Serafine calls for veto of HB 3808

Mary Lou Serafine criticized HB 3808 as a Trojan Horse in the following op-ed in the Houston Chronicle.

Serafine: Licensing of psychologists is a fix for a problem that doesn’t exist

Gov. Abbott should veto HB 3808

Texas House Bill 3808 is carrying within it a bad amendment, one that unconstitutionally infringes free speech and limits health-care freedom. The amendment does this by redefining the licensed “practice of psychology” so that a broad swath of opinion, advice and ideas about life are now outlawed if they are discussed without an expensive state license during a “relationship” only the government can identify.

Continue reading “Serafine calls for veto of HB 3808”

The amendment recites a long list of things that are prohibited to provide to a client, unless you have a license. But all of them boil down to prohibiting conversations on myriad topics about how to cope with the troubles and joys of life, if those conversations occur in a “professional relationship.”

 

What counts as a “professional relationship”? Only the Texas State Board of Examiners of Psychologists would know, and they would not decide what it is until someone is in trouble before them.

Last year, a federal court struck down as unconstitutional Texas’ previous definition of the practice of psychology, rendering it unenforceable, because it infringed the freedom of speech. The federal case is Serafine v. Branaman. The new definition is worse than the old one and equally unconstitutional. You would be engaged in the unlicensed practice of psychology if you engaged professionally in “description” of human behavior. The rest of the amendment is incomprehensible to the point of meaninglessness.

Does the government know how to tell who can best talk and advise about life’s joys and problems? No. The last thing we need is government bureaucracy spreading into this area.

This bad amendment was tacked on to the opening text of HB 3808 in the last days of the legislative session. The opening text – like a true Trojan Horse – does not harm the people of Texas too much beyond how they are already harmed by having to pay off other people’s debts – people who don’t need the help. Right now taxpayers pay parts of the educational loans of young psychiatrists, psychologists and counselors, under certain conditions. HB 3808 adds more people to the list of those getting the free money – adding marriage and family counselors.

Government licensing schemes for mental health do no more than create monopolies and cartels in which the licensees’ boards drive others out of business. The licensees then charge higher prices than they otherwise would in a free market. How great a deal for them that we subsidize their school loans!

Health freedom is a better idea, especially in mental health. It refers to allowing people a choice in addressing the problems of life. Some people prefer practitioners outside the conventional system. They want coaches, hypnotherapists, spiritual healers, business coaches, athletes, masters-degreed psychologists (currently prohibited unless “supervised”), curanderas, positive thinking coaches, internet programs and countless others who are forced to operate under the radar or in fear of agency action based on definitions such as the one inside House Bill 3808.

The governor should veto this bill. This will give Texas the chance to reach the right solution – certifying psychologists, which would not infringe the freedom of speech.

Serafine is the Austin attorney who brought the Serafine v. Branaman case. Serafine ran for Texas Senate in 2010. She sued the Texas psychology board after it required her to change campaign materials in which she called herself “an Austin attorney and psychologist.” She had taught psychology and published research papers in psychology, but was not licensed to practice in Texas. She prevailed at the Fifth Circuit.

 

Texas Special Session should be very short: “Let the sun set on helping profession boards”

Mary Lou Serafine urged that Texas should shutter four regulatory boards in this op-ed today in the San Antonio Express-News and Laredo Morning Times

Let the sun set on these boards of helping professions

By Mary Lou Serafine

Marriage and family therapists, social workers, counselors and professional psychologists will be lighting up phones at the Capitol in coming days as they try to save their regulatory boards from extinction as a result of each one failing its sunset review.

Tellingly, not a single citizen will be calling his legislator crying, “We want higher prices and fewer choices! Please keep these boards!” 

The Legislature should let these boards expire. We don’t need them.

Continue reading “Texas Special Session should be very short: “Let the sun set on helping profession boards””

The helping professions — clinical social work, psychology, counseling and therapy, no matter what the name — all work in one way: through ideas, opinions and advice about the mind and life itself, transmitted through speech.

The American Psychological Association’s website has advice for people who need help. They recommend, “Talk to a psychologist.” I emphasized the word “talk” because that is what these professions do. And nothing more — at least nothing that can be articulated into a body of fixed principles.
 
None of this trivializes what these good people do. But government has no business passing laws in this field. Indeed, the First Amendment prohibits government from infringing freedom of speech, which includes the freedom to think and to share ideas.
 
This is why the federal court in the 2016 case of Serafine vs. Branaman struck down as unconstitutional the main part of the Texas psychologists’ licensing act.
 
In my view, such laws infringe the freedom of speech because no matter how you try to define the “practice of psychology,” it boils down to thinking, ideas and speech about life and the mind. This is protected speech and thought. The last place we need legislation — and these boards have actual criminal authority — is in the area of the mind and how to live your life.
 

What is the real purpose of these boards in psychology, social work, counseling, and marriage and family therapy? To divide up the market for helping services among a few cartels that drive their competitors out of business.

Regulation is the very cause of the claimed shortage of mental health services in Texas.

In reality, thousands of capable people — inside and outside conventional thinking about “therapy” — are available, but they are operating with one hand tied behind their back and are in fear of being reported, investigated, prosecuted, and destroyed.

People should have the freedom to choose unlicensed help, including from life coaches, hypnotherapists, spiritual healers, business coaches, athletes, masters-degreed psychologists (currently prohibited unless “supervised”), curanderas, positive thinking coaches, or internet or teletherapy programs.

