sb 0343

CHAPTER 233

SB 343-FN – FINAL VERSION

03/07/12 0881s

03/28/12 1410s

25Apr2012… 1816h

15May2012… 2192h

06/06/12 2479EBA

2012 SESSION

12-2860 10/03

SENATE BILL 343-FN

AN ACT establishing an independent board of psychologists.

SPONSORS: Sen. Carson, Dist 14; Sen. Larsen, Dist 15; Sen. De Blois, Dist 18; Sen. Forrester, Dist 2; Sen. Gallus, Dist 1; Rep. Weyler, Rock 8; Rep. Winter, Merr 3; Rep. Whitehead, Hills 26

COMMITTEE: Health and Human Services

AMENDED ANALYSIS

This bill establishes a board of psychologists for the regulation of licensed psychologists. Currently the board of mental health practice regulates licensed psychologists. The bill continues the responsibility of the board of mental health practice to establish the fees charged to psychologists.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [~~in brackets and struckthrough.~~]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/07/12 0881s

03/28/12 1410s

25Apr2012… 1816h

15May2012… 2192h

06/06/12 2479EBA

12-2860

10/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT establishing an independent board of psychologists.

Be it Enacted by the Senate and House of Representatives in General Court convened:

233:1 New Chapter; Psychologists; Board Established. Amend RSA by inserting after chapter 329-A the following new chapter:

CHAPTER 329-B

PSYCHOLOGISTS

329-B:1 Purpose; Application. The purpose of this chapter is to regulate the practice of psychology by practitioners in New Hampshire to assure that the services provided are of a quality consistent with the standard of care within the profession, and to safeguard the public against harm which may be caused by untrained, unskilled, or unlicensed practitioners. Specifically, this chapter applies to practitioners providing psychological services and psychology practice to persons as defined under RSA 329-B:2, VII and VIII.

329-B:2 Definitions. In this chapter:

I. “Board” means the board of psychologists.

II. “Board investigator” means the board member appointed by the board to oversee the professional conduct investigation committee and serve as a liaison between the board and that committee.

III. “Client” or “patient” means a person who seeks or obtains psychological services.

IV. “Former client” or “former patient” means a person who was given psychological services within the previous 7 years.

V. “Privilege” is the right of a patient for privacy of his or her psychological records, which belong to the patient and which shall not be abridged except by court order or other exception under state or federal law.

VI. “Professional conduct investigator” means a trained psychologist licensed by the board who acts as the agent of the board under the guidance of the board investigator and is authorized to discover facts and make reports to the board.

VII. “Psychology practice” means:

(a) The observation, description, evaluation, interpretation, prediction, and modification of human behavior by the application of psychological principles, methods, and procedures, for the purposes of:

(1) Preventing, eliminating, evaluating, assessing, or predicting symptomatic, maladaptive, or undesired behavior;

(2) Evaluating, assessing, or facilitating the enhancement of individual, group, or organizational effectiveness, including personal effectiveness, adaptive behavior, interpersonal relationships, work and life adjustment, health, and individual, group, or organizational performance; or

(3) Assisting in legal decision-making.

(b) Psychological testing and the evaluation or assessment of personal characteristics, such as intelligence; personality; cognitive, physical, and emotional abilities; skills; interests; aptitudes; and neuropsychological functioning;

(d) Diagnosis, treatment, and management of mental and emotional disorder or disability, alcoholism and substance abuse, disorders of habit or conduct, and the psychological aspects of physical illness, accident, injury, or disability;

(e) Psycho-educational evaluation, therapy, and remediation;

(f) Consultation with other psychologists, physicians, other health care professionals, and patients regarding all available treatment options, including medication, with respect to provision of care for a specific client or patient or group;

(g) Provision of direct services to individuals or groups for the purpose of enhancing individual and organizational effectiveness, or using psychological principles, methods, or procedures to assess and evaluate individuals on personal characteristics for individual development or behavior change, or for making decisions about the individual, such as selection;

(h) Provision of any of these services or activities by any means, including electronic or telephonic; and

(i) The supervision of any of these services or activities;

The practice of psychology shall be construed within the meaning of this definition without regard to whether payment is received for services rendered.

VIII. “Psychology services” means the observation, description, evaluation, interpretation, diagnosis, and modification of human behavior by the application of psychological and systems principles, methods, and procedures for the purpose of preventing or eliminating symptomatic, maladapted, or undesirable behavior and of enhancing interpersonal relationships, work and life adjustments, personal effectiveness, behavioral health, and mental health, as well as the diagnosis and treatment of the psychological and social aspects of physical illness, accident, injury, or disability. Psychology services may include, but shall not be limited to, those services based on diagnosis and treatment of mental and emotional disorders and psycho-educational or consultative techniques integral to the treatment of such disorders when diagnosis is specified in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, The International Classification of Disease Manual (ICD), or an equivalent of such manual as determined by the board. Psychological services may be rendered to individuals, families, groups, systems, or organizations.

IX. “Psychologist” means any person licensed as a psychologist under this chapter.

X. “Psychology intern, resident, or fellow” means a person in training as a psychologist, subject to the provisions of this chapter and regulation by the board.

XI. “Psychotherapist” means a psychologist licensed under this chapter who performs or purports to perform psychotherapy.

XII. “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

XIII. “Sexual relations” means the intentional touching of any part of the client or patient’s body or any verbal or nonverbal communication for the purpose of sexual arousal or gratification of either party.

329-B:3 Board of Psychologists.

I. There shall be a board of psychologists composed of 5 licensed psychologists and 3 public members. The members shall be appointed to a term of 3 years by the governor with the approval of the council. The members of the board shall elect a chairperson on an annual basis. Chairperson terms shall alternate between psychologist and public members.

