DEPARTMENT OF HEALTH

[Filed February 18, 2021, 10:30 a.m.]

Preproposal statement of inquiry was filed as WSR 20-16-003.

Title of Rule and Other Identifying Information: WAC 246-930-010, 246-930-020, 246-930-030, 246-930-065, 246-930-075, 246-930-200, 246-930-220, 246-930-300, 246-930-301, 246-930-350, 246-930-431, and 246-930-990, regarding sex offender treatment providers (SOTP). The department of health (department) is proposing amendments updating the rules to align with recent legislation. Additionally, the department is proposing creation of a new WAC as well as the repeal of WAC 246-930-220 and 246-930-300.

Hearing Location(s): On April 7, 2021, at 9:30 a.m. In response to the coronavirus disease 2019 (COVID-19), the department of health will not provide a physical location for this hearing to promote social distancing and the safety of the citizens of Washington state. A virtual public hearing, without a physical meeting space, will be held instead. Please register at https://attendee.gotowebinar.com/register/4919914725121992207. After registering, you will receive a confirmation email containing information about joining the webinar. Participants can use their telephone or computer mic and speakers (VoIP), United States +1 (562) 247-8422.

Date of Intended Adoption: April 14, 2021.

Submit Written Comments to: Brandon Williams, Office of Health Professions, P.O. Box 47850, Olympia, WA 98504-7850, email https://fortress.wa.gov/doh/policyreview, fax 360-236-2901, brandon.williams@doh.wa.gov, by April 7, 2021.

Assistance for Persons with Disabilities: Contact Brandon Williams, phone 360-236-4611, fax 360-236-2901, TTY 711, email brandon.williams@doh.wa.gov, by March 31, 2021.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department has existing rules that regulate practitioners credentialed as SOTP and sex offender treatment provider affiliates. ESSB 6641 (chapter 266, Laws of 2020) made significant statutory changes to credential qualifications and ESHB 1551 (chapter 76, Laws of 2020) repealed statutory authority requiring AIDS training requirements for practitioners. The department is proposing rule amendments to align chapter 246-930 WAC with these statutory changes and to make other organizational changes.

To achieve the goals of ESSB 6641 to promote a healthy workforce and increase geographic distribution of SOTPs, the department is proposing the following amendments: (1) Expand the number of individuals that may be qualified to serve as supervisors for affiliates and allow individuals not credentialed by the department or other jurisdiction to serve as qualified supervisors; (2) permit practitioners without a qualifying underlying credential to continue practicing in the field, provided their underlying credential remains current and in good standing; (3) clarify that employees of state-run facilities and state-run treatment programs do not have to be credentialed by the department; (4) expand an alternate training path, which considers experience in state-run facilities and state-run treatment programs; (5) allow out-of-state applicants to receive consideration for certification based on having held a credential in another state or having work experience in a state-run facility or state-run treatment program, substantiated by an attestation; allow employees of a state-run facility or state-run treatment program to use work experience to qualify for certification, instead of becoming certified as an affiliate; and implement a fee waiver system for SOTPs contracted by the department of social and health services to provide treatment to persons on conditional release.

The proposed amendments also repeal AIDS education training requirements in support of the repeal of statutory training requirements by ESHB 1551.

The department is also proposing additional amendments, such as updating terminology and removing redundant language, as well as other appropriate organizational changes.

Reasons Supporting Proposal: Proposed amendments to chapter 246-930 WAC will: (1) Implement and support the intent of ESSB 6641 by promoting increased geographic distribution of SOTPs and reducing barriers to becoming credentialed; (2) implement ESHB 1551 by removing current requirements for AIDS trainings; and (3) make organizational changes to provide increased clarity for licensees and the public.

Statutory Authority for Adoption: RCW 18.155.040.

Statute Being Implemented: ESSB 6641 (chapter 266, Laws of 2020); and ESHB 1551 (chapter 76, Laws of 2020).

