Title of Regulation: 18VAC140-20. Regulations Governing the Practice of Social Work (amending 18VAC140-20-10, 18VAC140-20-150).

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

Public Hearing Information:

September 25, 2020 - 9:45 a.m. - WebEx meeting - A link and instructions to access the electronic meeting will be posted at https://townhall.virginia.gov/L/ViewMeeting.
cfm?MeetingID=31195 on the Virginia Regulatory Town Hall

Public Comment Deadline: October 30, 2020.

Agency Contact: Jaime Hoyle, Executive Director, Board of Social Work, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Social Work the authority to promulgate regulations to administer the regulatory system and states that such regulation "shall not conflict with the purposes and intent of ... Chapter 1 (§ 54.1-100 et seq.)" of the Code of Virginia. Section 54.1-100 of the Code of Virginia specifies that a regulation shall not be imposed except for the purpose of protection of the health, safety, and welfare of the public, which is the intent of this action.

Purpose: The purpose of this regulatory action is to specify in regulation the interpretation of the board that conversion therapy has the potential for significant harm if practiced with persons younger than 18 years of age. The regulation will define the term in a manner consistent with accepted usage within the profession and consistent with policy statements by state and national professional organizations.

Substance: For the purposes of the regulatory action, "conversion therapy" or "sexual orientation change efforts" is defined as any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. "Conversion therapy" does not include social work that provides assistance to a person undergoing gender transition or social work services that provide acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such social work services do not seek to change an individual's sexual orientation or gender identity in any direction.

Issues: The primary advantage to the public is protection for children who might otherwise be subjected to reparative or conversion therapy; the board does not believe there are disadvantages because practitioners can provide assistance to a person undergoing gender transition or social work services that offers acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development.

There are no 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. The Board of Social Work (Board) proposes to amend 18VAC140-20 Regulations Governing the Practice of Social Work (regulations) in order to add a definition of "conversion therapy" and a stipulation that licensees shall not engage in conversion therapy with individuals under 18 years of age.

Background. During the 2018 General Assembly Session, Delegates Patrick A. Hope and Betsy B. Carr introduced a bill (HB 363) that provided a definition of "sexual orientation change efforts" (SOCE) and would "prohibit any health care provider or person who performs counseling as part of his training for any profession licensed by a regulatory board of the Department of Health Professions (DHP) from engaging in sexual orientation change efforts with a person under 18 years of age."¹ The bill was referred to the Committee on Health, Welfare and Institutions and assigned to a subcommittee where, in the course of their deliberations, the question was raised as to why the issue had not already been addressed by licensing boards. The bill was passed by indefinitely and left in subcommittee.

Subsequently, the President of the Board of Psychology recommended that the Director of DHP convene a workgroup to discuss the issue. The workgroup met on October 5, 2018, and included representatives from the Boards of Counseling, Medicine, Psychology and Social Work. After substantial debate, most members concurred that there was a need for more protection of children. It was agreed that each board would have to make the decision whether to promulgate regulation.

The proposed amendments mirror the language of HB 363, and define conversion therapy in some detail:

"Conversion therapy" means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. Conversion therapy does not include:

1. Social work services that provide assistance to a person undergoing gender transition; or

2. Social work services that provide acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such services do not seek to change an individual's sexual orientation or gender identity in any direction.

This definition appears to be consistent with those adopted by the National Association of Social Workers, the American Psychological Association, the American Psychiatric Association, and other professional associations.²

In general, DHP reports that licensed social workers are not taught conversion therapy as part of their professional training, and that the agency has not received any complaints or reports of licensees practicing conversion therapy. However, the counseling, social work, and medical professional communities have adopted resolutions and position statements based on research conducted over the past two decades regarding the effects of conversion therapy, particularly on minors.^3,4,5,6 The American Foundation for Suicide Prevention specifically posted a comment at the NOIRA stage saying, "There is no credible evidence that any type of psychotherapy can change a person's sexual orientation or gender identity. In fact, conversion therapy poses critical health risks to lesbian, gay, bisexual, transgender, and queer young people, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, risky behavior, and even suicide…Research shows that lesbian, gay, and bisexual (LGB) youth are 4 times more likely, and questioning youth are 3 times more likely to attempt suicide as their straight peers."⁷ Hence, the Board is proposing these amendments based on its authority to impose regulations for the protection of the health, safety, and welfare of the public. The Boards of Counseling, Psychology, Medicine, and Nursing have also initiated regulatory actions with nearly identical proposed changes.⁸

In contrast, some religious organizations continue to offer conversion therapy. The organizations, including programs aimed at teenagers and young adults, may use different terminologies such as 'ex-gay ministry', 'reparative therapy', or 'promoting healthy sexuality' but the programs seek to change the individual's sexual orientation or gender identity, thus appearing to meet the Board's definition of conversion therapy. However, religious counselors (rabbis, priests, ministers, or clergymen) are exempt from the requirement for licensure.⁹ As a result, the content of this regulation would not apply to them. Accordingly, the Board has no authority to take disciplinary action against religious organizations and affiliated counselors who continue to provide conversion therapy, unless they are also licensed by the Board.

