1. Limited Permits for Licensure and Limited Diagnostic Permits for Mental Health Counseling, Marriage and Family Therapy and Psychoanalysis

The proposed amendments to sections 79-9.4, 79-10.4 and 79-12.4 of the Commissioner’s regulations establish the requirements for a limited permit for licensure and a limited diagnostic permit in mental health counseling, marriage and family therapy and psychoanalysis, respectively. The fee for each limited permit or limited diagnostic permit is $70.

Subdivision (a) of sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations allow supervised practice in an authorized setting by an applicant for licensure as a mental health counselor, marriage and family therapist, or psychoanalyst, while meeting the experience and/or examination requirements for licensure. Qualified supervisors and authorized settings are defined in sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations.

Subdivision (b) of sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations sets out the requirements for a limited diagnostic permit for a mental health counselor, marriage and family therapist or psychoanalyst as follows:

(1) the applicant seeking to complete the clinical education and/or supervised experience for the privilege authorized by section 8401-a of the Education Law must:

(i) submit the application for the diagnostic permit and the $175 application fee;

(ii) meet all requirement prescribed in section 8401-a of the education Law, including license and registration in New York as a mental health counselor, marriage and family therapist or psychoanalyst; and

(iii) be under the supervision of a supervisor acceptable to the Department in accordance with sections 79-9.6, 79-10.6 or 79-12.6 of the Commissioner’s regulations.

(2) the permit shall be issued for specific employment settings, acceptable to the Department in accordance with sections 79-9.6, 79-10.6 or 79-12.6 of the Commissioner’s regulations and under a qualified supervisor, acceptable to the Department.

(i) the supervisor shall be responsible for appropriate oversight of all services provided by a limited diagnostic permit holder under his or her general supervision.

(ii) no supervisor shall supervise more than five limited permit holders of any type at one time.

(3) the limited diagnostic permit shall be valid for not more than 24 months, provided it may be extended for no more than two additional 12-month periods at the discretion of the Department, if the Department determines the limited permit holder is making progress toward the education and/or experience requirements and submits the permit renewal application and $70 fee. The total time under a diagnostic permit may not exceed 48 months.

2. Diagnostic Privilege for Mental Health Counseling, Marriage and Family Therapy and Psychoanalysis

Sections 79-9.6, 79-10.6 and 79-12.6 of the Commissioner’s regulations are repealed and new sections 79-9.6, 79-10.6 and 79-12.6 are added to establish the requirements to be met by LMHCs, LMFTs or LPs who are completing supervised experience in diagnosis and assessment-based treatment planning under the exemption in Education Law § 8410(11).

Subdivision (a) Sections 79-9.6, 79-10.6 and 79-12.6 of the Commissioner’s regulations defines terms used in the regulations, including (1) diagnosis, (2) development of assessment-based treatment plans, (3) General supervision and (4) face-to-face supervision provided in-person or utilizing technology acceptable to the Department.

Subdivision (b) of 79-9.6, 79-10.6, and 79-12.6 of the Commissioner’s regulations clarifies that a LMHC, LMFT, or LP, licensed and registered in New York, may engage in diagnosis and the development of assessment-based treatment plans in accordance with those sections.

Subdivision (c) of 79-9.6, 79-10.6, and 79-12.6 of the Commissioner’s regulations defines an acceptable setting as described in subdivision (d) of 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations.

Subdivision (d) of 79-9.6, 79-10.6, and 79-12.6 of the Commissioner’s regulations defines supervision of experience under the general supervision of a qualified supervisor, as defined in those subdivisions, which state the following:

(1) The supervisor shall provide an average of one hour per week or two hours every other week of face-to-face individual or group supervision when the supervisor shall:

(i) review the applicant’s diagnosis and treatment of each client under his or her general supervision and

(ii) provide oversight, guidance and direction to the applicant in development skills in diagnosis, psychotherapy and assessment-based treatment planning.

