Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule and Other Identifying Information: The following rule sections are being copied and incorporated, without material change, from chapter 246-810 WAC, Registered counselors, into chapter 246-809 WAC, Licensed mental health counselors, licensed social workers, and licensed marriage and family therapists; WAC 246-809-010 Definitions, 246-809-035 Record keeping and retention, 246-809-040 Reporting of suspected abuse or neglect of a child, dependent adult, or a developmentally disabled person, 246-809-049 Sexual misconduct, 246-809-060 Mandatory reporting, 246-809-061 Health care institutions, 246-809-062 Licensed counselor associations or societies, 246-809-063 Health care service contractors and disability insurance carriers, 246-809-064 Professional liability carriers, 246-809-065 Courts, and 246-809-066 State and federal agencies.

     Hearing Location(s): Department of Health, 310 Israel Road, Conference Room 131, Tumwater, WA 98501, on December 12, 2005, at 9:00 a.m.

     Date of Intended Adoption: December 12, 2005.

     Submit Written Comments to: Janice K. Boden, Program Manager, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, e-mail [web site] www3.doh.wa.gov/policyreview/, fax (360) 236-4909, by December 1, 2005.

     Assistance for Persons with Disabilities: Contact Janice K. Boden by December 1, 2005, TTY (800) 833-6388 or 711 or (360) 236-4912.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules adopt without material change rule sections from the registered counselor Washington Administrative Code (chapter 246-810 WAC). By adopting these rules, there will be consistent standards and definitions for registered and licensed counselors in the areas of record keeping and retention, reporting of abuse, sexual misconduct, mandatory reporting. This will result in greater consistency across the counseling professions and greater public protection.

     Reasons Supporting Proposal: These rules will establish practice standards and reporting requirements and will assist the Department of Health in protecting the public from counseling services that exploit or abuse clients and/or are below the standard of care.

     Statutory Authority for Adoption: RCW 18.225.040, 18.130.050.

     Statute Being Implemented: Chapters 18.225 and 18.130 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of Health, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Janice K. Boden, 310 Israel Road, Tumwater, WA 98501, (360) 236-4912.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule is exempt from the analytical requirements under RCW 34.05.328 (5)(b)(iii), because the rule adopts without material change other Washington state regulations that regulate the same subject matter and conduct as the adopting or incorporating rule.

     A cost-benefit analysis is not required under RCW 34.05.328. This rule is exempt from the analytical requirements under RCW 34.05.328 (5)(b)(iii), because the rule adopts without material change other Washington state regulations that regulate the same subject matter and conduct as the adopting or incorporating rule.

November 1, 2005

Mary C. Selecky

Secretary

OTS-8093.2

NEW SECTION
WAC 246-809-010   Definitions.   The following terms are defined within the meaning of this chapter.

     "Licensed counselor" means a licensed marriage and family therapist, licensed mental health counselor, licensed advanced social worker, or licensed independent clinical social worker regulated under chapter 18.225 RCW.

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     (a) Client name;

     (b) The fee arrangement and record of payments;

     (c) Dates counseling was received;

     (d) Disclosure form, signed by licensed counselor and client;

     (e) The presenting problem(s), purpose or diagnosis;

     (f) Notation and results of formal consults, including information obtained from other persons or agencies through a release of information;

     (g) Progress notes sufficient to support responsible clinical practice for the type of theoretical orientation/therapy the licensed counselor uses.

     (2) If a client requests that no treatment records be kept, and the licensed counselor agrees to the request, the request must be in writing and the counselor must retain only the following documentation:

     (a) Client name;

     (b) Fee arrangement and record of payments;

     (c) Dates counseling was received;

     (d) Disclosure form, signed by licensed counselor and client;

     (e) Written request that no records be kept.

     (3) The licensed counselor may not agree to the request if maintaining records is required by other state or federal law.

     (4) The licensed counselor must keep all records for a period of five years following the last visit. Within this five-year period, all records must be maintained safely, with properly limited access.

