Department of State
Division of Professional Regulation
3500 Board of Examiners of Psychologists
ORDER
final
After due notice in the Register of Regulations and two Delaware newspapers, a public hearing was held on March 7, 2005 at a scheduled meeting of the Delaware Board of Examiners of Psychologists to receive comments regarding proposed Regulation 17.0. The proposed regulation identifies crimes substantially related to the practice of psychology. The proposed regulation was published in the Register of Regulations, Vol. 8, Issue 7, January 1, 2005.
As the result of the comments received on March 7, 2005, the Board decided to review the proposed regulation further. A revised list of related crimes was developed at a subsequent subcommittee meeting held on March 21, 2005. The Board approved and adopted the subcommittee’s recommendations at a Board meeting held on April 4, 2005. The revised list of crimes includes substantive deletions and clarifications from the proposal originally published in the Register of Regulations, Vol. 8, Issue 6, on December 1, 2004.
After due notice in the Register of Regulations and two Delaware newspapers, a second public hearing was held on June 6, 2005 at a scheduled meeting of the Delaware Board of Examiners of Psychologists to receive comments regarding proposed Regulation 17.0.
Background
Under Title 24, Chapter 35, one of the qualifications for licensure as a psychologist or psychological assistant is that the applicant shall submit evidence verified by oath and satisfactory to the Board that that the applicant “has not engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter and has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has previously been or is currently licensed.” 24 Del.C. §3508(a)(4). 24 Del.C. §3514(a)(2), as amended by SB 229, provides that a practitioner shall be subject to disciplinary action set forth §3516 if, after a hearing, the Board finds that the psychologist or psychological assistant “has been convicted of a crime that is substantially related to the practice of psychology or a crime involving the violation of a patient's trust; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefore.” “ ‘Substantially related’ means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of psychology.”
The Board’s authority to promulgate rules and regulations implementing or clarifying specific sections of Chapter 35 is set forth in 24 Del.C. §3506(a)(1). The specific mandate for this rule is set forth in 24 Del.C. §3506(b). The proposed regulation specifically identifies those crimes which are substantially related to the practice psychology.
Summary of the Evidence and Information Submitted
1. The affidavits of newspaper publication for the March 7, 2005 hearing were marked as Board Exhibits 1 and 2. The written comment received at the March 7, 2005 public hearing is summarized as follows:
Melvin Slawick, Chief of Support Services, Public Defenders Office, submitted an e-mail that was marked as Board Exhibit 3. Mr. Slawick interpreted the rule as preventing “anyone convicted of anything” from becoming a psychologist. He found that to be “an amazing position when you consider it is supposed to be a helping position.”
He submitted further that [the public Defenders’ Office] employs many psychologists as consultants to help clients but that practice should stop if the rule is adopted because a client with a conviction would not be eligible for licensure no matter how well they did. He questioned how the “vote was determined” and “what is the point if no change is possible”, which he interpreted to be the Board’s position.
Priscilla Putnam, Ph.D., submitted a letter dated February 6, 2005 on behalf of the Delaware Psychological Association which was marked as Board Exhibit 4. Dr. Putnam raised four points. First, Dr. Putman submitted that the practice of psychology is based on empirically based research, which guides clinicians is their professions, and questioned what empirically based research demonstrates that the regulation would improve the practice of Psychology in Delaware.
Second, Dr. Putman questioned why the Board was changing the tradition of having the ethical practice of psychology in Delaware governed by the ethics guidelines of the American Psychological Association (“APA”) which lists offenses such as fraud, conviction of a crime that is substantially related to the practice of psychology or a crime involving the violation of a patient’s trust, or abuse of drugs or alcohol. She questioned why the Board was including a new list of laws and regulations many of which she believed have no bearing on the practice of psychology.
As a third point, Dr. Putnam submitted that the 2003 code of ethics of the APA, applies only to the activities of a psychologist that are part of their scientific, educational or professional role as psychologists, distinguished from their purely private conduct. She stated that the code of ethics has been sufficient to monitor the activities of psychologists in the nation across the decades and questioned the need to change it now.
Finally, Dr. Putnam stated that many of the laws listed in the proposed rules and regulations are not relevant to the practice of psychology and others are ambiguous. She questioned what mechanism exists to determine which laws are relevant, what role context plays, what individual circumstances may mitigate against loss of license, and what mechanism exists for reinstatement of a license.
2. The verbal comment received at the March 7, 2005 public hearing is summarized as follows:
Dr. Joseph Zingaro gave a brief recitation of the history of the profession of psychology’s reliance on judgments, theories, and research based on the collection of objective evidence to the extent such evidence is known. Newer data leads to refinement or abandonment of older theoretical positions consistent with the ethical principles of psychologists. Psychologists use research methodology to shed light on and take positions on such difficult and emotion-laden topics as racial and sexual discrimination, the effects of having an abortion, school based discrimination, i.e., hearings on desegregation, media violence and children, and children and the use of medication such as Ritalin. He stated the APA provides standards for resolving conflicts between ethical responsibilities and the law, regulations, and other governing legal authority.