II. The board members shall not serve more than 2 consecutive 3-year terms.

III. Members shall serve terms for the initial board appointment period staggered across the following terms: 2-year, 3-year, and 4-year lengths. Distribution of appointees for each term length shall be one public board member serving in each term length and 2 professionals serving the 2-year and 3-year term lengths and one professional serving the 4-year term length. All subsequent appointments shall be for 3-year terms.

329-B:4 Committees Established; Duties.

I. The board shall create an advisory committee for the purpose of assisting the board in its responsibilities under RSA 329-B:10. A board member shall be appointed by the board to chair the advisory committee. The balance of the membership of the advisory committee shall be composed of psychologists licensed by the board to a maximum of 4 members.

II. The board shall create a committee for professional conduct investigations for the purpose of assisting the board in its responsibilities under RSA 329-B:22 and RSA 329-B:23. A board investigator, appointed by the chairperson of the board with the advice and consent of the board, shall chair the professional conduct investigation committee. The balance of the membership of the professional conduct investigation committee shall be composed of psychologists licensed by the board to a maximum of 12 members.

III. The board shall create a professional’s health committee to administer the professional’s health program which shall address issues that may impinge on a practitioner’s ability to practice. A board member, appointed by the chairperson of the board with the advice and consent of the board, shall chair the professional’s health committee. The balance of the membership of the professional’s health committee shall be composed of psychologists licensed by the board to a maximum of 12 members.

IV. Members of committees established under this section shall be appointed by the board and shall serve at the pleasure of the board for no more than 3 consecutive, 2-year terms.

V. The board shall not form any standing committees other than those specified in this section.

329-B:5 Administrative Attachment. The board shall be administratively attached under RSA 21-G:10, to the department of health and human services. In addition, the board shall be subject to the provisions of RSA 126-A:10-a.

329-B:6 Qualifications; Administrative Members.

I. Each nonpublic member of the board and the advisory committee shall be a resident of this state and licensed under the provisions of this chapter.

II. Each nonpublic member of the board and all licensed professionals performing board-related duties otherwise immune from civil action pursuant to RSA 329-B:21, V shall comply with and be subject to all provisions of this chapter and the licensee’s professional ethical code in performing board-related duties.

III. Each public member of the board shall be a person who is not, and never was a member of the mental health profession or the spouse of any such person, and who does not have, and never has had, a material financial interest in either the provision of mental health services, a health insurance company, health maintenance organization, or an activity directly related to mental health practice, including representation of the boards or profession for a fee, at any time during the 5 years preceding appointment.

329-B:7 Compensation; Expenses. Members of the board and members of the committees shall receive a per diem compensation of $100, for a meeting or any other board or committee activity requiring 2 or more hours in a 24-hour period, and shall be reimbursed for all actual travel, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this chapter.

329-B:8 Removal of Members; Vacancies. The governor and council may remove any member of the board for misconduct, incompetence, neglect of duty, or other sufficient cause after the member has been given a written statement of the charges and an opportunity to be heard regarding such charges. Any vacancy in the membership of the board occurring otherwise than by expiration of a member’s term shall be promptly filled for the unexpired term, after which the replacement board member shall be eligible for one additional consecutive term if reappointed. The replacement board member shall be of the same qualification and appointed by the governor and council.

329-B:9 Organization and Meetings.

I. The board shall hold regular annual meetings. Other meetings of the board shall be held at such times and upon such notice as the rules of the board provide. Five members shall constitute a quorum.

II. When a quorum is not available for just and timely resolution of a specific matter, former board members may be appointed by the board to serve as acting board members for purposes of obtaining the minimum quorum in the resolution of that specific matter or in an adjudicatory hearing.

329-B:10 Board; Responsibilities and Rulemaking Authority. The board shall adopt rules, pursuant to RSA 541-A, relative to:

I. The application procedure for any license issued under this chapter.

II. Procedures for expedited licensure for applicants from other states who qualify under RSA 329-B:20.

III. The qualifications of applicants in addition to those required by statute.

IV. The design and content of all forms required under this chapter.

V. How an applicant shall be examined, including:

(a) Time and place of examination.

(b) The subjects to be tested.

(d) Disposition of examination papers.

VI. How a license shall be renewed, reinstated, or placed on inactive status.

VII. Ethical standards, as promulgated by the American Psychological Association, required to be met by each psychologist licensed under this chapter, and how a license may be revoked for violation of these standards.

VIII. Procedures, standards, and supervision requirements for candidates for licensure, consistent with the standards established by the advisory committee and the board. All candidates for licensure shall be documented with the board.

IX. Establishment of the scope of practice for psychologists.

X. Procedures for assuring the continuing competence of psychologists licensed under this chapter including, but not limited to, continuing education requirements, and the professional’s health program.

XI. How licensees shall provide evidence of good professional character and reliability to satisfy the board that they shall faithfully and conscientiously avoid professional misconduct and otherwise adhere to the requirements of this chapter.

XII. Procedures for accepting and responding to written complaints, publicizing the complaint procedure, standards of and procedures for conducting investigations, investigator training requirements, and procedures for conducting disciplinary hearings and alternative dispute resolution under this chapter.

XIII. The content of the materials and information to be distributed under RSA 329-B:14.

XIV. Requirements to be met by licensees relative to the disclosure of information to patients and the general public concerning the nature of psychological services and the responsibilities of psychologists to clients or patients in RSA 329-B:32.

XV. Procedures for receiving and addressing complaints against licensees who have had a personal or professional relationship with a board member.

