We’re Exempt! Boards Concede that Exemptions are Real

We're Exempt!After more than a year of foot-dragging, the Oregon Board of Psychologist Examiners has conceded that the licensing exemptions in Oregon law do, in fact, exist, and that exempt practitioners are outside the authority of the licensing boards.

We’re Exempt!

Specifically, the “educational exemption” in ORS 675.825(4) was conceded. This exemption allows anyone to practice counseling or marriage and family therapy without a license. And since the definitions of counseling and marriage and family therapy are so broad, this exemption also covers practitioners who don’t even think of themselves as counselors or family therapists — hypnotherapists, NLP practitioners, and so on.

The Board’s Predicament

What kind of meeting was it? Let’s consider the context:

  • The Oregon Board of Psychologist Examiners (OBPE) has ignored the existence of this exemption for many years.
  • Over the past few years, the OBPE has prosecuted as many as 200 practitioners for “the unlicensed practice of psychology,” when these practitioners were operating perfectly legally under Oregon law.
  • In addition to dragging exempt practitioners through the legal process of a contested case hearing, the Board’s investigator, Karen Berry, routinely tries to bully practitioners into shutting down without a hearing. (Listen to a  voicemail of hers.) She succeeded in bullying many people into abandoning their careers. This violates Federal law.
  • The Federal government has always held that state licensing boards have a known tendency to abuse their power by persecuting their competitors, and that boards lack immunity to prosecution against laws that forbid anti-monopolistic practices. This was upheld by the Supreme Court earlier this year, reiterating the tests a board must pass in order to prosecute people who are not licensees. The OBPE fails all these tests.
  • The OBPE is bursting with legal talent, to the point where it’s hard to believe that its violations of the law are accidental. The board’s attorney, (Warren G. Foote), attends every meeting. Their investigator (Karen Berry), is also an attorney. Another staff member, LeRee Felton, has a doctorate in jurisprudence. A recently departed public member, James Hendry, is an attorney. A new public member, John Weiner, is an attorney.
  • The OBPE’s attorney, Warren Foote, is under investigation by the Oregon State Bar for rigging cases.
  • In addition to punishing the wrong people, the OBPE protects the wrong people. After a woman reported being gang-raped by athletes on the University of Oregon campus, a licensed psychologist, Robin Holmes, handed over the victim’s confidential counseling records  to the University’s attorneys, to help them discredit the victim! Holmes’ action calls for a license revocation and, if possible, a prison sentence. But the OBPE figured a $5,000 fine was plenty. The malfeasance of Holmes, the University, and the OBPE is getting a lot of publicity. The state legislators, in particular, will remember it for a long time.
  • In general, the state legislators have little respect for licensing boards, and find ways of punishing boards that cause trouble.

What I’d Expect From a Competent Board

Given all this baggage, the OBPE is in a hopeless position. The best they can do is  to accept the inevitable on the exemption front: dropping ongoing unlicensed practice cases, developing accurate guidelines for what’s exempt and what isn’t, and otherwise lying low and waiting for things to blow over. What choice do they have?

But that’s not what they did. In spite of everything, they still think they’re clever. Sigh.

Let me tell you what happened.

Also, I’ve posted my recording of the entire meeting below. It’s about 90 minutes long:

False Solidarity

I arrived at the Licensure Exemption Workgroup meeting, which was supposed to be a meeting between representatives of the OBPE, the counseling board (OBLPCT), and the licensed clinical social workers board (OBLCSW). But most of the representatives of the OBLPCT and OBLCSW didn’t show up.

Why stay away? This was made clear soon enough. The meeting was basically a platform for Fran Ferder, the OBPE chair, to push her agenda. Apparently, the other boards were there to create an illusion of solidarity.

Ferder’s Main Points

 “We should impose rules on mental-health professions other than our own.”

This was Ferder’s main concept. She doesn’t like the idea of exempt practitioners and thinks they should be regulated.

She never mentioned that, traditionally, licensing boards are created at the request of those within the profession that will be licensed — not imposed on them by their competitors!

That Ferder can survey the wreckage of her psychology board with a complacent eye, and assume that she’ll be allowed to do the same to the rest of the mental-health field, takes my breath away.

