New Mexico Register / Volume XXIX, Issue 11 / June 12, 2018

This is an amendment to 16.22.2 NMAC, Sections 8, 9, 10, 14, 15 and 16, effective 7/1/2018.

16.22.2.8 RULES OF COMPETENCE:

A. Limits on practice. The psychologist shall limit practice and supervision to the areas of competence in which proficiency has been gained through education, training, and experience.

B. Maintaining competency. The psychologist shall maintain current competency in the areas in which he practices, through continuing professional education, consultation, and/or other procedures, in conformance with current standards of scientific and professional knowledge.

C. Cultural competency. Psychologists with restricted and unrestricted licenses and psychologist associates shall complete eight hours of cultural competence coursework promulgated by the board during the first year of licensure; and also shall take four additional hours in cultural competence, as deemed satisfactory to the board, every two years as detailed in 16.22.9 NMAC.

D. Adding new services and techniques. The psychologist, when developing competency in a service or technique that is either new to the psychologist or new to the profession, shall engage in ongoing consultation with other psychologists or relevant professionals, and shall seek appropriate education and training in the new area. The psychologist shall inform clients or patients of the innovative nature and the known risks and benefits associated with the services, so that the client or patient can exercise freedom of choice concerning such services.

E. Referral. The psychologist shall make or recommend referral to professional, technical, or administrative, or public resources when such referral is clearly in the best interest of the clients or patient(s).

[F. Sufficient professional information. A psychologist shall not render a formal professional opinion about a person or diagnose or treat a person without direct and substantial professional contact and a formal assessment of that person.]

F. Bases for Assessments. Psychologists base the opinions contained in their recommendations, reports and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings except when:

(1) psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions;

(2) despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions and appropriately limit the nature and extent of their conclusions or recommendations; or

(3) psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations.

G. Maintenance and retention of records.

(1) The psychologist rendering professional services to a client or patient shall maintain professional records that include:

(a) the presenting problem(s) or the reason the client(s) or patient(s) sought the psychologist's services;

(b) diagnosis and/or clinical formulation;

(c) the fee arrangement;

(d) the date and substance of each billed contact or service;

(e) any test results or other evaluative results obtained and any basic test data from which they were derived;

(f) notation and results of formal consultations with other providers;

(g) a copy of all test or other evaluative reports prepared as part of the professional relationship;

(h) the date of termination of services.

(2) The psychologist shall ensure that all data entries in the professional records are maintained for a period of not less than five years after the last date that service was rendered. The psychologist shall comply with other legal requirements for record retention, even if longer periods of retention are required for other purposes.

(3) The psychologist shall store and dispose of written, electronic, and other records in a manner that protects confidentiality.

(4) For each person professionally supervised, the psychologist shall maintain for a period of not less than five years after the last date of supervision a record of the supervisory session that shall include, among other information, the type, place, and general content of the session.

(5) Upon request by the client, patient, or legal representative of the client or patient, the psychologist shall release records under his control, except as otherwise provided in these rules and regulations or state law. Lack of payment for services does not constitute grounds for refusing to release client or patient records.

[H. Continuity of care. The psychologist shall make arrangements for another appropriate professional or professionals to deal with emergency needs of his clients, as appropriate, during periods of his foreseeable absences from professional availability.]

[16.22.2.8 NMAC - Rp, 16.22.2.8 NMAC, 11/15/2006; A, 09/16/2010; A, 7/1/2018]

16.22.2.9 [IMPAIRED OBJECTIVITY AND] DUAL RELATIONSHIPS:

[A. Impaired psychologist. The psychologist shall not undertake or continue a professional relationship with a client when the psychologist is impaired due to mental, emotional, physiologic, pharmacologic, or substance abuse conditions. If such a condition develops after a professional relationship has been initiated, the psychologist shall terminate the relationship in an appropriate manner, shall notify the client in writing of the termination, and shall assist the client in obtaining services from another professional.

B. Prohibited dual relationships.

(1)] A. The psychologist shall not undertake or continue a professional relationship with a client or patient when the objectivity or competency of the psychologist is compromised because of the psychologist’s present or previous familial, social, sexual, emotional, or legal relationship with the client or a relevant person associated with or related to the client.

[(2)] B. The psychologist, in interacting with a current or former client or patient to whom the psychologist has at any time within the previous 12 months rendered counseling, psychotherapeutic, or other professional psychological services for treatment or amelioration of emotional distress or behavioral inadequacy, shall not:

[(a)] (1) engage in any verbal or physical behavior toward the client or patient which is sexually seductive, demeaning, or harassing; or

[(b)] (2) engage in sexual intercourse, or sexual contact or other sexual intimacies with the client or patient; or

[(c)] (3) enter into a business or financial (other than fees for professional services) or other potentially exploitative relationship with the client or patient.

[(3)] C. The prohibitions set out in Paragraph (2) of Subsection B of 16.22.2.9 NMAC shall not be limited to the 12-month period but shall extend longer unless the psychologist can demonstrate that the client or patient is not vulnerable to exploitative influence by the psychologist. The psychologist who engages in such sexual or financial relationship after the 12 months following cessation or termination of treatment bears the burden of proving that there has been no exploitation, in light of all relevant factors, including:

[(a)] (1) the amount of time that has passed since the therapy terminated;

[(b)] (2) the nature and duration of the therapy;

[(c)] (3) the circumstances of termination;

[(d)] (4) the client or patient’s personal history;

[(e)] (5) the client or patient's mental status;

[(f)] (6) the likelihood of adverse impact on the client or patient and others; and

[(g)] (7) any statements or actions made by the psychologist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or other potentially exploitative relationship with the patient or client.

[(4)] D. The psychologist shall not serve in varied capacities that confuse the role of the psychologist. Such confusion is most likely when the psychologist changes from one role to another and fails to make clear who is the client or patient. The psychologist is responsible for taking appropriate precautions to avoid harmful dual relationships and is responsible for informing all affected individuals, preferably in writing, when such a change is necessary. Examples of situations requiring extra caution include:

[(a)] (1) treating a person who is the family member of a current or former patient or client;

[(b)] (2) treating a family as a unit after treating a family member or, conversely, treating a family member after treating the family as a unit;

[(c)] (3) moving from a confidential role to a non-confidential one, such as from therapist or mediator to evaluator, arbitrator, or “wise-person”; and

[(d)] (4) moving from a position of authority into a confidential role, such as from court-appointed evaluator to the role of therapist.

[(5)] E. If one family member is a minor, the psychologist shall ensure that the child understands how the role of the psychologist is changing (for example, moving from therapist for the child to therapist for the family) and shall explain the limits of confidentiality that result from this changed role.

[(6)] F. When a psychologist agrees to provide services to several persons who have a relationship (such as husband and wife or parents and children), the psychologist shall clarify at the outset:

[(a)] (1) which of the individuals are patients or clients and

[(b)] (2) the relationship the psychologist will have with each person; this clarification includes the role of the psychologist and the possible uses of services provided or information obtained.

[(7)] G. As soon as it becomes apparent that the psychologist may be called on to perform potentially conflicting roles (such as marital counselor to husband and wife and then witness for one party in a divorce proceeding), the psychologist shall clarify and withdraw from or adjust roles, as appropriate.

[16.22.2.9 NMAC - Rp, 16.22.2.9 NMAC, 11/15/2006; A, 3/21/2009; A, 7/1/2018]

16.22.2.10 PATIENT WELFARE:

A. Informed consent for therapy and evaluation.

(1) The psychologist shall appropriately document and obtain appropriate informed consent for therapy or related procedures or evaluation. Informed consent means that the person:

(a) has the capacity to consent;

(b) has been informed of significant information concerning the therapy or evaluation in language that is understandable; and

(c) has freely and without undue influence expressed consent.

(2) When persons are legally incapable of giving informed consent, the psychologist shall obtain informed consent from a legally authorized person, if such substitute consent is permitted by law.

(3) In addition, the psychologist shall:

(a) inform those persons who are legally incapable of giving informed consent about the proposed interventions or evaluations in a manner commensurate with the persons' psychological capacities;

(b) seek or obtain their assent to those interventions or evaluations; and

(c) consider such person's preferences and best interests.

B. Limits of confidentiality in forensic, court-ordered, or child custody evaluations.

(1) The psychologist shall explain the limits of confidentiality to parties at the outset, before the evaluation begins, and the explanation should be documented. The psychologist shall also clarify how the information will be used and which parties or entities will have access to the evaluation. The procedures of the evaluation and their purpose should be described to the parties.

(2) In the case of child custody evaluations, the limits of confidentiality shall be explained at the initial meeting with each parent and the children.

C. Terminating the professional relationship.

(1) The psychologist shall not abandon his clients or patients.

(2) The psychologist shall terminate a professional relationship when it becomes clear that the patient no longer needs the service, is not benefiting from the service, is being harmed by continued service, or if the psychologist is acting outside of his or her area of competence.

(3) Prior to termination, for whatever reason, except where precluded by circumstances outside of the control of the psychologist including the patient's conduct [(for example, the patient or client moves to another state without giving notice to the psychologist and the patient is not a danger to self or others)], or changes in administrative or financial arrangements, if possible, the psychologist shall discuss the patient's views and needs, provide appropriate pre-termination counseling, suggest alternative service providers as appropriate, and take other reasonable steps to facilitate transfer of responsibility to another provider, if the patient needs one immediately.

[D. Stereotyping. The psychologist shall not impose any stereotypes, which would interfere with the psychologist's obligation to provide objective psychological services to the client or patient.

E. Sexual or other dual relationship. The psychologist shall not enter into a sexual or other dual relationship, as specified in Subsection B of 16.22.2.9 NMAC of this code of conduct.]

D. Impaired psychologist. The psychologist shall not undertake or continue a professional relationship with a client when the psychologist is impaired due to mental, emotional, physiologic, pharmacologic, or substance abuse conditions.

E. Continuity of care. The psychologist shall make arrangements for another appropriate professional or professionals to deal with emergency needs of his clients, as appropriate, during periods of his foreseeable absences from professional availability. The psychologist shall also make advance arrangements for managing the transfer of care for his clients or the closure of his clients’ cases upon his illness, incapacity or death.

F. Exploitative relationships.

(1) The psychologist shall not exploit persons over whom the psychologist has supervisory, evaluative, or other authority such as applicants, supervisees, employees, research participants, and clients or patients.

(2) The psychologist shall not engage in sexual relationships with applicants, supervisees in training over whom the psychologist has evaluative or direct authority.

G. Solicitation of business by patients. The psychologist shall not induce the patient to solicit business on behalf of the psychologist.

H. Referrals. The psychologist providing services to a client or patient shall make an appropriate referral of the client or patient to another professional when requested to do so by the client or patient, when such a referral is in the best interest of the client or patient or when the client or patient presents symptoms or behaviors that are outside the psychologist's area of practice.

I. Consultations. When consulting with colleagues, the psychologist:

(1) shall not share confidential information that could lead to the identification of a patient, client, research participant, or other person or organization without prior written consent; and

(2) shall share information only to the extent necessary to achieve the purposes of the consultation.

J. Avoiding harm. Psychologists take reasonable steps to avoid harming their patients, research participants, applicants and others with whom they work, and minimize harm where it is foreseeable and unavoidable.

[16.22.2.10 NMAC - Rp, 16.22.2.10 NMAC, 11/15/2006; A, 7/1/2018]

16.22.2.14 FEES AND STATEMENTS:

A. Disclosure of charges for services. The psychologist shall provide complete and accurate information about the charge of professional services to the client or patient, a prospective client or patient, or third-party payor.

B. Accuracy in reports to payors and funding sources. In reports to payors for services or sources of research funding, the psychologist shall accurately state the nature of the research or services provided, the fees or charges, and, where applicable, the identity of the provider, the findings, and the diagnosis.

C. Referrals and fees. When a psychologist pays, receives payment from, or divides fees with another professional other than in an employer-employee relationship, the payment to each shall be based on the services (clinical, consultative, administrative, or other) provided and shall not be based on the referral itself. Referral fees are prohibited.

D. Fees and financial arrangements. As early as is feasible in a professional or scientific relationship, the psychologist and the patient, or client, should reach an agreement specifying the compensation and the billing arrangements.

(1) The psychologist shall not misrepresent his fees.

(2) If limitations to services can be anticipated because of the client or patient's finances, the psychologist should discuss such anticipated limitations with the patient or client.

(3) If the patient or client does not pay for services as agreed, and if the psychologist wishes to use collection agencies or legal measures to collect the fees, the psychologist shall first inform the patient or client that such measures will be taken and provide an opportunity for the patient or client to make prompt payment.

(4) Prior to conducting a custody evaluation, the psychologist shall clarify to the parties involved the charges, or estimation of costs, and the manner in which fees will be collected. A specific written fee agreement shall be signed by all parties.

[(5) A psychologist's fee shall include indirect costs of conducting a private practice (for example, secretarial fees, office supplies, durable materials, etc.) A psychologist shall not bill the client or patient for additional indirect costs beyond those included in the psychologist's fee.]

[16.22.2.14 NMAC - Rp, 16.22.2.14 NMAC, 11/15/2006; A, 7/1/2018]

16.22.2.15 ASSESSMENT PROCEDURES:

A. Confidential information. The psychologist shall treat the results of a psychological assessment as confidential information subject to the same rules and regulations as other patient information.

B. Use of assessment in general and with special populations. Psychologists who administer, score, interpret, or use assessment techniques shall be familiar with reliability, validity, standardization, comparative, and outcome studies of the techniques they use and with the proper application and use of those techniques.

(1) The psychologist shall recognize limits of the confidence with which diagnoses, judgments, or predictions can be made about individuals.

(2) The psychologist shall identify situations in which particular assessment techniques or norms may not be applicable or may require adjustment in administration or interpretation because of factors such as an individual's gender, age, race, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status.

C. Communication of results. The psychologist shall communicate results of the assessment to the client or patient, parents, legal guardians, or other agents of the client or patient in as clear and understandable a manner as reasonably possible and with respect for the client or patient.

D. Reservations concerning results. The psychologist shall include in the assessment report the results of any limitations of the assessment procedures as may apply to the reliability or validity of the assessment techniques or the interpretation of results.

(1) Issues of individual differences, such as language, ethnicity, culture, socioeconomic, religion, disability, and lifestyle differences, should be carefully considered and addressed whenever relevant.

(2) Any limitations of results derived from the factors in Paragraph (1) of Subsection D of 16.22.2.15 NMAC should be clearly stated in the psychological report. The psychological report of an individual on whom psychological tests are not normed or adequately normed should clearly indicate the limitations of the assessment and the need for caution in interpreting test results.

E. Information for professional users.

(1) The psychologist offering an assessment procedure or automated interpretation service to non-psychologist professionals shall accompany this offering with information that fully describes:

(a) the development of the assessment procedure or service;

(b) evidence of validity and reliability; and

(c) characteristics of the normative population.

(2) The psychologist shall explicitly state the purpose and application for which the procedure is recommended and identify special qualifications required to administer and interpret it properly. The psychologist shall ensure that advertisements for the assessment procedure or interpretive service are factual and accurately descriptive.

[F. Opinions about individuals who are not directly evaluated. The psychologist shall not render public or professional opinions regarding the psychological functioning of any individual who has not been personally evaluated by that psychologist.]

[G.] F. Assessing quality of parenting in child custody evaluations. There may be situations in which one parent is unavailable for direct evaluation due to geographic distance, severe pathology, or refusal to participate. While the psychologist can assess the quality of parenting of the available parent, no comparison can be made in terms of which parent is better; nor can conclusions be derived about the fitness or level of psychological functioning of the unavailable parent.

[H.] G. Collateral contacts in child custody evaluations. The identification, extent, and purpose of collateral contacts made in the course of an evaluation shall be clearly explained early, even within the referral process. Collateral contacts include people who represent a major presence in the children and parents' environment.

[I.] H. Test settings. Clients or patients should take standardized tests in a setting that will preserve the integrity of the tests and the information. When possible, all assessment procedures and techniques should be administered in a clinical setting.

[J.] I. Single-test assessments. A single-test assessment should not be the sole basis for major opinions or decisions.

[K.] J. Outdated tests. The psychologist shall not base assessments, decisions, or recommendations on outdated tests or test data as defined in Paragraph (49) of Subsection A of 16.22.1.7 NMAC.

[16.22.2.15 NMAC - Rp, 16.22.2.15 NMAC, 11/15/2006; A, 7/1/2018]

16.22.2.16 TEST SECURITY:

A. Limits of reproduction and description of test materials. The psychologist shall not reproduce or describe in public or in publications subject to general distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naiveté of the subject, in ways that might invalidate the techniques. The psychologist shall limit access to such tests or devices to persons with professional interests who will safeguard their use.

B. Safeguarding test materials. The psychologist shall safeguard testing materials in accordance with the necessity to maintain test security. The psychologist should take [all] reasonable measures to protect test manuals, testing stimuli, and raw test data from disclosure to those who are not qualified to properly appraise those materials. [The psychologist is required to release such materials only to those licensed and qualified in the use and interpretation of psychological tests and testing materials. If test materials are sought by subpoena or discovery request, the psychologist shall seek a protective order from a court of competent jurisdiction in order to maintain test security. Thereafter, the psychologist shall comply with the court order.] Appropriate measures to safeguard test materials include educating non-psychologists about the professional duties of psychologists and the importance of safeguarding the tests, and asking that the materials be released only to qualified persons.

[16.22.2.16 NMAC - Rp, 16.22.2.16 NMAC, 11/15/2006; A, 7/1/2018]