Protect your license and your practice.

When a client reports a prior therapist

Business and Professions Code 728 says that any psychotherapist, or employer of a psychotherapist, who becomes aware through a client that the client had alleged sexual intercourse, sexual behavior or sexual contact with a previous psychotherapist during the course of a prior treatment shall provide the client the brochure developed under Section 337, and shall discuss the brochure with the client. Failure to comply is unprofessional conduct under the same section.

The statute describes the brochure as one that sets out the rights of, and remedies for, clients who have been involved sexually with their psychotherapists. The Board of Behavioral Sciences links it from its consumer page as Therapy Never Includes Sexual Behavior, in English and Spanish.

From the statute itself:

• "Psychotherapist" in Section 728 reaches psychiatrists, psychologists, LMFTs, LCSWs and LPCCs, plus listed associates, trainees and psychological assistants, so a group practice's pre-licensed staff are inside the rule.
• The duty is written to the employer of a psychotherapist as well as to the psychotherapist.
• The section defines "sexual behavior" as inappropriate contact or communication of a sexual nature, and says it does not include appropriate therapeutic interventions relating to sexual issues.

Underwriters look at sexual misconduct exposure separately from ordinary professional liability; see abuse and molestation coverage for how that line is written.

Telehealth rules that follow the client's location

The Board's telehealth regulation, 16 CCR 1815.5, ties the rules to where the client is, not where you are. Anyone practicing marriage and family therapy, educational psychology, clinical social work or professional clinical counseling via telehealth with a client physically located in California must have a valid and current license or registration issued by the Board. Telehealth services fall within the Board's jurisdiction just as face-to-face services do.

Upon initiation of telehealth services, the regulation requires you to:

1. Obtain informed consent from the client consistent with Business and Professions Code 2290.5.
2. Inform the client of the potential risks and limitations of receiving treatment via telehealth.
3. Give the client your license or registration number and the type of license or registration.
4. Document reasonable efforts made to find contact information for relevant resources, including emergency services, in the client's geographic area.

At the beginning of each telehealth session, you must verbally obtain and document the client's full name and the address of their present location. Each time, you must also assess whether the client is appropriate for telehealth, including the client's psychosocial situation, and use industry best practices to protect client confidentiality and the security of the communication medium.

For clients in another jurisdiction, 1815.5(e) allows telehealth only if you meet the requirements to lawfully provide services there and that jurisdiction allows telehealth. Failure to comply with the regulation is unprofessional conduct. See telehealth insurance for practices built around virtual care.

How a board complaint gets started

The Board of Behavioral Sciences says a complaint should be filed by anyone who believes a licensee, registrant or applicant has engaged in unprofessional conduct related to their professional responsibilities, and that it will review each complaint regardless of the source. Complaints can be filed online through the Board's Breeze system or by mailing the Consumer Complaint Form and Authorization Release (comp-2a). A complaint must be in writing and include a statement clearly explaining its nature.

The Board asks for detailed, firsthand, verifiable information, including:

• Bills, statements, canceled checks, insurance reimbursement statements, correspondence or court documents.
• Contact information for any witness who can corroborate the events.
• Dates, times and locations of therapy, when possible.

Two limits the Board states: anonymous complaints are reviewed but may be impossible to pursue unless they contain documented evidence. Complaints filed by someone other than the client may also be impossible to pursue because each client has a legal right to the confidentiality of treatment records, unless everyone involved is willing to be contacted and signs release authorizations.

What this means in practice: a complaint is usually built from your own billing, correspondence and scheduling, so keep them consistent with your chart. Read your professional liability policy's notice and reporting conditions now, before any Board letter arrives, so you know what your carrier expects.

Official sources

• California Business and Professions Code 728 (public.law)
• Board of Behavioral Sciences, Consumers page (Therapy Never Includes Sexual Behavior publication)
• California Business and Professions Code 4980.49 (public.law)
• California Business and Professions Code 4993 (public.law)
• California Business and Professions Code 4999.75 (public.law)
• 16 CCR 1815.5 Standards of Practice for Telehealth (Cornell LII)
• California Business and Professions Code 4980.43.4 (public.law)
• Board of Behavioral Sciences, Consumer Complaints
• California Penal Code 11165.7 (public.law)