Whether you go by Licensed Professional Counselor (LPC) or a variant like Licensed Mental Health Counselor (LMHC), Licensed Mental Health Practitioner (LMHP), Licensed Associate Counselor (LAC), or Licensed Marriage and Family Therapist (LMFT)—your license is the key to your ability to work. You studied hard to obtain that license, and you place a high value on the trust your clients give you. When your license becomes jeopardized due to a complaint or investigation of alleged wrongdoing, it can throw your entire world into upheaval.
The mental health of the public is a sacred trust, and state boards that regulate professional counselors take their roles very seriously when complaints are filed. While this helps build trust with the public, it also means a single lapse in judgment or a misunderstanding could put an LPCs whole career into question. If you find yourself in this position, you may be filled with apprehension and questions as to what comes next.
Joseph D. Lento helps licensed professionals in New Jersey and New York who are under threat of losing their licenses. To that end, the Lento Law Firm has compiled the following common questions and answers to address the most pressing concerns and fears you might be facing so you can make informed decisions on taking steps to protect your license.
What allegations could cause me to lose my counselor's license?
Professional counselor licensing is regulated in New Jersey by the Professional Counselor Examiners Committee; in New York, it's the State's Education Department Office of the Professions. All regulatory boards will consider revoking or suspending an LPC's license over a wide range of infractions and violations. Examples include, but are not limited to:
- Sexual misconduct. Sex with a client is one of the most common forms of sexual misconduct among LPCs, and it is also the one that is almost guaranteed to cost you your license. Other types of sexual misconduct may include sexual harassment, inappropriate touching of clients, unwanted sexual advances, etc.
- Dual relationships. When an LPC has an additional relational role with a client besides that of therapist (e.g., financial, familial), it is considered unethical because one relationship role might be used to manipulate the other. Complaints about dual relationships often cost the LPC their license.
- Fraud. Examples might include overbilling insurance companies, using incorrect codes to bump up prices, charging different fees for uninsured private payers than for the insured, etc.
- Substance abuse. Alcoholism and drug addictions can jeopardize your license because they cast doubt on your ability to serve your clients.
- Misrepresenting credentials. If you make misleading claims regarding your qualifications, you could jeopardize your license.
- Acting beyond your qualifications. Your license permits you to operate within certain parameters of counseling. If you provide treatment or therapy outside these parameters, you could lose your license.
- Record-keeping/confidentiality violations. Counselor-client confidentiality is a must. Faulty record-keeping or disclosure of confidential client information (intentional or not) can put your license at risk.
Are there other possible penalties besides losing my license?
Yes. Not all complaints or violations will cost you your LPC license. Regulatory boards often take circumstances into account when determining appropriate penalties, and quite often, an attorney's involvement can result in reduced penalties or sanctions. Examples of lesser disciplinary actions include:
- License suspension. The board may suspend your license for a period of time, allowing for the possibility of reinstatement.
- Fines. State boards often impose a monetary fine as a penalty.
- Continuing education mandate. The board may require you to receive continuing education (CE) as a condition for keeping your license.
- Probation. The board will monitor your activities for a certain length of time, possibly accompanied by mandatory supervision by a qualified superior.
- Formal reprimand. The board may issue a written reprimand in response to the violation.
The good news is that these sanctions often allow counselors to continue practicing. The bad news is that most of these penalties (if not all) will appear on the LPC's permanent public record. While these are certainly preferable to having our license revoked, an even better solution is to have the complaint dismissed, which can often be accomplished with the help of a skilled attorney.
I've been notified of a formal complaint or an investigation of my license. What can I expect?
When the board receives a complaint against you, they initiate a formal disciplinary process to determine if a violation took place and what should be done in response. Every state board's process may look a little different, but most follow a pattern such as this:
- Review of the complaint. The board will evaluate whether the complaint has any merit and if it falls within their jurisdiction.
- Investigation. The board investigates the complaint further to see whether there is evidence to support the claim. During this stage, you'll likely be asked to respond to the complaint, either in writing or in person, along with presenting any evidence to support your position. The board may also subpoena records, question witnesses, and obtain further details and evidence from the person who made the complaint. If they don't uncover sufficient evidence to prove the complaint, the board may opt to close the matter at this point.
