Can a clinical social worker diagnose a mental or emotional disorder in Maryland, or is that only a doctor's job?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General to settle a dispute over whether clinical social workers could render diagnoses of mental or emotional disorders, after guidance to the Board of Social Work Examiners earlier in 1988 had cast doubt on a practice many in the field had assumed was already permitted. The Attorney General concluded that a clinical social worker could not diagnose a patient on their own initiative, since diagnosis is legally part of "practicing medicine" and only licensed physicians may practice medicine. But the opinion concluded that once a physician had personally assessed the patient and referred them to a clinical social worker, the social worker was then authorized under the Social Workers Act to diagnose the patient's social, mental, or emotional disorder and to record that diagnosis using standard diagnostic codes, including the widely used DSM-III manual, for medical records or insurance reimbursement purposes.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a clinical social worker in Maryland diagnose a patient without ever seeing a doctor first?
No, according to this opinion. The Attorney General concluded that diagnosis is part of the practice of medicine under the Medical Practice Act, and only a licensed physician could diagnose a patient unless the social worker was practicing within a scope of practice that itself authorized diagnosis, which required a physician's prior personal assessment and referral.

Once a doctor referred a patient to a social worker, could the social worker then diagnose the patient's condition?
Yes. The opinion concluded that after a physician's referral, a clinical social worker could diagnose the patient's social, mental, or emotional disorder, based on the Social Workers Act read together with 1977 insurance-reimbursement statutes that assumed social workers would identify a patient's disorder as part of billing for their services.

Could a social worker use standard diagnostic manuals like DSM-III to code a patient's condition?
Yes. The opinion concluded that because a clinical social worker could lawfully render a diagnosis after a physician's referral, the social worker could also state that diagnosis using the terminology of DSM-III, the American Psychiatric Association's diagnostic manual.

Background and statutory framework

The opinion framed the question around the Maryland Medical Practice Act's definition of "practice medicine," which includes "[d]iagnosing ... any physical, mental, or emotional ailment," a function generally reserved to licensed physicians under HO §14-701. However, the Act does not limit anyone's right to practice a different health occupation they are separately authorized to practice, so the opinion turned to the Maryland Social Workers Act, HO §18-101(e), to see whether that law authorized social workers to diagnose. The Social Workers Act itself never used the word "diagnosis," describing the practice of social work instead as helping people with social functioning, tangible services, and counseling.

To resolve the gap, the opinion looked to "subsequent legislation" bearing on legislative purpose, citing Kaczorowski v. City of Baltimore, and found it in a 1977 amendment to the Insurance Code, Article 48A, §354L, requiring insurers to reimburse a clinical social worker for services within the social worker's lawful scope of practice, but only if the patient had first been referred to the social worker by a physician. The opinion read this physician-referral requirement as reflecting a legislative judgment that a physician should act as a "gatekeeper," screening out disorders that need medical treatment before a social worker's involvement, and reasoned that once that screening had happened, an insurer could not sensibly reimburse a social worker's services without the social worker being able to identify, in other words diagnose, the disorder being treated. Reading the Insurance Code and the Social Workers Act together to "implement the legislative goal, not to frustrate it," citing NCR Corp. v. Comptroller, the opinion concluded diagnosis after physician referral fell within a clinical social worker's permissible scope of practice.

The opinion also looked to the Board of Social Work Examiners' "Vendorship" regulations, which described clinical social work as including "providing diagnostic evaluation, based on social work principles and methods," a phrase the opinion read as consistent with, and even broader than, the diagnostic authority it had already found in the statutes. Finally, addressing the specific controversy that prompted the request, the opinion concluded that because a properly referred social worker could diagnose a patient, the social worker could also record that diagnosis using the American Psychiatric Association's DSM-III coding system, the standard reference manual clinicians used to communicate about mental disorders.

Citations and references

Statutes:

• HO §14-101(j)(2)
• HO §14-701
• HO §14-102(a)(1)
• HO §18-101(e)
• HO §18-101(e)(3)
• HO §18-101(e)(3)(iii)
• Article 48A, §354L
• Article 48A, §470K
• Article 48A, §477-O
• Article 48A, §354N
• Article 48A, §354S
• Article 48A, §354Y
• COMAR 10.42.02.02A and B
• COMAR 10.42.02
• COMAR 10.42.02.01B(1)
• COMAR 10.42.02.01B(2)(a)
• COMAR 10.42.02.01B(2)(d)
• COMAR 10.21.05.04D(3)
• Chapter 298 (Senate Bill 117), Laws of Maryland 1977
• Chapter 853 (Senate Bill 1026) of the Laws of Maryland 1975

Cases:

• Reams v. State, 279 So. 2d 839 (Fla. 1973)
• Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987)
• NCR Corp. v. Comptroller, 313 Md. 118, 146, 544 A.2d 764 (1988)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Social Workers—Scope of Practice—Diagnosis—Clinical Social Worker May Diagnose Disorders After Physician Referral.

