Chapter 4757-11 Denial, Suspension, Revocation of License; Disciplinary Action

4757-11-01 Denial, and disciplinary action for licenses or certificates of registration issued by the counselor, social worker, and marriage and family therapist board.

The board may refuse to admit for examination, issue, renew, or may suspend, revoke, reprimand or place restrictions on any license or certificate of registration applied for or issued under Chapter 4757. of the Revised Code, or may take other disciplinary action against any licensee or registrant, if that person has:

(A) Failed to meet the education, experience, examination, good moral character or other requirements set forth in Chapter 4757. of the Revised Code; and/or,

(B) Violated any provision of the code of ethical practice or professional conduct or committed any other violation of professional behavior contained in the rules; and/or,

(C) Committed a violation of any provision of Chapter 4757. of the Revised Code, or of rules adopted under it, including the provisions of section 4757.36 of the Revised Code; to include any of the following:

(1) Knowingly made a false statement in an application for licensure or registration, or in renewal of a license or certificate of registration;

(2) Accepted a commission or rebate for referring persons to any professionals licensed, certified, or registered by any court or board, commission, department, division, or other agency of the state, including, but not limited to, professionals in counseling, social work, or marriage and family therapy or in fields related to counseling, social work, or marriage and family therapy;

(3) Failed to comply with section 4757.13 of the Revised Code;

(4) Been denied, revoked, suspended or had restrictions placed on any license including, but not limited, to licensure to practice counseling, social work, or marriage and family therapy for any reason other than failure to renew in another state or jurisdiction;

(5) Used a controlled substance or alcoholic beverage to the extent that it impaired their ability to perform properly as a licensed professional counselor, licensed professional clinical counselor, counselor trainee, social work assistant, social worker, social worker trainee, independent social worker, marriage and family therapist, independent marriage and family therapist or marriage and family therapist trainee;

(6) Been convicted of, pled guilty to, pled no contest to, or had a judicial finding of guilt imposed in this state or in any other state of a misdemeanor committed in the course of practice as a professional counselor, professional clinical counselor, counselor trainee, social work assistant, social worker, social worker trainee, independent social worker, marriage and family therapist, independent marriage and family therapist or marriage and family therapist trainee;

(7) Been convicted of, pled guilty to, pled no contest to, or had a judicial finding of guilt imposed in this state or any other state or jurisdiction of a felony or any crime involving moral turpitude;

(8) Committed any act that could be considered a crime in the state of Ohio. The board will refer this information to local law enforcement;

(9) In the case of a licensed professional counselor licensed professional clinical counselor, or counselor trainee practiced professional counseling outside of their scope of practice;

(10) In the case of a social worker trainee, social worker or independent social worker, practiced social work outside their scope of practice, or a social work assistant who practices social work or practices outside their scope of practice;

(11) In the case of a marriage and family therapist trainee, marriage and family therapist, or independent marriage and family therapist, practiced marriage and family therapy outside their scope of practice;

(12) Sold, given away, diverted, or administered drugs for other than legal purposes; or been convicted of, pled guilty to, pled no contest to, or had a judicial finding of guilt imposed for violating any municipal, state, county or federal drug law;

(13) Been professionally diagnosed as having an impairment of the ability to practice according to acceptable and prevailing standards of professional counseling, social work, and marriage and family therapy because of a physical or mental disability or drug or alcohol addiction;

(14) Been adjudged by a probate court that the applicant for licensure, licensee, or registrant is mentally ill or mentally incompetent. The board may restore the license or registration or review the application for licensure or registration upon the adjudication by a probate court of the person's restoration to competency or upon submission to the board of other proof of competency;

(15) Engaging or aiding and abetting an individual to engage in the practice of professional counseling, social work, or marriage and family therapy without a license, while holding a license in an inactive status, or falsely using the title of counselor, social worker, or marriage and family therapist;

(16) Failure to submit any records or documents, written statements or explanations that have been requested or subpoenaed by the board;

