Title of Regulation: 18VAC125-30. Regulations Governing the Certification of Sex Offender Treatment Providers (amending 18VAC125-30-10, 18VAC125-30-30, 18VAC125-30-40, 18VAC125-30-50, 18VAC125-30-70, 18VAC125-30-80, 18VAC125-30-90, 18VAC125-30-110; adding 18VAC125-30-25, 18VAC125-30-81, 18VAC125-30-91, 18VAC125-30-101; repealing 18VAC125-30-100, 18VAC125-30-120).

Statutory Authority: §§ 54.1-2400 and 54.1-3605 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 7, 2021.

Effective Date: July 22, 2021.

Agency Contact: Jaime Hoyle, Executive Director, Board of Psychology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 327-4435, or email jaime.hoyle@dhp.virginia.gov.

Basis: Regulations of the Board of Psychology 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 that are reasonable and necessary. Specific authority to regulate sex offender treatment provider certification is found in § 54.1-3611 of the Code of Virginia.

Purpose: Treatment of sex offenders requires special training and expertise. The goal is to treat the offender to avoid recidivism and to also protect the public. The board determined that additional standards of practice were necessary to ensure a certified provider could be held accountable for unprofessional conduct similar to any other mental health provider. Therefore, the regulation is absolutely necessary for public health, safety, and welfare.

Rationale for Using Fast-Track Rulemaking Process: This action is the result of a comprehensive periodic review of 18VAC125-30. No public comment was received. The amended regulation was developed by persons with expertise as sex offender treatment providers; the amendments are not expected to be controversial.

Substance: The amendments (i) clarify and update requirements and language consistent with current practice; (ii) eliminate the need for reference letters with an application and substituting a report from the National Practitioner Data Bank and verification of a license from another board; (iii) provide for acceptance of supervised experience obtained in another state; (iv) add an allowance for exceptions or exemptions for continuing education requirement; and (v) expand the standards of practice and grounds for disciplinary action for consistency with other boards and professions.

Issues: The primary advantage of the amendments is greater protection for the public and for the clients who receive treatment with thorough enhanced and clarified standards of practice and grounds for disciplinary action. There are no disadvantages to 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 Psychology (Board) proposes to amend 18VAC125-30 Regulations Governing the Certification of Sex Offender Treatment Providers (regulation) in order to implement a number of changes following a periodic review.¹ The proposed amendments would (i) clarify and update requirements to be consistent with current practice, (ii) remove the requirement for three reference letters and instead require a report from the National Practitioner Data Bank (NPDB) and a verification of any other license held as a health professional, (iii) allow supervised experience obtained in another state to count towards certification requirements, (iv) add allowable exceptions or exemptions to the continued education requirements, and (v) expand the standards of practice and grounds for disciplinary action to be consistent with those found in the regulations for other health professions.

Background. Pursuant to a periodic review, the Board proposes to make a number of changes. The most significant changes are summarized as follows:

1. Clarify and update requirements and language consistent with current practice: For example, the definition of "ancillary services" is updated by replacing "substance abuse avoidance" with "substance misuse," and replacing "sex education" with "human sexuality." Also, the definition of "face-to-face" contact is amended to include interaction between therapy trainees and supervisors via technology. In addition, while the total hours for face-to face supervision would not change (a minimum of 100 hours of face-to-face supervision out of 2,000 hours of experience), the requirement for six hours per month of face-to-face supervision is repealed and replaced with "one hour of face-to-face supervision for every 20 hours of experience." The Department of Health Professions (DHP) reports that this change would allow greater flexibility for the supervisor and supervisee.

2. Remove the requirement for three reference letters to accompany a certification application: Instead, applicants would submit a report from the NPDB and verification of any licenses from another board.² According to DHP, the applicant would request a report from the NPDB which, in turn, would be submitted to DHP along with other required documentation. The NPDB charges healthcare professionals $4 for each "self-query" of their own report, of which they may choose to receive hard copies by mail.³ DHP reports that most sex offender treatment providers are also licensed as social workers, counselors, or other mental health professionals. Thus, verification of that license also serves as an effective method to ensure the applicant's professional standing.

