S 1077 Session 111 (1995-1996)
S 1077 General Bill, By Ryberg
Similar(H 4564)
A Bill to amend Section 40-75-40 of the 1976 Code, relating to investigations
and enforcement powers of the Board, so as to delete certain provisions; to
amend Section 40-75-70 of the 1976 Code, relating to the crime of falsely
claiming a grant of license to act as a professional counselor or marital and
family therapist, so as to also make it unlawful to use certain acronyms, to
act as a licensed professional counselor, licensed associated counselor, or
licensed marital and family therapist without first obtaining a license issued
by the Board, and to obtain or attempt to obtain a license under this Chapter
by presenting false or forged evidence of qualifications or other fraudulent
representation, and to increase the penalties; to amend Chapter 75, Title 40,
by adding Section 40-75-95, so as to provide exemptions to the license
requirement; to amend Section 40-75-140 of the 1976 Code, relating to the
display of the license issued under Chapter 75, so as to require the license
to be displayed at each location at which the licensee practices his
profession rather than only in his place of practice; to amend Section
40-74-160 of the 1976 Code, relating to complaints and investigations by the
Board, so as to authorize the Board to also investigate persons who have
unlawfully assumed to act as a licensee and to recodify certain provisions
previously codified in Section 40-75-40; to amend Chapter 75, Title 40 of the
1976 Code, by adding Section 40-75-165 so as to require the Board by
regulation to establish methods.
01/30/96 Senate Introduced and read first time SJ-10
01/30/96 Senate Referred to Committee on Labor, Commerce and
Industry SJ-10
A BILL
TO AMEND SECTION 40-75-40 OF THE 1976 CODE,
RELATING TO INVESTIGATIONS AND ENFORCEMENT
POWERS OF THE BOARD, SO AS TO DELETE CERTAIN
PROVISIONS; TO AMEND SECTION 40-75-70 OF THE 1976
CODE, RELATING TO THE CRIME OF FALSELY CLAIMING
A GRANT OF LICENSE TO ACT AS A PROFESSIONAL
COUNSELOR OR MARITAL AND FAMILY THERAPIST, SO
AS TO ALSO MAKE IT UNLAWFUL TO USE CERTAIN
ACRONYMS, TO ACT AS A LICENSED PROFESSIONAL
COUNSELOR, LICENSED ASSOCIATE COUNSELOR, OR
LICENSED MARITAL AND FAMILY THERAPIST WITHOUT
FIRST OBTAINING A LICENSE ISSUED BY THE BOARD,
AND TO OBTAIN OR ATTEMPT TO OBTAIN A LICENSE
UNDER THIS CHAPTER BY PRESENTING FALSE OR
FORGED EVIDENCE OF QUALIFICATIONS OR OTHER
FRAUDULENT REPRESENTATION, AND TO INCREASE THE
PENALTIES; TO AMEND CHAPTER 75, TITLE 40, BY
ADDING SECTION 40-75-95, SO AS TO PROVIDE
EXEMPTIONS TO THE LICENSE REQUIREMENT; TO
AMEND SECTION 40-75-140 OF THE 1976 CODE, RELATING
TO THE DISPLAY OF THE LICENSE ISSUED UNDER
CHAPTER 75, SO AS TO REQUIRE THE LICENSE TO BE
DISPLAYED AT EACH LOCATION AT WHICH THE
LICENSEE PRACTICES HIS PROFESSION RATHER THAN
ONLY IN HIS PLACE OF PRACTICE; TO AMEND SECTION
40-75-160 OF THE 1976 CODE, RELATING TO COMPLAINTS
AND INVESTIGATIONS BY THE BOARD, SO AS TO
AUTHORIZE THE BOARD TO ALSO INVESTIGATE PERSONS
WHO HAVE UNLAWFULLY ASSUMED TO ACT AS A
LICENSEE AND TO RECODIFY CERTAIN PROVISIONS
PREVIOUSLY CODIFIED IN SECTION 40-75-40; TO AMEND
CHAPTER 75, TITLE 40 OF THE 1976 CODE, BY ADDING
SECTION 40-75-165 SO AS TO REQUIRE THE BOARD BY
REGULATION TO ESTABLISH METHODS OF NOTIFYING
SERVICE RECIPIENTS OF HOW TO DIRECT COMPLAINTS
TO THE BOARD; AND TO AMEND SECTION 40-75-200 OF
THE 1976 CODE, RELATING TO A CLIENT'S RIGHT TO
DISCLOSURE OF LICENSEE'S PROFESSIONAL
QUALIFICATIONS, SO AS TO REQUIRE THE DISCLOSURE
TO BE MADE PRIOR TO IMPOSITION OF A FEE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 40-75-40 of the 1976 Code is amended to
read:
"Section 40-75-40. No member of the board and no
special examiner, agent, or employee of the board may be held
liable for acts performed in the course of official duties except
where actual malice is shown. For the purpose of any
investigation, inquiry, or proceeding under this chapter, the board or
any person designated by it may administer oaths and affirmations,
subpoena witnesses, take evidence, and require the production of
any document or record which the board considers relevant to the
investigation, inquiry, or proceeding. In the case of contumacy by,
or refusal to obey a subpoena issued to any person, an
administrative law judge as provided under Article 5 of Chapter 23
of Title 1, upon application of the board, may issue an order
requiring the person to appear before the board or the person
designated by it and to produce documentary evidence and to give
other evidence concerning the matter under investigation or inquiry.
