RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
[ 49 PA. CODE CHS. 47, 48 AND 49 ]
Code of Ethical Practice and Standards of Professional Conduct
[40 Pa.B. 5320]
[Saturday, September 18, 2010]The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) adds §§ 47.71—47.80, 48.71—48.80 and 49.71—49.80 (relating to code of ethical practice and standards of professional conduct) to read as set forth in Annex A.
Effective Date
The final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
The Board is authorized to adopt regulations necessary for the administration of its enabling statute under section 6(2) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1906(2)).
Background and Purpose
Section 6(2) of the act authorizes the Board to adopt rules and regulations establishing standards of professional practice and conduct for licensed social workers, licensed clinical social workers, licensed marriage and family therapists and licensed professional counselors in this Commonwealth. The Board, through this final-form rulemaking, is implementing section 6(2) of the act.
In developing this code of ethical practice and standards of professional conduct, the Board looked at codes of conduct established by professional associations and organizations as well as other state codes. In particular, the Board modeled these regulations after codes of conduct and professional practice adopted by the following associations and organizations: the National Association of Social Workers (NASW); the Pennsylvania Society for Clinical Social Work (PSCSW); the Association of State Social Work Boards; the Clinical Social Work Federation; the Pennsylvania State Board of Psychology; the American Association for Marriage and Family Therapy (AAMFT); the American Counseling Association (ACA); the National Board for Certified Counselors; the Professional Counseling Board; the Commission on Rehabilitation Counselor Certification; and the American Psychological Association. In addition, the Board looked at standards promulgated by other state licensing boards.
The Board adopts this final-form rulemaking with a code of ethical practice and standards of professional conduct for each of the three professions within its jurisdiction. In drafting the final-form rulemaking, the Board sought the greatest possible consistency among the three chapters. The Board recognized that the National associations representing each of the professions had previously issued its own codes of ethics. The Board also recognized that each group of licensed stakeholders would seek the highest level of consistency between the specific provisions of the Board's code of ethics and those of that profession's National association's code of ethics.
Summary of Comments and Responses to Proposed Rulemaking
Notice of the proposed rulemaking was published at 38 Pa.B. 3253 (June 14, 2008). The Board received comments from the following entities: the Pennsylvania Counseling Association (PCA); the Pennsylvania Association for Marriage and Family Therapy (PAMFT); the North Atlantic Region of the ACA; the Pennsylvania Chapter of the NASW (NASW-PA); and the PSCSW. In addition, the Board received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC) in response to their review of the regulations under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). Responses to the comments have been grouped under general categories, as follows:
Need for the Final-Form Rulemaking
In general, the HPLC questioned the need for the rulemaking. However, the public commentators expressed general support for the proposed rulemaking. PSCSW ''welcome[d] the ethical standards of the regulations and [found] them to be clear and acceptable practice.'' NASW-PA agreed ''with the need to establish standards of professional practice and conduct'' and appreciated the Board's consideration of the codes of conduct established by the various professional associations. The PAMFT was ''pleased to see the publication of'' the proposed rulemaking and ''urges the adoption of the proposed regulation'' with minor changes. The PCA appreciated ''the work that has gone into the development of this Code of Ethics for LPCs'' and offered comments they hoped would be useful to the Board. The ACA (North Atlantic Region) recognized ''the work that went into putting together this proposed code'' and noted that it would ''serve Licensed Professional Counselors and the public well,'' but likewise offered comments to strengthen the final-form rulemaking.
The HPLC opined that these regulations are ''unnecessary especially considering that only the Psychology Board has similar regulations.'' The Board notes that the State Board of Occupational Therapy promulgated a code of ethics in § 42.24 (relating to Code of Ethics) as has the State Board of Examiners in Speech-Language and Hearing in § 45.102 (relating to Code of Ethics). The State Board of Veterinary Medicine also has similar rules of professional conduct in § 31.21 (relating to Rules of Professional Conduct for Veterinarians). The State Board of Accountancy regulations in §§ 11.21—11.36 (relating to relations with clients and public) regarding independence, integrity and objectivity, competence, fees, confidential client information, records, advertising and solicitation are similar to a code of ethics. As IRRC pointed out, many boards have similar provisions, although not necessarily in a ''code of ethics.'' Many boards define unprofessional conduct to include ethics violations. The Board elected to follow the State Board of Psychology's lead because psychology is a related profession and many of the ethical principles are similar. In addition, the State Board of Psychology's code of ethics has been tested in court and has withstood judicial scrutiny.
The HPLC suggested that the Board consider adopting a National standard for ethics currently established by the National associations. Likewise, NASW-PA requested that the Board ''adopt by reference the current codes of professional conduct for each profession under the Board.'' By promulgating its own code of ethics, the Board intended to provide more specific guidance than that of the National associations, as well as impose stricter standards than the National associations when appropriate. In addition, the National codes are written in nonregulatory language, which was one of IRRC's concerns about certain provisions in the proposed rulemaking. To address the HPLC's and other commentators' concerns, the Board indicated its intention to adhere to each licensee group's National codes of ethics and standards of practice in resolving ambiguities that may arise under the regulations, but that conflict will be resolved in favor of these regulations.