November 9, 1988

The Honorable Peter G. Callas
Maryland House of Delegates

You have requested our opinion concerning the authority of clinical social workers to render diagnoses. You and several of your colleagues asked us to review this issue in light of advice earlier this year to the Board of Social Work Examiners that called into question what had been widely assumed to be a permissible aspect of the practice of clinical social workers.
For the reasons stated below, we conclude as follows:

1. A clinical social worker may not render a diagnosis unless a physician has first personally assessed the patient's needs and, after that assessment, has referred the patient to the social worker.
2. However, once a physician has assessed the patient's needs and referred the patient to a clinical social worker, the social worker may make a diagnosis of the person's social, mental, or emotional disorder and may use whatever diagnostic coding is appropriate for the patient's medical records or for insurance reimbursement purposes.

                                         I
                                 Background

At least for the last decade, specially trained clinical social workers have been part of the system for delivery of mental health care services in Maryland.1 No one questions that clinical social workers may provide treatment within the scope of their practice. What is at

1
By "clinical social worker," we mean a licensed certified social worker who has satisfied the practice and approval requirements in the "vendorship" regulations of the Board of Social Work Examiners. COMAR 10.42.02.02A and B. See Part IIC below.

issue is whether social workers may also diagnose an individual or whether that initial step in the treatment process is outside the permissible scope of practice of clinical social workers.

                              II
     Provision of Services By Clinical Social Workers

A. Medical Practice Act
Diagnosis means "the discovery of the source of the patient's illness or the determination of the nature of his disease from a study of its symptoms." Black's Law Dictionary 408 (5th ed. 1979). Diagnosis is part of the practice of medicine, defined as follows in the Maryland Medical Practice Act:

"Practice medicine" includes doing, undertaking, professing to do, and attempting any of the following:
  (i) Diagnosing ... any physical, mental, or emotional ailment or supposed ailment of an individual ..."

§14-101(j)(2) of the Health Occupations Article ("HO" Article). In general, only licensed physicians may practice medicine, including the rendering of diagnoses. HO §14-701. See Reams v. State, 279 So. 2d 839 (Fla. 1973).
Nevertheless, the Medical Practice Act "does not limit the right of ... an individual to practice a health occupation that the individual is authorized to practice under this article." HO §14-102(a)(1). In other words, an individual who practices another health occupation is authorized to diagnose if diagnosis is permitted by the laws governing that occupation. Hence, we turn to the Maryland Social Workers Act to determine if diagnosis is permitted. If so, it is not prohibited by the Medical Practice Act.

B. Social Work Act and Subsequent Legislation
The "practice [of] social work" includes the following activities:

   (1) Helping individuals, groups, or communities to enhance or restore their capacity for social functioning;
  (2) Seeking to create societal conditions favorable to this goal; and

Page 260

     (3) By the application of social work values, principles, and techniques:
          (i) Helping people obtain tangible services;
         (ii) Helping persons, communities, and groups provide or improve social and health services; and
         (iii) Counseling with individuals, families, and groups.

HO §18-101(e).2 The statute does not use the term "diagnosis" or any synonym for it.
When we construe a statute, however, we may consider "its relationship to subsequent legislation and other material that bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case." Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987).
In 1977 the General Assembly amended the Insurance Code to provide "that an insured, covered under certain policies, is entitled to reimbursement for certain services performed by certain duly licensed certified social workers if the insured was referred to the social worker by a physician." Chapter 298 (Senate Bill 117), Laws of Maryland 1977. One of these provisions, applicable to nonprofit health care service plans like Blue Cross/Blue Shield, reads as follows:

     (a) Every group health insurance policy or individual policy or certificate delivered or issued for delivery in this State or issued to a group which is incorporated or has a main office located in this State, or covering persons who reside or work within this State, which provides for reimbursement for any service which is within the lawful scope of practice of a licensed certified social worker shall provide such benefit whether the service is performed by a doctor of medicine or by a licensed certified social worker who has had at least two years or 3,000 hours of post-masters supervised clinical social work practice in a clinical program as established by the State Board of Social Work Examiners if the insured or the person covered by the policy was referred to the social worker by a physician.

2
The original Social Workers Act, Chapter 853 (Senate Bill 1026) of the Laws of Maryland 1975, contained a definition of "social work practice" substantially similar to HO §18-101(e)(3).

   (b) The provisions of this section shall apply to all such policies and certificates issued, renewed, modified, altered, amended, or reissued on or after January 1, 1978.

