camft.org | July/August 2009

We are now more than midway through the legislative session for 2009. California's budget continues to create numerous struggles and may impact pending legislation. Essentially, we are told California is bankrupt, with no way to beg, borrow, or steal the needed funds to have the state be solvent. In light of total financial doom and gloom, following are the bills that CAMFT is pursuing in 2009 as well as some of the many other measures we are supporting, opposing, or at least watching to see what they become.

This bill would amend Section 11170(b)(1) of the Penal Code (part of the Child Abuse and Neglect Reporting Act) to establish that licensed health care practitioners are not required to investigate child abuse and to correct the reference made to "medical practitioner," which is a term no longer used. The way this section is worded in existing law may give the false impression that health care professionals have a responsibility to investigate suspected child abuse or severe neglect. Additionally, because California case law (Alejo v. City of Alhambra) implies a duty for health care professionals to investigate, it is necessary to clarify that these professionals are not under a duty to investigate suspected child abuse or neglect incidents. At least one CAMFT member has indicated that she has been involved in more than one case where she was criticized for not "investigating" child abuse. This bill is now in the Senate.

This bill would provide an exception to the requirements imposed by Section 56.104 of the Civil Code (part of the Confidentiality of Medical Information Act-CMIA) in the event the therapist must break confidentiality when there is an imminent and serious danger of physical harm to another [Section 56.10(c)(19) of the CMIA]. Section 56.104 provides that "no provider of health care, health care service plan, or contractor, may release medical information to persons or entities authorized by law to receive that information. . .if the requested information specifically relates to the patient's participation in outpatient treatment with a psychotherapist, unless the person or entity requesting that information submits to the patient" within thirty days (unless the patient has signed a written waiver waiving notification) "and to the provider of health care, health care service plan, or contractor a written request, signed by the person requesting the information or an authorized agent of the entity requesting the information, that includes:" specific information relating to a patient's participation in outpatient treatment with a psychotherapist and its specific intended use, the length of time the information will be kept, a statement that the information will not be used for any other purpose, and a statement that the requester will destroy the information when the time specified has expired. It is clear that subsection (19) requires quick action in order to prevent serious and imminent harm to others. If a police officer asked a therapist for information about his/her patient relevant to the psychotherapy and to the danger, it is not necessary, and in fact would be somewhat absurd, to have to submit a written request/report to the patient and to the psychotherapist to comply with Section 56.104. This bill is now in the Senate.

Employment of Interns in California Department of Corrections and Rehabilitation (CDCR)
AB 1113 (Lowenthal, Author and Anderson, Coauthor)

This bill would amend Penal Code, Section 5068.5(c) to allow persons aspiring to MFT licensure to be employed within the Department of Corrections and Rehabilitation (CDCR), as is the case with persons pursuing the psychology and clinical social work licenses. A local union of the American Federation of County, State, and Municipal Employees (AFSCME-the union representing the interests of psychologists and clinical social workers employed within the CDCR) has raised substantial opposition. Their concerns include their statement that the State Personnel Board's creation of a new job classification may not happen and the CDCR has done a bad job of recruiting qualifying employees to work with the mentally ill. He brought up some alleged history that the Department has used guards as counselors and brought in other people that are not trained to work with inmates with mental disorders (a smoke screen having nothing to do with MFTs), and the concerns of his constituency (psychologists and clinical social workers) "that MFTs do not have the qualifications to work with the mentally ill in prisons like psychologists and social workers." Assembly Member Lowenthal (an MFT) did tell him that MFTs can and will become members of AFSCME. The lobbyist continually pointed out that his constituency is concerned with having MFTs come in to work with the mentally ill (pure turf objections).

