CHAPTER 128

FORMERLY

HOUSE BILL NO. 56

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLES 24, 29 AND 30, OF THE DELAWARE CODE TO PROVIDE FOR THE LICENSING REGULATION OF PROFESSIONAL COUNSELORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (two-thirds of members elected to each House thereof concurring therein):

Section 1. Amend Titles 24, of the Delaware Code by adding thereto a new Chapter 30, which shall read as follows:

"CHAPTER 30. PROFESSIONAL COUNSELORS.

§3001. policy and Objectives.

The primary objectives of the Board of Examiners in Counseling to which all other objectives and purposes are secondary, is to protect the general public (specifically those persons who are direct recipients of services regulated by this Chapter) from unsound practices and from counseling practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaint hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners, Nothing in this Chapter shall be deemed direct or indirect commitment by the General Assembly to a present or future requirement that insurers or third parties must offer or provide coverage for the services of practitioners licensed under this Chapter.

§3002. Definitions.

The following words, terms and phrases, when used in this Chapter, shall have the meaning subscribed to them under this Section, except where the context clearly Indicates a different meaning:

(a) 'Board' shall mean the Board of Professional Counselors which shall administer and enforce this Chapter.

(b) 'Counseling Services' shall mean those acts and behaviors coming within the 'practice of counseling' as defined in this Act.

(c) 'Professional Counselor' shall mean any person who holds himself or herself out to the public by any title or description of services Incorporating the words 'Professional Counselor': and who renders or offers to render counseling services to individuals, groups, organizations, corporations, institutions, government
agencies or the general public for monetary remuneration or otherwise, implying that he or she is trained, experienced or expert in counseling, but it does not mean any person, employee, or agent thereof engaging in whole or in part in religious counseling who identifies himself or herself as a professional religious counselor.

(d) 'Associate Counselor' shall mean any person who holds himself or herself out to the public by any title or description of services incorporating the words 'Associate Counselor': and who renders or offers to render counseling services to individuals, groups, organizations, corporations, institutions, government agencies or the general public for a fee, or otherwise, implying that he or she is trained, experienced or expert in counseling, under the supervision of a duly licensed professional counselor.

(e) 'Practice of Counseling' shall mean rendering or offering to render to individuals, groups, organizations or the general public any service involving the application of principles, methods, or procedures of the counseling profession which include but are not limited to health counselors or vocational rehabilitation counselors, an individual or a group through the counseling relationship to develop an understanding of personal problems, to define goals, and to plan action reflecting his or her interests, abilities, aptitudes and needs as these are related to personal social concerns, educational progress and occupations and careers, but it does not mean religious counseling which touches, in any manner whatsoever, on any of these areas.

(2) 'Appraisal' means selecting, administering, scoring and interpreting instruments designed to assess an individual's aptitudes, attitudes, abilities, achievements, interests and personal characteristics, but shall not include the use of projective techniques in the assessment of personality.

(3) 'Consulting' means interpreting or reporting scientific fact or theory to provide assistance in solving current or potential problems of individuals, groups or organizations.

(4) 'Referral' means the evaluating of data to identify problems and to determine the advisability of referral to other specialists.

(5) 'Research' means reporting, designing, conducting or consulting on research in counseling with human subjects.

(f) 'Direct Supervision' shall mean supervision by a qualified licensed professional counselor and shall include the staffing of cases and the critiquing of counseling tapes. Said supervision shall be conducted in a formal, professional and consistent manner on a regularly scheduled basis.

§3003. Unlawful Acts.

No person shall practice professional counseling or hold himself or herself out as a professional counselor or associate counselor or render professional counseling services in this State unless he or she is licensed in accordance with the provisions of this Chapter. It shall be unlawful for any person, or for any business entity, its employees, agents or representatives to use in connection with his or its name or business activity the words 'professional counselor', 'licensed professional counselor', 'associate counselor', 'licensed associate counselor' or any other words, letters, abbreviations or insignia indicating or implying directly or indirectly that professional counseling services are rendered unless such person is licensed under this Chapter.

§3004. Persons and Practices Not Affected.

