Tag Archives: Ethics & Legal Issues

Ethics & Legal Issues

Pro bono counseling: How to make it work

By Bethany Bray March 24, 2021

The 2014 ACA Code of Ethics encourages counselors to “contribute to society by devoting a portion of their professional activity to services for which there is little or no financial return.”

This is an important tenet of the counseling profession, and one that pulls at counselors’ empathy and call to social justice. However, counseling clients for a reduced fee or for free – pro bono – in a private practice setting comes with some caveats.

John Duggan, senior manager of continuing and professional education at the American Counseling Association, stresses that private practitioners who have any kind of third-party contract, such as agreements to accept clients from an employee assistance program, Medicaid or elsewhere, must take positive steps to avoid risk if they charge anything other than the same rate for service for 100% of their caseload. This is due to several reasons:

  • Charging different rates for services reimbursed by federally funded programs opens the practitioner to risks of fraud accusations or investigations by the U.S. Centers for Medicare & Medicaid Services (CMS). In general, Medicaid and other third-party insurance plans prohibit practitioners from waiving copays.
  • Insurance companies may be unwilling to honor a fee schedule if a practitioner charges different fees for the same contracted service to different clients.
  • Offering remuneration to clients is unethical and potentially illegal (see Standard A.10.b. of the 2014 ACA Code of Ethics). While there are exceptions, waiving copays/fees and underbilling are potential HIPAA violations.

Lastly – and perhaps most importantly – Standard C.5. of the ethics code prohibits discrimination in professional counseling. Offering different fees to different clients could potentially make a counselor’s health care business vulnerable to accusations of discrimination or lawsuits, Duggan says.

The only private practice scenario that would be exempt from the above points is if a counselor does not have any existing third-party contracts and treats 100% self-pay clients, without insurance, he notes.

“It is ethically essential to prioritize our work that’s pro bono,” says Duggan, a licensed professional counselor and licensed clinical professional counselor. “However, the bottom line is that professional counselors who manage a health care business should also operate as ethical businesspeople. Always consider ethical, legal and compliance issues before reducing fees, copays/fees or underbilling.”

Duggan points out that there are many ways a counselor can do pro bono work that do not involve counseling clients on their practice caseload. Volunteer or reduced-fee work in the community – anything from public speaking or leading workshops to mental health response during disaster situations – can be a rewarding way for counselors to give back.

There are also organizations and agencies that facilitate the counseling of clients outside of a clinicians’ existing caseload. Duggan points to the Pro Bono Counseling Project (probonocounseling.org) as an example. The Maryland-based nonprofit pairs clients with limited incomes who are uninsured or underinsured with volunteer practitioners for free mental health care.

When it comes to navigating the nuances of pro bono work, Duggan suggests counselors refer to ACA’s numerous resources, most notably the 2014 ACA Code of Ethics (including standards C.1. and I.1.b.) and The Counselor and the Law: A Guide to Legal and Ethical Practice by Anne Marie “Nancy” Wheeler and Burt Bertram, particularly Chapter 3 (available at counseling.org/store). Practitioners may also want to consult an attorney for guidance.

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2014 ACA Code of Ethics, Standard C.6.e.

“Counselors make a reasonable effort to provide services to the public for which there is little or no financial return (e.g., speaking to groups, sharing professional information, offering reduced fees).”

  • See the full ACA Code of Ethics at counseling.org/ethics
  • ACA members who have further questions can schedule a practice or ethics consultation with ACA’s counseling specialists by emailing ethics@counseling.org. 

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Pro bono: Opportunities

  • Remain cognizant of the potential for exploitation of clients, attend to their vulnerabilities, and consider their best interests in all professional decisions.
  • Look for opportunities to serve your local community by providing some pro bono services that capitalize on your unique interests and skills (e.g., speaking, teaching, mentoring, leading support groups, volunteering at a local nonprofit clinic).
  • Remember: Pro bono services are subject to the same rigorous ethical standards as all other counseling services. Practitioners offering clinical mental health services must also remain compliant with state and federal laws.

Source: John Duggan, senior manager of continuing and professional education at the American Counseling Association

  

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Read more

Counselors who enter private practice often find themselves confronting the push and pull between their desire to provide empathic, client-focused care and the need to turn a profit. Counseling Today will take an in-depth look at this topic in the magazine’s April cover article, “Finding balance in counseling private practice.”

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Voice of Experience: Managing requests for client information

By Gregory K. Moffatt February 23, 2021

In nearly four decades of practice, I’ve experienced a number of attempts by various individuals to gain access to my client records. Here are a few of them.

