Machovec v. COUNCIL FOR NAT. REGISTER OF HEALTH

• Decision Date: 02 July 1985
• Docket Number: Civ. A. No. 84-0702-A.
• Parties: Frank J. MACHOVEC, Ph.D., et al., Plaintiffs, v. COUNCIL FOR the NATIONAL REGISTER OF HEALTH SERVICE PROVIDERS IN PSYCHOLOGY, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

616 F. Supp. 258

Frank J. MACHOVEC, Ph.D., et al., Plaintiffs, v. COUNCIL FOR the NATIONAL REGISTER OF HEALTH SERVICE PROVIDERS IN PSYCHOLOGY, INC., et al., Defendants.

Civ. A. No. 84-0702-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 2, 1985.

COPYRIGHT MATERIAL OMITTED

David Barmak, Sherman, Meehan & Curtin, P.C., Washington, D.C., Randall Ogg, Fairfax, Va., for plaintiffs.

Allen R. Snyder, Clifford D. Stromberg, Hogan & Hartson, Margaret F. Ewing, Donald N. Bersoff, Ennis, Freedman, Bersoff & Ewing, Washington, D.C., E. Waller Dudley, C. Torrence Armstrong, Booth, Prichard & Dudley, Alexandaiv, Va., Warwick R. Furr, II, Lewis, Mitchell & Moore, Vienna, Va., for defendants.

MEMORANDUM OPINION

CACHERIS, District Judge.

This is an antitrust case in which three of the four plaintiff psychologists have been refused listing in the "National Register," which lists the names and credentials of licensed or certified psychologists. The remaining plaintiff never applied for listing in the National Register, but alleges injury nonetheless.¹ Defendants are the Council for the National Register of Health Service Providers in Psychology, Inc. ("Council") and the American Psychological Association ("APA"). Plaintiffs allege that defendants have engaged in an illegal boycott and concerted refusal to deal with respect to the promotion of the National Register as a source of "qualified" psychologists in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, with relief sought under Section 4 of the Clayton Act, 15 U.S.C. § 15, and Section 16 of the Clayton Act, 15 U.S.C. § 26. This matter is before this court after the close of discovery on defendants' Motions for Summary Judgment. For the reasons set forth below, defendants' Motions for Summary Judgment are granted.

I. BACKGROUND

A. Council and National Register

Council is an independent, nonprofit organization which periodically publishes and updates a book entitled the National Register which lists the names and data of licensed or certified psychologists who have met certain standards of education and training in the provision of health services. The National Register lists more than 13,500 psychologists of which more than 90% have gone through the review process and have been selected for listing in the National Register.

Defendant APA is a major national membership organization of psychologists. APA has over 50,000 members with varying psychological disciplines. As an association, the APA endeavors to "advance psychology as a science and profession, and as a means of promoting human welfare." APA Bylaws, Article I, Saah Aff. at ¶ 12.

Plaintiffs Drs. MacHovec, Callahan, Hausman, and Brigham are psychologists. Drs. MacHovec, Callahan, and Hausman applied for a listing in the National Register and were not accepted because they did not meet one or more of the criteria for listing. Dr. Brigham never applied for listing; however, she alleges that she would not have been accepted if she had applied because she failed to meet the criteria.

In 1974, the Council was established by the American Board of Professional Psychology at the suggestion of APA for the purpose of developing a resource to identify health service psychologists who met minimum educational and training experiences. In nearly all states licensing of psychologists is generic in nature. Generally, no distinction is made for licensing purposes between psychologists with education and training in the provision of health services and psychologists with little or no education or training in the health area (e.g., experimental psychology-animal research). Wellner Aff. at ¶ 20. Prospective patients have no way of ascertaining from the state licenses whether the psychologist is trained for health care services.

The net result of a generic license is that insurance companies, mental health agencies and other organizations found it difficult to identify psychologists qualified by training to provide health services. They often had difficulty investigating the background and training of each individual psychologist. Mundy Dep. at 130. The Council was established to help fulfill the need by developing and publishing a list of psychologists who met minimum training and educational criteria in the provision of psychological health services.

