BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.91.102, 37.91.106, 37.91.201, 37.91.205, 37.91.210, 37.91.220, 37.91.401, 37.91.402, 37.91.407, and 37.91.601 pertaining to certification of mental health professional person

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On January 16, 2014, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on January 9, 2014, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.91.102 EXEMPTIONS (1) remains the same.

            (2) Advanced practice registered nurses with a clinical specialty in psychiatric mental health nursing are designated mental health professional persons under 53-21-102, MCA, and are therefore exempt from the provisions of ARM 37.91.106.

            (3) Licensed psychologists are designated mental health professional persons under 53-21-102, MCA, and are therefore exempt from the provisions of ARM 37.91.106.

 

AUTH: 53-21-102, 53-21-106, MCA

IMP:     53-21-102, 53-21-106, MCA

 

            37.91.106 DEFINITIONS (1) remains the same, but is renumbered (10).

            (2) remains the same, but is renumbered (9).

            (3) remains the same, but is renumbered (8).

            (4) remains the same, but is renumbered (1).

            (5) "Clinical mental health experience" means work experience evaluating persons for mental illness and providing direct mental health treatment to a caseload which includes persons 18 years and older who are seriously impaired due to mental illness. Such experience must take place in an agency, organization, or unit within an organization in which the primary purpose is the treatment of mental disorders.

            (6) "Department" means the Department of Public Health and Human Services provided for in 2-15-2201, MCA.

            (6) (3)  "Certification committee" means the committee established to rule on applications for certification. The committee consists of three members, the committee chairperson and 2 two members appointed by the chairperson and approved by the director of the department. of corrections, 2 members appointed by the director of the department of public health and human services and a chairman appointed by the governor. The chairperson is appointed by the director of the department. At least 1 one member of the committee must have full mental health professional person certification.

            (7) (2)  "Approved facility training program" means a course of instruction and supervised clinical experience planned and conducted by the employing facility and approved by the department of public health and human services and by the certification committee. An approved facility training program shall must include:

            (a) a minimum of 6 six months of full-time clinical experience in the facility;  and shall include

            (b) instruction on Montana law; these rules; and facility policies, practices, and procedures as they relate to the privileges described in ARM 37.91.407.

            (i) An approved facility training program must be directed by a professional person with full mental health certification who is responsible for its overall implementation and maintenance and for periodic review of each trainee's progress.

            (ii) The clinical experience component of the approved training program must include instruction in, observation of, and supervised participation in all facility procedures involving or requiring the privileges specified in ARM 37.91.407. The trainee's clinical experience must be directly supervised by a professional person with either full or facility mental health certification who will report to the training director on a regular schedule.

            (8) (4)  "Clinical competency evaluation" means a clinic-based procedure and written instrument for the assessment of an applicant's conceptual understanding of and competency in using the materials and skills presented in the approved facility training program. A clinical competency evaluation shall will be designed and conducted by the facility and must be approved as to form and content by the department of public health and human services and by the certification committee. The clinical competency evaluation must be supervised by a professional person with full mental health certification who will endorse the individual's application for facility mental health certification upon successful performance in the evaluation.

            (9) (7)  "Facility" means a mental health facility as defined in 53-21-101(7)

53-21-102, MCA.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.201 APPLICATION PROCESS (1) Application for professional person certification will be made on forms provided by the department of public health and human services.

            (2) An applicant for full mental health certification must submit documentation of academic training, documentation of current Montana licensure as a clinical mental health experience professional, letters of reference testifying to clinical competence, and an endorsement by a professional person with full mental health certification indicating that the applicant fully understands the responsibilities of a professional person. In addition, an applicant for full mental health certification must successfully complete a written examination covering knowledge of Title 53, chapter 21, MCA and the mental health services in the state to include the role of, and treatment services provided at, the Montana state hospital.

            (3) and (4) remain the same.

            (5) The certification committee has the authority to rule on the relevancy, adequacy and appropriateness of the education and experience of applicants as they relate to the requirements contained in ARM 37.91.401 and 37.91.406.

            (6) remains the same, but is renumbered (5).

 

AUTH: 53-21-106, MCA

IMP:     53- 21-106, MCA

 

            37.91.205 EXPIRATION AND RENEWAL OF CERTIFICATION

            (1) Professional person certification will expire 3 three years from the date of certification.

            (2) through (4) remain the same.

