When Psychologists Face the Board: Legal Support That Matters

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship.

Speaker 2: 0:08

If you need legal assistance about a legal problem contact an attorney.

Speaker 1: 0:12

Welcome back to Know your Regulator the podcast that inspires you to engage. I am your host, simone Murphy, and today we’re diving into a topic that affects every healthcare professional, whether you are newly licensed or you’ve been practicing for decades. We’re talking about the value of having the right legal support, specifically, how crucial it is to find attorneys who understand the regulatory world that healthcare professionals live in. Joining me is someone who embodies that dual expertise Dr Brian Russell, a licensed psychologist and a practicing attorney with a deep understanding of the pressures and the pitfalls that license holders face. Brian, thank you for being here today.

Speaker 2: 0:54

Thank you for having me. It’s a pleasure.

Speaker 1: 0:56

So let’s start with setting the scene for our viewers. Can you talk about what makes holding a professional license different from working in other types of careers?

Speaker 2: 1:04

makes holding a professional license, different from working in other types of careers. Yeah, being a member of a regulated profession has its pros and its cons. I mean, when you have to get a license to do what you do, it does create barriers to entry for other people, to not just anyone can then come into the field. However, it does add a layer of complexity to doing the work. It adds a layer of oversight that you have to be conscious of all the time how what you’re doing might be interpreted by the regulatory board that oversees your profession.

Speaker 2: 1:42

Where other professions painters, house painters don’t have that, don’t have to worry about getting a license to do it, unless maybe they just need a general business license or something in the state. But generally you know that would be an example of a profession where you know they could do a good job or not so good of a job, and that’s just going to affect how many people want to use them in the future maybe and what kind of reviews they might get on Google. But there’s not going to be this risk that a bunch of other painters who have gotten on painting licensing board are going to say you know, you didn’t measure up to the regulations governing the painting profession in our state, and so we’re going to take away your ability to keep painting, and so it does create a layer of concern that a licensed professional has to have really at all times when they’re practicing their professions.

Speaker 1: 2:38

Yeah, no, that’s very well said and I think that sometimes license holders just aren’t aware of that. Like you said, that’s kind of what separates them. They’re held to a higher standard. Not just everyone can jump into this profession. There’s some boxes that need to be checked and some education that needs to happen before. Another trend I kind of see going on is a lot of tools like AI models or chat GPT are being used to understand the rules and regulations that govern licenses, which that can give you information. But is it correct, is it factual, is it up to date, and does it even apply to your particular situation? Can you talk about what kind of misunderstandings that you may often see when license holders are trying to handle these regulatory issues with just general legal advice or poor legal advice?

Speaker 2: 3:36

Yeah, it’s interesting because with AI, I think there are multiple layers of concerns.

Speaker 2: 3:43

One of them is that putting information into an AI platform often causes the person to have to think about am I putting in anything that would be confidential information that might then become part of a database someplace or might sort of live in the cloud someplace that isn’t under my control anymore, and so essentially what I’ve done is I have made an unauthorized disclosure of the private information of a patient or a client and then, even if that’s taken care of and that’s not the case still it’s not infallible and my understanding of it and I’m not a tech expert by any means, but my understanding of it is it’s really only as good as the data that it has access to, the database of information that it has access to, and so it looks for similar things that are in the database and things that have basically been done in the past and it tries to match those up with what’s being asked of it today, and so you know it is susceptible to bringing back a result that is not really applicable to the current problem really applicable to the current problem.

Speaker 2: 5:09

So, for example, my understanding is that if you needed to find the length of the hypotenuse of a right triangle and you asked AI to do that and you gave the AI the lengths of the two perpendicular sides. It would look for the ways in which people have solved that problem in the past and it would find the Pythagorean theorem and it would put in the lengths of the two perpendicular sides as a squared and b squared and then it would come up with the c squared, the hypotenuse. But if it didn’t have access to the Pythagorean theorem, if it couldn’t find that anywhere for some reason, it wouldn’t be able to derive the Pythagorean theorem the way that.

Speaker 2: 5:48

Pythagoras did thousands of years ago, and then come up with the solution to the problem, and so who knows what answer it might give in that case, and so so you still have to look at anything that it might spit back at you and and really really do a reasonableness test to that. Does it really reasonably fit the situation I’m in? So you kind of have two layers of of concern there, the accuracy being being sort of the second one, and the first one being am I going to put anything in that is confidential?

Speaker 1: 6:24

Yeah, no, I think it’s, and it’s just being it’s kind of blowing up right now, being very widely used. And I wanted to touch on that because so often we see a lot of you know, potential new clients or you know just people with general legal issues who have said hey, I’ve gone on chat GPT and this is what it gave me, and oftentimes it’s not correct. Oftentimes it either doesn’t apply to the situation or it’s just not true because chat GPT doesn’t have the access that you know lawyers do and to that point you are a defense attorney for psychologists when their license are at risk, and this is what you’re doing day in and day out. What are the common scenarios that you’re seeing? Where professionals either didn’t seek legal help or they didn’t have the right kind for them.

Speaker 2: 7:16

Well, typically when somebody gets a licensing board complaint made against them, they get a letter from the licensing board that says you know, you’ve had a complaint made against you and we need you to respond to this complaint in writing and explain to us what you did and why and so forth and so on, in the next how many days and there’s a deadline. And there are a lot of people who look at that almost as something that they could probably handle themselves. They’re just asking for a response and especially if they don’t think they did anything wrong and they think they could explain it, that they think, well, I’ll just do that. And sometimes they’re kind of understandably upset that somebody would have complained about something they did when they were just trying to do their best good job that they could, and so they kind of want to, you know, get going on getting an explanation and writing and getting it sent back. And sometimes they even make the mistake of thinking that the licensing board is some kind of like professional association, like the APA, or something that is sort of more existing, you know, for the promotion of the profession and the members and so forth and so on, when the licensing board is really really more analogous to a law enforcement agency.

Speaker 2: 8:31

I mean, they’re really not.

Speaker 2: 8:32

They’re looking out for you, the licensee, they’re looking out for the public that the professionals who are going around with the license whatever it is, in this case licensed psychology license are practicing within the confines of the regulations in that state that govern the practice of psychology.

Speaker 2: 8:56

So they’re not looking out for the licensee, they’re looking for reasons to sanction the licensee, to punish the licensee or to take the license, even if it’s severe enough. And so it’s really not a good idea, in my opinion, for really anyone to be doing those responses to those letters themselves that they really need to, as soon as they become aware that there’s a complaint, to contact their insurance company, if they’ve got one, and they can read their policy and see exactly what the requirements are as far as you know if they need to contact them and how many days they have and so forth and so on. But then get an attorney on board who is well-versed in both the law and the subject matter of their profession and have that person then handle the dealings from then on with the licensing board about that matter.

Speaker 1: 9:54

Yeah, no, I think you are spot on. When you first receive that letter it may not seem, it can be intimidating, but it may not seem as serious as you know getting a notice that you’ve got a hearing scheduled or that you’re summoned to court at this date, but it is just as serious. You know it’s still with your board. Your board is governing your license. They’re asking you questions about your records, things like that Seen many a times, where someone thinks that it’s not a big deal, just like you said. It’s almost like they’re perceived as a trade association and I’m just sending in my records so that they know that things are fine. But the board’s going to comb through those records and they’re going to look for violations. They’re going to look for things that are wrong within that and you want to have protection. You want to know did you even have to send that? And an attorney who is specialized in administrative law who can protect your license? They know that board, they know the proceedings, they know what you are and aren’t supposed to send or say it’s so important to find someone who understands all of that. And you can do that by simply just asking them. When you’re consulting with an attorney, do you have experience with this board? Have you defended these types of licenses before? Those are really crucial questions that you can ask to just find out. Is this the right attorney for me? Is this the right attorney for me? Is this the right attorney to protect my license?

Speaker 1: 11:28

A very small you know, minor thing can turn huge. I have personally seen here at the firm we’ve had a you know someone come in after they hired an attorney that was not specialized in defending professional licenses and they had a separate case that that attorney was handling. So it probably seemed easier that they just you know, hey, can you handle this one too? They were given poor advice. They were told that the outcome of one case wouldn’t affect their professional license and when they went to go and renew, lo and behold, they were denied and they had to come to us. We kind of had to unravel things.

Speaker 1: 12:12

But if they had not received poor advice in the first place, they may have been able to get ahead of that or just known the odds of being able to be granted that license and continue working in that field on a separate, on the other side of that coin, as an attorney and I’m not an attorney, but as an attorney, when you take on a case that you know that you don’t have the legal knowledge or you know just understanding of that type of law, you are opening yourself up to a complaint, you’re opening yourself up to be reported to the board, and I mean it can get really complicated. It’s just not a situation where you as a license holder or you as an attorney, practicing attorney want to find yourself in. So it is crucial that you find someone who does specialize and they know what to expect and what they need to defend against.

