Guiding Behavioral Health Towards Legal Wellness: Insights from Our Council Attorney
The Behavioral Health Executive Council (“BHEC”) was created by the Texas Legislature in 2019 to serve as an umbrella agency over the Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors, Texas State Board of Examiners of Psychologists, and the Texas State Board of Social Worker Examiners.
The attorneys at Lype, Dest & Smith Lawyers have a combined 30+ years of experience defending behavioral health practitioners and other medical professionals in front of their licensing boards. Our experience includes representation of behavioral health professionals and social workers before the BHEC, and previously in front of the Texas Health and Human Services Commission, in all manner of complaints and in every stage of the investigation/disciplinary process. Our experience allows us to effectively defend a licensee’s interests before the BHEC without wasting time and resources.
BHEC provides administrative support, streamlined licensing and enforcement processes, and oversight to its member boards. The Texas Legislature created BHEC to improve and make more uniform the licensing and enforcement processes of its member boards. The BHEC’s board is made up of executive BHEC staff, a member from each of the individual licensing boards, and at least one public member. Each individual licensing board continues to operate and maintains individual rule-making authority, subject to adoption by the BHEC.
The BHEC’s mission is to protect and promote the welfare of the people of Texas by ensuring that behavioral health services and social work practice are provided by qualified and competent practitioners who adhere to established professional standards.
In pursuing their mission of protecting the public welfare, the BHEC regulates the provision of behavioral health services and social work practice by investigating and acting upon complaints received regarding individual licensees.
When a complaint is filed against a licensee, the BHEC sends a notification to the licensee informing them of the general complaint allegations and the potential rule and statutory violations. This notice often contains a copy of the complaint received and requests a response from the licensee along with other items, like copies of visit notes, identities of other involved parties, and copies of protocols and policies in place at the time of the alleged violation.
The response to this initial notice is extremely important in setting the tone for the BHEC investigation and/or preventing further investigation. The best opportunity to limit the scope and length of a BHEC investigation is with this initial response. If the complaint is meritless, an experienced attorney can potentially shut down the investigation with a comprehensive response. If a complaint has merit, or requires a more nuanced defense, the hiring of an experienced attorney to aggressively represent your interests and preserve your ability to practice, is even more important.
Common Board Complaints:
All BHEC investigations start with a complaint. The complaint can come from a client, a client’s family, a subsequent treating provider, law enforcement, or another licensing board/government agency.
Upon receipt of a complaint, the BHEC will first assign it a priority rating. High priority cases involve a higher probability of imminent harm to the public, like potential sexual misconduct. Regular priority cases involve any other alleged violations of state and federal law. Complaints are then reviewed by the BHEC’s Enforcement Division to determine whether the allegation would constitute a violation of the law, whether the individual is a licensee of the Council, and whether the activities or services provided are exempted from the Council’s jurisdiction.
If the Council finds that the allegations are jurisdictional, meaning that BHEC has the authority to investigate and resolve the complaint, the licensee will be notified in writing that a complaint has been received. The licensee is also provided with a copy of the complaint and supporting documents and instructed to respond to the allegations within 30 days. At this stage, the Council has not yet made a determination whether the allegations are true or supported by the evidence provided with the complaint.
If, after review of the complaint and the response from the licensee, the BHEC determines that no probable cause exists to support the alleged violation, the matter is referred for dismissal and the licensee and complainant are informed in writing.
If, after review of the complaint and response from the licensee, the BHEC determines that probable cause DOES exist, the complaint is referred for an Informal Settlement Conference. Depending on the information available and the complexity of the case, Council staff will sometimes propose a settlement offer prior to the Informal Settlement Conference.
The Informal Settlement Conference proceeds in front of a Panel that includes a board staff attorney, an investigator, and a professional member of the licensing board. Both the licensee and the complainant are invited to participate. If the complainant participates, the licensee is not present for their statement and the complainant is dismissed before the rest of the Informal Settlement Conference proceeds. The rest of the meeting continues with the licensee and their legal counsel presenting their defense and any evidence to the Disciplinary Panel and fielding any questions they may have.
Following the Informal Settlement Conference, a recommendation is made regarding disposition of the matter, either through dismissal, recommendation of a disciplinary action, or referral for additional investigation. A recommendation for disciplinary action would be reduced to writing in the form of an Agreed Order and sent to the licensee and their attorney for consideration.
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Depending on the severity of the alleged violation, it is sometimes possible to negotiate the terms and language of the Agreed Order at this stage. However, if the licensee finds the Agreed Order unacceptable, they can reject the settlement and request a Formal Hearing at the State Office of Administrative Hearings (“SOAH”). Thereafter, the BHEC staff attorney will file a Formal Complaint at SOAH, and the case will be set for an administrative hearing. If the parties agree, a Formal Mediation may be held prior the trial setting, where a settlement may be negotiated in lieu of continuing to trial.
A Formal Hearing at SOAH is presided over by an Administrative Law Judge (“ALJ”). The Council bears the burden of proof, meaning it is their burden to prove that the licensee committed a violation. Both sides will be able to put on witness testimony and documentary evidence to prove their cases. Following the hearing, the ALJ considers the evidence and renders a Proposal for Decision, containing their findings of fact and conclusions of law. If the ALJ finds that a violation occurred, the Council will have the opportunity to sanction the licensee. If the ALJ finds no violation, the matter will be dismissed.
The LPC received a complaint letter from BHEC alleging that the LPC had engaged in sexual contact with a client. The complaint was filed by the former partner of the client and contained many false allegations and mischaracterizations of the nature of the treatment relationship. Through careful review of the complaint document and the LPC’s treatment records and concurrent communications with the client, we were able to point out inconsistencies in the complainant’s allegations that severely damaged the complaint’s credibility. The case was resolved with dismissal of the allegations of sexual misconduct and a non-disciplinary and confidential Warning Letter in regard to minor recordkeeping violations.
The LPC received a complaint letter from BHEC alleging a laundry list of ethical/rule violations in the operation of the LPC’s practice. The complaint was filed by two of the LPC’s former employees. The allegations ranged from mistreatment of employees, drug use/impairment, and violations of client confidentiality. We submitted a comprehensive response to the allegations, including character evidence that demonstrated the improbability of the alleged conduct and were able to secure a dismissal of the investigation.
The LMFT had been disciplined in another state after having an intimate relationship with a client. Since the underlying allegation could not contested, the client’s defense focused on showing their acceptance of responsibility and completion of remedial steps such as completing an advanced course on professional boundaries. The LMFT Board allowed the client to continue practicing subject to a probationary order.
LPC client had engaged in an intimate relationship with a client. Our defense focused on showing personal factors that contributed to the client’s lapse in judgment and client’s acceptance of responsibility. BHEC consented to an agreed order that allowed the client to retain their LPC license.
Your license to practice your profession is your livelihood and reputation. Do not take a BHEC complaint or potential BHEC action lightly. BHEC has their own attorneys and investigators dedicated to finding violations and disciplining licenses.
Avail yourself of confident and experienced legal counsel. The attorneys at Lype, Dest & Smith are highly experienced defending behavioral health practitioners before the Texas Behavioral Health Council. We are here to help individual licensees fight back against BHEC and its individual member boards. Don’t hesitate to contact us. We are available for consultation.
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