We sought assistance from the CDCR concerning the objections and received a very refreshing response, part of which is excerpted here: "We are in the process of hiring now. The social workers at CMC who were selected to supervise the MFTs for the pilot project were resistant and didn't believe MFTs would be qualified. Now they are so thrilled with their work they have been advocating to keep them as permanent employees. They developed an intense proctoring system and MFTs scored approximately 90 percent or higher on all factors. . .I also participated in the interviews of the MFTs. Many had extensive experience working with mentally ill offenders. Many MFTs have experience working in the county jails and other outreach programs for mentally ill offenders. . . .The goal is to improve our hiring pool, which will actually improve the quality of clinicians we employ. Managers will have a larger selection of candidates (social workers, MFTs, and psychologists) to interview and will select the most qualified."
This bill is now in the Senate but is destined to face even greater and more heated opposition than it experienced in the Assembly. We have been alerted that the statewide AFSCME union board of directors was convinced by the local union to take a position of oppose on this legislation.

Citations and Fines
SB 819 (Committee on Business, Professions and Economic Development-Omnibus Bill)
This bill is a repeat of SB 1779 from 2008 that was vetoed by the Governor. It, among other things, addresses our desire to limit the amount of time the BBS can post citations and fines on their website. Any fine against a licensee or registrant that is under $1,500 would be limited to a period of posting of five years. Fines that exceed this amount could be posted indefinitely, which is the case with all fines at this time.

One of the many other provisions of this bill includes naming the MFT licensing law as the Marriage and Family Therapist Act. This bill is now on the Senate Floor.

Health Care Coverage
AB 108 (Hayashi)
This bill, which CAMFT supports, prohibits a health care service plan or health insurer from canceling, rescinding, raising premiums, or limiting provisions of an individual's plan, for omissions, misrepresentations, or inaccuracies in applications, after the plan has been in existence for eighteen months. This bill is now in the Senate.

Perinatal Mood and Anxiety Disorders Task Force
AB 159 (Nava)
This bill would permit the State Department of Public Health, in conjunction with the State Department of Mental Health, to establish a task force to develop recommendations and educational materials for the department's perinatal health programs in order to address specified issues relating to perinatal mood and anxiety disorders. A member of CAMFT would be one of the Committee's members. CAMFT is in support of this legislation. The bill is now in Assembly Appropriations Suspense.

Parity for Mental Health Care
AB 244 (Beall)
This bill would expand mental health coverage to all DSM IV mental disorders for certain health care service plans and insurance plans issued, amended, or renewed on or after January 1, 2010. This bill was vetoed by the Governor last year. CAMFT continues to support this legislation that is now in Assembly Appropriations Suspense.

Professional Licenses
AB 484 (Eng)
This bill would have required licensing entities to provide the Franchise Tax Board with the names and social security numbers or federal taxpayer ID numbers of each licensee. If a licensee failed to pay taxes, where a state tax lien has been recorded, the Franchise Tax Board would have been required to mail a preliminary notice of suspension to the licensee. The licensee who failed to pay the unpaid taxes would be automatically suspended, and notice of such would be required to have been sent to the licensing board. The licensee would have been expected to pay the administrative costs incurred by the Franchise Tax Board. CAMFT was watching this bill in hopes that it would die a quick death. At this time it appears to be dead.

Child Custody and Visitation
AB 612 (Beall)
This bill, as introduced, would have prohibited a court from considering a nonscientific theory in making a determination regarding child custody or visitation with a child. It would also have prohibited a court from considering or receiving into evidence a report, assessment, evaluation, or investigation if it included a nonscientific theory. CAMFT's position on the bill was "oppose unless amended." The bill has now been amended such that we are no longer opposed. The bill now provides that a child's expression of significant hostility toward a parent may be admitted as possible corroborating evidence that the parent has abused the child. The bill would prohibit a court from concluding that an accusation of child physical or sexual abuse against a parent is false based solely on the child's expression of significant hostility toward the parent. The bill would also require that, on and after January 1, 2010, these provisions are to be included in all trainings required of child custody evaluators and would require the Judicial Council to revise training standards for child custody evaluators. CAMFT is now neutral on this bill that is on the floor of the Assembly.

Insurance and Health Plan Preexisting Conditions
AB 722 (Lowenthal)
This bill, which is supported by CAMFT, intends to enact legislation that would prohibit a health plan from denying or excluding coverage for an insured due to a pre-existing mental or physical condition. Thus far, the bill has not progressed.

