2019 Montana Legislature
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SENATE BILL NO. 106
INTRODUCED BY J. SMALL
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATING TO PSYCHOLOGY; AUTHORIZING PSYCHOLOGISTS TO PRESCRIBE OR DISPENSE DRUGS OR MEDICINE UNDER CERTAIN CONDITIONS; PROHIBITING A PRESCRIBING PSYCHOLOGIST FROM DIRECTLY OR INDIRECTLY OWNING A COMMUNITY PHARMACY; REQUIRING RECORDKEEPING; PROVIDING FOR INTERACTIONS WITH VARIOUS BOARDS; CREATING A COMMITTEE TO ADDRESS COMPLAINTS; PROVIDING DUTIES AND IMMUNITY FROM LIABILITY FOR CERTAIN PRESCRIBING PSYCHOLOGISTS; EXPANDING THE DUTIES OF THE BOARD OF PSYCHOLOGISTS, INCLUDING EXPANDED RULEMAKING, FEE SETTING, AND REMEDIATION; AND AMENDING SECTIONS 37-2-101, 37-2-311, 37-8-102, 37-17-101, 37-17-102, 37-17-103, 37-17-104, 37-17-202, 37-17-313, AND 53-21-165, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Authorization to prescribe drugs and medicine. (1) A psychologist certified by the board to be a prescribing psychologist may prescribe drugs or medicine customarily used in the diagnosis and treatment of mental or emotional disorders and in the treatment of related side effects of mental or emotional disorders. The board shall assign an identification number to each prescribing psychologist.
(2) A prescription by a prescribing psychologist:
(a) must comply with all applicable state and federal law;
(b) must be identified as being issued by a prescribing psychologist; and
(c) must include the prescribing psychologist's identification number assigned by the board.
(3) Records of all prescriptions must be maintained in patient records.
(4) A prescribing psychologist may not designate any other person to prescribe drugs or medicine.
(5) When a prescribing psychologist is prescribing drugs or medicine for a patient, the prescribing psychologist shall maintain an ongoing collaborative relationship with the medical practitioner who oversees the patient's general medical care and shall maintain records as provided in 53-21-165 or by rule.
NEW SECTION. Section 2. Qualifications for prescriptive authority -- renewal. (1) To qualify for prescriptive authority, a psychologist:
(a) must hold a current license to practice psychology in Montana;
(b) (i) must have a master's degree in clinical psychopharmacology that includes training in physical assessment, neuroscience, pharmacology, physiology, pathophysiology, psychopharmacology, clinical management, appropriate and relevant physical and laboratory assessment, and clinical pharmacotherapeutics from an institution accredited by a regional accreditation organization; or
(ii) must have successfully completed the United States department of defense psychopharmacology demonstration project or a similar program developed and operated by a branch of the United States armed forces;
(c) must have obtained supervised and relevant clinical experience with at least 100 patients preceding the date of application. The board may determine if the supervised and clinical experience under the direction of qualified practitioners is sufficient to attain competency.
(d) shall pass a certifying examination developed by a nationally recognized body and approved by the board; and
(e) shall submit an application and fees required by the board for certification.
(2) A psychologist applying to renew prescriptive authority shall present satisfactory evidence to the board of having completed 20 contact hours of instruction relevant to prescriptive authority during the previous 2-year period and shall pay renewal fees as required by the board.
NEW SECTION. Section 3. Controlled substance prescriptive authority -- recordkeeping. (1) A prescribing psychologist who writes a prescription for a controlled substance as provided in Title 50, chapter 32, shall file in a timely manner all individual federal drug enforcement agency registrations and numbers with the board.
(2) The board shall maintain current records for each prescribing psychologist, including federal drug enforcement agency registrations and numbers.
NEW SECTION. Section 4. Interaction with board of pharmacy. (1) The board of psychologists shall transmit to the board of pharmacy an annual list of prescribing psychologists containing:
(a) the name of each prescribing psychologist;
(b) the prescribing psychologist's identification number assigned by the board; and
(c) the effective date of the prescribing psychologist's prescriptive authority.
(2) The board of psychologists shall promptly forward to the board of pharmacy the names and files of prescribing psychologists added to or deleted from the annual list described in subsection (1).
(3) The board of psychologists shall notify the board of pharmacy in a timely manner upon termination, suspension, or reinstatement of a prescribing psychologist's prescriptive authority.
NEW SECTION. Section 5. Prescribing psychologist oversight committee. (1) There is a prescribing psychologist oversight committee of five members that is attached to the department of labor and industry. The board of psychologists is responsible for committee costs as provided in 2-18-501 through 2-18-503.
