REGULATIONS
Vol. 41 Iss. 9 - December 16, 2024

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Chapter 90
Proposed

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF COUNSELING

Proposed Regulation

Title of Regulation: 18VAC115-90. Regulations Governing the Practice of Art Therapy (adding 18VAC115-90-10 through 18VAC115-90-140).

Statutory Authority: §§ 54.1-2400, and 54.1-3503 of the Code of Virginia.

Public Hearing Information:

January 24, 2025 - 10:05 a.m. - Department of Health Professions, 9960 Mayland Drive, Board Room Two, Second Floor Conference Center, Henrico, VA 23233.

Public Comment Deadline: February 14, 2025.

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

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Counseling to promulgate regulations to administer the regulatory system. Section 54.1-3503 of the Code of Virginia provides the board the authority to regulate the practice of counseling, substance abuse treatment, art therapy, and marriage and family therapy.

Purpose: The board has adopted regulations to establish qualifications for education, examination, and experience that will ensure minimal competency for issuance or renewal of licensure as an art therapist to protect the health and safety of clients or patients who receive art therapy services. Provisions are also necessary to ensure there are standards for confidentiality, patient records, dual relationships, and informed consent to protect public health and safety.

Substance: The board adopted requirements for a fee structure, renewal or reinstatement, continuing competency, supervision of persons in training, and standards of practice for art therapy licensure similar to other licensed professions. The amendments (i) set forth the requirements for licensure as an art therapist or art therapy associate, (ii) provide for appropriate application and renewal fees, and (iii) include requirements for licensure renewal and continuing education.

Issues: The primary advantage to the public is that the proposed amendments ensure competency and accountability by having persons who use the title of art therapist licensed by the board. Additionally, as a licensed mental health professional, an art therapist may be reimbursed by third-party payers for services provided. There are no disadvantages to the public. There are no advantages or disadvantages to the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented below represents DPB's best estimate of these economic impacts. Summary of the Proposed Amendments to Regulation

As required by Chapter 301 of the 2020 Acts of Assembly,2 the Board of Counseling (board) proposes to promulgate a new regulation governing the practice of art therapy.

Background. In 2018, the Board of Health Professions assembled a regulatory research committee that conducted a study titled "Study into the Need to Regulate Art Therapists in the Commonwealth of Virginia" on behalf of the Virginia Art Therapy Association.3 The major findings of the study are:

1. Art therapy is an integrative mental health and human services profession. Art therapists are educated in psychotherapeutic principles as specifically trained in the use of art media to provide counseling to individuals, families and groups.

2. Art therapy is categorically different than "art in therapy." Art in therapy is a therapeutic modality leveraging the creative process as a growth-producing experience.

3. Art therapy practices pose an inherent risk of harm to the patient. Individuals practicing art therapy without the proper skills, level education, supervision, and ethical standards pose a risk, especially to vulnerable patients who may have difficulty with verbal communication.

4. Art therapists practice autonomously as well as under supervision.

5. Art therapists are educated at the master's degree level and must sit for a national board certification exam to obtain the Registered Art Therapist (ATR) credential.

6. Seven states license art therapists as a distinct profession; five states provide for licensure of art therapists under a related profession's license; and four state recognize art therapists to enable state hiring and/or to provide title protection.

7. The number of art therapists in Virginia is undetermined at this time.

8. There is a need for art therapists in Virginia.

Subsequently, Chapter 301 of the 2020 Acts of Assembly was enacted and became the legislative mandate for this action. The board now proposes to establish the requirements for licensure as an art therapist and art therapist associate, continuing education requirements, standards of practice, disciplinary actions for violations of the standards of practice, and a fee structure to cover the program's operating expenses at the Department of Health Professions (DHP).

