North Carolina requires that workers engaged in a variety of jobs be licensed by, and follow regulations established by, the state. What happens, though, when a worker is certified by multiple licensing boards and the agencies’ regulations appear to be in conflict? In a ruling Oct. 18, the N.C. Court of Appeals addressed such a case involving a counselor and psychological associate.
David Trayford is licensed as both a psychological associate (LPA) by the N.C. Psychology Board and as a licensed professional counselor (LPC) by the N.C. Board of Licensed Professional Counselors.
For several years he worked as both an LPC and an LPA. From late 1998 on, Trayford provided group counseling sessions for sexual offenders and a support group for people close to sexual offenders. In addition, he did contract work as an LPA for Medicaid clients through the Randolph County Mental Health Center.
Trayford took significant steps to keep his LPA and LPC activities separate. He maintained two offices, used separate letterhead and consent forms, and never held himself out as a psychological associate to his counseling clients. He testified that the public could not access him as an LPA, as all that work was done by referral from a mental-health center. Trayford’s LPA work was supervised as required by the Psychology Board.
When Trayford notified the Psychology Board that he was planning to drop his LPA work, it began an investigation, and placed Trayford on probation for two years for not having his counseling practice supervised according to the standards set for psychology practices.
“[I]f the activities [performed] meet the definition of those activities requiring supervision under [the Psychology Practice Act], [Trayford] is required to receive such supervision no matter under which license he purports to be performing such activities” the Psychology Board wrote in issuing the sanction. Trayford appealed the board’s action.
At issue before the N.C. Court of Appeals were two seemingly incompatible sections of the Psychology Practice Act. That act, by its own terms, does not prevent “qualified members of other professional groups from rendering services consistent with their professional training and code of ethics, provided they do not hold themselves out to the public by any title or description stating or implying that they are psychologists or are licensed, certified, or registered to practice psychology.” The Professional Counselors Act, meanwhile, exempts LPCs “from rules pertaining to counseling adopted by other occupational licensing boards.”
The ambiguity comes from a different portion of the Psychology Practice Act, which the board used as the basis for Trayford‘s probation. It states, “Except as otherwise provided in this Article if a person exempt from the provisions of [the Psychology Practice Act] and not required to be licensed under [the Psychology Practice Act] is or becomes licensed under [the Psychology Practice Act], he or she shall be required to comply with all conditions, requirements, and obligations imposed by Board rules or by statute upon all other psychologists licensed under [the Psychology Practice Act].”
Two of the three-judge panel held that the Psychology Board’s interpretation was incorrect. They found the controlling language was the provision allowing members of other professional groups to practice in accordance with their training, ethics, and regulations. The appeals court also noted various problems associated with the Psychology Board’s position.
“…The Psychology Board’s interpretation would discourage individuals from studying and achieving multiple licenses, despite the fact that such additional learning could only bolster learning in those areas falling within the auspices of multiple boards,” Judge Ann Marie Calabria said.
“Other practical considerations militate against the Psychology Board’s interpretation. For example, the Psychology Board’s interpretation would produce harsh results: in the instant case petitioner, duly licensed by the Psychology Board yet also licensed by the Counselors Board as a LPC, would be forced to adhere to the Psychology Board’s requirements despite the fact that those requirements were more onerous than the ones imposed by the Counselors Board and despite that his activities fall squarely within the ambit of the counseling. In such circumstances, the Psychology Board’s requirements would supercede and be paramount over those of the Counselors Board. Petitioner’s LPC practice would be at a material disadvantage to any other LPC practice conducted by another solely licensed as a LPC, despite the fact that the other individual would lack the benefit of petitioner’s additional education on the relevant subject matter.”
Judge Barbara Jackson dissented from the majority opinion. “…It is not sufficient for petitioner to show his activities fall within the purview of the Professional Counselors Act under the statutory provisions harmonized herein; he also must show that his activities fall outside the purview — and regulation — of the Psychology Practice Act. Because his activities do not, I would overrule these assignments of error and affirm the decision of the trial court.”
Because of Jackson’s dissent, the N.C. Supreme Court will hear the case if the Psychology Board further appeals.
The case is Trayford v. N.C. Psychology Bd., (04-865). (a href=http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040865-1.htm>http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040865-1.htm)
Michael Lowrey is associate editor of Carolina Journal.