Title of Regulation: 18VAC85-150. Regulations Governing the Practice of Behavior Analysis (adding 18VAC85-150-10 through 18VAC85-150-200).

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

Public Hearing Information:

October 24, 2013 - 8:45 a.m. - 9960 Mayland Drive, Perimeter Center, 2nd Floor Conference Room, Richmond, VA

Public Comment Deadline: December 6, 2013.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@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 Medicine the authority 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 intent of the Board of Medicine is to adopt regulations for the licensure of behavior analysts and assistant behavior analysts as mandated by Chapter 3 of the 2012 Acts of Assembly. The regulation sets out criteria for licensure, fees for applicants and licensees, renewal and continuing education requirements, rules for supervision, and professional standards of practice. The board has adopted regulations that are consistent with standards and criteria of the Behavior Analyst Certification Board (BACB), the professional credentialing body of applied behavior analysis, and with rules for other professions currently licensed by the Board of Medicine. It is the intent and goal of the regulation that behavior analysts and assistant behavior analysts who are currently certified by the BACB and who engage in the ethical, professional practice of applied behavior analysis be able to continue providing services to those children diagnosed with autism spectrum disorder as licensees of the Board of Medicine.

Since behavior analysts and assistant behavior analysts seeking licensure are providing services to a very vulnerable population (including children with autistic spectrum disorder), the board has adopted regulations for ethical practice and supervisory responsibilities that may protect the health and safety of those clients. Specific criteria for supervision by behavior analysts and standards of professional conduct for both types of licensee will provide a framework for ethical, responsible practice in which the welfare of the client is foremost.

Substance: The regulation establishes (i) criteria for licensure, (ii) requirements for fees and applications, (iii) provisions for renewal and reinstatement of licensure, (iv) standards of practice, (v) procedures for the supervision of assistant behavior analysts, and (vi) criteria for supervision of unlicensed individuals who assist in the provision of applied behavior analysis.

Issues: The primary advantage to the public is a regulatory standard by which to judge minimal competency to practice behavior analysis. Additionally, third party payers are required to cover behavior analysis services for children with autism, so there is a financial benefit to licensure. The autism community has expressed concern that board regulations may restrict the use of unlicensed persons acting under the supervision of a licensed behavior analyst. The board has reiterated in the adoption of proposed regulations that it believes tasks may be delegated within the provisions of law and regulation to persons who are appropriately trained and supervised. There are no particular advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As mandated by Chapter 3 of the 2012 Acts of the Assembly, the Board of Medicine (Board) proposes to promulgate new regulations that will govern the licensure of behavior analysts and assistant behavior analysts.

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs for these proposed regulations.

Estimated Economic Impact. Prior to General Assembly action in 2012, there was no requirement that individuals who provided behavior analysis services for autistic children be licensed. In 2011, the General Assembly mandated that health insurance cover these services but did not require that behavior analysts be licensed. The General Assembly passed legislation in 2012 to mandate licensure for these entities and to require that the Board promulgate emergency regulations for this licensure program. Pursuant to Chapter 3 of the 2012 Acts of the Assembly, the Board promulgated emergency regulations that became final September 19, 2012, and now proposes to promulgate replacement regulations that will govern the licensure of behavior analysts and assistant behavior analysts after the emergency regulations expire on September 18, 2013.

As mandated by Chapter 3, the Board's regulations will require applicants for initial licensure to be certified by the Behavior Analyst Certification Board (BACB) as certified behavior analysts if they are seeking licensure as behavior analysts, or as certified assistant behavior analysts if they are seeking licensure as assistant behavior analysts. In addition to providing documentation of current certification and filling out an application for licensure, behavior analysts will have to report any past or pending disciplinary actions in any other jurisdiction and pay a licensure fee of $130. Assistant behavior analysts will have to submit all of the same documentation as behavior analysts and pay an initial licensure fee of $70.