Specifically, in 1974, following deliberations and consultation with numerous members of the psychological profession, the Council formulated the following criteria:

(1) a current license or certificate by the State Board of Examiners of Psychology at the independent practice level of psychology;

(2) a doctoral degree from a regionally accredited educational institution; and

(3) two years of supervised experience in health services in psychology of which at least one year is in an organized health service training program and one year is post-doctoral.

* * * * * *

(4) applications by psychologists without a doctoral degree were accepted if the candidate:²

a. had been licensed or certified as a psychologist for the independent practice of psychology by the State Board of Examiners of Psychology by January 1, 1975; and

b. had his/her graduate degree granted a minimum of six years prior to January 1, 1975; and

c. had at least six years of experience in psychology with at least two years in supervised (or equivalent) experience in health services, one of which was in an organized health service training program.

Wellner Aff. at ¶ 23-24. The grandperson provision of criteria (4) appears to be a compromise, arguably, a characteristic of any novel venture.

In 1978, the Council clarified its degree requirement by adopting guidelines for identifying doctoral degree programs in psychology. These guidelines were developed at a 1977 National Conference on Education & Credentialing in Psychology, which was attended by over thirty psychological organizations.³ As a result of these endeavors, the Council specified its requisite degree to be that of a doctorate in psychology. In 1980, the Council developed additional guidelines specifying the elements of an acceptable internship in an organized health services training program in psychology.

When a psychologist applies for a listing in the National Register an independent psychologist reviewer considers the application and supporting data submitted by the applicant, such as, college transcripts, and confirmation of supervised internship and post-doctoral experiences.

Before rejection of an applicant, a person must first have been considered and found unqualified under the criteria by each of three reviewers and a senior review board. All rejected applicants are notified of the right of appeal to an Appeal Board. The Appeal Board, which is independent of the National Register's Board of Directors, has nine members, five psychologists and four non-psychologist public members.

B. Plaintiffs as Applicants

Dr. MacHovec's application for listing in the National Register was rejected because he attained his doctorate from the Fielding Institute, a "university without walls." The program lacked a full-time faculty and other indicia of a recognized doctoral program in psychology. At the time Dr. MacHovec earned his degree, the Institute was not fully accredited. While maintaining a full-time job, Dr. MacHovec completed his "independent" study program in a mere twenty-three months. MacHovec Dep. at 381-82. Finally, Dr. MacHovec's internship program at the "Alaska Psychiatric Institute" was deemed unacceptable under the National Register's guidelines. See Wellner Aff., Attachment 3 ("Guidelines for Defining Supervised Experience In An `Organized Health Service Training Program'").

Dr. Hausman's application was denied because her doctorate degree was in Human Development, and not psychology. The Human Development degree was offered by the Institute for Child Studies of the Department of Education at the University of Maryland. In addition, Dr. Hausman's application was rejected because in her internship she acted as a "Coordinator" of services and not as a supervised educational intern.

Dr. Callahan, who held a doctorate in psychology, was similarly rejected because she completed only a specialized, narrow training experience in the therapeutic procedure of "psychodrama" at St. Elizabeth's Hospital. St. Elizabeth's did have an APA approved internship in clinical psychology, however, her application for admittance into the second year of the clinical internship was rejected by the program's director.

Finally, Dr. Brigham never applied for listing in the National Register, arguing that she would have been rejected because her degree from the University of Michigan was in Counseling and Guidance, not psychology.⁴ After working in the counseling and guidance field, she later attempted to become recognized as a psychologist and health service provider.

C. Plaintiffs' Injuries

According to the plaintiffs' Complaint, the alleged antitrust injuries can be summarized as follows:

(1) ineligibility for licensure;

(2) loss of employment opportunities;

(3) loss of referrals;

(4) loss of third-party reimbursement for patients;

(5) loss of reputation and professional standing; and

(6) loss of unspecified professional privileges and competitive advantages.

1. Licensure

State licensing boards regulate the licensing of psychologists, and the Council has never challenged the state board's authority. Here, all four plaintiffs are licensed to practice psychology. Likewise, plaintiffs have not shown any state which requires listing in the National Register as a condition for licensure or any state which has denied licensure because of non-listing.

2. Employment

Given the plaintiffs' deposition testimony, there is no evidence of lost employment opportunities because of non-listing in the National Register.⁵

3. Referrals

Plaintiffs are unable to specify a single referral lost because of non-listing. See, e.g., MacHovec...