BULLETIN # 63 APRIL 2010
AVOIDING LIABILITY BULLETIN
By: Richard S. Leslie, J.D.
Attorney at Law - “At the Intersection of Law and Psychotherapy”
ADVERTISING “DOCTOR/Dr.”
As I have previously written, probably on more than one occasion, the general rule on advertising by licensed health professionals is that advertising is permissible so long as it is not false, fraudulent, misleading or deceptive. Some or all of these four words describing unlawful advertising by health professionals may be defined in state law or regulation. Each state may treat this subject somewhat differently, so reference to the particular state’s law may be necessary. With respect to the word “doctor” or the letters or prefix “Dr.,” state law (the Medical Practice Act) in California makes it a crime (misdemeanor) for any person to advertise by using the word “doctor” or the letters or prefix “Dr.” when referring to himself or herself in advertising (e.g., on the Internet, a business card, sign) unless the person is licensed as a physician and surgeon.
Some therapists or counselors that have a PhD or other related doctoral degree that qualifies them for licensure refer to themselves as a doctor (or as Dr.) without using the PhD after their name. Some do this by mistake, while others do it intentionally. I have seen practitioners refer to themselves by a title that doesn’t exist as a state-issued license (e.g., “licensed psychotherapist“) and neglect to put the related PhD after his/her name while in the same ad referring to him/herself as a doctor. In both of these situations, these practitioners typically do not disclose the title of their actual licenses. Such advertisements are problematic at best. Depending upon state law or regulation, such advertisements may constitute unprofessional conduct and/or may subject the practitioner to criminal charges.
In any criminal prosecution or licensing board disciplinary action involving wrongful advertising by a licensed health professional, the entire advertisement is relevant. The courts and licensing boards will typically look at the “four corners of the advertisement.” Even if the law is not violated by a particular advertisement, proper ethical behavior and transparency would seem to dictate that the consumer is entitled to know the exact kind of license that is held by the practitioner. Why would a licensee not disclose his or her actual licensure? Why would a licensee be so desirous of being referred to as a “doctor” or as “Dr?” The answer, it might be alleged, is the licensee wants to mislead the consumer into believing that he/she has a greater or different license than he/she actually possesses.
PAYMENT FOR SUPERVISION
The issue of payment for supervision is once again being raised in California with respect to the marriage and family therapy and social work professions. This time the question being asked is whether an employer may lawfully charge or receive payment for supervision provided to an employed or volunteering intern. For many years, payment by pre-licensed persons (such as, registered interns) for supervision has been permissible (with respect to the acceptability of hours of experience), except when employed in a private practice setting. Recently, the licensing board for these two professions sponsored a bill that removed the restriction on payment for supervision when a pre-licensed person is employed in a private practice setting. Thus, the licensing board (Board of Behavioral Sciences) has for many years counted the hours of experience of interns and trainees regardless of whether such pre-licensed persons paid for supervision or not (except in private practice settings – which was for a long time prohibited, but no longer).
Employers who hire interns or trainees must be careful, however, that they do not run afoul of state labor laws pertaining to the payment of wages. For example, the California Labor Code makes it unlawful for an employer to collect or receive from an employee any part of wages previously (the statute uses the word “theretofore”) paid by the employer to the employee. There are exceptions to this law, one of which allows a deduction from the employee’s wages when a deduction is expressly authorized in writing by the employee and the deduction does not amount to a rebate or deduction from the standard wage arrived at pursuant to a wage agreement. These laws are intended to prevent the employer from exploiting the employee. Typically, a state labor authority would get involved if and when an employee files a complaint alleging that he or she has been exploited by the employer.
A written agreement between the employee and employer might include, for example, that the employee understands that his or her wage is fixed at a specific amount, that he or she agrees that the employer is not obligated (some may be) to provide the kind and amount of supervision required by the licensing law for the employee to be credited with hours of experience toward licensure, that the supervision to be given is for the personal benefit of the employee who is seeking state licensure, and that the employee understands and agrees that the payment for such supervision is voluntary and is not considered by the employee to be a deduction from wages. To determine whether or not such an agreement (with different or additional provisions, depending upon the specific arrangement) is satisfactory, employers must get their own legal advice in order to make sure that they do not violate applicable state laws.
How is the issue of payment for supervision handled in the state in which you practice? Are employers allowed to charge or receive payment for supervision? Does the licensing board accept hours of experience gained toward licensure when the pre-licensed person pays for supervision? May employers (including nonprofits) charge volunteers or employees a “training fee” rather than charge for supervision?
AVOID THESE MISTAKES
I have previously written in the Avoiding Liability Bulletin (January 2007, Volume 1 - “Avoid These Common Errors”) about some administrative aspects of practice that therapists and counselors need to pay attention to in order to avoid unexpected problems, such as renewal of license, renewal of malpractice insurance, renewal of continuing education provider status, obtaining of a business license, and filing the required forms for use of a fictitious business name. This item addresses some areas of practice where a mistake (error) could lead to substantial consequences.
In law, a “mistake” is broadly defined as an unintentional act, omission, or error arising from ignorance, surprise, forgetfulness, or misplaced confidence. Therapists and counselors (and others) from time to time make mistakes, which will often constitute negligence. A failure to pay attention to seemingly minor details can easily result in consequences that may complicate the practitioner’s life. As an example, suppose that a practitioner mistakenly believes that it is permissible to report child abuse in a state other than where the practitioner is located.
For example, suppose the practitioner is located in California and is told by her patient in California of child abuse that occurred in Nevada some years earlier. On occasion, some therapists in California have mistakenly believed that they were permitted to make child abuse reports directly to the authorities in Nevada (or some other state), where the child abuse occurred and where the abuser resides. This mistaken belief may be due to the fact that the authorities in the state where the therapist resides assert (in error) that they will not take the reports and that the reports should be made in the state where the abuse occurred. Sometimes the therapist may believe that it is best to be cautious and to make sure that the alleged child abuser is investigated in the state where he or she resides, especially since the alleged abuser may have convenient access to children as a result of his or her job – e.g., custodian in a school. Such a mistake could prove costly. It could constitute a breach of confidentiality, resulting in a civil suit for monetary damages or a licensing board disciplinary action. How does the law in your state deal with this issue, if at all?
Another mistake (omission) that could prove costly may occur when making a referral to another practitioner. For example, how many practitioners check the license status of the practitioner to whom they are referring the patient or client? What if the practitioner makes a referral to a colleague in the same office and against whom there may be one or more complaints before the licensing board that have resulted in the filing of formal charges or an accusation, or a final action of some kind? And, what if the practitioner making the referral does not check with the licensing board to ascertain the status of the colleague’s license? Depending upon circumstances, this scenario could prove to be a problem for the referring practitioner, even if there is no statute or regulation that requires such diligence.
There are many other examples of mistakes, but one that I think some will be able to relate to is the mistake of agreeing to see a patient or client when instinct tells you that you should decline the opportunity. Perhaps some practitioners have difficulty in saying “no thank you” (or more appropriate words!) to a prospective patient, but sometimes, that is the best thing you can do. Each individual must be the sole judge of such situations. There are many reasons why practitioners may say “no.” It could be because the client is unable to pay the full fee and has asked for a sliding scale, it could be because the person’s problem is not within your sphere of interest or competence, or it could simply be something intangible that makes you uncomfortable. Even though you may be building a practice and desirous of obtaining new clients, sometimes the best and most cost effective thing you can do is decline to see a prospective client.