Kansas Attorney General Opinion 1992-114

ROBERT T. STEPHAN
ATTORNEY GENERAL August 27, 1992
ATTORNEY GENERAL OPINION NO. 92- 114
Steve A. Schwarm
General Counsel
Kansas Board of Healing Arts
235 S. Topeka
Topeka, Kansas 66603
Re: Public Health -- Healing Arts; Kansas Healing Arts
Act -- Persons Deemed Engaged in Practice of
Medicine and Surgery; Diagnosis of Psychological
Disorders
Synopsis: Practitioners of medicine and surgery and
practitioners of osteopathic medicine and surgery
are authorized to diagnose psychological
disorders. To the extent contrary to the
discussion herein, Attorney General Opinions No.
87-184 and 92-43 are hereby modified. Cited
herein: K.S.A. 1991 Supp. 65-2869; K.S.A. 65-2870;
K.S.A. 1987 Supp. 74-5362; L. 1988, ch. 251, § 5.
Dear Mr. Schwarm:
As general counsel for the Kansas board of healing arts, you
ask us to revisit Attorney General Opinion No. 92-43 insofar
as it references that portion of Attorney General Opinion No.
87-184 pertaining to the authority of practitioners of
medicine and surgery to diagnose psychological disorders. You
direct our attention to L. 1988, ch. 251, sec. 5 which
amended K.S.A. 65-2869 and ask whether such amendment alters
our 1987 conclusion that practitioners of medicine and surgery
are not allowed to diagnose and treat psychological disorders.

In 1987, K.S.A. 74-5362 permitted registered masters level
psychologists to practice psychology in specified settings, so
long as such practice was:
"under the direction of a person licensed
to provide mental health services as an
independent practitioner and whose
licensure allows for the diagnosis and
treatment of psychological disorders."
In 1987 we were asked by the Kansas behavioral sciences
regulatory board the following questions: What persons are
permitted by their licensure to diagnose and treat
psychological disorders? Specifically, what persons may
registered masters level psychologists practice "under the
direction of"?
Based on a review of the law applicable at the time we
concluded:
"Persons who may supervise registered
masters level psychologists (RMLPs) must
meet two requirements: (1) They must be
licensed to provide mental health services
and (2) their licensure must allow them to
diagnose and treat psychological
disorders. It is our opinion that licensed
psychologists meet these requirements, but
social workers and psychiatrists do not."
Attorney General Opinion No. 87-184,
Synopsis.
As acknowledged in that opinion, psychiatrists are
practitioners of the healing arts licensed by the Kansas board
of healing arts to practice medicine and surgery. Osteopathic
physicians and surgeons are likewise licensed by the Kansas
board of healing arts to practice medicine and surgery.
K.S.A. 65-2870(b). The analysis in Attorney General Opinion
No. 87-184 was based on the applicable definition of
practitioners of medicine and surgery as then found at K.S.A.
65-2869:
"For the purpose of this act the following
persons shall be deemed to be engaged in
the practice of medicine and surgery:

"(b) Persons who prescribe, recommend or
furnish medicine or drugs, or perform any
surgical operation of whatever nature by
the use of any surgical instrument,
procedure, equipment, or mechanical device
for the diagnosis, cure or relief of any
wounds, fractures, bodily injury,
infirmity, disease or physical or mental
illness, of human beings." (Emphasis
added).
In addition, in discussing the distinctions between the
practice of psychology and the practice of medicine and
surgery, we said:
"These factors suggest that the practice
of diagnosing and treating psychological
disorders is not the same as that
concerning mental illness. While a
physician may, in diagnosing and treating
mental illness, use tools and methods that
a psychologist uses, a physician is
precluded from practicing psychology.
Thus, it does not appear that a
psychiatrist's license - which is a
license to practice the medicine and
surgery branch of the healing arts -
allows for the 'diagnosis and treatment of
psychological disorders.'" Attorney
General Opinion No. 87-184, p. 7.
In a 1992 Attorney General opinion (which addressed the
authority of social workers to make diagnoses) this line of
reasoning was continued:
"Since one must be licensed as a
psychologist to practice psychology,
K.S.A. 1991 Supp. 74-5340, the realm of
diagnosing psychological disorders is
limited to licensed psychologists."
Attorney General Opinion No. 92-43, p. 4.
Subsection (b) of K.S.A. 65-2869 was amended in 1988 to
include the following as persons deemed to be engaged in the
practice of medicine and surgery:
"Persons who prescribe, recommend or
furnish medicine or drugs, or perform any

surgical operation of whatever nature by
the use of any surgical instrument,
procedure, equipment or mechanical device
for the diagnosis, cure or relief of any
wounds, fractures, bodily injury,
infirmity, disease, physical or mental
illness or psychological disorder, of
human beings." L. 1988, ch. 251, sec.
5. (Emphasis added).
In light of this amendment you suggest that Attorney General
Opinions No. 87-184 and 92-43 should be modified insofar as
the conclusions pertain to authority of practitioners of
medicine and surgery and practitioners of osteopathic medicine
and surgery to diagnose psychological disorders. We agree.
The 1988 amendment to K.S.A. 65-2869 altered the definition of
medicine and surgery and now clearly authorizes practitioners
of medicine and surgery and practitioners of osteopathic
medicine and surgery to diagnose psychological disorders as
well as mental illnesses. Those portions of Attorney General
Opinions No. 87-184 and and 92-43 which conflict with the
discussion herein are hereby withdrawn.
In conclusion, practitioners of medicine and surgery and
practitioners of osteopathic medicine and surgery are
authorized to diagnose psychological disorders.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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