De Kamp, 061683 CAAGO, AGO 82-1205

Docket Nº:AGO 82-1205
Case Date:June 16, 1983
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 82-1205
No. 82-1205
California Attorney General Opinion
Office of the Attorney General State of California
June 16, 1983
         THE HONORABLE PAUL B. CARPENTER, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following questions:          1. In view of the enactment of chapter 996, Statutes of 1979, may a county require that professional services be performed by county employees in its local mental health programs (Short-Doyle) which are within the scope of the licensure of psychologists, clinical social workers and nurses without requiring that licensed personnel perform such professional services?          2. In view of the enactment of chapter 996, Statutes of 1979, may a county establish treatment services in its local mental health programs (Short-Doyle) which will utilize unlicensed county personnel?          CONCLUSIONS          1. Since the enactment of chapter 996, Statutes of 1979, a county must require that professional services performed in its local mental health programs (Short-Doyle) which fall within the scope of the licensure of psychologists, clinical social workers and nurses be performed by licensed personnel unless the individual performing such services falls within a demonstrable exception to the professional licensing requirements.          2. Since the enactment of chapter 996, Statutes of 1979, a county may not establish treatment services in its local mental health programs (Short-Doyle) which will utilize unlicensed county personnel who will treat patients unless the county can demonstrate that the individual performing such treatment services falls within a demonstrable exception to the professional licensing requirements.          ANALYSIS          This request for our opinion arises in the context of the recent establishment in a particular county of the job classification of "Mental Health Treatment Specialist." Such position is open only to county personnel. Its purpose is to fill positions in its local mental health programs, that is, in its Short-Doyle programs. The job specification states that the position is "a deep class with three experience levels and incorporates educational and experience areas such as Clinical Psychology, Clinical Social Work, Psychology, Continuing Care, and Mental Health Program Assistants."          At the beginning level, or Level A, it is contemplated that mental health treatment specialists should work under close supervision to develop their skills. Insofar as their duties are concerned, the job specification states:
"They interview patients, assist in implementing treatment plans using basic knowledge of treatment modalities, conduct therapy sessions with clients who are not severely disturbed, assist client/patient in obtaining services and in providing social rehabilitation services including daily living skills, and assist in evaluation of patient treatment progress." (Emphasis added.)
         The job requirements range from a bachelors degree in psychology, sociology, social work, counseling, psychiatric nursing, or a related behavioral science without experience down to a high school diploma or a license as a licensed vocational nurse or licensed psychiatric technician, plus four years of experience in mental health treatment work as a primary therapist or under the supervision of a primary therapist.          At the intermediate level, or Level B, the job specification states that these mental health treatment specialists shall "function as journey level workers with greater responsibility," shall "perform the same tasks as the A level incumbents but at the working level," and "[i]n addition, they prepare psychological, diagnostic, assessment and treatment recommendations using a variety of evaluation instruments, write prognosis progress reports, provide case consultation with other staff, and may coordinate services with other agencies."          At this level, the job requirements range from a masters degree in social work, clinical or counseling psychology, counseling, psychiatric nursing, or a related behavioral science without experience down to a certain minimum number of upper division college units in a behavioral science which appear to be the equivalent of a major in behavioral sciences plus two years experience in mental health treatment work as a primary therapist. There is no provision at this level for the substitution of any type of licensure for educational requirements as was the case with the beginning level.          At the highest level, designated as the Advanced/ Staff Level, or Level C, the mental health treatment specialist is to:
". . . work under minimum supervision to either provide intensive diagnosis, therapy, and treatment for the more severely disturbed patients or to perform staff specialist assignments in the area of program planning, monitoring, and evaluation; analysis of legislation relative to Mental Health funding and regulations; preparation and recommendation of grant applications, procedural guides, and special studies related to program operations. Incumbents act as senior clinical resource advisors, and may provide work direction to less experienced staff or student interns. They may also represent administration or supervisory personnel at meetings and committees."
         At this highest level the job requirements range from a Doctoral Degree in Clinical or Counseling Psychology, Social Work or other behavioral science without experience down to a minimum number of post graduate units in a behavioral science or sciences plus two years experience in mental health treatment work as a primary therapist. At this level, as with Level B, there is no licensure which may be substituted for the educational requirement. However, it is only at this level that the county has indicated a professional license may be required. Thus, the job specification states:
"License: Certain designated positions at this level may require possession of one of the following licenses issued by the State of California: (1) Licensed Clinical Social Worker; (2) Licensed Psychologist, or (3) Licensed Marriage and Family Counselor." (Emphasis added.)
         The fact that the above-described position in the county government's local mental health program requires no professional license at Level A or Level B, and only states that certain positions may require a professional license at Level C, gives rise to the questions presented herein. This is because by the enactment of chapter 996, Statutes of 1979, the Legislature essentially repealed a major portion of the exemption from professional licensure which had been granted to state and local government employees who work with and treat patients in a mental health setting.          A. Background as to Chapter 996, Statutes of 1979          Chapter 996, Statutes of 1979, and a prior statute, chapter 321, Statutes of 1978, were enacted to severely limit previous exemptions found in the law for governmental health professionals. However, instead of directly amending the applicable licensing laws found in the Business and Professions Code, the Legislature in all but one instance (with respect to psychologists) did so by indirection. It did this by amending provisions of the Health and Safety Code relating to licensing of health facilities and by amending provision of the Short-Doyle Act relating to local mental health programs.          In 64 Ops.Cal.Atty.Gen. 305 (1981) this office considered at length the effect of chapter 996, Statutes of 1979. With certain limited exemptions, that statute amended section 1277(b) of the Health and Safety Code to require that "professional personnel, including, but not limited to, physicians and surgeons, dentists, podiatrists, psychologists, pharmacists, registered nurses, and clinical social workers" employed in governmental health facilities licensed by the state should be licensed in the same manner as professional personnel in private health facilities. The limited exceptions set forth in...

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