201 KAR 36:050. Complaint management process.

 

      RELATES TO: KRS 335.540, 335.545

      STATUTORY AUTHORITY: KRS 335.515(3), (7)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 335.515(3) requires the board to promulgate administrative regulations necessary to carry out and enforce the provisions of KRS 335.500 to 335.599. This administrative regulation establishes the procedures for filing, investigating, and addressing a complaint filed against a professional counselor.

 

      Section 1. Definitions. (1) "Chairman” means the chairman or vice-chairman of the board.

      (2) "Charge” means a specific allegation contained in a formal complaint, as established in subsection (4) of this section, issued by the board alleging a violation of a specified provision of KRS 335.500 to 335.599; the administrative regulations promulgated thereunder; or any other state or federal statute or regulation.

      (3) "Complaint” means any written allegation of misconduct by a credentialed individual or other person which might constitute a violation of KRS 335.500 to 335.599, the administrative regulations promulgated thereunder, or any other state or federal statute or regulation.

      (4) "Complaint screening committee" means a committee consisting of three (3) persons appointed by the chairman of the board to review complaints, investigative reports, and to participate in informal proceedings to resolve a formal complaint. The executive director of the board or another staff member may be appointed to serve on this committee.

      (5) "Formal complaint” means a formal administrative pleading authorized by the board which sets forth charges against a licensed individual or other person and commences a formal disciplinary proceeding pursuant to KRS Chapter 13B or requests the court to take criminal or civil action.

      (6) "Informal proceedings” means the proceedings instituted at any stage of the disciplinary process with the intent of reaching a dispensation of any matter without further recourse to formal disciplinary procedures under KRS Chapter 13B.

      (7) "Investigator” means an individual designated by the board to assist the board in the investigation of a complaint or an investigator employed by the Attorney General or the board.

 

      Section 2. Receipt of Complaints. (1) A complaint:

      (a) May be submitted by an:

      1. Individual;

      2. Organization; or

      3. Entity.

      (b) Shall be:

      1. In writing; and

      2. Signed by the person offering the complaint.

      (c) May be filed by the board based upon information in its possession.

      (2) Upon receipt of a complaint:

      (a) A copy of the complaint shall be sent to the individual named in the complaint along with a request for that individual’s response to the complaint. The individual shall be allowed a period of twenty (20) days from the date of receipt to submit a written response.

      (b) Upon receipt of the written response of the individual named in the complaint, a copy of his response shall be sent to the complainant. The complainant shall have seven (7) days from the receipt to submit a written reply to the response.

 

      Section 3. Initial Review. (1) After the receipt of a complaint and the expiration of the period for the individual’s response, the complaint screening committee shall consider the individual’s response, complainant’s reply to the response, and any other relevant material available and make a recommendation to the board. The board shall determine whether there is enough evidence to warrant a formal investigation of the complaint.

      (2) If the board determines before formal investigation that a complaint is without merit, it shall:

      (a) Dismiss the complaint; and

      (b) Notify the complainant and respondent of the board's decision.

      (3) If the board determines that a complaint warrants a formal investigation, it shall:

      (a) Authorize an investigation into the matter; and

      (b) Order a report to be made to the complaint screening committee at the earliest opportunity.

 

      Section 4. Results of Formal Investigation; Board Decision on Hearing. (1) Upon completion of the formal investigation, the investigator shall submit a report to the complaint screening committee of the facts regarding the complaint. The committee shall review the investigative report and make a recommendation to the board. The board shall determine whether there has been a prima facie violation of KRS 335.500 to 335.599 or the administrative regulations promulgated thereunder and a complaint should be filed.

      (2) If the board determines that a complaint does not warrant issuance of a formal complaint, it shall:

      (a) Dismiss the complaint or take action pursuant to KRS 335.540(3); and

      (b) Notify the complainant and respondent of the board's decision.

      (3) If the board determines that a complaint warrants the issuance of a formal complaint against a respondent, the complaint screening committee shall prepare a formal complaint which states clearly the charge or charges to be considered at the hearing. The formal complaint shall be reviewed by the board and, if approved, signed by the chairman and served upon the individual as required by KRS Chapter 13B.

      (4) If the board determines that a person may be in violation, it shall:

      (a) Order the individual to cease and desist from further violations of KRS 335.505;

      (b) Forward information to the county attorney of the county of residence of the person allegedly violating KRS 335.505 with a request that appropriate action be taken under KRS 335.599; or

      (c) Initiate action in Franklin Circuit Court for injunctive relief to stop the violation of KRS 335.505.

 

      Section 5. Settlement by Informal Proceedings. (1) The board, through counsel and the complaint screening committee, may, at any time during this process, enter into informal proceedings with the individual who is the subject of the complaint for the purpose of appropriately dispensing with the matter.

      (2) An agreed order or settlement reached through this process shall be approved by the board and signed by the individual who is the subject of the complaint and the chairman.

      (3) The board may employ mediation as a method of resolving the matter informally.

 

      Section 6. Notice and Service Process. A notice required by KRS 335.500 to 335.599 or this administrative regulation shall be issued pursuant to KRS Chapter 13B.

 

      Section 7. Notification. The board shall make public:

      (1) Its final order in a disciplinary action under KRS 335.540 with the exception of a written admonishment issued pursuant to KRS 335.540(3); and

      (2) An action to restrain or enjoin a violation of KRS 335.505. (25 Ky.R. 485; Am. 832; eff. 9-16-98.)