April 26, 2021
Senator Harckham has agreed to sponsor legislation that would delay the effective date of the sunset of the clinical practice exemption.
The Senate introduced the practice exemption extender bill today. The bill is: S06378.
The Rationale document (pasted directly below) was written by John Tauriello, Esq. who represents a number of BH clients in his government relations practice at Brown & Weinraub including ASAP and the NY Psychotherapy and Counseling Center.
Rationale for Delaying the Sunset of the Clinical Practice Exemption in mental hygiene facilities
History: In 2002, the Education Law was amended to establish the professions of “licensed master social worker” and “licensed clinical social worker;” define the practice of psychology; and created four new professions under the title of Mental Health Practitioners (mental health counselors, marriage and family therapists, creative arts therapists, and psychoanalysts).
However, the statutory “scopes of practice” of these various professions were written so broadly, that they included many of the tasks and activities performed by trained staff without professional licenses, who are working in hundreds of facilities under the oversight and jurisdiction of state agencies, including the Department of Mental Hygiene, OCFS, etc. Therefore, a clinical practice “exemption” was created in state law to ensure that such staff may continue to perform their jobs in such facilities.
Clinical Practice Exemption Expires on June 24, 2021. The clinical practice exemption expires on June 24, 2021. Direct care staff hired before that date are “grandfathered” and will continue to be exempt. However, staff without professional licenses, who are hired after June, 24, 2021, are not exempt and will be limited regarding what tasks and functions they can provide to patients and clients, even while assisting licensed professionals as part of a multi-disciplinary team.
The State Education Department has not provided sufficient clarity, either in regulation or guidelines, regarding what tasks, activities and services can or cannot be performed by staff hired after June 24, 2021 who do not possess a professional license. This is true even when these staff are “assisting” licensed professionals as part of multidisciplinary teams.
Activities and Functions that SED asserts are limited to Licensed Professionals:
For a full understanding of this issue, it is important to note that there are five functions or activities, that SED asserts can only be performed by licensed professionals. They are: 1) diagnosis, 2) psychotherapy, 3) treatment other than psychotherapy, 4) patient assessment and evaluation, and 5) assessment-based treatment planning.
The SED issued guidelines (http://www.op.nysed.gov/surveys/mhpsw/guidelines-implement-%20party-chapter57-laws%20of%202018.pdf ) and regulations that slightly helped to clarify those activities that can and cannot be performed by non-licensed staff. However, there remains significant uncertainty as to whether some of the duties of staff who do not possess professional licenses, are or will be considered to be within the restricted scopes of practice of licensed professionals.
For example: 1) Will staff without licenses (hired after June 24, 2021) be able to lead or even assist other treatment team members in group sessions? 2) Will such staff be able to continue to provide all of the services listed in the treatment plan that they have been providing?
Importantly, the 2018 law spelled out 15 tasks and activities* that do not require professional licensure (listed at the bottom of this note*). Most of the 15 activities listed are so simplistic in nature that they provide little clarity regarding what unlicensed staff can and cannot do, for example, handing out paper questionnaires or making observations and reporting on those observations, etc.
Perhaps the most important activity is #14 which states that staff without professional licenses may do the following:
14.directly delivering services outlined in the service plan that are not clinical in nature but have been tailored to an individual based on any diagnoses such individual may have received from a licensed professional.
Item # 14 will be central to interpretations by SED because the other listed permitted activities are so simple and basic, that #14 will be the lynchpin regarding whether Staff without professional licenses will be able to perform their duties.
The required August 23, 2020 Report to the Governor, Legislature and SED, by affected state agencies, has never been issued:
The affected State agencies were required to analyze the current law, guidelines and regulations issued by SED and determine to what extent there needed to be additional guidance, statutory change, or financing. Specifically, the report was required to include the following important analysis and findings:
“…..all matters where any individual agency objects to or has concerns regarding regulations or guidance issued by the department pursuant to subdivision one of this section; a projected fiscal impact or effect of any regulations or guidance on each executive agency; identification of licensed professions shortage areas under each executive agency; identification of appropriate rate, policy, or legislative changes that may address workforce shortages in licensed professions or access to services; an analysis and identification of the need for resources and investment to fortify the state’s mental health workforce; an identification of barriers to hiring licensees…..”
As of Tuesday, March 23, 2020, this report has still not been issued.
Conclusion: One year delay of the expiration of the Exemption::
It is vitally important that in this time of the COVID pandemic, and the concomitant behavioral health and social consequences of the pandemic, that the state’s behavioral health safety net be able to adequately staff and fund these vital programs and services.
Given that the fact that the required state agency report, analyzing the status of these already overwhelmed behavioral health programs, is seven months overdue, we strongly recommend that the effective date of the sunset of the clinical practice exemption be delayed for one year, until June 24, 2022.
Tasks and Activities that can be performed by non-professional staff: