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1 posts from August 2012

Aug 31, 2012

It is Confidential Only When we Say it is Confidential - Troubling Practices of the LPC Board

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With the exception of a few differences here and there, as to be expected, most licensing boards operate fairly the same in the disciplinary context once a complaint has been filed and during the pendency of an investigation.  That is to say, complaints/allegations and ensuing investigations conducted by a licensing board remain confidential until either formal charges are signed and/or docketed with the State Office of Administrative Hearings (“SOAH”) or formal disciplinary action has been accepted and entered as a matter of record by way of a board order.  This is provided for in each board’s enabling statute and may further be reflected in that board’s administrative rules.  Because of the requirements imposed by statute, licensing boards do not have any discretion as to whether or not they will comply with this requirement.

Despite the clear language in the law, this has not been the practice involving the Texas State Board of Examiners of Professional Counselors, the entity who regulates licensed professional counselors ("LPC").  Generaly, during the investigation stage, LPCs are invited to appear before a panel of board members at a “Complaints Committee” meeting.  The purpose of the this hearing is to discuss the complaint against the licensee and to determine what disciplinary action, if any, should be recommended.  This hearing affords the licensee an opportunity to appear in-person, to respond, and provide explanation to the allegation(s).  Although couched in terms of an “invitation” meaning that a licensee could decline to attend, this does not mean that the Complaints Committee will not convene, hear evidence, or consider the case if the invitation is declined. The Committee will convene and take action irrespective of the licensee's attendance.   With or without the licensee, at this proceeding, the findings of the investigation, reduced to a written report by the investigator, are presented to a panel of board members.  At that time, the licensee, if present, is afforded the opportunity to provide his or her account, give explanation, and field questions from the panel members and staff.  Oftentimes, the complainant (the person who filed the complaint) is also present and is afforded the same opportunity to address the panel members.  As expected, this proceeding and the nature of the allegations lends itself to being emotionally charged and oftentimes, explosive.

Overall, this process is not unusual.   However, what I find unusual, concerning, and troubling is that these hearings are noticed and scheduled as public meetings and conducted as such.  This means that anyone and everyone can show up if they so choose.  These public meetings are generally held quarterly during the calendar year at various locales throughout the state and more often than not at colleges and universities.  This is done for the express purpose of allowing attendees to sit in, observe, and watch.   Oddly enough, and as an aside, the Board encourages attendance by giving continuing education units to attendees.  Conversely, licensees being investigated are not eligible for these units.  Although the practice is well-intentioned (to educate), the fact of the matter is that licensees’ identities and very damaging allegations are discussed in an “open” forum.  I believe this practice is blatantly in violation of the statute as the veil of confidentiality afforded by statute is lost.  Over the years, I have spoken with at least three different LPC Board in-house attorneys about this issue and although they acknowledge the mandates of confidentiality of the investigatory process by law, they cannot provide explanation as to why these proceedings are held in a public venue.  They cannot provide justification to reconcile their practice with the law.  Having represented numerous clients at these proceedings, it is apparent to anyone sitting in one of these hearings that one can easily learn the identity of each licensee (i.e., full names are frequently mentioned), the town in which they practice, how long they have been practicing, the damaging allegations discussed in full detail and at length, and the proposed discipline recommended by the panel. 

One can elect, as provided for under the rules, to bypass the complaints committee hearing altogether (i.e, decline to attend) and request a meeting at an Informal Settlement Conference (“ISC”).   As another aside, these ISCs are conducted between the board and the licensee and/or their attorneys and in observance of the confidentiality provision (i.e., no one else is allowed to attend).  However, the ISC is only held after the Complaints Committee meeting and if the case has not been dismissed, the licensee is now faced with trying to convince this same board that the recommendation for discipline entered by the complaints committee in his or her absence was in error.  The problem facing a licensee is compounded due to an inherent bias of some board members based on comments regarding the absence or failure of a licensee to attend the initial Complaints Committee meeting.  As one can see, this presents quite the conundrum with respect to whether to attend a complaints hearing which is public in nature or opt for an ISC knowing that a recommendation has already been made and the panel's proclivity to frown on nonattendance by a licensee.   

It does not appear that the LPC Board will change the way this practice is conducted.  If anything, this board appears to encourage, embrace, and welcome a myriad of attendees during these hearings, none of whom have any relationship to the complaint/investigation.  Sadly, the adage of "do as I say, not as I do" appears to be in the mode of operation here.  As with all things that are less than optimal, a firm understanding in the way this Board operates is key to determining the best approach and proper navigation through this process.