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BBS Update

The Therapist
March/April 2010

Following are some of the highlights of the meeting of the Board of Behavioral Sciences held in late January. The next regular meeting of the BBS is scheduled for May 6-7, 2010.

New Executive Officer of the BBS
Kim Madsen was appointed by the Board as the new Executive Officer of the BBS. She was interim Executive Officer following the resignation of Paul Riches, and had previously been in the position as Deputy Executive Officer.

Appointment of New Board Members
Several appointments of members of the Board of Behavioral Sciences were recently made by the administration: Michael Webb, marriage and family therapist and four public members, Samara Ashley, Patricia Lock-Dawson, Mona Foster, and Christine Wietlisbach.

Grandparenting and Developing of Details for the LPCC License
The BBS will soon conduct an audit of the occupational analysis for the national examination for LPCs as well as complete a gap analysis between the existing LMFT/ LCSW professions and the new LPCC profession. The purpose of the gap analysis is to determine if there are differences between the professions that would require a separate examination for LMFTs and LCSWs who want to be grandparented. The Board has decided to use an outside vendor to complete this analysis. They awarded the contract to Applied Measurement Services, LLC. AMS will begin its work immediately so that the exam, if there is to be one, can be available early in the process.

Staffing for the new profession is posing problems for the BBS as they need to hire the staff before the implementation of the new LPCC law. Forms and other procedures must be operational before the law takes affect, however, the Administration is not permitting new employees to be hired.

Proposed Changes in the Administration of MFT and CSW Examinations
The BBS is proposing a change in the way examinations are administered to aspiring MFTs and CSWs. They plan to bifurcate the examinations so that a law and ethics examination is administered following the completion of the required education and then a more comprehensive examination will be administered following the completion of the hours of experience. In concept, we believe this bifurcation is a good idea as it creates a swifter pathway to licensure. However, we believe some of the specifics of what has been proposed are problematic. To address these problems, the BBS has agreed to schedule additional committee meetings to work on the specific details.

It is our belief that applicants should complete the testing that was in existence at the time they became registered interns (presuming they are in their initial six-year intern registration periods). Those who are seeking their initial intern registrations or new intern registrations after the new tests are in place would complete the new testing format. The BBS, on the other hand, is proposing that there would be a specific implementation date that would affect all interns who are already in the examination process.

The BBS is also proposing that persons who are not successful with the soon to be developed law and ethics test would have to successfully complete a law and ethics course if they have not passed the test within a two-year period of time. The test may be offered as many as four times per year. They also propose that if applicants have not successfully completed the examinations within three years, their intern registrations would be cancelled. While we can understand the imposition of additional training in law and ethics, we believe the cancellation of the registrations of these interns is excessively harsh. There is the possibility that the examinations may be faulty, or there may be causes other than a lack of understanding of law and ethics that may interfere with examinees’ success. This possible conclusion places even greater stress on interns who may already be in very stress-ridden situations trying to gain hours of experience while receiving little or no wages. Besides, interns are working under the supervision of their supervisors and employers until they are licensed and can avail themselves of the benefits of their supervisors’ and employers’ expertise when faced with problematic legal and ethical issues. Further, they will be no more dangerous to the public when there is a law and ethics test in place than they are today without a test.

BBS Creating a Retired License
The BBS is once again discussing the pursuit of legislation to create a retired license category. For persons who will not be practicing and who wish to have retired licenses, they would pay a one-time fee of only $40 for this status. However, those who opt for the retired license, and later decide to return to practice, would have to re-take the examinations in existence at the time if more than five years has passed since the retired status was first effective. While we would not stand in the way of the BBS pursuing legislation to accomplish this change in law, we would encourage persons who may want to leave the option open to one day return to practice to opt for an inactive license over a retired license. Yes, the inactive license is more expensive, as a renewal fee is required every two years, but the possibility of having to re-take examinations could be potentially overwhelming.

Matters of Due Process
CAMFT continues to have concerns about actions being taken by licensing boards in general and the BBS in particular with regard to issues of due process. The California Administration, the State Legislature, the Department of Consumer Affairs, and the BBS, in an effort to crack down on unprofessional conduct, are restricting the practices of health care professionals without affording those professionals with due process rights currently prescribed by law. We believe these actions are appalling and unlawful. Currently the BBS appears to be using these enforcement strategies in egregious cases, but even these wrongdoers should be provided with the due process rights that exist in law.

The Administration, DCA, and licensing boards are attempting to put standards in place to act more rapidly on enforcement matters. The impression given is that practitioners are at fault for delaying the process, however, our experience reveals that the lack of swift action is largely due to delays from the licensing board itself, the California Division of Investigations, and the Attorney General’s Office, possibly even exacerbated by the California budget. Members who are being investigated usually want these matters to move swiftly to get the investigations and any possible consequences behind them.

