A surprising decision by the California Department of Health Services (DHS) to investigate a complaint that a Los Angeles hospital is violating state law by not granting psychologists full attending authority, plus a lawsuit that effectively ended in their favor have psychologists on the cusp of receiving full hospital privileges denied them for nearly 30 years.
“We were not a high priority for DHS,” said Bill Safarjan, Ph.D., past president of the California Psychological Association (CPA) and current member of the APA Committee for the Advancement of Professional Practice. “But the DHS is there now investigating. This is a whole new wrinkle,” added an amazed Safarjan. “They’re looking to see if the Metropolitan State Hospital is violating the law as Psychology Shield has contended in a complaint.”
But it took the threat of legal action by Psychology Shield to force the DHS to investigate whether or not the hospital was discriminating against psychologists by not allowing them to admit and discharge patients, order restraint or seclusion and suicide prevention, all the things psychologists are trained to do, said Safarjan, who is on staff at a state-run hospital.
Safarjan said he was stunned by the DHS decision because that same organization, charged with enforcing health regulations in the state, has for years broken the law by not enforcing mandates passed by the state legislature. “Getting the bureaucracy to act is incredible,” he said.
Another reason psychologists are hopeful is that in February 2005 Psychology Shield, working in collaboration with the CPA and the APA Practice Organization, finally, under threat of suit, convinced the DHS to implement regulations that gave psychologists full attending authority. After all, Safarjan added, the state legislature had passed laws granting psychologists full authority that were upheld by the California Supreme Court, signed by the governor and ruled as enforceable by the state attorney general’s office.
Almost immediately, the Union of American Physicians and Dentists (UAPD) filed suit against DHS to suspend the regulations claiming they were “underground regulations” because they were not held to public scrutiny and did not protect patients from inferior care. While the UAPD won the suit, in reality it was a victory for psychologists, Safarjan said.
Although the judge agreed with the UAPD and ordered that the regulations must undergo public comment, a procedure by which citizens can voice their opinion on issues and ultimately decide their fate, he declined to rule on the legality of the regulations. “Even in his decision, the judge was not talking about whether or not the regulations were legal. He didn’t appear to have any problems with them.”
Therefore, the UAPD won the battle, but according to Safarjan, it’s gradually losing the war.
Then a second ruling by the judge in April only served to reinforce psychologists’ belief that the long and difficult battle was about to end in their favor. Claiming that it had won the earlier decision, the UAPD argued that it was entitled to reimbursement of legal fees.
This time the judge strongly disagreed, stating that “The primary motivation of this lawsuit was not to protect the public but to advance the personal economic interests of the member psychiatrists by defeating the regulations that arguably threatened to diminish the responsibility of psychiatrists vis-à-vis clinical psychologists.”
In effect, said Safarjan, the judge said, “Hey, you say you’re doing this to help the public, but that’s absurd. You’re doing this to help your own economic interests and all the while preventing patients from receiving badly needed psychological services.”
The problem now is to get the DHS to present the regulations for public comment. Safarjan said the DHS has delayed action for eight months and Psychology Shield may have to file suit against the DHS and force the state body to place the issue before the public.
“We keep communicating with them and they keep saying ‘in a little bit.’ The process is expensive, and we need more funds if we are to succeed,” Safarjan said. Over the past two years Safarjan has raised almost $350,000, $200,000 of it coming from APA, to continue the fight. But the cupboard is nearly empty and contributions are badly needed, he said. Psychology Shield, Safarjan explained, is a non-profit organization formed when the CPA decided not to pursue legal action for fear it could not afford the costs. The four-member corporation is made up of Safarjan; Gilbert Newman, Ph.D., president of CPA; Sallie E. Hildebrandt, Ph.D., past president of CPA, and Ann Carson, Ph.D., chair of the CPA Legislative Affairs Committee.
Safarjan said he is confident the public will endorse the regulations, which will benefit both state-run and private hospitals and the patients that psychologists serve. This has been a long, frustrating and expensive battle, Safarjan said. The process started in 1978. It was immediately successful because it took only two years to convince the state legislature to pass a stronger law that granted psychologists independent authority to admit and discharge hospitalized patients without discrimination. However, the law was never enforced.
Later, CPA went through the legislative process and was responsible for the legislature passing new laws in 1996 and 1998 that embolden the law that it passed in 1980. Still, more years passed and nothing happened. Also, many psychologists stopped advocating because of continuing delays, which caused even more setbacks.
Safarjan blamed the limbo on the DHS that continually failed to translate the law into regulations that hospitals could follow. The DHS ignored the law and failed in its responsibility, he said.
“Quite frankly, the process has been slow. But we do have laws in place that put us on par with psychiatry. It’s David and Goliath. We’re fighting the American Medical Association that has earmarked California non-physician providers and is trying to keep us down to the detriment of patient care.
“But we are going to win this one. Finally, everything is on our side.”