In order to gain certification as a behavior analyst, the BACB requires that applicants have a masters degree in behavior analysis or another natural science, education, human services, engineering, speech/language therapy, occupational therapy, clinical social work, or clinical, counseling or school psychology. In addition to, or as part of, the educational requirements to become certified as a behavior analyst, applicants must either complete 225 classroom hours of graduate level instruction in specified subjects or complete one academic year as a full time faculty member at a college or university during which the applicant must conduct and publish research in behavior analysis. Prospective behavior analysts must also meet one of three experience requirements. They must either: 1) complete 1500 hours of supervised independent fieldwork with supervisors supervising at least once every two weeks for at least 5% of the total number of fieldwork hours, 2) complete 1,000 hours of a practicum in a university practicum program with at least 7.5% of hours directly supervised or 3) complete 750 hours of an intensive practicum program with at least 10% of hours directly supervised.

In order to gain certification as an assistant behavior analyst, the BACB requires that applicants have a bachelors degree in behavior analysis or another natural science, education, human services, engineering, speech/language therapy, occupational therapy, clinical social work, or clinical, counseling or school psychology. In addition to, or as part of, the educational requirements to become certified as an assistant behavior analyst, applicants must complete 135 classroom hours of college instruction in specified subjects. Prospective assistant behavior analysts must also meet one of three experience requirements. They must either: 1) complete 1,000 hours of supervised independent fieldwork with supervisors supervising at least once every two weeks for at least 5% of the total number of fieldwork hours, 2) complete 670 hours of a practicum in a university practicum program with at least 7.5% of hours directly supervised or 3) complete 500 hours of an intensive practicum program with at least 10 of hours directly supervised.

The Board proposes to require licensed behavior analysts and assistant behavior analysts to renew their licenses every two years. To qualify for active license renewal, behavior analysts must complete 24 hours of continuing education and submit a fee of $135; assistant behavior analysts must complete 16 hours of continuing education and submit a fee of $70. Licensees only have to attest to the completion of continuing education but must keep all records of completed education and supply them to the Board within 30 days if requested. Licensees will have the option of maintaining current inactive licensure by paying $70 for behavior analysts, or $35 for assistant behavior analysts. Licensees will have one license cycle (two years) to renew late by paying an additional late renewal fee of $50 or $30, respectively. Licensees will have to pay $10 for a letter of good standing or verification to another state, $5 for a duplicate license, $15 for a duplicate wall certificate, and $35 returned check fee if a check written to the Board is returned due to insufficient funds. Individuals who allow their licenses to lapse for more than two years will have to reinstate their licenses by paying a fee of $180 for behavior analysts, or $90 for assistant behavior analysts. Licensees whose licenses are revoked will have to pay a fee of $2,000 to reinstate their licenses.

The Board proposes to not require licensees to also maintain active certification with BACB, but individuals who are reactivating a license or reinstating a license that has lapsed for more than two years will have to prove active practice in another jurisdiction (and prove 12 hours of continuing education for every year a Virginia license has lapsed, not to exceed 36 hours) or recertify with BACB before they can become actively licensed again. BACB charges $100 for behavior analysts and $65 for assistant behavior analysts to renew certification biennially. BACB also requires that behavior analysts complete 36 hours of continuing education every three years and requires assistant behavior analysts to complete 24 hours of continuing education every three years.

Requiring licensure for behavior analysts, as well as requiring health insurance plans to cover their services, will benefit users of these services as their out of pocket expenditures will likely go down. There might also be intangible benefits that accrue to families of autistic children, and perhaps even to their communities, if behavior analysis services allow these children to better function in society. These benefits must be weighed against costs that are likely to be driven up on both the demand and the supply side of the market for these services.

Research shows that decreasing the cost share that recipients of health care services pay (i.e. requiring insurance to cover these services) will lead to them using more of those services than they previously did and perhaps more services than are actually needed.¹ The increased costs of additional services used will be borne by the whole pool of insured individuals rather than by the recipient of the services purchased. This increase in demand would tend to increase the cost of services and, in an equilibrating market, will tend to increase the quantity of services supplied. That is, when individuals can make more money providing behavior analysis services, more individuals would normally enter the market and provide those services. However, the requirement that applicants for initial licensure be certified by BACB may serve as a significant barrier to entry into this market. Since there may be individuals who could very ably provide these services without meeting BACBs costly certification requirements, such as a masters degree to be a behavior analyst and a bachelors degree to be an assistant to a behavior analyst, the requirement that licensees obtain BACB certification may create a scarcity of providers wherein parents of autistic children would find it more difficult to obtain behavior analysis services. Costs on the supply side of this market may drive up the costs associated with getting and maintaining licensure and by costs associated with having to deal with insurance companies (recordkeeping costs, cost of time to fill out paperwork, etc.).

