Texas State Board of Examiners of Professional Counselors Defense

Licensed Professional Counsels are regulated by the Texas State Board of Examiners of Professional Counselors. This group of licensees falls under a general umbrella agency, the Texas Behavioral Health Executive Board, which also oversees separate licensees such as social workers (Texas State Board of Social Workers), marriage and family therapists (Texas State Board of Examiners of Marriage and Family Therapists), psychologists (Texas State Board of Psychologists).

Licensed Professional Counselors will receive written notification from the Board that they are being formally investigated. The written notification will contain each allegation of wrongdoing. This letter also attaches a copy of the complaint filed by a Complainant. In this notice of complaint letter, the Board of Examiners of Professional Counselors does not specifically alert the licensed professional counselor, referred to in this setting as the Respondent, that he or she is empowered and entitled to hire the assistance of an attorney. Do not be deterred or form the misconception that an LPC is not allowed an attorney. All LPCs are entitled to legal counsel during the entirety of the complaint and disciplinary process. When an attorney is hired, the Board can no longer contact or visit directly with the licensed professional counselor without that licensed professional counselor’s attorney’s permission.

Unlike other licensing boards, the Texas State Board of Examiners of Professional Counselors, even after a response, attempts to schedule the Respondent for an Informal Settlement Conference. If this occurs, the LPC has the opportunity to appear before Board members, who are primarily LPCs, Board staff, and Board staff attorney(s), to visit about the matter in a one-on-one setting. This process is referred to as an Informal Settlement Conference.

Although it is referred to as “informal,” it is anything but informal as this is a procedure that requests the licensed professional counselor to appear to answer questions from Board members and staff and to defend his or her conduct. Prior to the Informal Settlement Conference, the Board will have provided the LPC with written information as to its proposed findings and areas it believes have been violated. This, oftentimes, is the allegation(s) contained in the initial Board complaint letter and/or the actual complaint filed by the Complainant.

It is critical for an LPC to know that this is not a mandatory appearance and that if the LPC does opt to appear, he or she is allowed the presence of legal counsel who is present throughout the Informal Settlement Conference with the LPC and can fully participate. Decisions as to whether to appear, what to present, and how it should be presented are determined with the assistance of the Phan Law Firm, P.C., prior to this conference. Our attorney, Mr. Phan, can provide the necessary preparation and explanation as to what questions might be posed and how best to provide the necessary and proper information for the best result given the allegation(s) and the evidence on hand, both for the Board and for the Respondent.

Suppose the panel of the Informal Settlement Conference believes that an LPC has committed violations. In that case, the panel will inform the LPC of the recommendation and the discipline it plans on seeking. This process is a proposed disciplinary order, otherwise known as an Agreed Order. The proposed Agreed Order will list specifically each violation and the provision in the law for that violation. The proposed Agreed Order will also contain the proposed permanent mark of discipline.

An LPC who receives this proposed Agreed Order must decide whether to accept the proposed discipline or to contest the determinations of the Board further if he or she disagrees, either by contesting parts of the proposed Agreed Order that are objectionable or the entirety of the proposed Agreed Order. It is important to understand that if an LPC agrees with the proposed Agreed Order and signs it, this will be disciplinary action on the LPC’s license that will be permanent for as long as the LPC holds a license.

If the licensed professional counselor does not agree with the proposed Agreed Order, the Board will file a charging document known as a Notice of Alleged Violation (NOAV). This is a legal document that specifies each allegation against the licensed professional counselor and the legal authority for that claim.

Once this document is filed, the complaint itself becomes public in nature as the NOAV is attached next to the licensed professional counselor’s licensure information on the Board’s website. The Board then begins the formal resolution process by filing the matter for a contested case hearing (i.e., trial) with the State Office of Administrative Hearings (SOAH) before an Administrative Law Judge (ALJ).

In this formal proceeding, the Board attempts to persuade the ALJ, with the evidence it has accumulated, that the licensed professional counselor is in violation. Because the licensed professional counselor is a party to this proceeding, he or she will assuredly be called as a witness to this proceeding.

One must know that a licensed professional counselor who enters this phase of the proceedings will be afforded due process. But, one must understand the process of this formal proceeding and not ignore it.

