Laura Groshong, LICSW, Director, Policy and Practice
Below is an excellent summary of the legal protections for telehealth services, including behavioral health treatment, in all 50 states and District of Columbia (seven states do not have laws about telehealth coverage including AL, ID, PA, NC, SC, WI, WY) put together by the law firm of Foley and Lardner. The link is https://www.foley.com/-/media/files/insights/publications/2021/02/21mc30431-50state-telemed-reportmaster-02082021.pdf
The areas covered include state laws about coverage for telehealth and audio-only treatment; reimbursement requirements; how long coverage will last; the actual language of the laws in each state; and more.
Even if you think you know your state’s laws about telemental health, this is a good review and offers ways to improve telemental health laws based on what other states have done.
Laura Groshong, LICSW, Director, Policy and Practice Clinical Social Work Association lwgroshong@clinicalsocialworkassociation.org
The Impact of “Open Notes” on LICSW Practice
A recent message on the new rule called “Open Notes” created more questions than answers. This article is an attempt to clarify what is a somewhat regulatory, primarily semantic, and largely a continuation of record-keeping for LICSWs. Here is a list of FAQs about the Open Notes rule:
As LICSWs, we know that it is a clinical issue if the patient wants to see what we have written about them and it happens fairly rarely. We also know that it is a best practice, whether we are keeping notes for our own medical record or an interoperable one, to keep notes brief and connected to the treatment goals established for a given patient. If we stick to these practices, Open Notes should not pose a problem for clinical social workers.
Laura Groshong is the Director, Policy and Practice for the Clinical Social Work Association.
What Will “Normal” Psychotherapy Become? A Somewhat Cloudy Crystal Ball Updated
The pandemic continues to have a major impact on the psychotherapeutic work that LCSWs do. This article is a somewhat updated version of the one I wrote for the last newsletter on this overriding topic.
Overview
Since the Department of Health and Human Services (DHHS) recently extended the state of emergency through October 23, it appears that the current coverage of videoconferencing and audio therapy will continue during this time as well. There are bills currently in Congress that would make Medicare coverage of videoconferencing and audio-only treatment permanent after the Public Health Emergency (PHE) ends, if passed.
Right now, however, there is still widespread discrepancy in terms of which private insurers and self-insured or ERISA plans (Employee Retirement Income Security Act) will cover videoconferencing and audio psychotherapy, which insurers and ERISA plans will cover or waive co-pays, and which insurers and ERISA plans will pay for videoconferencing/audio therapy at the same rate as in-person therapy. While LCSWs used to feel frustrated by reimbursement rates, lack of coverage for more than once-a-week treatment, and treatment reviews for psychotherapy that has lasted more than a year, we now have a whole new set of frustrations. Of course, the anxiety we face about becoming infected or infecting others colors everything we do, rendering our insurance concerns less meaningful. So here are the issues that will determine whether the practice changes we have endured the past 4-6 months will become permanent, stay as ongoing new options, or be eliminated when the dangers of physical contact with others have waned.
One of the problems with predicting these issues is that states/jurisdictions are following such different trajectories in terms of the way COVID-19 is impacting the people who live there. “Hot spots” may be part of a state’s difficulty with the virus, while other areas are unscathed. Here is a website that can tell you what the risks are in your personal location: https://covidactnow.org/?s=37528
Our state and local governments are trying to create guidelines that will protect as many people as possible, mainly through physical distancing, hand washing, wiping down all high touch surfaces, and masks. That is the legal “frame”; we all still have to determine what we think is safe in doing our work in the present and moving forward. I have heard from LCSWs all over the country and the vast majority have been conducting psychotherapy through videoconferencing and telephonic means for the past 4-5 months.
Now I will address the confusion around insurance coverage of these new delivery systems.
