March 2007
As this article is being written, bills are still being introduced in
the California Legislature. Thus, we are not yet fully aware of the
myriad of bills that will impact the profession. Further, even the CAMFT
bills, for the most part, do not have authors or have not been assigned
bill numbers. This article is more conceptual, giving information about
bills that are anticipated:
CAMFT SPONSORED LEGISLATION
Proposed Bill·Patients Dangerous to Self or Others
A proposed bill would amend Section 56.10(c) of the Civil Code by adding
a subparagraph to read as follows:
"The information may be disclosed when a psychotherapist has
reasonable cause to believe that the patient is in such mental or
emotional condition as to be dangerous to himself or herself or to the
person or property of another and that disclosure of the communication
or the information is necessary to prevent the threatened
danger."
This amendment is needed because the Confidentiality of Medical
Information Act, in Section 56.10(c), lists the exceptions to
confidentiality where the patient·s written authorization is not
needed. Curiously, the dangerous patient exception is not included in
any of the more than 17 listed exceptions. One reason may be that the
law was originally intended to affect physicians and medical records.
Over the years, it became clearer that the law applied to
psychotherapists and mental health records as well. Although the
exception appears in Evidence Code Section 1024 as part of the privilege
statutes and has generally been interpreted by some courts to provide
permission to break confidentiality, it is important to draw the
distinction between confidentiality and privilege.
Section 5328(r) of the Welfare and Institutions Code provides a
similar exception to confidentiality for the dangerous patient and
doesn·t rely upon Section 1024 of the Evidence Code·but the W
and I Code section only applies to certain providers, e.g., those who
work in state and other psychiatric facilities. It remains possible that
a case will be brought against a therapist that claims that a disclosure
made pursuant to Section 1024 of the Evidence Code is not supported by
the controlling law·the Confidentiality of Medical Information Act.
It is time that this important exception to confidentiality is added to
the law on confidentiality.
Proposed Bill·A Variety of Amendments to the Licensing
Law
Amend Section 4980.43(a) of the Business and Professions Code by adding
a subparagraph to read as follows:
"(12) Not more than 125 hours of experience providing
psychotherapy services via telemedicine. Any such telemedicine services
shall be rendered in accordance with the provisions of Section 2290.5 of
the Business and Professions Code."
There is nothing in existing law or regulation that directly limits
the number of hours an applicant can lawfully gain toward licensure by
doing supervised online therapy (telemedicine). On the other hand, there
is nothing in existing law that specifically recognizes that such hours
would be appropriate, in any amount. Adding this subdivision to existing
law will clarify that such hours are both acceptable and that they are
limited. It will help to avoid future problems for the Board and for
applicants. Online therapy is here to stay, it serves legitimate
purposes, and its use is likely to grow. This bill is but a small step
in recognizing that reality.
Amend Section 4980.43(a)(4)(B) to clarify the intent:
"Not more that 250 hours of workshops, training sessions, seminars
or conferences. professional enrichment activities. Workshops, training
sessions, seminars, and conferences are professional enrichment
activities."
This section is currently confusing for some readers in that it is
not clear that professional enrichment activities includes workshops,
training sessions, seminars, and conferences.
Amend Section 4980.43(a)(4)(C) to clarify the intent:
"Not more than 100 hours of personal psychotherapy. The applicant
shall be credited for three hours of experience for each hour of
personal psychotherapy. Personal psychotherapy hours are professional
enrichment activities."
This section is currently confusing for some readers in that it is
not clear that profession-al enrichment activities includes one
receiving personal psychotherapy.
Amend Section 4980.43(a)(7) to clarify the intent:
"Not more than 1000 hours of experience for direct supervisor contact
and professional enrichment activities."
Again, this change is to add clarity to what is intended as
professional enrichment activities.
Amend Section 4980.43(a)(9) to clarify the intent:
"Not more than 250 hours of post-degree experience administering and
evaluating psychological tests of counselees, writing clinical reports,
writing progress notes, or writing process notes."
There is currently some confusion about the fact that hours of
experience for administering and evaluating psychological tests of
counselees, writing clinical reports, writing progress notes, or writing
process notes can only be gained post-degree.
Amend Section 4980.03(g)(1) to clarify the intent:
"Supervisor,· as used in this chapter, means an individual who
meets all of the following requirements:
Has been licensed or certified by a state regulatory agency
for at least two years as a marriage and family therapist, licensed
clinical social worker, licensed psychologist, or licensed physician
certified in psychiatry by the American Board of Psychiatry and
Neurology."