3. Acceptance of supervised experience obtained in another state: Section 50 would permit the board to accept supervised experience hours completed in another jurisdiction for individuals with less than five years of documented work experience. New language would prohibit candidates from beginning their supervised experience until after completing the required degree as set forth in 18VAC125-30-40. This follows the direction taken by the Board of Social Work in 2020.⁴

4. Add an allowance for exceptions or exemptions for the continuing education (CE) requirement: A new section (81) would set out requirements for CE. While there is no change to the hourly requirements, the Virginia Sex Offender Treatment Association would be added as an approved CE provider. Other proposed amendments would: (i) exempt providers from CE for their first renewal after initial certification; (ii) grant the Board authority to grant extensions or exemptions at their discretion;⁵(iii) require maintenance of documentation for three years to allow for possible audits, eliminating the need to keep records indefinitely; and(iv) clarify that CE required by a disciplinary order may not be used to satisfy the renewal requirement for CE.

5. Expand the standards of practice and grounds for disciplinary action to be consistent with other boards and professions: Additional grounds would be added in Section 110 for consistency with the regulations of related boards such as counseling, social work, and psychology.⁶ These expanded grounds for action include engaging in intentional or negligent conduct that causes or is likely to cause harm to a client, performing functions outside the areas of competency, performing acts of fraud or deceiving the public, and failing to cooperate with DHP staff in the conduct of an investigation.

Lastly, one of the proposed amendments would prohibit treatment providers from entering into an intimate or romantic relationship with a current or former sex offender client until five years after the cessation of treatment. In contrast, 18VAC125-30-100 of the regulation currently prohibits treatment providers from entering into such relationships altogether, regardless of how much time has passed since cessation of treatment. Although the proposed language is intended to align the standards of practice with those adopted by the Board of Social Work and Board of Counseling, which extended the prohibition on entering such relationships from three years to five years, sex offender treatment providers had previously not been allowed to enter such relationships at all. In response to questions from the Department of Planning and Budget as to whether the Board intended for its requirements to be more permissive than before, DHP reported, "We do not believe the standard should be different for this type of practitioner than for other behavioral health professions; most who hold this certification are also licensees as counselors, social workers, etc. There is mitigating language in that subdivision in which the practitioner bears the burden of assuring that there has been no exploitation of the client both during and following treatment."⁷

Estimated Benefits and Costs. By clarifying the requirements to obtain and maintain certification, the proposed amendments would benefit current and prospective sex offender treatment providers as well as the organizations that employ them. Some providers may incur lower costs to maintain their certification due to the new exemptions and exceptions for CE requirements. Applicants who have completed a portion of their training in another state would benefit by being able to use supervised experience hours acquired elsewhere to meet the certification requirements.

Although applicants would have to pay a $4 fee to obtain a report from the NPDB, they would benefit from not having to expend the time and effort to obtain three letters of reference from currently licensed professionals. Utilizing a national database promotes greater transparency since applicants cannot select their letter writers and previous disciplinary actions in other states are less likely to be accidentally overlooked. Thus, prospective employers of certified sex offender treatment providers and the public at large would benefit from using the NPDB.

In addition, aligning the grounds for disciplinary action with the regulations that govern other mental health treatment providers would benefit the public by ensuring that a provider facing disciplinary charges under one board is not permitted to continue providing sex offender treatment simply due to discrepancies in the standards of practice.

Businesses and Other Entities Affected. DHP reports that there are currently 437 certified sex offender treatment providers. It is unknown how many of these providers are also licensed social workers, counselors, or other mental health providers. DHP reports that most sex offender treatment providers are employed by government agencies or are contracted by court systems, but some may be in private practice, especially if they are also licensed as other mental health providers.

Small Businesses⁸ Affected. Private practices that are either (i) owned and operated by or (ii) employ certified sex offender treatment providers would be affected by the proposed amendments. Although the number of such businesses is unknown, the proposed amendments do not appear to create any new costs for them.

Localities⁹ Affected.¹⁰ 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 employment of certified sex offender treatment providers. The number of certified providers may increase since some of the proposed amendments would make it easier for providers from other states to obtain certification in Virginia and provide greater flexibility for supervisors and supervisees to meet the "face to face" supervised experience requirements.

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.

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¹See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1900.

²The National Practitioner Data Bank is a web-based repository of reports containing information on medical malpractice payments and certain adverse actions related to health care practitioners, providers, and suppliers. See https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp. In Virginia, the Board of Physical Therapy, Board of Dentistry, Board of Medicine, and Board of Social Work also currently use the NPDB.

³See https://www.npdb.hrsa.gov/pract/selfQueryBasics.jsp for detailed instructions on how individual professionals should use the service to obtain reports.

⁴See https://townhall.virginia.gov/L/ViewStage.cfm?stageid=9103.