Dr. Zingaro submitted that most of the crimes listed in the proposed rules and regulations are likely to generate little debate that they are heinous and reflect a disregard for human life, let alone that they are related to the practice of psychology such as unlawfully administering drugs, murder, incest and bigamy. However, in his opinion some of the crimes listed do not seem to be substantially related such that a conviction for one of them would automatically result in the revocation of one’s license to practice psychology. As an example, he cited an employee’s sale of tobacco to a minor and the possibility of an owner being held accountable for something done by an employee.
Dr. Priscilla Putnam addressed the Board and raised a concern that no distinction is made between misdemeanors and felonies. She stated that the law makes a distinction as to the severity of an offense by designating it as a misdemeanor or felony and questioned why misdemeanors were being included. She questioned whether there was some way of dealing with less severe infraction other than revocation of a license. Dr. Putman also questioned the double jeopardy aspect of the list with regard to punishing some by revoking their license after the person’s crimes has already been dealt with by the legal system.
Dr. Putman also expressed as a principle concern the lack of understanding of context and the lack of differentiation between a lapse of judgment crime and a long standing pattern of disregard for the rights of others. She also raised developmental issues and questioned whether a young man’s conviction for an alcohol related crime associated with a fraternity implies that he will never be suitable to be a psychologist.
As additional examples of the need for context, she questioned what happens to the psychologist who may be in the midst of a divorce and is charged with an act of domestic violence; an alcoholic who has been in recovery for years but has multiple DUI convictions; crimes that are the result of conscience like those of Martin Luther King; or a driver who opens the door of his car in the face of oncoming traffic and a bicyclist swerves and is killed in traffic and is charged with vehicular homicide. Dr. Putman submitted that the list by virtue of its extreme comprehensiveness does not allow for errors of the youth, errors of judgment due to impairment, arrest due to civil disobedience, and does not allow for rehabilitation. She urged the Board to go back to the list and limit the list to offenses that are the most serious and egregious examples of moral turpitude. She suggested limiting the list to crimes involving abuse of power, crimes of the most serious nature against another person, fraudulent business practices having to do with the practice of psychology, as well as violations of the ethics code of the APA that are indications of character defects strong enough to prohibit a person from practicing psychology. Other offenses may warrant limitations such as practicing temporarily or under supervision and should be dealt with on a case by case basis. Dr. Putnam did not believe that limiting the list would prevent the Board from acting when necessary to sanction a psychologist. She questioned why there are no levels of sanctions, suspension, probation, and some rehabilitation procedure involving supervision and rectification. She also questioned who would police the convictions and whether the Board is setting up a police state mentality where someone with an axe to grind would, for example, report a psychologist’s college age marijuana conviction.
Dr. Putnam urged the Board to significantly limit the list to very serious felony convictions and to build into the process the understanding of age, context, and the intent of the psychologist. She encouraged the Board to consider a process of graded sanction versus automatic revocation and to develop a fair way to report infractions. Dr. Putnam supported deleting all misdemeanors and cited misdemeanors such as abandonment of a child and obscenity violations where the law could be twisted in such a way that a psychologist could be in trouble for what they believe is the moral and ethical right thing to do yet would result in trouble for their license. Those types of crimes should be left off of the list
Finally, Dr. Putnam stated that she had prepared a list of crimes that she and others believe should be deleted. She cited the examples of the 19 and 17 year old who get body piercing or tongue splitting done and the 19 year old gets charged, or the soccer coach who gets charged by an angry parent because a student on a trip got body pierced while there. She questioned why the list needed to be so black and white suggested limiting the list to laws which are very clearly examples of wrongdoing and malfeasance where the characterological defects are so great that there is no question about it and then leaving the rest up to the Board’s discretion.
Dr. Putman submitted a letter to the Board that was marked as Putnam Exhibit 1. Putnam Exhibit 2 consists of three lists of crimes that should be deleted. She prepared one of the lists, another was prepared by Ellen Gay and Carrie Johnson and the last by Dan Weintraub; all of whom are psychologists.
Dr. Leland Orlov stated that he is a psychologist in New Castle County. He believes it is unduly harsh to include misdemeanors. He stated that it is extremely challenging dealing with custody and visitation cases because invariably someone is going to be made angry or irritated and want to seek revenge. It has happened to him in his own practice. Accusations that are groundless or have only a tiny bit of truth taken out of context can get someone into trouble that is not easy to get out of. He gave an example of a groundless felony charge brought against him in his practice that was dropped. He stated that the charge was initially brought against him to disqualify him from testifying in a custody matter.
Dr. Orlov agreed with Dr. Putnam’s concerns over crimes of conscience. He also stated that he does a fair amount of work involving human sexual behavior and has asked a patient to bring in examples of sexually oriented material to evaluate what got the individual in trouble. He believed it was conceivable that he could be in trouble with the law under that scenario. He asked the Board to use discretion.
