SC Administrative Law Court Decisions

Pursuant to S.C. Code Ann. §§ 1-23-110 and 1-23-111 (Supp. 1999), a public hearing was held on June 13, 2000 at the Administrative Law Judge Division (Division) to determine the "need and reasonableness" of these proposed regulations. The proposed regulations create a new licensing group to include Psycho-Educational Specialists and to clarify Licensed Professional Counselors, Marriage and Family Therapists, Licensed Professional Counselor Interns, Marriage and Family Therapy Interns, Licensed Professional Counselor Supervisors, and Marriage and Family Therapy Supervisors. The proposed regulations also include an Impaired Practitioner Treatment Program along with a Code of Ethics for each group of licensees.

The South Carolina Department of Labor, Licensing and Regulation (Department) - Board of Examiners for the Licensure of Professional Counselors, Marriage and Family Therapists and Psycho-Educational Specialists (Board) and interested persons presented testimony and written materials relating to the proposed regulations, all of which were incorporated into the record of the hearing.

The following Proponents of the proposed regulations participated in the public hearing:

Chrys J. Harris, Ph.D., Past Chairman, South Carolina Board of Examiners for Licensure of Professional Counselors, Marriage and Family Therapists, and Psycho-Educational Specialists

Harriet Gardin Fields, Chairperson of the Public Policy Committee of the South Carolina Counseling Association

Richard P. Wilson, Advice Counsel, South Carolina Department of Labor, Licensing and Regulation.

The following Opponents of the proposed regulations participated in the public hearing:

David E. Barrett, Ph.D., Chairman of the South Carolina Board of Examiners in Psychology

Patrick M. O'Neal, Ph.D., South Carolina Academy of Professional Psychologists

Shirley Vickery, South Carolina Psychological Association

Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:

1. S.C. Code Ann. § 1-23-111 (B) (Supp. 1999), sets forth that this Court must make findings as to the need and reasonableness of the proposed regulations and "may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness."

2. The Notice of Drafting of the proposed regulations was published in the State Register on March 24, 2000.

3. The Department filed an Agency Transmittal Form with the Administrative Law Judge Division on March 30, 2000.

4. The Notice of Proposed Regulation was published in the State Register on April 28, 2000, which included a synopsis of the proposed regulations and the "Notice of Public Hearing and Opportunity for Public Comment."

5. The Department complied with all notice and procedural requirements of the Administrative Procedures Act and the Administrative Law Judge Division Rules of Procedure.

6. A public hearing to allow the Board's presentation and public comment was conducted on June 13, 2000, pursuant to S.C. Code Ann. § 1-23-111 (Supp. 1999), at which time this Court received oral testimony, exhibits, and written comments from the Board and interested persons.

7. The Opponents of the proposed regulations generally support the regulations. However, the Opponents assert that the portion of the proposed regulations which establishes the requirements to be a Licensed Professional Counselor (Counselor) and Licensed Professional Intern (Intern) is unreasonable because it lacks specificity in the minimum educational requirements a Counselor or Intern must meet to assess "more serious problems."

8. The Opponents also assert that the portion of the proposed regulations which deals with referencing "state certification" in advertisements and announcements by Psycho-Educational Specialists is unreasonable because it conflicts with the statute governing such use. All other issues raised by the Opponents at the hearing were resolved and agreed upon by the Proponents. Therefore, the following discussion will be limited to these two issues.

9. S.C. Code Ann. §§ 40-75-5 et seq. (1986 and Supp. 1999) created the Board of Examiners for the Licensure of Professional Counselors, Marriage and Family Therapists, and Psycho-Educational Specialists. Those statutes authorize the Board to promulgate regulations necessary to carry out the provisions of Chapter 75, Title 40, including, but not limited to, regulations relating to Professional Counselors, Marriage and Family Therapists, and Licensed Psycho-Educational Specialists. See S.C. Code Ann. § 40-75-60 (Supp. 1999).

As stated in the "Preamble" to the proposed regulations contained in Document No. 2526 of the State Register, Vol. 24, Issue 4, dated April 28, 2000, the proposed regulations are intended to be consistent with recent amendments to the practice act. The proposed regulations update and increase the educational standards for licensure as a Professional Counselor Intern or Marriage and Family Therapy Intern. The regulations also provide guidelines for two previously unlicensed groups, Psycho-Educational Specialists and Alcohol and Drug Addiction Counselors, who will be licensed as Professional Counselors or Professional Counselor Interns. These regulations incorporate the recommendations of the Division and public comments as a result of a detailed report from the Administrative Law Judge Division, dated September 3, 1999.

10. S.C. Code Section 40-75-20(3) provides that "a counselor may assess more serious problems as categorized in standard diagnostic nomenclature but only if the counselor has been specifically trained to assess and treat that particular problem." S.C. Code Ann. § 40-75-20(3) (Supp. 1999) (emphasis added). Furthermore, Section 40-75-20(16) states that "the use of specific methods, techniques, or modalities within the practice of licensed professional counseling is restricted to professional counselors appropriately trained in the use of those methods, techniques, or modalities." S.C. Code Ann. § 40-75-20(16) (Supp. 1999).

The Opponents of the proposed regulations contend that the regulations are unreasonable to the extent that they fail to clearly establish specific minimum educational requirements to qualify Counselors or Interns to assess "more serious" problems. More specifically, the Opponents argue that Regulations 36-04 and 36-05 of the proposed regulations should provide additional educational requirements detailing how current Counselors and persons seeking initial licensure as a Counselor or Intern can become qualified to assess "more serious" psychological problems. In other words, the Opponents want the proposed regulations to clearly require education and training beyond that required of Counselors and Interns who do not work with "more serious" mental disorders. The Opponents contend that in order for a Counselor/Intern to qualify to assess "more serious" mental disorders, the proposed regulations should incorporate the requirement of additional course work and training beyond the core academic course requirement of forty-eight semester hours required for general licensure, as set forth under Reg. 36-04(2) of the proposed regulations. The additional minimum requirements to assess "more serious" problems would include course work and a practicum that significantly emphasize major health disorders.

The Opponents suggest that a Counselor/Intern who seeks to assess and treat "more serious" problems should be required to complete a minimum of three graduate semester hours in psychopathology and a minimum of three graduate semester hours in diagnostics. These graduate courses would be in addition to the forty-eight hours of academic course requirements. Furthermore, a Counselor/Intern should have to complete a practicum dealing directly with the assessment and treatment of "more serious" psychological problems and complete an internship of at least six hundred hours under the supervision of a qualified licensed mental practitioner with experience in treating clients with "more serious" problems.

The Opponents also suggest that a Counselor/Intern who seeks to treat "more serious" problems should be required to obtain a minimum of twelve graduate hours in counseling or a related discipline including a minimum of three graduate semester hours in psychopathology and a minimum of three graduate semester hours in diagnostics. Again, these graduate hours would be in addition to the forty-eight hours of academic course requirements. Additionally, the Counselor/Intern would have to complete a minimum of two thousand hours of post-degree supervised clinical experience with an emphasis in the treatment of serious problems as categorized in standard diagnostic nomenclature, under the supervision of a qualified licensed mental health practitioner approved by the Board. The two thousand minimum hours would be spent performing direct counseling with individuals, couples, families, or groups with a minimum of one hundred fifty hours spent in immediate supervision with the supervisor, including one hundred hours of individual supervision and fifty hours of either individual or group supervision.

The Proponents, in amending the regulation, seek to develop minimum educational requirements to assess and treat "more serious" problems. However, the Proponents are opposed to mandating additional educational requirements for Counselors/Interns which exceed the forty-eight semester hour requirement needed for general licensure under the law. The Proponents opine that the minimum twelve hour graduate hours required for a Counselor/Intern to treat serious mental disorders are included in the forty-eight core semester hours. Of the forty-eight semester hours, there are approximately thirty-three to thirty-six hours of general courses and twelve hours of graduate courses. According to the Proponents, requiring a minimum of twelve more graduate hours in addition to the forty-eight core semester hours mandated by law would circumvent the present regulations and law governing such education.

11. S.C. Code Ann. § 40-75-520(E) (Supp. 1999) provides, in part:

The term "South Carolina Department of Education Certified in School Psychology", along with the certificate number, must be used only in conjunction with the title "Licensed Psycho-educational Specialist", and only on letterhead, on business cards, and as a signature line in reports written for South Carolina Department of Education schools or private schools.

Additionally, S.C. Code Ann. § 40-75-570 (Supp. 1999) provides, in part, that "additional credential lines must be used to indicate legitimate qualifications of the licensee whenever the work being done is for use by a school district or private school."

The Opponents contend that clarification of the regulation as written is required to avoid conflicting with the language of Sections 40-75-520 and 40-75-570. Regulation 36-21(O)(2) of the proposed regulations sets forth, in relevant part:

Listing of credentials in telephone directories shall be limited to name, highest relevant degree, state certification/licensure status as provided for by statute, address, telephone number, brief identification of major areas of practice. . .

