The Following is Adapted from:
CAPP v. RANK: MORE OF THE INSIDE STORY
The Independent Practitioner, 1992, 12, 54-57
Stephen E. Berger, Ph.D., ABPP
"A couple of us are filing an action against the California Department of Health Services (DHS). They have a regulation that prohibits psychologists from writing a hospitalized patient's diagnosis and treatment plan. We're looking for some other individual psychologists who do hospital practice to lend their names to the action. This shouldn't be a big deal, and you won't be responsible for legal fees." With essentially those words, Steve Frankel, Ph.D., ABPP walked the couple of steps from his room to mine and made me an offer I couldn't refuse. Thus I became one of the 8 CAPP v. Rank individually named plaintiffs along with Drs. Stuart Wilson, ABPP, Lawrence Blum, Gary Bodner, Steve Frankel, ABPP,JD, Corey Fox, Lisa Pomeroy, Carleton Purviance. Thus, CAPP v. Rank is really: CAPP, et. al. We are the 8 et. als.
In planning this article, Kris Ludwigsen, Ph.D., Chair of the Division 42 Hospital Practice Committee asked me to share my experiences as a plaintiff in this case as well as what we have accomplished in getting CAPP v. Rank implemented in Orange County, California through our Hospital Practice Committee, and to bring this momentous case to "life." I have been on this road since 1984, and I've enjoyed the good company of a number of psychologists. In writing this article, I want to acquaint you with as many of them as I can.
I'll begin by telling you the ending. In Orange County, we established in the by laws of our acute care psychiatric hospitals, that psychologists admit, diagnose, coordinate the treatment team and discharge our patients. In other words, the Community Standard of Care is that we have the responsibility for the psychological care of our patients.
In addition, our hospitals provided funding for Grand Rounds presentations by psychologists, for Hospital Practice Workshops for Psychologists, for continuing education programs for psychologists and even provided funding for our Annual Dinner. Clearly, practicing in a hospital means taking the resources available to your patients/clients at your private office and expanding those resources into a multi-million dollar facility with a nursing staff, occupational and recreational therapists, educational resources including a teaching staff, physical equipment, medical personnel to consult with you, other mental health professionals to provide specialized therapy groups - and all of this under your direction (Berger, 1991a).
In order to appreciate this journey fully, and the people who have been traveling this road, you need to understand that CAPP v. Rank. was about two specific regulations promulgated by DHS under its Director, Peter Rank to implement Section 1316.5 of the California Health and Safety Code. Created in 1978 and amended in 1980, 1316.5 is our "Hospital Practice Law" (Berger, 1991c). The Statute states: (a) clinical psychologists may be on the Medical Staff of a hospital and (b) hospitals may not discriminate against clinical psychologists in terms of services within the scope of our license. Despite clear state laws to the contrary, DHS promulgated regulations that only a psychiatrist could make a patient's diagnosis and treatment plan. Consequently, only a psychiatrist, not a psychologist, could be responsible for the patient's psychological care.
The Heart of CAPP v. Rank
The core of CAPP v. Rank goes much deeper than the technical issues outlined above. Bryant Welch, J.D., Ph.D., Executive Director of the APA Practice Directorate, and a key participant in CAPP v. Rank stated, "While the concrete value ... is only slowly seeping into the economic structure of professional psychology,the symbolic value has been of crucial importance to our young professionals who now realize that through earnest advocacy efforts they can prevail, particularly against those psychiatrists who confuse their license to practice with a legal patent, which bestows monopolistic rights."(Welch, 1991).
The fundamental issue in CAPP v. Rank is our belief about ourselves as psychologists. Specifically, do we believe that we have the knowledge, training and competence to form the kind of therapeutic relationship with our clients/patients that permits (requires ?) us to have the ultimate responsibility for their psychological care? Those of us who fight this battle on the front line are committed to the position that the unique education, knowledge, training and experience that we have as psychologists indeed makes us competent to form a therapeutic relationship within which we are responsible for the psychological care of our clients/patients (Berger, 1991b). The California Supreme Court directly affirmed our position in two distinct places in the CAPP v. Rank decision in 1990.
Implementing CAPP v. Rank
In July, 1985, the Superior Court ruled in our favor in CAPP v. Rank. While further legal action eventually brought us to the California Supreme Court, many of us in Orange County set about getting the Superior Court ruling implemented. After all, the Supreme Court had refused to stay the Superior Court order, DHS had issued new regulations, so PSYCHOLOGY'S POSITION WAS THE LAW.
