September 1, 2006

ATTORNEY GENERAL OPINION NO. 2006- 23

Phyllis Gilmore, Executive Director

Behavioral Sciences Regulatory Board

712 S. Kansas Avenue

Topeka, Kansas 66603

Re:	Public Health--Alcoholism and Intoxication Treatment--Licensure of Treatment Facilities; Applicable to Psychologists, Specialist Clinical Social Workers, Clinical Professional Counselors, Clinical Psychotherapists, Clinical Marriage and Family Therapists and Registered Alcohol and Other Drug Abuse Counselors

Synopsis:	The offering of alcohol treatment creates a treatment facility which must be licensed if it is to operate. The fact that a person offering such services is licensed as a psychologist, a specialist clinical social worker, a clinical professional counselor, a clinical psychotherapist, a clinical marriage and family therapist or registered as an alcohol and other drug abuse counselor does not excuse such person, i.e., the facility, from this requirement. Whether such a dual license requirement is necessary or appropriate is a policy decision best left to the Legislature. Cited herein: K.S.A. 65-4001; K.S.A. 65-4602 ; K.S.A. 65-4003(4), repealed, L. 1982, ch. 269, § 3; K.S.A. 65-4012; K.S.A. 65-4022; ;L. 1998, ch. 134, §1; L. 1998, ch. 134, § 52; K.A.R. 30-31-1.

*	*	*

Dear Mrs. Gilmore:

As Executive Director of the Behavioral Sciences Regulatory Board, you ask whether any of the following licensed persons have statutory authority to provide addictions counseling without being licensed by the Kansas Department of Social and Rehabilitation Services (SRS) as a treatment facility: psychologists, specialist clinical social workers, clinical professional counselors, clinical psychotherapists, or clinical marriage and family therapists. Additionally, you pose the same question regarding registered alcohol and other drug abuse counselors.

In 1981, then Attorney General Robert Stephan was asked this question in relation to psychologists. He opined that if psychological services were rendered, even on an out-
patient basis, for the treatment of alcohol or drug abuse, a treatment facility was created pursuant to K.S.A. 65-4003(4)1 and/or 65-4602(b),2 and concluded that:

"The offering of such services creates a 'treatment facility' which must be licensed if it is to operate, and the fact that a person offering such services has been previously licensed as a practicing psychologist does not excuse him from this requirement."3

Then, as now, the Alcoholism and Intoxication Treatment Act4 prohibited persons from establishing, conducting or maintaining a treatment facility without a license;5 doing so was, and is, punishable as a class C misdemeanor.6 The 1981 opinion was grounded, in large part, on the definition of "treatment facility" found at K.S.A. 65-4003(4) which, in 1981, specifically excluded only licensed medical care facilities, licensed adult care homes, psychiatric hospitals, community mental health centers and facilities for the mentally retarded or other handicapped persons.

In response to Attorney General Stephan's 1981 opinion,7 the 1982 Kansas Legislature amended the statutory definition of "treatment facility" found at K.S.A. 65-4003(4) to additionally exclude:

"A certified psychologist or a person licensed to practice medicine and surgery if such psychologist or person licensed to practice medicine and surgery treats in the usual course of their professional practice alcoholics or intoxicated persons or persons incapacitated by alcohol and are not exclusively engaged in the ususal course of their professional practice in treating such persons . . . ."8

This amendment removed the dual license requirement for psychologists and doctors that Attorney General Stephan's opinion had mandated. Then in 1998, the Legislature repealed K.S.A. 65-4003.9 The effect of the repeal was to eliminate any statutory definition of "treatment facility" in the Alcoholism and Intoxication Treatment Act.10 However, since 1978 an SRS administrative regulation has been, and remains, in effect that defines "treatment program" as:

"Any place, building, couple of buildings, office or private dwelling, which provides treatment services to alcohol and/or drug abusing persons through the provision of guidance, supervision, and personal services designed to assist the individual in rehabilitation or habilitation to a healthy mode of living. The term alcohol and/or drug abuse treatment program shall not apply to licensed medical care facilities, licensed adult care homes, or licensed mental health centers."11

While the current regulatory definition differs somewhat from the now repealed K.S.A. 65-
4003(4) statutory definition, the former excludes as the latter excluded certain types of facilities from the scope of "treatment program" or "treatment facility" As Attorney General Stephan opined in 1981, "[g]iven [these limited exceptions], there would appear to be no avenue open to a private individual who wished to operate a treatment facility but to submit to licensure."

Based on the foregoing analysis, we affirm the conclusion reached in Attorney General Opinion No. 81-90: The offering of alcohol treatment creates a treatment facility which must be licensed if it is to operate, and the fact that a person offering such services is licensed as a psychologist, a specialist clinical social worker, a clinical professional counselor, a clinical psychotherapist, a clinical marriage and family therapists or registered as an alcohol and other drug abuse counselors does not excuse such person from this requirement.

Whether such a dual license requirement is necessary or appropriate is a policy decision best left to the Legislature.

Sincerely,

Phill Kline

Attorney General

Camille Nohe

Assistant Attorney General

PK:JLM:CN:jm