner so as to make it a danger to the health and welfare of one's clients or to the public;

• Performance of functions outside the board-certified area of competency;

• Intentional or negligent conduct that causes or is likely to cause injury to a client;

• Performance of an act likely to deceive, defraud, or harm the public;

• Failure to cooperate with an employee of the Department of Health Professions in the conduct of an investigation;

• Failure to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia, or elder abuse or neglect as required in § 63.2-1606 in the Code of Virginia;

• Knowingly allowing persons under supervision to jeopardize client safety or provide care to clients outside of such person's scope of practice or area of responsibility; and

• Violating any provisions of this chapter, including practice standards set forth in 18VAC115-40-40.

Issues: The primary advantage to the public is greater accountability by the addition of grounds for disciplinary action if any issues with the practice of rehabilitation providers arise; there are no disadvantages to the public.

There are no advantages and 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 Counseling (Board) seeks to amend 18VAC115-40 Regulations Governing the Certification of Rehabilitation Providers in order to implement changes resulting from a periodic review undertaken in 2018.¹ The proposed amendments include: (i) updating the requirements for application and reinstatement of the certification, (ii) adding a fee for anyone requesting documentation of their certification from the Board (iii) changing the renewal deadline to June 30, (iv) expanding the list of violations that would constitute grounds for disciplinary action, and (v) other minor changes.

Background. Pursuant to the periodic review, the Board proposes to make a number of amendments, listed below:

1. Adding a new $25 fee to the fee schedule in 18VAC115-40-20, for providing verification of certification. Since licenses and certifications issued by the Board can be verified online free of charge, anyone requesting documentation such as a letter or a stamped copy of the certification would be required to pay $25 for this service.

2. Amending the eligibility criteria listed in 18VAC115-40-22 to include "The applicant shall have no unresolved disciplinary action against a health, mental health, or rehabilitation-related license, certificate, or registration in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis." This proposed addition is consistent with recent additions made by the Board to regulations governing other categories of regulants, such as qualified mental health professionals.²

3. Making explicit the requirement that applicants provide "documentation of passage of the examination required by 18VAC115-40-28" as part of the application process (18VAC115-40-25) and replacing "documentation of the applicant's national or out-of-state license in good standing…" with "verification that the applicant's national or out-of-state license or certificate is in good standing …" to indicate that electronic verification would suffice in lieu of a document.

4. Changing the date of certification expiration to June 30 of each year, instead of January 31. The Board states that this change would make the renewal date consistent across all categories of regulants. Rehabilitation providers, whose certificates are currently due to expire on January 31, 2021, would have until June 30, 2021, to renew it. (18VAC115-40-30)

5. Clarifying the requirements for reinstatement of a certificate by including the following examples of the evidence required to demonstrate continued ability to provide services: certificates of completion of continuing education, verification of practice in another jurisdiction, or maintenance of national certification. (18VAC115-40-35)

6. Allowing change of name in addition to change of address, and allowing rehabilitation providers to submit the new name or address to the Board within 60 days of such change, as opposed to 30. (18VAC115-40-38)

7. Expanding the types of violations that would constitute grounds for disciplinary action. Specifically, the Board seeks to add "attempting to procure, or maintaining" to "procuring a license, certificate or registration by fraud …" and "mental illness" as a means by which providers may compromise the safety of their clients. The proposed amendments would also add performing functions outside of one's board-certified area of competency, intentional or negligent conduct, failure to cooperate with the Department of Health Professions in an investigation, failure to report evidence of child or elder abuse or neglect, knowingly allowing persons under supervision to jeopardize client safety or practice outside of their area of responsibility, and generally conducting one's practice in a manner that would be dangerous to the clients or to the public, including engaging in acts to intentionally defraud or deceive clients or the public. (18VAC115-40-50) These additions are consistent with other regulations promulgated by the Board.³

8. Updating the names and current versions of forms associated with this regulation.

Estimated Benefits and Costs. On the whole, the proposed amendments are unlikely to impose a substantive economic burden on regulants, clients, or other entities in the industry. The new verification fee would only affect a small fraction of rehabilitation providers who choose to request such documentation in lieu of online verification, which can be accessed for free. The Board reports having only one or two complaints regarding disciplinary violations in each of the previous two years and does not anticipate that the new violations being added would lead to a significant increase in complaints. Finally, the proposed change in renewal deadlines would not substantively affect the Board financially; the Board currently has a $1.2 million balance and thus expects to absorb any short-term costs arising from the initial five-month extension of the renewal deadline. All other changes listed are unlikely to have any direct economic consequences and may benefit providers to the extent that they help clarify the requirements.