⁵According to DHP, "Such provisions are allowed for all other professions for this and other boards but were missing in the current regulations."

⁶As per pages 11-12 of the Agency Background Document: "Without consistency in the grounds, it is possible for a licensee to have disciplinary action taken against his license but avoid discipline for this certification as a sex offender treatment provider." See https://townhall.virginia.gov/l/GetFile.cfm?File=31\5660\9149\AgencyStatement_DHP_9149_v1.pdf

⁷While this protects individuals seeking treatment, it does not address the possibility that sex offenders who have received treatment may wrongfully manipulate their providers into signing off on parole applications or similar actions that would reduce legal penalties and/or enable recidivist behavior.

⁸Pursuant 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."

⁹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

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

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

Summary:

As a result of a periodic review, the amendments (i) clarify and update requirements and language consistent with current practice, (ii) eliminate the need for reference letters with an application and substitute a report from the National Practitioner Data Bank and verification of a license from another board, (iii) provide for acceptance of supervised experience obtained in another state, (iv) add an allowance for exceptions or exemptions for continuing education requirement, and (v) expand the standards of practice and grounds for disciplinary action for consistency with other boards and professions.

18VAC125-30-10. Definitions.

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

"Ancillary services" means training in that includes anger management, stress management, assertiveness, social skills, substance abuse avoidance misuse, victim empathy, and sex education human sexuality as part of an identified sex offender treatment provider program.

"Applicant" means an individual who has submitted a completed application with documentation and the appropriate fees to be examined for certification as a sex offender treatment provider.

"Assessment" means using specific techniques of evaluation and measurement to collect facts related to sexually abusive thoughts and behaviors contributing to sexual offense.

"Board" means the Virginia Board of Psychology.

"Certified sex offender treatment provider" means a person who is certified to provide treatment to sex offenders and who provides such services in accordance with the provisions of §§ 54.1-2924.1, 54.1-3005, 54.1-3505, 54.1-3609, 54.1-3610, 54.1-3611, and 54.1-3705 of the Code of Virginia and the regulations promulgated pursuant to these provisions.

"Competency area" means an area in which a person possesses knowledge and skills and the ability to apply them in the clinical setting.

"Face-to-face" means in-person or real-time interactive in which there is visual and audio contact and an opportunity for interaction.

"Sex offender" means (i) any person who has been adjudicated or convicted of a sex offense or has a founded child sexual abuse status by the Department of Social Services; (ii) any person for whom any court has found sufficient evidence without specific finding of guilt of committing a felony or misdemeanor which may be reasonably inferred to be sexually motivated; or (iii) any person who admits to or acknowledges behavior which would result in adjudication, conviction, or a founded child sexual abuse status.

"Sex offense" means behavior in violation of any of the following statutes in the Code of Virginia: § 18.2-48 in part (abduction of any person with intent to defile such person), § 18.2-60.3 in part (includes only those instances in which sexual motivation can be reasonably inferred), § 18.2-61, § 18.2-63, § 18.2-64.1, § 18.2-67.1, § 18.2-67.2, § 18.2-67.2:1, § 18.2-67.3, § 18.2-67.4, § 18.2-67.5, § 18.2-130 in part (includes only those instances in which sexual motivation can be reasonable inferred), subsection A of § 18.2-361 in part "If any person carnally knows in any manner any brute animal" and subsection B § 18.2-361 in its entirety, § 18.2-366, § 18.2-370, § 18.2-370.1, § 18.2-374.1 (not to include plethysmographic testing materials in the possession of qualified mental health professionals or technicians), § 18.2-387.

"Supervision" means the ongoing process performed by a supervisor who monitors the performance of the person supervised and provides regular documented individual consultation, guidance, and instruction with respect to the skills and competencies of the person providing sex offender treatment services.

"Supervisor" means an individual who assumes full responsibility for the education and training activities of a person as it relates to sex offender treatment and provides the supervision required by such a person. The supervisor shall be a certified sex offender treatment provider and licensed by the Board of Medicine, Nursing, Counseling, Psychology or Social Work.

"Supervisory contract" means an agreement that outlines the expectations and responsibilities of the supervisor and the trainee in accordance with this chapter.

"Treatment" means therapeutic intervention to promote change in sexually abusive thoughts and behaviors which specifically addresses the occurrence and dynamics of sexual behavior and utilizes specific strategies to promote change and to reduce the risk of recidivism.

