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Can Unlicensed Psychotherapists Claim
They're Registered by the State?
By Jerry Kopel
Feb. 4, 2011
First the good news:
Based on recommendation from the Dept.
of Regulatory Agencies research staff, the legislature will set up a Type
1 independent board to oversee and regulate more than 3,000 licensed and
certified addiction counselors presently governed only by the director of
the Division's Medical Health Section.
And the bad news:
There could be a heavy fight between unlicensed psychotherapists (called
ULPs in this column) and licensed psychotherapists.
Each group has
its own Type 1 autonomous board composed of four members from the general
public and three practitioners having rule-making and policy-making
authority and ability to discipline persons they regulate.
The
fight will be over what the ULPs can call themselves. The Grievance Board
regulates ULPs, who cannot practice unless listed in the board's database.
According to DORA "ULPs represent the most diverse group within the
mental health professions, including the education level attained as well
as the methods of the therapy utilized. Since there is no minimum
education requirement to be listed in the database, the amount of
education of ULPs varies from a high school education to a Ph.D.
Out of 17,744 regulated mental health professionals, as of the fiscal year
ending June 30, 2009 there were 2,462 licensed by the Psychology Board and
2,706 ULPs on the Grievance Board database. There were 136 more licensed
in fiscal 08 -09 (2,462 ) then in fiscal 07-08 (2,326). In the same period
ULPs went up to 2,706 in 08-09 from 2,059 in 07-08. There was no
discussion in the DORA report on how and why this happened.
Each
group practices psychology but only the licensed group can use that term
under CRS 12-43-201. And. CRS 12-43-702.5 (3) denies ULPs the right to use
"regulated" or "registered" or "certified" or "clinical" or
"state-registered" or "state approved" or any other service term such as
"recommended by the state solely on inclusion in the database".
DORA wants to let the ULPs use "registered" to assure patients that the
state is regulating them. But the report offered no research to show the
database information was not known to ULPs patients. Under CRS 12-43-214
mandatory information in the database plus information on how to contact
regulators regarding violations shall be provided to the patient. .
Failure to do so is the basis for discipline action.
CRS 12-43-201
(10) defines ULPs as "any person whose primary practice is psychotherapy
or who holds himself or herself out to the public as being able to
practice psychotherapy for compensation and who is not licensed under this
title to practice psychotherapy".
Did disciplinary action differ
when licensed person and ULPs were regulated by the same grievance board?
7/1/88 - 12/31/92 Licensed 31 ULP 26
1/1/93 - 6/30/94 Licensed
11 ULP 24
7/1/94 - 6/30/97 Licensed 12 ULP 63
Difference in
number of disciplinary actions by the two boards for 7/1/04 - 6/30/09:
Licensed 31 and ULPs 89. That included ZERO actions for licensed persons
in fiscal 2008-09 The report did not detail why there were zero actions on
complaints that were accepted.
There is a jurisprudence test
required to be passed by all regulated candidates including ULPs as to
knowledge of the statute as well as applicable rules.
This DORA
mental health review also includes social workers, marriage and family
therapists, professional counselors and the following suggestions
generally apply to all the reviewed mental health professions.
Answering a complaint: The statute is silent on whether the board and the
director of the division have authority to formally discipline mental
health professionals for failure to respond to complaints. DORA recommends
the boards or the division director notify the professional by letter
about the complaint and require a response within 30 days. Failure to
respond should itself be a violation of prohibited activities.
Be a
felon: If the professional is convicted of a felony or pleads nolo
contendere, the board or the director should be able to consider whether
it violates prohibited acts regardless of "whether the felony or plea is
related to the ability to practice."
Fine the violator: Presently
the boards and the director lack the ability to fine the professional for
violation of the statutes. The fines collected would go directly to the
General Fund rather than kept for use by the board or director.
Keep the boards 4 to 3: Some professionals question why the majority of
the boards are not members of the particular profession. DORA recommended
the 4 to 3 boards in ending the original grievance board which oversaw all
mental health violations. DORA believes the majority public member boards
are working and urges no change.
One disciplinary requirement
prohibits a "willful" violation, CRS 12-43-222 (1) (t) (1). The word
implies intentional acts. But the reason for the statute is to prevent
harm to consumers, not whether the violation was intentional. DORA
recommends striking the word "willful".
(Jerry Kopel served 22
years in the Colorado House. Before then, as assistant attorney general he
drafted the bill establishing in 1961 the State Board of Psychology.)
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