Existing law requires the Department of Consumer Affairs to prepare and disseminate an informational brochure for victims of psychotherapist-patient sexual contact and their advocates, and requires the brochure to be developed by the department in consultation with the office of Criminal Justice Planning and the office of the Attorney General, as specified. Existing law requires the brochure to include specified subjects and requires the brochure to be provided to individuals who contact the Medical Board of California and affiliated health boards or the Board of Behavioral Sciences regarding a complaint involving psychotherapist-patient sexual relations.

This bill would instead require the brochure to be prepared, developed, and disseminated by the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California. The bill would require that the brochure also be for victims of psychotherapist-client sexual behavior. The bill would revise the required content of the brochure, would require the brochure to be made available on the Internet Web sites of the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California, and would require the brochure to be provided to each individual contacting those boards regarding a complaint involving psychotherapist-client sexual behavior and sexual contact. The bill would also make conforming changes.

Existing law requires a psychotherapist or an employer of a psychotherapist who becomes aware through a patient that the patient had alleged sexual intercourse or alleged sexual contact, as defined, with a previous psychotherapist to provide a brochure developed by the department that delineates the rights of, and remedies for, patients who have been involved sexually with their psychotherapists. Existing law defines psychotherapist for purposes of those provisions to include various mental health practitioners and makes a failure to comply unprofessional conduct.

This bill would make this requirement also apply in the case of alleged sexual behavior, as defined, with a previous psychotherapist and would specify that the required brochure is the above-described brochure. The bill would also expand the list of mental health practitioners included in the definition of psychotherapist for those purposes.

This bill would incorporate additional changes to Section 728 of the Business and Professions Code proposed by AB 93 to be operative only if this bill and AB 93 are enacted and this bill is enacted last.

Existing law requires the Department of Consumer Affairs to prepare and disseminate an informational brochure for victims of psychotherapist-patient sexual contact and their advocates, and requires the brochure to be developed by the department in consultation with the office of Criminal Justice Planning and the office of the Attorney General, as specified. Existing law requires the brochure to include specified subjects and requires the brochure to be provided to individuals who contact the Medical Board of California and affiliated health boards or the Board of Behavioral Sciences regarding a complaint involving psychotherapist-patient sexual relations.

This bill would instead require the brochure to be prepared, developed, and disseminated by the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California. The bill would require that the brochure also be for victims of psychotherapist-client sexual behavior. The bill would revise the required content of the brochure, would require the brochure to be made available on the Internet Web sites of the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California, and would require the brochure to be provided to each individual contacting those boards regarding a complaint involving psychotherapist-client sexual behavior and sexual contact. The bill would also make conforming changes.

Existing law requires a psychotherapist or an employer of a psychotherapist who becomes aware through a patient that the patient had alleged sexual intercourse or alleged sexual contact, as defined, with a previous psychotherapist to provide a brochure developed by the department that delineates the rights of, and remedies for, patients who have been involved sexually with their psychotherapists. Existing law defines psychotherapist for purposes of those provisions to include various mental health practitioners and makes a failure to comply unprofessional conduct.

This bill would make this requirement also apply in the case of alleged sexual behavior, as defined, with a previous psychotherapist and would specify that the required brochure is the above-described brochure. The bill would also expand the list of mental health practitioners included in the definition of psychotherapist for those purposes.

This bill would incorporate additional changes to Section 728 of the Business and Professions Code proposed by AB 93 to be operative only if this bill and AB 93 are enacted and this bill is enacted last.

Existing law requires the Department of Consumer Affairs to prepare and disseminate an informational brochure for victims of psychotherapist-patient sexual contact and their advocates, and requires that the brochure to be developed by the department in consultation with the office of Criminal Justice Planning and the office of the Attorney General, as specified. Existing law requires the brochure to include specified subjects and requires the brochure to be provided to individuals who contact the Medical Board of California and affiliated health boards or the Board of Behavioral Sciences regarding a complaint involving psychotherapist-patient sexual relations.

This bill would eliminate the requirement that the department develop the brochure in consultation with the office of Criminal Justice Planning and the office of the Attorney General. instead require the brochure to be prepared, developed, and disseminated by the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California. The bill would require that the brochure also be for victims of psychotherapist-client sexual behavior. The bill would revise the required content of the brochure, and would require the brochure to be made available on the Internet Web sites of the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California, and would require the brochure to be provided to each individual contacting the Medical Board of California, the Osteopathic Medical Board of California, the Board of Psychology, or the Board of Behavioral Sciences those boards regarding a complaint involving psychotherapist-client sexual behavior and sexual contact. The bill would make conforming changes.

Existing law requires a psychotherapist or an employer of a psychotherapist who becomes aware through a patient that the patient had alleged sexual intercourse or alleged sexual contact, as defined, with a previous psychotherapist to provide a brochure developed by the department that delineates the rights of, and remedies for, patients who have been involved sexually with their psychotherapists. Existing law defines psychotherapist for purposes of those provisions to include various mental health practitioners and makes a failure to comply unprofessional conduct.

