1. The Good, the Bad, and the Ugly: Ethical Decision Making from A – Z & Protocol for Prosecution of Cases Before the Regulatory Board

2. ABOUT THE BOARD The Mississippi State Board of Examiners for Licensed Professional Counselors exists to regulate the profession of counseling, as well as of the title “Licensed Professional Counselors”. The Board is charged with numerous duties. An important duty is to investigate complaints against licensees, determine the merit of complaints, and discipline Licensed Professional Counselors.

3. ABOUT THE BOARD There are five Board members, one member from each of the four congressional districts of Mississippi and a member at large, appointed by the Governor with the advice and consent of the State Senate. Nominees to the Board must be Licensed Professional Counselors in good standing and qualified electors of the State of Mississippi. Three board members are primarily engaged in private or institutional practice in counseling and two board members are primarily engaged in teaching, training or research.

4. ABOUT THE BOARD The Board conducts meetings pursuant to the Mississippi Open Meetings Law, Section 25-41-3, Miss. Code Ann. (1972) as amended. All meetings of this “public body” must begin as an open meeting. There are eleven reasons that a Board can legally declare an executive (closed) session. One primary reason this Board enters executive session is, to deliberate after a hearing. This exception would be announced as follows: “to investigate proceedings by any public body regarding allegations of misconduct or violation of law.”

5. COMPLAINTS, DISCIPLINARY HEARINGS, SANCTIONS The Board may, after notice and opportunity for a hearing, restrict, suspend, revoke, or refuse to issue or renew a license or may reprimand* the LPC for the following reasons, including but not limited to: A. Failure to meet all requirements for licensure; B. Failure to pay required fees; C. Practicing professional counseling in a grossly negligent or incompetent manner; D. Conviction of a felony;

6. COMPLAINTS, DISCIPLINARY HEARINGS, SANCTIONS E. Obtaining a license or certification by fraud, deceit, or other misrepresentation; F. Assisting another in falsely obtaining a license or certification; G. Swearing falsely under oath or affirmation; H. Violation of the American Counseling Association Code of Ethics and Standards of Practice adopted by the Board;

7. COMPLAINTS, DISCIPLINARY HEARINGS, SANCTIONS I. Violation of board rules and regulations; J. Declaration of mental incompetence by the court or appointment of a guardian; K.Intentional violation of any provisions of 73-30-1, et. seq. of the Mississippi Code * NOTE: The Board may impose sanctions, singularly or in combination – including probation, but may not impose a fine.

8. COMPLAINT PROTOCOL A.The Board is charged with promulgating rules and regulations for its operation (s). 1. Complaints should be mailed to the Executive Director at the Board office. The complaint must be on complaint forms approved by the Board. 2. The complaint must include the street address, phone numbers, e-mail address, and any other reasonable contact information of the individual filing the complaint. 3. The complaint should include any witness information. 4. The complaintant is responsible for completing, notarizing, and returning forms to the Board Office.

9. COMPLAINT PROTOCOL CONTINUED B.Upon receipt of the complaint, the Executive Director will: 1. Assign a case number and enter complaint information in the Complaint Log; 2. Prepare a file for the original documents of the complaint; 3. Copy the original documents; 4. Send the copy of the Board member assigned the complaint or, at the direction of the Board, an external investigator;

10. COMPLAINT PROTOCOL CONTINUED 5. Complaints shall be assigned among Board members on a rotating basis by the Board Chair; 6. The option of assigning a complaint to an external investigator shall be determined on a case by case basis depending on the Board’s case load.

11. COMPLAINT PROTOCOL CONTINUED C.The investigator/investigating board member shall: 1. Investigate the complaint to determine the validity, appropriateness, and jurisdiction of the complaint based on the Code of Ethics, the Rules and Regulations, and the statutes governing LPCs; 2. Inform the accused counselor that a complaint has been filed against him/her and that he/she is under investigation within a reasonable time from the date of receipt of the complaint not to exceed 120 days; 3. The Board member or investigator shall notify the counselor that a complaint has been filed and that he/she has ten (10) days to respond to the complaint;

12. COMPLAINT PROTOCOL CONTINUED 4. The accused licensee may request an extension, of up to thirty (30) days, to respond to the complaint. Extensions will be granted on a case-by-case basis. Justification for additional time is determined by the assigned/designated board member/investigator. 5. All correspondence to the accused should be completed using certified US mail. 6. All communications should be copied to the Executive Director and the Board Attorney. 7. Original mail receipts should be forwarded to the board office; investigating board members and/or investigators should keep copies.

