Psychology girds for battle over proposed hospital regulations

by Legal and Regulatory Affairs Staff

September 30, 2008 — In the latest chapter of a longstanding battle, the California Department of Public Health (DPH) has reissued proposed regulations that would permit psychologists to practice independently within the full scope of their licensure in hospitals and other institutional settings.

In the early 1980s, the California Association of Psychology Providers (CAPP) sued the state government in CAPP v. Rank to enforce California law prohibiting discrimination against psychologists. In 1990, the California Supreme Court found in favor of psychologists, ruling that regulations requiring psychiatrists to supervise the diagnosis and treatment of all patients violated the state's health and safety code.

The court ruling necessitated changes to the state's hospital regulations. In the ensuing years, the state issued proposed regulations and took other minor steps intended to update hospital policies and procedures. Organized psychiatry has successfully challenged these actions at every turn, preventing significant changes to California hospital's practices.

The state's newly reissued proposed regulations are intended to implement the Supreme Court's ruling by putting psychologists on equal footing with physicians with regard to providing services independently within their scope of practice. The proposed rules are not limited to hospitals; they also involve skilled nursing facilities, intermediate care facilities, chemical dependency hospitals and correctional facilities.

The regulations would require that psychologists be on the full medical staff with physicians and allow psychologists — free of physician supervision — to assume overall responsibility for patient care in both inpatient and institutional outpatient settings. The DPH rules would remove discriminatory language from existing regulations, including deleting specific references to physicians providing services in those instances where psychologists are qualified within the scope of their licensure to perform that service.

Further, as they are now mandated to do for physicians, nursing staff would be required to follow psychologists' orders and to report to psychologists any changes in a patient's condition.

Although laws in about 20 states specifically refer to psychologists in allowing — or in some cases requiring — hospitals to grant privileges and/or medical staff membership to psychologists, these laws do not specify the services that psychologists can provide. Many state laws are simply silent on the issue. As a result, hospitals have significant leeway in determining the degree to which psychologists may practice independently within the hospital.

Though some hospitals around the country grant psychologists significant independence, many hospitals still follow decades-old policies that impose discriminatory restrictions. In the absence of state laws prohibiting discrimination, psychologists are forced to fight the battle for independent practice authority on a hospital-by-hospital basis.

California's proposed regulations would eliminate the battle in that state. If the rules are finalized, California would become the first state to prohibit hospitals from requiring physician supervision for services within the scope of psychologists' licensure.

In 2006, similar regulations were overturned on an administrative technicality. The state government had issued final regulations intended to implement CAPP v. Rank. The Union of American Physicians and Dentists along with the California Psychiatric Association sued the government, arguing that the public is entitled to prior notice and an opportunity to comment on such regulations before they can be implemented. A state court agreed, and the regulations were withdrawn.

A public hearing on the newly reissued regulations is scheduled for October 23, and public comments may be submitted up to four days later. Once the comments are compiled, the California Department of Public Health will review them and decide whether the proposed rules should be modified.

"APA continues to advocate strongly for eliminating discrimination against psychologists in California's current regulations and hospital practices," says Maureen Testoni, director of legal and regulatory affairs for the APA Practice Directorate. The directorate is analyzing the proposed DPH regulations in preparation for submitting comments to the agency.

"Psychologists must finally gain clear authority for independent practice as recognized decades ago by the California legislature and courts," she says. According to Testoni, implementation of the proposed state regulations would influence how hospitals throughout the U.S. treat psychologists.

The California Psychiatric Association already has indicated publicly that it intends to file a lawsuit to overturn the regulations if they are adopted as proposed.

In 1975, the California Psychological Association (CPA) lobbied for the introduction of legislation challenging the longstanding "medical model," which held that only psychiatrists were properly trained and qualified to oversee patients' mental health care in state hospitals. Legislation passed three years later upended that model, allowing psychologists to be on the medical staff and to practice in hospitals within the full scope of their licensure. But implementation of the law was challenged by the California Psychiatric Association, the California Medical Association, the California Hospital Association and the Union of American Physicians and Dentists; the opposition drove the issue all the way to the state Supreme Court.

The American Psychological Association (APA) filed an amicus brief in support of CAPP v. Rank. But even after the Supreme Court ruling, the state continued to prevent practitioners from independently overseeing their patients' care in hospitals.

"Organized psychiatry has been trying from day one to keep psychologists under physician supervision and to prevent implementation of the standards included in these proposed regulations," says Charles Faltz, PhD, CPA's director of professional affairs. "Our state hospitals' administration hasn't challenged psychiatry at all."

In 2002, a small group of California psychologists, with help from CPA, formed Psychology Shield, a not-for-profit corporation created to press for implementation of CAPP v. Rank.

Bill Safarjan, PhD, who serves as staff psychologist in a state hospital, has been instrumental in Psychology Shield's advocacy work. "Nearly 20 years after CAPP v Rank, illegal regulations and hospital practices still limit the role that psychologists play in many hospitals," says Safarjan. "We're working to overturn inappropriate and costly physician supervision requirements."

He and other psychology advocates clearly recognize that, as in the past, organized psychiatry is poised to block implementation of the proposed regulations. "We're expecting a strong challenge, but we're prepared to keep up the fight," says Faltz.