This bill would make this requirement also apply in the case of alleged sexual behavior, as defined, with a previous psychotherapist and would specify that the required brochure is the above-described brochure developed by the department. brochure. The bill would also expand the list of mental health practitioners included in the definition of psychotherapist for those purposes.

Existing law establishes the Department of Consumer Affairs, which is comprised of various boards and requires members of a board to take an oath of office, as specified.

This bill would make a nonsubstantive change to that provision.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2968

Author:(Levine)

As Amended Ver:August 14, 2018

Majority vote

Original Committee Reference: B. & P.

SUMMARY: Updates requirements for psychotherapists and the Department of Consumer Affairs (DCA) relating to outreach and education related to psychotherapist-patient sexual contact. Specifically, this bill:

1. Defines "sexual behavior" as inappropriate contact or communication of a sexual nature.
2. Excludes from the definition of "sexual behavior" the provision of appropriate therapeutic interventions relating to sexual issues.
3. Requires the Board of Behavioral Sciences, the Board of Psychology, the Medical Board of California, and the Osteopathic Medical Board of California, instead of the DCA, to develop the psychotherapist-patient sexual contact brochure.
4. Requires the boards under this bill to include "sexual behavior" in their brochures.
5. Requires the boards under this bill to make the brochure available on their websites.
6. Adds "sexual behavior" to the type of allegation that a psychotherapist or employer of a psychotherapist may become aware of from a patient that would trigger the requirement to provide and discuss the brochure.
7. Adds to the definition of "psychotherapist" previously excluded or subsequently regulated mental health practitioners, including:
   1. A registered psychologist.
   2. A trainee under the supervision of a licensed psychologist.
   3. A licensed educational psychologist.
   4. An associate clinical social worker.
   5. An associate professional clinical counselor.
8. Replaces the term "patient" with "client" in the requirements relating to the brochure.
9. Requires the DCA to provide the psychotherapist-client sexual behavior and sexual contact brochure to individuals contacting the Osteopathic Medical Board and the Board of Psychology, in addition to the Medical Board of California and the Board of Behavioral Sciences, instead of "affiliated health boards."
10. Deletes the requirement that the DCA develop the psychotherapist sexual behavior and sexual contact brochure with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General.
11. Makes other technical, updating, and conforming changes.

The Senate amendments:

1. Replaced the existing requirement for the DCA to prepare and the brochure for victims of psychotherapist-patient sexual contact with a requirement for the specified health boards to undertake this activity and
2. Made conforming changes to the provisions specific to non-physician psycho-therapists.
3. Included double-jointing language for conflicting bills.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, no significant state costs anticipated.

COMMENTS:

Purpose. This bill is sponsored by the author, who is working closely with the California Board of Psychology. According to the author, "[this bill] updates and modernizes statutory provisions by removing obsolete language and adding currently recognized forms of sexual exploitation and modern modes of communication. It more clearly articulates to consumers the most effective course of action when reporting these types of allegations."

Background. Pursuant to existing law, the DCA produces and distributes a brochure entitled Professional Therapy Never Includes Sex . At the Board of Psychology's February 16, 2018, board meeting, the Board voted to approve updates and other changes to modernize the brochure that were produced and updated by the Board of Psychology, the Board of Behavioral Sciences, the Medical Board of California, and the Osteopathic Medical Board of California.

The Board of Psychology is one of the licensing entities under the DCA that licenses and regulates mental health providers that provide psychotherapy. According to the Board of Psychology, the statutory language narrowly defines "when a patient is required to be provided the informational brochure by a therapist, and narrowly defines the inappropriate behavior included in the brochure. These narrow definitions overlook currently-recognized forms of sexual exploitation and ignore behavior facilitated by modern modes of communication and sexually exploitative grooming behaviors that do not reach the level of sexual contact as currently defined in the Business and Professions Code."

Psychotherapy. According to the federal National Institute of Mental Health, "Psychotherapy… is a term for a variety of treatment techniques that aim to help a person identify and change troubling emotions, thoughts, and behavior. Most psychotherapy takes place with a licensed and trained mental health care professional and a patient meeting one on one or with other patients in a group setting."

Analysis Prepared by: Vincent Chee / B. & P. / (916) 319-3301 FN: 0004068

 THIRD READING  

Bill No: AB 2968

Author:

: 8/14/18 in Senate

Vote:

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 9-0, 6/25/18

AYES: Hill, Fuller, Allen, Dodd, Galgiani, Glazer, Hernandez, Pan, Wilk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 73-0, 5/17/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill updates requires for health care licensing boards to prepare and distribute an information brochure for victims of psychotherapist-patient sexual contact and advocates for those victims, as specified.

