THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

 

TO:

The Honorable the Members of the Board of Regents

Higher Education and Professional Practice Committee

 

FROM:

Johanna Duncan-Poitier

 

SUBJECT:

Proposed Amendment to the Rules of the Board of Regents Relating to Definitions of Unprofessional Conduct in the Social Work and Mental Health Practitioner Professions

 

DATE:

April 27, 2005

 

STRATEGIC GOAL:

Goal 3

 

AUTHORIZATION(S):

 

 

Executive Summary

 

Issue for Decision

         

The issue for decision is whether to amend section 29.2 of the Rules of the Board of Regents and add two new sections, 29.15 and 29.16, attached.   Supporting materials for this proposed amendment to the Rules of the Board of Regents are available upon request from the Secretary to the Board of Regents.

 

Proposed Handling

 

          The proposed amendment is being submitted for approval at the May 2005 meeting of the Board of Regents.

 

Procedural History

 

The proposed amendment was discussed at the March 2005 meeting of the Board of Regents.  A Notice of Proposed Rule Making concerning the proposed amendment was published in the State Register on March 2, 2005.   An Assessment of Public Comment is attached. 

Background Information

 

The amendment establishes definitions of unprofessional conduct in the practice of the licensed professions of licensed master social work, licensed clinical social work, creative arts therapy, marriage and family therapy, mental health counseling, and psychoanalysis.  Licensees found guilty of unprofessional conduct, as defined, would be subject to professional discipline by the State Education Department. 

 

Recommendation

 

          I recommend that the Board of Regents take the following action:

 

VOTED: That section 29.2 of the Rules of the Board of Regents be amended and that sections 29.15 and 29.16 of the Rules of the Board of Regents be added, as submitted, effective June 9, 2005.

 

Timetable for Implementation

 

          The effective date of the proposed amendment is June 9, 2005.

 

 

 

 

Attachment

 

 

PROPOSED AMENDMENT TO SECTIONS 29.2, 29.15, AND 29.16 OF THE RULES OF THE BOARD OF REGENTS PURSUANT TO SECTIONS 207, 6504, 6506, 6509, 7701, 7702, 7708, 8402, 8403, 8404, 8405, and 8407 OF THE EDUCATION LAW RELATING TO DEFINITIONS OF UNPROFESSIONAL CONDUCT IN THE SOCIAL WORK AND MENTAL HEALTH PRACTITIONER PROFESSIONS

ASSESSMENT OF PUBLIC COMMENTS

A Notice of Proposed Rule Making concerning the proposed amendment was published in the State Register on March 2, 2005.  Below is a summary of the written comments received during the public comment period, and the State Education Department's response:

COMMENT: Proposed Regents Rule section 29.15 should require the licensed mental health practitioner to obtain a medical consultation for a patient when:  the licensee believes the patient has a serious mental illness; the patient currently is being treated for a serious mental illness or reports a prior history of serious mental illness or hospitalization for a serious mental illness within the past 10 years; or the patient reports a prior psychiatric hospitalization within the past 10 years.

RESPONSE: The proposed regulation closely follows the requirements of section 8407 of the Education Law.   Regents Rule 29.15 makes it unprofessional conduct for a licensed mental health practitioner to provide mental health services on a continuous and sustained basis for specified serious mental illnesses, without a medical evaluation of the illness by and a consultation with a physician regarding the illness.  The proposed regulation is adequately prescriptive, and the Department plans to issue guidelines to provide additional guidance to licensees. 

The suggestion that a medical evaluation and consultation should be required if the patient reports a prior history of serious mental illness or hospitalization for a serious mental illness within the past 10 years or a prior psychiatric hospitalization within the past 10 years is unduly restrictive and beyond the requirements of section 8407 of the Education Law.  

COMMENT:  Regents Rule section 29.15 should require the physician who performs the medical evaluation to be a psychiatrist because psychiatrists are qualified by education and training to diagnose and treat mental illness.

RESPONSE:  As stated above, Regents Rule section 29.15 follows the requirements of section 8407 of the Education Law.  For defined serious mental illnesses, section 8407 requires the licensed mental health practitioner to obtain a medical evaluation of the illness by a physician and to consult with the physician regarding the illness.  The statute requires the medical evaluation to be conducted by a physician.  It does not require the physician to be a psychiatrist.  The proposed rule is consistent with the statutory requirement. 

COMMENT: If the patient seeking treatment from a licensed mental health practitioner refuses to secure a medical evaluation when directed to do so, section 29.15 of the Regents Rules should provide that the licensed mental health practitioner must discontinue treatment. Furthermore, if the recommendation of the medical evaluation is that the person needs medical care and treatment, and the patient does not follow such recommendation, the Regents Rule should provide that the licensed mental health practitioner must discontinue treatment. These provisions are essential to prevent circumvention of the statute.