(2) The supervisor shall be authorized to diagnose, provide psychotherapy and assessment-based treatment plans and shall be licensed and registered to practice in New York as a:

(i) licensed clinical social worker under Article 154 or

(ii) psychologist licensed under Article 153 or

(iii) physician licensed under Article 131 and a diplomate in psychiatry of the American Board of Psychiatry and Neurology or

(iv) after June 24, 2022 a licensed mental health counselor with the privilege may supervise an applicant in mental health counseling; a licensed marriage and family therapist with the privilege may supervise an applicant in marriage and family therapy; and a licensed psychoanalyst with the privilege may supervise an applicant in psychoanalysis.

Since publication of a Notice of Emergency Adoption and Proposed Rulemaking in the State Register on July 27, 2022, Department staff discovered that the proposed rule inadvertently listed the incorrect date of June 24, 2022, in three of its provisions, instead of June 24, 2024, the date that the section 8401-a of the Education Law, as added by Chapter 230 of the Laws of 2022, which establishes the requirements for the diagnostic privilege, becomes effective. Consequently, non-substantial revisions were made to sections 79-9.6(d)(2)(iv), 79-10.6(d)(2)(iv) and 79-12.6(d)(2)(iv) of the Commissioner’s regulations to replace the date June 24, 2022 with the date June 24, 2024, since, pursuant to Education Law § 8401-a, licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs) and licensed psychoanalysts (LPs) cannot obtain the diagnostic privilege until on or after that date. Additionally, non-substantial revisions were made to clarify that LMHCs, LMFTs, and LPs can obtain the diagnostic privilege “on or after” June 24, 224, rather than “after” June 24, 2024. Accordingly, on or after June 24, 2024, LMHCs, LMFTs or LPs who hold the diagnostic privilege pursuant to Education Law § 8401-a will be considered, in addition to licensed clinical social workers, psychologists or psychiatrists, acceptable supervisors of clinical experience in diagnosis and assessment-based treatment planning for LMHCs, LMFTs and LPs. Therefore, these non-substantial changes were made to conform the proposed regulation to the statute.

The above non-substantial revision does not require any changes to the previously published Regulatory Impact Statement.

The purpose of the proposed rule is to implement Chapter 230 of the Laws of 2022 (Chapter 230), which, among other things, allows licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs) and licensed psychoanalysts (LPs) to earn a diagnostic privilege by meeting specified requirements. These professions did not previously have the authority to diagnose. Except for two provisions that take effect June 30, 2024,¹ Chapter 230 is immediately effective. Permitting LMHCs, LMFTs and LPs to obtain a diagnostic privilege will increase the number of licensed mental health professionals authorized to diagnose, which will address critical workforce shortages and ensure that programs and services providing addiction and mental health services to children, adults and communities have the appropriate staff to provide comprehensive services, including diagnosis.

The proposed amendments to sections 79-9.4, 79-10.4 and 79-12.4 of the Commissioner’s regulations implement the provisions of Chapter 230 by:

• establishing the requirements for the Department’s issuance of limited diagnostic permits to applicants for the diagnostic privilege in mental health counseling, marriage and family therapy and psychoanalysis;

• allowing applicants, with limited diagnostic permits, to practice under a qualified supervisor in an authorized setting, while they gain the required experience for the diagnostic privilege;

• authorizing applicants with limited diagnostic permits, who are licensed on or after June 24, 2024, to engage in supervised practice while meeting the additional requirements for the diagnostic privilege; and

• changing the titles of sections 79-9.4, 79-10.4 and 79-12.4 from limited permits to limited permits for licensure and limited diagnostic permits.