Senate Floor Amendments of 8/14/18 replace the current requirement for the Department of Consumer Affairs (DCA) to prepare and update a brochure for victims of psychotherapist-patient sexual contact with a requirement for certain health boards to undertake this activity and incorporate double-jointing amendments with conflicting legislation.

ANALYSIS:

Existing law:

1. Requires DCA to prepare and disseminate, in consultation with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General (AG), an informational brochure for victims of psychotherapist-patient sexual contact and advocates for those victims that includes: (BPC) § 337(a) and (b))
   
   1. A legal and information definition of psychotherapist-patient sexual contact.
   2. A description of common personal reactions and histories of victims and their families.
   3. A patient’s bill of rights.
   4. Reporting options and instructions for each reporting option.
   5. A description of administration, civil, and professional associations complaint procedures.
   6. A description of support services available.
      
2. Specifies that the brochure shall be provided to the Medical Board of California (MBC), the Board of Behavioral Sciences (BBS), and affiliated health boards. (BPC § 337(c))
3. Requires a psychotherapist or employer of a psychotherapist to provide the brochure to a patient has alleged sexual intercourse or alleged sexual contact with a previous psychotherapist during the course of a prior treatment. (BPC 728(a))
   
4. Defines the following terms for purposes of the brochure:
   1. “Psychologist” is a physician and surgeon specializing in the practice of psychotherapy, a psychologist, a clinical social worker, a marriage and family therapists, a licensed professional clinical counselor, a psychological assistant, a marriage and family therapist registered intern or trainee, and intern or clinical counselor trainee, or an associated clinical social worker. (BPC § 728(c)(1))
   2. “Sexual contact” means touching an intimate part of another person.
      (BPC § 728(c)(2)
   3. “The course of prior treatment” means the period of time during which a patient first commences treatment for services that a psychotherapist is authorizes or represents to be authorized to provide. (BPC § 728(c)(4))
   4. “Touching” means physical contact with another person, whether accomplished directly, or through the clothing of the perpetrator or victim. (Penal Code (PEN) § 243.4(e)(2))
   5. “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (PEN § 243.4(g))

This bill:

1. Defines “sexual behavior” as inappropriate contact or communication of a sexual nature and clarifies that “sexual behavior” does not include the provision of appropriate therapeutic intervention relating to sexual issues.
2. Requires the BSS, the Board of Psychology (BOP), the MBC, and the Osteopathic Medical Board of California to develop and prepare an informational brochure for victims of psychotherapist-client sexual behavior and sexual contact and their advocates and provide the brochure to each individual contacting the boards regarding a complaint involving a psychotherapist-client sexual behavior and sexual contact.
3. Removes the requirements that the informational brochure:
   1. Is produced in consultation with the Sexual Assault Program of the Office of Criminal Justice Planning, which was abolished in 2005, and the office of the AG.
   2. Include a description of common histories of victims and their families and a description of civil and professional association’s complaint procedures.
4. Adds the requirements that the brochure include information that other civil and criminal remedies may also be available to victims and that the brochure be made available on the Internet Web sites of each specified board.
5. Updates the definition of “psychotherapist” for purposes of the brochure to remove the outdated license classifications under the BBS of marriage and family therapist registered interns and an intern clinical counselors and include registered psychologists, trainees under the supervision of a licensed psychologist, associate marriage and family therapists, licensed educational psychologists, and associate professional clinical counselors.
6. Incorporates double-jointing amendments to BPC Section 728 proposed by AB 93 (Medina).

Background

Pursuant to existing law, DCA produces and distributes a brochure entitled Professional Therapy Never Includes Sex. Law requires DCA to provide the brochure to victims of psychotherapist-patient “sexual contact”. According to the Board of Psychology, the current narrow definitions of sexual contact “overlook currently-recognized forms of sexual exploitation and ignore behavior facilitated by modern modes of communication and sexually exploitative grooming behaviors that do not reach the level of sexual contact as currently defined in the Business and Professions Code. Examples of sexually exploitative behaviors that the Board has seen in disciplinary cases that do not reach the level of sexual contact include kissing a client, touching or exposing oneself inappropriately, sending flirtatious, sexually suggestive or sexually explicit texts, messages or emails to a client, sending clients photos that include nudity, genitals, or sexually suggestive poses, and buying romantic gifts for a patient.” At the Board of Psychology's February 16, 2018 board meeting, the Board voted to approve updates and other changes to modernize the brochure that were produced and updated by the Board of Psychology, the Board of Behavioral Sciences, the Medical Board of California, and the Osteopathic Medical Board of California

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/7/18)

American Association for Marriage and Family Therapy, California Division

Board of Behavioral Sciences

California Access Coalition

California Board of Psychology

Depression and Bipolar Support Alliance

Medical Board of California

Osteopathic Medical Board of California

OPPOSITION: (Verified 8/7/18)

None received

ARGUMENTS IN SUPPORT: The California Board of Psychology writes that “this bill would update and modernize statutory provisions relating to the Department of Consumer Affairs (DCA) information brochure for victims of psychotherapist patient sexual impropriety by removing obsolete language, including other recognized forms of sexual exploitation, behavior facilitated by modern modes of communication, and more clearly articulating to consumers the most effective course of action when reporting these types of allegations. This bill would also add a new threshold for when a psychotherapist is legally required to provide the brochure to a client.”

