Psychological Injury from Licensing Complaints Against Mental Health Practitioners

Today's mental health practitioners are subject to governmental (e.g., licensing boards) and legal (e.g., professional liability or malpractice) monitoring and regulation. Regrettably, the governmental and legal oversight of health care has proven to be tilted in favor of the service user, with frequent unfair processing and unjustifiably harsh penalties imposed on mental health practitioners—which often result in psychological injury. Stress and anxiety caused by a licensing complaint is common; and in this article, the psychological effects are set forth. It is concluded that there is no reason to expect relief from the risks of practice in the future, that is, typical licensing complaints plus added ethical issues are likely as the mental health professions evolve. This means that, whenever there is an indication of a possible complaint from a service user, today's mental health practitioner must, as part of the support services essential for practice, be prepared to rely on legal counsel.     

Drug Enforcement Administration--controlled substances in emergency kits for long term care facilities. Statement of policy

The Drug Enforcement Administration has received numerous requests from State licensing and regulatory boards, pharmaceutical associations, and professional organizations concerning this agency's policy for the use and handling of controlled substances in emergency kits for patients in Long Term Care Facilities (LTCF). The Drug Enforcement Administration has determined that an amendment to current regulations is not necessary or desirable, in that LTCF's are not controlled premises under Federal law. However, issuance of a Statement of Policy will provide the individual State licensing and regulatory boards with general guidelines under which they may, in turn, promulgate specific rules for the use and handling of controlled substances in emergency kits in Long Term Care Facilities. Additionally, this course of action should improve health care services to such patients and decrease the quantities of controlled substances which might otherwise accumulate at Long Term Care Facilities which federally are non-registered locations.     

Medical licensure

Society has granted considerable regulatory powers to physician-dominated licensing boards. While achieving the social benefit of protecting the consumer by maintaining minimum standards for entry into the profession, the licensure mechanism has also resulted in substantial social costs. Excessive restriction on entry into the profession has occurred; difficulty in developing innovations in the distribution of medical care have resulted; and severe limitations on the activities of nonmedical health practitioners who pose a competitive threat to the physician have taken place. To reduce these social costs, the licensing mechanism should be reconstructed with physicians serving in advisory, not policy-making, positions.     

Sexual abuse by psychotherapists: the call for a uniform criminal statute.

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients. The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.     

Occupational licensing and minorities

The costs of occupational licensing fall disproportionately on minorities and the poor. Licensing seeks to eliminate the lower-quality, lower-price services that low-income consumers would be more likely to select. Perhaps more important, however, is the impact on workers who are denied entry into the occupation. Recent evidence confirms that licensing regulations esclude less-educated and minority workers more than proportionally. The consequences for these excluded workers include unemployment or lower earnings—either by moving to a less-favored occupation or practicing without a license. The outcomes ofnonprofessional trades regulated by licensing are similar to those predicted by segmented labor market theory. Those who fail to obtain the credential (license) are denied access to the trade even if they are no less productive.     

Are bar associations anticompetitive? An empirical analysis of recommended prices for legal services in Spain

The European Commission Report on Competition in Professional Services found that recommended prices by professional bodies have a significant negative effect on competition since they may facilitate the coordination of prices between service providers and/or mislead consumers about reasonable price levels. Professional associations argue, first, that a fee schedule may help their members to properly calculate the cost of services avoiding excessive charges and reducing consumers’ searching costs and, second, that recommended prices are very useful for cost appraisal if a litigant is condemned to pay the legal expenses of the opposing party. Thus, recommended fee schedules could be justified to some extent if they represented the cost of providing the services. We test this hypothesis using cross-section data on a subset of recommended prices by 83 Spanish bar associations and cost data on their territorial jurisdictions. Our empirical results indicate that prices recommended by bar associations are unrelated to the cost of legal services. Therefore, we conclude that fee schedules are not playing the role of providing useful cost information to practitioners and therefore this efficiency justification is weak.     