Format of the Final-Form Rulemaking
IRRC expressed concerns about the format of the proposed rulemaking in that the entire code of ethics for each profession is in one section containing a variety of topics. IRRC suggested that it would improve clarity and ease implementation to set forth some of the subject areas separately. The Board agreed and restructured the final-form rulemaking by dividing it into ten sections to aid clarity. IRRC also pointed out the use of ''non-regulatory'' language at various places throughout the proposed rulemaking. The Board revised the final-form rulemaking to clarify that its requirements are mandatory by replacing ''should'' with ''shall'' throughout.
Additionally, IRRC and PAMFT suggested that the only applicable National code of ethics that should be referenced in Chapter 48 is the AAMFT. The other organizations listed were professional counseling groups. The Board agreed and amended the provision so that only the AAMFT Code of Ethics is referenced. IRRC, the PCA and the ACA (North Atlantic Region) further noted the conspicuous absence of the code of ethics of the ACA from Chapter 49. The Board corrected this oversight.
The HPLC questioned the use of the term ''licensee'' throughout the proposed rulemaking, when the opening paragraph in each chapter specifies which licensees to which the regulation applies. In fact, the regulations apply to all licensees. Chapter 47 applies to licensed social workers and licensed clinical social workers; Chapter 48 applies to licensed marriage and family therapists; and Chapter 49 applies to licensed professional counselors. These are all of the licensee classifications currently regulated by the Board. The Board has often used the shorthand phrase ''licensee'' throughout its regulations and does not feel the use of the term adversely affects the clarity of the final-form rulemaking.
Responsibility to clients/patients
IRRC noted that there are two sections in the regulations that relate to misrepresentation of professional qualifications and suggested that they be combined to avoid duplication in the final-form rulemaking. Instead, because the Board separated the topics of ''responsibility to clients/patients'' and ''advertising'' in separate sections, the Board has to retain and amend the provisions. The first provision relates to communications with specific existing or prospective clients/patients whose identity is known to the licensee. The advertising provision, now contained §§ 47.80, 48.80 and 49.80 (relating to advertising) applies specifically to general informational activities, including those that enable the public, referral sources or others to choose professional services on an informed basis. Both provisions were amended to clarify the Board's intent.
The PCA inquired as to why the proposed code did not prohibit licensed professional counselors who hold doctorate degrees in noncounseling areas from representing themselves as having a doctorate. The regulations prohibit licensees from misrepresenting their professional qualifications. To clarify the Board's intent, the advertising provisions were amended to provide that licensees may not advertise or misrepresent their services and credentials in a manner that is false, misleading, deceptive or fraudulent.
IRRC and the HPLC also questioned the definition of the ''appropriate standard of care.'' Commentators asked whether the Board should promulgate a regulation that requires a licensee to provide ''effective'' care. Obviously the goal of social work, marriage and family therapy and professional counseling services is to be effective. However, the Board has concerns about establishing a regulation, the violation of which could result in disciplinary action, regarding the effectiveness of care. The Board believes that the standard should be what the ordinary, reasonable licensee would do under the circumstances; and while, as one commentator noted, this definition may seem to be weak and open to interpretation, the courts have been dealing with the ''reasonable person'' standard for centuries. These regulations seek to establish minimum standards, the violation of which could result in disciplinary action against a licensee. Finally, the Board notes that the National codes of ethics will be used in resolving ambiguities that arise under these regulations.
IRRC expressed concerns about how the two public members of the Board would be able to ascertain what a ''reasonable licensee'' would do under similar circumstances. In addition, NASW-PA and PSCSW suggested that ''standards of care'' cases should be reviewed by a licensee's peers and not by another profession. In general, when a ''standard of care'' case comes before the Board, it is the usual circumstance that the prosecution and defense have ''experts'' testify as to what standard of care should have been followed by the licensee under the circumstances. The Board believes the public members are capable of evaluating the testimony objectively, in spite of the fact that they are not licensees with comparable training. A professional board made up of a majority of licensees is the entity that ultimately decides these issues. Under section 5(a) of the act (63 P. S. § 1905(a)), the 13-member Board is comprised as follows: 10 who are licensees—5 who are either licensed social workers or licensed clinical social workers, 2 or 3 licensed marriage and family therapists and 2 or 3 licensed professional counselors; 2 public members; and the Commissioner of Professional and Occupational Affairs. The Board believes that due to the great degree of consistency among these regulations, a professional member that is, for example, a licensed professional counselor, will be able to review a matter involving a licensed social worker, licensed clinical social worker or marriage and family therapist with little difficulty. In addition, as noted previously, each profession's National code of ethics will be used to resolve ambiguities arising in matters under these regulations. Finally, NASW-PA raised concerns that attorneys and paralegals review complaints to determine whether a violation of the regulations has occurred. NASW-PA suggested that ethics-related complaints be reviewed by a committee of the same licensed professionals who are familiar with the code of ethical practice and professional conduct. PSCSW supports the NASW-PA proposal and notes that enforcement and prosecution ''should be ultimately done by peer review not by another profession.'' PSCSW suggests that, in a case of ''a therapeutic ethical [lapse] or disregard entirely, a jury of ones' (sic) peers is more appropriate and responsible.'' As noted previously, the prosecution division has access to experts who review matters to determine whether a violation of a standard of practice has been violated and who later testify in hearings before the Board. Neither the Board nor its professional members may preview a complaint or provide advice to the Commonwealth's prosecutors as to what complaints deserve to be prosecuted. To do so would be an improper commingling of the prosecutorial and adjudicatory functions. See Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992).
