BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 1101 Hearing Date: April 18,
2016
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|Author: |Wieckowski |
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|Version: |April 11, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Huchel |
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Subject: Alcohol and drug counselors: regulation
SUMMARY: Establishes the Alcohol and Drug Counseling Professional
Bureau
(Bureau) within the Department of Consumer Affairs (DCA) to
license and regulate the title protection of licensed alcohol
and drug counselors.
Existing law:
1)Establishes the DCA within the Business, Consumer Services,
and Housing Agency. (Business and Professions Code (BPC)
Section 100)
2)States that the boards, bureaus, and commissions in DCA are
established for the purpose of ensuring that those private
businesses and professions deemed to engage in activities
which have potential impact upon the public health, safety,
and welfare are adequately regulated in order to protect the
people of California.
To this end, they establish minimum qualifications and levels
of competency and license persons desiring to engage in the
occupations they regulate upon determining that such persons
possess the requisite skills and qualifications necessary to
provide safe and effective services to the public, or register
or otherwise certify persons in order to identify
practitioners and ensure performance according to set and
accepted professional standards. (BPC § 101.6)
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3)Establishes the Medi-Cal program, administered by Department
of Health Care Services (DHCS), under which qualified
low-income individuals receive health care services. (Health
and Safety Code (HSC) Section 11750)
4)Establishes the Drug Medi-Cal (DMC) program, which provides
substance use disorder services to Medi-Cal recipients. (HSC
§ 11750)
5)Allows DHCS to enter into contracts with counties for the
provision of DMC services. If a county declines to contract
with DHCS, existing law requires DHCS to contract for services
in the county to ensure beneficiary access. (HSC §11758.20)
6)Requires each county to fund the nonfederal share for DMC
services through realignment funds, as specified. (HSC
§11758.10)
7)Requires providers of DMC services to obtain certification
from DHCS to provide those services. (HSC § 11755)
This bill:
1)Establishes the Bureau within the DCA to regulate the practice
of alcohol and drug counselors.
2)States that protection of the public shall be the highest
priority for the Bureau in exercising its licensing,
regulatory and disciplinary functions. Whenever the
protection of the public is inconsistent with other interest
sought to be promoted, the protection of the public shall be
paramount.
3)Authorizes the DCA director to appoint a chief with the
approval of the Director of Finance, whose duty is to enforce
and administer the Bureau's laws.
4)Requires that the Bureau be subject to review by the
appropriate policy committee of the Legislature.
5)Authorizes the Bureau to establish necessary rules and
regulations for the administration and enforcement of this
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bill, and such laws shall be adopted, amended, or repealed in
accordance with the provisions of the Administrative
Procedures Act.
6)Establishes title protection for the title "licensed alcohol
and drug counselor" (counselor).
7)Requires an applicant for licensure to have the following
minimum requirements for licensure, which are not exhaustive:
a) Has earned a master of arts, master of science, or
doctoral degree in addiction counseling, psychology, social
work, counseling, marriage and family therapy, counseling
psychology, clinical psychology, or other clinically
focused major that requires no less than 21 semester units,
or equivalent, of addiction specific education approved by
a certifying organization recognized by the department,
from an institution of higher learning accredited by a
regional accrediting agency, or a board for private
postsecondary education.
b) Has demonstrated competence by passing a master's level
exam accepted by a certifying organization approved by the
Department of Health Care Services. (DHCS)
c) Is currently credentialed as an advanced alcohol and
drug counselor and in good standing with a certification
organization recognized by DHCS, as specified, and has no
history of revocation by a certifying organization,
licensure board, or certifying entity.
d) Establishes minimum course requirements for coursework
in psychopharmacology and physiology of addiction, clinical
evaluation and psychopathology, counseling and
psychotherapy for addiction, case management, client
education, professional responsibility law and ethics, and
supervised fieldwork, as specified.
e) Has submitted to a state and federal level criminal
offender record information search as part of a criminal
background check.
8)Establishes specified exemptions for a period of one year from
the date of accepting applications for the license for
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applicants with 12,000 hours experience.
9)Requires applicants who do not meet specified requirements sit
for the master's level exam before the first renewal period
and provide proof of passing the exam to the certifying
organization before one year after the end of the first
renewal period.