  • Two police officers showed up in my office asking for records regarding a former client. They told me that the person was of interest in a very serious crime and they were trying to close that case. Would I please give them my records for that client? When I told the officers that I would be happy to comply with any order from the court, they pressured me. “Really! You are going to make us get a subpoena?” Yep.
  • An attorney sent me a very official looking letter that I believe was deliberately drafted to look like a court order. It was full of legal jargon and demands for information regarding a former client. I could have simply thrown it in the trash, but instead I called the attorney’s office. I knew the attorney would be waiting on my call. Sure enough, when I told the receptionist who I was, she immediately patched me through to his office. He answered on the first ring.

“I’m calling regarding your ‘request’ for information from me,” I said. Not waiting for him to make a comment, I continued, “I’m sure you know I cannot even acknowledge who my clients are without a court order or the client’s permission. Do you have either of those?” Of course, he did not. The call was polite and short. I never heard from him again.

  • A parent called my office seeking “any records whatsoever” I had pertaining to my therapeutic relationship with his son, who was a minor at the time. Ordinarily, I would have been happy to chat with a parent. However, I knew that this father’s custodial rights had been terminated by the court (my client’s mother had provided those documents to me), so the man calling me had no legal right to his son’s records. I declined his request.

Without experience, it might be easy to be intimidated by police, angry parents or clever attorneys. But you cannot be arrested (as I was threatened on one occasion) for following counseling ethics and HIPAA requirements regarding client information. In fact, you will likely be in greater trouble if you concede to these “requests” and thus violate our code of ethics.

To make your life a little less stressful, let me suggest three simple statements/rules that will help you know when to divulge information and when to stay silent.

First, never forget this line: “Who my clients are or are not is confidential information.” The two officers I mentioned above began by saying, “We are here to talk about M— S—, one of your former clients. Do you remember her?”

They were playing me. If I had acknowledged that I remembered her (as, in fact, I did), they would already have been on their way to pressuring me for more information. I simply delivered the line above and then shut my mouth.

Second, remember to ask, “Do you have a court order?” No court order is verbal. Police officers, lawyers and others have tried to tell me they had a court order and wanted me to provide information. I always state that I’m happy to comply with any court order that I receive. Unless a court order is provided to me, that is nearly always the last I will hear about a request for information.

Even if a printed order is provided, it must be signed by a judge. The lawyer who tried to scam me knew he couldn’t forge or fake a judge’s signature without risking losing his license and perhaps going to jail. I always first flip to the last page of the order to see what judge signed it. No judge’s signature, no information.

Finally, ask, “Who has legal right to this information?” Without a court order, that legal right generally lies exclusively with the client, but in the case of minors, those who have legal guardianship can request records as well. That can get complicated, as I indicated in the scenario above. If I hadn’t anticipated the question of legal guardianship, I might have provided client records to a person who had no right to see them.

If you have no experience with court orders, always consult with your professional organization or a trusted and experienced colleague. If you have questions about a court order, you can call the court to confirm or clarify.

One final caveat: I am not an attorney. I know some jurisdictions may have systems in place that differ from what I’ve described, so check with legal counsel in your area before you need it. You will then be prepared.

 

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Gregory K. Moffatt is a veteran counselor of more than 30 years and the dean of the College of Social and Behavioral Sciences at Point University. His monthly Voice of Experience column for CT Online seeks to share theory, ethics and practice lessons learned from his diverse career, as well as inspiration for today’s counseling professionals, whether they are just starting out or have been practicing for many years. His experience includes three decades of work with children, trauma and abuse, as well as a variety of other experiences, including work with schools, businesses and law enforcement. Contact him at Greg.Moffatt@point.edu.

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Ethics in the time of COVID: Contact tracing

By Donna S. Sheperis, Ann Ordway, Michael Kocet and Mary Hermann September 2, 2020

We have entered an unusual time in the counseling profession when our field is practicing during a global pandemic. While most of us are conducting largely telehealth practice, we are also beginning to see our clients in face-to-face settings again. Seeing our clients in person is preferred by many counselors, but there are concerns related to COVID-19 that have ethical implications. Four counselor educators and American Counseling Association members, all clinicians and ethicists, two of whom are also attorneys, weighed in on the issue of contact tracing for counselors.