13. COMPLAINT PROTOCOL CONTINUED D. Criteria used to determine whether a charge is set for hearing: 1. Whether the person is a licensee; 2. Whether the charge, if true, would constitute a violation of the Code of Ethics; 3. Whether passage of time since the violation requires that the complaint be rejected;

14. COMPLAINT PROTOCOL CONTINUED E. The Board shall conduct a meeting, with a quorum present, to hear a case presented by the assigned board member or investigator. 1. The assigned case number is used in referring to the case. 2. Only a minimal description of the case should be offered at this juncture of the proceedings.

15. COMPLAINT PROTOCOL CONTINUED 3. The Board member can recommend that the Board: a. Vote to take no action, if no action is merited; b. Authorize a disciplinary hearing and initiate a formal complaint and notice of disciplinary hearing; c. Take other appropriate action, as deemed necessary by the board; or d. Resolution of any formal complaint may be made between the Board and the licensee. (Re: Consent/ Agreed Order)

16. COMPLAINT PROTOCOL CONTINUED F.In the event that the board authorizes that a disciplinary hearing be held, the following shall occur: 1. The licensee should receive notice thirty (30) days prior to the date of the disciplinary hearing. 2. Notice shall be considered to have been given if the notice was personally served, by certified mail to the licensee’s last known address as listed with the Board, or otherwise personally served. 3. The notice shall inform the licensee of the facts which are the basis of the complaint and which are specific enough to enable the licensee to defend against the complaint.

17. COMPLAINT PROTOCOL CONTINUED 4. The notice of the complaint shall also inform the licensee of the following: a. The date, time, and location of the hearing; b. That the licensee may appear personally at the disciplinary hearing and may be represented by counsel; and c. That the licensee shall have the right to produce witnesses and evidence on the licensee’s behalf and shall have the right to cross-examine adverse witnesses and evidence.

18. COMPLAINT PROTOCOL CONTINUED 5. The disciplinary hearing shall be before the Mississippi State Board of Examiners for Licensed Professional Counselors and shall be presided over by the Chair, senior member, or designee of the Board. 6.Following the disciplinary hearing, the Board shall, in writing, notify the licensee as to what sanctions, if any, shall be imposed and the basis for the Board’s action. 7. The Board, upon complaint by any citizen or upon the Board’s own motion, can compel attendance of witnesses and the production of documents, and administer oaths and receive testimony and evidence. 8. The Board may bring a claim upon it’s own motion if it can be substantiated as any other claim.

19. COMPLAINT PROTOCOL CONTINUED G. All disciplinary hearing proceedings are matters of public record and shall be preserved pursuant to state law. H. All final orders issued by the Board shall be reflected in the Board minutes. I. All proceedings resulting in discipline (a written order; public reprimand...) are matters of public record and shall be preserved pursuant to state law.

20. DISCIPLINARY APPEAL A. An individual may appeal the decision of the Board to the circuit court of the county of the applicant’s residence.

21. VARIATIONS ON A THEME: THE NORTH CAROLINA BOARD ABOUT THE BOARD -Seven members are appointed by the Governor. Five are licensed counselors, two are public members, from different congressional districts.

22. DISCIPLINARY PROCESS Very similar to Mississippi, except each complaint is assigned a number and sent to an Ethics Committee that consists of one board member, and the board attorney. The Ethics committee determines probable cause to proceed with action on a complaint. The Ethics committee chair does not then participate if the matter goes to hearing, although case law does not prohibit him or her from doing so. The Ethics committee can refer cases to its investigator if needed.

23. DISCIPLINARY PROCESS WHERE WE DIFFER : North Carolina’s board does not have time frames within which to process complaints. The only deadline is that a final written board decision is due within 120 days after the close of the hearing. The licensee can appeal the final agency decision to Superior Court for judicial review, which is an appellate review of the record. If licensee is unsatisfied in Superior Court, the case can go to the Court of Appeals, and then on to the Supreme Court.

