The Grand Politics of This Issue and It’s Polarizing Effect: Pitting Associates Against Supervisors
This Week's Poll
Note: The 3-Part series I started last week will return next week. We're up against a hard deadline here so I wanted to get this out.
There are numerous Board rules changes being proposed that are available for public comment until Oct 31, 5PM. What I want you to do is understand the issues and how they will affect you, then submit an emailed comment to the address below.
Pitting Associates Against Supervisors
These rule changes were proposed by an academic; a part-time, non-Supervisor counselor several years ago. At a Board meeting in Austin, I had a face-to-face conversation with her. She told me that she had, "struggling grad students and new Associates that 'Supervisors exploit and abuse'".
Supervisors who want to help these struggling newbies are specifically banned from the author's FB Associate Group. Associates are taught how to circumvent Board rules and how to deal with Supervisors. Did you know that? (I've interviewed several who couldn't resist talking about it, and spoken to other Supervisors with the same experiences.) Where's the Kumbaya spirit in that?
Issues and Where to Find Them in TX Register
Here's the Cliff Notes version of the proposed changes which can be found here in the Texas Register. I have listed only the relevant changes that apply to the Associates running their own business, and my comments below each one. The out-going rule phrasing is in red.
22 TAC §681.2 (pg 6479)
(13) Independent Practice--The practice of providing professional counseling services to a client without the supervision of an LPC-S.
.
(19) LPC Associate--Licensed Professional Counselor Associate. A person who holds an LPC Associate license to practice counseling only under a [board] Council-approved supervisor and not as an independent practitioner.
Currently, BHEC IS allowing Associates to 1) be in business for themselves but 2) may NOT run an independent practice without having an LPC-S. I am totally against Associates owning their own business prior to completion of their 3000 hours.
22 TAC §681.91 (pg 6481)
(d) An LPC Associate may practice counseling only as part of his or her internship and only under the supervision of a Licensed Professional Counselor Supervisor (LPC-S). The LPC Associate shall [may] not engage in independent practice. [own an independent professional counseling practice.]
An Associate MAY NOT BE an Independent Practitioner. Gotta have an LPC-S in order to run their own practice. Again, totally against the entire concept.
(j) The possession, access, retention, control, maintenance, and destruction of client records is the responsibility of the person or entity that employs or contracts with the LPC Associate, or in those cases where the LPC Associate is self-employed, the responsibility of the LPC-Associate. [An LPC Associate does not own client records; they are the property of the agency, organization, or LPC-S.]
Today, I am responsible for records generated by my Associates. The proposed rule change would make them responsible but read a little further down in 22 TAC §681.93 and you will read that ultimately the Supervisor is still responsible for any records snafus. Is that what you want??
[(l) An LPC Associate must not accept direct payment for services from a client.]
The Board is proposing that this rule be stricken in its entirety which means that an Associate running their own practice will be able to accept payments. Would you be ok with your Associates handling money when you are firmly on the hook for any financial mishandlings? Not me, no thank you. (Again, see 22 TAC §681.93 below)
22 TAC §681.93 (pg 6483)
(b) Both the LPC-Associate and the supervising LPC-S are fully responsible for the professional counseling activities of the LPC Associate. The LPC-S may be subject to disciplinary action for violations that relate only to the professional practice of counseling committed by the LPC-Associate which the LPC-S knew about or due to the oversight nature of the supervisory relationship should have known about. [The full professional responsibility for the counseling activities of the LPC Associate rests with the LPC Associate's approved supervisor(s). If the LPC Associate receives disciplinary action by the Council, the supervisor may also be subject to disciplinary action.]
If the first line of that paragraph doesn’t get your attention I’ll bet that last one does; “should have known about”. That covers a lot of ground and adds a lot of risk to your plate. Are you willing to assume any and all of the risk of someone else’s business dealings? I'm not.
“But, but, but,…that doesn’t really include (fill in the blank).“
I’ll tell you what, when Joe Citizen gets upset enough to file a complaint or three and angry enough to file civil or criminal cases that drag on for a few years, you call me when it's all over and let me know how that went for ya. I already know!
Where's Joe?
