Family Therapists Win in Texas Supreme Court

AUSTIN, Texas (CN) – The Texas Occupations Code permits licensed marriage and family therapists to diagnose a client’s emotional, mental and behavioral problems within their expertise, the state’s high court ruled, reversing a lower court.

Justice Jeffrey S. Boyd delivered the court’s Feb. 24 opinion, which reversed an earlier judgment by the Third District Appeals Court in favor of the Texas Medical Association.

The dispute originated with a rule passed by the Texas State Board of Examiners of Marriage and Family Therapists in 1994. According to court records, the rule allowed marriage and family therapists, or MFTs, to provide “[d]iagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

The DSM, which is published by the American Psychiatric Association, is considered the universal system for diagnosing mental health disorders in the United States and much of the rest of the world.

The Therapists Board said the ability to provide diagnostic assessments using the DSM is essential to an MFT’s practice. For instance, the assessments allow MFTs to identify a client’s mental disorder, develop a proper treatment plan, determine eligibility for various services, consult with other health professionals and obtain insurance payments for their services.

However, the Medical Association disagreed, and in 2008 it sued the Therapists Board and its directors in Travis County District Court. It sought declaratory judgment invalidating the rule, claiming that, by permitting MFTs to provide diagnostic assessments, it unlawfully authorized MFTs to practice medicine without a license.

The Therapists Board countered that, while the rule does not permit MFTs to provide a medical diagnosis or any diagnosis beyond their area of expertise, it does authorize them to diagnose some “nonmedical” disorders caused by psychological and social experiences.

These include disorders such as relational dysfunction, adjustment disorder, mood disorder, anxiety disorder, behavioral dysfunction, sexual dysfunction, anorexia, depression, personality disorder and addiction.

In the trial court phase, the sides filed cross-motions for summary judgment on the Medical Association’s declaratory judgment claim. The court ruled in favor of the association and declared the diagnostic-assessment rule invalid because it exceeded the scope of the Therapists Act. The court of appeals then affirmed the ruling 2-1.

In determining the validity of the diagnostic-assessment rule, Justice Boyd first looked at the arguments of the Therapists Board. It claimed that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

“Accepting all of that as true, however, we must decide this case based on the relevant Texas statutes, not on whether MFTs are qualified to make DSM diagnoses or whether the DSM or other states’ laws allow them to,” Boyd wrote in a 21-page opinion.

However, since the courts generally presume that agency rules are valid, it is the challenging parties who have the burden of proving invalidity, he said.

The Medical Association did not dispute that MFTs are allowed to make “assessments,” but it disagreed with the addition of the term “diagnostic.”

“But by referring to a ‘diagnostic assessment,’ the Association contends, the rule authorizes more than the ‘evaluation and remediation’ that the Therapists Act permits. In response, the Therapists Board asserts that deleting the word ‘diagnostic’ would not resolve the parties’ real dispute because the rule authorizes ‘assessments’ using the DSM—the ‘D’ standing for ‘diagnostic’—so DSM assessments are necessarily ‘diagnostic’ assessments, at least as the DSM uses that term,” according to the ruling.

The Texas Supreme Court looked at the common, ordinary meaning of these disputed terms since the statute and rule does not define them.

“We agree with the Medical Association that the term diagnose typically involves the identification or naming of a condition, but we disagree with its narrow construction of the term evaluate in this context,” Boyd wrote. “To evaluate includes not only to assess the value, amount, or quality of a thing, but also to ‘judge’ the thing’s significance, quality, or condition. To evaluate, in other words, means not merely to inspect, examine, or review, but also to make a determination regarding that which is inspected, examined, or reviewed. Within the context of marriage and family therapy, to judge or to find the nature of a dysfunction is to identify the dysfunction so that it can be properly treated. A therapist who merely examines, assesses, or reviews a client’s condition without making a determination regarding the nature of that condition cannot adequately ‘remediate’ the condition as the Therapists Act requires. And the determination regarding the nature of a dysfunction is commonly known as a diagnosis.”

The Medical Association also claimed that the term “diagnosis” refers to a service that is distinct from an “evaluation” based on references to those terms in the Texas Occupations Code.

But the state’s high court noted that other provisions of the occupations code indicate that an evaluation necessarily includes a diagnosis or identification of the thing being evaluated. It cited provisions in the code referring to chiropractic practice in disagreeing with the Medical Association’s scrutiny of the word “diagnostic.”

“Considering the common, ordinary meanings of the terms within their statutory context, we conclude that by authorizing MFTs to ‘evaluate and remediate’ their clients’ dysfunctions, the Therapists Act authorizes MFTs to provide a ‘diagnostic assessment’ as the Therapists Board’s rule uses that phrase,” the ruling states.

The court then turned to the Medical Association’s argument that, because the term diagnosis means the identification of a disease or disorder, the Therapists Act does not authorize diagnosing under the DSM because it only authorizes the evaluation of a “dysfunction.”

“Based on their common, ordinary, and even medical meanings, diseases and disorders are merely types of dysfunctions…We cannot discern any distinction between the terms that provides a relevant difference here,” Justice Boyd wrote.

The Texas Supreme Court next refuted the Medical Association’s claim that the rule was invalid because it permitted MFTs to diagnose all mental disorders without limitation.

“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency.’ And when the limits of an MFT’s competency are reached, the rules require the MFT to consult with and refer clients to other providers for appropriate care,” the ruling states.

The Medical Association also asserted that permitting diagnostic assessments would create a conflict between the Therapists Act and the Medical Practice Act. It claimed that if lawmakers had intended to permit MFTs to diagnose or provide diagnostic assessments of certain mental disorders or to exempt them from the Medical Practice Act’s requirements, it would have specifically done so.

The Therapists Board countered that several other Texas Occupations Code provisions expressly prohibit certain professionals from “diagnosing.” Similarly it argued that, if the Legislature had intended to prohibit MFTs from providing a diagnostic assessment, it would have expressly done so.

In deciding this issue, the court once again looked at the plain language of the Therapists Act.

“Having concluded based on that language, as construed within its context, that the Therapists Act authorizes MFTs to provide a diagnostic assessment as the rule allows, we conclude that the Therapists Act provides a limited exception to the Medical Practice Act’s prohibitions. In light of that exception, the Acts do not conflict as the Medical Association contends,” Justice Boyd wrote.

The state’s high court thus concluded that the Therapists Board was within its authority when it issued the diagnostic-assessment rule and the rule is not invalid.

“Completing our evaluation of the statutes’ relevant language, we conclude that every act that a physician may do is not automatically the unlawful practice of medicine when done by a non-physician, and terminology in one field may overlap with that of another,” the opinion states. “That the diagnosis of physical and mental diseases and disorders lies within the province of physicians does not preclude MFTs from making diagnostic assessments of emotional, mental, and behavioral problems as part of their efforts to evaluate and remediate mental dysfunctions within the marriage and family setting.”

A spokesperson for the Medical Association told Courthouse News, “TMA is disappointed with the ruling, overturning the…decision of the Texas Court of Appeals. We are reviewing our options at this time.”