The Osteopathic Medical Board of California writes that “this brochure will be an excellent added tool for education consumers of their rights and help protect consumers from potential sexual behavior and/or sexual contact by their psychotherapists.” The Board of Behavioral Sciences also writes that “these updates are important to ensure that information presented is clear to consumers, and to keep current with new issues that have arisen due to advances in technology.” The Medical Board of California further states that “this bill would promote the Board’s mission of consumer protection and the Board is pleased to support this important bill.”

The American Association for Marriage and Family Therapy, California Division, writes that “the abuse of power that occurs when a therapist enters into a sexual relationship with a client or a former client is unethical and can be greatly damaging to that client…Your bill would inform consumers of their rights when therapists have behaved inappropriately, and would update the Professional therapy Never Includes Sex brochure to more clearly include sexual activity, not just sexual intercourse.”

The California Access Coalition and Depression and Bipolar Support Alliance state that “it is very important to ensure protections or patients seeing providers of mental health care, not just within the narrow classification of psychotherapy. We support providing these patient importation and thus protection.”

ASSEMBLY FLOOR: 73-0, 5/17/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Cristina Garcia, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/15/18 14:32:36

**** END ****

 THIRD READING  

Bill No: AB 2968

Author:

:

Vote:

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 9-0, 6/25/18

AYES: Hill, Fuller, Allen, Dodd, Galgiani, Glazer, Hernandez, Pan, Wilk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 73-0, 5/17/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill updates requirements for a Department of Consumer Affairs (DCA) information brochure for victims of psychotherapist-patient sexual contact and advocates for those victims, as specified.

ANALYSIS:

Existing law:

1. Requires DCA to prepare and disseminate, in consultation with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General (AG), an informational brochure for victims of psychotherapist-patient sexual contact and advocates for those victims that includes: (BPC) § 337(a) and (b))
   
   1. A legal and information definition of psychotherapist-patient sexual contact.
   2. A description of common personal reactions and histories of victims and their families.
   3. A patient’s bill of rights.
   4. Reporting options and instructions for each reporting option.
   5. A description of administration, civil, and professional associations complaint procedures.
   6. A description of support services available.
      
2. Specifies that the brochure shall be provided to the Medical Board of California (MBC), the Board of Behavioral Sciences (BBS), and affiliated health boards. (BPC § 337(c))
3. Requires a psychotherapist or employer of a psychotherapist to provide the brochure to a patient has alleged sexual intercourse or alleged sexual contact with a previous psychotherapist during the course of a prior treatment. (BPC 728(a))
   
4. Defines the following terms for purposes of the brochure:
   1. “Psychologist” is a physician and surgeon specializing in the practice of psychotherapy, a psychologist, a clinical social worker, a marriage and family therapists, a licensed professional clinical counselor, a psychological assistant, a marriage and family therapist registered intern or trainee, and intern or clinical counselor trainee, or an associated clinical social worker. (BPC § 728(c)(1))
   2. “Sexual contact” means touching an intimate part of another person.
      (BPC § 728(c)(2)
   3. “The course of prior treatment” means the period of time during which a patient first commences treatment for services that a psychotherapist is authorizes or represents to be authorized to provide. (BPC § 728(c)(4))
   4. “Touching” means physical contact with another person, whether accomplished directly, or through the clothing of the perpetrator or victim. (Penal Code (PEN) § 243.4(e)(2))
   5. “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (PEN § 243.4(g))

This bill:

1. Defines “sexual behavior” as inappropriate contact or communication of a sexual nature and clarifies that “sexual behavior” does not include the provision of appropriate therapeutic intervention relating to sexual issues.
2. Requires DCA to prepare and disseminate an informational brochure for victims of psychotherapist-client sexual behavior, in addition to sexual contact and their advocates and makes conforming changes.
3. Removes the requirement that DCA consult with the Sexual Assault Program of the Office of Criminal Justice Planning, which was abolished in 2005, and the office of the AG.
4. Removes the requirement that the brochure include a description of common histories of victims and their families and a description of civil and professional association’s complaint procedures.
5. Specifies that DCA shall provide the brochure to the Osteopathic Medical Board of California and Board of Psychology (BOP), in addition to the MBC and the BSS.
6. Updates the definition of “psychotherapist” for purposes of the brochure to remove the outdated license classifications under the BBS of marriage and family therapist registered interns and an intern clinical counselors and include registered psychologists, trainees under the supervision of a licensed psychologist, associate marriage and family therapists, licensed educational psychologists, and associate professional clinical counselors.

