BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 146 (Wyland)
As Amended April 12, 2011
Hearing Date: April 26, 2011
Fiscal: Yes
Urgency: No
EDO
SUBJECT
Healing Arts: Professional Clinical Counselors
DESCRIPTION
Existing law provides for the licensure and regulation of
professional clinical counselors by the Board of Behavioral
Sciences beginning January 1, 2012. This bill would make
technical changes by updating and revising various provisions
throughout the codes relating to the practice of healing arts
and mental health professionals to include professional clinical
counselors, clinical counselor interns and trainees.
BACKGROUND
The Licensed Professional Clinical Counselor Act (the Act) was
enacted into law by SB 788 (Wyland and Steinberg, Chapter 619,
Statutes of 2009). California was the last state to allow for
the licensure of professional clinical counselors. Prior to
passage, many Californians and non-Californians held Masters
Degrees in counseling, but were unable to be licensed in
California. This provided little incentive for these degree
holders to stay in California or to come to California for work.
Prior to the passage of the Act, California only allowed for the
licensure of Marriage and Family Therapists (MFTs), which is a
very similar field of practice to professional clinical
counselors. MFTs are similarly only required to obtain a
Master's Degree, (although a doctorate is available as well) as
opposed to a Psychologist who is required to obtain a doctorate
of psychology (Ph.D.), or a Psychiatrist who must obtain a
(more)
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Doctor of Medicine (M.D.). However, MFTs, as the name
indicates, specialize in issues relating directly to marriage
and the family, whereas a professional clinical counselor covers
a broader range of issues. There are currently over 30,000
licensed MFTs in California alone. MFTs are included throughout
the California statutes relating to healing arts and mental
health professionals. Consequently, MFTs are subject to peer
review and their communications with their patients are also
protected under the existing evidentiary psychotherapist-patient
privilege which is defined to also include licensed clinical
social workers, psychologists and psychiatrists.
This bill would make various revisions to the code sections
relating to the healing arts and mental health professionals to
include professional clinical counselors, clinical counselor
interns and trainees.
This bill has been heard in the Senate Committee on Business,
Professions and Economic Development and passed out of that
committee by a vote of 9-0.
CHANGES TO EXISTING LAW
1.Existing law 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). (Evid. Code Sec.
1010.)
Existing law also extends this privilege to a psychological
corporation, as defined, and the patient to whom it renders
professional services. (Evid. Code Sec. 1014.)
This bill would extend the privilege to professional clinical
counselors, a registered clinical counselor intern or trainee,
or a professional clinical counselor corporation.
2.Existing law 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
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interns. (Bus. & Prof. Code Sec. 4999.10 et seq.)
Existing law establishes peer review for certain healing arts
licensees and requires peer review bodies to review licensee
conduct under certain circumstances. Existing law provides
that the proceedings and records of a peer review body for the
healing arts are not subject to discovery. (Bus. & Prof. Code
Sec. 805, Evid. Code Sec. 1157.)
Existing law requires certain health-related licensees to
complete training in human sexuality and authorizes the boards
regulating those licensees to adopt education and training
requirements related to chemical dependency and the assessment
and treatment of AIDS. (Bus. & Prof. Code Secs. 25, 29, 32.)
Existing law requires boards to provide specified information
on the Internet about the status of every license issued by
the respective boards. (Bus. & Prof. Code Sec. 27.)
Existing law requires liability insurers, and state or local
government agencies that self-insure specified licensees, to
report specified settlement or arbitration awards or a claim
or action for damages for death or personal injury by that
licensee's negligence, error, or omission in practice, or by
rendering unauthorized services. (Bus. & Prof. Code Sec. 801.)
Existing law requires licensees to report to the board certain
settlements, judgments or arbitration awards. (Bus. & Prof.
Code Secs. 801; 801.1 & 802.)
Existing law provides that there is no monetary liability or
cause of action against certain professional societies or its
members for an act performed within the scope of the
professional society or peer review. (Civ. Code Sec. 43.7.)
Existing law provides a cause of action against a
psychotherapist for injury caused by sexual contact with the
psychotherapist. (Civ. Code Sec. 43.93.)
Existing law requests public postsecondary colleges and
universities in California to develop standards and guidelines
for curriculum in gerontology, nursing, social work,
psychology, marriage and family therapy, and rehabilitation
therapies. (Ed. Code Sec. 66085.)
Existing law permits testimony in a criminal proceeding of a
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witness who has previously undergone hypnosis, by specified
licensees, for the purpose of recalling events. (Evid. Code
Sec. 795.)
Existing law authorizes the superior court family law division
to contract with specified providers for supervised visitation
and exchange services, education, and group counseling. (Fam.
Code Sec. 3202.)
Existing law establishes provisions regarding mental health
treatment or counseling services and residential shelter
services by specified professionals. (Fam. Code Sec. 6924.)
Existing law prohibits the license requirements of healing
arts professionals in state and other licensed governmental
health facilities from being less stringent than those of
professional personnel in privately-owned health facilities,
as specified. (Health & Saf. Code Sec. 1277.)
