IMPORTANT MMHCA UPDATE
Since the Michigan Supreme Court issued its ruling on 10/2/2020 striking down the 1945 law which was the basis of the Governor’s declaration of emergency and related executive orders, our authority to do virtual supervision and provide telehealth has been up in the air. MMHCA has been working with both the Governor’s office and the Legislature to seek clarification.
On 10/9/2020, the Michigan Department of Health and Human Services (MDHHS) issued a new order which rescinds the order previously issued on 10/5/2020 and which is effective through 10/30/2020. The new order is accompanied by a fact sheet which first defines a workplace gathering as follows: “Gathering means any occurrence where two or more persons from more than one household are present in a shared space. Except for incidental gatherings in a shared space, all gatherings must include 6 feet of social distance between households.”
The fact sheet goes on to say: “Workplace gatherings are prohibited under the following circumstances: it is not necessary to perform job duties; employees not wearing face coverings cannot maintain six feet of distance from others; employees not wearing face coverings occupy the same shared space; if they include any person who is experiencing COVID-19 symptoms or who is subject to a CDC recommendation to isolate or quarantine.”
Because both a counseling session and a clinical supervision session can fall under this definition of “gathering”, and the order stipulates that such gatherings are “prohibited if not necessary to perform job duties”, this seems to give us some authority as LPC’s/LLPC’s to continue to provide telehealth and to do supervision remotely.
And while legislation has been passed stipulating that Medicaid will continue to reimburse for telehealth, it is not clear what private insurers will do. SB 898 provides for the following: “If a service is provided through telemedicine under this section, the insurer shall provide the same coverage for that service as if the service involved face-to-face contact between the health care professional and the patient.”
At a hearing on 10/7/2020, MMHCA Past-President Napoleon Harrington provided compelling testimony In support of this bill on behalf of MMHCA. Other groups testified against the bill. There was no vote on the bill, and a subsequent hearing will be held, probably after the election.
MDHHS issues Emergency Order designed to protect the health and safety of all Michiganders
Directive restricts gatherings, requires face coverings, limits bars and other venues
LANSING, Mich. – Michigan Department of Health and Human Services (MDHHS) Director Robert Gordon today issued an Emergency Order under MCL 333.2253 restricting gathering sizes, requiring face coverings in public spaces and places limitations on bars and other venues.
The order follows the Michigan Supreme Court decision on Friday, Oct 2, that invalidated COVID-19 related executive orders. Today’s order relies on authorities that were first enacted after the Spanish Flu of 1918, and that were not at issue in the Michigan Supreme Court’s decision.
“When it comes to fighting COVID-19, we are all in this together. We need Michiganders everywhere to do their part by wearing masks and practicing safe physical distancing so we can keep our schools and small businesses open and protect the brave men and women serving on the front lines of this crisis,” said Gov. Gretchen Whitmer. “The epidemic order that Director Gordon issued today is an important step to protect Michiganders across the state from the spread of COVID-19. Let’s all mask up and stay safe.”
Under MCL 333.2253, if the MDHHS director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Gordon shares more about the reasoning behind the order in a recent column.
Violations of this order are punishable by a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200, or both. Violations of this order are also punishable by a civil fine of fine of up to $1,000.
“Michigan was hit hard by COVID-19 early in the pandemic,” said Gordon. “Strict preventive measures and the cooperation of Michiganders drove those numbers down dramatically, greatly reducing the loss of life. As we head into flu season, this order is necessary to protect vulnerable individuals, ensure the health care system can provide care for all health issues, keep schools open, and maintain economic recovery.”
Today’s orders largely reinstate, under the department’s authority, three major aspects of prior emergency orders:
- Requirements to wear masks at indoor and outdoor gatherings: The order requires individuals to wear masks when in gatherings, defined as any occurrence where persons from multiple households are present in a shared space in a group of two or more, and requires businesses and government offices to enforce those requirements for gatherings on their premises. The order also requires the wearing of masks at schools, except for in Michigan Economic Recovery Council Region 6.