XVI. Procedures relative to the disclosure to the public of final disciplinary actions by the board, including those actions that occur without holding a public hearing. Dismissed complaints shall not be made public.

XVII. Standards of care for the practice of telemedicine or tele-health.

XVIII. Guidance for providing informed consent under RSA 329-B:32.

329-B:11 Receipts and Disbursements. The board of mental health practice, under its continuing responsibility to establish fees for psychologists, shall receive and account for all fees under the provisions of this chapter, and shall pay such moneys to the state treasurer to be deposited in the general fund.

329-B:12 Establishment of Fees; Continued Responsibility of Board of Mental Health Practice. The board of mental health practice, pursuant to RSA 330-A:12, II, shall continue to establish fees applicable to psychologists for review of applicants; licensure; renewal of license; reinstatement of license; inactive license status; reactivation of an inactive license; examination of applicants; transcribing and transferring records; and other services, including investigations and hearings conducted under this chapter.

329-B:13 Records and Reports.

I. The board shall keep records of its proceedings and separate registers of all applications for licensure and all complaints filed against licensees. Such records shall show information relative to the application or complaint and the board’s response to the application or complaint, without disclosing the identity of those involved, as the rules of the board may prescribe. The records shall be public and shall be open to inspection at all reasonable times, except for records compiled in connection with disciplinary investigations and records otherwise exempt from disclosure under RSA 91-A or other applicable statutes.

II. Biennially, as of October 1, the board shall submit to the governor a report of the applications, licensure, and other activity of the preceding biennium, and shall also transmit a complete statement of the expenditures of the board.

329-B:14 Information on Sexual Misconduct. The board shall inform all applicants for licensure under this chapter that the board deems sexual misconduct as provided in RSA 329-B:30 to be unethical, unprofessional, and dishonorable conduct subject to disciplinary action by the board. The board shall make available to all licensees, or persons applying for licensure, under this chapter information and materials, as determined by the board, pursuant to rules adopted under RSA 541-A, regarding such sexual misconduct.

329-B:15 Psychologist License.

I. The board shall issue a psychologist license to any person who:

(a) Has passed a satisfactory examination in psychology.

(b) Has received the doctoral degree based on a program of studies, the content of which was primarily psychological, from a regionally accredited educational institution having a graduate program, or its substantial equivalent in both subject matter and extent of training.

(d) Is of good professional character.

(e) Has paid all fees established and collected by the board of mental health practice.

II. Examinations for applicants under this chapter shall be held by the board at least once each year. The board shall determine the subject and scope of the examination, which may be written, oral, or both. If an applicant fails the first examination, the applicant may be admitted to a subsequent examination upon the payment of an additional fee in the amount established by the board of mental health practice under RSA 330-A:12.

329-B:16 Electronic Practice of Psychology, Tele-health, Telemedicine. Persons licensed by the board who practice electronically shall be subject to standards of care for the practice of telemedicine and tele-health for psychology established by the board pursuant to rules adopted under RSA 541-A.

329-B:17 Unlawful Practice; Penalty.

I. Except as provided in RSA 329-B:20 and RSA 329-B:28, it shall be unlawful for any person to be engaged in psychology practice unless that person is licensed by the board or working under the direct supervision of a person licensed by the board. The license of such person shall be current and valid. It shall be unlawful for any person to practice as or to refer to oneself as a psychologist or use the word “psychology” or “psychological” in such person’s title or in the title of such person’s work products unless that person is licensed by the board or working under the direct supervision of a person licensed by the board.

II. Except as otherwise provided in this chapter, any person who violates paragraph I or paragraph III of this section or who violates any of the other provisions of this chapter relating to psychology, or, having had his or her license suspended or revoked, shall continue to represent himself or herself as a licensed psychologist, shall be guilty of a class A misdemeanor if a natural person, and a felony if any other person, and each violation shall be deemed a separate offense.

III. Any person whose license under this chapter has been suspended or revoked by the board for disciplinary action under RSA 329-B:21 or sexual misconduct under RSA 329-B:30 shall not engage in psychology practice as defined in RSA 329-B:2, VII and VIII unless and until the suspension or revocation of the license has been lifted.

329-B:18 Injunction. The board may request the attorney general to commence an action to enjoin the operation of any person engaged in practicing unlicensed psychology in violation of this chapter. Said action shall be filed in the superior court.

329-B:19 Civil Claims. Any person injured by the actions of a person engaged in the practice of unlicensed psychology in violation of any of the provisions of this chapter may bring a civil action to recover damages suffered by reason of the violations.

329-B:20 Temporary and Emergency Applicants From Other States. Any psychologist practicing pursuant to this section shall conform his or her practice to the mandates of this chapter and the rules of the board. Any psychologist seeking to practice under this section shall register with the board in a manner determined by the board.

I. An individual licensed to practice psychology in another jurisdiction may practice psychology in New Hampshire without applying for a license, if:

(a) The psychologist limits her or his practice in New Hampshire to no more than 30 days per year; and

(b) The psychologist is not the subject of a past or pending disciplinary action in another jurisdiction; and

(1) The requirements for a license in the former jurisdiction are equal to, or exceed, the requirements for licensure in New Hampshire; or

(2) The psychologist is the holder of one of the following credentials:

(A) The Association of State and Provincial Psychology Boards (ASPPB) Certificate of Professional Qualification in Psychology (CPQ);

(B) The ASPPB Interjurisdictional Practice Certificate (IPC);

(D) The National Register of Health Providers in Psychology certification; or

(E) Other equivalent qualifications determined by the board.

