People v. R.R.
This text of 12 Misc. 3d 161 (People v. R.R.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION OF THE COURT
Budd G. Goodman, J.
In these two cases of first impression, this court must determine whether the evaluation, making and rendering of diagnoses and prognoses, formulating treatment plans and the treatment of mental disorders or of mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which may result to some degree from a concurrent physical ailment or dysfunction, are within the scope of practice of the professions of psychology and social work. For the reasons set forth below, this court finds that such professional functions are within the scope of practice of psychologists and licensed clinical social workers as set forth in the newly enacted articles 153 [163]*163and 154 of the Education Law, which took effect on September 1, 2003 and September 1, 2004, respectively.
Statement of the Cases
In the first case, the defendant, R.R., a 42-year-old man with a history of depression, epilepsy and head trauma from a mugging, all predating the instant offense, was arrested and charged with assault in the first degree stemming from an incident during which a number of persons were engaging in an altercation and he stabbed another individual causing serious physical injury. At the request of defense counsel, this court ordered an evaluation of this defendant’s competence to proceed pursuant to CPL article 730. The defendant was examined by a psychiatrist and a psychologist on the staff of the Court Clinic who opined that the defendant was an incapacitated person as the result of a likely dementia secondary to head trauma with resultant cognitive deficits. After reviewing the reports from the Court Clinic and conferring with the prosecutor and defense counsel regarding their concerns about the quality of the reports, this court ordered an examination of the defendant by Hillel Bodek, a clinical social worker with significant experience in the evaluation and treatment of persons suffering from neuropsychological dysfunction and concurrent mental illness,1 as the court’s expert, to determine the nature and extent of any mental disorders from which he might suffer and how these impact on his competence to stand trial.2
In the second case, the defendant, G.A., a 60-year-old man who had no prior history of mental health problems, was [164]*164charged with the crimes of kidnapping in the second degree and endangering the welfare of a child (two counts) stemming from an incident where he took a child less than two years of age from a baby stroller without permission of the caretaker, took the child into the building where his sister resided and went up to her apartment where she told him to return the child from where he had taken him. He was arrested by police officers who had responded to the scene when they observed him bringing the child back downstairs. At the time of his arraignment in criminal court, the court ordered that he be examined pursuant to CPL article 730. He was examined at the Court Clinic and found not competent to proceed because of dementia. He was committed to the Commissioner of Mental Health. When evaluated at Kirby Forensic Psychiatric Center, the defendant was determined to be suffering from an HIV infection. He was started on anti-retroviral and anti-psychotic medications. He was restored to competence to proceed. When he returned from Kirby and appeared before this court, defense counsel served notice that he intended to interpose a defense of lack of criminal responsibility by reason of mental disease or defect in this case. Several adjournments later, after a bench conference with defense counsel and the prosecutor, this court appointed Mr. Bodek to perform, as the court’s expert, a comprehensive prepleading examination of the defendant to include an assessment of whether this defendant lacked criminal responsibility by reason of mental disease or defect.3
[165]*165After this court appointed Mr. Bodek in these two cases, it learned of the newly enacted licensing statutes. This court made defense counsel and the prosecutors aware of those statutes and asked them to indicate if they believed these statutes should affect the court’s appointment of Mr. Bodek in these cases.4
Defense counsel for defendant R.R. reviewed the statutes and notified this court that
“it is my belief that these new statutes significantly impact on the practice of psychologists and clinical social workers. These new statutes strictly limit the scope of psychology and clinical social work practice to matters that are squarely within the four corners of mental, emotional and social functioning. These statutes clearly and unambiguously preclude psychologists and clinical social workers from making diagnostic or prognostic assessments about any physical illness or infirmity or any mental disorders which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which result to some degree from a concurrent physical ailment or dysfunction.”5 He asked that “Mr. Bodek be relieved and that the Court appoint a board cer[166]*166tilled psychiatrist, preferably one who has some experience in working with persons suffering from neuropsychiatric impairments due to brain damage, to replace him in this case.”6
Noting that one of the CPL article 730 evaluations was performed by a psychologist, defense counsel for R.R. argued vigorously that
“the diagnosis of dementia is clearly outside the scope of Dr. Larino’s license as a psychologist. Although either Dr. Larino or Mr. Bodek, to the extent [167]*167they are competent to do so, may within the scope of their respective licenses administer tests and measures of [R.R.’s] psychological — mental and emotional — functioning and conduct interviews to determine that [the defendant] has cognitive impairments or intellectual limitations, neither of them may diagnose that he has dementia or make a prognostic statement regarding if or when his cognitive impairments, to the extent that they are due to brain damage, are likely to improve because such diagnoses and prognoses are outside the scope of practice in their respective licenses. Accordingly, I request that Dr. Larino’s report be stricken, and that the Court Clinic be directed to designate a second qualified psychiatrist, a professional who is legal [ly] authorized by his or her statutory scope of practice as a physician to examine this defendant who presents with a mental disorder that, either in whole or in part, is due to physical ailment or dysfunction.”7
Defense counsel for defendant G.A. took the position that, “excluding the diagnosis and treatment of physical/biological conditions, the defense reads nothing in the statute to prohibit Mr. Bodek from considering the presence of physical or biological conditions, once properly diagnosed, in relation to the maintenance and enhancement of [the defendant’s] health.” The People took no position with regard to the substantive issue presented.
This court initially ruled that the examinations by Mr.
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OPINION OF THE COURT
Budd G. Goodman, J.
In these two cases of first impression, this court must determine whether the evaluation, making and rendering of diagnoses and prognoses, formulating treatment plans and the treatment of mental disorders or of mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which may result to some degree from a concurrent physical ailment or dysfunction, are within the scope of practice of the professions of psychology and social work. For the reasons set forth below, this court finds that such professional functions are within the scope of practice of psychologists and licensed clinical social workers as set forth in the newly enacted articles 153 [163]*163and 154 of the Education Law, which took effect on September 1, 2003 and September 1, 2004, respectively.
