Commerce, Occupational and Professional Licensing

Rule R156-60

Mental Health Professional Practice Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 36757
Filed: 09/13/2012 09:34:35 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division, after consultation with the Social Worker Licensing Board, Marriage and Family Therapist Licensing Board, Clinical Mental Health Counselor Licensing Board, and Substance Use Disorder Licensing Board, determined amendments need to be made to provide necessary clarification of the definition of "employee" and removing Section R156-60-502 regarding unprofessional conduct as it is no longer necessary in this rule.

Summary of the rule or change:

In Section R156-60-102, the term "employee" appears seven times throughout Title 58, Chapter 60. In each case, it is used in the context of outlining a scope of practice of a licensee who is supervised or employed by another person who has the authority to control how services provided by the licensee are performed. The Internal Revenue Service requires that these individuals have a W-2 tax status. As a result, the definition of "employee" should be limited to individuals who have W-2 tax status. Under the current definition, whether these individuals are required to have W-2 tax status is unclear. The proposed amendment provides needed clarification and makes the definition consistent with federal law. In Section R156-60-103, the term "Division" is capitalized in this section. In Section R156-60-502, in this section regarding unprofessional conduct is being deleted in its entirety because each profession licensed under Title 58, Chapter 60, has its own definition of unprofessional conduct. As a result, it is no longer necessary in this rule.

State statutory or constitutional authorization for this rule:

• Subsection 58-1-202(1)(a)
• Subsection 58-1-106(1)(a)
• Section 58-60-101

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $75 to print and distribute the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

The proposed amendments only apply to practicing mental health therapists in training and substance use disorder counselors. As a result, the proposed amendments do not apply to local governments. Some licensees work in local government; however, the proposed amendments would not directly affect local governments.

small businesses:

The proposed amendments only apply to practicing mental health therapists in training and substance use disorder counselors. The clarification of the definition of employee may have cost impact on a small number of businesses that currently employ mental health therapists in training or substance use disorder counselors as 1099 independent contractors. If that is their current practice, the businesses are in violation of federal law. These employees should have W-2 tax status because Title 58, Chapter 60, limits them to supervised practice that the supervisor and employer have the right to control. The Division, however, is not able to estimate any cost impact as a result of this proposed amendment.

persons other than small businesses, businesses, or local governmental entities:

The proposed amendments only apply to practicing mental health therapists in training and substance use disorder counselors. The clarification of the definition of employee may have cost impact on some mental health therapists in training or substance use disorder counselors if they are currently employed under a 1099 independent contractor tax status. However, if that is their current practice, their employer is in violation of federal law. These employees should have W-2 tax status because Title 58, Chapter 60, limits them to supervised practice that the supervisor and employer have the right to control. The Division, however, is not able to estimate any cost impact as a result of this proposed amendment.

Compliance costs for affected persons:

The proposed amendments only apply to practicing mental health therapists in training and substance use disorder counselors. The clarification of the definition of employee may have cost impact on some mental health therapists in training or substance use disorder counselors if they are currently employed under a 1099 independent contractor tax status. However, if that is their current practice, their employer is in violation of federal law. These employees should have W-2 tax status because Title 58, Chapter 60, limits them to supervised practice that the supervisor and employer have the right to control. The Division, however, is not able to estimate any cost impact as a result of this proposed amendment.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing is clarifying in nature and removes an unnecessary provision that is already addressed in separate rules for the individual mental health professions. Therefore, no fiscal impact to businesses is anticipated from these amendments.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Rich Oborn at the above address, by phone at 801-530-6767, by FAX at 801-530-6511, or by Internet E-mail at roborn@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/31/2012

Interested persons may attend a public hearing regarding this rule:

• 10/20/2012 11:59 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 475, Salt Lake City, UT

This rule may become effective on:

11/07/2012

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-60. Mental Health Professional Practice Act Rule.

R156-60-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 60, as used in Title 58, Chapters 1 and 60, or this rule:

(1) "Approved diagnostic and statistical manual for mental disorders" means the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, or the ICD-10-CM published by Medicode, the American Psychiatric Association, or Practice Management Information Corporation in conjunction with the World Health Organization.

(2) "Client or patient" means an individual who, when competent requests, or when not competent to request is lawfully provided professional services by a mental health therapist when the mental health therapist agrees verbally or in writing to provide professional services to that individual, or without an overt agreement does in fact provide professional services to that individual.

(3) "Employee" means an individual who is or should be treated as a W-2 employee by [working or providing services for compensation paid in the form of wages or salary from which there is withheld or should be withheld income taxes or social security taxes under applicable law; or who meets any other definition of an employee established by the Labor Commission of the State of Utah or] the Internal Revenue Service[ of the United States Government].

(4) "General supervision" means that the supervisor is available for consultation with the supervisee by personal face to face contact, or direct voice contact by telephone, radio, or some other means within a reasonable time consistent with the acts and practices in which the supervisee is engaged.

 

R156-60-103. Authority - Purpose.

This rule is adopted by the [d]Division under the authority of Subsection 58-1-106(1)(a) to enable the [d]Division to administer Title 58, Chapter 60.

 

[R156-60-502. Unprofessional Conduct.

"Unprofessional conduct" includes:

(1) to engage with a client/patient in any romantic, any sexual, or any intimate personal relationship, or in a business relationship in which the licensee receives any unilateral benefit or disproportionate benefit; or to engage in any such activity or relationship with a former client/patient during a two year period following the formal and properly documented termination of the professional relationship between the client/patient and the mental health therapist; except under no circumstances shall a licensee at any time engage in any such activity or relationship with a client/patient or former client/patient who is especially vulnerable or susceptible to being disadvantaged because of the client's/patient's personal history, the client's/patient's current mental status, or any condition which could reasonably be expected to place the client/patient at a disadvantage recognizing the power imbalance which exists or may exist between the mental health therapist and the client/patient; and

(2) to engage with a former client/patient in any romantic, any sexual, or any intimate personal relationship, which is not unprofessional conduct under the provision of Subsection (1) without first obtaining professionally documented counseling from another competent mental health therapist with respect to that relationship, and without exercising all reasonable effort to ensure that the relationship is not adverse to the former client's/patient's best interests.

 

]KEY: licensing, mental health, therapists

Date of Enactment or Last Substantive Amendment: [December 15, 1994]2012

Notice of Continuation: July 27, 2009

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-60-101