Contact tracing

The Centers for Disease Control and Prevention (CDC) defines contact tracing as part of the larger process of case investigation that can support people who are suspected of, or known to have, COVID-19. During the process, exposed individuals, who are termed “contacts,” are told that they may have been exposed to someone with COVID-19. They are not told who the person is but are given information to inform their own health care decisions. The CDC and case investigators try to work as quickly and sensitively as possible to share relevant information with individuals who may be impacted or at risk.

Ethical concern

Clients have the right to break their own privacy. They can tell someone that they saw us for services and even what they talked about. However, counseling is unique in the concept of confidentiality, which is the ethical obligation held by the counselor. Counselors cannot disclose any information about the client, including the fact that the client is, indeed, a client. Historically, in requests for information, counselors have followed the “I can neither confirm nor deny” approach to acknowledging whether a person was in their care unless there is a signed agreement allowing the counselor to share information.

The dilemma

If a client contracts COVID-19, the client can share with health care professionals their contact with the counselor. The dilemma arises when and if the counselor contracts the virus. How would that person protect client confidentiality while also maintaining best practices for public health? If the counselor were a barber, they could turn over a list of clients they had seen during the identified period. In the case of counseling, what should the counselor do?

The experts

We posed these questions to a small group of ethics and legal scholars in the counseling field. Here are their responses.

Mary Hermann: I recommend that counselors start addressing this issue in their informed consent documents and in their continued conversations related to informed consent. Given how easily this virus spreads and the loss of life associated with it, I suspect we would have to disclose our contacts to public health officials but protect our clients as much as possible.

Donna Sheperis: I really like the idea of addressing this in informed consent. We realize that informed consent is not just a document. It is a dynamic process that is revisited over time, especially in response to changes in society. COVID-19 represents a tremendous change to our society and culture.

If I were working in an area with contract tracing, one thing I might do is include in my informed consent the parameter and limitation of COVID-related disclosure. Specifically, I would want my clients to know that if I tested positive, I would let them know myself. Secondly, I would want them to know that I would need to give just their names to the entity conducting contact tracing. The case investigator would have no knowledge of how I came into contact with the client, as the clients’ names would be intermingled with other staff, my family, my friends and others whom I came in contact with. However, the risk of someone being potentially seen as a client by the investigator is very real.

If a client was not comfortable with that level of risk, then we may need to reconsider our ability to work together. I would hope it wouldn’t come to that, but it is possible.

Michael Kocet: Because of the fluid nature of understanding this virus and how it travels, it is important that counseling professionals seek out the latest information from the CDC, the World Health Organization and other governmental agencies that provide the most up-to-date information. It is also important for clinicians to remember that informed consent is both a written and a verbal process, and that it is nearly impossible for a counselor to have every detailed nuance of information included in an informed consent form. Additional verbal information given to a client should be documented in a follow-up clinical case note in the client’s file.

Ann Ordway: A critical consideration is the purpose of the counselor revealing the client’s identity. With traditional exceptions to confidentiality — namely when a client poses a danger to self or when the client poses a danger to others — the purpose of disclosure is the protection of the client or other identified individuals.

If a counselor tests positive for COVID and has had contact with specific clients, the disclosure of the names of those clients for contact tracing also has the purpose of mitigating risk and protecting the client and other individuals with whom the client has also had contact. It is critical to let the clients know this could happen and the circumstances under which it will happen. Counselors should avoid any unnecessary breach of client information, but the prejudicial nature of revealing a client’s identity might be outweighed by the probative value for public health and slowing down this virus.

 

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There was also some discussion about ethical implications should a client test positive for COVID-19.

Michael Kocet: As Standard B.2.c. of the 2014 ACA Code of Ethics outlines, counselors must assess the intent of clients to inform third parties regarding contracting a contagious, life-threatening disease. While this standard was mostly born out of HIV- and AIDS-related issues, I think COVID can certainly apply to this standard.

I think the main consideration is client intent. For example, if a client becomes diagnosed with COVID and they share with the counselor that they intentionally want to spread the virus to others or are choosing to not share their COVID status with family members, friends or co-workers, then confidentiality may need to be broken. It would be nearly impossible to know every single stranger and person the diagnosed client came into contact with. I suppose a counselor could consult with someone from a state board of health or someone at the CDC without giving out any client information.

Where it could get tricky is if a person is a front-line worker such as at a grocery store or somewhere where they are required to work in order to get paid. If that person comes down with COVID, they may not want to disclose that fact. Let’s say the client says to their counselor that they have COVID but they need to work to pay for food and bills, so they are not disclosing to their employer or co-workers that they are infected, and they are continuing to go to work. I would suggest that would be an example of a time that confidentiality could be broken because they are putting co-workers and others at risk of dying.

