APA and ASPPB Model Act Provisions: Application Fraud and Good Moral Character

Alex M. Siegel, J.D., Ph.D.ASPPB Midwinter Meeting

Orlando, FloridaApril 8, 2011

ASPPB MODEL ACT

• VI. REQUIREMENT FOR LICENSURE• A. AN APPLICANT FOR LICENSURE SHALL BE

AT LEAST 21 YEARS OF AGE AND OF GOOD MORAL CHARACTER. (GMC)

• XII. GROUNDS FOR DENIAL, SUSPENSION OR REVOCATION OF LICENSES AND OTHER DISCIPLINARY SANCTIONS

• A. FRAUD IN APPLYING FOR OR PROCURING A LICENSE TO PRACTICE PSYCHOLOGY;

APA MODEL ACT

• D. REQUIREMENTS FOR LICENSURE• 2. …Applicants shall be required to show

evidence of good character, e.g., that they have not been convicted of a criminal offense that bears directly on the fitness of the individual to be licensed.

• K. The Board shall have the power and duty to suspend, place on probation, or require remediation for any psychologist for a specified time, to be determined at the discretion of the Board, or to revoke any license to practice psychology or to take any other action specified in the rules and regulations whenever the Board shall find by a preponderance of the evidence that the psychologist has engaged in any of the following acts or offenses:

• 1. fraud in applying for or procuring a license to practice psychology;

• L. BOARD HEARING AND INVESTIGATIONS• 2. The following are exceptions to the

limitations period in paragraph (1): • a. acts or offenses involving a violation of

Sections K(1),… ;

• THANK YOU VERY MUCH• ANY QUESTIONS

Moral Character

• Pertaining to behavior from a point of view of right and wrong

• Of pertaining to the science or doctrine of human nature as fitted for conduct

• Capable of understanding the difference between right and wrong

• (Webster Dictionary)

MORAL CHARACTER

• Pertaining or relating to the conscience or moral sense or of the general principle of right conduct

• (BLACK’S LAW Dictionary)

Know the Difference Between Right and Wrong

• Philosophically- Stanford Encyclopedia• aesthetics, cynicism, causationism, stoicism• Biblical, Greeks, Kant, Hume, Mills, Rawls• Legally – insanity standard• Cognitively- knowing or understanding• Morally- collective or individual• Ethically- look to APA or CPA ethics code• Culturally-does it change depending on culture• Psychologically- Milgram studies: buzzer, dime

Aristotle’s definition of virtuous or moral character

• Excellence of character, then, is a state concerned with choice, lying in a mean relative to us, this being determined by reason and in a way in which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect.

Psychology WIKI

• The evaluation of a particular individual’s durable moral qualities.

• Existence or lack of virtues such as integrity, courage, fortitude, honesty, and loyalty or good behaviors or habits

• Psychologist Lawrence Pervin defines moral character as “ a disposition to behave expressing itself in consistent patterns of functioning across a range of situations.”

• (Pervin 1994, p.108)

Is Moral Character like Obscenity

• US Supreme Court Justice Potter Stewart said in 1964

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”

• (Jacobellis v. Ohio (1964)

LOOK TO THE JURISDICTIONS

• WHAT DO YOU SAY ABOUT GOOD MORAL CHARACTER?

HAWAII LICENSING LAW• §465-7 Requirements for licensing. (a) Every applicant for a license as a

psychologist shall submit evidence satisfactory to the board that the applicant meets the following requirements: (1) The applicant for licensure shall possess a doctoral degree from: (A) An American Psychological Association approved program in clinical psychology; or (B) A professional psychology training program, awarded by an institution of higher education, or from a regionally accredited institution; (2) The applicant for licensure shall demonstrate that the applicant has completed one year of post doctoral supervised experience in health service in psychology, and: (A) An internship approved by the American Psychological Association; or (B) One year of supervised experience in health service in psychology in an internship or residency program in an organized health service training program;

• [DOES NOT MENTION MORAL CHARACTER AS A REQUIREMENT]

NEWFOUNDLAND AND LABRADOR

• Registration as a fully registered psychologist in the province of Newfoundland and Labrador requires successful completion of the following:

• a) (See Foundational Knowledge);• b) (See Graduate Competencies);• c) supervised experience• d) Successful completion of EPPP; • e) Professional Liability Insurance;• f) Certificate of Conduct;• g) Payment of fees

Pennsylvania Licensing Law

• Section 6. Qualifications for License• (a) An applicant shall be qualified for a license

to practice psychology after submission of proof satisfactory to the board that the applicant:

• (1) is of acceptable moral character

IDAHO LICENSING LAW

• 54-2307.QUALIFICATIONS FOR LICENSE -- APPLICANTS FOR WHOM AN EXAMINATION MAY BE REQUIRED.

