Report Title:

Professional Counselor Licensure

Description:

Establishes a professional counselors licensing program, subject to the accumulation of a minimum $43,000 in a startup trust fund; exempts government employees from licensing under the law. (SB695 HD1)

THE SENATE

S.B. NO.

695

TWENTY-SECOND LEGISLATURE, 2003

S.D. 2

STATE OF HAWAII

H.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 that 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 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 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 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 standards of qualifications regarding education and experience; 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 Definitions. 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 meets all of the following:

(1) Uses the title of licensed professional counselor;

(2) Has been issued a license under this chapter and is in effect and not revoked or suspended.

"Professional counseling" means the application of mental health, psychological, and human development principles to:

(1) Facilitate human development and adjustment throughout the lifespan;

(2) Prevent, appraise, and treat mental, emotional, physical, or behavioral disorders and associated distresses that interfere with mental health or vocational well being;

(3) Conduct appraisals and assessments for the purpose of establishing treatment goals and objectives; and

(4) Develop, implement, and evaluate treatment plans using counseling treatment interventions.

"Referral" means the evaluation of information to identify the needs of the person being counseled 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.

"Rehabilitation counseling" means a systematic process that assists persons with physical, mental, developmental, cognitive, and emotional disabilities to achieve their personal, career, and independent living goals in the most integrated setting possible through the application of the counseling process. The process includes:

(1) Evaluation of medical, psychological, educational, and vocational data together with interview behavior to determine skills, abilities, and potential opportunities;

(2) Use of individual group and behavioral techniques to foster adjustment to disability and achieve greater self-awareness, knowledge of environment, and judgment; and

(3) Coordination of multi-disciplinary community resources and job placement.

"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 power and duty to:

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

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

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

(4) Discipline a licensed professional counselor for:

(A) Any cause described by this chapter; or

(B) Any violation of the rules;

(5) Refuse to license a person for:

(A) Failure to meet licensing requirements; and

(B) Any other action that would be grounds for disciplining a licensed professional counselor;

and

(6) 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(1).

   -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", "clinical 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); and

(4) Any individual employed by the State, any of its political subdivisions, or any instrumentality of the State or its political subdivisions; provided that this paragraph shall not preclude the State, its political subdivisions, or any instrumentality thereof, from requiring licensing under this chapter as a condition of 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;

(2) Has at least two academic terms of practicum experience 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 six hundred hours of clinical supervision within three years; and

(4) Has passed the National Board for Certified Counselors examination or the Commission on Rehabilitation Counselor Certification examination.

(b) An individual who holds current certification as a national certified counselor or a national certified rehabilitation counselor prior to the effective date of this chapter and who, 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 as a professional counselor any resident of another state who is currently licensed by that state if the individual has met the same or higher requirements as 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 examination 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, 2007. 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 any 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 Practice of professional counseling. The practice of professional counseling includes but is not limited to:

(1) Individual and group counseling;

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

(3) Planning the treatment of and counseling persons with mental, physical, and emotional disorders using adjunctive resources and consultants;

(4) Crisis intervention;

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

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

(7) Consulting;

(8) Research; and

(9) Referral.

The use of specific methods, techniques, or modalities within the practice of professional counseling is restricted to professional counselors appropriately trained in the use of such methods, techniques, and modalities.

   -14 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.

   -15 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. (a) There is established in the state treasury a fund to be known as the professional counselors licensing program start-up trust fund, which shall be administered by the department of commerce and consumer affairs for funding the start-up implementation of the professional counselors licensing program that is to be established by July 1, 2005, pursuant to this Act.

(b) There shall be deposited into the fund the following:

(1) Contributions received by the State that are designated for start-up implementation of the professional counselors licensing program established by this Act;

(2) All other gifts, bequests, appropriations, or other contributions of money or other property not otherwise conditioned; and

(3) All interest earned or accrued on moneys in the fund.

(c) All moneys in the fund shall be expended by the department of commerce and consumer affairs for the start-up implementation of the professional counselors licensing program established by this Act; provided that no expenditure shall be made until the balance of the fund is at least $43,000.

(d) The department of commerce and consumer affairs shall submit a report on the amount of moneys received by the fund to the legislature no later than twenty days prior to the convening of the regular session of 2004.

(e) On June 30, 2005, the fund shall be dissolved and the remaining balance shall be deposited into the compliance resolution fund.

SECTION 4. 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 5. This Act shall take effect on July 1, 2050.