An independent practice LPC Associate only has 300 practicum hours, a graduate degree, has learned how to pass an exam and get fingerprinted. And the Board wants to turn that loose on Joe Citizen?
There has been a cumulative total of about 15-20 minutes of public discussion about the potential impact on Joe but this is always dismissed with the hollow argument, "we can't prove that this will harm Joe". I can't prove my kids won't run into the street if I let them out but I can tell you that the probability is too high to take the risk. When does common sense get to play a part in all of this?
Count on civil damages and liability issues happening, it's just a matter of time. Fortunately, we now have a penalty matrix and more expedient resolution timeframes should a complaint arise. But, when you have a lawsuit brought against you, that can go on for years, it ain't cheap and your insurance won't pay up front if at all. Ask me how I know. (How will that help the Associate??)
What to Do About It
Feel free to copy/paste the message below that I have already sent or feel free, of course, to modify as you see fit, or draft your own. Just do something or I believe Joe Citizen is going to bear the brunt of a very bad Board decision.
EMAIL TO: rules@bhec.texas.gov
SUBJECT LINE: NO to LPC Associate Business Ownership While Being Supervised
Per the October 2021, Texas Registry, BHEC/LPC Board is proposing to allow Associates to be "in business for themselves" but may NOT be in an "independent practice" without having a LPC-S.
First, I do not believe that the best interests of Joe Citizen are served by allowing Associates to be in business for themselves running their own practice prior to the completion of their 3000 hour training period. The fact that the Board admittedly can't prove that the change will hurt Joe Citizen is not a green flag to adopt the change (they can't prove it will help him, either!)
Second, this will have an immediate negative effect on the Supervisory pool. I believe that the Board and BHEC are aware of the "Respondeat Superior" clause which renders both the Associate and his Supervisor responsible for any and all actions of the Associate but have, instead, chosen to, "warn off", the Supervisors.
In other words, if you don't want to assume that additional liability then don't take on the Associate. That's fine for the Supervisor but if the Board/BHEC feels truly compelled to warn off Supervisors regarding additional risk, where does that leave Joe? (Or the Associates you're trying to "help"??)
For liability and potential civil issues, I will not supervise any Associate who chooses to enter into their own business during our time together. From numerous conversations, I believe that to be the case with other Supervisors as well. Whom does that leave the Associates dealing with and how does that affect the risk to Joe Citizen? I think the answer to that is obvious.
Sincerely,
(your name)
Summary
Way to go, LPC Board, you have shown where your allegiances lay. You seemingly represent both academia and the professional organizations that are gung-ho supportive of this rule change. Money wins again and Joe's getting the short end of the stick.
I understand grad school does not have the time to properly prepare their students for what they want to do right out of the gate. But the lack of preparation by those who come before me does not constitute an increased risk scenario that I (supervisor), or Joe Citizen, should be asked to bear. And shame on you for putting Associates who count on your experienced guidance at risk.
We have a system in place that's working, one that can be easily improved via the curriculum offered during that 3000 hour period. Why don't we approach this from that angle before we throw Joe (and any impatient Associates) under the bus?
Plan Smart. Be Safe. Serve Others.
Kathleen Mills, LPC-S, CEAP
Got An Opinion?
These posts are my beliefs based on a) almost 30 year practice as a mental health provider and b) my own research. Whether you agree or disagree, please feel free to leave your civil, constructive comments below. I try very hard to back up my liberty-based statements with my own experience and/or verifiable facts and I would ask you to do the same. You do not need to be logged in to leave a comment.
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In your experience as an LPC-S, what recourse does my friend, an LPC-A have when their license is being held after completion of all board requirements but the LPC-S is refusing to sign off on the upgrade form? Because she adamantly believes they own and are running a private practice regardless of the new rules? Which she is NOT, nor does she have any intention to do so while in supervision! All of this is based on adverts the LPC-S found on spurious websites advertising LPCs.
My friend appealed and explained to her that she had not posted any of those adverts and had no power to take them down. The few she called explained to her that as long as she has an NPI number (required of all healthcare personnel), she would always appear on these websites. She has sent a complaint against the LPC-S to the board as a last recourse. Now, It does appear that the board is investigating her rather than the LPC-S as they have asked for ALL the documentation with respect to her work for the last 18 months now going on 24 months. Is this fair? She’s beside herself, as school loan payments and other financial situations are becoming more and more unbearable.