Additionally, the proposed amendment implements Chapter 230 by repealing current sections 79-9.6, 79-10.6 and 79-12.6 of the Commissioner’s regulations and adding new sections 79-9.6, 79-10.6 and 79-12.6 which:

• establish the requirements to be met by LMHCs, LMFTs or LPs who are completing supervised experience in diagnosis and assessment-based treatment planning under the exemption in Education Law § 8410(11);

• define the terms “diagnosis,” “assessment-based treatment planning” and “general supervision” of the licensee providing those services;

• define an acceptable setting, as defined in sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations, for the practice of mental health counseling, marriage and family therapy and psychoanalysis, respectively; and

• define acceptable supervisors of clinical experience in diagnosis and assessment-based treatment planning for LMHCs, LMFTs and LPs, such as licensed clinical social workers, psychologists or psychiatrists or, after June 24, 2024, LMHCs, LMFTs or LPs who hold the diagnostic privilege pursuant to Education Law § 8401-a.

The proposed rule does not impose any new reporting, recordkeeping, or other compliance requirements on local governments or have any adverse economic impact on small businesses or local governments. Because it is evident from the nature of the proposed amendment that it will not adversely affect small businesses or local governments, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and local governments is not required, and one has not been prepared.

¹Sections 2 and 3 of Chapter 230 become effective June 24, 2024. These sections will be addressed in subsequent proposed amendments to the Commissioner’s regulations.

The purpose of the proposed rule is to implement Chapter 230 of the Laws of 2022 (Chapter 230), which, among other things, allows licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs) and licensed psychoanalysts (LPs) to earn a diagnostic privilege by meeting specified requirements. These professions did not previously have the authority to diagnose. Except for two provisions that take effect June 30, 2024,¹ Chapter 230 is immediately effective. Permitting LMHCs, LMFTs and LPs to obtain a diagnostic privilege will increase the number of licensed mental health professionals authorized to diagnose, which will address critical workforce shortages and ensure that programs and services providing addiction and mental health services to children, adults and communities have the appropriate staff to provide comprehensive services, including diagnosis.

The proposed amendments to sections 79-9.4, 79-10.4 and 79-12.4 of the Commissioner’s regulations implement the provisions of Chapter 230 by:

• establishing the requirements for the Department’s issuance of limited diagnostic permits to applicants for the diagnostic privilege in mental health counseling, marriage and family therapy and psychoanalysis;

• allowing applicants, with limited diagnostic permits, to practice under a qualified supervisor in an authorized setting, while they gain the required experience for the diagnostic privilege;

• authorizing applicants with limited diagnostic permits, who are licensed on or after June 24, 2024, to engage in supervised practice while meeting the additional requirements for the diagnostic privilege; and

• changing the titles of sections 79-9.4, 79-10.4 and 79-12.4 from limited permits to limited permits for licensure and limited diagnostic permits.

Additionally, the proposed amendment implements Chapter 230 by repealing current sections 79-9.6, 79-10.6 and 79-12.6 of the Commissioner’s regulations and adding new sections 79-9.6, 79-10.6 and 79-12.6 which:

• establish the requirements to be met by LMHCs, LMFTs or LPs who are completing supervised experience in diagnosis and assessment-based treatment planning under the exemption in Education Law § 8410(11);

• define the terms “diagnosis,” “assessment-based treatment planning” and “general supervision” of the licensee providing those services;

• define an acceptable setting, as defined in sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations, for the practice of mental health counseling, marriage and family therapy and psychoanalysis, respectively; and

• define acceptable supervisors of clinical experience in diagnosis and assessment-based treatment planning for LMHCs, LMFTs and LPs, such as licensed clinical social workers, psychologists or psychiatrists or, after June 24, 2024, LMHCs, LMFTs or LPs who hold the diagnostic privilege pursuant to Education Law § 8401-a.

Chapter 230 does not provide any exceptions from the statutory requirements for obtaining the diagnostic privilege for LMHCs, LMFTs or LPs in rural areas. Thus, the proposed amendment does not adversely impact entities in rural areas of New York State because all New York State LMHCs, LMFTs or LPs must comply with the same requirements. Accordingly, no further steps were needed to ascertain the impact of the proposed amendment on entities in rural areas and none were taken. Thus, a rural flexibility analysis is not required, and one has not been prepared.

