Connor D. Jackson is a healthcare attorney based in Chicago who serves independent practices in several states. Visit his firm’s website here.
With the explosion of digital marketing, mental health professionals have more outlets than ever to promote their services. And when trying to drum up new clients, it’s natural to focus on using the medium, message, and imagery to stand out from competitors.
But federal law and state practice acts don’t favor creativity or persuasiveness in marketing. Instead, they demand accuracy and transparency. We discuss the constraints that you need to understand when creating your public profile.
The Legal Definition of “Advertising”
Under the law, restrictions on advertising and marketing cover a broad scope of activities. Advertising refers to any public communication designed to attract business. Therefore, it includes websites, directories, author/speaker bios, business cards, online map listings, and everyday social media posts. In short, anything that potential clients can use to form an understanding of your services or qualifications falls under this term.
The American Counseling Association (ACA) Code of Ethics and American Psychological Association (APA) Ethical Principles prohibit members from directly or implicitly misrepresenting their qualifications. Counselors and psychologists cannot misstate their training, education, accreditation, or association membership status. Trainees and supervisees must disclose their status as such.
Though state practice acts vary in precise terminology, they mirror the ACA’s and APA’s prohibitions against false titles or credentials. It’s never acceptable to fudge your qualifications or imply that you have a degree or professional credential that you lack.
In California, for example, unless you are a Licensed Marriage and Family Therapist (LMFT), you should not advertise you can do “marriage consulting,” nor should you advertise you perform similar services to an LMFT. Similarly, California mandates that unlicensed associates disclose that they are a supervised entity in all advertisements and not use any degree credentials.
It’s crucial to stay abreast of your state’s most current terminology. Take Colorado’s nomenclature for unlicensed psychotherapists that are listed in the state’s registry. Until recently, they were called “registered psychotherapists.” However, to potential clients, the term sounded like full licensure. In response, Colorado recently changed the title to “unlicensed psychotherapist” and sunsetted the older term.
Washington provides a similar example of shifting terminology. In the early 2000s, Washington legislators created a “registered counselor” category as a catch-all for anyone who had not attained the master’s degree and thousands of clinical hours required for full licensure.
However, in 2008, after a Seattle Times exposé alerted the public to substandard care and sexual misconduct by untrained, poorly vetted Registered Counselors, Washington dropped the category. Today, anyone practicing therapy in Washington without full licensure must represent themselves as unlicensed and may not advertise or operate a “counseling” practice.
On the flip side, understating credentials also creates problems. For example, licensed professionals should never advertise clinical therapy as “coaching” to evade state laws. It doesn’t work — the laws will still apply!
Representing Products and Services
The Federal Trade Commission Act (FTCA) demands all claims be truthful and not misleading. In the context of health advertising, this means the Federal Trade Commission (FTC) will evaluate what express or implied claims are conveyed to consumers and whether reliable scientific evidence supports these claims.
In evaluating the implied claims, the FTC looks to the “net impression.” The FTC asks, “Based on what the public generally understands the expressions in the advertisement to mean, is the ad truthful?”
The FTC also requires that information be presented clearly to avoid confusion. Thus, the FTC views omissions, such as not disclosing when clients receive payment for testimonials, as misrepresentations. Disclosures and disclaimers must be clear and conspicuous, not buried in the fine print or obscured by technical language that the typical consumer will not understand.
False, deceptive, or misleading claims are not solely the purview of federal law. Many state practice acts prohibit making scientific claims that are not substantiated by reliable, scientific evidence.
To stay compliant with federal and state laws,
- Avoid overstatements or black-and-white language that cannot be verified.
- Avoid superlatives such as “best” or “most.”
- Don’t offer “cures” and never promise that you can deliver a result, such as “zero anxiety” or “full recovery.”
Across all industries, testimonials serve as one of the most powerful, persuasive marketing tools. However, for mental health professionals, they require additional caution.
The American Psychological Association Ethics Code and the National Association of Social Workers Code of Ethics prohibit therapists from soliciting testimonials from current clients or anyone who may be vulnerable to undue influence because of their particular circumstances. The American Counselors Association goes further, prohibiting counselors from soliciting testimonials from former clients.
When a client independently volunteers to submit a testimonial, the therapist should explain all risks and obtain explicit, signed consent before publishing it. Moreover, the therapist must avoid violating the client’s confidentiality in keeping with the HIPAA Privacy Rule and state laws.
As with all other advertising materials, the testimonial’s content must be truthful, including disclosing any compensation to the client. As the party benefiting from the testimonial, the therapist will likely be responsible for the content.
The Keys to Compliance
In the end, compliant marketing boils down to four efforts:
- Recognize that restrictions on advertising and marketing apply to a wide range of public-facing activities.
- Disclose your education, training, license, and practice specialty areas with precision and according to your state’s regulations. Never inflate your credentials, even by suggestion.
- Be conservative with claims about what your practice or style of therapy can achieve. Refrain from making statements that you cannot support with reliable data, such as peer-reviewed studies.
- Tread cautiously with client testimonials by obtaining consent, protecting privacy, and ensuring that the content paints an honest picture.
Keep in mind that many marketing consultants and copywriters don’t understand the stringent guidelines surrounding healthcare. As a result, they may urge you to ask for testimonials or use language that skirts the truth. It’s also likely that you can find examples of competitors who appear to ignore the guidelines.
Just remember that it’s your practice at stake. Ultimately, it’s you (and no one else) who bears responsibility for your advertising. With truth and transparency behind you, you’ll likely stay on the right side of the law and build more trust with potential clients. For help staying legal with your advertising, check out our advertising materials review services.
Registries are an important part of any psychotherapist’s marketing strategy. Being listed on GoodTherapy lends you credibility and makes you easier for potential clients to find. Check out the whole host of perks that come with GoodTherapy membership and join today!
This article is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between Jackson LLP Healthcare Attorneys and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
© Copyright 2021 GoodTherapy.org. All rights reserved. Permission to publish granted by Connor D. Jackson, JD
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