BBS Updates

May 22, 2014

Jill Epstein, JD
Executive Director

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A. Election of Board Officers for 2014-2015
Christina Wong was selected as Chair and Debrorah Brown was selected as Vice Chair. These officers will start their term at the August, 2014 Board meeting.

B. Executive Officer Compensation
The Board Members discussed the program changes since 1999 to determine if these changes demonstrate sufficient reasons to request an increase in the Executive Officer’s range for compensation.

The Board voted to submit a letter to the Director of Consumer Affairs requesting that DCA forward the Board’s request to CalHR to increase the Executive Officer’s compensation to the next appropriate level.

C. Budget
The 2013/2014 budget for the Board is $8,240,648. As of March 31, 2014, the Board has spent $5,126,675 reflecting 62% of the total budget.

The Board’s loan balance to the General Fund is $12.3 million dollars. The Board is scheduled to receive a $1.4 million dollar loan repayment this fiscal year. This repayment will leave a General Fund loan balance of $10.9 million dollars.

The Board’s proposed budget for fiscal year 2014-15 is $9,139,000 and increases Board staffing levels from 42.5 positions to 50 positions. The Board’s request for additional staff remains in the Governor’s budget as proposed, even after the May revise of the budget. The budget language authorizing the additional 7.5 positions to the Board staff requires the Board to submit statistics to the legislature regarding enforcement and licensing on annual basis through 2018. The Board congratulated the staff on the positive outcome of the May revise and the BBS thanked the professional organizations, including CAMFT, for sending letters of support to keep the positions as requested.

D. Operations/Personnel
Board management recently completed interviews to hire five of the eight positions in the Governor’s 2014-15 budget. The new hires began with the Board in May. The remaining three positions will be hired after July 1, 2014 and will be assigned to the Enforcement Unit. Of the five positions added, three positions were added to the Licensing Unit, which allows the Board to begin efforts to reduce its processing times. Currently, MFT registrations are taking about 14 days. The MFT Exam Evaluation unit is currently taking 8.5 months to process applications. In past sixty days, the Exam Evaluation processing time has been cut by nearly three months as new staff have been added.

The LMFT unit now has four positions (up from two positions) dedicated to evaluate LMFT examination eligibility applications. The LCSW unit will have three positions (up from 1.5 positions) to evaluate LCSW examination eligibility applications. The two other new positions were added to the Enforcement Unit.

The initial release of the BreEZe system was implemented earlier in 2014. There will be two additional releases. The first one will be mid-May and the second one in August. Board staff continues testing to confirm that the functionality issues are resolved prior to each release. The August release is expected to include the ability to renew licenses online and the BBS has committed to providing an online tutorial to assist licensees with that process.

BBS has begun outreach activities once again. In addition to participating in several NASW, CALPCC, and AAMFT-CA events, Board staff presented an update on BBS activities to the members of CAMFT-Orange County Chapter.

The Board received its usual 3rd quarter spike in MFT Intern registration applications (1589 applications). Processing time for the quarter was 39 days, just slightly above the average processing time.

E. Strategic Plan Update
Management staff met with SOLID training solutions in February 2014 to complete the final step in the 2014-2017 strategic planning process - identifying the tasks that are necessary to accomplish each objective in the strategic plan. Of particular interest is the goal of identifying and implementing improvements to the licensing process to decrease application processing times and the steps being taken to automate calculations and improve training for new evaluators.

F. Supervision Committee Update
In November 2013, the Supervision Committee was appointed to conduct a holistic review of the current requirements for supervised work experience and requirements for supervisors. The Committee anticipates submitting its recommendations to the Board in 2016. The Committee met in April and CAMFT’s minutes from the meeting can be found here. The next Committee meeting is scheduled for June 27, 2014. The Board discussed adding another member to the Committee to represent LCSWs or LMFTs since their supervision requirements are similar and they represent the majority of BBS licensees.

