… Each licensed mental health professional and other licensees are governed by a licensing law of some kind that will usually define the functions of licensees and prohibit anyone not so licensed from performing those functions for remuneration of any kind. Practitioners must be familiar with the scope of the license and must not forget that they may be licensed to treat, for example, mental and emotional conditions rather than physical ailments. I recall a licensed mental health practitioner who, in defense of charges of sexual misconduct and gross negligence, explained that he massaged the patient’s shoulder and back because she complained of physical pain in that area. One of the findings against the practitioner was that he was practicing outside the scope of his license – treating physical pain by touch/massage.

Mental health practitioners will occasionally engage in other actions that raise scope of license questions. For example, I have spoken with several practitioners who have expressed opinions and made recommendations to patients concerning the medication being prescribed by the physicians who are also seeing the patients. This gets into dangerous territory (practicing medicine without a license), even where the licensee has had coursework and training in psychopharmacology. Another example of a possible scope of license problem for practitioners involves suggestions or recommendations to patients about dietary supplements and related nutritional advice to deal with psychological problems. Care must be taken to have or acquire a thorough understanding of the limits to the scope of the license – no matter how competent one may be in a given area of rendering services.

Of particular concern is the issue of diagnosis and treatment of mental disorders, including severe mental disorders. Does your particular license allow such practice? Will you have difficulty proving that you have such authority if questions are asked by some insurer who is questioning whether or not there was appropriate billing for services rendered? What would the licensing board say if it were asked such questions by an insurer? It is important that practitioners be sure that they have the legal authority to engage in such activity. These can be thorny areas, depending upon the applicable state law and the kind of licensee involved.

It is well known to even casual observers of the legal system that lawyers are often arguing over the meaning or interpretation of a particular law (statute). The legislative process (how a law is made) is affected by many factors, and it is not uncommon that a law has to be amended in order to clarify its meaning. Therapists and counselors sometimes (and justifiably) get frustrated over the fact that they are required to comply with the law but that the law may be ambiguous and subject to varying interpretations.

Some assert that it was Otto Von Bismarck (the Iron Chancellor of Germany) who observed in the mid to late1800s the following: “Those who love sausage and obey the law should not watch either being made.” Someone else stated it this way: “I have come to the conclusion that the making of laws is like the making of sausages – the less you know about the process the more you respect the result.” 

… There are various kinds of legal authority that affect counselors and therapists. It is important and useful to understand and recognize what these sources of legal authority are, that each of these sources of authority impacts your profession in a variety of ways, and that participation in the process of making and shaping public policy is important. Here are some basics – perhaps for a refresher or a reminder.

Generally, “laws” are passed by the Legislature. They are alternatively called “statutes.” These laws, simply put, are statements of public policy. The legislative process generally allows for the involvement of interested individuals and special interest groups, like professional associations. “Regulations” are passed by administrative agencies, like licensing boards, and are supposed to explain or define a particular law – not to expand or contract the law. A regulation has the force and effect of law. Administrative agencies are granted the power to pass regulations by statute. Licensing boards and other agencies are generally required to allow for public participation at regulatory hearings and otherwise. If a regulation conflicts with the law that it is implementing, the regulation may be declared by a court to be void.

Despite efforts to write laws that are clear, interpretations will vary and ambiguities will arise. Often, the exact meaning of a law is unclear. In most states, certain government officials, such as legislators, can seek an opinion from the state’s Attorney General regarding the meaning of a statute. These written legal opinions are generally entitled to great weight and respect by the courts, but they are usually not considered to be controlling authority. What this actually means is that the courts will usually side with an interpretation of the law in accordance with the Attorney General’s opinion – but not always.  

In some cases, the courts will ultimately determine what a particular law means. Trial court decisions are often appealed and appellate courts write decisions that often include discussions about the meaning of a particular law. Appellate courts often consider legislative intent when the meaning of a law is at issue. Collectively, these court decisions are referred to as “case law.” Sometimes, however, obtaining an opinion from the Attorney General will help to resolve a particular issue and therefore avoid the need for litigation. In the profession of marriage and family therapy, for instance, a state Attorney General has been asked for (and has rendered) opinions on such important questions about the licensing law as: a) may an MFT practice psychotherapy; b) may an MFT diagnose and treat mental disorder; and c) may an MFT construct, administer and interpret psychological tests. I suspect these or similar questions arise or will arise in more than one state and for more than one profession. 

