Phillip Crum: Well, the coffee pot’s on and it’s time for edition number 50. Kathleen Mills and her Lifetree Counseling podcast It’s Just Coffee. And how are you doing, Miss Kathleen?
Kathleen Mills: I’m doing great. How are you today?
PC: I’m rolling. Yes, I am. You betcha.
KM: It’s nice to see a smile on your face right now.
PC: Mmm hmm. Yep. So who do we have for number 50 today?
KM: Well, we have returned guests. Steve Slow and Champ Kerr, who are formerly retired investigators for the Texas Department of State Health Services. Good morning, gentlemen. How are you?
Steve Slough: Okay, thank you.
Champ Kerr: I’m well.
PC: So you invited them back, or they just won’t go away?
KM: (Laughs) I invited them back.
PC: All right.
KM: Very much so. But today I just really wanted to talk about the investigation process and Steve, if you will introduce our listeners once again to you, and then Champ. Then I’m going to ask you the $50 million question for us to talk about today.
SS: Well, I’m not sure about a $50 million question, but Champ and I both worked for the professional licensing and certification division at the health department where we conducted investigations for multiple licensing programs including the mental health boards for the State of Texas. I supervised investigations from 1998 until my retirement, which was in 2011. So I’ve been retired almost four years. Champ has been retired almost a year. We were the most senior of the investigators. Champ was, even though I supervised and coordinated investigations, Champ was my right hand for all of those years.
KM: How about you, Champ?
CK: Oh, I’ve been doing these investigations for roughly I guess 35 years. Worked for various agencies – Commission on Alcohol and Drug Abuse, State Board of Nourishment Examiners and the Department of State Health Services.
PC: Which is all a very nice way of saying you’re the guys that show up with the gun and the badge when somebody complains about a counselor. Is that pretty much it?
SS: No guns.
PC: Oh, really?
SS: We’re the investigators for the Texas Department of State Health Services. We’re not licensed peace officer. Now, the Texas Department of State Health Services does qualify under the Code of Criminal Procedures as a law enforcement agency, but under the Code of Criminal Procedures, the health department’s only allowed one peace officer position and that’s the director of the Food and Drug division. So the investigators for the health division are non-peace-officer-commissioned investigators. They’re state investigators but they’re not licensed peace officers.
PC: I did not know that.
SS: I was the only peace officer that- I was the only investigator that held a peace office license and I have a master’s peace officer license.
PC: But it is a really scary badge, though, isn’t it?
SS: If they’d let me design it, it would have been a lot scarier.
PC: Give me something here!
CK: The original ones were a bit better than the leather/plastic ones hanging around your neck.
KM: There you go. And if you could remind everyone that you just didn’t do investigations for the mental health professional, but you’ve got other boards that you also do investigations, and I believe it’s – what 22 or 23 different ones?
SS: It’s about 23 programs now. When Champ and I were doing it, it was like 22 different licensing programs which encompassed multiple different types of licenses from X-Ray Technicians to Hearing Aid Fitters and Dispensers to Orthodics and Prosthetics, Massage Licensing. Of those 22 programs, the largest body of investigations and complaints and work for the investigators was by far the mental health boards. And after that, the largest program that generated investigations was the massage therapy licensing program. When I was running investigations, I could have dedicated three or four or five investigators to just mental health boards. The volume of complaints and all the investigations were basically complaint-driven. All the complaints – that’s the highest volume of complaints.
KM: Well, one of the reasons why I wanted both of you back is because right now, and in the summer of 2014, the LPC board specifically… I’m an LPC… LPC board specifically goes through a propose revision of rules and regulations. And some of them, they are redefining things like distance counseling, what marriage counseling should be a part of in an amendment. There’s also guidance and clarification about distance counseling that they’re revising. They’re also revising the complain procedure as a matter of fact, and it’s still being in the revision section. My question to both of you is, what part of a private practice mental health professional’s business – whether they’re in an agency setting or a private practice – what part of rules and regulations should/does a mental health professional need to be concerned about when running or developing or cultivating their business?
SS: I think you went the long way around the bush to ask that question. I’m not exactly sure what you’re asking here. What part do they need to be concerned about?
KM: Well, just the whole basic premise of... mental health professional boards are designed to enforce or revise periodically rules and regulations. Why should a mental health counselor be concerned with this?
SS: Champ, do you want to take a stab at it?
