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Court rejects use of lapsed license as loophole to avoid discipline

An appeals court in Minnesota upheld a decision by the state's Board of Psychology to discipline a psychologist who sexually abused a minor patient but then let his license lapse before the disciplinary process had begun. The court held that a failure to renew does not "terminate" a license such that the board no longer has disciplinary authority over that licensee.

(In re License of Thompson)

In 2016, the board received complaints that psychologist Herman Thompson had sexually abused a teenage patient a little over a decade earlier. The following year, the board sent a notice to Johnson’s attorney that it was going to take action. Johnson let his license lapse that June, but the board continued with the proceeding, eventually revoking his license.

Johnson appealed, arguing that the board had no authority to discipline him because his license had lapsed before the board served notice that it was initiating disciplinary action against him. Minnesota law authorizes the board to discipline “applicant[s] or licensee[s],” and Johnson argued that he was neither at the time of the board’s action.

This is a common argument from disciplined licensees, and most states either have either explicit statutory or regulatory law or case precedent preventing the use of such a loophole.

However, the issue did not appear to be quite settled in Minnesota, and, when the case went up to the Court of Appeals there, the court stated that the law was “ambiguous” and took the question seriously, but ultimately issued a decision against Johnson September 23.

Analyzing board regulations, Judge Matthew Johnson agreed with the interpretation “that the board’s disciplinary authority extends not only to psychologists whose licenses have been terminated but also to psychologists whose licenses have not yet been terminated . . . The board’s interpretation prevents a psychologist from escaping responsibility for misconduct that occurred while licensed simply because his or her license no longer is valid.”

“The board of psychology is authorized to commence and maintain a disciplinary proceeding against, and to impose discipline on, a psychologist whose license no longer is valid because it was not renewed, so long as the license has not been terminated.”

Thus, Thompson’s decision not to renew did not mean his license had been lapsed when the board’s disciplinary proceeding began, and the board still had authority to discipline him.

Thompson also tried to argue that the board’s action against him was time- barred, as state law requires board proceedings to be initiated within seven years of the alleged misconduct. However, Minnesota law provides an exception for sexual misconduct by licensees.

Having rejected Thompson’s arguments, the court upheld his discipline.