10)Establishes that a license for a counselor is valid for two
years unless at any time during that period it is revoked or
suspended. The license may be renewed prior to the expiration
of the two-year period.
11)Requires 36 hours of continuing education for license
renewal, which shall include six hours of ethics and law, six
hours of instructions on co-occurring disorders, and three
hours of cultural competency.
12)Authorizes the Bureau to revoke the license of a counselor if
either of the following occurs:
a) The licensee loses his or her credential granted by the
certifying organization.
b) The licensee has been convicted of a felony charge that
is substantially related to the qualifications, functions,
or duties of a licensed alcohol and drug counselor.
13)Establishes the license fee for a counselor license and the
license renewal fee to be reasonably related to the Bureau's
actual costs in performing its duties under this part, but
shall not exceed $200.
14)Requires the Bureau to review an applicant's state and
federal criminal history prior to issuing a license.
15)Requires the DCA to deny, suspend, delay, or set aside a
person's license if, at the time of the DCA's determination,
the person has a criminal conviction or criminal charge
pending, relating to an offense, the circumstances of which
substantially relate to actions as a licensed alcohol and drug
counselor.
16)Requires that an applicant who has a criminal conviction or
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pending criminal charge to request the appropriate authorities
to provide information about the conviction or charge directly
to the DCA in sufficient specificity to enable the DCA to make
a determination as to whether the conviction or charge is
substantially related to actions as a licensed alcohol and
drug counselor.
17)Authorizes the DCA, after a hearing or review of
documentation demonstrating that the applicant meets the
specified criteria for a waiver, to waive the criminal
background requirements if the DCA finds any of the following:
a) For waiver of a felony conviction, more than five years
has elapsed since the date of the conviction. At the time
of the application, the applicant is not incarcerated, on
work release, on probation, on parole, on post-release
community supervision, or serving any part of a suspended
sentence and the applicant is in substantial compliance
with all court orders pertaining to fines, restitution, or
community service.
b) For waiver of a misdemeanor conviction or violation, at
the time of the application, the applicant is not
incarcerated, on work release, on probation, on parole, on
post-release community supervision, or serving any part of
a suspended sentence and the applicant is in substantial
compliance with all court orders pertaining to fines,
restitution, or community service.
c) The applicant is capable of practicing licensed alcohol
and drug treatment counselor services in a competent and
professional manner.
d) Granting the waiver will not endanger the public health,
safety, or welfare.
e) The applicant has not been convicted of a felony sexual
offense.
18)States that the bill does not constrict, limit, or prohibit a
facility or program that is licensed or certified by this
state, a county-contracted alcohol and drug treatment facility
or program, or a driving-under-the-influence program from
employing or contracting with a counselor who is certified by
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a certifying organization accredited and approved by this
state, as specified.
19)States that this chapter does not require a facility or
program licensed or certified by this state, a county-operated
or contracted alcohol and drug treatment program or facility,
or a driving-under-the-influence program to utilize the
services of a licensed counselor.
FISCAL
EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is co-sponsored by the California
Consortium of Addiction Programs and Professionals, the
California Association for Alcohol and Drug Educators, and the
California Association of DUI Treatment Programs. According
to the Author's office, "Legislation is necessary to create a
simple, self-sustaining licensure program, and provide
statutory authority for strengthening the counselor
certification system in California. Modeled after the Genetic
Counselor Licensing Act, the bill would differentiate Master's
level counselors from other certified counselors. It would
restrict the use of the title 'licensed alcohol [and] drug
counselor' thereby enabling consumers and payers to readily
identify counselors capable of providing service at an
advanced level, independent from a licensed or certified
facility.
"In 2011, the Substance Abuse and Mental Health Services
Administration (SAMHSA) published national "Scopes of Practice
& Career Ladders for Substance Use Disorder Counseling."
Certifying organizations are working toward adopting a
multi-level professional career ladder for the counselors they
certify. The state issued 'license' for counselors with a
Master's degree (or higher) proposed by this bill would
establish the license level featured in the SAMSHA Career
Ladder - an important first step in creating a comprehensive
career ladder for the entire profession in California.
