The mission of occupational licensing boards is public protection. In essence, that means a licensing board exists to ensure that unqualified persons do not practice in a profession. Licensing boards do this by applying a set of standards to determine minimum qualifications. Supporting licensees and applicants is important, but protecting the public is the first order of business.
A board should not be working against the profession it regulates; however, it is also not working to promote it. Understanding this helps to explain some of the decisions a professional licensing board makes. Although the board wants to support licensees as much as possible, it has to balance its public protection role with an obligation not to interfere with the appropriate practice of the licensed professions.
Boards are created by an act of law. The state passes enabling legislation that gives the board the authority to act. Laws can be influenced by the board and stakeholders, including licensees. Nonetheless, once laws are enacted, they can be very inflexible and difficult to change. Those changes that do occur must be carefully considered to avoid negative consequences.
Licensing boards develop rules and regulations that are the means by which the law is put into effect. These rules lay out the details of what the law authorizes. In Ohio, the Joint Committee on Agency Rule Review, a committee of the state’s House and Senate, approve such rules after a period of public comment and review. This body ensures that licensing rules conform to the law and that the board is properly fulfilling its duties.
Generally speaking, rules are more flexible, and therefore can be changed as circumstances require. For example, a board may implement a rule regarding social media in response to concerns over its use. The rule is developed based upon laws regarding professional boundaries that do not specifically mention social media but that provide a conceptual framework for regulating how professionals manage boundaries with clients. In setting rules, a board is attempting to address issues and questions that arise for its licensees or to act responsively to current developments within the profession, with the goal of balancing the needs of the public and licensees.
Policy is another area in which requirements can be established. Policy rounds out the details on the rules and often addresses processing issues. For example, a board may have a policy regarding how it can be notified of a name change or how documents may be submitted — for instance, via email or postal mail. A board establishes policy, although it may be implementing policy from another authority, such as a gubernatorial administration. Policy is very flexible and subject to relatively rapid change. However, policy cannot be established that would be considered contrary to the law or rules.
Boards usually complete their work through a variety of committees. In the case of Ohio, there are three professional standards committees, one for each profession (counseling, social work, and marriage and family therapy), in addition to other standing and ad hoc committees. The committees review applications using the law and rules as a basis for their decisions, respond to practice questions, review investigations and provide specific, professional expertise that assists board staff in enforcing the laws and rules.
Boards and commissions usually have an investigation and enforcement obligation and, therefore, often have a unit working in these areas. Laws and rules concerning ethical standards of practice must be enforced for licensees and, depending on the state and its laws, for those who are not licensees but who claim to be a licensed professional. The perceived threat of investigation or sanction of one’s license following an investigation is often of great concern to licensees. Moreover, the investigative process may frustrate licensees if they feel a complaint is unfounded.
Although some discretion exists regarding how a board can act at the conclusion of an investigation, the board’s public protection role must ensure that persons who are a threat to the public are not allowed to practice without consequences. Consequences can be minor. For instance, a licensee might receive a written warning that something in his or her professional behavior was suggestive of unethical practice (e.g., a pattern of failing to keep case notes up to date or taking notes home when those notes should be kept private and confidential).
In some extreme cases of ethical violations, a board also has the right to suspend or revoke a professional’s license. It is important for licensees to know, however, that complaints are treated carefully and respectfully and that investigators and board members bring an open mind to an investigation. Just because a licensee is named in a complaint does not mean that he or she is necessarily seen as having violated professional ethical standards. Board members regularly engage in lively dialogue about ethics issues within the profession. These discussions, which are sensitive to the board’s rules and regulations but also represent a diversity of perspectives, inform decisions that involve licensees.
Licensing boards also have a compliance function. This is the activity that occurs after a licensee is disciplined. Compliance staff ensure that licensees properly follow consent agreements or other disciplinary tools — for example, random drug testing or additional training and supervision. The compliance process is in place to protect the public, while also helping licensees to regain their right to practice. The compliance function also assists in setting expectations as compliance practices are discussed among licensees.