- Limitations on the size of gatherings: The order reinstates limitations on gathering sizes that mirror the requirements that Governor Whitmer had previously put in place. These include indoor gatherings of more than 10 and up to 500 people occurring at a non-residential venue are permitted within the following limits:
- In venues with fixed seating, limit attendance to 20% of normal capacity. However, gatherings up to 25% of normal capacity are permitted in Michigan Economic Recovery Council Region 6.
- In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room. However, gatherings of up to 25 persons per 1,000 square feet are permitted in Michigan Economic Recovery Council Region 6.
- Non-residential outdoor gatherings of between 100 and 1,000 persons at venues with fixed seating are permitted at up to 30% of normal capacity and at 30 persons per 1,000 square feet at venues without fixed seating.
- Limitations on certain establishments: Although the order does not close bars, it requires them to close indoor common areas where people can congregate, dance or otherwise mingle. Indoor gatherings are prohibited anywhere alcoholic beverages are sold except for table services where parties are separated from one another by at least six feet.
In addition, athletes training or practicing for or competing in an organized sport must wear a facial covering, except when swimming, or consistently maintain six feet of social distance.
Pursuant to MCL 333.2235(1), local health departments are authorized to carry out and enforce the terms of this order. Law enforcement officers, as defined in the Michigan Commission on Law Enforcement Standards Act, 1965 Public Act 203, MCL 28.602(f), are deemed to be “department representatives” for purposes of enforcing this order, and are specifically authorized to investigate potential violations of this order. They may coordinate as necessary with the appropriate regulatory entity and enforce this order within their jurisdiction.
This order is effective immediately and remains in effect through Friday, Oct. 30. Individuals with suggestions and concerns are invited to submit comments via email to COVID19@michigan.gov.
Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
From MMHCA’s Public Policy Committee: The Michigan Supreme Court ruled on 10/2/2020 that the 1945 Law which gave the Governor the authority to declare a state of emergency and related executive orders was unconstitutional. While it is unclear exactly when this ruling will go into effect, there seems to be bipartisan consensus that it is not yet in effect. It is also highly likely that some provisions of the executive orders will continue under alternative authorities.
While this situation is getting sorted out by lawyers and the courts, MMHCA recommends LPCs continue working as they have been for the last several months (teletherapy if possible, providing supervision virtually, etc.).
MMHCA, due to the strong relationships it has built, is in touch in coordination with our lobbyist, with both the Governor’s office and the legislature, which allows us to be informed at the highest level. Please be assured that MMHCA is closely monitoring the situation and will keep you updated and informed in the most timely manner possible.
This is great news for Counselors in Michigan!
September 24, 2020
Yesterday, the House of Representatives approved S. 785, sending a major VA mental health and counseling bill to President Trump for signature. The bill is the most significant new legislation for the counseling profession in over a decade and a tremendous advancement for mental health counselors working for the federal government, and particularly the Department of Veterans Affairs.
This historic legislation directs the U.S. Office of Personnel Management to create the first ever federal government classification for mental health counselors, referred to as an Occupational Series. The Series will allow counselors to work in federal government agencies under the title of mental health counselor instead of generic Series that apply to many professions. Social workers and psychologists have had their own Occupational Series for decades and it is past time counselors have the same level of recognition. Creation of an Occupational Series for mental health counselors has been a top federal priority for national counseling organizations for many years and is a hard won success.
S. 785, the Commander John Scott Hannon Veterans Mental Health Care Improvement Act of 2019, also takes several steps to increase the hiring, training, and advancement of mental health counselors within the Department of Veterans Affairs (VA). The bill requires the Comptroller General of the United States to prepare a study on staffing levels of mental health counselors and marriage and family therapists. The study will identify “impediments to carry out the education, training, and hiring of mental health counselors and marriage and family therapists”, as well as a “description of the objectives, goals, and timing of the Department with respect to increasing the representation of such counselors and therapists.” The bill also creates scholarships for counselors interested in working for the VA Readjustment Counseling Program.AMHCA lobbying firm, Bergman Strategies, worked closely with Members and staff from the Senate and House Veterans Affairs Committees to develop and advance this important legislation. AMHCA was the only counseling organization to help shepherd this bill through both chambers, but partnered with the American Association for Marriage and Family Therapy / California Association of Marriage and Family Therapists.