Businesses and Entities Affected. The Department of Health Professions (DHP) reports the number of individuals who worked as behavior analysts before licensure was required, and who have been or will be affected by these proposed regulations, is unknown. DHP reports that 174 behavior analysts and 24 assistant behavior analysts have been licensed by the Board since emergency regulations were promulgated.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulatory action may cut the number of individuals who work as behavior analysts and assistant behavior analysts.

Effects on the Use and Value of Private Property. The legislation that mandates these proposed regulatory changes will likely drive up the costs of acquiring behavior analysis services.

Small Businesses: Costs and Other Effects. DHP reports that most affected entities are either independently practicing, and would qualify as small businesses, or work for schools.

Small Businesses: Alternative Method that Minimizes Adverse Impact. DHP reports that most affected entities are either independently practicing, and would qualify as small businesses, or work for schools. Licensure is currently very proscribed by the legislation that mandates it. There is little the Board can do to lower costs without legislative changes.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

References.

Brook, Robert, et al. "Does Free Care Improve Adults' Health? Results From a Randomized Clinical Trial". New England Journal of Medicine. December 8, 1983.

Liebowitz, Stanley. "Why Health Care Costs Too Much". Cato Policy Analysis No. 211. June 23, 1994. http://www.cato.org/pubs/pa211.htm.

Newhouse, Joseph, et al. "Some Interim Results from a Controlled Trial of Cost Sharing In Health Insurance". New England Journal of Medicine. December 17, 1981.

"Paying for Health Services". American College of Healthcare Executives. http://www.ache.org/pdf_preface/SampleGatewayChapter.pdf.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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¹ The Newhouse study found, for instance, that total expenditures on health care were 50% higher when individuals were subject to no cost sharing than when they were responsible for paying 95% of their health care expenditures (up to $1,000 per year ) out of pocket. The Newhouse study concluded that additional services used were likely a mix of high-value services that did improve health outcomes and low- value services that did not. Additionally, the Brook study found that free medical care did not appear to improve health outcomes for those receiving that care.

Agency's Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis of the Department of Planning and Budget for 18VAC85-150, Regulations Governing the Practice of Behavior Analysis, as revised on May 7, 2013.

Summary:

Pursuant to Chapter 3 of the 2012 Acts of the Assembly, the Board of Medicine is required to promulgate regulations to license behavior analysts and assistant behavior analysts. The proposed regulation establishes (i) criteria for licensure, (ii) requirements for fees and applications, (iii) provisions for renewal and reinstatement of licensure, (iv) standards of practice, (v) procedures for the supervision of assistant behavior analysts, and (vi) criteria for supervision of unlicensed individuals who assist in the provision of applied behavior analysis.

CHAPTER 150
REGULATIONS GOVERNING THE PRACTICE OF BEHAVIOR ANALYSIS

Part I
General Provisions

18VAC85-150-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2900 of the Code of Virginia:

Board

Practice of behavior analysis

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

"BACB" means the Behavior Analyst Certification Board, Inc.

"BCBA®" means a Board Certified Behavior Analyst®.

"BCaBA®" means a Board Certified Assistant Behavior Analyst®.

18VAC85-150-20. Public participation.

A separate board regulation, 18VAC85-10, provides for involvement of the public in the development of all regulations of the Virginia Board of Medicine.

18VAC85-150-30. Current name and address.

Each licensee shall furnish the board his current name and address of record. All notices required by law or by this chapter to be given by the board to any such licensee shall be validly given when mailed to the latest address of record provided or served to the licensee. Any change of name or change in the address of record or public address, if different from the address of record, shall be furnished to the board within 30 days of such change.

18VAC85-150-40. Fees.

A. The following fees have been established by the board:

1. The initial fee for the behavior analyst license shall be $130; for the assistant behavior analyst license, it shall be $70.

2. The fee for reinstatement of the behavior analyst license that has been lapsed for two years or more shall be $180; for the assistant behavior analyst license, it shall be $90.

