AVOIDING LIABILITY BLOG

Laws, Regulations, and the Attorney Generals’ Opinions

December 2007

… 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.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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