by Julie Nelson
In the last week of February, the state psychology board surprised the community when they circulated a memo that the board would be putting forth legislation in the 2020 session. The memo cast the legislation as “housekeeping,” but the sweeping changes they wanted were anything but.
By March, Senate Bill 458 had been filed, 23-pages that detailed an ambitious set of changes to the Psychology Practice Act. The changes included expanding the board’s
own charter, creating new qualifications for serving, authorizing the board to conduct continuing education, exempting the board from Open Meetings Law in certain
situations, and redesigning the position of the Executive Director.
But the most financially significant change was the board’s goal to register psychological assistants, creating new regulations and fees that could double or even triple costs for some psychologists, especially those in small businesses.
Similar to other past legislative goals by the board, the plan was essentially kept from the public. Why the secrecy? Why bypass rulemaking? Why more legislation?
In this article, we examine the possible issues behind the odd behaviors of the Louisiana State Board of Examiners of Psychologists (LSBEP).
LSBEP’s Ongoing Financial Problems
Posted under “Performance” for 2019, LSBEP data from the Boards and Commissions website gives strong hints to the underlying reason that the board might be looking for more money from the registration of psychologists’ assistants. They noted:
“The Board is planning to engage in rule-making this FY that will impact revenue in FY2020-21 and include requiring the registration of assistants to psychologists providing
psychological services to clients under the supervision of a licensed psychologist and begin pre-approval of continuing professional development activities. A financial analysis for
the impact of these initiatives is being conducted and an amendment to the projected 2020-21 Budget is anticipated.”
The board’s financial problems are long standing, they have been running deficits since 2014.
Based on the financial tracking data, the LSBEP stayed within budget for most years and carried a “fund balance” of around $100,000. A source at the Legislative Auditor’s office said the fund was a surplus or reserve.
For 2014, the board took in $262,582 and spent $249,517. Legal services were $37,882. The fund balance had a surplus of $144,709.
In 2015, the board received $263,691 in fees and spent $275,147. Legal services increased to $56,002. The fund balance was listed at $120,188.
However, in 2016 budget tracking indicates a fund deficit of $214,818.
In a June 2016 Report, the Louisiana Legislative Auditor found the LSBEP to have inadequate controls over financial matters during the 2014–2015 period. The Auditor found a lack of business and accounting functions, and reported there were inadequate segregation of duties and lack of supporting documentation, inadequate controls over employee payroll and leave, inadequate controls over debit and credit cards, and inadequate controls over travel and meals expenses.
It is not clear from the Auditors report how the board went from a surplus to a deficit between 2015 in 2016. However, also in 2016, the board spent $336,677, while proceeds remained steady at $265,945. Legal services rose to $104,894.
In 2017, legal services shot to $149,774, and the fund balance became a deficit of $352,395. In total, the board took in $272,833 and spent $408,388.
For 2018, the board collected $299,599 and spent $307,003. Legal services dropped to $40,826. The fund balance was a deficit of $359,799.
Last year, in 2019, the board took in $310,023 and spent $212,640, with legal services at $61,182. The fund balance dropped to a deficit of $262,415.
But projections for 2020 point to new problems. Salaries are projected to go from $85,727 in 2019 to $168,787 in 2020. The board is estimated to take in $329,831 and spend $366,236. Legal services are estimated at only $57,509, but the fund balance is still a deficit at $298,820.
And, for professional services there is a category for “Others” that increases from $8,620 in 2019 to $43,499 in 2020. Salaried employees in 2019 is listed at $61,569, but increased to $93,200 for 2020.
In summary, between 2019 and 2020, expenditures are set to increase by 72%. (See figure.)
The Expensive “Complaints Committee”
The LSBEP conducts two main duties as a board––approving new licensees and administering discipline. New licenses are handled by the volunteer board members and the salaried Executive Director.
However, the complaints subcommittee is designed to conduct its affairs without board members’ oversight. This arrangement leaves volunteer board members free of any bias if they are then required to participate in a disciplinary hearing.
The Rules and the internal Policies and Procedures confirm this: “The LSBEP in accordance with the La. Admin. Code, 46:LXIII.1501.C. hereby delegates authority to a Complaints Committee which may consist of the Compliance Officer, a complaints coordinator, an investigator, legal counsel, and one or more Board members […]”.