Unlawful Revisions of Health Coverage
AB 730 (De La Torre)
This bill would provide that a health insurer that unlawfully rescinds a health insurance policy shall be liable to the state for a civil penalty in an amount not to exceed $5,000, or if the insurer knew, or had reason to know, that the rescission was unlawful, the civil penalty shall be in an amount not to exceed $10,000. The current violation is not to exceed $118. CAMFT is in support of this legislation that is now on the floor of the Assembly.

Repeal of all State Agencies, Boards, and Commissions
AB 783 (Anderson)
This bill would require that all statutorily created state agencies, boards, and commissions are to be repealed on January 1, 2022. We presume that this bill would include the BBS amongst other vital governmental entities. CAMFT will oppose this bill should it make any headway, however, at this time, it is a "spot" bill. Thus far, the bill has made no headway.

Individual Health Care Coverage Choices
AB 786 (Jones)
The bill, amongst other provisions, would require, by September 1, 2010, the Department of Managed Health Care and the Department of Insurance to jointly develop a system to categorize all health care service plan contracts and health insurance policies offered or sold to individuals into five coverage choice categories that meet certain specified requirements. The bill would require individual health plans offered or sold after January 1, 2011, to contain a maximum dollar limit on out-of-pocket costs for covered benefits. CAMFT is watching this bill at this time to see what direction it takes. At this time it is in Assembly Appropriations Suspense.

Scopes of Practice
AB 877 (Emmerson)
This bill would declare the intent of the Legislature to enact legislation authorizing the Department of Consumer Affairs to appoint a committee of seven members to prepare occupational analyses and written reports on any bill that seeks to expand the scope of practice of a healing arts profession. CAMFT is closely watching this bill that is now in Assembly Appropriations Suspense.

Medi-Cal Reimbursement for Same-Day Visits
AB 1445 (Chesbro)
This bill, sponsored by the California Primary Care Association, would provide that a patient could seek treatment on the same day from more than one health care provider and the providers' services would be reimbursed. CAMFT is in support of this legislation that is now in Assembly Appropriations Suspense.

MFT Education
SB 33 (Correa)
This is a BBS sponsored bill intended to revise the educational requirements for aspiring marriage and family therapists. This is nearly the same bill as the BBS sponsored last year that was vetoed by the governor. CAMFT is in support of this legislation.

Currently, there is an increasing need for mental health professionals in the public and community sector. MFTs are filling many of these positions. To assure that MFTs are well-prepared to fill these positions, the education and training is being enriched with additional educational curricula, including, but not limited to:

This bill will not affect persons already licensed or in the pipeline to acquiring licensure, and will only affect those who begin graduate study on or after August 1, 2012. This bill will also recognize an MFT educational institution as "accredited" if it has been accredited by a regional accrediting agency recognized by the US Department of Education, which is significantly broader than the law was previously that recognized solely the Western Association of Schools and Colleges.

A local union of the American Federation of State, County, and Municipal Employees expressed written opposition to the bill before it was heard in the Senate Business, Professions and Economic Development Committee. According to them, the requirements "spelled out in SB 33 do not support marriage and family treatment, but more closely resemble those of Social Workers and Psychologists. The MFT license was instituted to specifically train therapists in the treatment of family and relationship issues and the integrity of this purpose should be maintained. . .This function should not be diluted to providing treatment that can and should be provided by Social Workers and Psychologists. . .we fear that rather than providing the community with well trained MFTs, it would result in poorly trained Social Workers." In spite of this opposition, the bill has passed out of the Senate and is now in the Assembly.

Health Professions
SB 43 (Alquist)
This bill would authorize the healing arts boards to collect information regarding the cultural and linguistic competency of persons regulated by these Boards. CAMFT is currently watching this bill, which is now on the Assembly floor.

Health Care Reform
SB 92 (Aanestad)
CAMFT is in opposition to this bill, however, we are told by the author, it will make no headway due to the political climate. While it is a huge bill aimed at massive health care reform, we are opposed to a couple of the bill's provisions. Among other things, it would mandate that health plans domiciled in other states would be exempt from abiding by California law. In other words, it would permit plans located outside of California to not have to follow California laws, which would mean they would not have to reimburse MFTs, pursuant to California's freedom of choice laws. The requirement for out of state plans, licensed to do business in California, to reimburse MFTs was passed in the early 80s. It would be greatly problematic to the profession if eliminated.