Generally, therapists and counselors, through their respective professional associations, have the opportunity to influence public policy by participating in the legislative and regulatory processes. Some ethical standards encourage such involvement. Professional associations can also be influential in seeking an Attorney General’s opinion to clarify the meaning of a particular law. Failure of an association (and members) to take an active role in the making of public policy affecting their profession could lead to consequences that negatively affect counselors or therapists (or their patients/clients) many years later. I remember circumstances where therapists would call to complain about particular laws or regulations that were now negatively affecting their practices or perhaps threatening their careers. They would ask: “What is the Association doing about this?”  

My answer was sometimes as follows: “We sponsored a bill to address this problem two years ago and we asked for members to write and call their legislators about this important issue, but the response was limited and the bill died because of heavy opposition.” I then would engage in a frank conversation with the member and explain, in the starkest of terms I could, that many members don’t get interested in an issue until it affects them personally, and then it may be too late. For example, membership involvement with a bill that would establish a statute of limitations for licensing board disciplinary actions was minimal. But, when a member later called and was outraged over the fact that the licensing board was investigating an allegation about events taking place ten years earlier, that member would be the one who asks – what are you doing about this?

Now that we have briefly discussed laws, regulations and Attorney Generals’ opinions as sources of legal authority, it is important to note that when someone is trying to ascertain what “the law” is with regard to a particular subject, “the law” governing that subject matter may be shaped by one or more laws (statutes), by regulations passed by an administrative agency of the government, and/or by opinions of the state’s Attorney General (or other-named state official). “The law” about a particular subject matter may also be shaped by judicial decisions (case law) that may interpret a particular statute or establish public policy in an area that is not covered by statute or regulation.

… Most states require some form of mandatory continuing education in order for licensees to renew their licenses. What relationship do these mandates have to the state’s interest in protecting the public? What studies do licensing boards typically initiate to determine whether these mandates help to reduce the number or severity of disciplinary actions against licensees? Are there better and more substantive alternatives to the current system? Are mandates really needed?

As to the last question, I have always remembered the results of surveys that were done by a large professional association of mental health professionals. Prior to the imposition of mandatory continuing education, licensees were averaging between 48 and 51 hours per year of continuing education. After the imposition of mandatory CE, in the amount of 36 hours every two years, the survey showed that members were averaging between 18 and 20 hours per year of continuing education. The state imposed a minimum, and the profession complied. Therapists and counselors should understand that if they are ever sued, a common line of questioning by opposing attorneys involves continuing education. Attorneys will ask about how much continuing education was gained and the nature of the continuing education, especially as it relates to the treatment or issues involved in the case they are handling. Compliance with only the minimum requirements can be made to look like a negative.

It is my impression that licensing boards rarely conduct or initiate studies to determine the effectiveness of mandatory continuation education. Further, it is my opinion that if such studies were done, it would be shown that these mandates do not help to reduce the number or severity of disciplinary actions. Many disciplinary actions are taken by state licensing boards for intentional violations of the law – such as, but not limited to, sexual relationships with patients, insurance fraud, conviction of a crime substantially related to the qualifications, functions or duties of a licensee, and intentional failure to report child abuse because the practitioner believed it would not be in the best interests of the patient to file a report. In these cases, and others, continuing education is not the issue! 

There are many criticisms directed at continuing education mandates in the various states. In many states, CE is micromanaged and in some respects insulting. Limitations exist in some states that do not allow licensees to claim credit for perfectly good learning activities, such as reading an authoritative book or obtaining consultation on relevant subject matter. Of course, changes can always be proposed and a more rational, effective, and respectful system can be achieved.

One idea proposed by a renowned expert on CE is that there would be no mandatory continuing education, but licensees would be required to take a test every five years to determine whether or not they are knowledgeable in certain critical areas, such as law and ethics.  If the licensee fails the test, the license must be reissued, but the licensee would only then be required to complete continuing education requirements consistent with the areas of deficiency.  Licensees and professional associations have not been quick to jump on this idea!

… Suppose that a counselor or therapist is treating a woman who was the victim of a rape. Assume further that the practitioner is experienced and competent in the use of hypnosis or hypnotherapy (and is allowed by state law to utilize hypnosis in his or her practice) and has advertised that fact. After the client/patient tells the practitioner in some detail about the rape, but is unable to recall some important aspects of the vicious crime, she asks the practitioner to use hypnosis with her in order to assist in her recollection of some of the aspects of the rape. The practitioner believes that such recollection, in the long run, will be helpful to the treatment of the client/patient. Is the therapist or counselor allowed to do this? Are there any potential problems that must first be considered and addressed?

