Scope-of-Practice Expansion Hits Judicial Roadblock

The Sacramento Superior Court has ruled that regulations promulgated by the state Department of Health Services (DHS) in March 2005, which provide expanded authority to psychologists in state-licensed facilities, must undergo a public review and comment period.

The February 17 ruling in Union of American Physicians and Dentists, et al. v. William Gausewitz, et al. came in a lawsuit filed by the union and the California Psychiatric Association (CPA) to invalidate socalled underground regulations. The suit followed the department's approval of regulations that would allow psychologists to admit, transfer, and release patients from all state-licensed health facilities, as well as order seclusion and restraints in those facilities, without consultation and approval of a psychiatrist or other physician.

“Psychologists have tried in many ways to get these authorities through the front door, and this was an attempt to get them through the back door,” said Randall Hagar, CPA's director of government affairs.

Hagar told Psychiatric News that the regulations would have endangered patients by expanding the scope of practice of psychologists into the practice of medicine.

The court ruled that the regulations had significant regulatory effect and that DHS erred in enacting the regulations without providing public notice or a period for public comment.

Similar regulations were proposed by the state DHS in 1994 and 2001 but they were rejected by the California Office of Administrative Law (OAL), which determines if regulations would significantly affect the public and thus require public comment before they become effective. In each case OAL found the regulations in question had significant regulatory effect and therefore needed to be offered for public comment.

The ruling stated that “although the court has given deference to the Office of Administrative Law's interpretation of its own regulation, the court finds the OAL's interpretation to be clearly erroneous and contrary to the plain language of the regulation itself.”

The OAL twice found that the proposed regulation required public review before its most recent decision to allow the regulation without public comment. The court said the OAL's two previous rejections of “these same, or very similar” regulations' implementation without public review contributed to its decision to require a public comment period.

The ruling, by Judge Jack Sapunor, found that state regulations required public review because “public participation in the regulatory process is believed to direct the attention of agency policymakers to the public they serve, thus providing some security against `bureaucratic tyranny.'”

The case revolved in part around DHS's contention that the regulations were“ changes without regulatory effect” based on a 1990 California Supreme Court ruling in California Association of Psychology Providers v. Rank. The decision found that a California hospital may appoint clinical psychologists to its staff and may permit those psychologists to take primary responsibility for the admission, diagnosis, treatment, and discharge of their patients.

Lea Brooks, a spokesperson for DHS, said the department was waiting for the judge's written order and that no decision was yet made on an appeal. The state has 60 days to appeal the decision to a panel of judges in the lower court.

The California Psychological Association, which had sought the regulatory changes, said in a statement that the regulations were required by the state supreme court interpretation of a California law that allowed both psychologists and psychiatrists to diagnose inpatients with mental disorders and authorize the treatment plan for those patients.

The regulations would provide “broader treatment options and more cost-efficient and higher quality patient care,” according to a statement by David Lechuga, president of the California Psychological Association.

The California Attorney General's office filed a brief in the lawsuit that defended the DHS regulation, based in part on its mission to prevent“ discrimination against psychologists, where either a psychiatrist or psychologist may perform the same function.”

Opponents of the regulation said that regardless of its merits, its potential impact on the public and medical professionals required an open airing and debate.

“Today's ruling affirms a basic doctrine in the making of law within any democratic government that holds that the people who are directly affected by laws or regulations must have a say in the shaping of those regulations,” Hagar said.

A copy of the Attorney General Office's filing is posted at<www.calpsychlink.org/progressnotes/UAPDOpposition.pdf>.▪