Estimated Benefits and Costs. Art therapy was practiced in Virginia before the legislative mandate became effective. However, the legislation created title protection for "art therapists" and "art therapy associates" and prohibited the practice of "art therapy unless the person is licensed by the board." The legislation and the regulation would affect individuals who previously practiced art therapy differently depending on the credentials and related licenses they may possess. Specific job positions for art therapy generally have not existed in Virginia because they did not require a license, because reimbursement for art therapists was not available from health insurance companies, or both. Instead, individuals have practiced art therapy as part of another job for which they qualified based on other skills. For example, the report noted that a teacher used art therapy with students, a licensed professional counselor used art therapy with patients, and another individual used art therapy when working with the elderly and persons with dementia (a job the person held based on other credentials). A driving force behind the study appears to be similarly placed individuals, who have a certification, education, or a license from another jurisdiction in art therapy. The study and the testimony to the research committee highlight the difficulty such individuals have experienced finding employment in Virginia. These individuals, who would meet the proposed standards because they already possess a certification, education, or a license from another jurisdiction, are the ones that stand to gain the most from the proposed regulation as they would likely have an easier time finding jobs in Virginia; they may also be able to complement their compensation due to the new license. A second group that would appear to benefit consists of those who were already practicing art therapy and would be able to continue practicing based on a related license that had art therapy within its scope of practice. These individuals, who lacked a specific license for art therapy, include some licensed professional counselors and licensed marriage and family therapists. The legislation and the regulation would allow them to continue practicing art therapy under the umbrella of their existing licenses. However, they would be prohibited from calling themselves "art therapists" unless they also obtain the separate art therapist license.4 The impact on such individuals appears to be limited to the impact of not being able to use the title of "art therapist." If they wish to use the title of "art therapist," they would have to obtain the new license. The last group consists of those individuals who lack the credentials for a Virginia art therapy license or a qualifying art therapy license from another jurisdiction. These individuals would have to not only cease any practice of art therapy, but also cease using the titles "art therapist" and "art therapy associate." If they wish, they can obtain an art therapy or art therapy associate license by fulfilling the proposed credentials. The cost of meeting the proposed standards for these individuals would likely be proportional to how much more education and experience they need to qualify for a Virginia license.