3. The fee for active license renewal for a behavior analyst shall be $135; for any assistant behavior analyst, it shall be $70. The fees for inactive license renewal shall be $70 for a behavior analyst and $35 for an assistant behavior analyst. Renewals shall be due in the birth month of the licensee in each odd-numbered year.

4. The additional fee for processing a late renewal application within one renewal cycle shall be $50 for a behavior analyst and $30 for an assistant behavior analyst.

5. The fee for a letter of good standing or verification to another state for a license shall be $10.

6. The fee for reinstatement of licensure pursuant to § 54.1-2408.2 of the Code of Virginia shall be $2,000.

7. The fee for a returned check shall be $35.

8. The fee for a duplicate license shall be $5.00, and the fee for a duplicate wall certificate shall be $15.

B. Unless otherwise provided, fees established by the board shall not be refundable.

Part II
Requirements for Licensure as a Behavior Analyst or an Assistant Behavior Analyst

18VAC85-150-50. Application requirements.

An applicant for licensure shall submit the following on forms provided by the board:

1. A completed application and a fee as prescribed in 18VAC85-150-40.

2. Verification of certification as required in 18VAC85-150-60.

3. Verification of practice as required on the application form.

4. If licensed or certified in any other jurisdiction, verification that there has been no disciplinary action taken or pending in that jurisdiction.

5. Verification from the BACB on disciplinary action taken or pending by that body.

18VAC85-150-60. Licensure requirement.

An applicant for a license to practice as a behavior analyst or an assistant behavior analyst shall hold current certification as a BCBA® or a BCaBA® obtained by meeting qualifications and passage of the examination required for certification as a BCBA® or a BCaBA® by the BACB.

Part III
Renewal and Reinstatement

18VAC85-150-70. Renewal of licensure.

A. Every behavior analyst or assistant behavior analyst who intends to maintain an active license shall biennially renew his license each odd-numbered year during his birth month and shall:

1. Submit the prescribed renewal fee; and

2. Attest to having met the continuing education requirements of 18VAC85-150-100.

B. The license of a behavior analyst or assistant behavior analyst that has not been renewed by the first day of the month following the month in which renewal is required is lapsed. Practice with a lapsed license may be grounds for disciplinary action. A license that is lapsed for two years or less may be renewed by payment of the renewal fee, a late fee as prescribed in 18VAC85-150-40, and documentation of compliance with continuing education requirements.

18VAC85-150-80. Inactive licensure.

A behavior analyst or assistant behavior analyst who holds a current, unrestricted license in Virginia shall, upon a request on the renewal application and submission of the required fee, be issued an inactive license. The holder of an inactive license shall not be entitled to perform any act requiring a license to practice as a behavior analyst or assistant behavior analyst in Virginia.

18VAC85-150-90. Reactivation or reinstatement.

A. To reactivate an inactive license or to reinstate a license that has been lapsed for more than two years, a behavior analyst or assistant behavior analyst shall submit evidence of competency to return to active practice to include one of the following:

1. Information on continued practice in another jurisdiction as a licensed behavior analyst or a licensed assistant behavior analyst or with certification as a BCBA® or BCaBA® during the period in which the license has been inactive or lapsed;

2. Twelve hours of continuing education for each year in which the license has been inactive or lapsed, not to exceed three years; or

3. Recertification by passage of the BCBA® or the BCaBA® certification examination from the BACB.

B. To reactivate an inactive license, a behavior analyst or assistant behavior analyst shall pay a fee equal to the difference between the current renewal fee for inactive licensure and the renewal fee for active licensure.

C. To reinstate a license that has been lapsed for more than two years, a behavior analyst or assistant behavior analyst shall file an application for reinstatement and pay the fee for reinstatement of his license as prescribed in 18VAC85-150-40. The board may specify additional requirements for reinstatement of a license so lapsed to include education, experience, or reexamination.

D. A behavior analyst or assistant behavior analyst whose licensure has been revoked by the board and who wishes to be reinstated shall make a new application to the board, fulfill additional requirements as specified in the order from the board, and make payment of the fee for reinstatement of his licensure as prescribed in 18VAC85-150-40 pursuant to § 54.1-2408.2 of the Code of Virginia.

