BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:April 23, 2012 |Bill No:SB | | |1238 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: SB 1238Author:Price As Introduced: February 23, 2012 Fiscal:Yes SUBJECT: Professions: Board of Psychology: Board of Behavioral Sciences. SUMMARY: Extends until January 1, 2017, the provisions establishing the California Board of Psychology (BOP), the Board of Behavioral Sciences (BBS), and extends the term of the executive officers of the BOP and BBS. Existing law: 1)Licenses and regulates psychologists by the BOP within the Department of Consumer Affairs (DCA), and makes the BOP inoperative and repealed on January 1, 2013. (Business and Professions Code (BPC) § 2920) 2)Authorizes the BOP to employ an executive officer and makes that authority inoperative and repealed on January 1, 2013. (BCP § 2933) 3)Provides that protection of the public shall be the highest priority for the BOP in exercising its licensing, regulatory, and disciplinary functions, and whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC §2920.1) 4)Authorizes BBS, under the DCA, to license and regulate educational psychologists, social workers, marriage and family therapists and licensed professional clinical counselors, and makes the BBS inoperative and repealed on January 1, 2013. (BPC § 4990). 5)Authorizes the BBS to employ an executive officer and makes that SB 1238 Page 2 authority inoperative and repealed on January 1, 2013. (BPC § 4990.04) 6)Provides that protection of the public shall be the highest priority for the BBS in exercising its licensing, regulatory, and disciplinary functions, and whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 4990.16) This bill: 1)Extends until January 1, 2017, the provisions establishing the BOP. 2)Extends until January 1, 2017, the term of the executive officer of the BOP. 3)Extends until January 1, 2017, the provisions establishing the BBS. 4)Extends until January 1, 2017, the term of the executive officer of the BBS. FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by Legislative Counsel. COMMENTS: 1.Purpose. The Author is the Sponsor of this measure. According to the Author, in 2012, this Committee conducted oversight hearings to review 7 regulatory boards within the DCA: the Acupuncture Board, the Board of Podiatric Medicine, the Physician Assistant Committee, the Board of Pharmacy, the Court Reporters Board, the Board of Behavioral Sciences and the Board of Psychology. The Committee began its review of these licensing agencies in March and conducted two days of hearings. This bill, and the accompanying sunset bills, is intended to implement legislative changes as recommended in the Committee's Background/Issue Papers for all of the agencies reviewed by the Committee this year. This bill is one of the four "sunset bills" authored by the Chair of this Committee. According to the Author, this bill is necessary to extend the sunset date of the BOP and the BBS in order to SB 1238 Page 3 continue the regulation of psychologists, educational psychologists, social workers, marriage and family therapists and licensed professional clinical counselors in California. The continued regulation will help to ensure that the BOP and BBS's mission of protecting the public is in place for an additional four years. 2.Background of the BOP. The BOP in the DCA is responsible for implementation and enforcement of the Psychology Licensing Law; the laws and regulations related to the licensure, practice and discipline of those who are engaged in the practice of psychology in California in order to protect the public. Only licensed psychologists can practice psychology independently in the private sector in California. The Board's mission statement is as follows: "The Board of Psychology protects and advocates for Californians by promoting the highest professional standards through its licensing, regulation, legislation, enforcement, continuing education, and outreach programs." The Board regulates the field of psychology in three categories: a) Psychologists . Practices psychology independently in any private or public setting. The license must be renewed every two years, and licensees must complete 36 hours of continuing education for renewal. Requires a doctoral degree in psychology, educational psychology, or in education with a field of specialization in counseling psychology or educational psychology; to complete 3,000 hours of qualifying supervised professional experience, 1,500 of which must be accrued post-doctorate; pass the Examination for Professional Practice in Psychology (EPPP) and the California Psychology Supplemental Examination (CPSE); complete coursework in human sexuality, child abuse, substance abuse, spousal abuse, and aging and long-term care. b) Registered psychologist . A 30 month, non-renewable registration to work and train under supervision in non-profit agencies that receive government funding. Requires a doctoral degree in psychology, and 1,500 hours of qualifying supervised experience for registration. c) Psychological assistant. An annually renewed registration (for up to six years) to work and train while supervised by a SB 1238 Page 4 qualified licensed psychologist in a private setting. Intended to be a method by which an unlicensed person can perform limited psychological functions to accrue hours of supervised professional experience. Requires a qualifying master's degree in psychology, with no experience required for registration. 