24. DISCIPLINARY PROCESS North Carolina just revised its statutes to allow more flexibility in fashioning disciplinary or remedial action. Our statute used to be very similar to Mississippi’s. New statute, entitled “Protection of the Public” states: The Board may deny, suspend, or revoke licensure, discipline, place on probation, limit practice, or require examination, remediation, or rehabilitation of any person licensed under this Article on one or more of the following grounds:

25. DISCIPLINARY PROCESS Has been convicted of a felony or entered a plea of guilty or nolo contendere to any felony charge under the laws of the United States or of any state of the United States. Has been convicted of or entered a plea of guilty or nolo contendere to any misdemeanor involving moral turpitude, misrepresentation, or fraud in dealing with the public, or conduct otherwise relevant to fitness to practice professional counseling, or a misdemeanor charge reflecting the inability to practice professional counseling with due regard to the health and safety of clients or patients.

26. DISCIPLINARY PROCESS Has engaged in fraud or deceit in securing or attempting to secure or renew a license under this Article or has willfully concealed from the Board material information in connection with application for a license or renewal of a license under this Article. Has practiced any fraud, deceit, or misrepresentation upon the public, the Board, or any individual in connection with the practice of professional counseling, the offer of professional counseling services, the filing of Medicare, Medicaid, or other claims to any third-party payor, or in any manner otherwise relevant to fitness for the practice of professional counseling.

27. DISCIPLINARY PROCESS Has made fraudulent, misleading, or intentionally or materially false statements pertaining to education, licensure, license renewal, certification as a health services provider, supervision, continuing education, any disciplinary actions or sanctions pending or occurring in any other jurisdiction, professional credentials, or qualifications or fitness for the practice of professional counseling to the public, any individual, the Board, or any other organization. Has had a license or certification for the practice of professional counseling in any other jurisdiction suspended or revoked, or has been disciplined by the licensing or certification board in any other jurisdiction for conduct which would subject him or her to discipline under this Article.

28. DISCIPLINARY PROCESS Has violated any provision of this Article or any rules adopted by the Board. Has aided or abetted the unlawful practice of professional counseling by any person not licensed by the Board. Has been guilty of immoral, dishonorable, unprofessional, or unethical conduct as defined in this subsection or in the current code of ethics of the American Counseling Association. However, if any provision of the code of ethics is inconsistent and in conflict with the provisions of this Article, the provisions of this Article shall control

29. DISCIPLINARY PROCESS Has practiced professional counseling in such a manner as to endanger the welfare of clients. Has demonstrated an inability to practice professional counseling with reasonable skill and safety by reason of illness, inebriation, misuse of drugs, narcotics, alcohol, chemicals, or any other substance affecting mental or physical functioning, or as a result of any mental or physical condition. Has practiced professional counseling outside the boundaries of demonstrated competence or the limitations of education, training, or supervised experience.

30. DISCIPLINARY PROCESS Has exercised undue influence in such a manner as to exploit the client, patient, student, supervisee, or trainee for the financial or other personal advantage or gratification of the licensed professional counselor associate, licensed professional counselor, or a third party. Has harassed or abused, sexually or otherwise, a client, patient, student, supervisee, or trainee. Has failed to cooperate with or to respond promptly, completely, and honestly to the Board, to credentials committees, or to ethics committees of professional associations, hospitals, or other health care organizations or educational institutions, when those organizations or entities have jurisdiction.

31. DISCIPLINARY PROCESS Has refused to appear before the Board after having been ordered to do so in writing by the chair. Has a finding listed on the Division of Health Service Regulation of the Department of Health and Human Services Health Care Personnel Registry.

32. DISCIPLINARY PROCESS The Board may, in lieu of denial, suspension, or revocation, take any of the following disciplinary actions: Issue a formal reprimand or formally censure the applicant or licensee. Place the applicant or licensee on probation with the appropriate conditions on the continued practice of professional counseling deemed advisable by the Board.

33. DISCIPLINARY PROCESS Require examination, remediation, or rehabilitation for the applicant or licensee, including care, counseling, or treatment by a professional or professionals designated or approved by the Board, the expense to be borne by the applicant or licensee. Require supervision of the professional counseling services provided by the applicant or licensee by a licensee designated or approved by the Board, the expense to be borne by the applicant or licensee.