• An applicant shall be qualified for a license to practice psychology provided proof satisfactory to the board has been received showing:

• (1) Acceptable moral character; and

BRITISH COLUMBIA REGISTRATION

• 44. QUALIFICATION FOR REGISTRATION• (1) an applicant for registration must• (c) have good character and be fit to practice

psychology

GEORGIA LICENSING LAW

• (b) A candidate for such license shall furnish the board with satisfactory evidence that the candidate:

• (1) Is of good moral character;

MAINE LICENSING LAW

• §3831. Licensure; qualifications• 2. Psychologist.• A candidate for this license shall furnish the

board with satisfactory evidence that the candidate is trustworthy and competent to practice as a psychologist in such manner as to safeguard the interest of the public;

MAINE GAMBLING CONTROL BOARD

• In determining whether a person is of good moral character, the board shall consider qualities that include but are not limited to honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility and respect for the rights of others.

MASSACHUSETTS PSYCHOLOGY

• 3) 3.06: Endorsement Requirements(1) An applicant for licensure shall obtain a professional and ethical endorsement from each of three individuals of recognized standing in a psychological field. Endorsement forms are included with Board application forms.

MASS. REAL ESTATE• GMC is Prerequisite for Licensure and licensure Renewal• DETERMINATION OF GMC COMPLIANCE• Each applicant must be “of good moral character” for the Board to

approve the applicant for licensure. The word “applicant” shall hereinafter be used to mean any applicant for initial Massachusetts licensure as a real estate salesperson or broker.

• Attributes of GMC• The Board shall determine whether an applicant possesses the GMC

essential for the safe and competent practice as a real estate agent by evaluating the applicant’s demonstrated honesty, trustworthiness, integrity, accountability, reliability, ability to distinguish between right and wrong and to observe the difference between the two, avoidance of aggression to self and others, and avoidance of injustice and deceit, among other relevant attributes.

• CASE BY CASE EVALUATION PROCESS FOR DETERMINATION OF GMC COMPLIANCE• In each case where an applicant is not required to be permanently or temporarily excluded from

licensure under this Policy the Board will evaluate the applicant’s compliance with the GMC requirement on a case by case basis in accordance with the process and factors enumerated as follows:

• The Board will evaluate any conduct of the applicant that demonstrates an absence of the necessary attributes of GMC as set forth above in this Policy to determine whether the conduct:1) poses a threat to the public health, safety or welfare;2) is of significance to the provision of safe and competent services as a real estate agent; and3) is characteristic of the applicant’s conduct.

• In making its determination of an applicant’s compliance with the GMC requirement, the Board will evaluate factors including, but not limited to:

• 1) the nature and seriousness of all conduct at issue, including any criminal conviction(s) or disciplinary action(s) by a licensure authority, commission or board;2) the sufficiency of the applicant’s sustained rehabilitation;3) the applicant’s age at the time all conduct at issue occurred;4) the frequency of occurrence of all conduct at issue;5) the recency of all conduct at issue;6) any mitigating or aggravating circumstances related to theconduct; and7) the applicant’s acknowledgment of her or his accountability for her or his conduct and recognition of its significance to licensure as a real estate agent.

CALIFORNIA LICENSE LAW

• A Candidate for such license shall furnish the board with satisfactory evidence that the candidate:

• (1) is of good moral character

• ATTESTATIONS OF GOOD MORAL CHARACTER NOT REQUIRED

• No person applying for licensure under this code shall be required to submit to any licensing board any attestation by other persons to his good moral character

Grounds of Denial of License § 475.

(a) Notwithstanding any other provisions of this code, the provisions of this division shall govern the denial of licenses on the grounds of:

(1)Knowingly making a false statement of material fact, or knowingly omitting to state a material fact, in an application for a license.

(2)Conviction of a crime(3)Commission of any act involving dishonesty, fraud or deceit with

the intent to substantially benefit himself… (c) A license shall not be denied, suspended, or revoked on the

grounds of a lack of good moral character or any similar ground relating to an applicant’s character, reputation, personality, or habits.

• Most jurisdictions (around 40) will apply or infer the grounds for disciplinary action to revoke or suspend a license to apply to denying an applicant a license on the basis of lack of unprofessional behavior or lack of good moral character.

• About 35 jurisdiction have a requirement of good moral character before one can become licensed.

• Most do not define it.• Some defined it in others regulations/ state

laws or in case law.

ARIZONA LICENSE LAW

• Section 32-2091.02 Qualification of Applicant• 3. Be of good moral character. The board’s

standard to determine good moral character shall not violate federal discrimination laws.

INDIANA LICENSING LAW

• IC 25-33-1-5.1 Issuance of license; • (a) Except as provided in section 5.3 of this

chapter, the board shall issue a license to an individual who meets the following requirements:

• (2) Is at least eighteen (18) years of age. • (3) Has not been convicted of a crime that has a

direct bearing upon the applicant's ability to practice competently.

Are GMC Requirements Defensible?

