Title of Regulation: 18VAC115-30. Regulations Governing the Certification of Substance Abuse Counselors and Substance Abuse Counseling Assistants (amending 18VAC115-30-60, 18VAC115-30-140).

Statutory Authority: §§ 54.1-2400 and 54.1-3505 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 2, 2022.

Effective Date: February 17, 2022.

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 of the Board of Counseling are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which establishes the general powers and duties of health regulatory boards including the responsibility to promulgate regulations. The specific mandate for the Board of Counseling to regulate certified substance abuse counselors (CSACs) is found in § 54.1-3505 of the Code of Virginia, and the scope of practice for these professions is found in § 54.1-3507.1. of the Code of Virginia.

Purpose: The board has added more specificity about the requirement that CSACs practice under supervision and are prohibited from representing themselves as independent, autonomous practitioners. By doing so, clients receiving substance abuse counseling services are more assured of the oversight for those working under supervision. The additional standard of conduct and causes for disciplinary action will provide further guidance to counselors 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 they serve.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking should not be controversial because it constitutes a clarification of the statutory prohibition against independent and autonomous practice.

Substance: The board has amended 18VAC115-30-140 to clarify that a CSAC must practice in accordance with provisions of § 54.1-3507.1 of the Code of Virginia, which prohibits practice as independent, autonomous practitioners. It further clarifies that CSACs cannot directly bill for their services or represent themselves as independent or autonomous.

Issues: The primary advantage of the amendment is for clarification about the role of certified substance abuse counselors who are working under supervision with persons who have substance abuse issues. There are no disadvantages. There are no advantages or disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Counseling (Board) proposes to clarify that certified substance abuse counselors (CSACs) who, by law, are allowed to provide counseling only under supervision and CSAC trainees shall not directly bill for services rendered or in any way represent themselves as independent, autonomous practitioners.

Background. This action results from a 2020 petition for rulemaking,¹ which requested that the Board amend the regulations "to specify that CSACs (certified substance abuse counselors) cannot engage in independent or autonomous practice regardless of supervision and that such practice may be grounds for disciplinary action."

Section 54.1-3507.1 of the Code of Virginia² governs "Scope of practice, supervision, and qualifications of certified substance abuse counselors." Section 54.1-3507.1 specifically states that CSACs shall perform their work under supervision and that they shall not engage in independent or autonomous practice. Moreover, to be certified as CSAC an applicant must have supervised experience. Thus, a CSAS trainee must work under supervision for a certain number of hours to become certified, and once a CSAS trainee is certified, must continue to provide counseling as a certified counselor still under the supervision of a licensed substance abuse treatment practitioner.

Consistent with the petitioner's request, the Board proposes additional language to clarify that trainees who are not yet certified but are working under supervision to gain practical experience necessary for certification as a CSAC, cannot directly bill for their services or represent themselves as independent or autonomous practitioners. In addition, the proposal would clarify that working without supervision or billing independently would violate the standards of conduct for certified counselors. Section 54.1-3507.1 does not specifically prohibit independent billing, however the Board reaches that conclusion based on the fact that the statute prohibits CSACs from providing counseling independently, without supervision. Therefore, the Board concludes "it is logical that persons under supervision are also prohibited from directly billing or representing themselves as autonomous practitioners."

Estimated Benefits and Costs. In practice, CSACs or CSAC trainees are not currently allowed to provide counseling without supervision or to bill independently. The proposed changes reflect what the current practice is and are not expected to create any economic impact other than improving the clarity of the text about the prohibition on autonomous and independent practice and independent billing to avoid confusion within the regulated community and the general public.

Businesses and Other Entities Affected. According to the Department of Health Professions (DHP), there are 1,876 certified substance abuse counselors and 1,965 substance abuse trainees. CSACs are prohibited from practicing independently or autonomously so it is unknown how many practices would constitute a small business. DHP notes that many CSACs are employed by government agencies.

The proposed amendments do not appear to have an adverse economic impact³ or disproportionate impact on any entity.

Small Businesses⁴ Affected. The proposed amendments do not appear to adversely affect small businesses.

Localities⁵ Affected.⁶ The proposed amendments do not affect localities.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property or real estate development costs.

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¹https://townhall.virginia.gov/L/ViewPetition.cfm?petitionId=327

²http://law.lis.virginia.gov/vacode/title54.1/chapter35/section54.1-3507.1/

³Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

⁴Pursuant 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."