The answers to these questions may not be easy to find - and they are likely dependent upon state law. In one state, for example, the treating therapist would be allowed to hypnotize the patient in order to help her recollect the details of the rape that she cannot recall. However, the therapist is first required to follow procedures set out in law. Failure to comply with these procedures would jeopardize a later criminal prosecution of the alleged rapist. In fact, failure to follow the procedures set out in the law would mean that the victim of the rape would not be allowed to testify in the criminal prosecution about the details of the rape that she did remember prior to any hypnosis being used! This would likely mean that a conviction would, at a minimum, be very difficult.

Even if the procedures are followed, this particular state law (and I suspect other states have similar laws) makes clear that the witness is only allowed to testify about those matters that the witness recalled prior to the hypnosis. In other words, even when the procedures are followed, the witness (victim) is not allowed to testify about the memories recovered as a result of the hypnosis. Thus, the purpose of the specified procedures is to preserve the right of the witness to testify to those matters that she remembered prior to the use of hypnosis by showing that there was no contamination by the hypnosis.

The state law referred to requires that the substance of the pre-hypnotic memory be preserved in written, audiotape, or videotape form prior to the hypnosis. It also requires that the hypnosis is conducted in accordance with the following procedures: a) a written record is made prior to hypnosis documenting the subject’s description of the event, and information which is provided to the hypnotist concerning the subject matter of the hypnosis; b) the subject gives informed consent to the hypnosis; c) the hypnosis session, including the pre- and post-hypnosis interviews, is videotaped recorded for subsequent review; and, d) the hypnosis is performed by a licensed medical doctor, psychologist, licensed clinical social worker, or a licensed marriage and family therapist experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense.

As if this weren’t enough, the state law in question also provides that prior to the admission of the testimony, the court must hold a hearing at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness’ pre-hypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness’ pre-hypnosis recollection.

 What is the law in your state? While many of the readers may not utilize hypnosis during the course of their work, some do. And, to the unwary, imagine discovering, after it is too late, that the hypnosis performed in a situation such as this has jeopardized the prosecution of the person who perpetrated this horrendous act. Be prepared – find out how this issue is addressed by the laws in the state where you practice.

Licensing by the state is not a right, but rather, a privilege. Those who are licensed, whether as marriage and family therapists, professional or mental health counselors, psychologists, or others, work hard and sacrifice much to attain licensure. While each state has its own requirements, the applicant for licensure will typically have to attain specified education, supervised experience, and pass one or more examinations. They will typically be fingerprinted and a background check of some kind will be conducted. Never again will the licensee be under as much scrutiny by the state, unless and until the licensee is the subject of a complaint to the licensing board by a former patient, or until the licensing board is otherwise informed of information that will trigger action.

States are often under increasing pressure to do more in the way of disciplining licensed health professionals, usually because of news stories about the failures of a particular licensing board or the bad acts of one or more of its licensees. News stories aside, licensing boards exist primarily to protect the public. Professional associations typically exist to represent the common business and professional interests of its members. It has been my view, and it seems to me inarguable, that a licensee is entitled to fundamental fairness when dealing with the state in response to a consumer complaint. Fundamental fairness is essentially another way of saying “due process.” Due process is of critical importance in criminal proceedings because the U. S. Constitution requires it before a person’s liberty (or life) is taken away by state or federal government. Those who are licensed are entitled to administrative due process, which is something less than the due process afforded to those who are accused of felonies and misdemeanors.

Once licensed, the licensee has a vested property interest in that license. It allows him or her to pursue a career. Anyone else, unless similarly licensed or otherwise exempt, may not engage in that activity for a fee. Since a state license to practice a mental health or other profession is a valuable property interest, it should not (and cannot) be taken away on whim or caprice, or in an unfair manner. That is why states have passed laws and/or regulations that specify what constitutes administrative due process. Two fundamental elements of due process are notice and a hearing. Each state’s process will be different in a variety of ways, both at the investigation stage and at the hearing stage. It is important for licensees to be aware of the disciplinary process. It is also important for associations that represent the interests of the various professions to monitor this process, to resist changes that would jeopardize the fairness of the process, and to suggest changes to the current process as may be warranted.