(emphasis added). The Opponents claim that allowing the additional classification of "state certification" may lead to the use of language prohibited by statute. The Opponents are concerned that individuals will misuse the designation of "Licensed Psycho-Educational Specialist, Certified by South Carolina Department of Education in School Psychology" in advertisements and announcements leading the public to believe they are licensed psychologists. The Opponents suggest that the term "state certification" should be deleted to avoid any confusion.

The Proponents contend that the term "state certification/licensure status" was included to make the regulation more nationally-based to comport with other states that have certification as opposed to licensure. The Proponents further contend that a Licensed Psycho-Educational Specialist's ability to advertise in South Carolina is limited by statute and that they cannot advertise the classification of "state certification" in telephone directories or advertisements. Under the proposed regulations, Licensed Psycho-Educational Specialists can advertise themselves as "certified school psychologists" only as it complies with Sections 40-75-520 and 40-75-570.

1. The Board of Examiners for the Licensure of Professional Counselors, Marriage and Family Therapists, and Psycho-Educational Specialists, a component of the South Carolina Department of Labor, Licensing and Regulation, is authorized to promulgate regulations pursuant to S.C. Code Ann. §§ 40-75-5 et seq. (1986 and Supp. 1999).

2. An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations to "fill in the details" for the complete and consistent operation and enforcement of the law within its expressed general purpose. An administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation. Young v. S.C. Dep't of Highways and Public Transportation, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985); Hunter & Walden Co. v. S.C. State Licensing Bd. For Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978). A regulation which is beyond the authorization of the agency's enabling legislation or which materially alters or adds to the law, however, is invalid. Society of Professional Journalist v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943).

3. S.C. Code Ann. § 1-23-111 (B) (Supp. 1999) calls for a written report by the presiding Administrative Law Judge that includes "findings as to the need and reasonableness of the proposed regulation based on an analysis of factors listed in Section 1-23-115(C). . . , and other factors as the presiding official identifies and may include suggested modifications to the proposed regulation in the case of a finding of lack of need or reasonableness." In essence, the public hearing serves to edify the agency as to potential problems with the regulation, in the hope that the agency will seek to modify the regulation accordingly. To that end, Section § 1-23-111(C) provides that if the presiding Administrative Law Judge determines that the need for or reasonableness of the proposed regulation(s) has not been established, the agency must elect to:

(a) follow the suggestions of the Administrative Law Judge and submit the modified proposal for legislative approval;

(b) not modify the proposed regulations but submit the proposed regulations as originally drafted for legislative approval; or

(c) withdraw the proposed regulations.

4. "Reasonableness" is defined as "[f]air, proper, just, moderate, suitable under the circumstances. . . . [n]ot immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." Black's Law Dictionary, 1265 (6th ed. 1990). The word has been further defined to mean "agreeable to reason under the facts and circumstances of the case before the Court." Ellis v. Taylor, 311 S.C. 66, 427 S.E.2d 678 (Ct. App. 1992).

5. The statutes governing the practice of professional counseling provide detailed guidance concerning the scope of practice. Section 40-75-20(16) provides that the:

"Practice of professional counseling" means functioning as a psycho-therapist and may include, but is not limited to, providing individual therapy, family counseling, group therapy, marital counseling, play therapy, couples counseling, chemical abuse or dependency counseling, vocational counseling, school counseling, rehabilitation counseling, intervention, human growth and development counseling, behavioral modification counseling, and hypnotherapy. The practice of professional counseling may include assessment, crisis intervention, guidance and counseling to facilitate normal growth and development, including educational and career development; utilization of functional assessment and counseling for persons requesting assistance in adjustment to a disability or handicapping condition; and consultation and research. The use of specific methods, techniques, or modalities within the practice of licensed professional counseling is restricted to professional counselors appropriately trained in the use of these methods, techniques, or modalities.

S.C. Code Ann. § 40-75-20(16) (Supp. 1999) (emphasis added). Section 40-75-20(3) provides that:

"Assessment" in the practice of counseling and therapy means selecting, administering, scoring, and interpreting evaluative or standardized instruments; assessing, diagnosing, and treating, using standard diagnostic nomenclature, a client's attitudes, abilities, achievements, interest, personal characteristics, disabilities, and mental, emotional, and behavioral problems that are typical of the developmental life cycle; and the use of methods and techniques for understanding human behavior in relation to, coping with, adapting to, or changing life situations. A counselor may assess more serious problems categorized in standard diagnostic nomenclature but only if the counselor has been specifically trained to assess and treat that particular problem. If a client presents with a problem which is beyond the counselor's training and competence, the counselor must refer that problem to a licensed professional who has been specifically trained to diagnose and treat the presenting problem. In all cases, ethical guidelines as established by the board must be followed.