Texas legislators should think about what will happen if these four boards are eliminated.

The answer is, nothing bad.

Private associations such as the Texas Psychological Association will run their own certification program. So will the other professions. Certificate holders will advertise themselves as such, and the public will enjoy more health care freedom and will seek more services at market rates.

Schools, hospitals, prisons, insurance companies and state programs can choose to fund only certificate holders.

Texas has the chance to lead the nation in this area of freedom. These boards should sunset.

Mary Lou Serafine is the Austin attorney who brought the Serafine vs. Branaman case. Her website is www.mlserafine.com

Can Texas legislators ban words?

A Letter to a Basketball Psychologist

by Mary Lou Serafine

I sued the Texas psychology board after they ordered me not to practice psychology or write words on my website saying, “Mary Lou Serafine is an Austin attorney and psychologist.”  They said I first needed a license in psychology.

As a result, the U.S. Court of Appeals for the Fifth Circuit struck down major parts of the Texas psychology licensing law as unconstitutional. The court agreed that the the law violated my first amendment right to freedom of speech.  The case is Serafine v. Branaman (2016). I’ve written about it here and here.

Later a reader who didn’t want to “get in any trouble” emailed me and said:

I work with basketball players at every level. Built my program from a biblical foundation and Basketball psychological approach.  Just so I understand, can I call myself a basketball psychologist?

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I wrote back:

Dear Coach,

Of course, yes.  In America, we can call ourselves whatever we want—an astrophysicist, a war hero, a golf psychologist, a former unicorn in another life.  Because the question is not, Can I call myself a basketball psychologist? but rather, Can the government decide that I’m not who I say I am, and then tell me not to say that?

The answer is no.  The government can’t decide what is true or false about who we are, what we do, or what we call ourselves.  The First Amendment guarantees we’ll never have a Board of Truth to decide these questions.  There are no wise angels to sit on a Board of Truth.

But unfortunately there are still “Boards of Truth” running occupations such as psychology, counseling, nursing, accountancy, engineering, etc., and they have appointed themselves the wise angels, in my metaphor.  They have lobbied our state senators and representatives—people we actually voted in—so that laws have been passed letting these occupational angels keep certain words for themselves.

So if you call yourself a psychologist, accountant, or engineer, without getting their permission by obtaining an expensive license, the Boards of Truth as I call them will probably come after you.  They threaten huge fines.  They claim to own even variations on the forbidden words—psychologically, psychology, accounting, etc.

When they threaten big fines, ordinary people can’t fight back.

These boards are enforcing unconstitutional word-bans.  State legislators seem blind to the constitutional violation.

No one should think these boards are just going after false advertising.

They go after honest advertising.  They go after speech that isn’t advertising at all.  The Texas Attorney General’s lawyer stated in court, at the opening of the trial in Serafine v. Branaman, that “allowing just anybody to say ‘I’m a psychologist’ can mislead members of the public.”  So they tried to ban a whole sentence, not just a word.

The law on the books said that calling yourself a “psychologist” means that you are “practicing psychology”—itself a crime, without a license.

But how would you know if you were “practicing psychology”?  As background, remember that the law has to be clear, not vague or overly broad, so that the citizen knows what he is allowed to do.  He doesn’t have to stay in the dark, or go to the government, hat in hand, to ask if what he’s saying is OK.

But not even the psychology board’s Chairman, Dr. Branaman, could tell us what the “practice of psychology” is in the law, when we asked him under oath.  My lawyer said:

Well, what I’m trying to understand is when does advice about life’s challenges cross the line from — into the practice of psychology, because I can’t figure that out based on what we’ve discussed.

There was no clear answer, so my lawyer went on:

But golf coaches, for instance, give advice about the psychology of the game and how to control your thoughts in order to improve your — your behavior on the golf course?

Dr. Branaman: They might.

Q. And assuming they’re not calling themselves psychologists, wouldn’t that nevertheless come under the purview of the act?

Dr. Branaman: I think I’d have to know the context of the specific case.

Q. Well, how — how would one read the statute and then determine if what they’ re going to do violates the act? I mean, if they’re — if they’re engaged in what I just described, golf coaching, talking to players about the psychological aspects of the game.

Dr. Branaman: To the best of my knowledge, we’ve never had a complaint filed in that regard, so I don’t know. 

Q. But in looking at the statute, can you tell me right now if that — if that would be covered?

Dr. Branaman: I would need to know the facts of the case.

Q. Well, they’re as I’ve represented them to you.

Dr. Branaman: Well, I would I would be looking for more collateral data if you came to me with a case based on that representation. I would be saying to you, just as I am now, I don’ t know. I need to know more about this.

For precisely this type of reason, the higher court in Serafine v. Branaman struck down the Texas definition of the practice of psychology “on its face,” as it applies to everyone.   But the Court did not strike down the word-ban on “psychologist” except “as applied” to me only.

Coach, I’m not able to give you legal advice on what you should “call yourself” and where, when, or to whom you can do that.  Even so, it depends on what state you or your players are in.  The Serafine v. Branaman decision doesn’t officially apply right now in 47 states.  It officially applies only in Texas, Louisiana, and Mississippi.

The Texas legislature starts meeting today, January 10, 2017.

Although I’ve recommended they create only a voluntary certification for psychologists, they might write a new psychology license.  Whether it’s constitutional is another matter.

Thanks for writing, Coach.

All the best,

Mary Lou Serafine