Administrative Rule Review Report  #AR10-052

Legislative Service Office

09-Aug-10

 

AGENCY:                                 Mental Health Professions Licensing Board.

 

DATE SUBMITTED:                   July 26, 2010.

 

SUBJECT:                                 Chapters 1 through 17, Appendices A through D, Mental Health Professions Licensing Board.

 

NATURE OF RULES:                     Legislative, Procedural.

 

STATUTORY AUTHORITY:         W.S. 33-38-105(a).

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.  The Board conducted a public hearing and provided a summary of the comments received and responses to the comments.  Minor changes were made to the final rules in response to the comments.  The changes appear to be non-substantive and comport with the "substantial compliance" requirement of the Wyoming Administrative Procedure Act, specifically, W.S. 16-3-103(c).

 

SUMMARY OF RULES:  These rules clarify and update the certification and licensing requirements for mental health professions.  They create a separate chapter for each discipline within the mental health professions.  The new chapters clarify and delineate supervision requirements, standards of conduct, and grounds for disciplinary action.  The rules also provide for an increase in fees.  Specific changes to the rules include:

Chapter 1:          Definitions are expanded and the placement of definitions is restructured.  Disciplinary authority is amended to be consistent with statutory disciplinary authority.

Chapter 3-6:       New chapters are created to set forth specific requirements for certified addictions practitioners, certified addictions practitioner assistants, certified mental health workers, and certified social workers.

Chapter 7:          A new chapter is created relating to provisional licenses.

Chapters 8-11:   New chapters are created relating to licensed addictions therapists, licensed clinical social workers, licensed marriage and family therapists, and licensed professional counselors.

Chapter 12:        Application procedures for licenses and certification are clarified.

Chapter 13:        Fee structures are amended and fees increased.

Chapter 14:        Changes are  made to license renewal dates and continuing education requirements.

Chapter 15:        Changes are made to professional responsibility, disclosure and record keeping requirements.

Chapters 16-17: Changes are made to update disciplinary procedures.

For a more in depth discussion of the changes in each chapter, see the Statement of Reasons for Filing Revised Rules.

 

FINDINGS:  The rules appear to be within the scope of statutory and legislative intent. 

 

There are some minor typographical errors, but the errors to do not confuse the meaning or intent of the rules.

 

Chapter 15, section 1(b)(xxi) provides that persons licensed by the board shall, not "practice, facilitate or condone" discrimination against protected classes and on the basis of ". . . sexual orientation . . . , political belief, . . or any other preferences or characteristics."  The language is overbroad and exceeds statutory authority to adopt rules relating to mental health professional licensing.  Additionally, the language raises constitutional issues.  First Amendment protections preclude the board from requiring a practitioner to condone another's political belief, sexual orientation, or any other preference or characteristics.  Boy Scouts of America v. James, 530 U.S. 640 (2000).

 

W.S. 33-38-112 requires all licensees and certificate holders to adhere to the ethical standards of their discipline and according to those promulgated in the rules and regulations of the board.  The rules similarly require adherence to the codes of ethics adopted by national organizations.  The codes are set forth in Appendices A–D.  The codes, however, are not written as specific, concrete and enforceable requirements.  They set forth vague goals and social values which strictly applied would be overbroad and raise constitutional concerns.  Chapter 15(a) states, however, that the codes shall be used by the board as guidelines to ethical standards.  Constitutional issues and improper delegation of legislative authority may be avoided by the board's use of the codes as guidelines, particularly in its determination of adverse actions.  It is therefore not recommended that the Governor rescind the rules to address the vague and overbroad nature of the codes.

 

STAFF RECOMMENDATION:  1) That the Council request the Governor to direct the board to consider the above concerns respecting the board's application of the codes of ethics as guidelines.  2) That the Council request the Governor to use his line item veto authority under W.S. 16-3-103(d) to address the concerns respecting chapter 15, section 1(b)(xxi).  This could be done by striking the language below to eliminate the need to re-promulgate the rules.  Otherwise, the recommendation would be for the Governor to direct the agency to rescind the rules and address all the concerns raised.

 

Chapter 15, section 1(b)(xxi):  That the Council request the Governor to use his line item veto to strike ", facilitate or condone" "sexual orientation," "political belief," and "or any other preferences or characteristics".

 

                                                            _______________________

                                                            Lily Sharpe

                                                            Staff Attorney

 

                                                            _______________________

                                                            Lynda G. Cook

                                                            Staff Attorney

LNS/