The licensed mental health professions in California, and many other health care licensees, have recently lobbied intensively to kill a bill that was pushed by the current administration (the Governor, through the Department of Consumer Affairs). This effort by the administration was in part the result of an investigative newspaper article regarding nurses who were convicted of sex crimes and attempted murder but who nevertheless retained their licenses. The article additionally indicated that nurses with histories of drug abuse, negligence, violence, and incompetence continue to provide care, and that the Board of Registered Nursing often takes more than three years on average to investigate and discipline errant nurses. The bill proposed a variety of changes to the disciplinary process. Some of the proposed changes were not objectionable, but others were, in my view, draconian. There was a clear intent to limit and erode the due process protections that have been a part of the law for many years. Particularly disturbing was the fact that many of the proposed limitations and erosions were unrelated to the reasons why some licensing boards were taking so long to act or not acting at all.

With respect to the issue of notice, most (if not all) state laws or regulations allow health care licensing boards to suspend a license without prior notice to the licensee only in more serious or extreme cases. This would typically be allowed in cases where serious injury would result to the public if quick action is not taken (before the matter could be heard on notice). After the license is suspended, the licensee will typically be notified in a short period of time and will be entitled to a limited hearing to contest this “interim suspension.” In other cases, the interim order of suspension will be sought with prior notice to the licensee. In California, the hearing to determine whether an interim order of suspension should issue would typically be held before an Administrative Law Judge. An adverse decision may be immediately appealed by the licensee and heard in a court of law. The full administrative hearing on the formal accusation or charging documents would be held in a fairly short period of time, especially if the administrative decision was to suspend the license in the interim.

In the standard or usual situation, the licensee will have ample prior written notice of the alleged violations that constitute unprofessional conduct and will have an opportunity to hire an attorney and mount a defense. Some cases proceed to a hearing, while most are settled. It is important to remember that your malpractice insurance policy may contain coverage for the legal expenses incurred in responding to a licensing board investigation and enforcement action. For example, the professional and supplemental liability insurance policy offered to allied healthcare providers through CPH and Associates covers the reasonable expenses (e.g., hiring a lawyer) that an insured incurs resulting from an investigation or proceeding by a state licensing board or other regulatory body, provided that the investigation or proceeding arises out of events which could result in claims (demands for damages) covered by the policy. The amount of coverage provided is $25,000 (this is the maximum aggregate amount).

Since your right to practice is potentially threatened anytime you are being investigated by the board, it is wise to consult with or be represented by an attorney as early as possible – at least in most cases. I have seen some complaints that are so comical or outrageous, or simply so lacking in merit, that a knowledgeable therapist or counselor, after getting some help or advice (perhaps from their state professional association), might be able to respond to an inquiry without representation and obtain a quick and favorable result – that is, a closing of the case with no finding of wrongdoing of any kind. In California, and I suspect in other states, the vast majority of consumer complaints do not result in disciplinary action by the licensing board. We have found that many of such cases emanate from divorce, custody, and visitation proceedings. Nevertheless, and as I have stated on many occasions, although you may think that you have done nothing wrong and have nothing to hide, this is not necessarily reason enough to forego consultation or representation.

The burden of proof in an administrative proceeding to revoke, suspend, or otherwise discipline a licensee in California is “clear and convincing evidence.” This burden of proof, which is more difficult to attain than the “preponderance of the evidence” standard, requires a finding of high probability. It is evidence so clear as to leave no substantial doubt. Stated otherwise by the courts, it is “…sufficiently strong evidence to commend the unhesitating assent of every reasonable mind.” The Administrative Law Judge (ALJ) issues a proposed decision after the administrative hearing, and the licensing board has the option of adopting the decision, modifying it, or rejecting it. Ultimately, the board can decide the case as they deem appropriate, can make its own findings, and impose those sanctions that it thinks appropriate. Much of the time, however, the Board adopts the ALJ’s decision either as is proposed or with minor modifications. Since licensees can appeal adverse decisions to the courts, the Board’s actions in direct contradistinction to the ALJ’s findings and recommendations will likely engender more scrutiny from the courts and may be more likely to be set aside.

