DAR File No. 44032

Commerce, Occupational and Professional Licensing

Rule R156-61

Psychologist Licensing Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 44032
Filed: 09/03/2019 06:36:36 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

After further research and for purposes of clarification of the language at issue, the Division of Occupational and Professional Licensing (Division) makes this filing to substitute the proposed amendments for the proposed amendments published as OAR File No. 43994 in the September 1, 2019, issue of the Utah State Bulletin, Vol. 2019, No. 17, at pages 13-18. As stated in the previous filing, on June 17, 2019, Governor Herbert directed Francine Giani, the Executive Director of the Utah Department of Commerce (Department) who oversees the Division, to have the Psychologist Licensing Board provide guidance, based on the best available science, for rules on the ethical and professional practice of psychology concerning interventions for minor children regarding their sexual orientation and gender identity. After an extensive review of the professional literature, consultation with national experts, and coordination with the American Psychological Association, the Utah Psychologist Licensing Board recommends these amendments to update the rule to define, clarify, and establish current professional definitions and standards with respect to sexual orientation and gender identity, and in particular to define as unprofessional conduct the practice of sexual orientation change efforts or gender identity change efforts with a client who is less than 18 years old. In support of this filing, the Psychologist Licensing Board declares as follows: "It is our conclusion that practices intended to change sexual orientation or gender identity are not demonstrated to be effective, and are associated with harm and the risk of harm, including significant increases in depression, suicidal ideation, and suicide attempts in minors. Interventions undertaken in the name of mental health treatment that harm � and risk harm � to others are contrary to the ethical principles and standards of our profession; chief among these ethical imperatives is our responsibility to "Do No Harm". As such, it is our determination that psychologists participating in these practices are engaging in unprofessional conduct. These conclusions are consistent with practice guidelines and position statements by the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, the Substance Abuse and Mental Health Services Administration, and many other health and mental health organizations. Therefore, we have drafted a proposed rule change to address this issue."

Summary of the rule or change:

In Section R156-61-102, the proposed amendments update references, and define the terms "gender identity", "sexual orientation", "gender identity change efforts" (GICE), and "sexual orientation change efforts" (SOCE). In Section R156-61-502, the proposed amendments update references and add to the definition of unprofessional conduct "engaging in, or attempting to engage in the practice of sexual orientation change efforts or gender identity change efforts with a client who is less than 18 years old".

Statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Subsection 58-1-202(1)(a)
• Section 58-61-101

This rule or change incorporates by reference the following material:

• Updates ASPPB Code of Conduct, published by Association of State and Provincial Psychology Boards (ASPPB), January 1, 2018
• Updates Ethical Principles of Psychologists and Code of Conduct, published by American Psychological Association (APA), January 1, 2017

Anticipated cost or savings to:

the state budget:

The Division estimates that these proposed amendments may result in a potential increase of two additional complaints of unprofessional conduct each year, requiring two investigations consisting of approximately 20 hours per investigation. This may result in a cost to Division investigations of approximately $1,000 per fiscal year ongoing. The amendments are not expected to impact existing Division practices or procedures or other state practices or procedures. Additionally, as described below in the analysis for small businesses and non-small businesses, the Division does not expect any state agencies that may be acting as employers of licensed psychologists to experience any measurable fiscal impacts. Except as described above, the Division estimates that these proposed amendments will have no measurable impact on state government revenues or expenditures, beyond a minimal cost to the Division of approximately $75 to disseminate the rule once the proposed amendments are made effective.

local governments:

The Division estimates that these proposed amendments will have no measurable impact on local governments' revenues or expenditures. None of these amendments are expected to impact local governments' practices or procedures. Additionally, as described below in the analysis for small businesses and non-small businesses, the Division does not expect any local governments that may be acting as employers of licensed psychologists to experience any measurable fiscal impacts.

small businesses:

These proposed amendments will regulate licensed psychologists practicing in Utah, which may indirectly affect the estimated 1,132 small businesses in Utah comprising establishments of licensees engaged in the practice of psychology or who may employ licensed psychologists, such as private or group practices, hospitals, or medical centers (NAICS 621112, 621420, 621330, 622210, 623220, 624190). However, these proposed amendments are not expected to result in any measurable fiscal impact for small businesses. First, the amendments update the rule in accordance with clear practice guidelines and position statements already existing in the industry, including from the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the Substance Abuse and Mental Health Services Administration. The practices of most small businesses are, or should be, already consistent with existing professional practice guidelines and position statements. Second, the proposed amendments will only affect licensees who violate the rules and are disciplined for unprofessional conduct, and as described below for other persons it is estimated that for the typical licensee, the proposed amendments will have no direct or indirect fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most small businesses will never be impacted. Finally, although a small business employing a licensee who is disciplined for unprofessional conduct may face indirect financial costs for such noncompliance, it is impossible to estimate what such indirect costs might be with any accuracy at present, not only because any such violations are unforeseeable, but because any indirect costs from such unforeseen violations that any small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive. In sum, the scope of these proposed amendments is so narrow that they will not affect the vast majority of small businesses, and will not result in a measurable fiscal impact to small businesses.

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

There are approximately 1,058 licensed psychologists and 36 licensed psychology residents in Utah that will be affected by these proposed amendments. No measurable fiscal impact to these persons is expected. First, the proposed amendments will only affect licensees who violate the rules and are sanctioned, so that most licensees will never be impacted. The amendments update this rule in accordance with clear practice guidelines and position statements already existing in the industry, and the practices of most licensees are or should be already consistent with existing professional practice guidelines and position statements. Further, the goal of this rule is to provide a deterrent, such that there is a $0 net impact on all parties involved and minimal occasions to sanction a licensee for noncompliance. Therefore, for the typical licensee, the proposed amendments are expected to have no direct or indirect fiscal impact. Second, although a licensee who is disciplined for unprofessional conduct may experience a fiscal impact, it is impossible to estimate what such costs might be with any accuracy at present, both because they would apply only in cases of unforeseeable violations, and because any potential costs would depend on the unique characteristics and actions of each individual licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.

Compliance costs for affected persons:

As described above for other persons, the Division does not anticipate any compliance costs for any affected persons from these proposed amendments.

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

The Utah Psychologist Licensing Board recommends these amendments to update this rule to define, clarify and establish current professional definitions and standards with respect to sexual orientation and gender identity, and in particular to define as unprofessional conduct the practice of sexual orientation change efforts or gender identity change efforts with a client who is less than 18 years old. Small Businesses (fewer than 50 employees): These proposed amendments will regulate licensed psychologists in Utah, which may indirectly affect the estimated 1,132 small businesses in Utah comprising establishments of licensees engaged in the practice of psychology or who may employ licensed psychologists, such as private or group practices, hospitals, or medical centers (NAICS 621112, 621420, 621330, 622210, 623220, and 624190). However, these proposed amendments are not expected to result in any measurable fiscal impact for small businesses. Non-Small Businesses (50 or more employees): These proposed amendments will regulate licensed psychologists practicing in Utah, which may indirectly affect the estimated 72 non-small businesses in Utah comprising establishments of licensees engaged in the practice of psychology or who may employ licensed psychologists, such as private or group practices, hospitals, or medical centers (NAICS 621112, 621420, 621330, 622210, 623220, and 624190). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small businesses.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office 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:

• Larry Marx at the above address, by phone at 801-530-6254, by FAX at 801-530-6511, or by Internet E-mail at lmarx@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:

10/15/2019

Interested persons may attend a public hearing regarding this rule:

• 09/26/2019 09:00 AM, Heber Wells Bldg, 160 E 300 S, North Conference Room (first floor), Salt Lake City, UT

This rule may become effective on:

10/22/2019

Authorized by:

Mark Steinagel, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$1,075	$1,000	$1,000
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$1,075	$1,000	$1,000
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	($1,075)	($1,000)	($1,000)

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

These proposed amendments will regulate licensed psychologists practicing in Utah, which may indirectly affect the estimated 72 non-small businesses in Utah comprising establishments of licensees engaged in the practice of psychology or who may employ licensed psychologists, such as private or group practices, hospitals, or medical centers (NAICS 621112, 621420, 621330, 622210, 623220, 624190). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small business. First, these amendments update this rule in accordance with clear practice guidelines and position statements already existing in the industry, including from the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the Substance Abuse and Mental Health Services Administration. The practices of most non-small businesses are, or should be, already consistent with existing professional practice guidelines and position statements. Second, these proposed amendments will only affect licensees who violate this rule and are disciplined for unprofessional conduct, and as described above for other persons it is estimated that for the typical licensee, the proposed amendments will have no direct or indirect fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most non-small businesses will never be impacted. Finally, although a non-small business employing a licensee who is disciplined for unprofessional conduct may face indirect financial costs for such noncompliance, it is impossible to estimate what such indirect costs might be with any accuracy at present, not only because any such violations are unforeseeable, but because any indirect costs from such unforeseen violations that any non-small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive. In sum, the scope of these proposed amendments is so narrow that they will not affect the vast majority of non-small business, and will not result in a measurable fiscal impact to non-small business.

 

The head of the Department of Commerce, Francine Giani, has reviewed and approved this fiscal analysis.

 

 

R156. Commerce, Occupational and Professional Licensing.

R156-61. Psychologist Licensing Act Rule.

R156-61-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 61, as used in Title 58, Chapters 1 and 61 or this rule:

(1) "Approved diagnostic and statistical manual for mental disorders" means the following:

(a) Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition: DSM-5 [or Fourth Edition: DSM-IV ]published by the American Psychiatric Association;

(b) [2013]2015 ICD-[9]10-CM for Physicians, [Volumes 1 and 2 ]Professional Edition published by the American Medical Association; or

(c) ICD-10-CM [2013]2019: The Complete Official Draft Code Set published by the American Medical Association.

(2) "CoA" means Committee on Accreditation of the American Psychological Association.

(3) "Direct supervision" of a supervisee in training, as used in Subsection 58-61-304(1)(f), means:

(a) a supervisor meeting with the supervisee when both are physically present in the same room at the same time; or

(b) a supervisor meeting with the supervisee remotely via real-time electronic methods that allow for visual and audio interaction between the supervisor and supervisee under the following conditions:

(i) the supervisor and supervisee shall enter into a written supervisory agreement which, at a minimum, establishes the following:

(A) frequency, duration, reason for, and objectives of electronic meetings between the supervisor and supervisee;

(B) a plan to ensure accessibility of the supervisor to the supervisee despite the physical distance between their offices;

(C) a plan to address potential conflicts between clinical recommendations of the supervisor and the representatives of the agency employing the supervisee;

(D) a plan to inform a supervisee's client or patient and employer regarding the supervisee's use of remote supervision;

(E) a plan to comply with the supervisor's duties and responsibilities as established in rule; and

(F) a plan to physically visit the location where the supervisee practices on at least a quarterly basis during the period of supervision or at a lesser frequency as approved by the Division in collaboration with the Board;

(ii) the supervisee submits the supervisory agreement to the Division and obtains approval before counting direct supervision completed via live real-time methods toward the 40 hour direct supervision requirement; and

(iii) in evaluating a supervisory agreement, the Division shall consider whether it adequately protects the health, safety, and welfare of the public.

(4) "Gender expression" means an individual's presentation and behaviors that express aspects of gender including gender identity or gender role.

(5) "Gender identity" means an individual's experience of their gender, including one's view of oneself as a man, woman, or any other gender.

(6) "Gender identity change efforts" means methods, practices, procedures, or techniques with the goal of changing an individual's gender identity or gender expression.

