Legislature(2001 - 2002)
04/24/2002 01:36 PM Senate HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 245-MARITAL & FAMILY THERAPISTS
REPRESENTATIVE PEGGY WILSON, sponsor of HB 245, explained that
the measure adds the Board of Marital and Family Therapists to
the list of professionals that the Department of Community and
Economic Develop (DCED) can contract with to provide assistance
and treatment to persons who abuse alcohol, drugs or other
substances. It also increases consumer protection for Alaskans
who are seeking professional counseling. Section 2 gives the
board the authority to order a licensed marital and family
therapist to submit to a reasonable physical and mental
examination if the board has credible evidence sufficient to
conclude that the therapist's physical and mental capacity to
practice safely is at issue. Section 3 allows individual client
contact to be counted as hours toward licensing. Section 4
requires a therapist to communicate to law enforcement officers
if a victim has identified that the victim intends to do serious
harm.
CHAIRWOMAN GREEN asked where it says "must."
REPRESENTATIVE WILSON referred to Section 4 on page 3. Subsection
(a) requires confidentiality between the client and therapist
except when a threat of imminent serious physical harm to an
identified victim has been made.
CHAIRWOMAN GREEN asked if that is a requirement.
REPRESENTATIVE WILSON replied, "No, it is not a requirement. It
is just a consumer protection because without this, they wouldn't
be able to do that and yet the therapist feels that if it's a
true risk, they need to be able to have that authority."
REPRESENTATIVE WILSON went on to explain that the new language in
Section 5 (page 4, line 26) complies with the national board
language and imposes disciplinary sanctions for sexual
misconduct.
SENATOR WARD asked if Alaska statute contains sanctions for a
case in which a medical professional and a client want to marry
one year after the client/patient relationship is over.
REPRESENTATIVE WILSON did not know the answer.
SENATOR WARD said someone brought to his attention that this bill
will prevent two consenting adults from marrying for two years.
He asked if medical doctors are similarly restricted by statute.
REPRESENTATIVE WILSON said that is not the case with medical
doctors and that this only applies to family and marital
therapists.
SENATOR WARD asked where the prohibition against marrying after
the client/patient relationship is over exists in statute.
TAPE 02-32, SIDE B
MS. CAREN ROBINSON, representing the Marriage and Family
Therapists Association, said to her understanding, a similar
provision is in statute for social workers and psychologists, and
it is a national standard set out by the Marital and Family
Therapists' Association. The reasoning behind the restriction is
that a therapist has a power relationship with a client so should
wait two years after the therapist/client relationship is
terminated before having a sexual relationship.
CHAIRWOMAN GREEN asked who that applies to now.
MS. ROBINSON repeated it applies to psychologists and social
workers, and it might apply to professional counselors.
SENATOR WARD asked if a provision is in law that prohibits a
psychologist from marrying a client for two years after the
professional relationship has been terminated.
MS. ROBINSON said to her understanding yes, but she informed
members that Larry Holman, President of the Marital and Family
Therapists' Association, was available to answer questions.
SENATOR LEMAN said he reads it as a ban on sexual misconduct but
not a ban on marriage. He said he cannot imagine that the
regulations would define sexual activity within marriage as being
sexual misconduct.
SENATOR WARD said the person who contacted him said such a
provision exists.
CHAIRWOMAN GREEN said she believes it refers to the establishment
of a relationship between the time one is a patient and marries.
SENATOR LEMAN said his point is that the language in the bill
before the committee does not say that but he acknowledged that
such a ban could exist in regulation.
CHAIRWOMAN GREEN asked Representative Wilson to finish her review
of the bill while the regulations are checked.
REPRESENTATIVE WILSON explained that Section 7 requires that
before therapy begins, a client be informed of all of the facts,
including the credentials of the therapist, fee schedules and
exceptions to the confidentiality rule.
CHAIRWOMAN GREEN asked what happens if that information is not
furnished.
MS. ROBINSON replied that a client could report such a violation
to the board who would decide whether to sanction the therapist.
CHAIRWOMAN GREEN said, according to Sec. 087.63.230 on page 5,
line 9, the client may not be charged a fee for those services
unless the client was furnished a copy of a professional
disclosure statement. She said she has never received that
information from a medical professional prior to "starting a
conversation with them."
MS. ROBINSON said that provision is in the professional
counselors' statute and is the direction being taken on a
national level to provide for consumer understanding. She noted
the information could be described in a small brochure. She
believes that providing that information will protect consumers
who are often in crisis and vulnerable.
REPRESENTATIVE WILSON added that another reason for disclosure is
that marriage and family therapists are being placed under the
umbrella of many boards.
MS. CATHERINE REARDON, Director of the Division of Occupational
Licensing in the Department of Community and Economic Development
(DCED), informed members that the provisions of this bill are
identical to provisions in other occupational licensing statutes,
although not in all mental health provider statutes. This
particular disclosure statement is identical to a requirement in
the professional counselors' statute. She noted that the
profession itself believes it is a good idea to require a
disclosure statement, which is the reason it was included in the
bill. The public is, in general, less familiar with the different
types of mental health professionals, what they are buying and
how the billing systems work, therefore she believes there is a
higher need to educate patients.
