The Texas Health & Human Services Commission (HHSC) Regulatory Services Division regulates licensed chemical dependency counselors (LCDCs) in Texas. Therefore, your counseling license may be at risk if a patient files a complaint against you. If you find yourself in this situation, you should consult a chemical dependency counselor license defense attorney for help.
Processing of Complaints Against Chemical Dependency Counselors
HHSC’s Health Care Regulation (HCR) Department issues licenses to LCDCs. If HCR receives a complaint against an LCDC, its Substance Use Disorder Compliance Unit (SUDCU) investigates the complaint. SUDCU initially evaluates whether HHSC has jurisdiction over the complaint and whether the alleged behavior violates a law or statute. If SUDCU determines that a violation of the laws or rules that apply to LCDCs has occurred, it refers the case to the Regulatory Services Division’s Enforcement Division for further action.
Under 25 Tex. Admin. Code § 140.425, SUDCU will notify the LCDC of the complaint before or during the investigation and provide its policies and procedures for complaint resolution. The LCDC then has 15 working days from receiving this information to respond to the complaint.
Informal Disposition of Complaints
25 Tex. Admin. Code § 140.428 authorizes HCR to resolve complaints at any stage of a disciplinary case informally. When HCR issues a notice of violation to an LCDC, they can attend an informal conference to show compliance with the rule or law. Following the informal conference, HCR may propose an informal disposition of the case, which can include:
- An agreed order imposing disciplinary action;
- A conclusion that HCR lacks jurisdiction over the complaint;
- Referral of the case for further investigation;
- Closure of the complaint without further action; or
- Proceeding to a contested hearing if either party has requested one.
Failure to appear at an informal conference results in a waiver of attendance at that conference, and the case will proceed to a formal hearing. Likewise, the LCDC has 20 days to accept or reject a proposed informal disposition of the case. Again, the matter may proceed to a formal hearing if the LCDC does not accept or fails to respond to the proposed informal disposition.
Contested Hearings in LCDC Disciplinary Cases
Under 25 Tex. Admin. Code § 140.430, the case is transferred to the State Office of Administrative Hearings (SOAH) for scheduling before an administrative law judge (ALJ). Both parties attend a formal administrative hearing at which they can present evidence in support of their positions. After hearing all the evidence from both sides, the ALJ will issue a proposed decision for review by HCR.
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Sanctions Against LCDCs
When a violation of a rule or law has occurred, HCR may issue the following sanctions against an LCDC:
- Refuse to renew a license, certification, or registration;
- Revoke or suspend a license, certification, or registration;
- Probate a suspension of a license, certification, or registration;
- Impose an administrative penalty; or
- Issue a reprimand.
If HCR issues a probated suspension, it may require the LCDC to:
- regularly report to the department on matters that are the basis of the probation;
- limit practice to the areas prescribed by the department; or
- complete additional educational requirements, as required by the department to address the areas of concern that are the basis of the probation.
Furthermore, under Tex. Occ. Code § 504.351, if a person has violated, is violating, or is threatening to violate a rule or law applicable to LCDCs, HCR or the Attorney General may file an action in district court for an injunction, civil penalty, or both. The civil penalty amount must range between $50 and $500 per day.
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Administrative Penalties
25 Tex. Admin. Code § 140.427 governs the administrative penalties that HCR may assess against an LCSC for violating rules or laws. HCR categorizes violations in order of increasing severity ranging from Level I to Level III, as follows:
- Level I – up to $1,000 per day for violations in which harm or other adverse impacts to public health, safety, or welfare have actually occurred or are likely to occur and/or recur;
- Level II – up to $500 per day for violations that demonstrate a potential for harm or other adverse impacts to public health, safety, or welfare; or
- Level III – up to $100 per day for violations that are not likely to substantially affect public health, safety, or welfare.
HCR bases the amount of an administrative penalty shall be based on the following criteria:
- the seriousness of the violation;
- the history of previous violations;
- the amount necessary to deter a future violation;
- efforts made to correct the violation; and
- any other matter that justice requires.
When an LCDC receives notice of an administrative penalty, they also will receive notice of their right to a hearing on the occurrence of the violation, the amount of the penalty, or both. The LCDC must either pay the penalty within 20 days or request a hearing. If the LCDC requests a hearing, HCR may appoint a hearing examiner, who shall make findings of fact and conclusions of law and issue a proposal for decision as to the occurrence of the violation and the amount of the proposed penalty.
Based on the hearing examiner’s findings, conclusions, and recommendations, HCR may find that a violation occurred, assess an administrative penalty in the form of a final order, or find that a violation did not occur. The LCDC then has 30 days from the date of the final order to either:
- pay the administrative penalty;
- pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or
- without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
The LCDC may stay enforcement of the penalty by paying the amount of the penalty into an escrow amount with the court or giving the court a supersedeas bond in the amount of the penalty that is effective until the judicial review process is final. Alternatively, the LCDC may ask the court to stay enforcement of the penalty by providing an affidavit stating that they cannot pay the penalty or give a supersedeas bond.
We Are Here to Help You Fight Back and Protect Your License
The chemical dependency counselor license defense lawyers of Bertolino LLP, can help you navigate the complaint process and gather the evidence you need to defend your license. In addition, we can fight back against misconduct allegations and work with HHSC to clear your name. Call us today at (512) 515-9518 to reach the offices of Bertolino, LLP, or contact us online.
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