Report Title:

Professional Counselor Licensure; Established

Description:

Establishes a professional counselors licensing program effective 7/1/05. Exempts government employees. Allows licensing of counselors with current national certification who pass exam and pay fees within year of program start. Assesses periodic surcharge against licensees to fund program start-up costs. Appropriates $43,000. Authorizes hiring of staff. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1412

TWENTY-SECOND LEGISLATURE, 2003

H.D. 2

STATE OF HAWAII

S.D. 1


 

A BILL FOR AN ACT

 

RELATING TO PROFESSIONAL COUNSELORS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds the Felix v. Cayetano (Felix) consent decree demands substantial improvement in the children's mental health delivery system in Hawaii. A key component of the decree is the inclusion of basic mental health and case management services. These are areas that require trained and qualified professional counselors. Presently, a lack of qualified mental health professionals costs Hawaii thousands of dollars in transportation costs to Oahu when qualified professional counselors already residing on the neighbor islands could provide services at a lesser cost and with greater community awareness.

There is approximately a thirty per cent savings in reimbursement rates for professional counselors compared to the reimbursement rates for licensed psychologists for comparable counseling services. At the same time, professional counselors generally require fewer treatment sessions. It makes good economic sense for the State and demonstrates a compassionate concern for the mental health needs of Hawaii's citizens to regulate professional counselors.

In 1998, Congress passed legislation to include professional counselors in United States Public Health Service Act programs. The federal government now recognizes professional counseling as one of the core helping professions along with psychiatry, psychology, psychiatric nursing, social work, and marriage and family therapy.

Both public and private universities in Hawaii have established programs to train professional counselors in the areas of mental health, rehabilitation, and career and school counseling. Because of the lack of regulation of this profession, these institutions are unable to ensure the employment of Hawaii's graduates of these programs once they are trained in the State.

Forty-six states and the District of Columbia already have provisions for the regulation of professional counselors to protect their consumers. Regulation of the rehabilitation counseling specialty is provided for in thirty-seven of the forty-six states and the District of Columbia. The department of labor and industrial relations, State of Hawaii, which has a vendor list of rehabilitation counselors who work with workers' compensation claimants, has reduced its oversight staff from twelve to one. Therefore, the department is unable to furnish the level of service monitoring previously provided. With the exception of the State's workers' compensation program, individuals, insurers, employers, and other consumers of counseling services cannot be assured of the credentials of any person professing to be a counselor. Licensure is sorely needed to assure quality service.

The State of Hawaii under laws similar to this Act already licenses social workers and marriage and family therapists. This has increased the availability of qualified mental health professionals available for Felix and other mental health programs. However, there continues to be a shortage of licensed professionals to provide services for these and other programs. Therefore, this Act needs to be implemented to provide more qualified service providers, to avoid discrimination, and to give parity to the remaining masters-level mental health professionals. Passage of this Act is important to increase the availability of qualified service providers who can contribute to the pool of mental health professionals and increase the choice and availability of providers.

The purpose of this Act is to:

(1) Set educational and experiential standards for professional counselors; and

(2) Require licensure for those persons who seek to represent themselves to the public as licensed professional counselors.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

PROFESSIONAL COUNSELORS

   -1 Definition. As used in this chapter, unless the context clearly requires otherwise:

"Accredited institution" means a university or college accredited by a nationally or regionally recognized accrediting agency of institutions of higher education.

"Advertise" means the issuing of or causing to be distributed any card, sign, or device to any person, or the causing, permitting, or allowing of any sign or marking on or in any building, on radio or television, electronically, or by using any other means designed to secure public attention.

"Appraisal" means the use of nonstandardized methods and techniques, such as observation and interviewing, for understanding human behavior in relation to coping with, adapting to, or changing life situations of a physical, mental, or emotional nature.

"Assessment" means selecting, administering, scoring, and interpreting instruments designed to determine an individual's aptitudes, attitudes, abilities, achievements, interests, personal characteristics, and current emotional or mental state by a licensed professional counselor.