The proposed regulation allows licensure as an art therapist by endorsement as well as licensure by examination. The endorsement route requires a current, unrestricted art therapy license issued from another United States jurisdiction, an attestation of having read and understood the regulations and laws governing the practice of art therapy in Virginia, and either (i) current Board-Certified Registered Art Therapist (ATR-BC) certification from the Art Therapy Credentials Board, Inc. (ATCB) or (ii) documentation of passage of the examination of the ATCB and evidence of autonomous, clinical practice in art therapy for 24 of the last 60 months immediately preceding licensure application in Virginia. In the licensure by examination route, the proposed regulation requires credentialing from ATCB as an ATR-BC for the art therapist license and Registered Art Therapist (ATR) or a Provisional Registered Art Therapist (ATR-P) for the art therapy associate license. The proposal heavily relies on various credentials (i.e., ATR-BC, ATR, and ATR-P) all from ATCB. ATCB is an independent company and as such is free to establish or modify from time to time its own standards for its own credentials and its fees for exams, periodic renewals, or registration. This would produce some risk for the Commonwealth as decisions made by this independent company would effectively become Virginia administrative law without any oversight or approval from the Commonwealth. ATCB's education, experience, and supervision standards are complex.5 At a high level, they appear to require at least master's level of degree or higher in art therapy with certain accreditation or master's degree or higher with concentration in certain areas, a minimum of 1,000 hours of post-education or more of direct client contact using art therapy, and a minimum of 100 hours or more of supervised practicum. From an ordinal perspective, it appears those who have a master's degree in art therapy would likely meet ATCB criteria most readily, followed by those who have a psychology-related license that includes art therapy within its scope of practice, and then those that have a psychology-related license but where art therapy does not fall within their scope of practice. The proposed regulation also requires a minimum of 20 hours of continuing education for each annual licensure renewal. Similarly, maintaining the ATCB credentials also requires 100 hours of continuing education over its five-year renewal cycle independently from this regulation.6 The regulation recognizes continuing education credits earned for maintaining ATCB credentials. Thus, continuing education required by this regulation and ATCB are allowed to overlap. In addition to costs associated with education, experience, supervision, and continuing competency, the license applicants would be required to pay fees to DHP. These fees would be used to pay administrative costs associated with the proposed program. The administrative costs would include staff time for application processing, issuance of licenses, disciplinary hearings and actions, postal costs, office supplies, etc. The proposed fee structure is as follows: initial application processing and licensure as an art therapist ($175); initial application processing and licensure as an art therapy associate ($65); active annual license renewal as an art therapist ($130); inactive annual license renewal as an art therapist ($65); late renewal ($45); duplicate license ($10); verification of licensure to another jurisdiction ($30); reinstatement of a lapsed license ($200); replacement of or additional wall certificate ($25); returned check or dishonored credit card or debit card ($50); reinstatement following revocation or suspension ($600). DHP estimates that the number of persons seeking licensure in this program will initially be fewer than 200 that would translate to less than $6,000 in total collected from annual renewal fees. This regulation is also expected to encourage educational institutions to start new degree programs or increase the number of courses offered specific to art therapy. The study notes that there are two master's degree programs in Virginia: one at George Washington University's Columbian College of Arts and Sciences - Art Therapy Master's Degree Program in Alexandria offering three options (a Master's in Art Therapy, with a thesis option; a Master's in Art Therapy Practice; and a combined Bachelor of Arts/Masters of Arts in Art Therapy) enrolling approximately 20 students per year; and another at Eastern Virginia Medical Schools Art Therapy & Counseling Program in Norfolk offering a Post Master's program with enrollment of 34 students in the 2016-2017 school year. At one end of the spectrum, for someone who is just starting and who has no background in psychology, the proposed education and experience requirements for a license in art therapy would undoubtedly impose significant compliance costs. At the other end of the spectrum, there appears to be individuals who meet all the proposed requirements and who only need to apply and pay the associated fees. Regardless of the magnitude of compliance costs, the individual choosing to obtain a license in art therapy thereby indicates that the expected benefits exceed the expected costs.

In addition, the legislation (and thus the regulation) impose a ban on practice of art therapy by individuals who are not licensed. As a consequence, individuals who have an education and background in art therapy but not a license to practice it (such as a teacher or a nursing home employee), would no longer be allowed to practice art therapy at all. The rationale for such a ban in the legislation is unclear, but the "Study into the Need to Regulate Art Therapists in the Commonwealth of Virginia" includes the statement that "Art therapy practices pose an inherent risk of harm to the patient. Individuals practicing art therapy without the proper skills, level education, supervision and ethical standards pose a risk, especially to vulnerable patients who may have difficulty with verbal communication." The study's discussion of harm states that "Untrained providers of art therapy can cause potential harm to their clients' emotional wellbeing," but the study does not provide any additional information on how these harms may occur. The study also notes potential physical risks to the subject, observing that while art therapists overall do not use dangerous equipment, there are "basic art tools, such as paint and glue, which contain toxic chemicals that could cause harm should they be inhaled or ingested, scissors which have sharp edges capable of causing cuts or punctures, and objects such as clay, if thrown, could be considered potentially dangers." These risks, however, would seem to apply to any setting in which art supplies are available. Moreover, the study does not provide any evidence that harms actually occur, noting that "Information regarding disciplinary action against art therapists was not readily accessible." The lack of evidence of harm to patients in this case is unusual compared to most other regulations from health boards, but as noted above this ban results from the legislative mandate. As discussed, the main driving force for licensure of art therapy is employment considerations for those who have a license from another jurisdiction, or who have completed a degree program but are experiencing difficulty finding a job. The trade-off is between expanding employment opportunities for those who meet the proposed credentials and reducing the beneficial practice of art therapy by those who are able to provide these services but who are not licensed. Perhaps this unintended trade-off may be mitigated by allowing uncompensated practice of art therapy by individuals whose scope of education and experience include art therapy. There does not seem to be much of a health and safety risk for allowing a schoolteacher or a nursing home employee with some education and experience in art therapy to utilize it, given the lack of documented evidence of harm. However, such a flexibility would require legislative action given the language of the current statute.