34. DISCIPLINARY PROCESS Limit or circumscribe the practice of professional counseling provided by the applicant or licensee with respect to the extent, nature, or location of the professional counseling services provided, as deemed advisable by the Board. Discipline and impose any appropriate combination of the types of disciplinary action listed in this section.

35. DISCIPLINARY PROCESS In addition, the Board may impose conditions of probation or restrictions on continued practice of professional counseling at the conclusion of a period of suspension or as a requirement for the restoration of a revoked or suspended license. In lieu of or in connection with any disciplinary proceedings or investigation, the Board may enter into a consent order relative to discipline, supervision, probation, remediation, rehabilitation, or practice limitation of a licensee or applicant for a license.

36. DISCIPLINARY PROCESS The Board may assess costs of disciplinary action against an applicant or licensee found to be in violation of this Article. Upon a showing of probable cause to the Board that the applicant or licensee is not capable of practicing professional counseling with reasonable skill and safety with patients or clients, the Board may petition a court of competent jurisdiction to order the applicant or licensee in question to submit to a psychological evaluation by a psychologist to determine psychological status or a physical evaluation by a physician to determine physical condition, or both.

37. DISCIPLINARY PROCESS The Board is required to provide the opportunity for a hearing under Chapter 150B to any applicant whose license is denied or to whom licensure is offered subject to any restrictions, probation, disciplinary action, remediation, or other conditions or limitations, or to any licensee before revoking, suspending, or restricting a license or imposing any other disciplinary action or remediation. If the applicant or licensee waives the opportunity for a hearing, the Board's denial, revocation, suspension, or other proposed action becomes final without a hearing having been conducted.

38. DISCIPLINARY PROCESS A person whose license has been denied or revoked may reapply to the Board for licensure after one calendar year from the date of the denial or revocation. A licensee may voluntarily relinquish his or her license at any time. Notwithstanding any provision to the contrary, the Board retains full jurisdiction to investigate alleged violations of this Article by any person whose license is relinquished under this subsection and, upon proof of any violation of this Article by the person, the Board may take disciplinary action as authorized by this section.

39. PUBLIC RECORDS ISSUES All records, papers, and other documents containing information collected and compiled by or on behalf of the Board as a result of investigations, inquiries, or interviews conducted in connection with licensing or disciplinary matters shall not be considered public records within the meaning of Chapter 132 of the General Statutes. However, any notice or statement of charges against any licensee or applicant, or any notice to any licensee or applicant of a hearing in any proceeding, or any decision rendered in connection with a hearing in any proceeding shall be a public record within the meaning of Chapter 132 of the General Statutes, though the record may contain information collected and compiled as a result of the investigation, inquiry, or hearing.

40. PUBLIC RECORDS ISSUES Any identifying information concerning the treatment of or delivery of services to a client who has not consented to the public disclosure of the treatment or services may be deleted. If any record, paper, or other document containing information collected and compiled by or on behalf of the Board, as provided in this section, is received and admitted in evidence in any hearing before the Board, it shall be a public record within the meaning of Chapter 132 of the General Statutes, subject to any deletions of identifying information concerning the treatment of or delivery of services to a client who has not consented to the public disclosure of treatment or services.

41. PUBLIC RECORDS ISSUES (g) A person whose license has been denied or revoked may reapply to the Board for licensure after one calendar year from the date of the denial or revocation. (h) A licensee may voluntarily relinquish his or her license at any time. Notwithstanding any provision to the contrary, the Board retains full jurisdiction to investigate alleged violations of this Article by any person whose license is relinquished under this subsection and, upon proof of any violation of this Article by the person, the Board may take disciplinary action as authorized by this section.

42. CASE SCENARIO IN THE MATTER OF DR. STEPHANIE SMITH, PHD., LPC Norma Knaak and her ex-husband were involved in a divorce and child custody proceeding. Knaak first sought Respondent’s services for forensic evaluation. On or about December 4, 2006, Norma Knaak filed a complaint with the Board, alleging that the Respondent had told her that she (Respondent) would help her (Knaak) but Smith did not represent her; that the Respondent failed to maintain contact with Knaak (for at least two months there was no contact at all); that the Respondent failed to perform investigation and documentation in her case; and that she (Knaak) had to hire another professional because of the Respondent’s lack of investigation and documentation; the new health professional made a request for documentation from Dr. Smith but the information was not forthcoming.