Background

Pursuant to existing law, DCA produces and distributes a brochure entitled Professional Therapy Never Includes Sex. Law requires DCA to provide the brochure to victims of psychotherapist-patient “sexual contact”. According to the Board of Psychology, the current narrow definitions of sexual contact “overlook currently-recognized forms of sexual exploitation and ignore behavior facilitated by modern modes of communication and sexually exploitative grooming behaviors that do not reach the level of sexual contact as currently defined in the Business and Professions Code. Examples of sexually exploitative behaviors that the Board has seen in disciplinary cases that do not reach the level of sexual contact include kissing a client, touching or exposing oneself inappropriately, sending flirtatious, sexually suggestive or sexually explicit texts, messages or emails to a client, sending clients photos that include nudity, genitals, or sexually suggestive poses, and buying romantic gifts for a patient.” At the Board of Psychology's February 16, 2018 board meeting, the Board voted to approve updates and other changes to modernize the brochure that were produced and updated by the Board of Psychology, the Board of Behavioral Sciences, the Medical Board of California, and the Osteopathic Medical Board of California

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/7/18)

American Association for Marriage and Family Therapy, California Division

Board of Behavioral Sciences

California Access Coalition

California Board of Psychology

Depression and Bipolar Support Alliance

Medical Board of California

Osteopathic Medical Board of California

OPPOSITION: (Verified 8/7/18)

None received

ARGUMENTS IN SUPPORT: The Board of Psychology writes that “this bill would update and modernize statutory provisions relating to the Department of Consumer Affairs (DCA) information brochure for victims of psychotherapist patient sexual impropriety by removing obsolete language, including other recognized forms of sexual exploitation, behavior facilitated by modern modes of communication, and more clearly articulating to consumers the most effective course of action when reporting these types of allegations. This bill would also add a new threshold for when a psychotherapist is legally required to provide the brochure to a client.”

The Osteopathic Medical Board of California writes that “this brochure will be an excellent added tool for education consumers of their rights and help protect consumers from potential sexual behavior and/or sexual contact by their psychotherapists.” The Board of Behavioral Sciences also writes that “these updates are important to ensure that information presented is clear to consumers, and to keep current with new issues that have arisen due to advances in technology.” The Medical Board of California further states that “this bill would promote the Board’s mission of consumer protection and the Board is pleased to support this important bill.”

The American Association for Marriage and Family Therapy, California Division, writes that “the abuse of power that occurs when a therapist enters into a sexual relationship with a client or a former client is unethical and can be greatly damaging to that client…Your bill would inform consumers of their rights when therapists have behaved inappropriately, and would update the Professional therapy Never Includes Sex brochure to more clearly include sexual activity, not just sexual intercourse.”

The California Access Coalition and Depression and Bipolar Support Alliance state that “it is very important to ensure protections or patients seeing providers of mental health care, not just within the narrow classification of psychotherapy. We support providing these patient importation and thus protection.”

ASSEMBLY FLOOR: 73-0, 5/17/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Cristina Garcia, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/8/18 15:48:49

**** END ****

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Jerry Hill, Chair

2017 - 2018 Regular

Bill No: Hearing Date: June 25, 2018

Subject:

SUMMARY:

Updates requirements for a Department of Consumer Affairs (DCA) information brochure for victims of psychotherapist-patient sexual contact and advocates for those victims, as specified.

Existing law:

1. Requires DCA to prepare and disseminate, in consultation with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General (AG), an informational brochure for victims of psychotherapist-patient sexual contact and advocates for those victims that includes:

(BPC) § 337(a) and (b))

• 1. A legal and information definition of psychotherapist-patient sexual contact.
  2. A description of common personal reactions and histories of victims and their families.
  3. A patient’s bill of rights.
  4. Reporting options and instructions for each reporting option.
  5. A description of administration, civil, and professional associations complaint procedures.
  6. A description of support services available. (Business and Professions Code.
     

1. Specifies that the brochure shall be provided to the Medical Board of California (MBC), the Board of Behavioral Sciences (BBS), and affiliated health boards.
   (BPC § 337(c))
2. Requires a psychotherapist or employer of a psychotherapist to provide the brochure to a patient has alleged sexual intercourse or alleged sexual contact with a previous psychotherapist during the course of a prior treatment. (BPC 728(a))
   