3.Prior Review of the BOP. The Board was last reviewed by the former Joint Committee on Boards, Commissions and Consumer Protection (Joint Committee) seven years ago (2004-2005). During the previous Review, the Joint Committee raised several issues and recommendations regarding the Board. In November 2011, the Board submitted its required Sunset Review Report to the Committee. In this report, the Board described actions that have been taken since the Board's prior review to address the recommendations of the Joint Committee. The following are some of the more important programmatic and operational changes and enhancements which the Board has taken and other important policy decisions or regulatory changes it has adopted, as well as some highlighted accomplishments: Recommended Changes Enacted by SB 229 (Figueroa, Chapter 658, Statutes of 2005). The 10 final recommendations made by the Joint Committee in 2005 were embodied in SB 299 legislation authored by the Joint Committee Chair, Senator Liz Figueroa. The changes included: extend the Board's sunset date; establish the title "registered psychologist" and increase the amount of time one can work as a registered psychologist from 24 months to 30 months; add postdoctoral placements overseen by the American Psychological Association (APA), the Association of Psychology Postdoctoral and Internship Centers (APPIC) and the California Psychology Internship Council (CAPIC) as acceptable post-doctoral placement programs; delete the obsolete term "certified" with regard to the regulation of psychology and include Canadian licensed psychologists; provide that the Board makes the final determination as to whether a degree from an accredited university, college, or professional school meets the requirements for licensure; make corrections to refer to "Ethical Principles and Code of Conduct" rather than "code of ethics;" refer to the "supplemental licensing examination" and reflect the Board's use of computer-administered examinations; accurately refers to the term of an initial license; add "retirement" to the list of reasons to place a license on inactive status. Posting Information About Non-Licensees Convicted of Unlicensed Practice on the Board's Website. The Board believes that the disclosure of a citation and fine, or conviction for unlicensed practice, would be very relevant and important to the SB 1238 Page 5 public. However, it is problematic for the Board's current IT system to allow the posting of such information in a similar place as the license verification function. According to the Board, it has aggressively sought out those in unlicensed practice through their advertising, websites and publications. The Board states that it is currently involved with the Department and IT regarding changes to its Website to disclose actions taken regarding unlicensed practice. Board Authority to Order Restitution to Consumers Who Have Been Harmed by Licensees. During the 2004 sunset review, DCA recommended that all Boards examine their authority to order restitution to consumers and develop policies to execute our authority. The Board now has the authority to order restitution, as reflected in its disciplinary guidelines. Restitution is a standard term in any case involving Medi-Cal or insurance fraud. Failure to pay restitution when ordered is considered a violation of probation. The Board also uses restitution as part of the stipulation process. New Executive Officer. Robert Kahane was appointed by the Board in March of 2006. Headquarter Relocation. In March 2008, the Board moved from the Howe Avenue complex to its current location on Evergreen Street in Sacramento. Strategic Planning. The Board has conducted a number of strategic planning sessions. In 2009, the Board began using a two-year model for its Strategic Plan. The Board is currently using a 2011-2013 plan. Probation. Approximately 51% of the Board's disciplinary actions result in probation. The average term of probation is three to five years. The Board monitors approximately 60 licensees on probation per year. Since the last sunset review, there has been a 400% increase in the number of probationers that the Board must monitor. Probationers must be adequately monitored to ensure compliance with the terms and conditions of the disciplinary order. The Board has taken a proactive approach in implementing new procedures to reduce the strain on staffing resources and improve consumer protection. In July 2010, the Board entered into the DCA master contract with Phamatech, Inc. for drug testing services. Phamatech services give the Board drug test results within 24 hours, and access to experts in the interpretation of test results. The Board has further SB 1238 Page 6 implemented a requirement for an annual face to face meeting with all probationers, resulting in fewer probation violations which represents a cost savings for the Board. 