Delaware General Assembly

CHAPTER 267

FORMERLY

SENATE BILL NO. 220

Section 1. Amend Title 24 of the Delaware Code by striking Chapter 30 in its entirety and substituting the following in lieu thereof:

"CHAPTER 30. PROFESSIONAL COUNSELORS

Subchapter 1. Board of Professional Counselors of Mental Health.

§3001. Objectives.

§3002. Definitions.

The following words, terms and phrases, when used in this Chapter shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning:

(1) 'Board' shall mean the State Board of Professional Counselors of Mental Health established in this Chapter.

(2) 'Direct supervision' shall mean the face-to-face consultation, on a regularly scheduled basis, between the licensed associate counselor of mental health (LACMH) and the licensed professional counselor of mental health (LPCMH) as required by the nature of the work of the LACMH. The supervising LPCMH is responsible for insuring that the extent, kind and quality of the services rendered by the LACMH are consistent with the person’s education, training and experience.

(3) 'Division' shall mean the state of Delaware Division of Professional Regulation.

(4) 'Excessive use or abuse of drugs' shall mean any use of narcotics, controlled substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs the licensee's ability to perform the work of a licensed professional counselor of mental health or a licensed associate counselor of mental health.

(5) 'Licensed Professional Counselor of Mental Health' (LPCMH) shall mean any individual duly licensed as a professional counselor of mental health under this statute, who publicly offers to render to individuals, groups, organizations, or the general public, a service involving the application of clinical counseling principles, methods, or procedures, to assist individuals in achieving more effective personal and social adjustment.

(6) 'Licensed Associate Counselor of Mental Health' (LACMH) shall mean any individual duly licensed as an associate counselor of mental health under this statute, for the purpose of obtaining the experience required for licensure as a LPCMH. The LACMH obtains experience only under the direct supervision of a licensed professional counselor of mental health or other mental health professional approved by the Board.

(7) 'Person' shall mean a corporation, company, association and partnership, as well as an individual.

(8) 'State' shall mean the state of Delaware.

§3003. Board of Professional Counselors of Mental Health, Appointments; composition; qualifications; term; vacancies; suspension or removal, unexcused absences compensation.

(a) There is created a State Board of Professional Counselors of Mental Health, which shall administer and enforce this Chapter.

(b) The Board shall consist of seven members, appointed by the Governor, who are residents of this State: Four shall be licensed professional counselors of mental health, one of whom may be a licensed associate counselor of mental health, and three public members. The public members shall not be, nor ever have been, licensed professional counselors of mental health, nor members of the immediate family of a licensed professional counselor of mental health; shall not have been employed by a licensed professional counselor of mental health, or a company that holds itself out as providing licensed professional counseling of mental health; nor have been engaged in an activity directly related to licensed professional counseling of mental health. The public members shall be accessible to inquiries, comments and suggestions from the general public.

(c) Except as provided in subsection (d) of this section, each member shall serve a term of three years, and may succeed himself or herself for one additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor.

(d) A person, who has never served on the Board, may be appointed to the Board for two consecutive terms; but no such person shall thereafter be eligible for two consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for six years within any nine-year period, shall again be appointed to the Board until an interim period of at least one term has expired since such person last served.

(e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this Chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section unless such an amendment or revision amends this section to permit such an appointment.

(f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency, or neglect of duty. misconduct, incompetence, or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.

(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of counselors; this includes a prohibition against serving as head of a professional association's Political Action Committee (PAC).

(h) The provisions set forth in Chapter 58 of Title 29 of the Delaware Code shall apply to all members of the Board.

(i) Any member, who is absent without adequate reason for three consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty.

(j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel according to Division of Professional Regulation policy; and, in addition shall receive not more than $50 for each meeting attended, but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§3004. Organization; meetings; officers; quorum.

(a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times as the President deems necessary, or, at the request of a majority of the Board members.

(b) The Board annually shall elect a president, vice-president and secretary. Each officer shall serve for one year, and shall not succeed himself or herself for more than two consecutive terms.

