††††† 201 KAR 26:130. Complaint procedure.

 

††††† RELATES TO: KRS 319.005, 319.082, 319.118, 319.990

††††† STATUTORY AUTHORITY: KRS 319.032

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 319.005 prohibits unlicensed persons from engaging in the practice of psychology or using the title of psychologist, licensed psychologist, certified psychologist, licensed psychological practitioner or licensed psychological associate. KRS 319.082 delineates the causes for which disciplinary action may be taken against a licensed holder. KRS 319.118 authorizes the board to institute and maintain actions to restrain or enjoin violations. KRS 319.990 sets forth the criminal penalty for violations and authorizes prosecution of violators. KRS 319.032 authorizes the board to develop guidelines for use in complaints involving alleged sexual misconduct by a licensed holder, and for training of investigators in these matters. This administrative regulation is established to protect and safeguard the health and safety of the citizens of Kentucky and to provide procedures for filing, evaluating, and disposing of complaints.

 

††††† Section 1. Definitions. (1) "Act" means Chapter 319 of the Kentucky Revised Statutes.

††††† (2) "Board" is defined in KRS 319.010(2), and for purposes of this administrative regulation, shall also refer to a hearing panel.

††††† (3) "Charge" means a specific allegation contained in any document issued by the board or hearing panel alleging a violation of a specified provision of the KRS Chapter 319 or the administrative regulations promulgated thereunder.

††††† (4) "Formal complaint" means a formal administrative pleading authorized by the board that sets forth charges against a licensed holder or applicant and commences a formal disciplinary proceeding in accordance with KRS Chapter 13B.

††††† (5) "Initiating complaint" means any allegation alleging misconduct by a licensed holder or applicant or alleging that an unlicensed person is engaging in the practice of psychology or using the title of psychologist.

††††† (6) "Order" means the whole or any part of a final disposition of a hearing.

††††† (7) "Person" means any individual, partnership, corporation, association, or public or private organization of any character other than an agency.

††††† (8) "Presiding officer" means the person appointed by the board to preside at a hearing pursuant to KRS 319.032(1)(h), and shall include either a hearing officer or a member of the hearing panel.

††††† (9) "Respondent" means the person against whom an initiating or a formal complaint has been made.

 

††††† Section 2. Initiating Complaint. (1) Source of initiating complaint. A complaint may be initiated by the board, by the public or by any governmental agency. A certified copy of a court record for a misdemeanor or felony conviction relating to the practice of psychology shall be considered a valid complaint.

††††† (2) Form of initiating complaint. Initiating complaints shall be in writing and shall clearly identify the person against whom the complaint is being made. Further, the complaint shall contain the date, and shall identify by signature the person making the complaint, and shall contain a clear and concise statement of the facts giving rise to the complaint.

††††† (3) Receipt of initiating complaint. A complaint may be received by any board member, credential holder designated by the board, by the Office of the Attorney General, or by any staff member.

††††† (4) Reply of respondent. A copy of the initiating complaint shall be mailed to the respondent. The respondent shall file with the board a written response to the initiating complaint within fifteen (15) days of the date on which the initiating complaint was mailed.

††††† (5) Consideration of initiating complaint. At the next regularly-scheduled meeting of the board or as soon thereafter as practicable, the board or a panel of the board shall review the initiating complaint and response. At that time, the board shall determine if an investigation is warranted, and if so, the board may appoint one (1) of its members or any agent or representative of the board to conduct an investigation of the complaint.

††††† (6)(a) If there is reasonable cause to believe that a license holder or applicant for a license is physically or mentally incapable of practicing psychology with reasonable skill and safety to clients, the board may order the license holder or applicant to submit to an examination by a psychologist or a physician designated by the board to determine the license holder's or applicant's psychological or physical status to practice psychology.

††††† (b) The expense of this examination shall be borne by the board.

††††† (c) The board shall then consider the findings and conclusion of the examination and the final investigative report at its next regularly-scheduled meeting or soon thereafter.

††††† (7) Investigation.

††††† (a) The person about whom the initiating complaint has been considered shall be contacted. With the consent of the respondent, a meeting may be scheduled at which time he or she may respond further to the allegations of the initiating complaint. The board and the respondent shall have the right to be represented at the meeting by legal counsel.

††††† (b) Report of investigation. Upon the completion of the investigation, the person or persons making that investigation shall submit a written report to the board containing a succinct statement of the facts disclosed by the investigation.

††††† (c) Consideration of complaint and investigative report. Based on consideration of the complaint, the investigative report, if any, and the psychological or physical examination, if any, the board shall determine if there has been a prima facie violation of the Act. If the investigator is a member of the board, he or she shall not vote. If it is determined that the facts alleged in the complaint or investigative report do not constitute a prima facie violation of the statute or administrative regulations, the board shall notify the person making the complaint and the respondent that no further action shall be taken at the present time. If it is determined that there is a prima facie violation of KRS 319.082 or administrative regulations, the board shall issue a formal complaint against the license holder or applicant. In the case of a prima facie violation of KRS 319.005, the board shall file suit to enjoin the violator or shall seek criminal prosecution pursuant to KRS 319.990.

 

††††† Section 3. Formal Complaint. If the board determines that the initiating complaint shall be made a formal complaint, the following actions shall be initiated:

††††† (1) Issuance of formal complaint. The board shall provide the respondent with a written formal complaint which shall set forth:

††††† (a) Each offense charged;

††††† (b) Notice of the respondent's right to be represented by counsel;

††††† (c) Notice of the respondent's right to subpoena witnesses in the respondent's behalf; and

††††† (d) Notice of the respondent's right to appeal after an adverse adjudication.

††††† (2) Service of formal complaint. Service of process shall be provided in accordance with KRS 13B.050(2).

††††† (3) Issuance of hearing notice. Notice of the hearing shall be provided as required by KRS 13B.050(1) and (3).

 

††††† Section 4. Formal Response. Within twenty (20) days of service of the formal complaint, the respondent shall file with the board a written response to the specific allegations set forth in the formal complaint. Allegations not properly responded to shall be deemed admitted. The board may, for good cause, permit the late filing of a response.

 

††††† Section 5. Allegations of Sexual Misconduct by a License Holder. (1) To assure confidentiality for the complainant, the alleged victimís name shall not be used in any written document. This individual shall be identified by initials only or by some other mechanism adopted by the board for identification.

††††† (2) Upon request, the testimony of the alleged victim may be taken by deposition in order to assure his or her confidentiality.

††††† (3) To protect the confidentiality of all parties, the board may issue an order restraining all parties and their representatives, including counsel, from any discussion or release of information about the allegations outside of the investigative and hearing processes.

††††† (4) In accordance with the provisions of KRS 319.032(1)(d), the board may hold some or all of the hearing procedures in closed session.

 

††††† Section 6. Board Member Training for Cases of Sexual Misconduct. (1) Within six (6) months of their appointment, all board members and investigators shall undergo specialized training to cover the content specified by KRS 319.032(1)(e).

††††† (2) No investigator shall be assigned to cases where sexual misconduct has been alleged until such training has been completed.

††††† (3) Training shall consist of a three (3) hour course which includes the content specified by KRS 319.032 and may be delivered by means of either live presentation, individual tutorial, or videotape. (13 Ky.R. 2162; eff. 7-2-87; Am. 20 Ky.R. 579; 933; eff. 10-21-93; 28 Ky.R. 1459; 1802; eff. 2-7-2002; 37 Ky.R. 1516; 1977; eff. 3-4-2011.)