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 Enforcement: Brandon Williams, 111 Israel Road S.E., Tumwater, WA 98504, 360-236-4611.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(iii) exempts rules that adopt or incorporate by reference without material change federal statutes or regulations, Washington state law, the rules of other Washington state agencies, or national consensus codes that generally establish industry standards.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. These rule amendments do not impact businesses; these rules pertain only to providers.

for Umair A. Shah, MD, MPH

AMENDATORY SECTION(Amending WSR 07-09-092, filed 4/18/07, effective 5/19/07)

WAC 246-930-010General definitions.

((In these rules, the following terms shall have the definition described below, unless another definition is stated:))The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:

(1) "Certified affiliate sex offender treatment provider" or "affiliate" means an individual who ((has satisfactorily passed the examination, met the education requirements, and has been issued a certificate to evaluate and treat sex offenders under chapter 18.155 RCW, and under the supervision of a certified sex offender treatment provider in accordance with the supervision requirements set forth in WAC 246-930-075))is a licensed psychologist, licensed marriage and family therapist, licensed social worker, licensed mental health counselor, or psychiatrist as defined in RCW 71.05.020, who is certified as an affiliate to examine and treat sex offenders pursuant to chapters 9.94A and 13.40 RCW and sexually violent predators under chapter 71.09 RCW under the supervision of a qualified supervisor.

(2) "Certified sex offender treatment provider" or "provider" means an individual who ((has satisfactorily passed the examination, met the education and experience requirements, and has been issued a certificate by the department to evaluate and treat sex offenders under chapter 18.155))is a licensed psychologist, licensed marriage and family therapist, licensed social worker, licensed mental health counselor, or psychiatrist as defined in RCW 71.05.020, who is certified as an affiliate to examine and treat sex offenders pursuant to chapters 9.94A and 13.40 RCW and sexually violent predators under chapter 71.09 RCW.

(3) "Client" means a person who has been investigated by law enforcement or child protective services for committing or allegedly committing a sex offense, or who has been convicted of a sex offense.

(4) (("Committee" means the sex offender treatment providers advisory committee.

(5))) "Community protection contract" means the document specifying the treatment rules and requirements the client has agreed to follow in order to maximize community safety.

(((6) "Co-therapy hours" means the actual number of hours the applicant spent facilitating a group session.

(7)))(5) "Credential" or its derivative means the process of licensing, registration, certification or the equivalent through which a person is legally recognized by a state agency as lawfully authorized to practice a health profession.

(((8)))(6) "Department" means the department of health.

(((9)))(7) "Evaluation" means a comprehensive assessment or examination of a client conducted by a provider ((or)), affiliate, or employee of a state-run facility or state-run treatment program that examines the client's offending behavior. Evaluation results ((must be))are detailed in a written report. Examples of evaluations include forensic, SSOSA, and SSODA evaluations. ((Standards for assessment and evaluation reports, and evaluation experience credit are located in WAC 246-930-320 and 246-930-340.

(10)))(8) "Parties" means the defendant, the prosecuting attorney, and the supervising officer.

(((11)))(9) "Qualified supervisor" means an individual recognized by the department to provide oversight to a certified affiliate sex offender treatment provider in accordance with WAC 246-930-075, based on the individual's certification, training, and life experience in the field, as set forth in RCW 18.155.020 and WAC 246-930-067.

(10) "Secretary" means the secretary of the department of health((, or designee)).

(((12)))(11) "SSODA" means special sex offender disposition alternative, authorized under RCW 13.40.160.

(((13)))(12) "SSOSA" means special sex offender sentencing alternative, authorized under RCW 9.94A.670.

(((14)))(13) "Supervising officer" is the designated representative of the agency having oversight responsibility for a client sentenced under SSOSA or SSODA, for example, a community corrections officer or a juvenile probation officer.

(((15)))(14) "Treatment" means face-to-face individual, group, or family therapy, provided by an affiliate or provider, to a client. Treatment is focused on the client's offending behavior.

(((16)))(15) "Treatment plan" means a written statement of intended care and services as documented in the evaluation that details how the client's treatment needs will be met while protecting the community during the course of treatment.

AMENDATORY SECTION(Amending WSR 05-12-014 [21-02-002], filed 5/20/05 [12/23/20], effective 6/20/05 [1/23/21])

WAC 246-930-020Underlying credential ((as a health professional)) required.

