Jaime Hoyle

Acting Executive Director

Virginia Board of Counseling

Department of Health Professions

9960 Mayland Drive, Suite 300

Henrico, Virginia 23233

RE: NOTICE OF INTENDED REGULATORY ACTION—Practice of Professional Counseling

Dear Ms. Hoyle:

On behalf of the Virginia Art Therapy Association (VATA), I am writing to oppose the proposed action by the Board of Counseling to proceed with rulemaking to revise current regulations (18VAC115-20-10 et seq.) governing the practice of professional counseling.  As described in the Board’s Notice of Intended Regulatory Action (NOIRA), the rulemaking is intended to replace the Board’s existing academic degree requirement for licensure as a professional counselor with a more restrictive requirement that limits licensure only to applicants holding graduate degrees from a clinically-focused counselor preparation program accredited by the Commission on Accreditation of Counseling and Related Education Programs (CACREP) or an approved CACREP-affiliate accrediting organization.

As proposed, this rulemaking would reverse the Board’s long established tradition of encouraging diversity in mental health counselor education and practice.  It would extend monopoly control over future clinical counseling education and practice in Virginia to an external accrediting body.  It will deny many mental health professionals with comparable clinical training and competence access to licensure and market participation.  And it will reduce future numbers of licensed counselors needed to address Virginia’s current and growing shortage of qualified mental health professionals.

As the Board is aware, a significant number of art therapists have gained licensure in Virginia as professional counselors and, to our knowledge, no licensed art therapist has ever had an action brought by the Board for improper practice or unethical conduct.  Art therapists have dual academic training in both the theories and techniques of counseling and psychotherapy and the theory, methods and clinical practice of art therapy.  The Board has long recognized this training as meeting or exceeding the academic and experience requirements for licensure.  Revising current rules to qualify only graduates of CACREP-accredited programs would exclude many highly qualified professionals from graining licensure without any offsetting improvement in either the quality or variety of mental health services available to residents of Virginia.

VATA is also concerned that the proposed rulemaking may conflict with the standards enunciated by the Supreme Court in its February 25, 2015 ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  In affirming a Fourth Circuit decision, the Court ruled that state licensure boards that consists primarily of active participants in a profession regulated by the board can be held liable under federal law for anti-competitive and unfair methods of competition when they take actions, including issuing or revising regulations, that seek to exclude entire groups of potential competitors from licensure or participation in the market.  Such actions are only permissible, the Court explained, where a state has “a clearly articulated and affirmatively expressed state policy” to restrict such competition and where a state exerts “active supervision” over the work of the board to prevent market participants from confusing their own interests, or their profession’s interests, with state policy goals.  

The Board’s explanation of the need for the proposed rulemaking, in its 9-29-2014 NOIRA, noted that the current academic requirements for counseling licenses lacked clarity and have been confusing for some applicants, and also that the Board lacked the resources and expertise to examine applicant credentials to assess the quality and consistency of educational programs.  In our view, confusion and administrative convenience hardly meet the Court’s standards for extending Parker immunity to board actions that clearly limit access to licensure and restrict market participation.

Virginia faces a critical shortage of qualified mental health professionals to serve not only its large military and veteran population, but the diverse needs of growing numbers of children, adolescents, adults and seniors with serious physical, mental and emotional conditions and disabilities.  It makes no sense to restrict licensure to only a segment of the state’s counseling profession and exclude many equally qualified and clinically trained mental health professionals.  

As an alternative to pursuing rulemaking as currently proposed, VATA urges the Board to consider the approach, referenced in the 9-29-2014 NOIRA, of requiring applicants for licensure to hold graduate degrees from a CACREP-accredited program or comparable programs accredited by a recognized national accrediting body.  However, this approach will require that recognition of comparable accrediting bodies be made by the Department of Health Professionals, and not the Counseling Board, to assure compliance with the new Supreme Court standards.  The art therapy profession has recently gained approval to form an accreditation committee under the Commission on Accreditation of Allied Health Education Programs (CAAHEP) to provide accreditation for art therapy master’s degree programs beginning in 2016 with standards that will be comparable to CACREP and consistent with national accrediting standards of the Council of Higher Education Accreditation.  

The Virginia Art Therapy Association respectfully requests that the Board of Counseling continue Virginia’s tradition of supporting diversity in counseling practice and promoting more inclusive and accountable standards for counseling education and licensing. 

Thank you.

Melissa Mariner, MS, Resident in Counseling

President, Virginia Art Therapy Association

cc:  Elaine Yeatts