The LSBEP has both employees and contractors. For 2020, two employees are listed: The Executive Director at $62,400.00, and the Compliance Investigator at $46,200.00. With related benefits for 2020 coming to $62,537, this brings the salaried employees to
a total $168,787 for 2020. Aside from student workers there are no clerical employees or others listed.
Contract employees include contracts for a Complaints Coordinator (approved for up to $36,000); Prosecuting Attorney ($50,056); Investigator ($12,000); and General Counsel
($45,000).
According to the Policies for the complaints subcommittee, “The Executive Director oversees the functioning of this committee and may serve on the Complaints Committee if necessary.” And, “The Executive Director or Compliance Officer is authorized and empowered to assign per case, individuals who are contracted, employed or appointed by the Governor to the LSBEP, …”
A new position, a “Compliance Officer (Investigating Officer)” appears to have been added sometime in the last two years. According to the policy manual, this person may be a full-time or part-time, may conduct investigations and/or inspections outside of the main office, conduct investigations into alleged or suspected misconduct by licensed members, applicants for licensure and/or others who may be suspected of violating state and federal ethical and agency laws, rules, and policies, may conduct surveillance and unannounced on-site monitoring/compliance visits, among other duties.
The complaints subcommittee operates without the direct supervision of any board members and is the most expensive and least transparent element of the LSBEP. But what exactly is the extent of the problem that this expensive subcommittee is solving?
Is the Extra Expense Really Necessary for Public Safety?
Considering the depth and breadth of law enforcement personnel assigned to the complaints subcommittee, an observer might think that there is a serious problem with psychologists’ products/services.
However, based on LSBEP’s statistics the number of annual disciplinary actions averages between two and three per 1000 psychologists. Since a psychologist serves an average of 30 individuals per year, this translates to around 2.5 problems in
30,000 customer experiences.
This rate is consistent across states and consistent with the national averages. Statistics published by the Association of State and Provincial Psychology Boards calculates the national number of disciplinary actions for the last five years to range from 181 to 229, an average of 189.4. (See figure.) For 106,000 psychologists across the nation, this is 1.8 mistakes per 1,000.
These rates are also consistent with the other psychotherapy and counseling professions. The Times compared a random sample of disciplinary outcomes for the psychology, counseling, and social work boards. We found that all of three boards have
similarly low rates of disciplinary actions, between one and three discipline events per 1,000 licensees.
In research over a sample of a five-years, we found that 75 percent of discipline actions were related in some way to forensic child custody evaluations. The remainder was split
between sexual/dual relationships and impaired psychologist issues.
Using data of the US Consumer Product Safety Commission, which estimates the product-related injuries for various industries, psychologists compare very favorably regarding public safety. Furthermore, to compare to hospital care, where 98,000 patients die annually due to medical errors, psychologist services presents a very safe alternative to inpatient care.
Waste and Ineffectiveness in the Complaints Committee?
Do the lack of checks and balances in the complaints committee, and the heavily staffed law enforcement approach, create more problems than it solves? Have licensees, the taxpayers, been saddled with paying for unnecessary attorneys, including their mistakes?
In an interview with an MBA, he said, “Alignments and incentives are all wrong in the subcommittee. High costs and inefficiencies would be expected,” he explained.
According to several sources, beginning around 2012, the LSBEP embraced an aggressive, adversarial style for dealing with complaints. For the first time, a Prosecuting Attorney was hired in 2014. Also, a private investigator was hired. Sources
have wondered if this may have been related to the then new executive director’s background as a Fraud Analyst/Investigator in the Criminal Division of the Maryland Attorney General.
Finances and other problems began to mount. Hired in 2014 at a $15,000 contract, the first Prosecuting Attorney, Mr. Jim Raines, submitted invoices for $52,000, according to discussion between officials in December 2016. The board was still digging out of money troubles in part because Mr. Raines submitted invoices totaling $66,597 earlier that year, according to the minutes for the LSBEP.