Managed Health Care and Insurance Plans
SB 296 (Lowenthal)
This bill is a collective effort of professional provider and consumer advocacy organizations involved in the California Coalition for Mental Health. CAMFT is a part of the Coalition and had an instrumental part in drafting this legislation and will play a significant role in shepherding the bill, which of course, it supports. The bill would require every health care plan to ensure that there is coordination of care between treating professionals when providing treatment to clients, it require plans to have websites that conform to prescribed standards, and it requires plans to include behavioral health contact information on plan cards. CAMFT, of course, is in support of this legislation.

Health Care Coverage and Benefits
SB 316 (Alquist)
This bill would require full service health care service plans and health insurers to expend on health care benefits no less than 85 percent of the fees/premiums collected for policies issued, amended, or renewed on or after January 1, 2011. CAMFT supports this legislation that has passed off of the Senate Floor.

Confidential Medical Information
SB 368 (Maldonado)
This bill would authorize the office of Health and Human Services Agency, Office of Health Information Integrity to audit the procedures and records of a provider of health care at any time to determine the provider's compliance with the Confidentiality of Medical Information Act. CAMFT was opposed to this legislation, which appears that it will not be moving forward at this time.

Minor's Consent to Treatment
SB 543 (Leno)
CAMFT was in support and continues to be in support of this legislation, even though it appeared to be fraught with potential opposition, that would have permitted a minor age 12 or older to consent (on his/her own) to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the child was sufficiently mature to participate in the treatment. The bill is likely to be amended to provide an immunity to liability to therapists who provide such treatment (with the law remaining essentially as it is currently) for the therapist who treats the minor child who is 12 or older and makes a determination that the minor has been the victim of incest or child abuse, or without such treatment, may be a danger to self or others. This bill may have difficulty due to the problems in seeking additional immunities from liability. We support the intent of the sponsors who are trying to assist youth who are struggling with GLBT issues to seek needed therapy to address the feelings they are experiencing.

Regulatory Boards
SB 638 (McLeod)
This bill would abolish the Joint Committee on Boards, Commissions, and Consumer Protection and would authorize the appropriate policy committees of the Legislature to carry out its duties. The bill would terminate the terms of office of each board member or bureau chief and would authorize successor board members and bureau chiefs to be appointed. CAMFT is opposed to this legislation that, at the current time, is still in the Senate.

Licensing of Alcohol and Drug Abuse Counselors
SB 707 (DeSaulnier)
This bill is considerably different than last year's legislation (AB 239), which was also intended to license alcoholism and drug abuse counselors. AB 239 was vetoed by the Governor. Previously, CAMFT started out in opposition to that bill but reached the point where all of our requested amendments were accepted and we moved to a position of "support." This bill, which CAMFT has taken the position "oppose unless amended," would place the licensing of alcohol and other drug counselors under the jurisdiction of the State Department of Alcohol and Drug Programs, rather than the BBS, as previously proposed. The bill leaves far too much to be determined by regulations, which we generally find more difficult to influence than the legislative process. Further, the regulations would have to be accomplished within a brief period of time, which given the magnitude and complexity, is unlikely to occur timely. The scope of practice originally appeared to be a list of things that counselors may do, rather than defining principles clarifying the practice of the profession. While it has been redrafted, and now reads as a scope of practice, we are concerned that it is excessively broad and could be misconstrued as permitting the counselor to work beyond the intended scope of practice. The proposal provides for a somewhat confusing tiered licensing scheme with differing requirements for persons who will be registered, issued certificates, or a license at various levels of education/experience. The bill provides for the license to be issued to persons with specified masters' level degrees, but MFT degrees, or other degrees qualifying for an MFT license, are arguably not currently acceptable degrees. There is currently no exception in the law for providing alcohol and drug treatment by licensed mental health professionals. In other words, as currently drafted, mental health professionals would be prohibited from providing such treatment. While a commitment has been made to correct this glaring oversight, to date it has not been changed. As the bill began, the description of supervision was weak and it was unclear what the distinction was between clinical supervision and supervision. This has been improved somewhat. It is unclear as to why a provisional certification would be granted. The proposed law refers to other publications (Technical Assistance Publications) to define the intent of the law, which compounds the lack of clarity for anyone outside of the alcohol and drug arena. As originally proposed, there was no required coursework in law and ethics, but that has been corrected. The breakdown of hours of experience is vague. The testing is variable and vague and left to the Department to determine. The recognition of persons moving from other states is also vague.

