Counseling the Unlicensed Counselor
Paul M. Floyd
August 15, 2003
Paul M. Floyd, Contributing Author.
Mr. Floyd is a partner in the Minneapolis law firm of Wallen-Friedman & Floyd. He provides legal counsel to individuals and businesses on contracts, partnership and shareholder agreements, and other business, corporate, and professional practice
issues. He also practices in estate planning for small estates.
Effective July 1, 2003, Minnesota has a licensed professional counselor statute (LPC),1 governing the licensure and conduct of professional counselors.2 The new law has changed the way professional counselors are regulated as an occupation in Minnesota—from one of non-licensure to licensure. Under the new law, all persons who provide professional counseling services in Minnesota must be licensed no later than July 1, 2004. For attorneys who advise professional counselors and similar mental health service providers, whether they are licensed or not, the law regarding licensure and potential civil liability for the unlicensed counselor has become much clearer. For those who advise clergy, the LPC law should bring simplicity to the issue of who must comply with the law, a subject that was previously confusing and potentially risk laden.
This article will summarize the statutory scheme and scope of the law in effect prior to the enactment of the new statute, provide an overview of the primary provisions of the new law, and discuss the scope and likely impact of the new law on unlicensed counselors and others who provide some form of professional counseling or coaching services to clients.
I. The Old Law—The Unlicensed Mental Health Practitioner Act and the Office of Mental Health Practice
Before the LPC statute, the counselor who provided patients with mental health counseling services could elect to become licensed under one of a myriad of licensing boards or could be unlicensed under the Unlicensed Mental Health Practitioner Act (UMHPA) and subject to the jurisdiction of the Office of Mental Health Practice. See Minn. Stat. §§ 148B.60-71 (2002).
The UMHPA is a rather unusual creature with many potential pitfalls and traps for the person who provides for a fee what the statute defines as "mental health services." Illustrative of the scope of the law, the Minnesota appellate courts have interpreted the statute broadly in a number of decisions arising out of a church staff pastor’s sexual relations with a parishioner that occurred in the context of providing counseling to the parishioner. See Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn. 2002) (holding that the UMHPA provided neutral principles of law to apply in a negligence action against a member of the clergy whom the court held was actively involved in providing mental health counseling and was found to be unprotected counseling); Odenthal v. Minn. Conference of Seventh-Day Adventists, 657 N.W.2d 569, 577 (Minn. App. 2003) (holding that a district court has subject-matter jurisdiction over a claim of vicarious liability for negligent secular counseling against a religious institution).
Although the law seemed to exclude clergy who provided pastoral counseling to parishioners, the courts had no problem finding that the counseling methodology, technique, and approach were more akin to secular counseling than to spiritual counseling. Consequently, the Minnesota Court of Appeals has uniformly held that the pastor was a "mental health counselor" as defined in the UMHPA when he held himself out as a "counselor" or when he provided "counseling" to his parishioners. As such, the pastor and his employer were subject to the same rules and regulations, as well as potential tort liability for negligent counseling, as any secular counselor. See J.M v. Minnesota District Council of the Assemblies of God, 658 N.W.2d 589 (Minn. App. 2003) (stating that "the Minnesota Supreme Court held [in Odenthal] that a determination of whether a minister was providing services equivalent to psychotherapy, such that he was an unlicensed mental health practitioner for purposes of chapter 148B of the Minnesota Statutes, does not excessively entangle the court in religion").
Furthermore, the UMHPA defines "mental health services" so broadly that virtually anyone who provides another person with any type of counseling services for a fee (excluding those who are already subject to another licensure or regulatory oversight board or office)—no matter what the person might call the particular services (such as personal coaching, direction, guidance)—is likely to fall within the purview of the statute. The statutory language is extremely broad in scope and reads in pertinent part:
Mental health services means psychotherapy and the professional assessment, treatment or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including intrapersonal or interpersonal dysfunctions.
Minn. Stat. § 148B.60, subd. 4 (2002).3
The Minnesota Department of Health’s Office of Mental Health Practice (OMHP) has also interpreted the statute very broadly.4 For example, a recent front page exposé in Minnesota Monthly, entitled "Scandal Behind the Office Door: Did This Therapist Cross the Line?,"5 concerned a controversial professional counselor who was stripped of his license and ordered not to practice marriage and family therapy or work as an unlicensed mental health practitioner. The counselor simply changed his title to "coach" and continued to counsel clients. In the article, the OMHP took the position that it did not matter what he called his services (e.g., coaching), his conduct was still governed by the UMHPA.