IRRC noted that the State Board of Psychology's standards provide for areas in which recognized standards do not yet exist. To address IRRC's and the HPLC's specific concerns, the Board added language conceding that, although in some areas recognized standards do not yet exist, protection of the client's/patient's welfare remains the paramount consideration.
IRRC and the HPLC expressed concern with the requirement to make ''appropriate'' referrals ''in a timely manner'' as being ambiguous and asked for a more specific rule for a minimum time period in the final-form rulemaking. The Board responded by amending the language to provide that licensees refer a client/patient to another professional and take steps to facilitate an orderly transfer of responsibility whenever the client's/patient's needs exceed the licensee's competence level. The amendment further provides that the licensee shall notify the client/patient promptly of the need to refer and seek the referral and transfer of services in relation to the client's/patient's needs and preferences. The Board felt that it was impossible to establish a strict timetable for referrals that would be applicable in all cases. Thus, to address the HPLC's concerns, the disciplinable offense becomes not making a referral at all when a client's/patient's needs exceed the licensee's competence level.
The PCA suggested that the regulations should require licensed professional counselors to be competent in the use and interpretation of the instruments they use and no requirement to utilize current instruments. The ACA (North Atlantic Region) also pointed out that the code of ethics failed to address assessment. The Board responded by amending the competency provisions in Chapter 49 to require licensees to use only those testing and assessment instruments relevant to the needs of the client/patient and for which the licensee has been trained. The Board also added a provision requiring licensees to maintain knowledge of current scientific and professional information regarding the services they render. The Board also noted that it will refer to the ACA code of ethics to resolve ambiguities.
Informed consent
The HPLC and IRRC questioned the informed consent provisions and IRRC asked if the Board would consider providing a written disclosure form for licensees to use in discussing services and other issues with the patient/client. In response, rather than promulgate a form which would have to be adapted to every situation, the Board redrafted the section to include a list setting forth the type of information that shall be provided to clients/patients in writing, to include billing and collection policies, as suggested by PSCSW. In response to the HPLC's concerns, the redrafted provision no longer requires a licensee to notify a client/patient of every service available, or the limits, rights, opportunities and obligations. The new provision requires the licensee to inform the client/patient of the purpose of the services being provided, risks and limits to the services being provided that are known to the licensee; reasonable alternatives to the services being provided; the costs, billing and overdue collections policies and their potential effect on the continuation of the professional relationship; the client's/patient's right to refuse or withdraw consent and the time frame covered by the consent; and other information the licensee reasonably expects would affect the client's/patient's decision to enter into or continue the professional relationship.
IRRC questioned whether a spouse, domestic partner or adult child would be able to provide informed consent on behalf of someone who is not competent due to age or mental condition. To address this concern, the Board clarified that either a parent, guardian, court-appointed representative or the holder of a client's/patient's power of attorney could provide consent to treatment.
The PCA questioned the provision regarding a client/patient receiving services involuntarily. The PCA suggested that this standard challenges the very essence of autonomy. The ACA (North Atlantic Region) also noted that although some individuals might be mandated to treatment, they still have the option of refusing even if doing so has serious consequences that are considerably less appealing than counseling. In response, the Board clarified that the provision was intended to address clients/patients who are engaged in legally-mandated services. The Board also clarified that the licensee shall provide information about the nature and extent of the services and about the client's/patient's rights to the client/patient or to the client's/patient's legal representative, when applicable. The PCA also opined that this provision also suggests that releases of information can be made without the involuntary client's written consent in violation of other laws. The Board noted that the provisions regarding confidentiality clearly provide that licensees have a primary obligation to protect the client's/patient's right to confidentiality and privacy as established by law and professional standards of practice. Therefore, specific laws requiring certain conditions be met before information can be released without written consent must continue to be followed.
Confidentiality and privacy
IRRC and the HPLC asked the Board to cite to specific ''other laws'' that govern confidentiality and privacy. The Board is wary of omitting future statutory developments by setting forth a current listing of applicable privacy-related statutes and regulations. The Board noted that it gave consideration to certain specific statutes, including those pertaining to confidentiality of drug and alcohol use records, HIV-related status and records and the Health Insurance Portability and Accountability Act. The Board declined to attempt to identify and cite every possible Federal or State law or regulation that governs privacy and confidentiality of mental health information in this final-form rulemaking. Instead, the Board amended the provision to provide that confidential information may only be revealed with consent, unless the failure to do so would violate a court order or a specific Federal or State privacy statute or regulation. Thus, in a proceeding alleging that a licensee released confidential information without consent, the licensee could defend by pointing to a court order or a specific statute or regulation requiring disclosure.