"Clinical supervision" means supervision applied to all individuals who are gaining the experience required for a license as a professional counselor. Clinical supervision includes but is not limited to:

(1) Case consultation on the assessment and presenting problem;

(2) Development and implementation of treatment plans;

(3) Enhancement of the supervisee's counseling techniques and treatment evaluation skills; and

(4) Evaluation of the course of treatment.

"Clinical supervisor" includes licensed psychiatrists, psychologists, professional counselors, social workers, and marriage and family therapists with at least two years of post-graduate experience and alternative supervisors as defined by national and/or other accrediting entities, including the Council for Accreditation of Counseling and Related Educational Programs.

"Consulting" means the application of scientific principles and procedures in psychotherapeutic counseling, guidance, and human development to provide assistance in understanding and solving a problem that the consultee may have in relation to a third party.

"Counseling treatment interventions" means the application of cognitive, affective, behavioral, and systemic counseling strategies that include principles of development, wellness, and pathology that reflect a pluralistic society. Counseling treatment interventions are specifically implemented in the context of a professional counseling relationship.

"Department" means the department of commerce and consumer affairs.

"Director" means the director of commerce and consumer affairs.

"Licensed professional counselor" means a person who uses the title of licensed professional counselor, who has been issued a license under this chapter, and whose license is in effect and not revoked or suspended.

"Practice of professional counseling" includes but is not limited to:

(1) Individual and group counseling;

(2) Assessment of persons with mental, physical, and emotional disorders using adjunctive resources and consultation;

(3) Diagnosis of and treatment planning for persons with mental, physical, and emotional disorders, using adjunctive resources and consultation'

(4) Crisis intervention;

(5) Guidance and consulting facilitate normal growth and development, including educational, vocational, and career development;

(6) Utilization of functional assessment and counseling for persons requesting assistance in adjusting to a disability;

(7) Consultation;

(8) Research;

(9) Referral;

(10) Program evaluation and research;

(11) Interventions to remove environmental, employment, and attitudinal barriers;

(12) Consultation services among multiple parties and regulatory systems; and

(13) Job analysis, job development, and placement services, including assistance with employment and job accommodations.

"Referral" means the evaluation of information to identify the needs of the person being counseled in order to:

(1) Determine the advisability of referring the person being counseled to other specialists;

(2) Inform the person being counseled of such determination; and

(3) Communicate the information to other counseling service providers as deemed appropriate and consistent with accepted professional standards.

"Use the title of" means to hold oneself out to the public as having a particular status by stating the status on signs, mailboxes, address plates, stationery, announcements, telephone directory advertising, business cards, electronic postings, or other instruments of professional identification.

   -2 Professional counselors licensing program. There is established a professional counselors licensing program within the department to be administered by the director.

   -3 Powers and duties of the director. In addition to any other powers and duties authorized by law, the director shall have the following powers and duties:

(1) To grant permission to a person to use the title of "licensed professional counselor" or a description indicating one is a licensed professional counselor in this State pursuant to this chapter and the rules adopted pursuant thereto;

(2) To adopt, amend, or repeal rules pursuant to chapter 91 as the director finds necessary to carry out this chapter;

(3) To administer, coordinate, and enforce this chapter and rules adopted pursuant thereto;

(4) To discipline a licensed professional counselor for any due cause described by this chapter or for any violation of the rules, or refuse to license a person for failure to meet licensing requirements or for grounds for disciplining a licensed professional counselor; and

(5) To appoint an advisory committee consisting of licensed professional counselors and members of the public to assist with the implementation of this chapter and the rules adopted pursuant thereto; provided that the initial members of the committee who are professional counselors shall not be required to be licensed pursuant to this chapter.

   -4 Fees; disposition. (a) Application, examination, reexamination, license, renewal, restoration, penalty, and any other fees relating to administration of this chapter, none of which are refundable, shall be as provided in rules adopted by the director pursuant to chapter 91.