The BBS and other Boards are currently using Penal Code Section 23 as authority to suspend the practice of a licensee as a condition of bail before there has been a conviction, yet this Section of law specifies that there is to be a conviction for this provision to be applicable. Without a conviction, the Section provides that a judge may make a recommendation to the Board to take action to suspend, which would be accomplished, according to the law, by providing an administrative hearing where an interim order of suspension could result. Recent case law supports the impermissibility of what the Boards are doing, but the Boards have not stopped this practice. We became aware of these circumstances as the Board has recently begun to publish these actions. We were told that they began to do these PC 23 cases in about 2004, but did not make them public until 2009.

We had asked the Board to place this matter on the Board’s agenda for its January meeting. As a result, the Board invited a Deputy Attorney General to present to the Board on this matter. The DAG presented with much drama the most egregious case imaginable to show that their actions, which circumvent due process, are warranted and in the public’s best interest. Of course, the listener is caught up in the drama that such a horrible person should not have a license. But, when one looks below the surface at the citations of legal cases that are used in a way not intended to make arguments for suspension of license, and the lack of adherence to the law, one sees a system out of control. Essentially, they are making up the law as they go.

At this same meeting, a representative from the Department of Consumer Affairs, made a presentation to the Board. The DCA is the umbrella agency that oversees 19 healing arts boards that protect and serve California consumers. The DCA claims that in recent years some of the healing arts boards have been unable to investigate and prosecute consumer complaints in a timely manner. The DCA has created what they consider to be a solution to this problem by making administrative improvements, staffing and IT changes, and legislative changes. Once these changes are implemented, the DCA expects the healing arts boards to reduce the average enforcement completion timeline from 36 months to between 12 and 18 months. While there are some exceptions, the BBS has done a pretty good job. Within their Strategic Plan they have a goal to lessen the time it takes to investigate and take action on disciplinary matters. Their objectives currently provide that they are to complete consumer complaint investigations within 180 days of receipt, complete criminal conviction investigations within 120 days, and complete adjudication of cases referred for disciplinary action within 180 days of referral date. Generally speaking, they appear to be meeting their objectives, even with serious budget cuts brought on by the same administration that is telling them they need to speed up the process.

The DCA is also moving forward with and encouraging the various licensing boards to adopt and implement uniform standards with regard to actions taken by the boards as a result of professionals’ alcohol and drug use. These standards were created pursuant to legislative intent passed in 2008 as SB 1441, which directed the executive officers for all the boards to convene to develop uniform standards. The DCA’s intent is that these uniform standards will either become law imposed upon all boards or be adopted as regulations by each board. We believe that there cannot be uniform standards imposed across all boards because the boards vary greatly from one to another. Some boards have diversion programs, and in these cases, some persons self-refer to diversion and some persons are referred to diversion as a disciplinary measure. We believe that boards with diversion programs cannot be treated the same as those that solely take disciplinary actions, like the BBS. Further, we believe that there is not a standard case involving the use of alcohol and/or drugs. Thus, each case should be acted upon by the board based upon the particular facts and circumstances. Some of the provisions of the uniform standards would bankrupt a professional who has every intention to fix his/her problem, but can’t afford the expenses of probation monitoring and random drug testing multiple times a week. The DCA representative encouraged the Board to adopt these standards.

At the same time, and in answer to requests from the Department and the Administration, the Legislature is moving forward with legislation that contains draconian provisions further eroding due process rights for health care professionals and frankly eroding patient protections. This legislation began as SB 294, but is now being pushed forward with similar as well as new provisions that will have a new bill number. In a sense it is good that it will be a new bill as there will be greater opportunities to influence this new piece of legislation. One of the most egregious parts of the bill is overbroad and would have unintended consequences for patients. The subdivision seems to confuse privilege and confidentiality. The privilege belongs to the patient and the bill seems to erode the privilege and erode a patient’s confidentiality in situations where the patient might complain to a licensing board. The provision that is overbroad would seemingly allow a licensing board to access records of any patient with no provisions or clear limitations as to how this might occur. The section broadly proclaims that the psychotherapist-patient privilege does not apply to investigations and proceedings conducted by a board. The section further provides that the “licensee shall cooperate with the board. . .” This provision places the professional in an untenable situation, how can he or she cooperate when he or she must defend against the accusations of the board?

Members need to be aware of these circumstances that erode and even violate professionals’ right to due process. CAMFT will have more information on this growing concern in subsequent issues of The Therapist. These are concerns about which we need to individually and collectively be informed about, involved in, and take action.

Mary Riemersma, CAE, is CAMFT’s Executive Director. She is available to answer member calls regarding business, legal, and ethical issues.

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