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The process of regulation

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Title:
The process of regulation a descriptive study of mental health occupations regulation in Colorado
Portion of title:
Descriptive study of mental health occupations regulation in Colorado
Creator:
Martinez, Amos Delfin
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English
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viii, 170 leaves : illustrations ; 28 cm

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Delegated legislation -- Colorado ( lcsh )
Licenses -- Legislation -- Colorado ( lcsh )
Mental health personnel -- Colorado ( lcsh )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 162-170).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
General Note:
School of Public Affairs
Statement of Responsibility:
by Amos Delfin Martinez.

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University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
36465484 ( OCLC )
ocm36465484
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LD1190.P86 1996d .M37 ( lcc )

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Full Text
THE PROCESS OF REGULATION: A DESCRIPTIVE STUDY OF MENTAL
HEALTH OCCUPATIONS REGULATION IN COLORADO
by
Amos Delfin Martinez
B.A., university of Northern Colorado, 1975
M.s.w., university of Utah, 1978
M.C.J., university of Colorado at Denver, 1987
M.P.A., university of Colorado at Denver, 1994
A thesis submitted to the
university of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Public Administration
1996


This Thesis for the Doctor of Philosophy
degree by
Amos D. Martinez


Martinez, Amos Delfin (Ph.D., Public Administration)
The Process of Regulation: A descriptive study of mental health
OCCUPATIONS REGULATION IN COLORADO
Thesis directed by Professor Mark R. Pogrebin
ABSTRACT
A unique model of mental health regulation, adopted by Colorado
in July of 1988, is used as a case study of the process of regulating mental
health occupations. Prior to July of 1988, the professions of psychology
and social work were the only mental health occupations regulated in
Colorado, in the mid 80's Colorado, like many states, was increasingly
lobbied for regulation of new and emerging mental health occupations.
Colorado added three mental health occupations to its regulatory ambit
professional counselors, marriage and family therapists, and unlicensed
psychotherapists, all of which occurred in an era of regulatory restraint.
This study describes the legislative and administrative processes
resulting in a departure from a traditional model of regulating mental
health occupations in Colorado. No other State in the continental united
states has separated the licensing and disciplinary functions of mental
health occupations regulation. While several states have combined
professional Boards or Commissions, Colorado is the only State that has
adopted a strong disciplinary role in the regulation of licensed mental
iii


health occupations and directly regulates unlicensed psychotherapists. A
description of the legislative history and events leading to this form of
regulation creates the subject of this study, interviews with key
participants, archival research, and content analysis of legislative,
administrative, and private sector documents, memoranda, and letters
constitute the primary sources of data.
Preliminary conclusions of this study suggest public administrators
are as closely involved in the construction of occupational laws as they are
in administration of those laws, thus refuting a dichotomy between
politics and administration.
This Abstract accurately represents the content of the candidate's thesis. I
IV


CONTENTS
Chapter Page
1. INTRODUCTION..............................................1
Purpose............................................. 1
Background.......................................... 2
Mental Health Regulation and Public Administration__ 9
2. REVIEW OF THE LITERATURE....................................14
Overview of Occupational Regulation...................14
The context of Mental Health Regulation...............18
conceptualizing Colorado's Regulatory Policy..........27
Theoretical Perspectives of Regulation................30
Political Perspective...........................31
Economic and interest croup Theory..............33
Social stratification and Professionalization...36
Legal Theory of Regulation......................45
special interest croup Theory...................51
Summary...............................................54
3. METHODOLOGY.................................................58
introduction..........................................58
The construct of Regulation...........................61
Research Design.......................................62


Research Questions
65
sources of Data........................................66
Qualitative Research Measures..........................69
Limitations of the Descriptive Case Study Method.......73
summary................................................75
4. A HISTORY OF PSYCHOTHERAPY REGULATION IN COLORADO............77
1986 Sunset Review of Mental Health occupations.......77
Psychology..................................... 78
social work.......................................80
The Mental Health Occupations Survey..............83
sunrise/sunset Review Report......................85
senate Bill 87-38 ............................... 89
HB1026: The Revised SB 87-38 .................... 92
1992 sunset Review of the Mental Health Practice Act.....95
Psychology Lobby.................................101
social work Lobby................................102
counselor and Marriage & Family Therapist Lobby..104
unlicensed Therapist Lobby.......................105
Department of Regulatory Agencies................107
House and senate votes..................................110
5. SB 87-38 and HB 88-1026: CONCLUSIONS AND ANALYSIS..............112
introduction............................................112
involvement of professional Associations................118
VI


Legislative Response to the Problem
The office of Policy And Research ..
124
133
APPENDIX
A. Excerpt of Grievance Board statute..................144
B. interview issues/Concerns...........................160
c. context Chart.......................................161
BIBLIOGRAPHY....................................................162
vu


ACKNOWLEDGEMENTS
1
I am appreciative of the assistance provided by my dissertation
committee. Each, in their own way, provided me with the necessary
amounts of encouragement, inspiration, and intellectual support needed
to complete this process. I am particularly grateful for the direction and
counsel of my Chair, Dr. Mark R. Pogrebin and to Dr. Walter T. Simon,
whose review of this manuscript taught me to better discern a good
argument from a good opinion.
To Dana and Mason who lived this process with me, Dr. Richard E. Baca
and Dr. Clarrissa Pinkola Estes, i am also grateful, as they too, in their
unassuming and unique ways, inspired me to overcome my greatest
handicap -procrastination.
Finally, I am indebted to the state of Colorado, for the opportunity to
experience what l have studiedthe process of politics and
administration.
Vlll


CHAPTER 1
INTRODUCTION
Purpose.
The purpose of this study is to describe and analyze the political
processes which led to the formation of Colorado's unique system of
mental health occupations regulation. The research question is not
whether occupational regulation protects the public from a demonstrable
risk of harm but rather how special interest groups, professional
associations, and government administrators influenced mental health
occupations regulation in Colorado between 1988 and 1992. special
interest group influences, regulatory and political processes are the units
of analysis.
Professional special interest groups possess a compelling motive for
occupational legislation-to legitimize the practice of an occupation and
further the economic standing of members who practice that occupation
in society. Government, on the other hand, creates occupational
regulation for the purpose of protecting the public from harmful or
improper practice. These interests are constantly played out in the
regulatory arena and influence the direction of government policy.
This study provides a systematic description of the dominant issues
in state regulation of mental health occupations in Colorado, it examines
the creation of the Colorado Mental Health Practice Act of 1988 and its


sunset review In 1992 as the framework for identification and analysis of
these issues, content analysis of legislative and administrative data, and
interviews with key participants in the political and administrative
processes, are used to describe the creation of the 1988 Colorado Mental
Health Practice Act and its subsequent changes in the 1992 sunset review
of this legislation. The data is examined to explore reasons for the
Colorado Legislature's radical departure from a traditional model of
regulation in enacting mental health occupations legislation in 1988. No
other State in the continental united States or developed countries has
adopted a regulatory system which separates the licensing and
disciplinary functions of regulation and oversees the activities of both
licensed and unlicensed mental health practitioners, information from this
study may be used by students of public administration, government
administrators, politicians, or mental health special interest groups to
systematically analyze the formation of regulation and identify the
dominant issues in state regulation of mental health occupations.
Background
Psychotherapy is as difficult to describe as it is to apply, it has
evolved from many disciplines in the behavioral sciences and involves such
amorphous activities as "listening, questioning, evaluating, interpreting,
supporting, explaining, informing, advising, and ordering" (Corsini, 1989, p.
2). Prior to the 1940s, psychotherapy was predominately practiced by
medical doctors with specialties in psychiatry. The disciplines of
2


psychology, clinical social work, psychiatric nursing, counseling, and
marriage and family therapy have gradually taken over the practice of
psychotherapy, although psychiatrists do retain a firm hold on this
practice. The public, however, seems to prefer mental health professionals
over psychiatrists even when cost is not a factor. One study found that
psychologists and other mental health professionals are more likely to be
sought out by the consumer than psychiatrists, although the presence of
psychiatry is well established and predicted to remain so for some time. As
Murstein and Fontaine explain:
Psychiatry is unlikely to fade away as long as the medical
profession holds the only franchise to administer drugs,
but it may be that their role as talking" psychotherapists
is dwindling, whereas their role as pill prescribes is
augmenting. This role does not make their patients
comfortable. Psychiatrists finished far down the list for
comfortableness (Murstein & Fontaine, 1993, p. 843).
While psychiatrists continue to remain at the top of the pecking order" in
psychotherapy, psychologists, social workers, nurses, counselors, and
marriage and family therapists have emerged to find a niche in the mental
health marketplace. The difficulty these professions face is distinguishing
their practices from each other and communicating those distinctions to
the public.
in comparing psychologists to psychiatrists, Murstein and Fontaine
(1993) define the problem for all psychotherapists~to establish specificity
of function." Psychiatry, psychology, clinical social work, psychiatric
nursing, counseling, and marriage and family therapy all share


psychotherapy as a function of their discipline. The theoretical
underpinnings of each discipline may differ as well as the education,
training, and experience required for individual practice, but the
activities of therapists are remarkably similar. The emergence of the
different fields that can practice psychotherapy compounds the problem
of definition and specificity of function. Public acceptance of mental
health professionals as providers of a service of value to the public has
exacerbated this problem. Murstein and Fontaine (1993) suggest it will
become more difficult to distinguish the professions as they evolve to
compete on a more level playing field with psychiatrists.
Psychologists occupy a broad spectrum of fields that
defy specificity of function. As psychologists continue
to make inroads into territory once wholly under medical/
psychiatric jurisdiction (e.g. hospital privileges, commit-
ment of patients to hospitals, drug prescriptions), the
public's task in differentiating psychology from psychiatry
should become more difficult, not easier (p. 844).
The practice of psychotherapy occurs in a private setting where the
therapist controls the relationship from the outset. Rapport and trust are
crucial factors to the development of a therapeutic relationship.
Consumers of psychotherapy services seek professional assistance when
they are unable to cope with or manage "life events" or problems in their
relationship with society or others. The majority are experiencing a life
crisis, feel inadequate, are insecure, or are unable to make good choices
about relationships, career, or health. A recent study found that the most
popular reasons for seeking therapy were mild depression, marriage
4


problems, child rearing problems, and difficulty in interpersonal
relationships" (Murstein & Fontaine, 1993, p. 843).
The public expects the therapist to know what causes social or
personal dysfunction, develop a diagnosis and treatment plan or make a
referral if the problem is outside their area of training and experience,
and engage in sessions designed to meet the objectives of the treatment
plan. The relationship is directed by the therapist, and rarely does the
consumer have sufficient information to distinguish good from poor
psychotherapy.
psychotherapy is performed with little or no oversight of the
therapist. The opportunity to discuss intimate and very personal events,
thoughts, or issues in a patients life is the cornerstone of therapy. This
interaction creates a power imbalance in the relationship and contributes
to the inability of the consumer to judge competent practice. It also
increases the potential for abuse by unethical or incompetent
practitioners.
Traditionally, grievances against licensed mental health
professionals in Colorado were handled by individual licensing boards.
Although there were public members on these boards, they were
comprised primarily of licensed mental health professionals practicing in
the same field (e.g., psychology or social work) as the professional under
review. During the legislative "sunset" evaluation of the mental health
licensing programs in 1986, the Colorado General Assembly became
disenchanted with this model as applied to mental health occupations.
5


Lawmakers were sensitive to three competing considerationsfirst, it was
questionable that a board with disciplinary power should be dominated
by the profession it was charged with overseeing, second, opportunities
for public involvement needed to be expanded, and third, licensed mental
health therapists should have a significant say in determining whether or
not another licensed professional's practice met the statutory
requirements and/or the generally accepted standards of professional
practice. Balancing these interests, the Colorado Legislature in 1988
created the state Grievance Board, an autonomous board focused
exclusively on the disciplinary function of regulation, in addition, the
Legislature continued the Boards of Psychology and Clinical social Work
and added two new mental health Boards, the Boards of professional
counselors and Marriage and Family Therapists. These Boards were
responsible for the licensing functions of mental health regulation.
The Colorado State Grievance Board is unique in the united States
and represents a bold departure from past efforts to discipline
professionals. The Board oversees the practice of licensed psychologists,
clinical social workers, professional counselors, marriage and family
therapists, unlicensed psychotherapists, and certified school psychologists
who practice outside the school setting. Although the disciplinary
function is common to other Boards in the united States, the scope and
reach of the Boards jurisdiction are not. The "core" eight-member Board is
comprised of four public members and an equal number of mental health
practitioners, one from each of the four licensed professions in Colorado.
6


The Board is charged with the review and disposition of complaints
against mental health therapists, rule-making, and community outreach,
using a statutory procedure unlike any other, the composition of the
Board changes when it considers taking disciplinary action against a
licensed or unlicensed therapist, if the eight-member Board believes that
disciplinary action is warranted, the Board expands to eleven members by
adding three "augmenting" Board members, each of whom is licensed to
practice in the same field as the therapist under review. The Board also
has an "unlicensed augmenting panel" to review cases with the eight-
member Board against unlicensed psychotherapists (Appendix A).
This model allows for maximum public member involvement in
disciplinary decisions without sacrificing essential professional assessment
of the psychotherapeutic practice. The Board's power to discipline ranges
from issuing letters of admonition (the lowest level of discipline), to
probation, suspension, or revocation (the most severe disciplinary action)
of a license or practice, in addition, the Board can seek a cease and desist
order in a state district Court, immediately suspending the practice of a
therapist, until such time that the therapist can demonstrate he/she is
able to practice with reasonable skill and safety. The Board can also seek a
court injunction to prohibit or limit the practice of a mental health
professional if they find it is in the public interest, such broad authority
was intended to make the Board a powerful instrument for protection of
the public health, welfare, and safety.
7


