BILL ANALYSIS Ó SB 146 Page 1 Date of Hearing: June 28, 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 SB 146 Page 2 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. SB 146 Page 3 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 : SB 146 Page 4 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 Page 5 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, SB 146 Page 6 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 SB 146 Page 7 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 SB 146 Page 8 Opposition None on file Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334