Title of Regulation: 18VAC115-70. Regulations Governing the Registration of Peer Recovery Specialists (adding 18VAC115-70-10 through 18VAC115-70-90).

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

Public Hearing Information:

February 8, 2019 - 10:05 a.m. - Department of Health Professions, 9960 Mayland Drive, Conference Center, 2nd Floor, Henrico, VA 23233

Public Comment Deadline: April 5, 2019.

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

Basis: Regulations of the Board of Counseling are promulgated under the general authority of § 54.1-2400 of the Code of Virginia. The board has specific statutory authority to promulgate regulations for registration of peer recovery specialists in § 54.1-3505 of the Code of Virginia.

Purpose: The intent of the proposed regulation, replacing an emergency regulation currently in effect, is to establish a registry of peer recovery specialists for practice accountability and a list of qualified persons for the purpose of reimbursement by the Department of Medical Assistance Services (DMAS). The availability of a peer recovery specialist can drastically increase the willingness of people struggling with addiction to seek treatment.

The Department of Behavioral Health and Developmental Services (DBHDS) has recently begun using "certified peer recovery specialists" for work with individuals who are in recovery from mental health and substance use disorders. This regulation will ensure that there is a health regulatory board (Board of Counseling) responsible for registration of peer recovery specialists and for taking disciplinary action if necessary. Peer recovery specialists who are not registered are still able to provide peer services but would not be able to be reimbursed by DMAS.

Peer recovery specialists use their life experiences, including their own recovery, to provide effective support for others struggling with mental health or substance use disorders. Legislation in 2017 and subsequent regulations are intended to address concerns jointly expressed by the Department of Health Professions (DHP), DBHDS, and DMAS about the lack of oversight and accountability for individuals who are providing mental health or substance abuse services, but who are not responsible to a health regulatory board with authority to take disciplinary action.

By requiring a person who works as a registered peer recovery specialist in a program approved by DBHDS, or under a licensee of the Virginia Department of Health or DHP, to be registered by the Board of Counseling, the board has the ability to discipline and remove individuals from the registry. Once removed, the individual can no longer be employed in that capacity, which will result in greater protection for the public and a reduction in the possibility of abuse and fraud in Medicaid-funded programs.

Substance: Proposed regulations replace emergency regulations, which became effective on December 18, 2017. Regulations establish definitions for terms used in the chapter, fees charged to applicants and regulants, and requirements for initial registration and renewal of registration, including eight hours of continuing education with one hour devoted to ethics in practice. The regulations include standards of practice similar to all counseling-related professions and grounds for disciplinary action or denial of registration.

Issues: The primary advantage of the amendment for the public is more assurance of competency and accountability for peer recovery specialists who are increasingly important practitioners working with persons who have substance abuse issues, and there are no disadvantages.

There are no advantages or disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Counseling proposes to promulgate a permanent regulation for registration of peer recovery specialists. An emergency regulation for registration of peer recovery specialists is currently in effect and will expire on June 17, 2019.

Result of Analysis. The benefits likely exceed the costs for the proposed regulation.

Estimated Economic Impact.

Legislation: Chapters 418¹ and 426² of the 2017 Acts of Assembly required that the State Board of Behavioral Health and Developmental Services (Board of BHDS) "adopt regulations that establish the qualifications, education, and experience for registration of peer recovery specialists by the Board of Counseling." The Board of BHDS is in the process of doing this in Action 4796.³ Further, the legislation required that the Board of Counseling "promulgate regulations for the registration of peer recovery specialists who meet the qualifications, education, and experience requirements established by regulations of the Board of Behavioral Health and Developmental Services ..." The Board of Counseling proposes to do this with this current action.

Peer Support Services: Peer support services are an evidence-based mental health model of care that consists of a qualified peer recovery specialist who assists individuals with their recovery from mental illness and substance use disorders. The provision of peer support services facilitates recovery from both serious mental illnesses and substance use disorders. Recovery is a process in which people are able to live, work, learn and fully participate in their communities. For some individuals, recovery is the ability to live a fulfilling and productive life despite their disability. For others, recovery could mean the reduction or complete remission of symptoms.