IRRC also questioned the Board's use of the terms ''legally authorized person'' and ''person legally authorized'' to give consent. In the final-form rulemaking, the Board amended the language to refer to the client's/patient's parent, guardian, court-appointed representative or holder of power of attorney.
PAMFT raised concerns regarding confidentiality in providing services to families, couples or groups. IRRC asked whether the Board should amend the regulation to ensure that each family member's confidentiality is protected. The Board believes the proposed rulemaking adequately protects the confidentiality of participants in family, group or couples counseling. A licensee has an affirmative duty not to disclose confidential information without consent. This general provision would extend to participants in group or family counseling situations. As noted by PAMFT, family members who are included in sessions are considered part of the client group. Each of the regulated professions' National association's codes of ethics has its own provisions regarding confidentiality of each member of a family treatment group. The specific concerns raised by PAMFT are addressed within the consent provisions of these regulations when read in concert with the AAMFT code of ethics.
Termination
The PCA suggested that licensees should be allowed to terminate or discharge a patient/client for nonpayment of fees. IRRC noted that this issue does not appear to be addressed in the proposed rulemaking. In response, the Board added language providing that a licensee may terminate services for nonpayment if the financial contractual arrangements have been made clear to the client/patient, the client/patient does not pose an imminent danger to self or others and the clinical and other consequences of the current nonpayment have been addressed and discussed with the client/patient. The PCA also suggested that the provision should address termination of treatment due to lack of client progress. It is very difficult to set standards, the violation of which could result in disciplinary action, based on subjective measure such as effectiveness of treatment or lack of progress by the client/patient. The Board, instead, will rely on the National codes of ethics to resolve ambiguities.
In addition, IRRC suggested that the Board eliminate language requiring ''appropriate'' referral and ''reasonable'' notification regarding interruption or termination of services and, instead, establish a specific minimum time period for advance notice of termination to provide time for referrals and the search for a new provider. The Board elected to eliminate the offending language and rely on the National codes of ethics to resolve ambiguities.
Sexual harassment
The PCA and the ACA (North Atlantic Region) noted that nothing in this code of ethics addressed limitations on sexual or romantic relationships with current or former clients. The Board notes that its existing regulations dealing with sexual misconduct in §§ 47.61—47.65, 48.21—48.25 and 49.21—49.25 (relating to sexual misconduct) adequately address those issues.
IRRC noted that the Board already addresses sexual misconduct in its regulations and suggests that sexual harassment should rely on the definition of sexual intimacies already included in the definitions section of each chapter in prohibiting this type of behavior. IRRC also suggested that the Board define the term ''sexual harassment'' in the final-form rulemaking. In the final-form rulemaking, the Board moved sexual harassment to its own section and amended the regulations to clarify that sexual misconduct applies to clients/patients while the prohibition on sexual harassment addresses employment or academic relationships in the professional work environment and draws its definition directly from the Human Relations Commission's guidelines on sexual harassment.
Discrimination
IRRC noted that there are numerous State and Federal antidiscrimination laws and suggested that the Board reference these existing laws rather than designing a new antidiscrimination rule. In response, the Board amended the provision on discrimination to provide that licensees comply with existing Federal and State antidiscrimination laws and may not practice, condone, facilitate or collaborate with any form of discrimination prohibited by those laws.
The PCA suggested that gender identity should be added to the list of protected classes. As noted previously, the Board elected to rely on existing antidiscrimination laws, which renders unnecessary a recitation of each protected group or prohibited behavior. The PCA also suggested that the Board include an affirmative duty to be competent in working with diverse clients/patients. The Board feels that the general competency provisions are adequate. The ACA (North Atlantic Region) suggested renaming this provision ''nondiscrimination.'' The Board elected to retain the heading to be consistent with most codes of ethics.
Dual or multiple relationships affecting the licensee's judgment
IRRC agreed with the HPLC's concerns about terms and phrases in this section being vague or ambiguous. IRRC suggested that the Board provide specific examples of situations that this provision seeks to address. The Board has had numerous cases brought before it that revolve around licensees whose other relationships (social, professional, business, financial, and the like) with clients/patients and their family members interfere with the therapeutic relationship. For example, a licensee begins providing marriage counseling to a husband and wife, eventually becoming a close personal friend of the wife, and rather than provide counseling to the couple, ends up seeing the wife in therapy sessions three or four times a week, going out to dinner and shopping with the wife and checking in on the wife numerous times during the day. When their social relationship fails, the wife is distraught and feels that she had lost a friend, a mother figure and her therapist all at once. In this case, the licensee fails to maintain appropriate therapeutic boundaries and engages in improper dual or multiple relationships with a client/patient. There have been other cases of licensee's loaning money to or accepting loans from clients/patients, investing in business ventures with clients/patients and so on. The Board intends, by this final-form rulemaking, to restrict these types of relationships with clients/patients which are engaged in to satisfy the licensee's needs, rather than the client's/patient's needs. The Board believes that practitioners in the field are familiar with the terms used in the final-form rulemaking and understand the behaviors being regulated. Each of the National codes of ethics contains similar provisions prohibiting dual or multiple relationships that affect the licensee's professional judgment. To respond to the HPLC's concerns, the Board revised the language regulating dual or multiple relationships to be more certain and to clarify that the concern is with the effect on the client/patient and not everyone with whom they deal.