Ann Ordway: A client who is positive or later develops as positive could be viewed as a “danger to others.” I would not be as concerned about a client who expresses an intent to disclose their own contacts with others but more so about someone who refuses to cooperate with a contact tracing process or who is cavalier about exposing others.

Of course, I would endeavor to include the client in the process. It is always better if the client agrees to a disclosure or waives confidentiality, but that is not always possible. I advocate for including language in informed consents making it clear that responding to a valid subpoena or complying with a law or regulation are also exceptions to confidentiality.

Disclosure or reporting guidelines related to client illness originally stemmed from HIV. Since there is no way to predict what is next, I would suggest including general language in the informed consent so counselors are more likely covered in the event other highly contagious illnesses emerge in the future.

Even if compelled to disclose the identity of a client, counselors only need to share basic information for tracing and not intimate details of counseling. The CDC might need to know the name and contact for the person who tested positive but will not need to know the person’s presenting issue, diagnosis or progress.

 

Conclusion

Historically, we have never faced an ethical dilemma in which the counselor could be the person who infects a client. We have no real precedent on which to base our decision. What we do have as a foundation is a robust code of ethics that allows us to make decisions with our clients’ welfare in mind. We involve the client whenever possible, and we document those concepts in an ongoing informed consent process. As counselors, we are always evolving, and the pandemic is teaching us how adaptable we are.

 

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Donna S. Sheperis is a licensed professional counselor, national certified counselor and approved clinical supervisor. She is a professor of counseling at Palo Alto University engaged in private practice. She has served on the ACA Ethics Committee and the ACA Ethical Appeals Committee in addition to authoring publications in the area of counseling ethics. Contact her at dsheperis@paloaltou.edu. 

Ann Ordway holds a doctorate in law and is a national certified counselor. She is a core faculty member at the University of Phoenix and a licensed attorney specializing in family law. She has multiple publications and presentations in the area of counselor law and ethics. Contact her at ann.ordway@phoenix.edu.

Michael Kocet is a licensed mental health counselor, a national certified counselor and an approved clinical supervisor. He is a professor and department chair at the Chicago School of Professional Psychology. He has served on the ACA Ethics Committee and the ACA Ethics Code Revision Task Force, in addition to authoring multiple publications in the area of counseling ethics. Contact him at mkocet@thechicagoschool.edu.

Mary Hermann holds a doctorate in law. She is an associate professor at Virginia Commonwealth University and an attorney. She served on the ACA Ethics Code Revision Task Force and has multiple publications and presentations in the area of counselor law and ethics. Contact her at mahermann@vcu.edu.

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Hey, Siri: Did you break confidentiality, or did I?

By Nicole M. Arcuri Sanders January 14, 2020

Did you know that your tech devices have the potential to break your clients’ confidentiality just by being in the counseling setting with you? Imagine that you have worked a full day seeing an array of clients for the various concerns they are facing. Then, at the end of the day, you snuggle up on the couch and scroll through your phone’s applications. You notice numerous ads and suggestions that relate to the topics clients have shared. For instance, imagine a client sharing about a traumatic event that happened in the Catskills, and now you have Airbnb suggestions for that area, along with resources for dealing with sexual abuse.

You may be wondering, “How did that happen? Was my phone listening to our session?” The answer might be yes.

In other cases, you might not be made aware that your phone was listening, but it is important to know that it has that capability. The reason for this is the voice assistant technology on your devices. While on, these devices are constantly listening. For instance, Apple iPhone is listening for the word “Siri”; anything said after that is considered a command. The same is true with Amazon’s voice assistant Alexa and with Google Assistant. Each of these devices is waiting for its name to be called so that it can follow up with whatever assistance the person using it desires.

However, it has been found that the devices sometimes mistake certain words and are activated unintentionally.

This past July, The Guardian newspaper shared shocking reports from an Apple contractor. This whistleblower reported that Apple contractors “regularly hear confidential medical information, drug deals, and recordings of couples having sex, as part of [Apple contractors’] job providing quality control.” These workers are tasked with listening to grade the responses of the company’s Siri voice assistant. For example, the workers will grade if the response from Siri was accidental or deliberate and if Siri’s response was appropriate.

But what does this mean for professional counselors? Just think invasion of privacy and breach of confidentiality concerns.

Voice assistant concerns in the counseling setting

This next section is going to present a hypothetical counseling office to address some of the confidentiality concerns that surround the counseling experience with technological voice assistants. Consider whether you address these concerns in your informed consent with clients. Would these occurrences align with Health Insurance Portability and Accountability Act (HIPAA) regulations?

