Report Title:

Mental Health Counselors; Licensure

Description:

Establishes licensure for mental health counselors effective 7/1/05, but exempts government employees. Allows licensing of counselors with current national certification who pass exam and pay fees within year of program commencing. Assesses surcharges to fund start-up costs. Appropriates general funds. (SD2)

THE SENATE

S.B. NO.

2595

TWENTY-SECOND LEGISLATURE, 2004

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO PROFESSIONAL COUNSELORS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds the Felix v. Cayetano (Felix) consent decree demands substantial improvement in the children's mental health delivery system in Hawaii. A key component of the decree is the inclusion of basic mental health and case management services. These are areas that require trained and qualified professional mental health counselors. Presently, a lack of qualified mental health professionals costs Hawaii thousands of dollars in transportation costs to Oahu when qualified professional mental health counselors already residing on the neighbor islands could provide services at a lesser cost and with greater community awareness.

There is approximately a thirty per cent savings in reimbursement rates for professional counselors compared to the reimbursement rates for licensed psychologists for comparable counseling services. Regulating professional mental health counselors makes good economic sense for the State and demonstrates a compassionate concern for the mental health needs of Hawaii's citizens.

In 1998, Congress passed legislation to include professional mental health counselors in United States Public Health Service Act programs. The federal government now recognizes professional mental health counseling as one of the core helping professions along with psychiatry, psychology, psychiatric nursing, social work, and marriage and family therapy.

Both public and private universities in Hawaii have established programs to train professional counselors in the areas of mental health and rehabilitation. Because of the lack of regulation of this profession, these institutions are unable to ensure the employment of Hawaii's graduates of these programs once they are trained in the State.

Forty-seven states and the District of Columbia already have provisions for the regulation of professional mental health counselors to protect their consumers. Regulation of the rehabilitation counseling specialty is provided for in thirty-seven of the forty-seven states and the District of Columbia. Individuals, insurers, employers, and other consumers of counseling services cannot be assured of the credentials of any person professing to be a counselor. Licensure is sorely needed to assure quality service.

The State of Hawaii, under laws similar to this Act, already licenses social workers and marriage and family therapists. This has increased the availability of qualified mental health professionals available for Felix and other mental health programs. However, there continues to be a shortage of licensed professionals to provide services for these and other programs. Therefore, this Act needs to be implemented to provide more qualified service providers, to avoid discrimination, and to give parity to the remaining masters-level mental health professionals. Passage of this Act is essential to increase the availability of qualified service providers who can contribute to the pool of mental health professionals and increase the choice and availability of providers.

The purpose of this Act is to:

(1) Establish educational and experiential standards for professional mental health counselors; and

(2) Require licensure for those persons who practice or represent themselves to the public as licensed mental health counselors.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

MENTAL HEALTH COUNSELORS

§   -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Accredited educational institution" means a university or college accredited by a nationally or regionally recognized accrediting agency of institutions of higher education.

"Clinical supervision" means supervision applied to all individuals who are gaining the experience required for a license as a mental health counselor. "Clinical supervision" includes but is not limited to:

(1) Case consultation on the assessment and presenting problem;

(2) Development and implementation of treatment plans;

(3) Enhancement of the supervisee's counseling techniques and treatment evaluation skills; and

(4) Evaluation of the course of treatment.

"Department" means the department of commerce and consumer affairs.

"Director" means the director of commerce and consumer affairs.

"Licensed mental health counselor" means a person who engages in the practice of mental health counseling and uses the title of licensed mental health counselor, who has been issued a license under this chapter, and whose license is in effect and not revoked or suspended.

"Practice of mental health counseling" means the rendering of professional services to individuals, families, or groups for compensation, monetary or otherwise. These professional services include applying the principles, methods, and theories of counseling, human development, learning theory, group and family dynamics, rehabilitation, and the etiology of mental illness and dysfunctional behavior to define goals and develop a treatment plan of action aimed toward the prevention, treatment, and resolution of mental and emotional dysfunction and intra or interpersonal disorders to all persons irrespective of diagnosis. "Practice of mental health counseling" includes but is not limited to the nonmedical assessment, diagnosis, treatment, and counseling of mental and emotional disorders, the application of educational techniques aimed at the prevention of these disorders, and the provision of consultative services to individuals, couples, families, groups, organizations, and communities.

§   -2 Mental health counselors licensing program. There is established a mental health counselors licensing program within the department to be administered by the director.