II. An individual licensed to practice psychology in another jurisdiction who is providing services in response to a declared disaster, under the American Red Cross or the American Psychological Association’s Disaster Response Network, or other such agency so designated by the board, may practice psychology in New Hampshire for no more than 60 days per year without applying for a state license. Any psychologist practicing pursuant to this paragraph shall conform his or her practice to the mandates of this chapter and rules of the board. Any psychologist seeking to practice under this paragraph shall register with the board or cause said organization to make such registration in a manner determined by the board.

III. The board may issue a temporary license to practice for not more than 90 days in a 12-month period to a psychologist who is licensed in another jurisdiction and who has applied for a temporary license to practice psychology in New Hampshire, provided that:

(a) The requirements for licensure in the licensing jurisdiction are equal to or exceed the requirements for licensure in New Hampshire; and

(b) The applying psychologist meets the requirements for admission to the examination process in New Hampshire; and

329-B:21 Disciplinary Action.

I. The board may, for just cause, undertake an investigation or disciplinary proceedings:

(a) Upon its own initiative.

(b) Upon referral from the advisory committee.

(c) Upon written complaint which charges that a person licensed under this chapter has committed misconduct under paragraph II and which specifies the grounds for such charges.

II. Misconduct sufficient to support disciplinary proceedings under this section shall include any allegations of:

(a) The practice of fraud or deceit in procuring or attempting to procure a license to practice under this chapter.

(b) Conviction of a felony or any offense involving moral turpitude.

(c) Any unprofessional conduct or dishonorable conduct, unworthy of and affecting the practice of the profession, including sexual misconduct as provided in RSA 329-B:30.

(d) Unfitness or incompetency by reason of negligent habits or other causes, or negligent or willful acts performed in a manner inconsistent with the health or safety of persons under the care of the licensee.

(e) Addiction to the use of alcohol or other habit-forming drugs to a degree which renders the licensee unfit to practice under this chapter.

(f) Mental or physical incapacity to practice under this chapter, as established by an independent medical or psychiatric evaluation.

(g) Willful, egregious, or repeated violation of the provisions of this chapter.

(h) Suspension or revocation of a license or registration, similar to one issued under this chapter, in another jurisdiction and not reinstated.

III. The board may take disciplinary action in any one or more of the following ways:

(a) By reprimand.

(b) By suspension, limitation, or restriction of a license for a period of up to 5 years.

(d) By requiring the person to participate in a program of continuing education, supervision, or treatment in the area or areas in which the person has been found deficient.

(e) By assessing administrative fines in amounts established by the board which shall not exceed $2,000 per offense, or, in the case of continuing offenses, $200 for each day up to a total not exceeding $2,000. All amounts collected shall be paid to the state treasurer for deposit in the general fund.

IV. The board may take confidential nondisciplinary actions toward a licensee in any one or more of the following ways:

(a) By mediation.

(b) By letter of concern.

(d) By referring a licensee to the professional’s health program when the licensee presents himself or herself to the board seeking help, or is referred to the board through a third party prior to any allegations of misconduct, or following a complaint.

V. No civil action shall be maintained against the board or any member of the board or its agents or employees with regard to any action or activity taken in the performance of any duty or authority established by this chapter. No civil action shall be maintained against any organization or its members or against any other person for or by reason of any good faith statement, report, communication, or testimony to the board or determination by the board in relation to proceedings under this chapter. Agents of the board granted immunity from civil action shall include persons assigned by the board to supervise disciplined licensees under board-imposed disciplinary requirements. Agents granted civil immunity shall not include supervisors of candidates for licensure. Any member of the board, employee, or agent shall comply with the ethical standards of his or her profession.

VI. Nothing in this chapter shall be construed to restrict the right of appeal under RSA 541.

329-B:22 Investigations and Complaints.

I. The board shall investigate alleged misconduct by licensees and other matters within the scope of this chapter. Investigations may be conducted formally, after issuance of a board order setting forth the general scope of the investigation, or informally, after a board vote to seek additional information, without such an order. In either case, information gathered subsequent to the initiation of and during such investigations shall be exempt from the public disclosure provisions of RSA 91-A, except to the extent such information may later become the subject of a public disciplinary hearing. The existence of a complaint and status of the investigation, without disclosing the identity of those involved, shall be subject to the disclosure provisions of RSA 91-A. The board may disclose information acquired in an investigation to law enforcement or health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders. A licensee under this chapter shall be promptly informed of the nature and scope of any pending investigation.

II. Any board member who has had a personal relationship or has worked in a professional capacity with a complainant or with a licensee against whom a complaint has been filed or whose personal or professional views regarding the licensee or the complainant could prevent the board member from being impartial in considering the complaint shall recuse himself or herself from any investigation or disciplinary action against such licensee. If the chairperson of the board is recused the remaining board members shall elect an acting chairperson from among the board. The chairperson or acting chairperson shall appoint a former board member or a member from the advisory committee to replace the recused board member during the investigation and proceedings against the licensee.

III. After determining the nature and scope of an investigation or hearing, the board may employ or retain hearing officers, legal counsel, medical advisors, psychologist advisors, or investigators to assist with that investigation or hearing. Members of the board are not eligible for retention.

IV. The form taken by an investigation is a matter reserved to the discretion of the board. The board may, with just cause, conduct investigations on an ex parte basis only if there is an imminent danger to life or health of a client or patient.

V.(a) The board or its designee may administer oaths or affirmations, preserve testimony, and issue subpoenas for witnesses and for documents and objects only in a formal investigation or an adjudicatory hearing, except that subpoenas for psychological records as provided in paragraph VI may be issued at any time.

(b) The board may serve a subpoena on a licensee by certified mail in accordance with the procedures and fee schedules used in superior court.

