Author: JGL Law

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 2

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

This blog explores “the who” – who provides privileged services.

Maryland’s 3 mental health privilege statutes* apply to the following types of providers:

1. Licensed psychologist (§9-109(a)(2))
2. Psychiatrist (§9-109(a)(4))
3. Professional counselor (§9-109.1(a)(3))
4. Psychiatric-mental health nursing specialist (§9-109.1(a)(4))
5. Licensed certified social worker (§9-121(a)(3))

But one has to look at what’s beneath the title.

A “licensed psychologist” means someone licensed to practice psychology under the laws of Maryland.

But, the definition of “psychiatrist” doesn’t require Maryland licensure.  (And irksomely refers to someone who “devotes…his time to the practice of psychiatry”.)

To understand who is a “professional counselor”, one has to go to Health Occupations Article Title 17 for the definition of “counselor.”  Only to find that “counselor” is not generally defined (§17-101), but is an included term in the following definitions:

• Certified professional counselor
• Certified professional counselor – marriage and family therapist
• Certified supervised counselor – alcohol and drug
• Certified associate counselor – alcohol and drug
• Certified professional counselor – alcohol and drug
• Licensed graduate alcohol and drug counselor
• Licensed graduate marriage and family therapist
• Licensed graduate professional counselor

So, is §9-109.1’s privileged provider the narrower “professional counselor” or all the types of “counselor” defined in Title 17?  As with licensed psychologists, the definitions of “certified” and “licensed” in §17-101 all mean, broadly speaking, authorized by Maryland’s State Board of Professional Counselors and Therapists.

§9-109.1 doesn’t specify that a psychiatric-mental health nursing specialist must be licensed or certified by the State of Maryland, but:

• Does use the term “registered nurse”, which in Health Occupations §8-101 requires either Maryland licensure or multistate licensure
• Allows a master’s degree (with or without a baccalaureate degree)
• Allows certification by the American Nurses’ Association or body approved by the Board of Nursing

Finally, §9-121 requires licensure as a “certified social worker” under Health Occupations Title 19.  Perplexingly, Health Occupations §19-101’s definitions do not define “certified social worker” or “social worker”.  Though they do define “license” and “certified” and refer to the practice of “certified social work” and “certified social work-clinical”.  So, there’s that.

If you’ve read this long, here’s your reward with key takeaways…

• What a provider calls themselves does not mean it’s privileged: Go beneath the title
• Privilege starts with the provider & whether they qualify as privileged
• “Counselor” and “therapist” in a provider’s title does not automatically mean privileged
  • So, who may not be:
    • School counselor
    • School psychiatrist
    • Art therapist
    • Pastoral counselor
    • Behavioral counselor
  • That’s why you have to go beneath the title

But there’s more!
Next step (and blog) – what is privileged?

*Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)

JGL Attorneys David Bulitt, Bridget Cardinale, Virginia (Gia) Grimm, Reza Golesorkhi, Jay Holland, Veronica Nannis, Lindsay Parvis, and Paul Riekhof will be attending the 2024 MSBA Legal Summit and Annual Meeting that takes place at the Roland E. Powell Convention Center in Ocean City, MD from June 5-7, 2024. Gia Grimm, Veronica Nannis, and Jay Holland will be hosting a Qui Tam CLE session called “Might Your Client be a Whistleblower? Identifying and Pursuing False Claims Act Cases,” on Wednesday, June 5^th from 3-4pm. 

More about the 2024 MSBA Legal Summit:

For the last 30+ years, the Maryland State Bar Association’s Legal Summit has brought together Maryland legal professionals from across the state, in every professional segment and every career stage.

Legal Summit allows our community to connect, learn and move the profession forward while enjoying the sun and relaxation of Ocean City, Maryland. MSBA’s signature event continues to provide unique instruction and thought leadership from distinguished colleagues and leaders from all over the state — in every practice area.

Mental Health Privilege & Maryland Divorce Blog Law Series – Part 1

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential. In action, this means that privileged information cannot be used in contested litigation unless the privilege is waived.  Waiver means opening the door to others on confidential communications and information.

A privilege may be created by rule, statute, or case law.  And, privileges created by rule or statute are often developed by case law interpreting them.

Maryland has 3 statutes that create mental health privileges:

1. §9-109 Patient-therapist privilege*
2. §9-109.1 Communications between client and psychiatric-mental health nursing specialist*
3. §9-121 Social worker-client communications*

When I think about privilege, I start with the licensure of the provider.  Then I look for the statute that applies to that type of license.  Sometimes, providers have multiple licenses (for example, psychologist and licensed certified social worker-clinical/LCSW-S), so more than one statute applies.

There are a number of ways to check & cross-check licensure:

• Looking up the provider online
• Confirming licensure on Maryland State license verification websites
• Asking the provider

Key takeaways from this introduction:

• Privilege is confidentiality
• Privilege waiver – or not – is a decision that requires thought in contested family litigation
• Waiver means opening the door to outsiders to access confidential communications and information

Next up:  Who provides privileged mental health services?

*Section references to Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)

Erika Jacobsen-White is First Shift Justice Project’s 2024 Board Chair and JGL is a silver sponsor of their major fundraising project “Dance Like a Mother.” As in previous years, Erika will DJ at the event to be held on May 17^th from 6pm to 1am at Wunder Garten, in NE Washington, DC. “First Shift Justice is a truly inspiring organization that helps low-wage working parents and caregivers in the DC Metro Area assert their workplace rights to prevent job loss.”

Click to donate to Dance Like a Mother: A Benefit for First Shift Justice Project.