Speaker 2: 13:14

That’s right. That’s right. You know, when you get into these licensing board cases there are multiple people involved. Typically there’s an investigator involved who is sort of the one who’s charged with collecting the information and sort of aggregating it and summarizing it and getting that over to the board. And then there are board members who are members of the profession also, who have volunteered, typically to serve on the licensing board, and then there are administrative people who work in the board’s office, who typically are involved in sort of sending things out and receiving things and communicating back and forth. And then there are lawyers at some point involved on both sides, the state’s side as well.

Speaker 2: 14:04

There are lawyers who work in the state government who basically have the boards of the various professions as sort of their clients, and when it gets down to the business of actually doing an administrative process or making a settlement agreement or something, they get involved. And so you have all these people involved who have varying degrees of knowledge of the law and the profession. So you’ve got some people like the board members, who know the profession really well they’re members of it, but they don’t necessarily know all of the law as well as you would like and then you have the investigator, who maybe is a former law enforcement or something, and now they’re doing investigations for the professional licensing boards of the state and they know a lot about how to investigate things, but they don’t necessarily know really that much about the profession, and so they have to be educated a little bit about whether something that looks to them like well, that sounds a little weird, was really really weird for that profession or it wasn’t. And then you’ve got the lawyers involved on the state side who you know they may know a lot about the law but again, not as much about the profession, and so it really is important that the counsel that you have knows the both. They know the law and they know the profession.

Speaker 2: 15:19

And if you have a person like that at that very first juncture where you get the letter and letting you know as a licensee that you’ve got a complaint, if you handle that right, you might be able to end it at that with the response basically allaying all concerns anybody would have that maybe you did anything wrong and basically providing all of the information that anybody could want to know about that situation, to the point where people are satisfied that okay, there’s nothing here and we’re just going to drop it at this point, and that’s certainly the goal. But you also could go the other way with it, where, if you don’t handle it right, you could not only increase the concern about whatever the complaint was about, but you could introduce new things, like you said you could. You could reveal more information than you should in the complaint response that you would send in if you did it without the right kind of help. And also there are even sort of nuances with that where you can show in the manner in which you respond that you’re somebody who is cognizant and caring a lot about the regulations. For example, if somebody makes a complaint in which they reference somebody else who was involved, maybe in the therapy, but is not complaining so maybe it’s a kid, maybe it’s a spouse or something and there was couples therapy at one point For you to be very careful about revealing confidential things about those third parties in the response, confidential things about those third parties in the response.

Speaker 2: 17:02

The third parties who aren’t complaining against you haven’t made any complaints about the quality of care that they got, and so you know to not be just just, just just liberally handing out a bunch of information about people who haven’t asked to be involved in this sort of shows, that you are somebody who’s cognizant of wanting to protect the rights of everybody and wanting to be involved in this sort of shows, that you are somebody who’s cognizant of wanting to protect the rights of everybody and wanting to be careful and cautious, and so forth, and just that in itself says something.

Speaker 2: 17:27

If you say you know, I’m going to use initials when I’m talking about this other person, even though the complainant, you know, referenced this other person, I’m going to be careful about revealing things about them, because they haven’t asked to be involved in this and I want to be cognizant of their ongoing you know, privacy rights. And then maybe the board comes back and says, well, we have a right to have that too, and we want you to give it over. Okay, but but. But maybe they do. But at least you’ve shown that you’re trying to be cognizant of everything and that says some good things about you that are sort of separate and apart from whatever the subject matter of the complaint might be.

Speaker 1: 18:08

Yeah, that’s a great point. This is oftentimes the board’s first impression of you and so, responding with that, like you said, the cognizance of your profession and those rules that govern your license is crucial, you know and having that support before you get even receive a complaint is essential. It’s just essential protection for your license and your livelihood.

Speaker 2: 18:46

Yes.

Speaker 1: 18:47

So let’s talk about solutions. What does it look like when a healthcare professional has the right legal team?