   
3. Defines the following terms for purposes of the brochure:
   1. “Psychologist” is a physician and surgeon specializing in the practice of psychotherapy, a psychologist, a clinical social worker, a marriage and family therapists, a licensed professional clinical counselor, a psychological assistant, a marriage and family therapist registered intern or trainee, and intern or clinical counselor trainee, or an associated clinical social worker. (BPC § 728(c)(1))
   2. “Sexual contact” means touching an intimate part of another person.
      (BPC § 728(c)(2)
   3. “The course of prior treatment” means the period of time during which a patient first commences treatment for services that a psychotherapist is authorizes or represents to be authorized to provide. (BPC § 728(c)(4))
   4. “Touching” means physical contact with another person, whether accomplished directly, or through the clothing of the perpetrator or victim. (Penal Code (PEN) § 243.4(e)(2))
   5. “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (PEN § 243.4(g))

This bill:

1. Defines “sexual behavior” as inappropriate contact or communication of a sexual nature and clarifies that “sexual behavior” does not include the provision of appropriate therapeutic intervention relating to sexual issues.
2. Requires DCA to prepare and disseminate an informational brochure for victims of psychotherapist-client sexual behavior, in addition to sexual contact and their advocates and makes conforming changes.
3. Removes the requirement that DCA consult with the Sexual Assault Program of the Office of Criminal Justice Planning, which was abolished in 2005, and the office of the AG.
4. Removes the requirement that the brochure include a description of common histories of victims and their families and a description of civil and professional association’s complaint procedures.
5. Specifies that DCA shall provide the brochure to the Osteopathic Medical Board of California and Board of Psychology (BOP), in addition to the MBC and the BSS.
6. Updates the definition of “psychotherapist” for purposes of the brochure to remove the outdated license classifications under the BBS of marriage and family therapist registered interns and an intern clinical counselors and include registered psychologists, trainees under the supervision of a licensed psychologist, associate marriage and family therapists, licensed educational psychologists, and associate professional clinical counselors.

FISCAL EFFECT:

This bill was keyed fiscal by Legislative Counsel. According to the Assembly Appropriations Committee Analysis dated May 9, 2018, costs of this bill to the Department of Consumer Affairs are expected to be minor and absorbable.

COMMENTS:

1. Purpose. The Author is the sponsor of this bill. According to the Author, “current law requires the DCA to prepare and disseminate an informational brochure for victims of psychotherapist-patient sexual impropriety…[and] requires psychotherapists to provide this informational brochure to clients if they become aware that the client alleges having had sexual intercourse or sexual contact with a previous psychotherapist during the course of treatment.” The Author states that these sections “have outdated language and are missing currently recognized forms of sexual exploitation that ignore modern modes of communication and sexually exploitative behaviors which do not reach the level of sexual contact as defined in the Business and Professions Code. AB 2968 updates and modernizes statutory provisions by removing obsolete language and adding currently recognized forms of sexual exploitation and modern modes of communication. It more clearly articulates to consumers the most effective course of action when reporting these types of allegations.”
2. Background. Pursuant to existing law, DCA produces and distributes a brochure entitled Professional Therapy Never Includes Sex. Law requires DCA to provide the brochure to victims does psychotherapist-patient “sexual contact”. According to the Board of Psychology, the current narrow definitions of sexual contact “overlook currently-recognized forms of sexual exploitation and ignore behavior facilitated by modern modes of communication and sexually exploitative grooming behaviors that do not reach the level of sexual contact as currently defined in the Business and Professions Code. Examples of sexually exploitative behaviors that the Board has seen in disciplinary cases that do not reach the level of sexual contact include kissing a client, touching or exposing oneself inappropriately, sending flirtatious, sexually suggestive or sexually explicit texts, messages or emails to a client, sending clients photos that include nudity, genitals, or sexually suggestive poses, and buying romantic gifts for a patient.” At the Board of Psychology's February 16, 2018 board meeting, the Board voted to approve updates and other changes to modernize the brochure that were produced and updated by the Board of Psychology, the Board of Behavioral Sciences, the Medical Board of California, and the Osteopathic Medical Board of California
3. Previous Related Legislation. AB 1317 (Frazier, Chapter 352, Statutes of 2013) implemented the Governor's Reorganization Plan No. 2, which abolished the Office of Criminal Justice Planning and transferred the duties and obligations to the Office of Emergency Services, with the exception of the duties relating to the adult and juvenile criminal justice system, which were assumed by the Board of State and Community Corrections.
4. Arguments in Support. The Board of Psychology writes that “this bill would update and modernize statutory provisions relating to the Department of Consumer Affairs (DCA) information brochure for victims of psychotherapist patient sexual impropriety by removing obsolete language, including other recognized forms of sexual exploitation, behavior facilitated by modern modes of communication, and more clearly articulating to consumers the most effective course of action when reporting these types of allegations. This bill would also add a new threshold for when a psychotherapist is legally required to provide the brochure to a client.”

The Osteopathic Medical Board of California writes that “this brochure will be an excellent added tool for education consumers of their rights and help protect consumers from potential sexual behavior and/or sexual contact by their psychotherapists.” The Board of Behavioral Sciences also writes that “these updates are important to ensure that information presented is clear to consumers, and to keep current with new issues that have arisen due to advances in technology.” The Medical Board of California further states that “this bill would promote the Board’s mission of consumer protection and the Board is pleased to support this important bill.”