(17) Failure to report any relevant information to the board concerning a counselor, marriage and family therapist, social worker, social work assistant, applicant, or trainee who is incapable of engaging in the practice of counseling, marriage and family therapy, or social work with reasonable skill, competence, and safety to the public, or failure to report any alleged violations of this act or rules adopted under it;

(18) Failure to cooperate in any investigation concerning allegations to his/her or another licensee's or registrant's license or registration;

(19) Failure to maintain appropriate standards of care. Standards of care shall be defined as what an ordinary, reasonable professional with similar training would have done in a similar circumstance;

(20) The counselor, social worker, and marriage and family therapist board, under the provisions of the license or registration renewal requirements set forth in rule 4757-7-01 of the Administrative Code, has the authority to discipline a licensee or registrant who:

(a) Falsifies the renewal form by stating they have completed the required thirty hours of continuing education at the time they signed the renewal, if it is proven they have not completed the continuing education at that time.

(b) When audited, cannot present proof of thirty hours of approved continuing education.

(21) Failure to adhere to any conditions set forth in a board approved adjudication order or consent agreement.

(D) One year or more after the suspension or revocation of a license or certificate of registration under this rule, the former licensee or registrant may apply and application for reinstatement may be made to the board. The board may accept or deny an application for reinstatement. If a license has been suspended or revoked, the board may require an examination for reinstatement.

(E) The board shall investigate evidence that appears to show that any person has violated any provision of this chapter or any rule of the board. In the absence of bad faith, any person who reports such information or who testifies before the board in any adjudication conducted under Chapter 119. of the Revised Code shall not be liable for civil damages as a result of the report or testimony.

(F) Information received by the board pursuant to an investigation is confidential in accordance with section 4757.38 of the Revised Code and shall not be subject to discovery in any civil action. If the investigation requires a review of client records, the investigation and proceedings shall be conducted in such a manner as to protect client confidentiality.

Effective: 11/03/2014
Five Year Review (FYR) Dates: 08/15/2014 and 11/03/2019
Promulgated Under: 119.03
Statutory Authority: 4757.10
Rule Amplifies: 4757.36
Prior Effective Dates: 2/24/86 (Emer), 5/22/86, 12/18/88, 7/3/97, 9/20/02, 4/10/04; 10/4/04; 1-1/06, 11/2/08, 10/18/09

4757-11-02 Impaired practitioner rules.

(A) For purposes of the rule, an individual licensee who accepts the privilege of practicing counseling, social work, or marriage and family therapy in this state is subject to the supervision by the board. The act of filing an application for licensure or being licensed or registered by the board, the individual has given consent to submit to a mental or physical examination, at the individual's expense when ordered to do so by the board in writing, and to have waived all objections to the admissibility of testimony or examination of reports that constitute privileged communications.

(B) If the professional standards committee receives information by the filing of a verified complaint with the board office or upon its own information that a licensee or registrant, be it either a counselor's, a social worker's, or a marriage and family therapist's ability to practice has fallen below the acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances or other physical or mental impairments that impair their ability to practice, the professional standards committee may order the licensee to submit to a mental or physical examination at the licensee's expense conducted by a designee of the board for the purpose of determining if there is an impairment that is posing a threat to the licensee's well-being or the treatment of a client whom the licensee or registrant serves.

(C) Failure of the individual licensee or registrant to submit to a mental or physical examination order by the professional standards committee constitutes an admission of the allegations against the individual licensee or registrant unless the failure is due to circumstances beyond the individual's control.

(D) If the professional standards committee determines that the individual's ability to practice is impaired the following actions shall be taken:

(1) The professional standards committee shall suspend or place restrictions on the individual's license or registration to practice; or

(2) Deny the individual's application for licensure or registration and require the individual to submit to treatment; or

(3) Other requirements as a condition for initial, continued, reinstated or renewed licensure or registration to practice.

(E) The professional standards committee at its discretion shall:

(1) Contract with providers of impaired treatment programs.

(2) Receive and evaluate reports of suspected impairment from any source.

