Are you a licensed therapist who is practicing without the kind of insurance policy that will cover the defense of your license?
Counselors and therapists usually know they need to purchase liability insurance to protect against a lawsuit—that’s the insurance that you purchase for $1M/$3M or $2M/$4M—but there’s another type of insurance you also need to have. Equally important is the insurance to defend you from a “complaint” filed with the Department of Health (DOH) against your license. In fact, of the two types of actions, a “lawsuit” or a “complaint,” you are far more likely to encounter the DOH complaint–and yet that is the type of coverage many licensed therapists not only lack but don’t even realize they need. Even if you are an Associate level licensee working under a supervisor, or a licensee working at an agency, you are well-advised to have your own policy, should your and your agency or supervisor’s interests not be the same.
Insurance companies offer two types of policies: insurance for “lawsuit liability” and insurance for a DOH “complaint” or “license defense.” The first type is for coverage against a lawsuit, when a person sues you through the judicial court system. Again, that’s the $1M/$3M or $2M/$4M insurance and is imperative to carry.
The second type of policy is for coverage of “license defense.” This insurance protects you if you have a DOH complaint against your license, which is not covered by the liability insurance for a lawsuit. License defense insurance may also cover expenses for subpoenas, which is a third important type of coverage to have that is usually included as a subset of the license defense coverage. For license defense (and subpoena) coverage, you usually have to buy a separate and additional rider on the lawsuit policy. Some companies do include a minimal amount with the liability coverage, but with the rider you may be able to purchase up to $150K for a relatively low price (some are about $75 annually). Read the fine print carefully: Some companies include subpoenas under this coverage, others don’t. Some companies allow you to choose your own attorney, others don’t.
It’s important to think carefully about which company you choose for your insurance. The wrong choice could end up costing you tens of thousands of dollars in the end, or more!
Here’s what you need to know: Not just “anybody” can file a lawsuit successfully. I won’t list all the details here, but for a person to be able to successfully sue you, they have to meet certain criteria. They have to show that you had a direct legal responsibility to them, that you breached it, and that you caused harm and damages. While a lawsuit is possible, the requirements make them infrequent.
You are more likely to encounter a DOH complaint than a lawsuit because the DOH complaint is, simply put, easier to file. Whereas filing a lawsuit requires criteria explained above, the DOH complaint doesn’t. In fact, anyone can file a DOH complaint against a licensed social worker. A DOH complainant doesn’t have to have been your client, doesn’t have to have had any direct relationship to you, and doesn’t have to have been harmed by you. In fact, the complainant doesn’t even have to know you. There is no time limit, so the claim can be made years after a supposed event occurred. The complainant only has to suggest – not prove – to the DOH that you’ve done something that, if it were true, might pose a risk of harm to the public. Since the DOH mission is to protect the public, it will likely investigate. Even if the investigation is ultimately dismissed, you are required by law to respond to the complaint, and doing so can be time consuming, preoccupying, and highly distressing.
The second reason a DOH complaint is more likely to occur than a lawsuit is that, even if the complainant wants to file a lawsuit, a good way to lay a foundation for the lawsuit is to first file a complaint. If the DOH decides the complaint is “founded,” that decision will lay the groundwork for the future lawsuit. When the DOH investigates, the cost of the investigation is paid by the State, so the complainant gets a lot of free work done by the DOH. Thus, even if a person were to sue, he or she would start by filing a DOH complaint against your license.
Where do you fall in the spectrum of potential risk for a complaint? There are some therapists who are higher risk than others for a complaint: social workers are at greater risk when they work with 1) children involved in custody cases, 2) children with disabilities, and 3) high conflict clients, couples, and families. Unfortunately, even excellent providers may have multiple complaints in a single year. The complicated dynamics involving custody cases, mandatory calls to Child Protective Services (CPS), and testing for school Individualized Education Plans (IEPs) may result in DOH involvement even when cases are ultimately dismissed. Without adequate coverage, providers may have to pay thousands in attorney’s fees; with the right coverage in sufficient amounts, providers’ costs may be zero when attorney’s fees are paid directly by the insurance companies. In such cases of multiple complaints on which I worked, the providers, I am happy to say, never had to pay a dime.
It is also important to consider whether you can choose your own attorney or if the insurance company wants you to use an attorney on their panel. Many counselors like to use an attorney they have already worked with or one that a colleague personally recommends when faced with this situation. Since the option to choose an attorney is offered at some insurance companies but not all, therapists and counselors need to also reflect on this need when selecting a policy. After all, it is his or her own license that is at stake.
What can you do to protect yourself? Call your insurance company. Ask these questions regarding license defense, subpoena coverage, and choice of attorney:
1) Do I have coverage for “license defense”? How much?
2) Do I have coverage for a subpoena? How much?
3) Can I choose my own attorney for a license defense?
If you don’t have coverage or don’t have the full amount available, I suggest purchasing the highest amount possible, or at least the highest amount you can afford. If the cost is about as much as you might have to pay (or less) for an extra pair of shoes, I suggest purchasing the insurance rather than the extra pair of shoes. The amount is important–if the subpoena coverage is under $5,000–and I know of one company that only offers $400, which is certainly not enough—it may likely be inadequate if you are ever served a subpoena. Ideally, you will never have a complaint against you, and this will be the best $75 you spend just to be safe. It’s worth the peace of mind to know your license is adequately covered, you can afford to deal with a subpoena, and you can choose the attorney you want to help you through a DOH complaint, should one ever arise.
Ultimately, I urge you to make sure your insurance covers you for license defense, subpoenas, and choosing your attorney for license defense. If you determine that you don’t have sufficient coverage, purchase it right away. If your current carrier does not offer what you need, consider switching to another carrier now or at the first opportunity. If you just renewed a policy that is insufficient, you may be able switch to another, cancel the first once the new policy is approved, and receive a pro-rated reimbursement.
Going through a DOH complaint is never pleasant, even under the best of circumstances where it is dismissed. It can be upsetting, embarrassing, and humiliating. Whether you work independently, under a supervisor, or at an agency, take advantage of your current complaint-free status to purchase the coverage that can save you future expense –you may be only one high-conflict client away from a complaint.
If you have any questions, please feel free to contact me. I give free consultations, and am happy to respond to your concerns.
Frances Schopick, JD, MSW is an attorney with an extensive background in Social Work and psychiatric research. She represents counselors who have DOH complaints against them. She also provides consultation for risk management, setting up disclosure forms for your practice, and witness prep for subpoenas and testimony in court.