G. Legislation
AB 809 (Logue) – Healing Arts: Tele Health – This bill corrects the problem of requiring consent prior to every instance of telehealth by making an amendment that states that the initial consent applies during a specified course of health care and treatment. It also may correct the problem of the health care provider needing to be at the originating site (the site of the patient) when consent is obtained. It allows the health care provider initiating the telehealth at the originating site to obtain the verbal or written consent, and then transmit the consent to a distant-site health care provider who will be performing the course of telehealth treatment. It remains unclear what action is needed if there is not initially a
health care provider at the originating site (site of the patient). In a conversation with the author’s office, a staff member noted that they are planning additional amendments to this bill prior to its hearing in the Senate Health Committee in June 2014.

This bill is an urgency measure, which means it would become effective immediately upon signature by the Governor.

A task force on Technology/TeleHealth was suggested for discussion at a future meeting.

The Board voted to support the bill.

AB 1843 (Jones and Gordon): Child Custody Evaluators: Confidentiality. This bill seeks statutory authority to access a child custody evaluation report for the purpose of investigating allegations that one of its licensees, while serving as a child custody evaluator, engaged in unprofessional conduct in the creation of the report.

The Attorney General (AG’s) office prepared an informal legal opinion evaluating the situation for the Board. The opinion stated the following:

  • The law is uncertain regarding whether a child custody evaluation may lawfully be obtained by a DOI investigator. The AG’s office writes that while there is uncertainty as to whether the Legislature intended to include DOI investigators as state law enforcement officers in
    FC §3025.5, it appears that it intended to limit the definition to those law enforcement officers who are actively participating in the custody or visitation proceeding (i.e. closely involved in the proceedings).
  • The AG’s office recommends that “In light of the uncertainty in the law regarding whether DOI investigators are considered law enforcement officers under this code section (3025.5), and in the interest of saving the Board the time, expense, and uncertainty of petitioning the court for court orders permitting the disclosure of 730 reports in each and every case….” FC §3025.5 should be amended to specifically identify licensing boards and their agents/investigators as parties the report may be disclosed to. They also recommended that the law should specify certain safeguards, including that the report may only be used to pursue disciplinary action against licensees, as well as confidentiality provisions.

This bill recently passed the Assembly Judiciary Committee. CAMFT expressed concern that subject matter experts be seated on the review panel and that the reports are kept confidential and will continue to participate in the stakeholder process.

AB 1505 (Garcia) – Child Abuse: Mandated Reporter. This bill would specify that consensual acts of sodomy and oral copulation are not acts of sexual assault that must be reported by a mandated reporter, unless one party is over age 21 and the other is under age 16.

DCA issued a legal opinion that found that CANRA does not require a mandated reporter to report incidents of consensual sex between minors of a similar age for any actions described in PDC Section 11165.1, unless reasonable suspicion of force or abuse. BBS Counsel supports addressing this issue in law to clarify the confusion on this topic.

This bill, however, does not have the votes to get out of Appropriations. A stakeholder process will likely be convened in 2015 and the bill will be re-introduced.

The discussion was tabled and staff was directed to participate in the stakeholder process.

AB 1702 (Maienschein) – Professions and Vocations: Incarceration – This bill would provide that an individual who as satisfied any of the requirements needed to obtain a license while incarcerated, who applies for license upon release from incarceration, and who is otherwise eligible for the license, shall not be subject to a delay in processing the application or denial of the license solely based on the prior incarceration, expect when incarceration was for a crime substantially related to the qualifications of the business or profession.

The bill is an effort to reward rehabilitation. However, all applicants with criminal background are sent to Enforcement Division for review of the facts and nature of the crime, which causes inherent delays. Delays can run from several weeks to several months.

The Board voted to support if amended to exclude the BBS from the bill.