Businesses and Other Entities Affected. The legislation and this regulation affect individuals who would be practicing art therapy in the future and those who were practicing art therapy prior to 2020. According to DHP, when the Board of Health Professions conducted its study of the need for licensure of art therapists, the American Association of Art Therapists reported 131 professional members and 37 student members located in Virginia. DHP estimates that the number of persons seeking licensure will initially be fewer than 200. The number of those who were practicing art therapy prior to 2020 and who would not seek licensure is unknown. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.7 An adverse 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. As discussed, individuals who were practicing art therapy prior to 2020 would have to cease their practice unless they obtain a license. For some individuals, particularly for those who have relatively lower costs in obtaining licensure, the costs may be outweighed by the increased possibility that their services would be reimbursed by health insurance. For others, particularly those who have relatively higher costs in obtaining licensure, the costs would likely outweigh the benefits. Because there is the potential for an increase in net cost or reduction in net revenue for any entity, an adverse impact is indicated.

Small Businesses8 Affected.9 No data are available to determine if any of the individuals who were practicing art therapy prior to 2020 were associated with a small business.

Localities10 Affected.11 The proposed regulation neither disproportionately affects particular localities nor introduces costs for local governments.

Projected Impact on Employment. The proposed licensure of art therapists may encourage individuals licensed in other jurisdictions to take jobs in Virginia and may cause those who meet the criteria to be licensed to secure better jobs. However, some individuals who had been practicing art therapy without a license may not be able to maintain their employment in that capacity. Thus, the net impact on total employment and on underemployment is uncertain.

Effects on the Use and Value of Private Property. The proposed regulation does not appear to directly affect the use and value of private property or real estate development costs.

____________________________

1 Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

2 https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0301&201+ful+CHAP0301.

3 https://www.dhp.virginia.gov/media/dhpweb/docs/studies/ArtTherapist_2018.pdf.

4 Legislation specifically states "Nothing in this chapter shall prohibit a person licensed, certified, or registered by a health regulatory board from using the modalities of art media if such modalities are within his scope of practice."

5 https://www.atcb.org/wp-content/uploads/2022/03/ATR_ApplicationHandbook-2021-FINAL-1-2.pdf

https://www.atcb.org/wp-content/uploads/2022/03/ATRProvisional_ApplicationHandbook-2021-FINAL-1-1.pdf

https://www.atcb.org/board-certified-registered-art-therapist-atr-bc/

6 https://www.atcb.org/wp-content/uploads/2021/07/Recertification-Standards-final-2021-1.pdf.

7 Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

8 Pursuant to § 2.2-4007.04, 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."

9 If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

10 "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.

11 Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Counseling mostly concurs with the economic impact analysis prepared by the Department of Planning and Budget. The board would like to make two clarifications. First, there is an implication in the analysis that art could not be used in certain settings, such as schools or in working with the elderly, unless the individual facilitating the use of art held a license as an art therapist. Under § 54.1-3516 of the Code of Virginia, an individual cannot practice art therapy without a license. Art, however, can be used in schools, assisted living facilities, and other locations without incorporating art therapy or requiring a license to practice art therapy. Second, the analysis states that art therapists can receive continuing education to satisfy licensure renewal requirements from the Art Therapy Credentials Board (ATCB). While that is true, the ATCB is far from the only body the board recognizes to provide continuing education for art therapists. Proposed 18VAC115-90-90 lists 15 organizations that the board recognizes as providers of continuing education for art therapists.