Statement of the Cases
In the first case, the defendant, R.R., a 42-year-old man with a history of depression, epilepsy and head trauma from a mugging, all predating the instant offense, was arrested and charged with assault in the first degree stemming from an incident during which a number of persons were engaging in an altercation and he stabbed another individual causing serious physical injury. At the request of defense counsel, this court ordered an evaluation of this defendant’s competence to proceed pursuant to CPL article 730. The defendant was examined by a psychiatrist and a psychologist on the staff of the Court Clinic who opined that the defendant was an incapacitated person as the result of a likely dementia secondary to head trauma with resultant cognitive deficits. After reviewing the reports from the Court Clinic and conferring with the prosecutor and defense counsel regarding their concerns about the quality of the reports, this court ordered an examination of the defendant by Hillel Bodek, a clinical social worker with significant experience in the evaluation and treatment of persons suffering from neuropsychological dysfunction and concurrent mental illness,1 as the court’s expert, to determine the nature and extent of any mental disorders from which he might suffer and how these impact on his competence to stand trial.2
In the second case, the defendant, G.A., a 60-year-old man who had no prior history of mental health problems, was [164]*164charged with the crimes of kidnapping in the second degree and endangering the welfare of a child (two counts) stemming from an incident where he took a child less than two years of age from a baby stroller without permission of the caretaker, took the child into the building where his sister resided and went up to her apartment where she told him to return the child from where he had taken him. He was arrested by police officers who had responded to the scene when they observed him bringing the child back downstairs. At the time of his arraignment in criminal court, the court ordered that he be examined pursuant to CPL article 730. He was examined at the Court Clinic and found not competent to proceed because of dementia. He was committed to the Commissioner of Mental Health. When evaluated at Kirby Forensic Psychiatric Center, the defendant was determined to be suffering from an HIV infection. He was started on anti-retroviral and anti-psychotic medications. He was restored to competence to proceed. When he returned from Kirby and appeared before this court, defense counsel served notice that he intended to interpose a defense of lack of criminal responsibility by reason of mental disease or defect in this case. Several adjournments later, after a bench conference with defense counsel and the prosecutor, this court appointed Mr. Bodek to perform, as the court’s expert, a comprehensive prepleading examination of the defendant to include an assessment of whether this defendant lacked criminal responsibility by reason of mental disease or defect.3
[165]*165After this court appointed Mr. Bodek in these two cases, it learned of the newly enacted licensing statutes. This court made defense counsel and the prosecutors aware of those statutes and asked them to indicate if they believed these statutes should affect the court’s appointment of Mr. Bodek in these cases.4
Defense counsel for defendant R.R. reviewed the statutes and notified this court that
“it is my belief that these new statutes significantly impact on the practice of psychologists and clinical social workers. These new statutes strictly limit the scope of psychology and clinical social work practice to matters that are squarely within the four corners of mental, emotional and social functioning. These statutes clearly and unambiguously preclude psychologists and clinical social workers from making diagnostic or prognostic assessments about any physical illness or infirmity or any mental disorders which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which result to some degree from a concurrent physical ailment or dysfunction.”5 He asked that “Mr. Bodek be relieved and that the Court appoint a board cer[166]*166tilled psychiatrist, preferably one who has some experience in working with persons suffering from neuropsychiatric impairments due to brain damage, to replace him in this case.”6
Noting that one of the CPL article 730 evaluations was performed by a psychologist, defense counsel for R.R. argued vigorously that
“the diagnosis of dementia is clearly outside the scope of Dr. Larino’s license as a psychologist. Although either Dr. Larino or Mr. Bodek, to the extent [167]*167they are competent to do so, may within the scope of their respective licenses administer tests and measures of [R.R.’s] psychological — mental and emotional — functioning and conduct interviews to determine that [the defendant] has cognitive impairments or intellectual limitations, neither of them may diagnose that he has dementia or make a prognostic statement regarding if or when his cognitive impairments, to the extent that they are due to brain damage, are likely to improve because such diagnoses and prognoses are outside the scope of practice in their respective licenses. Accordingly, I request that Dr. Larino’s report be stricken, and that the Court Clinic be directed to designate a second qualified psychiatrist, a professional who is legal [ly] authorized by his or her statutory scope of practice as a physician to examine this defendant who presents with a mental disorder that, either in whole or in part, is due to physical ailment or dysfunction.”7
Defense counsel for defendant G.A. took the position that, “excluding the diagnosis and treatment of physical/biological conditions, the defense reads nothing in the statute to prohibit Mr. Bodek from considering the presence of physical or biological conditions, once properly diagnosed, in relation to the maintenance and enhancement of [the defendant’s] health.” The People took no position with regard to the substantive issue presented.
This court initially ruled that the examinations by Mr. Bodek could proceed, subject to a final determination by this court after the regulatory process by the Education Department with regard to the new licensing laws for the professions of psychology and social work and for the newly created category of mental health practitioners was completed, and [168]*168the reports of Mr. Bodek’s evaluations were received by this court which would set forth his diagnoses and how he arrived at them.8
Statutory History
In 2002, the Legislature enacted new laws licensing the practice of psychology and social work, as well as licenses for four new groups of mental health practitioners (mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts), with the goal of enhancing public protection by limiting the provision of mental health services to persons with demonstrated knowledge and skills that qualify them to do so, and by establishing mechanisms of accountability for such practitioners by licensing their practices. Prior to that time, New York State only protected the use of the titles psychologist and certified social worker. It did not license the practice of psychology or of social work or the rendering of psychological or social work services.9
[169]*169The initial psychology statute was enacted in 1956. (L 1956, ch 737, § l.)10
“Drafted by State agencies and interested professional groups, and widely approved by the psychological fraternity, article 153 is a certification rather than a licensing law, i.e., it does not prohibit anyone from rendering psychological services, but proscribes the professional use by noncertificants of the title ‘psychologist’ and its derivatives, for remuneration. Section 7602 prohibits noncertified individuals from representing themselves as psychologists, and section 7601 defines a person who ‘represents himself to be a “psychologist” ’ as one who ‘holds himself out to the public by any title or description of services incorporating the words “psychological”, “psychologist” or “psychology”, and under such title or description offers to render or renders services to individuals, corporations, or the public for remuneration.’ ” (National Psychological Assn. for Psychoanalysis, supra, 8 NY2d at 200-201 [citation omitted].)