(c) Any subpoena related to appearance at a hearing or investigatory proceeding issued by the board shall be annotated “Fees Guaranteed by the New Hampshire Board of Psychologists” in order to be valid.

(d) A minimum of 48 hours’ notice shall be given for compliance with a subpoena issued under this chapter.

VI. The board may, with just cause, at any time subpoena psychological records from its licensees and from hospitals and other health care providers licensed in this state. Such subpoenas shall be served by certified mail or by personal delivery to the address shown on the respondent’s current license. A minimum of 15 days’ advance notice shall be allowed for complying with a subpoena duces tecum issued under this paragraph.

VII. All licensees shall have the duty to notify the board of their current business and residence addresses, and shall notify the board of any change to either address within 30 days of the change.

VIII. Except for good cause shown, upon its determination that a formal or informal investigation shall be conducted, the board shall mail a copy of a complaint to any licensee who is the subject of the complaint, and require the licensee to provide a detailed and good faith written response to allegations identified by the board. The licensee shall provide complete copies of the licensee’s office records concerning any client or patient identified in the complaint. The licensee shall respond to such request within a reasonable time period of not less than 30 days, as the board shall specify in its written request. The detailed complaint and licensee’s response shall be exempt from disclosure under RSA 91-A unless the licensee successfully petitions the board to make them available pursuant to RSA 91-A:4. The patient’s record shall be exempt from disclosure under RSA 91-A.

IX. The board may dismiss complaints when the undisputed allegations do not warrant disciplinary actions and may settle complaints informally with the consent of the licensee. Some or all of the allegations in a complaint may be consolidated with another complaint or with issues which the board chooses to investigate or hear on its own motion. If an investigation of a complaint results in an offer of settlement by the licensee, the board may settle the allegations against the licensee without the consent of a complainant, provided that the complainant is given an opportunity to comment on the terms of the proposed settlement.

329-B:23 Hearings.

I. Any complaint not dismissed or settled informally shall be heard by the board. Such hearing shall be an open public hearing. Any member of the board shall have the authority to preside at such a hearing and to issue oaths or affirmations to witnesses.

II. The board shall furnish the respondent and the complainant, if any, at least 15 days’ written notice of the date, time, and place of a hearing, except as otherwise provided in this chapter. Such notice shall include an itemization of the issues to be heard, and, in the case of a disciplinary hearing, a statement as to whether the action has been initiated by a written complaint or upon the board’s own motion, or both. If a written complaint is involved, the notice shall provide the complainant with a reasonable opportunity to intervene as a party.

III. The board may, before or after the commencement of an adjudicatory hearing, dispose of disciplinary or licensure allegations arising under this chapter by order of dismissal, settlement, default, consent order, or summary judgment order. In disciplinary hearings, the board may hold prehearing conferences which shall be exempt from the provisions of RSA 91-A, but all final disciplinary actions, including those which occur without holding a public hearing, shall be publicly released at the time they are served upon the parties.

IV. The respondent shall be heard in his or her defense either in person or by counsel and may produce witnesses and testify in his or her behalf. A stenographic record of the hearing shall be taken and preserved. The hearing may be adjourned from time to time.

V. Every final disciplinary action and other adjudicatory decisions made final by the board shall be reduced to writing and served upon the parties. Such decisions shall not be public until they are served upon the parties.

VI. The board shall have no obligation or authority to appoint or provide an attorney to any person appearing at a board hearing or investigation.

VII. Final licensure and disciplinary actions of the board may be appealed to the supreme court under the procedures set forth in RSA 541. However, no sanction imposed by the board shall be stayed during appeal.

329-B:24 Temporary Suspension Where Imminent Threat. In cases involving imminent danger to life or health, the board may order suspension of a license pending hearing for a period of not more than 90 days. In such cases, the basis for the board’s finding of imminent danger to life or health shall be reduced to writing and combined with a hearing notice which complies with RSA 329-B:23, II. A licensee may be allowed additional time to prepare for a hearing, but any additional time for preparation shall result in an extension of license suspension commensurate with the additional time extended.

329-B:25 Expirations, Renewals, Reinstatements, and Inactive Status.

I. Licenses shall be valid for a period of 2 years and shall become invalid on the expiration date unless renewed. It shall be the duty of the board to notify every person licensed by the board under this chapter of the date of expiration of the license and the amount of the fee that shall be required for its renewal for 2 years. Such notice shall be mailed at least 2 months in advance of the date of expiration of such license. Renewal shall be conditional upon filing a timely and complete renewal application and payment of the fee as set by the board of mental health practice under RSA 330-A:12.

II. If a license is not renewed it may be reinstated not later than 6 months after the date of license expiration upon compliance with rules adopted by the board and payment of the fee established by the board of mental health practice under RSA 330-A:12. A license may be placed on inactive status pursuant to rules adopted by the board.

III. Upon the request of a person licensed by the board who is a member of any reserve component of the armed forces of the United States or the national guard and is called to active duty, the board shall place such person’s license on inactive status. The license may be reactivated, after notification to the board, within one year of the person’s release from active status by payment of the renewal fee to the board of mental health practice and with proof of completion of the most current continuing education requirement unless still within the renewal period.

329-B:26 Privileged Communications. The confidential relations and communications between any person licensed under provisions of this chapter and such licensee’s client or patient are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order. Confidential relations and communications between a client or patient and any person working under the supervision of a person licensed under this chapter which are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with the supervising person licensed under this chapter, unless such disclosure is required by a court order. This section shall not apply to hearings conducted pursuant to RSA 135-C:27 through 135-C:54 or RSA 464-A.