Estimated Benefits and Costs. For the reasons described above, it is unlikely that social workers licensed by the Board presently provide conversion therapy. Moreover, programs that are conducted in a religious setting by rabbis, priests, ministers or clergymen are exempt from licensure. Hence, although the proposed regulation has received 211 public comments and may appear to be controversial, it is unlikely to have substantive economic impact.

To the extent that the Board's licensees are currently engaging in conversion therapy with individuals under 18 years of age, they may now have to change their practice, lose clients, or face disciplinary action if they fail to comply with the regulation. However, as mentioned previously, conversion therapy is not an evidence-based practice and is hence not included in the curriculum at accredited social work programs and not practiced by the vast majority of licensed social workers. Any current license-holders choosing to forfeit their licensure in favor of continuing to practice conversion therapy may continue to do so if employed as a rabbi, priest, minister or clergyman, as long as they belong to "an established and legally cognizable church, denomination or sect" and remain "accountable to its established authority."¹⁰

Clients under age 18, who seek to receive, or continue receiving, conversion therapy from licensed social workers, and their parents, may now face certain indirect costs if they choose to find other providers. The amount of the cost would depend upon the availability of providers, including religious counselors. Conversely, children and their parents may be benefited to the degree the board's action limits the availability of conversion therapy. The degree of this benefit would depend upon the extent to which the harms cited by the professional organizations noted above would have occurred but for this regulatory action.

Businesses and Other Entities Affected. As mentioned above, some licensed social workers who may also have been working in a religious setting may have to alter their practice or face disciplinary action, but DHP estimates that these are most likely a very small fraction of the overall number of social work license-holders.¹¹ Although DHP does not have an estimate of the number of affected providers, the agency reports that the vast majority of current license-holders likely do not engage in conversion therapy at all (in either religious or secular settings) since it is not taught by any accredited program and has been considered contrary to the "professional code of ethics" in an informal capacity for more than a decade.

Small Businesses¹² Affected. Although many licensed practitioners may be employed in a small business setting, DHP estimates that only a very small fraction of the overall number of license-holders would be affected by the regulation at all, and there is no reason to suggest that those affected are more likely to be working in a small business. Even so, the cost of complying with the regulation is unlikely to be significant, and there are no alternatives to the regulation that would provide greater flexibility while also meeting its policy objectives.

Localities¹³ Affected.¹⁴ The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed amendments are unlikely to affect the overall number of employed Licensed Clinical Social Workers.

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

_____________________________

¹See http://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil
&val=hb363

²See https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf?response_type=embed and citations therein.

³See https://www.socialworkers.org/LinkClick.aspx?fileticket=
yH3UsGQQmYI%3d&portalid=0

⁴See https://www.apa.org/about/policy/sexual-orientation The American Psychological Association convened a task force whose 2009 report Appropriate Therapeutic Responses to Sexual Orientation states "…Thus, the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE. We found that there was some evidence to indicate that individuals experienced harm from SOCE." See https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (Executive Summary)

⁵See https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy. In a 2013 Position Statement, the American Psychiatric Association stated that it "does not believe that same-sex orientation should or needs to be changed, and efforts to do so represent a significant risk of harm by subjecting individuals to forms of treatment which have not been scientifically validated and by undermining self-esteem when sexual orientation fails to change. No credible evidence exists that any mental health intervention can reliably and safely change sexual orientation; nor, from a mental health perspective does sexual orientation need to be changed." Downloaded from https://www.psychiatry.org/home/policy-finder

⁶See https://www.ama-assn.org/press-center/press-releases/ama-adopts-new-policies-during-first-day-voting-interim-meeting

⁷See https://townhall.virginia.gov/l/viewcomments.cfm?commentid=74782

⁸See Board of Counseling 5225 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5225), Board of Psychology Action 5218 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5218) and Board of Medicine Action 5412 (https://townhall.virginia.gov/L/viewaction.cfm?actionid=5412) and Board of Nursing Action 5430 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5430).