Businesses and Other Entities Affected. The proposed amendments pertain to rehabilitation providers who are required to have certification and those seeking such certification in Virginia.⁴ There are currently 230 certified rehabilitation providers,⁵ who mainly work in non-profit or clinical settings. No new costs would accrue to them due to the proposed amendments.

Small Businesses⁶ Affected. The proposed amendments do not directly affect any small businesses, nor would they face any new costs as a result of the proposed amendments.

Localities⁷ Affected.⁸ The proposed amendments are not expected to disproportionately affect particular localities or introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use or value of private property. Real estate development costs are unlikely to be affected.

______________________________________

¹See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1674

²See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8843

³ For examples, see https://law.lis.virginia.gov/admincode/title18/agency115/
chapter30/section150/ or https://law.lis.virginia.gov/admincode/
title18/agency115/chapter80/section100/

⁴Not all rehabilitation providers are required to have Board certification. There is an exemption in the law for "employees or independent contractors of the Commonwealth's agencies and sheltered workshops providing vocational rehabilitation services, under the following circumstances: (i) such employees or independent contractors are not providing vocational rehabilitation services under § 65.2-603 or (ii) such employees are providing vocational rehabilitation services under § 65.2-603 as well as other programs and are certified by the Commission on Rehabilitation Counselor Certification (CRCC) as certified rehabilitation counselors (CRC) or by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists (CCWAVES) as Certified Vocational Evaluation Specialists (CVE)."

⁵Data source: Department of Health Professions

⁶Pursuant 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."

⁷"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.

⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The proposed amendments (i) update the requirements for application and reinstatement of the certification, (ii) add a fee for anyone requesting documentation of their certification from the board (iii) change the renewal deadline to June 30, (iv) expand the list of violations that would constitute grounds for disciplinary action, and (v) make clarifications.

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	$115
Initial certification by endorsement: Processing and initial certification	$115
Certification renewal	$65
Duplicate certificate	$10
Verification of certification	$25
Late renewal	$25
Reinstatement of a lapsed certificate	$125
Replacement of or additional wall certificate	$25
Returned check	$35
Reinstatement following revocation or suspension	$600

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

Part II
Requirements for Certification

18VAC115-40-22. Criteria for eligibility.

A. Education and experience requirements for certification are as follows:

1. Any baccalaureate degree from a regionally accredited college or university or a current registered nurse license in good standing in Virginia; and

2. Documentation of 2,000 hours of supervised experience in performing those services that will be offered to a workers' compensation claimant under § 65.2-603 of the Code of Virginia. Experience may be acquired through supervised training or experience or both. A supervised internship in rehabilitation services may count toward part of the required 2,000 hours. Any individual who does not meet the experience requirement for certification must practice under the supervision of an individual who meets the requirements of 18VAC115-40-27. Individuals shall not practice in an internship or supervisee capacity for more than five years.

B. A passing score on a board-approved examination shall be required.

C. The board may grant certification without examination to applicants certified as rehabilitation providers in other states or by nationally recognized certifying agencies, boards, associations and commissions by standards substantially equivalent to those set forth in the board's current regulation.

D. The applicant shall have no unresolved disciplinary action against a health, mental health, or rehabilitation-related license, certificate, or registration in Virginia or in another jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-40-25. Application process.

The applicant shall submit to the board:

1. A completed application form;

2. The official transcript or transcripts submitted from the appropriate institutions of higher education;

3. Documentation, on the appropriate forms, of the successful completion of the supervised experience requirement of 18VAC115-40-26. Documentation of supervision obtained outside of Virginia must include verification of the supervisor's out-of-state license or certificate;

4. Documentation of passage of the examination required by 18VAC115-40-28;

5. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank (NPDB); and

5. Documentation of 6. Verification that the applicant's national or out-of-state license or certificate is in good standing where applicable.