Insurance Issues
What do we do when an insurer states they will cover the co-pays, pay the same amount for distance therapy as in-person therapy, describe which Point of Service (POS) code and modifier to use, and then fails to reimburse according to these stated policies? These problems are some of the most frustrating that we face. Spending hours tracking down provider liaisons about why our claim was denied, or paid at a lower rate, is painful and even scary. One remedy is to engage our patients in the process of finding out what their current co-pay coverage is; this is another area of confusion though. Some insurance plans have waived co-pays. Some are just returning to mandatory co-pays. The prudent LCSW will keep an updated list of POS and modifiers by insurer, easier said than done. How frustrating and annoying is this? Very. If (when) you find inconsistencies, let your insurance commissioner and attorney general know. This is the best way to get action on insurers’ failure to pay us what they have agreed to when we have complied with stated policies.
The Future of Telemental Health
As for the future: although Medicare will maintain coverage of the expanded videoconferencing and audio psychotherapy through October 23, the question remains whether or not private insurers will follow their lead. Their policy will impact most private insurers, according to my cloudy crystal ball. Since the current restrictions will be cut back state by state, it is hard to say when the Centers for Medicare & Medicaid Services (CMS) will decide there is enough safety to insist that Medicare beneficiaries be treated in-person. What I don't know is whether there will be an assessment of the videoconferencing and audio psychotherapy to determine whether they are as helpful as in-person treatment and how much more expensive it is to allow these forms of treatment to continue. There has been an explosion of bills in Congress that will make telemental health and audio only treatment permanent options for providing psychotherapy. CSWA will continue to work with Congress and other Federal agencies to preserve these options.
Self-Care
Expect to feel more fatigued doing telemental health. A couple of articles that outline the impact of doing all our work online are:
“Therapy During the Coronavirus Pandemic”, Cornwell, P., March 29, 2020, Seattle Times, https://www.seattletimes.com/seattle-news/health/therapy-during-a-pandemic-this-is-new-for-all-of-us/
“Therapists and Patients Find Common Ground: Virus-Fueled Anxiety”, Nir, S., New York Times, May 3, 2020, https://www.nytimes.com/2020/05/03/nyregion/coronavirus-therapy-nyc.html
Most of us have made some major readjustments to the ways we practice, which has been especially difficult for those of us who have been working in our offices for decades. Be kind to yourselves and find ways to give yourselves time to process these major changes to our professional lives, and accept the frustrating uncertainty we face about whether office practice will be safe in the near future. The dangers of feeling isolated as we work online from home, already a risk in office work, have increased. Try to remember you are not alone in dealing with the distress we all face and that this perilous time will eventually end.
What Will “Normal” Psychotherapy Become?
With videoconferencing and (thankfully!) audio psychotherapy, the possibility that we will no longer be forced to maintain the distancing that led to these forms of practice is beginning to emerge. What we can expect in the near to later future is at best likely to vary from state to state and region to region. Even the savviest crystal ball is looking cloudy!
Telemental Health Changes and Challenges
I have heard from clinical social workers from all over the country: the vast majority have moved in the past two months to doing psychotherapy through videoconferencing and telephonic means. I think it is safe to say that, while LICSWs used to feel frustrated by low reimbursement rates, lack of coverage for more than once a week treatment, and treatment reviews for psychotherapy that lasted more than a year, we now have a whole new set of frustrations.
A major challenge right now is the widespread discrepancy in terms of which private insurers and ERISA plans will cover videoconferencing and audio psychotherapy, which insurers and ERISA plans will cover or waive co-pays, and which insurers and ERISA plans will pay for videoconferencing/audio therapy at the same rate as in-person therapy. Of course the anxiety we face about becoming infected or infecting others colors everything we do, effectively rendering our insurance concerns less meaningful. And somehow, despite change and challenge, chaos and frustration, we persevere and try to maintain our professional and personal lives.
What will our practices look like in another 8 weeks, in 6 months, in a year, or maybe three years from now? We have no idea. Different states are following very different trajectories based on the way COVID-19 is impacting the people who live there. Indeed, some states are coping both with “Hot Spots” and, at the same time, with areas which are not only unscathed but demanding a return to “normal”.
So far, our state and local governments have been trying to create guidelines that will protect as many people as possible, mainly through physical distancing, hand washing, wiping down all high touch surfaces, and masks. That is the legal “frame”; we all still have to determine what we think is safe in doing our work in the present and moving forward.
