California hospital privilege regulations face delay, not defeat

by Legal & Regulatory Affairs Staff

February 27, 2006 — A February 17 ruling by the Sacramento County Superior Court in California, although a defeat for expediting hospital practice rules favorable to psychologists, was not detrimental to overall efforts to ensure that the state issues regulations enforcing a 1990 ruling by the California Supreme Court. That decision, CAPP v. Rank, upheld legislation granting expanded hospital privileges to psychologists.

The Sacramento court did not accept the psychiatrists’ argument that recent regulations expanding psychologists’ hospital privileges violated state and federal law. In fact, the court stated that CAPP v. Rank “may well serve as the authority” for the California Department of Health Services (DHS) to issue the challenged regulations. However, the judge ruled that DHS had not followed the correct administrative procedure when it issued the regulations through an expedited procedure without the normal notice and comment period.

DHS issued the regulations last April after discussions with Psychology Shield, a non-profit corporation founded by California psychologists to increase and improve the care available to mental health patients, and the California Psychological Association (CPA). Psychology Shield and CPA argued that the regulations were necessary to enforce the CAPP v. Rank ruling by the California Supreme Court and overcome the resistance of organized psychiatry. DHS issued the regulations through the expedited “Rule 100” process (without usual notice and comment process), on the basis that the regulations were necessary to implement the California Supreme Court’s ruling from 15 years earlier.

In May 2005, a month after the regulations were issued, the California Psychiatric Association and the Union of American Physicians and Dentists (UAPD) (a union representing psychiatrists in state facilities) filed a lawsuit against the state. The psychiatrists challenged the expedited process for issuing the regulations, and argued that the regulations would violate various state and federal laws.

In response to the psychiatrists’ lawsuit, the California Attorney General and DHS filed a brief stating on the public record that the challenged regulations are required in order to comply with the CAPP v. Rank ruling. Psychology Shield, with support from the APA Practice Organization, intervened in the lawsuit and filed its own brief.

In his ruling, Judge Sapunor held that the DHS had exceeded its legal authority when it issued the regulations under the expedited Rule 100 procedure. Although there are no prior decisions on this issue, the judge noted that this procedure could be used only to delete regulations that were invalidated by a court, not to issue new regulations in response to a court decision. However, the judge did not rule that the regulations violated state and federal laws, as the psychiatrists urged him to do. In fact, he stated that CAPP v. Rank may well justify DHS issuing the regulations by the normal rulemaking process.

Psychology Shield and CPA are now focusing on ensuring that DHS publishes the regulations via the normal rulemaking process of providing notice and soliciting public comments. In addition, the two organizations will continue their other advocacy efforts to counter the decades-long and pervasive efforts by organized psychiatry to thwart the intent of the legislature. These include legislative approaches, administrative advocacy, litigation and public education.

According to Psychology Shield’s founder Bill Safarjan, Ph.D., “We are disappointed that this procedural issue has delayed the expansion of hospital privileges for psychologists, but we are confident that the continued efforts and broad support of psychology will enforce the will of California’s legislature and Supreme Court.”

The APA Practice Organization intends to continue to support and collaborate with Psychology Shield and CPA in this important campaign to enforce CAPP v. Rank and make improved care available to the state’s neediest mental health patients.