This presentation focused on how psychologists can better understand the process of licensing board complaints, available resources to psychologists in PA, what to do, what not to do, the Acculturation Model, and risk management strategies.

1. Ethics, Risk Management, &
Law
Complaints to the State Board of Psychology
John Gavazzi, Psy.D, ABPP
john.gavazzi@gmail.com @Dr_Gavazzi
Elizabeth F. Collura, Esq., Clark Hill PLC
ecollura@clarkhill.com (412) 394-2328
Shannon Edwards, Psy.D (Moderator)
dr.shannon.edwards@gmail.com @DrEdwards0711
Greater Pittsburgh Psychological Association
December 2016

2. www.ethicalpsychology.com
Easy to sign up Easy to follow and FREE
• More ethics education
• Daily stories on the nexus of
healthcare, psychology,
morality, philosophy, and
public policy.
• Daily email, tweet, Tumblr on
ethics
• Podcasts
• Ethics Vignettes
• Audio/video files
• Articles

3. Learning Objectives
1. Describe the process of a licensing board
complaint,
2. Outline resources available to psychologists in
the complaint process,
3. List several "do's" and "don'ts" in the
complaint process,
4. Explain the four domains of the Acculturation
Model, and,
5. Highlight three risk management strategies.

5. General Outline
• Risk Management and You
• Ethical Acculturation Model
• Risk Management or Quality
Enhancement Suggestions

6. What is Going On?
• Clinical Decisions
• Ethical Decisions
• Risk Management Strategies
• Legal Considerations

7. What is the process?
• Someone (usually a former patient) complains
about you
• Contacted by an investigator
• Expert Psychologist Reviews
• Attorney makes decision to prosecute
• Order to Show Cause

8. Investigator Contact Checklist
• Preserve Records, “Litigation Hold”
• Require Releases, and that Investigator Follow
All the Rules
• Check With Your Malpractice Carrier About
Coverage
• Listen, But Talk As Little As Possible

9. The Interview
• The tension between wishing to cooperate to
resolve a “misunderstanding” and the need to
preserve defenses
• Risk of aggravating adversarial situation
• Respectful, engaged participation

10. After the Fact….
• Please contact an attorney who knows
administrative law and how state board works
• Hiring a lawyer is not an admission of guilt, it is
accessing your resources
• Do not talk to the investigator without your
attorney present. The investigator will
understand (or should).

11. Administrative LAW
• A complaint against you is an adversarial
situation.
• Most psychologists are geared toward
cooperation, helpfulness, and beneficence.
• The difference between clinical psychology and
forensic psychology.

12. Rost v. State Board of Psychology
• Multiple levels of practice obligations
• Statutory requirements, ethical requirements
• Waiver of one does not necessarily waive others
• Obtain a legal opinion

13. Accountability Documents
• Rules and regulations of the State Board of
Psychology
• The Practice Act
• HIPAA
• American Psychological Association’s Ethical
Principles of Psychologists and Code of Conduct

14. The Process
1. Contact by an investigator– May be possible to
resolve at this stage if minor violations
2. Rule to Show Cause Order
3. Discovery– Requesting documents and other
information
4. Hearing before Board or Hearing Officer
5. Appeal to Commonwealth Court and
potentially Supreme Court

15. The State Can Amend or Add
Charges at Virtually Any Time

16. Burden of Proof– Preponderance of
the Evidence
When a party has the burden of proof on a
particular issue, its contention on that issue must
be established by a fair preponderance of the
evidence. The evidence establishes a contention
by a fair preponderance of the evidence if you are
persuaded that it is more probably accurate in
truth than not.

17. Appellate Standard
An adjudication made by the Board must be
affirmed on appeal unless constitutional rights
have been violated, an error of law has been made,
rules of administrative procedure have been
violated or a finding of fact necessary to support
the adjudication is not supported by substantial
evidence.
Batoff v. State Board of Psychology, 750 A.2d 855
(Pa. 2000)

18. Special Concerns
• Report to insurance panels
▫ Different requirements for each: e.g. on
notification of complaint, at imposition of
discipline
▫ Some have specific timing requirements (e.g.
within 30 days)
▫ “Complaints happen”– not reporting for fear of
consequences will virtually guarantee
consequences for not reporting

19. Standard for Discipline
• The board may refuse to issue a license, or may suspend, revoke or restrict
or license or reprimand a licensee:
▫ Failing to demonstrate the qualifications or standards
▫ Making misleading, deceptive, untrue or fraudulent representations
▫ Fraud or deceit in obtaining a license
▫ Gross incompetence, negligence or misconduct
▫ Submitting a false or deceptive registration
▫ Being convicted of a felony or its equivalent
▫ Having license to practice suspended, revoked, refused or other
discipline in other jurisdiction
▫ Being unable to practice with reasonable skill due to substance abuse or
mental condition.
63 P.S. § 1208

