Occupational Licensing

Texas Contemplates Rewriting Psychologist Licensing Law to Get Around Court Declaring Previous One Unconstitutional


The state of Texas really wants to be able to license psychologists. After being told last year by the Fifth Circuit Court of Appeals that its existing professional licensing laws regarding psychology were so overbroad they impinged upon First Amendment rights, they are now contemplating amending the definition of "psychologist" that falls under their power to license.

AlexRK via Foter.com

Texas' trouble with psychologist licensing began when Mary Louise Serafine was ordered by the state's Board of Examiners of Psychologists to not call herself a psychologist in the context of her failed campaign for state Senate in 2010.

She did not, after all, have a license to practice psychology under state law, and didn't even have a degree in the topic (though she'd done years of post-doc work in the field at Yale and had been a member of the American Psychological Association).

This violates her First Amendment rights, Serafine believed, and so she sued. After losing in lower court, she won last year at the Fifth Circuit.

The Court found aspects of Texas' then-existing psychological licensing laws unconstitutionally overbroad.

Why? While the regulation "certainly includes professional psychologists," the decision declared, "it also applies to other professionals and citizens. Besides leaders for AA, Weight-Watchers, or other self-help groups, someone who has taken graduate classes in psychology, fitness, or counseling and has written a marriage-advice column or parenting blog could conceivably be within the ambit of" the law.

The law, the Fifth Circuit insisted, should not be able to force people to get a state license or approval to do those things, which constitute First Amendment-protected communication.

To get around that aspect of the decision, the currently contemplated S.B. 2001 will specifically exclude from the activity that requires a license to practice the following:

(A) the offering of advice, counsel, or guidance addressing or affecting the mental, emotional, or behavioral health of another individual, whether solicited or unsolicited, when:

(i) the advice, counsel, or guidance is not offered in the context of a professional relationship;

(ii) the primary focus of the provider's occupation is other than the delivery of mental, emotional, or behavioral health care services and the person is offering the advice, counsel, or guidance ancillary to the person's occupation; or

(iii) the advice, counsel, or guidance is offered within the context of an organized or structured program or peer support service that is designed to support or assist individuals with a self-identified goal of changing or improving certain aspects of their mental, emotional, or behavioral health…

That still seems pretty vague, especially when it comes to deciding what is or isn't a "professional relationship" and what one should call that professional relationship when it comes to giving advice, counsel, or guidance. Serafine's original argument had it that it should be legally fine to do such counseling—an act of free speech—even "professionally."

The Fifth Circuit's decision last year did conclude that giving psychological advice, even for pay, is not for that reason merely "commercial speech" and thus, under existing (though wrongheaded) First Amendment doctrine entitled to less rigorous protection, since "commercial speech" is properly speech which merely proposes a commercial interaction, not true of a counsel-counseled relationship.

However, if you are practicing "the observation, description, diagnosis, evaluation, assessment, interpretation, or intervention in and treatment of human behavior by applying education, training, methods, and procedures for the purposes of: (A) preventing, predicting, treating, remediating or eliminating certain behaviors, disorders, or mental illness…" then you would still require a state license under this proposed law.

Serafine herself planned to testify against this new approach, and told the Texas Tribune that "The whole problem can be solved by turning the licensing into a certification," meaning that "there would still be preferred providers, a certification, same as a license except that it doesn't prohibit anyone else."

The prohibition is of course seen by Texas lawmakers (and many professional psychologists) as the feature, not the bug, in their professional licensing schemes.

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  1. How do other states define this? Do they have some sort of licensing exam?

    That would seem to make more sense. Like a medical board exam.

    The relevance is that medical insurance pays for diagnosis and treatment of psychological problems and restricting that to licensed practitioners makes sense.

    Requiring a license to “call yourself a psychologist” while campaigning for a political office just seems ridiculous.

    1. Insurers who want to restrict payout to ‘licensed’ practitioners can damn well get off their butts and create a licensing regime that satisfies them.

      The existence of the desire for state licensing to take the burden off of you is not actually justification for state licensing.

    2. Michael Edelstein explained to me that in NY you can do any type of counseling for $ as long as you don’t call yourself a “psychologist”, “therapist”, or by any of a short list of other words they license people to do. “Counselor” & “adviser” I recall as being open for the taking, among others. And if you’re running for office or otherwise puffing your resume, referring to yourself as such would not be illegal as long as it’s not a solicitation to get hired for same.

      The Texas bill is not only bad, but perverse, even bizarre, in that it seems to want to license the very actions that you’d think would not require or benefit from licensure, i.e. counseling clients when such counseling is not your main biz, rather than the other way around. Who’d ever bother to get a license to do something you weren’t orienting your career around?

  2. Psychology is so damned vague to start with, that we are on a TOTAL fool’s errand, if we think that we can legally define it, no matter HOW many paragraphs of high-sounding gobbledegook we throw at it! What’s next, licenses for fortune-tellers?

    Licensing = enemy of freedom, period! Licensing GTFO; lemme make my own choices!!!

  3. I has a sad. RIP Mr. Rickles. In his honor, will the rest of you please go fuck yourselves.

    1. We’ll be happy to do that, but you go first, and put it on YouTube, and then we’ll consider it. Mr Rickles RIP you old fart.

  4. I wonder how TX feels about licensing webmasters? And squirrel exterminators?

    1. TX is OK with any and all licensing… EXCEPT the sucking of the butts of the TX legislators!!!

      Any time anyone pays anyone else a single stinkin’ DIME, the dime-payee must be LICENSED, damnit!!!

      (Except for lobbyists, who lobby for all the “protected” professions… The TX legislators do ***NOT*** favor licensing the lobbyists who make bribes, OOOPS, I mean, campaign contributions).

      If I were a cynic, I’d say, “follow the money”, when asked about, “How come lobbyists aren’t licensed out the wazzooo?”

      I’m NOT a cynic, so I’m a-gonna say, “It’s all for the children”!!!!

      1. But hey, WAIT a minute here! Squirrel extermination should be OUTLAWED, not just licensed!

        1. Ya lay down with squirrels, ya get fleas.

          *eat this one squirrels, I double dog dare ya!
          copy to file

          1. pussies

      2. Texas does a lot of talk about being against Federal regulations. That’s only true because they didn’t think of the regulations first.

  5. Oh, you thought they were just going to go quietly into that good night?

  6. “However, if you are practicing “the observation, description, diagnosis, evaluation, assessment, interpretation, or intervention in and treatment of human behavior by applying education, training, methods, and procedures for the purposes of: (A) preventing, predicting, treating, remediating or eliminating certain behaviors, disorders, or mental illness..”

    Most of this sounds like trying out pick up lines in a middle class bar.

    1. (A) sounds a lot like marriage to this cowboy. Amen?

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