AB 1775 (Melendez) – Child Abuse and Neglect Reporting Act: Sexual Abuse - This CAMFT-sponsored bill adds “downloading” or “streaming” or “accessing through any electronic or digital media” a film, photograph, videotape or recording, negative or slide of a child engaged in an obscene sexual act to the definition of sexual exploitation for purposes of mandated reporting under CANRA. While the law mandates a mandated report for printing or copying of these materials, the law does not specifically mention “downloading”.

CAMFT noted that law enforcement organizations are in support.

The Board voted to support the bill.

AB 2058 (Wilk) – Open Meetings – This bill would make an advisory body consisting of less than 3 members subject to Bagley-Keene Open Meeting Act if the body is a standing committee with a continuing subject matter jurisdiction or has a meeting scheduled fixed by formal action of a state body. This is an urgency statute and would become effective immediately if signed by Governor.

The concern is that some state agencies are holding meeting with 2 members to avoid the Open Meeting Act. BBS does use 2-member standing committees to address Board issues requiring in-depth discussion and analysis. No action is taken by these Committees and no minutes are posted, though the meetings are noticed. All recommendations of 2-member standing committees are sent to a full Committee and Board, which are open meetings.

The Board voted to support this bill.

AB 2165 (Patterson) – Professional Vocations: Licenses - This bill would require licensing boards to review licensing applications within 45 days, and to issue a license within that 45 days if the applicant meeting licensing requirements. The bill also requires a test be offered at least 6 times a year.

This bill has since died.

AB 2198 (Levine) –Mental Health Professionals: Suicide Prevention Training. This bill would require certain mental health professionals to complete a one-time training in suicide assessment, treatment, and management as part of their continuing education.

Many licensees will have already taken coursework that fulfills this requirement, either as part of their master’s degree program, or as a separate course. The Board suggested providing author’s office with information showing that the issues are included as core curriculum for BBS licensees.

All professional associations, including CAMFT, expressed concerns about adding additional mandatory courses as continuing education requirements and questioned whether this is better addressed in graduate school and whether the bill would accomplish its goals. A stakeholder group was never convened by the author to address concerns raised by these groups.

The Board supports the concepts of this issue, but cannot support the bill at this time. The Board voted to Oppose, unless amended. The Board will request that the author convene a stakeholder group, to include psychiatrists and county and school professionals, and also request consideration of technical issues.

AB 2213 (Eggman) : LMFT and LPCC Out-of-State Applicant Requirements. The BBS Out-of-State Education Committee worked to create new out-of-state requirements that better accommodate license portability, while still maintaining consumer protection. The resulting proposal makes changes to the practicum requirements for out-of-state applicants, as well as allows them to remediate certain coursework through continuing education, instead of requiring all coursework to be from a graduate program.

This BBS-sponsored bill has passed the Assembly Business, Professions, and Consumer Protection Committee and has been referred to the Assembly Appropriations Committee.

AB 2396 (Bonta): Expungement: Licenses - This bill would prohibit the Board from denying a license solely based on the applicant having certain types of convictions that have been expunged.
Penal Code Sections 1203.4, 1203.4a, and 1203.41 allow for the expungement of certain convictions after a specified length of time and fulfillment of the court’s punishment. Expungement is not available for certain sex offenses, and for those who were sentenced to prison. The purpose of this bill is to reward rehabilitation and reduce employment barriers for those with criminal records who have been rehabilitated.

Currently, licensing law for each of the Board’s four license types contain a provision in the unprofessional conduct section allowing the Board to deny a license or registration if the applicant has been convicted of a crime substantially related to the qualifications, functions, or duties of a licensee. These sections state the Board may deny the license or registration regardless of whether the conviction has been expunged pursuant to Section 1203.4 of the Penal Code.

According to BBS staff, if the Board were to support the bill, the Board would no longer be able to deny a license based on a conviction if it had been expunged. The Board would instead have to "prove-up" a case, essentially conduct its own investigation, to move forward with any kind of adverse action against the applicant.

Although the Board wants to reward those who rehabilitate, the concern is ultimately consumer protection and Board members feel that expungement of a conviction is not necessarily indicative of rehabilitation.

