House Bill No. 399

Introduced By tuss, christiaens



A Bill for an Act entitled: An Act transferring the duties and responsibilities for certifying chemical dependency counselors from the department of public health and human services to the department of commerce; providing rulemaking authority; providing for department powers and duties; providing certification requirements and fees; providing for complaints of unprofessional conduct and sanctions; providing a criminal penalty for violations; providing for transition; amending sections 33-22-705, 37-23-201, and 53-24-204, MCA; repealing sections 53-24-215, 53-24-216, and 53-24-217, MCA; and providing effective dates.



STATEMENT OF INTENT

A statement of intent is required for this bill because [section 3] grants rulemaking authority to the department of commerce.

It is the intent of the legislature that the department of commerce have authority to adopt rules to implement and enforce [sections 1 through 9] and specific authority to adopt rules regarding:

(1) certification applications and procedures necessary to receive and process those applications;

(2) examinations and criteria for grading examinations;

(3) disciplinary standards for certificate holders, including definitions of conduct for which discipline may be appropriate;

(4) investigations of complaints;

(5) setting and modifying appropriate fees; and

(6) a process for renewal of certificates, including procedures for late renewal.



Be it enacted by the Legislature of the State of Montana:



Section 1.  Purpose. The legislature finds and declares that because the profession of chemical dependency counseling profoundly affects the lives of people of this state, it is the purpose of [sections 1 through 9] to provide for the common good by ensuring the ethical, qualified, and professional practice of chemical dependency counseling. [Sections 1 through 9] and the rules promulgated under [section 3] set standards of qualification, education, training, and experience and establish professional ethics for those who seek to engage in the practice of chemical dependency counseling as certified chemical dependency counselors.



Section 2.  Definitions. As used in [sections 1 through 9], the following definitions apply:

(1) "Accredited college or university" means a college or university accredited by a regional accrediting association for institutions of higher learning.

(2) "Certified chemical dependency counselor" means a person who has the knowledge and skill necessary to provide the therapeutic process of chemical dependency counseling and who is certified under the provisions of [sections 1 through 9].

(3) "Chemical dependency" means the use of any chemical substance, legal or illegal, that creates behavior or health problems, or both, resulting in operational impairment. This term includes alcoholism, drug dependency, or both, that endanger the health, interpersonal relationships, or economic functions of an individual or the public health, safety, or welfare.

(4) "Department" means the department of commerce provided for in 2-15-1801.



Section 3.  Department powers and duties. (1) The department shall:

(a) examine, certify, and renew the certificates of qualified applicants;

(b) adopt rules:

(i) for eligibility requirements and competency standards;

(ii) prescribing the time, place, content, and passing requirements of the certification and competency examinations and passing scores for certification under [section 5];

(iii) for application forms and fees for certification and for renewal and certification expiration dates; and

(iv) defining any unprofessional conduct that is not included in 37-1-316; and

(c) adopt and implement rules for training programs, internships, and continuing education requirements to ensure the quality of chemical dependency counseling.

(2) The department may:

(a) adopt rules necessary to implement the provisions of [sections 1 through 9];

(b) adopt rules specifying the scope of chemical dependency counseling that are consistent with the education required by [section 5]; and

(c) establish recertification requirements and procedures that the department considers appropriate.



Section 4.  Certificate required -- exceptions. (1) Except as otherwise provided in [sections 1 through 9], a person may not practice chemical dependency counseling or represent to the public that the person is a certified chemical dependency counselor unless the person is certified under the provisions of [sections 1 through 9].

(2) [Sections 1 through 9] do not prohibit an activity or service:

(a) performed by a qualified member of a profession, such as a physician, lawyer, licensed professional counselor, licensed social worker, licensed psychiatrist, licensed psychologist, nurse, probation officer, court employee, pastoral counselor, or school counselor, consistent with the person's licensure or certification and the code of ethics of the person's profession, as long as the person does not represent by title that the person is a certified chemical dependency counselor. If a person is a qualified member of a profession that is not licensed or certified or for which there is no applicable code of ethics, this section does not prohibit an activity or service of the profession as long as the person does not represent by title that the person is a certified chemical dependency counselor.

(b) of, or use of an official title by, a person employed or acting as a volunteer for a federal, state, county, or municipal agency or an educational, research, or charitable institution if that activity or service or use of that title is a part of the duties of the office or position;

(c) of an employee of a business establishment performed solely for the benefit of the establishment's employees;

(d) of a student, intern, or resident in chemical dependency counseling who is pursuing a course of study at an accredited college or university or who is working in a generally recognized training center if the activity or service constitutes part of the course of study;

(e) of a person who is not a resident of this state if the activity or service is rendered for a period that does not exceed, in the aggregate, 60 days during a calendar year and if the person is authorized under the laws of the state or country of residence to perform the activity or service. However, the person shall report to the department the nature and extent of the activity or service if it exceeds 10 days in a calendar year.

(f) of a person who is working to satisfactorily complete supervised chemical dependency counseling experience required for certification.

