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
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
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
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>.▪