Title of Regulation: 18VAC125-20. Regulations Governing the Practice of Psychology (amending 18VAC125-20-10, 18VAC125-20-150, 18VAC125-20-160).

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

Public Hearing Information:

February 17, 2022 - noon - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Conference Center, Richmond, VA

Public Comment Deadline: March 4, 2022.

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 are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Psychology the authority to promulgate regulations to administer the regulatory system. The Psychological Interjurisdictional Compact is created by § 54.1-3606.2 of the Code of Virginia.

Purpose: The amendments to 18VAC125-20-150 and 18VAC125-20-160 are essential to ensure that psychologists who are clinically practicing on patients or clients in Virginia are accountable for the same standards of care as psychologists who hold a Virginia license. Otherwise, psychological services for Virginia citizens by persons practicing through the compact would potentially be harmful to their health, safety, or welfare.

Substance: Amendments add definitions consistent with the compact and revise the standards of practice and the grounds for disciplinary action to ensure that they cover persons practicing with an E.Passport or temporary authorization to practice in Virginia through the compact.

Issues: The advantage to the public is assurance that psychologists practicing in Virginia through the Psychology Interjurisdictional Compact will be held to the same standards of conduct as Virginia licensees; there are no disadvantages to the public. There are no specific advantages or disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Commonwealth adopted the Psychology Interjurisdictional Compact (Compact) through Chapter 1162 of the 2020 Acts of the Assembly (Chapter 1162).¹ The Compact is an interstate agreement designed to facilitate the practice of telepsychology² and the temporary in-person, face-to-face practice of psychology across state boundaries.³ Pursuant to Chapter 1162, an emergency regulation became effective on January 3, 2021, to help enable Virginia's participation in the Compact.⁴

The emergency regulation will expire on July 2, 2022. Also pursuant to the legislation, the Board of Psychology (Board) proposes to replace the emergency regulation with an identical permanent regulation.

Background.

Legislation, Commission, and Rules. Chapter 1162 defines "Psychology Interjurisdictional Compact Commission (Commission)" as "the national administration of which all Compact States are members." Chapter 1162 essentially consists of the standard statutory language provided by the Commission for states joining the Compact to adopt. The legislation defines "Rule" as "a written statement by the Psychology Interjurisdictional Compact Commission" that is of general applicability, implements, interprets, or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Commission and has the force and effect of statutory law in a Compact State (emphasis added).

As described in the Compact, an E.Passport allows a psychologist to practice telepsychology in other Compact states, and an interjurisdictional practice certificate (IPC) allows him or her to provide in-person psychological services for up to 30 days per calendar year in another Compact state. Note: psychologists licensed in Virginia can practice telepsychology in the Commonwealth without obtaining an E.Passport.⁵

In order to qualify and obtain an E.Passport to provide telepsychology services in other Compact states, the Commission's rules state that a psychologist must:⁶

• Have a current active psychology license based on a doctoral degree in at least one Compact state;
• Have no disciplinary action listed on any psychology license;
• Have a doctoral degree in psychology from an accredited program⁷;
• Have a score on the Examination for Professional Practice in Psychology that meets or exceeds the established Association of State and Provincial Psychology Boards' recommended passing score; and
• Pay the $400 E.Passport application fee.

In order to renew the E.Passport annually, the psychologist must demonstrate three hours of continuing education relevant to the use of technology in psychology and pay a $100 renewal fee.

The Commission's rules also state that in order to be granted an IPC, the psychologist must (with one exception) meet the same non-fee requirements needed for the E.Passport.⁸ The one exception is that there is no Examination for Professional Practice in Psychology score requirement. The application fee for IPC is $200. The annual renewal fee for the IPC is $50 and there is no continuing education requirement.

Participating States. The following states and the District of Columbia are current participants in the Compact: Alabama, Arizona, Colorado, Delaware, Georgia, Illinois, Kentucky, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Virginia, and West Virginia. Arkansas, Kansas, and Maine have enacted legislation to join the Compact and will begin participation in the coming months.

