The Professional Practice Committee

SUMMARY

Issue for Discussion

Presentation on issues impacting the licensure and practice of psychology, social work, and the mental health professions.

Reason for Consideration

             
              For information.

Proposed Handling

This presentation is before the Professional Practice Committee for discussion at the December 2008 meeting.

Procedural History

               The Board of Regents oversees the licensure, practice and discipline of 48 professions established under Title VIII of the Education Law.  In 2002, New York State enacted laws to restrict the practice of psychotherapy to individuals licensed by the Education Department, unless otherwise authorized. Previously, any individual could provide psychotherapy services. While the Education Law had previously authorized the licensure of psychologists and certified social workers and protected those titles, the 2002 legislation:

1. provided a protected scope of practice for psychologists;

1. replaced the single certified social worker license with two new title and scope protected licenses – licensed master social worker and licensed clinical social worker – and established licensure requirements for each;

1. created four new title and scope-protected professions – licensed creative arts therapist, licensed marriage and family therapist, licensed mental health counselor and licensed psychoanalyst – and established licensure requirements for each.

Background Information

              Since the enactment of chapters 420 and 676 of the Laws of 2002, licensed psychologists, licensed master social workers, licensed clinical social workers, licensed creative arts therapists, licensed marriage and family therapists, licensed mental health counselors and licensed psychoanalysts have both title protection and scope of practice protection.  By January 2006, the practice of any of these professions was restricted to those licensed, otherwise authorized, or exempt.  Exemptions, which are established in statute, include students under supervision, other licensed professions and occupations, and individuals in certain settings.  In addition, the Legislature enacted an exemption from licensure until January 1, 2010 for individuals in programs and services that are regulated, operated, funded or approved by the Office of Mental Health (OMH), the Office of Mental Retardation and Developmental Disabilities (OMRDD), the Office of Alcohol and Substance Abuse Services (OASAS), the Office of Children and Family Services (OCFS), a local social services district, or a local government unit as defined in the Mental Hygiene Law.

              The implementation of these laws has revealed many unforeseen and unintended consequences of the law.  The State Education Department is working with stakeholders to address these critical issues, which include:

• The expiration of the state and local agency exemption on January 1, 2010 will require licensure in order to practice psychology, social work, or the mental health professions in numerous programs operated, regulated, funded or approved by these agencies, unless the programs are otherwise authorized or exempt under the law (with the exception of psychologists who may continue to be employed in salaried positions operated by state, county and municipal agencies). The expiration of the exemption in 2010 could have a dramatic impact on the delivery of needed services to vulnerable populations.  Any extension, expansion or clarification of the exemption would require a change in law.

• With the establishment of restricted scopes of practice, community-based providers, unless otherwise authorized, may be prohibited from offering counseling or psychotherapy services because they cannot employ or contract with professionals licensed under Title VIII of the Education Law.  Many of these community-based providers are not-for-profit corporations which have a long history of providing mental health and social services.  Some of these entities fall under the current licensure exemptions which expire in 2010, but others may not be aware of the applicability of the licensing laws.  Access to services by at-risk consumers may be limited unless the corporate practice issue is addressed.

• Prior to the implementation of the new licensure laws, individuals seeking to meet the experience requirements for the social work psychotherapy privilege (authorizing insurance reimbursement for psychotherapy services) were not prevented from obtaining such experience in a practice owned by the applicant or from employing a supervisor, even though such practices were prohibited in other professions.  Professional associations and others have claimed that it was not clear that this practice should not continue after licensure laws took effect, leading to confusion in the field and a continuation of previous patterns of practice. We have more explicitly communicated the requirements in this complex area, and we are exploring solutions to ensure fair treatment of individuals who acted in good faith before the more explicit clarification.

• The implementation of licensure laws has raised a variety of other concerns related to what constitutes acceptable experience for licensure in social work and mental health practice, interpretations of scopes of practice, alternative supervision or examination, and other issues which would require changes in law or regulation.

• In considering ways in which to address the many issues that have arisen, it is, of course, necessary to ensure that the public is adequately protected through effective regulation of licensure, practice, and discipline of the professions.

              Since early summer 2008, leadership in the Office of the Professions has convened numerous meetings with the stakeholders, including the Executive and Legislative staff, State agencies, professional associations, and provider associations.  Administrative action by the Department may be undertaken to address certain issues, such as experience in unauthorized settings that appeared to be acceptable based on information provided by the Department.  However, most of the key issues, including any extension of the exemption beyond January 1, 2010 or the establishment of a process to allow not-for-profit entities to provide professional services, would require statutory amendments. The goal is to ensure the continuation of services to at-risk consumers while providing oversight and accountability for professional practice, consistent with the Board of Regents authority.

Timetable for Implementation

The Office of the Professions will continue to meet with stakeholders to address these important issues.