(3) Intervene in cases of verified impairment.

(4) Monitor treatment and rehabilitation of the impairment.

(5) Provide post-treatment monitoring and support.

(6) Provide other functions as necessary to carry out the provisions of this rule.

(7) Make amendments, if necessary, to the treatment program's findings.

(F) The professional standards committee approved treatment program shall:

(1) Receive relevant information from the board office and other sources regarding the potential impairment.

(2) Report in a timely fashion any impaired counselor, social worker, or marriage and family therapist:

(a) Who refuses to cooperate with an evaluation or investigation.

(b) Who refuses to submit to treatment/rehabilitation.

(c) Whose impairment is not substantially alleviated through treatment.

(d) Who in the opinion of the evaluators is unable to practice counseling, social work, or marriage and family therapy with reasonable skill and safety.

(3) Provide confidentiality of non-public information of the review process.

(4) Provide an initial report of the nature, severity, and progress of the impairment.

(5) Provide periodic reports, at a rate determined by the board concerning the counselor's, social worker's, or marriage and family therapist's progress.

(6) Provide a final report including the treatment outcome and a finding as to the counselor's, social worker's, or marriage and family therapist's fitness to practice.

(7) Follow any requirements outlined in a formal agreement the licensee, registrant or applicant for licensure has entered into with the board.

Effective: 10/18/2009
R.C. 119.032 review dates: 06/12/2009 and 09/20/2014
Promulgated Under: 119.03
Statutory Authority: 4757.10
Rule Amplifies: 4757.10
Prior Effective Dates: 7/3/97, 9/20/02, 4-10-04; 10-1-04

4757-11-03 Internal records management to maintain confidentiality.

(A) All investigatory records are considered confidential and access to these records is strictly on a need-to-know basis. Access to these records is open to the investigation unit staff, the compliance coordinator, board members, the board's designated representative from the Ohio attorney general, and the board's executive director. Other staff of the board do not have access to the investigation records without the prior approval of the executive director, a board member, or the deputy director. There are occasions when investigation records will need to be viewed by expert witnesses, board-approved compliance monitors or hearing officers. These individuals shall be pre-approved by the board's executive director or deputy director before access is permitted.

(B) All investigation files shall be maintained in the offices of the investigation staff.

(C) Investigation records shall be secured in locked file cabinets within the office of the investigation unit. It is the responsibility of the deputy director, or their designee, to ensure that all cabinets are secured at the end of each day. The investigation unit's staff will ensure all files removed from the file cabinets that are to be worked on are monitored while in their possession and returned to the locked cabinet at the end of the day. Completed investigative files shall be scanned into the board's document management system for permanent storage in a folder with limited access per paragraph (A) of this rule.

(D) While investigation records are strictly confidential, records received by the board that present evidence of criminal activity may be turned over to the appropriate law enforcement agency.

(E) If investigatory records are to be released to another Ohio state agency or to an agency of another state, that entity shall sign an agreement that those records will remain confidential and not releasable. This agreement shall be signed before any records are released to the entity.

(F) Any and all records obtained in the course of an official investigation shall not be subject to subpoena provided, however, the board shall be authorized to release such records to another enforcement agency or lawful licensing authority.

(G) If a licensee is the subject of a board inquiry, all records relating to any person who receives services rendered by that licensee in his/her capacity as a licensee shall be admissible at any hearing held to determine whether a violation of this chapter has occurred. Documentary evidence relating to a person who received those services shall be reviewed in camera and shall not be disclosed to the public.

Effective: 01/01/2013
R.C. 119.032 review dates: 10/12/2012 and 12/17/2017
Promulgated Under: 119.03
Statutory Authority: 4757.38
Rule Amplifies: 4757.38
Prior Effective Dates: 7-3-97; 9-20-02, 9/20/07

4757-11-04 Hearing procedures.

(A) Representatives; appearances; communications; applicability

(1) As used in this chapter of the Administrative Code, "respondent" shall be defined as the person who is requesting or has requested a hearing pursuant to Chapter 119. of the Revised Code.