(b) Fees assessed shall defray costs incurred by the director to support the operation of the professional counselor licensing program. Fees collected shall be managed in accordance with section 26-9(l).

   -5 Prohibited acts. Except as specifically provided in this chapter, no person shall use the title of "licensed professional counselor" without first having secured a license under this chapter. The department shall investigate and prosecute any individual using the title of "licensed professional counselor" without the proper license as a licensed professional counselor. Any person who violates this section shall be subject to a fine of not more than $1,000. Each day's violation shall be deemed a separate offense. Any action taken to impose or collect the fine imposed under this section shall be a civil action.

   -6 Exemptions. (a) Licensure shall not be required of:

(1) A person doing work within the scope of practice or duties of the person's profession that overlaps with the practice of professional counseling (for example, the clergy); provided that no such person shall use a title stating or implying that the person is a "licensed professional counselor";

(2) Any student enrolled in a nationally- or regionally-accredited educational institution in a recognized program of study leading toward attainment of a graduate degree in professional counseling or other professional field; provided that the student's activities and services are part of a prescribed course of study supervised by the educational institution and the student is identified by an appropriate title including but not limited to "professional counseling student" or "trainee", "clinical psychology student" or "trainee", "social work student" or "trainee", "marriage and family counseling student" or "trainee", or any title that clearly indicates training status;

(3) Any individual who uses the title of "counselor intern" for the purpose of obtaining clinical experience in accordance with section    -7(a)(3); or

(4) Any person employed by a federal, state, or county government agency in a counseling position, but only at those times when that person is carrying out the duties and responsibilities as a counselor in governmental employment.

(b) Nothing in this chapter shall be construed to prevent qualified members of other licensed professions as defined by any law or rule of the department, including but not limited to social workers, registered nurses, psychologists, marriage and family therapists, or physicians, from providing professional counseling or advertising that they provide professional counseling to individuals, couples, or families consistent with the accepted standards of their respective licensed professions; provided that no such persons shall use a title stating or implying that they are licensed professional counselors unless the persons are licensed pursuant to this chapter.

   -7 Application for licensure as a professional counselor. (a) Any person who applies to the department after July 1, 2005, shall be issued a license by the department if the applicant provides satisfactory evidence to the department that the applicant is qualified for licensure pursuant to the requirements of this chapter and meets the following qualifications:

(1) Has a master's degree or doctoral degree from a nationally- or regionally-accredited institution in counseling or in an allied field related to the practice of professional counseling that includes or is supplemented by graduate level course work in counseling comprising a minimum of forty-eight semester hours or seventy-two quarter hours in the following course areas, with a minimum of three semester hours in each course area as indicated below:

(A) Human growth and development;

(B) Social and cultural foundations;

(C) Counseling theories and applications;

(D) Group theory and practice;

(E) Career and lifestyle development;

(F) Appraisal of human behavior;

(G) Tests and measurements;

(H) Research and program evaluation; and

(I) Professional orientation and ethics.

(2) Has at least two academic terms of practicum experience for graduate credit of at least three semester hours or five quarter hours per academic term in a counseling setting with three hundred hours of supervised client contact;

(3) Has completed three thousand hours of post-graduate direct counseling work with one hundred hours of face-to-face clinical supervision within two years; and

(4) Has passed the National Counselors Examination (NCE) or the National Clinical Mental Health Counselors Examination (NCMHCE) of the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification (CRCC) examination.

(b) An individual who:

(1) Holds current certification as a national certified counselor or a national certified rehabilitation counselor prior to the effective date of this chapter;

(2) Has passed the NCE, NCMHCE, or CRCC examination within one year of the effective date of this chapter; and

(3) Within one year of the effective date of this chapter, applies for licensure and pays the applicable license fee,

shall be deemed to have met the requirements of this section.

   -8 Reciprocity. (a) The director may enter into a reciprocal agreement with any state that licenses professional counselors if the director finds that the state has substantially the same or higher requirements as this chapter.

