WHEN THE BOARD INVESTIGATES A LICENSEE OR APPLICANT
An Overview of the Process for Licensees/Applicants
When Does the Board Investigate?
When it has reason to question the competency or conduct of a licensee or applicant for licensure.
While Oregon law requires the Board to investigate all complaints, investigations are not always the result of a complaint. The Board does not have to receive a complaint to initiate an investigation. For example,
- The random continuing education audit is an investigation.
- Newspaper articles or news broadcasts can generate an investigation.
- The Board reviews and follows up on disciplinary actions by other states or professional credentialing organizations.
- The Board may look into inconsistencies or information coming as part of an application for licensure or renewal of licensure.
OK, But Who Can File a Complaint?
- Anyone who believes a counselor is incompetent, impaired or has violated the laws or rules of the Board, including its ethical standards. Licensees are bound by the Code of Ethics to file a complaint with the Board if they believe another licensee is or has violated Board regulations or is incompetent.
- The Board.
What Types of Complaints Can Be Made?
- Title Violation (claiming to be licensed with a suspended Oregon LPC/LMFT)
- Incompetence or Practicing Outside the Scope of Training and Ability
- Failure to Distribute a Professional Disclosure Statement
- Obtaining a License Fraudulently
- Inability to Practice as Result of Mental Illness, Physical Illness, Drug or Alcohol Abuse
- Failure to Report Child/Elderly Abuse
- Breach of Client Confidentiality
- Violation of Code of Ethics: e.g., having dual relationship or sex with clients, dishonesty, violating client rights, or other professional misconduct.
Will I Be Told If a Complaint Is Filed Against Me?
No. Chapter 791, Oregon Laws 1997 makes complaints confidential. The existence of, actual complaint documents, and the identity of the complainant shall not be disclosed to you or to the public.
Will I Be Told If I Am Being Investigated?
Usually, but not always. You will be notified of any formal investigation.
The law requires the Board to "investigate" all complaints. Often the preliminary investigation, is merely a review of who the complaint is about and the nature of the allegations. If the counselor/therapist in question is not a licensee or applicant or the allegations do not indicate a violation of law or rules or question competency, the complaint will be dismissed after this preliminary review. Since the law prohibits us from acknowledging that a complaint has been filed or confirming the existence of a complaint, there is no need to tell you that you were the subject of a "confidential preliminary investigation". No one will know except the Board (and the person who filed the complaint.)
If the Board decides that it has information (in a complaint, newspaper article, comment on an application form) that appears to allege misconduct, the Board will expand its investigation. An investigator -- a board member, staff, or a contract investigator -- will be assigned. You will be notified. You will be told, in writing, that the Board is conducting an investigation into your competence or conduct. The allegations will be summarized. In most cases, you will not be told what generated the investigation.
What Happens During The Investigation?
When you are notified, you will be asked to respond to the allegations within 30 days. You will be given the identity of and means to contact the assigned investigator. The investigator will talk to people who may have knowledge of the situation, gather or identify evidence, interview witnesses and file a report. The report may include opinion and recommendations, but usually will just present the facts or information as discovered.
Will Others Have Access To The Information Gathered During The Investigation? Will I have Access To It?
No. Only the Board sees the investigator’s report and has access to the information gathered. The Board must decide if it has "reason to believe or suspect" you have violated any of the laws, rules (including ethical standards), or are incompetent. If it has no reason to suspect misconduct, it dismisses the complaint, or allegations and closes the case. If it finds reason to suspect violation, then it must determine appropriate disciplinary action. There are only three actions the Board may propose: denial of license, suspension of license, or revocation of license.
The Board’s decision, dismiss or discipline, is made by vote in public session. Case numbers are used until there is a majority vote to propose discipline. Then your name and the proposed discipline becomes public record and are recorded in the Board’s minutes.
Will I Know The Results Of The Investigation?