Summary:

The proposed action establishes regulations governing the practice of art therapy pursuant to Chapter 301 of the 2020 Acts of Assembly, which specifies the credentials of the Art Therapy Credentials Board that was adopted as qualification for licensure as an art therapist and as an art therapy associate. The proposed amendments (i) set forth the requirements for licensure as an art therapist or art therapy associate, (ii) provide for appropriate application and renewal fees, (iii) include requirements for licensure renewal and continuing education, and (iv) provide for supervision of persons in training.

Chapter 90

Regulations Governing the Practice of Art Therapy

18VAC115-90-10. Definitions.

A. The following words and terms when used in this chapter shall have the meaning ascribed to them in § 54.1-3500 of the Code of Virginia:

"Art therapist"

"Art therapy"

"Art therapy associate"

"Board"

"Counseling"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Applicant" means any individual who has submitted an official application and paid the application fee for licensure as an art therapist or art therapy associate.

"ATCB" means the Art Therapy Credentials Board Inc.

"ATR" means a Registered Art Therapist, a credential issued by the ATCB after meeting established educational standards, successful completion of advanced specific graduate-level education in art therapy, and supervised post-graduate art therapy experience.

"ATR-BC" means a Board-Certified Registered Art Therapist, a credential issued by the ATCB after meeting the requirements for the ATR credential and passing a national examination.

"ATR-P" means a Provisional Registered Art Therapist, a credential issued by the ATCB after meeting the established educational standards, successful completion of advanced specific graduate-level education in art therapy, and practicing art therapy under an approved supervisor.

18VAC115-90-20. Fees required by the board.

A. The board has established the following fees applicable to licensure as an art therapist or art therapy associate:

Initial licensure as an art therapist: Application processing and initial licensure

$175

Initial licensure as an art therapy associate: Application processing and initial licensure

$65

Active annual license renewal as an art therapist

$130

Inactive annual license renewal as an art therapist

$65

Late renewal

$45

Duplicate license

$10

Verification of licensure to another jurisdiction

$30

Reinstatement of a lapsed license

$200

Replacement of or additional wall certificate

$25

Returned check or dishonored credit card or debit card

$50

Reinstatement following revocation or suspension

$600

B. All fees are nonrefundable.

18VAC115-90-30. Prerequisites for licensure as an art therapist and art therapist associate.

A. Every applicant for licensure shall submit to the board:

1. A completed application;

2. The application processing fee and initial licensure fee as prescribed in 18VAC115-90-20;

3. Verification of any other mental health or health professional license, registration, or certificate ever held in Virginia or another jurisdiction; and

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

B. An applicant shall have no unresolved disciplinary action against a mental health or health professional license, certificate, or registration held in Virginia or in another United States jurisdiction. The board will consider history of disciplinary action on a case-by-case basis.

18VAC115-90-40. Requirements for licensure.

In addition to the prerequisites set forth in 18VAC115-90-30:

1. Each applicant for licensure by examination as an art therapist shall submit to the board evidence of a current ATR-BC certification from the ATCB.

2. Each applicant for licensure by endorsement as an art therapist shall submit to the board:

a. Verification of a current, unrestricted art therapy license issued from another United States jurisdiction or, if lapsed, evidence that the license is eligible for reinstatement;

b. An attestation of having read and understood the regulations and laws governing the practice of art therapy in Virginia; and

c. Either:

(1) Current ATR-BC certification from the ATCB; or

(2) Documentation of passage of the examination of the ATCB and evidence of autonomous, clinical practice in art therapy, as defined in § 54.1-3500 of the Code of Virginia, for 24 of the last 60 months immediately preceding licensure application in Virginia. Clinical practice shall mean the rendering of direct clinical art therapy services, clinical supervision of clinical art therapy services, or teaching graduate-level courses in art therapy.

3. Each applicant for licensure as an art therapy associate shall submit to the board evidence of a current registration as an ATR or an ATR-P from the ATCB.

18VAC115-90-50. Requirements for Practice as an Art Therapy Associate.