(b) The agreement shall provide that the director shall license any resident of that state who is currently licensed by that state if the individual has met or exceeded the requirements of this chapter.

   -9 Examination. (a) The department shall conduct a licensing examination of applicants at least once a year at a time and place designated by the department.

(b) The department shall administer the National Board for Certified Counselors examinations and the Commission on Rehabilitation Counselor Certification examination in compliance with the standards of either the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification, respectively.

(c) The examining fee shall be paid by the applicant directly to the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification.

(d) An applicant shall be held to have passed an examination by obtaining a passing score as determined by the director.

   -10 Licensure; fees. Licenses shall be issued to persons deemed to be qualified under section -7 upon the payment of a license fee to be determined by the department, and shall be valid for three years.

   -11 Renewal of license; fees. Licenses shall be renewed, upon the payment of a renewal fee, triennially not earlier than ninety days before June 30, with the first renewal deadline occurring on June 30, 2008. Failure to renew a license shall result in a forfeiture of the license. Licenses that have been forfeited may be restored within one year of the expiration date upon payment of renewal and restoration fees. Failure to restore a forfeited license within one year of the date of its expiration shall result in the automatic termination of the license and the person may be required to reapply for licensure as a new applicant. All renewal and restoration fees shall be determined by the department.

   -12 Denial, revocation, or suspension of license. (a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:

(1) Conviction by a court of competent jurisdiction of a crime that the department has determined by rules adopted pursuant to chapter 91 to be of such nature as to render the person convicted unfit to practice professional counseling;

(2) Failure to report in writing to the director another disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in another jurisdiction within thirty days of the disciplinary decision or within thirty days of licensure;

(3) Violation of recognized ethical standards for professional counselors set by either the National Board for Certified Counselors or the Commission on Rehabilitation Counselor Certification, respectively;

(4) Fraud or misrepresentation in obtaining a license;

(5) Revocation, suspension, or other disciplinary action by any state or federal agency against a licensee or applicant for any reason provided by this section; or

(6) Other just and sufficient cause that renders a person unfit to practice professional counseling.

(b) Any licensee who violates this section may also be fined not more than $1,000 per violation.

   -13 Confidentiality and privileged communications. No person licensed as a professional counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering professional counseling services except in the following circumstances:

(1) As required by law;

(2) To prevent a clear and imminent danger to a person or persons;

(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative; or

(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance a professional counselor may disclose information from any person in accordance with that person's waiver.

   -14 Professional counselor prohibited from testifying in alimony and divorce actions. If both parties to a marriage have obtained professional counseling from a licensed professional counselor, the counselor shall be prohibited from testifying in an alimony or divorce action concerning information acquired in the course of professional counseling. This section shall not apply to custody actions whether or not part of a divorce proceeding."

SECTION 3. The department of commerce and consumer affairs may appoint an administrative assistant and secretary, without regard to chapter 76, Hawaii Revised Statutes, to assist with the activities of the professional counselors licensing program.

SECTION 4. Upon the issuance of a new license and at each license renewal period, each licensed professional counselor shall pay an additional fee of $75, which shall be maintained in a separate account within the compliance resolution fund established pursuant to section 26-9(o), Hawaii Revised Statutes. At the end of each quarter, the moneys contained in the separate account established pursuant to this section shall be transferred to the general fund until such time that the total transferred amounts equal the amount appropriated in section 5 of this Act. Thereafter, no surcharge shall be assessed, and any funds in excess of the amount appropriated in section 5 of this Act shall be deposited in the compliance resolution fund.

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii, the sum of $43,000, or so much thereof as may be necessary for fiscal year 2004-2005, to implement the professional counselor licensure program.

The sum appropriated shall be expended by the department of commerce and consumer affairs for the purposes of this Act.

SECTION 6. This Act shall take effect on July 1, 2004; provided that no licenses shall be issued pursuant to this Act prior to July 1, 2005.