Law, rules and regulations, not guidelines, specify the requirements for practice and violating them constitutes professional misconduct. Not adhering to this guideline may be interpreted as professional misconduct only if the conduct also violates pertinent law, rules and regulations, some citations of which are listed at the end of this guideline.
Guideline 1: Defining the Terms for Providing Professional Services
As a licensed mental health practitioner, you are required to practice within your authorized scope of practice, as defined in the Education Law, Commissioner's Regulations and Rules of the Board of Regents. It is important that you are aware of any restrictions that are based on law or regulation, as well as those areas in which you are competent to practice.
A licensed mental health practitioner may be charged with unprofessional conduct for practicing the profession beyond the authorized scope. A licensee can be charged with gross incompetence for providing professional services that they are not competent to provide, even one that falls within the legal scope of practice for their profession. As a licensed professional, it is your responsibility to practice within the scope of your abilities and expertise. If you practice beyond your personal scope of competence, you can be charged with professional misconduct.
At the outset of service, you should provide your patient with information on what services you or your agency can provide to patients and what is required of patients receiving these services. You should involve your patient in the development and implementation of any treatment program or service plan to the fullest extent of the patient's abilities.
All consumers of services offered by New York State licensed professionals have the right to:
- receive competent professional services;
- verify the credentials of licensed professionals and to know the names and titles of licensed professionals who provide services;
- receive clear explanations of the services being offered or provided and how much they cost;
- refuse any services offered;
- know what patient records will be maintained and how to obtain copies; personally identifiable information normally cannot be revealed without the patient's consent;
- file a complaint with the State Education Department about a licensed professional or an unlicensed practitioner; and
- request and be provided a reasonable accommodation to access professional services if they have a disability.
You may wish to develop a written statement for the patient to sign to document informed consent to treatment and the boundaries of practice. Items that could be included in such a form include:
- your qualifications as a licensed professional and the qualifications of any staff you employ or supervise who might be treating the patient;
- your requirement to report suspected child abuse and maltreatment or crimes, in conformance with applicable State and federal laws and regulations;
- a delineation of services that you provide in your practice, as well as situations in which you may seek the patient's consent to consult with another licensed colleague or refer for supplementary treatment.
If you ask the patient to sign the consent form, you should provide the patient with a copy and place the original in the patient's file.
Fees and Procedures
You may wish to provide a written statement to your patient regarding all fees and relevant business procedures. This may include, but is not limited to, procedures for billing and payment including the use of collection agencies, when appropriate, requirements for canceling appointments, charges for missed appointments, and your patient's right to access records under the law.
If you participate with third-party insurers, including public programs, you should communicate particular requirements and responsibilities to your patient and conform with applicable State or federal laws, rules or regulations.
Termination of Services
The patient has the right to terminate services at any time. However, if a patient wishes to stop using your services against your advice and you believe that this places the patient or others at risk, you should develop a clear plan, preferably in writing, for re-engaging the patient or directing the patient to other services and measures taken by you to prevent patient harm to self or others. You should note why you believe termination is not appropriate, any alternative services that could be sought by the patient, and the means by which the patient may return to your care. Provide a copy of the plan to the patient and place a copy in the patient's file.
If you close your practice, provide reasonable advance notice in writing and a clear, written plan to patients for continuation of care and transfer of records. You should place a copy of the plan in the patient's file and ensure safe storage of records.
When you are not accessible or available for a short time, for example during your vacation, you should provide patients with information on how to contact you or a qualified, licensed professional in the event of an emergency.
Citations of Pertinent Law, Rules or Regulations:
- Education Law, section 6509(9) - unprofessional conduct
- Education Law, section 6509-a - fee splitting
- Education Law, section 8402(1) - practice of mental health counseling
- Education Law, section 8403(1) - practice of marriage and family therapy
- Education Law, section 8404(1) - practice of creative arts therapy
- Education Law, section 8405(1) - practice of psychoanalysis
- Education Law, section 8407 - boundaries of professional competency
- Regents Rules, part 29.1(b)(2) - exercising undue influence
- Regents Rules, part 29.1(b)(3) - referral fees
- Regents Rules, part 29.1(b)(4) - fee splitting
- Regents Rules, part 29.1(b)(7) - failing to release requested records
- Regents Rules, part 29.1(b)(11) - patient/client authorization of services
- Regents Rules, part 29.1(b)(12) - advertising not in the public interest
- Regents Rules, part 29.2(a)(1) - abandoning a patient/client
- Regents Rules, part 29.2(b) - failing to provide access to records as required by Public Health Law, section 18
- Regents Rules, part 29.15 - special provisions for the professions of creative arts therapy, marriage and family therapy, mental health counseling, and psychoanalysis