329-B:27 Prior Licensure and Jurisdiction.

I. Any psychologist who was licensed under the provisions of RSA 330-A on June 30, 2012, shall continue to be licensed and shall be under the jurisdiction of the board under RSA 329-B.

II. All complaints in process pertaining to psychologists or their trainees under board consideration, investigation, supervision, discipline, settlement, consent decree, and all other matters under RSA 330-A on June 30, 2012 shall be under the jurisdiction of the board under RSA 329-B.

III. All supervision agreements and license applications and renewals, pertaining to psychologists and psychology students in effect or under consideration under RSA 330-A on June 30, 2012 shall be under the jurisdiction of the board under RSA 329-B.

IV. Except for administrative rules relating to establishing and collecting fees for psychologists, administrative rules pertaining to psychologists adopted under RSA 330-A that are in effect on June 30, 2012, shall remain in effect and be administered by the board of psychologists under RSA 329-B until such rules are amended, repealed, superseded, or expired. The board of mental health practice shall continue to have responsibility to establish and collect fees for psychologists.

V. Any psychologist or public member who served on the board established under RSA 330-A prior to June 30, 2012 shall be considered a former member of the board established under this chapter.

329-B:28 Persons Exempted.

I. Nothing in this chapter shall be construed to limit:

(a) The activities of any person licensed or permitted under RSA 330-A.

(b) The psychotherapy activities or services of a person in the employ of a state, county, or municipal agency, other political subdivision, or duly chartered educational institution, insofar as such activities and services are a part of the duties of such person in that salaried position.

(c) The psychotherapy activities and services of a student, intern, or resident in a mental health discipline regulated by the board, who is pursuing a course of study approved by a regionally accredited degree-granting institution or at another training site approved as providing qualifying training and experience constituting a part of the supervised course of study.

(d) The counseling activities and services of rabbis, priests, ministers, Christian Science practitioners, clergy, or members of religious orders when their counseling activities are within the scope of the performance of their regular or specialized ministerial duties and are performed under the auspices or sponsorship of an established and legally recognized church or denomination.

(e) The psychotherapy activities and services of any other person providing mental health services as an employee of or consultant to an institution, facility, or nonprofit institution or agency which provides clinical mental health services and which provides clinical supervision of its staff and which assumes professional, ethical, and legal responsibility for such mental health services.

(f) The psychotherapy activities of individuals who volunteer their services to nonprofit charitable organizations and receive no remuneration for their services.

(g) The psychotherapy activities and services of physicians licensed under RSA 329, and advanced registered nurse practitioners, licensed under RSA 326-B:18.

II. Nothing in this chapter shall be construed to prevent the New Hampshire department of education from credentialing individuals with the title school psychologist or associate school psychologists to provide school psychological services in those settings that are under the purview of the New Hampshire Department of Education. In addition, nothing in this chapter shall be construed to limit the ability of an educator in the field of psychology in a duly chartered educational institution to use his or her appropriate title.

III. Nothing in this chapter shall be construed to limit the psychotherapy activities, services, or use of official title of a person in the employ of a federal agency or institution insofar as such activities and services are a part of the duties of such person in that salaried position.

329-B:29 Civil Liability; Duty to Warn.

I. Any person licensed under this chapter has a duty to warn of, or to take reasonable precautions to provide protection from, a client or patient’s violent behavior when the client or patient has communicated to such licensee a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property.

II. The duty to warn may be discharged by, and no monetary liability or cause of action shall arise against, any person licensed under this chapter if the licensee makes reasonable efforts to communicate the threat to the victim or victims, notifies the police department closest to the client/patient’s or potential victim’s residence, or obtains civil commitment of the client or patient to the state mental health system.

III. No monetary liability and no cause of action may arise concerning client privacy or confidentiality against any person licensed under this chapter for information disclosed to third parties in an effort to discharge a duty under paragraph II.

329-B:30 Sexual Misconduct Subject to Disciplinary Action. Sexual relations with a client or patient or a former client or patient shall be considered sexual misconduct and shall be subject to disciplinary action under RSA 329-B:21 and the duty to inform established in RSA 329-B:31.

329-B:31 Sexual Misconduct; Duty to Inform.

I. If, during the course of psychological therapy a client or patient alleges that a person licensed under this chapter or in the licensed psychotherapy professionals listed in RSA 329-B:28 has engaged with the client or patient in sexual misconduct as described in RSA 329-B:2 and RSA 329-B:30, the person licensed under this chapter shall have a duty to inform the client or patient in the manner provided for in paragraph II.

II. The duty to inform may be discharged by, and no monetary liability or cause of action may arise against, any person licensed under this chapter, if the licensee informs the client or patient of the unethical, unprofessional, and dishonorable conduct of the previous psychotherapist’s actions. Any person licensed under this chapter shall also advise the client or patient that such sexual misconduct is cause for disciplinary action by the board applicable to that profession.

III. No civil or criminal liability shall arise concerning client or patient privacy or confidentiality against a person licensed under this chapter for information disclosed to the board or any other statutorily created medical occupational licensing board conducting disciplinary proceedings in discharging the responsibilities established under this section, provided that such information is disclosed in good faith.

IV. No civil action shall be maintained against any board member, the board, or its agents or employees, or against any organization or its members, including, but not limited to, any member of a professional standards review organization listed in RSA 507:8-c, I, or against any other person for or by reason of any statement, report, communication, or testimony to the board, or determination by the board in relation to disciplinary proceedings under this section provided that such statement, report, communication, or determination is made in good faith.

V. If the client or patient reports such sexual misconduct to the board, the person licensed under this chapter shall provide, either directly or indirectly through referral, support and advocacy to such client or patient in reporting the incident to the board.

