by David Jensen, JD
With The Garden of Forking Paths, i Jorge Luis Borges penned one of the greatest short-stories in all of world literature, and, although he certainly was not intending to do so, his conception of time and his emphasis on the consequences of the choices we make, gives us a framework for the outcomes of possible interactions with the Board of Behavioral Sciences ("BBS"), with three possibilities being particularly important and fairly recurrent. One possible interaction with the BBS is for it to renew your intern registration or license as "Clear." This is a friendly, bureaucratic interaction, which essentially means, as far as the BBS can tell at the time, "Keep up the good work!" A second possible interaction is for the BBS to conclude that you have done something wrong and are now in SOME trouble with it. And, a third possible interaction is for the BBS to conclude that you have done something very wrong and are now in SERIOUS trouble with it. So, "Keep up the good work," SOME trouble, or SERIOUS trouble? The outcome is yours to write with the "pen and paper" of your professional and personal conduct.
The Garden of Forking Paths
For the uninitiated, The Garden of Forking Paths is a spy story set against the back-drop of World War One. In the story, Yu Tsun is a Chinese national and a former professor of English, who is living in England. Tsun is also a German spy. Tsun realizes that he is about to be captured by the English, and he wants to get word to the Germans about a city in England that should be bombed by the Germans.
Tsun is being pursued by Captain Richard Madden, an Irishman in service to the English, and Tsun then proceeds to the estate of Richard Albert, a noted scholar of Chinese culture. Albert relates to Tsun that he knows of Tsun's great ancestor, Ts'ui Pen, who gave up his kingdom in China to do two things, create a labyrinth in which all men would lose their way and write a great novel. However, after Pen was murdered, no one found the labyrinth, and all that was discovered was a chaotic manuscript that seemed to make no sense whatsoever.
Albert explained to Tsun that he solved the riddle of the labyrinth, which is that the novel is the labyrinth. While everyone had been looking for a physical labyrinth to experience, Alpert surmised that the novel was the labyrinth, and that the reason it was regarded as a chaotic mess was because it was written in such a way as to contain all possible futures for the characters involved.
Alpert then explains to Tsun that "Unlike Newton and Schopenhauer, your ancestor did not believe in a uniform and absolute time; he believed in an infinite series of times, a growing, dizzying web of divergent, convergent, and parallel times" (127). He also added that "The fabric of these times contain all of life's possibilities" (127).
In another passage, Albert explains that "each time a man meets diverse alternatives, he chooses one and eliminates the others" (125).
What makes The Garden of Forking Paths a delight to read is its emphasis on how the possibilities of life are open or foreclosed by the choices we make. Albert puts the issue starkly: "Once in a while the paths of that labyrinth converge: for example, you come to this house, but in one of the possible pasts you are my enemy, (but) in another (of the possible pasts you are) my friend" (125).
And, that's kind of how it is with the BBS.
Depending on the choices you make in your professional and personal life, you will interact with the BBS under different scenarios, one is friendly and bureaucratic, but the others are adversarial.
One Forking Path: "Keep Up the Good Work!"
Many therapists go their entire careers interacting with the BBS only to renew their intern registrations and licenses. They get the appropriate forms, and they read them carefully. They check all of the necessary boxes and they sign these forms where indicated. They enclose proper payment, and their checks do not bounce. And, they do all this well before the registration or license expires so that the BBS has ample time to process the paperwork. They are also competent and ethical practitioners.
In reality, the only time the BBS "thinks" about these individuals is when the BBS is processing their renewal paperwork. Since the BBS has not learned of any problems regarding these practitioners, it does not need to worry about them and their fitness to practice marriage and family therapy. Consequently, this path forks to an idyllic locale where the person's registration or license is deemed "Clear," which essentially means "Keep up the good work!"
"Keep up the good work!" is the way it should go, and, in fact, is the way it actually does go for the vast majority of marriage and family therapists practicing their profession in California. They are ethical and competent practitioners, and they do what they have been taught to do by their professors, supervisors, and colleagues. They are a boon to their clients and a credit to the profession. On behalf of your professional association, and probably on behalf of the BBS as well, thank you for your good work and keep it up!
Another Forking Path: Intern or Licensee in SOME Trouble with the BBS
Some interns or licensees get themselves into SOME trouble with the BBS because they make poor choices in their personal or professional lives. This is SOME trouble as opposed to SERIOUS trouble, which will be discussed later.
