BILL ANALYSIS Ó
SB 146
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 146 (Wyland) - As Amended: June 7, 2011
SENATE VOTE : 37-0
SUBJECT : HEALING ARTS: PROFESSIONAL CLINICAL COUNSELORS
KEY ISSUE : SHOULD NUMEROUS STATUTES THAT INFORM AND GUIDE THE
PRACTICE OF MENTAL HEALTH PROFESSIONALS, INCLUDING MARRIAGE AND
FAMILY THERAPISTS, BE REVISED TO ALSO APPLY TO PROFESSIONAL
CLINICAL COUNSELORS, A NEWLY LICENSED PROFESSION LARGELY
COMPARABLE TO MARRIAGE AND FAMILY THERAPISTS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the California
Association for Licensed Professional Clinical Counselors, would
revise numerous code sections relating to the healing arts and
mental health professionals to include licensed professional
clinical counselors, clinical counselor interns and trainees.
As of January 1, 2010, current law allows a person to obtain a
license as a professional clinical counselor, with the first
licenses issued in early 2011. However, many sections of
California law that currently apply to other mental health
professionals have yet to be revised to incorporate licensed
professional clinical counselors (LPCCs), with the result that
effective guidance for practitioners in the LPCC field is
lacking in many areas of law. Therefore, according to the
author, this bill is needed to thoroughly update and amend
relevant sections of the Codes so that LPCCs may be "effectively
utilized" in California. Because LPCCs are largely comparable
to marriage and family therapists, this bill amends assorted
code sections that currently apply to MFTs so that the same
substantive provisions and requirements would apply to LPCCs as
well. This bill was unanimously approved by the Assembly
Business and Professions Committee, and there is no known
opposition.
SUMMARY : Updates various sections of the Codes that apply to
marriage and family therapists (MFTs) to apply additionally to
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licensed professional clinical counselors (LPCCs).
Specifically, this bill , among other things:
1)Extends the psychotherapist-patient privilege to refuse to
disclose confidential information (pursuant to Evidence Code
Section1014) to the professional clinical counselor-patient
relationship, including where services are rendered by a
registered clinical counselor intern or trainee, or a
professional clinical counselor corporation.
2)Adds LPCCs to the list of licensees exempted from the general
requirement that health care practitioners communicate to
patients their name, license type, and highest level of
academic degree in writing or in a prominent display in an
area of their office visible to patients.
3)Adds LPCCs to the list of licensees which the Board of
Behavioral Sciences (BBS) must provide license status
information on the internet.
4)Adds LPCCs to the list of healing arts licensees for which
peer review procedures are established and for which peer
review bodies are required to review licensee conduct under
certain circumstances, as specified.
5)Provides that the proceedings and records of committees or
peer review bodies of LPCCs are not subject to discovery, as
specified.
6)Adds fees for rescoring an examination, issuance of a
replacement license or registration, and letter or certificate
of good standing to the list of LPCC fees, as specified.
7)Adds provisions to existing provisions law for LPCC
corporations, as specified.
8)Includes LPCCs in existing provisions of law prohibiting
monetary liability or cause of action for damages against
certain professional societies or its members acting within
the scope of functions for that society, as specified.
9)Includes LPCCs, as well as LPCC interns and LPCC trainees, in
existing provisions of law providing a cause of action against
a psychotherapist for injury caused by sexual contact with the
psychotherapist, as specified.
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10)Adds LPCCs to the existing provisions of law requiring
insurers providing liability insurance and state or local
government agencies that self-insure to report certain
settlement or arbitration awards, and requiring a licensee to
report to the board certain settlements, judgments, or
arbitration awards.
11)Adds LPCCs to the list of licensees permitted to be
shareholders, officers, directors, or professional employees
of other professional corporations, as specified.
12)Adds LPCCs to the list of eligible providers which the family
law division of the superior court may contract with for
supervised visitation and exchange services, education, and
group counseling.
13)Extends the existing provisions of law governing mental
health treatment or counseling services and residential
shelter services to minors by professional persons to LPCCs
and LPCC interns.