(c) A majority of the members shall constitute a quorum for the purpose of transacting business and no action shall be taken without the affirmative vote of a majority of the quorum. No disciplinary action shall be taken without the affirmative vote of at least four members of the Board.

(d) Minutes of all meetings shall be recorded and the Division of Professional Regulation shall maintain copies. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it.

§3005. Records.

The Division of Professional Regulation shall keep a register of all approved applications for license as a professional counselor of mental health and associate counselor of mental health, and complete records relating to meetings of the Board, rosters, changes and additions to the Board's rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board.

§3006. Powers and duties.

(a) The Board of Licensed Professional Counselors of Mental Health shall have authority to:

(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State. Each rule or regulation shall implement or clarify a specific section of this Chapter.

(2) Designate the application form to be used by all applicants and process all applications.

(3) Evaluate the credentials of all persons applying for a license as a professional counselor of mental health and as associate counselor of mental health in this State in order to determine whether such persons meet the qualifications for licensing set forth in this Chapter.

(4) Grant licenses to, and renew licenses of, all persons who meet the qualifications for licensure.

(5) Establish by rule and regulation continuing education standards required for license renewal.

6) Evaluate certified records to determine whether an applicant for licensure, who previously has been licensed, certified, or registered in another jurisdiction, has engaged in any act or offense that would be grounds for disciplinary action under this Chapter and whether there are disciplinary proceedings or unresolved complaints pending against the applicant for such acts or offenses.

(7) Refer all complaints from licensees and the public concerning licensed professional counselors of mental health or associate counselors of mental health, or concerning practices of the Board or of the profession, to the Division of Professional Regulation for investigation pursuant to §8807 of Title 29 of the Delaware Code; and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint.

(8) Conduct hearings and issue orders in accordance with procedures established pursuant to Chapter 101 of Title 29 of the Delaware Code.

(9) Where it has been determined after a hearing, that penalties or sanctions should be imposed, designate and impose the appropriate sanction or penalty after time for appeal has lapsed.

(b) The Board shall adopt the Code of Ethics of the National Board of Certified Counselors (NBCC) or its successor and any revisions or additions deemed appropriate by the Board.

§3007. License required.

No person shall hold himself or herself out to the public as a licensed professional counselor of mental health or licensed associate counselor of mental health unless the person is licensed in accordance with this Chapter. It shall be unlawful for any person or any business entity, its employees, agents or representatives to use in connection with the person's or business entity's name or business activity, the words 'licensed professional counselor of mental health,' 'licensed associate counselor of mental health,' or any other words, letters, abbreviations or insignia indicating or implying directly or indirectly that such person is licensed under this Chapter.

§3008. Qualifications of applicant; report to Attorney General; judicial review.

(a) An applicant, who is applying for licensure as a professional counselor of mental health under this Chapter, shall complete a Board-approved application, submit the application fee and evidence verified by oath and satisfactory to the Board that such person:

(1) Is certified by the National Board for Certified Counselors, Inc. (NBCC), or the Academy of Clinical Mental Health Counselors, (ACMHC), or other national mental health specialty certifying organization acceptable to the Board.

(2) subsequent to the completion of a master's degree, has acquired the equivalent of two years of experience in professional counseling acceptable to the Board. The professional counseling experience shall consist of not less than 3,200 hours obtained over a period of not more than four years, at least 1,600 hours of which shall have been under professional direct supervision acceptable to the Board. Acceptable direct supervision shall mean supervision by a licensed professional counselor of mental health. When such direct supervision is not available, a licensed clinical social worker, a licensed psychologist, or a licensed physician specializing in psychiatry may supervise the applicant. An applicant may substitute 30 graduate semester hours, or more, attained beyond the master's degree, for up to 1,600 hours of the required experience, provided that such hours are clearly related to the field of counseling and are acceptable to the Board. In no case shall the applicant have less than 1,600 hours of the required post master's degree supervised professional experience.

(3) shall not have been the recipient of any administrative penalties regarding his or her actions as a licensed, registered, or certified mental health provider, including but not limited to fines, formal reprimands, license suspensions or revocation, (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has not entered into any 'consent agreements' which contain conditions placed by a Board on his or her professional conduct, including any voluntary surrender of a license. The Board, after a hearing, may determine whether such administrative penalty is grounds to deny licensure.