A. No art therapy associate shall call himself a licensed art therapist, directly bill for services rendered, or in any way represent himself as an independent, autonomous practitioner. Art therapy associates shall use the title of "art therapy associate" in all written communications. Clients shall be informed in writing that the art therapy associate does not have the authority for independent practice, is practicing under supervision, and shall be provided the supervisor's name, professional address, and telephone number.

B. No art therapy associate shall engage in practice under supervision in an area for which the art therapy associate has not had the appropriate education or training.

18VAC115-90-60. General examination requirements; schedules; time limits.

A. Each applicant for initial licensure by examination by the board as an art therapist shall pass the Art Therapy Credentials Board examination prescribed by the ATCB.

B. An applicant is required to pass the prescribed examination and obtain registration as an ATR-BC no later than five years from the date of initial issuance by the board of an art therapy associate license, unless the board has granted an extension of the art therapy associate license.

C. An art therapy associate who has not met the requirements for licensure as an art therapist within five years of issuance of licensure as an art therapy associate may submit an application for extension of licensure to the board. Such application shall include:

1. A plan for completing the requirement to obtain licensure as an art therapist;

2. Documentation of compliance with the continuing education requirements;

3. Documentation of compliance with requirements related to supervision; and

4. A letter of recommendation from the clinical supervisor of record.

An extension of an associate art therapy license shall be valid for a period of two years.

18VAC115-90-70. Annual renewal of licensure.

A. Each art therapist who intends to continue active practice shall submit to the board on or before June 30 of each year:

1. A completed form for renewal of the license on which the art therapist attests to compliance with the continuing competency requirements prescribed in this chapter; and

2. The renewal fee prescribed in 18VAC115-90-20.

B. An art therapist who wishes to place a license in an inactive status may do so upon payment of the inactive renewal fee as established in 18VAC115-90-20. No person shall practice art therapy in Virginia unless that person holds a current active license. A licensee who has selected an inactive status may become active by fulfilling the reactivation requirements set forth in subsection C of 18VAC115-90-110.

C. The license of an art therapy associate shall expire after five years from initial licensure unless an extension is granted as indicated in subsection C of 18VAC115-90-60.

D. Licensees shall notify the board of a change in the address of record or the public address if different from the address of record within 60 days. Failure to receive a renewal notice from the board shall not relieve the license holder from the renewal requirement.

E. Practicing with an expired license is prohibited and may constitute grounds for disciplinary action.

18VAC115-90-80. Continued competency requirements for renewal of a license.

A. Art therapists shall be required to have completed a minimum of 20 hours of continuing competency for each annual licensure renewal. A minimum of two of these hours shall be in courses that emphasize the ethics, standards of practice, or laws governing behavioral science professions in Virginia.

B. The board may grant an extension for good cause of up to one year for the completion of continuing competency requirements upon written request from the licensee prior to the renewal date. Such extension shall not relieve the licensee of the continuing competency requirement.

C. The board may grant an exemption for all or part of the continuing competency requirements due to circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

D. An art therapist who holds another license issued by a Virginia health regulatory board shall not be required to obtain more than 20 total continuing education hours in order to renew an art therapy license, except that at least 10 of the required hours of continuing education shall be specifically related to art therapy.

E. Up to two hours of the 20 hours required for annual renewal may be satisfied through the delivery of art therapy services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for three hours of providing such volunteer services, as documented by the health department or free clinic.

F. An art therapist who was licensed by examination is exempt from meeting continuing competency requirements for the first renewal following initial licensure.

18VAC115-90-90. Continuing competency activity criteria.

A. Hours of continuing competency activity for an art therapist shall be approved if the hours meet the continued education requirements for recertification as an ATR-BC.