But nothing will happen until the 2017 legislative session.

“The exemption is the result of legislative incompetence, and it has no support.”

Ferder went into a lengthy exposition about how the the exemption, which has been in place for more than a quarter century, was simply a lapse on the part of the Oregon State Legislature, and that it has no support.

I’ll skip the history lesson. But … “no support”?

Let me quote from the February 7, 2014 minutes of the Oregon Board of Licensed Professional Therapists and Counselors:

On December 13, 2013, Board members Lynne Nesbit, Doug Querin and Scott Christie and staff met with representatives of ORCA, OAMFT and COPACT to discuss options for addressing unlicensed complaints. Representatives of the associations spoke strongly against removing the education exemption from the law.

ORCA is the Oregon Counseling Association, OAMFT is the Oregon Association of Marriage & Family Therapy, and COPACT is the Coalition of Oregon Professional Associations for Counseling and Therapy.

In other words, the exemption — which is part of the statutes regarding counseling and marriage and family therapy —  has the strong support of all three organizations that serve Oregon’s professional counselors and marriage and family therapists.

How much more support could it possibly have?

“Only people with college degrees should be allowed in.”

Ferder spent a lot of time harping on the fact that not everyone in the mental-health field is required to have a college degree. She seems to equate the lack of a degree with irremediable incompetence, though she gives no justification for this credentialism.

As a psychologist, Ferder has been trained in the rudiments of the scientific method, and is presumably aware that extensive research into therapeutic effectiveness show that neither degrees nor professional training programs have much effect on how good a therapist you are. (See two examples: here, and here.)

The keys to being a good therapist seem to lie with interpersonal skills. These are not taught, and no amount of schooling compensates for their lack. No psychologist can be unaware of this research.

“The public has no recourse if they are harmed by an exempt professional.”

Ferder claimed many times that licensing boards protect the public, and the public has no protection against the incompetence of exempt practitioners. But it’s not clear what protection a board actually provides.

Take the case of medical malpractice. If a doctor botches a procedure and causes me $10,000 worth of damage, I’d sue him and the court would award me damages. Or I could complain to the Oregon Medical Board — and no matter what happened, I wouldn’t get any compensation, and I’d still be $10,000 in the hole. Where’s my protection then?

With exempt practitioners, it’s just the same. If you’re injured by a practitioner, licensed or not, sue ’em. If they break the law, call the cops. If they need to be shut down, get an injunction. If there’s a board for you to complain to, you can if you’d like, but remember that it’s a sideshow. Don’t let it distract you from the main event.

Conclusions

The Licensure Exemption Workgroup was just Ferder fiddling while Rome burned. No relevant content was presented at the meeting other than admitting that the exemption is real. The rest was nothing but cloud castles, based on the idea that the 2017 state legislature will have forgotten all about 2015. That ain’t gonna happen.

Fran Ferder Cloud CastlesMeanwhile, what’s being done, here and now, to bring the OBPE into compliance with the law?

As many as a couple of hundred exempt professionals shut down their practices due to the OPBE. The loss of business must run to millions of dollars. What is to be done about that? At some point, the OBPE has to come down from the clouds.

And, with the exemption acknowledged, when will the OBPE clarify the true state of things, withdrawing its now-defunct “Unlicensed Practice FAQ” and replacing it with something meaningful?

My prediction is that the OBPE will face facts only when forced. Frankly, I not only expect them to move slowly in becoming fully legal, I expect them to attempt shenanigans over the next few months. If you hear about any, let me know!

2 thoughts on “We’re Exempt! Boards Concede that Exemptions are Real

  1. so, did Karen Berry get prosecuted for breaking the law, since many practitioners who were not breaking the law did get prosecuted. Just wondering how fair that type of crime is handled. Thank you, Karen

    1. Karen, so far nothing very visible has happened. The investigator for the counseling board was fired a year ago, so it can be done. There have been complaints made to different boards and agencies (including at least two federal agencies) about the misdeeds of the psychology boards and its staff. These wheels grind pretty slowly, but, as Governor Kitzhaber discovered, it looks like you can get away with stuff forever until you suddenly can’t.

      Robert

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