Future of Telemental Health
Moving forward, is there a future for telemental health? Most important, according to my admittedly cloudy crystal ball, will be whether Medicare decides to maintain the expanded videoconferencing and audio psychotherapy, once the current restrictions in physical distancing are removed. Medicare policy generally impacts all the private insurers. Current physical distancing restrictions will be cut back on a state by state basis, so it is hard to say when CMS will decide there is “enough safety” to insist that all Medicare beneficiaries be treated in-person. Or indeed, will Medicare make such a decision? Will they have collected data and assessed the impact of videoconferencing and audio psychotherapy to determine whether these formats are as helpful as in-person face to face treatment? Are these formats effective tools for short term relief of mental health problems? For long term changes sought? How do they compare for in-depth trauma related treatment? It seems likely, too, that there will be questions of how much more or less expensive it would be to allow these forms of treatment to continue, where appropriate and effective.
CSWA will continue to work with CMS, HHS, and other national organizations to preserve the options that we now have, insofar as they are appropriate and effective, even after the crisis has abated. As you know, the predictions of when that will occur range from 3 months to 3 years.
Dealing with Insurance Issues in the Here and Now
Meanwhile, what do we do when insurers state they will cover the co-pays, pay the same amount for distance therapy as in-person therapy, describe which POS code and modifier to use, and then fail to reimburse according to these stated policies? These problems are some of the most frustrating we face. Spending hours tracking down provider liaisons about why our claim was denied, or paid at a lower rate, is painful and even scary. One remedy is to engage our patients in the process of finding out what their current co-pay coverage is. Keep a list of POS and modifier guidance as it comes out, by insurer, and keep it updated. If you find inconsistencies, let your insurance commissioner and attorney general know. This is the best way to get action on insurers’ failure to pay us what they have agreed to when we have complied with stated policies.
In other words, use your own judgment about what practice system feels safe for you and your patients and let insurers know that they need to be consistent. And most of all - stay tuned.
Legal and Ethical Issues Raised by “Trust and Consequences”
The Washington Post published an article on February 15, 2015, called "Trust and Consequences", written by Hannah Drier. It is an excellent description of how immigrant minors are being seen by therapists, some of whom may be LCSWs, and then have their confidentiality violated while in detention or after leaving detention. You can find it at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening.
As with any potential ethical violation, it is prudent to start with the Code of Ethics (CSWA Code of Ethics, 2016): “Confidentiality b) Clinical social workers must know and observe both legal and professional standards for maintaining the privacy of records, and mandatory reporting obligations. Mandatory reporting obligations may include, but are not limited to: the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); the duty to protect a client from self-harm; and, the duty to report the misconduct or impairment of another professional. Additional limits to confidentiality may occur because of parental access to the records of a minor, the access of legal guardians to the records of some adults, access by the courts to mandated reports, subpoenas and court orders, and access by third party payers to information for the purpose of treatment authorization or audit. When confidential information is released to a third party, the clinical social worker will ensure that the information divulged is limited to the minimum amount required to accomplish the purpose for which the release is being made."
The underline is the relevant section because when the Office of Refugee Resettlement (ORR) takes custody of immigrant children they become in loco parentis or the guardian of the minors. This is the way that the right to privacy is circumvented by ORR. The article was about a minor who was taken into custody at 16 and stayed in custody for three years. In some states, the minor would have the right to decide to whom his personal information is disclosed at the age of 13 or above. In Texas where the minor was kept, there are very specific reasons for a minor consenting to treatment and nothing on whether the minor has the right to keep his record private:
Under the following circumstances, a minor may consent to his or her own medical, dental, psychological, and surgical treatment, including if he or she is one of the following:
This heart-breaking article shows how a minor who believed that the therapist he saw would keep his information confidential was emotionally harmed when this did not happen. CSWA will be writing a position paper on all the implications of this article for us as mental health professionals.