Because of my involvement as an individual plaintiff in CAPP v. Rank, I took on other responsibilities and intertwined two themes that have occupied my professional life the past seven years: (1) my role as a plaintiff in CAPP v. Rank, and (2) its implementation in Orange County.
In November, 1986, I became Chair of the Psychology Committee at Capistrano by the Sea Hospital (Capo) with a charge from the psychologists to get the bylaws changed to conform to CAPP v. Rank. That summer, the administration at Capo took the position that the hospital's referral list was under their control and psychologists would be eligible for referrals and could also write orders. Thus, psychologists with active status (approximately 9 every year) could now expect to earn, on average, at least $10,000.00 each per year on hospital referrals (based on 1986 figures).
In January, 1987, Gene Ericson, Ph.D., President of the Orange County Psychological Association (OCPA) asked me to Chair their Hospital Practice Committee. As Chair at Capo and Chair of the OCPA Hospital Practice Committee, Capo would be the first priority for OCPA's funds - which turned out to be $213.57.
In the next year, we raised over $13,000 from Orange County Psychologists, and the OCPA treasury contributed a couple thousand more over the next couple of years. A fund raiser, a grant from the California Psychological Association (CPA), and reimbursement by CAPP of some of our legal expenses provided our county Hospital Practice Committee about $20,000 in resources by 1990. I was blessed with an especially assertive and intelligent Hospital Practice Committee at OCPA: originally Drs. Mike Trevitt, Daun Martin, Marv Rofsky, Carole Selin and Larry Meyers. Later, Drs. Michele Weil, Diane Silber, Judy Rosenberg, Robert Karman, and Roz Laudati and Mike Angioli joined the committee. At my request, Dr. Thom Cavalli became Chair in January, 1991. Their contributions to improving hospital practice opportunities for psychologists cannot be overestimated.
We Hire Attorneys
Meanwhile, in January, 1987, the Medical Staff at Capo decided it would not change its bylaws to allow psychologists to write orders of any kind. This was despite the urging of the administration, the hospital attorney and the fact that we had already attended an in-service on order writing conducted by the Chief of Staff – despite having publicly written that in his opinion psychologists had to be supervised by psychiatrists. The ball was in our court. We hired legal counsel. We did not want to do that - but we knew there was no other way. Within a couple of months, more than half the 70 psychologists on staff sent money to pay legal fees. My fellow psychologists and freiends Drs. Jay Gale and Andrew Schwartz joined me as a legal sub-committee.
Eventually, the administration submitted proposals to the Medical Executive Committee to change the bylaws. We thought their proposals had serious flaws. At the following Medical Staff meeting, we were able to get the Active Medical Staff (20+ psychiatrists with votes and 9 psychologists with votes) to reject the flawed proposals. A psychiatrist then insisted (moved, seconded and passed) that the Medical Executive Committee meet with a psychologist, chosen by the psychologists, to come up with new proposals.
In preparation for that meeting, the administration modified its proposals more in line with our thinking, but still with some objectionable parts. The legal sub-committee and I went to the next Medical Executive Committee meeting. However, the Chief of Staff only permitted me to be in the room. I offered a compromise on an item relating to staff officers. At one point, the owner of the hospital offered a compromise on another item which I said was agreeable to me, and I thought would be agreeable to the psychologists. However, a psychiatrist said that they would simply listen to any objections I had to this set of proposals and after I left the room they would decide if they would make any changes, but not with me present. Subsequently, no changes nor compromises were made or offered.
This new set of proposals was passed at the June Medical Staff meeting. However, first one of the psychiatrist attendees from the Medical Executive Committee meeting rose to attack Jay Gale and I, claiming that our real intent was to sue the hospital. I think you should be aware that this can happen, so that you can understand how essential it is that you support your fellow psychologists, personally and financially.
CAPP Goes to the Supreme Court
In the meantime, organized medicine had appealed our victory at the Superior Court. Although the State Supreme Court had refused to stay the Trial Court (Superior Court) order, eventually, the Supreme Court ordered the Appellate Court to hear the case on its merits. In 1988, the Second District Court of Appeal filed its opinion in CAPP v. Rank. The Court acknowledged that California law recognized the right of psychologists to treat our patients without physician supervision. However, the conditions and restrictions the Appellate Court placed on our practice could have been disastrous. Organized Psychology, especially the Practice Directorate, came to the rescue.
