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August 12, 2022

Board of Regents Adopts Emergency Regulations on the Mental Health Diagnostic Privilege

The New York State Department of Education Board of Regents has announced the adoption of emergency regulations, effective July 12, 2022, which implement Chapter 230 of the Laws of 2022. Chapter 230 allows licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs), and licensed psychoanalysts (LPs) to earn a diagnostic privilege by meeting certain specified requirements. This privilege represents an expansion of the scope of practice for those who meet the requirements, as these professions do not generally have the authority to diagnose under the New York State Education Law and its implementing regulations.

Chapter 230 of the Laws of 2022 will permit the New York State Department of Education to issue a diagnostic privilege to LMHCs, LMFTs, and LPs beginning June 24, 2024. In order to apply for the privilege, the applicant must:

  1. Be licensed and registered as a LMHC, LMFT, or LP in New York State
  2. Be able to demonstrate a 60-semester hour, or the clock-hour equivalent, master’s degree that includes 12 semester hours of clinical content
  3. Be able to verify that 2,000 hours of supervised experience in diagnosis, psychotherapy, and assessment-based treatment planning has been completed in an authorized setting under the supervision of a qualified supervisor
  4. Submit an application and application fee for the privilege to the New York State Department of Education

Licensees who are issued the privilege will be required to renew it every three years, and the renewal will occur at the same time as when the individual re-registers for practice. The privilege is essentially a separate license for diagnosis purposes. Chapter 230 also includes an exemption that will allow LMHCs, LMFTs, and LPs employed in certain settings to diagnose and develop assessment-based treatment plans until June 24, 2025, to give licensees additional time to complete the supervised experience requirements necessary to apply for the privilege. Except for this exemption, these activities would be unlawful if performed by a LMHC, LMFT, or LP. The department may not issue the diagnostic privilege to any applicant before June 24, 2024.

The emergency regulations adopted by the Board of Regents address limited permits, authorized settings, and qualified supervisors. The regulations also clarify the processes for licensees who do not work in exempt settings to obtain a limited diagnostic permit. Specifically, according to the regulations, limited diagnostic permits to practice under supervision while gaining the experience required for the diagnostic privilege will be issued if the applicant:

  1. Files an application for the limited permit with the department and pays the associated application fee
  2. Meets all of the requirements for the diagnostic privilege set forth in law, including, but not limited to, licensure and registration in New York State
  3. Is under the supervision of a supervisor acceptable to the department

Limited diagnostic permits will be issued for specific employment settings and must identify the qualified supervisor who will be supervising the permit holder. Limited permits will be valid for a period of 24 months and can be extended for two additional 12-month periods at the department’s discretion. In no circumstances, however, will the department permit extensions past 24 months in total.

The experience required for receipt of the diagnostic privilege must be completed in an authorized setting. The setting must be a location where legally authorized individuals provide services that constitute the practice of mental health counseling, marriage and family therapy, or psychoanalysis. Various types of settings are permitted by the regulations, including corporate entities and programs and services operated, regulated, funded, or approved by the New York State Office of Mental Health, Office of Children and Family Services, Department of Corrections and Community Supervision, Office of Temporary and Disability Assistance, Office for the Aging, Department of Health, or a local governmental unit, among others.

Additionally, the experience required must be under the supervision of a qualified supervisor, who will be responsible for appropriate oversight of the services provided by the limited diagnostic permit holder. The qualified supervisor must be authorized to diagnose and provide psychotherapy and assessment-based treatment plans. Additionally, the supervisor must be licensed and registered in New York State to practice as a licensed clinical social worker, psychologist, or physician. After June 24, 2022, a LMHC, LMFT, or LP who is licensed and registered and who holds the diagnostic privilege may also serve as a qualified supervisor.

The qualified supervisor must provide general supervision to the limited permit holder, which requires the supervisor to be available for consultation, diagnosis, and evaluation when the professional services are being rendered by the limited permit holder. Additionally, the supervisor is required to exercise the degree of supervision appropriate to the circumstances, but must provide an average of one hour per week to two hours every other week of face-to-face individual or group supervision. During the required supervision, the supervisor must review the limited permit holder’s diagnosis and treatment of each client under their supervision and provide oversight, guidance, and direction to the applicant in developing diagnostic, psychotherapy, and assessment-based treatment planning skills. This required face-to-face supervision can be provided in person or by technology acceptable to the department, such as secure videoconferencing. Importantly, qualified supervisors may not supervise more than five limited permit holders of any type at one time.

The Board of Regents’ emergency regulations were published in the New York State Register on July 27, 2022, for a 60-day public comment period. Additionally, according to the New York State Office of Professions, the Board of Regents will discuss regulations that define the clinical content required to diagnose and create assessment-based treatment plans later this year and will issue frequently asked questions and updates on the its website on a regular basis in the coming months.

Attorneys on Barclay Damon’s Health & Human Services Providers Team are available to assist LMHCs, LMFTs, and LPs as well as qualified settings and supervisors with the diagnostic limited permit application process and will continue to monitor any developments and best practices.

If you have any questions about the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.
 

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