(2) Appointments include:
(a) two physicians appointed by the board of medical examiners;
(b) two psychologists appointed by the board of psychologists; and
(c) one pharmacist appointed by the board of pharmacy.
(3) The members of the committee shall elect a presiding officer from among the members of the committee.
(4) A meeting of the committee is subject to a call by one of the represented boards or the department upon receipt of a signed, written complaint regarding the prescribing, administering, or discontinuing of drugs or medicine by a prescribing psychologist.
(5) A represented board or the department shall, upon receipt of a complaint, forward a copy of the complaint to members of the committee. Each committee member must, subject to applicable confidentiality requirements, be allowed access to all necessary records related to the complaint.
(6) The committee may investigate a complaint it considers valid.
(7) Based on the findings of an investigation pursuant to subsection (6), the committee may recommend that the board of psychologists:
(a) take no further action regarding the complaint; or
(b) initiate disciplinary proceedings.
(8) If the committee recommends disciplinary proceedings, the board of psychologists shall take necessary action to begin the disciplinary proceedings and shall respond to the committee's decision in writing.
(9) A copy of the committee's decision and, if applicable, the board's written, public findings must be mailed to:
(a) the complainant;
(b) the person against whom the complaint was brought; and
(c) the board of medical examiners and the board of pharmacy.
Section 6. Section 37-2-101, MCA, is amended to read:
"37-2-101. Definitions. As used in this part, the following definitions apply:
(1) "Community pharmacy", when used in relation to a medical practitioner, means a pharmacy situated within 10 miles of any place at which the medical practitioner maintains an office for professional practice.
(2) "Device" means any instrument, apparatus, or contrivance intended:
(a) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans;
(b) to affect the structure or any function of the body of humans.
(3) "Drug" has the same meaning as provided in 37-7-101.
(4) "Drug company" means any person engaged in the manufacturing, processing, packaging, or distribution of drugs. The term does not include a pharmacy.
(5) "Medical practitioner" means any person licensed by the state of Montana to engage in the practice of medicine, dentistry, osteopathy, podiatry, optometry, psychology as a prescribing psychologist, or a nursing specialty as described in 37-8-202 and in the licensed practice to administer or prescribe drugs.
(6) "Person" means any individual and any partnership, firm, corporation, association, or other business entity.
(7) "Pharmacy" has the same meaning as provided in 37-7-101.
(8) "Prescribing psychologist" has the meaning provided in 37-17-102.
(8)(9) "State" means the state of Montana or any political subdivision of the state."
Section 7. Section 37-2-311, MCA, is amended to read:
"37-2-311. Report to department of justice by physician. (1) Any physician or prescribing psychologist who diagnoses a physical or mental condition that, in the physician's judgment of the physician or prescribing psychologist, will significantly impair a person's ability to safely operate a motor vehicle may voluntarily report the person's name and other information relevant to the person's condition to the department of justice. The department, upon receiving the report, shall require the person reported to be examined or investigated as provided for in 61-5-207.
(2) (a) The physician's or prescribing psychologist's report may be introduced as evidence in any proceeding involving the granting, suspension, or revocation of the person's driver's license, driving privilege, or commercial driver's license before the department or a court.
(b) The physician's or prescribing psychologist's report may not be utilized used in a criminal proceeding or in a civil proceeding, other than as provided in this subsection (2), without the consent of the patient."
NEW SECTION. Section 8. Prescribing psychologist's immunity from liability. A prescribing psychologist who is not employed by or acting on behalf of the state or its political subdivisions is, when reporting in good faith, immune from any liability, civil or criminal, that otherwise might result by reason of the prescribing psychologist's actions pursuant to 37-2-311 except for damages occasioned by gross negligence. An action may not be brought against a prescribing psychologist for not making a report pursuant to 37-2-311.
Section 9. Section 37-8-102, MCA, is amended to read:
"37-8-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:
(1) "Advanced practice registered nurse" means a registered professional nurse who has completed educational requirements related to the nurse's specific practice role, in addition to basic nursing education, as specified by the board pursuant to 37-8-202.
(2) "Board" means the board of nursing provided for in 2-15-1734.
(3) "Department" means the department of labor and industry provided for in Title 2, chapter 15, part 17.
(4) "Medication aide I" means a person who in an assisted living facility uses standardized procedures in the administration of drugs, as defined in 37-7-101, that are prescribed by a physician, a prescribing psychologist, a naturopathic physician, a physician assistant, an optometrist, an advanced practice registered nurse, a dentist, an osteopath, or a podiatrist authorized by state law to prescribe drugs.