S. 785 was introduced by Senators Jon Tester (D-MT) and Jerry Moran (R-KS), the Ranking Member and Chairman of the Senate Veterans Affairs Committee (SVAC). These Senators are long-term champions for increased recognition of mental health counselors, Senator Moran having introduced the original House bill that opened the VA to the profession in 2006. The SVAC passed the bill in December 2019, but the bill really started to gain steam when it passed the Senate on August 5, 2020.
AMHCA and AAMFT/CAMFT lobbyists had been working with the House Veteran Affairs Committee (HVAC) on companion legislation, but efforts intensified after Senate passage. Representative Jahana Hayes (D-CT) introduced H.R. 8145 on September 1, a standalone bill that matched the counselor components in S. 785. The legislation was included in a September 10 hearing and September 17 markup. House Veterans Affairs Committee Chairman Mark Takano (D-CA) and his staff showed strong commitment to the counselor legislation and ensured that it was maintained throughout the process.
S. 785 will be sent to President Trump for signature. The legislation requires creation of the counselor Occupational Series within one year from enactment. There is no timeframe for the Comptroller report on VA staffing, but it must be reported to the House and Senate Committees within 90 days of completion.
The passage of legislation to create an Occupational Series for mental health counselors is a tremendous success for the counseling profession and AMHCA is proud to have played such a pivotal role in its achievement. The Series will increase federal government recognition and hiring of mental health counselors. S. 785 will also expand employment and training of mental health counselors within the VA, a long-term priority of the association. AMHCA wants to thank Senators Tester and Moran, as well as Representatives Takano, Brownley, and Hayes for their commitment to this important legislation.
James Blundo MMHCA Executive Director and a member of the AMHCA Public Policy and Legislation Committee and Midwest Director on the AMHCA Board of Directors worked along with Dr. Sarah Sue Schaffer and Dr. Jeremy Norwood to gain support from three Michigan members of the US House of Representatives.
The Three US Reps from on the Energy and Commerce Committee were contacted to request their support HR 945. Upton, Walberg, and Dingell all considered our request to vote for the bill. It passed out of the committee unanimously on Wednesday September 9, 2020.
David Bergman Legislative Affairs Consultant for AMHCA was extremely helpful to us in identifying and helping with talking points.
This is a huge victory for counselors in Michigan and the 140,000 mental Health Counselors in the Untied States. The struggle is far from over, but this is a great move forward.
Please participate in the Call to Action and thank Michigan’s members of the Energy and Commerce Committee of US House.
September 9, 2020
Today, the House Energy and Commerce Committee approved HR 945 in an historic vote supporting Medicare coverage for the counseling profession. While this legislation has passed both the House and Senate twice over the years, never before has the bill been voted on as a standalone measure rather than part of a broader package.
AMHCA Legislative Affairs consultant, David Bergman, posted an advocacy update in the AMHCA community today.
Energy and Commerce Committee Chairman Frank Pallone, Jr’s (D-NJ) opening remarks described HR 945 as “bipartisan legislation that would improve access to mental health providers in the Medicare program by covering mental health counselor and marriage and family therapist services.”
The sponsors of HR 945, Congressmen Mike Thompson (D-CA) and John Katko (R-NY), fought hard for inclusion of the legislation in the markup. They worked closely with committee staff and Members to build support for passage. Energy and Commerce Health Subcommittee Chairwoman Anna Eshoo (D-CA) also pushed for the bill, speaking on its behalf at the markup calling it a “blessing” and stating that “passage is a priority to me.” The Committee reported the bill to the full House by voice vote.