¹Sections 2 and 3 of Chapter 230 become effective June 24, 2024. These sections will be addressed in subsequent proposed amendments to the Commissioner’s regulations.

It is not anticipated that the propose rule will impact jobs or employment opportunities. This is because the proposed amendment implements Chapter 230 of the Laws of 2022 (Chapter 230), which allows licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs) and licensed psychoanalysts (LPs) to earn a diagnostic privilege by meeting specified requirements. These professions did not previously have the authority to diagnose. Except for two provisions that take effect June 30, 2024,¹ Chapter 230 is immediately effective.

This Chapter amends section 8401 of the Education Law by adding a new subdivision (3), which defines the term “diagnosis” and a new subdivision (4), which defines the term “development of assessment-assessment based treatment plans.” Chapter 230 also adds a new section 8401-a to the Education Law which, effective June 24, 2024, establishes a process and requirements for eligible LMHCs, LMFTs and LPs, to apply to the Department for the issuance of a privilege to diagnose and to develop assessment-based treatment plans.

Additionally, Chapter 230 amends:

• Subdivision (1) of Education Law § 8407 (boundaries of professional competency), effective June 24, 2024, to recognize licensed professionals who have obtained the diagnostic privilege from the Department.

• Education Law § 8409 to authorize the Department to issue limited permits to applicants who are gaining experience for the diagnostic privilege; and

• Education Law § 8410 to authorize LMHCs, LMFTs and LPs to diagnose and develop assessment-based treatment plans through June 24, 2025, in certain settings approved by the Department.

The proposed amendments to sections 79-9.4, 79-10.4 and 79-12.4 of the Commissioner’s regulations implement the provisions of Chapter 230 by:

• establishing the requirements for the Department’s issuance of limited diagnostic permits to applicants for the diagnostic privilege in mental health counseling, marriage and family therapy and psychoanalysis;

• allowing applicants, with limited diagnostic permits, to practice under a qualified supervisor in an authorized setting, while they gain the required experience for the diagnostic privilege;

• authorizing applicants with limited diagnostic permits, who are licensed on or after June 24, 2024, to engage in supervised practice while meeting the additional requirements for the diagnostic privilege; and

• changing the titles of sections 79-9.4, 79-10.4 and 79-12.4 from limited permits to limited permits for licensure and limited diagnostic permits.

Additionally, the proposed amendment implements Chapter 230 by repealing current sections 79-9.6, 79-10.6 and 79-12.6 of the Commissioner’s regulations and adding new sections 79-9.6, 79-10.6 and 79-12.6 which:

• establish the requirements to be met by LMHCs, LMFTs or LPs who are completing supervised experience in diagnosis and assessment-based treatment planning under the exemption in Education Law § 8410(11);

• define the terms “diagnosis,” “assessment-based treatment planning” and “general supervision” of the licensee providing those services;

• define an acceptable setting, as defined in sections 79-9.3, 79-10.3 and 79-12.3 of the Commissioner’s regulations, for the practice of mental health counseling, marriage and family therapy and psychoanalysis, respectively; and

define acceptable supervisors of clinical experience in diagnosis and assessment-based treatment planning for LMHCs, LMFTs and LPs, such as licensed clinical social workers, psychologists or psychiatrists or, after June 24, 2024, LMHCs, LMFTs or LPs who hold the diagnostic privilege pursuant to Therefore, any impact on jobs or employment opportunities created by the proposed amendment is attributable to the statutory requirements, not the proposed amendment, which simply conforms the Commissioner’s regulations to the requirements of the statute.

The proposed amendment will not have a substantial impact on jobs and employment opportunities. However, it is anticipated that it may result in an increase in the numbers of LMHCs, LMFTs and/or LPs in this State. Because it is evident from the nature of the proposed rule will have no impact on jobs or employment opportunities attributable to its adoption or only potentially a positive impact, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one was not prepared.

