The Texas Behavioral Health Executive Council (the Council) is the umbrella agency for various boards that license and regulate mental health professionals in Texas. These professionals include marriage and family therapists, professional counselors, psychologists, and social workers. If you are one of these professionals and a client files a complaint against you, the appropriate board handles the complaint and any resulting disciplinary proceedings. Any licensed or certified mental health professionals who are facing disciplinary complaints should consult a professional counselor license defense attorney for help.
22 Tex. Admin. Code §884.3 outlines special rules that apply to complaints related to court-ordered evaluations. These evaluations include child custody evaluations, adoption evaluations, competency or insanity evaluations, and psychological evaluations but do not include evaluations conducted in administrative proceedings before state or federal agencies. Individuals who wish to file a complaint against a mental health professional licensed by the Council that allege a violation of a rule or law arising out of one of these evaluations must follow the provisions in this code section and submit the standard Council-approved complaint form.
Time for Filing Complaints
Individuals may not file complaints under this rule before the entry of a judgment or final order by the trial court or before the dismissal of the case. If the Council receives a complaint before one of those events, it will dismiss the complaint as premature, although the individual may refile it after one of those events occurs.
Furthermore, individuals must file complaints under this section within the general rule governing the timeliness of complaints or within one year of the entry of judgment, final order, or order of dismissal by the trial court, whichever is greater. Individuals must file complaints within five years of when the licensee last provided services to the complainant. However, if the complaint alleges sexual misconduct on behalf of the licensee, the complainant may file it within seven years of the date that the licensee last provided services to the complainant or within five years of the complainant turning 18, whichever is later.
Documentation Required for Filing Complaints
All complaints filed under this section must contain the following documentation:
- A copy of the court order appointing the licensee to conduct the evaluation, or a transcript or excerpt therefrom or written statement from an attorney-of-record in the case reflecting the licensee’s appointment;
- A copy of the licensee’s expert report or a statement that no such report was produced or provided;
- A copy of any judgment, final order, or dismissal entered by the trial court; and
- A copy of any documents provided by the licensee describing the costs of services, the nature of the services provided, any limitations associated with those services, or a statement that the licensee provided no such documents.
The Council will dismiss any complaints that fail to provide this documentation. If the Council gives notice to the complainant of any missing documentation, it will hold the complaint open for no more than 30 days after the date of the notice to allow the complainant to provide the missing documentation. Again, the Council will dismiss the complaint if the complainant fails to provide the missing documentation.
Standard of Proof to Avoid Dismissal
The Council will dismiss complaints filed under this section unless they meet a specific standard of proof. Complaints must meet one of the following criteria to avoid dismissal by the Council:
- The licensee was disqualified or struck as an expert witness by the trial court;
- The licensee’s opinion or inferences (i.e., testimony or report) complained of were ruled inadmissible by the trial court;
- A curriculum vitae and written report by an expert that provides a fair summary of the expert’s opinions regarding the applicable law governing the expert opinion or report (i.e., standard of care) and how the licensee failed to meet the requirements of the applicable law. The report must come from an expert qualified to render an expert opinion under Texas law on the relevant subject;
- A letter from an attorney licensed to practice law in Texas setting forth the applicable law governing the licensee’s expert opinion or report and reflecting an opinion as to how the licensee failed to meet the requirements of the applicable law; or
- The agency would prevail at a hearing before the State Office of Administrative Hearings (SOAH) based on the information provided.
Processing of Complaints
All other procedures for processing a complaint against marriage and family therapists, professional counselors, psychologists, and social workers remain the same, if the complaint survives dismissal by the Council under the standard stated above. The Council will prioritize complaints involving a probability of imminent harm to the public or a member of the public or sexual misconduct. If the complaint states an allegation that violates a law falling within the jurisdiction of the Council, it will open a formal case for investigation.
Resolution of Complaints
The Council then will notify the licensee of the complaint and request a response within 30 days. If the Council finds no probable cause to support a finding that a violation has occurred, then the Executive Director will dismiss the complaint. However, if the Council finds that probable cause supports a finding that a violation has occurred, then the case proceeds to an informal settlement conference (ISC) with Council staff or a Disciplinary Review Panel. If the parties cannot resolve the complaint informally, the case moves to a contested hearing before the State Office of Administrative Hearings (SOAH). The administrative law judge (ALJ) assigned to the case by SOAH issues a Proposal for Decision (RFD) to the Council, which can accept, modify, or reject it. The Council may sanction the licensee or dismiss the complaint.
We Are Here to Help You Fight Back and Protect Your License
The marriage and family therapist license defense lawyers of Bertolino LLP, can help you navigate the complaint process and gather the evidence you need to defend your license or certification. In addition, we can fight back against misconduct allegations and work 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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