Research has provided evidence that peer-delivered services generate superior outcomes in terms of decreased substance abuse, engagement of "difficult-to-reach" clients, and reduced rates of hospitalization.⁴ Further, peer support has been found to increase participants' senses of hope, control, and ability to effect changes in their lives; increase their self-care, sense of community belonging, and satisfaction with various life domains; and decrease participants' levels of depression and psychosis.⁵

Peer Recovery Specialists: Peer support services are delivered by peers who have been successful in the recovery process and can extend the reach of treatment beyond the clinical setting into an individual's community and natural environment to support and assist an individual with staying engaged in the recovery process. Peer recovery specialists ("PRSs") are self-identified consumers who are in successful and ongoing recovery from mental illness and/or substance use disorders, or are family members of individuals who are receiving or have received mental health or substance abuse services. PRSs are employed or seek to be employed to deliver collaborative support to others who are seeking to recover from a primary diagnosis of mental illness, addiction, or both. In order for peer support services to be funded by Medicaid,⁶ the PRS must be registered with the Department of Health Professions (DHP).

Proposed Regulation: The proposed regulation includes an annual $30 fee for registration. The fee is designed to cover DHP's cost, which is necessary for the registration program. The Board of Counseling also proposes to require that applicants for registration provide a current report from the National Practitioner Data Bank (NPDB). DHP has noted that in reviewing applicants for registration as peer recovery specialists under the emergency regulation, some persons held a license in Virginia or another state. If that license has been disciplined or suspended, there may be grounds to deny registration as a peer recovery specialist if there is evidence of risk to patients. In order to have the information necessary to determine whether such grounds exist, it is necessary to have an NPDB report. The applicant would be charged $4 by the data bank for requesting a report be sent to the Board. To the extent that the required provision of the NPDB report may reduce potential harm to patients, the benefits likely exceed the $4 cost per applicant.

The Board of Counseling proposes to specify that registration applicants must provide evidence of meeting all requirements for peer recovery specialists set by the Department of Behavioral Health and Developmental Services in 12VAC35-250-30.⁷ This is required by statute. Including this information in regulation is beneficial in that it improves clarity.

Further, the Board of Counseling proposes to require that registrants complete a minimum of eight contact hours of continuing education (CE) for each annual registration renewal. A minimum of one of these hours must be in courses that emphasize ethics. There is an extensive list of choices of areas and providers for CE. Registrants would likely be able to obtain the required CE with little or potentially no fees. The proposed requirement would, of course, require at least 8 hours of the registrant's time annually.

Businesses and Entities Affected. The proposed regulation affects businesses and other entities that either provide or are considering providing peer support services. According to DHP, there are 70 persons currently registered as peer recovery specialists through the emergency regulation.

Localities Particularly Affected. The proposed regulation does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed regulation helps enable individuals to work as peer recovery specialists.

Effects on the Use and Value of Private Property. The proposed regulation is unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed regulation is unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation is unlikely to significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed regulation does not adversely affect businesses.

Localities. The proposed regulation does not adversely affect localities.

Other Entities. The proposed regulation does not adversely affect other entities.

References:

Davidson, L., C. Bellamy, K. Guy, and R. Miller. 2011. Peer support among persons with severe mental illnesses: a review of evidence and experience. World Psychiatry 11:123-128.

Rowe M., C. Bellamy et al. 2007. Reducing alcohol use, drug use, and criminality among persons with severe mental illness: outcomes of a Group- and Peer-Based Intervention. Psychiatric Services 58:955-61.

Solomon P, J. Draine, and M. Delaney. 1995. The working alliance and consumer case management. Journal of Mental Health Administration 22:126-34.

_________________________

¹See http://leg1.state.va.us/cgi-bin/legp504.exe?171+ful+CHAP0418

²See http://leg1.state.va.us/cgi-bin/legp504.exe?171+ful+CHAP0426

³See http://townhall.virginia.gov/L/ViewAction.cfm?actionid=4796

⁴See Rowe et al (2007) and Solomon et al (1995)

⁵See Davison et al (2012)

⁶Sources: Department of Medical Assistance Services and Department of Behavioral Health and Developmental Services

⁷See http://townhall.virginia.gov/L/ViewXML.cfm?textid=12638

Agency's Response to Economic Impact Analysis: The Board of Counseling concurs with the analysis of the Department of Planning and Budget.