Waiting room: Counselors strive to create a warm and inviting setting to foster a comfortable feeling for clients because they are in a vulnerable situation. Perhaps some relaxing music is playing in the waiting room. Consider Alexa being programed to shuffle through various playlists of calming songs throughout the day.

As clients await their sessions or end their sessions, they may need to discuss billing with the front-desk assistant or call their insurance companies. Clients may even take a call during this time for other purposes. Alexa hears all of these conversations throughout the day. Therefore, the potential is there for the entrance to this “safe place” for clients to instead become a place where personal information is leaked to Alexa and to those who monitor Alexa or have access to Alexa’s recordings.

Additionally, clients may not even realize that while they are in your office discussing billing, diagnosis, and plans moving forward, their smartphone’s voice assistant can be eavesdropping as well. The same goes for all of the other smartphones located in the waiting room, including those being used by personnel working the front desk.

In session: When clients and counselors meet in an office, safety is a concern. Therefore, counselors may choose to keep their phones in their pocket or nearby in case they need to call for help. Some sites may even have a policy requesting that counselors have their cellphones on them at all times. However, now these phones’ voice assistants can have access to the dialogue that occurs within the room. This also means that whoever is monitoring the voice assistants have access. What was intended to be a safe place for clients to navigate and process concerns is now compromised.

Can you imagine if you, as the counselor, were facilitating a group and each client had a smartphone with a voice assistant? Consider also if you take notes on an iPad that has voice assistant technology. As counselors, we understand there are some limits to confidentiality. However, these voice assistant technologies have the capability to leak what clients and counselors once believed to be confidential information.

 

Disconnect: Don’t be considered liable

A number of considerations need to be taken into account by both the counselor and the client regarding confidentiality of sessions when voice assistant technologies are present. First and foremost, this issue should be addressed. Now that you are aware of the implications for your practice, you are ethically responsible for addressing these possibilities with your clients.

According to the 2014 ACA Code of Ethics, clients have the right to confidentiality and an explanation of it limits (Standard A.2.b.). Understanding these limits, clients have the right to make an informed decision regarding whether they would like to participate in counseling services with you (Standard A.2.a.).

Therefore, if you choose to utilize voice assistant technologies, you need to inform clients of the benefits and risks prior to them beginning counseling services. This explanation is not limited only to the counselor using these technologies but also acknowledging whether the counseling site allows its staff or clients to use them. If your site chooses not to utilize voice assistant technologies, you will need to address what your protocol is concerning this matter. For instance, will all cellphones be turned off? How will this be regulated?

What if your site requires cellphones for safety concerns or if clients are not willing to turn their phones off? How can you still protect client confidentiality and be in alignment with HIPAA regulations? The simple answer is to turn off your voice assistant technologies. You might consider noting the confidentiality risks in your informed consent and then sharing some of the directions noted below for how to disable these technologies.

 

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For iPhones and iPads, to turn off Siri, complete the following directions:

1) Open your settings.

2) Click Siri and Search.

3) Toggle OFF, listen for “Hey Siri.”

4) Toggle OFF, Press Home (or side button) for Siri.

5) Toggle OFF, allow Siri when locked.

 

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To turn off “Hey/OK Google,” complete the following directions:

1) Open your settings.

2) Under Google Assistant, tap Settings again.

3) Under Devices, tap Phone.

4) Turn OFF Access with Voice Match/Assistant.

 

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To turn off Amazon Alexa, complete the following directions:

1) Open your settings.

2) Select Alexa Privacy.

3) Tap Manage How Your Data Improves Alexa.

4) Turn “Help Improve Amazon Services and Develop New Features” OFF by tapping the switch.

5) Confirm your decision.

 

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These steps can provide clients with a choice while also informing them of the risks of their choices. In group counseling, however, as a safeguard to clients’ confidentiality, I would recommend not allowing any client to keep their cellphones, iPads or any other voice assistant technologies on.

Because these devices may travel with us basically everywhere we go, our conversations are being monitored for product improvements, but in the process, our confidentiality is being breached. Currently, with some simple options for turning off these technologies, clients can continue to maintain the level of confidentiality to which they originally thought they were agreeing.

As counselors, we take many safeguards to protect our clients’ confidentiality. I encourage you to toggle off your voice assistant technology options to keep your devices from being the reason you are held liable for breaking confidentiality. Moving forward, as technologies continue to transform, we as counselors need to be ready to address implications in the counseling setting.