Action Items
In the meantime, CSWA recommends sending the following message to your members of Congress. You can find their email addresses or contact information at https://www.congress.gov/members?searchResultViewType=expanded&KWICView=false . A suggested message is as follows: “I am a constituent and a member of the Clinical Social Work Association. Please take action to end the way that immigrant minors being held in detention have no right to confidentiality when seeing a clinical social worker for psychotherapy. This fundamental ethical principle of psychotherapy is currently being violated by the Office of Refugee Resettlement according to the Washington Post (see article at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening ). The process of psychotherapy becomes potentially traumatic without the right to confidentially. I would be happy to discuss this with you further.”
Please feel free to use your own language in this message. Contact me if you have questions or need more information. As always, let me know when you have sent your messages. Thank you for your attention to this important matter.
There is also a petition that is being sponsored by the Psychotherapy Action Network (PsiAN), an excellent group that CSWA has been working with for several years. Anyone who is interested in signing this petition can do so at https://www.thepetitionsite.com/379/862/396/tell-orr-and-ice-stop-using-psychotherapy-notes-to-betray-and-endanger-children/
The Clinical Social Work Association just held a very successful Summit in Alexandria on the fourth weekend in October. One of the topics discussed was the Advocacy Priorities for 2019. It was very helpful to the representatives of state Societies that attended, including Judy Gallant, LCSW-C, Chrissie Wallace, LCSW-C, and Margot Aronson, LICSW, representing Greater Washington. A new list of priorities will be developed in early 2020.
The Clinical Social Work Association's mission - Identity, Integrity, and parity - guides our advocacy. This year our advocacy priorities, in order of importance, are:
Text Therapy – Start Feeling Better Today with Talkspace Online Therapy. A Convenient and Affordable Solution That Provides Access to Therapy Whenever You Need. 100% Private & Secure. Secure & Confidential. 1 Million Happy Users. 2000+ Licensed Therapists. As Low As $49/Week. (Talkspace Website,
Texts are primarily used for social purposes: short missives conveying limited information. Much has been written about the negative impact of reliance on this mode of communication (Turkle, 2012), but the popularity of texting is obvious, particularly among those under the age of 30 who have texted regularly throughout their lives. Therefore, the increasing use of texting in the context of therapy cannot be ignored.
While there is no definitive research as yet, it appears that texting can play a useful role in some mental health treatment. Certainly for anyone who is most comfortable with texting as the preferred form of communication, this may be where a treatment relationship can best begin.
Responsibilities of the LCSW Providing Text Therapy
Clinical social workers should be knowledgeable about the promise of digital innovations in treatment, and equally about the potential downside. LCSWs choosing to engage in text therapy must be willing to explore ethical complications, perhaps even license violations, in the terms of agreement with the client and/or the texting platform.
The first issue: is text therapy really psychotherapy?
This simple definition of psychotherapy, paired with the already quoted Talkspace web advertisement, illustrate the very real differences that exist between psychotherapy and text therapy. Psychotherapy (whether in person or through synchronous videoconferencing) is a continuous process based on an established emotional relationship, an ongoing dialogue between two people in real time about complex issues with deep emotional content. Texting, on the other hand, is by its nature short, often with a gap in the timing of communications between client and therapist; it is not consistent with a dialogue based on emotional meaning, as with psychotherapy.
While texting platforms may emphasize, in the small print of the User Agreement, that the services provided are not psychotherapy, most continue to display the term “text therapy” prominently in their ads. This can create confusion for clients seeking psychotherapy and may give an appearance of misleading advertisement.
How, then, do we as LCSWs conceptualize and engage in text therapy? Perhaps “text therapy” might more accurately be called “text assessment” or “text coaching”. Texting might also be the means for starting the therapeutic process, to be converted to an in-person or videoconferencing process if it becomes an ongoing psychotherapy.
Reading any contract with care is essential, and this is most certainly true for provider contracts offered by texting platforms. Does the contract address issues such as diagnosis, HIPAA compliance, state-to-state licensing laws, and dual relationships? Does the platform set limitations on helping a client understand the differences between in-person treatment and text therapy, or on recommending in-person therapy when such treatment is indicated?
