HEALTH LAW SUPPLEMENT Spring 2022

Termination of the “agency exemption” in New York State and possible expansion of the scope of licensure of certain mental health practitioners. Licensed mental health practitioners, a statutorily defined category of masters level clinicians that includes mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts are not licensed to diagnose mental and emotional disorders. Education Law Sections 8402-8405. Rather, in a distinction with symbolic significance but without much general practical difference, their scope of licensure allows them to “assess” and “evaluate” most such disorders, including using DSM and ICD criteria in making their assessments. An exception is “severe mental illnesses” as defined by State statute ( Education Law Section 8407.1); that law restricts mental health practitioners from treating the severely mentally ill without first consulting with a physician. In contrast to mental health practitioners, licensed clinical social workers and psychologists (as well as nurse practitioners in psychiatry and psychiatrists of course) have within their scopes of licensure the capability of diagnosing and treating all mental and emotional disorders with verbal and behavioral interventions. Unlicensed persons may not diagnose or treat such disorders unless they are otherwise “authorized” to do so under supervision; that authorization extends only to limited permit holders and student interns.

However, the above limitations regarding diagnosis and treatment that are imposed on mental health practitioners and the above prohibitions placed on unauthorized unlicensed persons in private practice settings have not been imposed at “exempt settings,” that is programs operated, regulated, funded, or approved by the Department of Mental Hygiene (OMH, OPWDD & OASAS), Department of Health, Office of Children and Family Services and some other State agencies. At such settings, currently, mental health practitioners may diagnose and treat all mental and emotional disorders and so may unlicensed unauthorized persons, though those in the latter category must be supervised by licensed personnel, 14 NYCRR 599.9.

Exempt settings and their representatives have argued that their exemption is necessary because without it they would be unable to staff and fund their programs and would suffer a “workforce crisis,” e.g., see the website of The Coalition for Behavioral Health. Professional associations have generally taken the opposite position, arguing that “it is discriminatory to provide two tiers of mental health services determined by whether it is a state funded program or reimbursed through private pay.” Website of the New York Society for Clinical Social Work, Legislative News.

The “agency exemption” was first passed in 2002, and was meant to be temporary. Nevertheless, it has been extended without interruption since then, most recently by Chapter 159 of the Laws of 2021. However, the extension is scheduled to expire on June 24, 2022. Starting then, as it is in private practice settings, an individual will need to be licensed or authorized in order to be employed in a State program and will be limited by the scope of their licensure. The loss by State programs of their exemption will not affect individuals who were hired prior to June 24, 2022 and who will be allowed to continue in employment at such programs.

A response to the termination of the agency exemption has been the introduction in the New York State legislature of bills to expand the scope of licensure of three types of mental health practitioners, LMHC’s, LMFT’s and LP’s, (for some reason, LCAT’s are excluded) to include the specific ability to “diagnose and to develop assessment-based treatment plans” once they take twelve credit hours of continuing education in those topics or provide evidence of having conducted such activities at State programs previously, See A.6008-A/S5301-A.

Expansion of the scope of practice of licensed behavior analysts (LBA’s) in New York State . Heretofore, licensed behavior analysts were permitted to provide their services only to “persons with autism and autism spectrum disorders and related disorders.” (ASD’s) NY Education Law Section 8802. Also under that law, LBA’s could provide their services only “pursuant to a diagnosis and prescription… from a person who is licensed or otherwise authorized to provide such diagnosis and prescription pursuant to a profession enumerated in this title…” Persons licensed to provide such diagnosis include physicians, nurse practitioners, clinical social workers and psychologists.

On December 31, 2021, Governor Hochul signed a bill significantly expanding the scope of practice of LBA’s. Now LBA’s may provide their services to all “individuals with behavioral health conditions that appear in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association…” not just to those with ASD’s. New York State Bill A3523/S1662. The new law also added a new requirement that LBA’s consult annually with the diagnostician/prescriber of their services, i.e., “licensed behavior analysts providing services pursuant to a prescription or order… shall provide a report at least annually regarding the status of the individual served to the licensed person prescribing or ordering such service or more frequently, if needed, in order to report significant changes in the condition of the individual.” (ibid). The new law takes effect in June 2023.

Is an in-person visit currently necessary before prescribing a controlled substance in New York State? As of now, under federal regulations there continues to be a national public health emergency caused by COVID, see https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx That emergency preempts the requirement of the federal Ryan-Haight Act that an in-person visit is necessary prior to a physician or other prescriber prescribing a controlled substance, see “Telemedicine” at https://www.deadiversion.usdoj.gov/coronavirus.html . A federal bill has been introduced that would extend the waiver of the Ryan-Haight Act another two years, the Telemedicine Extension and Evaluation Act.

However, a regulator at the New York State Bureau of Narcotic Enforcement recently informed me that it is the Bureau’s opinion that the State has never waived its requirement of such a preliminary in-person examination. The regulator cited 10 NYCRR 80.63, which in pertinent part at (d)(1) reads “No controlled substance prescription shall be issued prior to the examination of the patient by the practitioner except as otherwise permitted by this subdivision,” and at (d)(4) “A practitioner may prescribe a controlled substance to his or her patient after review of the patient’s record if the record contains the result of an examination performed by a consulting physician or hospital and such record warrants the prescribing.” Apparently the Bureau reads “examination” as necessarily being in-person. In my experience, many psychiatrists are ignorant of this interpretation by State regulators.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFIC ASPECTS OF YOUR SITUATION.

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