20. Standard for Discipline (contd.)
• The board may refuse to issue a license, or may suspend, revoke or restrict
or license or reprimand a licensee:
▫ Violating a lawful regulation promulgated by the board or a lawful order
entered in previous disciplinary proceeding.
▫ Knowingly assisting or advising an unlicensed person to practice
psychology, contrary to the Act or board regulations
▫ Committing immoral or unprofessional conduct (actual injury to client
not required)
▫ Soliciting services through coercion, duress, compulsion, intimidation
▫ Failing to perform any statutory obligation required of a psychologist
▫ Intentionally submitting false claims for payment
▫ Failing to maintain professional records
63 P.S. § 1208

21. Emergency Situations
• The board shall, without a hearing, temporarily
suspend a license under circumstances
determined by the board to be an immediate and
clear danger to the public health and safety.
• A license shall be immediately suspended if the
licensee is committed to an institution for
mental incompetence.

22. Potential Discipline
• Fines
• Cost of Investigation and Prosecution
• Continuing Education
• Public Reprimand
• Limitation of license , requiring practice under
supervision of other licensed professional
• Suspension of License
• Revocation of License

23. Potential Discipline (contd.)
• Require licensee to submit to treatment of
physician or psychologist
• Suspend enforcement of its findings and place
licensee on probation with the right to vacate the
probationary order for noncompliance
• Take other action as the board, in its discretion,
considers proper, including precluding
suspended licensee from engaging in counseling
or other form of mental health practice

24. Reporting
• Settlement of claims directly at the investigation
stage may not be reportable discipline,
depending on the circumstances.
• Settlement of claims once a Rule to Show Cause
has been issued will generally always be
reportable discipline, and will be admissible in
any subsequent disciplinary proceedings.

25. Common Issues and Trends
• Boundary issues
• Billing Issues
• Substance Abuse
• Records/documentation issues
▫ Informed consent and communication of policies
• Technology
▫ HIPAA compliance, diligence with IT security

26. Accountability
• Demonstrate that the psychologist practiced
below the standard of care.
• No one has to have been harmed in any way.
• Fiduciary responsibility and the frame of
psychotherapy and professional practice.

27. Who is the State Board
• Nine members, citizens of the US, and residents of PA
for three years
▫ 8 of whom appointed by Governor with confirmation
by Senate
▫ Commissioner of Professional and Occupational
Affairs is ninth member
• Two– “representatives of public at large”
• Six– licensed psychologists “broadly representative of
the practice areas of psychology”
• 4 Year Terms

28. Board Powers
• Approve applications and licenses
• Adopt and revise rules for practice
• To examine for, deny, approve, issue, revoke,
suspend, restrict, limit and renew licenses… and
conduct hearings in connection therewith
• Impose penalties and discipline

29. The Acculturation Model
One way of remaining a life-long
learner
Provides another way to discuss ethical
behaviors and decisions

30. Acculturation
A process to change the cultural behavior of an
individual through contact with another culture.
The process of acculturation occurs when there is
an adaptation into an organization or society.

31. Ethics Acculturation Model
• An outgrowth of positive ethics that integrates
personal ethics and professional obligations.
• Each mental health profession has a system of
distinctive norms, beliefs, and traditions.
• This set of beliefs is reflected in the respective
ethics codes; especially the overarching ethical
principles.

32. Acculturation as a Process
• Can be a complex process
• Some parts of a mental health professional’s
practice and lifestyle may be easily
acculturated while others not
• Process that will likely continue throughout
the education or career as a mental health
professional

33. Ethical Acculturation
Identification with personal value system
(higher vs. lower)
Identification with value system of psychology
(higher vs. lower)

34. Acculturation Model of ethical
development
Integration Separation
Assimilation Marginalization
Higher on Professional
Ethics
Higher on Personal
Ethics
Lower on Personal
Ethics
Lower on Professional
Ethics

35. Marginalized
Matrix: Lower on professional ethics
Lower on personal ethics
Risks: *Greatest risk of harm
*Lack appreciation for ethics
*Motivated by self-interest
*Less concern for patients

36. Assimilation
Matrix: Higher on professional ethics
Lower on personal ethics
Risks: Developing an overly legalistic
stance
Rigidly conforming to certain
rules while missing broader
issues

37. Assimilated Strategies
• Assimilated strategy attempts to be prevention
focused
• Assimilated strategies are often “fear based” –
where motive to avoid harming another or
incurring punishment for oneself, causes the
mental health professional to adopt legalistic
stances, which may harm the therapeutic
relationship

38. False Risk Management
Assimilated Strategies

39. What is a False Risk Management
Strategy?
A False Risk Management Strategy is an
action or intervention on the part of
psychologist that is meant to reduce liability
or harm, but usually does not.
Ironically, some of these actions or
interventions likely hinder the
psychologist’s ability to provide high quality
of care.