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Nicole M. Arcuri Sanders is a licensed professional counselor, national certified counselors, approved clinical supervisor, and core faculty at Capella University within the School of Counseling and Human Services. Contact her at Nicole.ArcuriSanders@capella.edu.

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

Grieved: A firsthand account of enduring a client grievance as a counselor

By Jessica Smith January 7, 2020

I learned in graduate school that most counselors will experience three things in their careers: a client who dies by suicide, a client who overdoses, and a client who files a grievance. I remember hoping that I would be the exception to the rule. Throughout my career, I tried to do everything in my power to avoid that grad school prophecy. But fate had other plans: Last year, one of my clients filed a grievance against me.

Shame breeds in secrecy. In my experience, being the subject of a client grievance is one of the most shaming — and isolating — events a counselor can encounter. Those who choose to speak openly and honestly about the grievance process are often met with judgment and criticism. In an effort to help combat the silence and stigma, I’m sharing my story with the hope that it will provide guidance and support to other counselors who are going through this difficult and trying process. I want to remind others that they are not alone on this journey while also offering a road map for a way through. It will be OK.

One of the things that helped me get through the grievance process was conceptualizing it in terms of Elisabeth Kubler-Ross’ grief cycle. I tell my clients that the stages are the road map for grief. If I had a road map, then I had a direction to go, and I was not stuck or lost. I did not know when I would reach acceptance, but I knew that it was on the horizon if I just kept moving forward.

 

Denial and shock

Early last year, while checking my email in a Target parking lot, I saw a message from the Department of Regulatory Agencies (DORA) sitting in my inbox. In Colorado, DORA is the governing body that issues licenses to providers while also handling consumer grievances. My heart began beating quickly. I felt dizzy and nauseous. I walked into the store to return an item at the customer service counter, and I had to will my legs to move forward and my mouth to speak. I felt like everyone around me could see a massive letter “G” tattooed across my forehead. My hands began to shake as I drove home so that I could read the email at my desktop computer. As I read through the entire message from DORA, I started to cry.

A few weeks prior, I had taken on a new client at my practice. Interestingly, my intuition immediately suggested that this client would be challenging. The second session reinforced my sense that building a therapeutic relationship with this client was going to be a rough road. The third session didn’t happen — the client was a no-show, no-call. When I reached out to the client through a text message, she said that she did not want to schedule a future session with me, so I discharged her from therapy that afternoon. I had a feeling this would not be the last time that I heard from this client. My intuition was correct.

I received an email from the client that night, criticizing me for the way I had handled the interaction. She thanked me for helping her but asked me to explain my “side of the story.” Because I had already discharged her from therapy and felt that any potential future counselor-client relationship would be negatively impacted by the exchange, I told her that I no longer felt comfortable working with her. Again, I had a feeling this would not be the last time I heard from this particular client. My intuition was right again.

 

Bargaining

DORA was citing me for poor communication and abandonment. I immediately reached out to a friend and former colleague who had worked with an organization that completed assessments for DORA. I knew she had also been through the client grievance process a few years prior. As I prepared for our discussion, I looked up everything I could find on the internet about the grievance process, client abandonment, HIPAA, and mental health statutes. Nothing was clear, and most of the information seemed contradictory.

On the phone, I laid out the facts of the case before my friend. Like many others I would talk to along the way, she thought it likely the case would be dropped. Thankfully, the grievance was not based on a verbal exchange; resolving the case would not depend on pitting my word against the client’s. My friend advised me that I might need to seek legal counsel, and we discussed my official response to the complaint, which I typed up immediately and sat on over the weekend.

The following Monday, I gathered the client’s file and submitted it to DORA, along with my response to the grievance. I also reached out to my insurance carrier to let it know about the grievance. All the while, I was hoping the case would be dismissed so that this nightmare would end. Due to the benign nature of my case and the cost, I chose to hold off on hiring legal counsel at the beginning, but my insurance provider encouraged me to reach out to a lawyer if the case continued any further.

 

Depression

The grievance was all I could think about. It consumed me. I would fall asleep ruminating about it and wake up the next morning to a continuation of my thoughts from the night before. Or, just as often, I would wake up in the middle of the night, my anxiety quickly rising as I remembered that this was not a dream — it was really happening to me. I prayed for it all to go away. I wanted to return to a sense of normalcy. I began second-guessing myself and the image I was presenting to my clients at work. I felt on edge and afraid that something else would happen. I feared that this grievance process would not be the end of it.