Nurse practitioner challenges to the orthodox structure of health care delivery: regulation and restraints on trade

Until recently, physicians have been the primary health care providers in the United States. In response to the rising health care costs and public demand of the past decade, allied health care providers have challenged this orthodox structure of health care delivery. Among these allied health care providers are nurse practitioners, who have attempted to expand traditional roles of the registered nurse. This article focuses on the legal issues raised by several major obstacles to the expansion of nurse practitioner services: licensing restrictions, third party reimbursement policies, and denial of access to medical facilities and physician back-up services. The successful judicial challenges to discriminatory practices against other allied health care providers will be explored as a solution to the nurse practitioners' dilemma.     

The hospital board at risk and the need to restructure the relationship with the medical staff: bylaws,peer review and related solutions

This article argues that the current structure of the hospital governing board and medical staff relationship does not support and promote quality and patient-centered care. The fundamental flaw in the current structure is the interdependent, yet independent and discordant relationships between hospital governing boards and medical staffs. These relationships are described as cultures and fit into three types of "silos": organizational (the "structural silo"); professional (the "professional silo", including the "culture of blame"); and the fragmented quality information silo (the "informational silo"). While case law, statutory requirements and regulatory expectations clearly state that governing boards are ultimately responsible for quality of patient care, governing boards delegate these functions to medical staff without having sufficient information to measure and monitor quality. As a result, problems manifest because of these failures of oversight and compliance. Dramatic lapses in quality occur due to overuse, underuse, and misuse of healthcare services. Furthermore, the challenges and opportunities from improved quality and patient safety, as a strategic business driver, cannot be seized until the underlying structural flaws are understood and addressed. This article proposes that solutions become apparent when the various health care constituencies are educated about these cultural impacts and when multidisciplinary bodies, with board leadership and direct authority, integrate and consider quality information.     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

TORTS

Editors' Note: The following opinion, published in the Daily Appellate Report (August 3, 1990, pp. 8667-8673), is an inipvrtant Californiadecision giving very broad immunity from civil suit to evaluators and mediuiors who operate both within and outside the court. Both the majoriy and the minority opinion have a very interesting discussion of case and statutory law regarding this issue. This decision protects evaluatorsand mediatorsfrom vexatious litigation which might inhibit the evaluator from providing an accurate assessment or the mediator from proposing oprions for mutual gain out of fear of being sued. Left unanswered however; are thelimits to acceprabk mediator|aluator behavior and the sources of redress which clients may pursue when they feel mediator orevaluator behavior has been detrimental: Should courts have a formal complaint process? Do clients have access to redress through professional societies or licensing boards? These are some questions we would like to address in future issues. Anyone who has informed views about these questivns is invited to submit them.     

Educational Research and the Protection of Human Subjects

Educational research is increasingly subject to legal restrictions designed for the protection of human subjects of research. In this article the author discusses legal restrictions–both in the courts and under HEW regulations–on educational research, comparing these restrictions with those on biomedical research. He finds that although educational research in particular instances may give rise to suits for damages for invasion of privacy or intentional infliction of psychological distress, the legal issues relating to educational research will most often be resolved in proceedings before institutional review boards charged by HEW with the responsibility for passing upon proposals to conduct research on human subjects. He argues that the interests protected in proceedings before institutional review boards are not limited to those that have received judicial recognition in suits for damages. The author finds that the requirement that the informed consent of subjects be obtained presents difficult issues for educational research. He notes in particular the problems presented by research proposals that as an element of the research design contemplate the observation of subjects without their knowledge and the use of children as research subjects.     

Parent coordinators: Effective interventions in adolescent mental health

The mental health system in the US was not meeting the increasing needs of teens before the pandemic started in 2020. The pandemic served to stress adolescents and their parents while significantly limiting the availability of services. Separated parents may have disputes about whether adolescents have mental health care needs, what services the child needs, where those services will be obtained, and who will be involved. The Parenting Coordinator as a dispute resolution professional can assist families in reaching agreements and meeting their teen's needs for care.     

