Battling discrimination in California health facilities

This development marks the latest chapter of the decades-long fight for greater patient access to psychological services

by Legal and Regulatory Affairs Staff

July 28, 2009 — The American Psychological Association (APA) recently commented on changes proposed in May 2009 by the California Department of Public Health to their proposed regulations governing scope of practice in licensed health facilities. This development marks the latest chapter of the decades-long fight for greater patient access to psychological services and the struggle to end discrimination against psychologists in California hospital settings.

In a June letter, APA Executive Director for Practice Katherine C. Nordal, PhD, commended the Department of Public Health for incorporating several recommendations made by APA, the California Psychological Association and Psychology Shield, which worked together on reviewing and commenting on the regulations. Psychology Shield is a not-for-profit corporation created in 2002 to press for CAPP v. Rank's implementation.

Positive revisions to the proposed regulations include prohibiting state-owned hospitals from excluding psychologists from their medical staffs, allowing psychologists to address denials of clinical privileges through a specific enforcement mechanism, and including psychologists on hospital and medical staff committees.

Another proposed change, however, sparked "grave concerns" within APA, according to Dr. Nordal. The department proposed replacing the word "psychologist" with "licensed healthcare practitioner acting within the scope of their license" in several areas. By not specifically referencing psychologists, the proposed regulation would leave room for hospitals to continue preventing psychologists from taking on certain responsibilities by arguing that they are outside a psychologist's scope of practice. This change "will lead to continuation of existing illegal discrimination against psychologists, and the corresponding deprivation of psychological treatments to patients [in California]," Nordal warned.

The battle is the latest chapter in the fight against psychology discrimination in California. In the early 1980s, the California Association of Psychology Providers sued the state to enforce non-discriminatory treatment of psychologists within the law (CAPP v. Rank). The California Supreme Court ruled in favor of the psychologists in 1990, necessitating changes in the state's hospital regulations.

Since then, the department had taken only minor steps to update hospital policies and procedures to adhere to the ruling, until finally proposing comprehensive regulations in the summer of 2008.

"This change from psychologist to 'licensed healthcare practitioner' was made in response to allegations that the proposed regulations would allow psychologists to go beyond their scope of practice," said Maureen Testoni, JD, director of legal and regulatory affairs for the APA Practice Directorate. She said it is surprising that department officials made this change, as they acknowledge in their comments that they do not agree with the underlying complaint. "They seem to believe the change they made is neutral, but it seems clear to us that this proposed change would give those who have discriminated against psychology room to continue arguing against a greater role for psychologists in hospitals," Testoni observed.

Although the APA voiced its disapproval, the association is still optimistic that the proposed regulations, even with these revisions, will contain many benefits for psychology.

The department will consider APA's and other public comments on latest revisions to the proposed regulations and decide whether to amend the regulations further, and ultimately will issue a final regulation.