([4]7) "On-the-job training program approved by the Division", as used in Subsection 58-61-301(1)(b), means a program that meets the standards established in Section R156-61-601.

([5]8)(a) "Predoctoral internship" refers to a formal training program that meets the minimum requirements of the Association of Psychology Postdoctoral and Internship Centers (APPIC) offered to culminate a doctoral degree in clinical, counseling, or school psychology.

(b) A training program may be a full-time one year program or a half-time two year program.

([6]9)(a) "Program accredited by the CoA", as used in Subsections R156-61-302a(1), means a psychology department program that, as of the date on which a student completes a doctoral psychology degree program:

(i) has obtained an accreditation from the CoA; or

(ii)(A) has applied to the CoA for accreditation;

(B) has been approved by the CoA for a site visit, which is to occur within the ensuing six years; and

(C) has not previously been denied accreditation by the CoA.

([7]10)(a) "Program of respecialization", as used in Subsection R156-61-302a(3), is a formal program designed to prepare someone with a doctoral degree in psychology with the necessary skills to practice psychology.

(b) The respecialization activities shall include substantial requirements that are formally offered as an organized sequence of course work and supervised practicum leading to a certificate (or similar recognition) by an educational body that offers a doctoral degree qualifying for licensure in the same area of practice as that of the certificate.

(11)(a) "Psychology training", as used in Subsection 58-61-304(1)(e), means practical training experience providing direct services in the practice of mental health therapy and psychology under supervision. All activities in full-time internships and full-time post-doctoral positions devoted solely to mental health delivery meet this definition.

(b) Activities not directly related to the practice of psychology, even if commonly performed by psychologists, do not meet the definition of psychology training under Subsection 58-61-304(1)(e). Examples of ineligible activities include psychology coursework, analog clinical activities (e.g. role plays), activities required for business purposes (e.g. billing), supervision of others engaged in activities other than practice of psychology (e.g. supervising adolescents in wilderness settings), and activities commonly performed by non-psychologists(e.g. teaching of psychology on topics not of a professional nature).

([8]12) "Qualified faculty", as used in Subsection 58-1-307(1)(b), means a university faculty member who provides pre-doctoral supervision of clinical or counseling experience in a university setting who:

(i) is licensed in Utah as a psychologist; and

(ii) is training students in the context of a doctoral program leading to licensure.

([9]13) "Residency program", as used in Subsection 58-61-301(1)(b), means a program of post-doctoral supervised clinical training necessary to meet licensing requirements as a psychologist.[

(10)(a) "Psychology training", as used in Subsection 58-61-304(1)(e), means practical training experience providing direct services in the practice of mental health therapy and psychology under supervision. All activities in full-time internships and full-time post-doctoral positions devoted solely to mental health delivery meet this definition.

(b) Activities not directly related to the practice of psychology, even if commonly performed by psychologists, do not meet the definition of psychology training under Subsection 58-61-304(1)(e). Examples of ineligible activities include psychology coursework, analog clinical activities (e.g. role plays), activities required for business purposes (e.g. billing), supervision of others engaged in activities other than practice of psychology (e.g. supervising adolescents in wilderness settings), and activities commonly performed by non-psychologists (e.g. teaching of psychology on topics not of a professional nature).]

(14) "Sexual orientation" means an individual's gendered patterns in attraction, feelings, or behavior or identity related to these patterns.

(15) "Sexual orientation change efforts" means methods, practices, procedures, or techniques with the goal of changing an individual's sexual orientation, including gendered patterns in attraction, feelings, or behavior, or identity related to these patterns.

(16)(a) Methods, practices, procedures, or techniques that are neutral with respect to the sexual orientation and gender identity of the individual do not constitute "sexual orientation change efforts" or "gender identity change efforts".

