CA Administrative Law Lawyer

Issue: Limits of courts’ standard of review of board actions

The Court of Appeals of Nevada, in a January 30 decision, rejected the appeal of an alcohol and substance abuse counselor who had been enjoined from using psychological testing and diagnosis on his patients (Hopper v. Board of Psychological Examiners). The court ruled that the regulations controlling the licensed alcohol and drug counseling profession do not allow those licensees to engage in the practice of other licensed professions.

David Hopper, an LADC counselor, had a habit of treating the scope of his licensure liberally, testing and diagnosing some of his clients with psychological disorders despite not being licensed to practice psychology, referring to himself as a “neuropsychologist,” and engaging in the use of biofeedback.

After learning of Hopper’s activities, the board filed a legal complaint to prevent him from using psychological testing and diagnosing, referring to himself as a psychologist, and using biofeedback in his practice. This was not Hopper’s first brush with the negative aspects of licensing law; in a 2009 Nevada Supreme Court case, the Court held that Hopper had illegally practiced unlicensed psychology and suggested, but did not hold, that the use of biofeedback may require a psychologist license.

After a state district court granted the board an injunction, Hopper appealed, offering the novel argument that, because he was trained in psychological and psychometric testing and because state regulations allow alcohol and substance abuse counselors to “conduct testing for which the counselor was trained,” without mention of the need for further licensure, Hopper was within his rights to engage in those tests.

This argument did not succeed. Despite the regulations’ failure to specifically mention the need for further licensure, the court noted that “nothing in these regulations suggests an intention to overrule every other licensing requirement that exists in Nevada law.”

Reading the relevant regulation in the context of the rest of Nevada licensing law, the court said that “the mere fact that the [regulation] permits an LADC to engage in certain testing does not mean that the LADC is therefore automatically exempt from any other licensing requirement that may also apply to that testing.”

“To read the regulations otherwise . . . would be to effectively read [them] as overriding the licensing requirements of any other statute, which would permit an LADC, but only an LADC, to engage in all manner of medical, psychological, and scientific practices without a license while prohibiting anyone else from doing so,” an unreasonable result.

The counselor made other, also unsuccessful, arguments. He argued that, while he was prohibited from calling himself a “psychologist,” the prohibition said nothing about the term “neuropsychologist.” But the court held that the legal prohibition on the use of “psychologist” by non-licensees applied to variations of the phrase, as well.

Hopper noted that other licensing boards—the medical and family therapist boards, in particular—allow their licensees to use biofeedback, but the court said that the injunction at issue in the case was still valid, as the district court found that Hopper’s use of biofeedback was inappropriate under the specific circumstances of his case.

The lower court’s decision was affirmed and the case dismissed.

© 2018 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.

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