GENERAL GOVERNMENT CABINET

Board of Licensed Professional Counselors

(Amendment)

 

††††† 201 KAR 36:050. Complaint management process.

 

††††† RELATES TO: KRS 335.540, 335.545

††††† STATUTORY AUTHORITY: KRS 335.515(3), (7)

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 335.515(3) requires the board to promulgate administrative regulations necessary to carry out and enforce the provisions of KRS 335.500 to 335.599. This administrative regulation establishes the procedures for filing, investigating, and addressing a complaint filed against a professional counselor.

 

††††† Section 1. Receipt of Complaints. (1) A complaint:

††††† (a) May be submitted by an:

††††† 1. Individual;

††††† 2. Organization; or

††††† 3. Entity;

††††† (b) Shall be:

††††† 1. In writing; and

††††† 2. Signed by the person offering the complaint; and

††††† (c) May be filed by the board based upon information in its possession.

††††† (2)(a) Upon receipt of a complaint, a copy of the complaint shall be sent to the individual named in the complaint along with a request for that individualís response to the complaint.

††††† (b) The individual shall be allowed a period of twenty (20) days from the date of receipt to submit a written response.

††††† (3)(a) Upon receipt of the written response of the individual named in the complaint, a copy of his response shall be sent to the complainant.

††††† (b) The complainant shall have seven (7) days from the receipt to submit a written reply to the response.

 

††††† Section 2. Initial Review. (1) After the receipt of a complaint and the expiration of the period for the individualís response, the complaint screening committee shall consider the individualís response, complainantís reply to the response, and any other relevant material available, and make a recommendation to the board. The board shall determine whether there is enough evidence to warrant a formal investigation of the complaint.

††††† (2) If the board determines before formal investigation that a complaint is without merit, it shall:

††††† (a) Dismiss the complaint; and

††††† (b) Notify the complainant and respondent of the board's decision.

††††† (3) If the board determines that a complaint warrants a formal investigation, it shall:

††††† (a) Authorize an investigation into the matter; and

††††† (b) Order a report to be made to the complaint screening committee at the earliest opportunity.

 

††††† Section 3. Results of Formal Investigation; Board Decision on Hearing. (1) Upon completion of the formal investigation, the investigator shall submit a report to the complaint screening committee of the facts regarding the complaint. The committee shall review the investigative report and make a recommendation to the board. The board shall determine whether there has been a prima facie violation of KRS 335.500 to 335.599 or the administrative regulations promulgated thereunder and a complaint should be filed.

††††† (2) If the board determines that a complaint does not warrant issuance of a formal complaint, it shall:

††††† (a) Dismiss the complaint or take action pursuant to KRS 335.540(3); and

††††† (b) Notify the complainant and respondent of the board's decision.

††††† (3) If the board determines that a complaint warrants the issuance of a formal complaint against a respondent, the complaint screening committee shall prepare a formal complaint, which states clearly the charge or charges to be considered at the hearing. The formal complaint shall be reviewed by the board and, if approved, signed by the chairman and served upon the individual as required by KRS Chapter 13B.

††††† (4) If the board determines that a person may be in violation, it shall:

††††† (a) Order the individual to cease and desist from further violations of KRS 335.505;

††††† (b) Forward information to the county attorney of the county of residence of the person allegedly violating KRS 335.505 with a request that appropriate action be taken under KRS 335.599; or

††††† (c) Initiate action in Franklin Circuit Court for injunctive relief to stop the violation of KRS 335.505.

 

††††† Section 4. Settlement by Informal Proceedings. (1) The board, through counsel and the complaint screening committee, may, at any time during this process, enter into informal proceedings with the individual who is the subject of the complaint for the purpose of appropriately dispensing with the matter.

††††† (2) An agreed order or settlement reached through this process shall be approved by the board and signed by the individual who is the subject of the complaint and the chairman.

††††† (3) The board may employ mediation as a method of resolving the matter informally.

 

††††† Section 5. If the board accepts the recommendation of the complaint screening committee that a violation has occurred but is not serious, the board shall issue a private written admonishment to the credential holder. (1) A copy of the private written admonishment shall be placed in the permanent file of the credential holder.

††††† (2) Private admonishment shall not be subject to disclosure to the public under KRS 61.878(1)(l) and shall not constitute disciplinary action, but may be used by the board for statistical purposes or in any subsequent disciplinary action against the credential holder or applicant.