LCSW Standards of Practice
The use of ongoing asynchronous texting changes the process of therapy for LCSWs. The therapeutic alliance is significantly different when the primary means of communication is not direct ongoing communication between the client and therapist, as the asynchronous method of communication tends to preclude in-depth exploration of emotional understanding. Further, a key part of psychotherapy, the “frame”, is lost if client and therapist text and reply at different times, or if the client is limited – as with some agreements - to making and receiving two texts a day to a therapist five-days-a-week.
LCSWs base their understanding of a client on a biopsychosocial assessment, leading to a diagnosis. ASWB Technological Guidelines (2015) identify additional factors that may contribute to determining whether a client is suitable for text therapy: age, technological skills, disabilities, language skills, cultural issues, and access to emergency services in the client’s community. How does the platform provide for assessment? Can you ensure that our standards of practice will be upheld by the texting platform?
When more intensive treatment is called for, will the platform respect and support the licensed provider’s clinical judgment? LCSWs know that a client with a psychotic disorder, an autistic-spectrum disorder, or an acute episode of depression or anxiety may need in-person communication or hospitalization. Are there contractual provisions for such a situation?
Regulatory Considerations
Benign as texting seems, some texting platforms ask clinicians to communicate in ways that may violate state laws and regulations and/or federal laws and rules.
Most states require a clinical social worker to be licensed in both the state where the LCSW resides and the state where the client resides, if different, to provide therapeutic services. A text platform’s claim that text therapy is not psychotherapy but rather “therapeutic communication” is a blurry distinction not necessarily recognized by state social work boards. It is the LCSW’s obligation to ascertain and comply with relevant regulations of both state boards.
Licensed therapists are also responsible for making sure that the text platforms used by both client and therapist are HIPAA compliant. Further, the texts themselves are personal health information sent electronically (PHI) and must be kept private and secure. It has been reported that one text platform permitted employees – even non-clinically-trained employees – to review the content for training purposes. A Business Associate Agreement might provide a guarantee of the LCSW’s confidentiality standards, if the platform agrees to sign. (HIPAA Basics for Providers, 2018, https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/HIPAAPrivacyandSecurity.pdf )
Ethical Considerations
Most states use the NASW and CSWA Codes of Ethics as the basis for ethical clinical social work practice. Some text platforms have contractual terms that require the therapist to meet sales targets through their text exchanges. For a clinical social worker to engage in such a dual relationship, i.e., as a corporate representative for the texting services and, at the same time, as a therapist addressing mental health problems, is a clear and serious ethical violation.
Some companies use marketing techniques that also may be ethical violations. One example, potentially misleading advertising, has been mentioned. Advertising with testimonials from former clients is another. From the NASW Code of Ethics (2016 4.07(b)) : Social workers should not engage in solicitation of testimonial endorsements (including solicitation of consent to use a client's prior statement as a testimonial endorsement) from current clients or from other people who, because of their particular circumstances, are vulnerable to undue influence.
Would the company agree to keep the LCSW provider from being caught up in these sorts of business-driven ethical dilemmas?
Summary
Basic to mental health treatment is thoughtful consideration of the conditions being treated and of the biopsychosocial needs of the client. The challenge for the LCSW is incorporating these basics, along with accepted standards of practice, regulatory requirements, and ethical considerations, into the texting format as contracted by the particular text platform. It is the responsibility as LCSWs to apply clinical social work standards of practice, ethics, and regulations to any work we choose to do.
References
Implications of the UBH Decision for LCSWs
Much excitement has been generated in the mental health community since “the UBH decision” (that is, the decision in the US District Court in Northern California case of Wit et al versus United Behavioral Health, filed March 5, 2019) found UBH liable with respect to the denials of benefits claims. The clarity and detail of Chief Magistrate Judge Joseph Spero’s 106-page Findings of Fact and Conclusions has provided us with an extraordinary resource for moving forward.
At the same time, there are clear limits to this big win: this is not the end of insurance denials and parity violations. UBH will surely be appealing the judgment, and other judges may or may not uphold the present ruling. Further, the insurance arena is complex. Each state has its own insurance regulations, and each type of plan (ERISA, Medicare, Medicaid, Exchange Plans, or private) has a different source/s of oversight. (CSWA has posted information to clarify the differences in the Clinical Practices section of our website.)
