October 21, 2019

PUBLIC COMMENT

TO THE VIRGINIA BOARD OF COUNSELING

Regarding

REGULATIONS GOVERNING THE REGISTRATION OF QUALIFIED MENTAL HEALTH PROFESSIONALS

18VAC115-80-10

            The Virginia Society for Clinical Social Work and the Northern Virginia members of the Greater Washington Society for Clinical Social Work appreciate the opportunity to make public comment concerning the final text of the Regulations governing the registration of qualified mental health professionals, 18vac115-80-10.

            We are concerned that the process of the development of these regulations appears to have created an anti-competitive impact on social workers and also raise antitrust and constitutional concerns. Outlined below is the rationale for our concerns.

 In the Agency Background Document of the Final Stage in the “Purpose” section (Amended 9/24/2019) it identifies several issues:

This collaborative effort that failed to include the VBSW resulted in regulations that establish the necessity for Licensed Bachelors Social Workers (LBSW) and Licensed Masters Social Workers (LMSW) to acquire registration as a Qualified Mental Health Provider from the Board of Counseling in order to be paid by DMAS for providing services that are within the scope of practice of their license.  The Competitive Impact Analysis failed to take this impact on LBSW’s and LMSW’s into consideration. 

The Department of Health Professions, Board of Health Professions in “Policies and Procedures for the Evaluation of the Need to Regulate Health Occupations and Professions” defined three levels of government regulation of a profession as:

Registration.  Registration requires only that an individual file his name, location, and possibly background information with the State.  No entry standard is typically established for a registration program.

Statutory Certification.   Certification by the state is also known as "title protection."  No scope of practice is reserved to a particular group, but only those individuals who meet certification standards (defined in terms of education and minimum competencies which can be measured) may title or call themselves by the protected title.

Licensure.  Licensure confers a monopoly upon a specific profession whose practice is well defined.  It is the most restrictive level of occupational regulation.  It generally involves the delineation in statute of a scope of practice which is reserved to a select group based upon their possession of unique, identifiable, minimal competencies for safe practice.  In this sense, state licensure typically endows a particular occupation or profession with a monopoly in a specified scope of practice.

 It seems contrary to public policy to require a person meeting the highest level of regulation- “Licensure” to acquire the lowest level of regulation- “Registration” in order to be paid by DMAS for providing services that are within the scope of practice of their license.

In Rebecca Haw Allensworth’s 2016 article “The New Antitrust Federalism,” in the Virginia Law Review, she notes:

“…Because the special risk of self-regulation, or inherent capture, is that “interstitial policies” will suppress competition to the advantage of industry, it follows that supervision should directly address the competitive effects of the reviewed regulation….”

Allensworth points out that when reviewing agency regulation, it should include an appraisal of the regulation’s impact on competition.  The Board of Counseling, the majority of whose members are counselors, created regulations that are anti-competitive to social workers.  It appears that multiple Departments of the Commonwealth collaborated in efforts that created anti-competitive impacts on social workers.

Both the Constitution of the United States and the Constitution of the Commonwealth of Virginia clearly protect the right of every person to engage in any lawful profession, trade, or occupation of his choice.  The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when

(i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and

(ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.

(See Code of Virginia, Title 54.1. Professions and Occupations Chapter 1. General Provisions

§ 54.1-100. Regulations of professions and occupations)

The requirement on LBSW’s and LMSW’s licensees to acquire registration as a Qualified Mental Health Provider from the Board of Counseling in order to be paid by DMAS for providing services that are within the scope of practice of their license appears to be an abridgement of their constitutional rights that is not for the protection or preservation of the health, safety, and welfare of the public.  Also, this requirement appears to be an abridgement that is greater than necessary to protect or preserve the public health safety, and welfare. These social workers are already licensed by the Board of Social Work which has as it’s mission

“To ensure the delivery of safe and competent patient care by licensing health professionals, enforcing standards of practice, and providing information to healthcare practitioners and the public.”  The public is already protected by the licensure process of the Board of Social Work.

The process involved in the development of the QMHP regulations raises, anti-competitive, antitrust, and constitutional concerns.  For the above enumerated reasons, we request that these regulations be revised so as to not create negative impacts on social workers and allow LBSW’s and LMSW’s to provide services within their scope of practice and be reimbursed by DMAS for providing those services.

                                                                        Submitted by,

                                                                        Joseph G. Lynch LCSW

                                                                        Legislative Vice President VSCSW

Registration of QMHPs was meant to ensure appropriate service delivery in Virginia and ensure appropriate review, training and supervision of QMHPs.  The regulations, as written, place unnecessary restrictions on services and do not improve service delivery quality.  There was not response to comments posted during the review process. Below are some examples of concerns.

