SD32 - The Feasibility of Licensing Marriage and Family Therapists in the Commonwealth of Virginia

  • Published: 1994
  • Author: Department of Health Professions and Board of Health Professions
  • Enabling Authority: Chapter 795 (Regular Session, 1993)

Executive Summary:
Background and Authority

Senate Bill 1036 was introduced in the 1993 Session of the Virginia General Assembly as a legislative proposal to require the licensure of marriage and family therapists (MFTs) in the Commonwealth and to establish a Board on Marriage and Family Therapy within the Department of Health Professions to administer and enforce the licensure program.

Subsequent amendments, enacted by the General Assembly, resulted instead in a request for the Board of Health Professions to study the issue of licensure:

"The Board of Health Professions is requested to study the feasibility of licensing marriage and family therapists. Pursuant to this study, the Board may recommend the structure for the licensure and regulation of marriage and family therapists and may develop proposed regulations governing the licensure of marriage and family therapists by December 1, 1993. The Board shall conclude its study and report to the Governor and the 1994 Session of the General Assembly..."

The Bill, as enacted, defers to the statutory authority of the Board of Health Professions to "evaluate all health care professions and occupations in the Commonwealth, including those regulated and those not regulated...to consider whether each such professions should be regulated and the degree of regulation to be imposed" (Code of Virginia § 54.1-2510.2. This authority is advisory only; enactment of any provision to regulate any profession at any level is reserved to the General Assembly, which has articulated the policy of the Commonwealth with respect to occupational and professional regulation:

"...the right of every person to engage in any lawful profession, trade or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when it is found that such abridgment is necessary for the preservation of the health, safety and welfare of the Public." (Code§ 54.1-100)

Study Methods

The Board of Health Professions conducted the following research related to the feasibility of licensing marriage and family therapists:

1. Review of the history and system for the regulation of mental health and counseling professions in the Commonwealth.

2. Review of the experience of other states and jurisdictions in the regulation of these professions, including marriage and family therapists.

3. Conduct of an informational hearing and a widely-publicized invitation to comment on the issue of licensure of marriage and family therapists.

4. Application of seven criteria adopted by the Board to evaluate the need to regulate currently unregulated health professions and occupations (see page 24).

The review was conducted by the Board's Regulatory Research Committee. The findings and recommendations in this report were approved by majority vote of the full Board at its meeting on October 19, 1993.

Discussion

Two issues dominate discussion of the feasibility and merits of licensing marriage and family therapists in the Commonwealth: (1) whether marriage and family therapy constitutes a distinct profession with a unique scope of practice, and (2) the characteristics of occupational licensure and its implications for restricting the marketplace.

First, while it is clear that marriage and family therapy constitutes a distinct constellation of services for the most prevalent of all social institutions (conjugal pairs and families) and that these services are increasingly sought by consumers, paid for by third-party payers, and valued as legitimate among an array of mental health and counseling services, there is no consensus that marriage and family therapy constitutes an identifiable profession, distinct from other regulated and unregulated mental health and counseling professions.

Second, although the term "licensure" is frequently and incorrectly used to denote any level of occupational regulation, licensure is but one of several levels of regulation which have very different implications for restriction of the marketplace. While these levels are not explicitly defined in Virginia statutes pertaining to the regulation of health occupations and professions, the Board of Health Professions has adopted the following working definitions to guide its evaluations of the need for regulation and the level of regulation to be imposed:

"Licensure is the most restrictive level of occupational regulation. Licensure generally involves the delineation in statute of a scope of practice which is reserved to a select group based upon their possession of unique, identifiable, minimal competencies for safe practice. In this sense State Licensure endows a particular occupation or profession with a monopoly in a specified scope of practice.

The practice of medicine, nursing, dentistry, pharmacy, optometry, veterinary medicine, and a number of other health professions requires a license in order to provide services within a legally specified scope of practice.

Certification is a less restrictive level of regulation, more commonly known as 'title protection.'

