Title of Regulation: 18VAC115-80. Regulations Governing the Registration of Qualified Mental Health Professionals (amending 18VAC115-80-10, 18VAC115-80-40, 18VAC115-80-50, 18VAC115-80-70, 18VAC115-80-110; adding 18VAC115-80-35).

Statutory Authority: §§ 54.1-2400, 54.1-3500, and 54.1-3505 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 14, 2020.

Effective Date: October 29, 2020.

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, which establishes the general powers and duties of health regulatory boards, including the responsibility to promulgate regulations in accordance with the Administrative Process Act that are reasonable and necessary.

Purpose: The purpose of the registration is to address the lack of oversight for persons who are providing mental health services as trainees. By requiring a person who works as a qualified mental health professional-trainee to be registered by the Board of Counseling, there is accountability for that person's services and for the person who provides supervision for a trainee; this requirement also provides greater protection for the public health and safety and a reduction in the incidents of abuse and fraud in Medicaid-funded programs.

Rationale for Using Fast-Track Rulemaking Process: Current regulations allow for registration as a trainee but do not specify the requirements for registration. However, the board has required anyone who sought to register as a trainee to have the education or licensure requirements for registration as a qualified mental health professional (QMHP) (less the hours of training). Therefore, the proposed regulations do not differ from current practice and should not be controversial.

Substance: The board has adopted regulations to implement registration of persons who are in training to become a qualified mental health professional-adult (QMHP-A) or qualified mental health professional-child (QMHP-C). Amendments for registration as a trainee specify the same education or licensure requirement required to register as a QMHP-A or a QMHP-C.

Issues: The primary advantage for the public of the amendment is more assurance of competency and accountability for persons providing mental health services. There are no disadvantages for the public. 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 (Board) proposes to amend 18VAC115-80 Regulations Governing the Registration of Qualified Mental Health Professionals in order to formalize the registration requirements for trainees receiving supervised work experience. Although the Board previously required trainees to be registered, the requirements for registration were not explicitly listed in the regulation. The Board also seeks to amend the definitions of the relevant professional categories and add language addressing unresolved disciplinary actions.

Background. Chapters 101 and 217 of the 2019 Acts of Assembly added a definition for "Qualified mental health professional-trainee" and directed the Board to promulgate regulations for the registration of trainees undertaking supervised work experience.¹ The regulation currently does not contain a definition or requirements for the registration of trainees. However, both sections 18VAC115-80-40 Requirements for registration as a qualified mental health professional-adult and 18VAC115-80-50 Requirements for registration as a qualified mental health professional-child state that individuals receiving supervised training in order to qualify for professional registration may register with the Board. The Board proposes to add the definition of trainee as adopted by the 2019 Acts of Assembly and replace the current language that offers registration as an option with language that requires registration.

The Board states that trainees who applied for registration have been required to meet all the requirements for professional registration listed under either category – adult or child –except for the work experience portion. Thus, the proposed amendments include the creation of a new section 18VAC115-80-35 Requirements for registration as a qualified mental health professional-trainee, which includes all the educational requirements listed in sections 18VAC115-80-40 and -50, but leaves out all mention of hours of experience.

In practice, qualified mental health professionals, including trainees, primarily work with populations served by the Department of Behavioral Health and Developmental Services or the Department of Corrections. As such, these populations are covered by Medicaid and the services provided to them are reimbursed by the Department of Medical Administrative Services (DMAS). The registration requirement for trainees is intended to increase oversight of trainees and accountability for their services, decrease incidents of abuse and fraud in Medicaid-funded programs, and provide a listing of qualified persons for the purpose of reimbursement by DMAS.

In addition to these amendments, the Board also proposes two changes to the requirements for professional registration under the adult and child categories. First, the Board seeks to specify that applicants shall have no unresolved disciplinary action and that the Board will consider a history of disciplinary action on a case-by-case basis. Second, the Board seeks to clarify that supervised experience obtained prior to meeting the educational requirements shall not be accepted.