• In order to protect the safety, health and general welfare of its citizens, jurisdictions have right to require licensed/registered psychologists and applicants for licensure to be held to a high moral and ethical standard.

• Schware v. Board of Examiners of New Mexico

• In Abrahamson v. Illinois Department of Professional Regulation (1991) the Illinois Supreme Court ruled the requirement that an applicant for a medical license be of good moral character was not unconstitutional vague and could be broadly defined to include evidence of honesty, fairness and respect for the rights of others and the law.

Abrahamson

• Court held that the requirement of GMC was of no lesser importance than any other requirement for licensure

• Vermont Supreme Court upheld the actions of the Vermont Psychology Board when it denied a license to an applicant who falsified his academic credentials saying the applicant was morally unfit to practice.

• Applicant challenged moral fitness as overly ambiguous and thus unenforceable

• Brady v. Barasch 1990

Pennsylvania Bethea-Tumani case

• In Pennsylvania, Commonwealth Court agreed with the nursing board decision to deny a license to an applicant nurse based on her;

14 year old felony aggravated assault conviction, there is no per se rule that a conviction that remote could not be considered

If the board erred on relying on that conviction there was sufficient evidence to support a denial based on her recent misdemeanor insurance fraud and conspiracy convictions

• Most recent charge related to honesty and bad judgment supporting lack of GMC

• The Board was not required to hear live testimony in order to make a credibility determinations and ascertain whether applicant possessed the requisite good character for licensure, but was permitted to review record of proceedings provided to it.

• Bethea-Tumani v. BPOA 2010

Pennsylvania AKE case

• Board of Accountancy revocation of accountant’s CPA and license to practice public accounting in PA, due to the accountant’s criminal harassment conviction in another state was not justified since nearly 7 years had elapsed between accountant’s offending conduct and his application to reactivate his CPA credentials, his conduct was limited to a two period, he had not engaged in similar conduct since his arrest and

• His offending conduct did not relate to any of the offending character qualities that the legislature identified as central to holding a CPA certificate, i.e., honesty, integrity and being able to practice accounting in a non-negligent manner and accountant was rehabilitated.

Papadakis et al Study (NEJM 2005)

Investigated the association of disciplinary action against physicians who were disciplined by a state medical board with prior unprofessional behavior in medical school

Found disciplinary action taken by against physicians was associated with unprofessional behavior when the physicians were students

Unprofessional Behavior

• Irresponsibility• Diminished Capacity for Self Improvement• Poor Initiative• Impaired Relationships with Students and

Faculty• Impaired relationship with nurses

• Physicians who disciplined by State Medical Boards 3 times as likely to have displayed unprofessional behavior in medical school than the control group.

Kelly and Crevette (2005)

• Applicants for nursing license with prior convictions were no more likely to be disciplined by a state board than applicants without prior convictions

NEBRASKA LICENSING LAW• Misdemeanor or felony conviction or discipline• If you had a misdemeanor or felony conviction (other than a minor traffic

violation) or had your license in any health care profession in another state revoked, suspended, limited or disciplined in any manner, you must request the following documents be sent directly to this office:

• Official Court Record, which includes charges and disposition; If the conviction involved a drug and/or alcohol related offense, all addiction/mental health evaluations and proof of treatment (if treatment was obtained and/or required);

• If you are currently on probation, a letter from your probation officer addressing probationary conditions and your current status;

• And If your license in health care in another state has been revoked, suspended, limited or disciplined in any way, an official copy of the disciplinary action, including charges and disposition.

• When trying to evaluate past criminal convictions look to

• Circumstance of offense• Repeated conduct• Age at time of conviction• Length of time since conviction• Restitution• Evidence of rehabilitation

How do applicants prove they have GMC

• By attesting to it, “I have GMC.” “I am honest!”• By not having any criminal convictions• By not having child abuse reportable offenses• By any having any infractions which would fall

under grounds for disciplinary action by the board

• By having others attest to it on your behalf• By having supervisors and other psychologist

comment on your GMC and fitness for practice

Applicant or supervisor answer questions about the applicant’s GMC

• Suitability or competency to practice psychology• Reprimanded, dismissed, asked to leave, terminated

during any education or training• Barred from applying or denied registration or licensure• Any unresolved complaints against you• Any malpractice actions • Defendant in a civil proceeding in which negligence is

alleged• Plead guilty, convicted or plead nolo contendere to any

criminal convictions; felonies or misdemeanors

• Pre-existing or current physical or mental conditions which would impair functioning as a psychologist

• Any conviction of child abuse/ able to get child clearance

• Any thing which touches on applicant’s character, conduct or reputation which would interfere with the applicant ability to function as a psychologist

• Any restrictions placed on applicant during training

GOOD MORAL CHARACTER

• Rational connection to individual’s character and the practice of psychology

• Rationally related to protecting the public-due process• Honesty• Fairness• Integrity• Ethical• Fit to Practice • No prior Criminal Convictions or Moral Turpitude• Respect for the rights of others