The Board voted to oppose the bill.

SB 578 (Wyland) (Formerly SB 1148 ;Yee) – MFT: Record Retention. This bill would require an LMFT to retain patient records for a minimum of 7 years from the date therapy is terminated or from the date a minor reaches age 18.

The BBS Enforcement Manager noted cases of fraud or sexual misconduct do not make use of treatment records, so the proposed 7-year statute of limitations does not raise any issues for Enforcement. The Policy and Advocacy Committee discussed that it would be beneficial to have the other BBS licensees follow this statute of limitations. It was suggested that licensees be made aware that they are not required to destroy records after 7 years, but instead they may destroy the records after 7 years.

This bill, as amended, would apply to records of a patient whose therapy is terminated after January 1, 2015.

CAMFT indicated that we are open to amend in other licensees in Committee, so long as it does not garner any opposition. AAMFT-CA supports the bill, CALPCC asked to be included in the bill, LEP agreed to be added into the bill. Clinical Social Workers would like to be included, but would request an amendment to hold minor records until minor reaches age 21. NASW asked how this would impact LCSW in public settings and BBS indicated that LCSW would be required to keep records for 7 years and employer requirements would be secondary.

The Board supports bill if amended to include all BBS licenses.

SB 909 (Pavley) – Dependent Children: Health Screenings – This bill makes it clear that a social worker may authorize an initial medical, dental, and mental health screening for a child taken into temporary custody by a county welfare agency due to immediate danger. Current law requires that when a minor is taken into temporary custody due to an immediate danger, the social worker may authorize the personal of medial or other remedial care only if recommended by the attending physician, etc. and if the parent/guardian does not object. If the parent objects, a court order is always required.

The Committee discussed the definition of “social worker” and whether it should apply to “child welfare social worker” or should this responsibility to fall only to someone with a certain level of education. NASW concurred with the BBS concern over who is a “social worker”. The bill further fleshed out the definition of a “non-invasive health screening”.

NAWS supports the bill. The intent is to allow a social worker to intervene in the cases where a parent cannot be located.

The Board voted to support this bill

SB 1012 (Wyland) – MFT: Trainees – This is a CAMFT-sponsored bill that would increase the limitation of 5 hours of supervision gained per week to 6 hours of supervision gained per week toward the 3000 hours of experience required for licensure.

The intent of the bill is to assist MFT interns and trainees who are working in a number of settings simultaneously in order to gain the requisite experience hours required for licensure and are receiving more than 5 supervised hours per week, thus gaining hours that cannot be counted. CAMFT informed BBS about a CAMFT member survey that garnered 1000 responses from pre-licensed members, 20% of whom obtain more than 5 hours of direct supervision each week and lose those hours.

The BBS proposed language that would have this bill apply to hours gained after January 1, 2009, making the bill retroactive for six years.

The Board noted that it has formed a supervision committee, which is tasked with conducting an in-depth review of the requirements for supervised work experience and the requirements for supervisors.

The Board discussed the desire to have other BBS licensees be included. NASW has not spent time reviewing this issue, so they would like to have additional time to review and they would likely be patient and wait to see what the Supervision Committee ultimately decides instead of being included in this bill. CALPCC would like to be included in the bill.

The Board voted to support if amended to include LPCCS, change title language to “Interns”, and add retroactive language. (Note: CAMFT will be working with BBS to clarify conflict between regulations and statute so that both interns and trainees will be allowed to submit up to 6 hours of supervision per week.)

SB 1466 - Omnibus Legislation: This bill makes minor, technical, and non-substantive amendments to add clarity and consistency to current licensing law.

This BBS-sponsored bill has been referred to the Senate Appropriations Committee.

H. LPCC: Requirement to Work with Couples and Families

The regulatory proposal approved in March, 2014, contains a requirement that LPCCs obtain Board approval to treat couples and families, and that the LPCC must provide evidence of this approval to couple or family clients prior to treatment, or to a supervisee prior to supervision, beginning July 1, 2015.

