Court cases, market forces reshaping psychology

By Tim F. Branaman, Ph.D., ABPP
November 19, 2018



Court cases market forces reshaping psychologyI write from my experience as chair of Texas State Board of Examiners of Psychologists (TSBEP), but what I’ve seen has broad implications for professional practice nationwide.

For nearly 50 years the Federal Trade Commission (FTC) has focused on increased competition to facilitate a “free market” in the professions and has closely watched activities of professional associations and state regulatory boards. Market forces and court decisions also have “chipped away” at the practice of psychology.

Regulations limiting the use of the title “psychologist” were the basis of Serafine v Branaman, a federal suit filed in 2011 by Mary Louis Serafine, a lawyer and political candidate. She alleged her First Amendment rights were violated by a “cease and desist” letter from the TSBEP for representing herself as a psychologist.

Serafine, a licensed lawyer with a Ph.D. in education, objected that she could not call herself a “psychologist” just because she had neither been trained as one nor ever been licensed to practice. She considered her post- doctoral fellowship in psychology qualified her to do so. Before a decision was rendered, another federal case, Rosemond v Kentucky, was filed in 2013 and decided in 2015.

The essence of Rosemond v Kentucky was the connection between speech, the practice of psychology and limitations of state regulation of such speech. The court held that merely representing oneself as a psychologist and offering advice in a newspaper column did not constitute the practice of psychology, as no “client-patient” relationship existed.

The decision indicated that speech, as it relates to professional practice, is limited and cannot be based on concern for harm that is not demonstrable.

In this context, the U.S. 5th Circuit Court of Appeals in 2016 ruled that Serafine could describe herself as a psychologist for political purposes.

However, the court went further. It determined that the Texas psychology practice act was overly broad. The practical effect was to nullify the act. The TSBEP engaged in an intensive research effort to develop a restructured practice act that would meet the court’s requirements.

What we learned was that most if not all state psychology practice acts appear vulnerable to the legal challenge that befell the Texas act. While the Serafine opinion was specific to the 5th U.S. Circuit Court of Appeals, it could have nationwide implications.

On another front, a free-market ruling with direct implications for all U.S. regulatory agencies was rendered by the U.S. Supreme court in North Carolina State Board of Dental Examiners, Petitioner v Federal Trade Commission (2015).

In that case, the dental board, mostly comprised of professional stakeholders, issued a “cease and desist” order to prevent teeth whitening services from offering services in local malls. The FTC filed a complaint that the board’s order was obstructive to consumer access to service and an unlawful restriction of trade. The board argued it was immune from antitrust law, but the Supreme Court ruled that a regulatory board was not immune unless “actively supervised” by the state.

Regulatory boards without necessary oversight are at risk for an FTC complaint or federal suit. Not only the state agency but individual board members may have extensive liability if found in violation of antitrust laws.

Following the North Carolina Dental Board v FTC decision, the exposure of professional regulatory boards was demonstrated in another Texas case, Teladoc Inc. v Texas Medical Board. In that case, the Texas Medical Board attempted to restrict telemedicine practice by requiring initial patient evaluation be by direct contact. The FTC intervened and the case was resolved in favor of Teladoc by statutory changes in the Texas Medical Act.

In Texas, the independent practice of “psychology” had been reserved for doctoral level professionals despite numerous efforts by the Texas Association of Psychological Associates representing licensed psychological associates (LPAs) to obtain that right through the state legislature.

All this changed in 2010 when their association sued the TSBEP. While TSBEP prevailed at trial and subsequent appeal in 2014, the North Carolina v FTC ruling followed in 2015. At that point, the potential risk of another suit was too great that the board, due to being comprised of a stake-holder majority without state oversight, would be found in violation of FTC requirements.

This resulted in the TSBEP providing a pathway to independent practice for Texas LPAs.

In July 2018, APA released a statement noting that “changes in the field led to a decision by the council of representatives to direct APA to develop an accreditation system for master’s programs in health service areas of psychology” and they appointed a task force to develop recommendations for accreditation standards.

APA continues to assert that it considers a doctoral degree to be the minimum entry level degree for the practice of psychology, yet their recognition of “changes in the field” suggests that they are well-aware of the changing market forces and regulatory requirements I noted above. An additional driver of these changes may have been internal pressure from university training programs that offer terminal master’s degrees in psychology.

I believe professional psychology is best practiced by those who are trained at the doctoral level, but it now seems that licensing of individuals with master’s level training in psychology is inevitable. What then are the possible consequences of these trends?

First, there will be increasingly sharp scrutiny of regulatory boards by the public, state legislatures and federal regulations. There may be individual or class action suits.

Second, stakeholders appointed to regulatory boards must be sensitive to the potential for implicit bias influencing regulatory rules. The least restriction necessary for regulatory oversight of licensees and protection of the public is paramount.

Third, the degree to which regulations are created to protect the public must be based on more than “speculative harm.”

Finally, the practice of psychology, much like the practice of law and much of psychiatry, is a service comprised of language; it is a service by words that makes definition of practice parameters difficult. While requiring a specialized knowledge base, the definition of what constitutes the “practice of psychology” is open to challenge.

I expect greater challenges may come. Where we go from here remains to be seen.

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Tim F. Branaman, Ph.D., ABPP (forensic), a Texas licensed psychologist, has delivered clinical and forensic services in a practice group he established in the mid-80s. He also serves on the Texas State Board of Examiners of Psychologists to which he was appointed in 2008 and subsequently appointed as chairman in 2010. He may be contacted by email at: drtimbranaman@gmail.com.

 

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