Staying Out of Trouble
Legal and Ethical Reminders for Clinical  Supervisors

Michael Griffin, JD, LCSW
Staff Attorney
The Therapist
January/February 2020

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We ask a lot of clinical supervisors. Not only are they expected to be competent practitioners, they are required to be knowledgeable of, and to abide by a plethora of laws, regulations and ethical standards pertaining to supervision.^{1 2 3} Particularly when the individual is a new supervisor, the learning curve can be formidable.

The information that is provided here focuses upon selected legal and ethical issues which are generally applicable to supervisors in all settings. A number of friendly supervision “reminders,” are hereby offered, in order to help supervisors to better understand (or simply to be reminded of) key legal and ethical standards, and to avoid potential legal and ethical problems. Each of the “reminders” may be more, or less relevant to a given circumstance (not every supervisor is an employer, for example), but they are broadly applicable, and supervisors are urged to be familiar with each of them.⁴

REMINDER #1: MAINTAIN A LICENSE IN GOOD STANDING AND TAKE REQUIRED CONTINUING EDUCATION IN SUPERVISION.
One may ask why it is even necessary to remind professionals of the need to comply with this requirement. Unfortunately, when practitioners occasionally do fail to timely renew their license (or registration), the result is never good. Should a supervisor allow their license to lapse, technically, they would not be a qualified supervisor while their license was inactive.5 Consequently, the provision of supervision by someone who did not have a current, valid California license during the time in question could expose the supervisor to possible disciplinary action by the licensing board (“BBS”), and/or an ethics complaint.6 And if that isn’t bad enough, there can be devastating consequences to a supervisee who is unable to count the hours of experience that would otherwise have been earned, but-for the supervisor’s inactive license. This means that it is completely appropriate for a supervisee to ask their supervisor about the status of their license, and to confirm that it is active and in good-standing.

Under current law, persons licensed by the board who provide supervision to prelicensed Marriage and Family Therapists and Professional Clinical Counselors are required to complete a minimum of six (6) hours of supervision training or coursework in each renewal period. Individuals who have not completed such training during the most recent two-year period must complete (6) six hours of continuing education in supervision within (60) sixty days of commencing supervision.7 By comparison, supervisors of Associate Clinical Social Workers are required to have a minimum of fifteen (15) contact hours in supervision training obtained from a state agency or approved continuing education provider prior to commencing supervision. ⁸

In the near future, based upon anticipated regulatory changes, supervisors who commence supervision for the first time in California will be required to complete (15) fifteen hours of continuing education in supervision. CAMFT will provide further information regarding such regulatory changes as it becomes available.

REMINDER #2: REVIEW AND SIGN YOUR SUPERVISEE’S WEEKLY VERIFICATION OF EXPERIENCE LOGS. According to section 1833(3) of California Code of Regulations, trainees and associates are required to maintain a log of all hours of experience gained toward licensure on the appropriate weekly summary of experience form.⁹ This is not just a requirement for the supervisee. This regulation also states that “the log shall be signed by the supervisor on a weekly basis.” That means that the supervisor is expected to ask for, review, and sign the supervisee’s summary of experience form, every week! Unfortunately, the timely completion of these forms is often overlooked, or dismissed as unimportant by supervisees and supervisors. This is a mistake, and the failure to address this simple requirement has the potential to lead to problems for everyone involved.

In the “big picture,” the issue of weekly logs may not seem like a particularly urgent matter. But when the supervisor has not reviewed these logs on regular basis, it may be alleged that the supervisor failed to closely monitor the activity of the supervisee, or even that the supervisee may have misled the supervisor as to his or her activity. Of course, neither may be the case, and it could simply be a matter of the associate, or his or her supervisor, falling behind on paperwork. However, when it comes time for the supervisor to sign the supervisee’s verification of experience form, if there are differences of opinion as to the number of hours listed, the absence of signed weekly logs can make it extremely difficult for the supervisor to accurately verify the supervisee’s experience.

Applicants do not have to submit their weekly logs at the time they submit their hours for approval, but they are required to retain the logs until they are licensed and the BBS has the right to request the logs if deemed necessary to verify hours of experience.

TIP: It is strongly suggested that supervisors keep a copy of all of their supervisee’s documents, until such time as the individual is licensed.