14)Adds LPCCs to the list of contracting providers a health care
service plan is required to provide an enrollee or prospective
enrollee, upon request, within that person's geographic area,
as specified.
15)Adds LPCCs to the list of healing arts professionals that a
health care service plan may not prohibit an enrollee from
selecting.
16)Includes LPCCs in the definition of a health care provider
and includes LPCCs in provisions of law allowing health care
providers to prohibit inspection of a minor's patient records
under certain conditions, as specified.
17)Includes LPCCs and LPCC interns in the list of professional
persons who may provide mental health treatment or counseling
services.
18)Makes technical and conforming changes to other sections of
law that currently apply to MFTs so that those sections also
apply to LPCCs and their trainees, interns, and corporations.
EXISTING LAW :
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1)Provides that a patient has a privilege to refuse to disclose,
and to prevent another from disclosing, a confidential
communication between the patient and a psychotherapist.
Existing law extends this privilege to registered
psychotherapist interns or trainees (defined to include
licensed psychologists, licensed physicians specializing in
psychiatrics, licensed clinical social worker and licensed
marriage and family therapists). This privilege is extended
to a psychological corporation, as defined, and the patient to
whom it renders professional services. (Evidence Code
Sections 1010 and 1014.)
2)Provides for the licensure and regulation of professional
clinical counselors under the Licensed Professional Clinical
Counselor Act (Act), by the Board of Behavioral Sciences
beginning January 1, 2012. The Act also regulates clinical
counselor trainees and clinical counselor interns. (Bus. &
Prof. Code Section 4999.10 et seq.)
3)Establishes peer review for certain healing arts licensees and
requires peer review bodies to review licensee conduct under
certain circumstances. Further provides that the proceedings
and records of a peer review body for the healing arts are not
subject to discovery. (Bus. & Prof. Code Section 805;
Evidence Code Section 1157.)
4)Provides that mental health professionals and others in the
healing arts, including marriage and family therapists, are
subject to the requirements and provisions summarized from (1)
to (17) above, among others.
COMMENTS : This non-controversial bill, sponsored by the
California Association for Licensed Professional Clinical
Counselors, would revise numerous code sections relating to the
healing arts and mental health professionals to include licensed
professional clinical counselors, clinical counselor interns and
trainees. As of January 1, 2010, current law allows a person to
obtain a license as a professional clinical counselor, with the
first licenses issued in early 2011. However, many sections of
California law that currently apply to other mental health
practitioners have yet to be revised to incorporate LPCCs, with
the result that effective guidance for practitioners in the LPCC
field is lacking in many areas of law. Therefore, according to
the author, this bill is needed to thoroughly update and amend
SB 146
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relevant sections of the Codes so that LPCCs may be "effectively
utilized" in California. Because LPCCs are largely comparable
to marriage and family therapists, this bill amends assorted
code sections that currently apply to MFTs so that the same
substantive provisions and requirements would apply to LPCCs as
well.
Background on the LPCC profession. According to the author,
licensed professional clinical counselors are masters and
doctoral-level mental health service providers who practice
psychotherapy and are licensed in the other 49 states. LPCCs
provide psychotherapy services to their clients over a broader
range of issues than MFTs, who tend to specialize on marital and
family relationship issues, but in many other ways LPCCs and
MFTs have comparable educational background, training, and scope
of practice. In contrast to psychiatrists and psychologists,
LPCCs and MFTs are only required to obtain a master's degree,
although a doctorate is also available.
The main difference until recently was that while there are over
30,000 licensed MFTs in California, the state did not license
LPCCs. This changed in 2009 after the Legislature passed and
the Governor signed SB 788 (Wyland and Steinberg, Chapter 619,
Statutes of 2009), which made California the last state to
provide for licensure of professional clinical counselors.
According to the author, prior to passage of SB 788, many
Californians held Masters Degrees in clinical counseling, but
because they could not be licensed in California, there was less
incentive for these degree holders to stay in California to
engage in their chosen profession.
This bill extends the psychotherapist-patient evidentiary
privilege to include LPCCs. This bill seeks to extend the
existing psychotherapist- patient privilege to LPCCs. Under
this evidentiary privilege, a patient has a privilege to refuse
to disclose, and to prevent another from disclosing, a
confidential communication between the patient and a
psychotherapist. This bill would classify LPCCs, their interns,
and trainees as a psychotherapist for the purposes of the
privilege.