CK: Yeah, if you don’t pay attention to the rule changes as they’re developed – and I was looking at those proposed rules recently – if you don’t pay attention to those, you’re going to get caught blindsided by something that perhaps wasn’t a rule violation two years ago but because of the changes in board membership or changes in environment or changes in governmental procedures, it’s now a violation. So you need to stay abreast of those and there’s... I’ve noticed a change in the telecommunication counseling rule where you now both the counselor and the client have to be residents of the state of Texas, unless they are allotted a military person.
KM: Right. And I think that’s still being up for revision.
CK: That hasn’t been adopted yet.
KM: It has not been yet. But, just speak about what, if you – 30,000 ft. up – if you had a chance to tell mental health professionals running their private practices, what kinds of things do you think that they need to be aware of when developing their private practice? How can they stay compliant if they don’t want to read the rules, or what do you suggest they do to try to help keep them out of trouble? I mean, you’ve seen a lot of stuff.
SS: My further suggestion would be that they need to read the rules. They need to be aware of the licensing rules. One of the things that we ran into as investigators is that licensees tend to sometimes take the complaint process with a sort of a lack lackadaisical attitude. They don’t take it as seriously as they should. And they don’t take the knock on the door from an investigator trying to advise- there to advise them of a complaint, that’s serious enough for an investigator to be knocking on their door, they don’t take that seriously. They don’t take the process seriously enough. And so that can get them crossways with the board because they believe... a lot of licensees believe that the board is there to protect me. Well, the board is there to set a standard to protect the citizens of the State of Texas – not to protect the licensee. And they’re going to enforce their rules and regulations if an investigation makes it a termination that there’s evidence of a violation of a rule.
KM: So where do you think that this lackadaisical attitude is coming from, in your experience?
SS: (Sighs) Um.
KM: You guys have seen a lot and you guys have seen a lot. I’m just trying to figure out-
SS: They believe that they’re billable time is more important than trying to deal with an issue that has come up regarding a complaint because they don’t understand that that complaint affects their license. There’s a lot of licensees that are more concerned about my billable hour. I can’t deal with this guy because I’ve got to see a client so I can bill out hours. Well, when that investigator shows up on your doorstep, he is the representative of the board. If you hold a license, or whether you hold all three of the mental health board licenses, he’s there to represent the board and you’d better take that seriously. And you’d better- if you have to cancel an appointment so you can spend time with an investigator, then you need to cancel an appointment to spend time with an investigator.
KM: Even if they think it’s frivolous and it doesn’t matter and it’s not a big deal? Why would they want to waste time with you? I mean, that’s the attitude, right?
CK: Excuse me for jumping in, but for one thing, all licensees are required to cooperate with investigations by the board. And that doesn’t specify that it’s the licensee who has the complaint filed against them that has to cooperate. But any licensees involved are used as a witness are supporting individual has to cooperate with the board investigation.
KM: You know, the distance counseling is a really hot topic here in Texas because of I think that these proposed revisions and the distance counseling definition right now that has been revised by the LPC board that this recording has not been implemented into the new changes, that the distance counseling may take place but the distance counselor has to be a resident of the State of Texas and the client also has to be a resident of Texas, with the understanding that you may do a face-to-face initial consult. Can you guys comment on that? I think that’s a hot topic for a lot of LPCs here in Texas. They don’t like that rule.
SS: Well, I believe that’s going to stem from problems that the board has had in the past with licensees doing distance counseling. We had a licensee that we’ve had multiple complaints on – not an LPC but a mental health counselor – doing counseling where their clients were in other states and even other countries. And that person has created a lot of complaints and I’m sure that’s one of the reasons that the board is looking at that. How do you stem those complaints when they’re being driven- it’s real hard for the investigators to interview the client/victim when they’re in Minnesota or Canada.
CK: It also raises issues of jurisdiction. If the complaining client lives in Missouri and the licensee is in Texas, it does hazard a violation of the Texas rule if the individual receiving the counseling happens to be in another state.
SS: That’s right.
KM: Right. And the argument to not understand the jurisdictional sovereignty issue is that, “Well, all of the LPCs and the social workers and mental health professionals are expertly trained and would never do any unethical things in distance counseling.” Can you guys comment on that?
CK: I would like to say that that was true, but my experience indicates that there are some people – whether they’re professionally licensed or not – that if they see a way to take advantage of a situation, be it tele-counseling or counseling in face-to-face, they’re going to take that if they feel like it’s in their own best interest.
