HEALTH LAW SUPPLEMENT Summer 2018

Mental health diagnosis by unlicensed staff at NYS agencies will be phased out beginning next year . For over a decade, in order to render mental health diagnoses as part of psychotherapy practice in a private setting in the State, an individual has been required to have a State-granted license whose scope included the capability to diagnose (LCSW, LMSW under supervision, PhD, NP-P or MD), or a State-granted limited permit (in one of the above-mentioned non-medical mental health professions), or be an exempt student, i.e., be enrolled in a licensure-qualifying graduate program in one of the mental health programs, and be working under supervision for academic credit at an externship that is required and approved by the academic institution. (LMHC’s, LMFT’s, LCAT’s and LPsa’s have within the scopes of their licensure the ability to “assess” even using established diagnostic critieria to do so, but not to diagnose, an unclear but stubborn distinction. Within the scopes of their practice, they may function as psychotherapists, albeit with MD consultation when treating severe mental illnesses. LBA’s may treat ASD’s when the diagnosis is made by a clinician whose scope of practice includes diagnosis of mental disorders.)
However, a “temporary” exemption from this requirement of “license, permit or student status” in order to diagnose and treat mental health disorders was granted in 2004 to State approved and State operated facilities, which are agencies with operating licenses from the Office of Mental Health (OMH), Department of Health (DOH), Office for People with Developmental Disabilities (OPWDD), Office of Alcoholism and Substance Abuse Services (OASAS), Office of Children and Family Services (OCFS) and several other State agencies (all sometimes known collectively as “the O’s).
The rationale given for this exemption by the State – that the O’s were to be permitted to hire as mental health clinicians, including with both psychodiagnostic and treatment capability, unlicensed masters-level practitioners – was that to do otherwise would cause financial strain to the agencies due to the additional salaries that would be required if they were compelled to hire only licensed staff. Although meant to be a temporary exemption until additional funding was made available, the State legislature continued renewing and extending it, the last extension occurring in 2016 and planned to be reviewed for renewal in 2021.
The exemption law and its extensions have been opposed by just about every professional association in the State, but passed repeatedly nevertheless due to a fear of budget overruns if the exemption were ended. State agencies declared that their current budgets simply did not allow for the additional cost of hiring only licensees, and legislators declined to increase their funding. Professional associations opposed the exemption for obvious guild-related reasons, but also because of the apparent double standard it represented, i.e., an implicit State policy that patients, generally of lower income, who sought mental health care from State approved agencies did not need or deserve the same level of care and protection afforded to those who sought care privately. The NASW was especially active in lobbying against the extension of the exemption, citing social justice concerns. The State’s response to this argument was that the regulatory requirements imposed on State-approved agencies, including that unlicensed clinicians be supervised by licensed staff, compensated for the lack of licensure of the therapists themselves. Those in favor of continuing the exemption in perpetuity seemed to be winning the argument. In fact, as late as 2013, Governor Cuomo stated his support for making the exemption permanent.
Now a compromise has been reached that promises a permanent resolution. No longer will the exemption need review for renewal every five years. The State legislature passed a Health and Mental Hygiene budget bill (A9507c, Part Y) on March 30th that in part removes the exemption, and in part makes it permanent. Unlicensed staff at State agencies will no longer be permitted to diagnose mental health conditions. Only LCSW’s, LMSW’s under supervision, NP-P’s, PhD’s and MD’s will be able to do that. (LMHC’s, LMFT’s, LCAT’s, LPsa’s and LBA’s will continue to be able to be hired by State agencies as non-diagnosing mental health treatment providers.) It appears however that unlicensed masters level staff will still be able to function as psychotherapists while under supervision, perhaps under the title of “psychotherapy assistants,” at least those who are “grandparented” in when the implementing regulations are issued by the State Education Department. Formal guidance by NYSED to clarify these issues is expected by Spring 2019.

LCSW’s and NP-P’s as future Worker’s Compensation Board providers. In a communique dated April 17, 2018 (Subject No. 046-105), the NYS Workers Compensation Board stated its intention to support Governor Cuomo’s proposal to expand access for injured workers to medical care providers by permitting certain medical providers who are licensed in the State to diagnose and treat but not yet able to be authorized WCB providers, to obtain that authorization. The professions that are planned to be authorized include nurse practitioners and licensed clinical social workers.

In NYS, no suspension of professional licenses for defaulting on student loans. In nineteen states, persons in default on their student loans may have their professional licenses suspended as a result. The NYS legislature in its FY 2019 Budget expressly prohibited the State from suspension for that reason, citing the “financial death spiral” created thereby. (A9507C, S 7507C)

GDPR compliance. The new “General Data Protection Regulation” of the European Union went into effect last month. Called the “right to be forgotten” law, it strengthens protection of consumer data with requirements of 72 hour breach reporting, stronger consumer consent and high fines as penalties for violations. It is applicable to business entities wherever they may be located (including in the USA) if the entity collects personal data or behavioral information from anyone in the EU.

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

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