It is relevant to note that supervisors are required to maintain records of completion of the required supervisor qualifications for seven years after termination of supervision and to make such records available to the board for auditing upon request.¹⁰

REMINDER #3: MONITOR YOUR SUPERVISEE. A fundamental concept that is expressed throughout the various statutes, regulations and ethical standards pertaining to supervision can be summed-up in one sentence: Supervisors are expected to provide active oversight to their supervisees. This is evident in the fact that various statutes and regulations consistently describe supervision in active terms. For example, section 1833.1 of the California Code of Regulations not only expresses the expectation that a supervisor “monitor and evaluate the extent, kind and quality of counseling performed by the trainee or associate,” it also states that a supervisor may satisfy such requirements by engaging in “direct observation, review of audio or video tapes of therapy, review of progress and process notes and other treatment records, or by any other means deemed appropriate by the supervisor.”¹¹

Similarly, section 4380.43.1 of the California Business and Professions Code provides that supervision means “responsibility for, and control of, the quality of mental health and related services provided by the supervisee,” and includes:

• Monitoring and evaluating the supervisee’s assessment, diagnosis, and treatment decisions and providing regular feedback
• Monitoring and evaluating the supervisee’s ability to provide services at the site or sites where he or she is practicing and to the particular clientele being served
• Monitoring and addressing clinical dynamics, including, but not limited to, countertransference-, intrapsychic-, interpersonal-, or trauma-related issues that may affect the supervisory or practitioner-patient relationship
• Ensuring the supervisee’s compliance with laws and regulations governing the practice of marriage and family therapy
• Reviewing the supervisee’s progress notes, process notes, and other patient treatment records, as deemed appropriate by the supervisor
• With the client’s written consent, providing direct observation or review of audio or video recordings of the supervisee’s counseling or therapy, as deemed appropriate by the supervisor

REMINDER #4: ENSURE THAT YOUR SUPERVISEE IS PRACTICING WITHIN THEIR SCOPE OF COMPETENCY.
One of the more challenging tasks for a clinical supervisor concerns the need for the supervisor to ensure that their supervisee is practicing within the supervisee’s scope of competency. Yet this requirement is evident in both legal and ethical guidelines. Section 1833 of the California Code of Regulations, provides that “supervision” includes ensuring that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the person being supervised,” as well as, “monitoring and evaluating the ability of the associate or trainee to provide services at the site(s) where they will be practicing and to the particular clientele being served.”¹² Similarly, section 4.2 of the CAMFT Code of Ethics provides that, “Marriage and Family Therapists do not permit students, employees, or supervisees to perform or to hold themselves out to perform professional services beyond their training, level of experience, competence, or unlicensed status.”¹³

Given that the level of experience is different for every supervisee (and every therapist for that matter), the question arises as to how a supervisor is expected to meet this requirement. The best answer may simply be that the supervisor who provides active oversight to his or her supervisee, and who is vigilant and determined to address the requirements stated in section 4380.43.1 of the Business and Professions Code, (as discussed in relation to reminder #3, above) will probably be in a good position to ascertain the scope of competency of their supervisee.

REMINDER #5: ENSURE THAT YOUR SUPERVISEE IS PRACTICING WITHIN THEIR SCOPE OF PRACTICE.
All clinicians are required to practice within the scope of practice of their license.¹⁴  In addition, supervisors are expected to ensure that their supervisees are practicing within the scope of practice of the license they are seeking. ¹⁵  This means that a supervisor must be familiar with the scope of practice of the license that is being sought by their supervisee. It would not be acceptable, therefore, for a supervisor who is licensed as an LMFT, who is supervising an Associate Clinical Social Worker, or Associate Professional Clinical Counselor, to assert that they are unfamiliar with the differences in the scope of practice for each of those licenses.

To an extent, the statutes which define the scope of practice for the various mental health professions contain similar terms.¹⁶  For example, section 4980.02 of the Business and Professions Code provides that the application of marriage and family therapy principles includes, but is not limited to, the use of “applied psychotherapeutic techniques.” Section 4996.9 of the Code states that “the application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a nonmedical nature with individuals, families, or groups,” and section 4999.20 of the Code tells us that “Professional Clinical Counseling” means the “application of counseling interventions and psychotherapeutic techniques to identify and remediate cognitive, mental, and emotional issues.” There are, of course, many differences between each of these professions. As an example, section 4999.20 of the Code tells us that Professional Clinical Counseling does not include the assessment or treatment of couples or families unless the practitioner has completed specified training and education. This is one example however, and it is strongly recommended that supervisors and aspiring licensees become acquainted with the language of the statute that applies to the license in question.

