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THE COLORADO SCHOOL FOR FAMILY THERAPY

A 501(3) Nonprofit Organization 12101 East Second Avenue, Suite 101 Aurora, Colorado 80011-8328 Phone: (720) 859-0464 Fax: (720) 859-2970 E-mail: Leslieinstitute@cs.com FEIN #84-1441000 www.familyplaytherapy.net
JURISPRUDENCE AND RISK PREVENTION WORKSHOP FOR COLORADO PSYCHOTHERAPISTS CLASS OUTLINE INSTRUCTOR: DR.REO N. LESLIE, JR., LMFT, LPC, NCC, ACS, RPT-S, CAC III, DAACS

I.Statutes that impact the psychotherapy profession: A.CRS 12-43- Mental Health Statute B.CRS 13- Duty to Warn, Duty to Protect, and Court Testimony C.CRS 14- Child Welfare and Child Custody D.CRS 16- Domestic Violence Offender Treatment E.CRS 18- Prosecution of Sexual Misconduct and Insurance Fraud F.CRS 19- Colorado Childrens Code G.CRS 27- Client Rights and Emergency Mental Health Hold H.Criminal Law (Eight Misdemeanors) - Failure to Report, Rebirthing, Failure to Provide a Disclosure Statement, Failure to List in the Database, Sexual Misconduct, Insurance Fraud, Use of Restricted or Protected Terms, and Practicing Outside of Your Level of Competence (12-43-202). I.Ethics, Law, Generally Accepted Standards of Practice (Care), Best Practice, Risk Management, and Risk Prevention II.Title 12/Article 43 (Occupations in general/Psychotherapy as an occupation)- Can be downloaded at www.dora.state.co.us/mental-health A. B. C. D. E. The regulation and licensure of psychotherapy for consumer protection and public health, safety, and welfare The rule of law and vulnerability, liability and responsibility in the business of psychotherapy Psychotherapist professional accountability/liabilitylaw/statutes, ethics, and generally accepted standards of practice, civil court decisions, and criminal court/DA prosecution Reasonable and prudent professional conduct consistent with legal and ethical standards-avoid neglect, malpractice, harm, abuse of power, outrageous or criminal conduct, and misdiagnosis Ethics and law are not always consistent, though they may overlap- State law is the primary regulatory authority for psychotherapists.

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Go with the highest standards to reduce the risk of grievance and lawsuit Psychotherapy--professional relationship; testing, assessment, diagnosis, treatment, and counseling; planned procedure of intervention (12-43-201(9) H. Client's rights and emergency mental health hold authority - CRS 27-10 Federal database for sanctioned psychotherapists No confidentiality for clients without Colorado mental health licensure, CAC certification, or DORA Unlicensed Psychotherapist Database Registration. Confidentiality is given by the State through Statute The Mental Health Board Structure Under The Department of Regulatory Agencies (DORA)-- 12-43101 - 6 Regulatory boards and I Regulatory Office (Addiction Counselors) A. Licensed Marriage and Family Therapist (LMFT) B. Licensed Professional Counselor (LPC) C. Social workers (3 different levels) -- LCSW, LISW, LSW D. Licensed psychologist E.Grievance board (unlicensed psychotherapists) F. Domestic Violence Treatment- CRS 16 and the DVOMB G. Addiction counselors have a Director and Advisory Board Model, not a regulatory board H. Consult ADAD, your DORA regulatory board, (303) 894-7766, or the State Attorney General's office, whenever you are unsure of a legal or professional issue

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Addiction Counselor Certification moved from ADAD to DORA on July 1, 1998: ADAD establishes the educational standards and DORA issues the CAC Certification and LAC licensure- Appropriate classes and supervised clinical addiction-related counseling experience supervised initially by a CAC III A. CAC I - 1000 hours B. CAC II 2000 with graduate degree/3000 hours without graduate degree C. CAC III (Supervisory level) 4000 with graduate degree/5000 hours without graduate degree D. E. F. G. H. I. Licensed Addiction Counselor licensure Federal Rule 42 for Confidentiality- Substance Abuse Counselors Regulatory Agency Office governs this discipline CAC Certification requires clinical supervision by a CAC III, but does not require work in an ADAD approved facility Substance Abuse Counselors of Colorado (SACC) is the local NAADAC Chapter Downloadable resources are at samhsa.gov and motivationalinterviewing.org

