CHAPTER 52

FORMERLY

HOUSE BILL NO. 178

AS AMENDED BY HOUSE AMENDMENT NO. 1, HOUSE AMENDMENT NO. 1

TO HOUSE AMENDMENT NO. 1, HOUSE AMENDMENT NO. 2 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 30, TITLE 24, DELAWARE CODE, RELATING TO PROFESSIONAL COUNSELORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 30, Title 24, Delaware Code by striking same in its entirety and in lieu thereof substituting the following new chapter:

§3001. Policy and objectives.

The primary objective of the Board of Professional Counselors of Mental Health, 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. (66 Del. Laws, c. 128, 1.) This Chapter shall only apply to those licensed to use the titles, "Licensed Professional Counselor of Mental Health" or "Licensed Associate Counselor of Mental Health."

§3002. Definitions

The following words, terms and phrases, when used in this chapter shall have the meanings subscribed to them under this section, except where the context clearly indicates a different meaning:

(1) "Board shall mean the Board of Professional Counselors of Mental Health which shall administer and enforce this chapter.

(2) "Licensed Professional Counselor of Mental Health" (LPCMH) shall mean any person who holds himself or herself out to the public offering to render to individuals, groups, organizations or the general public, a counseling service involving the application of clinical counseling
principles, methods or procedures to assist individuals in achieving more effective personal and social adjustment.

An LPCMH's role is to assist clients in assessing and analyzing background and current information, and related mental and emotional conditions, exploring possible solutions and developing and providing a treatment goal.

(3) "Licensed Associate Counselor of Mental Health" (LACMH) shall mean any person who holds himself or herself out to the public by any title or description of services incorporating the words "Licensed Associate Counselor of Mental Health" 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 of Mental Health or other supervisor suitable to the Board.

(4) "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 mental

a. human subjects.

(5) "Counseling services" shall mean those acts and behaviors coming within the "practice of counseling" as defined in this chapter.

(6) "Direct supervision" shall mean supervision by a Licensed Professional Counselor of Mental Health or other mental health professionals acceptable to the Board 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. License requirements health counseling profession which include but are not limited to:

b. "Counseling" means assisting, by a Licensed Professional Counselor of Mental Health, 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;

a. "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;

a. "Consulting" means interpreting or reporting scientific fact or theory to provide assistance in solving current or potential problems of individuals, groups or organizations;

a. "Referral" means the evaluating of data to identify problems and to determine the advisability of referral to other specialists;

"Research" means reporting, designing, conducting or consulting on research in counseling with; professional designations.

No person shall hold himself or herself out as a licensed professional counselor of mental health or licensed associate counselor of mental health unless he or she is licensed in accordance with 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 'licensed professional counselor of mental health', 'licensed associate counselor of mental health', or any other words, letters, abbreviations or insignia indicating or implying directly or indirectly that such person is licensed under this Chapter.

§3004. Applicability of chapter.

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

(1) 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;

(2) Nonresident persons engaged in consulting, research, teaching or lecturing in counseling for a period not greater than 30 days in a calendar year;

(3) 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;

a. Arguably protected by either the free exercise or the establishment clauses of the First Amendment to the United States Constitution;

a. Arguably protected by §1, article I of the Constitution of this State;

d. Which can be shown to be 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 of 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.

(4) 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 the 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 of licensure and is employed by a professional counselor.

(5) Any individual offering volunteer or paid services, who is approved by the entity for whom the services are rendered; provided that the entity is either engaged in religious activity, a public or private nonprofit organization, a charity or an organization licensed under the state licensure standards governing alcohol and drug counseling services.

(1) No person or entity exempt under any subdivision of this section shall be required to submit to the jurisdiction of the Board of Professional Counselors of Mental Health or to respond in any way whatsoever before that body.

§3005. Board of Professional Counselors of Mental Health; qualifications;

terms of office; compensation.

(a) The Board of Professional Counselors of Mental Health is established and shall consist of 8 members who are residents of this State and shall be appointed by the Governor. The Board shall consist of 4 professional members licensed under this chapter, 1 shall be a licensed associate counselor of mental health, and 3 shall be public members. The public members shall not be or ever have been licensed under this chapter or members of the immediate family of a person licensed under this chapter; shall not have a material interest in providing goods and services to persons licensed under this chapter; and shall not be engaged in any activity directly related to licensees under this chapter. The public members shall be accessible to
inquiries, comments and suggestions from the general public.

(a) Each member shall serve for a term of 3 years and may succeed himself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only 1 additional full 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.

(a) 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.

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

(a) A member of the Board shall receive $50 for each meeting attended but not more than $500 in any calendar year.

§3006. Officers; conduct of business.

(a) The Board shall elect annually from its members, a President, a Vice President, and a Secretary. Each officer shall serve for one year and may succeed himself or herself in the same office for one additional term.

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

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

§3007. Powers and duties of Board.

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

(1) Promulgate rules and regulations implementing or clarifying a specific section of this chapter or necessary for the performances of their duties; licensure; (2) Grant licenses to all persons who meet the qualifications for

(3) Receive complaints from practitioners and from the public concerning practitioners licensed under this chapter; evaluate such
complaints; and take such action within its power as the Board deems appropriate;

(1) Determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, conduct such hearing in accordance with this chapter and the provisions of the Administrative Procedures Act, 29 Del. C. Chapter 101;

(1) Where it has been determined after a disciplinary hearing that penalties or sanctions shall be imposed, designate and impose the appropriate sanction or penalty;

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

(3) 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;

(1) Set and charge an application fee as determined by the Board pursuant to §3009 of this title.