How, then, can we use this decision effectively to affect access to mental health and substance use treatment? At the individual level, if your client is being denied care that you deem critical, the detailed court document provides a list of “generally accepted standards of care” that may prove very helpful in your discussion with the insurance representative.
Judge Spero spent considerable time during the hearing determining what is meant by "generally accepted standards of care." Many sources exist, and CSWA will post the judge’s summary of these on our website. The standards listed below were agreed upon by both plaintiffs and UBH. The wording is taken from the court document itself:
The nine plaintiffs whose cases were reviewed during the ten-day bench trial included denials of residential treatment for substance use disorder, for rehab, for mental health treatment, and, in two cases, for teenagers with substance issues, as well as denials of outpatient mental health treatment two to three times per week, and Intensive Outpatient Treatment (IOP) for a minor with SUD. The Judge provided detail for each case considered, noting the discrepancy between the UBH-stated standard of care and the actual guidelines that the reviewers were expected to follow. His descriptive language throughout, when referring to the UBH testimony, tended toward generous use of the words “evasive,” “even deceptive,” and “not credible.”
Given the widespread interest in this case, LCSWs may want to be assertive in appealing denials of care, especially where there is any failure to meet the standards. As you present your argument, even if you are dealing with a different insurer and a different type of plan, a mention of the UBH case will likely have an effect on the discussion. (The CSWA website has an Appeals template in the Members-only section; the generally accepted standards of care list will also be there, as well as a description of the five types of insurance plans.)
Another important avenue for LCSWs may be their state insurance laws/regulations and then perhaps their legislators. The plaintiffs came from different states, and three of these states, Illinois, Connecticut and Rhode Island, have legislation mandating use of the American Society of Addiction Medicine (ASAM) Standards in their insurance laws/regulations; it was not difficult to demonstrate that the UBH denials violated the state laws/regulations. A fourth state, Texas, has Department of Insurance criteria for standards of care; this proved equally effective.
The UBH decision is a good step toward making mental health and substance use parity a reality but is far from the end of making this happen. For now, we can speak out strongly on standards of care, ensure that standards in the client’s policy are being respected in any review process, and feel comfortable noting the UBH loss in court, based on violation of these standards, as a basis for appealing a denial of care. As for the next steps, LCSWs should look to state laws/regulations governing insurance, including any standards of care or enforcement of parity. (Such information may be online at the website of the Office of the Insurance Commissioner.) Insurance is a state-based system and it may be possible to make a legislative proposal about mental health and substance use that would appeal to your state legislators. Watch for more information from CSWA on this topic soon.
Footnote: Case 3:14-cv-02346-JCS Document 18 (Findings of Fact and Conclusions of Law). Heard and ordered UBH liable 2/28. Filed 3/05/19. 106 pages. United States District Court, Northern District of California.
[These are the comments made by CSWA on the Department of Education proposed rule which would substantially weaken Title IX protections for women subjected to sexual harassment on college campuses. ~LWG]
January 30, 2019
Comments Re: Proposed Rule regarding Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
The Clinical Social Work Association strongly objects to this rule as currently proposed.
Although we applaud the Department’s effort to provide clear and transparent regulations for educational institutions, we have major concerns about the rollback of guidelines designed to support traumatized victims of sexual harassment and/or assault who might otherwise be registering valid complaints.
Standard of Evidence
A primary issue is that, while the proposed regulations allow either a “preponderance of evidence” standard or the much higher standard of “clear and convincing evidence” in determining whether or not harassment has occurred and is actionable, considerable leeway is given to the educational institution to decide which standard to apply.
“Clear and convincing evidence” has proven to be an almost impossible standard to meet in harassment cases, as it is closely tied to the prevailing assumption before Title IX was passed in 1972, of women being sexually available to men even without consent. In fact, even after Title IX, most educational institutions and state laws held to the old standards; note that only 15 cases of sexual harassment were prosecuted by the Department of Education up to 2011, whereas between 2011 and today, there have been 150 (“DeVos Proposes Overhaul to Campus Sexual Misconduct”, Newsday , 11/16/18).