40. False Risk Management
strategies do not connect to
overarching ethical principles
Hollow attempt

41. • Informed consent only occurs at the
beginning of treatment
• Informed consent mainly involves the patient
to sign forms for risk management purposes
Informed Consent

42. • Self-disclosure is never appropriate by the
psychologist during psychotherapy or
assessment
• Self-disclosure is clearly a boundary
violation that is always wrong
Self-disclosure

43. • This is an important risk management
strategy
• This is the standard of care
• This strategy helps the patient from actually
harming him or herself.
No Suicide Contract

44. Separation
Matrix: Lower on professional ethics
Higher on personal ethics
Risks: Compassion overrides good
professional judgment
Fail to recognize the unique
role of the mental health
professional

45. Separated Strategies
• Separated strategy attempts to be promotion
focused
• Separated strategies are often “benefits-based”
– where the motive for promoting the well-
being of the patient causes the mental health
professional to be blind to ways that well-
meaning people can cause harm (e.g., loaning
money to patients)

46. Both biases fail to give adequate
attention or weight to the overarching
ethical principles that guide or need to
guide professional behavior
Problem with both strategies in
terms of ethical and clinical
decision making.

47. Integrated
Matrix: Higher on professional ethics
Higher on personal ethics
Reward: Implement values in context
of professional roles
Reaching for the ethical
ceiling
Aspirational ethics

48. In certain situations, we need to
construct or create a solution
instead of looking up the answer
in a sacred psychology text

49. There is an intuitive, non-rational
process in ethical decision-making
Why do psychologists still and continue to have sex
with their patients?

50. Research shows when emotions
run high, our judgments are
more likely to be extreme than
when our emotions are weak.
As psychologists, we know
individuals reason emotionally.
We need to pay attention to our
emotions during ethical & clinical
decision-making.

52. Emotional Components
Negative emotions related to
ethical and moral decision-
making
Positive emotions related to our
good decision-making skills and
ethical knowledge
• Fear
• Anxiety
• Disgust
• Disrespect
• Passion
• Calmness/Centered
• Empathy
• Respect/Sympathy
• Elevation

53. Quality Enhancement Strategies
The positive reframe on Risk
Management Strategies

54. Quality Enhancing Strategies
As the legal risks, the possibility of
treatment failure, or patient
complexity increases,
the greater the level of attention should
be given to quality enhancing
strategies.

55. Quality Enhancing Strategies
Consultation
Empowered Collaboration
Documentation
Redundant Protections

56. Consultation
 Technique oriented information
 Emotional reactions
 Reduction of emotional turmoil
 Thinking through solution together

57. Consultation
 Write down issues in advance
 Need to be open and honest
 Be willing to admit mistakes or clinical
errors

58. Empowered Collaboration
• Empowered collaboration builds upon informed
consent and attempts to maximize patient
involvement in all essential elements of
treatment
• The patient becomes more actively involved in
the process of psychotherapy. Greater
commitment leads to better outcomes.

59. Empowered Collaboration
 Empowering psychologists respect a patient’s
autonomy and decision making skills about the
goals of treatment, process of treatment, and life
choices.
 Examples of tough decisions and ambivalent
patients

60. Documentation: Legal Purposes
 Required by insurers, State Board of Psychology,
APA Ethics Code, etc.
 A record of treatment for future providers
 Useful risk management tool

61. Documentation: Quality Enhancing
 Dialogue with self and patient regarding process
and goals of treatment
 Means to identify pertinent clinical issues
 Procedure to document progress

62. Redundant Protections
Multiple layers of information in order to provide
the highest level of care
 Another health care provider
 Psychological testing or screening device
 Family member or significant other
 Consultation

63. Redundant Protections
 Additional sources of information
▫ Contact PCP
▫ Collateral session with family members
▫ Prior evaluations
 Supervision or Consultation
▫ Legal consultation
▫ Group or Individual
 Use of Psychotherapy notes to aid with self-
reflection

64. Redundant Protections
 Lack of progress in treatment
 Patient who presents as complex
 High risk for self-abuse, self-harm

65. Why Redundant Protections?
Avoid errors in judgment
Obtain essential information
Promote greater chance of success

66. Transparency
Implement quality enhancing
strategies with as much
transparency as possible.

67. Suggested Checklist
Patient Collaboration Self-Reflection
1. Does the patient think you have
a good working relationship?
2. Do my patient and me share the
same treatment goals?
3. Does the patient report any
progress in therapy?
4. Does the patient want to
continue in treatment?
1. Do I believe I have a positive
working relationship with my
patient?
2. Is my assessment of the patient
sufficiently comprehensive?
3. Do unresolved clinical issues
impede the course of treatment?
4. Have I documented
appropriately?

72. Questions and Answers
Discussion
Course Evaluations