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State Regulation of Psychologists and Counselors

§ 4.10
Key point 4-10. Every state strictly regulates the practice of both psychology and counseling. However, pastoral counseling within a church to members of the congregation does not constitute the unauthorized practice of either psychology or counseling. Clergy who establish counseling ministries outside of this limited context may be liable for the unauthorized practice of either psychology or counseling.

One of the principal functions of most ministers is acting as a counselor. Many ministers spend several hours each week in counseling sessions with church members and others. Some ministers have left the pastoral ministry to open full-time counseling ministries independent of their church. Some churches employ associate ministers with special training specifically in counseling. Do state laws regulating the practice of psychology or counseling apply in any of these situations?

All fifty states have enacted statutes regulating the practice of psychology.[131] See generally Note, State Regulation of Psychologists, 58 WASH. U. L. Q. 639 (1980). These statutes prohibit persons from practicing psychology or representing that they are psychologists unless they are certified or licensed by the state. The purpose of such statutes is to protect the public against "charlatans and quacks who, despite inadequate training and professional experience, guarantee easy solutions to psychological problems."[132] National Psychologist Association v. University of New York, 203 N.Y.S.2d 821 (1960).

Psychologist regulation statutes fall into two general categories. Certification laws do not prevent persons from practicing psychology, but rather prohibit use of the title "psychologist" or any of its derivatives by persons who are not certified psychologists. Licensure laws prohibit the practice of psychology by anyone who is not a licensed psychologist. Certification laws have been criticized for not adequately protecting the public against unqualified practitioners. Licensure statutes have been criticized as being too restrictive. A typical certification statute provides:

No person shall, without a valid, existing certificate of registration as a psychologist issued by the [state] attach the title "psychologist" to his name and under such title render or offer to render services to individuals, corporations, or the public for remuneration or a fee; or render or offer to render to individuals, corporations, or the public, services if the words "psychological," "psychologic," "psychologist," or "psychology" are used to describe such services by the person or organization offering to render or rendering them.[133] ILL. REV. STAT. ch. 111, § 5303.

Certification is obtained from state authorities through an application process. Applicants ordinarily must demonstrate that they are at least 21 years of age, of good moral character, and a citizen of the United States. In addition, they must have earned a specified degree in psychology and have practiced psychology for a minimum number of years.

Licensure statutes prohibit any person from engaging in the practice of "psychology" without a valid license. A typical licensing statute provides, "No person shall practice as a psychologist … unless he is validly licensed and registered."[134] MO. REV. STAT. § 337.015. Licensing statutes differ in their definition of the phrase "practice of psychology." Some statutes define the term broadly. For example, one statute provides:

The "practice of psychology" … is defined as rendering to individuals, groups, organizations, or the public any psychological service involving the application of principles, methods, and procedures of understanding, predicting and influencing behavior, such as the principles pertaining to learning, perception, motivation, thinking, emotion, and interpersonal relationships; the methods and procedures of interviewing, counseling, behavior modification, and psychotherapy; of constructing, administering, and interpreting tests of mental abilities, aptitudes, interests, attitudes, personality characteristics, emotion, and motivation; and of assessing public opinion.[135] Id. See also COLO. REV. STAT. § 12 43 108; GA. ANN. CODE § 84 3101; KY. REV. STAT. § 319.010; OKLA. STAT. ANN. Title 59, § 1352.

Other statutes define practice of psychology more narrowly.[136] See, e.g., ARIZ. REV. STAT. ANN. § 32 2061; MINN. STAT. ANN. § 148.81; N.Y. EDUC. LAW § 7601.

All licensing statutes exempt certain activities from the definition of practice of psychology. Exemptions vary from state to state, but the following exemptions are common: (1) professional activities of lawyers, physicians, clergymen, social workers, sociologists, and counselors; (2) activities of government employees in the ordinary course of their employment; (3) activities of a student, intern, or resident in psychology, pursuing a course of study at an accredited university; (4) educational activities of teachers in public and private schools, or the authorized duties of guidance counselors.

An application for a license to practice psychology must satisfy various requirements. Ordinarily, these are similar to the requirements for obtaining a certificate, and generally include a minimum age (typically 21), good moral character, being a resident of the state and citizen of the United States, professional experience of a prescribed duration, and the prescribed academic degree. Some states require that the academic degree be a doctoral degree based on a program of studies that were primarily psychological. Others permit a masters degree in psychology plus a longer number of years of professional experience.[137] See, e.g., MO. REV. STAT. § 337.020; OKLA. STAT. ANN. title 59, § 1362.

Several states have combined certification and licensure statutes. Such statutes prohibit anyone from practicing psychology without a license, and also prohibit use of the term psychology or any of its derivatives by any person who is not a licensed psychologist.[138] See, e.g., MO. REV. STAT. § 337.015; KY. REV. STAT. § 319.005.

Can persons engage in "counseling" if they are not licensed to practice psychology? Counseling certainly would come within an expansive definition of the term practice of psychology, and thus would appear to be a prohibited practice. Some courts have reached this conclusion. In one case, a state board of psychological examiners obtained a court order barring an individual who had not applied for or received a license to practice psychology from engaging in the practice of counseling. A state appeals court upheld the court order prohibiting the counselor from engaging in the practice of counseling.[139] See note 131, supra. This case resulted in the enactment of a separate licensing statute for counselors.

The validity of psychologist licensing laws has been challenged in several cases. Such statutes have been upheld despite the claims that (1) they are unconstitutionally vague; (2) they violate due process of law; (3) boards of psychologist examiners unconstitutionally combine prosecutorial and adjudicative powers; (4) they arbitrarily deny licenses to persons holding doctorate degrees in disciplines related to psychology such as vocational rehabilitation and guidance counseling; and (5) they constitute an unconstitutional delegation of legislative authority to administrative agencies without adequate standards for the agency to follow.[140] Id.

In conclusion, ministers who are employed full-time in a pastoral ministry by a church congregation are free to counsel with church members and others in the course of their employment with their church. The same rule ordinarily will apply to ministers who are hired by a church specifically for a counseling ministry. In neither case, however, may a minister use the term psychology or any of its derivatives in connection with such counseling ministry unless he or she is in fact a licensed psychologist. Ministers who establish a full-time or part-time counseling ministry independent of a church ordinarily should not engage in professional counseling unless (1) they are specifically exempted from the prohibition against the unlicensed practice of psychology; (2) their state board of psychologist examiners does not prosecute unlicensed counselors; (3) the term practice of psychology is not defined broadly enough (under applicable state law) to include counseling; or (4) their state has a professional counselor licensing statute under which the counselor is licensed or exempt.

Finally, many churches maintaining counseling ministries do not charge for such services but do require counselees to make a "contribution" to the church. Such contributions, often based on the number of hours of counseling, ordinarily are deductible only to the extent that they exceed the fair market value of the counseling services received in exchange.[141] See, e.g., Hernandez v. Commissioner, 109 S. Ct. 2136 (1989); Rev. Rul. 76 232, 1976 1 C.B. 62. See also Triune of Life Church, Inc. v. Commissioner 85 T.C. 45 (1985), aff'd, (unpublished decision of the 3rd Circuit, June 3, 1986).

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