Title of Regulation: 18VAC140-20. Regulations Governing the Practice of Social Work (amending 18VAC140-20-45, 18VAC140-20-110, 18VAC140-20-150).

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

Public Hearing Information:

March 3, 2022 - noon - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Board Room 2, Henrico, VA 23233

Public Comment Deadline: April 1, 2022.

Agency Contact: Jaime Hoyle, Executive Director, Board of Social Work, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, 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 Social Work the authority to promulgate regulations to administer the regulatory system. The specific authority of the Board of Social Work is found in § 54.1-3705 of the Code of Virginia.

Purpose: The amendments to the standards of practice are intended to address a situation in which a practitioner's action may be clearly unprofessional and detrimental to the welfare of a client, but the board does not have specific grounds to take some disciplinary action. Amendments will ensure that the board can take action as necessary to protect the health and safety of the public.

Substance: The board proposes the following amendments: (i) to eliminate all requirements for either supervised experience or active practice in another jurisdiction for licensure by endorsement for a licensed bachelor social worker, licensed master social worker, or licensed clinical social worker; (ii) to eliminate requirements for a person whose license has been lapsed for 10 or more years to provide evidence of either active practice in another jurisdiction or in an exempt setting, or supervised practice of no less than 360 hours in a 12-month period in order to reinstate or reactive a license; and (iii) to specify in the standards of practice that persons licensed by the board shall not engage in physical contact with a client when there is a likelihood of psychological harm to the client and shall not sexually harass a client.

Issues: The advantages to the public are (i) less restrictive requirements for licensure by endorsement may result in an increase in the number of licensed social workers who can provide services in the Commonwealth; and (ii) more explicit rules on unprofessional conduct will provide greater protection for clients of social workers. There are no disadvantages to the public. There are no specific advantages or disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Social Work (Board) proposes discretionary changes to: 1) eliminate a specified requirement for licensure by endorsement, 2) eliminate a specified requirement for reinstatement or reactivation of licensure for a person whose license has been lapsed or inactive for 10 or more years, and 3) specify that persons licensed by the Board who are in dual relationships with a client shall not engage in physical contact with a client when there is a likelihood of psychological harm to the client nor shall they sexually harass a client.

Background.

Licensure Levels. Pursuant to § 54.1-3700 of the Code of Virginia,¹ a licensed clinical social worker (LCSW) is a licensed social worker who, by education and experience, is professionally qualified at the autonomous practice level to provide direct diagnostic, preventive and treatment services where functioning is threatened or affected by social and psychological stress or health impairment. A licensed master's social worker (LMSW) is a licensed social worker who engages in the practice of social work and provides non-clinical, generalist services, including staff supervision and management. A licensed baccalaureate social worker (LBSW) is a licensed social worker who engages in the practice of social work under the supervision of a master's social worker and provides basic generalist services, including casework management and supportive services and consultation and education.

Licensure by Endorsement. Under the current regulation, 18VAC140-20-45 states that every applicant for licensure by endorsement shall submit:

"1. A completed application and the application fee prescribed in 18VAC140-20-30.

2. Documentation of active social work licensure in good standing obtained by standards required for licensure in another jurisdiction as verified by the out-of-state licensing agency. Licensure in the other jurisdiction shall be of a comparable type as the licensure that the applicant is seeking in Virginia.

3. Verification of a passing score on a Board-approved national exam at the level for which the applicant is seeking licensure in Virginia.

4. Documentation of any other health or mental health licensure or certification, if applicable.

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

6. Verification of:

a. Active practice at the level for which the applicant is seeking licensure in another United States jurisdiction for 24 out of the past 60 months;

b. Active practice in an exempt setting at the level for which the applicant is seeking licensure for 24 out of the past 60 months; or

c. Evidence of supervised experience requirements substantially equivalent to those outlined in 18VAC140-20-50 A 2 and A 3.

7. Certification that the applicant is not the respondent in any pending or unresolved Board action in another jurisdiction or in a malpractice claim."

As part of this regulatory change, the Board now proposes to eliminate the sixth required submission (i.e., verification).

Reinstatement and Reactivation. Under the current regulation, 18VAC140-20-110 indicates that (a) individuals applying for license reinstatement whose license has been lapsed for 10 or more years and (b) individuals applying for license reactivation who have been inactive for 10 or more years shall, among other requirements, provide evidence of competency to practice by documenting:

1. Active practice in another United States jurisdiction for at least 24 out of the past 60 months immediately preceding application;

2. Active practice in an exempt setting for at least 24 out of the past 60 months immediately preceding application; or

3. Practice as a supervisee under supervision for at least 360 hours in the 12 months immediately preceding reinstatement of licensure in Virginia. The supervised practice shall include a minimum of 60 hours of face-to-face direct client contact and nine hours of face-to-face supervision.