Indeed, until the enactment of the current licensing statute for psychologists in 2002, article 153 of the Education Law provided no definition of the practice of psychology. As the Court of Appeals noted,
“[t]he omission of a formal definition of ‘psychology’ or its variants was no legislative oversight. Attempts to draft a definition that would sufficiently delineate the nature and scope of psychology had failed, and, as noted by Special Term, ‘the law was enacted in a form that was acceptable to interested groups and that requires no interpretation of that term for its enforcement.’ ” (8 NY2d at 203 [citation omitted].)11
[170]*170The initial social work statute was enacted in 1965. (L 1965, ch 334, § l.)12 It contained a statutory definition of the practice of social work.13
The New Psychology and Social Work Licenses
In order to resolve the issue presented here, this court must first analyze the scope of practice provisions of the new licensing statutes for the professions of psychology and social work.
The new psychology statute, chapter 676 of the Laws of 2002, became effective on September 1, 2003.14 Unlike the new social [171]*171work statute, the new psychology statute does not directly distinguish between clinical and nonclinical psychologists.15 However, the scope of practice contained in that statute is, unlike that in the new social work statute, wholly clinical in nature. The new social work statute, chapter 420 of the Laws of 2002, became effective on September 1, 2004. It licenses two tiers of social work practice, licensed master social work,16 and [172]*172\licensed clinical social work.17 The scope of practice of licensed master social work is included in the larger scope of practice of [173]*173licensed clinical social work. (See, Education Law § 7701 [2] [a].) Whereas licensed clinical social workers are authorized to make and render diagnoses and the prognoses which flow from and are intimately related to them, administer and interpret tests and measures of psychosocial functioning (so-called psychodiagnostic testing, which includes the testing of the relationship between mental, emotional and behavioral functioning and brain functioning, often referred to as neuropsychological testing), develop and implement assessment-based treatment plans and provide all forms of psychotherapy, licensed master social workers are only permitted to perform psychosocial assessments and evaluations18 and may not make or render diagnoses or prognoses, may formulate and develop service plans as opposed [174]*174to treatment plans,19 may administer but not interpret tests and measures of psychosocial functioning, and may provide counseling20 but not psychotherapy. However, licensed master social workers may render the clinical services and perform the clinical functions that are within the scope of the practice of licensed clinical social work when they do so under the supervision of a psychiatrist, psychologist or licensed clinical social worker. (See, Education Law § 7701 [1] [d]; 8 NYCRR 74.6; n 25, infra.)
In analyzing the new social work statute, this court is faced with a potential conflict of laws. Subdivision (1) of section 7702 of the new social work licensing statute provides that “[i]n addition to the licensed social work services included in subdivisions one and two of section seventy-seven hundred one of this article, licensed master social workers and licensed clinical social workers may perform the following social work functions that do not require a license under this article” (emphasis supplied). [175]*175It is unclear why a licensing law includes a provision which identifies 12 specific functions which may be carried out without a license;21 in other words, can be legally performed by anyone. This is further complicated because all of those 12 functions are already mentioned directly or otherwise incorporated as part of [176]*176services set forth in subdivision (1) of section 7701,22 and thus are not in addition to the services set forth in that subdivision. This court must determine how a service listed in the scope of practice of licensed master social work does not require a license. In addressing a potential conflict between two provisions of law, a court has the obligation to attempt to resolve the conflict to the extent possible in a manner that resolves the conflict and leaves the statutes intact.
This court finds that in regard to functions (a), (d), (g) (other than to the extent that it involves providing case management), (b), (Z), (c), (k) and (h), these functions which are administrative, management, research, nonclinical supervision and educational in nature, were not necessarily intended to require a license. However, when they are provided by a licensed professional social worker, there is a legally imposed expectation by virtue of licensing that the various skills and knowledge of a licensed professional social worker will inform and guide the process of carrying out these functions. Further, by virtue of licensure, there is a legally imposed element of professional accountability, not just to the clients and employers of the social worker but, more important, to the standards and integrity of the social work profession and to society for the manner in which those services are provided and for the quality of those services, which is legally cognizably different from when these services are provided by a nonlicensed person or professional.
This court further finds that with regard to functions (e), (i), (g) (insofar as it involves providing case management), and (j), assisting clients in obtaining/accessing services, there is a legally cognizable difference between the process of a licensed professional social worker assessing a client’s or patient’s needs, referring a client or patient for services and/or providing case management,23 and a nonprofessional referring someone for services and attempting to help a person obtain help from one or more sources. A licensed professional social worker has a professional [177]*177obligation, legally imposed by licensure and the standards of care pertaining to the provision of professional social work services, to make a professional assessment in order to determine the appropriate referral(s) and prioritize them along with other interventions, to obtain the client’s informed consent before making a referral, and to do so as part of a professional helping relationship in partnership with the client in which the social worker is accountable for the quality of the professional services he or she is providing; whereas a nonprofessional would simply make the referral based on the referee’s stated need (e.g., a friend refers a friend who has been regularly drinking in excess to Alcoholics Anonymous based on his or her assessment of what is obvious to them as the friend’s need. However, a professional social worker would perform a psychosocial or clinical assessment to determine the range of problems requiring assistance and the various services which may be indicated. He or she might determine that the client is severely depressed and anxious, having lost his job and going through a divorce. He or she might then refer the client to a psychiatrist for antidepressant medication, see the client for psychotherapy if he or she is a licensed clinical social worker, or if he or she is a licensed master social worker, refer the client to a clinical social worker for psychotherapy with the goal of stabilizing the client, and then later refer the client for job placement and to a divorcing fathers support group; all of this being done while providing support, encouragement, education and guidance within the context of a professional therapeutic relationship). Thus, the [178]*178process of assessing and evaluating a person’s presenting problems, formulating a plan based on the person’s needs, obtaining informed consent, making referrals and providing case management by a professional social worker should be a licensed function, while a nonprofessional doing so, simply trying to help someone with one or multiple problems, would not be held to the same standard and is doing so simply trying to be helpful, something that is not a licensable function.
This court further finds that with regard to function (i), providing social work advocacy, there is a legally cognizable difference between a community activist, an interested friend or a volunteer advocate advocating for a single client or group of clients, and a licensed professional social worker doing so. In addition to professional accountability, a professional social worker, by virtue of licensure, would be required to obtain informed consent for the advocacy services he or she provides based on assessment of the client’s needs and actual entitlements, and would not be able to proceed simply based on a dogooder’s belief of what the person he or she is advocating for needs or is entitled to.
