From Barclay Damon, LLP on MH Diagnostic Privilege

April 1, 2024

NYS Board of Regents Adopts Regulations on the Mental Health Diagnostic Privilege

The New York State Department of Education Board of Regents announced the adoption of regulations, effective February 28, 2024, that implement Sections 2 and 3 of Chapter 230 of the Laws of 2022. The regulations set forth the requirements for licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs), and licensed psychoanalysts (LPs) to earn diagnostic privilege beginning June 24, 2024. This privilege grants expansion of the scope of practice for those who meet the requirements, as these professionals do not have the authority to diagnose under the New York State Education Law and its implementing regulations.

On July 27, 2022, the Board of Regents established and set out the permissible practice settings, qualified supervisors, and the process for LMHCs, LMFTs, and LPs to obtain limited diagnostic permits. The regulations complement the limited permit by setting out the clinical education, experience, application, and registration requirements to obtain the full diagnostic privilege. In order to apply for the privilege, LMHC, LMFT, and LP applicants must submit an application; verification of licensure, clinical education, and supervised experience; and pay a fee. The new regulations adopted by the Board of Regents provide specific guidance on how applicants can demonstrate that they have met the clinical education and supervised experience requirements.

As set out in the Board of Regents’ initial regulations, applicants must be able to verify receipt of a 60-semester hour, or the clock-hour equivalent, master’s degree or higher and be able to demonstrate completion of 12 semester hours, or the clock-hour equivalent, of coursework that prepares the applicant to diagnose and develop assessment-based treatment plans to demonstrate that the clinical education requirements for the diagnostic permit have been met. The Board of Regents’ new regulations clarify that a post-master’s certificate will satisfy the degree requirement. Additionally, applicants who have obtained a master’s degree or higher but cannot demonstrate the 12 semester hours of specified coursework as part of their degree may submit post-graduate courses to satisfy the requirement. Acceptable coursework includes:

  • Diagnosis and assessment-based treatment planning in the practice of mental health counseling and psychotherapy
  • Assessment, evaluation, and diagnosis using accepted classification systems in the practice of mental health counseling
  • Developing and implementing assessment-based treatment plans for the provision of mental health counseling services
  • Clinical mental health counseling interventions with diverse populations

The initial regulations also provided that applicants for the privilege must be able to verify that 2,000 hours of supervised experience in diagnosis, psychotherapy, and assessment-based treatment planning has been completed in an authorized setting under the supervision of a qualified supervisor. The new regulations regarding the diagnostic privilege provide the following further clarifications for potential applicants:

Attestation From a Supervisor
Applicants licensed prior to June 24, 2024, who have at least three years of experience engaged in direct client contact that includes diagnosis, psychotherapy, and the development of assessment-based treatment plans can satisfy the experience requirement through an attestation from a supervisor. The attestation must be submitted on or before June 24, 2027. For the remaining applicants, limited diagnostic permits will allow LMHCs, LMFTs, and LPs to practice under supervision while gaining the experience required for the diagnostic privilege.

Acceptable Settings for Experience
An acceptable setting for the experience must be a location where legally authorized individuals provide services that constitute the practice of mental health counseling, marriage and family therapy, or psychoanalysis. Various types of settings are permitted by the regulations, including corporate entities and programs and services operated, regulated, funded, or approved by the New York State Office of Mental Health, Office of Children and Family Services, Department of Corrections and Community Supervision, Office of Temporary and Disability Assistance, Office for the Aging, Department of Health, or a local governmental unit, among others.

Qualified Supervisors
The experience required must be under the supervision of a qualified supervisor, who will be responsible for appropriate oversight of the services provided by the limited diagnostic permit holder. The qualified supervisor must be authorized to diagnose and provide psychotherapy and assessment-based treatment plans. Additionally, the supervisor must be licensed and registered in New York State to practice as a licensed clinical social worker, psychologist, or physician. After June 24, 2022, a LMHC, LMFT, or LP who is licensed and registered and who holds the diagnostic privilege may also serve as a qualified supervisor.

General Supervision of Limited Permit Holder
The qualified supervisor must provide general supervision to the limited permit holder, which requires the supervisor to be available for consultation, diagnosis, and evaluation when the professional services are being rendered by the limited permit holder. Additionally, the supervisor is required to exercise the degree of supervision appropriate to the circumstances but must provide an average of one hour per week to two hours every other week of face-to-face individual or group supervision. During the required supervision, the supervisor must review the limited permit holder’s diagnosis and treatment of each client under their supervision and provide oversight, guidance, and direction to the applicant in developing diagnostic, psychotherapy, and assessment-based treatment planning skills. This required face-to-face supervision can be provided in person or by technology acceptable to the department, such as secure video conferencing. Importantly, qualified supervisors may not supervise more than five limited permit holders of any type at one time.

Once the privilege has been issued, it will be valid for the life of the LMHC, LMFT, or LP unless revoked, annulled, or suspended by the Board of Regents, just like any professional license. Licensees who are issued the privilege will be required to register and renew at the same time as when the individual re-registers for practice. The privilege is essentially a separate license for diagnosing purposes. Chapter 230 also includes an exemption that will allow LMHCs, LMFTs, and LPs employed in certain settings to diagnose and develop assessment-based treatment plans until June 24, 2025, to give licensees additional time to complete the supervised experience requirements necessary to apply for the privilege. Except for this exemption, these activities would be unlawful and would be considered professional misconduct with the adoption of these regulations if performed by a LMHC, LMFT, or LP. The department may not issue the diagnostic privilege to any applicant before June 24, 2024.

The New York State Department of Education Office of Professions has not yet made the diagnostic privilege application materials available to potential applicants. Attorneys on Barclay Damon’s Health & Human Services Providers Team are available to assist LMHCs, LMFTs, and LPs as well as qualified settings and supervisors with the diagnostic limited permit and diagnostic privilege application processes and will continue to monitor any developments and best practices.

If you have any questions about the content of this alert, please contact Dena DeFazio, associate, at; Ron Oakes, associate, at; or another member of the firm’s Health & Human Services Providers Team.