Board members are appointed by the Governor of the state of
Colorado and confirmed by the senate for one, two, and three year terms.
Members may serve no more than two full terms. The Grievance Board
and mental health licensing Boards have developed administrative rules
which are similar in form. Each Board is managed by the Colorado
Department of Regulatory Agencies, Division of Registrations.
implications of Colorado's Mental Health Practice Act are far-
reaching. Psychotherapy has become more acceptable and, in some
circles, the popular way to cope with personal growth issues or emotional
and mental problems. While the state can regulate this activity, few
jurisdictions agree as to the proper education, training, and experience
qualifications for psychotherapists. Traditional approaches to regulation
have not been successful in reducing harm caused by errant therapists as
evidenced by growing demand for accountability by the public, states
have historically placed confidence in the licensing aspects of regulation
while neglecting disciplinary measures. Colorados approach does not
control the qualifications for psychotherapy practice per se, it shifts the
state's interest to discipline and sets standards for all therapists to comply
with regardless of their training, experience, or education. This approach
has caused considerable controversy among the psychotherapy
disciplines. Licensed psychotherapists believe it opens the field to anyone
regardless of their education or experience qualifications, supporters
believe it holds all therapists accountable to the same standards of
professional practice by creating uniform prohibited activities" designed
8


to protect the public from harmful psychotherapy. Simpkinson (1990)
succinctly captures this problem:
The answer to the question of who will control the
training, licensing, and payment of psychologists and other
therapists remains unclear. The question will not be
decided only on professional grounds. Major economic and
political issues are now involved. Therapy has become big
business (p. 24).
Mental Health Regulation and Public Administration
Mental health occupations regulation involves almost all of the
subject matter in the study of public administration. Regulatory bodies
engage in quasi-judicial, quasi-executive, and quasi-legislative activities,
within each function an understanding of the fundamentals of public law-
making, judicial interpretation, and executive enforcement of laws is
necessary. Regulation evolved out of the executive branch of government
and spilled into other areas of government as society became more
complex. With the creation of new institutions to implement the public
will, the importance of government in maintaining quality of life became
paramount with regulation now touching virtually every aspect of
American life.
Public administration concerns itself with the management of
public agencies, it is a profession with academic anchors in management
theory, planning, budgeting, finance, organizational psychology, law,
political science, economics, and other behavioral sciences. While this
study seeks to understand why Colorado created a unique system of
9


mental health occupations regulation, its analysis will borrow concepts
from public management, politics, and administration. These concepts are
central to an understanding of regulation and relate directly to public
administration theory.
in a regulatory agency, managerial functions of administration are
performed in a political environment, it is suggested that administrative,
political, and legal forces shaped mental health occupations regulation in
Colorado, as in other state jurisdictions, and these forces comprise the
theoretical anchors which form the backdrop for this study.
The relationship between administration and politics is as old as the
field of public administration and has not been adequately resolved
according to Waldo, (1984). contrary to Woodrow Wilson's (1887)
proposition that politics are separate from administration, this discussion
supports Simon (1957), Appelby (1949), and Waldo's (1990) assertion that
politics cannot be separated from administration. The processes involved
in creating legislation and implementing legislative policy are
appropriately the practice of public administration.
Wilson's science of administration" placed politics well outside the
practice of administration. Administrator's were seen as the enforcers of
the public will. The hierarchical ordering of trained public administrators
created the structure and conditions necessary for good" administration
(Ostrom, 1974, pgs. 28-29).
While Wilson placed structure and organization at the center of
governmental processes, Simon (1976) focused on decision-making as the
10


business of administration. Simon defined decision-making as a
conclusion drawn from a set of premisesvalue premises and factual
premises" (pg. 123). This view incorporates both politics and
administration as functions of public officials. Statutory policy-making is
tantamount to administrative decision-making where the special interests
of a collective are weighed with the interests of the individual.
Decisions of the majority form the basis of any democracy. The
application of Simon's fact-value" analysis to regulation is helpful as it
demonstrates that regulation cannot be concerned with facts' at the
expense of values" within a decision-making context, it also suggests that
decisions in government are not generally the result of one individual.
Administrative decision-making is intimately related to the political
process where decisions are driven by several interests through formal
and informal methods of communication. Simon discusses the notion that
administrative decision-making is not limited to the individual:
it should be perfectly apparent that almost no decision made in
an organization is the task of a single individual. Even though the
final responsibility for taking a particular action rests with some
definite person, we shall always find, in studying the manner in
which this decision was reached, that its various components can
be traced through the formal and informal channels of
communication! a la Chester Barnard l to many individuals who
have participated in forming its premises (p. 221).
Decision-making in public administration has grown considerably in
complexity since Wilson and Simons time. This is related in part to the
growth of government over the years and changes in the political arena.
11


Term limits, for example, have become popular in many state
governments and hold major implications for the influence of
administrators in the legislative process. Generally they have resulted in a
more prominent role for administrative agencies in political decision
making. This involvement has increased the presence of the public
administrator, not just in the political process but also has necessitated
more nurturing relationships with the public and politically focused
interactions with special interest group representatives, thereby
intermingling politics with administration. This infusion of politics in the
practice of regulation raises the "separation of powers" question between
executive and legislative branches of government.
The formation and subsequent administration of regulatory policy
occurs in a political environment which blurs any distinction between
technical rationality and political intervention. Regulation is connected to
the legislative, executive, and judicial functions of government.
Management of a regulatory agency in the 1990s, does not call for
neutral competence on the part of the administrator. Rather, it demands,
as Wheatley (1992) suggests, a change in the competencies of the
administrator.
We will need to stop describing tasks and instead facilitate
process. We will need to become savvy about how to build
relationships, how to nurture growing, evolving things. All
of us will need better skills in listening, communicating, and
facilitating groups, because these are the talents that build
strong relationships, it is well known that the era of the
rugged individual has been replaced by the era of the team
player. The quantum world has demolished the concept of


the unconnected individual. More and more relationships
are in store for us, out there in the vast web of universal
connections (p.38).
The administrators knowledge, skills and abilities in the political
process and influence in shaping legislative policy are key markers of
administrative competence. To the extent that administrators are
involved in legislative policy formation, politics/administration theory
helps explains how Colorado moved from a traditional regulatory model
of mental health regulation to an omnibus system.
13


CHAPTER 2
REVIEW OF THE LITERATURE
Overview of Occupational Regulation
Government regulation of professional occupations is anchored on
the need to protect the public from unqualified, improper, or harmful
practice, it is concerned with the process of qualifying individuals for
practice (licensing) and the discipline of practitioners for misconduct.
Professional licensing is intended to insure that providers of a service
meet some minimum standard of competence, but recently has resulted
in criticism that licensing, by statutory design, protects the provider and
offers little protection to the public (schutz, et.al., 1980, p. 1).
Historically, government regulation of occupations and professions
dates back to 13th century Sicily, which was the first government body to
require physicians to have extensive training and pass a test to determine
their qualifications to practice medicine (Young, p. 9,1987). Spain,
Germany, and Naples followed with laws of their own regulating the
practice of medicine, in America, the first law regulating the profession of
medicine was passed in Virginia in 1639, Young (1987). This law set a
ceiling on physicians fees only- it did not establish control over the quality
of medical services. The first law to regulate service in the medical
profession was passed ten years later in Massachusetts. And in 1760, New
14


York City passed the first law providing for standardized medical licensing
examinations (Derbyshire, 1969, p. 9).
occupational regulation traces it origin to the medieval period. This
was a time marked by the development of craft and professional guild
associations. Guilds behaved much like quasi-governmental organizations.
They set prices, required standards for entry, and provided services to the
poor (Young, 1987, p. 13). With the rise of powerful nation-states, an
expanded market, and associated accumulation of capital, the guild
system gave way to the free market system in Europe but did not seem to
take hold in America, Young (1987). Lieberman 1970) offers this
explanation:
The land was open, the people pioneers, their goal adaptation. To
restrict the practice of any art to people specially trained would
have been intolerable in a country where every man had to be...his
own farmer, manufacturer, doctor, lawyer, builder, and banker (p.
46).
Regulation of trades or occupations was discouraged in America, in the
mid-1800's, for example, virtually anyone could hang a shingle and practice
medicine, law, or pharmacy (Young, 1987, p.12).
occupational licensing and regulation did not gain a foothold in
America until 1900. At that time every state had passed a mandatory
licensing law for physicians. Other professions such as law, dentistry, and
pharmacy also began seeking and obtaining licensure. Special interest
groups representing the various occupations realized that government
regulation was a necessary requirement to keep quacks and charlatans
15


from practice, thereby creating an economic advantage for qualified"
providers. The professions inundated government officials with proposals
for laws requiring special training and skills for practice, to avoid the
problem of appearing to be self-serving, the professions crafted
legislation using the theme of "public protection" as justification for
advancing their agendas (Hogan, 1979).
Other factors are also noted in the literature which spurred the
emergence of professions. First, there was rapid growth in education. The
establishment of colleges, universities, and professional schools in the
early 1900s is unparalleled even by today's standards. The progress in
public education and secondary schooling mushroomed sometime after
1840, when historians indicate most Americans no longer were focused on
survival and could devote more time to education, culture, and the arts
(Reeves, 1990). Along with this growth in higher education came
advancements in technology. The creation of x-ray machines,
cardiographs, and other medical devices stimulated the need for
specialists in medicine. Population growth in major u.s. cities and a
changing economic structure also created the need for advancements in
transportation, communication, and public health facilities.
war stimulated the need for and emergence of certain professions.
Physical and occupational therapy for example, are two professions which
burgeoned after world war l. The profession of psychology as an applied
science emerged during world war li when testing and evaluation of
prospective soldiers became a practice adopted by the armed forces. The
16


first licensing law in psychology was passed in Connecticut in 1945, Reeves
(1990). With respect to psychotherapists, Swenson (1993), seems to
succinctly capture the reason for licensing:
states pass most psychotherapist licensing laws because
of lobbying by professional associations seeking to institution-
alize their ethical codes and control entry into their profession
(p 124).
Licensing serves professional guild interests by restricting entry
to a profession. This exclusivity raises the prestige of the profes-
sion. Older, better paid, and more prestigious professions are
almost always licensed. Younger professions seek to emulate
them, usually with licensing come laws that make requirements
for entry to the profession more stringent. Established
professionals defend increased requirements as improving service
to the public, although most research fails to find this to be true
(p. 127).
Today, over 1000 professions and occupations, including such
activities as beekeepers, hot air Balloon operators, and horticulturists
have achieved government licensing ( clear, 1994). Colorado licenses 27
occupations and professions in addition to several industries such as
banking, insurance, financial services, real estate, health care facilities,
public utilities, etc.
ironically, many professions justify their continued regulation on
the assumption that the public needs to be protected from personal or
economic exploitation by members of their profession. Blair and Rubin's
(1980) analysis of state regulatory boards found :
Many of the (Regulatory) Boards have becomeif they were not
from the outsetessentially insulators, whose basic purpose is to
shelter those regulated from the demands and the incentives of
17


competition. Accordingly, professional boards traditionally have
prohibited competitive bidding, price and service advertising, and
other forms of direct and indirect price and service competition (p.
vii).
The context of Mental Health Regulation
The history of regulating mental health occupations is relatively
short, while every state in the country regulated the practice of medicine
by the turn of the century, the professions of psychology, social work,
marriage and family therapy, and mental health counseling were
recognized much more recently. For most states, the profession of
psychology was not regulated until the early 1960's, although some states
had passed legislation in the 1940's. Regulation of social work began in the
1970's and gradually gained momentum until 1993 when the state of
Wisconsin became the last state to pass legislation regulating social
workers. Marriage and family therapists are currently regulated in thirty-
four states and the profession of counseling is regulated in thirty-seven
states (clear, 1994). Lobbying is presently underway in each of the states
that do not regulate marriage and family therapists and counselors to
establish licensing laws.
Regulation of mental health occupations implies that licensing or a
lesser form of regulation will maximize the likelihood that practitioners
will possess certain minimum skills and competencies (Wiens, 1983). The
major assumption behind occupational regulation is that minimum skills
and competencies will protect the consumer from unqualified or
improper practice. The majority of health care regulation consists of both
I8


practice and title protection laws, in medicine, for example, no person
may practice medicine or use the term "medical doctor" without being
licensed. Most states regulating mental health occupations, however, pass
"title protection acts" which result in restricting certain terms such as
"psychologist," "clinical social worker," or "professional counselor" to
persons who are licensed. These laws prohibit anyone from using
protected titles but do not limit practice to those who are licensed. To
further complicate this issue, the practice of psychology overlaps with the
practices of clinical social work, counseling, and marriage and family
therapy, in Colorado all four mental health occupations practice
"psychotherapy" and no legal distinction between such practice and the
practice of psychology, clinical social work, or any other specialty is
recognized.
Nationally, psychotherapy may be practiced by any person or
persons with limited regulation and, in some states, no restrictions (CLEAR,
1986). Those states that have prohibited the unlicensed practice of
psychotherapy have accomplished this by enacting legislation which
narrowly defines psychotherapy or restricts the practice of psychotherapy
to the licensed practice of psychology, social work, mental health
counseling, or marriage and family therapy.
A limited number of states have practice protection acts for mental
health occupations. The professions of psychology, social work,
counseling, and marriage and family therapy, however, overlap to such a
degree that principles and theories of each respective discipline are
19


borrowed or commingled in the literature and licensing laws. Psychology,
for example, borrows Information from social work group and community
organization theory and social work borrows from counseling theories
blurring any distinctive knowledge boundary between these disciplines.
The result of this amalgamation of counseling and psychotherapy theories
is that practice of the various mental health disciplines is more alike than
different. Each of the mental health disciplines are concerned with human
adjustments to emotional, psychological, or social problems. As a result,
legislative definitions of mental health practice are constructed so that all
mental health occupations fall within the government's ambit of
jurisdiction. Colorado's definition is illustrative:
psychotherapy means the treatment, diagnosis, testing,
assessment, or counseling in a professional relationship to assist
individuals or groups to alleviate mental disorders, understand
unconscious or conscious motivation, resolve emotional,
relationship, or attitudinal conflicts, or modify behaviors which
interfere with effective emotional, social, or intellectual
functioning, Mental Health Practice Act, (12-43-201 (9i, C.R.S.,1992).
This definition could apply, and does in Colorado, to the practice of
psychology, clinical social work, mental health counseling, and marriage
and family therapy, some have argued that such a definition is too broad
and suggest a more restricted interpretation, while others believe that a
broad definition is more likely to protect the consumer, in any event, little
evidence of a universal definition of psychotherapy is found in the
literature, although several methods of psychotherapy have existed for
some time (Corsini, 1973).
20