18VAC125-30-25. Current name and address.

Certificate holders shall notify the board in writing within 60 days of a change in name or a change of the address of record or of the public address if different from the address of record.

18VAC125-30-30. Prerequisites to certification.

A. Every applicant for certification by the board shall:

1. Meet the educational requirements prescribed in 18VAC125-30-40;

2. Meet the experience requirements prescribed in 18VAC125-30-50;

3. Submit to the board:

a. A completed application form;

b. Documented evidence of having fulfilled the education, experience, and supervision set forth in 18VAC125-30-40 and 18VAC125-30-50; and

c. Reference letters from three licensed health care professionals familiar with and attesting to the applicant's skills and experience A current report from the National Practitioner Data Bank; and

d. Verification of any other health or mental health license, certificate, or registration ever held in Virginia or in another jurisdiction. In order to qualify for certification, the applicant shall have no unresolved action against a license, certificate, or registration. The board will consider history of disciplinary action on a case-by-case basis.

B. The board may certify by endorsement an individual who can document current certification as a sex offender treatment provider in good standing obtained by standards substantially equivalent to those outlined in this chapter as verified by an out-of-state certifying agency on a board-approved form.

18VAC125-30-40. Educational requirements.

An applicant for certification as a sex offender treatment provider shall:

1. Document completion of one of the following degrees:

a. A master's or doctoral degree in social work, psychology, counseling, or nursing from a regionally accredited university; or

b. The degree of Doctor of Medicine or Doctor of Osteopathic Medicine from an institution that is approved by an accrediting agency recognized by the Virginia Board of Medicine

Graduates of institutions that are not accredited by an acceptable accrediting agency shall establish the equivalency of their education to the educational requirements of the Virginia Board of Social Work, Psychology, Counseling, Nursing or Medicine.

2. Provide documentation of certificates of completion documenting 50 clock hours of training education acceptable to the board in the following areas, with 15 clock hours in each area identified in subdivisions 2 a and 2 b of this section, 10 clock hours in each the area identified in subdivision 2 c of this section, and five clock hours in each area identified in subdivisions 2 d and 2 e of this section:

a. Sex offender assessment;

b. Sex offender treatment interventions;

c. Etiology/developmental issues of sex offense behavior;

d. Criminal justice and legal issues related to sexual offending; and

e. Program evaluation, treatment efficacy, Treatment effectiveness and issues related to relapse prevention or recidivism of sex offenders.

18VAC125-30-50. Experience requirements; supervision.

A. Registration of supervision. Supervised experience obtained in Virginia without prior written board approval shall not be accepted toward certification. Candidates shall not begin the experience until after completion of the required degree as set forth in 18VAC125-30-40.

1. In order to register supervision with the board, individuals shall submit Prior to beginning supervised postdegree experience in Virginia, an individual shall submit:

a. A completed supervisory contract;

b. The application and the registration fee prescribed in 18VAC125-30-20; and

c. Official graduate transcript documenting the degree requirement of 18VAC125-30-40.

2. The board may waive the registration requirement for individuals who have obtained at least five years of documented work experience in sex offender treatment in another jurisdiction. For individuals with less than five years of documented work experience, the board may accept supervised experience hours completed in another jurisdiction, provided the experience meets the requirements of this section, except it is not required that a supervisor in the other jurisdiction hold certification as a sex offender treatment provider or a license issued by a health regulatory board in Virginia.

B. An applicant for certification as a sex offender treatment provider shall provide documentation of having 2,000 hours of postdegree clinical experience in the delivery of clinical assessment/treatment services. At least 200 hours of this experience must be face-to-face treatment and assessment with sex offender clients.

1. The experience shall include a minimum of 100 hours of face-to-face supervision within the 2,000 hours experience with a minimum of six hours per month one hour of face-to-face supervision for every 20 hours of experience. A minimum of 50 hours shall be in individual face-to-face supervision. Face-to-face supervision obtained in a group setting shall include no more than six trainees in a group.

2. If the applicant has obtained the required postdegree clinical experience for a mental health license within the past 10 years, he the applicant can receive credit for those hours that were in the delivery of clinical assessment/treatment services with sex offender clients provided:

a. The applicant can document that the hours were in the treatment and assessment with sex offender clients; and

b. The supervisor for those hours can attest that he was licensed and qualified to render services to sex offender clients at the time of the supervision.