The LPC-S, after 18 months of supervision, had stated she would no longer supervise my friend if she did not take down the adverts (from websites my friend doesn’t even know exist). At which point in time, she searched for and found another supervisor (after going through the proper BHEC notification process regarding such). Her new LPC-s also tried to appeal to the former LPC-S, to no avail. The next thing was the former LPC-S started to insinuate that my friend was and has been dishonest (which is a very personal affront to say the least) and would not recommend her licensing. Is this an ethical issue or one in which LPC-S’s believe they can exercise the power they have over the lives LPC-A’s? I would appreciate your kind and honest response as well as what should my friend do now beyond getting more and more in debt with are credit rating nose diving.
A couple of observations, Henry…
1. While you have provided a 3rd-party, rough overview of what sounds like a most unfortunate event there are simply not enough details provided to make a judgement one way or another, nor would it be advisable for me to do so in this forum since the proper place to work this issue out is the BHEC complaint process.
2. The complaint process for licensees IS the “due process” in which all evidence will be gathered collated, reviewed, and the rulebook will be adhered to, by the investigative team. Once someone enters the investigative process any/all evidence is evaluated. Have your friend provide a sequential, highly detailed, emotionless response to all BHEC inquiries when requested to do so.
3. From a purely legal standpoint, and without sounding callous I hope, your friend’s financial situation while surely urgent and distressing in her mind and yours, is totally irrelevant to resolving the main issue here which looks to be determining why the supervisor refuses to sign off on your friend’s hours. The complaint process should fairly ferret that out.
Prayers for your friend. Prayers for a successful resolution.
Thank you, Kathleen, for providing that template. I have sent my email to BHEC and I have forwarded my concerns to several colleagues. I do appreciate your website.
And we appreciate all the positive word-of-mouth you can give us and this effort. Thank you!
My concern is that it will allow the supervisors to exploit their supervisees even more. Per Texas Workforce law as it stands now, supervisors should not use 1099s to pay their supervisees. I have seen supervisees paid $200 per month because of low rates, free sessions, or no-shows. Every supervisee should be paid on salary and that would solve most of the issues. Advocates should concentrate on making LPC Supervisors adhere to the Texas Workforce law.
A benefit of LPC Associates being able to run their business, however, is that on rural areas, there is a lack of supervisors or just LPCs in general. Allowing LPC Associates to run their business would give access to the people that right now don’t. Adding a language that explains that when there is a low number, whatever that is, of LPCs and/or supervisors in the area, would solve that issue.
There is an added risk at this moment of a potential liability towards my license and I will not supervise Associates that don’t have a salary-based job somewhere because of liability and exploitation.
Thank you for your post. Your first point about 1099’s vs W-2’s is a hot issue for sure but I believe most of your argument is based on misunderstanding what the TWC actually said/did. That’s an entirely separate discussion to have and we will do that in a future blog post, I promise! I look forward to your additional comments there.
Associates may work in rural areas right now in an agency setting as W-2 employees. Everybody wins, right? But they’re not doing it in the numbers that “rural practice proponents” need to see; not even close. So, as an Associate running their own practice, I agree they would still have the option to relocate to a rural environment, but they’re not doing it now, why would they ever do it? The pay is less than in an urban environment.
As to your last point we agree almost 100%! Supervisors already enter into a “vicarious liability” setting when contracting with an Associate. The Board has made it crystal clear that Supervisors are at risk with what is legally termed, Respondeat Superior, and the proposed rules changes allowing Associate practice ownership would only deepen the risk involved (to both parties!).
Right now, the fees a Supervisor charges an Associate are calculated to offset the very real liability risks involved in training an Associate. Ask your-self this question,…..”if the risk to the Supervisor in that relationship increases dramatically would your risk off-setting fees need to go up, or down?” This is not about exploiting Associates (that’s an outlier issue), it’s a business decision about the risk presented to the Supervisor based upon the business decision the Associate makes to put themselves into an Independent Practice situation.