As indicated, our position was back to "oppose unless amended" for the variety of reasons indicated and while we were willing to work with the author and Department to fix the flaws, the bill died in Appropriations Suspense.

Professions and Vocations
SB 762 (Senator Aanestad)
This bill would make it unlawful for a city or county to prohibit a healing arts licensee from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee. CAMFT in is support of this legislation because a local municipality should not be permitted to limit a license that is issued by a State Regulatory Body. This bill has passed out of the Assembly and is now in the Senate.

Licensed Professional Clinical Counselors
SB 788 (Senators Wyland and Steinberg)
As introduced, this bill would provide for the licensing, registration, and regulation of licensed professional clinical counselors and interns by the Board of Behavioral Sciences and would provide that the size of the BBS would be expanded to include two licensed professional clinical counselors and two additional public members. It was essentially the same bill as it was last year, with a different number and author. CAMFT's position on the attempt to license the profession has been neutral given all of the amendments the proponents have agreed to. The proponents took many amendments in prior years to satisfy CAMFT's concerns, and have attempted to satisfy the concerns of psychologists who had taken the position of "oppose unless amended." The psychologists engaged in continued negotiations and as each list of concerns were addressed, more concerns seemed to appear. These concerns were largely centered around scope of practice and the grandparenting of LMFTs and LCSWs.

The educational requirements were modified last year as requested by the Board of Behavioral Sciences to cover much of the same content as will become applicable for LMFTs pursuant to SB 1218 last year and SB 33 this year. As the bill is intended, those who are grandparented as LPCCs, which is very time-limited (six months), will be required to have had experience including at least 1,700 hours of supervised direct client contact. This number closely relates to the minimum of 1,750 hours of direct client contact that is required of aspiring MFTs. Grandparented persons, other than LMFTs and LCSWs, will be required to take two national examinations and a California jurisprudence and ethics examination. The required education, training, experience, and testing clearly appears sufficient to perform the services that the license will allow.

Further, the grandparenting of LMFTs and LCSWs who wish to have two licenses continues to be a possibility at this time for those who meet the coursework requirements as provided in proposed Section 4999.54 (a). The education is largely the same as LMFTs have had, with the possible exception of group counseling or therapy, and more frequently, career counseling.

The way the bill is intended to read it provides that such persons will be grandparented who apply between January 1, 2011 and June 30, 2011, provided that all documentation is submitted within 12 months of the Board's evaluation of the application and provided that the applicant meets the educational and experiential criteria. These dates are only applicable, however, should the bill be signed into law in 2009. As we negotiated with the proponents, these LMFTs and LCSWs who wished to be grandparented would not have been required to take the examinations required of other applicants. The grandparenting negotiated between CAMFT and the proponents of PC licensure was seriously threatened by the opposition including legislative opposition, which led all of the stakeholders back to the bargaining table. The California Psychological Association, the American Association for Marriage and Family Therapy-California Division, and Senator Leland Yee are vehemently opposed to the provision for MFTs and CSWs to not have to take examinations-so much so that the bill was essentially gutted in an attempt to work through the differences between these opposing interests. This opposition led to a series of negotiating meetings that continued into late night discussions where all of the interests were represented and all lost and gained in the process. These discussions were governed by the need to get the bill off of the Senate Floor before the deadline for bills to be heard. Ultimately, the bill, in its gutted form, made it to the Senate Floor and was passed out with only one no vote-Senator Leland Yee, a psychologist. The intent is to restore the bill when it moves to the Assembly along with adding the amendments that were conceptually agreed to by the interests involved in the negotiation.