C. Supervised experience obtained in Virginia without prior written board approval shall not be accepted toward certification. Candidates shall not begin the experience until after completion of the required degree as set forth in 18VAC125-30-40. An individual who proposes to obtain supervised postdegree experience in Virginia shall, prior to the onset of such supervision, submit a supervisory contract along with the application package and pay the registration of supervision fee set forth in 18VAC125-30-20.

D. The supervisor.

1. The supervisor shall assume responsibility for the professional activities of the applicant.

2. The supervisor shall not provide supervision for activities for which the prospective applicant has not had appropriate education.

3. The supervisor shall be a certified sex offender treatment provider and hold a current and unrestricted Virginia license as a clinical nurse specialist, doctor of medicine or osteopathic medicine, professional counselor, marriage and family therapist, clinical social worker, or clinical psychologist and.

4. The supervisor shall provide supervision only for those sex offender treatment services which he is qualified to render.

4. 5. At the time of formal application for certification, the board approved supervisor shall document for the board the applicant's total hours of supervision, length of work experience, competence in sex offender treatment, and needs for additional supervision or training.

18VAC125-30-70. Supervision of unlicensed persons.

Those A certified sex offender treatment provider shall provide supervision for unlicensed persons providing ancillary services as part of an identified sex offender treatment program in an exempt practice situation and not meeting the educational and experience requirements to become an applicant shall provide such services under the supervision of a certified sex offender treatment provider.

18VAC125-30-80. Annual renewal of certificate.

A. Every certificate issued by the board shall expire on June 30 of each year.

B. Along with the renewal application, the certified sex offender treatment provider shall:

1. Submit the renewal fee prescribed in 18VAC125-30-20; and

2. Attest to having obtained six hours of continuing education in topics related to the provision of sex offender treatment within the renewal period. Continuing education shall be offered by a sponsor or provider approved by the Virginia Board of Social Work, Psychology, Counseling, Nursing, or Medicine or by the Association for the Treatment of Sexual Abusers or one of its state chapters. Hours of continuing education used to satisfy the renewal requirements for another license may be used to satisfy the six-hour requirement for sex offender treatment provider certification, provided it was related to the provision of sex offender treatment as specified in 18VAC125-30-81.

C. Certificate holders shall notify the board in writing of a change of address of record or of the public address, if different from the address of record, within 60 days. Failure to receive a renewal notice and application form or forms shall not excuse the certified sex offender treatment provider from the renewal requirement.

18VAC125-30-81. Continuing education requirements.

A. Certified sex offender treatment providers shall complete a minimum of six contact hours of continuing education in topics related to the provision of sex offender treatment for each annual renewal period.

B. Continuing education shall be offered by a sponsor or provider approved by the Virginia Board of Social Work, Psychology, Counseling, Nursing, or Medicine or by the Association for the Treatment of Sexual Abusers or one of its state chapters, or the Virginia Sex Offender Treatment Association. Hours of continuing education used to satisfy the renewal requirements for another license may be used to satisfy the six-hour requirement for sex offender treatment provider certification, provided it was related to the provision of sex offender treatment.

C. Attestation of completion of continuing education is not required for the first renewal following initial certification 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 a certificate holder prior to the renewal date. Such extension shall not relieve the certificate holder 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 a certificate holder, such as temporary disability, mandatory military service, or officially declared disasters, upon written request from the certificate holder prior to the renewal date.

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

G. Continuing education hours required by a disciplinary order may not be used to satisfy the requirement for renewal.

18VAC125-30-90. Reinstatement.

A. A person whose certificate has expired may renew it within one year after its expiration date by paying the renewal fee and the late renewal fee prescribed in 18VAC125-30-20.

B. A person whose certificate has expired beyond one year and who wishes to resume practice shall:

1. Submit a reinstatement application along with the reinstatement fee.

2. Provide evidence satisfactory to the board of current ability to practice of completion of six hours of continuing education for each year in which the certification has been expired, with a maximum of 24 hours.

3. Submit verification of any professional health or mental health registration, certification or licensure obtained ever held in Virginia or in any other jurisdiction subsequent to the initial application for certification.

18VAC125-30-91. Reinstatement following disciplinary action.

A. Any person whose certificate has been revoked or suspended by the board under the provisions of 18VAC125-30-110 shall, in order to be eligible for reinstatement, (i) submit an application to the board for a license, (ii) pay the appropriate reinstatement fee, and (iii) submit any other evidence of competency as prescribed by the board. After a hearing, the board may at its discretion grant the reinstatement.