Whenever the board has reason to believe that any person is
violating or intends to violate any provision of the chapter it may
order, in addition to all other remedies allowed by law, the person
to desist immediately and refrain from the conduct. The board may
apply to an administrative law judge as provided under Article 5 of
Chapter 23 of Title 1 for an injunction restraining the person from
the conduct. An administrative law judge may issue ex parte a
temporary injunction not to exceed ten days in duration and, upon
notice and full hearing, may issue any other order in the matter it
considers proper. No bond may be required of the board by an
administrative law judge as a condition to the issuance of any
injunction or order contemplated by the provisions of this
section."
SECTION 2. Section 40-75-70 of the 1976 Code is amended to
read:
"Section 40-75-70. (A) It is unlawful for any
person who is not licensed in the manner prescribed in this chapter
to represent himself as a licensed professional counselor, licensed
associate counselor, or licensed marital and family therapist or
to use one of these titles and the corresponding letters `LPC' for
licensed professional counselor, `LAC' for licensed associate
counselor, or `LMFT' for licensed marital and family therapist
following his name, as the case may be or to hold himself out
to the public as being licensed under this chapter by means of using
a title on signs, mailboxes, address plates, stationery,
announcements, telephone listings, calling cards, or other
instruments of professional identification.
(B) It is unlawful for any person to engage in the practice
of counseling, as defined in Section 40-75-80, or to engage in the
practice of marital and family therapy as defined in Section
40-75-90 without first obtaining a license issued by the board, or
unless the person is licensed under other provisions of state law and
the license authorizes such practice.
(C) It is unlawful for a person to obtain or attempt to
obtain a license under this chapter by presenting false or forged
evidence of qualifications or other fraudulent representation, or to
disclose forged or fraudulent qualifications to a client.
(D) Any person violating this section is guilty of a
misdemeanor and, upon conviction, must be punished by a fine
not to exceed one hundred dollars not less than one
hundred dollars nor more than one thousand dollars or by
imprisonment not to exceed thirty days one year, or
both, for each offense."
SECTION 3. Chapter 75, Title 40 of the 1976 Code is amended
by adding:
"Section 40-75-95. Individuals in the following
classifications who are performing services of a nature consistent
with their training and which services are similar to those described
in this chapter are exempt from the provisions of this chapter so
long as they do not represent themselves by a title or description in
the manner prescribed in Section 40-75-140:
(1) A nonresident person who renders services for no more than
thirty days during any year, so long as the person is duly authorized
to perform the activities and services under the laws of the state or
county of his residence;
(2) Any rabbi, clergyman, or person of similar status who is a
member in good standing of, and accountable to, a recognized
denomination or religious organization and who is exercising
ministerial responsibilities in the religious body, parish, church
ministry, or institutional ministry with which he is associated;
(3) Employees of licensed hospitals in the State performing
services similar to those described in this chapter so long as the
services are performed within the course of and scope of their
employment as an employee of the hospital. No regular employee
of a licensed hospital in this State may be required under this
chapter to be licensed as a condition of employment by such
hospital or as a condition for the performance of services similar to
those described in this chapter while employed in such hospital.
Nothing in this chapter may be construed to permit a person
licensed under this chapter to practice medicine or to represent
himself to the public as a psychologist unless he has been duly
authorized to do so by other provisions of law. Lecturers from any
school, college, agency, or training institution may utilize an
academic, research, or job title when invited to present lectures to
institutions or organizations."
SECTION 4. Section 40-75-140 of the 1976 Code is amended
to read:
"Section 40-75-140. Any person is regarded as a `licensed
professional counselor' or a `licensed associate counselor' or a
`licensed marital and family therapist' within the meaning of this
chapter who meets the qualifications and requirements prescribed in
this chapter and who is registered and licensed by the board. A
license holder or licensee may use the title appearing on his license
and the corresponding letters `LPC' for licensed professional
counselor, `LAC' for licensed associate counselor, or `LMFT' for
licensed marital and family therapist following his name, as the case
may be. Every license holder shall display his license in a
prominent place in his place of practice at each location
at which the licensee practices his profession."
SECTION 5. Section 40-75-160 of the 1976 Code is amended
to read:
"Section 40-75-160. (A) The board may receive
complaints by any person against a licensee or against any
person who has unlawfully assumed to act as a licensee or against
any person who has unlawfully engaged in the practice of
counseling or marital and family therapy, as defined in this
chapter, and may require the complaints to be submitted in
writing specifying the exact charge or charges and to be signed by
the complainant.