⁹As per COV § 54.1-3501 Exemption from requirements of licensure: The activities, including marriage and family therapy, counseling, or substance abuse treatment, of rabbis, priests, ministers or clergymen of any religious denomination or sect when such activities are within the scope of the performance of their regular or specialized ministerial duties, and no separate charge is made or when such activities are performed, whether with or without charge, for or under auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination or sect, and the person rendering service remains accountable to its established authority.

¹⁰Ibid.

¹¹According to the ABD, the overall numbers of licensees are as follows: 7285 Clinical Social Workers and 2175 supervisees.

¹²Pursuant 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."

¹³"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.

¹⁴§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The proposed amendments define conversion therapy and establish that the standard of practice for licensed baccalaureate social workers, license master's social workers, and clinical social workers preclude the provision of conversion therapy to persons younger than 18 years of age.

Part I
General Provisions

18VAC140-20-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-3700 of the Code of Virginia:

Baccalaureate social worker

Board

Casework

Casework management and supportive services

Clinical social worker

Master's social worker

Practice of social work

Social worker

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

"Accredited school of social work" means a school of social work accredited by the Council on Social Work Education.

"Active practice" means post-licensure practice at the level of licensure for which an applicant is seeking licensure in Virginia and shall include at least 360 hours of practice in a 12-month period.

"Ancillary services" means activities such as case management, recordkeeping, referral, and coordination of services.

"Clinical course of study" means graduate course work that includes specialized advanced courses in human behavior and the social environment, social justice and policy, psychopathology, and diversity issues; research; clinical practice with individuals, families, and groups; and a clinical practicum that focuses on diagnostic, prevention, and treatment services.

"Clinical social work services" include the application of social work principles and methods in performing assessments and diagnoses based on a recognized manual of mental and emotional disorders or recognized system of problem definition, preventive and early intervention services, and treatment services, including psychosocial interventions, psychotherapy, and counseling for mental disorders, substance abuse, marriage and family dysfunction, and problems caused by social and psychological stress or health impairment.

"Conversion therapy" means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. Conversion therapy does not include:

1. Social work services that provide assistance to a person undergoing gender transition; or

2. Social work services that provide acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such services do not seek to change an individual's sexual orientation or gender identity in any direction.

"Exempt practice" is that which meets the conditions of exemption from the requirements of licensure as defined in § 54.1-3701 of the Code of Virginia.

"Face-to-face supervision" means the physical presence of the individuals involved in the supervisory relationship during either individual or group supervision or the use of technology that provides real-time, visual contact among the individuals involved.

"LBSW" means a licensed baccalaureate social worker.

"LMSW" means a licensed master's social worker.

"Nonexempt practice" is means that which does not meet the conditions of exemption from the requirements of licensure as defined in § 54.1-3701 of the Code of Virginia.

"Supervisee" means an individual who has submitted a supervisory contract and has received board approval to provide clinical services in social work under supervision.

"Supervision" means a professional relationship between a supervisor and supervisee in which the supervisor directs, monitors, and evaluates the supervisee's social work practice while promoting development of the supervisee's knowledge, skills, and abilities to provide social work services in an ethical and competent manner.

Part V
Standards of Practice

18VAC140-20-150. Professional conduct.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board. Regardless of the delivery method, whether in person, by telephone, or electronically, these standards shall apply to the practice of social work.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Maintain client records securely, inform all employees of the requirements of confidentiality, and provide for the destruction of records that are no longer useful in a manner that ensures client confidentiality.

3. Disclose or release records to others only with clients' expressed written consent or that of their legally authorized representative or as mandated by law.

4. Ensure confidentiality in the usage of client records and clinical materials by obtaining informed consent from clients or their legally authorized representative before (i) videotaping, (ii) audio recording, (iii) permitting third-party observation, or (iv) using identifiable client records and clinical materials in teaching, writing, or public presentations.

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

a. At minimum, records of a minor child shall be maintained for six years after attaining the age of majority or 10 years following termination, whichever comes later.

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

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

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

1. Not engage in a dual relationship with a client or a supervisee that could impair professional judgment or increase the risk of exploitation or harm to the client or supervisee. (Examples of such a relationship include familial, social, financial, business, bartering, or a close personal relationship with a client or supervisee.) Social workers shall take appropriate professional precautions when a dual relationship cannot be avoided, such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs.

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

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

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

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

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