Distance health services under the general agreement on trade in services

This Article discusses the state of distance health with respect to the General Agreement on Trade in Services (GATS). After examining the various aspects of telemedicine and its place in international trade, the author looks at the structure and functioning of GATS and how telemedicine is regulated under this agreement. The author argues that the potential for telemedicine under this agreement has yet to be fulfilled and suggests a number of ways to realize its potential. Ultimately, however, the author concludes that the single most important international trade objective for the United States healthcare industry should be to get its own house in order with respect to cross-border provision of health services. From an international trade perspective, the problem of non-uniform state licensure requirements within the United States makes it very difficult for the United States to negotiate market access commitments for distance health services with other countries. Therefore, it is not realistic to expect significant progress in the liberalization of distance health services until the United States has in place a reasonably uniform domestic system of licensure and regulation for telemedicine practitioners.     

Medical professionals convicted of accessing child pornography--presumptive lifetime prohibition on paediatric practice? Health Care Complaints Commission v Wingate

Health Care Complaints Commission v Wingate [2007] NSWCA 326 concerns an appeal from the New South Wales Medical Tribunal regarding its findings on professional misconduct outside the practice of medicine in relation to a doctor convicted of possessing child pornography. The latest in a number of cases on this issue in Australia, it highlights the complexity of such decisions before medical tribunals and boards, as well as the diversity of approaches taken. Considering both this case and the recent Medical Practitioners Board of Victoria case of Re Stephanopoulos [2006] MPBV 12, this column argues that Australian tribunals and medical boards may not yet have achieved the right balance here in terms of protecting public safety and the reputation of the profession as a whole. It makes the case for a position statement from Australian professional bodies to create a presumption of a lifetime prohibition on paediatric practice after a medical professional has been convicted of accessing child pornography.     

The challenges of fighting sex trafficking in the legalized prostitution market of the Netherlands

In 2000, the Dutch authorities lifted the ban on brothels in the Netherlands. The essence of their approach was to regulate prostitution. People of legal age could now voluntarily sell and purchase sexual services. Brothels which complied with certain licensing conditions were legalized. This paper critically assesses the logic of a position that argues that human trafficking is reduced when actors in the legalized prostitution sector are made responsible for what happens on their premises (using licensing conditions). This idea is confronted with empirical evidence about the Netherlands in general and the city of Amsterdam in particular. Furthermore, the paper addresses two questions. What are consequences of the regularization of prostitution for the criminal investigation and prosecution of sex trafficking? How do criminal justice agencies collaborate with regulatory authorities in the regulated and non-regulated sectors of the prostitution market? The main conclusion is that the screening of brothel owners and the monitoring of the compliance of licensing conditions do not create levels of transparency that enable sex trafficking to be exposed. The prostitution business retains many characteristics of an illegitimate market and the legalization and regulation of the prostitution sector has not driven out organized crime. On the contrary, fighting sex trafficking using the criminal justice system may even be harder in the legalized prostitution sector.     

Reporting health care practitioners to state licensing boards--VA. Final rule

This document sets forth the policy of the Department of Veterans Affairs (VA) for reporting physicians, dentists, and other health care professionals to State licensing boards under authority of the act captioned "Veterans' Administration Health-Care Amendments of 1985" (the Act) and other authority. The intended effect of this policy is to cooperate with State licensing boards for the purpose of promoting better health care.     

Foreign lawyers practising national law: temporary counsel in small jurisdictions

Temporary licensing of foreign counsel is not necessarily limited to small jurisdictions, but it is an important, and contested, part of the legal landscape in many small jurisdictions. Small jurisdictions, with small national Bars, face particular problems concerning capacity to practise national law. As this paper shows, small national Bars may simply be running at capacity, or beyond, when a case comes along, the small size meaning a relatively small spike of demand can exhaust spare capacity. Alternatively, perhaps particularly if the national legal profession is a unified one, individual legal practitioners may experience a similar problem of capacity, with none prepared to take on a case which will dominate their working life to the detriment of other cases and other clients. On a different point, dealing with conflicts of interest within a small professional community is an ongoing problem for small jurisdictions. Finally, a small Bar may be too small to support specialist counsel with particular expertise in a particular field of national law.