The Board now proposes to wholly eliminate this requirement to provide evidence of competency to practice. Other requirements do remain.²

Professional Conduct. Section 18VAC140-20-150 subsection D specifies requirements for licensees in regard to dual relationships. According to the National Association of Social Workers Code of Ethics, from which this language was taken, "Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively."³ The Board proposes to add that licensees who are in a dual relationship with a client shall:

"6. Not engage in physical contact with a client when there is a likelihood of psychological harm to the client. Social workers who engage in physical contact are responsible for setting clear and culturally sensitive boundaries.

7. Not sexually harass clients. Sexual harassment includes sexual advances; sexual solicitation; requests for sexual favors; and other verbal written, electronic, or physical contact of a sexual nature."

Based upon its placement in the dual relationship section of the regulation (18VAC140-20-150, subsection D), and not elsewhere in the regulation, it appears that this proposed additional language would only apply to social workers who are in dual relationships, and not to other types of client interactions or relationships.

Estimated Benefits and Costs

Licensure by Endorsement. In 2020, the Board issued 377 LCSW, 81 LMSW, and 6 LBSW licenses by endorsement.⁴ So far in 2021, the Board has issued 456 LCSW, 91 LMSW, and 12 LBSW licenses by endorsement.⁵ The proposal to eliminate the requirement of verification of active practice or supervised experience for licensure by endorsement applicants would likely increase these numbers somewhat going forward by increasing the number of individuals who qualify for licensure by endorsement. This would be beneficial for such applicants, as well as employers in the Commonwealth looking to hire fully-licensed social workers.

Licensure by endorsement would still require: a) documentation of active social work licensure⁶ in good standing in another jurisdiction as verified by the out-of-state licensing agency, b) verification of a passing score on a Board-approved national exam at the level for which the applicant is seeking licensure in Virginia, c) a current report from the NPDB, and d) certification that the applicant is not the respondent in any pending or unresolved Board action in another jurisdiction or in a malpractice claim. The Board believes that these remaining requirements are sufficient evidence of competency and good practice for candidates to be licensed by endorsement from another U.S. jurisdiction.⁷

Reinstatement and Reactivation. In 2020, the Board reinstated 29 LCSW, 3 LMSW, and 0 LBSW licenses.⁸ So far in in 2021, the Board has reinstated 31 LCSW, 7 LMSW, and 0 LBSW licenses.⁹ Data on reactivated licenses is not available. The proposal to eliminate the requirement of documentation of active practice or supervised experience for reinstatement or reactivation applicants whose license has been lapsed or inactive for 10 or more years would likely increase these numbers somewhat going forward by increasing the number of individuals who qualify for reinstatement or reactivation. This would be beneficial for such applicants, as well as employers in the Commonwealth looking to hire fully-licensed social workers.

Such a social worker reactivating would still be required to provide documentation of continued competency hours equal to the number of years the license has been inactive, not to exceed four years. Such a social worker reinstating would still be required to provide: a) documentation of having completed all applicable continued competency hours equal to the number of years the license has lapsed, not to exceed four years, b) documentation of any other health or mental health licensure or certification held in another United States jurisdiction, if applicable, and c) a current report from the NPDB. Additionally, the regulation does not require active practice to renew a full current license. Thus, the Board believes the remaining requirements are sufficient evidence of competency for an applicant to have their license reinstated or reactivated.

Professional Conduct. According to the Department of Health Professions, the proposed language specifying that persons licensed by the Board who are engaged in dual relationships with clients shall not engage in physical contact with a client when there is a likelihood of psychological harm to the client and shall not sexually harass a client, are added to address situations that have been reported to the Board in complaints filed by clients. In making a determination of probable cause to move forward with a disciplinary proceeding, Board members did not believe there were clear standards on which a case could be made. The proposed additions would address conduct that the Board believes is unprofessional and harmful to clients. To the extent that the proposed additional language helps enable the Board to properly discipline inappropriate behavior by licensees, it would be beneficial.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 8,006 LCSWs, 966 LMSWs, and 31 LBSWs licensed in the Commonwealth, as well as entities that employ social workers. According to survey data from a July 2020 report (the most recent available) from the Virginia Healthcare Workforce Data Center,¹⁰ the primary employers of LCSWs in the Commonwealth are distributed as follows:

Categorized by sector, the report presents the types of employers of LCSWs in Virginia as follows:

Similar data are not available for LBSWs and LMSWs.

The proposed amendments do not appear to adversely affect employers of social workers.

Small Businesses¹¹ Affected. The proposed amendments do not appear to adversely affect small businesses. The Board has not provided any information regarding the specific number of employers that are independent practitioners (small businesses).