 

††††† Section 6.[5.] If the board determines that there is reasonable cause to believe that a license holder or applicant for a license is physically or mentally incapable of practicing professional counseling with reasonable skill and safety to clients, the board may order the license holder or applicant to submit to an examination by a mental health professional or a physician designated by the board to determine the license holder's or applicant's mental health or physical status to practice professional counseling.

 

††††† Section 7.[6.] Notice and Service Process. A notice required by KRS 335.500 to 335.599 or this administrative regulation shall be issued pursuant to KRS Chapter 13B and 201 KAR 36:090.

 

††††† Section 8.[7.] Notification. The board shall make public:

††††† (1) Its final order in a disciplinary action under KRS 335.540 with the exception of a written admonishment issued pursuant to KRS 335.540(3); and

††††† (2) An action to restrain or enjoin a violation of KRS 335.505.

 

MARTIN C. WESLEY, Chairperson

††††† APPROVED BY AGENCY: September 15, 2017

††††† FILED WITH LRC: September 15, 2017 at 11 a.m.

††††† PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall be held on October 26, 2017, at 11:00 a.m. at the Department for Professional Licensing, 911 Leawood Drive, Frankfort, Kentucky, 911 Leawood Drive, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing no later than five business days prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until the end of the day on October 31, 2017. Send written notification of intent to attend the public hearing or submit written comments on the proposed administrative regulation to:

††††† CONTACT PERSON: Kayla Mann, Board Administrator, Di-vision of Occupations and Professions, 911 Leawood Drive, Frankfort, Kentucky 40602, phone (502) 782-8803, fax (502) 696-5836, email kayla.mann@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact persons: Kayla Mann; and Brian T. Judy, phone (502) 696-5630, fax (502) 564-6801, email brian.judy@ky.gov.

††††† (1) Provide a brief summary of

††††† (a) What this administrative regulation does: This administrative regulation establishes the complaint and administrative hearing process to address alleged violations brought before the board.

††††† (b) The necessity of this administrative regulation: The necessity of this regulation is to establish a complaint and administrative hearing process to address alleged violations brought before the board.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: The regulation is in conformity as the authorizing statute gives the board the ability to promulgate regulations regarding the requirements for the administrative hearing process to address alleged violations brought before the board.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This regulation will assist in establishing the complaint, investigation, and administrative hearing process of alleged violations brought before the board.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: The amendment provides the board with an additional option at its disposal for resolving a violation of KRS 335.500 to 335.599 or 201 KAR Chapter 36 without formal disciplinary action.

††††† (b) The necessity of the amendment to this administrative regulation: The amendment is necessary so when there is a violation of KRS 335.500 to 335.599 or 201 KAR Chapter 36 that is not so serious that the board can address it without it being considered discipline and reported to the National Practitioner Data Bank.

††††† (c) How the amendment conforms to the content of the authorizing statutes: The regulation is in conformity as the authorizing statute gives the board the ability to promulgate regulations regarding the requirements discipline and investigation by the board.

††††† (d) How the amendment will assist in the effective administration of the statutes: This amendment will assist the board in resolving complaint.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The board is unable to determine the exact number of persons who would be impacted by this regulation since the applications vary from month to month. The board reviews approximately 400 to 500 applications for licensure as a licensed professional clinical counselor annually. There are presently 1,640 licensed professional clinical counselors, 981 licensed professional clinical counselor associates.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either

the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: An applicant or licensee would have to submit to an mental or physical examination if there is a reasonable basis to believe an applicant or licensee may have a mental or physical impairment that affects the practice professional counseling.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There are no new cost associated to the amendment related to the amendment of this administrative regulation.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): An applicant or licensee does not incur the cost of the mental or physical impairment.

††††† (5) Provide an estimate of how much it will cost to implement this administrative regulation:

††††† (a) Initially: No new costs will be incurred by the changes.

††††† (b) On a continuing basis: No new costs will be incurred by the changes.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The boardís operations are funded by fees paid by credential holders and applicants.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There are no increases in fees or funding is required to implement this administrative regulation.

††††† (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: There are no new fees or fee increases associated with the amendments.

††††† (9) TIERING: Is tiering applied? Tiering was not applied as the regulation is applicable to all credential holders. This regulation does not distinguish between similarly situated individuals on the basis of any factor.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† 1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? Kentucky Board of Licensed Professional Counselors.

††††† 2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation: KRS 335.515(3), (7).

††††† 3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. None

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

††††† (c) How much will it cost to administer this program for the first year? None

††††† (d) How much will it cost to administer this program for subsequent years? None

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation: