Neurofeedback Laws & Licensing: Unlock Brains’ Potential But Be Legally Safe –Part 2: Legal Scope of Practice

Is the practice of neurofeedback legally safe as part of another professional practice such as clinical psychology?

What is Scope of Practice?

Scope of practice refers to the legal authority of a licensed healthcare practitioner, other than a physician.

For example, chiropractors have legal authority to perform spinal manipulation. Whether they can legally perform colonics, vary by state.

Similarly, acupuncturists have legal authority to perform needling, using techniques derived from traditional oriental medicine. Whether they can review x-rays or prescribe herbs, varies by state.

Again, from the Virtual Mentor article, which summarizes law discussed in my books and articles:

Allied health providers, such as dentists, psychologists, and nurses, have their own distinct licensing statutes. The key difference is that medical licensure, known as “unlimited” licensure, grants physicians broad leeway to diagnose and treat disease, whereas licensure for allied health professionals, known as “limited” licensure, carves out a narrower scope of practice. Exceeding that designated scope of practice is considered the unlawful practice of “medicine.”

Scope of practice turf battles occur in allied health as well as complementary and integrative medicine. For example, consider the legal and professional battle between podiatrists and physicians as to whether the ankle is part of the foot.

See also Scope of practice issues continue raise turf battles among health care professions.

See also Legal Rules Restrict Scope of Practice Boundaries in Acupuncture.

Is Neurofeedback Within the Scope of Practice of Psychology?

The article mentioned earlier states:

Division 42 (the Practice Directorate) of the American Psychological Association adopted a position declaring EEG feedback to be a special competence within the field of psychology, and the APA Board subsequently ratified this declaration. I was very much involved in that effort at the time. The intent was to legitimize the practice of neurofeedback within psychology, not to restrict the practice of neurofeedback to psychologists.

The article also argues that other professions (principally physician specialties) once they discover neurofeedback, will undertake the traditional turf war, and then try to restrict psychologists from practicing neurofeedback:

A neurologist might ask, what business do psychologists have treating traumatic brain injury? Or seizure disorder? Or dementia? Or pediatric migraine? This is clearly not only an issue for the unlicensed professional. Once the fields of psychiatry and neurology discover neurofeedback there will be a pushback against the sort of aggrandizement that is underway.

The alternative and more humane future lies in a recognition that neurofeedback is not really a treatment of minor traumatic brain injury or of seizure disorder in any event. It is a generic technique by means of which brain function can be enhanced almost irrespective of the functional status of the trainee. Quite counter to the prevailing attempts to squeeze neurofeedback into the paradigm of specific treatments for specific disorders, neurofeedback always escapes this confinement.

The turf war may come. This harkens back to Wilk v AMA, during which the American Medical Association tried to stamp out the chiropractic profession, and the chiropractors brought suit and won.

Whether psychologists consider neurofeedback to be within their domain, the practical issue is whether the psychology board, like the medical board, would investigate a practitioner of neurofeedback for unlicensed practice of psychology.

The answer in part, depends on enforcement priorities of the psychology board—and the broad language of psychology licensing statutes, which sweep a good deal of activity into their umbrella.

For example, this is from New York:

Definition of the practice of psychology. 1. The practice of psychology is the observation, description, evaluation, interpretation, and modification of behavior for the purpose of preventing or eliminating symptomatic, maladaptive or undesired behavior; enhancing interpersonal relationships, personal, group or organizational effectiveness and work and/or life adjustment; and improving behavioral health and/or mental health. The practice includes, but is not limited to psychological (including neuropsychological) testing and counseling; psychoanalysis; psychotherapy; the diagnosis and treatment of mental, nervous, emotional, cognitive or behavioral disorders, disabilities, ailments or illnesses, alcoholism, substance abuse, disorders of habit or conduct, the psychological aspects of physical illness, accident, injury or disability, psychological aspects of learning (including learning disorders); and the use of accepted classification systems.

The term "diagnosis and treatment" means the appropriate psychological diagnosis and the ordering or providing of treatment according to need. Treatment includes, but is not limited to counseling, psychotherapy, marital or family therapy, psychoanalysis, and other psychological interventions, including verbal, behavioral, or other appropriate means as defined in regulations promulgated by the commissioner.

Accreditation v. Licensing v. Certification; Different Types of Licensure

Another way of assessing the risk from the psychology boards to non-psychologist, non-MD practitioners of neurofeedback is to understand the difference between licensure and certification; and between mandatory licensure and title licensure.

Licensure refers to specific review and approval (and ongoing oversight) by the state of an individual’s right to a license.

By contrast, certification ordinarily refers to a review process by a third-party professional organization, typically involving the satisfaction of defined criteria, such as completion of a particular training program.

Accreditation refers to the application of uniform standards to the educational organizations and programs that train people for certification or licensure.

Credentialing refers to efforts by organizations to ascertain the licensure and other qualifications or credentials of their health care practitioners.

The bottom line is that receive a certificate for completing a course, does not mean that one has a license from the state to practice. A professional certification leaves an unlicensed individual at risk of investigation and prosecution for unlicensed practice of a licensed healthcare profession (such as medicine or psychology).

Also, a licensed provider can get a certificate in a modality such as biofeedback or neurofeedback; but that licensed provider still can only practice that modality within his or her legally authorized scope of practice.

For example, NYS says in its Practice Guideline on Maintaining Professional Competence:

Even if you complete training in a professional specialty or service, you must maintain your registration to practice your profession in New York State. A national credential or voluntary registration by a professional organization cannot substitute for licensure. Similarly, you must be clear in advertising and other communications as to the mental health profession in which you are registered to practice in New York State, particularly when the credential or designation is not restricted to an individual licensed in the same profession as you. For instance, designation in biofeedback may be available to individuals licensed in the professions of mental health counseling, licensed clinical social work, psychology, physical therapy, or medicine but each licensee could only provide services in his or her personal competence that are allowed within the practice of the licensee's profession. You must use your professional title when providing professional services, not a general title such as "psychotherapist," "art therapist," or "hypnotist."

Next, mandatory licensure means that a license is required to do the activity (such as practicing medicine). Title licensure means that anyone can do the activity (such as counseling, for example),) but only someone with the license can use the licensed title (such as, for example, nutritionist).

Medicine has mandatory licensing in all states. Title licensure exists for professions such as nutrition, depending on the state.

To give an example of how these distinctions can confuse practitioners and sometimes change, see New York State’s recent discussion of the difference between title licensure, and mandatory licensure, with regard to psychology practice:

What is the difference between Article 153 as a certification law and Article 153 as a practice law?

Article 153 as a certification law protected the title of the profession (psychology) and the terms used to describe services and activities (psychology, psychologist, and psychological, or any derivative of the entire word "psychology," either alone or in combination with other words and phrases.) Under the certification law, anyone could practice psychology, but could not use the protected title and terms when describing their services and activities, unless exempted under this law.

As a practice act, Article 153 not only restricts the title "psychologist" and the terms "psychologist, psychology, or psychological" when describing any activities or services, but also restricts the practice of psychology to persons licensed as psychologists, or authorized to do so by the provisions of the law….

The only persons who may legally practice psychology are licensed psychologists, those who possess a limited permit in psychology, and those persons who fall within the exemptions and provisions identified in Chapter 676, including Article 153…

Chapter 676 has many exemptions to ensure that professionals currently licensed and authorized under Title VIII of the Education Law, such as psychologists, physicians, registered professional nurses and certified social workers continue to be authorized to provide mental health services without change in their practices, and that those who will be licensed in the four new professions with a legally defined scope of practice may practice to the full extent permitted by their own scopes of practice. The intention of the Law was not to change most of the exemptions that exist in the current licensing laws, but to ensure that individuals credentialed under any other law, such as attorneys, rape crisis counselors, certified alcoholism counselors and certified substance abuse counselors could continue to provide services within their respective established authorities.

Scope of Practice—Conclusion

The scope of practice piece of the regulatory puzzle is related to the unlicensed practice piece. As mentioned, exceeding scope of practice equals unlicensed practice of another profession (typically, medicine).

Some people think they can substitute terminology, such as “assessment” for “diagnosis,” or “client” for “patient.” While careful use of language can be a useful risk management tool, ultimately, it is the activity that counts.

One comment in a Web forum on neurofeedback states:

“Patient” implies someone coming with something “wrong” with them, that requires “fixing” and the “expertise” of the expert they seek or are sent to. These assumptions underlie the medical model. Many practitioners, including those in fields other than neurofeedback, deliberately choose to use the word “client” to identify the use of a different paradigm of working with individuals that is a non-medical model: coaches, organizational consultants, solution-focused practitioners, disability advocates and community rehabilitation providers all may avoid the use of the paradigm underlying the medical model. They work differently, from different assumptions, with different techniques, etc.

It may perhaps be possible to style neurofeedback within the coaching model—and this strategy may be especially viable in a state such as California which has a statutory carve-out for non-licensed practitioners; but the claims being made for neurofeedback would have to be very circumscribed, and the practitioner would remain at risk of unlicensed medical practice (to the extent the practice is seen to involve “diagnosis” or “treatment”) or of unlicensed psychology practice (to the extent psychological principles are involved or the practice otherwise intrudes on the definition of practicing psychology).

If you have specific legal questions about neurofeedback legal issues, consult our healthcare and FDA lawyers.

Michael H Cohen, healthcare attorneyMichael H Cohen, Founder

The Los Angeles / San Francisco / Bay Area-based Michael H Cohen Law Group provides healthcare legal and FDA legal & regulatory counsel to health & wellness practices and ventures, including health technology companies (medical devices to wearable health and nanotech), healthcare facilities (from medical centers to medical spas), and healthcare service providers (from physicians to psychologists). Our legal team offers expertise in corporate & transactional, healthcare regulatory & compliance, online HIPAA compliance training, and healthcare litigation and dispute resolution, in cutting-edge areas such as anti-aging and functional medicine, telemedicine and e-health, and concierge medicine. Our Founder, attorney Michael H. Cohen, is an author, speaker on healthcare law and FDA law, and internationally-recognized thought leader in the trillion-dollar health & wellness.

 

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