 

AUTH: 53-21-106, MCA

IMP:     53- 21-106, MCA

 

            37.91.210 REVOCATION OF CERTIFICATION (1) The certification committee may revoke an individual's certification for any of the following reasons:

            (a) Mmisrepresentation of professional person authority;

            (b) Eexercising professional person authority regarding the treatment of a patient without personal knowledge of the patient, and/or situation, or both;

            (c) Cconduct in violation of patient rights as cited in Title 53, chapter 21, part 1, MCA.;

            (d) Pproviding an endorsement for an applicant for facility mental health certification without personal knowledge of the applicant's successful performance on the clinical competency evaluation.; and

            (e) failing to meet ongoing educational requirements or suspension or revocation of their mental health professional license.

            (2) remains the same.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.220 CONTINUATION OF CERTIFICATION (1) Persons who are certified as a limited full mental health professional person as of the date of final adoption of these rules will be granted facility full mental health certification for the facility in which they are employed on that date for a period of two years or the length of time required to obtain licensure, whichever is shortest. until the expiration date of their present certification or for 1 year, whichever is greater. To continue facility mental health certification thereafter the previously certified individual must meet the requirements of ARM 37.91.406. The certification committee may, upon request of the previously certified individual and concurrence of the facility's superintendent or director, waive the requirement of completion of the facility's approved training program.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.401 REQUIREMENTS FOR FULL MENTAL HEALTH CERTIFICATION (1) Applicants for full mental health certification must demonstrate successful performance as licensed mental health clinicians, a thorough understanding of the statutory responsibilities of a mental health professional person, and knowledge of the full range of mental health services in Montana. Licensed clinicians who relocate to Montana and have never performed professional person duties in any other state must have at least three months' experience as a Montana mental health professional person in training before applying for certification. In addition, to obtain full mental health certification a person must:

            (a) have earned a doctoral degree from an accredited college or university in a field of study which is clearly identified as preparing the student for the clinical treatment of mental illness and have at least 6 months of full-time clinical mental health experience following receipt of the doctoral degree; or

            (b) have earned a master's degree in social work from an accredited college or university in a curriculum when included at least 3 courses in therapeutic techniques for treating mental illness and have at least 1 year of full-time clinical mental health experience following receipt of the master's degree; or

            (c) have earned a master's degree in clinical or counseling psychology from an accredited college or university and have at least 1 year of full-time clinical mental health experience following receipt of the master's degree; or

            (d) have earned a master's degree in psychiatric nursing from an accredited college or university and have at least 1 year of full-time clinical mental health experience following receipt of the master's degree; or

            (e) have earned a master's degree in a human services field other than social work, clinical psychology, counseling psychology, or psychiatric nursing from an accredited college or university in a curriculum with a preponderance of course work and practicum experience in a clinical mental health area and have at least 2 years of full-time clinical mental health experience following receipt of the master's degree; or

            (f) be a registered nurse with a bachelor's degree in nursing from an accredited college or university and have 5 years of full-time clinical mental health experience following receipt of the bachelor's degree.

            (2) Applicants with a master's degree in a field which is relevant to some aspect of treatment of mental illness and who have at least 5 years of full-time clinical mental health experience may be granted full mental health certification based upon a special review by the certification committee of the individual's clinical mental health experience and letters of reference testifying to clinical competence. Such applicants must demonstrate a degree of competence and knowledge which is, in the opinion of the certification committee, equivalent to that of individuals with the training and experience listed above.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.402 PRIVILEGES OF FULL MENTAL HEALTH CERTIFICATION

            (1) A professional person with full mental health certification is qualified to:

            (a) through (h) remain the same.

            (i) supervise approved training programs and clinical competency evaluations; and

            (j) perform all the privileges specified in ARM 37.91.407(1).

            (2) remains the same.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.407 PRIVILEGES OF FACILITY MENTAL HEALTH CERTIFICATION         (1) A professional person with facility mental health certification is qualified to:

            (a) remains the same.

            (b) authorize restriction of a patient's rights when such restrictions are necessary to achieve treatment goals in accordance with the facility's written policies;

            (c) authorize and monitor restraint or seclusion of inpatients in accordance with the facility's written policies;

            (d) (b)  supervise nonprofessional staff in accordance with the facility's written policies; and

            (e) remains the same, but is renumbered (c).