§   -3 Powers and duties of the director. In addition to any other powers and duties authorized by law, the director shall have the following powers and duties:

(1) To grant permission to a person to use the title of "licensed mental health counselor" or a description indicating one is a licensed mental health counselor in this State pursuant to this chapter and the rules adopted pursuant thereto;

(2) To adopt, amend, or repeal rules pursuant to chapter 91 as the director finds necessary to carry out this chapter;

(3) To administer, coordinate, and enforce this chapter and rules adopted pursuant thereto;

(4) To discipline a licensed mental health counselor for any due cause described by this chapter or for any violation of the rules, or to refuse to license a person for failure to meet licensing requirements or based on grounds for disciplining a licensed mental health counselor; and

(5) To appoint an advisory committee consisting of licensed mental health counselors and members of the public to assist with the implementation of this chapter and the rules adopted pursuant thereto; provided that the initial members of the committee who are mental health counselors shall not be required to be licensed pursuant to this chapter.

§   -4 Fees; disposition. (a) Application, examination, reexamination, license, renewal, restoration, penalty, and any other fees relating to administration of this chapter, none of which are refundable, shall be as provided in rules adopted by the director pursuant to chapter 91.

(b) Fees assessed shall defray costs incurred by the director to support the operation of the mental health counselor licensing program. Fees collected shall be managed in accordance with section 26-9(l).

§   -5 Prohibited acts. Except as specifically provided in this chapter, no person shall engage in the practice of mental health counseling or use the title of "licensed mental health counselor" without first having secured a license under this chapter. The department shall investigate and prosecute any individual using the title of "licensed mental health counselor" who does not hold a license as a mental health counselor. Any person who violates this section shall be subject to a fine of not more than $1,000. Each day's violation shall be deemed a separate offense. Any action taken to impose or collect the fine imposed under this section shall be a civil action.

§   -6 Exemptions. (a) Licensure shall not be required of:

(1) A person doing work within the scope of practice or duties of the person's profession that overlaps with the practice of mental health counseling; provided that no such person shall use a title stating or implying that the person is a "licensed mental health counselor" or represent the person to be a mental health counselor or the person's services as mental health counseling;

(2) Any person who is a duly recognized member of the clergy; provided that the person functions only within the person's capacity as a member of the clergy; and provided further that the person does not represent the person to be a mental health counselor or the person's services as mental health counseling;

(3) Any student enrolled in an accredited educational institution in a recognized program of study leading toward attainment of a graduate degree in mental health counseling or other professional field; provided that the student's activities and services are part of a prescribed course of study supervised by the accredited educational institution and the student is identified by an appropriate title including but not limited to " mental health counseling student" or "trainee", "clinical psychology student" or "trainee", "social work student" or "trainee", "marriage and family counseling student" or "trainee", or any title that clearly indicates training status;

(4) Any individual who uses the title of " mental health counselor intern" for the purpose of obtaining clinical experience in accordance with section    -7(a)(3); or

(5) Any person employed by a federal, state, or county government agency in a counseling position, but only at those times when that person is carrying out the duties and responsibilities as a counselor in governmental employment.

(b) Nothing in this chapter shall be construed to prevent qualified members of other licensed professions as defined by any law or rule of the department, including but not limited to social workers, registered nurses, psychologists, marriage and family therapists, or physicians, from providing mental health counseling or advertising that they provide mental health counseling to individuals, couples, or families consistent with the accepted standards of their respective licensed professions; provided that no such persons shall use a title stating or implying that they are licensed mental health counselors unless the persons are licensed pursuant to this chapter.

§   -7 Application for licensure as a mental health counselor. (a) Any person who applies to the department after July 1, 2005, shall be issued a license by the department if the applicant provides satisfactory evidence to the department that the applicant is qualified for licensure pursuant to the requirements of this chapter and meets the following qualifications:

(1) Has a master's degree or doctoral degree from an accredited educational institution in counseling or in an allied field related to the practice of mental health counseling that includes or is supplemented by graduate level course work in counseling comprising a minimum of forty-eight semester hours or seventy-two quarter hours in the following course areas, with a minimum of three semester hours in each course area as indicated below:

(A) Human growth and development;

(B) Social and cultural foundations;

(C) Counseling theories and applications;

(D) Group theory and practice;

(E) Career and lifestyle development;

(F) Appraisal of human behavior;

(G) Tests and measurements;

(H) Research and program evaluation; and

(I) Professional orientation and ethics;

(2) Has at least two academic terms of supervised practicum intern experience for graduate credit of at least three semester hours or five quarter hours per academic term in a counseling setting with three hundred hours of supervised client contact;

(3) Has completed three thousand hours of post-graduate direct counseling work with one hundred hours of face-to-face clinical supervision within two years; and

(4) Has passed the National Counselor Examination for Licensure and Certification, or the Commission on Rehabilitation Counselor Certification examination.