If the Board is successful in persuading the ALJ, the ALJ will issue a decision called a Proposal for Decision with findings of fact and conclusions of law. If there are findings of violations found, the licensed professional counselor invariably (with few exceptions) will receive discipline on their license from the Board.

During the Board of Examiners of Professional Counselors’ disciplinary complaint process, it is important to recognize that the Phan Law Firm, P.C., is devoted to defending licensed professional counselors with respect to complaints that affect their licenses. The Phan Law Firm, P.C., is proud to consider itself as one of the leaders in this area, devoting its practice exclusively to defending licensed professional counselors.

In the firm’s experience, cases that attorneys handle receive different treatment than those without. How do we know this? Over the years, the firm has been hired by many licensed professional counselors who initially did not hire an attorney.

Upon review of the Board’s evidence in the matter and upon review of the proposed disciplinary action by the Board, the end result attained by the firm and how the Board interacts with the firm almost invariably differed from what was originally proposed to the licensed professional counselor who was without an attorney.

Thus, having seen this pattern repeat itself with regularity, the firm can say with a fair degree of certainty that having counsel assist a licensed professional counselor with a Board complaint, at a minimum, equalizes the playing field given that the Board staff investigator is being advised by an in-house staff attorney at every turn.

Given that the Board has in-house attorneys working for its organization, one must give serious consideration to hiring an attorney specializing in this area of practice (i.e., administrative law /professional license defense) to shepherd the licensed professional counselor through the disciplinary process, a daunting process that can be wrought with potential missteps.

At the Phan Law Firm, P.C., our attorney, Phong Phan, was the former in-house attorney at two different state licensing agencies that regulated health professionals, the Texas Board of Nursing (nurses) and the Texas State Board of Dental Examiners (dentists, dental hygienists).

Mr. Phan, during his time as an in-house attorney at these different licensing agencies, worked closely with the Board’s Directors of Enforcement, Executive Directors, Board members, and on a daily basis with the investigatory staff and advised the staff regarding all types of disciplinary cases and practice violations in all kinds of settings.

Given that these licensing agencies share the same regulatory and disciplinary scheme, Mr. Phan is well-versed and knowledgeable regarding the practice of licensed professional counselors and the other licensees regulated by the Texas Behavioral Health Executive Council.

Because of his unique background, Mr. Phan fully understands the disciplinary process facing an LPC during all phases, having prosecuted thousands of violations against licensees while serving as an in-house attorney. Mr. Phan, with the right experience markedly learned during this time at these licensing boards, has used what he attained to assist LPCs.

The above is a brief outline of the disciplinary process for a licensed professional counselor, regardless of his or her practice field and title (e.g., supervisor, intern). The LPC, which has received a Board complaint and investigation into wrongdoing, is faced with widespread and long-term consequences if discipline is imposed. The disciplinary process and how to defend against it are well-known to Mr. Phan.

In private practice for the last few decades, Mr. Phan has focused his practice exclusively on defending licensed professional counselors and similar other health-related professionals against Board complaints and disciplinary proceedings and has assisted applicants seeking licensure in the State of Texas to achieve their lifelong goal of being a licensed professional counselor.

As one can see, the above process is daunting. Each step requires an attorney who can shepherd a licensed professional counselor through that process and provide sound, reflective legal advice at each step of the way so that the licensed professional counselor is in the best position to understand the consequences of each action and make the best-informed decision for him or her depending on his or her unique facts.

The LPC must be advised and understand whether the Board, considering these same unique facts, can bear its burden and establish discipline against the licensed professional counselor under the statute and its rules. Licensed professional counselors often feel a great burden when faced with a board complaint, unsure as to how to carry themselves for their other clients and facing the possibility of discipline impacting their practice. The Phan Law Firm, P.C., fully understands this.

Candidly, the decision to hire an attorney is a critical and important one that is not to be taken lightly. Given the years of education and training of a licensed professional counselor, the firm expects that each potential licensed professional counselor-client will continue to do his or her due diligence in researching an attorney and finding an attorney and firm that can best obtain the right result for him or her. Thus, one of the key considerations, the firm believes, is whether that attorney has experience with the Texas State Board of Examiners of Professional Counselors and has defended licensed professional counselors before the Board. The Phan Law Firm, P.C., is this firm.