ORDERS:
AMENDED PUBLIC HEARING REPORT OF THE ADMINISTRATIVE LAW JUDGE
Pursuant to S.C. Code Ann. §§ 1-23-110 and 1-23-111 (Supp. 1996), a public hearing was held on January 19, 1999, at the
Administrative Law Judge Division to determine the "need and reasonableness" of the proposed amendments to S.C. Code
Regs. 117-190 (Supp. 1996). The proposed amendment creates 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 and provide
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:
Warren Throckmorton, American Mental Health Counseling Association
John P. Ambrose, J.D., Director, Legal & Governmental Affairs, General Counsel's Office of The American Association
for Marriage & Family Therapy
Dr. Joshua Gold, S.E.C.A.
Dr. William G. Harris, Executive Director, Association of Test Publishers
Dr. Chrys J. Harris, Chairman, S.C. Board of Examiners for Licensure of Professional Counselors, Marriage and Family
Therapists, and Psycho-Educational Specialists
Bill Burnett, Director of Direct Client Services, Department of Alcohol and Other Drug Abuse Services and President of
the National Association of Alcohol and Drug Abuse Counselors
Dr. James N. Rentz, S.C. Association of Marriage and Family Therapists
Carolyn C. Matthews, S.C. Association of Marriage and Family Therapists
The following Opponents of the proposed regulations participated in the public hearing:
Dr. Dean Kilpatrick, President-Elect of the S.C. Psychological Association
Dr. David E. Barrett, Chairman of the Board of Examiners in Psychology
Dr. Patrick M. O'Neil, S.C. Academy of Professional Psychologists
Dr. Julie A. Lipovsky, Psychology Department, The Citadel
A Public Hearing Report was issued in this matter on July 28, 1999. Afterwards, I was notified by Dr. Julie Lipovsky of a
scrivener's error in the Report. The Report set forth that "the Citadel program also requires approximately 1500 hours of
direct clinical supervision in a setting dedicated to 'more serious' mental disorders." The Report should have stated that the
Citadel program requires 150 hours rather than 1,500 hours. Pursuant to Rule 51 of the Rules of Procedure of the
Administrative Law Judge Division, this Amended Public Hearing Report corrects that error. See also Goethe v. Cleland,
323 S.C. 50, 448 S.E.2d 574 (S.C. App. 1994).
FINDINGS
Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:
General Findings
1. S.C. Code Ann. § 1-23-111(B) (Supp. 1996), sets forth that this Court must make findings as to the need and
reasonableness of the proposed regulation 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 regulation was published in the State Register on October 23, 1998.
3. The Department filed an Agency Transmittal Form with the Administrative Law Judge Division on October 27, 1998.
4. The Notice of Proposed Regulation was published in the State Register on November 27, 1998, which included a synopsis
of the proposed regulation and the Notice of Opportunity for Public Comment and Hearing.
5. The Department complied with all notice and procedural requirements of the Administrative Procedures Act (APA) 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 January 19, 1999, pursuant to
S.C. Code Ann. § 1-23-111, at which time this Court received oral testimony, exhibits, and written comments from the
Board and interested persons.
7. The Opponents of the proposed amendment generally support the amendment. However, the Opponents assert that the
portion of the proposed regulations establishing the requirements to be a Licensed Professional Counselor (Counselor) is
unreasonable because it lacks specificity in the minimum educational requirements a Counselor must meet to assess "more
serious problems." Therefore, the following discussion shall be limited to only this issue.
Purpose of Proposed Regulation Amendments
8. S.C. Code Ann. §§ 40-75-5 et seq. (Supp. 1998) 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
adopt and revise 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.
As stated in the preamble to the proposed regulations contained in Document No. 2379 of the State Register, Vol. 22, Issue
11, dated November 27, 1998, the proposed regulation revisions are intended to supplement the Board's recently enacted
practice act. The revisions would include a new licensing group, Psycho-Educational Specialists, and would expand and
clarify regulations concerning Licensed Professional Counselors, Marriage and Family Therapists, Licensed Professional
Counselor Interns, Marriage and Family Therapy Interns, Licensed Professional Supervisors, and Marriage and Family
Therapy Supervisors. The proposed regulations would also include an Impaired Practitioner Treatment Program and provide
a Code of Ethics for each group of licensees.
Education Required to Assess "More Serious" Problems
9. S.C. Code Ann. § 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."
(Emphasis added). Furthermore, S.C. Code Ann. § 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."