The American Association for Marriage and Family Therapy, California Division, writes that “the abuse of power that occurs when a therapist enters into a sexual relationship with a client or a former client is unethical and can be greatly damaging to that client…Your bill would inform consumers of their rights when therapists have behaved inappropriately, and would update the Professional therapy Never Includes Sex brochure to more clearly include sexual activity, not just sexual intercourse.”

The California Access Coalition and Depression and Bipolar Support Alliance state that “it is very important to ensure protections or patients seeing providers of mental health care, not just within the narrow classification of psychotherapy. We support providing these patient importation and thus protection.”

SUPPORT AND OPPOSITION:

Support:

American Association for Marriage and Family Therapy, California Division

Board of Behavioral Sciences

California Access Coalition

California Board of Psychology

Depression and Bipolar Support Alliance

Medical Board of California

Osteopathic Medical Board of California

Opposition:

None on file as of June 20, 2018.

-- END --

Date of Hearing: May 9, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2968

Author:(Levine) – As Amended Ver:March 23, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill updates and makes minor changes to requirements related to educational material explaining to victims of psychotherapist-client sexual behavior or sexual contact the victims’ rights and available remedies.

FISCAL EFFECT:

Costs to the Department of Consumer Affairs are expected to be minor and absorbable (various fee-supported special funds).

COMMENTS:

Purpose and Background. This bill is sponsored by the author, who is working closely with the California Board of Psychology. According to the author, this bill updates and modernizes statutory provisions by removing obsolete language and adding currently recognized forms of sexual exploitation and modern modes of communication. Pursuant to existing law, the DCA produces and distributes a brochure entitled "Professional Therapy Never Includes Sex." This bill broadens the required information to include a discussion of "sexual behavior," defined as inappropriate contact or communication of a sexual nature.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Evan Low, Chair

ABPCA Bill Id:AB 2968

Author:(Levine) – As Amended Ver:March 23, 2018

SUBJECT: Psychotherapist-client relationship: victims of sexual behavior and sexual contact: informational brochure.

SUMMARY: Updates requirements for psychotherapists and the Department of Consumer Affairs (DCA) relating to outreach on psychotherapist-patient sexual contact, as specified.

EXISTING LAW:

1. Establishes the DCA within the Business, Consumer Services, and Housing Agency, specifies that the DCA is under the control of the Director of Consumer Affairs, and establishes within the DCA licensing entities, including boards and bureaus, to ensure that private businesses and professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California. (Business and Professions Code (BPC) §§ 100-144.5)
2. Promotes and protects the interests of consumers under the Consumer Affairs Act, requires the Director of Consumer Affairs to administer and implement the Act, and specifies the powers and duties of the director. (BPC §§ 300-337)
3. Requires the DCA to prepare and disseminate an informational brochure for victims of psychotherapist-patient sexual contact and the victims’ advocates and requires the DCA to develop the brochure in consultation with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General. (BPC § 337(a))
4. Requires the psychotherapist-patient sexual contact brochure to include, at a minimum, the following:
   1. A legal and an informal definition of psychotherapist-patient sexual contact. (BPC § 337(b)(1))
   2. A brief description of common personal reactions and histories of victims and victim’s families. (BPC § 337(b)(2))
   3. A patient’s bill of rights. (BPC § 337(b)(3))
   4. Options for reporting psychotherapist-patient sexual relations and instructions for each reporting option. (BPC § 337(b)(4))
   5. A full description of administrative, civil, and professional associations complaint procedures. (BPC § 337(b)(5))
   6. A description of services available for support of victims. (BPC § 337(b)(6))
5. Requires the brochure to be provided to each individual contacting the Medical Board of California, affiliated health boards, or the Board of Behavioral Sciences regarding a complaint involving psychotherapist-patient sexual relations. (BPC § 337(c))
6. Regulates various health care practitioners under their respective practice acts, which are administered and implemented by the DCA healing arts licensing entities or other entities established or named under the practice acts, and specifies generally applicable requirements and penalties. (BPC §§ 500-4999.129)
7. Requires a psychotherapist or employer of a psychotherapist, if the psychotherapist or employer of a psychotherapist becomes aware through a patient that the patient had alleged sexual intercourse or alleged sexual contact with a previous psychotherapist during a prior treatment, to provide to and discuss with the patient the DCA’s psychotherapist-patient sexual contact brochure and makes it unprofessional conduct to fail to do so. (BPC § 728)
8. Defines, for purposes of the requirement to provide and discuss the DCA psychotherapist-patient sexual contact brochure, the following:
   1. “Psychotherapist” means a physician and surgeon specializing in the practice of psychiatry or practicing psychotherapy, a psychologist, a clinical social worker, a marriage and family therapist, a licensed professional clinical counselor, a psychological assistant, a marriage and family therapist registered intern or trainee, an intern or clinical counselor trainee, as specified in Chapter 16 (commencing with Section 4999.10), or an associate clinical social worker. (BPC § 728(c)(1))
   2. “Sexual contact” means the touching of an intimate part of another person. (BPC § 728(c)(2))
   3. “Intimate part” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim. (BPC § 728(c)(3))
   4. “Touching” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim. (BPC § 728(c)(3))
   5. “The course of a prior treatment” means the period of time during which a patient first commences treatment for services that a psychotherapist is authorized to provide under his or her scope of practice, or that the psychotherapist represents to the patient as being within his or her scope of practice, until the psychotherapist-patient relationship is terminated. (BPC § 728(c)(4))