This article explores the issue of temporary counsel in small jurisdictions through an in-depth case study of licensing in one small jurisdiction, that of the Isle of Man. The topic is approached through a range of methods. Doctrinal legal analysis, drawing particularly on relevant Manx statute, regulation and case-law, is supplemented by historical archival analysis; a detailed analysis of the 468 licences granted in the Isle of Man; and qualitative interviews with a selection of key actors. This study shows a pattern of acclimatisation to the licensing of foreign counsel in the Isle of Man since 1969, the juridification of the process of licensing since 1995, the development of an offshore Manx Bar, and the challenges the licensing system poses to the Manxness of Manx legal proceedings.

Moving beyond the Isle of Man, the paper argues that the national Bar of a small jurisdiction has constitutional significance, and that the impact of a substantially employed licensing scheme can be important in determining the shape of this national Bar. It concludes with a call for a comparative study of temporary counsel in small jurisdictions, taking into account the transnational legal context; and for a fuller consideration of a possible offshore offshore Bar as contributing to a continued relationship between common law jurisdictions in a post-colonial context.     

论建立市场取向的行政许可制度

行政许可制度改革如何坚持市场取向 ,实现根本性的制度突破 ,这是当前我国行政审批制度改革和制定《行政许可法》的一个重大方向性问题。本文尝试提出建立我国新型行政许可制度的建设性方案和创新思路。文章论述了上海浦东新区试行的告知承诺制的价值、存在的法律问题及其完善建议 ,提出并论证了实行一个部门许可是解决当前多头许可的根本性出路问题 ,探讨了创建政务服务局、实行后置许可、进行网络化许可和采用默示许可等其他制度创新措施。     

Technology licensing contracts features and diversity

Given the nature of knowledge and characteristics of the intellectual property rights system, technological transactions tend to be governed by contracts that are costly and not highly profitable. This explains why there are so few technology licensing agreements. However, in some situations, private and specific institutions tend to enable property rights to be more precise, knowledge transfers to be easier, and technology licensing agreements to be less complex to design and to run. This explains why there is a concentration of technology licensing agreements in some industries and in some relational situations. These shed light on the design of firms’ strategies to valorize intellectual assets and of public policies to stimulate innovation and diffusion.     

Medicare program; revisions to payment policies and adjustments to the relative value units under the physician fee schedule for calendar year 1999--HCFA. Final rule with comment period

This final rule makes several policy changes affecting Medicare Part B payment. The changes that relate to physicians' services include: resource-based practice expense relative value units (RVUs), medical direction rules for anesthesia services, and payment for abnormal Pap smears. Also, we are rebasing the Medicare Economic Index from a 1989 base year to a 1996 base year. Under the law, we are required to develop a resource-based system for determining practice expense RVUs. The Balanced Budget Act of 1997 (BBA) delayed, for 1 year, implementation of the resource-based practice expense RVUs until January 1, 1999. Also, BBA revised our payment policy for nonphysician practitioners, for outpatient rehabilitation services, and for drugs and biologicals not paid on a cost or prospective payment basis. In addition, BBA permits certain physicians and practitioners to opt out of Medicare and furnish covered services to Medicare beneficiaries through private contracts and permits payment for professional consultations via interactive telecommunication systems. Furthermore, we are finalizing the 1998 interim RVUs and are issuing interim RVUs for new and revised codes for 1999. This final rule also announces the calendar year 1999 Medicare physician fee schedule conversion factor under the Medicare Supplementary Medical Insurance (Part B) program as required by section 1848(d) of the Social Security Act. The 1999 Medicare physician fee schedule conversion factor is $34.7315.