I had been in the field for seven years and had never experienced an issue like this previously. I had provided services in challenging and demanding settings, including detoxes, residential treatment facilities, and jails, and I had never before had a client complain to a supervisor or another colleague about my work.

Because the personal is professional and the professional is personal in our work, it can be hard to separate the two. This makes it difficult to prevent internalization during the grievance process. I felt like a bad counselor and, thus, a bad person. At the same time, I felt confused because I had other clients telling me that I was an incredible therapist who had helped them change their lives for the better and become the best versions of themselves. I tried to hold space for all of these experiences and live in the gray, but it was tiresome and tough to do.

Fearing judgment and criticism, I was mindful of who I shared my troubles with. I was in a vulnerable place and was already attacking and beating myself up enough without someone else adding to the punishment and suffering. Like most therapists, I am attuned to nonverbal cues and underlying speech tones and was always looking for them when I told my story to fellow counselors. For the most part, I chose to keep the experience to myself and a few confidants, but I knew that wasn’t enough. I also needed the perspective and guidance of other professionals during this demanding time, so I shared with people in my therapist support groups. The majority of the people I told were empathetic, nonjudgmental and supportive, but there were a few whose faces dropped once I told them. There were still others who tried to use my story as their own personal case study, which was disappointing and disheartening.

I felt like I was in a dream, observing this entire experience happening to me from a distance. I believe that, at the time, this was a necessary coping strategy. I had to compartmentalize the experience so that I could go to work each day and meet with clients at my private practice. I likened it to being sued by your company and continuing to show up for work every day, knowing what is happening around you and within you.

I questioned myself constantly and considered what I could have done differently. I read through the mental health statutes and searched HIPAA forums, but nothing was transparent and straightforward. I tried to look up articles, podcasts and research on the grievance process but could find only one research article from the 1990s on the impact of the grievance experience on psychologists. It helped to know that my experience of the process was normal and valid, but it did not ease my fears.

 

Anger

I have two licenses in Colorado, which is advantageous in my work — except for when I going through the grievance process. My double licenses made it doubly difficult because my case had to go before both boards. The two licensing bodies can have differing opinions and sanctions, but I learned early on that once one board reaches a verdict, the other board often follows suit. I received an email informing me that the Colorado State Board of Licensed Professional Counselor Examiners would be the first to review my case, in May. I had submitted my paperwork in February, so it would be months before I would know the resolution of my case. I was learning that the grievance process is a prolonged waiting game.

Meanwhile, I was expanding my practice and interviewing contract therapists. Then, in April, I received an email from the Colorado State Board of Addiction Counselor Examiners informing me that my case had gone before its board first, without my knowledge. I was blindsided. I was in the middle of doing interviews but, thankfully, had a break, so I drove home. I made it about halfway before pulling over to the side of the road to read the rest of the email. My mind was blown. I felt like my sense of reality was crumbling.

The Board of Addiction Counselor Examiners had found me “guilty” of the allegations and was moving the case forward to Colorado’s Office of Expedited Settlement. I found a lawyer online and emailed him from the side of the road. I felt powerless and out of control and needed to find a way to regain my sense of self-agency. I knew that taking action was the way for me to do that. I didn’t want to have any regrets about what I could have or should have done, so I was finally ready to get legal assistance for this fight.

I met with the lawyers the following week and learned that they were receiving three to five grievance cases per day. In the past, they said, they had received only three to five grievance cases per month. After our meeting, I looked up the list of therapists involved in disciplinary actions through DORA’s website, and the numbers were staggering. There are approximately 26,000 counselors in Colorado, and more than 11,000 have received disciplinary action.

I was angry — with myself, with the system, with the profession, and with the client. I felt so much anger pulsating through me that I wanted to scream and to run away, both at the same time. I thought about walking away from it all — leaving the counseling profession, giving up my licenses, and moving on to a different, safer, easier path.

Mainly I thought, “Why me?” I felt myself moving into a victim mentality as I had done in the past when going through trying experiences. Because I have been victimized in my past, this is an easy role for me to assume when I am experiencing pain and suffering. I blame others and shut down.

Anger is an uncomfortable emotion, but I knew I was meant to have it in this moment because it would lead to motivation, change and movement. I could harness it or let it eat me alive. It was my choice alone.

 

Acceptance

Like many grieving people, I remained stuck for some time in the anger phase. Anger feels powerful and motivating, unlike sadness, which is exhausting and debilitating. However, I always go back to the saying that “anger is like taking a cyanide pill and hoping it will kill your enemy.” It only ends up hurting you in the end. My anger toward myself, the client, the system and the profession would not serve me. It would end up eating me alive if I allowed it to.

