What to make of Utah's HB 281?
Utah's proposed HB 281 includes several provisions, but in this post I'm only focusing on the section that I'm directly qualified to comment on: legislating school mental health practice.
The context of this bill includes that Utah is strongly a parent's rights state in which adolescents do not have the ability to consent to mental health care. In addition, Utah has a network of school mental health services that is more robust than many other states. There is also of course the oppressive national and local conservative discourse that "government schools" (including school mental health staff) are "indoctrinating" students with "SEL," "DEI," "CRT," and "gender ideology."
Utah has a youth suicide rate that is above the national average. Over half of Utah high school students worry about one of their peers dying by suicide. Nearly 1 in 5 high school students reported engaging in non-suicidal self-injury during the past year. Over 25% of gay and lesbian high school students in Utah attempted suicide in the past year (compared to 5% of their straight peers).
Within this context, HB 281 purports to protects the rights of parents when it comes to school mental health services. I have heard this framed as "restoring trust" between schools and parents by codifying parent involvement. During a recent hearing, conservative parents generally spoke in favor of the bill and mental health organizations generally opposed the bill. One parent voiced their support of the bill because it would allow him to prevent his child's therapist from addressing suicide risk.
One thing that is somewhat strange is that many of the "changes" the bill proposes are already in place and have been for some time. For example, the bill states that parents need to consent before their child receives clinical mental health services in school. This has always been the case.
For another example, it gives parents the right to take certain subjects "off the table" in therapy. Although this can compromise the efficacy of therapy (and in some cases may make it blatantly unethical or impossible), in truth, parents have always have had the right to withdraw their consent for a clinician to work with their child if they do not like the conversations that are happening. Many informed consent forms, including those used by some Utah school districts, specifically list several sensitive topics that may come up in therapy so that parents are aware and agree to this possibility before their child starts services. If the parent is not comfortable with this, they do not have to consent and the provider does not have to provide services if the basic conditions of those services cannot be met or agreed upon.
The bill also requires school mental health clinicians to provide the parents a same-day summary of the session to inform them of what was generally covered unless the parents agree otherwise. Although protecting confidentiality of adolescent clients is important for therapy to be effective, it is common practice to keep parents generally informed about what is being worked on in therapy and whether the adolescent is making progress. This is especially true in therapies where adolescents are learning different skills so that parents also can be familiar with these skills and potentially help the adolescent use them. But perhaps further, these summaries are available in the treatment record which parents have always had access to (under both HIPAA and FERPA) in Utah. If parents feel that treatment is being provided that is not what was described in a process of ongoing informed consent, they already have the ability to file license complaints.
Then, there are more puzzling aspects of the bill what are hard to understand because it is not clear whether they are purposeful or are actual misunderstandings. For example, the bill as its currently written only applies to providers with an independent clinical license through the state Division of Professional Licensing. However, the majority of school mental health services are provided by school counselors, school social workers, and school psychologists who are not licensed by DOPL to provide independent clinical services, but are credentialed by the Utah State Board of Education to provide supports and related services to help kids with mental health struggles, challenging behaviors, emotional distress, or otherwise challenging outside-of-school lives, access their education. These services are not subject to the provisions of the bill. It also does not apply to counseling (or sometimes called direct psychological services) that is part of a student's IEP or 504 plan.
The bill says this does not apply to state approved crisis protocols for students. But it also says that these do not include one-on-one counseling. However, state guidance does include one-on-one counseling as part of its crisis response. Perhaps the bill authors is meant to apply this guidance to ongoing one-on-one counseling after a crisis. But that is not currently stated in the bill.
Another concern, which has also been noted by state professional associations, is that the bill includes behavioral health coaches and technicians in its definition of school mental health providers. However, in Utah, the licenses of these roles preclude them from providing "mental health therapy" although in certain situations they can provide skills groups or manualized interventions under supervision (which again shows how blurry the lines between clinical and non-clinical services can be).
A final concern is more legal in nature, which, as someone who is definitely not an attorney, I'm less qualified to comment on. However, the gist of the concern is: Isn't this the role of licensing laws and regulations (which are already on the books)? Isn't this the role of patient records access laws (which are already on the books)? Is this something that should be under the preview of DOPL and not included in a health curriculum law? What about situations that might arise where this is a conflict between this law and other relevant laws related to mental health licensure, general education, or special education? What are those potential conflicts?
All of this makes the proposal in a strange position for me. It feels strange to vocally oppose a law that mostly re-states what current ethics/laws require. On the other hand, supporting a law that mostly re-states in very messy ways what current ethics/laws require also does not sit right as it might set unintended presidents or have unforeseen negative effects.
If I had to imagine what parents might be thinking, I feel there is one potentially large misunderstanding that has not been adequately addressed by either side. I imagine many parents in support of this bill might feel relief that their child could get mental health therapy where they know the therapist will not talk to their kid about things they do not want their child discussing outside the family. However, as a clinician, I do not think this is actually how the situation will play out. When certain topics are taken off the table, therapists sometimes cannot ethically provide services. For example, if an adolescent is depressed but the parents forbid any discussions of suicide, a provider cannot ethically agree to treat that child. If an adolescent's main concern is being bullied because of their sexuality but the parent forbids a discussion of non-heterosexual orientations, a provider cannot ethically agree to treat that child. In these situations, the adolescents will simply not get access to therapy. This is concerning, but, this is already how things work. If a parent cannot agree to the basic conditions of therapy as outlined in an informed consent document and ongoing conversations about informed consent, the child cannot get treatment.
So once again, the bill puts us back where we started, albeit with added confusion that ultimately won't benefit parents or clinicians.