E. The board reserves the right to deny a request for reactivation or reinstatement to any licensee who has been determined to have committed an act in violation of § 54.1-2915 of the Code of Virginia or any provisions of this chapter.

18VAC85-150-100. Continuing education requirements.

A. In order to renew an active license, a behavior analyst shall attest to having completed 24 hours of continuing education and an assistant behavior analyst shall attest to having completed 16 hours of continuing education as approved and documented by a sponsor recognized by the BACB within the last biennium.

B. A practitioner shall be exempt from the continuing education requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of its active licensees to determine compliance. The practitioners selected for the audit shall provide all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing education requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

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

Part IV
Scope of Practice

18VAC85-150-110. Scope of practice.

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.

18VAC85-150-120. Supervisory responsibilities.

A. The licensed behavior analyst is ultimately responsible and accountable for client care and outcomes under his clinical supervision.

B. There shall be a written supervisory agreement between the licensed behavior analyst and the licensed assistant behavior analyst that shall address:

1. The domains of competency within which services may be provided by the licensed assistant behavior analyst; and

2. The nature and frequency of the supervision of the practice of the licensed assistant behavior analyst by the licensed behavior analyst.

A copy of the written supervisory agreement shall be maintained by the licensed behavior analyst and the licensed assistant behavior analyst and made available to the board upon request.

C. Delegation shall only be made if, in the judgment of the licensed behavior analyst, the task or procedures can be properly and safely performed by an appropriately trained assistant behavior analyst or other person, and the delegation does not jeopardize the health or safety of the client.

D. Supervision activities by the licensed behavior analyst include:

1. Direct, real-time observation of the supervisee implementing behavior analytic assessment and intervention procedures with clients in natural environments and/or training others to implement them, with feedback from the supervisor.

2. One-to-one, real-time interactions between supervisor and supervisee to review and discuss assessment and treatment plans and procedures, client assessment and progress data and reports, published research, ethical and professional standards and guidelines, professional development needs and opportunities, and relevant laws, regulations, and policies.

3. Real-time interactions between a supervisor and a group of supervisees to review and discuss assessment and treatment plans and procedures, client assessment and progress data and reports, published research, ethical and professional standards and guidelines, professional development needs and opportunities, and relevant laws, regulations, and policies.

4. Informal interactions between supervisors and supervisees via telephone, electronic mail, and other written communication are encouraged but may not be considered formal supervision.

For the purposes of this subsection, "real-time" shall mean live and person-to-person.

E. The frequency and nature of supervision interactions are determined by the individualized assessment or treatment plans of the clients served by the licensed behavior analyst and the assistant behavior analyst but shall occur not less than once every four weeks with each supervision session lasting no less than one hour.

18VAC85-150-130. Supervision of unlicensed personnel.

A. Unlicensed personnel may be supervised by a licensed behavior analyst or a licensed assistant behavior analyst.

B. Unlicensed personnel may be utilized to perform:

1. Nonclient-related tasks, including but not limited to clerical and maintenance activities and the preparation of the work area and equipment; and

2. Certain routine client-related tasks that, in the opinion of and under the supervision of a licensed behavior analyst or a licensed assistant behavior analyst, have no potential to adversely impact the client or the client's treatment plan and do not constitute the practice of behavior analysis.

Part V
Standards of Professional Conduct

18VAC85-150-140. Confidentiality.

A practitioner shall 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.

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 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 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 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 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 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.

18VAC85-150-160. Practitioner-client communication; termination of relationship.

A. Communication with clients.

1. Except as provided in § 32.1-127.1:03 F of the Code of Virginia, a practitioner shall accurately present information to a client or his legally authorized representative in understandable terms and encourage participation in decisions regarding the client's care.

2. A practitioner shall not deliberately make a false or misleading statement regarding the practitioner's skill or the efficacy or value of a treatment or procedure provided or directed by the practitioner.