Nothing in this Chapter shall be construed as preventing or restricting the practice, services or activities of:

(a) Any person registered or licensed in this State by any other law from engaging in the profession or occupation for which he or she is licensed:

(b) Non-resident persons engaged in consulting, research, teaching or lecturing in counseling for a period not greater than thirty (30) days in a calendar year;

(c) Any person or legal entity engaged in religious activity of any nature whatsoever. Religious activity shall be construed in the broadest sense possible to include all activity:

(1) arguably protected by either the free exercise or the establishment clauses of the First Amendment to the United States Constitution;

(2) arguably protected by Article 1, Section 1 of the Delaware Constitution of 1897;

(3) which can be shown to have been historically engaged in by any religiously motivated person or legal entity; or

(4) which can be shown is sincerely believed to be described in, or mandated by, the Holy Scriptures of the individual or legal entity involved. Religious activity is not limited in any way to Sabbath worship but extends to any activity or a spiritual or religious nature which touches in any way on the affairs of life. Religious activity is not limited to clergy or churches and it includes church members or other religiously motivated individuals.

(d) The activities of any student, intern or trainee in counseling at an accredited institution of higher education or training institution, or fulfilling the supervised field experience requirements for licensure if these activities constitute a part of the supervised course of study and further provided that the person is designated a 'counselor intern'; or an aide or intern who has met the educational requirements for licensure and is employed by a professional counselor;

(e) Any individual offering volunteer or paid services, who is approved by the entity for whom the services is rendered, provided that the entity is either engaged in religious activity; a public or private non-profit organization; a charity; or an organization licensed under the provisions of the State licensure standards governing alcohol and drug counseling services;

(f) No person or entity exempt under any subparagraph of this Section shall be required to submit to the jurisdiction of the Board of Professional Counselors or to respond in any way whatsoever before that body.'

§3005. Board of Professional CounseLars: Oualifications: Term of Office'

Compensation

(a) The Board of Professional Counselors is established and shall consist of seven (7) members who are residents of this State and shall be appointed by the Governor. The Board shall consist of four (4) professional members licensed under this Chapter, one (1) shall be an associate counselor, and two (2) shall be public members. The public members shall not be nor ever have been professional
counselors or associate counselors nor members of the immediate family of a professional counselor or associate counselors; shall not have a material interest in providing goods and services to professional counselors; nor be engaged in any activity directly related to professional counseling. The public members shall be
accessible to inquires, comments and suggestions from the general public.'

(b) Each member shall serve for a term of three (3) years, and may succeed himself for one additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only one additional ful) term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, except that each member shall serve until his successor is duly appointed.

(c) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency, or neglect of duty. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded.

(d) While serving on the Board, no member may be a president, chairman or other official of a professional association for profession counselors.

(e) A member of the Board shall receive fifty dollars ($50.00) for each meeting attended, but not more than five hundred dollars ($500.00) in any calendar year.

§3006. Officers' Conduct of Business.

(a) The Board shall elect annually from its members, a chairman, a vice-chairman and a secretary. Each officer shall serve for one year, and shall not succeed himself in the same office.

(a) The Board shall hold regularly scheduled business meetings at least twice a year, and at such other times as the chairman deems necessary, or at the request of a majority of the Board members.

(a) A majority of the members shall constitute a quorum and no action shall be taken without the affirmative vote of at least four members. Any member who fails to attend three (3) consecutive meetings, or fails to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.

§3007. Powers and Duties

(a) The Board of Professional Counselors shall have authority to:

(1) promulgate rules and regulations implementing or clarifying a specific section of this Chapter or necessary for the performance of their duties;

(2) designate a national examination approved by the National Board for Certified Counselors, Inc. to be taken by persons applying for licensure, except applicants who qualify for licensure by reciprocity:

(3) grant licenses to all persons who meet the qualifications for licensure;

(4) receive complaints from practitioners and from the public concerning practitioners, licensed or unlicensed, or concerning practices of the
professions; to evaluate such complaints; and to take such action within its power as the Board deems appropriate;

(5) determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, to conduct such hearing in accordance with this Chapter and the provisions of the Administrative Procedures Act;

(6) where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty;

(7) bring proceedings in court for the enforcement of this Chapter, including suits in its own name to enjoin and restrain any licensed or unlicensed person from violating the provisions of this Chapter or to prevent or remedy any other violation of this Chapter of the rules of the Board. The Board shall be represented in all such actions by the Attorney General;

(8) maintain complete records relating to meeting minutes, applications, examinations, rosters, changes and additions to the rules and regulations, complaints, hearings and such other matters as the Board shall determine;

(1) require by subpoena the attendance and testimony of witnesses and the production of papers, records or other documentary evidence;

(2) set and charge an application fee as determined by the Board pursuant to §3009 of this Chapter;

(b) Whenever the Board has reason to believe that a person licensed under this Act has or will engage in practices which are in violation of this Chapter, may issue a cease and desist order against such person.

(1) Cease and desist orders shall be in writing and shall state what alleged violations have occurred or are about to occur which are the basis for the issuance of such orders.

(1) Cease and desist orders shall be served upon the violator and a copy shall be filed in the office of the Prothonotary of the county where the violator's main place of business in this State is located or in the office of the Prothonotary of the county where the violation occurred, or both.

(2) Upon receipt of a cease and desist order, the violator shall immediately cease and desist from conducting the activity which has been ordered ceased. Any person or agent or employee of the violator who conducts any activity which has been ordered ceased shall be considered to be in contempt of the Superior Court and punished in the same manner and to the same extent.

(c) The Board shall adopt the Code of Ethics of the American Association for Counselling and Development, or its successor, and any revisions or additions deemed appropriate by the Board to govern appropriate practice or behavior referred to in this Chapter. The Board may add additional rules or interpretive guidelines in its discretion.

(d) In all activities the Board shall adhere to the Administrative Procedures Act, 29 Ca. C. Chapter 101.

§3008. Application Procedure,

(a) The Board shall issue a license to each applicant who files an application upon a form and in such manner as the Board prescribes, accompanied by payment of

the application fee, and who furnishes satisfactory evidence of the following qualifications:

(1) the applicant has reached the age of majority;

(2) the applicant is a citizen of the United States or has declared his intention to become a citizen;

(3) the applicant is highly regarded in personal character and professional ethics;

(4) the applicant is not in violation of any of the provisions of this Chapter or the rules and regulations adopted pursuant to this Chapter;

(5) the applicant has not been convicted of any felony, any misdemeanor involving dishonesty, or any offense involving drug addiction and shall not have been penalized or convicted for a willful violation of any confidential communication nor have been professionally penalized or convicted of any offense involving fraud;

(6) the applicant is certified by the National Board for Certified Counselors, Inc.

(7) the applicant has earned a graduate degree from regionally or nationally accredited institution of higher education which is primarily professional counseling in content and meets the specific degree requirements of the National Board for Certified Counselors.

(B) the applicant has three (3) years of supervised, full time experience in professional counseling acceptable to the Board. An applicant may substitute up to one (1) year of experience attained prior to the completion of the Master's Degree for one (1) year of the required experience. Alternatively, an applicant may substitute 30 graduate semester hours or more attained beyond the Master's Degree for one (1) year of the required experience provided that such hours are clearly related to the field of counseling and are acceptable to the Board. In no case shall the applicant have less than two (2) years of the required post Master's professional experience. The Board by its rules and regulations shall establish criteria for determining, acceptable supervised experience. Independent private practice shall not be considered acceptable supervised professional experience.

(9) the applicant has demonstrated his or her knowledge of the field of counseling in general by passing the examination requirements of the National Board for Certified Counselors.

(1) foreign trained applications shall submit to the Board satisfactory evidence of graduation from a school offering a program in counseling or a certificate from a training program approved by an accrediting agency recognized by the National Board for Certified Counselors.

(b) the applicant has submitted to the Board a statement of professional intent outlining the scope of practice sought and the qualifications and experience pertinent to that scope of practice.

(c) the applicant shall complete a review written, oral or situational as the Board may require relevant to the applicant's statement of professional intent and scope of practice sought.

§3009. Fees.

It shall be the policy of the Board and of the Division of Professional Regulation that fees imposed under this Chapter shall approximate and reasonably reflect the expenses and costs incurred by the Board and by the Division in administering this Chapter; provided, however, that each applicant for licensure and each applicant for license renewal shall pay a fee of no less than one hundred ($100) for those respective services. There shall be a separate fee for each service or activity, but no fee shall be charged for a service or activity not specified in this Chapter. The application fee shall not be combined with any other fee or charge, except as specifically set forth herein. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute for each service or activity the appropriate fees for the coming year.

(a) The Board shall verify the results of the examination. Written examination documents shall be identified by number only.

(b) In the event an applicant fails to pass the entire examination, he or she may reapply and shall be allowed to take a subsequent examination.

(c) The amount to be charge for an examination fee shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board.

§3010. Reauirements for Licensed Associate Counselor,

The Board shall issue an associate counselor license to each applicant who meets the requirements established for professional counselors except those dealing with the required experience and completion of the examination requirements of the National Board for Certified Counselors.