     (5) The licensed counselor must make provisions for retaining or transferring records in the event of going out of business, death or incapacitation. These provisions may be made in the practitioner's will, an office policy, or by ensuring another licensed counselor is available to review records with a client and recommend a course of action; or other appropriate means as determined by the licensed counselor.

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     The counselor shall report to the local law enforcement agency or to the department of social and health services at the first opportunity, but no longer than forty-eight hours after deciding there is reasonable cause to believe that the child or adult has suffered abuse or neglect.

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     (2) Licensed counselors shall not accept as patients or clients individuals with whom they have engaged in sexual contact or activity.

     (3) A licensed counselor shall not engage in sexually harassing or demeaning behavior with clients.

     (4) Sexual contact or activity with a client, or an individual who has been a client within the past two years, constitutes unprofessional conduct.

     (5) Licensed counselors shall never engage in sexual contact or activity with former clients, if the contact or activity involves the abuse of the licensed counselor-client relationship.

     (a) The department may consider the following factors in evaluating whether the licensed counselor-client relationship has been abusive:

     (i) The amount of time that has passed since therapy was terminated, where there is no contact of any kind between licensed counselor and client;

     (ii) The nature and duration of the therapy;

     (iii) The circumstances of cessation or termination of therapy;

     (iv) The client's personal history;

     (v) The client's current mental status, emotional dependence, and vulnerability;

     (vi) The likelihood of adverse impact on the client and others; and

     (vii) Any statements or actions made by the licensed counselor during the course of therapy suggesting or inviting the possibility of a post termination sexual or romantic relationship with the client.

     (b) If a licensed counselor engages in sexual contact or activity with a client more than two years after the last therapeutic session, the licensed counselor has had no contact with the client during the two-year period, and the sexual activity is not abusive of the licensed counselor-client relationship the department will not consider the relationship to be unprofessional conduct.

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     (2) Reports made in accordance with WAC 246-809-061, 246-809-062, 246-809-063, and 246-809-064 should contain the following information if known:

     (a) The name, address, and telephone number of the person making the report.

     (b) The name, address, and telephone number of the licensed counselor being reported.

     (c) The case number of any client or patient whose treatment is a subject of the report.

     (d) A brief description or summary of the facts which gave rise to the issuance of the report, including dates of occurrences.

     (e) If court action is involved, the name of the court in which the action is filed along with the date of filing and docket number.

     (f) Any further information which would aid in the evaluation of the report.

     (3) Mandatory reports are exempt from public inspection and copying to the extent permitted under chapter 42.17 RCW.

     (4) A person is immune from civil liability, whether direct or derivative, for providing information to the department under RCW 18.130.070.

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     (a) Any licensed counselor's services are terminated or are restricted based upon a determination that the licensed counselor has committed an act which may constitute unprofessional conduct; or

     (b) The licensed counselor may be unable to practice with reasonable skill or safety to clients by reason of a mental or physical condition.

     (2) The reports must be made in accordance with WAC 246-809-060.

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     (a) A licensed counselor has committed unprofessional conduct; or

     (b) A licensed counselor may not be able to practice counseling with reasonable skill and safety to clients as the result of any mental or physical condition.

     (2) The report required by this section shall be made without regard to whether the licensed counselor appeals, accepts, or acts upon the determination made by the association or society. Notification of appeal shall be included.

     (3) Reports must be made in accordance with WAC 246-809-060.

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     (2) Reports are to be made in accordance with WAC 246-809-060.

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     (2) The institution or organization shall also report the award, settlement, or payment of three or more claims during a twelve-month period as a result of the licensed counselor's alleged incompetence or negligence in the practice of counseling.

     (3) Reports must be made in accordance with WAC 246-809-060.

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     (a) A licensed counselor has been judged to have demonstrated his/her incompetency or negligence in the practice of counseling; or

     (b) Has otherwise committed unprofessional conduct; or

     (c) May not be able to practice with reasonable skill and safety by reason of any mental or physical condition.

     (2) These requirements do not supersede any federal or state law.

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