The Opponents of the proposed regulations contend that the regulations are unreasonable to the extent that they fail to
clearly establish minimum educational requirements to qualify Counselors to assess "more serious" problems. They argue
that Regulations 36-04 and 36-05 should provide minimum educational requirements detailing how current Licensed
Professional Counselors and persons seeking initial licensure as Licensed Professional Counselors and Professional
Counselor Interns can become qualified to assess "more serious" psychological problems. These educational requirements
should include more detailed descriptions of the course work and practicum requirements needed to qualify a Counselor to
assess "more serious" mental disorders, rather than allowing the Board to develop the criteria. Essentially, the Opponents
seek to ensure that minimum requirements to assess "more serious" problems include course work and a practicum that
significantly emphasize major mental health disorders in an effort to protect the public from unqualified practitioners.
One Opponent suggested that a doctoral level degree in psychology or counseling serve as the minimum requirement to
assess and treat "more serious" psychological problems. Other Opponents supported graduate training on the master's level
including course work and a practicum emphasizing serious psychological counseling. The Opponents viewed the courses
suggested by the regulations for a Counselor as low in number and possibly substantively inadequate, noting that while a
diagnostic course is required, the regulations do not require that the course deal with severe psychopathology.
Although no specific curriculum of course work was suggested by the Opponents, they suggested that approximately one-half of the course work should focus upon serious psychological counseling. A 150-hour practicum was also suggested in
which 75 hours would be devoted to serious psychological counseling. The practicum would take place at a mental health
agency under very tight supervision by agency professionals, all of whom should be Licensed Professional Counselor
Supervisors. The Opponents further recommended that the course work and practicum should be followed by a 600-hour
internship, which is professional experience that is more independent than the practicum but operates under supervision of
similarly qualified professionals. Three hundred of the internship hours should be devoted to serious psychological
counseling. A master's degree could be awarded following successful completion of the course work, practicum, and
internship. Following graduation, the Opponents suggest 2000 hours of post-graduate supervision, 1000 of which should be
for serious psychological counseling.
In drafting the regulation, the Board wanted to establish the minimum educational requirements to assess and treat "more
serious" problems based on individual cases, rather than specific standards in the regulation. The Proponents contend that the
Board, itself, is in a better position to evaluate whether each Licensed Professional Counselor is "specifically trained" to
qualify for the expanded scope of practice.
CONCLUSIONS
General Conclusions
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. (Supp. 1998).
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 Journalists 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. 1996) 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 the 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, S.C. Code Ann. § 1-23-111(C) (Supp. 1995), provides that if the presiding Administrative Law
Judge determines that the need for or reasonableness of the proposed regulation 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 regulation but submit the proposed regulation as originally drafted for legislative approval; or
(c) withdraw the proposed regulation.
Reasonableness
4. "Reasonable" is defined as "Fair, proper, just, moderate, suitable under the circumstances. . . . Not 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). The definitions are broad and
leave a wide discretion in interpreting the reasonableness of a proposed regulation.
5. The statutes governing the practice of professional counseling provide detailed guidance concerning the scope of practice.
S.C. Code Ann. § 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.
(Emphasis added). Furthermore, S.C. Code Ann. § 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, interests, 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 as
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.
(Emphasis added).
Therefore, a Counselor may treat a serious psychological problem, but only if the Counselor has been "specifically trained"
to treat the client's "particular problem." The Opponents focus upon the requirement that a Counselor have specific training
to treat a "more serious" psychological problem. However, these statutes do not explicitly require that the Board enumerate
standards for a Counselor to treat a "more serious" psychological problem. Rather, the General Assembly set forth a
standard that no Counselor, no matter what their training, may assess or treat a "more serious" psychological problem unless
that Counselor is "specifically trained" to treat the client's "particular problem." Hence, the above statutes do not call for a
special or additional license to assess and treat serious problems.
The Proponents of this regulation argue that since the statute does not call for a special or additional license, no additional
requirement should be imposed, or at least the Board should be free to regulate this area of practice without the necessity
that specific criteria be established in the regulations. Nevertheless, the question remains how can Counselors evaluate
whether they are qualified to assess or treat a "more serious" psychological problem without specific training concerning the
assessment and treatment of all serious problems. But for sufficient training in the panoply of serious psychological
problems, Counselors could not determine if they have correctly assessed the specific problem, or problems, they are
treating.
Furthermore, the Proponents of the regulation contend that since the Code of Ethics for Counselors prohibits the practice of
counseling in areas in which the Counselor is not trained and competent, any additional regulation is unnecessary. 22 S.C.