1.Background of the BBS. The BBS licenses and regulates licensed clinical social workers (LCSW), licensed marriage and family therapists (LMFT), licensed educational psychologists (LEP), and licensed professional clinical counselors (LPCC). Additionally, the Board registers associate social workers (ASW), marriage and family therapist interns (MFT Interns), professional clinical counselor interns (PCC Interns), and continuing education providers. The BBS's mission is to protect Californians by promoting consumer awareness, advocating for improved mental health services, and setting, communicating, and enforcing standards. In order to accomplish its mission, the BBS develops and administers licensure examinations, investigates consumer complaints and criminal convictions, responds to emerging changes and trends in the mental health profession legislatively or through regulations, and creates publications for consumers, students, and licensees. The BBS's statutes and regulations require a license before an individual may engage in the practice of licensed clinical social work, licensed marriage and family therapy, licensed educational psychology, and licensed professional clinical counseling. These statutes and regulations set forth the requirements for registration and licensure and provide the BBS the authority to discipline a registrant or licensee. Effective January 1, 2010, a fourth mental health profession, LPCC, was added to the Board's jurisdiction. Today, the BBS is responsible for the regulatory oversight of nearly 77,000 licensees. Current law provides for thirteen board members; six licensees and seven public members. Eleven members are appointed by the Governor, one public member is appointed by the Speaker of the Assembly, and one public member is appointed by the Senate Rules Committee. In 2010, a public member was added to the BBS and in 2012, a LPCC member was added to the BBS increasing the board composition to thirteen members, however, it is still a public majority board. 2.Prior Review of the BBS. The BBS was last reviewed by the Joint Committee seven years ago (2004-2005). During the previous Sunset Review, the Joint Committee raised several issues regarding the BBS. The following are actions which the BBS took since the last Sunset Review to address these issues. SB 1238 Page 7 Continuing Education Through Self-Study. The Joint Committee questioned whether the Board should allow licensees to fulfill all 36 hours of Continuing Education (CE) through only self-study. The Joint Committee pointed out that licensees may obtain all 36 hours of CE by visiting internet sites, accessed remotely from their home or other location, and that the licensee need only certify to the BBS that they have done this, without any further proof, and the BBS does not audit the licensee certifications. The Joint Committee raised two potential problems: a) There may exist a potential for licensees to abuse this method of fulfilling CE. b) In a profession so heavily dependent on human interaction, is it entirely appropriate that licensees be permitted to fulfill all of their CE requirements without interaction with others? The BBS conducted a random survey of licensees who renewed their licenses between October 1, 2004, and April 1, 2005, and found that of the 554 responses, only two percent (2%) completed the entire required CE through online courses. The BBS concluded that the survey indicated that the Board's licensees favor traditional, classroom style courses, but that online courses remain a useful alternative. According to BBS, the Board is currently in the process of reviewing its continuing education program. Restitution. The Joint Committee questioned whether the Board should have the authority to order restitution to consumers who have been seriously harmed by licensees. The Joint Committee raised the issue of whether the Board's authority should include the ability to request restitution in appropriate cases or in cases where there is reason to believe restitution would be substantial, or when such an award would serve the interest of justice in a particular case. BBS stated that it did not have specific legislative authority to require restitution for consumers. However, it may consider seeking restitution when negotiating a stipulated agreement. Historically, BBS indicates that it has placed more importance on consumer safety and protection, and on imposing discipline that either helps correct the problem through probation monitoring and remedial education, supervised practice, or in cases involving SB 1238 Page 8 the most serious misconduct, removes the individual from the profession by revoking their license or registration. According to BBS, the intangible nature of the services provided by Board licensees and registrants makes it difficult if not impossible to determine the monetary value of those services. The BBS recognizes there are other avenues, such as civil or malpractice actions, available to consumers who seek financial compensation from licensees who have provided services that are inappropriate or harmful. Non-licensee Notices on Website. The Joint Committee questioned whether the public would benefit by being able to learn from the Board's website of non-licensees who have been convicted of the unlicensed practice of psychology. The Joint Committee recommended the BBS should work with the DCA to determine an appropriate and efficient way to post information about non-licensees who engage in unlicensed practice. According to BBS, the current online license verification feature was programmed by the DCA's Office of Information Services, and extracts public data from the BBS's licensing records and enforcement actions from its enforcement tracking system, allowing the information to be accessed on the BBS website. The BBS states the program requires a license or registration number to be present, and does not have the ability to extract unlicensed records from the enforcement tracking system. According to BBS, since 2004, the DCA and the Board