¹Sections 2 and 3 of Chapter 230 become effective June 24, 2024. These sections will be addressed in subsequent proposed amendments to the Commissioner’s regulations.

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2027, which is no later than the 5th year after the year in which this rule is being adopted.

This assessment summarizes the comments received on the proposed rule, published July 27, 2022. Please refer to the full Assessment of Public Comment (APC) for the Department’s complete assessment of public comment at: http://www.counsel.nysed.gov/rules/full-text-indices.

1. COMMENT: Distinctions should be drawn between the mental health counselor, marriage & family therapist, and psychoanalyst who earn the privilege.

RESPONSE: An individual who earns the privilege will receive a designation on their registration record, which will be included on the Department’s online verification system.

2. COMMENT: Commenters supported the portion of the rule that would not allow a licensed mental health counselor, marriage & family therapist, or psychoanalyst to engage in diagnosis in a practice owned by that licensee.

RESPONSE: Licensees may decide to restrict their practice to the traditional definition in Article 163 or work part-time in an authorized setting to complete the required experience to obtain the privilege.

3: COMMENT: Supervised hours and duration of supervised experience for mental health practitioners should be aligned to the 36 months of supervised experience required for LCSW applicants.

RESPONSE: An amendment to the law would be required to implement a minimum duration.

4. COMMENT: One category of mental health practitioner should be qualified to supervise another category of mental health practitioner in another discipline who seeks the diagnostic privilege.

RESPONSE: Each profession has specific education, experience, and examination requirements therefore, they are not interchangeable in practice nor supervision.

5. COMMENT: Commenters support the definition of face-to-face supervision but expressed concern about the quality of supervision and request guidance regarding the quality of supervision.

RESPONSE: The Department directs the commenter to current practice guidance for supervision of licensed MHPs (www.op.nysed.gov/prof/mhp/mhppg10.htm). The Department will consider additional guidance.

6. COMMENT: Commenter is concerned that “group” supervision for individuals seeking the diagnostic privilege could be interpreted to include large staff meetings and suggested a limit of five participants in a supervisory group.

RESPONSE: The Department will continue to stress this responsibility for supervising applicants for the privilege.

7. COMMENT: Commenters asked if they could apply for and receive the privilege now; suggested grandparenting in existing licensees and awarding current and former permit holders the privilege if the supervisor receives the privilege in 2024 or later; opined that licensed counselors with a doctoral degree from a CACREP accredited institution and those licensed counselors who hold the ACS certification from the CCE would fully qualify for the diagnostic privilege and supervise candidates if they were given a provisional privilege.

RESPONSE: There are no provisions in Education Law § 8401-a that permit the Department to create additional pathways to obtain the privilege or allow the Department to issue privileges until June 24, 2024.

8. COMMENT: A limit of five permit holders per supervisor for the limited diagnostic privilege is restrictive and contrary to the legislative intent of increased access to quality mental health services.

RESPONSE: It is in the public interest to limit the number of supervisees to ensure appropriate diagnosis, treatment, and assessment-based treatment planning for each patient.

9. COMMENT: Commenter asked for clarification between the proposed limited permits for each profession and suggested that the timeframes should be reduced.

RESPONSE: The Department may issue a limited diagnostic permit to a licensee seeking to complete supervised experience for the privilege. This is in addition to the permit available to a graduate completing experience and examination requirements for licensure. The two-year duration of the permits is consistent with Education Law § 8409(2).

10. COMMENT: Commenters questioned the fees required.

RESPONSE: The fees are consistent with Education Law.

11. COMMENT: Commenter suggested adequate guidelines and instructions be put in place.

RESPONSE: The Department is currently developing such guidance.

12. COMMENT: Commenters disagree with the diagnosis privilege requirements for individuals licensed prior to June 2024.

RESPONSE: Education Law § 8401-a(c) establishes the education requirement for the diagnosis privilege, which cannot be changed or eliminated by regulation.