B. Any person whose certificate has been revoked shall not apply for reinstatement until three years after such board action.

18VAC125-30-100. Standards of practice. (Repealed.).

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 certified practitioners who provide services to sex offenders.

B. Persons certified by the board and applicants under supervision shall:

1. Practice in a manner that ensures community protection and safety.

2. Treat all sex offender clients with dignity and respect, regardless of the nature of their crimes or offenses.

3. Provide only services and use only techniques for which they are qualified by training and experience.

4. Inform sex offender clients of (i) the purposes of an interview, testing, or evaluation session; (ii) the ways in which information obtained in such sessions will be used before asking the sex offender client to reveal personal information or allowing such information to be divulged; (iii) the methods of interventions, including any experimental methods of treatment; and (iv) the risks and benefits of any treatment.

5. Inform sex offender clients of the limits of confidentiality and any circumstances which may allow an exception to the agreed upon confidentiality, including (i) as obligated under dual-client situations, especially in criminal justice or related settings; (ii) when the client is a danger to self or others; (iii) when under court order to disclose information; (iv) in cases of suspected child abuse; and (v) as otherwise required by law.

6. Not require or seek waivers of privacy or confidentiality beyond the requirements of treatment, training, or community safety.

7. Explain to juvenile sex offender clients the rights of their parents or legal guardians, or both, to obtain information relating to the sex offender client.

8. Maintain sex offender client records securely, inform all employees of the rules applicable to the appropriate level of confidentiality, and provide for the destruction of records which are no longer useful.

9. Retain sex offender client records for a minimum of five years from the date of termination of services.

10. Stay abreast of new developments, concepts, and practices which are important to providing appropriate professional services.

11. Never engage in dual relationships with sex offender clients or former clients, or current trainees that could impair professional judgment or compromise the sex offender client's or trainee's well-being, impair the trainee's judgment, or increase the risk of sex offender client or trainee exploitation. Engaging in sexual intimacies or romantic relationships with sex offender clients or former clients, or with current trainees is strictly prohibited.

12. Report to the board known or suspected violations of the laws and regulations governing the practice of sex offender treatment providers, as well as any information that a sex offender treatment provider is unable to practice with reasonable skill and safety because of illness or substance abuse or otherwise poses a danger to himself, the public, or clients.

13. Provide clients with accurate information concerning tests, reports, billing, payment responsibilities, therapeutic regime, and schedules before rendering services.

14. Maintain cooperative and collaborative relationships with corrections/probation/parole officers or any responsible agency for purposes of the effective supervision and monitoring of a sex offender client's behavior in order to assure public safety.

15. Consider the validity, reliability, and appropriateness of assessments selected for use with sex offender clients. Where questions exist about the appropriateness of utilizing a particular assessment with a sex offender client, expert guidance from a knowledgeable, certified sex offender treatment provider shall be sought.

16. Recognize the sensitivity of sexual arousal assessment testing and treatment materials, safeguard the use of such materials in compliance with § 18.2-374.1:1 of the Code of Virginia, and use them only for the purpose for which they are intended in a controlled penile plethysmographic laboratory assessment.

17. Be aware of the limitations of plethysmograph and that plethysmographic data is only meaningful within the context of a comprehensive evaluation or treatment process or both.

18. Be knowledgeable of the limitations of the polygraph and take into account its appropriateness with each individual client and special client population.

19. Comply with all laws of the Code of Virginia applicable to the practice of sex offender treatment providers.

18VAC125-30-101. 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 certified practitioners who provide services to sex offenders. Sex offender treatment providers respect the rights, dignity, and worth of all people, regardless of the nature of one's crimes or offenses, and are mindful of individual differences. Regardless of the delivery method, whether in-person or by use of technology, these standards shall apply to the practice of sex offender treatment.

B. Persons certified by the board and applicants under supervision shall:

1. Practice in a manner that ensures community protection and safety;

2. Provide or supervise only services and use only techniques for which they are qualified by education, training, and experience;

3. Accurately represent their areas of competence, education, training, experience, professional affiliations, credentials, and published findings to ensure that such statements are neither fraudulent nor misleading;

4. Accurately inform sex offender clients of (i) the purposes of an interview, testing, or evaluation session; (ii) the ways in which information obtained in such sessions will be used before asking the sex offender client to reveal personal information or allowing such information to be divulged; (iii) the methods of interventions, including any experimental methods of treatment; and (iv) the risks and benefits of any treatment;

