HEALTH LAW SUPPLEMENT Spring 2006

I read recently that we humans are unlike other primates in that we are territorial creatures. It’s given us an evolutionary advantage. Interestingly, the author ascribed our acquisition of the trait to social learning by our hominid ancestors from wolves, another aspect of the unique symbiosis of humans and dogs. Most of this Supplement concerns scope of practice issues coincident with the introduction of four new mental health professions in New York State this year. Boy, did we ever learn to stake out and defend turf!

Perhaps another new mental health profession: A new bill was introduced in January 2006 in the New York Assembly that would create a fifth new masters-level mental health profession, “School Psychologist.” (See A09646/S6678) (The four new professions are creative arts therapist, marriage and family therapist, mental health counselor and psychoanalyst.) For many years, certification has been required by the State Education Department in order for a “School Psychologist” to be employed by a public school in the State. However, such certification did not enable the “School Psychologist” to engage in independent private practice as a psychologist.
One might surmise that school psychologists have felt excluded by the debut of the new mental health professions. They have likely argued that it doesn’t make sense not to permit a certified school psychologist, who tests and counsels students and their parents in schools about school-related mental health issues, to do the same testing and counseling privately, at least not if such testing and counseling is permitted by other mental health professionals with similar academic and clinical credentials.
One political roadblock the bill and its sponsors may encounter concerns nomenclature: licensed psychologists, of whom doctorates are required, may object to the use of the title “Psychologist” for a masters-level profession. But there are now two tiers of licensed “social workers,” so maybe the same will happen with psychologists.

Medicare says “No” (for now) to reimbursement for MFT’s and MHC’s: The U.S. Senate passed legislation permitting marriage and family therapists and mental health counselors to bill Medicare for diagnoses of mental illness, but the legislation was ultimately rejected by a joint Senate-House committee in December 2005. The legislation had been sponsored by the American Association of Marriage and Family Therapy (AAMFT), and opposed by the American Psychiatric Association and National Association of Social Workers. The sponsor focused on the need for greater access to mental health care and the opponents cited concerns about competency to render care, but to the legislators finances were evidently paramount; the provision was cut because other expansions of Medicare reimbursement were deemed more essential.
This was the first time the AAMFT was successful, even if only temporarily, with such legislation. No doubt they’ll try again and probably eventually succeed.

Private insurance reimbursement for services by members of the four new mental health professions: Several newly licensed mental health counselors have inquired about billing insurers for their services. There’s nothing in State law that requires insurers in New York State to reimburse for services of mental health counselors (or the other three new mental health professions) but there’s nothing prohibiting them from doing so either. Similarly, there’s nothing preventing HMO’s from empaneling, or requiring them to empanel, mental health counselors (but they must state their credentialing qualifications in writing, see NY Public Health Law §4406-d). So MHC’s are advised to contact insurers and HMO’s about their policies regarding reimbursement and credentialing; my understanding is that some are including MHC’s.
New York State does have a so-called Freedom of Choice law requiring insurers to allow insureds to choose among mental health professions for out-patient psychotherapy, but that law is limited to psychiatrists, psychologists and LCSW’s with R numbers. See New York Insurance Law §3321 (l) (4). The “R” qualification added to the LCSW denotes six years of supervised experience. It may be that at some future time, the new masters level professions will institute grades of licensure, like social workers, in order for their services also to be subject to mandatory reimbursement under the Freedom of Choice law. (But see the following section; maybe the new professions are destined to remain “allied” mental health professions, rather than primary care ones.)

A court addresses scope of practice of the non-medical mental health professions and articulates a new standard of care: A joint decision by a New York Supreme Court in two very recent cases, New York v. R.R. and New York v. G.A., (New York Cty; 12/22/05, JSC B.G. Goodman) found that LCSW’s and licensed psychologists may conduct examinations of competency to stand trial even though such examinations necessarily include assessments of organic and physical symptoms. Defense counsel in these criminal cases had argued that such “biological” diagnoses were outside the scope of practice of clinical social workers and psychologists and could be made only by psychiatrists. In what was hailed as a victory by both social workers and psychologists, the judge disagreed. I would guess that it was social workers who were the happier of the two, since the judge stated that the scopes of practice of psychologists and clinical social workers, regardless of the use of different terminology, are “wholly equal;” psychologists shortly announced their disagreement with this purported equivalence.
The judge went on to distinguish the scopes of practice of licensed clinical social work and psychology on the one hand, and the four new masters level professions and licensed master social workers (LMSW’s) on the other. He stated that the latter group of professions shares a limited scope of practice such that they “may not make or render diagnoses or prognoses,” but rather may render treatment only when a diagnosis has already been made by a professional whose scope of practice permits it. The judge acknowledged that he was stating his own opinions regarding this limitation, and that the licensing laws for these professions could be read otherwise. Ultimately, this limitation, if it does or will in fact exist, must be enunciated by the New York State Education Department which has primary responsibility for interpreting licensing laws.
That wasn’t all though. This venturesome judge then pronounced what effectively is a new standard of care for licensed clinical social workers and psychologists. It’s worth an extensive quote:
This Court finds that, as a matter of law, the failure of a psychologist or licensed clinical social worker to utilize a biopsychosocial approach in the performance of diagnosis, assessment and treatment planning would constitute practice that, per se, violated the professional standard of care. The Court further finds that, as a matter of law, psychologists and licensed clinical social workers are required by their scopes of practice and the standards of care of their professions to gather information and make observations related to the physical conditions and symptoms, health history, medications (prescribed, over the counter, and complimentary (sic) and alternative treatments) utilized, substance use and abuse, and allergies of their patients as part of their initial assessments and to be alert throughout the course of treatment to mental or physical symptoms which may have physical causes or portend the existence of physical illness, new health history, medications (prescribed, over the counter and complimentary (sic) and alternative treatments) utilized, and substance use and abuse, so that these may be explored, their impact on the patient’s functioning assessed properly and treated as necessary, through referral to or consultation with other health care professionals, as indicated. The failure to do so would constitute practice that per se, violated the professional standard of care. (Italics added)
It’s been clear for two decades (since Osheroff v. Chestnut Lodge) that non-medical mental health professionals must attend to physical causes and treatments for emotional illness. Many though still treat patients utilizing a strictly psychological approach, remaining ignorant for failure to ask about, or consider biological aspects of diagnosis and treatment. To this judge at least, failure to explicitly heed these factors, and evidence such consideration in documentation, is malpractice.

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