Summary:

Pursuant to Chapters 418 and 426 of the 2017 Acts of Assembly, the proposed regulation (i) establishes the fees required for registration and renewal of registration; (ii) specifies the qualification for registration, which is evidence of meeting the requirements set out in regulations of the Department of Behavioral Health and Developmental Services; (iii) requires that to maintain registration, a registrant complete eight hours of continuing education with a minimum of one hour devoted to ethics; (iv) sets standards of practice to include practicing within the specialist's competency area, practicing in a manner that does not endanger public health and safety, maintaining confidentiality, and avoiding dual relationships that would impair objectivity and increase risk of client exploitation; and (v) makes violation of standards of practice or of applicable law or regulation grounds for disciplinary action by the board.

CHAPTER 70
REGULATIONS GOVERNING THE REGISTRATION OF PEER RECOVERY SPECIALISTS

Part I
General Provisions

18VAC115-70-10. Definitions.

"Applicant" means a person applying for registration as a peer recovery specialist.

"Board" means the Virginia Board of Counseling.

"DBHDS" means the Virginia Department of Behavioral Health and Developmental Services.

"Mental health professional" means a person who by education and experience is professionally qualified and licensed in Virginia to provide counseling interventions designed to facilitate an individual's achievement of human development goals and remediate mental, emotional, or behavioral disorders and associated distresses that interfere with mental health and development.

"Peer recovery specialist" means a person who by education and experience is professionally qualified in accordance with 12VAC35-250 to provide collaborative services to assist individuals in achieving sustained recovery from the effects of mental illness or addiction, or both.

"Registered peer recovery specialist" or "registrant" means a person who by education and experience is professionally qualified in accordance with 12VAC35-250 and registered by the board to provide collaborative services to assist individuals in achieving sustained recovery from the effects of mental illness or addiction, or both. A registered peer recovery specialist shall provide such services as an employee or independent contractor of DBHDS, a provider licensed by the DBHDS, a practitioner licensed by or holding a permit issued from the Department of Health Professions, or a facility licensed by the Department of Health.

18VAC115-70-20. Fees required by the board.

A. The board has established the following fees applicable to the registration of peer recovery specialists:

	Registration	$30
	Renewal of registration	$30
	Late renewal	$20
	Reinstatement of a lapsed registration	$60
	Duplicate certificate of registration	$10
	Returned check	$35
	Reinstatement following revocation or suspension	$500

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

18VAC115-70-30. Current name and address.

Each registrant shall furnish the board the registrant's current name and address of record. Any change of name or address of record or public address if different from the address of record, shall be furnished to the board within 60 days of such change. It shall be the duty and responsibility of each registrant to inform the board of the registrant's current address.

Part II
Requirements for Registration and Renewal

18VAC115-70-40. Requirements for registration as a peer recovery specialist.

A. An applicant for registration shall submit:

1. A completed application on forms provided by the board and any applicable fee as prescribed in 18VAC115-70-20; and

2. A current report from the National Practitioner Data Bank (NPDB).

B. An applicant for registration as a peer recovery specialist shall provide evidence of meeting all requirements for peer recovery specialists set by DBHDS in 12VAC35-250-30.

18VAC115-70-50. Annual renewal of registration.

All registrants shall renew their registration on or before June 30 of each year. Along with the renewal form, the registrant shall submit the renewal fee as prescribed in 18VAC115-70-20.

18VAC115-70-60. Continued competency requirements for renewal of peer recovery specialist registration.

A. Registered peer recovery specialists shall be required to have completed a minimum of eight contact hours of continuing education for each annual registration renewal. A minimum of one of these hours shall be in courses that emphasize ethics.

Registered peer recovery specialists shall complete continuing competency activities that focus on increasing knowledge or skills in one or more of the following areas:

1. Current body of mental health or substance abuse knowledge;

2. Promoting services, supports, and strategies for the recovery process;

3. Crisis intervention;

4. Values for role of peer recovery specialist;

5. Basic principles related to health and wellness;

6. Stage appropriate pathways in recovery support;

7. Ethics and boundaries;

8. Cultural sensitivity and practice;

9. Trauma and impact on recovery;

10. Community resources; or

11. Delivering peer services within agencies and organizations.

B. The following organizations, associations, or institutions are approved by the board to provide continuing education:

1. Federal, state, or local governmental agencies, public school systems, or licensed health facilities.

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 recognized by the board.