These organization were seemingly unwilling to negotiate, and were loathe to move from their steadfast position. They fought relentlessly to require any grandparented LMFT or LCSW to take the exams that will be prescribed for LPCCs. Of course, this would not be grandparenting, but just another pathway to licensure. They believe that the LPCC and LMFT professions are distinctly different professions, thus LMFTs who wish to be dually licensed need to be required to take the LPCC examinations. We argue that LMFTs have had all of the requisite education, with the exception of group counseling (in limited cases) and career counseling (more frequently) and LMFTs can lawfully do everything within the scope of practice of an LPCC, thus one or more examinations are unnecessary either to determine a minimum level of competence or to provide for public safety when two rigorous exams have already been completed satisfactorily. Further, the one area of education regularly omitted from the educational requirements for LMFTs is a non-regulated activity-career counseling.

AAMFT-CA claims they are protecting the integrity and uniqueness of the MFT profession. We believe, and our members have expressed, that they should have the right to make their own decisions about the licenses that they hold and unnecessary barriers to acquiring another license serve no purpose. Senator Yee would like to see only one license and thus would prefer that professional counselors become LMFTs. None of the opponents claim to be opposed to the licensing of these other professionals either as LPCCs or LMFTs.

We attempted to be reasonable in our negotiation without giving away what we had already negotiated with the LPCCs. We ultimately agreed to the following language with regard to testing for LMFTs and LCSWs:

"In enacting this chapter, the Legislature recognizes Licensed Professional Clinical Counselors are a separate and distinct profession from MFTs and LCSWs. As such, the Legislature recognizes the need to appropriately test MFTs and LCSWs seeking to become LPCCs on the difference between the professions.

"The BBS and OER shall jointly develop a test on the differences, if any differences exist, between the practice of the LPCC and MFT professions and the differences, if any differences exist, between the practice of the LPCC and the LCSW professions." Of course, if tests are developed for LMFTs and LCSWs, applicants will need to successfully pass such tests.

By this agreement it may mean that there will be a test for MFTs, but that test would only cover the limited knowledge, skills, and abilities that have not already been addressed in the tests MFTs are required to take. The test will be developed following the completion of a comparison of the examinations by the BBS and Office of Examination Resources that could take several years to accomplish.

Interesting that there was such vehement opposition on the part of AAMFT-CA given the fact that MFTs, who just achieved the passage of a licensing law in Montana, that state will permit LPCs and LCSWs to be grandparented into the MFT profession without taking examinations.

The scope of practice, as currently drafted to satisfy the concerns of the opponents, specifies:

4999.20
(a) "Professional clinical counseling" means the application of counseling interventions and psychotherapeutic techniques to identify and remediate cognitive, mental, and emotional issues, including personal growth, adjustment to disability, crisis intervention, and psychosocial and environmental problems. "Professional clinical counseling" includes conducting assessments for the purpose of establishing counseling goals and objectives to empower individuals to deal adequately with life situations, reduce stress, experience growth, change behavior, and make well-informed, rational decisions.

(b) "Professional clinical counseling" is focused exclusively on the application of counseling interventions and psychotherapeutic techniques for the purposes of improving mental health, and is not intended to capture other, non-clinical (i.e. non-mental health) forms of counseling for the purpose of licensure.

(c) "Professional clinical counseling" does not include the assessment or treatment of couples or families unless the clinical counselor has completed the following additional training and education, beyond the minimums required for licensure:

(d) "Counseling interventions and psychotherapeutic techniques" means the application of cognitive, affective, verbal or nonverbal, systemic or holistic counseling strategies that include principles of development, wellness, and maladjustment that reflect a pluralistic society. These interventions and techniques are specifically implemented in the context of a professional clinical counseling relationship and use a variety of counseling theories and approaches.

Single Payer Health Care Coverage
SB 810 (Leno)
This bill would have established the California Healthcare System administered by a newly created California Healthcare Agency, which would have established a single-payer health care plan. This legislation has been vetoed twice by the Governor. CAMFT was watching this legislation that was unlikely to progress given California's budget. The bill, however, failed to pass out of Senate Appropriations Suspense.


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