TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

Title of Regulation: 18VAC85-150. Regulations Governing the Practice of Behavior Analysis (amending 18VAC85-150-150; repealing 18VAC85-150-20, 18VAC85-150-110, 18VAC85-150-180).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.16 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 18, 2025.

Effective Date: July 3, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the board to promulgate regulations to administer the regulatory system. Section 54.1-2957.16 of the Code of Virginia requires that the Board of Medicine promulgate regulations for the licensure of behavior analysts and assistant behavior analysts.

Purpose: The elimination of redundant provisions and reduction of barriers to licensure generally protect the health, safety, and welfare of citizens by ensuring a sufficient workforce of licensed behavior analysts and assistant behavior analysts.

Rationale for Using Fast-Track Rulemaking Process: The impetus for these amendments were the board's 2022 periodic review of this chapter. This action is noncontroversial and appropriate for the fast-track rulemaking process because the amendments delete or modify provisions that, as currently effective, are redundant of statutory requirements, are not related to the practice of behavior analysis, are outdated, or are otherwise ineffectual.

Substance: The amendments repeal redundant statutory provisions or useless directions in regulation, including provisions related to (i) public participation; (ii) the restatement of scope of practice provisions in statute; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; and (iv) solicitation or remuneration in exchange for referral.

Issues: There are no primary advantages or disadvantages to the public. There are no primary advantages or disadvantages to the agency or 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to delete unnecessary and duplicative references, to both another regulation and to statute.

Background. As a result of a 2022 periodic review, the board seeks to amend the regulation to remove a reference to one board regulation as well as references to the Code of Virginia. The board has determined that these references are unnecessary because they are redundant, in part because the statutory references merely repeat language already found in the Code of Virginia.² The most substantive changes are summarized as follows: 18VAC85-150-20 would be repealed as being unnecessary because it directs readers to 18VAC85-11 for information regarding the involvement of the public in the development of all of the board's regulations. 18VAC85-150-110, which summarizes the scope of practice of behavior analysts, would be repealed in part because the scope of practice is already delineated in § 54.1-2900 of the Code of Virginia.³ In addition, 18VAC85-150-110 also refers to behavior analysts supervisory responsibilities, which is covered in 18VAC85-150-120 and 18VAC85-150-130 of the same regulation.⁴ The remaining changes would also delete language that duplicates statute and thus is redundant.⁵

Estimated Benefits and Costs: Since the proposed changes would not change the practice of behavior analysis as it is currently practiced, it is unlikely that behavior analysts, their employers, or clients would incur any benefits or costs other than those benefits that may result simply from streamlining the regulatory text. However, to the extent that behavior analysts or the public rely upon the regulation for references to the Code of Virginia, the proposed changes may decrease clarity regarding the requirements applicable to this profession. No information exists with which to determine the extent to which this reliance occurs.

Businesses and Other Entities Affected. DHP reports that there are 2,523 licensed behavior analysts and 259 licensed assistant behavior analysts as of March 31, 2023. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ 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. Since the proposed amendments would not result in an increase in net costs for any entity, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments would not impact small businesses.

Localities⁹ Affected.¹⁰The proposed amendments do not disproportionally affect any particular localities or create costs for local governments.

Projected Impact on Employment. The proposed amendments would not affect the employment of behavior analysts, or have any impact on employment in general.

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

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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 See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2156.

³ See https://law.lis.virginia.gov/vacode/title54.1/chapter29/section54.1-2900/. Specifically, "Practice of behavior analysis" is defined to mean the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.

⁴ 18VAC85-150-120 and 18VAC85-150-130 would not be amended. See https://law.lis.virginia.gov/admincode/title18/agency85/chapter150/section120/ and https://law.lis.virginia.gov/admincode/title18/agency85/chapter150/section130/.

⁵ See the Agency Background Document, p. 7 for the specific references that would be removed: https://townhall.virginia.gov/L/GetFile.cfm?File=26\6115\9834\AgencyStatement_DHP_9834_v2.pdf.

⁶ 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.

⁷ 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."

⁸ 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.

⁹ "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.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

As a result of a 2022 periodic review, the amendments repeal redundant statutory provisions or useless directions in regulation, including provisions related to (i) public participation; (ii) the restatement of scope of practice provisions in statute; (iii) the sale, closure, or transfer of a practice that are redundant of statutory provisions; and (iv) the solicitation or remuneration in exchange for referral.

18VAC85-150-20. Public participation. (Repealed.)

A separate board regulation, 18VAC85-11, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-150-110. Scope of practice. (Repealed.)

The practice of a behavior analyst includes:

1. Design, implementation, and evaluation of environmental modifications using the principles and methods of behavior analysis to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior; and

2. Supervision of licensed assistant behavior analysts and unlicensed personnel.

18VAC85-150-150. Client records.

A. Practitioners shall comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of client records.

B. Practitioners shall provide client records to another practitioner or to the client or his the client's personal representative in a timely manner in accordance with provisions of § 32.1-127.1:03 of the Code of Virginia.

C. Practitioners shall properly manage and keep timely, accurate, legible, and complete client records.

D. Practitioners who are employed by a health care institution, educational institution, school system, or other entity in which the individual practitioner does not own or maintain his the practitioner's own records shall maintain client records in accordance with the policies and procedures of the employing entity.

E. Practitioners who are self-employed or employed by an entity in which the individual practitioner owns and is responsible for client records shall:

1. Maintain a client record for a minimum of six years following the last client encounter with the following exceptions:

a. Records of a minor child shall be maintained until the child reaches the age of 18 years of age or becomes emancipated, with a minimum time for record retention of six years from the last client encounter regardless of the age of the child;

b. Records that have previously been transferred to another practitioner or health care provider or provided to the client or his the client's legally authorized representative; or

c. Records that are required by contractual obligation or federal law may need to be maintained for a longer period of time.

2. Post information or in some manner inform all clients concerning the time frame timeframe for record retention and destruction. Client records shall only be destroyed in a manner that protects client confidentiality, such as by incineration or shredding.

3. When closing, selling, or relocating his practice, meet the requirements of § 54.1-2405 of the Code of Virginia for giving notice that copies of records can be sent to any like-regulated provider of the client's choice or provided to the client or legally authorized representative.

18VAC85-150-180. Solicitation or remuneration in exchange for referral. (Repealed.)

A practitioner shall not knowingly and willfully solicit or receive any remuneration, directly or indirectly, in return for referring an individual to a facility or institution as defined in § 37.2-100 of the Code of Virginia or hospital as defined in § 32.1-123 of the Code of Virginia.

Remuneration shall be defined as compensation, received in cash or in kind, but shall not include any payments, business arrangements, or payment practices allowed by 42 USC § 1320 a-7b(b), as amended, or any regulations promulgated thereto.