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Board Composition and Function -- 12-43-203 ; 12-43-221 ; and 12-43-224 A. The Grievance, LPC, LMFT, Social Work, And Psychologist Boards each have 7 members - 3 professional members/4 public members (and an Asst. Attorney General as legal counsel) appointed by the Governor of Colorado- with staggering/re-electable terms Board functions 1. 2. 3. 4. 5. Develop procedures and qualifications for licensure or psychotherapy practice Approve or deny licensure applications Investigate and administer discipline if warranted for inappropriate, illegal or unauthorized psychotherapy practice Consultation for psychotherapists Meetings are open to the public--Visit your bimonthly board proceedings on Fridays

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at DORA starting at 9:00am 6. 60 Day Requirement- Unless client confidentiality is breached; psychotherapists must report prohibited activity violation of a colleague within 60 days if they have direct knowledge (defined in the rules of each regulated discipline). Inform the client of a legal violation and seek a release to report the violation.

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Unlicensed psychotherapist database governed by the Mental Health Grievance Board 1. Listing requirements 2. Penalties for failure to list (See Section IV-E) 3.Other 60-day rules - change of address, name or disclosure statement; self reporting of a malpractice judgement 4.Certified (CRS 22-60-104-(1) ) or Licensed School Psychologists (CRS 22-60.5-210(1) (b) ) are Unlicensed Psychotherapists under CRS 12-43-201(10)

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Addictions Counselor Program Advisory Committee and Director Model for CACs Domestic Violence Offender Treatment Provider Board (DVOMB) - CRS 16 Public Disciplinary sanctions -See DORA Website and Newsletter for sanctions back to 1988 1. 2. 3. 4. 5. 6. 7. Confidential letter of concern Letter of admonition Probation/practice monitoring Suspension Revocation Criminal prosecution Cease and desist order

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The grievance process and responding to a complaint - anyone can file a complaint (client, exclient, colleague, supervisee, ex-supervisee, public, anonymous, competitor, etc.) retroactive to 1988. 1. 2. 3. 4. 5. 6. 7. Dismissed, referred to investigations, or sanctioned Calm down and power up Review the allegations Review your client, ex-client, supervisee or ex-supervisee records and documentation Consult your attorney in drafting your response Respond with all relevant documentation Cooperate fully with the complaint investigator

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Legal grounds for Psychotherapist Discipline/Prohibited Activities -- 12-43-222; 12-43-224; 12-43-225; and 12-43-226 A. Thou shalt not: 1. 2. 3. 4. 5. 6. 7. be convicted of a felony related to practice. violate or attempt to violate the Colorado Mental Health Statute. advertise in a manner that is misleading, deceptive or false (protected and restricted terms, unsubstantiated claims, and unearned credentials). abuse health insurance or advertise in media to violate 18-13-119, CRS. be addicted to or dependent on alcohol, drugs or controlled substances. endanger clients or fail to treat clients properly because of having a physical or mental disability. fail to practice within the discipline's general accepted standards of practice (determined by community standards, regulatory boards, and expert witness testimony).

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

practice outside of one's training, experience, or competence (class 3 misdemeanor .offense). maintain dual relationships or multiple relationships. exercise undue influence to sell items or services to clients. fail to terminate, refer or consult if a client is not benefitting from psychotherapy or the client is above one's level of competence. fail to supervise according to general accepted standards of practice. fail to provide informed consent to clients with a mandatory disclosure statement (class 3 misdemeanor offense). accept or give rebates, or other forms of remuneration, for client referrals. have sexual relationships with clients or ex-clients until therapy has ended at least two years. commit deception, fraud, or misrepresentation in application, securing a license, or taking the exam. order tests without clinical justification. falsify client records. commit insurance fraud.

B.Direct knowledge and duty to report prohibited activity violations -- 12-43-224 (9) - do not violate client confidentiality to report the violations (see the Rules of your discipline) VII. Mandatory Disclosure Statement/Informed Consent - 12-43-214 Not later than the second visit/suggestions about the initial intake session Required information - name, business address, clinical and educational background, client rights, confidentiality exceptions, etc. C.Exemptions -- emergency, court order, involuntary procedures, custody of DHS or DOC, and inability to understand or write D.60 day rule-report changes E.Failure to provide a Disclosure Statement is a Class 3 misdemeanor offense F.Exceptions- DOC, DHS, CRS 27-10 designated facilities, hospitals, and students enrolled in undergraduate or graduate school practicums or internships not practicing professional psychotherapy outside of the educational institution. VIII. Psychotherapist's Duty to Report, Warn and Protect -- Possible Threat to Human Life and Public Safety CRS 1321-117 A. B. C. D. Intent to harm self Intent to harm others Call the police/law enforcement and warn the intended victim(s) Patriot Act- Report threats to national security to the FBI. A. B.