In certification programs, no scope of practice is described in the law; anyone may provide services falling within the scope of practice of the certified occupation or profession, but only those who have met a minimal standard established by the State may use the protected title.

Occupational therapy, respiratory therapy, and radiologic technology are examples of health professions which are certified in the Commonwealth. While others may provide occupational, respiratory, or radiologic health services, only certified personnel who have met standards established by the State may use statutorily-protected titles (e.g. "occupational therapist," "respiratory therapist," "certified radiological technology practitioner,") or similar titles connoting certification by the State.

Registration is the least restrictive form of occupational regulation. It generally requires only that a practitioner register with the State; no standard is imposed upon those who desire to register to perform a service."
In reviewing the need for additional health professional regulation, the Board first assesses the risk for harm from unregulated practice, then evaluates the need for specialized skills and training, the level of autonomy of practitioners, the scope of the practice, the economic impact of regulation, and available alternatives to regulation of the occupation or profession that would provide protection to the public. Only when these assessments are completed does it determine the level of regulation to be recommended. That determination rests on the principle that the least restrictive level of regulation consistent with public protection will be recommended.

The Virginia Association of Marriage and Family Therapists (VAMFT) is the principal professional organization seeking licensure of MFTs in the Commonwealth. During the course of the review, VAMFT identified a number of other options that would also be acceptable. These included (in the order of the association's preference):

(1) establishment of an "umbrella board" for the licensure of marriage and family therapists, professional counselors, psychologists, and social workers;

(2) incorporation of the licensure of MFTs into an existing, but retitled board (e.g., Board of Professional Counselors and Marriage and Family Therapists);

(3) establishment of a separate board for the licensure of MFTs, and;

(4) establishment of a certification program for MFTs to be available to licensees of existing boards (physicians, nurses, professional counselors, psychologists, social workers) and to MFTs who do not meet licensure requirements for these professions.

A staff report to the Board endorsed the last alternative, a certification program that would be voluntary for already licensed mental health and counseling professionals and mandatory for those who do not meet existing licensure requirements.

Because the General Assembly specified that the Board should study the feasibility of licensing marriage and family therapy, however, the Board's findings and recommendations are confined to licensure. Licensure is an appropriate form of regulation only when it is the least restrictive method available to protect the public, and when a profession or occupation has a unique scope of practice which may be defined in enforceable terms in law and reserved to a single occupation or profession.

Based on its research and through application of its formal evaluation criteria, the Board of Health Professions finds that marriage and family therapy does not constitute a distinct profession, separate from the provision of other mental health and counseling services, and that, as a consequence, licensure of marriage and family therapists is an overly restrictive means for providing public protection.

In making this determination, the Board emphasizes its belief that individuals trained and competent in the provision of marriage and family therapy services should be empowered to practice in the Commonwealth. This authorization to earn a livelihood may be achieved by (a) becoming licensed within one of the currently licensed professions (medicine/psychiatry, psychology, professional counseling, social work, or as a psychiatric mental health nurse clinician) by meeting existing standards for such licensure, or (b) revision of these standards to accommodate those who are clearly competent to provide marriage and family therapy services, but who fail to meet particularistic requirements for licensure within an existing profession.

Findings and Recommendation

As a result of its assessment, the Board of Health Professions respectfully submits the following findings and recommendation for the consideration of the Governor and the General Assembly. The findings relate specifically to the seven criteria the Board uses to determine whether regulation is in the public interest, and to recommend the least restrictive regulatory provisions consistent with the protection of the public health, safety and welfare.

Findings

1. There is a risk for harm from the unregulated practice of marriage and family therapy. Those who provide marriage and family therapy services should be licensed as mental health or counseling professionals, except when exempted from these requirements by Virginia statute.

2. The practice of marriage and family therapy requires specialized skills and training. These skills and this training may be acquired in programs preparing individuals for licensure as regulated mental health and counseling service providers, or in special programs for the preparation of marriage and family therapists.