In Orange County, our focus of action changed. A call went out asking interested parties to write to the State Supreme Court urging review of the Appellate Court decision. I drafted a letter for the Orange County Psychological Association. On a Sunday, Mike Trevitt, Judy Rosenberg, Marv Rofsky and I met at Marv's office to revise the letter. We then took it to Richard Sherman of the law firm of Irell and Manella who shaped it into a formal letter to send to the Supreme Court. We sent it to CPA which liked it so much that, with our consent, they shaped it into CPA's letter to the Court. Win Schachter, J.D., Ph.D., Executive Director of CPA, was so impressed with our contribution that he obtained a grant from CPA to support our efforts. I am proud to say that I can identify seven different points in our letter that appeared in the Supreme Court Majority Opinion in our favor.
Other supporting letters to the Supreme Court came from other psychologists, psychiatrists, hospital administrators, the Board of Psychology, a city manager and the anti-trust division of the LA District Attorney's office. The Practice Directorate provided us with the legal services of Clifford Stromberg of the Washington, D.C. law firm of Hogan and Hartson. Ciff became co-counsel with CAPP's attorney, Michele Licht and presented the Oral Argument in CAPP v. Rank. In Orange County, we provided the funds for Michele to get consultations with Richard Sherman of Irell and Manella. On August 25, 1988, the California Supreme Court granted CAPP's petition for review. That effectively reinstated the Superior Court Order, so we were back in business!
In Orange County, we had not been idle. We continued to press our hospitals on the law and on the value of having psychologists as full members of the medical staff. We obtained that status at Midwood and Brea. Diane Silber, was instrumental in obtaining full medical staff status for psychologists at Children's Hospital, one of the most prestigious hospitals in Orange County. This is a medical hospital without a psych unit! Clearly, the validity of psychologists as full members of the medical staff does not stem simply from our contributions to psych units or psych patients. At St. Joseph hospital, Mike, Marv, Judy, Larry and Diane continued to produce a file of documentation of the efforts of the psychologists there to bring the hospital's bylaws into compliance with state law. The CPC Hospital chain began to make changes in its bylaws to come closer into compliance with state laws. When Charter Hospital opened in Mission Viejo in 1990, I was invited to review their bylaws by Charter's corporate headquarters. The final bylaws granted the two most important rights of psychologists: full medical staff status and admitting privileges. Also, there would be ONE attending doctor, which would be the psychologist when admitting the patient. We would write an order specifying a consulting psychiatrist. Only a defeat at the Supreme Court could stem the tide now!
PSYCHOLOGY SPENDS AN HOUR WITH THE CALIFORNIA SUPREME COURT
The stakes for all psychologists in CAPP v. Rank were extremely high. Organized medicine attacked the basic competence of our profession. They did acknowledge that psychologists are accepted as expect witnesses in a court of law, having lost that legal battle in 1962 (Hoch, E.L. and Darley, J.G., 1962 and 1964), but they asserted that hospital expertise was more important than the process in a courtroom, and that a psychologist could not be responsible for a patient's psychological care in a hospital.
The issues organized medicine raised in CAPP v. Rank ranged far beyond technical legal arguments and points of law. It was essential that we psychologists and our attorneys worked together as intimately as possible. From the top to the bottom, we made that happen. There were written communications and phone conferences including the attorneys, individual CAPP plaintiffs, the President of CAPP (Steve Doyne), Chuck Faltz (Chair of CPA's Division I Hospital Practice Committee) and Bryant Welch of the Practice Directorate. Russ Neuman, J.D., Ph. D. of the Practice Directorate provided legal analysis, and there were contributions from several others. I suspect that all levels of psychology have never worked in such detailed communication with each other before. There is a spirit of cooperation and respect that grows from such communication. I believe organized psychology has never been more effective than it was then.
Even after the briefs were written, the work wasn't done. Next came the Oral Argument at the Supreme Court. Sitting through those 60 minutes was one of the most difficult yet exhilarating experiences of my life. The night before the Court was to hear the oral arguments, Bryant Welch brought us all together for dinner. It was certainly an emotional evening. Some of us were meeting each other for the first time after years of being on this road together. There was one particular point whose psychological value we had been discussing for some time that was not in the planned final oral argument. The next day, as Cliff concluded his final rebuttal and the hearing was closed, he included that point. In the final Majority Opinion, it is referenced twice. Our commitment to our cause was vindicated when the majority ruled in our favor in June, 1990. Organized medicine asked for a rehearing, but in September the Supreme Court turned them down and CAPP v. Rank is now in the history books. Later, CAPP sued organized medicine for legal fees incurred in the case. CAPP graciously accepted a settlement that will substantially fund future efforts on behalf of psychologists as CAPP continues to have a large money market fund established by this settlement.