⁵"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.

⁶§ 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 economic impact analysis of the Department of Planning and Budget.

Summary:

The amendments clarify that (i) both a certified substance abuse counselor (CSAC) and a person under supervision to be certified as a CSAC (supervisee) must practice in accordance with provisions of § 54.1-3507.1 of the Code of Virginia, which prohibits practice as independent, autonomous practitioners and (ii) CSACs or supervisees cannot directly bill for their services or represent themselves as independent or autonomous.

18VAC115-30-60. Experience requirements for substance abuse counselors.

A. Registration. Supervision in Virginia shall be registered and approved by the board prior to the beginning of supervised experience in order to be counted toward certification. Supervision will not be accepted if it does not meet the requirements set forth in subsections B and C of this section. To register supervision for board approval prior to obtaining the supervised experience, an applicant shall submit in one package:

1. A supervisory contract;

2. Attestation of the supervisor's education and experience as required under subsections C and D of this section;

3. The registration fee;

4. An official transcript documenting attainment of a bachelor's or post-baccalaureate degree; and

5. Evidence of completion of at least 120 hours of didactic education as required by 18VAC115-30-50 B.

B. Experience requirements.

1. An applicant for certification as a substance abuse counselor shall have had 2,000 hours of supervised experience in the practice of substance abuse counseling services.

2. The supervised experience shall include a minimum of one hour and a maximum of four hours per 40 hours of work experience between the supervisor and the applicant to total 100 hours within the required experience. No more than half of these hours may be satisfied with group supervision. One hour of group supervision will be deemed equivalent to one hour of individual supervision.

3. The supervised experience shall be completed in not less than 12 months and not more than 60 months.

a. Supervisees who began a supervised experience before February 19, 2020, shall complete the supervised experience by February 19, 2025.

b. An individual who does not complete the supervised experience within 60 months may request an extension and shall submit evidence to the board demonstrating the extenuating circumstances that prevented completion of the supervised experience within the required timeframe.

4. Supervised experience obtained more than 10 years from (February 19, 2020, shall not be accepted for certification by examination. The board may make an exception for an applicant who has been providing substance abuse counseling for a minimum of 2,000 hours within the past 60 months and who can submit evidence of such experience.

5. During the supervised experience, supervisees shall use their names and the title "supervisee" in all written communications. Clients shall be informed in writing of the supervisee's status and the supervisor's name, professional address, and phone number. Supervisees shall not directly bill for their services or represent themselves as independent or autonomous practitioners.

6. The supervised experience shall consist of 160 hours of experience performing the following tasks with substance abuse clients. Each of the following tasks shall be performed for at least eight hours under supervision as verified by the supervisor on an application for certification:

a. Screening clients to determine eligibility and appropriateness for admission to a particular program;

b. Intake of clients by performing the administrative and initial assessment tasks necessary for admission to a program;

c. Orientation of new clients to program's rules, goals, procedures, services, costs, and the rights of the client;

d. Assessment of client's strengths, weaknesses, problems, and needs for the development of a treatment plan;

e. Treatment planning with the client to identify and rank problems to be addressed, establish goals, and agree on treatment processes;

f. Counseling the client utilizing specialized skills in both individual and group approaches to achieve treatment goals and objectives;

g. Case management activities that bring services, agencies, people, and resources together in a planned framework of action to achieve established goals;

h. Crisis intervention responses to a client's needs during acute mental, emotional, or physical distress;

i. Education of clients by providing information about drug abuse and available services and resources;

j. Referral of clients in order to meet identified needs unable to be met by the counselor and assisting the client in effectively utilizing those resources;

k. Reporting and charting information about a client's assessment, treatment plan, progress, discharge summaries, and other client-related data; and

l. Consultation with other professionals to assure comprehensive quality care for the client.

C. Supervisor qualifications. A board-approved clinical supervisor shall hold an active, unrestricted license or certification and shall be:

1. A licensed substance abuse treatment practitioner;

2. A licensed professional counselor, licensed clinical psychologist, licensed clinical social worker, licensed marriage and family therapist, medical doctor, or registered nurse who has either:

a. A board-recognized national certification in substance abuse counseling obtained by standards substantially equivalent to those set forth in this chapter;

b. A certification as a substance abuse counselor issued by this board; or

c. A minimum of one year of experience in substance abuse counseling and at least 100 hours of didactic training covering the areas outlined in 18VAC115-30-50 B 2 a through 2 m; or

3. A substance abuse counselor certified by the Virginia Board of Counseling who has two years of experience as a Virginia board-certified substance abuse counselor.