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. An agency or organization approved by DBHDS.

C. Attestation of completion of continuing education is not required for the first renewal following initial registration in Virginia.

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

E. The board may grant an exemption for all or part of the continuing education requirements due to circumstances beyond the control of the registrant such as temporary disability, mandatory military service, or officially declared disasters upon written request from the registrant prior to the renewal date.

F. All registrants shall maintain original documentation of official transcripts showing credit hours earned or certificates of participation for a period of three years following renewal.

G. The board may conduct an audit of registrants to verify compliance with the requirement for a renewal period. Upon request, a registrant shall provide documentation as follows:

1. Official transcripts showing credit hours earned; or

2. Certificates of participation.

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

Part III
Standards of Practice; Disciplinary Actions; Reinstatement

18VAC115-70-70. Standards of practice.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board.

B. Persons registered by the board shall:

1. Practice in a manner that is in the best interest of the public and does not endanger the public health, safety, or welfare.

2. Be able to justify all services rendered to clients as necessary.

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

4. Report to the board known or suspected violations of the laws and regulations governing the practice of registered peer recovery specialists.

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

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

7. Document the need for and steps taken to terminate services when it becomes clear that the client is not benefiting from the relationship.

C. In regard to confidentiality and client records, persons registered by the board shall:

1. 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.

2. Disclose client records to others only in accordance with applicable law.

3. 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.

4. Maintain timely, accurate, legible, and complete written or electronic records for each client, to include dates of service and identifying information to substantiate treatment plan, client progress, and termination.

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

1. Not engage in dual relationships with clients or former clients that are harmful to the client's well-being, that would impair the practitioner's objectivity and professional judgment, or that would increase the risk of client exploitation. This prohibition includes such activities as providing services to close friends, former sexual partners, employees, or relatives or engaging in business relationships with clients.

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

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

E. Upon learning of evidence that indicates a reasonable probability that another mental health service provider, as defined in § 54.1-2400.1 of the Code of Virginia, is or may be guilty of a violation of standards of conduct as defined in statute or regulation, persons registered by the board shall advise their clients of the client's right to report such misconduct to the Department of Health Professions in accordance with § 54.1-2400.4 of the Code of Virginia.

18VAC115-70-80. Grounds for revocation, suspension, restriction, or denial of registration.

In accordance with subdivision 7 of § 54.1-2400 of the Code of Virginia, the board may revoke, suspend, restrict, or decline to issue or renew a registration based upon the following conduct:

1. Conviction of a felony or of a misdemeanor involving moral turpitude or 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 registered peer recovery specialists, or any provision of this chapter;

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

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

4. Violating or abetting another person in the violation of any provision of any statute applicable to the practice of peer recovery specialists or qualified mental health professionals or any provision of this chapter;

5. Performance of functions outside the board-registered area of competency;

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

7. Intentional or negligent conduct that causes or is likely to cause injury to a client;

8. Action taken against a health or mental health license, certification, registration, or application in Virginia or other jurisdiction;

9. Failure to cooperate with an employee of the Department of Health Professions in the conduct of an investigation; or

10. Failure to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required in § 63.2-1606 of the Code of Virginia.

18VAC115-70-90. Late renewal and reinstatement.

A. A person whose registration has expired may renew it within one year after its expiration date by paying the late renewal fee and the registration fee as prescribed in 18VAC115-70-20 for the year in which the registration was not renewed and by providing documentation of completion of continuing education as prescribed in 18VAC115-70-60.

B. A person who fails to renew registration after one year or more shall:

1. Apply for reinstatement;

2. Pay the reinstatement fee for a lapsed registration; and

3. Submit evidence of current certification as a peer recovery specialist as prescribed by DBHDS in 12VAC35-250-30.

C. A person whose registration 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 registration as prescribed in 18VAC115-70-20.  Any person whose registration has been revoked by the board may, three years subsequent to such board action, submit a new application and fee for reinstatement of registration as prescribed in 18VAC115-70-20. The board in its discretion may, after an administrative proceeding, grant the reinstatement sought in this subsection. 

FORMS (18VAC115-70)

The following form is available online only at https://www.license.dhp.virginia.gov/apply/:

Registered Peer Recovery Specialists Application and Instructions