Localities¹² Affected.¹³ Local governments that are having difficulty finding enough qualified social workers to employ may be particularly affected by the proposed elimination of specified requirements for licensure by endorsement and reinstatement or reactivation of licensure for a person whose license has been lapsed or inactive for 10 or more years. The proposed amendments do not appear to introduce costs for local governments. The Board has not provided any information regarding how many employers are local government agencies or entities.

Projected Impact on Employment. The proposed elimination of specified requirements for licensure by endorsement and reinstatement or reactivation of licensure for a person whose license has been lapsed or inactive for 10 or more years may moderately increase the number of individuals who become licensed social workers in the Commonwealth. More licensed social workers would likely result in more individuals employed as social workers in Virginia.

Effects on the Use and Value of Private Property. The proposed elimination of specified requirements for licensure by endorsement and reinstatement or reactivation of licensure for a person whose license has been lapsed or inactive for 10 or more years may moderately increase the supply of licensed social workers. This may moderately reduce the cost to firms of hiring social workers, which may in turn have a small positive impact on their value.

The proposed amendments do not affect real estate development costs.

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¹See https://law.lis.virginia.gov/vacode/54.1-3700/

²See discussion in the Estimated Benefits and Costs section, Reinstatement and Reactivation subsection.

³ See Section 1.06 Conflicts of Interest, under Ethical Standards at https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English

⁴Source: Department of Health Professions

⁵Ibid

⁶"Active social work licensure" means that the license is active, but does not necessarily mean that the license holder has been practicing actively.

⁷Source: Department of Health Professions

⁸Ibid

⁹Ibid

¹⁰See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/behsci/0904LCSW2020.pdf

¹¹Pursuant 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."

¹²"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.

¹³§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Social Work concurs with the economic impact analysis (EIA) of the Department of Planning and Budget with one exception. On page 3, the EIA states that the prohibition on physical contact with a client when there is a likelihood of psychological harm or sexually harassment of a client would only apply to social workers who are in dual relationships. It would be the opinion of the board that those behaviors would constitute a "dual relationship" that is inappropriate and unethical and possibly grounds for disciplinary action.

Summary:

The proposed amendments (i) eliminate all requirements for either supervised experience or active practice in another jurisdiction for licensure by endorsement for a licensed bachelor social worker, licensed master social worker, or licensed clinical social worker; (ii) eliminate requirements for a person whose license has been lapsed for 10 or more years to provide evidence of either active practice in another jurisdiction or in an exempt setting or supervised practice of no less than 360 hours in a 12-month period in order to reinstate or reactive a license; and (iii) specify in the standards of practice that persons licensed by the board shall not engage in physical contact with a client when there is a likelihood of psychological harm to the client and shall not sexually harass a client.

18VAC140-20-45. Requirements for licensure by endorsement.

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

1. A completed application and the application fee prescribed in 18VAC140-20-30.

2. Documentation of active social work licensure in good standing obtained by standards required for licensure in another jurisdiction as verified by the out-of-state licensing agency. Licensure in the other jurisdiction shall be of a comparable type as the licensure that the applicant is seeking in Virginia.

3. Verification of a passing score on a board-approved national exam at the level for which the applicant is seeking licensure in Virginia.

4. Documentation of any other health or mental health licensure or certification, if applicable.

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

6. Verification of:

a. Active practice at the level for which the applicant is seeking licensure in another United States jurisdiction for 24 out of the past 60 months;

b. Active practice in an exempt setting at the level for which the applicant is seeking licensure for 24 out of the past 60 months; or

c. Evidence of supervised experience requirements substantially equivalent to those outlined in 18VAC140-20-50 A 2 and A 3.

7. Certification that the applicant is not the respondent in any pending or unresolved board action in another jurisdiction or in a malpractice claim.

B. If an applicant for licensure by endorsement has not passed a board-approved national examination at the level for which the applicant is seeking licensure in Virginia, the board may approve the applicant to sit for such examination.

18VAC140-20-110. Late renewal; reinstatement; reactivation.

A. An LBSW, LMSW, or clinical social worker whose license has expired may renew that license within one year after its expiration date by:

1. Providing evidence of having met all applicable continuing education requirements.

2. Paying the penalty for late renewal and the renewal fee as prescribed in 18VAC140-20-30.

B. An LBSW, LMSW, or clinical social worker who fails to renew the license after one year and who wishes to resume practice shall apply for reinstatement and pay the reinstatement fee, which shall consist of the application processing fee and the penalty fee for late renewal, as set forth in 18VAC140-20-30. An applicant for reinstatement shall also provide:

1. Documentation of having completed all applicable continued competency hours equal to the number of years the license has lapsed, not to exceed four years;

2. Documentation of any other health or mental health licensure or certification held in another United States jurisdiction, if applicable; and

3. A current report from the U.S. Department of Health and Human Services National Practitioner Data Bank.

C. In addition to requirements set forth in subsection B of this section, an applicant for reinstatement whose license has been lapsed for 10 or more years shall also provide evidence of competency to practice by documenting:

1. Active practice in another United States jurisdiction for at least 24 out of the past 60 months immediately preceding application;

2. Active practice in an exempt setting for at least 24 out of the past 60 months immediately preceding application; or

3. Practice as a supervisee under supervision for at least 360 hours in the 12 months immediately preceding reinstatement of licensure in Virginia. The supervised practice shall include a minimum of 60 hours of face-to-face direct client contact and nine hours of face-to-face supervision.