What is the standard of proof required by the law in your state? What due process protections exist for licensees in your state? What efforts, if any, are being made in your state to make it easier for the licensing board to impose discipline? What involvement, if any, does your professional association have in trying to protect the due process rights of licensees? It is common for me to speak with a licensee who has been contacted by the licensing board, or who has had an Accusation filed against him or her, and for the licensee to complain about the process or the actions of the licensing board or an investigator. The licensee may ask – “what is the Association doing about this seeming unfairness?” I usually ask the licensee if he or she was concerned about the process before being the target of the investigation, or if he or she was aware of the related legislation that the association recently sponsored. The message is – be concerned before you are the target of an investigation!

…Licensing (as a mental health professional) by the state is a privilege, not a right. Once licensed, however, the license is in the nature of a vested property interest. Licensees work hard to obtain a license and licensees want to keep their licenses in order to earn a livelihood. Licensing boards are charged with the duty of protecting the public, and they have the authority to impose discipline pursuant to procedures and standards usually set out in law. Each state has its own system, and some states provide more “due process” protections for licensees than others. For example, some states may have a statute of limitations that applies to (and bars) “stale” complaints, while others may place no limits on the Board’s ability to pursue complaints involving actions or behaviors occurring many years earlier. There may be no statute of limitations for certain offenses, such as is typical with respect to procurement of a license by fraud or misrepresentation. If an alleged act or omission involves a minor, the limitations period may be tolled until the minor reaches the age of majority. Thus, such complaints might well be stale, but they will nevertheless result in an investigation and possible disciplinary action.

When a health care practitioner (hereinafter called “you”) is investigated by a licensing board for the first time, it is only then that it may be realized that everything you worked for, and all of the good that you have done and will do, and your very livelihood, is on the line. It is only then, that you may realize that the exposure you have as a result of a complaint from an angry patient is significant. It is only then that you may realize, especially because you did nothing wrong when working with this troubled patient, that you are up against the State of ________, with all of its power and virtually unlimited financial and human resources. It is then that you will want to know – what are my rights? How do I protect myself? Will I be treated fairly by the investigator? Will the investigator be on a search for the truth, or will the investigator be looking to “make a case?” Will I have an opportunity to defend myself? What are my “due process” protections?

I have spoken with many therapists, who, upon finding out about the awesome power of the state, have asked if their due process rights are as extensive as those possessed by criminal defendants. The short answer is “no.” In a disciplinary proceeding a licensee is generally entitled to “administrative due process,” and what that precisely means depends upon the particulars of state law. The basic tenet of administrative due process, however, is that the licensee is entitled to notice and a hearing. Beyond that, one must refer to the provisions of state law to fully and precisely answer the questions asked above.

When first notified of a complaint, practitioners ask whether or not they need an attorney. Some proclaim their “innocence” and think they can resolve the matter with a letter of explanation. When I was active as a criminal defense attorney many years ago, I would emphasize that when you are in fact innocent of any wrongdoing, that is the very time when you need an attorney. An innocent person going to prison is worse than a similar fate for a guilty person. Thus, in the context of disciplinary proceedings, it will come as no surprise that I generally have advised licensees to hire an attorney as early in the process as possible. There may be complaints that are so bizarre and preposterous, where the complainant is clearly not credible, that the practitioner may feel comfortable providing a simple explanation in order to dispose of the complaint. Of course, that is a matter of judgment for the individual practitioner based upon the totality of circumstances.

It must be understood that in a disciplinary proceeding, unlike in a criminal proceeding, there is no presumption of innocence and no jury of one’s peers. Additionally, and as mentioned in prior articles, the burden of proof on the state is not as great as the burden of proof in a criminal case. Thus, the state doesn’t have to prove you guilty “beyond any reasonable doubt.” Its burden of proof is generally either by a “preponderance of the evidence” or by “clear and convincing evidence.” Another advantage that the licensing board may have, depending upon state law, is that even after a favorable decision (for the practitioner) by an administrative law judge or a similarly titled official, the board may have the authority, at least to some degree, to non-adopt the administrative law judge’s decision. Licensees typically have the right to appeal an adverse administrative decision to a court of law.

I must caution that my comments will not necessarily apply in each state – because the investigative, notice, and hearing stages of such disciplinary actions and proceedings may vary in significant ways.