(B) Upon receipt of a complaint, the secretary, or
other person as the president may designate, shall investigate the
allegations in the complaint and make a report to the board
concerning his investigation. In instances where a board member
makes the initial investigation or complaint, he may not sit with the
board at the hearing of the complaint. If the board desires to
proceed further it may file, in its discretion, a formal accusation
charging the licensee with a violation of this chapter. The
accusation must be signed by the president or vice president on
behalf of the board. When the accusation is filed and the board
has set a date and a place for a hearing on the accusation, the
secretary, or other person as the president may designate, shall
notify the accused in writing not less than thirty days prior to the
hearing and a copy of the accusation must be attached to the notice.
The notice must be served personally or sent to the accused by
registered mail, return receipt requested, directed to his last mailing
address furnished to the board. The post office registration receipt
signed by the accused, his agent, or a responsible member of his
household or office staff, or, if not accepted by the person to whom
addressed, the postal authority stamp showing the notice refused, is
prima facie evidence of service of the notice.
(C) The accused may appear and show cause why his
license should not be suspended or revoked or why other
disciplinary action should not be taken. The accused has the right
to be confronted with and to cross-examine the witnesses against
him and has the right to counsel. For the purposes of these
hearings, the board may require by subpoena the attendance of
witnesses and the production of documents and other evidence and
may administer oaths and hear testimony, either oral or
documentary, for and against the accused. All investigations,
inquiries, and proceedings undertaken under this chapter must be
confidential.
(D) Every communication, whether oral or written,
made by or on behalf of any complainant to the board or its agents
or any member of the board, pursuant to this chapter, whether by
way of complaint or testimony, is privileged and no action or
proceeding, civil or criminal, may lie against any person by whom
or on whose behalf the communication is made, except upon proof
that the communication was made with malice.
(E) Nothing contained in this chapter prohibits the
accused from regular access to the charges and evidence filed
against him as a part of due process under the law.
(F) For the purpose of any investigation, inquiry, or
proceeding under this chapter, the board or any person designated
by it may administer oaths and affirmations, subpoena witnesses,
take evidence, and require the production of any document or
record which the board considers relevant to the investigation,
inquiry, or proceeding. In the case of contumacy by, or refusal to
obey a subpoena issued to any person, an administrative law judge
as provided under Article 5 of Chapter 23 of Title 1, upon
application of the board, may issue an order requiring the person to
appear before the board or the person designated by it and to
produce documentary evidence and to give other evidence
concerning the matter under investigation or inquiry.
(G) Whenever the board has reason to believe that any person is
violating or intends to violate any provision of the chapter it may
order, in addition to all other remedies allowed by law, the person
to desist immediately and refrain from the conduct. The board may
apply to an administrative law judge as provided under Article 5 of
Chapter 23 of Title 1 for an injunction restraining the person from
the conduct. An administrative law judge may issue ex parte a
temporary injunction not to exceed ten days in duration and, upon
notice and full hearing, may issue any other order in the matter it
considers proper. No bond may be required of the board by an
administrative law judge as a condition to the issuance of any
injunction or order contemplated by the provisions of this
section.
(H) Any final order of the board finding that a person is
guilty of any offense charged in a formal accusation must become
public knowledge except for a final order dismissing the accusation
or determining that a private reprimand is in order. All final orders
which are made public must be mailed to local, state, and national
professional associations, and all firms or facilities with which the
person is associated, states where the person has a license known to
the board, and to any other source that the board wishes to furnish
this information."
SECTION 6. Chapter 75, Title 40 of the 1976 Code is amended
by adding:
"Section 40-75-165. (A) The board by regulation shall
establish methods by which consumers and service recipients are
notified of the name, mailing address, and telephone number of the
board for the purpose of directing complaints to the board. The
board may provide for that notification:
(1) on each registration form, application, or written contract
for services of an individual or entity licensed under this chapter;
(2) on a sign prominently displayed in each place of business
of each individual or entity licensed under this chapter; or
(3) in a bill for service provided by an individual or entity
licensed under this chapter.
(B) The board shall list along with its regular telephone number
the toll-free telephone number that may be called to present a
complaint about a licensee if the toll-free number is established
under other law."
SECTION 7. Section 40-75-200 of the 1976 Code is amended
to read:
"Section 40-75-200. Every licensee shall make available
to each client a copy of a statement of professional disclosure. The
statement of professional disclosure shall include the licensee's
address and telephone number, fee schedule, educational training,
and the address and telephone number of the board. No
licensee or person licensed under other provisions of state law
authorizing the practice of counseling or marital and family therapy
may charge a client or receive remuneration for professional
counseling or marital and family therapy services unless, prior to
the performance of those services, the client is furnished a copy of
a statement of professional disclosure. The statement of
professional disclosure shall include the licensee's address and
telephone number, the services offered, the fee schedule, the
licensee's educational training and professional credentials, the
address and telephone number of the board, and such other
provisions required by the board."
SECTION 8. This act takes effect upon approval by the
Governor.
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