As part of the fiscal analysis required for that package, staffing needs for the approval process were determined, as well as changes needed to the Breeze database system. Staff concluded that the July 1, 2015 effective date for the requirement that LPCCs provide a copy of the Board approval to clients and supervisees may not be feasible. As a result, staff recommends that the regulatory proposal be amended to delay the implementation date by one year, to July 1, 2016. This change would not impact the Board’s ability to accept applications or to issue approvals prior to that date. The date change only applies to the requirement that the LPCC notify clients and supervisees of Board approval.

The Board voted to delay the effective date of implementation.

I. Omnibus Bill – Exam Restructure
Board staff is in the process of implementing the examination restructure, which will change the examination process for applicants who are seeking licensure as LMFT, LCSW, or LPCC. The exam restructure becomes effective on January 1, 2016.

The Board previously adopted an amendment is that if someone’s registration expired during the grace period, he or she would be able to renew or obtain a new number without the hardship of unexpectedly having to take the California law and ethics exam.

However, a concern has been raised that the language, as written, could allow any registrant, not just one expiring during the grace period, to apply for the renewal during the grace period in order to exempt themselves from later having to take the California law and ethics exam that year, even if they are not expiring during the grace period.

Therefore, staff is recommending an additional amendment, which would specify that in order to receive the exemption, the registration must be expire no later than the end of the grace period.

The Board voted to suggest the changes to the bill and any non-substantive changes to the proposed language, and submit to the Legislature as an amendment to the omnibus bill.

J. Rulemaking Update

Continuing Education:
This proposal would make a number of changes to the Board’s continuing education program. These proposed changes are based on the recommendations of the Board’s Continuing Education Committee, which was formed in 2011 in response to a number of concerns raised
about continuing education.

This proposal is currently under review by the California Department of Finance and the Office of Administrative Law.

Uniform Standards for Substance Abuse:

This is a regulatory proposal that the Department of Consumer Affairs (DCA) and the Legislature have asked all healing arts licensing boards to pursue. It creates uniform standards for discipline that the boards must follow in cases of licensee or registrant substance abuse.

Staff is working on submitting the proposal to OAL for publication in the California Regulatory Notice Register, which will begin the 45-day public comment period.

LPCC Treating Couples and Families

This proposal clarifies requirements for LPCCs to treat couples and families, and outlines a
process by which LPCCs and PCC Interns would receive Board confirmation that they have met
the requirements to treat couples and families.

The proposal was approved by the Board at its meeting in March 2014, and a minor language
was discussed earlier in this May meeting. Staff will submit the proposal to OAL for publication, which will begin the 45-day public comment period.

Exam Re-Structure:

This proposal would revise Board regulations for clarity and consistency with statutory changes made by SB 704 (Chapter 387, Statutes of 2011), which restructures the examination process for LMFT, LCSW, and LPCC applicants effective January 1, 2016.

This proposal was originally approved by the Board at its meeting in February 2013, and published in its California Regulatory Notice Register on March 15, 2013. However, the proposal was withdrawn in May 2013, as staff learned of implementation conflicts with the new BreEZe database system. For this reason, the effective date of the restructure was delayed until 2016,per SB 821 (Chapter 473, Statutes of 2013).

A revised proposal was approved by the Policy and Advocacy Committee at its meeting in February 2014. Staff plans to bring this proposal for consideration by the Board at its meeting in
August 2014 once additional details have been worked through.

K. Future Agenda
The Board set a Continuing Education regulation hearing for 10 a.m. on June 26th in order to meet OAL September deadline.

Executive Officer, Kim Madsen, read a letter from a pre-licensee about the status of the MFT examination eligibility application processing times and requesting that this item be put on the agenda for the next Board meeting.

Board member Renee Lonner, LCSW, was presented with a recognition of her service to the Board of Behavioral Sciences.