have initiated educational campaigns urging consumers to verify a practitioner's license prior to engaging in services. These efforts focus on the requirement of licensure for the service offered. The BBS believes the addition of information to the BBS's website about individuals not licensed with the BBS would cause confusion. Reorganization. Since the last Sunset Review in 2004, the BBS restructured its organization to meet its operational needs more efficiently. Following an evaluation of the BBS's operational needs and desire to improve efficiency, the BBS added a manager position in 2005 to provide oversight of the daily activities of all the BBS's programs. This allowed the EO and AEO to primarily focus on policy decisions, changes in mental health affecting the BBS's licensees and registrants, and implementing the direction of the board members. A steady growth in licensees and registrants and the addition of SB 1238 Page 9 the Licensed Professional Clinical Counselor program in 2011, resulted in a 38% increase in total staffing since 2005. Three separate units were created grouping similar or related activities together. The Licensing and Examination, Enforcement, and Administration units each are under the direction and supervision of a Staff Services Manager. Relocation. In 2005 the BBS relocated from R Street in Sacramento to its current location at North Market Boulevard. Change in Leadership. Prior to 2010, the BBS consisted of eleven board members. The addition of the LPCC program increased the composition of the Board to twelve members in 2010 (by adding a public member), and to its current makeup of thirteen members by adding a LPCC to the Board. Since November 2004, the BBS has had two executive officers. The previous incumbent served from November 2004 to November 2009. The current Executive Officer, Kim Madsen, was appointed in January 2010. Strategic Plan. The BBS revised its Strategic Plan in 2007, adopting its current mission statement to protect Californians by promoting consumer awareness, advocating for improved mental health services, and setting, communicating, and enforcing standards. The Strategic Plan was updated in 2009 to further define the BBS's goals with the inclusion of performance measures. In 2010, the Strategic Plan was revised to reflect the core functions of the BBS with the primary goal to become a model state agency and enhance consumer protection. 6.Current Issues and Problems Identified for BBS. The following are some of the major unresolved issues pertaining to the BBS, or areas of concern presented to the Committee for consideration, along with background information concerning the particular issue. Recommendations were made by Committee staff regarding the particular issues or problem areas which needed to be addressed. The BBS has 30 days to submit a response to the issues raised at the Sunset Review informational hearings on April 19, 2012. a) Issue : New license category. Background : Effective January 1, 2010, a fourth mental health profession, Licensed Professional Clinical Counselor, was added to the Board's jurisdiction. Today, the Board is responsible for the regulatory oversight of nearly 77,000 licensees. Current law provides for twelve board members; five licensees and seven public members. Ten members are appointed by the Governor, one SB 1238 Page 10 public member is appointed by the Speaker of the Assembly, and one public member is appointed by the Senate Rules Committee. In 2012, a LPCC member appointed by the Governor will be added, increasing the board composition to thirteen members. Considering that the LPCC is the newest license category, the Committee desires to know if the Board has fully implemented this new licensing category. What is the current status of training programs for LPCC candidates? What is the current status of newly licensed Professional Clinical Counselors? Have there been any challenges in this process? Is any legislation needed to assist the Board in overseeing the training and/or licensing process for LPCCs? Recommendation. The BBS should provide an update to the Committee on the current status of the LPCC category including information about training programs, licensed LPCCs and any challenges to implementing this new license category. The BBS should also indicate if any legislation needs to be proposed in order to help the BBS more effectively oversee this facet of the profession and serve the professional interests of licensees. b) Issue : Does the BBS have adequate authority to oversee the course content of continuing education providers? Background : The BBS requires each licensee to complete 36 hours of continuing education (CE) every two years, in or relevant to, the licensee's field of practice in order renew the license. CE courses must be obtained from either: i. An accredited or state-approved school. ii. A professional association, licensed health facility, governmental entity, educational institution, individual, or other organization approved by the BBS. CE course content must be applicable to the practice of the particular profession, must be related to direct or indirect patient care and must incorporate one or more of the following elements related to the licensed discipline: i. Elements fundamental to the understanding and practice of the profession. ii. Elements in which significant recent developments have occurred. SB 1238 Page 11 iii. Elements of other disciplines that enhance the understanding