E. No confidentiality exception for clients with HIV/AIDS despite ACA Code of Ethics "justification" IX Confidentiality and Privilege and Limitations to Both: HIPAA, 12-43-218, 13-90-107 and unique issues for individual, couple, family, and group therapy A. Ethical issues -- protecting client privacy to promote free discussion of clinical issues B.Legal requirements -- confidentiality and privilege C.Privilege, the right to keep information confidential in a court of law, is granted by statute and belongs to the client C. Safeguarding client confidentiality - telephone security, FAXing, written releases, informed consent, record storage and accessibility and "neither confirm nor deny" D. Group Therapy-Group disclosure statement; written documentation and opening and closing

confidentiality statement; and common consent to release information. Exceptions to confidentiality -- homicidal or suicidal intent, criminal or delinquency proceedings (except psychologists), child abuse or neglect (or suspicion thereof), psychotherapist sexual misconduct and client or client heir complaints or lawsuits (self defense) F. Couple and Family Therapy Every adult must sign a release in order for any information to be released on any adult that was in therapy G.No confidentiality exception for HIV/AIDS disclosure (not in CRS 12-43-218) E. H.HIPAA- Federal Confidential Guidelines I.You cannot release information about a client to anyone, even a partner, spouse, or family member without a waiver or statutory exception. J.You can turn a client over to a collection agency, but provide limited non-confidential information. IX. Dual/Multiple Relationships A. B. X. Practice considerations -- maintaining boundaries for practitioner and practice Problematic dual/multiple relationships -- do not have social, business, romantic, or sexual relationships with clients Ethical issues Legal issues Statute of Limitations- Report Anyway if There is "Reasonable Belief" of Abuse or Neglect CRS 19 Immunity from civil suit Psychotherapy concerns with children - CRS 27-10-103 Child custody evaluations - CRS 14-10-124/CRS 14-10-127 Eisel vs. Board of Education (1991) - school counselor/in loco parentis Who is the custodial parent? Get a copy of the divorce, custody and court documents to insure you are dealing with the custodial parent. 3. Written consent to treat the minor unless she/is emancipated 5.No confidentiality from parents for minors in outpatient treatment/private practice for children under 15 K.Fifteen is the age of consent for psychotherapy treatment- Check with DORA on private practice clients ages 15, 16 , and 17 years old. CRS 27-10-103 L.Child and Family Investigator (CFI)- THe 40 Hours of State Mandated Training Required by the State of Colorado is provided by The Colorado School for Family Therapy. Contact the School at 720-859-0464 or Dr. Amos Martinez, The School's CFI Program Director at 303-881-2730. XI Clinical Supervision and Consultation Cohen vs. State of New York (1975) LPC - 70;30;2000; LMFT - 50/50/1500; LCSW/LISW - 48/48/3360 LMFT-supervised by Supervisors approved by the LMFT Board; social workers supervised by only social workers unless excepted by SW Board; LPCs supervised by any licensed mental health professional D. The differences between supervision and consultation - peer consultation vs. supervisory guidance, mentoring and case review E.Inadequate supervision - 12-43-222(n) A. B. C. 1. 2.

Reporting Child Abuse and Neglect and Psychotherapy with Children A. B. C. D. E. F. G.

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The Board rules for supervision and supervisory guidelines: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Monitor the supervisee's clinical practice to assure services are within the general accepted standards of practice. Level of competence of supervisee and supervisor. Assure the supervisee gives the client(s) the mandatory disclosure statement(s) during the initial session. Assure clients are informed of changes in the supervisor-supervisee relationship. Keep records of the supervisor-supervisee relationship. Assure the terms, fees and arrangements of the supervisor relationship are documented in a contractual agreement. Assist the supervisee in the awareness of and adherence to all legal, ethical and professional responsibilities. Assure all insurance forms are properly filled out. Level of competence of the supervisor relevant to the clients being treated by the supervisee. Assure there are no conflicting multiple or dual relationships anywhere in the supervisory system.