(b) Whenever the Board has reason to believe that a person licensed under this chapter has or will engage in practices which are in violation of this chapter, it 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.

(2) 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.

(3) 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 National Board for Certified Counselors (NBCC), 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 Del. C. Chapter 101.

§3008. Qualifications for license.

The Board shall issue a license to each applicant who files an application upon a form and in such a manner as the Board prescribes, accompanied by payment of the application fee, and who furnishes satisfactory evidence of the following qualifications:

(1) The applicant is certified by the National Board for Certified Counselors, Inc., or by the National Academy of Certified Clinical Mental Health Counselors, or other national mental health specialty certifying organization acceptable to the board;

(2) The applicant has 3 years of supervised, full-time experience in professional counseling acceptable to the Board. An applicant may
substitute up to 1 year of experience attained prior to the completion of the master's degree for 1 year of the required experience. Alternatively, an
applicant may substitute 30 graduate semester hours or more attained beyond the master's degree for 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 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;

(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;

(6) The applicant has not been convicted of any offense involving

(7) The applicant has not been penalized for any willful violation of the Code of Ethics or other professional mental health counseling standard;

(8) In the instance of an applicant who has been convicted of a misdemeanor, the Board shall have discretion, after full receipt and review of all information deemed relevant by the Board, to issue a license to such applicant notwithstanding the existence of a conviction for a misdemeanor.

It shall be the policy of the Board and 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 $100.00 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.

§3010. Qualifications for licensed associate counselor of mental health.

 The Board shall issue an associate counselor of mental health license (LACMH) 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. The applicant must meet all the requirements established for licensed professional counselors of mental health in Section 3008 of this chapter except those dealing with required experience.

(1) A Licensed Associate Counselor of Mental Health may practice only under the direct supervision of a supervisor acceptable to the Board. A plan for supervision of the associate counselor of mental health must be submitted to and approved by the Board prior to the actual performance of any counseling services by the LACMH.

(2) The associate counselor of mental health license shall be effective for a period of up to 3 years. Any LACMH may petition the Board for licensure review as a Licensed Professional Counselor of Mental Health upon fulfillment of the requirements of Section 3008 of this chapter.

§3011. Renewal of licenses; expiration of licenses; reactivation of licenses; inactive status of LPCMH's.

(a) Licenses shall expire biennially with the exception of licenses for Associate Counselors of Mental Health expiring triennially. Licenses may be renewed in a manner described 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 fulfilling the membership requirements, as of the date of renewal application, of the National Board for Certified Counselors (NBCC), National Academy of Certified Clinical Mental Health Counselors (NACCMHC), or other national mental health certifying organization acceptable to the Board.

(b) If the renewal fee is not paid by the expiration date, a license shall automatically expire.

(c) A license which has thus expired may within five years after its expiration date be reactivated upon the payment to the Board of a sum established by the rules and regulations of the Board. Reactivation of an expired license more than five years after its expiration date may be renewed only by complying with the provisions relating to the issuance of an original license.

(d) 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 practicing as a LPCMH or LACMH in the State may, upon written request, be placed upon the inactive register. Provisions for resuming 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 of Mental Health or Licensed Associate Counselor of Mental Health 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 the 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;

(2) Illegal, incompetent or negligent conduct in the practice of professional counseling;

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

(4) The practitioner has been convicted of any felony or any misdemeanor involving dishonesty within the last five years.

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

(6) 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 for practicing or being employed by a licensed physician, hospital, health maintenance organization, nursing home, home health agency, rehabilitation agency or public or nonpublic 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;

(1) The practitioner has violated any provision of this chapter or any rule or regulation of the Board.

(b) A practitioner shall be subject to nondisciplinary 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;

(2)  Temporary emotional disorder or mental illness; or

(3) Permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity is at issue in a nondisciplinary 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.

§3015. Remedial action and disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singularly or in combination, when it 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;

a. Place a practitioner on probationary status and require the practitioner to:Report regularly to the Board upon matters which are the basis of the probation;

a. Limit all practice and professional activities to those areas prescribed by the Board;

a. Continue to renew his/her professional education until the required degree of skill has been attained in those areas which are the basis of the Board action. Documentation of this professional education must be submitted to the board;

a. Suspend any practitioner's license; or

a. Revoke any 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 the 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.

(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 a practitioner licensed under this chapter may, during the regular business hours of the business day, contact the Board of 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 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 matter, 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 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 a 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 30th day after the date it is 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 1s in disagreement with the action of the Board, either person may appeal the Board's decision to the Superior Court within 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. Penalties.

(a) Where the Board has determined that a person is practicing as a Licensed Professional Counselor of Mental Health or as a Licensed Associate Counselor of Mental Health 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 make complaint to the Attorney General and may issue a cease and desist order. The complaint shall include all evidence known to or in the possession 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.

(a) Any violation of subsection (a) of this section is a misdemeanor and upon the first offense, the offender shall be fined not less than $500.00 nor more than $1000.00 for each offense. For a second or subsequent
conviction the fine shall be increased by $500.00 for each offense. The Court shall order all client fees received for unlawful services to be refunded."

Approved June 25, 1991.