Additionally, this court notes that a licensed master social worker or licensed clinical social worker
“shall not be required to disclose a communication made by a client, or his or her advice given thereon, in the course of his or her professional employment, nor shall any clerk, stenographer or other person working for the same employer as such social worker or for such social worker be allowed to disclose any such communication or advice given thereon.” (CPLR 4508 [a].)
Obviously, when the services and functions noted above are provided by a layperson rather than by a licensed social work professional, no such privilege exists.
Accordingly, this court determines that, based on the above analysis, no conflict exists between Education Law § 7701 (1) (a) through (c), which sets forth the scope of practice of licensed master social work, and Education Law § 7702 (1) (a) through (l), which provides that those same functions do not require a license when performed by persons who are not licensed professional social workers who are not held to the legally cognizable standards of care and professional accountability in providing such services to which professional social workers are held and whose relationships do not enjoy the licensed master social [179]*179worker and licensed clinical social worker client/patient privilege.
Determination of the Issue at Bar
Having analyzed the scopes of practice established by the licensing legislation enacted for the psychology and social work professions, this court now turns to addressing the question of whether evaluating, making and rendering diagnoses and prognoses (which of necessity flow from and are intimately related to diagnoses), formulating treatment plans and the treatment of mental disorders or mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature, or which may result to some degree from a concurrent physical ailment or dysfunction, are within these scopes of practice of the professions of psychology and social work.
At the outset, this court finds, as a matter of law, that in terms of clinical functions, the scope of practice of psychology and the scope of practice of licensed clinical social work, although described using some different words at times, do not vary in substance and are wholly equal and the same. Of course, the fact that a particular function is within the scope of practice of a profession does not mean that every person licensed to practice that profession is competent to carry out each of those functions. So, for instance, a person who is not trained in marriage therapy, even though he or she is a psychologist or licensed clinical social worker, should not practice that modality without being supervised or prior to obtaining proper training.24
Additionally, this court further finds, as a matter of law, that licensed master social workers may not make or render diagnoses or prognoses (which of necessity flow from and are intimately related to diagnoses), formulate or develop treatment plans, interpret tests and measures of psychosocial functioning, or provide psychotherapy unless they are doing so under the [180]*180supervision of a psychiatrist, psychologist or licensed clinical social worker.25 (See, Education Law § 7701 [1] [d]; 8 NYCRR 74.6.) Thus, the instant legal issue does not apply to licensed master social workers unless they are providing clinical services under supervision, in which case they would be acting under the license of their respective clinical supervisors.
Defense counsel for defendant R.R. argues that neither the psychology license nor the licensed clinical social worker license authorizes the members of these professions to evaluate, make or render diagnoses and prognoses, formulate treatment plans and treat mental disorders or mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which may result to some degree from a concurrent physical ailment or dysfunction. In addition to his argument based on statutory construction and interpretation, he also argues that performing these functions is outside the scope of the training and competence of many psychologists and licensed clinical social workers.
Statutory Construction and Interpretation
Education Law § 7601-a (1) provides, in pertinent part, that the scope of practice of psychology includes “the diagnosis and treatment of mental, nervous, emotional, cognitive or behavioral disorders, disabilities, ailments or illnesses, alcoholism, substance abuse, disorders of habit or conduct, the psychological aspects of physical illness, accident, injury or disability, psychological aspects of learning (including learning disorders).” Education Law § 7601-a (2) defines diagnosis and treatment by psychologists acting within the scope of their license, in pertinent part, as “the appropriate psychological diagnosis and the ordering or providing of treatment according to need.” Education Law § 7701 (2) (a) provides, in pertinent part, that the scope of practice of licensed clinical social work includes [181]*181“the diagnosis of mental, emotional, behavioral, addictive and developmental disorders and disabilities and of the psychosocial aspects of illness, injury, disability and impairment undertaken within a psychosocial framework.” Education Law § 7701 (2) (b) defines diagnosis in the context of clinical social work practice as “the process of distinguishing, beyond general social work assessment, between similar mental, emotional, behavioral, developmental and addictive disorders, impairments and disabilities within a psychosocial framework on the basis of their similar and unique characteristics consistent with accepted classification systems.” Education Law § 7701 (2) (d) defines development of assessment-based treatment plans in the context of clinical social work practice as “the development of an integrated plan of prioritized interventions, that is based on the diagnosis and psychosocial assessment of the client, to address mental, emotional, behavioral, developmental and addictive disorders, impairments and disabilities, reactions to illnesses, injuries, disabilities and impairments, and social problems.”
Essentially, these statutes provide that diagnosis by psychologists is “the appropriate psychological diagnosis,” which leads to “the ordering or providing of treatment according to need[,]” and that diagnosis by licensed clinical social workers is undertaken “within a psychosocial framework[,]” and leads to “the development of an integrated plan of prioritized interventions, that is based on the diagnosis and psychosocial assessment of the client, to address mental, emotional, behavioral, developmental and addictive disorders, impairments and disabilities, reactions to illnesses, injuries, disabilities and impairments, and social problems.”26 Defense counsel’s primary argument is based on the lack of any reference to a physical or biological element in these definitions of diagnosis. His reliance on this fact is misplaced and wholly unavailing.
First, beginning in 1980 with the publication of the Diagnostic and Statistical Manual of Mental Disorders — third edition (DSM III), the result of an effort that had commenced in 1974, the diagnosis of mental disorders was based on a multi-axial framework which reflected the evolving biopsychosocial approach to the understanding, diagnosis and treatment of physical and [182]*182mental disorders.27 This multi-axial framework includes the diagnosis of mental disorders, identification of physical disorders, symptoms and conditions that are potentially relevant to the understanding and management of the patient, identification of psychosocial stressors judged to have been a significant contributor to the development or exacerbation of the current disorder and rating the severity of such stressors, and an assessment of the highest level of the patient’s adaptive functioning over the prior year and the patient’s current level of adaptive functioning.28 (See, American Psychiatric Association, [183]*183Diagnostic and Statistical Manual of Mental Disorders, at 1-12 [Washington, D.C. 3d ed 1980].)
