legislative

Julea Ward wins court ruling, while legislation bearing her name advances

by

Her religious discrimination suit is returned to a federal jury. Meanwhile, a proposed law in Michigan would allow students to refuse to treat any client they chose, out of any genuine religious or moral belief.
                                                                                                                                                                                                                                                                                                           

EMUstudentCenterYpsilantiMIJulea Ward has enjoyed two big victories so far this year.

For the first time, she won a court ruling in her case against Eastern Michigan University, which had disciplined her for refusing to provide counseling services to a gay client as part of her graduate practicum training. Just weeks later, legislation bearing her name moved forward in the Michigan legislature despite protests from universities and professional associations that the Julea Ward Freedom of Conscience Act would make it harder to effectively train mental health professionals.

In the court case, Ward’s victory was limited but it does keep her case alive. While not making a determination of the merits of the case, the 6th Circuit Court of Appeals ruled that Ward should have the opportunity to argue that her religious beliefs were used against her, according to the Associated Press. The case will be returned to a Detroit-based federal jury.

In the Michigan legislature, the House Education Committee advanced HB5040, the bill bearing Ward’s name. According to the Holland Sentinel, the bill would “prohibit religious discrimination against students who are studying counseling, social work, and psychology.” That description seems a bit narrower to me than the bill itself, which goes beyond just prohibiting discrimination: it actually prohibits universities from any disciplinary actions against students who refuse to treat clients based on “a sincerely held religious belief or moral conviction of the student, if the student refers the client to a counselor who will provide the counseling or services.”
You can keep up with the bill’s progress here: HB5040.

I wrote about Ward’s case for Family Therapy Magazine a couple of months ago (full article: Can a religious therapist refuse to treat gay and lesbian clients?). She described the events that led to her lawsuit in this video for the Christian-based legal organization that is defending her:

I’ll be writing more about HB5040 and other “conscience clause” legislation in the near future. In the meantime, the Pew Research Center offers a fascinating legal history of conscience issues in health care.

Update: About a week after this post was initially published, I posted another piece about conscience clause legislation.

# # #

Share your thoughts on this case: Email me at ben[at]bencaldwell[dot]com, post a comment below, or find me on Twitter (@benjamincaldwel).

The myth of the portable license

by

California’s new LPCC isn’t any more of a “national license” than the MFT license is: not at all. Why do rumors persist that it is?                                                                                                                                                                                                                                                                                                            

Cloth SuitcaseHere in California, we’re currently in the middle of the grandparenting period for licensed MFTs and LCSWs who want the state’s new Licensed Professional Clinical Counselor (LPCC) license. One of the most common reasons I hear from MFTs for wanting the LPCC is the notion that it, unlike the MFT, is a “national license.”

Except it isn’t.

For clarity: An LPCC license is no more of a national license than an MFT license, which is to say, neither is a national license at all. Both are state licenses only. Both professions now have licensure laws in all of the 50 United States (and DC), but for both, the licensing laws from state to state differ. How portable your license is — that is, how easily you could get licensed in a new state once you move — depends on a number of factors, including which state you move to. (For more on this, see my earlier post on MFTs and license portability.) But neither license has true reciprocity, which is automatic recognition of another state’s license.

The only reason I know of that could explain the myth of a portable LPCC license is that California’s Board of Behavioral Sciences is recognizing the National Clinical Mental Health Counselor Exam for LPCCs, while for MFTs, we use state-based exams. Admittedly, that can make moving into or out of California with an MFT license slightly more challenging: If you move into California, even if you have been licensed elsewhere for decades, you will need to take California’s MFT licensing exams. And if you move out of California, even if you have been licensed here for decades, you will need to take the National MFT Exam (many states also require a state-based law and ethics exam) to get licensed in your new home state. But the BBS has already gotten legislative approval to restructure the MFT license exam process, and is working with the folks who develop the National MFT Exam to have that exam offered and recognized in California. So that difference between the professions will hopefully be vanishing in the not-too-distant future.

There are good reasons for some MFTs to pursue the California LPCC license. Unfortunately, the ones I hear most often from MFTs as their motivators are falsehoods, and this portability issue is a great example.

If you are interested in hearing more about the LPCC license (including debunking of more myths!), differences between the philosophies of MFT and LPCC, scopes of practice, legal and workplace recognition, and much, much more, please consider attending “The California LPCC,” a presentation I’m giving with Angela Kahn, MA. Angela has helped develop the LPCC curriculum for Antioch University in Los Angeles, and is going through the grandparenting process; I helped AAMFT-CA negotiate what became the LPCC licensing bill, and I’m probably not going to go through grandparenting. So we present an informed perspective from both sides of that question. We’re giving the talk at Antioch in LA this Saturday, November 19 (that one’s just for Antioch students, faculty and alumni, so contact the school for more info or to RSVP). We’re also giving the talk in San Diego on December 3. Use this link for more information or to register: The California LPCC, Dec. 3, San Diego.

# # #

Your comments are always free to cross state lines. Offer them here, by email to ben[at]bencaldwell[dot]com, or through my easily-portable Twitter feed.

