Texas Psychological Association sues Board of Examiners over competition

The president of the private group Texas Psychological Association has just filed suit against the Texas psychology board, seeking a temporary restraining order to stop the board from moving forward with new rules which would have the effect of promoting more free enterprise in the area of psychology.

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The plaintiff, TPA president  Dr. Carol Grothues, wants to stop this good effort.  The reason?  Aside from trivial (in my view) procedural complaints, the law suit contends the rules would be bad for business for licensed psychologists because they would lower the price for services and increase competition by increasing the number of service providers.

“You can’t make this stuff up,” is a phrase that fits here.

This is the most remarkable law suit I have seen in the anti-trust area:  A cartel suing the government because the government is limiting the power of the cartel.

One of the new rules would allow masters-degreed psychologists to practice psychology independently, without having to pay money to and be “supervised” by a doctoral-level psychologist.  I consider this practice to be a “protection fee,” in essence, and at a minimum an anti-trust violation.  But the psychology board is proposing to do away with it, which is good.  Dr. Grothues is suing to put a stop to this good development.

Dr. Grothues’ letter to the members of the TPA is here and here or google “Texas Psychological Association” and scroll down.

I consider this a very good development for all helping professions because it shows the public how far the psychology cartel will go, including against “its own” state agency.  At a minimum I believe the law suit will diminish the power of these professional organizations over state government.

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Texas Legislature and Governor ignore Fifth Circuit decision on infringements of free speech contained in psychologist licensing laws

Press Release for Immediate Distribution

AUSTIN (June 16, 2017) — Austin attorney Mary Lou Serafine denounced Governor Greg Abbott’s signing HB 3808 into law late afternoon June 15 saying the bill carried a new definition of the “practice of psychology” that is worse than the old one struck down by the Fifth Circuit Court of Appeals in her case Serafine v. Branaman. The new law, which goes into effect on September 1, enables a state agency to determine when people are practicing psychology so as to enforce a licensing regime.

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“By the time this law goes into effect, Texas will have survived nearly 20 months without any catastrophic effect from the Fifth Circuit’s overturning of the prior definition. HB 3808 outlaws broad swaths of opinion, advice and ideas about life if they are discussed without an expensive state license during a ‘relationship’ only the Texas State Board of Examiners of Psychologists can identify,” Serafine said. “Only the Board will know what counts as a ‘professional relationship’ and they won’t decide what that is until someone stands – at their sole discretion – in trouble before them.

“This is an egregious chilling of free speech for coaches, hypnotherapists, spiritual healers, business coaches, athletes, curanderas, positive thinking coaches, internet programs, masters-degreed psychologists who are currently prohibited unless ‘supervised,’ and countless others,” Serafine said. “They will be forced to operate under the radar or to avoid many fruitful topics of psychological science out of fear of agency action. They will never know what rises to the level of offense to be brought before the Board until they are there, under threat of civil penalties and the certainty of sky-high legal fees. In this environment, most people will never venture into advice-giving — which is the exact outcome sought by the Texas Psychological Association so as to secure a monopoly for their members on free speech involved in counsel and advice.”

Serafine contends that psychology boils down to thinking, ideas and speech about life and the mind and therefore is protected by the First Amendment.

In its Serafine v Branaman judgment in early 2016, the Fifth Circuit Court of Appeals wrote:

The ability to provide guidance about the common problems of life—marriage, children, alcohol, health—is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment. By limiting the ability of individuals to dispense personal advice about mental or emotional problems based on knowledge gleaned in a graduate class in practically any context, subsection (c) chills and prohibits protected speech. But that is precisely what the overbreadth doctrine is meant to prevent.

Serafine advocates for certification programs instead of licensing as a solution:

“Private associations such as the Texas Psychological Association should run their own certification program instead of infringing on others’ civil rights,” Serafine said. “Certificate holders could 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.”

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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.

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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.

 

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