The Therapist 
(March/April 2007)

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"I've been seeing my client for two years now, she is finally opening up to me but she is now moving to Chicago. We’ve agreed to continue doing therapy over the phone or internet..."

CAMFT has received this call numerous times, with the therapist having no idea that he or she is likely breaking the law.

Marriage and Family Therapists licensed in California are exactly that—California Licensed and California Licensed only!

California Business and Professions Code § 4980 specifically states this proposition:

"Many California families and many individual Californians are experiencing difficulty and distress, and are in need of wise, competent, caring, compassionate, and effective counseling in order to enable them to improve and maintain healthy family relationships."

Healthy individuals, healthy families, and healthy relationships are inherently beneficial and crucial to a healthy society, and are our most precious and valuable natural resource. Marriage and family therapists provide a crucial support for the well-being of the people and the State of California.”

No where in California law does it state that California MFTs provide support for the well-being of the people of California and for the residents of other states. The BBS’ own website states the following propositions:

The Mission of the Board of Behavioral Sciences (BBS) is to protect the well-being of Californians by setting standards for mental health professionals through effective communication, education, examination, licensing and enforcement.

The Board of Behavioral Sciences (BBS) would like to make the following recommendations to California consumers who choose to seek therapy or counseling over the Internet. Individuals who provide psychotherapy or counseling, either in person, by telephone, or over the Internet, are required by law to be licensed. Licensing requirements vary by state. Individuals who provide psychotherapy or counseling to persons in California are required to be licensed in California. Such licensure permits the consumer to pursue recourse against the licensee should the consumer believe that the licensee engaged in unprofessional conduct.

This information is being provided to help outline the requirements for registration as a Marriage and Family Therapist Intern and licensure as a Marriage and Family Therapist (MFT) in California.

You may be reading this article thinking, “I know another therapist that does out of state counseling and they haven’t gotten in trouble.” That may be true, but as you are aware some licensed and unlicensed individuals practice in an unethical or unlawful manner. Evidence of this fact is demonstrated by disciplinary actions. To date no MFT has been disciplined for practicing out of state via the telephone or the Internet. With that said, do you want to be the person that the BBS makes an example of? Although no MFT has been disciplined to date, practicing in another state without a license is, or would likely be deemed to be a violation of the law in the state where the client resides, and is arguably a violation of California law.

This issue is one that brings up confusion and irritation with some therapists. Where does therapy occur? Does it occur where the therapy is initiated, or where it is received? Arguably it is where therapy is received. It would be unduly burdensome for a patient to have to seek redress outside of the state where the patient resides. Thus, the therapist incurs an obligation to provide therapy only to persons located within the state(s)/jurisdiction(s) where he/she holds a current and valid license.

Looking at this issue from the other point of view…How would you feel if you dis- covered that some of your patients decided to discontinue therapy because they met a very nice therapist from Chicago who was going to take over the therapy via the telephone? You would not be pleased. It is likely that you would want to complain to the BBS and/or the Chicago therapist’s licensing board.

Breaking Another State’s Laws
Other states’ licensing boards may or may not find out about your “practicing” in their jurisdiction. They may or may not pursue any disciplinary action and/or other recourse. But, should you roll the dice on this issue? Penalties can range from a slap on the hand to mandatory incarceration. For example, if you practice marriage and family therapy in Kansas without a Kansas license, you are committing a class B misdemeanor punishable by mandatory confinement.¹

According to New York law, only New York licensed MFTs can engage in marriage and family therapy with New York residents. As a California licensed MFT you can apply to become a New York licensed MFT, but if you practice without first obtaining that New York license, you could be charged with the illegal practice of a profession that requires a license, a felony in the state of New York.²

To practice marriage and family therapy in Illinois, you must be licensed in Illinois as an MFT. If you practice as an MFT without having a valid license under Illinois law, a restraining order could be issued against you,³ and/or you could be held in contempt of court,⁴ and/or you could be found guilty of a criminal misdemeanor.⁵

To practice marriage and family therapy in Oregon, you must be licensed in Oregon as an MFT.⁶ Here as above, Oregon will allow a therapist from another state to apply to practice in Oregon, but if he or she chooses to ignore that process, the Oregon Board of Licensed Professional Counselors and Therapists may levy a civil penalty of $1,000 for each separate violation.⁷ Moreover, the Board of Psychologist Examiners may investigate and pursue other legal and criminal avenues.