TIP: When in doubt, consult. There may be times when it is unclear or questionable whether a particular therapeutic activity or intervention that is being considered is within the scope of practice of a supervisee. In these circumstances, questions to consider may include, but are not limited to:

1. Is the therapeutic activity/intervention that is being considered something that is utilized as a type of psychotherapy by other licensed practitioners?
2. Is the therapeutic activity/intervention that is being considered possibly within the scope of practice of a medical practitioner versus that of a non-medical therapist? (For example: Offering advice about the use of medications).
3. Is the therapeutic activity that is being considered taught or discussed as a type of psychotherapy in academic training programs?
4. Is the therapeutic activity/intervention that is being considered taught or discussed as a type of psychotherapy in professional training or workshops?
5. Is the therapeutic activity/intervention that is being considered discussed by other practitioners in the professional literature?
6. Do professional colleagues concur that the therapeutic activity/intervention that is being considered falls within the scope of practice of the practitioner?

REMINDER #6: ENSURE THAT YOUR SUPERVISEE’S ADVERTISING MEETS LEGAL AND ETHICAL STANDARDS. First and foremost, legal and ethical standards express that advertising cannot be fraudulent, misleading or deceptive, and it must accurately convey a provider’s qualifications.^{17 18 19 20 21} This means, for example, that providers should exercise care when using terms such as “specialist” in advertisements. By stating that he or she “specializes in” a particular area, such as PTSD, bipolar disorder, or eating disorders, etc., the provider conveys that he or she possesses a degree of education, training or experience which is superior to other therapists who do not have similar professional backgrounds. It is fair to say, therefore, that a clinician should not make such an assertion unless it is arguably reasonable for them to do so. In other words, it should be possible for the clinician who contends that he or she is a “specialist,” to identify some examples of education, training, or experience which is arguably above and beyond that which would ordinarily be applicable to a practicing nonspecialist clinician.

Generally speaking, most advertising related problems can be avoided by simply following a number of straight-forward rules. Supervisors should always review and approve any advertising by their supervisees to ensure that it is accurate, and that it complies with the various advertising requirements.

Advertising must always include all of the following information:²²

• Provider’s legal name: It is not appropriate to use nicknames, maiden names, or any name other than the current legal name of the provider. It is worth mentioning here that registrants and licensees are required to submit proof of any legal name change to the BBS within thirty days of the change. ²³
• Provider’s accurate professional title: Examples include, “Marriage and Family Therapist Trainee,” “MFT Trainee,” “Registered Associate Marriage and Family Therapist,” “Registered Associate MFT” or, “Associate MFT Registration Applicant.” If the acronym “AMFT” is used in an advertisement, the title “Registered Associate Marriage and Family Therapist” must be spelled out.
• Provider’s license or registration number: This information must be included in any advertisement.
• Name of the trainee or associate’s employer, or the entity for which the individual volunteers, and information indicating that the person is supervised by a licensed individual: Examples: Jane Doe, Associate MFT Registration Applicant. Volunteer at ABC Counseling Center. Supervised by Mary Smith, LMFT #12345 or, John Brown, Registered Associate MFT, #34567, Employed and supervised by Joan Robinson, LCSW#56789

REMINDER #7: LEARN THE RULES CONCERNING EMPLOYMENT OF PRE-LICENSED THERAPISTS.
Not all supervisors are employers, but for those who are, and for agency professionals who are involved in the employment of prelicensed therapists, it is important to become familiar with the basic rules which apply to this area. Numerous laws and regulations are applicable to the employment of prelicensees, a full discussion of which is beyond the scope of this article. Employers should consider utilizing the services of a reputable payroll service, and employers of trainees or associates are urged to consult with a qualified employment law attorney about all employment-related issues.

Key employment-related issues include, but are not limited to, the following: ^{24 25 26}