This legislative declaration also has contributed to the problem of
specificity of function among the mental health occupations. Benham
(1980) summarizes the dilemma:
Obtaining licensure and successfully protecting the occupation's
jurisdiction require more than a proclamation of doing good,...
....They require an ability to mobilize resources to lobby in the
political arena and to defend against attacks by other groups (p.19).
Mental health practice theory and knowledge offer limited
solutions to the problem of distinguishing "good" from bad"
psychotherapy, some researchers have suggested psychotherapy does
not work and if practiced in any form may, in fact, be harmful (Bergin,
1975, Frank, 1967, Salter, 1963, Stuart, 1970). Tennov believes regulation of
psychotherapy is ineffective because psychotherapy is:
a field in which nobody really knows much about what goes on, or
what training is appropriate, or how to distinguish a good therapist
from a poor one....The issue is limiting the right to practice to
those who have undergone extensive training when the relevance
of that training to effectiveness is dubious...(Tennov, 1975, pp. 140-
41).
Others have suggested that the cornerstone of good psychotherapy may
lie in personal attributes of the practitioner such as intelligence,
communication skills, empathy, and personality (Peterson & Bry, 1980),
leaving regulators to wonder whether professional education and
examination standards are necessary factors to the preparation of a
competent therapist.
The meaning of licensing laws in psychotherapy lies in what they
communicate to the public about professional preparation (Peltzman,
2l


1976). They suggest that the practitioner has learned a specialized body of
knowledge from which the public may benefit, in psychotherapy
regulation this is somewhat problematic because no study has established
a causal relationship between preparation standards and service quality.
States use education, experience, and examination qualifications as
indicators of minimum professional competence (Wiens, 1983), and,
although, there is some research that education and experience are
important components to continuing competence in medicine and
related health care occupations (Bertram & Brooks-Bertram, 1977), no such
data exists for those who practice psychotherapy, indeed some studies
suggest that high entry requirements for psychotherapists may have an
inverse relationship to public protection (Hogan, 1983, Trebilcock & Shaui,
1983, Schmitt, 1995).
Arguably, the need for licensure is most apparent in professions
where practitioners deal with the public individually and the consumer
has no criteria by which to measure the quality of that interaction. When
the consumer is unable to assess quality of service, the potential for
exploitation increases. The interaction between patient and therapist is
analogous to that of buyers and sellers in a competitive market, except
that in a competitive market, the forces of supply and demand usually
bring about an optimum combination of price, quantity, and quality. The
buyer is generally able to judge the quality of a good or service and make
a purchase decision on that basis, in a professional relationship such as the
one between patient and physician or client and psychotherapist, the
22


consumer relies solely on the judgment of the professional. Even if a
practice appears wrong to the consumer there are no clear guidelines for
that consumer to determine whether such conduct is appropriate or
inappropriate, necessary or unnecessary, valid or invalid. This is referred
to as market failure and forms a key basis for government regulation
(Wolfson, Trebilcock, &Tuohy, 1980).
in the language of economics, market failure occurs, because of
"asymmetric information on quality," and the existence of "externalities"
(Sharp & Leftwich, 1986). Asymmetric information on quality is common in
the professions because the consumer must almost always rely on the
professional judgment of the provider. Externalities give rise to
government regulation because they cause market failure when
professionals or consumers do not take into account the effects of their
purchase decisions on third parties (Wolfson, 1980, Leffler, 1978). For
example, the medical doctor who fails to diagnose a contagious disease,
thus contributing to an epidemic, or the engineer who designs a faulty
bridge which later collapses and injures or kills its users, have directly
affected the welfare of parties who were not involved in the initial
purchase decision. These "externalities," it is argued, result in government
regulation to protect the public from the harmful effects of market
failure (Musgrave & Musgrave, 1989, p. 8).
Other theorists have argued, however, that externalities should not
form the sole basis for regulation (Cox, 1990, Hogan, 1983, Cross, 1984).
23


Rottenberg (1980) suggests some externalities may not exist in service
professions and are largely offered by the professions to justify licensure.
His observation Is instructive:
Licensed occupations place great emphasis on convincing
the larger society of the benefits associated with their licensure,
undertaking a wide range of activities and expending substantial
resources to persuade their own members and the public at
large of their legitimacy, indeed, in this regard, a common
activity in twentieth-century America has been the cultivation
of the public perception of market failures" or externalities.
Almost all licensed occupations have claimed they will success-
fully cope with undesirable market failures. Frequently there
has been little or no evidence in support of the proposition
that such externalities exist or that the proposed solution will
improve the situation. The absence of systematic evidence in
support of such claims has, however, never appeared to act as
a deterrent. Presumably the groups making such claims are
not doing so solely for their own edification: the claims appear
to be important, perhaps even essential, to survival (p. 17).
Regulation of mental health occupations faces an additional
problem-the dual role of the therapist as both "diagnostician" and
treatment provider, variability of professional practice decisions creates
the incentive to provide more treatment than necessary as there is little
objective criteria with which to determine if the treatment provided was
actually necessary, useful, or indicated (Cross, 1984). Regulation is created
to protect the consumer from the disadvantage of not knowing how
much therapy is appropriate or necessary.
The level of regulation needed to obtain the public protection
objectives of government varies among occupations. The majority of
regulatory laws originate in response to special interest politics which
define effective regulation as the ability of government to restrict
24


"unqualified" persons from practice, very few practice acts in
psychotherapy have been established as a result of consumer pressure,
indeed, state regulation is almost always initiated by professional
associations, compounding this problem is a dispute between the
professions and government as to the optimum level of regulation.
Assuming, for example, there is agreement that a profession needs to be
regulated, the professions generally want high education, experience, and
examination standards while government is concerned with minimum
qualifications" (cox & Foster, 1991). Government is willing to establish such
standards in exchange for a minimal level of competence." Horowitz
(1980) explains this trade off:
The establishment of educational and licensing requirements and
the various advertising prohibitions assuredly restrict entry. But
they also help to achieve the purported objectives of preventing
the least qualified prospective entrants from practicing and
simultaneously reduce the uncertainty, and especially the distortive
impact of negative information, associated with the provision of
the service....society permits these self-serving practices to
persist, in exchange for a guarantee of a certain minimal level of
competence on the part of professionals that serve it. it is a
bargain that our society, at least, has in the main shown little
inclination to repudiate (pp. 15-16).
Regulatory acts rarely address the question of defining efficient
regulation. According to Ostrom (1989), efficiency can be viewed in terms
of a cost calculus:
The accomplishment of a specifiable objective at least cost or a
higher level of performance at a given cost is the measure of
efficiency (p. 42).
25


Most state regulation of mental health occupations uses the cost calculus
view to determine whether regulation is necessary and, if established, to
determine whether continued regulation is needed (DORA sunset Report,
1992). The cost calculus or "cost-efficient" method of regulation has been
institutionalized across the country by the legislative "sunrise-sunset"
process which evaluates the effectiveness of regulation at specified
intervals.
Evaluating the effectiveness of regulatory programs is a policy
adopted by most states, in Colorado such a review process is credited with
the restructuring of mental health occupations regulation. This process
encourages innovation if continued regulation is needed to safeguard the
public interest or termination of regulatory programs which have outlived
their purpose. The dynamic nature of policy innovation conducted within
the political arena of state government adds another dimension to the
problem of regulatory decision-making.
Policy innovation is a key activity performed by government and
special interest groups. Both are typically involved in judgmental issues
and value choices necessary to the application of policy to the activities of
regulated occupations (Reagan, 1987, p. 3). Polseby (1982) identifies two
types of policy innovations. Type A innovations are characterized by a
short lapse of time between an idea and legislative action with little
attention paid to research alternatives and low partisanship. Type B
innovations are distinguished by the slow build up of demand for
26


legislation, a systematic assessment of alternatives to regulation, and
strong party positions (p. 158).
Mental health regulation in Colorado follows Polseby's notion of
Type A innovations. Mental health counselors and a myriad of special
interests approached the General Assembly for a law regulating
psychotherapy in early 1985. They succeeded in the summer of 1987, the
same year the professions of psychology and social work were sunsetted.
in spite of the legislatures general sentiment to limit regulation,
legislation regulating psychotherapists was passed in 1988, with an
emphasis on public protection utilizing strong disciplinary methods. This
legislation included the creation of three new professionsmarriage and
family therapy, professional counseling, and unlicensed psychotherapy."
What is remarkable about this legislation is that it passed in a political
climate of restrained regulation and in spite of considerable opposition by
psychology and social work who argued that no new mental health
occupations were needed to protect the public from harmful
psychotherapy practice.
conceptualizing Colorado's Regulatory Policy
The underlying reason for all regulatory policy is to improve the
overall quality of life in society" (Gil, 1973, p. 13). Regulation and law are
synonymous in terms of the legal force and effect of such legislation on
the lives of persons in America. The violation of a regulatory wrong is
generally considered a wrong against society, with many regulations
27


currently possessing criminal and civil sanctions, in the Colorado Mental
Health statute, three specific regulations are labeled as unlawful acts."
They are failure to provide a mandatory disclosure of information to
clients, misuse of a protected title, and practice outside the area of one's
training, experience, or competence, Mental Health Practice Act (1992).
in addition, violations which involve insurance fraud and sexual
contact, intrusion, or penetration with clients, have specific reference to
violations of the Colorado criminal code. This overlap is underscored in
the Mental Health Practice Act which requires the Colorado state
Grievance Board to cooperate with the various District Attorney's in
Colorado to enforce violations of the Act. in addition, any psychotherapist
who practices outside their area of training, experience, or competence
may be subject to refunding all costs associated with such therapy or
damages for death or injury to the client without any showing of
negligence. The intended result of this statutory provision is to encourage
civil lawsuits for malpractice and, thereby, discourage incompetent,
harmful practice.
From a practical standpoint, Colorado mental health occupations
regulation share sanctions found in criminal and civil law remedies,
particularly in the area of sexual misconduct. This situation creates a
system which invokes ail of societies proscribed efforts to discourage
sexual misconduct by psychotherapists. A psychotherapist who engages in
sex with a client, for example, may lose his/her legal authority to practice,
be liable for money damages in civil court, and receive criminal sanctions,
28


including the possibility of a prison sentence, for the same offense.
Administrative, civil, and criminal remedies are available to the consumer
for this type of misconduct.
This overlap of regulatory, criminal, and civil laws is commonplace
in the united states (CLEAR, 1994). in the state of California, the agency
which regulates psychotherapists is empowered to execute search and
arrest warrants, thus functioning in much the same manner as any law
enforcement agency, in the State of New Mexico, regulation is viewed as
an administrative process with little or no overlap between its civil and
criminal statutes, in spite of these differences, the quasi-administrative,
quasi-legislative, and quasi-judicial functions of regulation are common to
all state jurisdictions.
state regulation is big business, it is difficult to estimate how big or
to what extent it influences quantity and quality of mental health care
services, in the psychotherapy disciplines it is even more difficult to
discern regulations impact on the market, commonly accepted supply-
demand theories and market failure do not adequately explain the
availability or cost of psychotherapy in Colorado or elsewhere, for that
matter, sociological theories on the professionalization of psychotherapy
disciplines are also limited in terms of their explanatory power, in short,
the process of psychotherapy regulation cannot be measured using
traditional economic or sociological methods of inquiry alone. The
approach used to understand the processes involved in developing mental
health occupations regulation should, therefore, be dynamic and flexible
29


subject to empirical or phenomenological interpretations given the
legislative, administrative, or political context of their applications.
Theoreticai-Rerspectives.of.Re.qmati.on
as suggested above, government regulation may be viewed from a
sociological, economic, political or legal perspective. These form the
dominant theoretical paradigms from which to examine occupational
regulation (Morrison, 1987, p. 177). within each of these perspectives are
further divisions and "sub-theories" which lay the foundation for the study
of regulation, sociological, economic, and political-legal theories also
overlap with other theoretical views such that to elaborate on any one
perspective would include constructs found in theories of management,
organization, psychology, systems theory, public administration, and
social work theory.
This section describes each of the three dominant paradigms-
political, social, and economic- that are useful in explaining the concept
of occupational regulation. From an applied perspective, regulation is an
action or idea formulated by government to control the activities and
behaviors of certain occupational groups or organizations, in this sense,
regulation is the equivalent of societies primary social control mechanism-
-the function of law. Occupational regulation, however, moves beyond the
construct of law to encompass theories of economics and politics. These
theories provide the basis for a growing body of regulatory policy
research (p. 178).
30


Political Perspective
The political paradigm is used as a framework for this study
because of its theoretical anchors in political science, the science of
jurisprudence, and the relationship of law and politics to public
administration. Government regulation is, for the most part, the
application of law to behavior, it relies on the social control powers of the
state to effect proscribed behavior and compliance, how laws are enacted
forms the study of politics while the interpretation and application of
laws is the science of jurisprudence.
Researchers (Herbsleb, etal., 1985) have supported the idea that
regulation is primarily political. Licensure, certification, and registration
are the primary forms of regulation, but there is little agreement as to the
efficacy of any one or a combination of these approaches. Nevertheless,
the general question of whether licensure is the most appropriate
regulatory vehicle is political-that is, a question of policy making that is
remitted to the judgment of elected representatives" (p. 1166).
Mental health occupations regulation involves both the process
whereby regulatory laws are constructed-politics, and the
interpretation/application of those laws to professionals-administration.
As indicated earlier, the majority of legislation regulating mental health
occupations occurred in the 1970s and 80s. Psychiatry, regulated as the
practice of medicine, dates back to the 1840's while psychology did not
become regulated as a profession until the 1960's, social work regulation
31


emerged In the 1970's, and the professions of mental health counseling,
marriage and family therapy, and Christian counseling obtained regulation
in the 1980's. Each of the mental health occupations are grounded in
professional disciplines with considerably longer theoretical roots, but
regulation of these occupations is a recent legislative undertaking. As a
result, theories of regulation are predominantly found in ethics and
professional standards literature, economics, or research in law and
politics, with the latter focusing on public policy concerns.
Public policy development emphasizes the political aspects of
regulation. Reagan proposes that all regulation is political by noting that
"public policy can be seen as a combination of goals plus facts plus values
or P=G + F+v." (Reagan, 1987, p. 5). Within this framework, regulatory
policy making is politics and the process of establishing policy is mediated
by various special interest group influences. There is no distinction
between drafting legislation and making public policy. Both processes
include the consideration of goals, facts, and values, in this sense, values
are related to ethics. As Carson (1980) notes:
values are ubiquitous, we all hold deep convictions, we exercise
judgment-all our lives are value-laden. What we believe and
how we value are usually implicit in our judgments and
actions. We do not often stop and ask ourselves why we
believe what we believe. But it is the business of ethics
to do just thatto reflect on judgment and action and
to ask after their rationale. Morality is responsible action-
standing good for the choices we make. Ethics is systematic
reflection on morality, a consideration of our choices and
actions in the light of our beliefs and principles (p. 97).
32