- No, the Board will notify you when the investigation has been concluded. This will take one of two forms: a short letter telling you the investigation is concluded and reminding you that we cannot discuss it further, or
- A formal notice that the Board is proposing disciplinary action for misconduct.
What Happens When the Board Initiates Disciplinary Action?
- The Board issues an "order" proposing to suspend, revoke, or deny issuance of your license. This is called a proposed order. This legal document will list the conduct the Board believes violates the law or rules regulating counselors or therapists and the sanction proposed (it hasn’t happened yet).
- The proposed order will give you a specific amount of time (usually 30 days for licensees, 60 days for applicants) to request a hearing. If the notice is issued as the result of a majority vote of the Board, the document is a public record.
- If you do not request a hearing within the time allowed, or you request a hearing but fail to show up for it, you will be in "default" and the Board will impose the sanction. If your license is suspended, it still exists (as long as you keep renewing it), but you are not able to use the title LPC or LMFT, you do not have a "valid" license. If your license is revoked, it ceases to exist.
- If you request a hearing, one will be scheduled. Although the Board may sit as the judge, hearings are usually held before an independent hearings officer or administrative law judge under contract to the Board. The Board is represented by legal counsel. You may represent yourself or have legal counsel. These are similar to court hearings, but more informal. Evidence will be presented and witnesses will be called by both sides.
- After the hearing, the administrative law judge will issue another "proposed order" with findings of fact and conclusions of law (innocence, guilt, guilt with extenuating circumstances) and a recommendation for final action -- dismissal, reprimand, suspension, suspension with conditions for reinstatement, or revocation.
- You will be given a copy with an opportunity to file exceptions to the Board.
- The Board will review the hearings officer’s findings and recommendations, and any exceptions filed. The Board makes the final decision. The Board may adopt the recommended order as presented, as modified by the Board, or may make its own findings and order. The result is called a "final order". This is public record.
- If the final order is adverse to you, you have 60 days in which to file a request for judicial review by the Court of Appeals.
- Final disciplinary actions are reported to national disciplinary networks. The Board may issue a local press release. Lists of disciplinary action may also be published by the Board as part of a newsletter or made available to other professional publications.
Isn’t There Some Other Way To Handle This Than Going To Hearing?
Yes. After the Board gives notice of its plan to take disciplinary action, informal resolution may be accomplished by a negotiated settlement, stipulated agreement, or consent order. You and a representative of the Board, usually its administrator, sometimes its attorney, may agree to compromise action. For example, the Board may withdraw its proposed action, if the licensee admits guilt and accepts a lesser punishment, such as a reprimand; or the Board may allow the licensee to maintain innocence but accept corrective action -- training, therapy, prolonged supervision, or some combination.
Settlements are cost-effective for both licensees/applicants and the Board. They allow expeditious resolution. And often, the compromise action which is not provided for in statute is a better solution: the licensee continues to have a license and the Board continues to have regulatory oversight.
HOW LONG DOES THIS TAKE?
It’s not quick. The Board has limited resources and meets every other month, so investigations and review of reports may take two to four months. Investigations involving multiple allegations and lots of witnesses may take even longer. Once a proposed order is issued, the Administrative Procedures Act guarantees due process to the accused; however scheduling a hearing can take several months. Unfortunately, the Board often has a backlog of cases waiting for hearing.
WHAT ABOUT MY RECORD?
- Complaints are confidential. Anyone inquiring as to whether a complaint has been filed against a licensee or applicant will be told that such information cannot be provided.
- Investigation reports and the information gathered as part of investigations are confidential.
- The Board will disclose (if by majority vote) any disciplinary action proposed and will disclose all final action that results.
- The Board usually sends you notice whenever it receives a specific request from someone other than your legal representative for copies from your license file or disciplinary files (the proposed and final orders). However, you are not notified when we respond to routine license verification checks, requests for copies of disclosure statements, requests for addresses or phone numbers, or when we give phone responses regarding any disciplinary actions (which are very limited as to content).
rev.12/97
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