• Wage and hours laws: Fortunately, there are a variety of resources which provide answers to common employment-related questions. This includes a wealth of information that is available on the State of California Department of Industrial Relations website on topics such as paid sick leave, payroll taxes, time, manner and payment of wages, workplace safety, and numerous work-related issues.²⁷
• Required disclosures: The California Labor Code requires employers to provide every employee with a variety of written information, which includes, but is not limited to: The rate or rates of pay and the basis thereof, whether paid by the hour, shift, day, week, salary, commission, or otherwise, including any rates for overtime, if applicable; The regular payday designated by the employer; The legal name of the employer, including any fictitious business names (“DBA”) used; The employer’s phone number and the physical address of the employer’s principal place of business, (and a mailing address, if different), and, the name, address, and telephone number of the employer’s workers’ compensation insurance carrier. Any changes to the foregoing information must be provided to the employee in a separate writing within seven days of the change. And, employees must be informed about their right to accrue and use sick leave, including the fact that they may not be terminated or retaliated against for using or requesting the use of accrued sick leave, and, that they have the right to file a complaint against an employer who retaliates against them for exercising such rights.²⁸
• Workers’ compensation insurance: California employers are required to provide their employees with workers’ compensation insurance, the cost of which is entirely borne by the employer. Employers are encouraged to comparatively shop for this coverage.
• Pre-licensed work status: Registered associates and trainees must be W-2 employees or volunteers and not 1099 independent contractors. ²⁹ There is an exception to this rule when the source of payment to the trainee, associate or applicant for licensure is a stipend or educational loan repayment from a program that is designed to encourage demographically underrepresented groups to enter the profession or to improve recruitment and retention in underserved regions or settings. In such circumstances, the associate or trainee may be considered an employee while earning hours of experience. The BBS may audit an applicant who receives a stipend or educational loan repayment and the applicant has the burden of demonstrating that the payment received was for the specified purposes.³⁰
• No Proprietary Interest: A trainee, associate, or applicant for licensure may not have a “proprietary interest” in their employer’s business. This means that until one is licensed, it is not permissible for a pre-licensed therapist to lease or rent space, pay for furnishings, equipment, or supplies, or in any other way pay for the obligations of their employer.³¹
• Treating Associates as volunteers: As a general rule, employers in private practice settings should avoid treating Associates as volunteers. That is because private practices are commercial enterprises (business that are intended to generate revenue for the owner) and the professional services rendered by the Associate is generating income for the business. It may be allowable, however, for the Associate to be classified as a volunteer in a private practice, if the services are offered by the Associate on a pro-bono basis.³² Here again, it is advisable to seek appropriate legal consultation prior to embarking on such an arrangement.
• Reimbursement for actual expenses: Registered associates and trainees may be reimbursed for expenses which directly pertain to their training, such as expenses paid for books and trainings. There is no limit to the amount of reimbursement permitted in this category, but reimbursement has to be for actual expenses incurred, and the BBS can audit the applicant.³³
• Charging employees for Supervision: The general recommendation to employers is that they should not charge their employees for supervision.³⁴ There are several reasons for saying this: Under the California Labor Code, California employers are prohibited from asking an employee to relinquish or pay back any part of their wages.³⁵ Furthermore, the California Labor Code states that an employer, “shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”³⁶ That means that an employer is required to cover expenses which result from the employee performing his or her job. Employers, therefore, would be exposed to possible financial sanctions by a regulatory agency, such as the California Department of Labor, if it was determined that an employee should have been paid for attending supervision as a job requirement. And, there is also the language of section 4380.43(f) of the Business and Professions Code to consider, which states, among other things, that a trainee, associate, or applicant for licensure shall not pay for the obligations of his or her employer.
• Permissible work locations: Associates and Trainees must work at the location(s) where their employer regularly conducts business. In addition to the employer’s office(s), this may include other locations, (such as a client’s home), so long as the services are performed under the direction and control of the supervisee’s employer and supervisor.³⁷ To be clear though, supervisee’s cannot lease or rent space to provide therapy services, or work out of their own homes.

Avoiding Problems: It’s Worth the Effort Understanding laws, regulations and ethical standards is important in itself, but there is another benefit to consider: Supervisors who are knowledgeable of, and who abide by the laws, regulations and ethical standards which apply to their conduct are less likely to encounter legal problems, disciplinary actions, and possible ethical complaints. And that is certainly a worthwhile goal.

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Michael Griffin, JD, LCSW, is a staff attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.