(2) The respondent may represent himself/herself or may be represented by an attorney admitted to the practice of law in Ohio. If the respondent does represent himself/herself, he/she shall be deemed the representative of record for purposes of this chapter of the Administrative Code.

(3) The respondent is not required to personally appear at any hearing provided he/she has not been subpoenaed and has authorized his/her representative to represent him/her in all facets of a hearing before the board.

(4) The respondent or his/her representative may present his/her position, arguments, or contentions in writing rather than personally appearing at any hearing provided the respondent has not been subpoenaed.

(5) One who has entered an appearance as representative remains the representative of record unless and until a written withdrawal is filed with the board.

(6) Except as otherwise provided under Chapter 119. of the Revised Code, communications from the board or its attorney hearing examiner shall be sent to the representative of record.

(7) The members of the board shall base their decisions on any matter subject to hearing only on the evidence of record. No information acquired by a member of the board in any way other than by review of the evidence of record shall be considered in that member's decision on a matter subject to hearing. The receipt of information about a matter subject to hearing outside the evidence of record shall not disqualify the member from participating in the decision on that matter unless that member excuses himself/herself from participation in the decision on the ground that he/she cannot restrict his/her decision on the matter only to the evidence of record.

(8) Except as otherwise provided under this chapter or by statute, no attorney hearing examiner or member of the board shall initiate or consider ex parte communications concerning a pending or impending adjudicatory proceeding. Nothing contained herein, however, shall preclude the attorney hearing examiner from nonsubstantive ex parte communications on procedural matters and matters affecting the efficient conduct of adjudicatory hearings.

(9) Except as otherwise provided under this chapter or by statute, a rule promulgated under this chapter shall apply only to those administrative proceedings for which the notice of opportunity for hearing was mailed to the respondent, or his/her representative, on or after the effective date of this particular rule.

(10) If any provision of the rules in this chapter is held or if the application of any provision of the rules in this chapter to any person or circumstance is held invalid, the invalidity does not affect any other provision of the rules in this chapter, or the application of any other provision of the rules in this chapter, that can be given effect without the invalid provision or application, and, to this end, the provisions of the rules in this chapter are hereby declared severable.

(B) Filing request for hearing

(1) In order to request a hearing under Chapter 119. of the Revised Code, a respondent or his/her representative shall file in writing a statement requesting such adjudication hearing within thirty days of the date of mailing of the board's notice of opportunity for hearing. The date of mailing shall be the date appearing on the certified mail receipt.

(2) A respondent or his/her representative properly filing a request for an adjudication hearing shall be entitled to such adjudication hearing within fifteen days but not sooner than seven days after such request has been filed unless both parties agree or a continuance is granted pursuant to section 119.09 of the Revised Code.

(C) Authority and duties of attorney hearing examiners

(1) Adjudication hearings may be conducted before an attorney hearing examiner pursuant to Chapters 4757. and 119. of the Revised Code.

(2) All hearings shall be open to the public, but the hearing examiner conducting a hearing may close the hearing to the extent necessary to protect compelling interests and rights or to comply with statutory requirements. In the event the hearing examiner determines to close the hearing, the hearing examiner shall state the reasons therefore in the public record.

(3) The hearing examiner shall conduct hearings in such a manner as to prevent unnecessary delays, maintain order, and ensure the development of a clear and adequate record.

(4) The authority of the attorney hearing examiner shall include, but not be limited to, authority:

(a) Administer oaths and affirmations;

(b) Examine witnesses and direct witnesses to testify;

(c) Make rulings on the admissibility of evidence;

(d) Make rulings on procedural motions, whether such motions are oral or written;

(e) Hold prehearings and status conferences;

(f) Request briefs before, during or following the hearing, as well as suggested findings, orders, and conclusions of law within such time limits as the attorney hearing examiner may determine;

(g) Prepare entries, findings, orders, or reports and recommendations;

(h) Request preparation of entries, findings, or orders;

(i) Make rulings on requests to broadcast, record, televise or photograph the hearing;

(j) Determine the order in which any hearing shall proceed;

(k) Take such actions as may be necessary to accomplish the purpose of paragraph (C) of this rule.