One need only to have read the Science Times (the New York Times weekly science section) over the past decade to know that physical, psychological and social functioning are inexorably linked. Mental processes, emotions, behavior and social functioning are impacted on by a myriad of biological processes, environmental factors, physical illnesses and pain. Physical functioning, pain and biological processes are impacted on by social and environmental factors, mental processes and emotions. In short, one cannot separate the mind, the body, the environment and social functioning from each other; each impacts on and influences directly and/or indirectly the functioning of the other.
The importance of accurate diagnosis cannot be overstated. It is the key to appropriate treatment planning which guides and drives the provision of appropriate and effective treatment. It is based on comprehensive and holistic assessment of the patient using a biopsychosocial model. Increasingly, mental disorders which were previously not thought to be related to any organic illness or dysfunction, such as personality disorders, posttraumatic stress disorder, anxiety, obsessive-compulsive disorder and others have been found to have contributing organic factors and to benefit from combinations of psychopharmacotherapy and psychotherapy. The diagnosis and treatment of almost all mental disorders and the assessment and treatment of the psychosocial responses to physical illnesses, pain and other symptoms, requires utilizing a comprehensive and holistic biopsychosocial approach to evaluation, diagnosis, treatment planning, care and treatment. Further, just as one cannot properly assess mental, emotional, behavioral and social functioning and diagnose such disorders without utilizing a comprehensive and holistic biopsychosocial approach which recognizes and addresses the dynamic and complex interaction between biological, psychological and social elements, one cannot properly assess and treat physical [184]*184illnesses, injuries and disabilities without considering the impact of those illnesses, injuries and disabilities on the psychosocial functioning of the patient, and the impact of the patient’s psychosocial response to illness, injury or disability on the treatment and clinical course (including prognosis) of the patient’s physical ailments.
The process of diagnosis, which is the first step in formulating a treatment plan and then providing appropriate treatment according to patient needs, requires identification of the potential causes of the presenting problem and symptoms. Thus, in order to assess psychological (mental, emotional and behavioral) and psychosocial (mental, emotional, behavioral and social) dysfunction, one must identify possible and probable causes of the symptoms and dysfunction in order to formulate an appropriate initial treatment plan (which may include conducting additional assessment or arranging for another health care professional to conduct additional assessment, as indicated). Accordingly, diagnosis, assessment and treatment planning require utilizing a comprehensive and holistic biopsychosocial approach.
By authorizing psychologists and licensed clinical social workers to diagnose and to formulate assessment-based treatment plans29 independent of other disciplines, it must be presumed that the Legislature, which has not provided otherwise, intended that they carry out these tasks in accordance with the accepted standard of care of their professions for doing so, which mandates that diagnosis, assessment and treatment planning be [185]*185undertaken utilizing a comprehensive and holistic biopsychosocial approach.
This court finds that, as a matter of law, the failure of a psychologist or licensed clinical social worker to utilize a bio-psychosocial approach in the performance of diagnosis, assessment and treatment planning would constitute practice that, per se, violates the professional standard of care. This court further finds that, as a matter of law, psychologists and licensed clinical social workers, as licensed health care providers, are required by their scope of practice and the standards of care of their professions to gather information and make observations related to the physical condition and symptoms, health history, medications (prescribed, over the counter, and complimentary and alternative treatments) utilized, substance use and abuse, and allergies of their patients as part of their initial assessments and to be alert throughout the course of treatment to mental or physical symptoms which may have physical causes or portend the existence of physical illness, new health history, medications (prescribed, over the counter, and complimentary and alternative treatments) utilized, and substance use and abuse, so that these may be explored, their impact on the patient’s functioning assessed properly and treated, as necessary, through referral to or consultation with other health care professionals, as indicated. The failure to do so would constitute practice that, per se, violates the professional standard of care.
Second, Education Law § 7701 (1) (a) provides that
“[t]he practice of licensed master social work shall mean the professional application of social work theory, principles, and the methods to prevent, assess, evaluate, formulate and implement a plan of action based on client needs and strengths, and intervene to address mental, social, emotional, behavioral, developmental, and addictive disorders, conditions and disabilities, and of the psychosocial aspects of illness and injury experienced by individuals, couples, families, groups, communities, organizations, and society” (emphasis supplied).
The practice of licensed master social work is subsumed into the practice of licensed clinical social work. (See, Education Law § 7701 [2] [a].) The definition of clinical social work promulgated [186]*186by the American Board of Examiners in Clinical Social Work30 at its inception in 1987 clearly provides that the biopsychosocial approach is an inherent part of the theory, principles and methods of clinical social work.31 A search of the social work literature using the Social Work Abstracts database indicates that utilization of a biopsychosocial model has long been a key part of social work theory, principles and methods, with well over 100 articles in peer-reviewed journals and almost 25 books which address specifically the biopsychosocial approach in clinical social work practice.
Similarly, the American Board of Professional Psychology’s definition of the practice of clinical psychology makes it clear that the focus of clinical psychology practice includes diagnosis undertaken with consideration of the physiological component [187]*187of mental, emotional and behavioral disorders, for the purpose of addressing both mental and physical illness.32 A search of the psychology literature reveals numerous articles and books which address the biopsychosocial approach in the field of clinical psychology.
Thus, it is clear that the use of the biopsychosocial approach is an inherent part of “social work theory, principles, and the methods,” which licensed clinical social workers are legally authorized to apply in their provision of professional clinical social work services, and is an inherent part of the theory, principles, and the methods of clinical psychology which psychologists are legally authorized to apply in their provision of professional psychological services.
Third, neither the lack of use of the term biopsychosocial in describing the professional functioning of psychologists and licensed clinical social workers in their licensing statutes nor the fact that those statutes do not specifically indicate that biological factors should be considered by psychologists and licensed clinical social workers in their professional practices can be interpreted as manifesting legislative intent that [188]*188psychologists and licensed clinical social workers may not use a biopsychosocial model, particularly given the fact that this model has been long endorsed by these professions as part of the standard of care and is essential to appropriate diagnosis and treatment planning.
Fourth, by examining statutes which govern the practices of other nonphysician health care professionals who are involved in providing services to address mental, emotional, behavioral and social dysfunction and disorders, it becomes clear that the Legislature did not proscribe the use of the biopsychosocial model by psychologists and licensed clinical social workers who, along with psychiatrists, represent the three historical core mental health disciplines.
