A regulatory board complaint may be filed against a counselor by a client, colleague, employer, and/or other regulatory agency, such as the Department of Health, or Department of Child and Family Services. Complaints are subsequently investigated by the regulatory board in order to ensure that licensed/certified counselors are practicing safely, professionally, and ethically. Regulatory board investigations can lead to outcomes ranging from no action against the counselor to revocation of the counselor’s license/certification to practice. This case study involves a licensed professional counselor (LPC) who provided telebehavioral health services through a mental health therapy mobile application (app).
The insured LPC began providing counseling services through a mental health therapy app in order to supplement her income. The LPC provided online counseling services to a female client in her early 40s over a period of approximately a year and a half. During this time, the counseling consisted of online exchanges between the LPC and the client to discuss the client’s depression and her anxieties about resuming dating as a single mother following a contentious divorce.
Throughout the course of the counseling relationship, the LPC frequently used unprofessional language, transcended professional boundaries with the client, and made tangential comments about her own political views. The LPC directed comments to the client that evoked feelings of guilt, shame, and embarrassment for the client, including remarks such as:
- “If you don’t change, you’ll end up a withered, lonely old lady.”
- “Any guy looking for a wife is probably not going to be crazy about your out-of-control kids.”
- “Trying to help you is like Groundhog Day… it’s like I’m starting from square one with you every day.”
- “I think we are soulmates. We should hang out next time your ex has your kids.”
After the client brought the LPC’s behavior to the attention of the mental health therapy app, the app administrators conducted an internal investigation. Upon review of the messages the LPC exchanged with the client, the app administrators prohibited the LPC from using the app and reported the LPC to the State Board of Licensed Professional Counselors (“the Board”).
During its investigation, the Board asked the LPC to produce documents and answer questions pertaining to her treatment of the client. First, Board investigators asked the LPC whether she provided a professional disclosure statement and a client bill of rights to the client at the outset of their provider-client relationship. The LPC advised that she believed that because she was treating this client through the mental health therapy app, the terms and conditions to which all app users agree upon enrollment applied in lieu of a separate disclosure statement.
Board investigators also determined that the LPC failed to maintain a client healthcare information record. The only records available were the exchanges between the LPC and the client stored electronically on the app. The LPC did not maintain a healthcare information record for the client, nor any formal or informal assessments, counseling goals, or progress notes of the counseling sessions. The LPC told Board investigators that she believed that, because all of her exchanges with the client were conducted online via the mental health therapy app, she was not required to produce any additional documentation related to her treatment.
The Board concluded that the LPC breached applicable state and federal statutes, regulations, and the American Counseling Association’s (ACA) Code of Ethics for the profession in the following ways:
- Failure to provide a professional disclosure statement to the client
- Failure to maintain client healthcare information records for each client
- Failure to make every reasonable effort to advance the welfare and best interests of the client
- Failure to take reasonable steps to avoid harming the client by failing to avoid language that the client could reasonably interpret as demeaning or derogatory
- Failing to conform to the higher standards of conduct as a counseling professional and failing to refrain from conduct that would bring discredit to the profession
The Board expressed concerns regarding the LPC’s unprofessional language and her behavior with this client, expressing that those actions, in and of themselves, represented grounds for discipline. However, the Board concluded that those actions, in concert with the LPC’s failure to maintain and provide a professional disclosure statement to each of her clients, as well as failure to maintain client healthcare information records demonstrated the LPC’s inability to practice professionally and safely.
The Board and the LPC resolved this matter with the LPC agreeing to surrender her license to practice and to pay a $1,000 fine. This disciplinary action also was reported to the National Practitioner Data Bank (NPDB). The total incurred to defend the LPC in this Board investigation totaled more than $1,200.
Risk Management Recommendations
Below are some proactive concepts and behaviors to include in your practice to help mitigate the risk of Board complaints:
- Know and comply with the ACA Code of Ethics. Also understand state-specific laws and regulations related to professional conduct, applicable ethics codes of state and/or local professional organizations, and requirements of the relevant regulatory/licensure board.
- Practice within the parameters of your state practice act, state regulations, in compliance with organizational policies and procedures, and within the standard of care. If regulatory requirements and organizational scope of practice differ, comply with the most stringent of the applicable regulations or policy. If in doubt, contact your state regulatory board or specialty professional association for clarification.
- Maintain appropriate boundaries with clients and avoid any interactions that are not within accepted counseling practices (e.g. agreeing to meet them at social events or communicating with them on social media outside of the parameters of a professional relationship). Remember that the counselor is solely responsible for maintaining appropriate boundaries in the counseling relationship. Although not all professional boundary issues are equally serious, they tend to impair the objectivity and judgment of both parties, thereby potentially compromising the client-provider relationship and distorting expectations.
- Provide accurate, complete and current documentation in order to enhance continuity of client treatment by another authorized counselor or healthcare provider. Documentation should support the treatment plan and satisfy board regulatory and third-party billing requirements.
- As a complete and accurate clinical record presents the strongest defense against any legal or licensing board action, document the following information, at a minimum:
- The clinical decision-making process, as well as the client’s diagnosis, service plan, response to treatment, results of diagnostic testing and/or consultation findings, and assessments of the client’s risk of being a danger to self or others.
- Client education regarding the client’s treatment agreement, and education regarding policies and procedures.
- The client’s informed consent for proposed treatment and testing.
- Session notes, including review and revision of problems and/or treatment plan, the client’s response and any change in diagnosis.
- Referrals for medical assessment and/or for the prescribing and monitoring of psycho-active medications.
- Discussions of privacy, confidentiality of personal information and possible exceptions to those protections.
- Finally, immediately contact your professional liability insurer if you:
- Become aware of a filed or potential professional liability matter instituted against you.
- Receive a subpoena to testify in a deposition or trial.
- Have any reason to believe that there may be a potential threat to your license or certification to practice.
American Counseling Association (ACA). (2014). ACA Code of Ethics. https://www.counseling.org/resources/aca-code-of-ethics.pdf.
One or more of the CNA companies provide the products and/or services described. The information is intended to present a general overview for illustrative purposes only. It is not intended to constitute a binding contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. “CNA” is a registered trademark of CNA Financial Corporation. Certain CNA Financial Corporation subsidiaries use the “CNA” service mark in connection with insurance underwriting and claims activities. Copyright © 2021 CNA. All rights reserved.