Research and publication
In the proposed rulemaking, a lengthy provision on the subject of research and publication was included as part of the responsibility of a licensee to clients/patients. IRRC and the HPLC expressed concerns regarding the definition of certain terms, citation to pertinent applicable laws, implementation and enforcement. The ACA and the PCA also commented regarding the effect of deception upon informed consent for research. Upon consideration of these comments, the Board chose to rewrite the entire section, specifically and succinctly emphasizing its major categorical concerns (protection of human subjects, informed consent, confidentiality and publication responsibilities) in the final-form rulemaking. In response to the HPLC's concerns, the language that remains has been amended to clarify that the ''pertinent ethical principles'' are those in this chapter and the National codes of ethics; that the informed consent form must use language that the licensee believes would be understandable to the research participants; and that only those attendant discomforts and risks that are most likely to occur and which are known to the licensee must be described.
Payment for services
The HPLC asked the Board to clarify what it meant by providing that records may not be withheld due to nonpayment for past services ''except as otherwise provided by law.'' In response, the Board deleted that language to clarify that a licensee may not withhold a client's/patient's records due solely to nonpayment for services.
Recordkeeping
The HPLC noted that the proposed rulemaking required licensees to keep records regarding termination but did not specify as to what is being terminated. The Board amended the language to clarify that it is the termination of the professional relationship that must be recorded. The HPLC also noted that the Board sought to require that documentation protect privacy to the extent ''possible and appropriate.'' The Board clarified that documentation shall protect clients'/patients' privacy to the extent that it is consistent with applicable Federal and State laws and regulations. The PCA raised the subject of security of records, leading the Board to adopt Federal and State legal standards for retention and storage. The Board also specified protections to persons other than the client/patient in considering whether certain records should be released.
Mandatory reporting
Both NASW-PA and PSCSW suggested that the mandatory reporting requirement consider the client's/patient's right to confidentiality. The Board determined that the confidentiality provisions sufficiently address that issue and would be inherently a part of a licensee's considerations. The Board, on its own initiative, amended the change of name or mailing information provision to remove the language ''failure to do so may result in disciplinary action by the Board'' as the violation of a regulation may result in disciplinary action by the Board and is superfluous.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have fiscal impact and will not impose additional paperwork requirements on the Board or its licensees.
The final-form rulemaking should not impose legal, accounting or reporting requirements on the regulated community.
Sunset Date
The Board continuously monitors its regulations. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 4, 2008, the Board submitted a copy of the notice of proposed rulemaking, published at 38 Pa.B. 3253, to IRRC and to the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on August 18, 2010, the final-form rulemaking was approved by the HPLC. On August 18, 2010, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 19, 2010, and approved the final-form rulemaking.
Contact Person
Interested persons may obtain information regarding the final-form rulemaking by writing to Beth Sender Michlovitz, Board Counsel, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P. O. Box 2649, Harrisburg, PA 17105-2649, bmichlovit@state.pa.us.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments to the final-form rulemaking do not enlarge the purpose of the proposed rulemaking published at 38 Pa.B. 3253.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in this Preamble.
Order
The Board orders that:
(a) The regulations of the Board, 49 Pa. Code Chapters 47, 48 and 49, are amended by adding §§ 47.71—47.80, 48.71—48.80 and 49.71—49.80 to read as set forth in Annex A.
(Editor's Note: The addition of §§ 47.72—47.80, 48.72—48.80 and 49.72—49.80 was not included in the proposed rulemaking published at 38 Pa.B. 3253.)
(b) The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on publication in the Pennsylvania Bulletin.
DONNA A. TONREY, LMFT,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 5106 (September 4, 2010).)
Fiscal Note: Fiscal Note 16A-6911 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 47. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
CODE OF ETHICAL PRACTICE AND STANDARDS OF PROFESSIONAL CONDUCT § 47.71. Codes of ethical practice and professional conduct.
The Board subscribes to the codes of ethics and practice standards promulgated by the National Association of Social Workers (NASW), the Pennsylvania Society for Clinical Social Work and the Model Social Work Practice Act of the Association of State Social Work Boards. Licensed social workers and licensed clinical social workers (licensees) shall adhere to these codes and standards, except when they conflict with this chapter. The Board will use these codes and standards in resolving ambiguities which may arise in the interpretation of this chapter, except that whenever any conflict exists between this chapter and the professional associations' codes and standards, this chapter shall prevail.
§ 47.72. Responsibilities to clients/patients.
(a) Competency.
(1) In all communications with, or regarding, specific existing or prospective clients/patients, licensees may not misrepresent directly, indirectly or by implication their professional qualifications such as education, specialized training, experience or areas of competence.
(2) Licensees may practice only within the competency areas for which they are qualified by education, training and experience.