Boards are affected by the administrative and political environment. Most regulatory boards, at least in the U.S., are public or quasi-public bodies. For this reason, boards cannot ignore the interests and issues of leading elected officials, which naturally form part of the decision-making environment. These officials’ key policy preferences can result in boards supporting certain rules or policies. For example, if an administration places great value on assisting veterans, the board might create a processing preference for veterans to ensure they are quickly licensed and ready to find employment.
It may surprise people to know that customer service is an important aspect of regulating. By answering questions and working with applicants and licensees, the board gains a critical impression regarding what is occurring in the field. Questions regarding ethics can point to a need to change regulations. Additionally, by providing quality customer service through calls and correspondence, boards ensure that licensees and applicants have the information they need to make the best possible choices regarding their practice.
A key role for boards involves providing education and information. This may be accomplished by providing ethics trainings, consumer pamphlets and publications, and updates on relevant laws that may affect practitioners. Although not formal opinions or pronouncements, trainings and similar activities can help enforce the laws and rules by addressing questions and delivering critical messages. Additionally, board staff can gain an understanding of the issues licensees are confronting, which in turn helps the board to make adjustments to laws, rules and in developing policies.
Partnerships can also be an important tool in properly regulating. Many boards form good relationships with public and private organizations that help ensure an effective regulatory process and keep board members abreast of issues that licensees face in their day-to-day work environments. A counselor advocacy group in Ohio, for instance, presented data to the board that showed professional counselors are underrepresented in clinical director positions at community mental health agencies. One compelling reason the advocacy group presented for this underrepresentation was that licensed counselors did not have requisite training in administrative supervision and could not, under Ohio’s rules and regulations, receive continuing education credit for attending such trainings. This presentation prompted discussion in the Counselor Professional Standards Committee about counselor professional identity, roles and responsibilities. Eventually, this led to adjustments in the rules and regulations governing CEU credits to allow for administrative supervision as an acceptable topic of training for licensed counselors.
The board also may rely on professional associations for information and feedback, while simultaneously encouraging these organizations to be actively involved with how members practice, in part by using their networks to share rules and policy changes. Distinguishing the roles of boards and professional associations can be tricky at times. Board members must be clear that their primary duty is not advocacy for the profession; that role often falls to the association. However, when boards are in regular communication with associations, their members are more likely to be informed of the contemporary issues facing the profession and are more capable of considering how contemporary professional issues affect licensees or should affect changes to rules and regulations.
On a day-to-day basis, the average licensee with sound ethics and a professional approach to practice should not be overly concerned about the existence of a licensing board. Nonetheless, understanding how the counseling profession and other mental health professions are regulated can help when attempting to address issues or understand why a new rule or requirement is in place.
Licensees may wish to consider the following as they engage their licensing boards:
- Know the law and rules. Recognize that the board is responsible for following the law and rules. The law and rules cannot simply be waived. Occasionally, there are loopholes, but not often.
- Learn who is on the board and how it operates. Attend meetings or public hearings. Know the limits of the board’s authority.
- Recognize that laws, rules, policies and procedures exist for a reason. Requirements and restrictions typically exist in response to situations that have been identified over time. Regulators use their expertise and experience in creating rules and policies.
- Share your opinion when asked through surveys and other requests. Comment on issues. The board and its staff can operate best when they are as up to date as possible with respect to what is occurring in your world as a professional counselor.
- Remember that the public interest and protection of the public come first. But also recognize that board members and staff are often seeking ways to say “yes” to professionals’ questions and requests. Although we care about our duty to protect the public, we want to be responsive to those whom we serve.
Brian Carnahan is executive director of the state of Ohio’s Counselor, Social Worker, and Marriage and Family Therapist Board. Contact him at firstname.lastname@example.org.
Christin Jungers is professor of mental health counseling at the Franciscan University of Steubenville and a member of the Ohio Counselor, Social Worker, and Marriage and Family Therapist Board. Contact her at email@example.com.