The future of HR 945 in this Congress is difficult to forecast. There are limited legislative workdays before Members leave for campaigning in October, although there is expected to be a post-election lame duck session that may provide additional opportunity. Further, a Senate calendar packed with COVID relief legislation and annual appropriations is offering little room for movement of our Senate companion bill, S. 286.
While the President’s signature cannot be guaranteed in the 116th Congress, this historic vote shouldn’t be underestimated. There remain paths for passage this year, and even if success is elusive, the Committee approval strengthens the chance for approval in the next Congress when mental health legislation is anticipated.
AMHCA thanks all members and leaders who contacted your Representatives in support of HR 945. We wouldn’t have been successful without your efforts and urge you to keep up the good work when we make our next push. We also encourage you to contact your Representatives, particularly our champions, to thank them for their support.
You can use the following link to find your Representative with email and phone numbers:
Find my Representative
Dear MMHCA members and allies,
The following is information about the latest Executive Orders (EO) that affect LLPCs, LPCs and other licensed mental healthcare providers. The information is up to date as of 9/4/20.
Executive Order 2020-175 replaces EO 2020-97. Its title is “Safeguards to protect Michigan’s workers from COVID-19.” In EO 2020-175 under number 9. Healthcare it states “Outpatient health-care facilities…must: (k) Employ telehealth and telemedicine to the greatest extent possible.” It remains the licensed Counselor’s decision if a client cannot be seen via telehealth and must be seen face to face instead, but clearly requires we use telehealth “to the greatest extent possible.” That being said, there are absolutely a variety of legitimate reasons why a client would need to be seen in person. MMHCA does recommend if you are seeing clients in person that you document why the client cannot be met with via telehealth. The rest of section 9. Healthcare in this EO details procedures that must be followed if a client/patient needs to be seen in person. EO 2020-175 was signed 9/3/20 and can be viewed here: https://content.govdelivery.com/attachments/MIEOG/2020/09/03/file_attachments/1535444/EO%202020-175.pdf
Executive Order 2020-177 was also signed 9/3/20. EO 177 extends the State of Emergency to October 1, 2020. https://content.govdelivery.com/attachments/MIEOG/2020/09/03/file_attachments/1536731/EO%202020-177%20Emergency%20declaration.pdf
EO 2020-176 replaces EO 160 and 162. Its title is “Safe Start.” The first item in this directive reinforces the directive from the EO it replaces concerning the fact that work that can be done remotely “must” be done remotely. In two regions, 6 and 8 (which are defined on page 10 of the EO) where Covid 19 is under better control, the order says “should” work remotely rather than “must.” EO 2020-176 can be viewed here: https://content.govdelivery.com/attachments/MIEOG/2020/09/03/file_attachments/1535448/EO%202020-176.pdf
EO 2020-153 replaces EO 147. Its title is “Masks” and can be viewed here: https://content.govdelivery.com/attachments/MIEOG/2020/07/17/file_attachments/1498115/EO%202020-153%20Emerg%20order%20-%20Masks%20-%20re-issue.pdf
EO 2020-138 replaces EO 86 and is titled “Encouraging the use of telehealth services during the COVID-19 emergency” and can be viewed here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-533221–,00.html
Below are several other links you may find helpful.
You can receive immediate updates from the State of Michigan about new executive orders by going to https://www.michigan.gov/coronavirus Under “press releases” subscribe to “news releases from state emergency operations center”.
The State of Michigan has the following list of resources regarding mental health during Covid-19: https://www.michigan.gov/coronavirus/0,9753,7-406-98178_99557—,00.html
The CDC document “Using Telehealth to Expand Access to Essential Health Services during the COVID-19 pandemic” can be viewed here: https://www.cdc.gov/coronavirus/2019-ncov/hcp/telehealth.html
“As the pandemic continues, healthcare systems must balance the need to provide necessary services while minimizing risk to patients and healthcare personnel (HCP).” (from the Centers for Disease Control and Prevention website)
We will do our best to keep you updated and informed.
Best wishes to you always,
MMHCA Public Policy Committee, and MMHCA Leadership Team