The D.C. Trial Lawyers Foundation and Trial Lawyers Association held their 67th Annual Awards Dinner on May 11, 2024 at Nationals Park.

JGL was a Silver sponsor for this event. Attorneys Drew LaFramboise, Erika Jacobsen-White, and Bridget Cardinale attended.

JGL Principal, Lindsay Parvis, will speak on the virtual Divorce and Family Law Roundtable on May 7th, from 12:00-1:00pm on Zoom. The topic of this meeting is “2024 Maryland Family Law Legislative Update: The Good, The Bad and the Ugly.”

Lindsay Parvis is the Co-Chair of the Legislative Committee of the Maryland State Bar Association’s Family Law Section Council.

Registration: This is a free program, but you must pre-register by emailing your registration request to Roundtable member, Carol Randolph, at NewBCarol@verizon.net. The Zoom link will be sent out the week of the event.

David Bulitt quoted as a Family Law expert in the Real Estate Bees article “How Much Are Closing Costs?”

On April 23, 2024, the Federal Trade Commission (FTC), voted (3 to 2) to essentially stop employers from issuing new non-compete agreements for most workers in private industry.

Non-compete agreements are agreements that employees sign that prohibit them from changing jobs or working for competitors. These agreements, with rare exceptions, are not something that employees want to sign, but something they must sign as a condition of their employment in order to get a job.

A court challenge is expected by the Chamber of Commerce, among others. This matter could well land before the Supreme Court. If it does, the National Labor Relations Board’s prohibition on employers forcing employees to waive their rights to participate in class actions through mandatory arbitration agreements, the Court will probably strike down the rule. The good news for those that live in a handful of states and the District of Columbia is that there are either complete bans on non-compete agreements or they are restricted to certain high-income earners. Before signing any such agreement, please check to see if you are in one of those jurisdictions.

JGL Principal, Reza Golesorkhi, is featured in Modern Luxury DC Magazine’s “Charitable Leadership Spotlight” in their April edition. 

Read the full interview from Modern Luxury DC Magazine (PDF)

JGL Principal Lindsay Parvis along with two other experts in Custody Proceedings – Syretta R. James, Ph.D. of Respire Behavioral Health and The Honorable Joanie Raymond a Frederick County Circuit Court Family Magistrate – presented a class to the Judicial College. The class entitled “It Takes a Village: Complex Parenting Cases,” this class was designed to encourage judges and magistrates to look at different types of experts to make child-centered decisions in custody cases. To read more about the class brought to the Judicial Class, read this article “Family Law, Matters: It Takes a Village – Experts in Custody Proceedings,” featured in the PGCBA News Journal.          

JGL Principal David Bulitt authored an article featured in the Washington Family Magazine entitled “Divorce and the Special Needs Child.” (PDF)

In a victory for employees, the U.S. Supreme Court made clear today that a job transfer can constitute an adverse employment action for the purpose of liability under Title VII, even absent significant harm.

In the case of Muldrow v. City of St. Louis, Missouri, et al., 2024 U.S. LEXIS 1816 (2024), the Court explained in an opinion delivered by Justice Kagan that the language in Title VII that makes it, “unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin[,]” requires an employee to show that a transfer, “brought about some disadvantage change in an employment term or condition,” but that such disadvantage need not be “significant.” Id. at *12-15.

Here, the employee, Sergeant Muldrow, alleged that she was transferred from a more prestigious role in the St. Louis Police Department’s specialized Intelligence Division to one where she supervised the day-to-day activities of neighborhood patrol officers. Although her rank and pay were unchanged, she lost her FBI status, the car that came with it, and she was shifted from a regular workweek to a rotating schedule. The Division commander who ordered the transfer often referred to Sergeant Muldrow as “Mrs.” instead of by her rank, and testified that the male officer was “a better fit for the Divisions[‘] dangerous work.” Id. at 8. Sergeant Muldrow sued for sex discrimination.

Reversing the 8th Circuit Court of Appeals, the Supreme Court explained:

That language requires Muldrow to show that the transfer brought about some disadvantageous change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998). The words discriminate against, we have explained, refer to differences in treatment that injure employees. Bostock v. Clayton County, 590 U. S. 644, 681 (2020). Or otherwise said, the statute targets practices that treat[ ] a person worse because of sex or other protected trait. Id., at 658. And in the typical transfer case, that worse treatment must pertain to must be with respect to employment terms [or] conditions. 2000e-2(a)(1). The terms [or] conditions phrase, we have made clear, is not used in the narrow contractual sense; it covers more than the economic or tangible. Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986). Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable [*14]  term or condition of employment.

What the transferee does not have to show, according to the relevant text, is that the harm incurred was significant. 30 F. 4th, at 688. Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. See supra, at 4, and 4-5, n. 1. Discriminate against means treat worse, here based on sex. See, e.g., Bostock, 590 U. S., at 657-658, 681. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand significance is to add words and significant words, as it were to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.

And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better [*15]  off.) But now add another question whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder and can disregard varied kinds of disadvantage. Take just a few examples from the case law. An engineering technician is assigned to work at a new job site specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a significant detrimental effect. Boone v. Goldin, 178 F. 3d 253, 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not constitute a significant change in employment. Daniels v. United Parcel Serv., Inc., 701 F. 3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not significant. Cole v. Wake Cty. Bd. of Educ., 834 Fed. Appx. 820, 821 (CA4 2021) (per curiam). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.

Muldrow v. City of St. Louis, 2024 U.S. LEXIS 1816, *13-15.

This important decision makes clear that employers cannot force a job transfer because of an employee’s protected status if such a transfer puts the employee in a worse position than they were before.