329-B:32 Psychology Client-Patient Bill of Rights. The board shall provide guidance for the provision of informed consent for client or patient rights, based on the professional codes of ethics as they apply in the variety of settings in which psychologists practice. When addressing the patient or client rights, reasonable accommodations shall be made for those persons who cannot read or who have communication impairments and those who do not understand English.

233:2 Mental Health Practice; References to Psychologists Removed. Amend RSA 330-A:2 to read as follows:

330-A:2 Definitions. In this chapter:

I. “Alternative provider” means a person who, for remuneration, engages in any aspect of mental health practice as defined in RSA 330-A:2, VI, but does not hold a license issued under this chapter to practice as a licensed [~~psychologist,~~] pastoral psychotherapist, clinical social worker, clinical mental health counselor, or marriage and family therapist, and who has registered with the board prior to July 1, 2007.

II. “Board” means the board of mental health practice.

II-a. “Board investigator” means a board member who is responsible for overseeing the activities of the professional conduct investigation committee.

III. “Client” means a person who seeks or obtains psychotherapy.

IV. “Former client or patient” means a person who was given psychotherapy within the previous 7 years.

V. “Mental health discipline” means the disciplines of those licensed as [~~psychologists,~~] pastoral psychotherapists, clinical social workers, clinical mental health counselors, and marriage and family therapists.

VI. “Mental health practice” means the observation, description, evaluation, interpretation, diagnosis, and modification of human behavior by the application of psychological and systems principles, methods, and procedures for the purpose of preventing or eliminating symptomatic, maladapted, or undesirable behavior and of enhancing interpersonal relationships, work and life adjustments, personal effectiveness, behavioral health, and mental health, as well as the diagnosis and treatment of the psychological and social aspects of physical illness, accident, injury, or disability. Mental health practice may include, but shall not be limited to, those services based on diagnosis and treatment of mental and emotional disorders and psycho-educational or consultative techniques integral to the treatment of such disorders when diagnosis is specified in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, or an equivalent of such manual as determined by the board. Notwithstanding any other provision to the contrary, no person licensed or registered under this chapter shall assess the need for medications, prescribe medications, or otherwise practice medicine as defined in RSA 329.

VII. “Mental health practitioner” means persons licensed under this chapter as [~~psychologists,~~] pastoral psychotherapists, clinical social workers, clinical mental health counselors, or marriage and family therapists. For purposes of this chapter, the term clinical social worker shall include independent clinical social worker.

VII-a. “Professional conduct investigator” means a trained mental health practitioner licensed by the board who acts as the agent of the board under the guidance of the board investigator and is authorized to discover facts and make reports to the board.

VIII. “Psychotherapist” means a [~~psychologist,~~] clinical social worker, pastoral psychotherapist, clinical mental health counselor, or marriage and family therapist licensed under this chapter who performs or purports to perform psychotherapy. This definition shall include psychiatrists licensed as physicians under RSA 329 and advanced registered nurse practitioners licensed under RSA 326-B:18 as psychiatric nurse practitioners.

IX. “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

X. “Sexual relations” means the intentional touching of any part of the client’s body or any verbal or nonverbal communication for the purpose of sexual arousal or gratification of either party.

233:3 Board of Mental Health Practice. Amend RSA 330-A:3, I to read as follows:

I. There shall be a board of mental health practice composed of the following members: [~~one licensed psychologist,~~] one licensed pastoral psychotherapist, one licensed clinical social worker, one licensed marriage and family therapist, one licensed clinical mental health counselor, and 3 public members. The members shall be appointed to a term of 3 years by the governor with the approval of the council. The members of the board shall elect a chairperson on an annual basis. No discipline’s representative and no individual public member shall serve as chairperson for more than 2 years consecutively.

233:4 Mental Health Practice; Professional Conduct Committee. Amend RSA 330-A:4, I-a to read as follows:

I-a. The board shall create a professional conduct investigation committee for the purpose of assisting the board in its responsibilities under RSA 330-A:28 and RSA 330-A:29. A board investigator, appointed by the chairperson of the board with the advice of the board, shall serve as the chair of the professional conduct investigation committee. The balance of the membership of the professional conduct investigation committee shall be composed of [~~one licensed psychologist,~~] one licensed clinical social worker, one licensed clinical mental health counselor, and additional members from the professions licensed by the board to a maximum of 12 members.

233:5 Mental Health Practice; Fees. Amend RSA 330-A:12 to read as follows:

330-A:12 Fees.

I. The board shall establish fees pursuant to RSA 541-A for review of applicants for licensure; supervisory agreements; applications for licensed [~~psychologist,~~] pastoral psychotherapist, independent clinical social worker, clinical mental health counselor, and marriage and family therapist; renewal of license; renewal of dual license; reinstatement of license; inactive license status; reactivation of an inactive license; examination of applicants; transcribing and transferring records; and other services, including investigations and hearings conducted under this chapter.

II. The board shall continue to have responsibility for the establishment, collection, and disbursement of fees for psychologists regulated under RSA 329-B. The board shall establish fees pursuant to RSA 541-A for the activities listed in RSA 329-B:12.