5. Clearly document at the outset of service delivery what party the sex offender treatment provider considers to be the client and what, if any, responsibilities the provider has to all related parties. Explain to juvenile sex offender clients the rights of their parents, legal guardians, or both to obtain information relating to the sex offender client;

6. Maintain current competency in the areas of practice through continuing education, consultation, or other procedures consistent with current standards of scientific and professional knowledge;

7. Be able to justify all services rendered to clients as necessary for diagnostic or therapeutic purposes;

8. Avoid harming, exploiting, misusing influence, or misleading patients or clients, research participants, students, and others for whom they provide professional services and minimize harm when it is foreseeable and unavoidable;

9. Maintain cooperative and collaborative relationships with corrections, probation, or parole officers or any responsible agency for purposes of the effective supervision and monitoring of a sex offender client's behavior in order to assure public safety;

10. Construct, maintain, administer, interpret, and report testing and diagnostic services in a manner and for purposes that are current and appropriate. Sex offender treatment providers shall consider the validity, reliability, appropriateness, and limitations of assessments and data selected for use with sex offender clients, including to the plethysmograph and polygraph. Where questions exist about the appropriateness of utilizing a particular assessment with a sex offender client, expert guidance from a knowledgeable, certified sex offender treatment provider shall be sought;

11. Safeguard the use of sexual arousal assessment testing and treatment materials, due to the sensitivity of such materials in compliance with § 18.2-374.1:1 of the Code of Virginia and use them only for the purpose for which they are intended in a controlled penile plethysmographic laboratory assessment;

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

13. Withdraw from, avoid, adjust, or clarify conflicting roles with due regard for the best interest of the affected party and maximal compliance with these standards;

14. Neither accept nor give commissions, rebates, or other forms of remuneration for referral of clients for professional services. Make appropriate consultations and referrals consistent with the law based on the interest of the patients or clients;

15. Make arrangements for another professional to deal with emergency needs of clients during periods of foreseeable absences from professional availability and provide for continuity of care when services must be terminated;

16. Conduct financial responsibilities to clients in an ethical and honest manner by:

a. Informing clients of fees for professional services and billing arrangements as soon as is feasible;

b. Informing clients prior to the use of collection agencies or legal measures to collect fees and provide opportunity for prompt payment;

c. Obtaining written consent for fees that deviate from the practitioner's usual and customary fees for services; and

d. Not obtaining, attempting to obtain, or cooperating with others in obtaining payment for services by misrepresenting services provided, dates of services, or status of treatment;

17. Design, conduct, and report research in accordance with recognized standards of scientific competence and research ethics. Practitioners shall adhere to requirements of § 32.1-162.18 of the Code of Virginia for obtaining informed consent from patients prior to involving them as participants in human research, with the exception of retrospective chart reviews;

18. Report to the board known or suspected violations of the laws and regulations governing the practice of sex offender treatment providers, as well as any information that a sex offender treatment provider is unable to practice with reasonable skill and safety because of physical or mental impairment or substance misuse or otherwise poses a danger to the provider, the public, or clients;

19. Document the reasons for and steps taken if it becomes necessary to terminate a therapeutic relationship (e.g., when it becomes clear that the client is not benefiting from the relationship or when the sex offender treatment provider feels endangered). Document assistance provided in making arrangements for the continuation of treatment for clients, if necessary, following termination of a therapeutic relationship; and

20. Comply with laws of the Code of Virginia and regulations of the board applicable to the practice of sex offender treatment providers.

C. In regard to confidentiality, persons regulated by the board shall:

1. Inform sex offender clients of the limits of confidentiality and any circumstances which may allow an exception to the agreed upon confidentiality, including (i) as obligated under dual-client situations, especially in criminal justice or related settings; (ii) when the client is a danger to self or others; (iii) when under court order to disclose information; (iv) in cases of suspected child or elder abuse; and (v) as otherwise required by law or regulation;

2. Not require or seek waivers of privacy or confidentiality beyond the requirements of treatment, training, or community safety;

3. Keep confidential their professional relationships with patients or clients and disclose client information to others only with written consent except as required or permitted by law;

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

5. Not willfully or negligently breach the confidentiality between a practitioner and a client. A disclosure that is required or permitted by applicable law or beyond the control of the practitioner shall not be considered negligent or willful.