Back to the Trenches
Now things could speed up in Orange County. While our opponents would try to obscure the meaning of the Decision and our victory, we understood the clear Decision that had been rendered. In analyzing California Law, the Decision states: "It follows that psychologists may carry the responsibility of diagnosing and treating the psychological problems of patients in hospitals" (page 15). "The `without discrimination' clause signifies that in performing such services [diagnosing and treating] the two professions, each authorized by law, stand on an equal footing; neither is subject to constraints from with the other is free" (page 16). The Court was equally clear, repeatedly, that the anti-discrimination provision of Section 1316.5 applies whenever there are psychologists on the staff of the hospital. Thus, we were going to push ahead with removing discriminatory restraints on our practices in hospitals
At Capo hospital, a new joint committee of psychology, psychiatry and administration was formed. In October and November, Thom Cavalli and I met with the Corporate Counsel for the CPC Corporation. We wanted all our Orange County Hospitals to grant full medical staff status and admitting privileges to psychologists. We also wanted to eliminate the mandated number of psychiatrist visits with psychologist's patients. Why should a psychiatrist be guaranteed approximately $2000 a month in income every time a psychologist admitted a patient to the hospital? In November, Charter Mission Viejo removed the mandated psychiatrist visits from their bylaws and written policy stated that psychologists can choose their medical consultants including the physician for the history and physical. In December, Capo announced that as of March 1, 1991, unspecified bylaws changes would go into effect to further implement CAPP v. Rank.
In March, Capo strode to the front. Following Charter Hospital, co-admitting was gone, mandated number of psychiatrist visits was gone, there would be one attending doctor, who could be the psychologist with a consulting psychiatrist. In addition, psychologists were now eligible to be elected Chief of Staff. If that happened, then a psychiatrist had to be Vice-chief of staff. Similar bylaws changes occurred at the various CPC hospitals and College Hospital Costa Mesa. I have been told that the job of writing the changes belonged to Peter Rank who now worked for College Hospital.
The process isn't finished here in Orange County or anywhere in this nation. While the majority of psychiatrists I know work comfortably consulting to the attending psychologist, their leadership is in another world, but it is not reality. Their leadership is blind to the fact that CAPP v. Rank is working. It is good for patients, psychologists and psychiatrists - professionally and economically (even though managed care has hurt hospital practice for both psychologists and psychiatrists). I hope that you feel a lot of pride about what your profession is accomplishing, and that you also have an understanding of what a difficult intellectual and emotional journey this has been and continues to be. I also hope you have a better understanding of some of the basic issues and events in this process.
You should also have a greater awareness of the fact that many people have been involved in winning this battle - only some of whom have been named here in my focus on Orange County and the close working relationship between the Orange County Psychological Association and CAPP. As a consequence of this greater awareness, I expect that more of you will get involved both personally and financially. Your ideas, energy and resources are needed. Don't expect that those who have forged this path in the jungle can build he entire highway. Don't assume that someone other than you will fill the gaps. Finally, this is living history - - you can either be a by-stander and say, "I had a ringside seat and watched what other psychologists did" or you can get involved, participate and say, "I helped make a part of psychology's history!"
Berger, S.E. What it Means to Practice in a Hospital. Hospital Practice Workshop. California Psychological Association, La Jolla, California, February, 1991a.
Berger, S.E. Understanding CAPP v. Rank. Hospital Practice Workshop. Los Angeles County Psychological Association Convention, Los Angeles, October, 1991b.
Berger, S.E. Developing Hospital Practice Opportunities After CAPP v. Rank. Symposium Participant: Hospital Practice in the 90's: Issues and Opportunities. American Psychological Association Convention, San Francisco, California, August, 1991c.
Hoch, E.L. and Darley, J.G.. A Case at Law. American Psychologist, 1962, 17, pp. 623-654.
Hoch, E.L. and Darley, J.G.. A Case at Law. Advancing Psychological Science, 1964, 1, pp. 98-118, Sanford, F.H. and Capaldi, E.J. (Eds.). Wadsworth Publishing Co. Inc., Belmont, California.
Welch, B. L. Practice Directorate's Paradigm II - a ray of hope. APA Monitor, 1991, 22, No. 9, pp. 36-37.