Estimated Benefits and Costs. Since the proposed amendments do not increase the educational or other requirements already in place for trainees who apply for registration, the Board states that the proposed changes do not differ from current practice, and would not affect the 2,193 trainees currently registered. Any unregistered trainees who have been working under supervision would now have to pay the $25 registration fee and demonstrate that they meet the educational requirements; these costs are unlikely to be substantive in nature. Further, the Board reported that all qualified mental health professionals (including trainees) working with Medicaid patients would have been required to register in order to receive reimbursement from DMAS. To the extent that the registration requirement increases oversight and accountability for trainees and reduces instances of abuse and fraud in the Medicaid program, the proposed amendments would benefit qualified mental health professionals as well as the populations they serve. Amendments relating to unresolved disciplinary actions are unlikely to have any significant impact.

Businesses and Other Entities Affected. The proposed amendments pertain to applicants for professional registration qualified mental health professional-adult, qualified mental health professional-child, and qualified mental health professional-trainee. These individuals primarily work with populations served by the Department of Behavioral Health and Developmental Services or the Department of Corrections.

Small Businesses² Affected. The proposed amendments do not directly affect any small businesses, nor would they face any new costs as a result of the proposed amendments.

Localities³ Affected.⁴ The proposed amendments are not expected to disproportionately affect particular localities or introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use or value of private property. Real estate development costs are unlikely to be affected.

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¹See https://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0101

²Pursuant 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."

³"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.

⁴§ 2.2-4007.04 defines “particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments implement registration for individuals who are training to become a qualified mental health professional-adult (QMHP-A) or a qualified mental health professional-child (QMHP-C), define and list the registration requirements for each category, and establish board consideration of disciplinary actions.

Part I
General Provisions

18VAC115-80-10. Definitions.

"Accredited" means a school that is listed as accredited on the U.S. Department of Education College Accreditation database found on the U.S. Department of Education website. If education was obtained outside the United States, the board may accept a report from a credentialing service that deems the degree and coursework is equivalent to a course of study at an accredited school.

"Applicant" means a person applying for registration as a qualified mental health professional.

"Board" means the Virginia Board of Counseling.

"Collaborative mental health services" means those rehabilitative supportive services that are provided by a qualified mental health professional, as set forth in a service plan under the direction of and in collaboration with either a mental health professional licensed in Virginia or a person under supervision that has been approved by the Board of Counseling, Board of Psychology, or Board of Social Work as a prerequisite for licensure.

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

"Face-to-face" means the physical presence of the individuals involved in the supervisory relationship or the use of technology that provides real-time, visual, and audio contact among the individuals involved.

"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.

"Qualified mental health professional" or "QMHP" means a person who by education and experience is professionally qualified and registered by the board to provide collaborative mental health services for adults or children. A QMHP shall not engage in independent or autonomous practice. A QMHP shall provide such services as an employee or independent contractor of DBHDS, the Department of Corrections, or a provider licensed by DBHDS includes qualified mental health professionals-adult and qualified mental health professionals-child.

"Qualified mental health professional-adult" or "QMHP-A" means a registered QMHP who is trained and experienced in providing mental health services to adults who have a mental illness. A QMHP-A shall provide such services as an employee or independent contractor of DBHDS, the Department of Corrections, or a provider licensed by DBHDS a qualified mental health professional who provides collaborative mental health services for adults. A qualified mental health professional-adult shall provide such services as an employee or independent contractor of the Department of Behavioral Health and Developmental Services or the Department of Corrections, or as a provider licensed by the Department of Behavioral Health and Developmental Services.

"Qualified mental health professional-child" or "QMHP-C" means a registered QMHP who is trained and experienced in providing mental health services to children or adolescents up to the age of 22 who have a mental illness. A QMHP-C shall provide such services as an employee or independent contractor of DBHDS, the Department of Corrections, or a provider licensed by DBHDS a person who by education and experience is professionally qualified and registered by the board to provide collaborative mental health services for children and adolescents up to 22 years of age. A qualified mental health professional-child shall provide such services as an employee or independent contractor of the Department of Behavioral Health and Developmental Services or the Department of Corrections, or as a provider licensed by the Department of Behavioral Health and Developmental Services.