In this regard, unlike psychologists and licensed clinical social workers who have broad scopes of practice, licensed mental health counselors,33 licensed marriage and family therapists,34 [189]*189licensed creative arts therapists35 and licensed psychoanalysts36 who are licensed collectively as mental health practitioners pursuant to article 163 of the Education Law which took effect on January 1, 2005 have very limited scopes of practice centered around skills in a particular area of clinical practice.
Of these four groups, licensed mental health counselors have the broadest scope of practice. They may provide counseling and psychotherapy, utilize assessment instruments, and assess the functioning of their clients, but may not make or render diagnoses or prognoses. (See, n 33, supra.) Licensed marriage and family therapists are clearly limited to assessing (including using assessment instruments) and treating in counseling and psychotherapy mental disorders in the context of relationship problems and their impact on relationships. They may not make or render diagnoses or prognoses. (See, n 34, supra.) Licensed creative arts therapists are clearly limited to the assessing (including using assessment instruments), evaluating, and providing therapeutic intervention in the form of using the creative arts and by using counseling and psychotherapy for the purpose of providing creative arts therapy to treat mental and developmental disorders. They may not make or render diagnoses or prognoses. {See, n 35, supra.) Licensed psychoana[190]*190lysts are clearly limited to assessing (including using assessment instruments) and treating in psychotherapy personality, behavior and interpersonal problems by addressing dynamic unconscious mental processes. They may not make or render diagnoses or prognoses. (See, n 36, supra.)
[191]*191Additionally, mental health practitioners licensed pursuant to article 163 of the Education Law are deemed as a matter of law not to be competent to provide professional services to persons suffering from serious mental illness without physician consultation and are required to obtain medical consultation from a physician when they are treating a person suffering from a serious mental illness on a continuous and sustained basis so that the physician can determine and advise whether any medical care is indicated for such illness. (See, Education Law § 8407 [1] )38 -phig statutory provision, necessary because these [192]*192practitioners may not make or render diagnoses or prognoses (which of necessity flow from and are intimately related to diagnoses), was clearly enacted, as are all legally appropriate professional licensing provisions, to assure the protection of the public.
For reasons that are not obvious in reviewing the record of the regulatory process in connection with the implementation of article 163 of the Education Law as contained in the State Register, even though the Education Department indicated on December 1, 2004 that “[t]he Department will consider addressing this issue, within the bounds of our statutory authority, in future amendments to the definition of unprofessional conduct” (NY Reg, Dec. 1, 2004, at 12 [with regard to licensed mental health counselor], 16 [with regard to licensed marriage and family therapists], 20 [with regard to licensed creative arts therapists], 24 [with regard to licensed psychoanalysts]), no regulations have been promulgated by the Department to guide the implementation of this crucial statutory provision that is critically essential for the protection of the public.
This court finds, as a matter of law, that mental health practitioners licensed pursuant to Education Law article 163 are not permitted to make or render diagnoses or prognoses (which flow from and are intimately related to diagnoses). In addition, in the absence of any regulatory guidance and noting the clear public protection basis for Education Law § 8407 (1), this court finds that whenever a licensed mental health practitioner who is evaluating or treating a client or patient has or should have a reasonable belief based on personal observations, examination and evaluation, reports of others, historical information, or past or current symptoms or behavior that the client or patient may suffer from a serious mental disorder, including a severe mental disorder that is chronic in nature and is in a period of remission, he or she must immediately require that the client or patient obtain a consultative evaluation by a licensed physician, preferably a psychiatrist, and make a referral for such consultative evaluation for the purpose of that physician making an appropriate diagnosis, determining whether the client or patient suffers from a serious mental illness, including a severe mental illness that is chronic in nature and in a period of remission, determining the appropriate treatment and formulating an appropriate treatment plan for the client or patient. Because of the nature of severe mental disorders where symptoms may wax and wane over time, a licensed [193]*193mental health practitioner must obtain medical consultation, preferably from a psychiatrist, on a regular and ongoing basis during the period that he or she provides professional services to such a client or patient, including periodic examinations by the physician as the physician deems appropriate. The licensed mental health practitioner’s treatment must be in complete accordance with and may not vary from the treatment plan formulated for the client or patient by the consulting or any treating physician(s). If the mental health practitioner’s client or patient declines to obtain medical consultative evaluation on a regular basis or to comply with the treatment plan recommended by the consulting or treating physician(s), the mental health practitioner must promptly cease treating the client or patient and must arrange for the care of the client or patient to be transferred promptly to the care of a psychiatrist or another licensed mental health professional who is not mandated statutorily to obtain physician consultation, collaboration or oversight, in such a manner as not to abandon the client or patient in need of care and treatment. Because of the potential for such a situation occurring, every licensed mental health practitioner must have a formal written agreement with one or more psychiatrists or other physicians to be able to provide promptly consultative evaluations of his or her clients or patients and with one or more psychiatrists, psychologists or licensed clinical social workers to assume the treatment of a client or patient whom he or she may not continue to treat because the client or patient declines to obtain medical consultative evaluation on a regular basis or to comply with the treatment plan recommended by the consulting or treating physician (s).
In the profession of nursing, registered professional nurses are clearly allowed to make nursing diagnoses that discriminate between physical and psychosocial signs and symptoms essential to effective execution and management of a nursing regimen, but which are distinct from a medical diagnosis. They are allowed to treat signs, symptoms and processes which denote the individual’s interaction with actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of Ufe and well-being, and executing medical regimens prescribed by a licensed physician, dentist or other licensed health care provider. However, nursing regimens must be consistent with [194]*194and may not vary from any existing medical regimen. (See, Education Law §§ 6901, 6902 [l].)39 Thus, although they can diagnose mental disorders and provide counseling and psychotherapy pursuant to a physician’s order or independent of a physician as part of a nursing regimen, subject to the provisions of 8 NYCRR 29.1 (b) (9) as set forth in footnote 24 (supra), the treatment a registered professional nurse renders as part of a nursing regimen “shall be consistent with and shall not vary any existing medical regimen.” (Education Law § 6902 [1].) Thus, unlike psychologists and licensed clinical social workers, nurses are subject to limitations on their independent professional judgment when their professional judgment is contrary to an existing regimen prescribed or formulated by a physician.