KM: Right. Now here’s one that really intrigued me for obvious reasons. One of the complaint procedures is being changed and I don’t know if Champ or Steve, if you’ve heard about this one. But this is 681.1.161 where, “The executive director” – I just have to read this – “initially reviews the complain to determine jurisdiction. If a complaint appears in the board’s jurisdiction, the executive director shall decide whether to authorize sending a copy of the complaint to the respondent and requesting a response, which may include but not be limited to requesting that a copy of the client’s records be attached to the response. If the executive director does not authorize written notification of the respondent, the complaint will be referred for an investigation and the assigned investigator will determine whether the respondent will be notified by letter, phone call, site visit or some other appropriate means. If the complaint is against a person licensed by another board, the department staff will forward the complaint to that board not later than the 15th day after the agency determines that the information shall be referred to the appropriate agency.” The thing that kind of tweaked my curiosity is that what I think that this is saying is that the executive director does not have to necessarily give notice to the respondent like it is now, where you get the letter and then you have 15 days to make a written response.
SS: Well, that’s not totally true.
SS: I mean, what you just read formalizes what process has been for many years. The executive director has the discretionary authority to review a complaint, make the determination whether they want to notify the licensee and ask for a written response. They also have – barring that action – they send it directly to investigations. It’s always the assigned investigator’s prerogative while he’s making a determination in how he wants to investigate the case to either notify the licensee or just show up on the licensee’s doorstep, depending on what the severity of the complaint is. All that you read is just a formalization of the process within the health department that a complaint goes through once it’s received. The executive director can... if they notify a licensee and ask for a written response, they’re going to look at that response, but that response is still going to go over to investigations most likely for an investigator to review it, make a determination on whether they’ve got all the information there, write an investigative review/report so it can get set on the complaints committee agenda.
KM: I was interpreting it as the executive director doesn’t have to necessarily notify the-
SS: They don’t.
KM: Okay. All right.
CK: Remember: they never really have had to do that. There has been a deal that said that the respondent had to be notified, but it was never clear from that portion of the statute exactly how and what timeframe the notification had to take place.
KM: Gotcha. Okay.
SS: The notification can be receiving a letter from the executive director or the notification is somebody knocking on your door, “I’m from the State of Texas and I’m here to help you.”
KM: (Laughs) I appreciate the help, Steve.
SS: I’m from the government and I’m here to help you.
KM: (Laughs) There you go! Okay, there’s one more that I want you guys to comment on. And the proposed amendment is 681.52: “Preclude an LPC intern from holding oneself out as an independent practice and also clarify that this limitation applies but is not limited to websites, advertisements or intake documents.”
CK: You’re wanting our comment on that? There have been multiple complaints in the past where interns would set up a website or even open a practice before they finished their internship.
SS: So we’ve had to deal with those issues and interns are interns creating their business cards without the “intern” designation on their business card and they’re passing them out in anticipation of completing their internship and becoming fully licensed. Well, they’re doing all that while they’re still an intern and so complaints get filed.
CK: It’s been my experience on multiple occasions that a website indicates to a consumer that the individual operating the website or being advertised on the website is licensed and is and individual private practice when that may or may not be the case. And then in the case of the interns, they’re not allowed to practice independently and of course now one problem is exactly what is the definition of independent practice.
KM: Right. Well, what is the definition?
CK: Unless the board has chosen to clarify that recently, it’s still hasn’t been defined as far as I know.
KM: Okay. So you would recommend LPCs interns to do what?
CK: My recommendation would be to be sure that any website or any advertisement indicates that you are an intern and that you are supervised by a fully-licensed person.
KM: And that has to go on the business card as well?
SS: It has to go on everything.
KM: Everything, yeah.
SS: They can’t put anything out in the public–it’s their responsibility that everything that’s put out to the public indicates their internship. And most of the problems – and Champ can help me with this – but I think most the problems that we’ve had with that in the past- or, the investigators have had in the past- are the licensees are so anxious because they’re coming to the end of their internship that they start putting out this information without realizing how it violates the rules and how it can get them into trouble and how it can cause an investigator to show up on their doorstep because they’re focused on, “I’m going to complete my internship and I’ll be in the private practice. I’m finally there,” and then they start putting out this information and it gives the wrong impression.
CK: Exactly. It’s just a matter of wanting to jump on the process so that my name is out there in front of the public and they know that I’ll be doing this and such-and-such.