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General Psychotherapy Practice Issues -- The 5 "Ds": Dereliction of duty does direct damage -- Injury, Negligence and Substandard Practice A. Records disposition, storage, and security -- double-lock storage, check the Rules for your discipline on record keeping requirements (LPC-5 years, SW-10 years, LMFT-7 years, Grievance board for Unlicensed Psychotherapists-7 years, Psychologists-7 years) B.Referrals Make three referrals to clinicians with the appropriate level of competence C.Subpoenas and court testimony 13-90-107 -- consult your client, your attorney and your client's attorney before releasing confidential client information; maintain client confidentiality; file a motion for protective order; site the People vs. Sisneros (2002) Colorado Supreme Court ruling; discuss confidentiality and relevancy; avoid impeachment of testimony and inappropriate court testimony. D. 72-hour emergency hold authority - 27-10-105 E. Practice misconceptions (Coaching, Religious/Spiritual Counseling, Parent Coordinators, Child and Family Investigators, Court Appointed Special Advocates) F. Scope of practice - psychotherapy disciplines, malpractice, and level of competence -- 12-43203 ; Part 3, Psychologist; Part 4, SW; Part 5, LMFT ; Part 6, LPC, ; Part 7, Unlicensed Psychotherapists G.. Exemptions - 12-43-215: Religious ministry factors 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. I. What's the understanding of the client about religious ministry vs. psychotherapy? Did the client seek therapy from a religious organization she/he belonged to? Does the disclosure statement identify religious ministry or psychotherapy? Did the therapy take place in a house of worship or on religious property? Did the counselor identify herself/himself as a religious minister or not? Is the counseling part of a long-term spiritual relationship? Is the counselor an official in a religious organization? Does the counselor advertise services to the public for a fee? Does the counselor collect fees for services or tithes, offerings, etc.? Is the counseling based on a particular religious orientation or viewpoint? Is the counselor accountable to a religious organization or official? Is the counselor a member of an IRS-recognized 501(c)(3) religious organization? Is the counselor trained in a religious or spiritual orientation? Is the counseling provided in a private practice setting? Is the counselor recognized by consumers as a religious minister or spiritual healer.

Vendorship - access to HMOs, PPOs and insurance companies.

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Title use restrictions and clarity about professional discipline -- 12-43-201 and 12-43-216 State licensure vs. professional organization membership, certification and registration The American Psychological Association (APA) - psychologists The American Counseling Association (ACA) - LPCs The National Board for Certified Counselors (NBCC) - NCCs and LPCs The Colorado Association of Psychotherapists (CAP) - unlicensed psychotherapists The National Association of Social Workers (NASW) - social workers The American Association for Marriage and Family Therapy (AAMFT) - LMFTs The American Association of Christian Counselors (AACC)- Christian Counselors The Association for Play Therapy (APT) - Registered Play Therapists (RPT) and Registered Play Therapist Supervisors (RPT-S) The Substance Abuse Counselors of Colorado (SACC) and NAADAC- CACs and LACs

Generally accepted standards of practice for the professions/disciplines Code of Ethics

Testing - 12-43-228 A. B. C. D. General use -- no requirements for administering standardized personnel selection, achievement, general aptitude, or proficiency tests Technical use -- master's degree and completion of five relevant graduate classes Advanced use -- requirements of (B), at least six additional graduate courses, and at least one year of supervised practice Exception - licensed since July 1, 1991 Ethical/legal/clinical vignettes Ethics Handbook from ADAD (Emailed if requested) Annotated (Brief) Bibliography of Readings on Ethics (Section XIX) Sample psychotherapist disclosure statement Relevant articles on legal and ethical issues (Emailed if requested) Open Book Jurisprudence Exam Unlicensed Psychotherapist Database Application (Emailed if requested) Sample Letters of Admonition (Emailed if requested) Sample Motion for Protective (Emailed if Requested) People vs. Sisneros (2002) Colorado Supreme Court decision (Emailed if requested) DORA Mental Health Newsletter (Emailed if requested) HIPAA Guidelines (Emailed if requested).

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Jurisprudence Workshop Class Handouts in the Classroom or Available by Email A. B. C. D. E. F. G. H. I. J. K. L.