Existing law requires health care service plans licensed by
the Department of Managed Health Care that operate, or
contract for telephone medical advice services to ensure that
those providing those services are licensed. (Health & Saf.
Code Sec. 1348.8.)
Existing law requires health care service plans to provide,
upon request, a list of contracting providers within a plan of
enrollee's general geographic area. (Health & Saf. Code Sec.
1367.26.)
Existing law prohibits a health care service plan, or
insurance carrier from prohibiting an enrollee from selecting
certain types of licensees for mental health services.
(Health & Saf. Code Sec. 1373; Ins. Code Sec. 10176.7.)
Existing law establishes requirements governing patient
records and the responsibilities of health care providers
regarding those records. (Health & Saf. Code Sec. 123115.)
Existing law requires a person who provides mental health
services in local mental health facilities to be licensed, but
allows the licensure requirement to be waived in local
facilities for psychologists, clinical social workers, and
marriage and family therapists who are gaining experience
required for licensure. (Welf. & Inst. Code Sec. 5751.2.)
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Existing law makes certain persons mandated reporters under
the Child Abuse Neglect and Reporting Act. (Pen. Code Sec.
11165.7.)
Existing law establishes staffing requirements for mental
health regional facilities, including requiring that the staff
include a pediatrician, dentist, and marriage and family
therapist, on an as-needed basis. (Welf. & Inst. Code Sec.
5696.5.)
This bill would add professional clinical counselors, and in
most cases their interns or trainees, to the provisions
described above.
COMMENT
1. Stated need for the bill
The author writes:
�This bill] is a follow-up to SB 788 (The Licensed
Professional Clinical Counselor Act), which went into effect
January 1, 2010. The sole purpose of �this bill] is to add
Licensed Professional Clinical Counselors to the State Codes
where Marriage and Family Therapists (MFTs), a long-standing
comparable profession, are already included. These additions
are not intended to affect any existing professions included
in these Codes.
2. This bill would revise statutes relating to the healing arts
and mental health professionals to include professional
clinical counselors
Under existing law, the Board of Behavioral Sciences is
responsible for regulating the practice of psychotherapy which
includes marriage and family therapists, psychologists, clinical
social workers and starting January 1, 2012 will include
licensed professional clinical counselors. In order to become
licensed in these fields, certain educational requirements,
experience, and examinations must be completed. As a result,
several statutes are impacted by including professional clinical
counselors in the list of licensed healing arts and mental
health professionals.
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a. Psychotherapist-patient privilege
Existing law 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. This evidentiary privilege is called the
psychotherapist-patient privilege. Several mental health
professionals are included under the definition of
"psychotherapist," including most notably, for purposes of
this bill, MFTs. This privilege also applies to registered
psychological interns or trainees who also fall under the
definition of "psychotherapist" and include MFT interns and
trainees.
This bill would extend the privilege to professional clinical
counselors, clinical counselor interns and trainees. This
bill would simply revise the privilege to include a reference
to professional clinical counselors as defined by SB 788. 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, 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 �Evidence 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.) Similarly,
professional clinical counselors treat patients in need of
mental health services, thus and so the author argues that it
is imperative that there is confidentiality between the
counselor and patient in order for successful treatment to
take place.
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.) Also, under existing law, there
are certain exceptions to the privilege and this bill would
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not affect any of those exceptions currently provided for
under the law.
This 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." (Bus. &
Prof. Code Secs. 4999.42-4999.46 and 4999.12.) Similar
allowances for other healing arts and mental health profession
interns and trainees are already included in the evidentiary
privilege, most notably MFT interns and trainees.
b. Peer Review
Under existing law, the healing arts professions and mental
health professions have instituted a peer review body which
reviews basic qualifications, staff privileges, employment,
medical outcomes, or professional conduct of the license
holders. The purpose of these peer review bodies is to make
recommendations to improve the quality of service and if
necessary to improve the educational aspects of licensure.
This process is important for ensuring consumer protections.
Also, other professions employ similar peer review processes.
This bill would revise the list of healing arts professionals
subject to peer review to include professional clinical
counselors.
Support : California Alliance of Child and Family Services
Opposition : None Known
HISTORY
Source : California Association for Licensed Professional
Clinical Counselors
Related Pending Legislation :
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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 additional
training and education requirements. This bill was referred to
the Senate Committee on Business, Professions and Economic
Development and passed out of that committee on a 7-0 vote and
is currently in the Senate Committee on Appropriations.
AB 655 (Hayashi) would require a peer review body to respond to
the request of another peer review body and produce a summary of
specified information concerning a licentiate under review. This
bill has been referred to the Assembly Committee on Business,
Professions and Consumer Protection.
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 provided for the licensing or
registration and regulation of professional counselors and
professional counselor interns by the Board of Behavioral
Sciences. This bill was held in the Assembly Committee on
Appropriations.
Prior Vote : Senate Committee on Business, Professions and
Economic Development (Ayes 9, Noes 0)
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