Avoiding Liability Bulletin – December 2007
… 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!
ABOUT THE AUTHOR
"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.