(1) Under RCW 18.155.020(((1)))(2), only ((credentialed health professionals))a person who is a licensed psychologist, licensed marriage and family therapist, licensed social worker, licensed mental health counselor, or psychiatrist as defined in RCW 71.05.020 may be certified as ((providers))a provider.

(2) Under RCW 18.155.030(6), a person certified by the department as a provider prior to June 11, 2020, is considered to have met the requirement of holding an underlying health license or credential, provided the underlying license or credential remains active and in good standing.

(3) A person who is ((credentialed as a health professional))a licensed psychologist, licensed marriage and family therapist, licensed social worker, licensed mental health counselor, or psychiatrist in a state or jurisdiction other than Washington may satisfy this requirement by submitting the following:

(a) A copy of the current ((nonexpired)) credential issued by the credentialing state meeting the requirements of RCW 18.155.080(3);

(b) A copy of the statute, administrative regulation, or other official document of the issuing state which sets forth the minimum requirements for the credential;

(i) That the credential is in good standing;

(ii) That there is no disciplinary action currently pending; and

(iii) Listing any formal discipline actions taken by the issuing authority with regard to the credential;

(d) A statement signed by the applicant, on a form provided by the department, submitting to the jurisdiction of the Washington state courts for the purpose of any litigation involving his or her practice as a sex offender treatment provider; and

(e) A statement signed by the applicant on a form provided by the department, that the applicant does not intend to practice the health profession for which he or she is credentialed by another state within the state of Washington without first obtaining an appropriate credential to do so from the state of Washington, except as may be authorized by Washington state law((; and

(f) Applicants must complete four clock hours of AIDS education as required in chapter 246-12 WAC, Part 8)).

(((3)))(4) A person who has a comparable certification or has met work experience requirements in another state or jurisdiction under RCW 18.155.080(3) is considered for certification.

(5) Underlying registration, certification, or licensure shall be maintained in good standing. If an underlying registration, certification, or licensure is not renewed or is revoked, certification as a sex offender treatment provider or affiliate sex offender treatment provider is revoked. If an underlying registration, certificate or license is suspended, the sex offender treatment provider certification is suspended. If there is a stay of the suspension of an underlying registration, certificate or license the sex offender treatment provider program must independently evaluate the reasonableness of a stay for the sex offender treatment provider.

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION(Amending WSR 07-09-092, filed 4/18/07, effective 5/19/07)

WAC 246-930-030Education required prior to certification as an affiliate or a provider.

(((1))) An applicant shall have completed((:

(a) A master's or doctoral degree in social work, psychology, counseling, or educational psychology from a regionally accredited institution of higher education; or

(b) A medical doctor or doctor of osteopathy degree if the individual is a board certified/eligible psychiatrist; or

(c) A master's or doctoral degree in an equivalent field from a regionally accredited institution of higher education and documentation of thirty graduate semester hours or forty-five graduate quarter hours in approved subject content listed in subsection (2) of this section.

(2) Approved subject content includes at least five graduate semester hours or seven graduate quarter hours in counseling, psychotherapy, and personality theory, and five graduate semester hours or seven graduate quarter hours in at least two of the following content areas:

(a) Counseling and psychotherapy;

(b) Personality theory;

(d) Psychopathology/personality disorders;

(e) Assessment/tests and measurement;

(f) Group therapy/family therapy;

(g) Human growth and development/sexuality; and

(h) Corrections/criminal justice.

(3) Transcripts of all education required under this section must be submitted to the department from the institution where the credits were earned))all educational requirements necessary for the applicant's primary certification as a licensed psychologist, licensed marriage and family therapist, licensed social worker, licensed mental health counselor, psychiatrist as defined in RCW 71.05.020, or other health professional under WAC 246-930-020.

AMENDATORY SECTION(Amending WSR 07-09-092, filed 4/18/07, effective 5/19/07)

WAC 246-930-065Requirements for certification.