or the practice of the discipline of the licensee. BBS regulations outline the requirements for CE Provider (Provider) approval by the Board. In order to be approved by the Board, a Provider must meet the Board's course content and instructor qualification. Provider approval must be renewed every two years. A Provider must apply for renewal by submitting the appropriate form and paying the required $200 fee. A Provider with an expired approval is prohibited from presenting courses for credit to BBS licensees, and licensees are unable to use CE courses from a Provider whose approval has expired in order to meet the CE requirement. Provider approvals that are not renewed within one year after expiration may not be renewed and will be cancelled. Cancelled providers will need to apply for a new provider number by submitting the Continuing Education Provider Application and application fee. For FY 2010/2011, the BBS indicates there were 2,528 approved providers and 185 delinquent approvals. Current law outlines broad course content requirements for CE courses, and requires the Provider to ensure that course content and instructor qualifications criteria are met. The BBS may revoke or deny a provider application for good cause, including: a criminal conviction, failure to comply with the licensing law, or making a misrepresentation of fact in information submitted to the BBS. Though the BBS does not have explicit authority to review course content, the Board may audit provider records to ensure compliance with the CE requirements, including the requirement that a Provider ensure that the course content and instructors teaching courses meet the specified criteria. The law gives the Board authority to revoke or deny a Provider based on not ensuring quality of content, however, it does not allow the Board to approve or deny specific courses offered by a Provider. Language expressly permitting the review of course content and instructor qualification relates only to an initial Provider approval application. This review of coursework content and instructor qualification does not extend to renewal or maintenance of a Provider's approval. A recent case illustrates need for the BBS to review its process for approving CE Providers, and make appropriate changes to its SB 1238 Page 12 procedures, or recommend legislative changes to its CE requirements. In July of 2011, the BBS began receiving complaints from the public regarding the BBS approved CE Provider, the National Association of Research and Therapy of Homosexuality (NARTH). The BBS received hundreds of emails from individuals protesting the approval of an organization that offers "reparative" or "conversion" therapy for individuals that have unwanted homosexual tendencies. NARTH was approved by the Board as a CE Provider in 1998. As of November 1, 2010 NARTH had not renewed its Provider Approval and is currently unable to provide CE courses to the BBS licensees for credit. Since that time NARTH's approval remained expired for more than one year and can no longer be renewed, and has been cancelled by the BBS. In order to become a CE Provider, NARTH would have to apply for a new Provider authorization from the BBS. One of the primary factors in this issue is that NARTH has advocated the use of "reparative" or "conversion" therapy. Conversion therapy (also called reparative therapy or reorientation therapy) is a type of sexual orientation change effort that attempts to change the sexual orientation of a person from homosexual or bisexual to heterosexual. The American Psychological Association defines conversion therapy as "therapy aimed at changing sexual orientation." The American Psychiatric Association states that conversion therapy is a type of psychiatric treatment "based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his/her sexual homosexual orientation." Both the American Psychiatric Association and the American Psychological Association have rejected the concept of conversion therapy for therapists. However, the approval of an organization advocating conversion therapy, such as NARTH, by the BBS drew the attention of the public and a number of Legislators. Since that time, BBS staff has met with Legislative staff to discuss the provider approval process and deficiencies in the process. Concern has been expressed over the approval of NARTH and the provider approval process. The BBS states in its November Sunset Report that at its October 13, 2011, Policy and Advocacy Committee (BBS-PAC) meeting, committee members discussed needed changes to the regulations that set forth requirements for Providers. Additionally, BBS-PAC members discussed the possible need to transition to a continuing competency model for licensure renewal. The BBS-PAC recommended SB 1238 Page 13 that the BBS create a Continuing Education sub-committee to conduct meetings with stakeholders, professional associations, and experts in continuing competence programs to determine the best possible solutions in moving forward with a restructure of the continuing education program. Recommendation : The BBS should report to the Committee its current assessment of changes that may need to be made to the requirements for CE Providers, and advise the Committee on any legislative changes that should be made. The BBS should further work with the stakeholders in the profession and in the Legislature to make the appropriate procedural, regulatory or legislative changes to its CE program. a) Issue : Why is staff turnover rate so high? Background : Historically, the BBS has had very little staff turnover. Currently, the BBS has authorization for 43.3 staff positions and 3.3 blanket positions. The Governor's Hiring Freeze (Executive Order B-3-11) and the past Executive Orders for the Furlough Programs were adversely impacted the Board's recruitment efforts and operations. The BBS currently has eight vacancies and has initiated recruitment efforts to fill the following positions: 1 Staff Services Manager I, 1 Special Investigator, 1 Associate Governmental Program Analyst, and 5 Office Technicians. Recruitment efforts were not successful under the recent hiring freeze constraints. The majority of the vacancies are in the BBS's licensing and cashiering unit. The time of the year when the BBS sees an increase in the application volume has recently passed. Consequently, as a result of the ongoing vacancies, the BBS's processing times increased. The BBS was legislatively mandated to license and regulate a new mental health profession, Licensed Professional Clinical Counselor, established by Senate Bill 788 (Wyland, Chapter 619, Statues of 2009), starting January 1, 2010. The Board staff faced challenges implementing this new licensing program with the existing vacancies and significant delays in filling positions specifically created for the LPCC licensing program. The Committee understands the impact that the recent hiring freeze has had on the BBS. However, it would be helpful to explain why so many vacancies exist. Has a survey of departing staff been conducted to ascertain why they left? What are the efforts to fix the problems that led to the vacancies? What are the plans to hire new staff and what are the impediments to SB 1238 Page 14 accomplishing this task? Recommendation : The BBS should report the current status of vacancies and newly hired staff to the Committee. The BBS should review the nature of the remaining vacancies and report to the Committee its plan to fill the vacancies. b) Issue : Webcasting meetings. Background : In 2010 two BBS committee meetings were available via webcast. The Committee is concerned about the BBS's lack of use of technology in order to make the content of the BBS meetings more available to the public. Webcasting is an important tool that can allow for remote members of the public and/or those who are disabled to stay apprised of the activities of the Board as well as well as trends in the professions. Recommendation : The BBS should utilize webcasting at future Board meetings in order to allow the public the best access to meeting content and to stay apprised of the activities of the BBS and trends in the professions. 7. Current Issues and Problems Identified for BOP. The following are some of the major unresolved issues pertaining to the BOP, or areas of concern presented to the Committee for consideration, along with background information concerning the particular issue. Recommendations were made by Committee staff regarding the particular issues or problem areas which needed to be addressed. The BOP has 30 days to submit a response to the issues raised at the Sunset Review informational hearings on April 19, 2012. a) Issue . Will the BOP be able to fill vacant positions? Background : As with other regulatory boards, the Board of Psychology has been working within the limitations of the current fiscal emergency and the resulting Executive Orders. As a result, the BOP has experienced a number of vacancies and encountered considerable difficulty in filling the vacancies due to the hiring limitations. As a small board without any redundant positions, all vacancies directly affect the productivity and timeliness of the BOP's processes as the workload resulting from these vacancies must be absorbed by remaining staff. Effective January 2011, the BOP received additional budget approval through the DCA's Consumer Protection Enforcement Initiative SB 1238 Page 15 (CPEI) to hire 2 investigators, 2 medical consultants, and one limited term analyst, bringing its staffing level to 19.5 authorized positions. The BOP has worked with DCA Office of Human Resources (OHR) to fill these CPEI positions. Although these positions were funded in January 2011, the BOP had been unable to fill them due to the hiring freeze implemented in August 2010. Though the BOP continues to improve its timeliness, vacancies reduce the amount of progress that can be made. At the time of its November 2011 Report, 41% of the BOP's allotted positions (or 8 positions), including the positions that were granted as a result of the CPEI, were vacant. Also, because of the classification level of some of these positions, the BOP indicated that it has received disappointingly low interest from potential candidates to fill those positions. Recommendation : The BOP should inform the Committee of its current staffing levels. Are there current staff vacancies? What are the current challenges to fill vacant positions? What has been the effect of the staff vacancies on the BOP's operations? b) Issue . Are regulatory or legislative changes needed regarding telehealth or the online practice of psychology? Background : The BOP states in its Report that the issue of the practice of psychology by alternative methods such as telephone and online psychotherapy has recently moved to the forefront of issues facing the profession of psychology. The BOP states that California, along with many other states and provinces, are