The SOME trouble cases are resolved by the BBS issuing the person a citation and the person then paying a fine, much like a speeding ticket or a parking violation, to resolve the trouble. With SOME trouble cases, the practitioner is not in danger of losing his or her intern registration or license to practice; rather, their checking-account is in danger of taking a "hit." Hence, the conveyance of money from the practitioner's bank account to the BBS's bank account essentially rights these wrongs.
California law gives the executive officer of the BBS ("EO") the power to determine when and against whom a citation is issued, and to issue orders of abatement and fines.ii The EO can issue a citation for any breach of the BBS's statutes or regulations,iii which gives the EO extremely broad powers. Fortunately, most therapists learn what to do to avoid running afoul of the statutes and regulations in their law and ethics class in graduate school and as they make the natural progression from trainee-to-intern-to-licensee.
However, in cases where the violation is "of such a nature and/or severity that revocation of the license or restrictions on the cited person are necessary to ensure consumer protection," or because the cited person failed to comply with a previous citation, the BBS will not issue a citation but rather will issue an accusation,iv which means SERIOUS trouble, not SOME trouble. The path from SOME trouble to SERIOUS trouble is a major fork in the road. But, back to citations and SOME trouble cases for now.
It is also important to realize that issuing a citation is the BBS's own adjudication of these issues, which would not prevent a therapist from being sued by an aggrieved patient or from being prosecuted for committing a crime, should the facts of the case warrant such action. The issuance of a citation by the BBS is just one of the ways practitioners can get themselves into trouble. Hopefully, those other "forks" in the road never materialize.
So, how much of a fine does the BBS typically impose? In assessing the fine, the EO is required to take into account the following factors:
- The gravity of the violation;
- The good or bad faith exhibited by the cited person;
- The history of previous violations of the same or similar nature;
- Evidence that the violation was or was not willful;
- The extent to which the cited person cooperated with the board's investigation;
- The extent to which the cited person mitigated or attempted to mitigate any damages or injuries caused by the violation; and,
- Any other factors that justice may require. v
The EO can assess fines of up to two-thousand five-hundred dollars ($2,500), and most are well within that amount, but a fine of up to five-thousand dollars ($5,000) can be assessed by the EO if the cited person has a history of two or more prior citations for similar violations, or if the conduct involves:
- Multiple violations demonstrating willful disregard of the laws pertaining to the profession;
- Minors, elders, dependent adults, or those with physical or mental disabilities;
- The unlicensed practice of the profession;
- Breaches of confidentiality;
- Failing to submit fingerprints as required by the Department of Justice; or,
- Fraudulent billing to insurance or government programs.
If cited, you can challenge the citation or the amount of the fine by requesting an informal citation conference or an administrative hearing, and the citation itself will contain information about these procedures.vi
You can be represented by an attorney at the citation conference or administrative hearing, and at the conclusion of the conference or hearing, the citation will be affirmed, modified, or dismissed. If the citation is affirmed, the fine will remain the same. If the citation is modified, the fine will be reduced, not raised. And, if the citation is dismissed, the fine will be wiped-away.
To get a sense of what others have been cited for and the amount of the fines imposed, below are ten examples of recent citations and fines. Keep in mind, however, that the fines imposed were the result of the EO applying the factors set forth above to the facts of the particular cases, and the cited person may have challenged the amount of the fine via the citation conference or hearing and may have been able to offer evidence mitigating guilt. So, these fines should not be regarded as binding precedent, merely an indication or a "Head's up." As the facts of the situation change, a greater or lesser fine may be imposed by the BBS:
- A $500 dollar fine for failing to report suspected child abuse.
- A $1,000 fine for treating a minor without the consent of both parents when the consent of both parents was required by the custody order.
- A $1,000 fine for practicing with a name that differed from the person's name as indicated on the BBS's records.
- A $500 fine for failing to disclose a conviction of a crime to the BBS.
- A $1,000 fine for failing to complete required CEUs.
- A $200 fine for failing to complete the law and ethics requirement.
- A $1,000 fine for directing a sexually-explicit comment towards a client.
- A $1,000 fine for failing to establish the fee with the patient before therapy commenced.
- A $500 fine for breaching a client's confidentiality.
- A $500 fine for supervising without a valid license.
Again, these are some examples of fines that have been imposed in the past, but this is certainly not an all-encompassing list. After reviewing hundreds of citations over the years, I will say that the vast majority of them are issued because licensees fail to comply with their continuing education requirement. Instead of doing all thirty-six hours, the licensee may only do twenty, thirty, or even thirty-five of the required thirty-six, any of which would be grounds for the issuance of a citation, although the fine for only doing twenty of the thirty-six is likely to be more than the fine for doing thirty-five of the thirty-six.