(3) [Sections 1 through 9] are not intended to limit, preclude, or interfere with the practice of other persons and health care providers licensed by the appropriate agencies of the state of Montana.



Section 5.  Certification requirements -- examination -- fees. (1) To be eligible for certification as a chemical dependency counselor, the applicant shall submit an application fee in an amount established by the department by rule and a written application on a form provided by the department that demonstrates that the applicant has completed the eligibility requirements and competency standards as defined by department rule.

(2) A person may apply for certification as a certified chemical dependency counselor if the person has:

(a) received a baccalaureate degree in alcohol and drug studies, psychology, sociology, social work, counseling, or a related field from an accredited college or university;

(b) received an associate of arts degree in alcohol and drug studies, chemical dependency, or substance abuse from an accredited institution; or

(c) successfully completed at least 1 year of formalized training in chemical dependency counseling in a program approved by the department or recognized under the laws of another state.

(3) Prior to becoming eligible to begin the examination process, each person shall complete supervised work experience in a chemical dependency treatment program as defined by the department, in an internship approved by the department, or in a similar program recognized under the laws of another state.

(4) Each applicant shall successfully complete a competency examination process as defined by rules adopted by the department.

(5) A person holding a certificate to practice as a certified chemical dependency counselor in this state may use the title "certified chemical dependency counselor".



Section 6.  Renewal of license -- application and fee. (1) A certificate expires biennially on the date set by department rule.

(2) A certificate holder may renew a certificate by:

(a) filing an application on a form prescribed by the department; and

(b) paying a renewal fee in an amount established by the department.

(3) A default in the payment of a renewal fee after the date it is due may increase the fee, as prescribed by the department by rule.

(4) It is unlawful for a person who refuses or fails to pay the renewal fee to practice as a certified chemical dependency counselor in this state.

(5) A certificate not renewed within 1 year following its expiration date terminates automatically.



Section 7.  Unprofessional conduct complaint -- sanctions. (1) A formal complaint alleging unprofessional conduct by a certified chemical dependency counselor may be directed to the department. The charges must be made by an affidavit, subscribed and sworn to by the person making it, and filed with the department.

(2) The complaint may allege any unprofessional conduct contained in 37-1-316 or as further defined by department rule that constitutes a threat to the public health, safety, or welfare and that is inappropriate to the practice of a certified chemical dependency counselor.

(3) The director of the department shall appoint a review panel to investigate a complaint of unprofessional conduct directed to the department. The panel must consist of:

(a) two certified chemical dependency counselors;

(b) one employee of the department; and

(c) two members of the public.

(4) The panel shall recommend to the department either that the person be cleared of any charges or that a sanction or combination of sanctions contained in 37-1-312 be imposed.

(5) For the purposes of this section, the department is vested with a board's authority for the purposes of the procedures in 37-1-307 through 37-1-318 regarding unprofessional conduct, and 37-1-301 through 37-1-318 apply to any proceeding under this section.



Section 8.  Penalty. A person convicted of violating any provision of [sections 1 through 9] is guilty of a misdemeanor and shall be fined an amount not to exceed $500, be imprisoned in a county jail for a term not to exceed 6 months, or both.



Section 9.  Deposit of fees. All fees and money received by the department must be deposited in the state treasury to the credit of a state special revenue fund for use by the department in its performance of its duties under [sections 1 through 9].



Section 10.  Transition -- transfer of certificates. The department shall grant a certificate without the need for further application or other requirements to those persons holding a current, unrestricted certificate as a certified chemical dependency counselor as of [the effective date of this act] that was issued by the department of public health and human services.



Section 11.  Section 33-22-705, MCA, is amended to read:

"33-22-705.  Inpatient and outpatient benefits. (1) "Inpatient benefits" are benefits payable for charges made by a hospital or freestanding inpatient facility for the necessary care and treatment of mental illness, alcoholism, or drug addiction furnished to a covered person while confined as an inpatient and, with respect to major medical policies or contracts, also includes those benefits payable for charges made by a physician for the necessary care and treatment of mental illness, alcoholism, or drug addiction furnished to a covered person while confined as an inpatient. Care and treatment of alcoholism or drug addiction in a freestanding inpatient facility must be in a chemical dependency treatment center that is approved by the department of public health and human services under 53-24-208.

(2)  "Outpatient benefits" are benefits payable for:

(a)  reasonable charges made by a hospital for the necessary care and treatment of mental illness, alcoholism, or drug addiction furnished to a covered person while not confined as an inpatient;

(b)  reasonable charges for services rendered or prescribed by a physician for the necessary care and treatment for mental illness, alcoholism, or drug addiction furnished to a covered person while not confined as an inpatient;

(c)  reasonable charges made by a mental health or chemical dependency treatment center for the necessary care and treatment of a covered person provided in the treatment center. The chemical dependency treatment center must be approved by the department of public health and human services under 53-24-208.