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Court Decisions That Have Influenced the Psychotherapy Profession A. Millard vs. Harris (1968) - dangerousness B. Cross vs. Harris (1969) - dangerousness and expertise C. Cohen vs. State of New York (1975) - supervisor liability for supervisee decisions about clients D. Jurek vs. Texas (1976) - prediction E. Tarasoff vs. UC Board of Regents (1976) - duty to warn/protect F. Addington vs. Texas (1979) - reasonable doubt not required G. Bradley vs. Wessner - release of potentially dangerous clients H. Jones vs. US - dangerousness and violence I. Jablonski vs. US (1983) - emergency commitment and negligent failure to protect J. Hedlund vs. Superior Court (1983) - duty to protect secondary victims (California) K. Petersen vs. (Washington) State (1983) - extended public protection L. Davis vs. Lhim (1983) - crime committed by released mental patient in Michigan M. Eisel vs. Board of Education (1991) - establishes the school staff (such as a school counselor) operate in loco parents ("in place of parents") with children under their care N.Jaffe vs. Richmond (1996) - reinforces privilege

O.People vs. Sisneros (2002)- limits ability to subpoena confidential client records XVII. XVIII. Review of Open Book Jurisprudence Examination A Brief Annotated Bibliography of Book Resources A. Fundamentals of Clinical Supervision: Janine M. Bernard and Rodney K. Goodyear (1992) An overview of clinical supervision as a profession. Chapter 8 discusses ethical and legal considerations of supervision. Ethical Conflicts in Psychology: Donald N. Bersoff (1995) - A multi-chapter commentary on each aspect of the APA Ethics Code. Marriage and Family Therapy Ethics Casebook: Gregory W. Brock (editor) (1997) - Specific case examples on ethical issues such as multiple relationships, confidentiality, supervision and third-party payments. Issues and Ethics in the Helping Professions (Seventh Edition): Gerald Corey (et al.) (2006) A comprehensive standard in the discussion of ethical issues in the field of psychotherapy. Facing the Challenges of Liability in Psychotherapy: Practicing Defensively: Lawrence E. Hedges (2000)- excellent discussion of Liability and both practice risk management and public protection. ACA Ethical Standards Casebook: Barbara Herlihy and Gerald Corey (Fifth Edition) (1996) The American Counseling Association 1995 Code of Ethics with commentary and case vignettes for illustration. Assessing Allegations of Sexual Abuse in Preschool Children: Sandra K. Hewitt (1999) Guidelines for assessing allegations of sexual abuse with children ages 18 months to 6 years old. Coping with Ethical Dilemmas in Psychotherapy: Martin Lakin (1991) - A discussion of ethical issues in psychotherapy including legal, gender, cultural and supervision concerns. The Legal Guide for Practicing Psychotherapy in Colorado (3rd Edition): Denis K. Lane (2007) - A practical legal guide for practitioners of psychotherapy in the State of Colorado. How to Build and Market Your Mental Health Practice: Linda L. Lawless (1997) - A practical manual for establishing and managing a psychotherapy private practice. How to Get Referrals: Linda Lawless and G. Jean Wright (2000) - A guide to strategic marketing for mental health professionals in private practice. Legal Issues in Social Work, Counseling, and Mental Health: Robert G. Madden (1998) Documenting Psychotherapy: Essentials for Mental Health Practitioners: Mary E. Moline, et al. (1998) - An excellent discussion of psychotherapy practice, proper documentation, and the legal decisions that have determined our profession. How to Interview Sexual Abuse Victims: Marcia Morgan (1995) - An excellent introduction to the complex task of interviewing children to assess sexual abuse. Mediating Child Custody Disputes: Donald T. Saposnek (1998) - A comprehensive guide for the structure and process of child-custody dispute mediation. Preparing and Presenting Expert Testimony in Child Abuse Litigation: Paul Stern (1997) - An excellent resource for mental health professionals to use in preparing and giving court testimony. The Reasonably Complete Systemic Supervisor Resource Guide: Cheryl L. Storm and Thomas C. Todd (1997) - A collection of resources such as forms, models and checklists to use in systemic marriage and family supervision, including a section on supervisory ethics.

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The Complete Systemic Supervisor: Context, Philosophy and Pragmatics: Thomas C. Todd and Cheryl L. Storm (1997) - A well-organized and comprehensive textbook addressing marriage and family therapy supervision and supervision of supervision from the perspective and standards of the American Association for Marriage and Family Therapy (AAMFT). Chapter 3 centers on ethical issues, chapter 26 focuses on training therapists to be supervisors, and chapter 27 addresses supervising supervisors.

In my opinion every Colorado psychotherapist, licensed or unlicensed, should read and keep these books in her or his professional/personal library. Lawyers that specialize in mental health related issues: A. Denis Lane; 719-636-1017 B. Robert Lees; 303-292-1020 C. Robert Reaves; 303-696-9334

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