(3) Licensees shall maintain appropriate standards of care. The appropriate standard of care is defined as what an ordinary, reasonable licensee would have done in a similar circumstance. In areas in which recognized standards do not yet exist, licensees shall take whatever precautions are necessary to protect the welfare of their clients/patients.
(4) Licensees shall maintain knowledge of current scientific and professional information related to the services they render.
(5) Licensees shall refer a client/patient to another professional and take steps to facilitate an orderly transfer of responsibility when the client's/patient's needs exceed the licensee's competence level. Licensees shall notify client/patient promptly of the need to refer and seek the referral and transfer of services in relation to the client's/patient's needs and preferences.
(b) Informed consent.
(1) Licensees shall inform clients/patients in writing of:
(i) The purpose of the services being provided.
(ii) Risks and limits related to the services that are known to the licensee.
(iii) Reasonable alternatives to the services being provided.
(iv) Relevant costs, billing and overdue collection policies and their potential effect on the continuation of the professional relationship.
(v) The clients'/patients' right to refuse or withdraw consent, and the time frame covered by the consent.
(vi) Other information the licensees reasonably might expect to affect the clients'/patients' decisions to enter into or continue the professional relationship.
(2) Licensees shall use clear and understandable language when providing the information in paragraph (1) to clients/patients.
(3) Licensees shall provide services to clients/patients only in the context of a professional relationship based on valid informed consent.
(4) In instances when the client/patient is unable to read or understand the informed consent document or has trouble understanding the primary language contained in the informed consent document, licensees shall take steps to ensure the client's/patient's comprehension including providing a detailed verbal explanation or arranging for a qualified interpreter or translator, as needed. If a client/patient is not competent to provide informed consent because of age or mental condition, the licensee shall obtain consent from the client's/patient's parent, guardian, court-appointed representative or the holder of the client's/patient's power of attorney.
(5) When a client/patient is receiving legally-mandated services, licensees shall provide information about the nature and extent of the services and about the client's/patient's rights to the client/patient or the client's/patient's parent, guardian, court-appointed representative or the holder of the client's/patient's power of attorney, as applicable.
(6) Licensees who provide services by means of electronic means shall inform the client/patient of the reasonably foreseeable limitations and risks associated with those services.
(c) Delegation. A licensee may not delegate professional responsibilities to another person when the licensee delegating the responsibilities knows or has reason to know that the other person is not qualified by training, experience or licensure to perform those responsibilities.
(d) Confidentiality and privacy.
(1) Licensees shall have a primary obligation to protect the client's/patient's right to confidentiality and privacy as established by law and professional standards of practice. Confidential and private information shall only be revealed to others when the client/patient, or the client's/patient's parent, guardian, court-appointed representative or the holder of the client's/patient's power of attorney, has given informed consent, except in those circumstances in which failure to do so would violate a court order or specific Federal or State privacy statutes or regulations, or result in clear and present danger to the client/patient or others. Unless specifically contraindi- cated by these situations, a client/patient shall be informed and written consent shall be obtained before the confidential and private information is revealed.
(2) Licensees shall discuss with clients/patients and the client's/patient's parent, guardian, court-appointed representative or the holder of the client's/patient's power of attorney, the nature of confidentiality and the limitation of the clients'/patients' right to confidentiality. Licensees shall review with clients/patients circumstances when confidential information may be requested and when disclosure of confidential information is legally required. This discussion shall occur as soon as possible in the professional relationship and as needed throughout the course of the relationship.
(3) When licensees provide services to families, couples or groups, licensees shall seek agreement among the parties involved concerning each individual's right to confidentiality and obligations to preserve the confidentiality of information shared by others. Licensees shall inform participants in family, group or couples counseling that the licensee cannot guarantee that all participants will honor the agreements. In the context of couple, family or group treatment, the licensee may not reveal any individual's confidences to others in the client unit without the prior written permission of that individual.
(4) Licensees shall take reasonable steps to protect the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology.
(e) Termination of services.
(1) Licensees may terminate services only after giving careful consideration to factors affecting the professional relationship and making an effort to minimize possible adverse effects. If an interruption or termination of services is anticipated, notification and referral for continued services shall be provided to the client/patient.
(2) Licensees may terminate services to a client/patient who has not paid an overdue fee balance if the following conditions are met:
(i) The financial contractual arrangements have been made clear to the client/patient.
(ii) The client/patient does not pose an imminent danger to self or others.
(iii) The clinical and other consequences of the current nonpayment have been addressed and discussed with the client/patient.
(f) Discrimination. Licensees shall comply with existing Federal and State antidiscrimination laws and may not practice, condone, facilitate or collaborate with any form of discrimination prohibited by those laws.
(g) Conduct with clients/patients.
(1) Licensees may not physically or verbally abuse or threaten clients/patients or family members of clients/patients.
(2) Licensees may not use derogatory language in their written or verbal communications to or about clients/patients. Licensees shall use accurate and respectful language in communications to and about clients/patients.
§ 47.73. Dual or multiple relationships affecting the licensee's judgment.
(a) Dual or multiple relationships defined. Dual or multiple relationships occur when the licensee engages in multiple or ongoing interactions with clients/patients, the clients'/patients' romantic partners or immediate family members of clients/patients in more than one context, whether professional, social or business. Dual or multiple relationships can occur simultaneously or consecutively.