Political decisions and public administration are, in this context, closely
related because both attempt to translate beliefs, judgments, principles
and values into government action.
Appelby (1949) further established politics as a cornerstone of
public administration by demonstrating that the methods for making
political decisions are very different from those used to manage private
business. Public administration is viewed as an extension of the governing
process. The same forces that circumscribe political activity apply to the
management of public Agencies. Public administrators cannot simply
make decisions based on concepts of efficiency and effectiveness.
Administering the will of the people" suggests that administrative
decisions must withstand the scrutiny of the political process.
Economic and interest Croup Theory
Economic theory and interest group influences are currently cited
most often as an explanation for occupational regulation (White, 1979;
Begun, 1981). The role of interest group influences in developing
regulatory legislation is advanced as the primary justification for crafting
occupational legislation. Traditional reasons for regulation such as public
demand or benevolent motives on the part of legislators to increase the
public welfare are challenged by interest group theory as the primary
reasons for occupational regulation. Legislative declarations cite the public
health, safety, and welfare as reasons for passing regulatory laws.
Although a majority of states, including Colorado, have adopted the
33


"public interest" model of regulation, closer analysis yields strong evidence
of special interest group involvement in the introduction and passing of
regulatory laws.
interest group theory believes that occupations seek government
regulation to advance their own interests. Members of a particular
occupation or profession organize, usually by establishing a professional
association, which lobbies government for regulation. The primary
motives for seeking regulation, and thereby restrict practice to qualified
persons," is to improve the economic standing of the profession, increase
recognition of the profession in society, and further the development of
the profession (White, 1976). This view of regulation is grounded in the
"political market" model of government. Assumptions about the "public
interest" and private gain for special interest groups are key concepts.
Buchanan & Tullock (1962) applied this model to government in their study
of the political process. Elected officials want to be re-elected while
special interest groups are formed to gain more influence in the political
process. The result is an interplay of politicians and special interest groups
wishing to "maximize" their self-interests and forming the basis of a
market model of government.
Within this model, consumers, bureaucrats, and members of the
profession, and to some extent, taxpayers and members of related
professions engage in the process of "maximizing" their self-interests.
Typically, the more organized and larger a constituent group, the more
influence it will exert in the political process.
34


Economic theories of regulation assert that government
intervention is necessary to curb problems associated with market failure.
Market failure is the inability of the forces of supply and demand to
produce appropriate responses from consumers or producers (Sharp,
1986, p. 231). Stated another way, market forces fail to achieve the
optimum quality and quantity of a good or service. Harmon and Mayer
(1986) view the market perspective as the framing (of) institutional action,
not as a process of consciously coordinated collective action, but as the
interplay of interests, sometimes of groups, but more often of individuals"
(pg. 280). such a perspective interprets regulation as the result of market
failure. While the inability of individuals to choose mental health services
both as to quantity and quality creates the conditions for regulation, a
more fundamental problem exists in assessing the quality of a professional
service:
..information asymmetry causes the market to function
improperly, in particular, the nature of the product precludes
preconsumption tests and postconsumption evaluations. This
reflects the identification problem between failure on the part
of the individual practitioner and the fact that some diseases are
inherently risky (Weingast, 1980, p. 86).
Mental health services are prone to market failure because of
imperfect information"~providers all claim to offer high-quality care and
the consumer is unable to adequately assess the quality of a professional
service. Horowitz (1980) elaborates:
imperfect information is inherent in professional services which, by
nature of being highly specialized and requiring considerable
35


training, cannot be appropriately evaluated by most
purchasers....The best legal defense can result in the conviction of
an innocent person, and the worst legal defense can result in the
release of one who is guilty, lacking the expertise to judge service
quality with any confidence, the lay person will ordinarily enter the
professional-service market with great uncertainty as to the quality
of service to be received (p.8).
While consumers ultimately purchase a desired outcome from
professionals, rarely are they in a position to question the propriety or
quality of a specialized service, indeed, critical decisions are routinely
made by the professional or third party payers.
Length of treatment (quantity of service) is also a decision removed
from the consumer, in psychotherapy practice, such a decision is typically
driven by third party payers, usually insurance companies. As a result, the
"market" for mental health services is unable to achieve an optimum
balance between supply and demand. This theory argues that government
regulation is needed to offset the adverse consequences of market failure
by providing incentives or disincentives to produce or purchase mental
health care. The licensing of mental health professionals is argued as a
necessary governmental activity to protect consumers from market
failure.
social Stratification and Professionalization
The sociological concepts of social stratification and
professionalization are also useful in understanding the regulation of
occupations, social stratification describes a system of social relationships
that determines who gets what and why in society (Kerbo, 1983, pp. 10-13).
36
I


These social relationships define class status or divisions which group
individuals according to similar economic and political interests, social
class is determined by "position in the occupational structure, position in
the authority structure, and ownership of property or wealth" (Morrison,
1987, p. 179). Weber also referred to class as "position within the market,"
and power distribution in society (in Truzzi, 1971, p. 195). within the
context of "occupational structure" professions wield a certain amount of
economic and social power, such power explains the ability of
occupations to achieve a level of government regulation which maximizes
the social and economic standing of practitioners in society. The powerful
status of the medical profession in terms of economic wealth and social
influence is illustrative.
Greenwood (1957) discusses the attributes of a profession which are
necessary to achieve professional status. Those attributes include 1) a
systematic body of knowledge; 2) professional authority; 3) community
sanction, 4) ethical codes, and, 5) a culture (p. 45). This criteria is often
considered in the legislative "sunrise" process to determine whether a
profession should be regulated (DORA, 1989).
Barber (1978) defined a profession by its behavior and range of
professionalism:
Professional behavior is defined in terms of three essential and
somewhat independent variables: powerful knowledge, self-
control or autonomy, and public responsibility or direct service
to the public and the public welfare. An occupation is the more
professional the more it actually displays, not just claims to
possess, each of these three characteristics (p. 601).
37


And Horowitz (1980) defined a professional as one who has an
assured competence in a particular field or occupation," implying that a
review of educational, experience, or examination requirements precede
admission to the profession and are a necessary prerequisite to
competent practice. Although physical goods may be exchanged between
a professional and a client, the professions are generally referred to as
providing a specialized service" (p. 4). What distinguishes professions from
other occupations is the influence and power they possess in the social
world. Hauge (1980) explains this distinction:
Claims to esoteric knowledge and unselfish service have an
important result, namely authority and autonomy in dealing
with clients, two aspects of the crucial power dimension of
the professional role, it has been suggested that it is this
third dimension which really distinguishes professions from
other occupations (p. 63).
The process of achieving "professional status in society is
described as professionalization (Morrison, 1987, p. 182). This process bears
striking similarity to the social/psychological processes involved in
achieving legislation, social recognition of the profession, judged by its
value to the public and potential to cause harm if practiced improperly, is
central to the formation of a social role and achieving government
regulation legitimizes this identity.
Once established, professions allow individuals to move within a
social class or from a lower to higher class status. This vertical or
horizontal mobility can function as an education and economic barometer
38


of social power (Sorokin, 1959). The practitioner can move vertically either
ascending or descending one social stratum to another or horizontally as
in the transition of an individual from one social group to another in the
same level. Education and income level become key determinants of social
class and power.
The professionalization of occupations almost always involves
formal educational preparation and higher incomes for practitioners. As
society becomes more complex, we have witnessed an increase in the
number of occupations that seek professionalization. To achieve
governmental regulation is symbolic of establishing an identity and
becoming a professional. This results in significantly increasing the value
of an occupations services to society. Regulation not only restricts the
practice of an occupation by other providers, it confers social status and
recognition of the occupation to members of society. Tennov (1976), for
example, compared medical doctors, lawyers, clergy, psychologists, social
workers, nurses, college professors, police, plumbers, and librarians
against eight criteria defining a profession. The criteria were:
1) special training or acquisition of special skills;
2) special title or garb;
3) legal sanction;
4) monopoly of needed services;
5) ethical codes;
6) autonomy of practitioners;
7) national organizations; and,
39


8) mystique rrennov, 1976, p. 129).
Only medicine meets all of this criteria. Lawyers, clergy, and Ph.D.
psychologists meet all but one or two of the criteria, social workers meet
five of the eight criteria, and college professors meet two of the eight
criteria. This is consistent with more recent work by Phillips (1982) who
observed ....psychology cannot make a strong claim for professional
status at this time" (p. 920).
sociological criteria explains the process of professionalization
within the context of culture, technology, and societal change. These
forces shape the evolution of professions and create complex
relationships between and among related occupations. Phillips (1982)
definition of a profession seems to capture these relationships:
...a profession develops out of relationships among
society, training institutions, and practice settings. A
profession is an occupationally related social institution with
a high level of public trust that provides essential services to
society that are based on disciplines from which
technological Insights are drawn and applied skills are
obtained. However, this body of knowledge and skills is not
only specific to the profession and unavailable to lay
persons, it is acquired through protracted training that leads
to a lifetime commitment to competence and strong service
commitment. This is accompanied by accountability to the
profession and to professional associations that, although
socially accountable, function primarily to control standards
for admission to, and work in, the profession (p. 921).
What distinguishes medical doctors from other professionals is the
extent to which they have gained power and influence in political, social,
and legal institutions in society. Medical doctors have capitalized on the
40


social value of medicine to assume an exhalted status. The socialization of
medical students and their subsequent role as medical doctors reinforces
this status.
The physician is distinguished from others by his title. In the
hospital, his dress-white coat and stethoscope-set him
apart, in his own office, he stands out against the uniformed
underlings who surround him. sociological surveys have
indicated his discomfort when such visible clues to his
identity are missing. He is quick to identify himself as a
doctor in social situations, although for other reasons he
may be loath to reveal himself in public situations. Tennov,
(1976, p. 130).
While social factors ascribing high status to medical doctors are
important in explaining their influence on regulation of health services,
equally important is the political influence of the American Medical
Association (AMA). The AMA has lobbied to establish and maintain social
and legal sanctions to keep medicine within the exclusive province of
physicians, it remains one of the most active lobbies in Washington.
The social, political, and economic power of medicine combine to
wield considerable influence over federal, state, and local health care
policy, it is most influential in the adoption of regulations limiting the use
of allied health care occupations and regulating the professional conduct
of physicians. Tennov (1976) attributes the influence of medical doctors in
society to their political activities.
The medical profession has through its political activities
been awarded a total monopoly on the practice of
medicine, an undertaking which consists virtually of any
41


activities over which it appears feasible and profitable for
physicians to claim sole rights (p. 129).
Due to such monopolization of medical services, the public is deprived of
essential health care services. Thousands of lives and dollars would be
saved annually if nurses, recreation workers, policemen, para-medics,
teachers, and parents were trained in certain medical procedures.
Expanding the availability of medical skills, however, does not serve the
interests of the medical profession. Medical doctors have effectively
lobbied to prevent other occupations or persons from encroaching on
what they have defined as medical practice." in reality, nurses, policemen,
recreation therapists, teachers, and parents who are trained in basic first
aid or emergency medical procedures are engaged in the practice of
medicine. The medical profession has been forced to allow such practice
to deal with exigent situations requiring immediate medical intervention.
Hauge (1980), on the other hand, believes the prominence of
medicine in U.S. culture was established by the social elite:
Monopolization of scarce skills and knowledge became
possible through standardizing expertise and limiting
its transmission to exclusionary educational institutions.
...in 1910 the famous Flexner report revealed the short-
comings of proprietary medical schools, and they shortly
were forced to close. As a result, persons with limited
financial and status resources were shut off from their
only access to a medical career, while the well-to-do who
had been trained abroad or in prestigious Eastern
universities used academic requirements to gain a monopoly
of the field. Action to raise the quality of the training thus
also narrowed the gateway to the career and preserved
positions of power and privilege for the elite (p. 62).
42


With professionalization come issues of control and responsibility.
Legal malpractice suits, formal acceptance of alternative health care, and a
better informed public have demystified the power of professionals,
control of professional activities have historically been the province of
professional associations. Behavior was regulated by standards of practice
or codes of ethics promulgated by the professions. Many of these
standards and codes of conduct have been incorporated into state
regulatory laws and administrative rules. They have also been manipulated
by professionals to protect their interests, often at the expense of the
public. Haug (1980) explains such protectionism:
The sense of community which extends to limiting social and
recreational activities to persons in the same profession makes
revelation of misdeeds almost like betraying one's family and
friends, in-group solidarity thus has two consequencesa
reluctance to cast aspersions on a fellow professional's work, even
in private, and an even greater reluctance to allow any publicity on
deficient professional performance, except in the most extra-
ordinary circumstances (p. 66).
Consumers of professional services have been disenchanted by the
reluctance of professionals to acknowledge misconduct and lack of
accountability in the professions, particularly those in health care, law,
and psychotherapy. Barber (1978) suggests the erosion of public trust in
the professions has resulted in more opportunities for laypersons to be
involved in the regulatory process. While the professions have attained
social power and prestige unprecedented prior to the turn of the century,
they have also been criticized by a more educated consumer for
egregious acts of misconduct. The influence professionals have on the
43


quality of life for the average consumer has stimulated a need for more
layperson representation in the decision-making processes of professional
groups, in California, Colorado, and New Mexico, for example, layperson
representation on regulatory boards is legislatively mandated. Many of
these boards were formerly monopolized by professionals. Layperson
representation became a political solution to decision-making on
regulatory boards that was not in the public's best interests (Barber, 1978,
p. 599).
The involvement of lay members in the regulation of professions is
not only an attempt to hold professionals more accountable, but also
serves to demystify the power of professions by formally including them
in the process of regulation which has resulted in more complaints against
professionals and heightened awareness of the importance of appropriate
social controls. Hauge (1980) explains this involvement as the opposite of
peer regulation:
Accountability to the public is the opposite of peer control and
self regulation, it implies that lay persons rather than fellow
professionals will judge competency and integrity, and this runs
counter to the claim that professional expertise is so unique and
difficult to understand that only those trained in it should be
allowed to judge performance (p. 75).
Feldstein (1971) has identified four major complaints against
professionals1) professions have excluded too many from entry; 2)
autonomous expertise is anti-democratic; 3) professions make public
policy through their control of larger territories, and 4) the professions
have not delivered" (pp. 8-9). in short, there Is a cynicism by the public of
44


what professionals can do for them. The medical profession has fallen
short of providing health for the populace, the legal profession has not
delivered justice, and educators have been unsuccessful in preparing our
children for the future, in general, the professionalization of occupations
has failed to improve the public welfare. Such perceptions have made it
popular to include public representation on regulatory boards and
stimulated the need to more closely examine the efficacy of occupational
regulation.
Legal Theory of Regulation
The legal theory of regulation is based on three fundamental legal
values-procedural due process, equal protection of the laws, and equity.
The Administrative Procedures Act incorporated by most local, state, and
federal agencies outlines due process as providing notice of intended
state action, an opportunity to respond to any charges, and an impartial
hearing to resolve any charge. Equal protection of the laws embodies the
fair and impartial application of the law to individuals. And the concept of
equity, while related to equal protection and due process, encompasses
the notion of justice and fundamental fairness (Rosenbloom, 1989, p. 25).
The regulation of a profession recognizes that government
authorization to practice that profession is tantamount to a property
right (Rubin, 1980, p. 44, Shimberg, 1982, p. 15). Such authorization
excludes others from professional practice and confers certain rights and
responsibilities on the practitioner. Under this theory, government cannot
45


authorize or prohibit someone from professional practice without due
process. The power to exercise such action by government raises,
according to cooper (1993), the classical constitutional arguments over
administrative legitimacy" (p. 578). it also connects licensing and
regulation to the Bill of Rights and the Fourteenth Amendment (Easton,
1978).
Legislative delegation of rule-making and adjudicative authority to
administrative Boards and commissions concerns the fundamental
constitutional question of separation of powers (Easton, 1966). This
argument claims that rule-making and adjudicatory functions of
government are separate activities under the constitution and both state
and federal legislative bodies cannot delegate such functions to executive
branch agencies. The claim is also made that such delegation is an abuse of
legislative power. The Supreme court dealt with this argument in Field vs.
Clark (1892), Butterfield vs. Stranahan (1904), united states vs. crimaud
(1911), and J.w. Hampton, Jr. & Co. vs. united states (1928), affirming the
authority of the legislative branches of state and federal governments to
delegate rule-making and adjudicatory functions.
The legal rationale for government regulation is seen in industries
that directly effect the public interest. Between 1877 and 1934, those
industries included suppliers of gas, electricity, water, transport services,
grain elevators, banks, and insurance companies (Kahn, 1970, p. 3). in each
of these industries, the greater public interest superseded the economic
interests of entrepreneurs.
46


A series of supreme court decisions beginning with Munn vs. Illinois
(1877) laid the framework for government regulation, in Munn, the court
held thatn a business was a thing of public interest and use," thus
authorizing government to intervene in matters that affect the public
interest. An 1886 case stimulated a push for national government
regulation by forbidding states from regulating railroad rates if the traffic
was part of an interstate movement (Wabash vs. Illinois). And in Nebba vs.
New York, the court held that no constitutional barriers to government
regulation existed, "provided it served the public interest." The Court said;
" a state is free to develop or adopt economic policy which may
reasonably be deemed to promote public welfare and to enforce policy
by legislation" (in Kahn, 1970, p. 7).
cited as the grandfather of all professional licensing cases, Dent vs.
west Virginia (1889) authorizes states to set professional licensing
standards upon which the public may rely. This case concerned the state's
authority to set criteria for professional practice and upheld a jury verdict
finding Dent guilty of practicing medicine without a license. The courts
reasoning in this case laid the foundation for subsequent regulatory
authority over professional occupations:
it is undoubtedly the right of every citizen of the united States
to follow any lawful calling, business, or profession he may choose,
subject only to such restrictions as are imposed upon all persons of
like age, sex, and condition. This right may in many respects be
considered as a distinguishing feature of our republican
institutions. Here all vocations are open to everyone on like
conditions. All may be pursued as sources of livelihood, some
requiring years of study and great learning for their successful
prosecution. The interest, or, as it is sometimes termed, the
47


estate," acquired In them-that Is, the right to continue their
prosecutionIs often of great value to the possessors, and cannot
be arbitrarily taken from them, any more than their real or
personal property can be thus taken. But there is no arbitrary
deprivation of such right where its exercise is not permitted
because of a failure to comply with conditions imposed by the
state for the protection of society. As one means to this end, it has
been the practice of different states, ...to exact in many pursuits a
certain degree of skill and learning upon which the community
may confidently rely; their possession being generally ascertained
upon an examination of parties by competent persons, or inferred
from a certificate to them in the form of a diploma or license from
an institution established for instruction on the subjects, scientific
and otherwise, with which such pursuits have to deal. The nature
and extent of the qualifications required must depend primarily
upon the judgment of the state as to their necessity, if they are
appropriate to the calling or profession, and attainable by
reasonable study or application, no objection to their validity can
be raised because of their stringency and difficulty (p. 44).
in 1921 Justice Brandis specifically included administrative boards as
the forum to determine professional qualifications:
The subjects of which one must have knowledge; the extent of
knowledge in each subject; the degree of skill requisite, and the
procedure to be followed in conducting the examination; these are
matters appropriately committed to an administrative board (in
Reaves, 1990, p. 4).
Justice Brandis examined the State of Washington's legislative delegation
of the authority to determine fitness to practice dentistry to the Board of
Dental Examiners, Douglas vs. Noble, (1921). schware vs. Board of Bar
Examiners, (1959) held that any standard of qualification must have a
rational connection to the applicants fitness or capacity to practice a
profession. Withrow vs. Larkin, (1975) a supreme court case, upheld the
constitutionality of statutes and or agency rules which allow an
administrative Board to perform investigative and adjudicative functions.
And Atwell vs. Nichols, (1979), found that requiring a qualifying
48


examination after graduation from law school did not violate an
applicants constitutional rights. A Colorado case, cross vs. Colorado Board
of Dental Examiners, (1981) expanded the Boards authority to assert
jurisdiction over a licensee who attempted to divest the Board of
jurisdiction by surrendering his license. A professional accused of
misconduct cannot surrender his/her license to avoid regulatory sanctions.
Early cases cited above set the stage for the development and
evolution of administrative agencies through statutory creation of various
regulatory programs. This development also lead to the establishment of
an administrative law specialty within the practice of law. Congress has
passed and continues to pass legislation regulating the behaviors of
almost every major industry in the united states. The proliferation of
various government regulations at the local, state, and federal levels have
created what some refer to as the "fourth branch of government"
(Shimberg, 1982, p. 19). Administrative agencies have broad discretionary
powers to develop, apply, and enforce regulations. They also engage in
the three main functions of government by adopting regulations which
have the same force and effect as law, administering those regulations,
and taking corrective action against those who do not comply with the
law or regulations. This quasi-executive, quasi-legislative, and quasi-judicial
decision making power sets administrative agencies apart from any one
branch of government, although most are housed in the executive
branches of local, state, and federal agencies.
49


Since the courts have determined occupational licenses are a
property right, the whole panoply of legal protections must be afforded
to licensees. This creates administrative problems for regulators similar to
those encountered in the criminal justice system. Due process is time-
consuming and expensive, it would be impractical for the regulatory
agency to schedule an impartial hearing for every therapist charged with
misconduct. The administrative burden and expense of such a policy
would paralyze the regulatory process, as a result, the agency is motivated
to develop methods to encourage alternative processing of complaints
and license disputes, in Colorado, this has resulted in the use of stipulated
injunctions, mediation, and restricting practice as alternatives to license
suspensions or revocations which require due process hearings, use of
such alternatives also appears to lower the cost of regulation for
taxpayers and licensees.
Due process, equal protection of the laws, and equity are themes
constantly played out in the federal and state courts. The application of
constitutional and statutory principles to regulation provides a legal
framework which governs the day to day operations of an administrative
body, since the law is dynamic and evolves over time to conform to the
values and beliefs of the electorate, it imposes a powerful influence on
administrative behavior in regulatory agencies, as Lewis (1991) states,
Public managers are obligated to implement and comply with the law.
Failure to do so is a legal and ethical violation. The Law draws boundaries
around public power (p.32).
50


special interest Group_Theorv
The process of determining whether a profession should be
regulated or not is played out in the legislative arena by special interest
groups. Special interest group theory proposes that:
1. individuals with common interests ban together formally or
informally to press their demands upon governments.
2. individuals are important in the political process only when they
act in groups which pursue their interests.
3. The group becomes the essential bridge between the individual
and the government.
4. Public policy is the equilibrium reached in the group struggle
which is then legitimated by the government acting as a
legitimator and scorekeeper.
5. The equilibrium is determined by the relative influence of
interest groups (Milward, 1978, p. 10).
This model of policy analysis formation had its origins in theories
proposed by Bently (1949), Truman (1954), and Dahl (1961) who viewed
government policy as the end-product of interest group philosophy,
interest group organizations include organized labor, private business,
federal, state and local governments, service provider organizations,
researchers, advisory groups, and the courts (Ripley & Franklin, 1982, p. 14).
Government programs also create new interest groups based on
the interests that are created or revealed by the existence of the program
itself, in Colorado's mental health regulatory arena several interest groups
were created with the passage of the mental health practice act. The
51


Colorado Association of Psychotherapists was formed in 1992 to lobby for
the interests of non-licensed psychotherapists. Professional Associations
with national headquarters, also established chapters in Colorado. The
Colorado Association of Marriage and Family Therapists and the Colorado
Mental Health counselors Association were developed to protect licensure
and lobby for the regulation of marriage and family therapists and
professional counselors respectively. The Colorado Psychological
Association and National Association of Social workers, already established
special interest groups, renewed their efforts to maintain certain benefits
of licensure not enjoyed by the new disciplines such as mandatory
insurance reimbursement and 72 hour mental health hold authority. Both
of these groups, understandably, lobbied against the passage of the 1988
mental health practice act.
in Colorado, a hierarchy of psychotherapy has evolved which
explains much of this infighting and opposition to a level playing field"
for providers. Psychiatrists remain at the top of the hierarchy with
unlicensed psychotherapists at the bottom. This hierarchy has been
created, to a measurable extent, by the various licensing laws which
reflect training and education required of the professions, as well as how
long each has been licensed. Since it takes longer to become a psychiatrist
than a psychologist and longer to become a masters level social worker,
professional counselor, or marriage and family therapist than a non-
licensed therapist, the rights and privileges of regulation are limited
accordingly. Swenson (1993) suggests this phenomena is related to
52


attempts by the professions to legislate broad scope of practice
provisions:
Each profession seeks to obtain the rights and privileges of the
profession above it in the hierarchy and to deny access to exist-
ing rights to professions traditionally judged lower on the ladder.
Because of competing financial interests and each professions
belief that its members qualify to render a range of services,
the struggle continues over the permissible scope of practice
for each profession (p. 132).
Government interest groups were also influential in shaping
mental health regulation. The Colorado Department of Regulatory
Agencies spearheaded this effort with alliances from the Colorado
Department of social Services, the Department of corrections, and the
Department of institutions, other organizations such as the Colorado
Mental Health Association, local community mental health centers, and
victim advocacy groups also participated.
The influence of special interest groups in the law-making process
is uncontroverted and the impact of special interest groups is often
underestimated. While it is difficult to determine the extent to which
mental health, consumer, and governmental interests shaped the
formation of mental health occupations regulation, it is not surprising
that consumer groups played a minimal role in passage of the Colorado's
Mental Health Practice Act. A review of senate journal entries and hearings
before the Health, Education, and welfare Committee in the House reveals
that the overwhelming majority of testimony was presented by the
professional associations. Public protection as the primary goal of
53


regulation appeared to be couched in policy positions aligned with the
interests of the professions.
summary
Ultimately, the public, through their elected officials, decides
whether regulation is necessary. Regulatory theories provide explanations
which account for the phenomena of regulation but each has its
limitations, indeed, regulatory theory is very much in its infancy and
borrows considerably from the fields of economics, political science, law,
and sociology, understanding the theoretical underpinnings of regulation
requires an appreciation of sociological, economic, political, and legal
constructs, it also requires an awareness of the power bases in
government and how to influence public policy at the more applied levels
of interest group representation. Lobbyists are astutely aware of political
power bases and the processes involved in gaining influence with key
players in the legislative process. The passage of the Mental Health
Practice Act relied to a significant degree on the work of lobbyists for the
various professional organizations, indeed, interviews with former
lobbyists for various professional associations suggests that the Mental
Health Practice Act would not have passed but for the efforts of key
lobbyists.
Within the political and economic theories of regulation, the
influence of special interest groups in achieving regulation cannot be
overstated. Rarely does legislation pass on the basis of empirical data
54


alone, special Interests, particularly those of an organized profession, are
critical to the formation and administration of regulatory policy.
Professionalization and licensing have combined to sell an image of the
professions as trustworthy."
Licensing procedures are mechanisms against alternative
claims to knowledge by interlopers and help to guard
the monopoly. Ethical codes justify trust, as they codify
the service ideal and promise that the interests of the
client will supersede the concerns of the practitioner,
indeed, one of the stated goals of specialized training
is to produce practitioners who have internalized the
norm of trustworthy service as part of their achieving
professionalism (Hauge, 1980, p. 63).
Since the benefits of regulation are often of greater importance to
the professions than the public, the appropriate level of regulation is
indirectly determined by the professions through the legislative process,
occupational regulation oftentimes exists solely because of special interest
group pressure on the legislative process. Rarely is the public so outraged
or exploited that consumer groups lobby for regulation. For most
professions regulation has been used as a shield to protect practitioners
from disclosure of harmful acts or embarrassing information. The public
has no right to know, for example, whether the medical doctor who will
be treating them is being treated for an alcohol or drug problem.
Malpractice settlements or judgments against health care
professionals are also kept out of the public eye through regulatory laws
or rules established by regulatory agencies, central to this process are
elected officials. Legislators and, more importantly, the process whereby
55


legislators are Influenced to support or oppose special interests, becomes
the focal point of regulation.
in addition to legislators, other major players in this process include
government administrators and taxpayers. The public, for whom
occupational regulation is created, rarely seeks regulation and is to a
certain extent silent in the development and adoption of regulatory
policy. Special interests are constantly played out in the political process
which must continually balance its objectives with the "public interest,"
and the professions. This creates a process whereby choices are made
among diverse special interest values with the professions assuming a
dominant role. Mediating value choices is the nature of politics and as
Michael Reagan (1987) notes, a struggle to see who will decide and who will
win the contest of values" (p. 2).
Once the professions values are integrated through regulation, the
professions continue to influence the administration of those regulations
under the aegis of state government. Professional members, for example,
are appointed to Boards and commissions which oversee the profession.
Boards and Commissions are accountable to the Governor of the state or
the state legislature or both. Members are selected from the professional
occupation and the general public with professional members usually
comprising the majority. The Boards and Commissions are fully
empowered to administer the regulatory program, in doing so, they walk
a tightrope between politics and administration. This balance is often
achieved by resolving competing values between government and the
56


professions. The value of public protection may be compromised to
support the value of professional standing in some occupations or it may
compete with values of government efficiency and effectiveness.
Government regularly engages in mediating competing values
within parameters set out by Local, State or Federal laws. The degree to
which discretionary choices are made becomes the applied standard for
government policy, some have referred to this process as finding the
"proper relationship" between politics and administration (Denhart, 1989,
p. 109). Regulation remains a continual balancing of public and
professional group interests with the efficiency objectives of government.
57