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"The combination of the state-licensed category established in
this bill and the envisioned privately certified counselor
categories would complete the career ladder for the entire
workforce, from entry-level individuals with a high school or
GED to those with an advanced degree."
2.Sunrise Review. The Legislature uses a "Sunrise Model" for
the purpose of assessing requests for new or increased
occupational regulation, including the creation of any new
licensing scheme or licensing entity within the DCA.
Government Code Sections 9148 et seq. require that "Prior to
consideration by the Legislature of legislation . . . creating
a new category of licensed professional, a plan for the
establishment and operation of the proposed . . . new category
of licensed professional shall be developed by the author or
sponsor of the legislation." The Code further states: "The
necessary data and other information required by this section
shall be provided to the Legislature with the initial
legislation and forwarded to the policy committees in which
the bill will be heard."
Correspondingly, the Committee Rules of this Committee require:
"Prior to hearing any bill or other measure that proposes to
create a new state licensing agency or a new category of
licensed or regulated professional, the Author or sponsor of
the legislation shall develop a plan for the establishment and
operation of the agency or creation of the new licensed
category in accordance with the requirements of Government
Code Section 9148 et seq. The plan shall include the
completion of a regulation proposal review worksheet titled
the "Sunrise Questionnaire" by the Author or sponsor of the
legislation."
This questionnaire is designed to assist proponents of new
regulatory programs to collect and organize information that
is necessary for an objective evaluation of the need and
justification for the proposal. If a new program is to be
established within the DCA or any other agency under this
Committee's jurisdiction, the Committee is better informed
based on responses in the questionnaire and in a better
position to properly evaluate and respond to the proposal.
Typically the completion of the Sunrise process is a
multi-year effort, with meetings and hearings being convened
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during the fall Interim Recess in order for the Committee to
hear testimony from the stakeholders in a legislative
proposal, including both the proponents and the opponents.
This enables the Committee to ascertain the level of need for
regulation, the type of regulation that is needed, any
impediments to adopting the proposed regulatory scheme, and
whether the proposed regulation is adequate to address the
identified level of consumer harm, and is the least onerous
way to efficiently regulate in that area.
The author submitted a Sunrise questionnaire, which has aided
this analysis, but does not fully explain the decisions made
in the current version of the bill.
According to information provided by the Sunrise
Questionnaire, California currently does not require licensure
for alcohol and drug counselors. DHCS requires certification
for alcohol and drug counselors employed by certain inpatient
programs, but outpatient treatment programs -- where 70% of
Californians seek treatment -- are not regulated by any state
agency, according to a 2008 report by the Little Hoover
Commission.
DHCS recognizes three agencies to provide certification, and
each program develops its own classroom curriculum, training,
supervisor and work experience requirements. Background
checks are not performed and there is no central repository of
counselor information, including disciplinary action taken to
suspend or revoke certification for misconduct. DHCS can
direct a certifying organization to take action against a
counselor for misconduct, but there is nothing to prevent a
counselor who has had certification suspended or revoked from
obtaining certification from another organization.
Approximately 36,000 registered or certified alcohol and drug
counselors work in 2,534 private and publicly funded drug and
alcohol programs in California. With the implementation of
the ACA, many newly-insured people are expected to seek
treatment. The federal government and insurers, meanwhile, may
impose greater standards on providers. In combination, these
developments are likely to lead to greater scrutiny of
California's system of overseeing those who provide drug and
alcohol treatment.
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According to a 2013 report by the Office of Statewide Health
Planning and Development California Workforce Investment
Board, "California is already experiencing statewide and
regional shortages and mal-distribution in many critical
mental health professions. In particular, California's
historically underfunded, Public Mental Health System (PMHS)
suffers from a critical shortage of qualified mental health
personnel to meet the needs of the diverse population they
serve, in addition to mal-distribution, lack of diversity, and
under-representation of practitioners with consumer and family
member lived experience. Healthcare reform implementation and
other key trends, such as population growth and aging, will
exacerbate these challenges."
3.Practice Act (Licensure/Scope of Practice) vs. Title Act
Protection. A practice act along with licensure confers the
exclusive right to practice a given profession on
practitioners who meet specified criteria related to
education, experience, and examination, and often is embodied
in a statutory licensing act (i.e., those who are not licensed
cannot lawfully practice the profession). A practice act is
the highest and most restrictive form of professional
regulation, and is intended to avert severe harm to the public
health, safety or welfare that could be caused by unlicensed
practitioners.