Reg. 10 (1998) (to be codified as S.C. Code Regs. 36-19 (A) (6) - (7)) (proposed Nov. 27, 1998). I agree with the
Proponents' argument that as professionals, Counselors are generally required to scrutinize whether they are competent to
render advice. That concept is one which underlies all professions. However, the General Assembly expressly set forth that
Counselors must be "specifically trained" to assess and treat a "more serious" psychological problem. It is presumed that
the legislature intended to accomplish something in enacting a statute, rather than to engage in a futile exercise. Berkebile v.
Outen, 311 S.C. 50, 426 S.E. 2d 760 (1993). The General Assembly's inclusion of that requirement solely for Counselors
who assess and treat "more serious" psychological problems manifests an intent for regulatory elucidation of the training and
experience of those Counselors.
Regulations, as noted above, are properly promulgated to "fill in the details" of statutory jurisdiction. The dilemma that is at
issue here is exemplary of the General Assembly's deferring to an agency to fill in the necessary details. The Board is best
qualified to determine and enumerate the specific educational criteria necessary before a Counselor can treat individuals with
"more serious" mental disorders. Afterwards, the General Assembly, who itself required that Counselors be "specifically
trained" to treat "more serious" mental disorders, can pass upon the adequacy of the Board's determination.
Moreover, Regulations 36-04 and 36-05 specifically set forth the requirements for licensure of Counselors. The Board
obviously determined that the licensure of Professional Counselors called for the promulgation of specific education and
training requirements. Those proposed requirements are based presumably, in part, upon the belief that the public is best
protected by ensuring that professionals receive an established level of experience and training. It no less follows that an
established level of experience and training should be set forth for Counselors who will practice in an area in which they deal
with "more serious" problems.
Counselors specializing in treating people with "more serious" problems deal with patients who are potentially more fragile
than typical counseling patients. Therefore, inadequate treatment would pose a greater risk of more profound repercussions
to society if the Counselor does not receive sufficient experience and training before engaging in this area of assessment and
treatment. Consequently, it logically follows that the more reasonable approach in setting forth the criteria for detailed
educational guidelines for all Counselors would be to also include detailed educational guidelines for Counselors specializing
in treating people with "more serious" problems. By providing specific criteria for specialists to meet, the Board would
exclude general Counselors from treating patients with "more serious" mental problems unless the Counselors have
demonstrated competency to evaluate their own knowledge in that specialized field. As a result, the general public would be
better served because patients with "more serious" problems would more likely receive the specialized attention they need.
However, though an Opponent suggested that a doctorate should be required for "more serious" counseling, the statute does
not specifically require a doctorate for that level of practice. A master's degree is the accepted degree in the field and should
be required by the specific educational criteria. Therefore, a doctoral level degree should not be mandated. Rather, the issue
is whether a Counselor has received sufficient training in the field of "more serious" psychological problems in order to
evaluate their own qualifications to assess and treat these problems. The Citadel developed a master's level curriculum that
provides an attractive model for the Board to consider in making that evaluation. In addition to classroom study which
includes specific course work that addresses diagnosing and treating "more serious" mental disorders, the Citadel program
also requires approximately 150 hours of direct clinical supervision in a setting dedicated to "more serious" mental disorders.
Therefore, I conclude that, as written, the proposed regulations are unreasonable to the extent that they fail to set forth
specific standards for certification of Counselors to assess "more serious" problems. Failure to provide such detail
inadequately informs the public of the minimum level of competency that must be demonstrated by a Professional Counselor
engaged in treating and assessing "more serious" problems and precludes the General Assembly from reviewing those details.
RECOMMENDATIONS
Based upon the above Findings and Conclusions, I recommend that the Board develop specific educational guidelines for
Licensed Professional Counselors and Interns wishing to engage in an expanded scope of practice devoted to "more serious"
problems as described in S.C. Code Ann. § 40-75-20 (3). In particular, I recommend that the Board, based upon its
expertise, establish specific educational criteria for Licensed Professional Counselors and Professional Counselor Interns
wishing to engage in counseling individuals with "more serious" problems. In developing these criteria, the Board should
consider requirements including specific course work, practicum and internship hours devoted to serious psychological
disorders included within the expanded scope of practice, any other experience in diagnosing and treating "more serious"
mental disorders, achievement of a qualifying score on a national examination, and adherence to a Code of Ethics. These
criteria should address currently Licensed Professional Counselors and Professional Counselor Interns as well as individuals
seeking to be newly licensed.
______________________________
Ralph King Anderson, III
Administrative Law Judge
September 3, 1999
Columbia, South Carolina |