"Qualified mental health professional-trainee" means a person who is receiving supervised training to qualify as a qualified mental health professional and is registered with the board.

"Registrant" means a QMHP registered with the board.

18VAC115-80-35. Requirements for registration as a qualified mental health professional-trainee.

A. Prior to receiving supervised experience toward registration as a QMHP-A, an applicant for registration as a QMHP-trainee shall provide a completed application, the fee prescribed in 18VAC115-80-20, and verification of one of the following:

1. A master's degree in psychology, social work, counseling, substance abuse, or marriage and family therapy verified by an official transcript from an accredited college or university;

2. A master's or bachelor's degree in human services or a related field verified by an official transcript from an accredited college;

3. Current enrollment in a master's program in psychology, social work, counseling, substance abuse, marriage and family therapy, or human services with at least 30 semester or 45 quarter hours as verified by an official transcript;

4. A bachelor's degree verified by an official transcript from an accredited college in an unrelated field that includes at least 15 semester credits or 22 quarter hours in a human services field;

5. Licensure as a registered nurse in Virginia; or

6. Licensure as an occupational therapist.

B. Prior to receiving supervised experience toward registration as a QMHP-C, an applicant for registration as a QMHP-trainee shall provide a completed application, the fee prescribed in 18VAC115-80-20, and verification of one of the following:

1. A master's degree in psychology, social work, counseling, substance abuse, or marriage and family therapy verified by an official transcript from an accredited college or university;

2. A master's or bachelor's degree in a human services field or in special education verified by an official transcript from an accredited college;

3. Current enrollment in a master's program in psychology, social work, counseling, substance abuse, marriage and family therapy, human services, or special education with at least 30 semester or 45 quarter hours as verified by an official transcript;

3. Licensure as a registered nurse in Virginia; or

4. Licensure as an occupational therapist.

C. An applicant for registration as a QMHP-trainee shall have no unresolved disciplinary action against a mental health or health professional license, certification, or registration held in any jurisdiction. The board will consider a history of disciplinary action on a case-by-case basis as grounds for denial under 18VAC115-80-100.

D. Registration as a QMHP-trainee shall expire five years from date of issuance.

Part II
Requirements for Registration

18VAC115-80-40. Requirements for registration as a qualified mental health professional-adult.

A. An applicant for registration shall submit:

1. A completed application on forms provided by the board and any applicable fee as prescribed in 18VAC115-80-20;

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

3. Verification of any other mental health or health professional license, certification, or registration ever held in another jurisdiction. An applicant for registration as a QMHP-A shall have no unresolved disciplinary action. The board will consider a history of disciplinary action on a case-by-case basis as grounds for denial under 18VAC115-80-100.

B. An applicant for registration as a QMHP-A shall provide evidence of:

1. A master's degree in psychology, social work, counseling, substance abuse, or marriage and family therapy, as verified by an official transcript, from an accredited college or university with an internship or practicum of at least 500 hours of experience with persons who have mental illness;

2. A master's or bachelor's degree in human services or a related field, as verified by an official transcript, from an accredited college with no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section;

3. A bachelor's degree, as verified by an official transcript, from an accredited college in an unrelated field that includes at least 15 semester credits or 22 quarter hours in a human services field and with no less than 3,000 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section;

4. A registered nurse licensed in Virginia with no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section; or

5. A licensed occupational therapist with an internship or practicum of at least 500 hours with persons with mental illness or no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section.

C. Experience required for registration.

1. To be registered as a QMHP-A, an applicant who does not have a master's degree as set forth in subdivision B 1 of this section shall provide documentation of experience in providing direct services to individuals as part of a population of adults with mental illness in a setting where mental health treatment, practice, observation, or diagnosis occurs. The services provided shall be appropriate to the practice of a QMHP-A and under the supervision of a licensed mental health professional or a person under supervision that has been approved by the Board of Counseling, Board of Psychology, or Board of Social Work as a prerequisite for licensure. Supervision obtained in another United States jurisdiction shall be provided by a mental health professional licensed in Virginia or licensed in that jurisdiction.