(a) An associate counselor may practice only under the direct supervision of a licensed professional counselor. A plan for supervision of the associate counselor must be approved by the Board prior to the Actual performance of any counseling services by the associate counselor.

(b) The associate counselor license shall be effective for a period of up to three years. Any licensed associate counselor may petition the Board for licensure review as a professional counselor upon fulfillment of the requirements of §3008.

§3011. Renewal: Inactive Status: Continuing Education.

(a) Licenses shall expire biennially and may be renewed, in a manner as prescribed by the Division of Professional Regulation, upon submission of a renewal form provided by the Division and upon payment of the renewal fee and submission of evidence of completion of continuing education courses as may be required by the rules and regulations established by the Board. If the renewal fee is not paid by the expiration date, a license shall automatically expire. A license or
registration which has thus expired may within five (5) years of its expiration date be renewed upon the payment to the Board of a sum established by the rules and regulations of the Board. Reactivation of an expired license more that five years after its expiration date may be renewed only by complying with the provisions relating to the issuance of an original license.

(b) The Board shall keep an inactive register. Any person who has been
licensed in this State and is neither residing within the State nor actively engaged in the practice of professional counseling in the State may, upon request, be placed upon the inactive register. Provisions for an active status shall be
established by the Board.

§3012 Reciprocity.

(a) Upon payment of the appropriate fee, the Board shall waive all examination or education requirements and grant a license to any applicant who shall present proof of current licensure as a professional counselor or associate counselor in another state, the District of Columbia, or any territory of the United States which requires standards for licensure considered by the Board to be equivalent to the requirements for licensure under this Chapter.

(b) Under receipt of an application for reciprocity, the Board shall contact each jurisdiction which has previously licensed the applicant to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event that a disciplinary proceeding or unresolved complaint is pending, the applicant shall not be licensed until the proceeding or complaint has been resolved.

§3013. Privileged Communications.

Communications between a licensed professional counselor or associate counselor and client shall be considered confidential to the same extent as provided by Delaware Rule of Evidence 503.

§3014. Unlawful Practices: Penalties,

(a) Practitioners regulated under this Chapter shall be subject to disciplinary action by the Board if, after a hearing, the Board finds:

(1) The practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or otherwise authorized to practice professional counseling;

(1) illegal, incompetent or negligent conduct in the practice of
professional counseling;

(2) the practitioner habitually indulges in the use of narcotics or other unlawful drugs, or is habitually intemperate;

(3) the practitioner has been convicted of any felony or any misdemeanor involving dishonesty;

(4) the practitioner, in the course of his profession, willfully engaged in an act of consumer fraud or deception, restraint of trade or competition or participated in price fixing activities;

(5) the practitioner, directly or indirectly, has engaged in the division, transfer, assignment, rebate or refunding of fees received for professional services, or profited by means of a credit or other valuable consideration such as wages, an unearned commission, discount, or gratuity, with any person who referred a patient, or with any relative or business associate of the referring
person. This does not preclude a practitioner from practicing or being
employed by a licensed physician, hospital, health maintenance organization, nursing home, home health agency, rehabilitation agency or public or non public school. Nothing in this Section shall be construed as prohibiting the members of any regularly and properly organized business entity recognized under Delaware Law, and composed of professional counselors, from making any division of their total fees among themselves as they determined by contract, necessary to defray their joint operating costs;

(6) the practitioner has violated any provision of this Chapter or any rule or regulation of the Board.

(b) A practitioner shall be subject to non-disiplinary remedial action if, after a hearing, the Board finds that there is a threat to the health, safety and welfare of the public due to:

(1) physical illness or loss of motor skill, including but not limited to deterioration through the aging process; or

(2) temporary emotional disorder or mental illness;

(3) permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity is at issue in a non disciplinary remedial proceeding, the Board may order the practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render a practitioner liable to temporary suspension or revocation of license.

(d) Where a practitioner fails to comply with the Board's request that he submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the Court shall have jurisdiction to issue such order.

(a) The Board may impose any of following sanction, singularly or in combination, when ft finds that one of the conditions or violations set forth in this Chapter applies to a practitioner regulated by this Chapter:

(1) issue a letter of reprimand;

(2) censure a practitioner publicly;

(3) place a practitioner on probationary status and require the practitioner to:

i. report regularly to the Board upon matters which are the basis of the probation;

i. limit all practice and professional activities to those areas prescribed by the Board; or

i. continue or renew his/her professional education until the required degree of skill, as evidenced by successful completion of a designated examination has been attained in those areas which are the basis of the Board action;

ii. suspend any practitioner's license;

iii. revoke a practitioner's license.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required the action have been remedied.