RESPONSE:  Education Law section 8407 prohibits a licensed mental health practitioner from providing mental health services on a continuous and sustained basis for specified serious mental illnesses, without a medical evaluation of the illness by and a consultation with a physician regarding the illness.    Section 29.15 of the Regents Rules mirrors the language of section 8407.  It defines such conduct as unprofessional conduct in the practice of the licensed mental health practice professions.   Therefore, as to the first point of the comment, it would be unprofessional conduct for the licensed mental health practitioner to treat the patient for the prescribed serious mental illnesses on a continuous and sustained basis without the medical evaluation and consultation.

As to the second point, in a situation where the patient refuses to accept a medical recommendation, the licensed mental health practitioner would have to determine whether he or she is competent to continue to provide treatment.  This judgment would be made after the licensed mental health practitioner has met his or her obligation to consult with a physician regarding the illness.  Regents Rules already require licensees to ensure that they are practicing within the scope of practice of their license and are competent to provide the rendered services (See, Regents Rule Section 29.1[a]][9])    

COMMENT: Regents Rule section 29.15 does not provide adequate guidance on when and how often the required medical evaluations must take place.

RESPONSE:  The proposed Regents Rule follows the requirements of Education Law section 8407, requiring that a medical evaluation must take place prior to treatment of the patient for prescribed serious mental illnesses on a continuous and sustained basis.  The regulation is adequately prescriptive.

COMMENT: Regents Rule section 29.15 does not prescribe what a licensed mental health practitioner must do if a patient refuses medical evaluation or denies consent for the consultation with a physician.

RESPONSE:  The Regents Rule is clear that it would be unprofessional conduct for the mental health practitioner to treat a patient for a serious mental illness on a continuous and sustained basis without a medical evaluation of the illness by and a consultation with a physician on the illness.  Therefore, it would be unprofessional conduct for a licensed mental health practitioner to treat such a patient who refuses medical evaluation or denies consent for the consultation. 

COMMENT: Regents Rule section 29.15 does not define the phrase "on a continuous and sustained basis," and it is unclear what this phrase means.

RESPONSE:   The Department does not believe it to be reasonable to establish a fixed standard, which establishes for all cases when treatment is considered to be "on a continuous and sustained basis."   This will depend upon the circumstances of individual cases.  The Department is planning to issue guidance information on this issue.  

COMMENT: Regents Rule section 29.15 does not define what triggers the determination that the patient has a serious mental illness.

RESPONSE:  It is within the scope of their practice for licensed mental health practitioners to assess and evaluate patients to identify and evaluate dysfunctions and disorders for purposes of providing appropriate services.  Based upon such evaluations, licensed mental health practitioners will determine whether the medical evaluation by and consultation with a physician is necessary for the treatment of a serious mental illness.

COMMENT:  We are concerned that the statutory exemptions from the licensure requirements in the social work professions for employees prescribed in paragraphs (e) and (f) of subdivision (5) of section 7706 of the Education Law are being used by licensed master social workers to unlawfully provide clinical social work services, when they do not meet the requirements of the exemptions.  The Regents Rules should address this problem.

RESPONSE:  Paragraphs (e) and (f) of subdivision (5) of section 7706 of the Education Law provide limited statutory exemptions to licensure in the social work professions for certain employees performing clinical social work services on September 1, 2004.   The Rules of the Board of Regents already define as unprofessional conduct the practice of a licensed profession beyond the scope of practice permitted by law (See, section 29.1[a][9] of the Regents Rules).   A licensed master social worker unlawfully using the exemption to provide clinical social work services would be practicing beyond the scope of practice permitted by law.  Therefore, the Regents Rules already address this issue, and it is unnecessary to make the suggested change.  

COMMENT: We are concerned that licensed master social workers who are lawfully providing clinical social work services under supervision are failing to obtain the informed consent from patients advising them that the licensed master social worker may provide the clinical social work services only under supervision.  

RESPONSE: Section 7701(1)(d) of the Education Law authorizes the licensed master social worker to provide clinical social work services under supervision, and section 74.6 of the Regulations of the Commissioner of Education establishes the qualifications for supervisors and the frequency of supervisory sessions.  The statute does not require patients to be advised that the clinical social work services may only be provided by the licensed master social worker while under supervision, and the Department does not believe it necessary to impose this additional requirement.

COMMENT: We believe that section 29.15 should specifically set forth time frames and steps a mental health practitioner must take when seeking physician consultation for treating patients with serious mental illnesses, when a patient declines medical evaluation, and when a patient declines to follow suggestions for medical treatment.  Failure to do so creates a potential for harm to patients.

RESPONSE:  The State Education Department believes that section 29.15 is adequately prescriptive.  It closely follows the requirements of section 8407 of the Education Department and adequately protects against harm to patients.  The Department plans to issue guidelines to provide additional guidance to licensees for meeting the requirements of section 29.15. 

COMMENT:  We believe that regulation relating to physician consultation for patients with serious mental illnesses should be included as part of the regulations which govern licensing and practice rather than in the definitions of unprofessional conduct.  This will make the requirements readily available to licensees who look to these regulations for guidance.