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¹ CAMFT Code of Ethics: Please be advised that, at the time of this writing, the CAMFT Code of Ethics is under final stages of revision. Further information about the revised CAMFT Code of Ethics will soon be available.
² 16 C.C.R. §1833.1(a)(8), §1870(a)(6) and §1821(6)(7) Regulations require supervisors to know and understand the laws and regulations pertaining to supervision and to the supervisee’s licensure requirements.
³CAMFT Code of Ethics, §4.4 Knowledge of Supervisors
⁴ A variety of resources regarding supervision can be found on the CAMFT website, at www.camft.org. Resources include articles listed under “Supervisors Corner,” and supervision related workshops in the “On-Demand” section of the website.
⁵ Cal. Bus. &Prof. Code, §4980.03, (marriage and family therapists), §4996.20, (social work) and §4999.12 (professional clinical counselors), Qualified supervisors must possess and maintain a current valid California license as a LMFT, LCSW, LPCC, psychologist, or board-certified psychiatrist, who has been licensed in California or any other state for at least two years prior to commencing supervision.
⁶ CAMFT Code of Ethics, §4.4, Id.
⁷ 16 C.C.R. §1821; §1833.1
⁸ 16 C.C.R. §1870
⁹ Visit the BBS website at www.bbs.ca.gov to obtain supervisionrelated forms.
¹⁰ Cal. Bus.& Prof. Code, §4980.43.5
¹¹ It is important to secure appropriate consent from clients prior to observing or recording any therapy sessions for supervision. See Also, Martin, Luke, JD, “Before You Press Record,” The Therapist, Sept. 18, 2019.
¹² Cal. Bus. & Prof. Code, §4982(s), Performing or holding oneself out as being able to perform mental health services beyond the scope of one’s competence, as established by one’s education, training, or experience, is unprofessional conduct.
¹³ CAMFT Code of Ethics, §4.2 Competence of Supervisees
¹⁴ Cal. Bus. & Prof. Code, 4982(l) It is unprofessional conduct to perform or hold oneself out as being able to perform, or offering to perform, professional services beyond the scope of the license authorized.
¹⁵ Cal. Bus. & Prof. Code, §4982, (marriage and family therapists) §4993, (social work) and §4999.90 (professional clinical counselors) prohibits supervisors from permitting any trainee, applicant, or registrant to perform, any professional services beyond the scope of the relevant license.
¹⁶ The scope of practice of marriage and family therapists, clinical social workers, and professional clinical counselors can be found in sections 4980.02, 4996.9 and 4999.20 of the Business and Professions Code, respectively.
¹⁷Cal. Bus. & Prof. Code, §651(a): It is unlawful to disseminate or cause to be disseminated any form of “public communication” containing a false, fraudulent, misleading, or deceptive statement.
¹⁸ CAMFT Code of Ethics, §10.1 Accuracy Regarding Qualifications
¹⁹ CAMFT Code of Ethics, §10.2 Assuring Accuracy
²⁰ CAMFT Code of Ethics, §10.4 False, Misleading or Deceptive
²¹ Tran-Lien, Ann, JD, “The New Associate Title: What Registrants Need to Know,” The Therapist, Jan. 1, 2015.
²² See also, Tran-Lien, Ann, JD, “Ten Advertising Mistakes Made by Therapists,” The Therapist, Nov/2017
²³ Cal. Bus & Prof. Code, §4984.9, requires a licensee or registrant to give written notice to the BBS of a name change, giving both the old and new names., within 30 days of the issuance of a new government-issued photographic identification. A copy of a current government-issued photographic identification, and the legal document authorizing the name change, such as a court order or a marriage certificate are also required.
²⁴ See also, Montgomery, Alain, JD, “Hiring an Intern in a Private Practice,” The Therapist, March/Apr. 2017
²⁵ Tran-Lien, Ann, JD, “Recent Labor Board Ruling Sets Precedent for California Internships,” The Therapist, May 2, 2015.
²⁶ “Tran-Lien, Ann, JD, “Waging a Claim over Wages,” The Therapist, June, 2016.
²⁷ State of Calif. Dept. of Industrial Relations website: https://www. dir.ca.gov/
²⁸ Cal. Labor Code, §2810.5
²⁹ Cal. Bus. & Prof. Code, 4980.02
³⁰ Cal. Bus. & Prof. Code, §4980.43.3 (4)(h) 31 Cal. Bus. & Prof. Code, §4980.43.3
³² See, Jensen, David, “Are Nonprofits ‘Commercial Enterprises’?” The Therapist, July/August 2013
³³ Cal. Bus.& Prof. Code, §4980.43.3 (4)(g)
³⁴ See, Jasper, Sara, JD, “Charging Trainees and Intern Employees for Supervision Part 1,” The Therapist, July, 2013
³⁵ Cal. Labor Code, §221
³⁶ Cal. Labor Code, §2802
³⁷ Cal. Bus. & Prof. Code, §4980.43.3(f)

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.