What is and is not Psychology?

In preparation for recent hearing, I came across an extremely complex legal topic. The issue is to what extent of can licensees under the Pennsylvania State Board of Social Workers, Marriage and Family Therapists and Professional Counselors  practice their profession short of practicing psychology.

What are these practices?

  • “PRACTICE OF MARRIAGE AND FAMILY THERAPY.” The professional application of psychotherapeutic and family systems theories and techniques to the evaluation, assessment and treatment of mental and emotional disorders, whether cognitive, affective or behavioral. The term includes the evaluation and assessment of mental and emotional disorders in the context of significant interpersonal relationships and the delivery of psychotherapeutic services to individuals, couples, families and groups for the purpose of treating such disorders.
  • “PRACTICE OF PROFESSIONAL COUNSELING.” Includes, to the extent compatible with a practitioner’s education and professional competence, all of the following:
    • (1)  The application of principles and practices of counseling, mental health and human development to evaluate and facilitate human growth and adjustment throughout the life span and to prevent and treat mental, emotional or behavioral disorders and associated stresses which interfere with mental health and normal human growth and development.
    • (2)  The evaluation and assessment of normal and abnormal mental, emotional, social, educational, vocational, family and behavioral functioning throughout the life span; individual, group, family counseling and psychotherapy; crisis intervention, career counseling and educational and vocational counseling; functional assessment of persons with disabilities; and professional consulting.
    • (3)  Professional counselors’ utilization of verbal and nonverbal approaches and specialization in the use of arts-based therapeutic approaches, such as art, dance, music or drama, to accomplish treatment objectives.
  • “PRACTICE OF SOCIAL WORK.” Offering to render or rendering a service in which a special knowledge of social resources, human personality and capabilities and therapeutic techniques is directed at helping people to achieve adequate and productive personal, interpersonal and social adjustments in their individual lives, in their families and in their community or holding oneself out to the public by any title or description of services incorporating the term “social worker” or using any words or symbols indicating or tending to indicate that one is a social worker, except as otherwise provided by this act.

Conversely, the Professional Psychologists Practice Act, 63 Pa. Cons. Stat. § 1203(3) also provides significant guidance.  The Psychologist Act creates a separate exemption for qualified members of other recognized professions including, but not limited to Social Workers, Marriage and Family Therapists and Professional Counselors. This section  1203(3) of the Psychologists Act states:

Nothing in this act shall be construed to prevent qualified members of other recognized professions, including, but not limited to, clergy, drug and alcohol abuse counselors, mental health counselors, social workers, crisis intervention counselors, marriage and family therapists, pastoral counselors, rehabilitation counselors and psychoanalysts, from doing work of a psychological nature consistent with the training and the code of ethics of their respective professions or to prevent volunteers from providing services in crisis or emergency situations. This exemption applies only to the practice of the respective listed profession.

So, what is practicing Psychology?  “Practice of psychology” means offering to render or rendering to individuals, corporations, institutions, governmental agencies, or the public for remuneration any service involving the following:

(i) The application of established principles of learning, motivation, perception, thinking, and emotional relationships to problems of personality evaluation, group relations, and behavior adjustment. The application of said principles includes, but is not restricted to, counseling and the use of psychological methods with persons or groups with adjustment problems in the areas of work, family, school, and person?-1 relationships; . measuring and testing· of personality, intelligence, aptitudes, and emotions, and offering services as a psychological consultant.

(ii)(a) “Measuring and testing,” consisting of the psychological assessment and evaluation of abilities, attitudes, aptitudes, achievements, adjustments, motives, personality dynamics and/or other psychological attributes of individuals, or groups of individuals by means of standardized measurements or other methods, techniques or procedures recognized by the science and profession of psychology, (b) “psychological methods,” consisting of the application of principles of learning and motivation in an interpersonal situation with the objectives of modification of perception and adjustment, and requiring highly developed skills in the disciplines, techniques, and methods of altering through learning processes, attitudes, feelings, values, self-concept, personal goals· and adaptive patterns, ( c) “psychological consulting,” consisting of interpreting or reporting upon scientific fact or theory in psychology, rendering expert psychological opinion, psychological evaluation, or engaging in applied psychological research.

