Article archive / February 2017
Originally published: . Volume 8, No. 2. Source pages: 1, 5.
Two court decisions may have delivered a serious blow to the current psychology practice Act in Texas.
The Texas Sunset Commission, in a January report, recommended reforms including narrowing the definition of the practice of psychology and consolidating the state’s boards dealing with behavioral health.
Texas, like Louisiana, is working on legal fallout from the 2015 U.S. Supreme Court decision, North Carolina v. F.T.C. In the decision, the Supreme Court found that the North Carolina dental board violated antitrust laws when they sent 47 official cease-and-desist orders to non-dentists who were offering teeth- whitening services.
A related issue emerged regarding “state-action immunity.” If a board is not supervised by the state, and if it contains “active market participants” (individuals who compete in the marketplace), then the state board does not qualify for immunity.
The issue of state oversight is being reviewed by Louisiana through a task force created by Senator Fred Mills in the 2016 legislative session. (See related story this issue.)
Texas psychology is also dealing with another blow from Serafine v. Branaman, a January 2016 judgment of the United States District Court of Appeals for the Fifth Circuit.
Dr. Mary Louise Serafine, who was running for state Senate, described herself on her campaign website as an “attorney and psychologist.” The Texas psychology board ordered her to cease using the title “psychologist” and to “desist from offering or providing psychological services.” Serafine complied and then sued, on the basis of the First and Fourteenth Amendments.
The Appeals judges found that the Texas psychology law, restricting the terms “psychological,” “psychologist,” or “psychology,” is unconstitutional as applied to political speech, and Serafine’s use of the word “psychologist” on her political campaign website.
The Appeals Court judges also found that sections of the Texas psychology law are “overbroad.” The judges wrote, “Even though the state may have the power to regulate the professional speech of psychologists incidental to a valid licensing scheme, if that scheme affects the speech of people beyond the purview of the state’s interests or power, it is overbroad.”
Serafine’s doctorate is in education and she was not licensed. However, court documents indicate that her post-doctorate was in psychology, that she was on the psychology faculty at Yale and Vassar, that she published her dissertation in a psychology journal, and that she had been a member of the American Psychological Association. She is a Yale educated attorney.
Serafine’s speech on her campaign website was not professional or commercial speech;…” the judges wrote. “…it was political speech of the highest form—a candidate seeking election to public office.” And they said, as applied to Serafine’s political speech, the section is “subject to ‘exacting scrutiny’ and must be ‘narrowly tailored to serve an overriding state interest.’”
“Though protecting mental health may be a compelling interest, the state has not narrowly tailored its laws to further that interest where it regulates outside the context of the actual practice of psychology. Serafine was not practicing psychology by speaking on her political website or filing forms for political office.”
The Texas Sunset Commission sites both the North Carolina v. F.T.C. and Serafine v. Branaman in its January 2017 report and recommends a set of actions.
One action includes transferring the state’s 10 health occupational licensing programs to the Texas Department of Licensing and Regulation and reorganizing the regulatory boards as advisory boards. The Commission sites a modification of this would be to consolidate the five behavioral health boards, including psychology, to create the Texas Behavioral Health Executive Council.
The Texas Sunset Commission also lists other decisions, including the following: 1) the elimination of the statutory authority for the psychology board to administer an oral exam; 2) removal of the statutory requirement for psychologists to earn half of their supervised work experience after receiving their PhD; 3) authorizing the board to issue remedial plans to resolve minor complaints; 4) prohibiting a board member from participating in both the investigation and resolution of a complaint; 5) allow licensed specialists in school psychology/school psychologists to practice in private schools; 6) rename licensure as a “Licensed Specialist in School Psychology” to licensure as a “School Psychologist; 7) add the Psychology Interjurisdictional Compact (PSYPACT) language to statute; 8) allow psychological associates to practice independently once they meet increased requirements.
It is not clear how much of the turmoil in Texas might spread to other states, but the United States courts of appeals are considered by many to be among the more influential courts in the U.S. and Louisiana is also in the Fifth Circuit.
The Texas psychology practice act prohibits the use of three terms, “psychological,” “psychologist,” and “psychology.” This would then restrict the commonly used term, “psychological scientist.” In contrast, Louisiana’s law is less broad: “’Psychologist’ means any person licensed as a psychologist under this Chapter.”
The Appeals Court judges found that sections of 501.003 (Practice of Psychology) of the Texas practice act were “overbroad and contravene the First Amendment.”
The judges concluded that since erroneous statements are inevitable in free debate, and “In the political context, the remedy for misleading speech is ‘more speech, not enforced silence,’” and that the section under the psychology law was unconstitutional as applied to Serafine.
After analysis the judges wrote that they are not convinced by the statute’s efforts to narrow scope, and “We decline to give it an additional extra-textual limiting construction in a frantic attempt to rescue it.”
They summarized in, “The ability to provide guidance about the common problems of life— marriage, children, alcohol, health—is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grand- parents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment.” And, “By limiting the ability of individuals to dispense personal advice about mental or emotional problems based on knowledge gleaned in a graduate class in practically any context, subsection (c) chills and prohibits protected speech. But that is precisely what the overbreadth doctrine is meant to prevent. See Free Speech Coal., 535 U.S. at 255. Section 501.003(c), and by implication, Section 501.003(b)(2), are overbroad and contravene the First Amendment.”
The Texas Psychological Association and the Texas Board appear to have both signed formal complaints against Serafine.
In a brief submitted by Serafine, she and her attorneys wrote that after she changed the word from “psychologist” to “educator,” the Texas Psychological Association (TPA) and the Texas Board signed formal complaints against her. The Board issued a cease and desist order against Serafine which was followed by a letter from the Attorney General threatening prosecution for Serafine’s use of the word in “public records.”
According to the brief, TPA’s lobbyist and the Board then contacted local newspapers, informing them of the cease and desist order and demanding corrections stating that Serafine was not a psychologist. Also according to the brief, TPA’s lobbyist phoned the same information to the office of Serafine’s opponent.
In November 2016, Texas psychology board was ordered to pay attorney fees and costs of just over $48,000 to Serafine.
A violation of the psychology practice act in Texas, as in Louisiana, is a misdemeanor.
The Great Hall at the U.S. District Court of Appeals in New Orleans. (Courtesy photo)
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