(1) An applicant for certification must:

(a) Be credentialed ((as a health professional)) as provided in WAC 246-930-020. The credential must be in good standing without pending disciplinary action;

(b) ((Successfully complete an education program as required in WAC 246-930-030;

(c))) Successfully complete an examination;

(((d)))(c) Be able to practice with reasonable skill and safety; and

(((e)))(d) Have no sex offense convictions, as defined in RCW 9.94A.030 or convictions in any other jurisdiction of an offense that under Washington law would be classified as a sex offense as defined in RCW 9.94A.030.

(2) An applicant for certification as a provider must also complete treatment and evaluation experience required in WAC 246-930-040.

WAC 246-930-067Requirements for qualified supervisors.

(1) A qualified supervisor must be:

(a) Credentialed as a sex offender treatment provider under this chapter. The credential must be in good standing without pending disciplinary action; or

(b) A person who meets the requirements for certification as a sex offender treatment provider; or

(c) A person who meets a lifetime experience threshold under RCW 18.155.020 and who continues to maintain professional involvement in the field.

(2) A qualified supervisor not credentialed by the department as a sex offender treatment provider must sign and submit an attestation form provided by the department.

AMENDATORY SECTION(Amending WSR 07-09-092, filed 4/18/07, effective 5/19/07)

WAC 246-930-075Supervision of affiliates.

Supervision of affiliates by a qualified supervisor is considerably different than consultation with other professionals. Consultation is solely advisory; consultants do not assume responsibility for those individuals with whom they consult. Supervision of affiliates requires that the ((provider))qualified supervisor take full ethical and legal responsibility for the quality of work of the affiliate. A ((provider))qualified supervisor may not supervise more than two affiliates.

(1) Supervision includes, but is not limited to:

(a) Discussion of services provided by the affiliate;

(b) Case selection, treatment plan, and review of each case or work unit of the affiliate;

(d) Review of Washington laws, rules, and criminal justice procedures relevant to the work being conducted;

(e) Discussion of the standards of practice for providers and affiliates as adopted by the department and the ethical issues involved in providing professional services for sex offenders;

(f) Discussion regarding coordination of work with other professionals and parties;

(g) Discussion of relevant professional literature and research; and

(h) Periodic review of the contract.

(2) The ((provider))qualified supervisor shall:

(a) Avoid presenting himself or herself as having qualifications in areas that he or she does not have qualifications.

(b) Provide sufficient training and supervision to the affiliate to assure the health and safety of the client and community.

(d) Assure that the affiliate being supervised has sufficient and appropriate education, background, and preparation for the work he or she will be doing.

(3) The ((provider))qualified supervisor and affiliate must enter into a formal written contract that defines the parameters of the professional relationship. The contract must be submitted to the department for approval and shall include:

(a) Supervised areas of professional activity;

(b) Amount of supervision time and the frequency of supervisory meetings. This information may be presented as a ratio of supervisory time to clinical work conducted by the affiliate;

(d) Nature of the supervisory relationship and the anticipated process of supervision;

(e) Selection and review of clinical cases;

(f) Methodology for recordkeeping, evaluation of the affiliate, and feedback; and

(g) How the affiliate will be represented to the public and the parties.

(4) Supervision of affiliates shall involve regular, direct, face-to-face supervision.

(a) Depending on the affiliate's skill and experience levels, the ((provider's))qualified supervisor's supervision shall include direct observation of the affiliate by:

(i) Sitting in sessions;

(ii) Audio tape recording;

(iii) Videotaping, etc.

(b) In some cases, such as geographic location or disability, more flexible supervision arrangements may be allowed. The ((provider))qualified supervisor must submit requests for more flexible supervision arrangements to the department for approval.

(5) The qualified supervisor must assure that the affiliate is prepared to conduct professional work, and must assure adequate supervision of the affiliate. The ((provider))qualified supervisor shall meet face-to-face with the affiliate a minimum of one hour for every ten hours of supervised professional work. Supervision meetings shall regularly occur at least every other week.

(6) A ((provider))qualified supervisor may not undertake a contract that exceeds the ((provider's))qualified supervisor's ability to comply with supervision standards.

