Licensing Boards' Complaints: Ways to Avoid

1. Do not make custody recommendations or get involved with legal aspects of divorce and custody matters.

• One of the most common and, regretfully, frequent board complaints in recent years occurs when therapists make custody recommendations without the qualifications/expertise to do so and without the data to support it.
• Do not write letters regarding custody recommendations or harm assessment in divorce and custody cases unless you qualify as a custody evaluator or a related forensic expert.
• Some attorneys and clients set therapists up by initiating therapy with a hidden agenda of getting a letter that ‘simply’ states:
• “Mary is a good and fit mother.”
• “Johnny seems extremely upset after he spends time with his mother.”
• “Jane is scared of Bruce’s explosive nature.”
• Leave custody recommendations to court appointed, qualified and certified custody evaluators.
• Do not sign pre-constructed letters from your client’s attorney about your “expert opinion.”
• Consult, Consult and Consult before writing a letter or signing your name to any document related to divorce and/or custody of your client/s.
• Read more on the topic at Is it Kosher for a Psychotherapist to Serve as an Expert Witness?. Bibliography and more free information

2. Do not ever meet with a board investigator without legal representation.

• Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make when you are being investigated by the licensing board. It can cost you your license.
• Sometimes the investigator calls or shows up and seems friendly, cordial and casual. They may tell you they ‘just want to clear up some things’ and may give you a sense it is not a big deal. Remember, anything you tell them can be held against you.
• Do not meet with a board investigator in person or talk to him/her on the phone alone, even if you are confident that you can positively respond to the accusation.
• As an expert witness defending therapists who were accused by the licensing boards, I often observe that most of the defense efforts are attending to the mistakes therapists made in their interviews with the investigators (without their attorney) rather than what they did or did not do with their clients.
• The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself.
• Not any attorney will do – choose an attorney who is an expert in mental health or an attorney who works closely with an expert.
• Read more on the topics at When The Board Comes Knocking.

3. Make sure that your malpractice insurance includes coverage for board investigations.

• For as little as $40-$50 a year you can get coverage for board investigation from your malpractice insurance, which will help you deal with the board without breaking the bank.
• APA Insurance Trust (APAIT), American Professional Agency, CPH & Associates, and other carriers offer such coverage.
• If you do not have such coverage yet, request it today!
• If your carrier does not offer such coverage, I highly suggest that you switch to a carrier who does.
• This is very important because such coverage enables you to effectively respond to board investigations and defend yourself without the out-of-pocket expense of attorney fees.
• Remember, someone can file a board complaint against you, and you are then in a position to have to defend yourself whether you did anything wrong or not.

4. Pay attention to issues of privacy and confidentiality when it comes to online communications, including FaceBook, or responding to online negative reviews on Yelp.

• Some of the fastest growing areas of ethical and legal challenges are confidentiality and privacy issues, when clients and therapists engage in confidential conversations on FaceBook, LinkedIn, Twitter and other social media.
• A similar area of concern is when therapists impulsively-emotionally respond to a client’s online negative review on review sites, such as Yelp.com or Angie’s List.
• Therapists often respond with shock, dread, disbelief and an understandable fear for the future of their reputation, practice and economic future.
• The fact that clients acknowledge that they are psychotherapy clients does not give therapists automatic permission to discuss confidential-clinical information in public, online.
• To read more about how to respond in such situations, go to: Modern Day Digital Revenge: Responding to the Emerging Problem of Online Negative Reviews.

5. Have in place at least the minimally necessary clinical forms and treatment records.

• Have clients read and sign, at the onset of treatment, the Informed Consent to Treatment form where basic confidentiality and limits to confidentiality, fees, termination, missed sessions, termination, etc. are articulated.
• When it applies, have the HIPAA Notice of Privacy Practices, Authorization to Release Information and other relevant forms in the clients’ files.
• Have a basic Treatment Plan outlining the presenting problem, goals of therapy, means/techniques/orientations, etc.
• In many situations not having some of the above-mentioned forms in the clients’ files constitutes substandard care.
• Review the Zur Institute’s Record Keeping Guidelines, Essential Clinical Forms, and HIPAA Forms.

6. Consulting with experts on difficult cases may help to stop a problem before it begins and help your defense if a complaint or lawsuit is filed.

• You can do a lot of damage-control and reduce risk by consulting with experts prior to learning about a board investigation.
• Consult on complex issues, such as large gifts, complicated avoidable or unavoidable dual relationships, online harassment, complicated termination, complex fees or bartering arrangements, highly demanding, erratic and intrusive BPD or other patients.
• Consultations can prevent problems and reduce the chance of board complaints and civil lawsuits.
• Consult with experts about your treatment plan, record keeping, and other clinical and ethical issues in complex clinical/ethical cases so you are on solid ground if the board does knock on your door or a civil suit is filed against you.
• Consulting with an expert not only can help you operate within the standard of care but can also show that you attempted to do the right things and did not ‘neglectfully disregard’ the laws and regulations.
• View my Ethical-Clinical Consultations Services.

7. Do not turn clients’ debts over to a collection agencies.

• Turning a client’s debt over to a collection agency can be a costly mistake.
• As an Expert Witness, I have seen too many cases where clients filed all kinds of accusations and complaints with licensing boards ONLY AFTER their therapists turned them over to collection agencies.
• If you have a client who owes you money, I suggest that you try to work out a flexible payment plan that your client can afford and is willing to do. If this does not work, I recommend that you forgive the debt, take responsibility, and look at the issue as a lesson of not letting client’s debt grow out of control.
• It is not about being right; it is about being smart and managing your risk.

8. The Obvious: Neither have sex with your clients nor drink & drive.

• Sexual misconduct and drunk driving are some of the more common reasons for therapists to loose their licenses. Seek help if you have a drinking problem and seek consultation if you experience intense or inappropriate sexual attraction to your current or former patients.