(5) The authority of the attorney hearing examiner shall not include authority to:

(a) Grant motions for dismissal of charges;

(b) Modify, compromise, or settle charges or allegations.

(6) The attorney hearing examiner shall have such powers, duties, and authorities as are granted by statutes or rules.

(7) All rulings on evidence and motions and on any other procedural matters shall be subject to review by the board upon presentation of the proposed findings of fact and conclusions of law of the attorney hearing examiner. When such rulings warrant, the matter may be remanded to the attorney hearing examiner.

(D) Continuance of hearing

(1) The board shall initially continue a hearing upon its own motion for a period of not less than thirty days in order to more efficiently conduct its business unless the circumstances establish that a continuance would not serve the interest of justice.

(2) The executive director of the board may continue a hearing upon the written motion of a representative of record.

(3) Hearings shall not be continued upon motion by a representative of record unless a showing of reasonable cause and proper diligence is presented. Before granting any continuance, consideration shall be given to harm to the public that may result from delay in proceedings. In no event will a motion for a continuance by a representative of record, requested less than five days prior to the scheduled date of the hearing, be granted unless it is demonstrated that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a continuance.

(4) If a continuance is granted, the board's executive director shall immediately establish a new hearing date, unless circumstances prohibit.

(5) Hearings may be continued due to the unavailability of a subpoenaed witness at the discretion of the attorney hearing examiner. The attorney hearing examiner may hold the record open to accept a deposition in lieu of live testimony of a subpoenaed witness.

(E) Notice of hearings: notice specifying the date, time, and place set for hearing shall be mailed by certified mail to the representatives of record.

(F) Transcripts: duplicate transcripts of the stenographic record taken at hearing may be obtained directly from the court reporter at the requestor's expense.

(G) Subpoenas for purposes of hearings

(1) Upon written request of either party, the board shall issue subpoenas of hearing to compel the attendance and testimony of witnesses and production of books, records and papers at the administrative hearing. Each subpoena shall indicate on whose behalf the witness is required to testify.

(2) For purposes of a hearing conducted under Chapter 119. of the Revised Code, subpoena requests shall specify the name and address of the individual to be served and the date, time and location at which they are to appear at the administrative hearing. If the subpoena includes a duces tecum request, the specific documents or tangible things to be produced at the administrative hearing shall be listed in the request.

(3) Except upon leave of the executive director, subpoena requests are to be filed with the board at least fourteen days in advance of the requested date of compliance in order to allow sufficient time for preparation and service of the subpoenas.

(4) In the event that the number of subpoenas requested appears to be unreasonable, the board or its attorney hearing examiner may require a showing of necessity therefore, and, in the absence of such showing, may limit the number of subpoenas. Absent such a limitation, subpoenas shall be issued within five days of request. Failure to issue subpoenas within this time may constitute sufficient grounds for the granting of a continuance.

(5) After the hearing has commenced, the board or its attorney hearing examiner may order the issuance of subpoenas for purposes off hearing to compel the attendance and testimony of witnesses and production of books, records, and papers.

(6) Upon motion and for good cause, the board's executive director or its attorney hearing examiner may order any subpoena be quashed. The board shall make a reasonable attempt to contact any witness whose subpoena has been quashed.

(H) Reports and recommendations

(1) Within forty-five days following the close of an adjudication hearing conducted pursuant to Chapter 119. of the Revised Code, the attorney hearing examiner shall submit a written report setting forth proposed findings of fact and conclusions of law and a recommendation of the action to be taken by the Board.

(2) A copy of such written report shall be issued to the respondent and the representatives of record. The respondent and/or the respondent's representative of record may, within ten days of receipt of the attorney hearing examiner's report and recommendations, file written objections to the report and recommendations. Only those objections filed in a timely manner shall be considered by the board before approving, modifying, or disapproving the attorney hearing examiner's recommendations.