California’s complex plan to save mental health funding by slashing it

by

To balance the state’s budget, Governor Jerry Brown has proposed raiding a state fund set aside to transform public mental health care. In return, he’s promising long-term fixes to the structural underfunding of public mental health. Is it a fair trade?

          
          
          

Side View Sacramento CapitolCalifornia Governor Jerry Brown has inhereted a budget deficit estimated at $25 billion, which everyone agrees will require significant changes in state services. One fix the Governor has proposed is raiding Mental Health Services Act (MHSA, originally known as Proposition 63) funds, an idea voters rejected as a budget fix in 2009.

This time around, Brown is proposing a novel compromise: let the state raid the MHSA fund on a one-time basis, and in return mental health services will get a longer-term, structural fix to chronic underfunding. It’s an intriguing proposal.

===

Thanks to a the MHSA, a voter-approved tax on millionaires*, California currently has about $2 billion set aside specifically for the improvement of its public mental health system. This money is meant to be used to provide new and expanded services, train public mental health workers in current research-supported approaches, and generally transform the system to one that is modern, client-centered, and accountable. (By law, the money specifically cannot be used to pay for existing services, which are chronically underfunded.) Many marriage and family therapists are employed in public mental health in California, often in clinics funded by Medi-Cal.

Of course, in a budget crisis, it is easy to see how elected officials could view $2 billion sitting in the bank as a budget-solution-in-waiting. Governor Schwarzenegger proposed raiding this fund in 2009, asking voters to shift $460 million from MHSA funds into the state’s General Fund. The proposal was defeated by a landslide.

In contrast to the failed 2009 proposal, Governor Brown proposes a scheme that — at least in theory — could help the state budget in the short term and preserve mental health funding in the long term. It includes several moving parts:

  • Shifting $861 million from the MHSA reserve account to the General Fund. The shift would pay for current mental health services for the 2011-2012 fiscal year. Net impact: Bad. But could be worse. Obviously, this is a setback for planned MHSA-funded new and expanded programs, but the money would still be used to pay for mental health services, and would be a one-time shift.
  • Shifting responsibility for three mental health programs from the state to counties. The programs include Early and Periodic Screening, Diagnosis and Treatment (EPSDT); Medi-Cal mental health managed care; and special education mental health services (known to professionals as AB3632). Net impact: Unclear. “Local control” is sometimes better in concept than in reality; state administration ensures careful auditing to ensure money is being spent wisely, and consistency in program standards. County control of these services may lead to some cost savings, but those are often overstated.
  • Changing how the state funds mental health. Starting in the 2012-13 fiscal year, mental health services would be given an additional dedicated portion of state sales tax and vehicle license revenues. These are projected to grow at approximately a 6% annual rate. Net impact: Good. Currently, mental health programs are funded through a mechanism that grows at about 2% a year, according to the California Council of Community Mental Health Agencies — lower than normal inflation, and certainly not enough to account for any growth in patient population. This is a prime example of structural underfunding, which leads to ever-increasing caseloads and access-to-care problems.

All of this adds up to a proposal that has public mental health leaders more cautious than optimistic. The California Mental Health Directors Association asks a long list of good questions about the proposal, most of which are presently unanswered.

But the fact that a proposed $861 million raiding of public mental health funds is not being met with noisy protests from the agencies that rely on those funds is telling. It suggests that the proposal may have merit.

In the state’s current budget environment, we know lots of cuts will need to be made. Some of those cuts are likely to impact public mental health workers, including marriage and family therapists. Weathering the storm with a minimal amount of damage to public mental health, and even a potential long-term improvement to how it is funded, could be a very good outcome. Maybe.

===

* Background on MHSA: As Governor Brown notes in his budget proposal,

To provide additional resources for county mental health services, voters passed the Mental Health Services Act (Proposition 63) in 2004. The intent of Proposition 63 was to reduce the long‑term adverse impact of untreated mental illness by developing services or expanding existing services at the local level. To fund these resources, Proposition 63 imposed a one‑percent surcharge on personal income over $1 million.

That tax brought in $2 billion more than expected in its first four years. (The budget proposal fails to mention that since then, the MHSA has brought in less than expected due to the worsening economy.) Counties have engaged in a long-term planning process for how they would use MHSA money to transform their mental health systems; by law, MHSA money was not to be used as simply a replacement funding stream for existing services. So while the MHSA currently has about $2 billion in reserves, counties have been planning for — indeed, counting on — that money to be available.

Wyoming bill would require counseling before marriage or divorce

by

With some exceptions, three hours of premarital or pre-divorce counseling would be required. For divorcing couples, it’s good policy, even though it is unlikely to reduce divorce rates. It is much harder to justify the premarital requirement, on either a clinical or policy level.

Boutonniere-whitesuitA bill introduced in this year’s session of the Wyoming state legislature, HB0065, would require couples to attend three hours of premarital counseling before obtaining a marriage license, and three hours of marriage counseling before obtaining a divorce.