Dr. Mandell Much stated that he is a licensed psychologist and has practiced in Delaware for 20 years. He is also licensed in Pennsylvania. Dr. Much provided the Board with an example of a licensed psychologist with an impeccable reputation who had practiced for 20 years. However, as the result of debilitating pain from Chron’s disease he developed a dependency to narcotics. Despite his addiction, he worked regularly and diligently, except for the times his Chron’s disease caused him to be hospitalized. His medication abuse occurred in the privacy of his own home and his patients benefited from his care and were never directly affected by his dependency. Eventually, because of his addiction, he committed the felony crime of fraudulently obtaining narcotics and was caught. The Board referred him to treatment with Dr. Much, temporarily restricted his license, and prohibited him from working with individuals with addiction problems. After two years of treatment the individual’s license was fully restored and he has been practicing in a very responsible position for the federal government in another state for several years. Dr. Much stated that were if not for the rehabilitative and restorative stance of the Board, the individual’s professional life would have ended.
Dr. Jane Crowley stated that she is a psychologist licensed in Delaware. She believes that the list is far too inclusive and that statutes were listed that were clearly not related to the practice of psychology. As an example, she cited tongue splitting and stated that the inclusion of such crimes would engage the Board in a great deal of activity that would not be useful in its public interest of safeguarding the profession of psychology. In her experience as a former Board member, the shear volume would distract the Board from much more meaningful and appropriate work. The list offered is too broad and would engage the Board in considerable fruitless activity and would not serve the purpose of protecting the public.
3. The Board received no written or verbal comment at the second public hearing held on June 6, 2005.
Findings of Fact With Respect to the Evidence and Information Submitted
The Board carefully reviewed and considered the crimes presented as a compilation of crimes extracted from the Delaware Code. The overarching concern of the Board was the safety of the public since psychologists and psychological assistants work closely in a position of trust and responsibility with the members of the public they serve gaining access to the details of their clients’ personal, family, business, health and financial information. In addition, they deal with individuals and families who are often in crisis and vulnerable to undue influence and manipulation. The nature of psychology requires the highest standards of honesty and integrity in dealing with confidential issues and patient records. It also requires that the practitioner is able to exercise appropriate judgment in dealing with a multitude of issues, including but not limited to, a client’s criminal conduct, physical disabilities, addictions, behavior disorders, sexual abuse and other mental health issues.
In addition, practitioners work in a variety of settings including, but not limited to, hospitals, clinics, schools, prisons, detention centers and private offices. They frequently counsel individuals on a one to one basis when no one else is present. They are called upon to testify in court proceedings and file reports with courts and governmental agencies.
The “primary objective of the Board of Examiners of Psychologists, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.
The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners, both licensed and unlicensed.” 24 Del.C. §3501.
The Board finds that the crimes identified in the proposed rule are substantially related to fitness or ability to perform 1 or more of the duties and responsibilities of a psychologist or psychological assistant in that they involve: the use of physical violence or force, or the threat thereof, toward or upon the person of another; sexual abuse or inappropriate sexual conduct; violation of privacy; dishonesty, or false or fraudulent conduct; mistreatment or abuse of children, the elderly or animals; offenses indicative of issues with power and control; offenses against public administration including but not limited to bribery and perjury, and offenses involving the illegal possession or the misuse or abuse of narcotics, or other addictive substances and those non-addictive substances with a substantial capacity to impair reason or judgment.
The Board revisited its proposed list as the result of the comments received at the first public hearing held on March 7, 2005 and the attached list is the result of that review. The Board shares the concerns of the psychologists who commented on the proposal with regard to the lack of ability regarding context but finds that the legislation as enacted does not allow the Board to exercise the discretion suggested.
The Board finds that there seemed to be a general misunderstanding that conviction after licensure would automatically result in revocation of a license. A conviction of an offense after licensure will subject a licensee to potential discipline up to and including revocation as provided by 24 Del.C. §3516. Conviction of an offense listed in the Board’s regulation after licensure does not mandate automatic revocation.
Finally, the Board declines to limit the regulation to misdemeanor convictions only, finding that the designated misdemeanors are substantially related to the practice of psychology for the reasons stated above as to both felonies and misdemeanors.
Decision and Effective Date
In summary, the Board finds that adopting regulation 17.0 as proposed is in the best interest of the citizens of the State of Delaware and is necessary to protect the health and safety of the general public, particularly the recipients of the services provided by psychologists and psychological assistants.
The Board hereby adopts Regulation 17.0 to be effective 10 days following publication of this order in the Register of Regulations.
Text and Citation
The text of the regulation remains as published in Register of Regulations, Vol. 8, Issue 11, May 1, 2005, without any changes, and as attached hereto as Exhibit A.
SO ORDERED this ____day of __________, 2005.
BOARD OF EXAMINERS IN PSYCHOLOGY
Joseph B. Keyes, Ph.D., President, Presiding
Martha Boston, Ph.D., Vice President
Lisa C. Gardner, Public Member
Frank Szczuka, Public Member
William Ulmer, Jr., M.Ed., Professional Member
* Please note that no changes were made to the regulation as originally proposed and published in the December 2004 issue of the Register at page 779 (8 DE Reg. 779). Therefore, the final regulation is not being republished. Please refer to the December 2004 issue of the Register or contact the Board of Examiners of Psychologists.
A complete set of the rules and regulations for the Board of Examiners of Psychologists is available at:
http://dpr.delaware.gov/boards/psychology/index.shtml
