Legal Update for Exempt Practitioners

25099212_sIn Oregon, the Board of Psychologist Examiners (OBPE) has long claimed a legally dubious authority over exempt practitioners. This is odd, because these exemptions are not for psychologists, but for counselors and marriage and family therapists! So the OBPE has long been poaching on other Boards’ turf.

After looking into the matter on my own, I concluded that their claim to authority was not only of questionable propriety, it’s of questionable legality.

No Authority Over Unlicensed Practitioners

But after consulting with several lawyers, it turns out I was wrong. Their authority isn’t questionable, it’s nonexistent.

The Psychology Board Knows This, Sort of

Doomed policies of the OBPE are steaming full speed ahead

The Board itself is starting to consider the possibility of changing course … eventually. At the March 20, 2015 board meeting, they announced the semi-existence of an Exempt Practitioner Workgroup, a group that has never met, whose membership has not been disclosed, and which has no deadlines. In the meantime, their unlicensed practitioner prosecutions are proceeding full speed ahead. I’m hearing from more and more of them (and if you’re one of them, feel free to get in touch.)

The Letter of the Law

The Board’s lack of authority is embodied in its own statutes, with the key paragraph being ORS 675.090 (1)(e):

675.090 Application of ORS 675.010 to 675.150. (1) ORS 675.010 to 675.150 do not apply to: …

(e) A person who is licensed, certified or otherwise authorized by the State of Oregon to provide mental health services, provided that the services are rendered within the person’s lawful scope of practice and that the person does not use the title “psychologist” in connection with the activities described in this paragraph.

Notes on this exemption:

  •  The Oregon statutes on professional counseling and marriage and family therapy provide extremely broad exemptions. To simplify only slightly, anyone with a pulse is just as much a “real”  professional counselor or marriage and family therapist as someone with a license.
  • Because of the blanket “or otherwise authorized” wording, the Psychology Board is required to honor the counseling and marriage and family therapy exemptions. ORS 675.010 to 675.150, mentioned in the OBPE statute above, covers the entirety of the OPBE statutes. That makes it a blanket exemption, removing everyone (with two exceptions) from the OBPE’s authority.
  • So the only ways to fall under the Psychology Board’s authority are to (a) use the title “psychologist” or (b) to apply for a license from them.

What Can Exempt Practitioners Do?

In Oregon, exempt practitioners can certainly be professional counselors or marriage and family therapists, and do anything that counselors and marriage and family therapists are allowed to do. Which is a lot.

Professional counseling and marriage and family therapy are defined almost identically:

ORS 675.705(7)(a) “Professional counseling” means the assessment, diagnosis or treatment of mental, emotional or behavioral disorders involving the application of mental health counseling or other psychotherapeutic principles and methods in the delivery of services to individuals, couples, children, families, groups or organizations.

ORS 675.705(6)(a) “Marriage and family therapy” means the assessment, diagnosis or treatment of mental, emotional or behavioral disorders involving the application of family systems or other psychotherapeutic principles and methods in the delivery of services to individuals, couples, children, families, groups or organizations.

These definitions are actually broader than the definition of psychology, meaning that, in Oregon, an unlicensed counselor or marriage and family therapist can do anything that a licensed psychologist can do, and more.

History of the Law

The Oregon Legislature has always been hostile to the idea that professional counseling and marriage and family therapy should require a license, and has shot down licensing bills before. There are a number of reasons why this is a good idea, but that’s a topic for another day.

The Legislature’s compromise is to offer a license, but not to require it. A license just lets you call yourself a “licensed professional counselor” or  a “licensed marriage and family therapist,” but anyone can call themselves a “professional counselor” or “marriage and family therapist.” These licenses are fairly new, being enacted in 1989.

Where does the Oregon Board of Psychologist Examiners come in? In 1995 and 1999, legislation was passed to forbid the “practice of psychology without a license,” and this was done with sufficient vagueness (and with little enough adult supervision) that the Board of Psychologist Examiners felt safe in taking a position that “because the definition of psychology is pretty much the same as the definition of counseling and marriage and family therapy, we’ll just ignore the statutory exemptions and the legislative intent, and claim authority over all unlicensed practitioners, using the fiction that they’re practicing psychology without a license.”

This decision was always of dubious legality, but the OBPE mostly doesn’t prosecute exempt practitioners, they threaten them with prosecution as a way of bullying them into shutting down their practices.

In this way, they convert a dubious reading of state law and turn it into undoubtable violations of Federal law, both in terms of federal laws against unfair competition (see the recent Supreme Court decision against the North Carolina Dental Board) and federal civil rights statutes (denial of due process under U.S.C. section 1983).

The Plot Thickens

Then, in 2013, the OPBE asked the Legislature to clarify the psychology statutes, and proposed the actual wording they wanted. This clarification was duly signed into law, and it completely removed the Board’s authority over unlicensed practitioners who didn’t call themselves “psychologists”!

The change was to the previously quoted ORS 675.090 (1)(e). It originally exempted “A person who is licensed or certified by the State of Oregon,” but was changed to exempt “A person who is licensed, certified or otherwise authorized by the State of Oregon.” This made it 100% clear that any authorization — and an exemption is an authorization — took the issue completely out of the OBPE’s hands.

For additional detail, see this analysis that I shared with the Board (so far with no effect).

OBPE Overreach

Hey, try this one on for size: it’s the Board’s central claim against an exempt counselor in a recent case:

2.4 Respondent’s conduct violated ORS 675.020(1)(a),(b) and (2) because she engaged in the practice of psychology, as defined in ORS 675.010(4), by representing herself to be a psychologist by offering or rendering services included in the practice of psychology for the purpose of offering or rendering evaluation or therapy services to individuals or groups for the purpose of diagnosing or treating behavioral, emotional or mental disorders.

Now, since pretty much everything that counselors do involves “offering or rendering services included in the practice of psychology,” the Board is claiming that they have jurisdiction over all counselors. Move over, Counseling Board! There’s a new sheriff in town.

And not just counselors, either. The same logic (if that’s what it is) covers a lot more ground than that. Remember, psychologists are nothing special. There are five other professions that do all the things that psychologists do:

  1. psychiatrists
  2. psychiatric nurse practitioners
  3. clinical social workers
  4. marriage and family therapists
  5. counselors

The Board’s position is nonsense, of course, due to the blanket exemption in  ORS 675.090 (1)(e). The sole purpose of this exemption is to keep the OBPE chained to its own turf, and not running wild through the neighborhood.

False Prosecutions Continue

I expect almost nothing from licensing boards. And yet they never fail to disappoint me. It’s breathtaking that, after proposing this change themselves, and seeing it signed into law, the OBPE continues to prosecute exempt practitioners!

How do they get away with it? Oregon is a small state, so there aren’t many cases, and most victims quail under the OBPE’s savage bullying, shutting down their perfectly legal practices without defending themselves in court. Since the law was changed, no case has yet been brought before the Oregon Court of Appeals, so the Board hasn’t been officially slapped down. Not yet.

doomed_shipWhy do they do it? I have no idea. The Oregon Board of Psychologist Examiners is extraordinarily self-isolating. They don’t talk to the public. They don’t answer emails. Most of the material on their Web site has been removed, and the rest is mostly obsolete. They give the impression of being derelict and rudderless, like an abandoned ship, drifting without lights or destination, but still a danger to everyone else at sea.

More About Oregon’s Licensing Exemptions

For more information about Oregon’s licensing exemptions (and, sadly, more about they Psychology Board’s relentless bullying), click here.

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