Article 48A, §354L. See also Article 48A, §§470K (health insurance) and 477-O (group health insurance). These provisions are typical of several in the Insurance Code evidently intended to encourage the use of comparatively low cost providers of health care services. See Article 48A, §§354N (reimbursement for services of nurse midwife), 354S (reimbursement for services of certified nurse practitioner) and 354Y (reimbursement for services of certified nurse anesthetist).
Under §354L and its companion provisions, if an insurance policy covers mental health services that a social worker may perform, for instance, "counseling with individuals, families, and groups," HO §18-101(e)(3)(iii), then the insurer must reimburse a clinical social worker who performs those services, if the patient "was referred to the social worker by a physician." See generally 65 Opinions of the Attorney General 266, 267 (1980).
The statute expressly requires a physician referral as a prerequisite to its reimbursement mechanism. We infer from this a legislative recognition that some emotional or behavioral problems might be symptomatic of a physiological disorder that can be treated only by a physician. The referral requirement is intended to assure that, before someone is treated by a social worker, the person will first have been screened by a physician so that physiological problems may be identified and treated. The physician is the gatekeeper, empowered to determine whether the patient's disorder requires medical treatment. Referral to a clinical social worker reflects the physician's judgment that the disorder is amenable to the clinical social worker's professional expertise. The clinical social worker may then apply that expertise to determine the nature of the patient's social, mental, or emotional disorder, in other words, to diagnose.
The evident statutory purpose of §354L and parallel provisions is to facilitate reimbursement and thereby enhance the ability of clinical social workers to provide comparatively low cost mental health care services. The General Assembly recognized the practical reality that reimbursement from an insurer is impossible unless the practitioner identifies the nature of disorder that is being treated. Hence, reading the pertinent Insurance Code provisions together with the Social Workers Act, we conclude that it is within the permissible scope of practice of a clinical social worker to render a diagnosis after the patient has been referred by a physician. "Our endeavor always is to construe a statute so as to implement the legislative goal, not to

frustrate it." NCR Corp. v. Comptroller, 313 Md. 118, 146, 544 A.2d 764 (1988).3

C. Vendorship Regulations
The Board of Social Work Examiners has adopted regulations, peculiarly entitled "Vendorship," to define the category of licensed certified social workers who qualify for insurance reimbursement under Article 48A, §354L and parallel sections of the Insurance Code. COMAR 10.42.02. In essence, the Board has identified a specially trained category of clinical social workers who meet the statutory requirements. Clinical social workers provide services designed to:

     (a) Modify psycho-social conditions which affect individuals or groups of individuals with respect to behavior, emotions, and thinking as these relate to their interpersonal and intrapersonal processes;
    (b) Assist individuals to achieve a better psycho-social adaptation; and
    (c) Assist individuals to reduce stress.

COMAR 10.42.02.01B(1). "Clinical social work" includes "treatment designed to alleviate social, mental, and emotional disorders in individuals, groups, couples, and families." COMAR 10.42.02.01B(2)(a).
Clinical social work also includes "providing diagnostic evaluation, based on social work principles and methods ...." COMAR 10.42.02.01B(2)(d). This provision is consistent with the clinical social worker's authority to render a diagnosis following a physician's referral. Indeed, the phrase "diagnostic evaluation" seems to be more expansive than the term "diagnosis" alone, for a diagnostic evaluation "is frequently, but not always, directed toward planning for [the individual's] care or for the arrangement of his environment." Id. This element of planning is not a part of "diagnosis" itself. See Part IA above.

3
It is noteworthy that two of the principal sponsors of the Social Workers Act also sponsored the bill on service reimbursement for clinical social workers. Compare 1975 Senate Journal 1377 with 1977 Senate Journal at 152. These sponsors evidently viewed the 1977 enactment as furthering the purposes of the 1975 act.

                                     III
                                 DSM-III

Part of the controversy in this matter has turned on the use by clinical social workers of the diagnostic codes in a particular document, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980), commonly referred to as DSM-III.4 DSM-III contains an elaborate classification system for mental disorders, including diagnostic criteria and descriptions of the disorders. Although published by the American Psychiatric Association, DSM-III is explicitly intended to provide "clinicians" with "a common language with which to communicate about the disorders for which they have professional responsibility. Planning a treatment program must begin with an accurate diagnostic assessment." DSM-III at 1. A social worker coordinated the field trials used in the development of DSM-III.5
Because we have concluded that, after physician referral, a clinical social worker acts within the scope of his or her licensed practice by rendering a diagnosis, the clinical social worker may state that diagnosis in the terminology of DSM-III.

                                     IV
                                Conclusion

 In summary, it is our opinion that:

1. A clinical social worker may not render a diagnosis unless a physician has first personally assessed the patient's needs and, after that assessment, has referred a patient to the social worker.

4
DSM-III has recently been revised. The new document is referred to as DSM-III-R.
5
See Williams, DSM-III: A Comprehensive Approach to Diagnosis, Social Work, March 1981, at 101.

2. However, once a physician has assessed the patient's needs and referred the patient to a clinical social worker, the social worker may make a diagnosis of the person's social, mental, or emotional disorder and may use whatever diagnostic coding is appropriate for the patient's medical records or for insurance reimbursement purposes.6

          J. Joseph Curran, Jr., Attorney General
          Jack Schwartz, Chief Counsel
                         Opinions & Advice

6
This opinion should not be taken to suggest that the management of a medical facility is compelled to give diagnostic responsibilities to clinical social workers. The Department of Health and Mental Hygiene, for example, is free to allocate responsibilities among the health care professionals employed at its institutions in whatever way best comports with the Department's policies on patient care. See COMAR 10.21.05.04D(3).