Consequently, using the title of "coach," "director," "guide," or "advisor" will not 6
automatically remove one from the ambit of the statute. Moreover, adding a descriptive label to further define the type of coaching, direction, guidance, and advising (e.g., "personal coach," "life coach," "spiritual director," "personal advisor") will not automatically exclude one’s professional services from the reach of this statute. Instead, one must look closely at the type of services being provided. If those services involve something more than education and primarily involve an individual in one-on-one or small group settings—such as advising or directing the client on how to live or conduct his or her life or how to process any number of life issues—then the UMHPA will likely apply.
A Summary of Compliance Under the Unlicensed Mental Health Practitioner Act
Because the UMHPA is a non-licensing law, the counselor does not need to comply with any licensing, credentialing, educational training, or other qualification prerequisites before providing a client with professional counseling services. The practitioner also need not pay any fee to, or even register with, the state. Instead, the law merely requires that the mental health practitioner provide the client with a statutorily defined "Client’s Bill of Rights" and be subject to an investigative and disciplinary process if the OMHP were to receive a complaint arising out of the professional counseling services provided to a client or related to the conduct of the practitioner. At that point, the OMHP has statutory jurisdiction to subject the unlicensed mental health practitioner to an investigation and a contested case proceeding. If the patient’s claims are established under the applicable law, then OMHP may subject the counselor to various disciplinary actions as set forth in the statute, including suspension or prohibition of his or her right to provide mental health services in Minnesota. See Minn. Stat. § 148B.67 (2002).
Mental Health Client’s Bill of Rights
The statute spells out what is required to be included in the Client’s Bill of Rights. See Minn. Stat. § 148B.71 (2002). While most of the list of rights is self-explanatory, the mental health practitioner or professional counselor should be informed of the requirement of maintaining and complying with the state law on patient medical records. The files and records maintained by the mental health practitioner are considered to be patient medical records under Minn. Stat. § 144.335 (see Minn. Stat. § 144.335, subd. 2, for the statutory law regarding patient access to health records and reports). Thus, according to well-established Minnesota law, the patient’s records are subject to certain strict confidentiality protections, as well as certain maintenance requirements. Moreover, the patient is entitled to access those records in the possession of the mental health practitioner.
Prior to receiving services, the client must sign a written statement attesting that the client has received the Client’s Bill of Rights. In the area of managed care, the unlicensed mental health practitioner is probably well aware of this requirement, so compliance with this statutory requirement is routine. But those persons who work outside managed care—such as clergy or those who are providing clients with "personal coaching" on a fee-for-service basis—need to pay special attention to providing the client with the Client’s Bill of Rights.
Finally, a copy of the Client’s Bill of Rights is required to be posted in a prominent location in the office of the mental health practitioner.
Compliance with Ethical Code of Conduct and Prohibited Conduct
The UMHPA codified a specific ethical code of conduct in the form of at least 23 specifically prohibited actions. If an unlicensed mental health practitioner violates any of the prohibited matters, he or she is subject to discipline, including:
(1) Revoke the right to practice;
(2) Suspend the right to practice;
(3) Impose limitations or conditions on the practitioner’s provision of mental health services, the imposition of rehabilitation requirements, or the requirement of practice under supervision;
(4) Impose a civil penalty not exceeding $10,000 for each separate violation, the amount of the civil penalty to be fixed so as to deprive the practitioner of any economic advantage gained by reason of the violation charged or to reimburse the office of mental health practice for all costs of the investigation and proceeding;
(5) Order the practitioner to provide unremunerated professional service under supervision at a designated public hospital, clinic, or other health care institution;
(6) Censure or reprimand the practitioner;
(7) Impose a fee on the practitioner to reimburse the office for all or part of the cost of the proceedings resulting in disciplinary action including, but not limited to, the amount paid by the office for services from the office of administrative hearings, attorney fees, court reports, witnesses, reproduction of records, staff time, and expense incurred by the staff of the office of mental health practice; or
(8) Any other action justified by the case.
Minn. Stat. § 148B.69 (2002).