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            37.91.601 APPEAL PROCESS (1) Any action of the certification committee concerning certification denial or revocation may be appealed to the director of the department of public health and human services. All findings and actions of the director shall will be binding on the certification committee.

            (2) The notice of appeal shall must be directed to the director of the department of public health and human services who may appoint a hearings officer.

            (3) The appeal shall must be in writing setting forth the nature of the grievance and arguments supporting the grievance and actions desired. The appealing party may also present oral argument before the director or hearings officer.

            (4) All parties to the appeal shall will be notified in writing 10 ten days prior to the hearing. The written notice shall must contain as a minimum, the date, day, time, and location of the hearing.

            (5) The guidelines for conducting the hearing shall will be established by the director.

            (6) remains the same.

 

AUTH: 53-21-106, MCA

IMP:     53-21-106, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to amend ARM 37.91.102, 37.91.106, 37.91.201, 37.91.205, 37.91.210, 37.91.220, 37.91.401, 37.91.402, 37.91.407, and 37.91.601 pertaining to the certification of a mental health professional person. The proposed changes will correct outdated material and improve the integrity of the mental health commitment process by raising the standard of qualifications to a more professional level.

 

Besides updating the rules since they were first implemented under the Department of Corrections, the proposed amendments are needed to correct an ongoing problem. The current rules do not require a "professional person" to be a licensed mental health professional in Montana. It is the department's determination that the role of evaluating a Montana citizen for involuntary commitment to the Montana State Hospital is a grave responsibility. It should carry with it, at the very least, the credential of a professional mental health license, along with the 2000 hours of professional experience required to qualify for the license. This rule is intended to avoid unnecessary disclosure of an applicant's college transcripts and other confidential information. The proposed rule defers to the Montana Business Standards Division of the Department of Labor and Industry regarding the standard for the certification of a candidate for a professional person's qualifications and experience.

 

ARM 37.91.102

 

The department is proposing to add two exemptions from the provisions of ARM 37.91.106. They include licensed psychologists and advanced practice registered nurses with a clinical specialty in psychiatric mental health nursing. This is necessary to conform the rule to the definition of "professional person" in 53-21-102, MCA.

 

ARM 37.91.106

 

The department is proposing to amend (5) to specify that "persons" for purposes of mental health commitment means someone 18 years and older. Section (6) updates the rule to reflect current procedure for who appoints "certification committee" members. These rules are no longer under the Department of Corrections. The department is also proposing to add the term "facility" to specify that it is only facility professional persons who are required to complete a training program.

 

ARM 37.91.201

 

The department is proposing to specify that an applicant for "professional person" designation must submit documentation of current Montana licensure as a clinical mental health professional instead of just documentation of mental health experience. This is necessary to ensure the applicant is qualified to become a "professional person."

 

ARM 37.91.205, 37.91.402, and 37.91.601

 

The department is proposing a grammatical correction to meet the Montana Secretary of State standards as found in the Gregg Reference Manual.

 

ARM 37.91.210

 

The department is proposing to add "failing to meet ongoing educational requirements or suspension or revocation of their health professional license" to the reasons for the revocation of certification as a mental health professional person. This is necessary to ensure that a professional person remains qualified to be a "professional person."

 

ARM 37.91.220

 

This rule is out of date and no longer applies to the current certification process. The department is proposing to add language that will require a full mental health certification, on the date of adoption, of these rules. Mental health professional persons who are not currently licensed must obtain the necessary supervised clinical hours and obtain licensure within two years, or the length of time necessary to obtain licensure, whichever is shortest.

 

ARM 37.91.401

 

The department is proposing to add language in (1) that applicants who relocate to Montana must obtain at least three months' experience as a mental health clinician in Montana before applying for certification. Sections (1)(a) through (2) are being deleted because they are no longer necessary with the inclusion of a licensure requirement.

 

ARM 37.91.407

 

The department is proposing to delete (1)(b) and (1)(c) because the facility policy does not authorize facility professional persons to either restrict patients' rights or authorize restraint or seclusion. The Centers for Medicare and Medicaid Services (CMS) authorize only a licensed physician to perform these duties.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., January 23, 2014.

 

6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

  

 

/s/ John Koch                                               /s/ Richard H. Opper                                   

John Koch                                                    Richard H. Opper, Director

Rule Reviewer                                               Public Health and Human Services

 

Certified to the Secretary of State December 16, 2013.