3. Before an initial assessment or intervention is performed, informed consent shall be obtained from the client or his legally authorized representative. Practitioners shall inform clients or their legally authorized representative of the risks, benefits, and alternatives of the recommended procedure that a reasonably prudent practitioner would tell a client.

a. Informed consent shall also be obtained if there is a significant change to a therapeutic procedure or intervention performed on a client that is not part of routine, general care and that is more restrictive on the continuum of care.

b. In the instance of a minor or a client who is incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder, the legally authorized person available to give consent shall be informed and the consent documented.

c. An exception to the requirement for consent prior to performance of a procedure or intervention may be made in an emergency situation when a delay in obtaining consent would likely result in imminent harm to the client.

4. Practitioners shall adhere to requirements of § 32.1-162.18 of the Code of Virginia for obtaining informed consent from clients prior to involving them as subjects in human research with the exception of retrospective chart reviews.

B. Termination of the practitioner-client relationship.

1. The practitioner or the client may terminate the relationship. In either case, the practitioner shall make the client record available, except in situations where denial of access is allowed by law.

2. A practitioner shall not terminate the relationship or make his services unavailable without documented notice to the client that allows for a reasonable time to obtain the services of another practitioner.

18VAC85-150-170. Practitioner responsibility.

A. A practitioner shall not:

1. Perform procedures or techniques that are outside the scope of his practice or for which he is not trained and individually competent;

2. Knowingly allow a subordinate to jeopardize client safety or provide client care outside of the subordinate's scope of practice or area of responsibility. Practitioners shall delegate client care only to subordinates who are properly trained and supervised;

3. Engage in an egregious pattern of disruptive behavior or interaction in a health care setting that interferes with client care or could reasonably be expected to adversely impact the quality of care rendered to a client; or

4. Exploit the practitioner-client relationship for personal gain.

B. Advocating for client safety or improvement in client care within a health care entity shall not constitute disruptive behavior provided the practitioner does not engage in behavior prohibited in subdivision A 3 of this section.

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

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.

18VAC85-150-190. Sexual contact.

A. For purposes of § 54.1-2915 A 12 and A 19 of the Code of Virginia and this section, sexual contact includes, but is not limited to, sexual behavior or verbal or physical behavior that:

1. May reasonably be interpreted as intended for the sexual arousal or gratification of the practitioner, the client, or both; or

2. May reasonably be interpreted as romantic involvement with a client regardless of whether such involvement occurs in the professional setting or outside of it.

B. Sexual contact with a client.

1. The determination of when a person is a client for purposes of § 54.1-2915 A 19 of the Code of Virginia is made on a case-by-case basis with consideration given to the nature, extent, and context of the professional relationship between the practitioner and the person. The fact that a person is not actively receiving treatment or professional services from a practitioner is not determinative of this issue. A person is presumed to remain a client until the practitioner-client relationship is terminated.

2. The consent to, initiation of, or participation in sexual behavior or involvement with a practitioner by a client does not change the nature of the conduct nor negate the statutory prohibition.

C. Sexual contact between a practitioner and a former client after termination of the practitioner-client relationship may still constitute unprofessional conduct if the sexual contact is a result of the exploitation of trust, knowledge, or influence of emotions derived from the professional relationship.

D. Sexual contact between a practitioner and a key third party shall constitute unprofessional conduct if the sexual contact is a result of the exploitation of trust, knowledge, or influence derived from the professional relationship or if the contact has had or is likely to have an adverse effect on client care. For purposes of this section, key third party of a client means spouse or partner, parent or child, guardian, or legal representative of the client.

E. Sexual contact between a supervisor and a trainee shall constitute unprofessional conduct if the sexual contact is a result of the exploitation of trust, knowledge, or influence derived from the professional relationship or if the contact has had or is likely to have an adverse effect on client care.

18VAC85-150-200. Refusal to provide information.

A practitioner shall not willfully refuse to provide information or records as requested or required by the board or its representative pursuant to an investigation or to the enforcement of a statute or regulation.

FORMS (18VAC85-150)

Application to Practice as a Behavior Analyst or Assistant Behavior Analyst (apply online)

Behavior Analyst - Form A, Claims History (09/2013)

Assistant Behavior Analyst - Form A, Claims History (09/2013)

Behavior Analyst and Assistant Behavior Analyst - Form B (09/2013)

Behavior Analyst - Form C (09/2013)

Assistant Behavior Analyst - Form C (09/2013)

Instructions for Completing an Assistant Behavior Analyst Licensure Reinstatement Application (09/2013)