RESPONSE:   The Department disagrees.  The proposed regulation is appropriately located in definitions of unprofessional conduct in the licensed professions.   It will be readily available to licensees in a section of Regents Rules, specifically entitled, "Special Provisions for the Professions of Creative Arts Therapy, Marriage and Family Therapy, Mental Health Counseling, and Psychoanalysis."

COMMENT: The regulation should require the licensed mental health practitioner who is treating a patient with a serious mental illness on a continuous and sustained basis to have a written consultation agreement with a physician that would specify procedures for treatment and that would be submitted to the Department for review and approval.

          RESPONSE:   Education Law section 8407 does not require the mental health practitioner who is treating a patient with a serious mental illness on a continuous and sustained basis to have a written consultation agreement with a physician.  It requires the licensee to consult with the physician and the physician to complete a medical evaluation of the illness.  The proposed regulation is consistent with this statutory requirement.  The Department believes that requiring a written consultation agreement is overly prescriptive and beyond the requirements of section 8407 of the Education Law.

AMENDMENT TO THE RULES OF THE BOARD OF REGENTS

Pursuant to sections 207, 6504, 6506, 6509, 7701, 7702, 7708, 8402, 8403, 8404, 8405, and 8407 of the Education Law.

1. Section 29.2 of the Rules of the Board of Regents is amended, effective June 9, 2005, as follows:

29.2 General provisions for health professions.

(a) Unprofessional conduct shall also include, in the professions of:

acupuncture

athletic training

audiology

certified dental assisting

chiropractic

creative arts therapy

dental hygiene

dentistry

dietetics/nutrition

licensed practical nursing

marriage and family therapy

massage therapy

medicine

mental health counseling

          midwifery

occupational therapy

occupational therapy assistant

ophthalmic dispensing

optometry

pharmacy

physical therapist assistant

physical therapy

physician assistant

podiatry

psychoanalysis

psychology

registered professional nursing

respiratory therapy

respiratory therapy technician

social work

specialist assistant

speech-language pathology

[Except] (except for cases involving those professions licensed, certified or registered pursuant to the provisions of article 131 or 131-B of the Education Law in which a statement of charges of professional misconduct was not served on or before July 26, 1991, the effective date of chapter 606 of the Laws of 1991):

(1)   . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) . . .

(9) . . .

(10) . . .

(11) . . .

(12) . . .

(13) . . .

(b) Unprofessional conduct shall also include, in those professions specified in section 18 of the Public Health Law and in the professions of acupuncture [and massage] , creative arts therapy, marriage and family therapy, massage therapy, mental health counseling, and psychoanalysis, failing to provide access by qualified persons to patient information in accordance with the standards set forth in section 18 of the Public Health Law. In the professions of acupuncture [and massage] , creative arts therapy, marriage and family therapy, massage therapy, mental health counseling, and psychoanalysis, qualified persons may appeal the denial of access to patient information in the manner set forth in section 18 of the Public Health Law to a record access committee appointed by the executive secretary of the appropriate State Board. Such record access review committees shall consist of not less than three, nor more than five members of the appropriate State Board.

2.  Section 29.15 of the Rules of the Board of Regents is added, effective June 9, 2005, as follows:

29.15 Special provisions for the professions of creative arts therapy, marriage and family therapy, mental health counseling, and psychoanalysis.

Unprofessional conduct in the practice of creative arts therapy, marriage and family therapy, mental health counseling and psychoanalysis shall include conduct prohibited by sections 29.1 and 29.2 of this Part and, in accordance with section 8407 of the Education Law,  shall also include:

(a) in the case of treatment of schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder, panic disorder, obsessive-compulsive disorder, attention-deficit hyperactivity disorder and autism, providing any mental health service for such illness on a continuous and sustained basis without a medical evaluation of the illness by, and consultation with, a physician regarding such illness. Such medical evaluation and consultation shall be to determine and advise whether any medical care is indicated for such illness;

(b) prescribing or administering drugs as a treatment, therapy, or professional service in the practice of his or her profession; or

(c) using invasive procedures as a treatment, therapy, or professional service in the practice of his or her profession.  For purposes of this subdivision, invasive procedure means any procedure in which human tissue is cut, altered, or otherwise infiltrated by mechanical or other means.  Invasive procedure includes, but is not limited to, surgery, lasers, ionizing radiation, therapeutic ultrasound, or electroconvulsive therapy.

3.  Section 29.16 of the Rules of the Board of Regents is added, effective June 9, 2005, as follows:

29.16 Special provisions for the social work professions.

Unprofessional conduct in the practice of licensed master social work and licensed clinical social work shall include conduct prohibited by sections 29.1 and 29.2 of this Part and, in accordance with section 7708 of the Education Law, shall also include:

(a) prescribing or administering drugs as a treatment, therapy, or professional service in the practice of his or her profession; or

(b) using invasive procedures as a treatment, therapy, or professional service in the practice of his or her profession.  For purposes of this subdivision, invasive procedure means any procedure in which human tissue is cut, altered, or otherwise infiltrated by mechanical or other means.  Invasive procedure includes, but is not limited to, surgery, lasers, ionizing radiation, therapeutic ultrasound, or electroconvulsive therapy.