I was walking home from work one day when suddenly it began to rain. Completely unprepared, I had nothing to keep me dry. It was only a mild shower, however, so I said out loud, “If it keeps raining like this, then I’ll be OK.” It started raining harder. Undaunted, I said again, “If it keeps raining like this, then I’ll be OK.”

And then it began to pour. I was halfway home, caught in a storm without a raincoat. All I could do was surrender. I was broken open. The armor of anger I had been parading around in fell away as I began to cry. “I surrender,” I said aloud. “I get it. I’ll always be OK.” I started to smile as tears mingled with the raindrops running down my face. Nature has a way of asking us to let go of our resistance and surrender.

I released my anger in that moment, realizing that I’d been aiming most of it at myself. I began the slow process of forgiving myself and coming back home to the idea that we are all doing the best we can. I never meant to hurt the client, and I had no malicious intent in my actions. I had done the best I could in that moment and with the situation.

I moved into acceptance by making meaning of the experience and discovering that it was meant to realign me with my soul’s calling and purpose. I realized that I cannot veer far off my course in life before the universe pushes me back into my lane.

 

Lessons learned: Seek support, ask for help, find allies

It is difficult to share with others what it’s like to go through the grievance process, but it is also incredibly necessary. As is the case with any grief process, we need sources of support to call on to ground us and anchor us when we feel like we are floating away or losing sight of our true selves. As professional counselors, we may make mistakes, but that does not make us bad people. We need to be reminded of our goodness and wholeness.

It is essential to surround ourselves with genuine and unconditional love and to have a safe place to cry and yell without fear of judgment or criticism. When all we want is to lie on the ground and give up, our support systems can lift us up and keep us moving forward. And, finally, we need to be reminded that counseling is extremely difficult work.

My only regret about the whole process is that I did not seek legal counsel sooner. I wonder what might have happened if I had not been deterred by the nature of my case and the cost. Although I now realize that I needed to go through this process to realign my priorities and path both personally and professionally, I sometimes question whether things would have turned out differently if I had sought the assistance of a lawyer in formulating my response to the grievance originally.

Retaining attorneys earlier in the grievance process might not have helped me avoid the verdict of “guilty,” but it likely would have provided me more peace of mind. In fact, once I sought legal counsel and spoke with my lawyers, I felt a sense of ease and relief. As I mentioned, I was restless and waking up frequently during the nights, but after that initial afternoon meeting with my lawyers, I got my first full night’s sleep in two months. I am aware of how vital regaining the ability to rest was to enduring the trauma of the grievance process. Sleep heals.

Later on in the process, I connected with the Colorado Counseling Association (CCA). I remember saying to myself, “DORA protects the consumers, but who protects the counselors?” This was my answer. I went to an event sponsored by CCA and learned more about the advocacy work it does to support and help counselors. Specifically, it is fighting to change the vague and subjective language of the clause in the mental health statute of “best practices” that was cited in my case and many other cases as a catch-all category for disciplinary actions. Here were even more people on my side who were passionate about advocating for counselors and changing the system.

During the grievance process, someone had said to me that the tower I had built with all I had believed to be true was crumbling and falling, leaving behind a pile of rubble and debris. My beliefs about my career had been built on shaky and rocky ground to begin with, so it was inevitable that they would all come tumbling down eventually. Now that the collapse had ended, I had to decide what to do with the debris. I could choose to walk away from the bricks and stones in the rubble, or I could use them to build a new tower on stronger ground.

I am still in the process of rebuilding, and I know that it will be a slow and methodical project. I am fulfilling the stipulations from DORA and considering the future. I am not sure if I will ultimately want to maintain both of my licenses. For now, however, I have chosen to keep them. But I know that the choice is mine — no one else’s. I now have a solid foundation on which to build my tower.

With each placement of brick and stone, I feel stronger and more powerful than I was before this experience. My battles scars and wounds will influence how I build my tower, but they will not halt or control the construction. As Carl Jung said, “I am not what happened to me; I am what I choose to become.”

 

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Jessica Smith is a licensed professional counselor and licensed addiction counselor with a private practice, Radiance Counseling (radiancecounseling.com), in Colorado. Contact her at jsmith@radiancecounseling.com.

 

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ACA members: Facing a dilemma about ethics, business practices or risk management? Contact the ACA Ethics and Professional Standards Department at (800) 347 6647, ext. 321 or email: ethics@counseling.org

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.