(7) The department recognizes the needs of certain locales, particularly rural areas, and may allow a variance from the standards in subsections (3)(b) and (5) of this section. The supervisor must submit any variance request to the department for approval with the supervision contract. Variances will be granted or denied in writing within thirty days.

(8) The nature of the ((affiliate-provider))affiliate-qualified supervisor relationship must be communicated to the public, other professionals, and all clients served.

(9) An affiliate may represent himself or herself as an affiliate only when performing clinical work supervised by the contracted ((provider))qualified supervisor.

(10) The ((provider))qualified supervisor must cosign all written reports and correspondence prepared by the affiliate. The written reports and correspondence must include a statement that indicates the work has been conducted by the affiliate acting under the ((provider's))qualified supervisor's supervision.

(11) Both the ((provider))qualified supervisor and affiliate shall maintain full documentation of the work done and supervision provided. The department may audit the ((provider's))qualified supervisor's and affiliate's records to assure compliance with laws and rules.

(12) All work conducted by the affiliate is the responsibility of the ((provider))qualified supervisor. The ((provider))qualified supervisor shall have authority to direct the practice of the affiliate.

(13) It is the ((provider's))qualified supervisor's responsibility to correct problems or end the supervision contract if the affiliate's work does not protect the interests of the clients and community. If the ((provider))qualified supervisor ends the contract, he or she must notify the department in writing within thirty days of ending the contract. A ((provider))qualified supervisor may only change or adjust a supervision contract after receiving written approval from the department.

(14) Supervision is a power relationship. The ((provider))qualified supervisor must not use his or her position to take advantage of the affiliate. This subsection is not intended to prevent a provider from seeking reasonable compensation for supervisory services.

(15) A ((provider))qualified supervisor must provide accurate and objective letters of reference and documentation of the affiliate's work at the affiliate's request.

(16) The ((provider))qualified supervisor shall ensure that the affiliate has completed at least one thousand hours of supervised evaluation and treatment experience before the affiliate is authorized to evaluate and treat Level III sex offenders. The ((provider))qualified supervisor will submit to the department documentation that the affiliate has completed a minimum of one thousand hours within thirty days of completion of the experience.

AMENDATORY SECTION(Amending WSR 05-12-014, filed 5/20/05, effective 6/20/05)

WAC 246-930-200Application and examination.

(1) In order to be certified to practice under this chapter as a provider or affiliate provider in the state of Washington all applicants shall pass an examination approved by the secretary.

(2) In order to qualify to sit for the examination, an applicant shall ((meet all education, experience, and training requirements and)) hold a current ((health professional))qualifying credential ((to qualify to sit for the examination))and meet education, experience, and training requirements as described in WAC 246-930-030, 246-930-040, and 246-930-070.

(3) Examinations shall be given at a time and place determined by the secretary.

(4) An applicant shall submit to the department a completed application with the appropriate fee for certification ((shall be received in the office of the department,)) no later than sixty days prior to the examination date. ((All))Any supporting documentation ((shall))must be ((received no later than twenty days prior to the scheduled examination date))sent directly to the department by the primary or official source as set forth in WAC 246-12-020.

(5) Any applicant who fails to follow written or oral instructions relative to the conduct of the examination, is observed talking or attempting to give or receive information, or attempting to remove materials from the examination or using or attempting to use unauthorized materials during any portion of the examination shall be terminated from the examination and not permitted to complete it.

(6) The department shall approve the method of grading each examination, and apply the method uniformly to all applicants taking the examination.

(7) Applicants will be notified in writing of their examination scores.

(8) Applicant's examination scores are not disclosed to anyone other than the applicant, unless requested to do so in writing by the applicant.

(9) An applicant who fails to make the required grade in the first examination may take up to two additional examinations upon the payment of a reexamination fee for each subsequent examination. After failure of three examinations, the secretary may require remedial education before admission to future examinations.

AMENDATORY SECTION(Amending WSR 05-12-014, filed 5/20/05, effective 6/20/05)

WAC 246-930-301Purpose—Professional standards and ethics.