2. Supervision shall consist of face-to-face training in the services of a QMHP-A until the supervisor determines competency in the provision of such services, after which supervision may be indirect in which the supervisor is either onsite or immediately available for consultation with the person being trained.

3. Hours obtained in a bachelor's or master's level internship or practicum in a human services field may be counted toward completion of the required hours of experience.

4. A person receiving supervised training to qualify as a QMHP-A may register with the board. A trainee registration shall expire five years from its date of issuance. Supervised experience obtained prior to meeting the education requirements of subsection B of this section shall not be accepted.

18VAC115-80-50. Requirements for registration as a qualified mental health professional-child.

A. An applicant for registration shall submit:

1. A completed application on forms provided by the board and any applicable fee as prescribed in 18VAC115-80-20;

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

3. Verification of any other mental health or health professional license, certification, or registration ever held in another jurisdiction. An applicant for registration as a QMHP-C shall have no unresolved disciplinary action. The board will consider a history of disciplinary action on a case-by-case basis as grounds for denial under 18VAC115-80-100.

B. An applicant for registration as a QMHP-C shall provide evidence of:

1. A master's degree in psychology, social work, counseling, substance abuse, or marriage and family therapy, as verified by an official transcript, from an accredited college or university with an internship or practicum of at least 500 hours of experience with persons who have mental illness;

2. A master's or bachelor's degree in a human services field or in special education, as verified by an official transcript, from an accredited college with no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section;

3. A registered nurse licensed in Virginia with no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section; or

4. A licensed occupational therapist with an internship or practicum of at least 500 hours with persons with mental illness or no less than 1,500 hours of supervised experience to be obtained within a five-year period immediately preceding application for registration and as specified in subsection C of this section.

C. Experience required for registration.

1. To be registered as a QMHP-C, an applicant who does not have a master's degree as set forth in subdivision B 1 of this section shall provide documentation of 1,500 hours of experience in providing direct services to individuals as part of a population of children or adolescents with mental illness in a setting where mental health treatment, practice, observation, or diagnosis occurs. The services provided shall be appropriate to the practice of a QMHP-C and under the supervision of a licensed mental health professional or a person under supervision that has been approved by the Board of Counseling, Board of Psychology, or Board of Social Work as a prerequisite for licensure. Supervision obtained in another United States jurisdiction shall be provided by a mental health professional licensed in Virginia or licensed in that jurisdiction.

2. Supervision shall consist of face-to-face training in the services of a QMHP-C until the supervisor determines competency in the provision of such services, after which supervision may be indirect in which the supervisor is either onsite or immediately available for consultation with the person being trained.

3. Hours obtained in a bachelor's or master's level internship or practicum in a human services field may be counted toward completion of the required hours of experience.

4. A person receiving supervised training to qualify as a QMHP-C may register with the board. A trainee registration shall expire five years from its date of issuance. Supervised experience obtained prior to meeting the education requirements of subsection B of this section shall not be accepted.

Part III
Renewal of Registration

18VAC115-80-70. Annual renewal of registration.

All registrants as a QMHP-A or a QMHP-C shall renew their registrations on or before June 30 of each year. Along with the renewal form, the registrant shall submit the renewal fee as prescribed in 18VAC115-80-20.

18VAC115-80-110. Late renewal and reinstatement.

A. A person whose registration as a QMHP-A or a QMHP-C 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 18VAC115-80-20 for the year in which the registration was not renewed and by providing documentation of completion of continuing education as prescribed in 18VAC115-80-80.

B. A person who fails to renew registration as a QMHP-A or a QMHP-C after one year or more shall:

1. Apply for reinstatement;

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

3. Submit evidence of completion of 20 hours of continuing education consistent with requirements of 18VAC115-80-80.

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 18VAC115-80-20. 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 18VAC115-80-20. The board in its discretion may, after an administrative proceeding, grant the reinstatement sought in this subsection.