KM: So, one last question, guys. Honestly, why would- what is the value of going to an ethics CEU series with you guys being present? What kind of value can you tell people that that is helpful to maybe attend something like this where we’re talking about some pretty serious things about the board, and all that.
SS: Well, I don’t think anybody else in the state of Texas has the experience that Champ and I have from the investigative standpoint of hearing what we had to say on what we think is important.
PC: It’s kind of like having a cop tell you how to avoid getting a speeding ticket.
KM: (Laughs) Right?
SS: You know, Champ’s 35 years with various state agencies. My 15 years with the health department, plus my 10 years as an investigator for the attorney general’s office. Between us we’ve got a lot of experience of governmental regulatory investigating experience there and it’s hard for someone to ask an ethics-type question or a complaint question that Champ or I will not have an answer to because we’ve conducted hundreds or thousands of investigations. For 15 years, there wasn’t a single complaint for any licensing program that came into investigations that I didn’t see. I saw every complaint before it was assigned.
KM: Why are people afraid of listening to this kind of ethics presentation? I mean, I find that counselors would rather do something online and call it a day with a marshmallow kind of ethics. When I think in this day and time, complaints are higher now than they were maybe even five years ago, for crying out loud.
CK: I would agree with that. I’m sure that the level of complaints is higher than it was five years ago, and it’s probably higher than it was before I retired. But to answer your question, I think that it’s just a matter of human beings because if I can sit at my computer and get credit for taking this ethics course and I never have to leave the office or my house, fine and dandy. It’s that much easier than me having to drive across town or drive to another community to see face-to-face what’s going on.
PC: How often - I may be the only one in the room that doesn’t know the answer, but – how often does the board change rules or update rules? Is that an anytime-they-want-to thing, or is it once a year?
SS: No, isn’t it every five years, Champ?
CK: Well, they’re required to review their rules every five years, but they can make a change anytime they want to.
PC: Anytime, meaning in March or October?
SS: It will have to go through the rules revision process, but yeah they have to review the rules every five years.
KM: Well, there’s another rule that they’re pondering about. Every LPC in Texas has to be a resident of Texas now.
PC: So if I’m an LPC intern, or I’m still in school, but I want to keep up on this stuff... now I recall, Steve, that one time you said that in answer to the question, “Where do I find this information?”: It’s on some state site somewhere and I believe you said it’s possible to subscribe to an RSS feed or an email feed of some sort so that anytime anything’s posted, it comes your way? Or, was I dreaming?
SS: I don’t recall that.
KM: They simply say go to the website and look at the rules. They’re posted, but you really have to look pretty hard.
CK: You do, and there is on the LPC’s- in fact there is an email service that you can sign up for that gives you notices of meetings and agendas of meetings and that may include proposed rule changes.
KM: Yeah, I think you’re right, Champ. I’ve subscribed to the Marriage and Family, the LPC and the Social Worker and it’s an automatic email when they load something up, and then a mass email goes out to people who have freely given their email to them.
PC: There’s too much stuff to keep up with to have to remember to have to go get it. I need it coming at me.
SS: Well, you know, the complaints- Champ is right. There are a lot of complaints. I still talk to Gerard who now coordinates and supervises the investigators on a very regular basis, and while since I’ve retired they have hired additional investigators, there’s still a backlog of complaints. So while we used to struggle to keep complaints within a four to six month process, there are still complaints out there now that have been in the loop to get investigated that are a year old.
KM: Right. I know someone right now that’s 534 days. So it is a lengthy process.
SS: I mean, they’ve hired additional investigators, but just the fact that you hire an investigator does in, in and of itself, ease the problem because it takes a good six months to get an investigator trained.
KM: And I think there’s a disconnect – and our time is almost up – that if it’s a serious complaint, that’s why the process is so long. And I really beg to differ because I know that categorically is not the case. Whether you think it’s frivolous or not, it’s going to take a long time just because the process is what it is.
PC: Well, we are indeed out of time. And Kathleen Mills can be found at Lifetreecounseling.com and I can be found at the Contentmarketingcoach.us and Steve and Champ can’t be found unless they want to be found.
KM: Well, they’ll be found at our symposium on January 30th so I do encourage everybody to come and really listen to these fine gentlemen. And they’ve got much to say and I really thank you for the time that you’ve spent with us, you guys. Thank you so much.
SS: My pleasure.
PC: Thanks for listening, everybody. Thank you, gentlemen, and we’ll see you all next time. On we go.