December 22, 1993

ATTORNEY GENERAL OPINION NO. 93- 159

The Honorable Jim Garner

State Representative, Eleventh District

P.O. Box 538

Coffeyville, Kansas 67337

Re:	State Boards, Commissions and Authorities-- Regulation of Psychologists--
Licensure of Psychologists; Definitions

Synopsis:	Neurofeedback, as the research and practice is defined herein, is within the practice of psychology governed by K.S.A. 74-5302 et seq. Whether the research and practice in question is exempted from the licensure requirements governing the practice of psychology depends upon the specific circumstances of the research and the qualifications of the person conducting the neurofeedback. Cited herein: K.S.A. 65-6301; 74-5302; 74-5340; 74-5344; K.A.R. 102-1-1; 102-1-11.

* * *

Dear Representative Garner:

As representative for the eleventh district you inquire, on behalf of a constituent, whether the state requires any licensing, certification or regulation of an individual wishing to provide neurofeedback services. Specifically you inquire whether the practice of neurofeedback is regulated.

You indicate that your constituent wishes to establish a practice wherein he will use an electroencephalogram (EEG) to measure electronic brain patterns and activity in order to re-train the brain after traumatic head injuries and to modify behavior in overcoming drug addiction.

A perusal of the literature dealing with the training of brainwaves indicates that neurofeedback therapy involving EEG testing is closely related to biofeedback therapy. See Peniston and Kulkosky, "Alpha-Theta Brain Wave Training and Beta - endorphin levels in Alcoholics," 13 Alcohlism 271 (1989); Peniston and Kulkosky, "Alcoholic Personality and Alpha-Theta Brain Wave Training," 3 Medical Psychotherapist, 37 (1990); Jones and Holmes, "Alcoholism, Alpha Production, and Biofeedback, 44 Journal of Counseling and Clinical Psychology, 224 (1976); Varga and Nagy, "Analysis of the Alpha Rhythm in the Electroencephalograph of Alcoholics," 12 Electroencephalography and Clinical Neurophysiology, 933 (1960); Wutke, M., "Addiction, Awakening and EEG Biofeedback," 20 Biofeedback: Newsmagazine of the Association of Applied Psychophysiology and Biofeedback, 18 (June, 1992).

Biofeedback is regulated as part of a licensed profession in many states: physical therapists (UT, 58-24a-103); naturopaths (WA, 18.36A.020); psychologists (AK, 08.86.230), (CA Bus & Prof 2903.1), (CO, 12-43-301), (IL, ch. 225 s/5/2); (LA, 63-11-203), (MI, 333.18201), (MO, 337.015), (UT, 58-25a-2), (WY, 33-27-113). Though none mention neurofeedback per se, the majority of these states regulate biofeedback as part of the practice of psychology.

In Kansas the practice of psychology is defined in K.S.A. 74-5302 as follows:

"(a) 'Practice of psychology' means the application of established principles of learning, motivation, perception, thinking and emotional relationships to problems of behavior adjustment, group relations and behavior modification, by persons trained in psychology. The application of such principles includes, but is not restricted to, counseling and the use of psychological remedial measures with persons, in groups or individually, having adjustment or emotional problems in the areas of work, family, school and personal relationships; measuring and testing personality, intelligence, aptitudes, public opinion, attitudes and skills; the teaching of such subject matter; and the conducting of research on problems relating to human behavior, except that in all cases involving the care of the sick and ill as defined by the laws of this state, the primary responsibility devolves upon those licensed under the Kansas healing arts act." (Emphasis added).

It appears that conducting tests to measure brainwaves and the subsequent application of principles derived therefrom to alter behavior comes within the scope of the statute defining the practice of psychology. The unlicensed practice of this activity may be the unlawful practice of psychology if one engages in the practice for a fee, monetary or otherwise or if one represents oneself to be a psychologist.

"(b) 'Represents oneself to be a psychologist' means that a person engages in the practice of psychology for a fee, monetary or otherwise, or holds oneself out to the public by any title or description of services incorporating the word 'psychologic,' 'psychological,' 'psychologist' or 'psychology' and under such title or description offers to render or renders services to individuals, corporations or the public for a fee, monetary or otherwise." K.S.A. 74-5302(b). (Emphasis added).

Subsection (b) above makes it clear that an unlicensed individual may not engage in work of a psychological nature (as defined by K.S.A. 74-5302) for a fee, monetary or otherwise and may not use any form of the word psychologic in their title. Engaging in either of these practices without a license is the unlawful practice of psychology.

The act regulating and licensing psychologists establishes a number of exemptions to the licensure requirements. Discussing only those that appear relevant, K.S.A. 74-5344 exempts, from the licensure requirements, professional groups doing work of a psychological nature, consistent with their training and consistent with any code of ethics of their respective professions, so long as they do not hold themselves out to the public by title or description of services using the words psychologic, psychological, psychologist or psychology. K.S.A. 74-
5344(a). See also K.S.A. 74-5344(b) (allowing the free exchange of ideas, application, teaching and research by these groups.) See e.g. K.S.A. 65-6301 (regulates the practice of social work that involves psychotherapy); see also 74-5344(h) (allowing use of the term social psychologist). The statute does not restrict the use of psychological tools, tests, instruments or techniques by an unlicensed person working under the supervision of a psychologist so long as the user does not represent himself as any type of psychologist. K.S.A. 74-5344(e). Also exempted from the regulatory scheme is the practice of a person certified as a school psychologist by the state department of education so long as the practice is part of the duties of employment by a unified school district. K.S.A. 74-5344(i).

In conclusion it is our opinion that neurofeedback as described herein, while not specifically mentioned in our statutes as the practice of a regulated profession, is within the definition of the practice of psychology, governed by K.S.A. 74-5302 et seq. Whether the research and practice in question is exempted from licensure requirements depends upon the specific circumstances and the qualifications of the person conducting the neurofeedback.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Guen Easley

Assistant Attorney General

RTS:JLM:GE:jm