As a part of the law, "an unlicensed mental health practitioner who is the subject of an investigation, or who is questioned in connection with an investigation, by or on behalf of the office of mental health practice, shall cooperate fully with the investigation." Minn. Stat. § 148B.66. If the practitioner refuses to cooperate, he or she may be subject to discipline and may be subject to a civil penalty of up to $10,000 for each such violation. Cooperation is defined in the law as "responding fully and promptly to any question raised by or on behalf of the office relating to the subject of the investigation, whether tape recorded or not, and providing copies of client records, as reasonably requested by the office, to assist the office in its investigation, and appearing at conferences or hearings scheduled by the commissioner."
Consequently, if a complaint is filed with the OMHP for any reason, the practitioner should retain legal counsel immediately so that he or she can protect his or her rights to practice, while at the same time meeting the cooperation requirement of the law.7
As of May 15, 2003, there were at least 23 persons against whom the OMHP has taken disciplinary action and their names were listed on the Minnesota Department of Health, Office of Mental Health Practice disciplinary action Web page.
II. The New Law—The Licensed Professional Counseling Act
An Overview of the LPC Act
While approximately 40 other states have enacted statutory licensing boards for professional counselors, Minnesota has been slow to follow this trend. The Legislature passed legislation on the subject in 1996, but Gov. Arne Carlson vetoed the bill and expressed reservations about creating another regulatory board.9 With the passage of the LPC law, Minnesota comes more in line with how other states regulate the area of professional counseling.
Moreover, the terms used in the LPC statute are generally well defined in the field of counseling. Thus, there likely will be precedent from other states as to how the terms used in the statute are to be interpreted by the licensing boards, state agencies, and the courts.
The LPC statute also establishes a licensure and oversight procedure for professional counselors and creates a board of licensed professional counselors to implement the law. After the board adopts rules, the unlicensed practice of professional counseling and the use of titles including the words "licensed professional counselor" or "LPC" by unlicensed persons are prohibited.
Better Protection for Members of the Public Who Seek Professional Counseling Services
The LPC law is meant to protect persons who seek professional counseling services by ensuring that licensed professional counselors have met entry level-standards of education, experience, and examination, and possess good moral character before becoming licensed in Minnesota. Additionally, and possibly just as important, any professional whose license in another profession has been revoked or surrendered will no longer be able to continue to practice counseling as an unlicensed mental health practitioner. Requiring professional counselors to be licensed will in turn require that each person be registered with the state. If that person’s license is ever revoked, suspended, or surrendered, the State of Minnesota will have a record and can notify other state regulatory agencies and out-of-state boards if the person attempts to provide counseling services again.
Furthermore, the LPC law is not likely to be read to prohibit or limit individuals, churches, schools, teachers, organizations, or not-for-profit businesses from providing instruction, advice, support, encouragement, or information to individuals, families, or relational groups. See Minn. Stat. § 148B.592, subd. 3 (excluding government agencies and educational institutions) and § 148B.592, subd. 7 (excluding activities and services of nonprofit organizations and charities).
Defining the Scope of Practice for Licensed Professional Counseling
The LPC law defines the scope of practice for licensed professional counseling as follows:
(a) The scope of practice of a licensed professional counselor includes, but is not limited to:
(1) the implementation of professional counseling treatment interventions including evaluation, treatment planning, assessment, and referral;
(2) direct counseling services to individuals, groups, and families;
(3) counseling strategies that effectively respond to multicultural populations;
(4) knowledge of relevant laws and ethics impacting practice;
(5) crisis intervention;
(6) consultation; and
(7) program evaluation and applied research.
(b) For the purposes of paragraph (a), clause (1), "professional counseling treatment interventions" means the application of cognitive, affective, behavioral, systemic, and community counseling strategies which include principles of human development, wellness, and pathology. Counselors provide mental health services for clients whose symptoms significantly interfere with daily functioning and would most likely not improve in a reasonable time period without intervention.
Minn. Stat. § 148B.50, subd. 5 (2003).
Clearly, if a person performs services within the scope of practice listed above, the person must become licensed as a professional counselor by July 1, 2004, seek an exclusion under another occupational licensure law, or establish that the activities or services being performed are the performance of an act that licensed professional counselors are not educated or trained to perform. This last category of exclusion is worth a closer look when it comes to advising unlicensed mental health practitioners who do not perform traditional mental health counseling.