13. COMMENT: Commenters seek amendment to allow an applicant for the privilege to complete the experience in a private practice owned by the licensee.

RESPONSE: This is inconsistent with the law and public protection.

14. COMMENT: Psychoanalysts primarily practice in sole proprietorships and would not have the ability to close down such practices and seek supervised experience in an authorized setting.

RESPONSE: A currently licensed mental health practitioner cannot diagnose or create an assessment-based treatment plan. Since the proprietorship and licensee cannot offer those services, they cannot hire a supervisor to provide services beyond their scope.

15. COMMENT: The clinical education requirements for clinical social work should be replicated in the proposed regulations. Commenters asked what constitutes clinical content and whether an applicant can remedy a deficiency in total coursework or content.

RESPONSE: The proposed regulations implement provisions of the law that took effect immediately; the Department will promulgate regulations to implement the other provisions of the law, which are not yet in effect.

16. COMMENT: Individuals licensed prior to June 2024 should not have to complete additional education to meet the 60-semester hour degree requirement. Commenters encouraged the Department to accept experience in lieu of additional graduate education.

RESPONSE: Education Law § 8401-a (1)(c) requires all applicants to document the completion of a 60-semester hour degree, or the clock hour equivalent in psychoanalysis.

17. COMMENT: Many applicants prior to 2010 were licensed on the basis of a 48-semester hour masters in mental health counseling¹ and will require 12 additional semester hours to meet the education requirement for the privilege. The commenter asked if training in a Regents-chartered psychoanalytic institute would be acceptable for the diagnosis privilege. Commenters inquired as to applicants who do not meet the education requirements.

RESPONSE: The law requires an applicant to have a 60-semester hour degree for licensure and the privilege. In the case of a deficiency, Education Law § 8401-a(c) allows an applicant to complete additional graduate education during or after receipt of the qualifying degree.

18. COMMENT: Commenter represented that New York programs are planning to offer an advanced certificate in psychoanalysis that is equivalent to a 60-semester hour master’s degree. They asked if a student who completes that program can complete the 2,000 hours of supervised experience in diagnosis and assessment-based treatment planning as part of the experience for licensure and the privilege?

RESPONSE: If experience completed in the program and under a limited permit meets the requirements for the diagnostic privilege, such experience could be submitted post-licensure for the privilege authorized by Education Law § 8401-a.

19. COMMENT: Commenters suggested that continuing education coursework should be accepted to meet the education requirements.

RESPONSE: Continuing education does not meet the standard of credit-bearing coursework as defined in the Education Law.

20. COMMENT: Commenters asserted that all programs are accredited by CACREP, therefore, all graduates are qualified to engage in diagnosis and training without further review.

RESPONSE: The Department may accept graduation from a CACREP accredited program in another state for licensure as a mental health counselor, such applicants will require individual evaluation when applying for the privilege.

21. COMMENT: Commenter stated that license-qualifying programs in psychoanalysis already have a 45-clock hour course in the content area of diagnosis that should count.

RESPONSE: The Department will review the content of license-qualifying programs to verify that at least 12 semester hours or 180 clock hours are in a psychoanalytic training program.

22. COMMENT: Commenters suggested that experience completed for licensure prior to June 24, 2024 should be acceptable to meet the diagnostic privilege.

RESPONSE: If a licensee engaged in diagnosis and assessment-based treatment planning in a lawful manner under a qualified supervisor in an exempt setting, such experience may be submitted for review by the Department.

23. COMMENT: Commenters asked about the process by which an individual licensed in another jurisdiction could qualify for the privilege in New York.

RESPONSE: An individual licensed in another state must meet the requirements for licensure in New York and submit verification of 2,000 hours of acceptable experience for the privilege.

24. COMMENT: Commenters seek an expedited process for licensees so that they may supervise other licensees seeking the privilege.