SENATOR WARD asked Ms. Reardon if she could answer his question
about marriage being a violation of a professional's license.
MS. REARDON explained that several professions that are licensed
by DCED, physicians, professional counselors and marriage and
family therapists, have the right to adopt codes of ethics by
regulation. Those codes of ethics include prohibitions against
sexual contact with clients for a certain time period after
therapy is terminated. The medical statute (AS 08.64.326) does
not specify two years but it gives the board the authority to
define a time limit. The physicians' statute prohibits and
defines what sexual misconduct and it explains the conditions for
terminating a professional relationship so that a sexual
relationship would be acceptable. She felt the idea of sexual
contact after a patient is no longer seeing a physician is not as
big of a concern because the patient's psychological reliance on
the physician is not as great as it can be with mental health
professionals. Mental health professionals believe there should
be a period of time in which the "influence can wear off and they
are standing on their own two feet before the romantic
relationship begins." She repeated that although the statutes may
not specify a two year waiting period, they allow boards to adopt
codes of ethics that specify conditions.
SENATOR WARD noted the person who contacted him said there was
nothing in law that prohibits any licensed professional from
getting married to a client after the therapist/client
relationship is terminated. He asked if that is true.
MS. REARDON said she does not think that statement is not correct
for all of the mental health professions. The codes of ethics for
professional counselors and marital and family therapists that
were adopted by regulation require "cooling off" periods.
MR. LARRY HOMAN (ph), President of the Association for Marriage
and Family Therapy, told members that the ethical guidelines
written by the psychological association, professional
counselors, marriage and family therapists and social workers
require a two-year waiting period. Most likely, those
professionals would not go to jail for a violation but would lose
their licenses if they engaged in sexual conduct while in the
therapist/client relationship. However, after that relationship
is terminated, the guidelines are gray. He noted the guidelines
were designed to protect the client. He agreed that the
therapist/client relationship is quite different than a
physician/client relationship.
2:40 p.m.
CHAIRWOMAN GREEN asked what professions Mr. Homan was referring
to.
MR. HOMAN replied psychologists, clinical social workers,
professional counselors, and marriage and family therapists.
SENATOR WARD asked if the first three have a two-year waiting
period and whether that includes a ban on marriage.
MR. HOMAN said they do have a two-year waiting period, but the
guidelines do not specify a ban on marriage. He said the intent
of the guidelines is to prevent a dual relationship, meaning
personal and professional, so he does not believe, "you could get
around the marriage thing because obviously that is a personal
relationship so it would be interpreted as a personal, romantic
kind of relationship which obviously would include marriage."
SENATOR WARD asked if, by regulation, the first three professions
cannot marry a patient for two years without being in violation.
MR. HOMAN said the regulation does not specifically say they
cannot marry but he believes that is how the boards would
interpret the regulation because of the personal nature of the
relationship.
SENATOR WARD asked if the national professional boards allow
marriage.
MR. HOMAN said they [the codes of ethics] do not address marriage
specifically in those words. They address the personal, romantic
relationship that comes with a dual relationship, and he guesses
that would include marriage. He noted the marriage and family
therapist guidelines put forth by the American Association of
Marriage and Family Therapy, do not specifically prohibit
marriage but they do prohibit sexual relationship for two years
after the professional relationship has been terminated.
CHAIRWOMAN GREEN asked Ms. Reardon if the language she referred
to was in regulation.
MS. REARDON explained that the statute gives the boards the
authority to adopt codes of professional conduct. She believes
the boards adopted those codes by regulation.
CHAIRWOMAN GREEN asked Ms. Reardon to describe what she means by
a code of ethics.
MS. REARDON said a code of ethics is a written set of rules on
professional behavior. They are actually incorporated into the
regulations by reference, so although the code might not be
printed in the regulations, a document can be provided.
SENATOR WARD asked for a copy of the codes of ethics of the three
professions.
MS. REARDON offered to provide them.
SENATOR LEMAN commented that he believes marriage should
terminate the ban on sexual activity and that would be consistent
with the intent of regulating the profession. He asked
Representative Wilson for feedback on that position in the
future.
MR. HOMAN said the intent is to limit a romantic relationship
between a therapist and a client and sex is just one part. He
said one has to look at what kind of relationship is acceptable.
It has been argued that the professional should honor the power
difference in the relationship and that the rule was designed so
that a client would not be taken advantage of while
psychologically fragile and unable to use good judgment.
CHAIRWOMAN GREEN referred to lines 24 and 25 on page 4 and asked
what "engaged in unethical conduct in connection with the
delivery of professional services to clients" encompasses.
MR. HOMAN said that itemizing misconduct in the bill spells it
out more clearly, although it is also contained in the ethical
guidelines. He noted sexual misconduct is considered a very
serious breach of ethics.