(5) "Medication aide II" means a person who in a long-term care facility licensed to provide skilled nursing care, as defined in 50-5-101, uses standardized procedures in the administration of drugs, as defined in 37-7-101, that are prescribed by a physician, a prescribing psychologist, a naturopathic physician, a physician assistant, an optometrist, an advanced practice registered nurse, a dentist, an osteopath, or a podiatrist authorized by state law to prescribe drugs.
(6) "Nursing education program" means any board-approved school that prepares graduates for initial licensure under this chapter. Nursing education programs for:
(a) for professional nursing may be a department, school, division, or other administrative unit in a junior college, college, or university;
(b) for practical nursing may be a department, school, division, or other administrative unit in a vocational-technical institution or junior college.
(7) "Practice of nursing" embraces the practice of practical nursing and the practice of professional nursing.
(8) (a) "Practice of practical nursing" means the performance of services requiring basic knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing procedures. The practice of practical nursing uses standardized procedures in the observation and care of the ill, injured, and infirm, in the maintenance of health, in action to safeguard life and health, and in the administration of medications and treatments prescribed by a physician, a prescribing psychologist, a naturopathic physician, a physician assistant, an optometrist, an advanced practice registered nurse, a dentist, an osteopath, or a podiatrist authorized by state law to prescribe medications and treatments. These services are performed under the supervision of a registered nurse or a physician, a prescribing psychologist, a naturopathic physician, a physician assistant, an optometrist, a dentist, an osteopath, or a podiatrist authorized by state law to prescribe medications and treatments.
(b) These services may include a charge-nurse capacity in a long-term care facility that provides skilled nursing care or intermediate nursing care, as defined in 50-5-101, under the general supervision of a registered nurse.
(9) "Practice of professional nursing" means the performance of services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as a basis for the nursing process. The nursing process is the assessment, nursing analysis, planning, nursing intervention, and evaluation in the promotion and maintenance of health, the prevention, casefinding, and management of illness, injury, or infirmity, and the restoration of optimum function. The term also includes administration, teaching, counseling, supervision, delegation, and evaluation of nursing practice and the administration of medications and treatments prescribed by physicians, prescribing psychologists, naturopathic physicians, physician assistants, optometrists, advanced practice registered nurses, dentists, osteopaths, or podiatrists authorized by state law to prescribe medications and treatments. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered. As used in this subsection (9):
(a) "nursing analysis" is the identification of those client problems for which nursing care is indicated and may include referral to medical or community resources;
(b) "nursing intervention" is the implementation of a plan of nursing care necessary to accomplish defined goals."
Section 10. Section 37-17-101, MCA, is amended to read:
"37-17-101. Purpose. The legislature finds and declares that the practice of psychology in Montana affects the public health, safety, and welfare and should therefore be subject to regulation and control in the public interest in order to protect the public from the unauthorized and unqualified practice of psychology and from unprofessional conduct by persons licensed to practice psychology. The practice of psychology does not include prescribing drugs, unless the psychologist has a current certificate from the board as a prescribing psychologist."
Section 11. Section 37-17-102, MCA, is amended to read:
"37-17-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:
(1) "Accredited college or university" means a college or university accredited by the regional accrediting association for institutions of higher learning, such as the northwest commission on colleges and universities.
(2) "Board" means the board of psychologists provided for in 2-15-1741.
(3) "Collaborative relationship" means a cooperative working relationship, within the respective scope of practice, between a prescribing psychologist or a psychologist with a prescription certificate and a medical practitioner in the provision of patient care. The collaborative relationship may include diagnosis, treatment, and management and delivery of a patient's health care.
(3)(4) "Department" means the department of labor and industry provided for in Title 2, chapter 15, part 17.
(5) "Drug" has the meaning provided in 37-7-101 and, additionally, means a drug customarily used in the diagnosis or treatment of mental or emotional disorders or for side effects related to the treatment of mental or emotional disorders.
(6) "Medicine" has the meaning provided in 37-7-101 and, additionally, means medicine that is customarily used in the diagnosis or treatment of mental or emotional disorders.
(4)(7) (a) "Practice of psychology" means the observation, description, interpretation, and modification of human behavior by the application of psychological principles, methods, and procedures for the purpose of eliminating symptomatic, maladaptive, or undesired behavior and improving interpersonal relations, work and life adjustment, personal effectiveness, and mental health.