A title act and a certification or registration program, on the
other hand, reserves the use of a particular professional
(named) designation to practitioners who have demonstrated
specified education, experience or other criteria such as
certification by another organization. A title act typically
does not restrict the practice of a profession or occupation
and allows others to practice within that profession; it
merely differentiates between practitioners who meet the
specified criteria, and are authorized by law to represent
themselves accordingly, (usually by a specified title) and
those who do not. Some title acts also include a state
certification or registration program, or reliance on a
national certification or registration program, so that those
who use the specified title, and hold themselves out to the
public, have been certified or registered by a state created
or national entity as having met the specified requirements.
This entity may also regulate to some extent the activities of
the particular profession by setting standards for the
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profession to follow, and to also provide oversight of the
practice of the profession by reporting unfair business
practices or violations of the law and either denying or
revoking a certification or registration if necessary.
4.California Senate Office of Oversight and Outcomes (CSOOO)
Report. A 2013 report by CSOOO extensively examined the
current process to become an AADC, and noted some of the
systemic flaws. "California is one of only two states among
the nation's 15 largest that makes no attempt to review
counselors' criminal backgrounds. Even within California,
alcohol and drug counselors are the only health-related
profession not required to undergo these checks. Among those
who submit to screening are acupuncturists, dental hygienists,
optometrists, and veterinarians.
"In 2004, Governor Gray Davis directed the California Department
of Alcohol and Drug Programs (DADP) to come up with
regulations for certifying counselors. [Current regulations
require 30% of staff providing alcohol and drug counseling in
any program must be certified by 2010, and counselors who work
in privately-run facilities that do not receive public funds
are exempt.]"
The CSOOO cross-checked lists of counselor names against
individuals who have been excluded from receiving Medicare and
Medi-Cal payments because of misconduct, including fraud or
other criminal activity. CSOOO found several counselors who
were able to keep working despite having their registrations
or certifications revoked; they simply signed up with a
different certifying organization. The organizations are
supposed to check with their counterparts to make sure that an
applicant has not been ordered revoked by DHCS. However, the
regulation states that the check must be done only when the
organization certifies counselors, not when they register,
providing for a regulatory loophole. Regulations allow
counselors to work for five years without being certified,
meaning that a revoked counselor could go that long without
being detected. After five years, that same counselor might
be able to register with another of the certifying
organizations and keep working.
This bill is sponsored by the three accredited alcohol and
drug counselor certifying organizations approved by the DHCS.
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5.Cost of substance abuse. According to the CSOOO report,
"Substance abuse is a key driver of California's most costly
problems. As many as two-thirds of all parents who enter the
state's $19-billion child welfare system are affected by
substance abuse, while an estimated 60,000 to 70,000 children
who are born each year in California have been exposed in the
womb to alcohol, tobacco or other drugs."
"California hospitals incur $1.3 billion in costs due to
alcohol-related incidents. Studies conducted by Kaiser
Permanente in California show that the health maintenance
organization's members who sought substance abuse treatment
had medical costs more than four times that of other clients
prior to seeking treatment.
"Severe overcrowding in California's $10-billion prison system
has prompted federal judges to consider taking control of the
system away from the state. County jail policies in 20
counties are guided by court-imposed population caps, which
force sheriffs, every day, to release offenders early.
Approximately 80 percent of the offenders in these over-packed
prisons and jails are involved with substance abuse, and for
many, addiction is an integral part of their criminal
lifestyles?.
"In California, substance abuse treatment is a sound
investment. According to data collected by the state
Department of Alcohol and Drug Programs, Californians who
entered treatment in 2006 reduced their contact with the
criminal justice system by 57 percent, and the number who had
a job grew from 24,433 upon entering treatment to 30,198 upon
exiting treatment, a 24 percent increase in employment. Both
of these statistics illustrate positive results not only for
individuals and families, but also for public coffers.