(4) shall not have any impairment related to drugs, alcohol, or a finding of mental incompetence by a physician that would limit the applicant's ability to act as a professional counselor of mental health or associate counselor of mental health in a manner consistent with the safety of the public.

(5) shall not have been convicted of a felony.

(6) shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to actions as a licensed professional counselor of mental health or associate counselor of mental health. Applicants who have criminal conviction records or pending criminal charges shall request appropriate authorities to provide information about the conviction or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the conviction or charge is substantially related to actions as a licensed professional counselor of mental health or associate counselor of mental health.

(7) has not been penalized for any willful violation of the Code of Ethics or other professional mental health-counseling standard.

(b) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or has intentionally supplied false information, the Board shall report its findings to the Attorney General for further action.

(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for him or her than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

§3009. Qualifications of applicant for licensed associate counselor of mental health.

(a) An applicant, who is applying for licensure as an associate counselor of mental health under this Chapter, shall submit a completed application form, the required application fee, and evidence, verified by oath and satisfactory to the Board, that such person has met all of the requirements established in §3008 of this Chapter for licensed professional counselors of mental health, except for §3008(a)(2) dealing with required experience.

(b) A plan for direct supervision of the associate counselor of mental health shall be submitted to and approved by the Board prior to the applicant's acquiring the professional counseling experience necessary for licensure as a professional counselor of mental health.

(c) The associate counselor of mental health license shall be effective for a period of two years. The license may be renewed once. A LACMH may submit an application for LPCMH upon fulfillment of the experience requirements of §3008(a)(2) of this Chapter.

§3010. Reciprocity.

(a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant, who shall present proof of current licensure in good standing in another state, the District of Columbia, or territory of the United, whose standards for licensure are substantially similar to those of this State; and shall present proof that his or her license is in good standing as defined in §3008(a)(3), (4), (5), (6), and (7), of this Chapter.

(b) An applicant, who is licensed in a jurisdiction whose standards are not substantially similar to those of this State, shall have had a license in good standing for a minimum of five years after licensure in the jurisdiction from which he or she is applying for reciprocal licensure, provided however, that he or she meets all other qualifications for reciprocity in this subsection.

(c) An applicant, who is licensed in a jurisdiction whose standards are not substantially similar to those of this State, and who lacks the minimum years of licensure as defined in §3010(b) of this Chapter, may apply for licensure as an associate counselor of mental health, in order to obtain the experience necessary to fulfill the requirements of §3008(a)(2) of this Chapter.

§3011. Fees.

The amount to be charged for each fee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity; but no fee shall be charged for a purpose not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium.

§3012. Issuance and renewal of licenses.

(a) The Board shall issue a license to each applicant, who meets the requirements of this Chapter for licensure as a professional counselor of mental health and associate counselor of mental health and who pays the fee established under §3011 of this Chapter.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board. In addition each licensee shall submit proof of fulfilling the membership requirements of the National Board for Certified Counselors (NBCC), Academy of Clinical Mental Health Counselors (ACMHC), or other national mental health certifying organization acceptable to the Board.

(c) Notwithstanding the fact that a licensee has failed to renew his or her license on or before the renewal date, such licensee shall be granted a one-year period to renew his or her license. The Division shall set the fee for late renewal. A person, who fails to renew his or her license before the expiration of the one-year grace period, shall be required to re-apply as new a applicant, pay a fee set by the Division, and submit proof of fulfillment of continuing education requirements and the membership requirements of the National Board for Certified Counselors (NBCC), Academy of Clinical Mental Health Counselors (ACMHC), or other national mental health certifying organization acceptable to the Board, in accordance with the Board's rules and regulations.

(d) Any person licensed in this State as a LPCMH or LACMH, upon written request, may be placed on an inactive register. Provisions for resuming active status shall be established by the Board.

§3013. Grounds for discipline.