The LPC Law Does Not Apply to Clergy and Others Who Do Not Practice Professional Counseling
Whereas the UMHPA was frequently read broadly to include clergy and others who "counseled" their parishioners or clients, under the LPC law, most clergypersons’ conduct, even if it is self-described as "spiritual counseling" or "pastoral counseling," will be excluded.10 By its own terms, the LPC law does not apply to clergy who can establish either:
(a) that their activities and services are within the scope of the performance of regular or specialized ministerial duties (see Minn. Stat. § 148B.592, subd. 6); or
(b) that the person is providing any act that licensed professional counselors are not educated or trained to perform (see Minn. Stat. § 148B.50, subd. 5(c)).
For most pastors, clergy, and others who provide some form of spiritual or pastoral counseling or spiritual direction, the replacement of the unlicensed mental health practitioner statutory scheme with the LPC law should make it much easier to determine whether or not the person’s acts would require licensure as a professional counselor and subject him or her to the investigative and disciplinary arm of the newly created Board of Behavioral Health and Therapy.
In most instances, if the person is truly providing the client with spiritual direction or spiritual guidance, then the spiritual director or counselor would not be subject to the new law, for these are matters for which licensed professional counselors are not educated or trained.
Those persons who are currently unlicensed mental health practitioners or who arguably provide some form of counseling services but for acts that licensed professional counselors are not educated or trained to perform (e.g., possibly hypnotists, holistic therapists, and vocational or personal life coaches), also would be excluded from the LPC law.
As of July 1, 2004, the Unlicensed Mental Health Practitioner Act expires and the Office of Mental Health Practice is abolished. Consequently, if your client is currently an unlicensed mental health practitioner or counselor, he or she will need to become licensed either under the LPC statute or other similar counseling licensure laws (e.g., social work, marriage and family therapy, nursing, psychology, etc.), or ensure that the counseling services qualify as an act that licensed professional counselors are not educated or trained to perform.
1 Minn. Stat. 2002 Reg. Session Laws, Chapter 118, to be codified at Minn. Stat. Ch. 148B.50-592.
2 The LPC statute defines "professional counselor" as a person who holds a license to engage in the practice of licensed professional counseling, see Minn. Stat. § 148B.591. The term "licensed professional counseling" is defined as "the application of counseling, human development, and mental health research, principles, and procedures to maintain and enhance the mental health, development, personal and interpersonal effectiveness, and adjustment to work and life of individuals and families." See Minn. Stat. § 148B.50, subd. 4.
3 The Board of Unlicensed Mental Health Service Providers has enacted rules to further define and clarify what the board interprets to be included and excluded from the statutory term "mental health services." See Minn. Rule 9000.0100, subpart 4.
4 According to the OMHP Web site, "The Office of Mental Health Practice (OMHP) was established in 1991 for consumers receiving mental health services from practitioners who fall outside of the licensing authorities for Minnesota psychologists, social workers, marriage and family therapists, and psychiatrists (physicians), nurses and alcohol and drug counselors." See http://www.health.state.mn.us/divs/hpsc/hop/omhp (as of 5/15/03).
5 See A. Steiner, Sexual Healing, Minnesota Monthly, April 2003, at 32.
6 This position is consistent with the rules adopted by the Board of Unlicensed Mental Health Service Providers. See Minn. Rule 9000.0100.
7 For an article on the procedures and practical tips on representing health professionals before licensing boards, see L. Jesson & D. Mande, Representing Health Professional Before Licensing Boards, Bench & Bar of Minnesota, Dec. 2001.
8 See http://www.health.state.mn.us/divs/hpsc/hop/omhp/omhpdisp.html (on 5/15/03).
9 See M. Morrissey, Licensure Bill Vetoed by Minnesota Governor (http://www.counseling.org/ CTOnline/archives/minnesot.htm)(5/15/2003) for a good discussion of the facts surrounding Governor Carlson’s veto of House File 66—the 1996 proposed law on licensed professional counselors.
10 This was presumably the intended result of Minn. Rule 9000.01000, subpart 4 (C) wherein the Board of Unlicensed Mental Health Service Providers expressly excluded "spiritual counseling or pastoral care of a congregation, or a congregation member, by clergy when the care is not related to the provision of mental health services" as defined in subpart 4(A) of Rule 9000.01000.