If there is a concern that men are being treated unfairly under the preponderance standard, then the Department might reasonably provide guidance as to how to apply the preponderance standard fairly. It should be noted that, according to a study conducted at the University of Massachusetts, 90% of all sexual harassment cases have been found to be true, with the complaints filed that are false ranging from 2-10% (Lisak, D., et.al., “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases”, Violence Against Women, Sage Publications, 16(12):1318-34).
We also do not want to ignore the appalling fact that just last year Larry Nassar of Michigan State University, in affiliation with USA Gymnastics, was found guilty of having violated over 350 young girls and women over a period of years.
Investigations of a Formal Complaint
The Clinical Social Work Association represents the interests of the 250,000 Licensed Clinical Social Workers, the largest group of providers of health, mental health and social services across our nation. Working in clinics, schools, hospitals, welfare agencies, non-profits, and private practices, LCSWs have extensive experience with individuals harmed by sexual harassment and/or assault, with highly emotional court cases involving complicated relationships, and with the excruciatingly painful trauma associated with sexual harassment, assault, and abuse.
In our review of Investigations, in Section 106.45(b)(3), we are deeply troubled by the proposed rule’s discussion of cross-examination as part of the investigation of a formal complaint. That cross-examination might in some cases need to be a part of the hearing is understood, but not all. The Department’s attempt to achieve balance by insisting on cross examination fails, on multiple levels, to take into account the needs to protect and support the victim.
A significant body of information regarding the mental health and social needs of survivors has been developed in the past decade, and what seems to be lacking in the proposed rules is an effort to provide universities with a serious understanding of trauma and of what the victim might be experiencing as they determine how to develop their “fair” hearings. Indeed, we would urge that the rules directly address the university role in creating or continuing a climate hostile to complainants/victims.
As written, the proposed rules present investigation as basically a she-said/he-said inquiry with required cross-examination - yet even “protections” such as the separate room for cross-examination have the potential of re-traumatizing the victim, causing an almost inevitable chilling effect on the very act of reporting. As written, the rules introduce “supportive services” which might be provided to an individual involved in a case (counseling, etc.), but simply as options which may or may not be offered by the university, rather than recommendations as part of trauma-informed guidance.
Conclusion
Finally, there is no doubt that our society needs to do more to educate men and women about the importance of consent in sexual interactions, and to listen to both sides. But the aspects of this proposed rule that would return us to the days when women were rendered powerless after being victimized, and when powerful institutions could thrive while ignoring painful realities on their campuses, must be rejected.
Message from the CSWA President: In this Time of Violence (October, 2018)
In this time of violence, the pipe bombs which thankfully harmed no one, the shooting at a supermarket, the tragic deaths of 11 members of the Tree of Life synagogue while at prayer, and the anticipated aggression against refugees from Central America, CSWA would like to extend our care and support to all personally affected by these terrible recent and future events. The verbal escalation of hate and the actions that it promotes in our country is frightening and inescapable. We must do better to counter the violent words and destruction to which they lead.
As the wonderful Fred Rogers, who lived in Squirrel Hill where the Tree of Life synagogue is located, said, “When things go wrong, look for the helpers.” We are the helpers. Let’s do all we can to fulfill our mission and prevent the demeaning of others. We must confront the grief and helplessness so many of us feel in the face of this hate and violence. Together, in our practices and our lives, we can express the alternative – containing our rage to avoid harming others – and hope that our fellow citizens can still listen.
Don’t forget that CSWA (www.clinicalsocialworkassociation.org) is your national voice, the Voice of Clinical Social Work. If you haven’t renewed, do it today. If you haven’t yet joined, do it today. As a membership organization, CSWA needs a collective individual membership to be effective in our advocacy and educational work on your behalf.
Melissa Johnson, LCSW, President, Clinical Social Work Association mjohnson@clinicalsocialworkassociation.org
www.gwscsw.org PO Box 711 | Garrisonville, VA 22463 | 202-478-7638 | admin@gwscsw.org