(b) An individual who:

(1) Holds current certification as a national certified counselor or a national certified rehabilitation counselor prior to the effective date of this chapter; or

(2) Has passed the National Counselor Examination for Licensure and Certification, the National Clinical Mental Health Counselors Examination of the National Board for Certified Counselors, the Commission on Rehabilitation Counselor Certification examination within one year of the effective date of this chapter; and

(3) Within one year of the effective date of this chapter, applies for licensure and pays the applicable license fee,

shall be deemed to have met the requirements of this section.

§   -8 Reciprocity. (a) The director may enter into a reciprocity agreement with any state that licenses mental health counselors if the director finds that the state has substantially the same or higher requirements as this chapter.

(b) The agreement shall provide that the director shall license any resident of that state who is currently licensed by that state if the individual has met or exceeded the requirements of this chapter.

§   -9 Examination. (a) The department shall conduct a licensing examination of applicants at least once a year at a time and place designated by the department.

(b) The department shall administer the National Counselor Examination for Licensure and Certification and the Commission on Rehabilitation Counselor Certification examination in compliance with the standards of the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification, respectively.

(c) The examining fee shall be paid by the applicant directly to the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification.

(d) An applicant shall be held to have passed an examination by obtaining a passing score as determined by the director.

§   -10 Licensure; fees. Licenses shall be issued to persons deemed to be qualified under section     -7 upon the payment of a license fee to be determined by the department, and shall be valid for three years.

§   -11 Renewal of license; fees. Licenses shall be renewed, upon the payment of a renewal fee, triennially not earlier than ninety days before June 30, with the first renewal deadline occurring on June 30, 2008. Failure to renew a license shall result in a forfeiture of the license. Licenses that have been forfeited may be restored within one year of the expiration date upon payment of renewal and restoration fees. Failure to restore a forfeited license within one year of the date of its expiration shall result in the automatic termination of the license and the person may be required to reapply for licensure as a new applicant. All renewal and restoration fees shall be determined by the department.

§   -12 Denial, revocation, or suspension of license. (a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:

(1) Conviction by a court of competent jurisdiction of a crime that the department has determined by rules adopted pursuant to chapter 91 to be of such nature as to render the person convicted unfit to practice mental health counseling;

(2) Failure to report in writing to the director another disciplinary decision related to the provision of mental health counseling issued against the licensee or the applicant in another jurisdiction within thirty days of the disciplinary decision or within thirty days of licensure;

(3) Violation of recognized ethical standards for mental health counselors set by either the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification;

(4) Fraud or misrepresentation in obtaining a license;

(5) Revocation, suspension, or other disciplinary action by any state or federal agency against a licensee or applicant for any reason provided by this section; or

(6) Other just and sufficient cause that renders a person unfit to practice mental health counseling.

(b) Any licensee or applicant who violates this section may also be fined not more than $1,000 per violation.

§   -13 Confidentiality and privileged communications. No person licensed as a mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services except in the following circumstances:

(1) As required by law;

(2) To prevent a clear and imminent danger to a person or persons;

(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative; or

(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, a mental health counselor may disclose information from any person in accordance with that person's waiver.

§   -14 Mental health counselor prohibited from testifying in alimony and divorce actions. If both parties to a marriage have obtained mental health counseling from a licensed mental health counselor, the counselor shall be prohibited from testifying in an alimony or divorce action concerning information acquired in the course of mental health counseling. This section shall not apply to custody actions whether or not part of a divorce proceeding."

SECTION 3. The department of commerce and consumer affairs may appoint an administrative assistant and secretary, without regard to chapter 76, Hawaii Revised Statutes, to assist with the activities of the mental health counselors licensing program.

SECTION 4. Upon the issuance of a new license and at each license renewal period, each mental health counselor shall pay an additional fee of $75, which shall be maintained in a separate account within the compliance resolution fund established pursuant to section 26-9(o), Hawaii Revised Statutes. At the end of each quarter, the moneys contained in the separate account established pursuant to this section shall be transferred to the general fund until such time that the total transferred amounts equal the amount appropriated in section 5 of this Act. Thereafter, no surcharge shall be assessed, and any funds in excess of the amount appropriated in section 5 of this Act shall be deposited in the compliance resolution fund.

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $43,000, or so much thereof as may be necessary for fiscal year 2004-2005, to implement the mental health counselor licensure program.

The sum appropriated shall be expended by the department of commerce and consumer affairs for the purposes of this Act.

SECTION 6. This Act shall take effect on July 1, 2004; provided that no licenses shall be issued pursuant to this Act prior to July 1, 2005.