At the same time, Mr. Raines may have contributed to an expensive escalation of legal matters when he failed to recuse himself from a complaints case against Dr. Eric Cerwonka. Mr. Raines had been previously retained by Cerwonka in Cerwonka’s own child custody dispute. Additionally, the two engaged in a fee dispute following the close of the case. Cerwonka filed a constitutional violations lawsuit alleging that the Raines had privileged information about Cerwonka that he used in the investigation.
In another example, the LSBEP contract attorneys appeared to have been confused
about time limits for investigating complaints, ignoring language in the Psychology Practice Act that limited investigations to one year.
At a 2015 hearing, demanded by the defendant psychologist to be open to the public in order to have the press attend, the time limit was to be addressed. However, General Counsel, Mr. Lloyd Lunceford, prompted the chair to have a private discussion in and executive session. When the board members emerged from the executive session, they dismissed the case. This made any discussion on time limits irrelevant. The then Complaints Coordinator, Dr. Gary Pettigrew, appeared frustrated having to dismiss the case stating that he did so, “…purely on the advice of the prosecuting attorney.”
In a side comment to the chair, overheard by the Times reporter, Mr. Lunceford appeared to confirm that the attorneys in the committee had misinterpreted the law and made an error. Two years later the board put forth legislation to change the time limit in law.
Another time limits case is still on a judge’s desk in District Court. If reversed the board
could be required to reimburse the legal fees to the defendant.
New Statutory Laws: Circumventing the Public and Solving the Wrong Problems?
Is the LSBEP solving the wrong problem when it sets out to create new law, instead of
redesigning its complaint committee? Do their legislative solutions just cost more in attorney fees? Do they circumvent the public’s involvement when they go straight to the legislature?
It appears that the board’s first foray into creating news statutes was in 2012 when they decided to craft legislation to bring behavior analysts under it’s jurisdiction. A backlash occurred, with strong animosity directed at psychology from other groups in the mental health community.
Their legislation in 2014 was less controversial, but in 2015 the LSBEP sprung Senate Bill 113 on an unsuspecting community. The bill fueled a tug-of-war between state associations over language in the Practice Act.
In both 2017 and 2020, the board first indicated they would proceed with rulemaking, which is the process for creating administrative law. However, both times they surprised the community and chose to contact a legislator.
The Times spoke to an administrative law expert who preferred to remain anonymous. The expert explained that the board is circumventing the public by putting their goals into statutes instead of using administrative law and rulemaking, which includes a process for public involvement.
“They are circumventing the public,” when they go straight to the law and ignore rulemaking, said the expert. “They are eliminating the input from the public. Administrative law is separate from the statutes, and that area of law is to be
separate. They want to put their administrative law into statutes, and that is a serious concern.”
State agencies are prohibited from taking a position or lobbying on any legislation. Emails show that the executive director took an active role in SB 113. And, the LSBEP had hired its own lobbyist, Deborah Harkins. This later prompted Sen. Fred Mills to put forth legislation to prohibit agencies from paying lobbyists.
The Times asked Senator Mills about the origins of his Act 480. “It became readily apparent to me that some of the health professional licensing boards were intentionally trying to circumvent this law by hiring a lobbyist to lobby on their behalf, either for or against legislation that the board did or did not like,” he said. “It was indisputable evidence of, for instance the board of psychology, hiring a lobbyist when the board is listed on the website as one of her clients. This was really my motivation in filing Act 480,” said the Senator.
Conclusion
Years ago the policy at the LSBEP was, “Complaints received shall be rotated between former LSBEP members appointed as investigators.” The subcommittee then appeared to have had one psychologist, Dr. Gary Pettigrew, as the Coordinator, whose contract was for 40 hours per year. Legal consultation came from the General Counsel, only as needed.
Between then and today, major changes occurred, some very expensive. The expense impacts both the licensee, who funds the board, and psychologists who have to defend themselves against a fully staffed, motivated law-enforcement unit. At the same time, the measures of public safety have remained consistently good.
One attorney said that the Baton Rouge area has become a “cottage industry” for
the legal profession due to the boards. It seems unlikely that the LSBEP can legislate it’s way out of its managerial and financial problems. Unfortunately, in trying to do so they are removing the public from it’s legitimate role––being a correcting, and perhaps helpful, influence.