(b) The practice of psychology includes but is not limited to:
(i) psychological testing and evaluation or assessment of personal characteristics such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning;
(ii) counseling, psychoanalysis, psychotherapy, hypnosis, biofeedback, and behavior analysis and therapy;
(iii) diagnosis and treatment of mental and emotional disorders or disabilities, chemical dependency, substance abuse, and the psychological aspects of physical illness, accident, injury, or disability; and
(iv) psychoeducational evaluation, therapy, remediation, and consultation.
(5)(c) A person represents to the public that the person is a "psychologist" engaged in the practice of psychology when the person uses a title or description of services incorporating the words "psychologist", "psychological", "psychologic", or "psychology" and offers to render or renders psychological services described referred to in subsection (4) subsections (7)(a) and (7)(b) to individuals, groups, corporations, or the public, whether or not the person does so for compensation or a fee.
(8) "Prescribing psychologist" means a licensed psychologist who has undergone specialized postdoctoral training in psychopharmacology, has passed an examination accepted by the board of psychologists, and has received from the board a current certificate granting prescriptive authority that has not been revoked or suspended.
(9) "Prescription" has the meaning provided in 50-32-101 and includes an order for a drug, a laboratory test, a medicine, a device, or a treatment.
(10) "Prescriptive authority" means the authority to prescribe, administer, or discontinue the use of drugs or medicine customarily used in the diagnosis and treatment of mental or emotional disorders or other treatment procedures within the scope of the practice of psychology in accordance with regulations adopted by the board."
Section 12. Section 37-17-103, MCA, is amended to read:
"37-17-103. Limitation of license authority. Nothing in this This chapter shall may not be construed as permitting psychologists to prescribe drugs, perform surgery, or administer electroconvulsive therapy. Only psychologists with prescriptive authority may prescribe drugs."
Section 13. Section 37-17-104, MCA, is amended to read:
"37-17-104. Exemptions. (1) Except as provided in subsection (2), this chapter does not prevent:
(a) qualified members of other professions, such as physicians, social workers, lawyers, pastoral counselors, professional counselors licensed under Title 37, chapter 23, marriage and family therapists licensed under Title 37, chapter 37, or educators, from doing work of a psychological nature consistent with their training if they do not hold themselves out to the public by a title or description incorporating the words "psychology", "psychologist", "psychological", or "psychologic";
(b) the activities, services, and use of an official title clearly delineating the nature and level of training on the part of a person in the employ of a federal, state, county, or municipal agency or of other political subdivisions or an educational institution, business corporation, or research laboratory insofar as these activities and services are a part of the duties of the office or position within the confines of the agency or institution;
(c) the activities and services of a student, intern, or resident in psychology pursuing a course of study at an accredited university or college or working in a generally recognized training center if these activities and services constitute a part of the supervised course of study of the student, intern, or resident in psychology;
(d) the activities and services of a person who is not a resident of this state in rendering consulting psychological services in this state when these services are rendered for a period which does not exceed, in the aggregate, 60 days during a calendar year if the person is authorized under the laws of the state or country of that person's residence to perform these activities and services. However, these persons shall report to the department the nature and extent of the services in this state prior to providing those services if the services are to exceed 10 days in a calendar year.
(e) a person authorized by the laws of the state or country of the person's former residence to perform activities and services, who has recently become a resident of this state and who has submitted a completed application for a license in this state, from performing the activities and services pending disposition of the person's application; and
(f) the offering of lecture services.
(2) Those qualified members of other professions described in subsection (1)(a) may indicate and hold themselves out as performing psychological testing, evaluation, and assessment, as described referred to in 37-17-102(4)(b)(7)(b), provided that they are qualified to administer the test and make the evaluation or assessment.
(3) The board of behavioral health shall adopt rules that qualify a licensee under Title 37, chapter 22, 23, or 37, to perform psychological testing, evaluation, and assessment. The rules for licensed clinical social workers, professional counselors, and licensed marriage and family therapists must be consistent with the guidelines of their respective national associations. A qualified licensee providing services under this exemption shall comply with the rules no later than 1 year from the date of adoption of the rules."
Section 14. Section 37-17-202, MCA, is amended to read:
"37-17-202. Powers -- rulemaking. (1) The board may make adopt reasonable and necessary rules for the proper performance of its duties and for the regulation of proceedings before it.