Similarly, nurse practitioners may diagnose mental and physical illnesses and perform therapeutic and corrective measures within a specialty area of practice (1 of the 17 established nurse practitioner specialties is psychiatry) in collaboration with a licensed physician qualified to collaborate in the specialty involved provided that such services are performed in accordance with a written practice agreement and written practice protocols. The written practice agreement shall include explicit [195]*195provisions for the resolution of any disagreement between the collaborating physician and the nurse practitioner regarding a matter of diagnosis or treatment that is within the scope of practice of both. To the extent that the practice agreement does not so provide, then the collaborating physician’s diagnosis or treatment shall prevail. (See, Education Law § 6902 [3] [a].)40 In addition to providing for resolution of disagreements between the nurse practitioner and his or her collaborating physician, the collaborative practice agreement must provide for review of a sample of patient records at least once every three months by the collaborating physician. (8 NYCRR 64.5 [b] [as clarified by the State Board for Nursing on the Department of Education’s Office of the Professions Web site].)41
[196]*196Thus, unlike psychologists and licensed clinical social workers, nurse practitioners may only practice in conjunction with a collaborating physician qualified to collaborate in the specialty involved. The collaborating physician has an obligation of oversight of the nurse practitioner’s practice which must be carried out through his or her periodic review, at least once every three months, of a portion of the patient charts of the nurse practitioner. Additionally, the collaborative practice agreement must contain a process for resolution of professional disputes between nurse practitioner and the collaborating physician and, to the extent the practice agreement does not so provide, then the collaborating physician’s diagnosis or treatment must prevail.
As noted above, it is axiomatic that proper diagnosis is a condition precedent for appropriate treatment planning which is required to assure appropriate and effective treatment. Proper diagnosis of mental, emotional, behavioral, addictive and developmental disorders and disabilities and of the psychosocial aspects of illness, injury, disability and impairment requires a comprehensive and holistic biopsychosocial approach through which the causes of the disorders, symptoms and dysfunctions can be identified and addressed. Had the Legislature believed that psychologists and licensed clinical social workers are not competent to make such diagnoses using a biopsychosocial approach and/or that permitting them to do so would negatively impact on public safety, it could have required physician consultation for psychologists and licensed clinical social workers in the case of patients or clients suffering from severe mental illness as it requires with regard to mental health practitioners licensed pursuant to Education Law article 163; it could have required that if a physician disagrees with the treatment being offered by a psychologist or licensed clinical social worker, that treatment would have to conform to the treatment plan prescribed or approved by the physician as it requires in relation to registered nurses; it could have required that psychologists and licensed clinical social workers practice under collaborative practice agreements with a psychiatrist, as it requires [197]*197for psychiatric nurse practitioners; it could have declined to permit diagnosis within the scope of practice of psychology and licensed clinical social work as it did in relation to the practice of licensed master social work and licensed mental health practitioners; or it could have limited the types of disorders which psychologists and licensed clinical social workers can diagnose and treat independently. That the Legislature did not impose any such restrictions speaks volumes that they did not choose to impose any such limitations and that psychologists and licensed clinical social workers may, within the scopes of practice in their respective licenses, diagnose mental, emotional, behavioral, addictive and developmental disorders and disabilities and the psychosocial aspects of illness, injury, disability and impairment using a comprehensive and holistic biopsychosocial approach in accordance with the standard of care shared in this regard by both professions.
Training and Competence of Psychologists and Licensed Clinical Social Workers
Defense counsel for R.R. argues that there is a wide difference in the education provided by different training programs in psychology and clinical social work and in the breadth of supervised experience obtained by psychologists and clinical social workers in training to the extent that not all members of these professions have the same level of competence in the performance of clinical work. He then argues that in establishing a scope of practice for a profession, the Legislature must look at the training, knowledge and skills of the profession as a whole, not merely a small subset of that group, and that psychologists and clinical social workers as a group, as opposed to a subset of those professions, are not competent to make or render diagnoses and prognoses, formulate treatment plans and treat mental disorders or mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which may result to some degree from a concurrent physical ailment or dysfunction.42 [198]*198This concern, even if accurate, is not availing as a legal argument.
This court has obtained and reviewed the educational bulletins of various Master’s level social work programs and doctoral programs in clinical psychology from various schools in New York State. The educational programs in clinical psychology provide training in the psychology of human behavior (including human development and societal, cognitive, emotional and biological influences on behavior), psychopathology, neuro[199]*199psychology, counseling and psychotherapy, professional ethics, psychodiagnostic testing, cultural diversity, research and statistics, and various elective courses that address special treatment techniques, how to address the services needs of various clinical populations (e.g., children, geriatric patients, the chronically mentally ill, etc.), and other elective topics. These programs also require a period of supervised fieldwork in which students learn to apply in everyday clinical situations what they have learned in the classroom. There are courses and seminars related to preparing the students to complete the required dissertation for the Ph.D. degree.
The educational programs in social work generally tend to follow the same basic framework. In the first year (which may be completed over a lengthier period) students complete an integrated year long course that addresses all aspects of human development, functioning and behavior in a biopsychosocial context; a year of coursework in social work practice in general, the development of basic social work practice skills, and on dealing with ethical issues in practice; two semesters of coursework that address social policy, social welfare, social justice, service delivery systems and the history of social work; a course dealing with cultural and social diversity; and a course in research. In the second year there is more variability but all schools require a year of coursework in advanced social work practice in the student’s area of concentration, an additional research course (in most schools), a course in social work assessment and diagnosis or psychopathology, and various electives which address areas of practice, advanced training in specific skills (e.g., family therapy, crisis intervention, etc.), working in specific settings (e.g., criminal justice, health care, etc.) or with specific populations (e.g., children, the elderly, etc.), and other topics in social work. Each year, the students must complete two semesters of field placement where they learn to provide social work services under supervision in facility settings where they integrate what they are learning in the classroom into their beginning practice of social work in the field.