18VAC115-40-26. Supervised experience requirement.

The following shall apply to the supervised experience requirement for certification:

1. On average, the supervisor and the supervisee shall consult for two hours per week in group or personal instruction. The total hours of personal instruction shall not be less than 100 hours within the 2,000 hours of experience. Group instruction shall not exceed six members persons in a group.

2. Half of the personal instruction contained in the total supervised experience shall be face-to-face between the supervisor and supervisee. A portion of the face-to-face instruction shall include direct observation of the supervisee-rehabilitation client interaction.

Part IV
Renewal and Reinstatement

18VAC115-40-30. Annual renewal of certificate.

Every certificate issued by the board shall expire on January 31 June 30 of each year.

1. To renew certification, the certified rehabilitation provider shall submit a renewal form and fee as prescribed in 18VAC115-40-20.

2. Failure to receive a renewal notice and form shall not excuse the certified rehabilitation provider from the renewal requirement.

18VAC115-40-35. Reinstatement.

A. A person whose certificate has expired may renew it within one year after its expiration date by paying the renewal fee and the late renewal fee prescribed in 18VAC115-40-20.

B. A person who fails to renew a certificate for one year or more shall apply for reinstatement, pay the reinstatement fee and submit evidence regarding the continued ability to perform the functions within the scope of practice of the certification, such as certificates of completion for continuing education, verification of practice in another jurisdiction, or maintenance of national certification.

18VAC115-40-38. Change of name or address.

A certified rehabilitation provider whose name has changed or whose address of record or public address, if different from the address of record, has changed shall submit the name change or new address in writing to the board within 30 60 days of such change.

18VAC115-40-50. Grounds for revocation, suspension, probation, reprimand, censure, denial of renewal of certificate; petition for rehearing.

Action by the board to revoke, suspend, decline to issue or renew a certificate, to place such a certificate holder on probation or to censure, reprimand or fine a certified rehabilitation provider may be taken in accord with the following:

1. Procuring, attempting to procure, or maintaining a license, certificate, or registration by fraud or misrepresentation.

2. Violation of, or aid to another in violating, any regulation or statute applicable to the provision of rehabilitation services.

3. The denial, revocation, suspension or restriction of a registration, license, or certificate to practice in another state, or a United States possession or territory or the surrender of any such registration, license, or certificate while an active administrative investigation is pending.

4. Conviction of any felony, or of a misdemeanor involving moral turpitude.

5. Providing rehabilitation services without reasonable skill and safety to clients by virtue of physical, mental, or emotional illness or substance abuse misuse;

6. Conducting one's practice in such a manner as to be a danger to the health and welfare of one's clients or to the public;

7. Performance of functions outside of one's board-certified area of competency;

8. Intentional or negligent conduct that causes or is likely to cause injury to a client;

9. Performance of an act likely to deceive, defraud, or harm the public;

10. Failure to cooperate with an employee of the Department of Health Professions in the conduct of an investigation;

11. Failure to report evidence of child abuse or neglect as required by § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required by § 63.2-1606 of the Code of Virginia;

12. Knowingly allowing persons under supervision to jeopardize client safety or provide care to clients outside of such person's scope of practice or area of responsibility; or

13. Violating any provisions of this chapter, including practice standards set forth in 18VAC115-40-40.

 

FORMS (18VAC115-40)

Application for Certification as a Rehabilitation Provider, Form 1 (rev. 8/07).

Application for Certification as a Rehabilitation Provider (rev. 5//2018)

General Information for Certification as a Rehabilitation Provider (rev. 7/2011)

Verification of Experience for Rehabilitation Provider Certification, Form 2 (rev. 8/07).

Rehabilitation Provider Verification of Licensure/Certification (rev. 8/07).

Licensure/Certification Verification of Out-of-State Supervisor, Form 4 (rev. 8/07 4/18).

Rehabilitation Provider Application for Reinstatement of a Lapsed Certificate (rev. 8/07 5/18). 

Verification of Experience for Rehabilitation Provider Certification (rev. 5/2018)

Out-of-State License or Certification Verification (4/2018)

Licensure/Certification Verification of Out-of-State Supervisor (4/2018)

Rehabilitation Provider Application for Reinstatement of a Lapsed Certificate (5/2018)