- Consent decree. If the board believes there is sufficient evidence of a violation, they may attempt to negotiate a consent decree with you as an alternative to a formal hearing. Under a consent decree, you come to a binding agreement with the board and the state to accept prescribed disciplinary actions.
- Formal hearing. If no consent order is offered or agreed to, the matter moves into a formal hearing, either before the board or before an Administrative Law Judge, where both sides present their evidence.
- Board action. At the end of the hearing, the board makes a final determination and decides on an appropriate penalty.
- Appeal. You have the right to appeal an adverse decision to the appellate courts in your state—although in most cases, the board's decision is upheld.
There are numerous points along this timeline where you may be able to negotiate to have the complaint dismissed or agree to reduced penalties rather than go through the entire process. This is where having an experienced professional license defense attorney can be extremely useful.
What happens if I agree to a consent decree? Is it a good idea to do so?
A consent decree is tantamount to an admission of guilt, similar in some ways to a plea agreement in a criminal case—but it usually results in a lesser penalty than if the case moves into the hearing stage. In cases where the evidence against you is significant, a consent decree may be a better option than having your license revoked through a formal hearing. Even if the consent decree means you must voluntarily surrender your license, your cooperation with the board may improve your chances for reinstatement down the road.
That being said, a consent decree will appear on your public record the same as any other disciplinary action. Depending on whether you have evidence to disprove the allegations, it might not be the best choice for everyone. Consult with your attorney before agreeing to any consent decree negotiations.
Why is it important to hire an attorney to defend my LPC license? Can't I just respond to the licensing board directly?
You obviously have the right to speak on your own behalf and to represent your own interests to the board during an investigation and even during a hearing. However, it's highly inadvisable, and most licensed professionals who choose to do so fare much worse than if they had hired legal representation.
Here's why you should hire a license defense attorney:
- The board is not your friend. The licensing board is not a fraternal/professional organization. It is not there to protect you; it is there to regulate you. Once a complaint is filed, the board is acting in the interest of public safety, not your interests. That means anything you say or do on your own behalf could be used as evidence against you. It also means that, in many ways, the burden of proof is on you. It's best to have legal representation in such situations.
- The board understands the disciplinary process better than you do. The board has much more experience in investigating license violations than any single LPC, which gives them the advantage in any disciplinary situation. Having an attorney with experience in license defense can help level the playing field, so to speak.
- An investigation into your license is a legal proceeding. Your license is a legal agreement with the state, so any alleged misconduct represents a violation of that legal agreement—and that means the act of revoking your license would be a legal action against you. Since you are a counselor and not a lawyer, you're likely to be out of your depth in that context, and you need the help of a legal professional to help you navigate the process.
Do I still need an attorney if the allegations are minor?
First of all, don't assume that any violation of your license is “minor.” Licensing boards may technically suspend or revoke counselors' licenses even for so-called “minor” infractions. Second, even lesser penalties can hurt your professional reputation because they become part of your public record—something that clients and prospective employers will check. Your best strategy is to do everything in your power to receive the least possible penalty—or better yet, to get the complaint dismissed, so it doesn't leave a mark on your record. For this reason, we recommend hiring an attorney for any complaint that enters the investigation stage, even if it's a seemingly minor offense. Your chances for the best outcome go up greatly when you do.
If the board sends an investigator to my home or practice, am I required to let them in or answer their questions.
No, you're not required to let them in or answer any questions—and in fact, you should do neither. Doing so could hurt your chances for a more positive outcome. Although you are expected to cooperate with any investigation, you have the right to defer to your attorney in such matters. If an investigator visits you in person, politely decline to give them access or answer their questions. Instead, get their contact information and inform them that your attorney will get in touch. That way, you're cooperating without hurting your advantage.
Do I need a certain kind of attorney to defend my counselor's license?
Technically, any licensed attorney can legally represent you in a license defense case, but not every attorney will give you the best advantage. A lawyer who has no experience in administrative law, for example, will probably not give you much more of an edge than if you represented yourself. Your best chance at a positive outcome happens when you hire an attorney with knowledge and experience in professional license defense cases. It's an even greater plus if your attorney has specific experience with your state licensing board.
What can a professional license defense attorney do to help me?