Numbers of Participating Psychologists.⁹ As of August 3, 2021, there were 3,452 psychologists who had an active E.Passport throughout the Compact states, which allows them to practice telepsychology in any Compact state, including Virginia.¹⁰ As of August 3, 2021, there were 110 psychologists who had an active IPC, allowing them to practice for up to 30 days per calendar year in person temporarily in any Compact state.¹¹

Regulation. The Board proposes to amend the Regulations Governing the Practice of Psychology to: 1) state that the standards of practice apply to persons practicing in Virginia with an E.Passport or an IPC as well as persons directly licensed by the Board, 2) state that the causes for which the Board may take disciplinary action against a licensee also apply to authorization to practice in Virginia with an E.Passport or an IPC, and 3) add definitions.

Estimated Benefits and Costs. The proposed amendments to the regulation are necessary for Virginia's participation in the Compact. The Commonwealth's participation in the Compact appears to be beneficial for Virginia consumers of psychological services in that it increases the number of qualified psychologists available to provide these services. This may moderately reduce the difficulty some Virginians may have finding mental health services.

The Commonwealth's participation in the Compact can also be potentially beneficial for Virginia psychologists who are interested in adding patients, because they could legally provide services to potential patients in any Compact state rather than just Virginia. According to a July 2020 report (the most recent available) from the Virginia Healthcare Workforce Data Center, two percent of Virginia's licensed clinical psychologists reported experiencing unemployment within the past year.¹² By greatly increasing the population of potential patients that can be legally served, participation in the Compact facilitated by the proposed amendments may help reduce unemployment for Virginia-licensed psychologists. On the other hand, psychologists licensed in other Compact states can provide psychological services to Virginians with the Commonwealth's participation in the Compact. This potential increase in competition in providing psychological services may limit any positive impact on unemployment.

Businesses and Other Entities Affected. The 4,130 clinical psychologists and 29 applied psychologists licensed in Virginia,¹³ employers of psychologists, and consumers of psychological services are all potentially affected. According to survey data from the July 2020 Virginia Healthcare Workforce Data Center report, the primary types of employers of clinical psychologists in the Commonwealth are distributed as follows: ¹⁴

Similar data is not available for applied psychologists.

Small Businesses¹⁵ Affected.

Types and Estimated Number of Small Businesses Affected. The proposed amendments, which facilitate participation in the Compact, affect small businesses that employ licensed psychologists. No data are available on the number of small businesses.

Costs and Other Effects. For those small businesses that employ psychologists, the proposed amendments, which enable Virginia's participation in the Compact, increase the potential supply of labor. With more potential qualified employees to choose from, these firms may be able to employ psychologists at lower cost.

Participation in the Compact also increases the potential number of clients that businesses that provide psychological services may serve. Conversely, participation in the Compact introduces potential competition from firms in other Compact states that provide psychological services. Due to these countervailing factors, some small businesses that provide psychological services may in net increase their number of clients, while others may encounter decreased net business. Most would not likely be substantively affected. If there are small firms that encounter reduced net demand for their psychological services due Virginia's Compact participation that is not outweighed by potential reduction in labor cost, these small firms would be determined to receive adverse impact¹⁶ from the proposed amendments.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities¹⁷ Affected.¹⁸ All Virginians, regardless of location within the Commonwealth, could potentially choose to receive psychological services from a psychologist licensed in another Compact state. Nevertheless, it may be more likely in practice that residents of localities near the border of neighboring states or the District of Columbia hear recommendations for psychologists licensed in the nearby jurisdiction but not in the Commonwealth. Similarly, Virginia-licensed psychologists who practice near the border may be more likely to be recommended to potential clients in neighboring states. All states bordering Virginia, as well as the District of Columbia, are participants in the Compact. Thus, localities on or near Virginia's borders with other states and the District of Columbia may be particularly affected. Likewise, Virginians living in medically underserved areas, which are predominately rural, may also benefit from improved access.¹⁹

The proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. As discussed earlier the proposed amendments enable the Commonwealth's participation in the Compact, which greatly increases the population of patients who may be legally served by Virginia-licensed psychologists, but also allows psychologists licensed in other Compact states to serve Virginia patients. The former may have a positive impact on employment for Virginia psychologists, while latter may have a negative impact. Information is not available to determine the net impact.