(a) A person licensed under this Chapter shall be subject to disciplinary sanctions set forth in §3015 of this Chapter, if, after a hearing, the Board finds that the licensee:

(1) has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a professional counselor of mental health or associate counselor of mental health; has impersonated another person holding a license, or allowed another person to use his or her license, or aided or abetted a person not licensed as a professional counselor of mental health or associate counselor of mental health to represent himself or herself as a licensed professional counselor of mental health or associate counselor of mental health.

(2) has been convicted of a felony.

(3) has been convicted of any offense, the circumstances of which substantially relate to the licensee' actions as a counselor. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor.

(4) has excessively used or abused drugs either in the past three years or currently.

(5) has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities.

(6) has violated a lawful provision of this Chapter, or any lawful regulation established thereunder.

(7) has had his or her license as a professional counselor of mental health or associate counselor of mental health suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this Chapter. Every person licensed as a professional counselor of mental health or associate counselor of mental health in this State shall be deemed to have given consent to the release of this information by the Board of Professional Counselors or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses; or,

(8) has failed to notify the Board that his or her license as a professional counselor of mental health or associate counselor of mental health in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof.

(b) Subject to the provisions of Subchapter IV of Chapter 101 of Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no licensee's right to hold himself or herself out as a licensed professional counselor of mental health or licensed associate counselor of mental health shall be limited by the Board until such licensee has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act.

§3014. Complaints.

(a) All complaints shall be received and investigated by the Division of Professional Regulation in accordance with §8807 of Title 29 of the Delaware Code and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.

(b) When it is determined that an individual is using the title 'licensed professional counselor of mental health' or 'licensed associate counselor of mental health' or holding himself or herself out to the public as a 'licensed professional counselor of mental health' or 'licensed associate counselor of mental health' and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order.

§3015. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in §3013 of this Chapter applies to a person regulated by this Chapter:

(1) Issue a letter of reprimand.

(2) Censure a licensee.

(3) Place a licensee on probationary status, and require the licensee to:

a. report regularly to the Board upon the matters, which are the basis of the probation;

b. limit all professional activities to those areas prescribed by the Board.

(4) Suspend any licensee's license.

(5) Revoke any licensee's license.

(6) Impose a monetary penalty not to exceed $500 for each violation.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies, which required such action, have been remedied.

(c) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§3016. Hearing procedures.

(a) If a complaint is filed with the Board pursuant to §8807 of Title 29 of the Delaware Code, alleging violation of §3013 of this Chapter, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29 of the Delaware Code.

(b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all Board members, that the complaint has merit, the Board shall take such action permitted under this Chapter, as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. The Board's decision shall be mailed immediately to the licensee.

(c) Where the licensee is in disagreement with the action of the Board, he or she may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to him or her. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with §10144 of Title 29 of the Delaware Code.

(d) All decisions of the Board regarding suspension or revocation of a license shall be made public by the Division in a news release to major media outlets in this State. The release may include any information deemed public under the Delaware Freedom of Information Act and shall include a telephone contact number for the Division for further information.

§3017. Reinstatement of a suspended license, removal from probationary status, replacement of license.

(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.

(b) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this Chapter shall also be required, as appropriate.

(c) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. The Division shall establish a charge for such issuance.

§3018. Penalty.

A person, not currently licensed as a professional counselor of mental health or associate counselor of mental health under this Chapter, when guilty of using in connection with his or her name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that he or she is qualified as a licensed professional counselor of mental health or associate counselor of mental health, shall be guilty of a misdemeanor. Upon the first offense, he or she shall be fined not less than $500.00 dollars nor more than $1,000 dollars for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000.00 nor more than $2,000.00 for each offense. Justice of the Peace Courts shall have jurisdiction over all violations of this Chapter.

§3019. Privileged communications.

Communications between a licensed professional counselor of mental health or licensed associate counselor of mental health and client shall be considered confidential to the same extent as provided by Delaware Rule of Evidence 503.”

Section 2. Rules and Regulations.

Rules and regulations in effect on the date of enactment of this Act shall remain valid only to the extent they are not inconsistent with this Act.

Section 3. Members of the Board.

Persons who are members of the Board on the effective date of this Act shall complete their terms of office.