An attorney who is experienced and skilled in license defense will have a keen understanding of how administrative law works in your state, as well the overall disciplinary process. Your attorney will let you know what the complaint means and what is at stake, evaluate the complaint, advise you on your options, gather evidence in your defense, act as your legal representation in all interactions with the board, negotiate with the board for the best outcome, and defend you vigorously in a hearing, if necessary.
Can a professional license attorney help me get my license reinstated if it was already suspended or revoked?
Yes. Every state has its own process and criteria for reinstatement of your counselor's license, but it typically involves any/all of the following:
- Filling out an application or request
- Paying any applicable fees
- Submitting a work history of all jobs held while your license was inactive
- Providing a written explanation of why your license should be reinstated
- Demonstrating completion of any prescribed requirements (i.e., continuing education, treatment)
- Agreeing to any applicable plan of action which the board may impose
A good license attorney can help streamline this process for you by coordinating the paperwork and fees, following up with the board on the status of your application, and negotiating for the best possible terms for your reinstatement.
If my license is under investigation, am I allowed to continue my practice? Should I alter any marketing or recruiting strategies, etc.?
Unless the licensing board has issued a temporary suspension of your license during the investigation, you are allowed to continue working as a Licensed Professional Counselor until told otherwise. That said, if you are employed by a clinic or practice with other counselors, your employment is subject to their discretion, and you may have to suspend operations depending on their policies.
If you operate your own practice and business, be advised that many license investigations do not result in loss of license, especially if you have good legal representation. Thus, it's a good idea to continue with any advertising, marketing, or recruiting campaigns you have underway. There's no reason to allow your practice to start suffering financially on the basis of what might happen. Consider it “business as usual” unless and until you are notified to suspend operations.
Am I required to disclose that my professional license is under investigation? If so, what do I say?
That depends on the situation. If you have your own counseling practice, you are under no obligation to disclose that information unless you choose to do so. If the word does get out about the investigation and a client or colleague asks about it, be honest but avoid details. Avoid the temptation to tell “your side” of the story, as this may cause you to come across as defensive. Instead, simply acknowledge the investigation, inform the person that you are cooperating fully with the board, and that you intend to continue providing the best care and service possible in the meantime.
That being said, if you are employed as a licensed counselor in another facility, be aware that your employer may have policies in place that require you to disclose when you are under investigation. In that case, failing to disclose that information could cost you your position. Consult your employer's policies and procedures, so you know what they expect of you.
What becomes of my clients/patients if my license is suspended or revoked?
The best strategy, in this case, is to “hope for the best and prepare for the worst.” Your priority is to ensure your clients have somewhere else to go if they want to continue counseling. The best way to do this is to establish a referral system with colleagues. If you feel comfortable doing so, advise one or more trusted colleagues of the investigation and ask if they would be willing to take on your clients in a worst-case scenario. There's no need to inform your clients until you are notified to discontinue your practice. If your license does get suspended or revoked, contact your clients and refer them to these colleagues. This is not only the best way to ensure your clients continue to get the care they need—it may also build some trust and loyalty with your clients, which may be important if you intend to seek reinstatement at some point.
I've just received notice of a complaint or investigation against me. How soon do I need to contact an attorney?
In most cases, the sooner you involve an attorney, the better. If you wait until there is a formal hearing to hire an attorney (which some LPCs do, unfortunately), you're going into the process at a disadvantage because the board already believes it has cause to discipline you. By hiring an attorney early in the process, you have many more chances along the way to negotiate for better terms, including reduction of the penalties and even dismissal of the complaint. In many cases, by hiring an attorney early on, you can avoid the formal hearing altogether.
Your livelihood as a Licensed Professional Counselor hinges on your license, and your success depends on your reputation. If your license is put at risk, your reputation is at risk, also. Don't take chances with your career, and don't allow a single misstep or misunderstanding to derail your entire future. Hiring a professional license defense attorney now increases your chances of saving your license, and by extension, your career.
Attorney Joseph D. Lento successfully defended many licensed professionals in New Jersey and New York. He understands the disciplinary process thoroughly and knows how to position your case for the best possible outcome. If you're a licensed counselor who has been accused of professional misconduct, contact the Lento Law Firm at (888) 535-3686 today to discuss your case and your options.