(b) Dual or multiple relationships prohibited.
(1) A licensee shall avoid dual or multiple relationships and conflicts of interest with any client/patient, which could impair the licensee's professional judgment or increases the risk of client/patient exploitation.
(2) A licensee may not undertake or continue a professional relationship with a client/patient, supervisee or student when the objectivity or competency of the licensee is, or could reasonably be expected to be, impaired or when the relationship with the client/patient, supervisee or student is exploitative.
(3) A licensee shall carefully consider familial, social, emotional, financial, supervisory, political, administrative and legal relationships with a client/patient or a person related to or associated with the client/patient to assure that impaired judgment or exploitation does not occur within the professional relationship.
(4) Licensees shall always carefully consider the potentially harmful effects of dual or multiple relationships on their practice and on their clients/patients. A licensee shall refrain from entering into, or promising another to enter into, professional, social or business relationships with another person if it appears reasonably likely that the relationship might impair the licensee's objectivity or otherwise interfere with the licensee's effectiveness or might harm or exploit the client/patient.
(5) When a dual or multiple relationship cannot be avoided, a licensee shall take reasonable professional precautions, such as informed consent, consultation, supervision and documentation, to ensure that judgment is not impaired and that no exploitation occurs.
(6) If a licensee finds that, due to unforeseen factors, a potentially harmful dual or multiple relationship has arisen with a client/patient, the licensee shall attempt to resolve it with due regard for the best interests of the client/patient and maximum compliance with the act and this chapter.
(c) Conflicts of interest. When a licensee provides services to two or more people who have a relationship with each other, such as couples or family members, the licensee shall clarify with all parties which individuals will be considered clients/patients and the nature of the licensee's professional obligation to the various individuals who are receiving services. A licensee who anticipates or should reasonably anticipate a conflict of interest among the individuals receiving services, or who anticipates or should reasonably anticipate having to perform in potentially conflicting roles, such as a licensee who is asked or ordered to testify in a child custody dispute or divorce proceeding involving clients/patients, shall clarify the roles with the parties involved and take reasonable action to minimize any conflict of interest.
§ 47.74. Sexual harassment.
(a) Licensees may not sexually harass supervisees, students, trainees, employees, research subjects or colleagues.
(b) Sexual harassment includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when any one of the following occurs:
(1) Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment or academic association with a licensee.
(2) Submission to or rejection of the conduct by an individual is used as the basis for employment-related decisions affecting the individual or academic decisions affecting the individual.
(3) The conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating, hostile or offensive working or academic environment.
§ 47.75. Impaired practice.
A licensee may not undertake or continue a professional relationship with a client/patient, supervisee or student when the objectivity or competency of the licensee is, or could reasonably be expected to be, impaired due to mental, emotional, physiological, pharmacological or substance abuse conditions. If such a condition develops after a professional relationship has been initiated, the licensee shall terminate the professional relationship in an appropriate manner and shall, either himself or through an appropriate designee, notify the client/patient of the termination in writing and assist the client/patient in obtaining services from another professional.
§ 47.76. Research and publication.
(a) Protection of human subjects.
(1) A licensee shall plan, design, conduct and report research in a manner consistent with this chapter, the codes of ethics in § 47.71 (relating to codes of ethical practice and professional conduct), Federal and State laws, host institutional rules and scientific standards governing research with human subjects.
(2) A licensee shall obtain informed consent from participants by using language that the licensee believes would be understandable to the research participants and that:
(i) Accurately explains the purpose and procedures to be followed.
(ii) Identifies any procedures that are experimental or relatively untried.
(iii) Describes the attendant discomforts and risks that are most likely to occur, which are known to the licensee.
(iv) Describes the benefits or changes in individuals or organizations that might be reasonably expected.
(v) Discloses appropriate alternative procedures that may be advantageous for the subject.
(vi) Offers to answer inquiries concerning the procedures.
(vii) Instructs that subjects are free to withdraw their consent and discontinue participation in the research project at any time.
(3) When a participant is not capable of giving informed consent, licensees shall provide an appropriate explanation, obtain agreement for participation and obtain informed consent from a participant's parent, guardian, court-appointed representative or the holder of the participant's power of attorney.
(4) Information obtained about research participants during the course of the research is confidential. The licensee shall explain to the participant whether the possibility exists that others may obtain access to the information, and also explain the plans for protecting the participant's confidentiality as part of the procedure for obtaining informed consent.
(b) Reporting and publication of results.
(1) Licensees may not engage in fraudulent research, distort data, misrepresent data or deliberately bias their results.
(2) Licensees shall plan, conduct, report and publish accurately and in a manner that minimizes the possibility that results will be misleading.
(c) Other ethical obligations. In addition to the provisions of this section, a licensee's ethical obligations with regard to research and publication are governed by this chapter and those codes of ethics and standards of practice to which the Board subscribes in § 47.71.
§ 47.77. Payment for services.
(a) When setting fees, licensees shall ensure that the fees are fair, reasonable and commensurate with the services performed.
