BILL NUMBER: S5774

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the education law, in relation to the delivery of
services that are clinical in nature

 
PURPOSE:

Relates to the delivery of services that are clinical in nature

 
SUMMARY OF PROVISIONS:

Section 1 amends provisions of the Education Law that spell out specific
tasks and activities that non-licensed professional staff may perform,
while assisting multidisciplinary teams to deliver behavioral health
services, in programs under the jurisdiction of the department of mental
hygiene. This bill would amend provisions of law, that relate to the
practice of psychology, social work, and mental health practitioner,
intended to clarify those tasks and activities non-licensed professional
staff may perform when assisting multidisciplinary teams in programs
              

under the jurisdiction of the state's mental hygiene agencies. Specif-
ically, this bill would provide that non-licensed professional staff in
such programs may assist multidisciplinary teams in providing clinical
services when such staff is under the supervision of a licensed profes-
sional. The appropriate mental hygiene commissioner would determine such
level of supervision. This provision would only apply to such staff
hired after June 24, 2022. (Staff hired before that date are permanently
exempt from the professional scope of practice restrictions while
assisting multidisciplinary teams in programs under the jurisdiction of
the Department of Mental Hygiene.)

Section 2 states.the effective date.

 
JUSTIFICATION:

Part Y of Chapter 57 of the Laws of 2018 included amendments to the
Education Law that extended exemptions in the licensed social work,
mental health practitioner, and psychology professions for individuals
employed in programs that are operated by or under the jurisdiction of
certain state or local government agencies. In general, Part Y provided
additional clarity for providers operated, regulated, funded, or
approved by the Affected Agencies regarding functions for non-licensed
professional staff in regulated settings.

Part Y required the Affected State Agencies to issue a report to the
Governor, Legislature, and SED analyzing the 2018 law, the subsequent
guidelines and regulations issued by SED, and determining to what extent
there needed to be additional guidance from SED to determine what tasks
and activities can and cannot be performed by non-licensed professional
staff, and to identify needed statutory changes, additional financing,
identification of professional shortage areas, etc.

In this report, several concerns were raised by the Affected Agencies,
while emphasizing that OMH and OASAS were "especially concerned" that
the SED guidelines:


"...do not address continuing ambiguity regarding the full scope of
"restricted functions" and those activities that cannot . be conducted
by unlicensed individuals. For example, the statute permits unlicensed
individuals to "directly deliver services outlined in the service plan
that are not clinical in nature but have been tailored to an individual
based on any diagnoses such individual may have received from a licensed
professional" Education Law § 7605 (10) (c) (ii) (13) (emphasis added).
Since neither SED guidance nor regulations address this provision of the
statute, the agencies are concerned that programs or their employees may
be subject to SED sanction based on a more restrictive interpretation of
the statute which may be inconsistent with agency regulations. Such
sanctions would cause significant disruption to service delivery and be
detrimental to patient health and safety."

In its June 2021 response to the report, SED agreed that more clarity
was necessary and further stated that SED would "revise," "clarify,"
"update," "update and republish," and "clarify activities and services."
SED concluded that the "Department anticipates an ongoing process of
clarifying activities and services, to ensure public protection without
impeding the providers."

As of early March 2023, SED has not yet provided any of these revisions,
clarifications, updates, or publications, which means there continues to
be significant uncertainty regarding the scope of practice limitations
for non-licensed professional staff, at a time when there is an ongoing,
unprecedented health and behavioral health workforce crisis.

The clinical practice exemption ended on June 24, 2022, meaning that
non-professional staff hired in these regulated environments are no
longer able to perform the full range of services to persons in need,
even when assisting multidisciplinary teams. As pointed out in the joint
agency report licensed professionals do not currently exist in numbers
to fill the need for services, assuming that a sufficient number are
even willing to work in the public mental hygiene system.

New York State is currently in the midst of an unprecedented health and
mental hygiene workforce crisis, and this bill will allow staff to be
hired in these regulated environments, to conduct the type of services
that they have been providing for many decades, with the added
protection that services may be clinical in nature must be provided
under the supervision of a licensed professional. The absence of this
common-sense solution or the continued extension of the clinical prac-
tice exemption will result in serious negative consequences for New
Yorkers in need of life-saving addiction and mental health services and
will exacerbate the years-long workforce crisis in the behavioral health
sector.

 
LEGISLATIVE HISTORY:

2021-2022: S6378A/A7409A- Died in Higher Education

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect June 24, 2023