Speaker 2: 18:56

Well, so one of the things that I’ve noticed in the recent months here in 2025, that is sort of a new, a new trend, and it may not be a national trend. I’m licensed in several states, not just Texas, and so maybe this trend that I’m going to mention is one that I have not actually seen in Texas yet, thankfully, but other places. There seems to be a tendency sometimes for people on the board to sort of get a little bit of a fuzzy line between what is law enforcement, what is really looking to see if the conduct of the licensee went below sort of the minimum floor standard that is set by the regulations of the profession, and they kind of drift a little bit into almost like what psychology graduate students would get in group supervision, with the faculty sitting there basically sort of critiquing and questioning and second guessing the way in which you know the psychologist went about handling a particular case, the techniques that they used and so forth and so on. And it’s really important that the lawyer be well-versed enough in the profession to notice that that wait a minute, you’re coming down on this person because they didn’t do things exactly the way that you would have done them, but you’re not pointing to specific behaviors that violated specific regulations and so you really ought to not be trying to discipline this person for that. You can make comments if you want to and say hey, you know, I think I would have handled this some different way, but you’re really not.

Speaker 2: 20:49

This is not grad school and we’re not backing group supervision here. This is law enforcement that we’re doing here, and you have to be able to point to a specific regulation and say this specific regulation we think was violated by this specific act or omission of yours, so that then we all can look and see did that happen? Was it a violation? And if it isn’t that, if it’s really just somebody thinking, well, I don’t really like the way the person did this. I think they should have done it differently.

Speaker 2: 21:22

So I’m going to try to give them some kind of remedial remedial things to do, make them go to some additional continuing education. I’m going to try to basically do some some discipline here. The attorney needs to be able to step in there and go to wait a minute. Wait a minute. This, this is just a professional difference of opinion. Actually is all we’re having here, and that might be a situation in which you might have to bring in an expert on behalf of the licensee to be able to say look, this is not maybe the most common way to have handled that situation, but it is not a there’s no consensus.

Speaker 1: 22:03

It’s not against the law.

Speaker 2: 22:05

It’s not against the law and, beyond that, even there’s no consensus in the profession that that’s a bad way to handle it. You can find faculty members at the university. You can find books at the university. You can find books. You can find experts online who would say that that’s a perfectly legitimate way to handle that problem under certain circumstances and these were the circumstances and so it’s not even the case that this was an ill-advised way to handle that under these circumstances with this client, in this case, that the therapist was dealing with this patient, and so it’s something that if you have an attorney who maybe knows the administrative law process but doesn’t really know all that much about the profession, might not necessarily pick up on that as quickly as somebody who does have both.

Speaker 1: 22:57

Yeah, no, totally. It’s really not just about understanding the law too. It’s about understanding, like you said, the profession, the high stakes, the emotional surge of everything that’s going on in the regulatory setting. It’s a lot. It’s a lot going on at one time and, like we mentioned earlier, as a professional time, and you know, like we mentioned earlier, as a professional, you’re held to a higher standard. There are rules that govern you and you know you’ve got to understand them and make sure that you can avoid these things or find someone who can translate that for you, so that you know that you’re in compliance already and you’re not at risk for a complaint or opening up any doors in which you could have, you know, a complaint come in. So what advice would you have for health care professionals who are listening in today, who either may be facing a complaint or they want to stay proactive and avoid receiving a complaint? Yeah, well, I think, as a member of a licensed profession.

Speaker 2: 24:01

For better or for worse, you have to have in your mind all the time the fact that there’s a licensing board out there who oversees your profession and could at any time find themselves asked to look at what you’ve done and see if they feel comfortable with it. And so I think having that in the back of your mind all the time is a good idea when you’re doing your practice, when you’re doing your paperwork, you’re doing your notes, to really be cognizant of the regulations in your jurisdiction and really think about what if this note that I’m writing on this client, even though I’m in a hurry and it’s Friday afternoon and I’d like to get on about my weekend? But what if the licensing board looked at this? Would it have all the elements it’s supposed to have? Would they clearly be able to see when it was and who it was and how long it was and what the diagnosis was and what we did? And would somebody who was coming behind me looking at that without me there be able to know all of the things that they’re supposed to be able to know from my documentation? So there’s that Then.

Speaker 2: 25:12

I think not scrimping on insurance is important. There are some people who think you know I don’t really know anybody who’s had a licensing board complaint recently and I haven’t had one in my career, and so you know I’m renewing my insurance here and it’s giving me different options of different amounts that I could buy in terms of legal fee reimbursement if I get a licensing board complaint, and maybe it starts at $25,000 and it goes to $50,000 and something above that maybe, and I think I’m going to go with the lowest because I just think that that’s plenty and I just don’t think I’m going to need it anyway.