S. C. Code Ann. § 40-75-20(3) (Supp. 1999) (emphasis added). Therefore, a Counselor/Intern may treat a serious psychological problem only if the Counselor/Intern has been "specifically trained" to treat the client's "particular problem."

As with any profession in which a specialty is sought, additional training is required for a specialty designation. A specialty designation assures the public that a practitioner is qualified to engage in that field. Therefore, it is reasonable to mandatorily require a Counselor/Intern to obtain education and training beyond the academic course requirements in order that they may work with the more serious mental disorders.

In Regulations 36-04 and 36-05 of the proposed regulations, the Board has set forth specific requirements detailing academic course work, practicums, and internships for both Interns and Counselors seeking to specialize in the assessment and treatment of serious problems. I find that the Board's requirements in the proposed regulations to assess and treat serious mental disorders are reasonable. Whether or not it is more reasonable to require that the course work and training to treat "more serious" problems be in addition to the forty-eight hours of academic course requirements, as the Opponents suggest, is not a determination delegated to this Division. The only inquiry which is relevant is whether the proposed regulations are reasonable and needed. S.C. Code Ann. § 1-23-111(B) (Supp. 1999). Therefore, the fact that a proposed regulation could be improved upon does not preclude a finding that the regulation is reasonable and needed.

6. The statutes governing the practice of Psycho-Educational Specialists provide clear instruction on the appropriateness of advertising and announcing credentials. Section 40-75-520 (E) provides that:

Persons whose practice is covered in this section shall use the title "Licensed Psycho-educational Specialist" in any advertisement, solicitation, or other written contract with members of the public. The term "South Carolina Department of Education Certified in School Psychology", along with the certificate number, must be used only in conjunction with the title "Licensed Psycho-educational Specialist," and only on letterhead, on business cards, and as a signature line in reports written for South Carolina Department of Education schools or private schools.

S.C. Code § 40-75-520 (E) (Supp. 1999) (emphasis added). Furthermore, Section 40-75-570 sets forth:

Notwithstanding the provisions of Chapter 55, Title 40, additional credential lines must be used to indicate legitimate qualifications of the licensee whenever the work being done is for use by a school district or private school. Credential lines shall follow the typed or printed name of the licensee. For South Carolina Department of Education school psychologist, level II, the credential line shall read "Licensed Psych-educational Specialist, Certified by South Carolina Department of Education in School Psychology, Certification No. _____"; For Department of Education school psychologist, level III, the credential line shall read "Licensed School Psychologist, Certified by South Carolina Department of Education in School Psychology, Certification No. _____"; however, to use this credential line a level III school psychologist must be licensed by the South Carolina Board of Examiners in Psychology.

S.C. Code Ann. § 40-75-570 (Supp. 1999). Therefore, a Psycho-Educational Specialist may only use the term "South Carolina Department of Education Certified in School Psychology" on letterhead, business cards, and as a signature line in reports written for South Carolina Department of Education schools or private schools. By specifying when it is permissible, this statutory language prevents the inclusion of state certification in other communications with the public.

Proposed Regulation 36-21(O)(2) does not alter the limitations of Section 40-75-520(E). Rather, it sets forth that an advertisement in a telephone directory by a Psycho-Educational Specialist "shall be limited to name, highest relevant degree, state certification/licensure status as provided for by statute . . . " (emphasis added). The language "as provided for by statute" makes it clear that any reference to "certification" in a telephone listing by a Psycho-Educational Specialist is limited to that allowed by Section 40-75-520 (E). The language in proposed Regulation 36-21(O)(2) also allows for future changes in the statute without necessitating a need for changes in the regulation. Furthermore, the Opponent's argument that the term "state certification" should be deleted in order to avoid confusion is not so persuasive as to warrant modification. Therefore, I find that proposed Regulation 36-21 is reasonable.

7. Based upon the above Findings and Conclusions, I find that it is within the authority of the Board to promulgate these proposed regulations and that the regulations are both reasonable and needed in order to support the recent amendments to the practice act governing Professional Counselors, Marriage and Family Therapists, and Psycho-Educational Specialists.

____________________________________

Ralph King Anderson, III

Administrative Law Judge

September 7, 2000

Columbia, South Carolina