(1) Sex offender treatment providers are also credentialed health professionals, and are subject to the standards of practice of their primary field of practice. However, standards of practice vary from profession to profession, and sex offender evaluation and treatment represents significant differences in practice from general mental health interventions.

(2) The standards set forth in WAC 246-930-301 through 246-930-340 apply to all sex offender treatment providers. ((Failure to comply with these standards may constitute unprofessional conduct pursuant to RCW 18.130.180(7).))

(3) Standards of practice specific to this area of specialization are necessary due to the unique characteristics of this area of practice, the degree of control that a provider exercises over the lives of clients, and the community protection issues inherent in this work.

(4) The mandatory reporting standards set forth in chapter 246-16 WAC apply to all sex offender treatment providers.

AMENDATORY SECTION(Amending WSR 07-09-092, filed 4/18/07, effective 5/19/07)

WAC 246-930-350Evaluation and treatment experience credit.

(1) Evaluation experience credit. The following can be counted for evaluation experience credit:

(a) Preparation of a written SSOSA, SSODA, self-referral or forensic evaluation;

(b) Primary or secondary responsibility for interviewing the client;

(d) All contact with clients; and

(e) Preparation of limited assessments for the purpose of:

(i) Institution classification;

(ii) Treatment monitoring; and

(iii) Reporting.

(2) Treatment experience credit. The following can be counted for treatment experience credit:

(a) Face-to-face treatment hours performed by affiliates under the supervision of ((certified providers))qualified supervisors;

(b) Time spent as a co-therapist. Both therapists must have formal responsibility for the group session; and

AMENDATORY SECTION(Amending WSR 05-12-014, filed 5/20/05, effective 6/20/05)

WAC 246-930-431((Expired certification.))Recertification.

(1) If the certification has expired for three years or less, the ((practitioner))provider must meet the requirements of chapter 246-12 WAC, Part 2.

(2) If the certification has expired for over three years or has been revoked or suspended, the practitioner must:

(a) Successfully pass the examination and achieve a passing score as provided in WAC 246-930-200;

(b) Meet the requirements of chapter 246-12 WAC, Part 2.

(3) The secretary may require reexamination in any disciplinary order as a condition of reissuing a certificate or confirming recertification.

(4) Whenever reexamination is required, the applicant shall pay the examination fees set forth in WAC 246-930-990.

AMENDATORY SECTION(Amending WSR 08-15-014, filed 7/7/08, effective 7/7/08)

WAC 246-930-990Sex offender treatment provider fees and renewal cycle.

(1) Certificates must be renewed every year on the practitioner's birthday as provided in chapter 246-12 WAC((, Part 2. The secretary may require payment of renewal fees less than those established in this section if the current level of fees is likely to result in a surplus of funds. Surplus funds are those in excess of the amount necessary to pay for the costs of administering the program and to maintain a reasonable reserve. Notice of any adjustment in the required payment will be provided to practitioners. The adjustment in the required payment shall remain in place for the duration of a renewal cycle to assure practitioners an equal benefit from the adjustment)).

(2) The following nonrefundable fees will be charged for:

Title of Fee	Fee
Sex offender treatment provider:
Application and examination	$600.00
Reexamination	250.00
Initial certification	200.00
Renewal	1,000.00
Inactive status	300.00
Late renewal penalty	300.00
Expired certificate reissuance	300.00
Expired inactive certificate reissuance	150.00
Duplicate certificate	15.00
Verification of certification	15.00

(3) The following nonrefundable fees will be charged for affiliate treatment provider:

Title of Fee	Fee
Application and examination	400.00
Reexamination	250.00
Renewal	500.00
Inactive status	250.00
Late renewal penalty	250.00
Expired affiliate certificate reissuance	250.00
Expired inactive affiliate certificate reissuance	100.00
Duplicate certificate	15.00

(4) Under RCW 71.09.360, fees established in this section may be waived for sex offender treatment providers contracted to provide treatment services to persons on conditional release in underserved counties as determined by the department of social and health services.

The following sections of the Washington Administrative Code are repealed:

Mandatory reporting.

WAC 246-930-220	Reexamination.
WAC 246-930-300	Mandatory reporting.