(2) In addition to the other powers and duties set forth, the board may:
(a) revoke and suspend licenses;
(b) conduct hearings upon complaints concerning persons licensed under this chapter;
(c) cause the prosecution and enjoinder of all persons violating this chapter, by the complaint of its secretary signed with the county attorney, in the county where the violation took place and incur necessary expenses for the prosecution; and
(d) study and review new developments in research, training, and the practice of psychology and make recommendations to the governor and other state officials regarding new and revised programs and legislation related to psychology which that could be beneficial to the citizens of the state of Montana.
(3) The board shall:
(a) certify prescribing psychologists to prescribe and dispense drugs or medicine in accordance with applicable state and federal laws;
(b) develop and implement procedures for reviewing educational and training credentials for the process of certifying prescribing psychologists in accordance with current standards of practice. The qualifications must include evidence provided by the applicant for prescriptive authority of official transcripts that show the applicant meets the qualifications for prescriptive authority as provided in [section 2].
(c) adopt rules describing the renewal process for prescriptive authority in conjunction with a psychologist's license renewal and any other rules necessary to oversee the prescriptive authority process in [sections 1 and 2]."
Section 15. Section 37-17-313, MCA, is amended to read:
"37-17-313. Injunction for unlawful practice -- board authority. (1) The practice of psychology in any way other than as defined in this chapter may be enjoined by the district court on petition by the board. In the proceeding, it is not necessary to show that any person is individually injured by the actions complained of. If the respondent is found to have practiced improperly, the court shall enjoin the respondent from practicing unless and until the respondent has been licensed or takes the appropriate action. Procedure The procedure in these cases is the same as in any other injunction suit. The remedy by injunction is in addition to criminal prosecution and punishment.
(2) The board shall prescribe by rule the criteria for disciplining, suspending, or revoking the prescriptive authority or license of a prescribing psychologist. The board may require remediation, suspension, or revocation of a prescribing psychologist's prescriptive authority for a specified period to be determined by the board."
Section 16. Section 53-21-165, MCA, is amended to read:
"53-21-165. Records to be maintained. Complete patient records must be kept by the mental health facility for the length of time required by rules established by the department. All records kept by the mental health facility must be available to any person authorized by the patient in writing to receive these records and upon approval of the authorization by the board. The records must also be made available to any attorney charged with representing the patient or any professional person charged with evaluating or treating the patient. These records must include:
(1) identification data, including the patient's legal status;
(2) a patient history, including but not limited to:
(a) family data, educational background, and employment record;
(b) prior medical history, both physical and mental, including prior hospitalization;
(3) the chief complaints of the patient and the chief complaints of others regarding the patient;
(4) an evaluation that notes the onset of illness, the circumstances leading to admission, attitudes, behavior, estimate of intellectual functioning, memory functioning, orientation, and an inventory of the patient's assets in descriptive rather than interpretative fashion;
(5) a summary of each physical examination that describes the results of the examination;
(6) a copy of the individual treatment plan and any modifications to the plan;
(7) a detailed summary of the findings made by the reviewing professional person after each periodic review of the treatment plan, required under 53-21-162(4), that analyzes the successes and failures of the treatment program and includes recommendations for appropriate modification of the treatment plan;
(8) a copy of the individualized discharge plan and any modifications to the plan and a summary of the steps that have been taken to implement that plan;
(9) a medication history and status that includes the signed orders of the prescribing physician, the prescribing psychologist as defined in 37-17-102, or the advanced practice registered nurse. The staff person administering the medication shall indicate by signature that orders have been carried out.
(10) a summary of each significant contact by a professional person with the patient;
(11) documentation of the implementation of the treatment plan;
(12) documentation of all treatment provided to the patient;
(13) chronological documentation of the patient's clinical course;
(14) descriptions of any changes in the patient's condition;
(15) a signed order by a professional person for any restrictions on visitations and communications;
(16) a signed order by a professional person for any physical restraints and isolation;
(17) a detailed summary of any extraordinary incident in the facility involving the patient, to be entered by a staff member noting that the staff member has personal knowledge of the incident or specifying any other source of information. The summary of the incident must be initialed within 24 hours by a professional person.
(18) a summary by the professional person in charge of the facility or by an appointed agent of the determination made after the 30-day review provided for in 53-21-163."
NEW SECTION. Section 17. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell Chippewa tribe.
NEW SECTION. Section 18. Codification instruction. (1) [Sections 1 through 5] are intended to be codified as an integral part of Title 37, chapter 17, and the provisions of Title 37, chapter 17, apply to [sections 1 through 5].
(2) [Section 8] is intended to be codified as an integral part of Title 37, chapter 2, part 3, and the provisions of Title 37, chapter 2, part 3, apply to [section 8].
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