History of the Mental Health Counseling Scope of Practice

In 2002, New York State enacted a licensing law for licensed mental health counselors, along with three other mental health professions (marriage and family therapists, creative arts therapists, and psychoanalysts), as well as new scopes of practice for social workers and psychologists.

The new mental health counseling license law provided for a scope of practice for mental health counselors in New York. Licensed mental health counselors are those who have a master's or higher degree in counseling, or its equivalent, with required coursework in mental health counseling theory and practice, assessment, psychopathology, ethical practice and a supervised internship, has passed a State-approved exam, and has completed at least 3,000 hours of post-degree clinical experience under supervision of a qualified, licensed mental health professional. Some licensed mental health counselors were licensed under special provisions established in law for those already practicing when the new law came into effect.

The New York State Mental Health Counseling Scope of Practice

Article 163 of the Education Law, Section 8402(1) sets forth the scope of practice of licensed mental health counseling as,

1. Definition of the practice of mental health counseling. The practice of the profession of mental health counseling is defined as:
   1. the evaluation, assessment, amelioration, treatment, modification, or adjustment to a disability, problem, or disorder of behavior, character, development, emotion, personality or relationships by the use of verbal or behavioral methods with individuals, couples, families or groups in private practice, group, or organized settings; and
   2. the use of assessment instruments and mental health counseling and psychotherapy to identify, evaluate and treat dysfunctions and disorders for purposes of providing appropriate mental health counseling services.

Establishment of Diagnostic Privilege for Licensed Mental Health Counselors

The New York Mental Health Counselors Association began advocating for diagnostic authority for licensed mental health counselors in 2010. At that time, the goal was to request that language be included in NYS regulations to give LMHCs diagnostic authority. Unfortunately, those attempts proved to be unsuccessful and steps were taken to begin drafting legislation to change LMHCs scope of practice in the law.

Over the years the opposition from social workers and other professions had been fierce and, to some degree, effective. NYMHCA saw evidence that NY's legislature will often do nothing when there is fierce opposition to a bill.

In 2020, NYMHCA approached NY Assembly member Harry B. Bronson (District 138) and NY Senator Samra Brouk (District 55) to sponsor NYMHCA's legislation to create a diagnostic authority for LMHCs. At the request of Assembly member Bronson and Senator Brouk, NYMHCA drafted a new bill that included marriage and family therapists and psychoanalysts.

Over time NYMHCA and the sponsors worked to engage the other mental health professions that were in opposition to LMHCs having diagnostic authority. To address the opposition, NYMHCA drafted the new version of the bill with educational and experiential requirements that mirrored those of clinical social workers.

There were several versions of the bill that NYMHCA drafted that would have been better for our profession but met with opposition from social workers, psychologists, psychiatrists, the Chair of the Assembly Higher Education Committee Debra Glick, and by the NYS Education Department. Over many weeks in the spring of 2022, different versions of the bill were introduced until Assembly member Glick and the NYS Education Department took over the process and NYMHCA lost the ability to participate in the bill's drafting.

Why was diagnostic authority so important?

A major focus in the diagnostic authority bill was the upcoming sunsetting of an exemption enjoyed by state agencies that allowed them to hire non-licensed people to fill positions that would have otherwise needed to be filled by licensed professionals. This exemption was scheduled to expire on June 24, 2022. The exemption has been extended several times over 20 years following the establishment of the mental health professional licenses and the NYS legislature was determined to cease any future extensions.

If the diagnosis privilege bill had not been signed into law by June 24, 2022, hundreds of LMHCs could have lost their jobs in state agencies and hundreds of students would have been denied internships in those agencies. The end of this exemption was the primary reason there was tremendous support for our bill by state-run and state-funded agencies.

In June 2022, a bill was passed and signed into law that provided pathways to diagnostic privilege for mental health counselors and other mental health professions. An intentional decision was made by the final drafters, the NYS Assembly Higher Education Committee Chairperson, Debra Glick, and the NYS Education Department, to avoid the use of the word "authority." Rather, the two entities used the word "privilege" and chose to make it an optional add-on to an already existing license, rather than change the scope of practice for licensed mental health counselors.

It was clear that NYMHCA was left with no choice but to support the bill as it was to protect our professionals and future professionals and finally gain diagnostic privilege.

While the diagnosis privilege law provided a pathway for students graduating from counselor education programs after 2025 to be automatically eligible for the privilege, there were parts of the law that were problematic and not what NYMHCA wanted.

NYMHCA has remained committed to advocating for improvements to the law and active in advocating for fair regulations. As specific regulations are drafted by the NYS Education Department, NYMHCA will have opportunities to influence the regulations in favor of those in private practice to obtain the privilege or maintain their practices as they are.

The diagnostic privilege is NOT required and LMHCs who decide they do not want to take the steps to obtain it do not need to. The law does not require LMHCs to obtain diagnostic privilege. Licensed mental health counselors are legally authorized to continue practicing mental health counseling without diagnostic privilege. A major difference is that LMHCs without diagnostic privilege cannot render diagnoses. Rather, they can still provide assessments and evaluations using the diagnostic codes allowed by the laws which established the licensed mental health counseling profession.

NYMHCA’s tenacity to get a diagnostic privilege bill passed has since moved to working to advocate for provisions in specific regulations that will make it easier for private practitioners to obtain diagnostic privilege. Further, NYMHCA is prepared to draft new legislation to revise the law to allow more LMHCs to gain the diagnostic privilege.