Originally published: . Volume 8, No. 3. Source pages: 2, 6, 14, 15.
[Editors Note: Article edited for length.]
Background
Mary Louise Serafine, PhD, JD is a licensed attorney in the state of Texas. She has a website which promotes her as an “attorney and psychologist” in the state of Texas. Her website http://mlserafine.com/ maintains that she “holds a PhD in education and published her doctoral dissertation in psychology. She did postdoctoral work in psychology at the Yale Department of psychology and also taught undergraduate courses in psychology at Yale and Vassar. At the introductory level over the years, she taught in virtually all of psychology’s subfields- developmental, cognitive, psychobiology, learning, memory, perception, motivation, mental illness, psychotherapy and others. She taught several of these at the advanced level, plus research and statistics. In her research field, which concerned the psychology of music, Serafine was said to have done groundbreaking research.” In numerous legal documents and publications, she asserts that she completed a law degree from Yale Law school.
The Licensure of Psychologists in Texas is Unconstitutional According to Dr. Serafine
Dr. Serafine has challenged the licensing act for psychologists in the state of Texas. She has publicly and repeatedly declared that the licensure of psychologists in Texas is “unconstitutional.” On her website she writes “Serafine sued the Texas psychology board in order to get the psychology law struck down as unconstitutional under the First Amendment of the U.S. Constitution. In her view, it violated the freedom of speech. Psychologists do nothing but talk. Their opinions and advice-whether implicit or explicit-may be those of experts who are thoughtful and well educated, but there is nothing about what they do that should prevent other people from easily providing their own opinions and advice. The public is entitled to choose whom they wish to talk to about the problems and joys of life. Serafine also believes that words like ‘psychologist, psychology and psychologically’ are ordinary words that the government may not ban. A government law that declares such words to be ‘titles’ instead of just words, is not sufficient to create a ban.” She further asserts “The US court of appeals for the Fifth Circuit struck down as unconstitutional the major portion of the psychology law that defines the ‘practice of psychology.’ It also held that the portion forbidding Serafine from using ‘psychologist, psychology, and psychologically’ was also unconstitutional as applied to Serafine.”
Dr. Serafine is referring to the Texas Occupations Code Chapter 501 under Section 501.002 (5) “Psychologist” means a person who holds a license to engage in the practice of psychology issued under Section 501.252.
“The Occupation Code also provides a delineation of the services provided by psychologists in “Sec. 501.003 PRACTICE OF PSYCHOLOGY. (a) In this section, ‘psychological services’ means acts or behaviors that are included within the purview of the practice of psychology… (b)A person is engaged in the practice of psychology within the meaning of this chapter if the person: (1) represents the person to the public by a title or description of services that includes the word ‘psychological,’ ‘psychologist,’ or ‘psychology’; (2) provides or offers to provide psychological services to individuals, groups, organizations, or the public; (3) is a psychologist or psychological associate employed as described by section 501.004 (a) (1) who offers or provides psychological services, other than lecture services, to the public for consideration separate from the salary that person receives for performing the person’s regular duties; or (4) is employed as a psychologist or psychological associate by an organization that sells psychological services, other than lecture services, to the public for consideration.
The law goes on to describe the practice of psychology, including “… the application of established principles, methods, and procedures of describing, explaining, and ameliorating behavior;” and addressing “… normal behavior and involves evaluating, presenting, and remediating psychological, emotional, mental, interpersonal, learning, and behavioral disorders of individuals or groups, as well as the psychological disorders that accompany medical problems, organizational structures, stress, and health;” and “…evaluating and treating mental or emotional disorders and disabilities…”. The occupational code further clarifies that members of professions may perform the same activities or services as long as they do not represent themselves as psychologists or describe their services by using the term psychological.
The Fifth Circuit U.S. Appeals court recognized that Dr. Serafine is not licensed as a psychologist and could not be licensed as a psychologist since she did not complete the appropriate doctoral level training.
Dr. Serafine complains that her right to free speech has been breached because she cannot represent herself to the public as a psychologist. She has stated that she also wants to be a “life coach.” Her website indicates that she offers “private lectures” on marriage.
She repeats these assertions in numerous public documents, including editorials in the Houston Chronicle, American Thinker and Austin American Statesman newspapers.
In her contribution to the American Thinker, “Is the Constitution good for mental health?” She declares “The question will be whether to pass a replacement law for the psychologists’ licensing statute. Their major problem will be passing something — if they pass anything at all — that is constitutional under the First Amendment’s guarantee of freedom of speech.
“The issue is that the freedom of speech includes the freedom to talk and listen to whomever you’d like about psychological matters — thoughts, feelings, behavior, perceptions — including as a paid service. According to the old Texas law, you needed a license from the state in order to talk about such things to a member of the public. And as a member of the public, the only lawful person to talk to about your problems would be a state-licensed psychologist.
“But in January, 2016 the U.S. Court of Appeals for the Fifth Circuit determined that the Texas psychologists’ licensing law violated the First Amendment. And because it was unconstitutional, the law became unenforceable. The law had defined the ‘practice of psychology’ too broadly, the Court said, and therefore infringed our freedom of speech. It was so broad, in fact, it allowed the state to forbid and punish anti- smoking and weight loss counselors, life coaches, and many others — just about anyone providing a service that was broadly about behavior.
I brought the case. I sued the Texas psychology board under the First Amendment. After a bench trial, I lost in federal district court. But the Court of Appeals reversed that decision and declared the Texas definition of ‘the practice of psychology’ unconstitutional.”