233:6 Mental Health Practice; Unlawful Practice. Amend RSA 330-A:23, I-II to read as follows:

I. Except as provided in RSA 330-A:34, it shall be unlawful for any person to be engaged in mental health practice unless that person is licensed by the board, working as a candidate under the direct supervision of a person licensed by the board, or engaged in the practice of other mental health services as an alternative provider as defined in RSA 330-A:2, I. The license or the registration of such person shall be current and valid. It shall be unlawful for any person to practice as or to refer to oneself as [~~a psychologist,~~] a pastoral psychotherapist, a clinical social worker, a clinical mental health counselor, or a marriage and family therapist, or use the word “psychotherapist,” or any variation thereof, in such person’s title unless that person is licensed by the board or working as a candidate under the direct supervision of a person licensed by the board. Psychiatrists licensed under RSA 329 and psychiatric nurse practitioners licensed under RSA 326-B:18 may refer to themselves as psychotherapists.

II. Except as otherwise provided in this chapter, any person who violates paragraph I or paragraph III of this section or who violates any of the other provisions of this chapter relating to [~~psychology,~~] pastoral psychotherapy, clinical social work, clinical mental health counseling, or marriage and family therapy, or, having had his or her license suspended or revoked, shall continue to represent himself or herself as a licensed [~~psychologist,~~] pastoral psychotherapist, clinical social worker, clinical mental health counselor, or marriage and family therapist, or as a psychotherapist, shall be guilty of a class A misdemeanor if a natural person, and a felony if any other person, and each violation shall be deemed a separate offense.

233:7 Insurance; Licensure of Psychologists. Amend RSA 415:18-a, V(b) to read as follows:

(b) “Psychologist” means a person who:

(1) Is licensed under RSA [~~330-A~~] 329-B as a psychologist;

(2) Is certified or licensed under a statute in another state which meets or exceeds the standards under RSA [~~330-A~~] 329-B; or

(3) Is certified or licensed in another state and is listed in the National Register of Health Service Providers in Psychology.

233:8 Sexually Violent Predators; Privileged Communications; Psychologists. Amend RSA 135-E:15, I to read as follows:

I. In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction, to a multidisciplinary team, or to the county attorney or attorney general for the purpose of meeting the notice requirements of this chapter and determining whether a person is or continues to be a sexually violent predator. Restrictions on confidential or privileged communications pursuant to RSA 329:26, RSA 330-A:32, RSA 329-B, or any other statute establishing similar restrictions on confidential or privileged communications shall not apply to releases made under this chapter. A person, agency, or entity receiving information under this section which is confidential shall maintain the confidentiality of that information. Such information does not lose its confidential status due to its release under this section.

233:9 Professional Corporations; Licensed Psychologists. Amend RSA 294-A:1, VI to read as follows:

VI. “Professional service” means any service which may lawfully be rendered only by certified public accountants, public accountants, architects, attorneys, podiatrists, chiropractors, dentists, pharmacists, professional engineers, land surveyors, registered professional nurses, optometrists, physicians and surgeons, physician assistants, psychologists, veterinarians, and all other professionals licensed, registered, certified, or otherwise authorized and permitted to practice independently under the provisions of RSA [~~309-A~~] 309-B, 310-A, 311, 315, 316-A, 317-A, 318, 326-B, 327, 328-D, 329, 329-B, 330-A, or 332-B and which may not lawfully be rendered by a corporation organized under the law of this state applicable to business corporations.

233:10 Partnerships; Licensed Psychologists. Amend RSA 304-A:2, IX to read as follows:

IX. “Professional service” means any service which may lawfully be rendered only by certified public accountants, public accountants, architects, attorneys, podiatrists, chiropractors, dentists, pharmacists, professional engineers, land surveyors, registered professional nurses, optometrists, physicians and surgeons, physician assistants, psychologists, and veterinarians licensed, registered, certified, or otherwise authorized under the provisions of RSA 309-B, 310-A, 311, 315, 316-A, 317-A, 318, 326-B, 327, 328-D, 329, 329-B, 330-A, or 332-B.

233:11 Limited Liability Companies; Licensed Psychologists. Amend RSA 304-D:1, VI to read as follows:

VI. “Professional service” means any service which may lawfully be rendered only by certified public accountants, public accountants, architects, attorneys, podiatrists, chiropractors, dentists, pharmacists, professional engineers, land surveyors, registered professional nurses, optometrists, physicians and surgeons, psychologists, veterinarians, and all other professionals licensed, registered, certified, or otherwise authorized and permitted to practice independently under the provisions of RSA [~~309-A~~] 309-B, 310-A, 311, 315, 316-A, 317-A, 318, 326-B, 327, 329, 329-B, 330-A, or 332-B.

233:12 Repeal. The following are repealed:

I. RSA 330-A:10, VI, relative to rules of the board of mental health practice on ethical standards for psychologists.

II. RSA 330-A:16, relative to licensure of psychologists by the board of mental health practice.

233:13 Reports on Effectiveness.

I. The board of mental health practice established in RSA 330-A and the board of psychologists established in RSA 329-B, as inserted by this act, shall each collect the necessary information and compile a report on the following:

(a) The effectiveness of the creation of an independent board for the regulation of psychologists and the efficacy of separating the board of psychologists from the board of mental health practice.

(b) How the separation of the 2 boards by this act affects the scope of practice of psychologists and of the mental health disciplines regulated by the board of mental health practice.

(c) How the separation of the board of psychologists from the board of mental health practice has affected the cost of acquiring and renewing a license issued by the respective boards.

(d) The recommendation on whether the separate board for the regulation of psychologists should continue to be kept separate as provided by this act or whether legislation should be proposed to merge the board of psychologists with the board of mental health practice or otherwise amend RSA 329-B and RSA 330-A.

II. The board of psychologists and the board of mental health practice shall file their respective reports required by paragraph I with the president of the senate, the speaker of the house of representatives, the governor, and the state library on or before June 30, 2017.

233:14 Effective Date. This act shall take effect July 1, 2013.

Approved: June 18, 2012

Effective Date: July 1, 2013