While there is little data to suggest that any three-hour process for couples already planning to split up will make much of a dent in the state’s divorce rate, requiring divorce counseling is a good idea for other reasons. Divorce education reduces conflict in the divorce process, particularly where custody is concerned (see this summary of several studies on divorce education for parents), and saves the divorcing couple as well as the public a significant amount of money in the process. Three hours is not an unduly burdensome amount, and the a judge can waive the requirement if the court finds there is “clear and convincing evidence that marital counseling will not lead to a reconciliation of the parties” — an important consideration for victims of relationship violence. Several states have adopted such programs, often similar to one called “Children in the Middle,” with good results.

The premarital counseling requirement is harder to support, either on a policy or scientific level — and this is coming from a guy who specializes in couples work (San Diego marriage counseling) and loves premarital counseling.

There is ample evidence that these relationship education programs improve communication, but it is unclear whether premarital education actually improves relationship satisfaction or stability, and there is virtually no evidence to suggest they actually have a long-term impact on divorce. (That’s primarily due to a lack of data, not studies showing failure.) A recent, thorough review in the journal Family Relations described current research on the very basic question of whether these programs work as “not as settled as program developers and practitioners might assume or like it to be.” There are at least three large-scale, federally-funded demonstration projects of premarital education (Appendix 2) underway now that should provide clearer answers.

In the meantime, these programs continue to grow because they are, in the words of one report, “popular and valued.” And there is some evidence to suggest they have a greater impact on low-income families, who do suffer from higher long-term divorce rates.

But here’s the catch. In the studies that have been done, as well as the large studies underway now, few have suggested that just three hours of education would be enough to even expect an impact. The federally-funded studies use programs of at least 24 hours of education. Most programs utilize at least 12 hours. Anything under eight hours was considered in the Family Relations review to be a “low-dosage” program.

This is why it’s so hard to get behind the premarital requirement in the proposed Wyoming law. I could see requiring 12 hours, and I can certainly understand requiring none. But three hours? It adds a hurdle to marriage, without sufficient reason to believe it will have a lasting positive impact. And while I believe quite strongly that premarital education can be effective, I cannot support requiring an amount of it that is too low to have any likely effect. Wyoming and other states should either require enough premarital education to make a lasting difference, or none at all.

Update: The bill died in its first committee in February 2011.

Can MFT interns pay for supervision?

by

Aaron Feldman is frustrated. He’s spent several months telling the BBS, AAMFT-CA, CAMFT, and anyone else who will listen that he can’t run a therapy business legally and be successful in the state of California. No one has told him he’s wrong.

The problem, which Aaron is trying to conquer while others mostly ignore, is California’s Labor Law. Depending on whom you ask, it might prohibit marriage and family therapist interns from paying their employers for supervision; if it actually does (CAMFT argues otherwise), then a significant number of clinics around the state would be in violation.

But the supervision issue could be only the beginning. Mental health clinics are no different from any other business in the eyes of state labor law. But when was the last time a clinic required its therapists to take at least a 10-minute break every two hours, or mandated a lunch break for shifts lasting beyond six hours? Each of those is a labor law requirement.

At the October 2009 meeting of the Board of Behavioral Sciences (BBS), the licensing board’s counsel was clear: Those who employ MFT interns are subject to labor laws just like any other employer, and “there is no scenario under which it would be appropriate for a supervisee to pay an employer for supervision.” The BBS has since elaborated on that position here. CAMFT has since put forth its contrasting interpretation of the law, arguing that it is perfectly legal for an intern to pay their employer for supervision, as long as the terms of the arrangement are agreed to by both parties, in writing, in advance.

It is the Labor Board‘s opinion — or perhaps ultimately a judge’s — that matters. And so far, the Labor Board has chosen to stay away from the issue, politely rebuffing requests to attend BBS meetings or issue any written statement on the question. For the Labor Board to address this issue directly, it appears, they will have to face a complaint from a disgruntled supervisee.

And that has been Aaron’s frustration. He doesn’t want to run his clinic in constant fear of becoming the test case. CAMFT has hinted that they might try to clear up the issue through legislation, but the odds of getting a bill passed if it looks in any way like a weakening of, or exemption from, state labor laws is slim.

Without a clear set of guidelines, what is an employer or agency to do? The lowest-risk approach appears to be to abide by the BBS stated opinion: Assume MFT interns, when they are employed (as opposed to volunteering), are subject to all labor laws, and act accordingly. In practical terms, this would require an employer to go the extra mile to make sure that interns are taking adequate breaks. Do not have interns pay for supervision. Ensure that, however interns’ pay is computed, it amounts to at least minimum wage once all the intern’s time (including time spent on supervision, marketing, administrative tasks, etc.) is taken into account. (Of course, I’m not a lawyer, so please do not construe this as legal advice; any employer with questions about labor law or its application should consult an attorney.)

The problem for Aaron, and anyone else trying to run a therapy business honestly, is that even if he chooses to play by all of the labor law rules, plenty of other employers are not. If Aaron abides by the labor law, he will need to either pay his employees less, or charge his clients more, than similar clinics. The extra burden could be enough to make his clinic, as a business, unsustainable. Until at least one disgruntled intern makes a test case out of it, those who disregard the labor law appear to be at a competitive advantage.