"A long-term study conducted on northern California patients
in the addiction treatment system run by Kaiser Permanente,
the state's largest health maintenance organization, showed
that providing substance abuse treatment reduces the health
care costs of those struggling with addiction while adding
only minimal costs to the system. Medical care costs
decreased by $155 per month, five years after admission to
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treatment for the patients who sought help, while costs for a
comparison group remained stable. The study found that while
the average medical costs for those with substance abuse
problems was four times higher than the comparison group in
the six months before the study group was admitted to
treatment, average costs were only twice as high five years
later, even with the addition of the treatment costs."
Maximizing the effectiveness of treatment programs must begin
with confidence in the treatment provider, but the current
regulatory system for AADCs provides inconsistent consumer
protection.
6.Questions for the Committee. The Committee members and Author
may wish to consider the following issues as this bill moves
forward:
a) Independent bureau within DCA . This bill essentially
establishes an independent licensing bureau within DCA to
regulate a title protection act. If a bill only protects a
title, a bureau is not necessary for licensure or
enforcement.
The Board of Behavioral Sciences currently licenses and
regulates Licensed Marriage and Family Therapists (MFTs),
Licensed Clinical Social Workers (LCSWs), and Licensed
Professional Clinical Counselors (LPCCS) - other allied
health professionals also trained in mental and social
health services. These licenses have similar work and
experience requirements and enforcement concerns.
However, BBS has expressed resistance to adding another
license to its regulation authority due to insufficient
resources. Licensing boards are required to be
self-sustaining, and receive no General Fund money. The
Committee may wish to consider whether it is appropriate to
have a completely separate bureau to administer a license
similar to existing regulatory programs, or whether it
would be more efficient to create a committee within BBS
which could provide expert guidance while the BBS board
could continue to manage enforcement and discipline.
b) No scope of practice . This bill does not establish what
a licensed alcohol and drug counselor may and may not do,
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or how the practitioner's profession intersects with other
licensed professionals. The Author should specify what the
practice of alcohol and drug counseling constitutes.
c) Master's level education and experience requirements .
This bill creates a license for mental health treatment of
a single diagnosis - alcohol and substance abuse. This
license requires a master's level education and experience
similar to these requirements for a LPCC, MFT, and LCSW.
There is no uniform educational requirement for
certification, and many certification bodies do not require
a bachelor's degree.
The Committee may wish to consider whether the educational
and experience requirements are commensurate with the level
of expertise needed for sufficient alcohol and drug
treatment, given the current levels required for other,
similar license types that are trained to handle a myriad
of other mental health issues, and the current standards
for certified alcohol and drug counselors.
d) Criminal provisions . The Author may wish to consider
expanding the bill's consideration of felony charges.
Because the duties of an alcohol and drug counselor are not
defined, it is unclear which felonies may substantially
relate. Is murder or sexual assault permissible under
certain circumstances?
e) Builds upon a broken system . While this legislation
compliments the existing certification programs, it is
building upon a flawed system, as noted in the reports
cited above. The Author may wish to improve regulations on
the lower-levels of providers and ensure quality control
across a greater number of facilities. The Author may also
want to consider consolidating oversight of the
certification programs so that the Bureau would have
primary responsibility for determining the education
requirements for counselors.
7.Arguments in Support. Soroptimist House of Hope writes,
"California needs the same level of professionalism from our
workforce which is common in 32 states and most developed
countries. Because California does not license alcohol drug
counselors, our programs are unable to participate fully in
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funding provided for addiction treatment under the ACA. We
suffer chronic shortages of qualified staff and we contend
with tremendous turnover as talented practitioners leave the
profession to become licensed as mental health practitioners."
SUPPORT AND OPPOSITION:
Support:
California Consortium of Addiction Programs and Professionals
(co-sponsor)
California Association for Alcohol and Drug Educators
(co-sponsor)
California Association of DUI Treatment Programs (co-sponsor)
Alpha Project
Associated Rehabilitation Program for Women, Inc.
California Society of Addiction Medicine
Clean and Sober Transitional Living
Community Social Model Advocates, Inc.
Inland Valley Recovery Services
International Certification and Reciprocity Consortium
MARSTE Training
Sacramento Recovery House, Inc.
Skyway House
Soroptimist House of Hope
Strategies for Change
Sun Street Centers
Visions of the Cross, Inc.
Opposition: None on file as of April 14, 2016.
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