This proposed change clarifies intent.
Amend Section 4980.43(i) to clarify the longstanding intent of
law:
"Trainees, interns, and applicants shall only perform services at the
place where their employers regularly conduct business, which may
include performing services at other locations, so long as the services
are performed under the direction and control of their employers and
supervisors, and in compliance with the laws and regulations pertaining
to supervision. Trainees and interns shall have no proprietary interest
in their employers· businesses and shall not lease or rent
space, pay for furnishings, equipment, or supplies, or in any other way
pay for the obligations of their employers."
This change is needed to clarify the longstanding intent of law, that
is now being misunderstood, that it is inappropriate for interns to pay
rent or for the other costs of running a business when employed in a
private practice.
Amend Section 4980.90(b) to clarify that this section of law is
inapplicable to persons who are gaining their education while residents
of California:
"Education gained while residing outside of California shall be
accepted toward the licensure requirements if it is substantially
equivalent to the education requirements of this chapter, and if the
applicant has completed all of the following. . ."
There are also a number of technical changes of a non-substantive
nature that correct references made to incorrect sections of law or to
omit sections of law that are no longer operative.
Proposed Bill·Amendments to the Child Abuse and Neglect
Reporting Act
Amend Section 11166(g) of the Penal Code by adding a second sentence, so
that the entire section reads as follows:
"Any other person who has knowledge of or observes a child whom he or
she knows or reasonably suspects has been a victim of child abuse or
neglect may report the known or suspected instance of child abuse or
neglect to an agency specified in Section 11165.9. For the purposes
of this section, ·any other person· includes a mandated
reporter who is acting in his or her private capacity and not within the
scope of his or her employment or within his or her professional
capacity."
This amendment to the Child Abuse and Neglect Reporting Act is
intended to clarify that ·mandated reporters· who report in
their ·private· capacities, as opposed to their professional
capacities or within the scope of their employment, are permitted to
report suspected child abuse. By making it clear, it will allow these
reporters to report anonymously (as is the case for ·any other
person·) under Penal Code Section 11167(g) and will assure that
they are entitled to immunity from civil or criminal liability under
Section 11172 of the Code for making authorized reports of child
abuse.
Amend Section 11165.6 of the Penal Code by adding the words ·or
death· after ·physical injury· so that the sentence reads
as follows:
"As used in this article, the term ·child abuse or neglect·
includes physical injury or death inflicted by other than accidental
means on a child.."
The Child Abuse and Neglect Reporting Act does not contain enough
specificity with respect to the fact that death of a child is a
reportable event under the reporting law if it results from other than
accidental means and meets the other requirements for reporting. The
current definition of child abuse in the section we seek to amend uses
the phrase ·physical injury,· which is generally interpreted
to mean such things as bruises, abrasions, scalding, burns, or other
·injuries.· It is important to make clear that death of a
child, as opposed to a mere injury, is also reportable.
Non-Custodial Parent AB 164·Smyth
Amend Section 3025 of the Family Code so that it reads as follows:
"Notwithstanding any other law, access to records and information
pertaining to a minor child, including, but not limited to, medical,
mental health, dental, and school records, shall not be denied to a
parent because that parent does not have physical custody of the child,
so long as that parent has legal custody, whether sole or joint." This
Section of law is often cited and fought over in bitterly contested
custody disputes and is the source of some confusion on the part of
therapists and attorneys. It is important that the law be clearly stated
and understood so that written demands or requests by parents for copies
of the medical or mental health records of minors can be appropriately
responded to (and denied) by practitioners. Complaints to the licensing
board are frequently made in such matters by non-custodial parents and
greater clarity may help to reduce or to more effectively resolve such
complaints.
This bill simply adds ·mental health records· to make clear
that this law applies to both medical and mental health records. While
the term ·medical records· is broad enough to include mental
health records, it is better to clearly state this in the law. The
intent of this law and the meaning of it (as interpreted by case law)
are to allow parents to have access to records even where they do not
have ·physical custody· of the child. It is not, however, to
allow parents access to records when they have no ·legal
custody·· neither sole nor joint legal custody.
OTHER BILLS
Child Abuse: Endangerment and Controlled Substances AB
116·Aghazarian
This bill provides that any parent, guardian, or caregiver of a minor
child who knowingly and unlawfully consumes, smokes, inhales, ingests,
or otherwise uses cocaine, cocaine base, LSD, heroin, methamphetamine
(Ecstacy) in the presence of a minor child under his or her care, is
guilty of a crime. If this bill is successful, it is important to follow
as it would require mandated child abuse reporters to make such
reports.