Sometimes licensees do fifty hours of continuing education, but forget to do their six hours of mandated coursework in law and ethics, which would be a citable offense. Sometimes supervisors forget to do their mandated coursework in supervision, which would also be a citable offense.
Based on my review of hundreds of citations, you can go a long way towards the "Keep up the good work!" outcome by making sure you do your required continuing education units, and by being ready to produce your continuing education certificates, should the BBS select you for an audit.
Before we leave the land of citations, however, it is also important to realize that citations are not confidential between you and the BBS. If the fine is for one-thousand five-hundred dollars ($1,500) or less, the BBS has the right to publish that citation on the Internet for five years from the date the citation was issued.vii Consequently, anyone searching a therapist's registration or licensing information would be able to access the citation.
Citations issued in excess of one-thousand five-hundred dollars ($1,500), however, will be posted on the Internet in perpetuity.
Yet, Another Forking Path: Intern or Licensee in SERIOUS Trouble with the BBS
Each year a small minority of the thousands of registrants and licensees throughout the state get themselves into SERIOUS trouble with the BBS because of very poor choices they make in their personal or professional lives. With the SERIOUS trouble cases, the BBS is attempting to deny, suspend, or revoke an intern registration or license. viii
Before the BBS can deny, suspend, or revoke an intern registration or license, it has to find the person guilty of committing "unprofessional conduct," ix and that finding by the BBS is unlikely to occur to you without you having had the opportunity to defend yourself, including being represented by an attorney during the proceeding. However, in this article, I want to stress the positive things you can do to help create the "Keep up the good work!" outcome and avoid the SOME trouble or SERIOUS trouble outcomes entirely. You can likely avoid committing unprofessional conduct, and create the "Keep up the good work!" outcome, by doing the following:
- x Be a law-abiding citizen, including utilizing alcohol and prescription medications responsibly.
- Be honest with the BBS when applying for your intern registration or license, and when renewing your intern registration or license, and be honest with third parties in your professional and personal business dealings.
- Practice psychotherapy competently, paying special attention to your assessment, evaluation, and management of each of your cases, and maintain treatment records that reflect your judgments about these issues.
- Be especially vigilant in creating, maintaining, and enforcing appropriate professional boundaries.
- Establish the fee before treatment commences, including the basis upon which the fee is calculated.
- Maintain the confidentiality of client information, unless the law mandates or permits the disclosure of client information, and remember that if the client is a couple, you will likely need to have each of them execute a release before disclosing their information.
- Supervise trainees and interns competently, and know the laws and regulations pertaining to the supervision of trainees and interns, if you supervise.
- Advertise professional services accurately and in accord with BBS requirements.
- Do not offer or accept any consideration, compensation, or remuneration, whether monetary or otherwise (Angels, Dodgers, or Giants tickets), for the referral of patients.
- Represent yourself and your qualifications accurately.
- Comply with all testing procedures and protocols.
- Do not impersonate another intern or licensee, and do not allow anyone else to use your intern or license number.
- Refrain from getting involved sexually with patients, and if you really want to minimize risk in this area, with former patients as well.
- Do not allow anyone without a license or intern registration to engage in conduct for which a license or intern registration is required.
- Perform counseling and therapy services that are inside the scope of the practice for the profession, and make sure supervisees do the same, if you supervise.
- Perform counseling and therapy services that are inside your scope of competence, and make sure supervisees perform such services inside their scope of competence, if you supervise.
- When using psychological tests or other assessment devices, comply with all protocols established for the use of such tests or devices.
- Report any suspected child, elder, or dependent adult abuse!
- Handle requests for patient records in a timely manner and in good faith.
- Comply with all aspects of the "Telehealth" law, if doing counseling or therapy via the Internet.
- iBorges, Jorge Luis. "The Garden of Forking Paths." Collected Fictions. Penguin Classics. New York. 1988. Print.
- ii16 CCR § 1886
- iii16 CCR § 1886
- iv16 CCR § 1886.50
- v16 CCR § 1886.30
- vi16 CCR § 1886.70
- viiCalifornia Business & Professions Code § 4990.09
- viiiIt may be possible for a SERIOUS trouble case to fork back to a SOME trouble case if the BBS can be persuaded that the conduct involved really was not of such a nature and/or severity that revocation of the license or restrictions on the cited person are necessary to protect consumers.
- ixCalifornia Business & Professions Code § 4982
- xThis is not an exhaustive listing of all of a therapist’s legal responsibilities; rather, simply a summary of the law regarding unprofessional conduct, which is the law that the BBS uses to prosecute the SOME trouble and SERIOUS trouble cases.