McDonald, Mackay and White, LLP

Texas Board of Examiners of Professional Counselors
Investigations and Disciplinary Actions

By law there are currently nine members of the Board.

In Fiscal 2006, the latest public numbers, the Board disciplined 27 licensees. Of those, 20 licensees had their license revoked, surrendered or suspended/probated. In Fiscal 2005, the Board disciplined 12 licensees. Of those nine had their license revoked, surrendered or suspended/probated. In Fiscal 2004, only seven where disciplined, but five had their license revoked, surrendered or suspended/probated.

Clearly, the Board is on the up-swing with disciplinary actions against licensees. Moreover, of those disciplined, the vast majority suffered very serious consequences.

Investigations

The Board is under the Texas Department of Health. Thus, it shares staff with other Board’s. Please know, Board can be aggressive in its investigations and there is a chance of losing one’s license if you do not take the process seriously. It is crucial for professional counselors to understand the Board’s role and the process that a professional counselor undergoes if he/she is under investigation.

The investigation portion of the disciplinary process with the Board starts when the professional counselor is notified of the investigation by mail, unless doing so would jeopardize the Board's investigation. The Board “fast tracks” cases with allegations of sexual misconduct or imminent patient harm. This letter informs the professional counselor that he/she has an opportunity to respond to the allegations within thirty days and that they can be represented by an attorney. The Board often provides a copy of the complaint to the licensee. At that stage, the Board demands a response with supporting evidence in a short period of time. This initial response is critical and can make the difference between the quick closure of an investigation or a prolonged matter.

Once assigned, the Board’s investigator will request various records pertaining to the allegations, such as medical records, witness statements, and other information related to the investigation. Occasionally, the Board investigator will go in person to the professional counselor’s practice. Once the professional counselor has responded and the investigator has obtained all pertinent information, the investigator makes a recommendation regarding the allegations and what the evidence has shown. The information obtained by the investigator is presented to senior staff and an ultimate decision is made regarding the disposition of the case. The case may be dismissed, or the case is set for a meeting with members of the Board.

Complaints Committee

The professional counselor may be invited to attend the Complaints Committee. This is a public meeting where the complaint is also invited. Either side can speak to the Committee. The Committee can also ask questions to the parties present. It also reviews information presented to it. The Committee can vote to close the matter or offer an Agreed Order [see below] to resolve the case at that time.

Informal Settlement Conference

If the professional counselor does not consent to the Agreed Order, the individual has the right to an Informal Settlement Conference. While this proceeding is called an “Informal” Conference, it is not an informal proceeding. The informal means the rules of procedure and evidence do not apply. This is a closed meeting and not open to the public. However, the complainant is given the chance to be present and speak; they are not permitted to stay and participate in the professional counselor’s presentation. Nor does the complaint receive the opportunity to know the decision, until there is a final outcome.

At the Informal Conference, the allegations and evidence are presented to Board members and those members then ask questions of the professional counselor. The professional counselor and his/her attorney are allowed to provide evidence and other mitigating information for the members to take into consideration. After all the information is presented and questions are asked, the members convene separately and discuss the information presented during the Informal Conference. The professional counselor is then called back into the meeting room and the Board presents their decision. The professional counselor knows the recommendation prior to leaving the Board’s offices. The recommendations can be a dismissal, or a proposed Agreed Order or the case is referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings [SOAH].

Agreed Orders

If the evidence shows a violation of the Licensing Act or the Board’s rules, the Board may propose a settlement offer in the form of a proposed Agreed Order. The Agreed Order will state the allegations against the professional counselor, the sections of the law that have been violated and the restrictions being placed on the individual’s license. The restrictions can be varied and may include educational courses, job restrictions, a fine, employer notifications, supervision requirements, counseling requirements, practice restrictions and other actions deemed necessary. It could also result in an offer to suspend, surrender or even revoke a license. If there are any mitigating factors in the professional counselor’s case, the severity of the restrictions may be decreased. The length of the Agreed Order can vary depending on individual circumstances. Agreed Order can be negotiated.

If the professional counselor agrees with the proposed Agreed Order, the professional counselor signs the order and the Order is presented to the Board for ratification. The Board may either ratify the Order as is, or suggest a modification, or reject the Order. If the Order is accepted by the Board, a final copy of the signed Order is mailed to the professional counselor and to the professional counselor’s attorney. The disciplinary action is entered onto the Board’s website and printed in the quarterly newsletter. It is also given to national data banks. All of the Board’s disciplinary actions are public information and become a permanent part of the professional counselor’s license, which means that even when the stipulations are completed and the professional counselor’s license becomes “clear,” the professional counselor will always have a disciplinary action record.

SOAH Hearings

The hearing process begins with the filing of Formal Charges with SOAH and sets a hearing date. Hearings are similar to trials except that the proceeding is before an Administrative Law Judge instead of a judge/jury and some of the evidence and procedural rules are different. The Board has the burden to prove the allegations against the professional counselor and the professional counselor is allowed to present his/her side of the case. After the completion of the hearing, the Judge will issue his or her proposal for decision, which contains findings of fact and conclusions of law and recommended actions. This proposal for decision is presented to the Board and the Board either accepts the Judge’s recommendations or the Board rejects all or part of the Judge’s recommendations and substitutes their own, in limited circumstances. The recommendations may be a dismissal, or proposed restrictions on the professional counselor’s license, a suspension of the professional counselor’s license, or a revocation of the professional counselor’s license. If a professional counselor disagrees with either the SOAH Judge or the Board’s substituted Order, the professional counselor may appeal the process to District Court.

This can be a timely and burdensome process. It is wise to be prepared and assistance of an attorney knowledgeable in this process to help you navigate these difficult processes preserves your rights and protects your livelihood.