The policy for having an evidentiary privilege for professional
clinical counselors "as with other privileges protecting
confidential information, is designed to serve a public purpose,
namely to encourage people to confide in their attorneys,
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clergymen and doctors all information that might lead to
professional action for their benefit." (Grey v. Superior Court
(1976) 62 Cal.App.3d 698.) Specifically, the
psychotherapist-patient privilege "is founded upon the notion
that certain forms of antisocial behavior may be prevented by
encouraging those in need of treatment for emotional problems to
secure the services of a psychotherapist. Indeed, the
legislative intent behind ÝEvidence Code Section] 1014 is
clearly in accord with the proposition that confidentiality is
the essential ingredient for successful psychotherapy." (Scull
v. Superior Court (1988) 206 Cal.App.3d 784.) Because LPCCs,
like MFT's, practice psychotherapy and provide mental health
treatment to their patients, the author contends that it is
appropriate to extend the psychotherapist-patient privilege to
LPCCs to ensure the level of strict confidentiality between the
counselor and patient that is necessary for therapy to succeed.
Further, under existing law, the privilege can be waived when
"the patient reveals a significant part of the communication
involved, or consents to disclosure, or fails to object when he
has the opportunity." (Roberts v. Superior Court of Butte
County (1973) 9 Cal.3d 330.) Under this bill, the same waiver
provisions will apply to LPCCs as they already do to other
mental health professionals, and this bill also would not affect
any of exceptions to the privilege currently allowed under
existing law.
The bill would also apply the evidentiary privilege to
communications between professional clinical counselor interns
and trainees and their patients. An intern is defined as an
unlicensed person who has earned his or her master's or doctor's
degree qualifying him or her for licensure, meets all of the
qualifications for licensure and is registered with the board.
A trainee is an "unlicensed person who is currently enrolled in
a master's or doctor's degree program . . . that is designed to
qualify him or her for licensure . . . and who has completed no
less than 12 semester units or 18 quarter units of coursework in
any qualifying degree program." (Business & Professions Code
Sections 4999.42 to 4999.46, 4999.12.) Similar allowances for
other healing arts and mental health profession interns and
trainees are already included in the evidentiary privilege,
including MFT interns and trainees.
This bill establishes similar peer review requirements and
procedures for LPCCs. Under this bill, LPCCs will be subject to
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peer review in the same manner as other mental health
professionals, including MFTs. Specifically, this bill would
establish the creation of a peer review body to review basic
qualifications, staff privileges, employment, medical outcomes,
or professional conduct of the license holders. This peer
review body is intended to ensure that patients are protected
and that professional clinical counselors are held to an
industry-wide standard of care. Additionally, the review board
will be tasked with improving regulation of the LPCC profession
and making recommendations on new trainings and professional
education in the field.
PENDING RELATED LEGISLATION : SB 363 (Emmerson) would authorize
a licensed professional clinical counselor to act as a
supervisor of a marriage and family therapy intern or trainee if
he or she meets certain training and education requirements.
This bill is currently in the Assembly Appropriations Committee.
PRIOR LEGISLATION : SB 788 (Wyland and Steinberg), Chapter 619,
Statutes of 2009, established the licensing and regulation of
professional clinical counselors in California beginning January
1, 2012.
AB 1486 (Calderon, 2008) would have required the Department of
Consumer Affairs and the Board of Behavioral Sciences to
evaluate the licensing requirements and scope of practice for
licensed professional counselors, licensed clinical social
workers, licensed educational psychologists, and marriage and
family therapists, and to submit the evaluation and any
recommendations to the Legislature by December 31, 2009. This
bill failed passage in the Senate Committee on Appropriations.
AB 894 (La Suer, 2005) would have established licensing and
regulation of professional counselors and professional counselor
interns by the Board of Behavioral Sciences. This bill was held
in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Licensed Professional Clinical
Counselors (sponsor)
California Alliance of Child and Family Services
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Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334