CHAPTER 3
METHODOLOGY
introduction
This study is qualitative in design and utilizes a descriptive case
study method. The major issue under examination is creation of the
Mental Health Practice Act, best described by the language of the Act
itself a Bill concerning the practice of occupations relating to mental
health, and in connection therewith creating regulatory agencies for the
licensing and discipline of practitioners thereof, Fifty-sixth Colorado
General Assembly, senate Bill 87-38, (1987). within this framework, an
emphasis on special interest group influences and the processes leading to
the formation of mental health occupations policy are examined.
The value of the case study as a research method for subjects
dealing with events or processes has been emphasized by a number of
investigators (Campbell, 1979; Miller, 1986; 1988; Patton, 1990; Yin, 1984). it
is particularly useful in examining historical events or processes which
cannot be replicated for analysis. The fifty-sixth session of the Colorado
General Assembly occurred in an era of regulatory restraint by local, state,
and federal agencies. Against this backdrop, the question of most
importance is why senate Bill 87-38 failed but HB 88-1026, substantively
identical to SB 87-38, passed? This bill continued the regulation of
psychology and social work, and established new regulation over marriage
58


and family therapists, professional counselors, and unlicensed
psychotherapists, it also shifted the emphasis of regulation from licensing
practitioners to the discipline of practitioners. To adequately examine this
event requires a method that explores, depicts, and analyzes the
processes responsible for passage of such legislation. Among the several
methodological approaches to this examination, the case study method
allows for maximum utilization of archival data, interviews with key
informants to corroborate information, and inspection of the historical
events culminating in the passage of the Mental Health Practice Act.
The use of the case study method by investigators representing a
broad range of disciplines is well established (Kazdin, 1980; McAdams &
ochberg, 1988; Miller, 1986; Hoaglin, et. al., 1982). While its use is
predominant in the social sciences, case study methods are becoming
more frequent in the biological and physical sciences. Limitations of
logical-positivist models of research and advances in the physical sciences,
particularly in areas such as quantum physics have shifted attention to
alternative research practices (Zohar & Marshall, 1994).
selecting a case study approach is undertaken when the topic to be
studied is so complex that the investigator must probe beyond the
boundaries of quantitative analysis, it is an inductive form of research that
is employed when the research focus is on "an analytic description of an
event, a process, or a program" (Hoaglin et. al., 1982).
The phenomena of regulation is not readily reducible to
programmed analysis, it is as Reagan suggested a political process where
59


judgmental dimensions and value choices supersede the logical analysis of
economic facts and the deduction of regulatory goals based on scientific
principles (Reagan, p. 2,1987). occupational regulation is the exercise of
political power by special interest groups desiring greater economic
security and maintaining or enhancing professional identity. The political
process and regulation do not rely exclusively on objective analysis and
technical expertise to establish policy. They do involve the formation of
political relationships between and among legislators, private industry,
government officials, the public, and special interest groups. The
systematic examination of these relationships and their influence on
establishing public policy form the framework of this study.
in contrast to a direct examination of the political processes which
culminated in proposing senate Bill 87-38 and its subsequent revision in HB
88-1026, this study explores the influence of key players, situational
events, and historical data in the formulation of regulation in general and
mental health occupations regulation in particular. The units of analysis
include the processes involved in mediating special interest concerns,
relationships between and among key participants, and historical events
that shaped the outcome of Senate Bill 87-38 and HB 88-1026. Like the
majority of state legislation, the outcome of state policy is mediated by
special interest groups involved in the political process, in short, this study
systematically examines the politics of regulation through the creation of
the Colorado Mental Health Occupations Practice Act (Senate Bill 87-38 and
HB 88-1026).
60


The Construct of Regulation
one of the major concerns in the field of regulation is the degree
to which government should intervene in the private affairs of people.
The extent of government intervention ranges from none through
registration to certification to licensure, in the majority of state
jurisdictions, licensure is the most restrictive form of regulation (CLEAR,
1994).
Based on the underlying assumptions of specific theoretical
constructs, regulation may be viewed either as a cause" or effect" of
government intervention. Economic theories, for example, assume that
market failure results in regulation, thereby placing the focus on the
effects" of regulation, while politicaMegal theories make no assumption
of market failure. Morrison describes sociological explanations for
regulation as:
regulation (that) results from deliberate action intended to result in
(or prevent) regulation as an outcome. Regulation results from
positive action, but it is not the only variable of interest. Factors
other than regulation are also included in the professionalization
process; regulation is a necessary but not sufficient 'cause' of the
sociolegal product 'profession'" (Morrison, 1987, p. 209).
Regulation is treated in this study as a cause" of government
intervention. The states primary interest in regulation is to protect the
public health, safety, and welfare through regulation. Professional
associations, on the other hand, focus on the effects of regulation in
advancing the professions standing in society and the marketplace, while
61


public administrators are concerned with the effects of regulation on
organizational goals and objectives. Political decision making must balance
these interests as well as the interests of other constituencies in the
legislative process.
The process of regulation is explored primarily from the
perspective of socio-legal theories of regulation. The variables, factors,
and events which resulted in the need for reform of mental health
occupations regulation in Colorado are given primary attention through
analysis of the shift in regulatory policy from causes' of regulation to the
effects" of regulation.
Research Design
Yin (1984) defines a case study as an empirical inquiry that
"investigates a contemporary phenomena within its real-life context;
when the boundaries between phenomena and context are not clearly
evident; and in which multiple sources of evidence are used" (p. 23). He
also believes it is the method of choice when projects, programs, or
processes" are the phenomena under study (Yin, 1993, p. 3).
This study examines "why" the Colorado Legislature departed from
a traditional model of mental health occupations legislation and created
the Mental Health Grievance Board and a bifurcated system of regulation.
no other governmental entity in the developed countries has such a
system. The emphasis of this system and corresponding expenditure of
resources is clearly on the disciplinary functions of regulation, in Colorado
62


the typical expenditure of program dollars is approximately S131,577 (20%)
for licensing functions and $527,048 (80%) for disciplinary activities, in
contrast, a typical state jurisdiction spends approximately 6070% of its
appropriations on licensing functions with the remaining 3040% on
disciplinary activities (DORA, 1991).
A comparative case study, therefore, is not appropriate because no
other state uses the same approach to mental health occupations
regulation. Colorado is unique both in its scope and authority to regulate
licensed and unlicensed psychotherapy practitioners. The majority of
states grant licensing and disciplinary authority to one body, usually a
Board or commission. Budgetary resources are expended on activities
judged as most important to the regulatory body, in almost all states,
there is an emphasis on licensing activities as opposed to disciplinary
functions with corresponding expenditures for each function. This
phenomena, when examined within the context of traditional regulatory
systems, accounts for disciplinary variations among state jurisdictions. Of
note, is that members of the regulated profession dominate the
composition of regulatory Boards and commissions in other states, when
the structural emphasis of regulation is licensing, disciplinary activities are
subordinated to the main function of qualifying individuals for
independent practice.
The separation of licensing and disciplinary functions in Colorado
resulted in a restructuring of the Boards and a more prominent role for
members of the lay public. While two of the seven licensing Board
63


members represent the public, an equal number of public member
representatives, (four of the eight) sit on the Grievance Board. This adds
an important dimension to the process of neutral deliberation when
findings of fact and administrative sanctions are discussed, such a
structure weakens the perception that professionals who sit in judgment
of other professionals are likely to give more weight to the responses of
their colleagues in disciplinary matters.
The case study method is used to explore the reasons for a radical
change in Colorado mental health occupations regulation, it is a distinctive
approach to empirical inquiry and has been endorsed as the preferred
approach when "how and why" research questions are being posed (Yin,
1984). Cozby (1993) further supports use of a case study approach for this
topic by indicating "case studies are valuable in informing us of conditions
that are rare or unusual and thus not easily studied in any other way" (p.
56). Another advantage of the case study approach is that it allows the
investigator to examine the "meaningful characteristics of real-life events"
(Yin, 1984, p. 14).
The single case study design is used because it allows for the
analysis of information about a single process at a given point in time. The
identical political, administrative and legal conditions under which the
state Grievance Board and Colorado's mental health occupations
regulation was formed are unlikely to be repeated. Moreover, this design
has the utility of answering descriptive questions and describing events
and conditions from many points of view (US-GAO, 1991, p. 43).
64


This study explores the following issues: 1) the Colorado mental
health occupations regulatory process; 2) historical events that led to the
formation of the State Grievance Board; 3) special interest group positions
on regulation; 4) statutes, Rules, and policies related to mental health
occupations regulation, and 5) the role of the Colorado Department of
Regulatory Agencies in mental health occupations policy formation. These
issues keep the focus of the study on descriptive events and analysis of
Colorado's mental health occupations regulatory processes.
Research Questions
Since this study describes an event-the creation of the Colorado
Mental Health occupations Regulation Act- and a situational phenomena-
the regulatory process, it is important to focus the study questions on the
formation of legislation and the factors, events, relationships, and key
players involved in that process. The first question concerns itself with
"why" the Colorado Legislature created a bifurcated system of mental
health regulation while the second question is concerned with the relative
influence of key participants, historical events, and extraneous factors
which contributed to the formation of mental health occupations
legislation. A systematic analysis of the legislative and executive processes
of government is needed to address these questions.
Specifically, this study investigates the following:
1. Why was the Colorado Mental Health Occupations Act
created?
65


- What problem was the legislature seeking to solve?
- Who were the special interest groups and did they
support or oppose the Act?
- Why is this method of regulation unique?
2. What factors or events lead to the formation of SB 87-38
and its subsequent revision in HB 88-1026?
- who were the key players?
- What issueis) were of primary concern to policy-
makers?
- was there a compelling need driving this
legislation?
These questions provide the foundation for analysis of the political
and administrative processes involved in creating mental health
occupations legislation with principal attention to the influence of special
interest groups and the executive branch processes of administrative
decision making.
Sources of Data
Processes involved in creating occupational regulatory programs
and policy are explored in this study with the majority of data collected
through interviews and document analysis.
interviews, several individuals and persons representing various
special interest groups were involved in the passage of the Mental Health
occupations practice Act of 1988 and its subsequent sunset review in 1992.
66