beginning to look seriously into this topic and how it affects consumers. The BOP acknowledges that there are many issues regarding providing psychological services electronically across state lines, such as the location of the recipient of the services and the location of the provider; however, there are many other issues regarding the provision of psychological services electronically within California that the BOP needs to address first. These issues include, but are not limited to, safety, security, informed consent, and ethical practice. The BOP has considered conducting a symposium and inviting various individuals and organizations knowledgeable about telehealth, including the Association of State and Provincial Psychology Boards (ASPPB) which is currently developing guidelines that SB 1238 Page 16 could be useful for all psychology licensing jurisdictions. The California Psychological Association (CPA) has offered to partner with the BOP in this endeavor. The BOP is aware of the urgency of this issue, as there are licensees who are currently practicing telehealth, and the BOP will be determining if regulations regarding this issue are necessary to protect consumers of psychological services in California. According to the BOP, whether legislation or some basic regulations are needed is yet to be determined. There are many similar discussions in other jurisdictions regarding telehealth. Since this delivery of mental health services will encompass much more than our state, the BOP states that efforts must be made to ensure that consumers are not harmed if receiving services from another jurisdiction. Working with the other jurisdictions (boards) in assessing what is needed for the best practice in teleheath will also benefit the California consumer when they leave the state. Telehealth would allow the continuation of therapy without interruption due to proximity to the practitioner. Recommendation : The BOP should update the Committee on its evaluation of whether regulations or legislation are needed regarding telehealth or the online practice of psychology. c) Issue . Are there regulatory or legislative changes which should be made regarding unaccredited schools? Background : The BOP states that California is the only state which allows students from unaccredited schools to sit for psychology licensing examinations. All other states require students to be from accredited institutions, accredited by either a regional or national accrediting body. This leaves California as an outlier in the profession, and stands as an impediment to the BOP entering into any reciprocity agreements with other states. The BOP indicates that the lack of reciprocity with other states is a barrier to full participation by California-licensed psychologists in national issues. The BOP also would like all psychologists and students in California to be included in national organizations, able to be accepted into internship placement programs and have the ability to become licensed in other states. These limitations are among many which those practitioners from California, who attended an unaccredited school, will be subject to. SB 1238 Page 17 According to the BOP, it is currently monitoring statistics and passing rates. The BOP has recently sent out letters to all national organizations questioning their reasoning regarding the limitations they have set for those who have not attended accredited institutions. With the re-establishment of the Bureau for Private Postsecondary Education (BPPE), the BOP is hopeful that these unaccredited institutions, while having their students continue to apply for licensure, will be held accountable within the new regulations, to the minimum standard of notifying those students, prior to attending, of the limitations of their graduation and degree from a non-accredited program. BPC § 2914 of the requires each applicant for licensure to possess a doctoral degree in psychology, educational psychology, or in education with a field of specialization in counseling psychology or educational psychology from a regionally accredited educational institution in the United States or Canada, or from an educational institution in California that is approved by the BPPE. It provides that applicants for licensure trained in an educational institution outside the United States or Canada shall demonstrate to the satisfaction of the BOP that he or she possesses a doctorate degree in psychology that is equivalent to a degree earned from a regionally accredited university in the United States or Canada. There are currently 6 schools approved by the BPPE that meet the educational criteria to qualify for licensure. The BOP has no authority over school approvals or their operation and curriculum. The BOP feels very strongly about full disclosure in regards to the restrictions an unaccredited degree program in psychology has on California students in regards to mobility and membership in various professional organizations and programs within the profession. AB 611 (Gordon, Chapter 103, Statutes of 2011) set forth certain disclosure requirements pertaining to accreditation status, licensure, and related limitations for unaccredited doctoral programs. Recommendation : The BOP should inform the Committee of its current efforts regarding the issue of unaccredited schools. To what extent are California students being harmed by this issue? Is there a way for the BOP to better inform potential students of the differences