RESPONSE: Chapter 230 does not allow the Department to issue a privilege prior to June 24, 2024.

25. COMMENT: Commenters seek clarification as to whether a LMFT without the diagnostic privilege may use classification systems, such as the Diagnostic and Statistical Manual (DSM).

RESPONSE: Chapter 230 did not amend Education Law § 8411(3), which allows an individual licensed under Article 163 to use the DSM or similar classification systems.

26. COMMENT: Commenters asked whether a student who graduates from a program that meets the education requirements for licensure and the diagnostic privilege can simultaneously gain experience for the license and privilege.

RESPONSE: If the applicant for licensure completes supervised hours under a qualified supervisor that meets the requirements for the privilege those hours may be submitted toward the privilege after licensure.

27. COMMENT: Commenters stated that mental health practitioners licensed under Article 163 were qualified to diagnose but denied the opportunity by other professions; suggested the privilege is a step back, as licensed MHPs were allowed to diagnose in exempt settings until June 24, 2022; urged the creation of a simple path to grandparenting for current licensees.

RESPONSE: Diagnosis is a specific function that was not included under Article 163; the diagnosis privilege will provide an opportunity for certain licensees who meet the education and experience requirements to diagnose and develop assessment-based treatment plans.

28. COMMENT: Commenter characterized the requirements for those licensed prior to June 24, 2024 as restrictive and inequitable due to the costs of compliance and the risk of reducing the number of qualified supervisors.

RESPONSE: The requirements for the privilege for this group of licensees are established in law.

29. COMMENT: Commenters suggested that individuals licensed in New York under grandparenting provisions in Education Law § 8411 should not have to meet the 60-semester hour education requirement and suggest that years of experience or CE courses could substitute for 12 or more hours of supplemental education.

RESPONSE: Chapter 230 does not allow the Department to propose alternative pathways.

30. COMMENT: Commenter stated that, if additional education is required of those licensed as a LMHC from 2005-2006, such individuals should be able to fulfill additional content areas without financial hardship.

RESPONSE: The Education Law does not authorize the Department to waive the cost of clinical education offered by approved degree-granting institutions.

31. COMMENT: Commenter stated that the 60-day public comment period should be extended due to a typographical error in the address for submitting comments on the proposed rule.

RESPONSE: The error on the Department’s website was corrected and the July 27, 2022 State Register publication provided the correct address for submitting comments.

32. COMMENT: Commenters stated that mental health counselors should be able to contract with a LCSW or other professional to supervise them as they gain the experience needed for the diagnosis privilege, while protecting patient confidentiality.

RESPONSE: The commenter implies that the patient will not be seen by the LCSW supervisor and patient information will be shared without consent. The suggestion would not protect patients and is inconsistent with the Education Law.

33. COMMENT: Comments about the qualifications for supervisors were received.

RESPONSE: Legislation would be needed to permit other professions to be qualified supervisors.

34. COMMENT: Commenter stated that a licensed MHP who supervised an applicant prior to receipt of the privilege should be deemed a qualified supervisor based on subsequent issuance of the privilege.

RESPONSE: This is neither consistent with the law nor in the interest of public protection.

35. COMMENT: Commenter asks why he can diagnose in Connecticut but not in New York.

RESPONSE: Professional practice is defined separately by each state.

36. COMMENT: Commenter interpreted the law to define making a diagnosis without a privilege a form of professional misconduct.

RESPONSE: The commenter is correct.

37. COMMENT: Commenters asked if an LMHC with the diagnostic privilege would be qualified to supervise a MSW or LMSW seeking to become a LCSW.

RESPONSE: In order to supervise a profession, the licensee’s scope of practice must encompass that of the supervisee.

¹Effective January 1, 2010, 8 NYCRR § 52.32(b) increased a license-qualifying program that leads to licensure as a mental health counselor from 48 to at least 60 semester hours, or the equivalent, of study.