D. An LBSW, LMSW, or clinical social worker wishing to reactivate an inactive license shall submit the difference between the renewal fee for active licensure and the fee for inactive licensure renewal and document completion of continued competency hours equal to the number of years the license has been inactive, not to exceed four years. An applicant for reactivation who has been inactive for 10 or more years shall also provide evidence of competency to practice by documenting:

1. Active practice in another United States jurisdiction for at least 24 out of the past 60 months immediately preceding application;

2. Active practice in an exempt setting for at least 24 out of the past 60 months immediately preceding application; or

3. Practice as a supervisee under supervision for at least 360 hours in the 12 months immediately preceding reactivation of licensure in Virginia. The supervised practice shall include a minimum of 60 hours of face-to-face direct client contact and nine hours of face-to-face supervision.

18VAC140-20-150. Professional conduct.

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 telephone, or electronically, these standards shall apply to the practice of social work.

B. Persons licensed as LBSWs, LMSWs, and clinical social workers shall:

1. Be able to justify all services rendered to or on behalf of clients as necessary for diagnostic or therapeutic purposes.

2. Provide for continuation of care when services must be interrupted or terminated.

3. Practice only within the competency areas for which they are qualified by education and experience.

4. Report to the board known or suspected violations of the laws and regulations governing the practice of social work.

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

6. Ensure that clients are aware of fees and billing arrangements before rendering services.

7. Inform clients of potential risks and benefits of services and the limitations on confidentiality and ensure that clients have provided informed written consent to treatment.

8. Keep confidential their therapeutic relationships with clients and disclose client records to others only with written consent of the client, with the following exceptions: (i) when the client is a danger to self or others; or (ii) as required by law.

9. When advertising their services to the public, ensure that such advertising is neither fraudulent nor misleading.

10. As treatment requires and with the written consent of the client, collaborate with other health or mental health providers concurrently providing services to the client.

11. Refrain from undertaking any activity in which one's personal problems are likely to lead to inadequate or harmful services.

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

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

C. In regard to client records, persons licensed by the board shall comply with provisions of § 32.1-127.1:03 of the Code of Virginia on health records privacy and shall:

1. Maintain written or electronic clinical records for each client to include identifying information and assessment that substantiates diagnosis and treatment plans. Each record shall include a diagnosis and treatment plan, progress notes for each case activity, information received from all collaborative contacts and the treatment implications of that information, and the termination process and summary.

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 or as mandated by law.

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.

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

a. At minimum, records of a minor child shall be maintained for six years after attaining the age of majority 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.

c. Records that have been transferred to another mental health professional or have been given to the client or his the client's legally authorized representative.

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

1. Not engage in a dual relationship with a client or a supervisee that could impair professional judgment or increase the risk of exploitation or harm to the client or supervisee. (Examples of such a relationship include familial, social, financial, business, bartering, or a close personal relationship with a client or supervisee.) Social workers 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 have any type of romantic relationship or sexual intimacies with a client or those included in collateral therapeutic services, and not provide services to those persons with whom they have had a romantic or sexual relationship. Social workers shall not engage in romantic relationship or sexual intimacies with a former client within a minimum of five years after terminating the professional relationship. Social workers who engage in such a relationship after five years following termination shall have the responsibility to examine and document thoroughly that such a relationship did not have an exploitive nature, based on factors such as duration of therapy, amount of time since therapy, termination circumstances, client's personal history and mental status, adverse impact on the client. A client's consent to, initiation of, or participation in sexual behavior or involvement with a social worker does not change the nature of the conduct nor lift the regulatory prohibition.

3. Not engage in any romantic or sexual relationship or establish a therapeutic relationship with a current supervisee or student. Social workers shall avoid any nonsexual dual relationship with a supervisee or student in which there is a risk of exploitation or potential harm to the supervisee or student, or the potential for interference with the supervisor's professional judgment.

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

5. Not engage in a personal relationship with a former client in which there is a risk of exploitation or potential harm or if the former client continues to relate to the social worker in his the social worker's professional capacity.

6. Not engage in physical contact with a client when there is a likelihood of psychological harm to the client. Social workers who engage in physical contact are responsible for setting clear and culturally sensitive boundaries.

7. Not sexually harass clients. Sexual harassment includes sexual advances; sexual solicitation; requests for sexual favors; and other verbal written, electronic, or physical contact of a sexual nature.

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 licensed 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.