43. CASE SCENARIO The investigating board member sent a letter of inquiry asking Dr. Smith for a response to the Knaak complaint. Initially, Respondent failed to provide a reply to Knaak’s complaint. Two days before the hearing Smith’s attorney filed a response/answer to Knaak’s complaint. Dr. Smith made her report to the Court. She sent a copy to Knaak’s attorney but did not discuss the test results with her. On the basis of Dr. Smith’s report, the Court awarded custody of Knaak’s daughter to her father, Kent.

44. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW 1. The Respondent violated Section 73-30-21 (g) of the Mississippi Code of 1972, as amended, and Chapter 8 Section 1. I of the Board’s Rules and Regulations in that she failed to respond to the Board’s request for information as required by Chapter 8 Section 2.D of said Rules and Regulations. [Now - Chapter 8, Sec. 2, C 3 & 4]

45. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW 2. The Respondent violated Section 73-30-13 and 73-30-21 (g) of the Mississippi Code of 1972, as amended, Chapter 7 and Chapter 8, Section 1. H of the Board’s Rules and Regulations in that she did not comply with the following American Counseling Association (ACA) Code of Ethics and Standards of Practice, adopted by the Board:

46. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW a) There was no evidence that Respondent was available to Knaak for nearly two months and/or that she even communicated the results of her evaluation with Knaak in contravention of Section A (Welfare of Those Served by counselors) and A.1.a. respect the dignity and to promote the welfare of clients”); and Section E.1.b. (Counselors “respect the client’s right to know the results, the interpretation made, and the basis for counselors’ conclusions and recommendations”);

47. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW b) The Respondent failed to even respond to the request for information from another professional retained by Knaak in violation of Section D (“...Counselors develop positive working relationships and systems of communication with colleagues to enhance services to clients”), D.1(“Relationships with Colleagues, Employers, and Employees”), D.1.b (“Counselors work to develop and strengthen interdisciplinary relations with colleagues from other disciplines to best serve clients”), D.2 (Consultation), and D-2.d (“When providing consultation, counselors, have an obligation to review, in writing and verbally, the rights and responsibilities of both counselors and consultees. Counselors use clear and understandable language of the services to be provided, relevant costs, potential risks and benefits, and the limits of confidentiality. Working in conjunction with the consultee, counselors attempt to develop a clear definition of the problem, goals for change, and predicted consequences of interventions that are culturally responsive and appropriate to the needs of consultees”); and

48. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW c) Respondent did not obtain any type of written informed consent documenting that she had clearly communicated the nature of her relationship with Knaak in violation of Section E. 13 (Forensic Evaluation: Evaluation of for Legal Proceedings) and E. 13.b (“Individuals being evaluated are informed in writing that the relationship is for the purposes of an evaluation and is not counseling in nature, and entities or individuals who will receive the evaluation report are identified. Written consent to be evaluated is obtained from those being evaluated unless a court orders evaluations to be conducted without the written consent of individuals being evaluated”).

49. THE FINAL BOARD’S ORDER – CONCLUSIONS OF LAW 3. Respondent failed to conform to minimum ethics and practice standards as they relate to ACA Code of Ethics Section C (Professional Responsibility) and C. 1 (“Counselors have a responsibility to read, understand, and follow the ACA Code of Ethics and adhere to applicable laws and regulations”). By such conduct, Respondent has also violated Section 73-30- 13 and 73-3-21(g) of the Mississippi Code of 1972, as amended, and Chapter 8, Section 1. H and I of the Board’s Rules and Regulations.

50. ADJUDICATION THE BOARD ORDERED THAT: 1.Respondent be publicly reprimanded. 2.Respondent take, at her own expense, and successfully complete three (3) hours of continuing education in Ethics in the area of Informed Consent. (These hours were in addition to the continuing education hours required by the Board for licensure renewal). 3.Respondent develop and implement for use in her practice the following documents, which must meet the requirements of the ACA Code of Ethics: the Informed Consent, Release of Information and Professional Disclosure Statement. 4.Respondent bear all costs relating to her compliance with the terms of the Final Order. NOTE: Failure to comply with the terms of the order would subject Respondent to further disciplinary action, including revocation by the Board.