This definition contains numerous elements, which can be broken down as follows: (1) the practitioner offers to render or renders (2) to individuals, corporations, institutions, governmental agencies, or the public (3) for remuneration ( 4) any service involving one or more of the following:

(a) the application of established principles of learning, motivation, perception, thinking, and emotional relationships to problems of personality evaluation, group relations,, and behavior adjustment, which established principles include measuring and testing of personality, intelligence, aptitudes, and ’emotions, and offering services as a psychological consultant; or (b) psychological assessment and evaluation of abilities, attitudes, aptitudes, achievements, adjustments, motives, personality dynamics and/or other psychological attributes of individuals by means of standardized measurements or other methods, techniques or procedures recognized by the science and profession of psychology; or (c) “psychological consulting,” consisting of interpreting or reporting upon scientific fact or theory in psychology, rendering expert psychological opinion, psychological evaluation, or engaging in applied psychological research.

In applying these definitions to the exemptions, 49 Pa. Code § 41.7 incorporates a statement of policy that provides guidelines for determining whether a given group qualifies as a “recognized profession” for the purposes of section 63 P .S. § 1203(3). Those guidelines read as follows:

(1) The group’s activity and focus must be based on an identifiable body of theoretical knowledge which, although it may include areas of coII1I11on knowledge shared with psychology, is demonstrably different, in the aggregate, from the body of theoretical knowledge underlying psychology.
(2) The group must regulate entrance into professional membership by means of standards of knowledge, training and proficiency generally accepted by the profession with which it identifies.
(3) ) . The group’s activity must be guided by generally accepted quality standards, ethical principles and requirements for an independent profession.
(4) The group must exhibit the ordinary accoutrements of a profession, which may include, but are not limited· to, professional journals, regional and national conferences, specific academic curricula and degrees, continuing education opportunities, regional and national certification and awards for outstanding practice within the profession.

More importantly, Section 1203(3) does not absolving these other licensed professionals from the prohibition against holding themselves out to the public by any title incorporating the words “psychological,” “psychologist” or “psychology” without first obtaining a license to practice psychology pursuant to the act.  The blanket advertising limitation set forth in section 1203 states:

It shall be unlawful for any person to engage in the practice of psychology or to offer or attempt to do so or to hold himself out to the public by any title or description of services incorporating the words “psychological,” psychologist” or “psychology” unless he shall first have obtained a license pursuant to this act, except as hereinafter provided:

Pursuant to the Ethical Principal 4(b) of the board’s regulations, “only psychologists licensed by a state board of psychologists examiners may be listed under the heading of psychologists in the yellow pages of the telephone directory.” 49 Pa. Code § 41.61.

Dezen v. Bureau of Prof’l & Occupational Affairs, 722 A.2d 1135 (Pa. Commw. Ct. 1999) discussed this issue. Dezen, a licensed social worker advertised in the Yellow Pages his ability to provide psychological counseling and similar services. The board found that he was not licensed as a psychologist and could not advertise his testing services as such.  The case law clearly precludes any other licensed professionals from holding themselves out to the public by any title or description of services incorporating the term using any words or symbols indicating portending to indicate that he or she his license or authorized to practice in any other capacity send their specific licensed professional.

Call me to discuss your case.

 

Fighting and Reporting Out-of-State Discipline to Pennsylvania’s Licensing Boards

A consistent and significant problem in many Pennsylvania disciplinary licensing matters I handle involve professionals who mistakenly stipulate to discipline in another state and then mistakenly fail to report the discipline to Pennsylvania’s licensing board. The reporting must be done within ninety days of the final disposition of that matter. This is a statutory requirement and set forth at 60 P. S. §221.1.

Failing to report is huge disciplinary error easily avoided. Pennsylvania’s licensing boards (including Nursing, Medical, Pharmacy, Osteopathic, Automobile, Real Estate, Social Work, Marital Counseling, or Psychiatry) receive notification of disciplinary decisions from other jurisdictions based upon information provided in many traveling professional’s applications for a second or third state license.When a final disciplinary order is entered in another jurisdiction, that jurisdiction communicates to every state for which the licensee holds a license. Pennsylvania is typically one such jurisdiction because many professionals secured their first professional license here upon graduating from one of our many fine teaching institutions. Failing to report a discipline is easily discovered by, and the basis for discipline in, the Commonwealth of Pennsylvania.

