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THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
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TO: |
The Honorable the Members of the Board of RegentsHigher Education and Professional Practice Committee |
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FROM: |
Johanna Duncan-Poitier |
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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 |
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DATE: |
April 27, 2005 |
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STRATEGIC
GOAL: |
Goal 3 |
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AUTHORIZATION(S): |
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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.