MS. REARDON said professional misconduct is not limited to the
seven grounds for disciplinary sanctions listed in the bill. AS
08.63.050 says the board shall adopt a code of ethical practice
for marital and family therapy. That is most likely the
statutory authority the board would have used to adopt a code of
ethics. If a member violated the code of ethics, he or she would
be disciplined under subsection (5) on page 4, line 18 of the
bill.
SENATOR WARD said he agrees that a person is vulnerable when
under a therapist's care and should not be taken advantage of.
However, he did not know there was a law prohibiting marriage
after the professional relationship was terminated and is
surprised to find such an interpretation because he does not
consider sexual activity within marriage to be sexual misconduct.
He repeated his request for copies of the codes of ethics of the
three boards.
CHAIRWOMAN GREEN asked Ms. Reardon to supply the committee with a
rundown of the wording in statute regarding what the authority is
for the comparable professions. She said she does not see such
language in statute.
SENATOR WARD asked if the sponsor researched the question about
marriage or whether it has been asked by anyone else.
REPRESENTATIVE WILSON said that question was never raised to her.
She said the intent of the bill is to protect the consumer and
that the only time a charge would be filed is if the consumer was
hurt or violated in some way. She assumed if the relationship led
to marriage, no charge would be filed with the board.
SENATOR WARD said anyone could bring the charge to the board. He
said he does not want to sanction an improper relationship but he
is amazed to find that marriage would be illegal.
SENATOR WILKEN said he has three questions. The first relates to
Section 2 (page 2, line 6), which allows the board to order a
therapist to submit to a physical or mental examination with
cause and, according to page 5, line 2, if the therapist does not
submit, his or her license can be pulled. He said his concern is
that the words "reasonable" and "credible" invite litigation. He
asked if that is new language or similar to other statutes.
MS. REARDON said that language exists in several statutes,
although not all. She believes those words are important to act
as checks on the board. If the division was investigating a
therapist, it would ask the board to order an examination. If the
therapist objected, he or she could be summarily suspended. The
summary suspension statute says the division must provide a
hearing within 7 days because the person loses his or her license
immediately and cannot wait for a decision. At that hearing, the
division must provide credible evidence upon which the
examination was requested. She said she understands Senator
Wilken's concern but, on the other hand, when a practitioner has
developed a serious substance abuse problem or has a relapse, the
division cannot wait several months to stop the practice. Another
problem that could occur is mental illness or dementia, in which
the practitioner does not believe he or she has a problem but
outside observers believe a problem exists. A professional
assessment needs to be done to get an answer to protect the
public. She noted that provision has rarely been invoked.
SENATOR WILKEN said his second question relates to the
qualifications on page 3, line 4, and asked why the word
"individuals" was added.
MS. ROBINSON said it was added because in family situations, it
might be in the best interest of the family to have individual
sessions with each member. Those hours would be counted toward
the required 1500 hours for certification.
SENATOR WILKEN asked if therapists were able to counsel
individuals before.
MS. ROBINSON said they could not count those hours toward
licensure.
SENATOR WILKEN referred to the new language on the bottom of page
3 and asked if a therapist would be liable if he or she does not
communicate with a law enforcement officer when there is a
threat. He asked if that paragraph obligates the practitioner to
report.
MS. ROBINSON said she assumes it does not and that the idea is to
encourage the therapist when they have knowledge of a danger to
report it. That provision grants immunity from liability for
reporting. She then asked members to keep in mind, regarding
Senator Leman's position, that the job of family and marital
therapists is to work with married couples so she believes it is
in everyone's best interest that the therapist not get involved
in a sexual relationship with a family member. The goal should be
to keep the family intact and help members work through a crisis.
She said she is aware of situations where a couple got a divorce
during therapy because of sexual misconduct by the therapist. She
added that people who go to a therapist are usually in some kind
of a vulnerable situation. The therapist is in a position of
power as the family expects to get good advice.
SENATOR WARD said no one disagrees with that position but the
scenario brought to him flies in the face of common sense as it
is between two adults who were not married and who want to marry
two years after the professional relationship terminated.
MS. REARDON said the time the professional relationship no longer
exists is not black and white. Although a person may have
terminated sessions, the professional relationship may persist
for some time.
CHAIRWOMAN GREEN said looking at comparable language in the
social worker statutes regarding the reporting of a potential
danger in relationship to children says "shall." She asked Ms.
Reardon to provide her with information about whether family and
marriage therapists are required to report child or elder abuse
or threats of abuse.
SENATOR LEMAN said, in response to Ms. Robinson's comment, that
he agrees with the restriction for the reasons she stated but
that his earlier comment was an attempt to get to the issue of
whether or not marriage should terminate that ban. He said he
understands that marriage does not happen without courtship and
that could be interpreted to be in violation of that professional
standard.
CHAIRWOMAN GREEN asked members to get any additional questions to
her or the sponsor.
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