Effects on the Use and Value of Private Property. For those businesses that employ psychologists, the proposed amendments, which enable Virginia's participation in the Compact, increase the potential supply of labor. With more potential qualified employees to choose from, these firms may be able to find more productive or less costly people to hire. Also, participation in the Compact increases the potential number of clients that businesses that provide psychological services may serve. These two factors may moderately increase the value of some businesses. On the other hand, participation in the Compact introduces potential competition from firms in other Compact states that provide psychological services, which may have a moderate negative impact on the value of some firms.

The proposed amendments do not appear to affect real estate development costs.

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¹See https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1162

²Chapter 1162 defines telepsychology as "the provision of psychological services using telecommunication technologies."

³See https://psypact.site-ym.com/page/About

⁴See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9019

⁵See https://www.dhp.virginia.gov/psychology/guidelines/125-7.docx

⁶Technically to provide telepsychology services in other Compact states the psychologist must also obtain "Authority to Practice Interjurisdictional Telepsychology" by: 1) possessing an active E.Passport, 2) holding a full, unrestricted license in a Compact state, 3) providing attestations in regard to areas of intended practice, conformity with standards of practice, competence in telepsychology technology; criminal background; and knowledge and adherence to legal requirements in the home and receiving states, and 4) paying a one-time $40 fee.

⁷See the following website for specifics on what qualifies as an accredited program: https://psypact.site-ym.com/page/PracticeUnderPSYPACT

⁸Technically to provide in-person psychological services for up to 30 days per calendar year in another Compact state the psychologist must also obtain "Temporary Authority to Practice" by: 1) possessing an active IPC, 2) holding a full, unrestricted license in a Compact state, 3) providing attestations in regard to areas of intended practice and work experience, and 4) paying a one-time $40 fee.

⁹Data source: Department of Health Professions

¹⁰Technically "Authority to Practice Interjurisdictional Telepsychology" is also needed. See footnote 6 for more detail.

¹¹Technically, "Temporary Authority to Practice" is also needed. See footnote 8 for more detail.

¹²See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/behsci/0810CP2020.pdf

¹³Data source: https://www.dhp.virginia.gov/about/stats/2021Q3/04CurrentLicenseCountQ3FY2021.pdf

¹⁴See footnote 12.

¹⁵Pursuant 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."

¹⁶Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

¹⁷"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.

¹⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹⁹See https://www.vdh.virginia.gov/health-equity/shortage-designations-and-maps/

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:

Chapter 1162 of the 2020 Acts of Assembly mandates membership of the Commonwealth of Virginia in the Psychology Interjurisdictional Compact and requires the Board of Psychology to promulgate regulations to implement the provisions. The proposed amendments add definitions consistent with the compact and revise the standards of practice and the grounds for disciplinary action to cover persons practicing with an E.Passport or temporary authorization to practice in Virginia through the compact.

18VAC125-20-10. Definitions.

The following words and terms, in addition to the words and terms defined in § §§ 54.1-3600 and 54.1-3606.2 of the Code of Virginia, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"APA" means the American Psychological Association.

"APPIC" means the Association of Psychology Postdoctoral and Internship Centers.

"ASPPB" means the Association of State and Provincial Psychology Boards.

"Board" means the Virginia Board of Psychology.

"CAEP" means Council for the Accreditation of Educator Preparation.

"Compact" means the Psychology Interjurisdictional Compact.

"Conversion therapy" means any practice or treatment as defined in § 54.1-2409.5 A of the Code of Virginia.

"CPA" means Canadian Psychological Association.

"Demonstrable areas of competence" means those therapeutic and assessment methods and techniques for the populations served and for which one can document adequate graduate training, workshops, or appropriate supervised experience.

"E.Passport" means a certificate issued by ASPPB that authorizes telepsychology services in a compact state.

"Face-to-face" means in person.

"Intern" means an individual who is enrolled in a professional psychology program internship.

"Internship" means an ongoing, supervised, and organized practical experience obtained in an integrated training program identified as a psychology internship. Other supervised experience or on-the-job training does not constitute an internship.

"IPC" means an interjurisdictional practice certificate issued by ASPPB that grants temporary authority to practice in a compact state.

"NASP" means the National Association of School Psychologists.

"Practicum" means the pre-internship clinical experience that is part of a graduate educational program.

"Practicum student" means an individual who is enrolled in a professional psychology program and is receiving pre-internship training and seeing clients.