3. The functions and responsibilities of marriage and family therapists require independent judgment and providers of these services practice autonomously;

4. While distinguishable from other regulated and unregulated mental health and counseling services, the practice of marriage and family therapy should not be confined to those trained in special programs for the preparation of marriage and family therapists.

A number of mental health and counseling professions are currently licensed: psychiatry (as a branch of medicine), clinical and other psychology, professional counselors, clinical and other social workers, and psychiatric mental health nurse clinicians. The scope of practice of each of these professions is broad and "generic," and arguably includes the provision of marriage and family therapy services.

5. The economic impact of licensing marriage and family therapists is not justified. Licensure implies one of two conditions that would create unnecessary costs or unduly restrict the supply of practitioners:

a. other licensed professionals (e.g. psychiatrists, clinical and other psychologists, clinical social workers, professional counselors, psychiatric mental health nurse clinicians) would need to be additionally licensed to offer marriage and family therapy services within their practice, or

b. the practice would be confined to individuals prepared in educational and experiential programs designed exclusively for the preparation of marriage and family therapists.

6. There are less restrictive and less costly alternatives to the separate licensure of marriage and family therapists that could protect the public. Among these alternatives is the requirement that individuals specially prepared in marriage and family therapy educational programs qualify for licensure within an existing program for the licensure of mental health and counseling professionals.

7. The least restrictive mechanism for qualifying graduates of accredited marriage and family therapy programs is to revise licensure requirements now in effect to permit competent MFTs to become licensed as professional counselors with a scope of practice limited to marriage and family therapy services.

In reaching these findings, the Board is acutely aware of the lack of consensus among organized professions regarding the need for a legally defined and separate identity for providers of marriage and family therapy services. Despite continuing interprofessional conflict, a majority of states, the federal government, private third-party payers, and other agencies and organizations recognize this distinct identity. There is a need to monitor developments related to marriage and family therapy on a continuing basis.

In the Commonwealth, although marriage and family therapy services are provided by a: number of licensed professions, widespread exemptions in some existing licensure requirements -- social work, counseling, and to a lesser degree, psychology -- make it possible for unlicensed persons to provide these services as employees of public agencies and private non-profit organizations. No specific regulatory program has been developed to ensure the competency of those who provide marriage and family therapy services either among currently licensed providers or providers in "exempt" settings. Such assurance is available only to the extent that practitioners are licensed to engage in private, proprietary practices and refrain from providing services beyond those for which they have been prepared.

Ironically, State-funded programs for the graduate education of marriage and family therapists are in operation in the Commonwealth even though graduates of these programs cannot practice without further preparation for licensure in an existing mental health or counseling profession, or unless they are employees of public or private, nonprofit organizations. As a consequence of these concerns, the Board submits the following additional finding:

7. Virginia should continue to monitor developments related to marriage and family therapy, and the Commonwealth should not construe its current licensure programs for mental health and counseling professions to exclude persons prepared as marriage and family therapists from practicing in the Commonwealth. Every effort should be made to accommodate and facilitate the licensure of persons prepared as marriage and family therapists as legitimate providers of mental health and counseling services in the Commonwealth.

The following recommendation is provided for the guidance of the General Assembly in response to Senate Bill 1039 (1993 Session).

Recommendation

The Board of Health Professions recommends that the General Assembly decline to enact legislation at this time to require (1) the licensure of marriage and family therapists as a separate profession, or (2) the creation of a separate licensure board for marriage and family therapists.

To ensure that the Commonwealth properly monitors developments related to marriage and family therapy, the Board of Health Professions will continue its ongoing review of issues affecting the regulation of mental health and counseling professions and exercise its authority to advise the Governor, the General Assembly, and the Director of the Department of Health Professions in matters related to the regulation or deregulation of these professions. In conducting this review, the Board will also assess the responsiveness of boards within the Department in facilitating and accommodating the safe, cost-effective and equitable provision of marriage and family therapy services in the Commonwealth.