(3) The board shall consider the attorney hearing examiner's report and recommendations and any objections at its next regularly scheduled meeting after the time for filing objections has passed. At that time, the board may order additional testimony to be taken or permit the introduction of further documentary evidence, or act upon the report and recommendations. For purposes of taking such additional testimony or documentary evidence, the board may remand to the attorney hearing examiner

(4) Without leave of the board, the respondent or any representative of the respondent of record shall not be permitted to address the board at the time of consideration of the attorney hearing examiner's report and recommendations. Any request for such leave shall be filed by motion no less than five days prior to the date the report and recommendations is to be considered by the board and shall be served upon the representative of record.

(5) If a request to address the board is granted, the opposing representative may also address the board.

(I) Exchange of documents and witness lists

(1) Any representative of record may serve upon the opposing representative of record a written request for a list of both the witnesses and the documents intended to be introduced at hearing. Within twelve business days of service of that request, the opposing representative shall provide a response to the requesting representative. All final lists requested under this rule shall be exchanged no later than seven business days prior to the commencement of the administrative hearing

(2) Failure without good cause to comply with paragraph (I)(1) (A) of this rule may result in exclusion from the hearing of such testimony or documents, upon motion of the representative to whom disclosure is refused.

(J) Prior action by state of Ohio counselor, social worker and marriage and family therapist board: the attorney hearing examiner shall admit evidence of any prior action entered by the state of Ohio counselor and social worker board against the respondent, including formal disciplinary action or warning letters.

(K) Stipulation of facts: Representatives of record may, by stipulation, agree on any or all facts involved in proceedings before the attorney hearing examiner. The attorney hearing examiner may thereafter require development of any fact deemed necessary for just adjudication.

(L) Witnesses

(1) All witnesses at any administrative hearing or during any deposition in lieu of live testimony at hearing shall testify under oath or affirmation.

(2) A witness may be accompanied and advised by legal counsel. Participation by counsel for a witness other than the respondent is limited to protection of that witness's rights, and that legal counsel may neither examine nor cross-examine any witness.

(3) Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the state of Ohio counselor and social worker board may institute contempt proceedings pursuant to section 119.09 of the Revised Code.

(4) Any representative of record may move for a separation of witnesses. Expert witnesses shall not be separated.

(5) No witness shall be permitted to testify as to the nature, extent, or propriety of disciplinary action to be taken by the board. A witness may, in the discretion of the attorney hearing examiner, testify as to an ultimate issue of fact.

(M) Conviction of crime: a certified copy of a plea of guilty to, or a judicial finding of guilt of any crime in a court of competent jurisdiction is conclusive proof of the commission of all of the elements of that crime.

(N) Evidence: the "Ohio rules of evidence" may be taken into consideration by the board or its attorney hearing examiner in determining the admissibility of evidence, but shall not be controlling.

(O) Reinstatement of license registration: any disciplinary action taken by the board which results in suspension from practice shall either lapse by its own terms or contain a written statement of the conditions under which the license or registration may be reinstated. Such conditions may include, but are not limited to:

(1) Submission of a written application for reinstatement;

(2) Payment of all appropriate fees as provided in Chapter 4757. of the Revised Code;

(3) Mental or physical examination, at the expense of the respondent;

(4) Additional education or training;

(5) Re-examination;

(6) Practice limitation;

(7) Participation in, and successful completion of, appropriate mental health treatment programs;

(8) Demonstration that the licensee can resume practice in compliance with acceptable and prevailing standards;

(9) Supervision, at the respondent's expense, by an appropriate supervisor as determined by the board;

(10) Satisfactory completion of all terms, conditions or limitations placed upon the licensee through a board approved consent agreement or adjudication order.

R.C. 119.032 review dates: 10/12/2012 and 09/20/2017
Promulgated Under: 119.03
Statutory Authority: 4757.10
Rule Amplifies: 4757.36 , 4757.38
Prior Effective Dates: 9-20-02