Now, is it likely that any of the 48 states that regulate the practice of marriage and family therapy would find out about you practicing unlawfully within their territory? Maybe, maybe not. If that state’s licensing board did discover you were practicing unlawfully ,would they pursue disciplinary action and/or criminal recourse? Maybe, maybe not. If that state’s licensing board did decide to pursue a criminal or disciplinary action against you, would they be able to obtain jurisdiction over you? Probably. If a complaint was made against you and/or if an action was taken against you, would that state inform the BBS that you have committed a crime and/or acted unprofessionally? Probably. Although there is no absolute answer to these questions, would you want to be the test case on this issue?

What if the patient has complained about you and/or has been harmed by you? In which state would he/she sue you? California or the state he/she lives in? As stated, it is overly burdensome for that patient to be forced to sue you in California, therefore your patient would most likely be allowed to sue you in the state where he/she lives. Are you prepared to fight a civil suit in another state? Would your insurance cover you while practicing in the other state? Remember, you are knowingly engaging in unlawful practice.

Assuming it was not unlawful to practice in another state, are you competent to practice in that state? Do you know the laws of the state that your client moved to? What happens if you find out about child abuse? Which state’s laws do you follow? Which state’s reporting agency do you report to? Does that other state have liability protections for breaking confidentiality? What if that state doesn’t have mandatory Elder Abuse reporting protections? Would Tarasoff ⁸ liability protections apply to you if you were to break confidentiality?

Penalties in California
What penalties await you here in California?

The BBS may revoke your license if you are found guilty of unprofessional conduct.⁹ This includes, but is not limited to:

The conviction of a crime substantially related to the qualifications, functions, or duties of an MFT: Being convicted of a misdemeanor or felony in another state for practicing without a license would certainly fall under this section;

Incompetence: Arguably, practicing in another state without being licensed in that state, and without being educated on that state’s laws and regulations, could be considered to be practicing incompetently;

Misrepresentation as to type of license: If you are giving counseling to an individual living in another state, your patient would likely believe that you are allowed to practice in that state and are familiar with the laws of that state. Without disclosing to the patient that you are unlicensed in that state, you may be considered to be misrepresenting your license;

Commission of dishonest or fraudulent act: As discussed above, the patient would likely not know that you are practicing without a license and violating the law; and,

Holding oneself out to be able to perform services beyond one’s scope of competence: If you are not licensed and/or educated in that state’s laws, you are practicing outside your scope of competence (your education, training and experience).10

If you happen to be disciplined by another state’s licensing board for violating their licensing laws, and/or criminal statutes, you have a duty to report it to the BBS.11 This disclosure will be reviewed before the BBS will renew your license and they may determine that your license should be revoked or that you should be disciplined.

Moreover, if you are found in violation of any of the above, you have committed a misdemeanor and may receive punishment by imprisonment in the county jail for a period not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both.12

Are there exceptions to the rule? Of course. As indicated above, some states allow licensed MFTs from other states to work for a short amount of time, or to apply for licensure. But, one must fulfill each state’s procedures. What about in a situation like Hurricane Katrina or other natural disasters? States can make exceptions, but you, as a California licensed MFT, need to verify with that particular state’s licensing board that there is an exception. You cannot independently deem yourself qualified in another state or above the laws of that state.

Currently there is no specific California law that states that a California licensed MFT cannot practice in another state. BUT, the combination of: a) the vast amount of other states’ laws that say it is unlawful to practice within their jurisdiction without that state’s license; b) the fact that the applicable California laws state that they are in place to regulate California therapists and protect California patients; and, c) the fact that the current status of the specific law is unclear...leads CAMFT to the conclusion that it is likely unlawful. The even more important conclusion: Until California law is made clear on this issue, are you willing to be the BBS’ test case as to whether such action should and/or does constitute criminal action and/or warrant.

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Catherine L. Atkins, J.D., is a Staff Attorney at CAMFT. Cathy is available to answer members’ questions regarding business, legal, and ethical issues.

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References
1 K.S.A. 65-6403
2 New York Education Law: Article 130, §§6509 and 6512;
Article 163, §8402
3 225 ILCS 55 § 90
4 Id.
5 225 ILCS 55 § 160
6 ORS §§675.01, 675.715 and 675.825
7 ORS § 675.825
8 Tarasoff v. Regents of the University of California (1996) 17
Cal. 3d 425
9 Business & Professions Code §4982
10 See also, Business & Professions Code §1845
11 Business & Professions Code §§4984 and 4989.32
12 Business & Professions Code

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This article appeared in the March/April 2007 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.