Feature

In 1990, the California Supreme Court confirmed that psychologists have the legal authority to practice independently in both private and public health facilities.

Indeed, the court ruled that: "A patient may receive both medical and psychological treatment. Nothing in the statutes requires that if he receives both, the physician, in the words of the appellate counsel, must be 'the captain of the ship.'" The ruling seems clear enough, but psychologists' attempts to realize it have been anything but. This particular case, Capp v. Rank, was, in fact, just the first of many attempts to implement the law granting California psychologists full hospital privileges, essentially the authority to direct patient care as members of hospital medical staffs--as mandated by a law originally passed in 1978 and amended in 1980.

And though this ruling has since expanded the practice of psychology in private mental health settings, it has had little effect in state-run facilities, says Bill Safarjan, PhD, staff psychologist at Atascadero State Hospital and chair of the California Psychological Association (CPA) political action committee.

"None of that translated into increased authority," he says. Despite the fact that the law allows psychologists to be part of organized medical staff in hospitals and demands that the state can't discriminate against them, psychologists in state facilities are still unable to direct patient care. "Without this authority, treatment will continue to overemphasize psychotropic medication at the expense of skill building and improved quality of life," he adds.

Why do state hospitals deny psychologists these rights? This battle, says Russ Newman, PhD, JD, APA's executive director for professional practice, is essentially about psychologists being attending clinicians in state hospitals and having primary responsibility for patient care. And, along with attending clinician duties comes on-call responsibilities, which can boost income.

A June 1, 2003 San Francisco Chronicle article proved that to be true. Some of the highest-paid state employees--actually five of the top ten--were psychiatrists serving as attending physicians and employed in the state system. In fact, one psychiatrist received more than $100,000 in recruitment and retention bonuses as well as on-call pay, the newspaper reported.

So now, after the landmark 1990 ruling and several subsequent attempts to strengthen the legislation, California psychologists are again drawing up plans to force a change in the system. In fact, CPA has created a steering committee, including Safarjan and other California advocates, as well as APA staff, to investigate the possibility of a lawsuit.

The never-ending battle

CPA's efforts on this front have effectively been ongoing for more than a decade. Before psychologists were granted clinical privileges in mental health facilities, they were called ancillary providers, say Safarjan.

"We just did testing and some individual treatment" under the supervision of physicians, he says. Though the 1990 ruling should have changed the situation, it didn't. So in 1996, CPA succeeded in pushing through the state legislature legislation that required state hospitals to establish procedures to enable psychologists to apply for medical staff membership and clinical privileges.

However, state hospitals resisted change. So in 1998, the state legislature passed even tougher CPA-sponsored legislation that mandated medical staff status for psychologists and prohibited discrimination against them.

"We thought that when we were made part of the medical staffs, we'd be granted attending clinician status which would allow us to direct patient care," says Safarjan. But instead, he says, "We were still providing the same services we did in the early 1990s."

In 2002, the California Department of Mental Health issued a special order that placed psychologists firmly under the clinical authority of psychiatrists and prohibited psychologists from having the right to be attending clinicians and from having primary responsibility for patient care.

Breaking down barriers

Currently 17 states and the District of Columbia have laws that give psychologists hospital privileges. Getting the laws passed takes time and advocacy work to show state legislatures that hospital practice is, in fact, within psychology's scope of practice. But getting hospitals to implement these laws is even tougher in most states.

APA's Newman said the situation in California is perhaps most illustrative of the barriers to psychology hospital practice--and more broadly, to market entry--during testimony last year before a Joint Federal Trade Commission/Department of Justice hearing on health care and competition law and policy.

"It appears that the California Department of Mental Health--in conjunction with organized psychiatry--is doing what it can to prevent psychological practice [in state facilities]," he has since elaborated.

Charles Faltz, PhD, CPA's director of professional affairs, adds: "Psychiatrists, led by the American Union of Physicians and Dentists, have blocked implementation [of the law]." And, he notes, state hospitals have passively accepted their opposition--in fact, "They've almost been actively stonewalling," he says.

To counter the opposition, California psychologists--led by CPA--are contemplating legal action against the state department of mental health. California's budgetary woes, agree Safarjan and Faltz, might prove helpful in psychology's efforts. "Many [psychiatrists] are making three times what psychologists are making. And they are performing services that psychologists could do in a more cost-effective way," says Faltz.

"We're at the stage that without additional pressure they won't implement the law," adds Faltz. With the help of psychologist and state representative Judy Chu, PhD, they were able to call for an audit of the department about its failure to implement the statutes. Chu, chair of the Assembly Budget Committee on Health, has used the budget process to force the audit, but that audit hasn't yet begun.

The hope is that political and administrative pressure--such as the audit and perhaps a formal complaint against the state hospital licensing body--could bring a favorable outcome for psychologists. "But the end result will most likely be a lawsuit because [the department of mental health] has had 10 years to implement the statutes and political coaxing or administrative complaints are unlikely to change such intransigent behavior," says Newman.

A preliminary legal analysis showed that CPA has a strong case. "If you're taking on a lawsuit you have to have a strong case and be prepared to go the mat," says Newman. And, says Safarjan, you have to have money, which means he and his colleagues will continue their tireless fund-raising efforts. These will include raising awareness with psychologists and state legislators of the cost-effectiveness of psychology in state hospitals.

His message: "If we can get attending authority in state hospitals, it will change the nature of psychological practice. It will really elevate psychologists to the position they've been trained to do but have been prevented from doing." And if they win in California, he adds, maybe other states will follow suit.