B. Additionally, continuing competency activity for an art therapist shall be approved if the activities are workshops, seminars, conferences, or courses in the behavioral health field offered by an individual or organization that has been certified or approved by one of the following:

1. The International Association of Marriage and Family Counselors and its state affiliates;

2. The American Association for Marriage and Family Therapy and its state affiliates;

3. The American Association of State Counseling Boards;

4. The American Counseling Association and its state and local affiliates;

5. The American Psychological Association and its state affiliates;

6. The Commission on Rehabilitation Counselor Certification;

7. NAADAC, the Association for Addiction Professionals, and its state and local affiliates;

8. National Association of Social Workers;

9. National Board for Certified Counselors;

10. A national behavioral health organization or certification body;

11. Individuals or organizations that have been approved as continuing competency sponsors by the American Association of State Counseling Boards or a counseling board in another state;

12. The American Association of Pastoral Counselors;

13. The American Art Therapy Association and its state affiliates;

14. The Art Therapy Credentials Board; or

15. The International Expressive Arts Therapy Association.

18VAC115-90-100. Documenting compliance with continuing competency requirements.

A. Art therapists are required to maintain original documentation for a period of two years following renewal.

B. After the end of each renewal period, the board may conduct a random audit of art therapists to verify compliance with the requirement for that renewal period.

C. Upon request, an art therapist shall provide documentation as follows:

1. Official transcripts showing credit hours earned; or

2. Certificates of participation.

D. Continuing competency hours required by a disciplinary order shall not be used to satisfy renewal requirements.

18VAC115-90-110. Late renewal; reactivation or reinstatement.

A. An art therapist whose license has expired may renew the license within one year after its expiration date by paying the late fee prescribed in 18VAC115-90-20 and the license renewal fee prescribed for the year the license was not renewed and providing evidence of having met all applicable continuing competency requirements.

B. An art therapist who fails to renew a license after one or more years and wishes to resume practice shall apply for reinstatement, pay the reinstatement fee for a lapsed license, submit verification of any mental health license the art therapist holds or has held in another jurisdiction, if applicable, and provide evidence of having met all applicable continuing competency requirements, not to exceed a maximum of 80 hours. The board may require the applicant for reinstatement to submit evidence regarding the continued ability to perform the functions within the scope of practice of the license.

C. An art therapist wishing to reactivate an inactive license shall submit (i) the renewal fee for active licensure minus any fee already paid for inactive licensure renewal; (ii) documentation of continued competency hours equal to the number of years the license has been inactive, not to exceed a maximum of 80 hours; and (iii) verification of any mental health license the art therapist holds or has held in another jurisdiction, if applicable. The board may require the applicant for reactivation to submit evidence regarding the continued ability to perform the functions within the scope of practice of the license.

18VAC115-90-120. Standards of practice.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guides 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 art therapy.

B. Each person licensed 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. Practice only within the boundaries of the licensee's competence, based on education, training, supervised experience, and appropriate professional experience, and represent education, training, and experience accurately to clients;

3. Stay abreast of new art therapy information, concepts, applications, and practices that are necessary to providing appropriate, effective, professional services;

4. Be able to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes;

5. Document the need for and steps taken to terminate a therapeutic relationship when it becomes clear that the client is not benefiting from the relationship. Document the assistance provided in making appropriate arrangements for the continuation of treatment for clients, when necessary, following termination of a therapeutic relationship;

6. Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

7. Disclose to clients all experimental methods of treatment and inform clients of the risks and benefits of any such treatment. Ensure that the welfare of clients is in no way compromised in any experimentation or research involving those clients;

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

9. Inform clients of the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services to be performed, the limitations of confidentiality, and other pertinent information when art therapy is initiated and throughout the therapeutic process as necessary. Provide clients with accurate information regarding the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements;

10. Select tests for use with clients that are valid, reliable, and appropriate and carefully interpret the performance of individuals not represented in standardized norms;

11. Determine whether a client is receiving services from another mental health service provider, and if so, refrain from providing services to the client without having an informed consent discussion with the client and having been granted communication privileges with the other professional;

12. Use only in connection with the licensee's practice as a mental health professional those educational and professional degrees or titles that (i) have been earned at a college or university accredited by an accrediting agency recognized by the U.S. Department of Education, (ii) are credentials granted by a national certifying agency, and (iii) are art therapy in nature; and