As explained by Marshall & Rossman (1989), Leedy (1980), corden (1975), and
Mishler (1986), in-depth interviewing of key players in the 1988 legislative
process is used to obtain first-hand information about the efforts,
strategies, and interests which were played out in the legislative process.
The following persons and organizations were interviewed to identify the
role each played in passage of the 1988 Mental Health Practice Act and
sunset review of that legislation in 1992.
1. Former state Representative and House Sponsor of HB 88-1026,
Jerry Kopel.
2. Former state senator and senate sponsor of SB 87-38, Steve
Durham.
3. State Representative Dorthy Rupert, a cosponsor of HB 88-1026.
4. Charlie Hebler, former Colorado Psychological Association
lobbyist
5. Peter and Beth Minihan, former social work lobbyists.
6. Diana Orf, Colorado counseling Association lobbyist
7. Leo Boyle, former Marriage & Family Therapist lobbyist.
8. Dr. Evelyn Bassoff, psychologist involved in drafting of SB 87-38
9. Cary Smith, former president, Colorado Association of
Psychotherapists.
10. Bruce Douglas-Colorado Department of Regulatory Agencies
11. Teresa Donahue- Former Director of Policy and Research,
Colorado Department of Regulatory Agencies.
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Documents. Documents were collected to cross-validate interview
data and keep the focus on legislative issues involved in creating the
Mental Health Practice Act. Organizing documents by categories, themes,
and patterns as explained by Marshall and Rossman (1989) and Patton
(1990) was used to provide an accurate account of legislative and
regulatory processes. The following documents were examined:
1. Archival documents- House and Senate Journal Reports.
Transcripts of testimony before the House and senate Health,
Environment, Welfare, and institutions committees in 1986,1987, and
1992.
2. Letters and Memorandums-written communications between
the Colorado Department of Regulatory Agencies, Legislative Sponsors,
and special interest group representatives were reviewed and analyzed.
3. Technical Reports sunrise Reports for the Professional
counselors and Marriage and Family Therapists. Sunset Reports for the
Board of Psychology Examiners and Board of social work Examiners were
reviewed to provide historical data concerning the need for regulation of
these groups.
4. Media information- News clippings collected by a private
clipping service and on file with the Colorado Department of Regulatory
Agencies. Press announcements and other media information were used
to establish an accurate chronological account of issues in the regulation
process.
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According to Marshall and Rossman (1989) a history is "a method of
discovering, from records and accounts, what happened in the past"
(1989, Pg. 95). A historical analysis method was used to frame an accurate
account of the Colorado legislative process in 1988. The political climate in
1988, influenced to a significant extent by a republican dominated
legislature, was supporting deregulation efforts as opposed to developing
new regulatory programs. A critical question this raised is how the Mental
Health Practice Act, which constitutes a new regulatory program, was
adopted in this anti-regulatory climate. The historical data method
provided for a systematic examination of interview information and
document analysis to address this question. Documents were also used to
organize and classify data to find common themes or meanings (Pogrebin,
et. al., 1992).
Qualitative Research Measures
Experimental and quasi-experimental methods of social research
have been accepted as serious forms of social inquiry far longer than have
qualitative approaches (Lincoln, 1995, p. 275). indeed, the issue of
methodological rigor between quantitative and qualitative methods
continues. Generally, the trustworthiness of research lies in its ability to
make sense" of the data. Qualitative approaches are criticized for not
utilizing the tools of statistical inference and other generally accepted
methods of social science research to make sense of interpretive inquiry.
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Qualitative methods are employed when the researcher is
examining a phenomena which is difficult to capture within the confines
of an experimental or quasi-experimental approach. The units of analysis
are dynamic with multiple constructs and sources of data. But the factor
which distinguishes qualitative research from the more accepted
quantitative approaches is its concern with process and description as
opposed to control and prediction.
Qualitative research is conducted not to confirm or
disconfirm earlier findings, but rather to contribute
to a process of continuous revision and enrichment
of understanding of the experience or form of action
under study (Elliott et al., 1994).
Criteria of internal validity, external validity, reliability, and
objectivity are not discounted in qualitative research. They are thought of
in similar terms- internal validity speaks to the coherence of the study,
external validity to isomorphic qualities of the study, reliability to
replicability and objectivity to value-free research (Lincoln, 1995, p. 277).
internal validity measures examine whether there is a causal
relationship between two established variables, since the number of
variables exceeds the number of data points in this study, internal validity
measures are not applicable to the descriptive case study approach (Yin,
1993 p. 32). However, other measures of validity such as face validity,
criterion validity, and construct validity are applicable. Bailey (1982, p. 70)
notes that face validity is "ultimately a matter of judgment" it is assessed
by the researchers evaluation of the concept under examination and
70


determining, In his or her best judgment, whether the method of Inquiry
arrives at the concept adequately, in this study, structured interviews with
key players and content analysis of legislative and executive branch
agency documents form the primary method of data collection,
information or documents that relate to the formation of regulatory
programs are presumed to have face validity, that is, they are written or
narrative accounts of the phenomenon under study.
Criterion validity is established by multiple measurement of the
same concept, subject matter expert interviews and a systematic analysis
of documents including letters and memorandums, technical reports, and
news media accounts were used to study the regulatory process.
Multiple data sources enhanced the reliability of interviews and
allowed for a wide variety of information. While no causal relationship
between this information and policy making can be established, multiple
data sources create a database for further and more in-depth exploration
of specific variables or issues. Multiple sources of evidence also addressed
problems of construct validity, conclusions drawn from multiple sources
of evidence are more convincing and likely to be more accurate than
those drawn from a single source (Laub, 1991). Yin (1984) also supports the
use of multiple sources of evidence to establish construct validity in
descriptive case studies, conceptually this study is an account of the
mental health occupations regulatory process, it describes the passage of
state legislation and, ultimately, how that legislation was transformed into
a program, constructs related to law, regulatory policy, public
71


administration, and the political process form the foundation for this
analysis.
Since the researcher has been employed by the Department of
Regulatory Agencies since 1988 in both an investigative and administrative
capacity, the question of interpretive errors or potential bias is present.
Establishing reliability measures minimizes errors in judgment or potential
biases of the investigator. Yin (1984, p. 64) identified four elements
needed to assure reliability of the case study methodology. They are; 1)
overview of the case study project; 2) case study questions; 3) field
procedures (access to study sites,1 general sources of information, and
procedural reminders); and, 4) guide for the case study report (outline,
format for the narrative, and specification of any bibliographical
information and other documentation).
The creation of a case study data base allows for the organization
and documentation of the data collected for the purpose of enabling
other investigators to access the data directly via a formal, retrievable
data base. This increases the reliability of interview information and
provides for a systematic interpretation of document sources. The data
base for this study consisted of transcripts of interviews and organization
of documents by primary and secondary sources of data. Fischer (1970),
and Marshall and Rossman (1989), recommend such an organizational
scheme to enhance credibility of case studies.
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Limitations ome.pescriPtiyg.gase Study-Method
While no research method is flawless, traditional experimental
methods attempt to narrow ail possible explanations for an outcome by
disproving the null hypothesis, causal explanations are anchored in
statistical measures of probability and conclusions are articulated within
established degrees of certainty. The political process and nature of
regulation are viewed as phenomena subject to the manipulation of causal
variables with determinant outcomes. Experimental and quasi-
experimental methods assume that any phenomena can be studied
within the boundaries of quantitative analysis. Qualitative methods, on
the other hand, allow the researcher to probe beyond the boundaries of
statistical analysis. Using a single case study design to explore the political
process also has its research limitations. First, the use of a qualitative
approach does not lead to any conclusions of the phenomena under
investigation (Wolcott, 1990, p. 55). An examination of the processes,
factors, and historical events which culminated in the Mental Health
Practice Act and its sunset review in 1992, is limited to descriptive analysis.
Although triangulating sources of data is used to mitigate the effects of
fallible human memory, the study relies primarily on documents which
may or may not be thorough in their treatment of specific issues and
accounts provided by key players in the legislative process, some of the
individuals interviewed were more articulate than others, some were
willing to reveal more information, and some had more direct knowledge
of the political process and were capable of providing detailed insights
73


and better information, second, the number of key players Interviewed is
small. This was done primarily as a result of the involvement or knowledge
each player had about SB 87-38, HB 88-1026, and/or hb 92-1034 and the
importance attached to each player by the researcher. While interview
criteria focused on sponsors of the bill, professional association lobbyists,
and government administrators; no representatives of consumer groups
or individuals representing other special interest concerns such as the
medical establishment, health insurance industry, or alternative health
care professions were interviewed. The extent to which any of these
groups influenced the creation of mental health occupations regulation is
presumed to be negligible because they are not identified in any of the
collateral data sources. Transcripts of testimony before the senate and
House, Health, Education, and Welfare Committees refer to these groups
indirectly and only within the context of debating fee issues. Third, this
study examines one specific area of regulation. A multiple case design, for
example, may provide greater support in establishing common themes
and better analysis of the political process by comparing tactics and
strategies used to pass controversial legislation. Such an approach also has
the potential to yield other salient issues which could only be revealed by
expanding the number of interviews to key players in other areas of
health care regulation. Fourth, a descriptive analysis is limited to events,
processes and situations which cannot be replicated and are subject to the
interpretations of informants and the researcher. The pitfalls of selective
reporting and researcher bias using key informant interviews are matters
74


which need to be recognized, written data and accounts are limited to
what the authors of that data report. Meanings given to various concepts
by interview subjects are almost always imprecise and the investigator is
likely to give more weight to ideas that fit his/her theory. While
triangulating data sources improves the reliability of information, the
predilections of interview subjects and the researcher should also be
recognized. Fifth, generalizability of themes found in single case studies is
problematic. Although accurate accounts of the experience of key players
in the political process enhances generalizability, informants are not
chosen on the basis of representativeness, but as Simon explains because
they can illuminate the phenomena understudy" (Simon, 1990, p. 145).
Results of such research, therefore, can qualifiably be inferred to the
population of policy makers in state legislatures and public administrators.
SUMMARY
The primary focus of this research is to identify and describe the
political processes which resulted in Colorado's unique system of mental
health occupations regulation, in 1955, Marver H. Bernstein wrote:
Determination of regulatory goals does not result from the logical
analysis of certain economic facts, nor is it automatically deduced
from a set of propositions concerning the nature of the political
state and the proper boundaries of political action in a democratic
society (p. 258).
Regulatory goals are political in nature and may not be arrived at using
only scientific principles. Michael Reagan (1987) suggests reguiation is "at
75


least as much political as it is technical, with political meaning concerned
with the allocation of values in society" (p. 2).
using the single case study method, this research provides an
account of the political processes involved in creating mental health
occupations regulation. Results of this account can be generalized to the
formation of regulatory policy in emerging health care occupations.
Alternative health care providers such as nurse midwives, acupuncturists,
naturopaths, and physician assistants are experiencing, to varying
degrees, the same political hurdles as the heretofore established
occupations in seeking recognition as regulated enterprises. For any of
the professions, achieving occupational regulation is evidence that the
public may benefit from the services of that profession, it also establishes
a formal mechanism whereby unqualified competitors can legally be
excluded from the practice of the regulated profession. The major
assumption in this study is that economic and professional benefits of
regulation far outweigh any costs associated with achieving regulation.
This account of the regulatory process highlights the proposition
that administration and politics are inextricably linked in the public sector.
Public administrators cannot implement the will of the people" without
an understanding of policy formation and the influence of politics on
administration.
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CHAPTER 4
A HISTORY OF PSYCHOTHERAPY REGULATION IN COLORADO
The regulatory process consists of a complex interplay of
relationships between the legislative, judicial, and executive branches of
government and private sector interests, it is, in essence, the application
of policy-making which has been referred to by Reagan (1987) as first and
foremost a political enterprise-before, during, and after it is an exercise
in economic or technologic analysis" (pp. 6-7). Regulation results not from
the logical analysis of certain economic or social facts, but through the
political process of allocating values in society, it is comprised of goals,
facts, and values mediated by the various special interests in the political
process.
This analysis of the political process and its applications to
psychotherapy regulation in Colorado, pays particular attention to the key
players, historical events, and special interest concerns involved in the
proposal of SB 87-38 and its subsequent review as HB 88-1026. interviews
with key players, archival data, and evaluation of memoranda, notes,
letters, and other written data are the units of analysis.
1986 sunset Review of Mental Health Occupations
Prior to 1988, the professions of psychology and social work were
the only two mental health occupations regulated in Colorado. Psychiatry
77


was regulated as the practice of medicine, psychiatric nursing as the
practice of Nursing, and Alcohol-Drug abuse counselors were regulated by
the Department of Health, individuals who did not seek licensure in one of
these fields or with training in related disciplines practiced as non-licensed
psychotherapists, in 1986, the Department of Regulatory Agencies (DORA)
prepared a sunset review of the psychology and social work professions as
well as a sunrise review of professional counselors and the regulation of
psychotherapy. The sunset review (Appendix C) examined whether the
profession of psychology and social work should continue to be regulated
while the sunrise review considered whether regulation of professional
counselors and other practicing psychotherapists was necessary to protect
the public health, welfare, and safety. The following is a summary of
DORA'S comprehensive examination of psychotherapy practices in
Colorado taken from legislative archives, memoranda between DORA and
professional associations, and information obtained from the Office of
Policy and Research.
Psychology
The profession of psychology has been regulated in Colorado since
July 1,1961. The first Board of Psychologist Examiners was comprised of
five Ph.D. trained psychologist's serving one, two, and three year terms.
No public members were represented on the Board. The scope of the
Psychologist Practice Act was limited to prohibiting the use of the terms
psychology," Psychologist," and psychological" by any person other than
78


a certified psychologist." The regulatory outcome of the Act amounted to
a title protection law, recognizing psychology as a service to the public
and prohibiting the offering of any service utilizing these terms. Both
master's and doctoral graduates of approved academic programs in
psychology were eligible for certification, in 1981 certification" was
replaced with licensure and the Act repealed several exemptions for
persons who could previously hold themselves out to the public as
psychologists such as those employed in Federal, State, county, or
municipal organizations, those employed by a private non-profit agency,
and those employed by a corporation, partnership, or business
association, provided the psychological services were limited to
employees of the organization.
The 1981 law also created new exemptions from the Act-it limited
the practice of psychology to out of state licensees to 30 days and
qualified out of state psychologists who are recruited by public agencies
or nonprofit organizations for practice provided they were approved for
licensure within one year of establishing Colorado residency. The 1981
amendments also exempted counselors, school psychologists, ministers,
priests, and rabbis who did not hold themselves out as psychologists.
These examples of legislative review suggest that the regulation of
psychology prior to 1986 consisted primarily of legalizing boundaries for
the practice of psychology and excluding those who were not properly
trained, educated, or experienced from the practice of psychology. Little
attention appeared to be given to the protection of the public from the
79


harmful practice of psychology, indeed, between 1972 and 1979, the
Colorado State Board of Psychologist Examiners documented six
complaints for unprofessional conduct, two for unethical advertising, two
for excessive or unwarranted fees, and 97 cases for misuse of title
violations. During the same time period, nine cases were referred to the
Attorney Generals office for prosecution; two resulted in a letter of
reprimand, two were dismissed for no jurisdiction, three resulted in a
suspension, revocation, or restricted practice, and two were
unsubstantiated (DORA, 1986). The focus of the Board appeared to be
directed toward the licensing aspects of regulation.
social .work
Colorado was the 18th State to regulate social work on July 1,1975.
Like psychology, the social work Practice Act created boundaries for the
practice of social work that amounted to and were enforced as title
protection violations. The Act recognized three classes of social workers; a
registered social worker for bachelor's level practitioners, a licensed social
worker I requiring a master's degree and two years of post-masters
experience, and a licensed social worker ll class requiring a masters
degree and five years of post-masters experience. The licensed social
worker ll was authorized to practice independently. Licensed social worker
's and registered social workers could practice under supervision of a
psychologist, psychiatrist, or other approved practitioner. The licensed
social worker designation also recognized four specialties; social work
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administration, applied psychotherapy, community services and social
planning, and research, specialty examinations were offered in each of
these areas.
The social work profession went through its first sunset review in
1979, when the law was amended to eliminate licensure through a
"grandfather clause and no longer provided for the issuance of a
provisional license. The remainder of the statute was essentially
unchanged and the Board was continued for six more years.
Thirty seven States regulated the practice of social work in 1979,
but not all regulatory methods were uniform. For example, bachelors,
masters, and independent level social work practitioners were not
recognized in all jurisdictions. The definition of social work and standards
of practice also varied among states, in Colorado, the statutory scheme
for social work regulation relied primarily on licensing functions as
evidenced by establishing the various specialties and requiring continuing
education units to maintain licensure. The law was structured around
traditional methods of social work regulation and gave little attention to
the discipline of practitioners for misconduct or harmful social work
practice.
Between 1975 and 1986, the Board of social Work Examiners took
disciplinary action against eleven social workers. The Board was hampered
in its efforts to hold social workers accountable for misconduct by
carrying the burden of proving gross negligence in cases involving
substandard care. Cross negligence was almost impossible to prove and, as
81