D. In regard to client records, persons regulated by the board shall:

1. Maintain timely, accurate, legible, and complete written or electronic records for each client. For a sex offender treatment provider practicing in an institutional setting, the recordkeeping shall follow the policies of the institution or public facility. For a sex offender treatment provider practicing in a noninstitutional setting, the record shall include:

a. The name of the client and other identifying information;

b. The presenting problem, purpose, or diagnosis;

c. Documentation of the fee arrangement;

d. The date and clinical summary of each service provided;

e. Any test results, including raw data, or other evaluative results obtained;

f. Notation and results of formal consults with other providers; and

g. Any releases by the client;

2. Maintain client records securely, inform all employees of the requirements of confidentiality, and dispose of written, electronic, and other records in such a manner as to ensure their confidentiality; and

3. Maintain client records for a minimum of five years or as otherwise required by law from the last date of service, with the following exceptions:

a. At minimum, records of a minor child shall be maintained for five years after attaining 18 years of age;

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

c. Records that have been transferred pursuant to § 54.1-2405 of the Code of Virginia pertaining to closure, sale, or change of location of one's practice.

E. In regard to dual relationships, persons regulated by the board shall:

1. Not engage in a dual relationship with a person under supervision that could impair professional judgment or increase the risk of exploitation or harm. Sex offender treatment providers 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 engage in sexual intimacies or a romantic relationship with a student, supervisee, resident, intern, therapy patient, client, or those included in collateral therapeutic services, such as a parent, spouse, or significant other of the client, while providing professional services. For at least five years after cessation or termination of professional services, not engage in sexual intimacies or a romantic relationship with a therapy patient, client, or those included in collateral therapeutic services. Consent to, initiation of, or participation in sexual behavior or romantic involvement with a sex offender treatment provider does not change the exploitative nature of the conduct nor lift the prohibition. Because sexual or romantic relationships are potentially exploitative, sex offender treatment providers shall bear the burden of demonstrating that there has been no exploitation, based on factors such as duration of therapy, amount of time since therapy, termination circumstances, client's personal history and mental status, and adverse impact on the client;

3. 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 sex offender treatment provider in the provider's professional capacity; and

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

F. 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.

18VAC125-30-110. Grounds for disciplinary action.

The board may revoke, suspend, restrict or refuse to issue a certificate, or reprimand or fine a practitioner in accord with the following:

1. Violation of provisions of this chapter, including the standards of practice set forth in 18VAC125-30-101.

2. Conviction of a felony or a misdemeanor involving moral turpitude (i.e., relating to lying, stealing, or cheating).

3. Misuse of drugs or alcohol which interferes with professional functioning Demonstrating an inability to practice as a sex offender treatment provider with reasonable skill and safety as a result of any mental, emotional, or physical condition or substance misuse.

4. Mental or physical illness which interferes with professional functioning Conducting one's practice in such a manner so as to make it a danger to the health and welfare of a client or to the public.

5. The denial, revocation, suspension, or restriction of a health or mental health registration, license, or certificate to practice in Virginia or in another state, or a United States possession, or territory of the United States or the surrender of any such registration, license, or certificate while an active investigation is pending or in lieu of disciplinary action.

6. Engaging in intentional or negligent conduct that causes or is likely to cause injury to a client.

7. Knowingly allowing persons under supervision to jeopardize client safety or provide care to clients outside of such person's scope of practice or area of responsibility.

8. Performing functions outside areas of competency.

9. Failing to comply with the continuing education requirements set forth in this chapter.

10. Performing an act or making statements that are likely to deceive, defraud, or harm the public.

11. Failing to cooperate with an employee of the Department of Health Professions in the conduct of an investigation.

12. Procuring, attempting to procure, or maintaining a certificate or registration by fraud or misrepresentation.

13. Violating or aiding and abetting another to violate any statute applicable to the practice of the profession, including § 32.1-127.1:03 of the Code of Virginia relating to health records.

14. Failing to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or abuse of aged and incapacitated adults as required in § 63.2-1606 of the Code of Virginia.

18VAC125-30-120. Reinstatement following disciplinary action. (Repealed.).

A. Any person whose certificate has been revoked by the board under the provisions of 18VAC125-30-110 may, three years subsequent to such board action, submit a new application to the board for certification to the board. Any person whose certificate has been denied renewal by the board under the provisions of 18VAC125-30-110 may, two years subsequent to such board action, submit a new application to the board for certification to the board.

B. The board in its discretion may, after a hearing, grant reinstatement.

C. The applicant for reinstatement, if approved, shall be certified upon payment of the appropriate fees applicable at the time of reinstatement.