WSR 06-09-032

PERMANENT RULES

DEPARTMENT OF HEALTH


[ Filed April 12, 2006, 4:48 p.m. , effective May 13, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The rules adopt without material change, sections from chapter 246-810 WAC, Register counselor, and are placed in chapter 246-809 WAC for licensed counselors. This rule adoption will result in greater consistency across all counseling professions. This adoption will also establish consistent standards and definitions for licensed counselors for record keeping and retention, reporting of abuse, sexual misconduct, and mandatory reporting.

Statutory Authority for Adoption: RCW 18.225.040, 18.130.050.

Adopted under notice filed as WSR 05-22-128 on November 2, 2005.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 11, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 11, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 11, Amended 0, Repealed 0.

Date Adopted: April 13, 2006.

M. 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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NEW SECTION
WAC 246-809-035   Record keeping and retention.   (1) The licensed counselor providing professional services to a client or providing services billed to a third-party payor, shall document services, except as provided in subsection (2) of this section. The documentation includes:

(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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NEW SECTION
WAC 246-809-040   Reporting of suspected abuse or neglect of a child, dependent adult, or a developmentally disabled person.   As required by chapters 26.44 and 74.34 RCW, all licensed counselors must report abuse or neglect of a child, dependent adult, or developmentally disabled person if the counselor has reasonable cause to believe that an incident has occurred.

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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NEW SECTION
WAC 246-809-049   Sexual misconduct.   (1) A licensed counselor shall not engage in sexual contact or sexual activity with current clients.

(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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NEW SECTION
WAC 246-809-060   Mandatory reporting.   (1) All reports required by this chapter shall be submitted to the department as soon as possible, but no later than twenty days after a determination is made.

(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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NEW SECTION
WAC 246-809-061   Health care institutions.   (1) The chief administrator or executive officer or designee of any hospital, nursing home, chemical dependency treatment programs defined in chapter 70.96A RCW, drug treatment agency defined in chapter 69.54 RCW, and public and private mental health treatment agencies defined in RCW 71.05.020, and 71.24.025, shall report to the department when:

(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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NEW SECTION
WAC 246-809-062   Licensed counselor associations or societies.   (1) The president or chief executive officer of any licensed counselor association or society within this state shall report to the department when the association or society determines:

(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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NEW SECTION
WAC 246-809-063   Health care service contractors and disability insurance carriers.   (1) The executive officer of every health care service contractor and disability insurer, licensed under chapters 48.20, 48.21, 48.21A, and 48.44 RCW, operating in the state of Washington shall report to the department all final determinations that a licensed counselor has engaged in fraud in billing for services.

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

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NEW SECTION
WAC 246-809-064   Professional liability carriers.   (1) Every institution or organization providing professional liability insurance directly or indirectly to licensed counselors shall send a complete report to the department of any malpractice settlement, award, or payment in excess of twenty thousand dollars as a result of a claim or action for damages alleged to have been caused by an insured licensed counselor's incompetency or negligence in the practice of counseling.

(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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NEW SECTION
WAC 246-809-065   Courts.   The department requests the assistance of the clerk of trial courts within the state to report to the department all professional malpractice judgments and all convictions of licensed counselors, other than minor traffic violations.

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NEW SECTION
WAC 246-809-066   State and federal agencies.   (1) The department requests the assistance of executive officers of any state or federal program operating in the state of Washington, under which a licensed counselor is employed to provide client care services, to report to the department when:

(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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Washington State Code Reviser's Office