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1 posts from January 2012

Jan 08, 2012

The Texas State Board of Examiners of Professional Counselors' Advisory Letter Deconstructed

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The firm recently represented a licensed professional counselor who had retained the firm after attending a hearing before the Complaints Committee without the assistance of counsel; a hearing that took a decidedly ominous turn for this licensee as the Committee members were acting under the belief that the licensee was attempting  to mislead the investigation and Board staff.  As such, the Committee declined to dismiss the allegations, and instead proposed discipline that included a suspension with a reporting/supervision requirement and a submission to regular psychological counseling.  The proposed findings against the licensee centered on violations involving a failure to establish and maintain professional boundaries (i.e., dual relationships), a finding regarding the acceptance of a monetary gift, and following the hearing, a new violation that the licensee had attempted to purposely mislead Board staff.

Upon retaining the firm, we made request to have this case considered at an informal settlement conference before a three member panel that consisted of a member of the LPC Board (Complaints Committee member), Board counsel, and the Executive Director.  The panel agreed with us that no violations had occurred and recommended an outright dismissal (i.e., no discipline entered).  Despite this result, the Board’s insistence and continued use of formulaic form letters containing one-size-fits-all boilerplate language caused some anxious moments for the licensee and had the potential for devasting consequences.   

Following this conference, the Executive Director sent a letter that was titled, “Advisory Letter.”  The significance of this cannot be understated.  Generally, an advisory letter is not public discipline and does not go on a licensee’s licensure record.  Normally, a dismissal of the underlying matter with a form letter, even if labeled “advisory,” would satisfy most licensees.  However, in this case, the firm’s client needed a final letter to present to third parties for coverage/insurability purposes as well as to confirm employment status and, to a lesser extent, to satisfy any other person or entity that this matter had resolved without discipline, including clients. 

The advisory letter sent to the licensee contained the following language in bold print and read, in part:

The Board, however, has concerns with you regarding boundary issues; therefore, you are advised to adhere to and comply with the following: 

TAC §681.41 (k) A licensee shall set and maintain professional boundaries and (l) Dual relationships with clients are prohibited.  A dual relationship is considered any non-counseling activity initiated by either the licensee or client for the purpose of establishing a non-therapeutic relationship. (See definition of CLIENT as referenced in §681.2(7) of this title (relating to Definitions).”

We took exception to this letter on two grounds.  First, at the conference, we were informed by the panel that the complaint was going to be dismissed in its entirety.  As such, we wanted a letter that limited itself to memorializing this action; nothing more, nothing less.   At the conference, the panel was in complete agreement with us that there was absolutely no wrongdoing.  In other words, we understood and were informed that we were going to receive a letter closing out this matter.  When the Board issued a letter deeming it an advisory letter, we objected.  More importantly, we objected because the letter contained boilerplate language that expressed specifically that this Board “. . . has concerns with you regarding boundary issues . . ..”  with reference to the alleged violation in the letter.  (emphasis added).  At worst, a fair reading of the letter meant that the Board still believes that there are unresolved issues with this matter.  At best, the specific allegation relative to the licensee is prominently referenced leading the reader to speculate into a myriad of less than flattering associations against the licensee.  The stigma and real world consequences of this language was unacceptable and cannot be minimized.

When we posed this to the Executive Director, she initially declined to make any changes, acknowledging that her notes, as well as the Board member's notes from that meeting indicated that an “advisory” letter would be issued.  However, upon a more careful review, the Board’s legal counsel’s notes indicated something entirely different.   Counsel’s notes, like ours, reflected that the matter would be closed out entirely.  Because of this, the Board ultimately agreed to amend its letter per our request. 

We note that oftentimes, licensing Boards and staff are creatures of habit.  They may represent an action to a licensee and when they attempt to memorialize the action they may employ their longstanding practice of using generic, boilerplate forms and exercise longstanding habits without much reflection.  Thus, we believe that the boilerplate language in letters deemed “advisory” in nature often may not be appropriate for one’s case or downright erroneous.   More importantly, panel members' or staff’s actions at these conferences of writing down “advisory” when they mean to close with no action is also a result of habit.   In order to avoid this scenario playing out in the future should you find yourself in this situation, we recommend that one take diligent notes at all appearances before licensing Boards, ask questions, and reiterate one’s understanding of the contemplated action prior to leaving a hearing or conference.  Should one receive a letter or action that does not mesh with what one understands, one should not be timid in taking licensing Boards to task for incorrect action and/or use of outdated or inappropriate boilerplate language.  The firm's ability to do so resulted in the removal of the “advisory” letter label with the acceptance of our suggested language; language much more palatable for the licensee:

“As with all licensees, the board asks that you stay updated on all current laws and rules pertaining to Texas Licensed Professional Counselors.”