(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, or during the appeal process; but only in cases where there is clear and immediate danger to the health, safety or welfare of the public if the licensee is allowed to continue to practice with reasonable skill and safety.

(d) Where a license has been suspended due to a disability of the licensee, the Board may reinstate a license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety.

(e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§3016. Complaints• Board Hearing: Procedure,.

(a) Any member of the public or practitioner who has a question or complaint concerning any aspect of the practice of professional counseling, may, during the regular business hours of a business day, contact the Board or the Division of Professional Regulation or voice such question or complaint at a business meeting of the Board.

(b) Upon the receipt of a complaint against a practitioner, the Board shall determine what action, if any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within ninety (90) days of receiving the complaint unless circumstances surrounding the complaint warrant a lengthier investigation. The Board shall fix the time and place for a full hearing of the mater, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing to be personally delivered or served upon the practitioner at least thirty (30) days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service will be effected in the same manner as in civil litigation.

(c) All hearings shall be informal and evidence shall be received without regard to the formal rules of evidence. If the Board finds, by a majority vote of all 'members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such a decision. A copy of the decision shall be mailed immediately to the complainant and to the practitioner. The Board's decision shall become effective on the thirtith day after the date it was mailed or served on the practitioner, unless there is an appeal to the Superior Court within that time. Where either the complainant or the practitioner is in
disagreement with the action of the Board, either person may appeal the Board's decision to the Superior Court within thirty (30) days of service, or of the postmark date of the copy of the Board's decision. Upon such appeal the Court shall hear the evidence upon the record and the filing of an appeal shall act as a stay of the Board's decision, pending final determination of the appeal.

§3017. Practicing Without a License.

(a)Where the Board has determined that a person is practicing professional counseling within this State without having lawfully obtained a license, or that a person previously licensed is unlawfully practicing although his license has been suspended or revoked, the Board shall warn such person. If the offense continues, the Board shall make a complain to the Attorney General and may issue a cease and desist order. The complaint shall include all evidence known to or in the p ossession of the Board.

(b)Any applicant who knowingly or willfully makes a false statement of fact in making an application under this Chapter shall be subject to prosecution for perjury. The Board shall have full authority to investigate, in accordance with law, every applicant for a license or registration regarding that applicant's qualifications. Any prosecution under this Subsection for perjury and its related offenses shall lie within the exclusive jurisdiction of the Superior Court.

(c)Any violation of this Subsection (a) of this Section is a misdemeanor and upon the first offense, the offender shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for each offense. For a second or subsequent conviction the fine shall be increased by five hundred dollars ($500) for each offense. The Court shall order all client fees received for
unlawful services to be refunded."

Section 2. Amend §10161, Chapter 101, Title 29 of the Delaware Code (administrative Procedures) by adding thereto a new Subsection, designated as Subsection (25), which new Subsection shall read as follows:

"(25) Board of Professional Counseling."

Section 3. Amend §8810(b), Chapter 88, Title 29 of the Delaware Code (Division of Professional Regulation) by adding thereto a new paragraph (19) which shall read as follows:

"(19) Board of Professional Counselors."

Section 4. Amend §2301(a), Chapter 23, Title 30 of the Delaware Code (Occupational

Licensing Fees) by redesignating paragraphs (58) through (88) as paragraphs (59) through (89) and by adding a new paragraph (58) to read as follows:

"(58) Professional Counselor, $50.00. Associate Counselor, $50.00.

'Professional Counselor' and 'Associate Counselor' includes every person engaged in the business of professional counseling as defined in Chapter 30 of Title 24."

Section 5. Members of the initial Board shall be appointed in such manner that the

terms of two (2) members expire on June 30, 1989; the terms of two (2) members shall expire on June 30, 1990; and the terms of three (3) members shall expire on June 30, 1991. Thereafter, appointments shall be made for terms of three years.

Section 6. If any provision of this Act or the application thereof to any person or

circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 7. So as not to unduly restrict the trade of those already in the practice of Professional Counseling, those persons in practice prior to the enactment of this Chapter will have twelve (12) months after the date of enactment to meet the full requirements for licensure.

Approved July 9, 1987