13. Advertise professional services fairly and accurately in a manner that is not false, misleading, or deceptive.

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

1. Maintain written or electronic clinical records for each client, to include treatment dates and identifying information, to substantiate diagnosis and treatment plan, client progress, and termination. Client records include artwork or any visual production produced by the client during clinical sessions;

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 the client's expressed written consent or that of the client's legally authorized representative or as otherwise permitted or required by law;

4. Ensure confidentiality in the usage of client records and clinical materials, including artwork or any visual production produced by the client during clinical sessions, 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; and

5. Maintain client records for a minimum of five years or as otherwise required by law from the date of termination of the art therapy 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 of age) 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; 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 licensed by the board shall:

1. Avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. Examples of such relationships include familial, social, financial, business, bartering, or close personal relationships with clients. Art therapists 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 engage in any type of romantic relationships or sexual intimacies with clients or those included in a collateral relationship with the client and not provide therapy to persons with whom the licensee has had a romantic relationship or sexual intimacy. Art therapists shall not engage in romantic relationships or sexual intimacies with former clients within a minimum of five years after terminating the art therapy relationship. Art therapists who engage in such relationship or intimacy after five years following termination shall have the responsibility to examine and document thoroughly that such relations do not have an exploitative nature, based on factors such as duration of art therapy, amount of time since art therapy, termination circumstances, client's personal history and mental status, or adverse impact on the client. A client's consent to, initiation of, or participation in sexual behavior or involvement with an art therapist neither changes the nature of the conduct nor lifts the regulatory prohibition;

3. Not engage in any romantic relationship or sexual intimacy or establish an art therapy or psychotherapeutic relationship with a supervisee or student. Licensed art therapists 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; and

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

E. Persons licensed by this board shall report to the board known or suspected violations of the laws and regulations governing the practice of art therapy.

F. Persons licensed by the board shall advise clients of the licensee's right to report to the Department of Health Professions any information of which the licensee may become aware in the licensee's professional capacity indicating that there is a reasonable probability that a person licensed or certified as a mental health service provider, as defined in § 54.1-2400.1 of the Code of Virginia, may have engaged in unethical, fraudulent, or unprofessional conduct as defined by the pertinent licensing statutes and regulations.

18VAC115-90-130. Grounds for revocation, suspension, probation, reprimand, or denial of license.

A. Action by the board to revoke, suspend, or deny issuance or renewal of a license or to take disciplinary action may be taken in accordance with the following:

1. Conviction of a felony or of a misdemeanor involving moral turpitude or a violation of or aid to another in violating any provision of Chapter 35 (§ 54.1-3500 et seq.) of Title 54.1 of the Code of Virginia, any other statute applicable to the practice of art therapy, or any provision of this chapter;

2. Procuring, attempting to procure, or maintaining a license by fraud or misrepresentation;

3. Conducting practice in such a manner as to make it a danger to the health and welfare of one's clients or to the public or inability to practice art therapy with reasonable skill and safety to clients by reason of illness; abusive use of alcohol, drugs, narcotics, chemicals, or other type of material; or as the result of any mental or physical condition;

4. Intentional or negligent conduct that causes or is likely to cause injury to any client;

5. Performance of functions outside the demonstrable areas of competency;

6. Failure to comply with the continued competency requirements set forth in this chapter;

7. Violating or abetting another person in the violation of any provision of any statute applicable to the practice of art therapy or any part or portion of this chapter; or

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

B. Following the revocation or suspension of a license, the licensee may petition the board for reinstatement upon good cause shown or as a result of substantial new evidence having been obtained that would alter the determination reached.

18VAC115-90-140. Reinstatement following disciplinary action.

A. Any person whose license has been suspended or who has been denied reinstatement by board order, having met the terms of the order, may submit a new application and fee for reinstatement of licensure.

B. The board in its discretion may, after an administrative proceeding, grant the reinstatement sought in subsection A of this section.

VA.R. Doc. No. R21-6583; Filed November 17, 2024