"Professional psychology program" means an integrated program of doctoral study in clinical or counseling psychology or a master's degree or higher program in school psychology designed to train professional psychologists to deliver services in psychology.

"Regional accrediting agency" means one of the six regional accrediting agencies recognized by the U.S. Secretary of Education established to accredit senior institutions of higher education.

"Residency" means a post-internship, post-terminal degree, supervised experience approved by the board.

"Resident" means an individual who has received a doctoral degree in a clinical or counseling psychology program or a master's degree or higher in school psychology and is completing a board-approved residency.

"School psychologist-limited" means a person licensed pursuant to § 54.1-3606 of the Code of Virginia to provide school psychology services solely in public school divisions.

"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 supervised.

"Supervisor" means an individual who assumes responsibility for the education and training activities of a person under supervision and for the care of such person's clients and who provides supervision consistent with the training and experience of both the supervisor and the person under supervision and with the type of services being provided.

18VAC125-20-150. Standards of practice.

A. The protection of the public health, safety, and welfare and the best interest of the public shall be the primary guide in determining the appropriate professional conduct of all persons whose activities are regulated by the board. Psychologists respect the rights, dignity, and worth of all people and are mindful of individual differences. Regardless of the delivery method, whether face-to-face or by use of technology, these standards shall apply to the practice of psychology.

B. Persons regulated by the board and persons practicing in Virginia with an E.Passport or an IPC shall:

1. Provide and supervise only those services and use only those techniques for which they are qualified by education, training, and appropriate experience;

2. Delegate to persons under their supervision only those responsibilities such persons can be expected to perform competently by education, training, and experience;

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

4. 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;

5. 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 and based on the interest of patients or clients;

6. Refrain from undertaking any activity in which their personal problems are likely to lead to inadequate or harmful services;

7. 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;

8. Not engage in, direct, or facilitate torture, which is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, or in any other cruel, inhuman, or degrading behavior that causes harm;

9. 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;

10. 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;

11. 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;

d. Participating in bartering only if it is not clinically contraindicated and is not exploitative; and

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

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

13. Construct, maintain, administer, interpret, and report testing and diagnostic services in a manner and for purposes that are current and appropriate;

14. 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;

15. Report to the board known or suspected violations of the laws and regulations governing the practice of psychology;

16. Accurately inform a client or a client's legally authorized representative of the client's diagnoses, prognosis, and intended treatment or plan of care. A psychologist shall present information about the risks and benefits of the recommended treatments in understandable terms and encourage participation in the decisions regarding the patient's care. When obtaining informed consent treatment for which generally recognized techniques and procedures have not been established, a psychologist shall inform clients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation;

17. Clearly document at the outset of service delivery what party the psychologist considers to be the client and what, if any, responsibilities the psychologist has to all related parties;

18. Determine whether a client is receiving services from another mental health service provider, and if so, document efforts to coordinate care;

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

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

1. 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. Psychologists shall inform clients of legal limits to confidentiality;

2. 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 clinical information in teaching, writing, or public presentations; and

3. 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 psychologist practicing in an institutional setting, the recordkeeping shall follow the policies of the institution or public facility. For a psychologist 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. Psychologists 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 psychologist does not change the exploitative nature of the conduct nor lift the prohibition. Because sexual or romantic relationships are potentially exploitative, psychologists 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 psychologist in his 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.

18VAC125-20-160. Grounds for disciplinary action or denial of licensure.

The board may take disciplinary action or deny a license or registration or authorization to practice in Virginia with an E.Passport or an IPC for any of the following causes:

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

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

3. Conducting practice in such a manner so as to make it a danger to the health and welfare of clients or to the public;

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

5. Performing functions outside areas of competency;

6. Demonstrating an inability to practice psychology with reasonable skill and safety to clients by reason of illness or substance misuse, or as a result of any mental, emotional, or physical condition;

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

8. 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;

9. 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;

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

11. Having a disciplinary action taken against a health or mental health license, certification, registration, or application in Virginia or other jurisdiction or surrendering such a license, certification, or registration in lieu of disciplinary action;

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

13. 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; or

14. Violating any provisions of this chapter, including practice standards set forth in 18VAC125-20-150.