(b) Licensees may not accept goods or services as payment for professional services.
(c) Licensees shall make financial arrangements with clients/patients, third-party payors and supervisees that are reasonably understandable and conform to accepted professional practices.
(d) Prior to entering into the therapeutic or supervisory relationship, a licensee shall clearly disclose and explain to clients/patients and supervisees the following:
(1) Financial arrangements and fees related to professional services, including charges for canceled or missed appointments.
(2) The use of collection agencies or legal measures for nonpayment.
(3) The procedure for obtaining payment from the client/patient, to the extent allowed by law, if payment is denied by the third-party payor.
(e) Once services have begun, licensees shall provide reasonable notice of changes in fees or other charges.
(f) Licensees shall give reasonable notice to clients with unpaid balances of their intent to seek collection by agency or legal recourse. When this action is taken, licensees may not disclose clinical information.
(g) Licensees shall represent facts truthfully to clients, third-party payors and supervisees regarding services rendered.
(h) Licensees may not withhold records under their immediate control that are requested and needed for a client's/patient's treatment solely because payment has not been received for past services.
§ 47.78. Recordkeeping.
(a) For each client/patient, a licensee shall keep records of the dates of social work services, types of social work services, details of the services provided, termination of the professional relationship, and billing information.
(b) Records kept by the licensee shall be retained for at least 5 years from the date of the last entry. Records held or owned by government agencies or educational institutions are not subject to this requirement.
(c) Licensees shall take reasonable steps to ensure that documentation in records is accurate, legible and reflects the services provided.
(d) Licensees shall include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to the client/patient in the future.
(e) Licensees' documentation shall protect clients'/patients' privacy to the extent that it is consistent with applicable Federal and State laws and regulations and should include information that is directly relevant to the delivery of services.
(f) Licensees shall store records following termination of services to ensure reasonable future access. Records shall be retained and stored as required by applicable Federal and State law and regulations.
(g) Licensees shall provide a client/patient with reasonable access to records concerning the client/patient. Licensees who are concerned that clients'/patients' access to their records could cause serious harm to the client/patient or another person shall provide assistance in interpreting the records and consultation with the client/patient regarding the records. Licensees may limit clients'/patients' access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that the access would cause serious harm to the client/patient or another person. Both the clients'/patients' requests and the rationale for withholding some or all of the records shall be documented in the clients'/patients' files. When providing clients/patients with access to their records, licensees shall take steps to protect the confidentiality of other individuals identified or discussed in the records.
(h) In the event of the licensee moving from the area or closing the licensee's practice, a licensee shall arrange for the storage, transfer or disposal of client/patient records in ways that maintain confidentiality and safeguard the welfare of clients/patients.
§ 47.79. Mandatory reporting.
(a) Licensees, supervisors and trainees have a responsibility to report alleged violations of the act or this chapter to the Board. If a licensee has knowledge or reason to suspect that a colleague or other licensee is incompetent, impaired or unethical, the licensee shall report that practitioner to the Board. Licensees shall make these reports in a manner that does not violate a client's/patient's right to confidentiality.
(b) Licensees shall comply with the mandatory reporting requirements in this chapter, including §§ 47.51—47.57 (relating to child abuse reporting requirements).
(c) Licensees shall notify the Board within 30 days of changes of name or mailing information to ensure that the Board has the licensee's current name and mailing address.
§ 47.80. Advertising.
(a) Definition. Advertising is defined as the engagement in general informational activities, including those that enable the public, referral sources or others to choose professional services on an informed basis.
(b) Engagement in advertising.
(1) Licensees may engage in advertising that accurately represents their competencies, education, training and experience relevant to their professional practice. Licensees may not advertise their services and credentials in a manner that is false, misleading, deceptive or fraudulent.
(2) Licensees shall ensure that advertisements and publications in any media, such as directories, announcements, business cards, newspapers, radio, television, internet and facsimiles, convey information that is necessary for the public to make an appropriate selection of professional services. This information may include the following:
(i) Office information, such as name, address, telephone number and credit card acceptability.
(ii) Earned degrees and State or provincial licensures or certifications.
(iii) Professional association member status.
(iv) Description of practice.
(3) Licensees may not use names that could mislead the public concerning the identity, responsibility, source or status of those practicing under that name, and may not hold themselves out as being partners or associates of a firm if they are not partners or associates of the firm.
(4) Licensees may not use any professional identification, such as a business card, office sign, letterhead, internet, or telephone or association directory listing, if it includes a statement or claim that is false, fraudulent, misleading or deceptive.
(5) In representing their educational qualifications, licensees shall list and claim only those earned degrees from institutions accredited by regional accreditation sources recognized by the United States Department of Education, from institutions recognized by states or provinces that license or certify the licensee, or from equivalent foreign institutions.
(6) A licensee shall correct, whenever possible, false, misleading or inaccurate information and representations made by others concerning the licensee's qualifications, services or products.
(7) Licensees shall make certain that the qualifications of their employees or supervisees are represented in a manner that is not false, misleading or deceptive.
(8) Licensees may not represent themselves as providing specialized services unless they have the required education, training or supervised experience.
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