It is clear to this court that more needs to be done to prepare psychologists and clinical social workers to meet the evolving needs of the health and mental health systems and of the patient populations they will be called upon to serve. Yet, there is only so much that can be taught in the given time, and there is an ever increasing and changing body of knowledge that needs to [200]*200be learned and assimilated. Professional education is a lifelong endeavor and professionals have an obligation to pursue that education throughout their careers. This being said, it is clear to this court that social work and psychology programs need to increase their training in the biological aspects of human functioning, the development and treatment of psychopathology, and the impact of physical illnesses on psychosocial functioning. Additionally, all students should be required to take courses in working with chronically and terminally ill patients and their families, in working with children and adolescents, in working with the elderly, in working with patients who suffer from severe chronic mental illness, in working with substance abusers, in providing crisis and emergency intervention, and in family or group therapy. In most clinical psychology programs and Master’s degree programs in social work, most, if not all of these courses are available as electives, but there is not enough time to take them all. It may be that such a bold idea will increase the time it takes to complete the educational program, but it would appear to be indicated if the psychologists and clinical social workers of the future are to be prepared to address the breadth of clinical service needs in the health and mental health systems. Perhaps these electives can be taken while social workers are completing their three years of postMaster’s degree supervised experience needed to qualify for the licensed clinical social worker license, and the psychology students can complete them while they are completing their two years of internship training required for licensure.
It is of exceedingly serious concern to this court that social workers obtaining their post-Master’s degree supervised experience to become licensed clinical social workers and psychology students completing internship experiences needed for psychology licensure are permitted to obtain this supervised experience outside of facilities. In this court’s view, being able to work in a facility as part of an interdisciplinary team is a crucial part of professional education and development of all health and mental health professionals. Additionally, in this regard, this court has observed that over the years psychologists and licensed clinical social workers have increasingly not been obtaining experience in working with the wide range of patients, including the most seriously mentally ill patients, as part of their training, which experience can often only be obtained in facility-based practice. The lack of this experience limits their ability to provide appropriate quality evaluation, treatment planning and treatment [201]*201services to this significant vulnerable population and decreases the number of mental health professionals willing and able to care for this underserved and clinically challenging group of patients.
In enacting the new licenses for psychologists and clinical social workers with a broad scope of practice and without any requirement for supervision, consultation, referral or oversight by physicians or other disciplines, the Legislature recognized that these professionals, unlike those being licensed pursuant to article 163 of the Education Law, are not merely psychotherapists, and placed significant confidence and a substantial public trust in the professional knowledge, skills and competence of psychologists and clinical social workers and in their dedication to provide high quality, cutting edge, health and mental health services to the people of our state. While these licenses provide professional benefits to psychologists and clinical social workers, they also place a heavy burden on each of them, on their professional organizations and on the professional schools which train them to meet the significant challenges and responsibilities inherent in being granted these licenses which establish a broad scope of practice for them and provide them with a very significant degree of professional independence and discretion.
The responsibilities inherent in being granted these licenses require that psychologists and clinical social workers dedicate themselves to a lifetime of learning, devoting regularly the time necessary to keep up to date with the significant amounts of increasing biopsychosocial knowledge and the new skills that will constantly redefine the ever evolving practice of psychology and clinical social work in the health and mental health arena. The responsibilities inherent in psychology and clinical social work being granted these licenses also place a heavy burden on the professional organizations of psychologists and clinical social workers and on the schools which train them. These organizations will need to take steps to maintain high standards of practice, to hold their members accountable for keeping current with the knowledge and skills needed to engage in quality clinical practice and to remember always that they have a serious obligation as health and mental health providers to serve the public. The schools will need to increase significantly their educational efforts to assure that psychologists and clinical social workers are constantly prepared with the wide range of the most up-to-date biopsychosocial knowledge and innovative clinical skills. Only in this way will these professionals be able [202]*202to meet the significant and growing challenges of providing quality, cutting edge, health and mental health services based on the constantly developing biopsychosocial knowledge base and evolving set of clinical skills, to a highly diverse group of patients of all ages who have a wide variety of health, mental health and social problems and service needs. In granting these new licenses which place a significant public trust in the disciplines of psychology and clinical social work, the Legislature expected and the people of this state deserve nothing less.
This court has served on the bench for 35 years. During that time numerous mental health experts have appeared before this court. This court’s experience is that the quality of the professional services of these experts has depended far more on the professional involved and the thoroughness of his or her evaluation, rather than his or her discipline. Indeed, some of the most useful reports have been submitted by a clinical social worker.
Clinical social workers are uniquely suited to assist the courts as forensic experts because they have particular competence in assessing the impact of a person’s mental and physical condition on his or her social functioning, a key element in rendering forensic mental health assessments and opinions. Now that clinical social workers are specially recognized by licensure as having separate clinical skills in addition to the important skills of other Master’s level social workers, this court believes that serious consideration should be given to qualifying them by statute as psychiatric examiners along with psychiatrists and psychologists.
Although these issues are not of any legal import in this court’s determination of the issue at bar, this court shares R.R.’s defense counsel’s serious concerns in this regard and commends these comments to the Education Department for its consideration.
Conclusion
This court finds, as a matter of law, that the evaluation, making and rendering of diagnoses and prognoses, formulating treatment plans and the psychological-psychosocial treatment of mental disorders or of mental, emotional and behavioral symptoms which, either in whole or in part, are or may reasonably be assumed to be organic in nature or which may result to some degree from a concurrent physical ailment or dysfunction, are within the scope of practice of the professions of psychology and licensed clinical social work, whose scopes of practice although described using some different words at times, do not [203]*203vary in substance and are wholly equal and the same. Therefore, the application of defense counsel for defendant R.R. that Mr. Bodek be relieved, that Dr. Larino’s report be stricken and that a reexamination of R.R. by a qualified psychiatrist be ordered is denied.
The limitation that defense counsel for G.A. would impose on licensed clinical social workers and on psychologists as nonphysicians, that they may only consider the presence of physical or biological conditions once such a condition has been properly diagnosed by a physician, is rejected. This court finds, as a matter of law, that psychologists and licensed clinical social workers are required to gather information about the physical health of each of their patients as part of their initial patient assessments and on an ongoing basis throughout the time that they are treating their patients. They must consider and integrate this information into their ongoing diagnostic assessments and treatment planning which should include, when indicated, referral of a patient to another licensed health care provider for evaluation and treatment. In the presence of symptoms of physical illness, they need not wait for confirmation from a physician before considering and integrating that information into their diagnostic assessment and treatment planning, which is not static and may change as new information is received.43
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