D. Supervisor training. In order to be approved by the board after February 19, 2021, a clinical supervisor shall obtain professional training in supervision consisting of three credit hours or four quarter hours in graduate-level coursework in supervision or at least 20 hours of continuing education in supervision offered by a provider approved under 18VAC115-30-50.

E. Supervisory responsibilities.

1. Supervisors shall assume responsibility for the professional activities of the supervisee under their supervision.

2. Supervisors shall not provide supervision for activities for which supervisees have not had appropriate education.

3. Supervisors shall provide supervision only for those substance abuse counseling services that they are qualified to render.

4. At the time of the application for certification by examination, the board-approved supervisor shall document minimal competencies in the areas in 18VAC115-30-60 B 6, the total hours of supervision, and any needs for additional supervision or training. The supervisor shall document successful completion of the applicant's supervised experience on the Verification of Supervision Form and shall maintain documentation for five years post supervision.

5. Supervision by any individual whose relationship to the supervisee compromises the objectivity of the supervisor is prohibited.

18VAC115-30-140. 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.

B. Persons certified 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. Be able to justify all services rendered to clients as necessary for diagnostic or therapeutic purposes.

3. Practice only within the competency area for which they are qualified by training or experience.

4. Report to the board known or suspected violations of the laws and regulations governing the practice of certified substance abuse counselors or certified substance abuse counseling assistants.

5. Neither accept nor give commissions, rebates, or other forms of remuneration for referral of clients for professional services. Make appropriate consultations and referrals based on the best interest of clients.

6. Stay abreast of new developments, concepts, and practices that are necessary to providing appropriate services.

7. 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 arrangements for the continuation of treatment for clients when necessary, following termination of a counseling relationship.

8. Not willfully or negligently breach the confidentiality between a practitioner and a client. A breach of confidentiality that is required or permitted by applicable law or beyond the control of the practitioner shall not be considered negligent or willful.

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

10. Practice under supervision as specified in § 54.1-3507.1 of the Code of Virginia. Substance abuse counselors shall not directly bill for services rendered, or in any way represent themselves as independent, autonomous practitioners.

C. In regard to client records, persons certified by the board shall:

1. Disclose counseling records to others only in accordance with applicable law.

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. Ensure confidentiality in the usage of client records and clinical materials by obtaining informed consent from the client or the client's 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.

4. Maintain timely, accurate, legible, and complete written or electronic records for each client, to include counseling dates and identifying information to substantiate the substance abuse counseling plan, client progress, and termination.

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 years);

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 been transferred to another mental health service provider or given to the client or the client's legally authorized representative.

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

1. Not engage in dual relationships with clients, former clients, supervisees, and supervisors that are harmful to the client's or supervisee's well-being or that would impair the substance abuse counselor's, substance abuse counseling assistant's, or supervisor's objectivity and professional judgment or increase the risk of client or supervisee exploitation. This prohibition includes such activities as counseling close friends, former sexual partners, employees, or relatives or engaging in business relationships with clients.

2. Not engage in sexual intimacies or romantic relationships with current clients or supervisees. For at least five years after cessation or termination of professional services, certified substance abuse counselors and certified substance abuse counseling assistants shall not engage in sexual intimacies or romantic relationships with a client or those included in collateral therapeutic services. Because sexual or romantic relationships are potentially exploitative, certified substance abuse counselors and certified substance abuse counseling assistants shall bear the burden of demonstrating that there has been no exploitation. A client's consent to, initiation of, or participation in sexual behavior or involvement with a certified substance abuse counselor or certified substance abuse counseling assistants does not change the nature of the conduct nor lift the regulatory prohibition.

3. Recognize conflicts of interest and inform all parties of obligations, responsibilities, and loyalties to third parties.

E. Upon learning of evidence that indicates a reasonable probability that another mental health provider is or may be guilty of a violation of standards of conduct as defined in statute or regulation, persons certified by the board shall advise their clients of their right to report such misconduct to the Department of Health Professions in accordance with § 54.1-2400.4 of the Code of Virginia.