With regard to the factual basis of any disciplinary proceeding, I see the same mistake many times: inexperienced council or unrepresented professionals erroneously agree to discipline and sign agreements or stipulations unaware of how the terms of the agreements will affect a Pennsylvania licensee. To the inexperienced practitioner (attorney or professional), seasoned state disciplinary counsel seek and secure amazing factual stipulations that admit medical errors, professional incompetence, or drug and alcohol impairments. These factual stipulations are then linked to legal stipulations that satisfy each jurisdiction’s legal burdens for suspension, probation, or revocation of a license. Once this is done, discipline in Pennsylvania is inevitable.

After agreeing to certain facts and what may seem moderate discipline, a certified order of stipulated facts and discipline makes its way to Pennsylvania. The unrepresented professional may forget this fact, but agrees to the discipline because of an inability to hire experienced counsel or the prohibitive cost of mounting an effective defense. Unfortunately, Pennsylvania’s respective licensing board commences its own disciplinary proceeding based upon the factual and legal stipulations to which the licensee has already agreed, whether or not they reported such to Pa. Hence, I am called to address a second disciplinary process commenced in Pennsylvania.

The case of Phillip Romanelli v. Bureau of Professional and Occupational Affairs, 2011 Comm.Ct. Lexus 911 (November 1, 2011), is a clear example of the pitfalls of failing to fight a discipline in another state, failing to report the discipline, and then failing to appear and contest Pennsylvania’s discipline. Romanelli lost his license in another state, failed to timely report such and then decided too late to fight Pennsylvania’s proceedings. Ultimately, Pennsylvania’s license revocation proceedings were allowed.

The Romanelli case makes clear that it is the licensee’s responsibility to respond to all litigation documents. Failure to do so will be at one’s own pitfall. The dual difficulty in these cases is binding decisions from another jurisdiction and traveling to the Commonwealth. It is important to contest every aspect of every proceeding in another jurisdiction and not stipulate to facts that will be included in any final decree or decision of a licensing board. Stipulations to unfitness, incapacity, professional misconduct, or drug and alcohol addictions and impairments will allow the Pa. boards to restrict, limit, revoke, or emergently suspend your license.

Do not ignore Pa. corollary disciplinary actions merely because you are now practicing your profession elsewhere. A subsequent discipline in Pa. will have to be reported back to your new home state where one disciplinary matter was just fought. Inability to travel to Pa. or not practicing in Pa. are not basis to ignore these proceedings. I represent many individuals residing and practicing throughout the United States with an initial Pa. license. Many of my clients are professionals unable to return to Pennsylvania to address the hearings or deal with the Pennsylvania Court filings. I fight the case in Pa. while you remain home in your new adopted state.

Stipulations to a monitor program or treatment in another jurisdiction will become the basis for Pennsylvania to require the same or suspend your license. Pennsylvania’s monitor program, PMP or PHMP, is governed by an overly restrictive and statutorily required boilerplate contract. Even if you fail to report the discipline, which is a separate basis for discipline in PA, agreeing to a monitored program outside of Pa will result in Pa’s version being forced upon a licensee in Pa. Do not sign any such agreement without fighting that case.

Currently I represent an individual who was counseled incorrectly on this exact issue. She is now confronted with a non-Pennsylvania disciplinary action/monitoring requirement being utilized by the Pa. licensing board to investigate her for both for failure to report and the necessity of monitoring. She has secured new non-Pa. counsel to open and contest the underlying disciplinary actions so as to eliminate the possibility of having to enter the PHMP and being disciplined for failing to report a discipline. Returning to the first disciplining state and re-contesting agreements or stipulations is the only way to proceed.

Please call me to discuss any non-Pennsylvania disciplinary action and its ultimate affect on your underlying Pennsylvania license. Please call me to discuss the requirements for reporting you’re non-Pa disciplinary action on your active Pennsylvania license.

Please call me to discuss any Commonwealth of Pennsylvania enforcement action you receive as a result of a non-Pennsylvanian disciplinary proceeding or agreement. Please call me to discuss negotiations and strategy of your non-Pennsylvania disciplinary matter with the anticipation of having to report the same to the Pennsylvania licensing authorities.

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