(b) Methods, practices, procedures, or techniques that are neutral with respect to the sexual orientation and gender identity of the individual include, but are not limited to, the following interventions, as long as the interventions do not have the goal of changing an individual's sexual orientation or gender identity:

(i) reducing an individual's internalized stigma;

(ii) providing acceptance, support, and comprehensive assessment of an individual;

(iii) facilitating an individual's active coping, social support, and identity exploration and development;

(v) assisting an individual considering or undergoing gender transition; or

(v) preventing or addressing an individual's unlawful conduct or unsafe sexual practices.

 

R156-61-502. Unprofessional Conduct.

"Unprofessional conduct" includes:

(1) violation of any provision of the "Ethical Principles of Psychologists and Code of Conduct" of the American Psychological Association (APA) as adopted by the APA, [June 1, 2010]January 1, 2017 edition, which is adopted and incorporated by reference;

(2) violation of any provision of the "ASPPB Code of Conduct" of the Association of State and Provincial Psychology Boards (ASPPB) as adopted by the ASPPB, [2005]January 1, 2018 edition, which is adopted and incorporated by reference;

(3) acting as a supervisor or accepting supervision of a supervisor without complying with or ensuring the compliance with the requirements of Sections R156-61-302d and R156-61-302e;

(4) engaging in and aiding or abetting conduct or practices which are dishonest, deceptive or fraudulent;

(5) engaging in or aiding or abetting deceptive or fraudulent billing practices;

(6) failing to establish and maintain appropriate professional boundaries with a client or former client;

(7) engaging in dual or multiple relationships with a client or former client in which there is a risk of exploitation or potential harm to the client;

(8) engaging in sexual activities or sexual contact with a client with or without client consent;

(9) engaging in sexual activities or sexual contact with a former client within two years of documented termination of services;

(10) engaging in sexual activities or sexual contact at any time with a former client who is especially vulnerable or susceptible to being disadvantaged because of the client's personal history, current mental status, or any condition which could reasonably be expected to place the client at a disadvantage recognizing the power imbalance which exists or may exist between the psychologist and the client;

(11) engaging in sexual activities or sexual contact with client's relatives or other individuals with whom the client maintains a relationship when that individual is especially vulnerable or susceptible to being disadvantaged because of his personal history, current mental status, or any condition which could reasonably be expected to place that individual at a disadvantage recognizing the power imbalance which exists or may exist between the psychologist and that individual;

(12) physical contact with a client when there is a risk of exploitation or potential harm to the client resulting from the contact;

(13) engaging in or aiding or abetting sexual harassment or any conduct which is exploitive or abusive with respect to a student, trainee, employee, or colleague with whom the licensee has supervisory or management responsibility;

(14) failing to render impartial, objective, and informed services, recommendations or opinions with respect to custodial or parental rights, divorce, domestic relationships, adoptions, sanity, competency, mental health or any other determination concerning an individual's civil or legal rights;

(15) exploiting a client for personal gain;

(16) using a professional client relationship to exploit a client or other person for personal gain;

(17) failing to maintain appropriate client records for a period of not less than ten years from the documented termination of services to the client;

(18) failing to obtain informed consent from the client or legal guardian before taping, recording or permitting third party observations of client care or records;

(19) failure to cooperate with the Division during an investigation

(20) participating in a residency program or other post degree experience without being certified as a psychology resident for post-doctoral training and experience;

(21) supervising a residency program of an individual who is not certified as a psychology resident;[ or]

(22) when providing services remotely:

(a) failing to practice according to professional standards of care in the delivery of services remotely;

(b) failing to protect the security of electronic, confidential data and information; or

(c) failing to appropriately store and dispose of electronic, confidential data and information; or

(23) engaging in, or attempting to engage in the practice of sexual orientation change efforts or gender identity change efforts with a client who is less than 18 years old.

 

KEY: licensing, psychologists

Date of Enactment or Last Substantive Amendment: [June 15, 2015]2019

Notice of Continuation: September 18, 2018

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-61-101