a result, practitioners could not be prosecuted for acts constituting
substandard care. The Social work Board was reviewed by the Joint
sunrise/sunset committee again in 1986. This review recommended
significant changes in the powers of the Board, especially in its authority
to take disciplinary action against licensees, and the expansion of
disciplinary powers for drug and alcohol abuse and mental or physical
impairment. The Committee also recommended specific prohibited acts
which included discipline for any act or omission which fails to meet
generally accepted standards of social work practice; failure to provide
adequate supervision; authority to take action against a licensee who had
been convicted of a felony; authority to discipline a licensee who
performs services that are not within his area of training, experience, or
competence; maintaining relationships with clients that would impair
professional judgment; sexual misconduct with clients; and, health
insurance fraud, in addition, the Committee recommended the granting
of governmental immunity against criminal or civil actions to Board
members, consultants, staff, and complainants for official acts performed
in good faith; mandatory reporting of malpractice settlements or
judgments to the Board by licensees; mandatory peer reporting of
practice act violations by licensees; and repeal of the various licensing
classes which were replaced with the title, licensed clinical social worker."
Each of these recommendations were incorporated into SB 87-38, sunset
Report, (1986).
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The above recommendations signaled a radical departure from
traditional regulatory methods. They also created a significant
restructuring of the social work Board's statutory authority. The powers
of the Board shifted from an emphasis on licensing functions to expanded
authority to discipline practitioners. This shift formed the basis for a
reexamination of the way Colorado regulated all mental health
occupations.
The Mental Health Occupations survey
Data gathered by the Department of Regulatory Agencies between
1979 and 1986 suggested licensing activities could not adequately protect
the public from licensee misconduct. A confidential psychotherapy
questionnaire was mailed to 600 Colorado practitioners during May and
June of 1986. One hundred practitioners in each of the following six
groups were surveyed; psychology, social work, members of the Colorado
Association for counseling and Development, members of the Colorado
Association of Marriage and Family Therapists, the Colorado society for
clinical specialties in Nursing, and Colorado Medical Association
(Psychiatrists). Response rates ranged from a high of 71% for psychologists
to a low of 41% for nurses. 347 practitioners responded for a 57.8% overall
response rate. Survey questions covered work setting, supervision, fees,
length of practice, and awareness of type of potential client harm.
Additionally, respondents were asked to indicate whether they inform
clients of their fee, the right to seek a second opinion, methods of
83


therapy, education, experience, and whether they were licensed. Age, sex,
and ethnic background of respondents were also obtained as well as more
detailed comparisons of fees, Insurance, and disclosure data. The survey
also asked whether the respondent had "ever had sexual intimacies with a
current or former client." The question generating the most controversy
asked whether the respondent was personally aware" of any client harm
caused by a colleague or associate. The types of harm were identified as
physical harm, breech of confidentiality, sexual abuse, improper
dependence on therapist, fraud, and more serious dysfunction's resulting
from incompetent care. A significant number of respondents reported
they were personally aware of acts of sexual abuse between therapist and
client, breeches of client confidentiality, and instances where the
therapist encouraged improper dependency by the client. 45.7% of
respondent psychologists, 43.5% of respondent social workers, 35.8% of
respondent professional counselors, and 42.3% of respondent marriage
and family therapists acknowledged they were personally aware of a
therapist who had or was involved sexually with a client, one psychologist
and one marriage and family therapist reported they had a sexual
relationship with a current or former client. Policy makers compared this
information to disciplinary data for psychologists where 97 of 101
complaints filed between 1972 and 1979 were logged with the Board by
other psychologists for misuse of a protected title, while two complaints
involved unethical advertising, two concerned high or unwarranted fees,
and six for unprofessional conduct, four of which were for sexual
84


misconduct. For social workers, eight of the eleven cases filed with the
Board between 1975 and 1985, were for misuse of title, two for sexual
misconduct, and one for violating client confidentiality.
survey results were not congruent with the Board of Psychology
Examiners and Board of social work Examiners disciplinary track records.
This discrepancy was used by Representative Jerry Kopel in the House and
senator, Steve Durham in the senate to support SB 87-38s
recommendation for a separate mental health occupations grievance
board. The data was used to show that both the Psychology and social
work Boards were not adequately protecting the public from harmful
practitioner conduct and supported a policy of mental health occupations
regulation with reduced attention to licensing and a primary focus on
disciplinary functions.
sunrise/sunsetReviewL Report
The Sunrise/Sunset review process was established in Colorado by
legislation in 1985. The primary sponsor of the Bill creating a Joint
Legislative Sunrise/Sunset committee was Representative Jerry Kopel. The
sunrise/sunset Committee is comprised of six bipartisan members, three
from the House and three from the senate. The committee works with
the Department of Regulatory Agencies (DORA), Office of Policy and
Research to review existing regulatory legislation to determine whether
regulation should be continued or abolished. The statute mandated the
review of specific divisions, boards, or agencies one year prior to their
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scheduled termination and the consideration of regulating occupations
and professions not presently regulated (sunrise). Colorado was the first
State In the country to establish such a process.
Historically, sunset legislation has had minimal impact on the
professions, originally designed to abolish regulatory programs legislating
self-interest" objectives of the professions, sunset processes have
exacerbated the problem. Rubin (1980) explains this situation:
were sunset the success originally envisioned, the state licensing
landscape would show signs of significant alteration, it does not.
Nor are the reasons difficult to trace. Allowed to develop in a
regulatory framework largely of their own making, and now in full
command of public health, the legal system, finance, science, and
technology, the professions today are politically powerful and
entrenched, especially at the state and local levels. For many state
legislatures the sunset process is an uneven contest, in which
professional regulation emerges substantively unscathed and,
worse, with the seal of reform approval (p. 39).
The Colorado Board of Psychology Examiners and Board of Social
Work Examiners were scheduled to terminate on July 1,1987. in 1986, the
DORA Office of Policy and Research prepared and submitted a sunset
Review of the Psychology and Social Work Boards to the committee. The
Committee also considered applications for licensure from acupuncturists,
respiratory therapists, and professional counselors. DORA recommended
the continuance of the Psychology and social work Boards and the
creation of two separate Psychotherapy Boards; a Counselor and
Therapist Board" for marriage and family therapists and professional
counselors and a "Grievance Board" to hear cases involving
psychotherapist misconduct. The committee held eight days of meetings
86


to review DORAS recommendations and hear testimony on mental health
occupations regulation. The committee determined that regulation of
mental health occupations was very limited" in Colorado. Psychologists,
social workers, professional counselors, and marriage and family therapists
were difficult to distinguish as separate occupations because there was
significant overlap between and among these occupations in theory and
practice. The public also had difficulty distinguishing the services of a
psychologist from those of other mental heath care providers, particularly
in the area of individual counseling. The Committee addressed this
problem by consolidating the sunset review of Psychology and social work
with the sunrise review of professional counselors under a broader
discussion of the regulation of psychotherapy" (Joint Legislative
Sunrise/Sunset Committee Memoranda). Testimony by DORA indicated that
current regulation appeared to benefit the licensee and protected titles,
and suggested that legislation be revised to more clearly focus on the
client.
While DORA recommended the continuation of the Boards of
Psychology and social work, it also recommended the creation of a
generic psychotherapy Board for the registration of all other mental
health care practitioners and a separate disciplinary Board. Cited as an
example of a serious flaw in the current regulatory scheme, was the
situation where the Boards of Psychology or social work revoked the
license of a practitioner only to find that the licensee could continue to
practice as an unlicensed psychotherapist, or by simply not using any of
87


the protected titles under the Act. A further complication resulted when
it was learned that over 200 methods of psychotherapy existed and could
he lawfully practiced regardless of training, education, or experience by a
non-licensed person. The Psychology and social work Boards, DORA, and
the professional associations representing psychology, social work,
professional counselors, and marriage and family therapists agreed this
was a problem warranting legislative remedy. Psychologists and social
Workers did not agree with the concept of expanding regulation to
include other disciplines, but did support licensing rather than
registration as the better level of public protection.
Following the hearings and upon review of the DORA mental health
regulation proposal, the committee recommended and drafted a Bill
concerning the practice of occupations relating to mental health." The
Bill, as originally drafted provided for the continuation of the Board of
Psychology Examiners and the Board of social work Examiners, as well as
the creation of a State Board of counselor and Therapist Examiners to
regulate qualification for professional counselors and marriage and family
therapists. The Bill also removed ail disciplinary powers from the
psychology and social work Boards and placed them in a State Grievance
Board. This Board would have disciplinary authority over all three types of
licensed mental health occupations and injunctive authority over
unlicensed psychotherapists and certified school psychologists, practicing
in the private sector. The composition of the licensing Boards included
two public members and five professional members. The Grievance Board
88


was comprised of four public members, one psychologist, one social
worker, and one professional counselor or marriage and family therapist
for a total of seven members. There was no provision for representation
on the Board by non-licensed therapists. Senator Steve Durham and
Representative Jerry Kopel agreed to sponsor this Bill in the 1987
Legislative session.
senate Bill 8Z-38
From the outset, SB 87-38 generated controversy. Psychologists,
represented by the Colorado Psychological Association, claimed this
legislation would imperil the public by allowing non-credentialed
psychotherapists to practice, social workers opposed the Bill because it
diluted the boundaries of each profession and placed greater restrictions
on the practice of social work. Among the problems cited, were the
requirements to report malpractice judgments or settlements and
mandatory reporting of prohibited activities against other licensees. The
Bill also repealed the social work Board's authority to issue a license to a
social worker whose license had been revoked for at least five years. The
most contentious piece of the legislation mandated that social workers
disclose certain information to clients at the outset of treatment, several
social workers protested that such disclosure would interfere with the
therapeutic process and add unnecessary administrative costs to
treatment.
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While both psychologists and social workers saw major problems
with SB 87-38, marriage and family therapists and professional counselors
supported an expansion of licensing and a central board concept to
regulate grievances against psychotherapists. The Colorado Association for
counseling and Development and the Colorado Association of Marriage
and Family Therapists were supportive of a bifurcated regulatory system.
This position made it more likely that their members would achieve
licensure. Although both groups did not truly support a multidisciplinary
Grievance Board, Counselors and Marriage and Family Therapists were
willing to accept such an arrangement in exchange for achieving state
licensure.
on March 11,1987, the Bill was reviewed by the senate state Affairs
Committee and they recommended it be voted on by a committee of the
whole (Senate caucus), on March 17,1987, amendments were introduced
which created five augmenting panels on the Grievance Board, each with
three members representing a regulated discipline. Psychologists and
social workers had successfully argued that the composition of the Board
limited to one psychologist and one social worker, compromised the
ability of its members to fully appreciate the ethical obligations and
standards of practice adopted by the professional associations which, they
believed, would allow the Board to make better disciplinary decisions. The
augmenting panels would be comprised of professionals representing the
discipline of the licensee for a total of four members from that discipline,
one from each of the remaining three disciplines, and four public
90


members. The expanded eleven member Board was authorized to take
disciplinary action. The eight member Board, excluding the augmenting
panels, was empowered to dismiss grievances, refer cases to the
complaints and investigations section within the Colorado Department of
Regulatory Agencies, or refer the matter to the eleven member Board for
disciplinary action. Among the amendments was also a fiscal impact
statement which required the Bill to be considered by the senate
Appropriations committee. The Bill was referred to the Appropriations
Committee on March 20,1987. The committee reviewed the Bill and
returned it to the committee of the Whole with amendments on June 5,
1987. on June 8,1987, the senate voted for the amendments, viewed the
final Bill, and scheduled a final senate vote, on June 9,1987, the Bill passed
the senate with 27 yes votes to 4 no votes. Four members were excused
from voting. The Bill was sent to the House Appropriations committee on
the same day. The Bill was scheduled for review on August 12,1987,
however, the House Committee did not take any action on the Bill. SB 87-
38 was buried" in the House Appropriations Committee and did not make
it to the House committee of the Whole, on August 13,1987, the House
informed the senate that SB 87-38 lost because of inaction from the House
Appropriations committee. The Bill was officially defeated on the same
day.
This illustrates an example of the power select committees had to
defeat legislation. As a result, Colorado voters passed the gavel (Give a
vote to every legislator) Amendment in 1988. This amendment made it
91


illegal to bury" a Bill in Committee. Every Bill must now be read and voted
on by the committee. The gavel Amendment insures that a Bill like SB 87-
38 cannot lose by committee inaction.
HB.1Q26L.The Revised SB 87:38
Defeat of SB 87-38 sunsetted" the Boards of Psychology and social
work Examiners, under the sunrise/sunset Act, the Department of
Regulatory Agencies had one year to terminate the operations of both
Boards. Psychologists and social workers were shocked at the outcome of
their efforts. Professional counselors and Marriage and Family Therapists
had appeared before the sunrise/sunset committee to seek licensure
yearly, since its inception in 1985. in 1985, then State Representative Jerry
kopel, a member of the sunrise/sunset Committee noted:
l was struck by the similarity of their practices with those of the
already licensed psychologists and social workers. Our Committee
told the counselors and therapists that we would be reviewing
psychologists and social workers in the summer of 1986 to
determine whether those groups should continue to be regulated
and, at that time, we would look again at counselors and
therapists (kopel, 1988).
With the sunsetting of psychologists and social workers, professional
counselors and marriage and family therapists were in a better position to
seek licensure. The arguments advanced to keep psychologists and social
workers licensed were used by the counselors and marriage therapists to
justify licensure.
92


Full Text

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