between attending an accredited versus an unaccredited school and to keep a list of both? Are there regulatory or legislative changes that need to be made regarding unaccredited schools? What can be done to enhance the ability of California's licensed psychologists to have reciprocity with SB 1238 Page 18 other states? d) Issue . What is the status of the BOP's efforts to ensure the continued competency of its licensees? Background : The BOP requires each licensee to complete 36 hours of continuing education for each two-year license renewal. The BOP reports that it averages a 92% compliance rate of licensee compliance with the continuing education requirements, and that most noncompliance issues deal deficiencies in submitting the proper documentation of the completed continuing education courses. The BOP additionally states that it has also discussed continued professional development/competency for licensed psychologists. The BOP states that continued competency has been an issue on the agenda for the BOP's Committee on Contemporary and Emerging Issues for the past several board meetings. The Committee has been looking at how licensees can demonstrate competency beyond continuing education. In 2011, the Committee on Contemporary and Emerging Issues recommended referring this topic to the BOP's Continuing Education Committee. The BOP stated that the Committee would review models regarding continued professional development/competency created by the Association of State and Provincial Psychology Boards and the American Psychological Association at the November 2011 board meeting. The BOP states that it is also planning to partner with the California Psychological Association to address this developing issue. Recommendation : The BOP should discuss with the Committee its efforts to date to address continuing competency, and what it expects to accomplish in near future regarding this issue. e) Issue : What is the status of pending regulations? Background : The BOP has reviewed and implemented a number of rulemaking changes since the previous sunset review. The two regulatory packages noted above were "pending" at the time the Sunset Report was submitted to the Committee. The BOP should update the Committee about the status of these two regulatory proposals, especially the regulations which would streamline and augment the BOP's enforcement processes. This regulatory proposal is in response to the DCA's request to implement regulations to enhance the BOP's mandate of consumer protection. The DCA launched the Consumer Protection Enforcement SB 1238 Page 19 Initiative (CPEI) to overhaul the enforcement processes used by healing arts boards within the Department, in order to reduce the average enforcement completion timeline from 36 months to between 12 and 18 months. The regulations implement certain elements that were reflected in SB 1111 (Negrete McLeod) from 2010, and SB 1441 (Ridley-Thomas, Chapter 548, Statutes of 2008). The former DCA Director encouraged the boards in the Department to develop regulatory changes, as needed, to implement the changes that could be adopted through the regulatory process. The regulations would make the following changes to enhance the BOP's mandate of consumer protection: i. Delegate authority to the executive officer to approve settlement agreements for revocation, surrender, or interim suspension of a license or registration. ii. Delegate authority to the executive officer to order an applicant or licensee to submit to a physical or mental examination if it appears the person may be unable to safely perform licensed duties and functions due to physical or mental illness. iii. Clarify the authority of the executive officer to deny an application if the applicant is unable to safely practice, based on the review of the evaluation report. iv. Prohibit "gag clauses" in civil settlement agreements that forbid a party from contacting, cooperating with, or filing a complaint with the BOP, or that require a person to withdraw a complaint filed with the BOP. v. Define as unprofessional conduct failure to provide the BOP with copies of documents within 15 days of receipt of a request. vi. Define as unprofessional conduct the failure to cooperate and participate in any BOP investigation pending against a licensee or registrant. Recommendation : The BOP should inform the Committee of the current status of the proposed regulations relating to delegation of functions to the executive officer and regarding unprofessional conduct for licensees. 7.Related Legislation. In the current legislative session, other SB 1238 Page 20 sunset review bills to be presented before the BPED Committee include: SB 1236 which deals with the Board of Podiatric Medicine and the Physician Assistant Board. SB 1237 which deals with the Board of Pharmacy and the Court Reporters Board. SB 1239 which deals with the Acupuncture Board. SUPPORT AND OPPOSITION: Support: Board of Behavioral Sciences Board of Psychology Alameda County Psychological Association California Psychological Association- Independent Practice Division Contra Costa Psychological Association Los Angeles County Psychological Association Marin County Psychological Association Monterey Bay Psychological Association Redwood Psychological Association Sacramento Valley Psychological Association San Joaquin Valley Psychological Association San Mateo County Psychological Association Opposition: None on file as of April 18, 2012 Consultant:Le Ondra Clark