Speaker 2: 25:50

The difference sometimes in those premiums is really very low. It’s a tiny amount. And so I would encourage people to really think about that and maybe think about erring on the side of having more than less licensing board defense coverage and they can talk with their insurer about that and they can talk with their colleagues if they want to and see. But I think not scrimping on it or certainly not going without it, is a smart idea. And then once they do have reason to believe that there might be a complaint, really looking at that insurance policy and seeing what their duties are, to let the insurance company know about that, to make sure that they don’t give the insurance company a reason to not give the coverage because, well, you didn’t let us know in the time that you were supposed to, so now we don’t have to cover that. You don’t want that situation.

Speaker 2: 26:40

And some of the really reputable insurance companies they actually have lawyers on staff who will help an insured to figure out, ok, how serious is this? And sometimes those folks know attorneys in the jurisdiction who have done well for their insureds in the past and and they can make recommendations, and sometimes, sometimes the insurance policies require that. But but a lot of them at least at least offer to give you, give you, if it requires it or not, that they are willing to give you recommendations of folks, and that can be good. And then to to get somebody on the phone with you ASAP. An attorney that is is highly recommended as being somebody that knows both your profession and the law, because I’ve had people who get those letters from the board saying you’ve got a complaint against you and we need a response in 30 days and they just sort of put their head in the sand. They’re scared, understandably. It’s their profession, it’s their livelihood on the line of put their head in the sand. They’re scared, understandably, it’s their profession, it’s their livelihood on the line and instead of doing the thing that you would think, which would be to jump on it immediately, they just sort of go into denial mode about it and then they finally get on the phone with me when there are, you know, seven days left before the deadline and there’s just not any way that I can do in a week, typically because I’ve got other cases and other things going on, the kind of a response that I would be proud of.

Speaker 2: 28:05

And so I have to say to those people look, I would love to represent you, but I can’t agree to that right now until we see if we could get an extension, and whether I represent you or not is going to have to be contingent on that.

Speaker 2: 28:19

We’re going to need another 30 days or 60 days or whatever, I think, depending on how complex the case is. And I think, gosh, you know, if you just would, especially if it’s a simple one, relatively simple one, I think, gosh, if you just would have contacted me the day you got that letter or the very next day, we probably could have gotten the response in on the original deadline or before, and then you would be out of this, you know, a month or months sooner on the other end of the process, which can drag on for a while, because the boards get backed up and so forth, and especially if it’s not that serious, sometimes it gets sort of backburnered because they have more serious ones. And so getting on things early, getting on things sooner rather than later, would be sort of my last piece of advice.

Speaker 1: 29:05

Yeah, no, really great points you made there. Absolutely explore what your professional liability insurance because you should have it, you should be getting it. Explore your. You know exactly what your policy covers, Exactly what your policy covers.

Speaker 1: 29:24

And I love that you mentioned those in-house attorneys, because a lot of the insurance companies do have those in-house attorneys who can at least assist you in the beginning. It’s a great place to start when you’re looking for tools. And then, yes, it is so crucial to find an attorney before any of this happens. If you can find an attorney who can do compliance, consulting, you know legal auditing hey, does everything look good? Am I at risk for a complaint? Is the way that I’m doing my client contracts in compliance with the board? That prevention is so much more affordable and so much less traumatic than the defense it really just is, and you can save yourself so much heartache and so much stress and anxiety by, like you said, as soon as you get that letter, doing your due diligence.

Speaker 1: 30:17

Look at your professional liability insurance and contact an attorney who specializes in this type of law. And you can find that out by asking two simple questions have you handled a case like this before and do you practice this type of law, Do you defend these types of professionals? This type of law Do you defend these types of professionals? So absolutely great advice. Thank you so much, Dr Russell, for joining us again and bringing your knowledge and expertise to our episodes. It’s been a great conversation, I think, with lovely takeaways for those psychologists to really go out in the field and know that they’ve got support should they need it.

Speaker 2: 31:03

Thank you very much for having me. I think this was an important discussion. I hope that it helps some people.

Speaker 1: 31:08

Me too. Me too, and to our viewers. Whether you are just entering the profession or you’ve been in practice for years, don’t underestimate the power of specialized legal support. Your license is your livelihood. Protect it with people who understand exactly what’s at stake. Check out the links below in our description for more information on Dr Russell and his practice, for more insights and resources on how to safeguard your license. Make sure to like, follow and subscribe to Know your Regulator. Until next time, stay inspired and continue engaging with your regulatory agency. Know your Regulator the podcast that inspires you to engage.