THIS BILL:

1. Defines "sexual behavior" as inappropriate contact or communication of a sexual nature.
2. Excludes from the definition of "sexual behavior" the provision of appropriate therapeutic interventions relating to sexual issues.
3. Requires the DCA to include “sexual behavior” in its psychotherapist-patient sexual contact brochure.
4. Adds "sexual behavior" to the type of allegation that a psychotherapist or employer of a psychotherapist may become aware of from a patient that would trigger the requirement to provide to and discuss with the patient the DCA psychotherapist sexual behavior and sexual contact brochure.
5. Adds to the definition of "psychotherapist" previously excluded or subsequently regulated mental health practitioners, including:
   1. A registered psychologist.
   2. A trainee under the supervision of a licensed psychologist.
   3. A licensed educational psychologist.
   4. An associate clinical social worker.
   5. An associate professional clinical counselor.
6. Replaces the term "patient" with "client" in the requirements relating to the DCA psychotherapist-client sexual contact brochure.
7. Requires the DCA to provide the psychotherapist-client sexual behavior and sexual contact brochure to individuals contacting the Osteopathic Medical Board and the Board of Psychology, in addition to the Medical Board of California and the Board of Behavioral Sciences, instead of "affiliated health boards."
8. Deletes the requirement that the DCA develop the psychotherapist sexual behavior and sexual contact brochure with members of the Sexual Assault Program of the Office of Criminal Justice Planning and the office of the Attorney General.
9. Makes other technical, updating, and clarifying changes.

FISCAL EFFECT: Unknown. This bill is keyed fiscal by Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the author, who is working closely with the California Board of Psychology. According to the author, "[this bill] updates and modernizes statutory provisions by removing obsolete language and adding currently recognized forms of sexual exploitation and modern modes of communication. It more clearly articulates to consumers the most effective course of action when reporting these types of allegations."

Background. Pursuant to existing law, the DCA produces and distributes a brochure entitled Professional Therapy Never Includes Sex. At the Board of Psychology's February 16, 2018, board meeting, the Board voted to approve updates and other changes to modernize the brochure that were produced and updated by the Board of Psychology, the Board of Behavioral Sciences, the Medical Board of California, and the Osteopathic Medical Board of California.

According to the Board of Psychology, the statutory language narrowly defines "when a patient is required to be provided the informational brochure by a therapist, and narrowly defines the inappropriate behavior included in the brochure. These narrow definitions overlook currently-recognized forms of sexual exploitation and ignore behavior facilitated by modern modes of communication and sexually exploitative grooming behaviors that do not reach the level of sexual contact as currently defined in the Business and Professions Code."

Psychotherapy. According to the federal National Institute of Mental Health, "Psychotherapy… is a term for a variety of treatment techniques that aim to help a person identify and change troubling emotions, thoughts, and behavior. Most psychotherapy takes place with a licensed and trained mental health care professional and a patient meeting one on one or with other patients in a group setting."

The Board of Psychology is one of the licensing entities under the DCA that licenses and regulates mental health providers that provide psychotherapy. Specifically, the Board of Psychology implements, administers, and enforces the Psychology Licensing Law, which establishes the state licensing scheme for licensed psychologists. According to the DCA's 2017 Annual Report, the Board of Psychology reported overseeing a total of 22,449 licensees, including 20,726 licensed psychologists, 1,494 psychological assistants, and 229 registered psychologists.

Prior Related Legislation. AB 1317 (Frazier), Chapter 352, Statutes of 2013 implemented the Governor's Reorganization Plan No. 2, which abolished the Office of Criminal Justice Planning and transferred the duties and obligations to the Office of Emergency Services, with the exception of the duties relating to the adult and juvenile criminal justice system, which were assumed by the Board of State and Community Corrections.

REGISTERED SUPPORT:

American Association for Marriage and Family Therapists, California Division
Board of Psychology
Osteopathic Medical Board

REGISTERED OPPOSITION:

None on file

Analysis Prepared by: Vincent Chee / B. & P. / (916) 319-3301