1. Why is direct supervision of services by a LMHP required?  The LMHP does not perform the same role and responsibilities as a QMHP.  What evidence is there that a LMHP supervisor improves the supervision for QMHPs?  Agree, a LMHP is overseeing the clinical plans and to be available for consultation; however, QMHPs with several years of experience are better equipped to provide the supervision and insight for how to perform the work.  Were there discussions and observations of QMHP staff and inclusion of current QMHPs in the development?  I completely disagree with the Boards decision and question if having a Board responsible for licensing LMHPs created a bias in the creation of the regulations.
2. There has been no evidence provided indicating why a person with a Sociology degree cannot perform QMHP responsibilities as those with the other human service degrees.  What data and evidence was utilized in making this determination?  Additionally, there was a request for a study about the current QMHP workforce to determine the effects on service delivery by eliminating workforce with this degree.  No information has been provided.
3. The regulations impose unreasonably high hours of supervision requirements. 
4. For experience, QMHP type work is most often about years of experience, not measured in hours.  Indicating the years of full time experience required rather than hours required is more reasonable for QMHP work.   required to be a QMHP and also Requiring hours high and unreasonable hours

 The regulations as written impose impractical restrictions without evidence indicating the requirements provide better supervision and service delivery.

The requirement to have a licensed mental health professional provide supervision for a QMHP will put a stress on the system making the supervision virtually impossible to accomplish.  In our local area, we have very few LMHP types to provide supervision for professional licensure at this time.  Adding additional supervision of QMHP would strain the resources that are already scarce in the community.  A QMHP that has experience could provide this supervision for new QMHP without adding yet another responsibility to a LMHP to provide.  These new rules for services requiring LMHP type credentials is driving these professionals out of the field because the load is too great to handle with very little return.

Requiring LMHP supervision of QMHP's places an undue burden on an already taxed workforce with limited resources. Rural areas lack LMHP's in their areas and typically have to contract out at a high rate for support in these areas. These requirements deter individuals from seeking LMHP or QMHP positions because the salary does not equal the stringent requirements associated. 

Health professions such as nurses are not subjected to this level of supervision, scrutiny and oversight. It's difficult to justify these requirements for supervision and hours of work experience. 

Work experience from other states and other positions must be easier to manage. We cannot continue to turn away qualified applicants because of Virginia's process. Virginia is not attractive to applicants for these reasons. They are made to feel their experience is not valuable and that the State is not friendly to workforce. 

Our CSB highly disagrees with the requirements positioned for QMHP and has not experienced evidence of how these guidelines are beneficial to the people we serve, the employees who work for us or applicants considering employment with us.

CMCSB has the following concerns due to workforce issues:

Requiring LMHP supervision of QMHP staff places a huge burden on rural CSBs.  Also, disallowing supervision that occurred in other states to count toward QMHP registration.

This regulation is another example of a regulatory restriction on the available pool of applicants for our workforce.  Please reconsider any changes which further restricts the workforce for positions where it is already difficult to fill with out necessarily improving service delivery quality.  The following are additional examples of impractical burdens to workforce specific to these regulations.

Work experience from other states and other positions must be accepted.  This is critical statewide, but especially in localities that border other states and rely on them for workforce.

Please reconsider the number of hours for the supervision requirements or provided data to support why such a high number of hours is needed.

Please add Sociology degree to the list of acceptable degrees.  Not allowing this type of degree further restricts the workforce pool of qualified and quality applicants.

QMHPs with an established amount of experience should be able to provide supervision in addition/in place of an LMHP. 

The VACSB represents the 40 CSBs in matters of policy related to behavioral health and developmental disability matters. The VACSB does not support these regulations because we believe they will add to the already existing workforce challenges that CSBs struggle with statewide.

1. Requiring an LMHP to provide supervision to a QMHP will put an unnecessary burden on the role of the LMHP. CSBs struggle, especially in rural areas, to hire LMHPs and requiring them to provide additional supervision of QMHPs would cause LMHPs to leave the CSBs or leave the LMHP field all together. As well, because an LMHP has different roles and responsibilities than a QMHP, VACSB feels that having an LMHP provide the supervision is counterproductive to the purpose of supervision. A QMHP with a number of years of experience would be a more appropriate fit for providing supervision to a QMHP in need of supervised hours.

2. Changing the supervised hours to 1500 puts a tremendous burden on CSB staff to fulfill this requirement. As well, it is even more of a burden because a licensed staff person is required to provide these supervision hours.

3. Also contributing to the workforce issue is that supervision hours that have occurred in other states cannot be counted toward a QMHP registration. VACSB disagrees with this requirement.

4. The VACSB supports having a Sociology degree on the list of human services degrees that qualify an individual to become a QMHP.