Jerry Kopel

KOPEL: THIS IS DRIVING ME CRAZY

Control of mental health boards is at stake

The longer Senate Bill 187 simmers in Senate and House committees, the worse it smells from the amendments to the mental health law and violation of the Department of Regulatory Affairs’ Sunset Review. 

While I was not in attendance during the testimony before the Senate Health Committee, the most striking development was the failure of DORA to announce either opposition or support for the bill’s original language or the additions put on by licensed psychotherapists before sending the bill to Senate Finance Committee. 

The original fiscal note of March 22 showed state expenses in fiscal year 2011-2012 of $268,546 and $1,586,517 in fiscal year 2012-2013. That will be increased under Health Committee amendments, one of which dealing with unlicensed psychotherapists should greatly increase the number of violations subject to the grievance board and subsequent cost to the board and the state funding. 

There were only two Health Committee members to voice opposition to the additional amendments, Sen. Shawn Mitchell, R-Broomfield, and Kevin Lundberg, R-Berthoud, although both voted to send the bill to Finance Committee.  

My Feb. 4 column on DORA’s 76-page mental health occupation Sunset Review zeroed in on a possible fight between licensed and unlicensed psychotherapists. But now it takes second place. 

First place goes to a rather devious additional change in the 92-page bill clearly OPPOSED in the October 76-page review and clearly NOT recommended for the Sunset bill, SB 187. It takes majority control from public members on the mental health boards and transfers control in each board to the particular occupation regulated. 

The bill summary on page 2 of the mental health bill reads, “The bill implements the recommendations of the Sunset Review and report on state regulated mental health professionals as follows”: 

If that ground rule had been followed, this column would not have been written. Despite a definitely firm turndown of the professional members suggested shift-in-power argument, Dept. of Regulatory Agencies staff laid out on page 50 and 51 of the October report why “NO change” was needed in the makeup of each mental health board. 

But if you read page 4 of the SB 187 summary, it appears as if DORA said “yes” to change.  

In 1998 the grievance multi-discipline board used to discipline all mental health professionals was repealed under an agreement by the various occupational groups with senior DORA employee Bruce Douglas to substitute seven member boards capable of disciplinary action for each occupation. There were four public members and three occupational members. That was done despite recognition that the multi-discipline grievance board was working. 

From the report: 
(Question) “It was argued by some professionals that the board should be composed of professional member majorities instead of the current public member majority. They argue that because the mental health professionals are unique in being able to determine whether a violation of the statute or rules has occurred, a professional member majority is necessary.  
(Answer) “During DORA staff’s review of case files, it was clear that the current composite of the boards was able to effectively discern whether a violation of the statute or applicable rules occurred. Experience as a psychologist for example, was not necessary to determine whether a violation occurred. 

“In addition to reviewing files, DORA staff monitored board meetings and recognized that board members possessed the appropriate level of expertise or knowledge of the statute and rules to effectively discern whether a mental health professional should be disciplined.” 

CRS 12-43-203 (3) (d) allows boards to convene advisory committees of professionals who possess a level of knowledge “that a board lacks” to determine whether a violation occurred. From fiscal years 2004-05 through 2008-09 NONE of the boards convened an advisory committee to address complex issues, according to staff. 

Research staff: “Consumer protection is the driving force behind regulation of occupations ... current composition of boards are working well to provide protection to consumers.” 

Issues, which end up in consideration of violations, are not exclusively dealing with psychotherapy. There are a variety such as: Incomplete disclosure statements to clients, failing to complete a mental health evaluation, practicing with a lapsed license, working as an addiction counselor while under the influence of drugs. 

Disciplinary actions according to DORA from July 2004 through June 30, 2009 on licensed and non-licensed psychotherapists, social workers, marriage and family therapists, professional counselors and addiction counselors totaled 319, an average of 64 per fiscal year. 

If I could decide what to do, it would be to continue the existence of the mental health boards and add a board for addiction counselors. Let the other issues wait to be considered in 2012 subject to DORA review of Health Committee amendments and the DORA opposition to the claim of support to the mental health professionals’ attempt to change majority control of the mental health committees. 

Jerry Kopel served 22 years in the Colorado House.