Proposed Bill·Regulation of Alcohol and Drug Abuse
Counselors
The California Association of Alcohol and Drug Abuse Counselors (CAADAC)
plan to pursue legislation this year to regulate alcohol and drug abuse
counselors who work in independent practice. This profession would, as
proposed, be regulated by the Board of Behavioral Sciences. They claim
that licensure will be voluntary for those who wish to pass national
competency measures, it will weed out abusive counselors by having a
mechanism to take disciplinary action, and provide for a limited scope
of practice, thereby providing controls for those who work beyond their
scope of practice. CAMFT has concerns including, but not limited to: it
would limit the use of the title, ·alcohol and drug abuse
counselor;· it would use various organizations (not a state
regulatory body) to define certification criteria/qualifications; the
fact that a college degree is not required until the year 2015;
reference is made to violations of ethical standards of private
organizations rather than specific sections of law that define
unprofessional conduct; the expansive scope of practice; and the fact
that once licensed, the only prevention for those regulated working
beyond their scope of practice would be complaints from clients.
The scope of practice proposed includes screening, intake,
orientation, assessment, treatment planning, counseling, case
management, crisis intervention, client education, report and record
keeping, consultation with other professions in regard to client
treatment and services, and referral to treat addictive disorder or
disease and help prevent relapse. CAMFT·s position is, ·oppose
unless substantially amended.·
Proposed Bill·Licensing of Professional
Counselors
Professional Counselors are once again moving forward with legislation
to regulate the profession in California. The regulatory agency, once
again, is proposed to be the Board of Behavioral Sciences. Currently
only two states do not regulate LPCs· California and Nevada. The
proponents for this legislation express confidence that a Nevada
licensing law will be achieved this year. While the proponents have
taken many amendments to accommodate CAMFT·s concerns, we continue
to have a multitude of concerns, including, but not limited to: the
exceedingly broad and poorly defined scope of practice·arguably,
LPCs would be permitted to do everything a psychologist does but with
solely a master·s degree; the fact that the limited required
education (a master·s or doctoral degree in counseling, or a
closely related degree...[emphasis added]) would not only purportedly
train one in mental health counseling and treatment, but also career
counseling and rehabilitation counseling; and would permit the use of a
national exam instead of a California-based examination as is required
for LMFTs and LCSWs. Most distressing is the exceedingly broad
grandparenting provisions contained in the bill. This section provides
that during the first twelve months, the licensing board may issue a
license to any person who applies for a license who has a master·s
or doctoral degree in counseling (including specific degree titles such
as community counseling, mental health counseling, rehabilitation
counseling, school counseling, or a related degree...) and has taken
certain additional courses that can be gained outside of the degree
program. Related degrees include, but are not limited to, psychology and
the creative arts therapies. The problem, as we see it, is one could
have virtually any masters degree and make a case that it is closely
related. Further, any school counselor in the state of California could
potentially qualify for a license as a professional counselor entitling
that person to do mental health counseling and treatment. While somewhat
humorous, possibly based upon lack of knowledge, or just poorly stated,
and certain to be opposed by all of the mental health disciplines, the
proposed licensing law would permit no one but LPCs to practice or
engage in psychotherapy.
FEDERAL LEGISLATION
Medicare
Since we are at the beginning of another two-year Congressional cycle,
new bills will require introduction to once again focus on including
MFTs as reimbursable by Medicare.
Veterans· Administration
While legislation to have MFTs recognized as employable within
Veterans· Administration Hospitals was signed into law, it will
require implementing regulations to be operative. This legislation also
included professional counselors. Our federal lobbyists and I met with
representatives from within the VA to better understand the process and
to hasten the development of implementing regulations. There was
tremendous reluctance and a lack of awareness and understanding about
the recently passed legislation. Further, there was a lack of
understanding as to what MFTs do and their roles and responsibilities
when working in VA facilities. We will continue to push for regulatory
development and we are confident that AAMFT and the American Counseling
Association (representing professional counselors) are doing
likewise.
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California Association of Marriage and Family Therapists |
7901 Raytheon Road, San Diego, CA 92111-1606
Phone: (858) 292-2638 | Fax: (858) 292-2666
©Copyright 2012 California Association
of Marriage and Family Therapists
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