… May a licensed marriage and family therapist or a licensed professional clinical counselor provide a patient or client with some kind of massage or touch to relieve pain? If they do, are they necessarily liable in a negligence action brought by an aggrieved patient? May a licensed professional clinical counselor diagnose and treat mental order, regardless of the severity of the disorder? May a licensed marriage and family therapist or a licensed mental health counselor perform psychological testing with a client? May licensed mental health professionals provide “life coaching” to clients? Do licensed psychologists have a broader scope of license than licensed professional clinical counselors or licensed marriage and family therapists? These questions all relate to the joint concepts of scope of license/scope of competence.

When one discusses scope of license (sometimes referred to as scope of practice), he or she is necessarily referring to the statutory authority granted by the state in the licensing law for the particular profession. As was explained in a California Attorney General’s opinion that I read many years ago related to licensed marriage, family, and child counselors, in the beginning, there were physicians. Physicians historically have had the broadest scope of license that exists – that is, they were statutorily granted the right to treat any kind of blemish, deformity, disfigurement, ailment or disorder, whether physical or mental. Thereafter, the Legislature granted to other health care professions the right to practice what was previously within the exclusive province of the physician, but granted a more limited scope of license or practice to the newly licensed profession. These new licensees, whatever their particular licensure, were expected to practice strictly within the scope of the authority granted in the licensing law.           

With respect to mental health practitioners, the “turf wars” between the professions in the various states have created somewhat of a legislative and legal morass. Although the scope of license sections of the various professions will vary in language, there is very little difference in some states in the actual practices between licensed clinical social workers, licensed marriage and family therapists, licensed psychologists, and licensed professional clinical counselors, despite efforts by some to assert otherwise. All of these professionals treat or provide a wide range of mental health and counseling services to adults, children, couples, families, and groups. All of these professions may be permitted to practice psychotherapy and may diagnose and treat mental disorders – and be reimbursed by federal and state programs or by private insurers for doing so. While there will be variances with this reality in some states because of the specifics of state law, these similarities in practice may be the case in many states.

While physicians have a broad scope of license, as described above, they are generally not allowed to practice outside the scope of their competence, as determined by their education, training, or experience. Thus, while physicians may be permitted by state law to perform brain surgery, most physicians do not perform such services because it is outside the scope of their competence. Likewise, while mental health professionals may be permitted by state law to diagnose and treat mental disorders, state law will usually attempt to restrict the scope of the services actually rendered by providing that the licensee is “guilty” of unprofessional conduct for acting outside the scope of his or her competence – as established by his or her education, training, or experience. Thus, while one may be acting within the scope of his or her license, he or she may be acting in a manner that can result in a disciplinary proceeding by the licensing board (e.g., for gross negligence or incompetence) or that subjects the actor to civil liability for negligence, gross negligence or incompetence.  

Suppose that a licensed mental health practitioner provided, during the course of therapy, some kind of physical touch or massage to relieve a patient’s pain. Such acts would likely be outside the scope of the practitioner’s license, and the practitioner would be subject to disciplinary action by the licensing board. The practitioner might also be subject to a criminal penalty for practicing medicine or physical therapy without a license. But, is the practitioner necessarily liable in a civil suit for monetary damages where the plaintiff alleges physical and/or emotional harm as a result of the practitioner’s negligence? Arguably, there should be no liability unless the plaintiff proves that the practitioner performed the services in a negligent manner. There may be other theories of liability that the plaintiff can establish, but on the issue of negligence, the practitioner may prevail if it is demonstrated that he or she provided competent care or that the plaintiff did not suffer injuries or harm as a result of the massage or touch. The practitioner’s malpractice insurer will likely deny coverage for the claim or the lawsuit if the practitioner did not perform services that the insurer agreed to insure (e.g., was not practicing the profession covered by the policy).

The issue of psychological testing has historically been a battleground for the professions, with the psychologists maintaining that this is their exclusive turf. In reality and in practice, that is not the case in many states. As a practical matter in some states, if a licensed mental health practitioner is competent, by reason of his or her education, training, or experience, he or she may perform psychological testing as part of the diagnosis or assessment of the patient being treated. Additionally, in some states, marriage and family therapists and other licensed professionals may perform psychological testing as a part of their role as custody evaluators, or in some other capacity and for some other purpose. This raises the issue of the legality or appropriateness of doing psychological testing with patients who are referred to the practitioner not for treatment purposes, but for testing purposes only. State law and other legal authority may limit the right to do such psychological testing for certain professions in a particular state – – and practitioners need to ascertain the legal/regulatory situation in their state of practice.