Dr. Serafine maintains that it is a breach of First Amendment rights that unlicensed people cannot represent themselves as psychologists. Since she believes that psychologists ONLY TALK, she must believe that clowns, witch doctors and shamans should be able to call themselves psychologists since they ONLY TALK. Since sex workers and barbers talk and touch the body, perhaps Dr. Serafine believes that it is a breach of their First Amendment rights since they cannot call themselves physicians and/or psychiatrists.
According to Dr. Serafine, the Practice of Psychology Cannot Be Defined
Serafine continues “It began in 2010 when I ran for the Texas senate and called myself ‘an Austin attorney and psychologist’ in my campaign bio. The Fifth Circuit’s opinion is Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016).”
The Texas State Board of Examiners of Psychologists issued her a “cease-and-desist” letter asking her to remove the title “psychologist” from her campaign brochure and any other public documents since she is not and has never been a licensed psychologist in the state of Texas.
Serafine goes on: “The Texas law is similar to such laws in most states, and very similar to laws for counselors, marriage and family therapists, and others whose job is to talk, listen, and to give advice about the problems and joys of life, whether the advice is implicit or explicit. Psychologists implicitly give advice when they dispense therapy. Why should the government decide who is allowed to dispense ‘mental health’ advice? Does the government know what’s best for us in the arena of ‘mental health’? The answer is no.
The self-interest of professional organizations — such as the American Psychological Association and the Texas Psychological Association — is really what’s at work here. They want to keep unlicensed people from offering similar or better services at lower prices, or different services that some people might prefer.
“The problem for lawmakers is that they will not be able to define ‘the practice of psychology’ without violating the First Amendment. That is because there is no definition of ‘the practice of psychology’ upon which most psychologists would agree, except in overly broad, vague terms. In fact, there is disagreement about fundamental questions: Are dreams important? Are we driven by subconscious factors? What is the best way to change behavior? Is more communication a good thing?
“Let me issue the same challenge I have made several times: Give me a definition of ‘the practice of psychology’ on which most psychologists would agree that does not ensnare many helpful, legal activities such as talking and listening, and giving advice or expressing opinions that are common to many occupations — political consultants, speech coaches, fortune tellers. Give me any definition on which a substantial percentage of psychologists would agree, that does not violate the freedom of speech,” she asserts. “Legislators will not be able to come up with one.”
Dr. Serafine Argues that Psychologists Should be Certified, Not Licensed
Dr. Serafine offered a comment to the Texas Sunset Advisory Commission on November 16, 2016 http://mlserafine.com/category/suns et-commission and she maintains “The federal courts have now analyzed this law— and they will analyze every similar, future law— under the constitutional guarantee of freedom of speech. Freedom of speech means, in my view, that we are free to talk and listen to whomever we please, whenever we please, including one-on-one, for pay. There are exceptions for crime, fraud, defamation, etc. But on the whole the freedom to speak and listen is the heart of the freedom to think, and to believe… It is important to emphasize that the only thing psychologists do is talk. They do not touch the body, build homes or bridges, or affect public health or safety.
In her comment to the Texas Sunset advisory commission, Dr. Serafine offers a remedy to the dilemma she has identified “Texas Should Consider Certifying rather than Licensing Psychologists, as a way of providing regulation without the risk of violating the right to free speech under the Constitution, with more resulting constitutional litigation… A certificate in psychology would tell the public that the certified person has passed the State’s requirements and has the State’s ‘stamp of approval.’ A license, by contrast, prohibits all unlicensed people— virtually all Texans— from engaging in the types of conversations that the law once said— before being struck down—constituted ‘psychological services’ or ‘the practice of psychology.’
Implications for Professional Psychologists
It is important to remember that psychologists, like physicians, social workers and licensed professional counselors seek reimbursement through third-party sources such as commercial insurance, Medicare, Medicaid, CHIP and various veterans’ insurance programs. In order to receive reimbursement from these third-party carriers, it is necessary to have a professional license. Teachers do not seek third-party reimbursement from medical insurance, so it is unnecessary for them to be licensed. If psychologists were no longer licensed, then veterans, low income people, children, working people, people with disabilities and the aged would not be able to receive psychological services unless they were able to pay out-of-pocket for such services. Texas has one of the lowest rates of people with medical insurance in the nation. It is also ranked among the lowest in terms of provision of mental health services. If psychologists were no longer licensed, the provision of mental health services would be greatly reduced and such services would only be available to the extremely wealthy or to the clients of state facilities such as MHMRA (which has an extremely long waiting list), prisons or County health clinics. To put it another way, if psychologists were no longer licensed, insurance carriers would have cause for celebration since their expenditures for psychologists would be eliminated, thus boosting their bottom line at the expense of its policyholders and providers.
Challenge for Psychologists
Dr. Serafine’s attempt to blur the professional boundaries of psychologists and other mental health providers and other professionals is a challenge for psychologists to meet. She repeatedly has attempted to denigrate the well-established and respected profession of psychology while she complains that she cannot call herself a psychologist.
If licensure for psychologists is eliminated, this would mean psychologists could not seek third party reimbursement, and psychologists could not be employed by the VA and other federal agencies as well as police departments and the military. This would mean a reduction in the provision of mental health services. It would also mean a reduction in the state’s ability to regulate the practice of psychology.
Blocking access to healthcare for Texas’ most vulnerable people, e.g. working people, children, pregnant mothers, veterans, military personnel, elderly, disabled and low income as well as others in order to boost profits for the most privileged is the epitome of “authoritarianism.”
In response to the Fifth Circuit U.S. Court of Appeals, TPA and other stakeholders are working on a new definition of the Practice of Psychology for Texas psychologists. If you would like to make comments about the challenge psychologists face in the state of Texas, you can contact the Texas Psychological Association at admin@texaspsyc.org.
This article is part of a historical newspaper archive. Read the original issue for its original layout, photographs and graphics.