(d)  reasonable charges for services rendered by a licensed psychiatrist, psychologist, licensed professional counselor, licensed social worker, or chemical dependency counselor certified by the department of public health and human services under 53-24-204 commerce under [sections 1 through 9]."



Section 12.  Section 37-23-201, MCA, is amended to read:

"37-23-201.  Representation or practice as licensed clinical professional counselor -- license required. (1) Upon issuance of a license in accordance with this chapter, a licensee may use the title "licensed clinical professional counselor" or "professional counselor".

(2)  Except as provided in subsection (3), a person may not represent that the person is a licensed professional counselor or licensed clinical professional counselor by adding the letters "LPC" or "LCPC" after the person's name or by any other means, engage in the practice of professional counseling, or represent that the person is engaged in the practice of professional counseling, unless licensed under this chapter.

(3)  Individuals licensed in accordance with this chapter before October 1, 1993, who use the title "licensed professional counselor" or "LPC" may use the title "licensed clinical professional counselor" or "LCPC".

(4)  Subsection (2) does not prohibit:

(a)  a qualified member of another profession, such as a physician, lawyer, pastoral counselor, probation officer, court employee, nurse, school counselor, educator, chemical dependency counselor accredited by a federal agency, or chemical dependency counselor certified pursuant to 53-24-215 [sections 1 through 9], from performing duties and services consistent with the person's licensure or certification and the code of ethics of the person's profession or, in the case of a qualified member of another profession who is not licensed or certified or for whom there is no applicable code of ethics, from performing duties and services consistent with the person's training, as long as the person does not represent by title that the person is engaging in the practice of professional counseling;

(b)  an activity or service or use of an official title by a person employed by or acting as a volunteer for a federal, state, county, or municipal agency or an educational, research, or charitable institution that is a part of the duties of the office or position;

(c)  an activity or service of an employee of a business establishment performed solely for the benefit of the establishment's employees;

(d)  an activity or service of a student, intern, or resident in mental health counseling pursuing a course of study at an accredited university or college or working in a generally recognized training center if the activity or service constitutes a part of the supervised course of study;

(e)  an activity or service of a person who is not a resident of this state, which activity or service is rendered for a period that does not exceed, in the aggregate, 60 days during a calendar year, if the person is authorized under the law of the state or country of residence to perform the activity or service. However, the person shall report to the department of commerce the nature and extent of the activity or service if it exceeds 10 days in a calendar year.

(f)  pending disposition of the application for a license, the activity or service by a person who has recently become a resident of this state, has applied for a license within 90 days of taking up residency in this state, and is licensed to perform the activity or service in the state of the person's former residence;

(g)  an activity or service of a person who is working to satisfactorily complete the 3,000 hours of counseling practice required for licensure by 37-23-202(1)(b) if the person has already completed a planned graduate program as required by 37-23-202(1)(a) or is working to complete the 3,000 hours of social work experience as required by 37-22-301; or

(h)  an activity or service performed by a licensed social worker, licensed psychiatrist, or licensed psychologist when performing the activity or service in a manner consistent with the person's license and the code of ethics of the person's profession."



Section 13.  Section 53-24-204, MCA, is amended to read:

"53-24-204.  Powers and duties of department. (1) To carry out this chapter, the department may:

(a)  accept gifts, grants, and donations of money and property from public and private sources;

(b)  enter into contracts;

(c)  acquire and dispose of property.

(2)  The department shall:

(a)  approve treatment facilities as provided for in 53-24-208;

(b)  prepare a comprehensive long-term state chemical dependency plan every 4 years and update this plan each biennium;

(c)  provide for and conduct statewide service system evaluations;

(d)  distribute state and federal funds to the counties for approved treatment programs in accordance with the provisions of 53-24-206;

(e)  plan in conjunction with approved programs and provide for training of program personnel delivering services to chemically dependent persons with a chemical dependency;

(f)  establish criteria to be used for the development of new programs;

(g)  certify and establish standards for the certification of:

(i)  chemical dependency counselors; and

(ii)  instructors providing chemical dependency educational courses;

(h)(g)  encourage planning for the greatest utilization of funds by discouraging duplication of services, encouraging efficiency of services through existing programs, and encouraging rural counties to form multicounty districts or contract with urban programs for services;

(i)(h)  cooperate with the board of pardons and parole in establishing and conducting programs to provide treatment for chemically dependent and intoxicated persons and persons with a chemical dependency in or on parole from penal institutions;

(j)(i)  establish standards for chemical dependency educational courses provided by state-approved treatment programs and approve or disapprove the courses; and

(k)(j)  assist all interested public agencies and private organizations in developing education and prevention programs for chemical dependency."



Section 14.  Repealer. Sections 53-24-215, 53-24-216, and 53-24-217, MCA, are repealed.



Section 15.  Codification instruction. [Sections 1 through 9] are intended to be codified as an integral part of Title 37, and the provisions of Title 37 apply to [sections 1 through 9].



Section 16.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective July 1, 1997.

(2) The department may publish a notice of adoption of rules and of a hearing to adopt rules to be effective on July 1, 1997.

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