AVOIDING LIABILITY BLOG

Pre-licensed Persons

August 2011

… It must always be remembered that advertising must be truthful and not false, misleading, or deceptive. This of course applies to licensees and to persons who are not yet licensed – such as interns, trainees, or similarly titled pre-licensed persons. While state law or regulation may limit or place certain conditions upon advertising, the general rule is that any person may advertise his or her services unless such action is prohibited. Usually, the owner of a business will have ultimate authority over advertising that involves his or her business. In the case of a nonprofit corporation, the person in charge will usually control the advertising that takes place. In those jurisdictions where pre-licensed persons are not prohibited from advertising, care must be taken to avoid using misleading or deceptive information, sometimes accomplished by the failure to make certain disclosures.

My view of advertising by pre-licensed persons is that the employer of the person must be in control and must ensure that the advertising is appropriate. It should be clear from the “four corners of the advertisement” that the person is not licensed and works under the supervision of a licensed person. The name of the employer should be included in the advertisement so that the patient or client understands who owns the business and to whom payments should be made. These seem like simple and straightforward principles that employers and pre-licensed persons alike would be in accord with in order to be clear with the consumer/prospective client.

I have occasionally found, however, that there are some who, for one reason or another, are uncomfortable with or unwilling to make such basic disclosures. I have seen many advertisements that give the impression, either by the words used or by the non-use of certain words, that the pre-licensed person is a licensed private practitioner. Depending upon the state and its enforcement mechanism (and budget), such advertising may not be of a high priority to those charged with protecting the public, even when they become aware of the questionable advertising. If there is a dispute between the pre-licensed person and the person being treated, however, and if an attorney becomes involved for the aggrieved client, the advertising may redound to the detriment of the pre-licensed person – and quite likely, the employer who allowed the advertising to take place.

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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