Legislature(2001 - 2002)
04/24/2002 01:36 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.