§34-8A-16. Disciplinary actions; discovery.

(a) The board by a majority of the board members present and voting is authorized to withhold, deny, revoke, or suspend, any license or certificate issued or applied for in accordance with this chapter or otherwise discipline a licensed professional counselor or associate licensed counselor upon proof by proper hearing that the applicant, licensed professional counselor, or associate licensed counselor:

(1) Has been convicted, within or without the jurisdiction of this state, of a felony, or any offense involving moral turpitude, the record of conviction being conclusive evidence thereof.

(2) Has violated the current code of ethics adopted by the board.

(3) Is using any narcotic or any alcoholic beverage to an extent or in a manner dangerous to any other person or the public, or to an extent that it impairs his or her ability to perform the work of a licensed professional counselor or associate licensed counselor with safety to the public.

(4) Has impersonated another person holding a professional counselor license or associate licensed counselor license or allowed another person to use his or her license or certificate.

(5) Has used fraud or deception in applying for a license or certificate or in taking an examination provided for in this chapter.

(6) Has allowed his or her name or license or certificate issued under this chapter to be used in connection with any person or persons who perform counseling services in private practice outside the area of their training, experience, or competence.

(7) Is legally adjudicated mentally incompetent, the record of the adjudication being conclusive evidence thereof.

(8) Has willfully or negligently violated any of the provisions of this chapter or any of the rules and regulations adopted thereunder.

(9) Has been practicing as a counselor without a license.

(b)(1) Notice of denial, revocation, suspension, or disciplinary action is required to be sent by registered mail or personal service setting forth the particular reasons for the proposed action and fixing a date not less than 30 days nor more than 60 days from the date of the mailing or service, at which time the applicant, licentiate, or associate shall be given an opportunity for a prompt and fair hearing. The written notice shall be sent to the last known address of the person, but the nonappearance of the person shall not prevent the hearing. The hearing shall be conducted by the board by means of sworn, recorded testimony. Parties have the right to be represented by counsel and to conduct cross-examination of witnesses.

(2) On the basis of any hearing or upon default of applicant, licentiate, or associate, the board shall make a determination specifying its findings of fact and conclusions of law. A copy of the determination shall be sent by registered mail or served personally upon the applicant, licentiate, or associate. The decision of the board denying, revoking, or suspending the license or certificate shall become final 30 days after so mailed or served unless within that period the applicant, licentiate, or associate appeals the decision to the courts of this state in the same manner and subject to the same powers and conditions as now provided by law in regard to rulings, orders, and findings of other quasi-judicial bodies in Alabama, where not otherwise specifically provided. No appeal, while pending appropriate court action, shall supersede the denial, revocation, or suspension. All proceedings and evidence, together with exhibits presented at the hearings before the board in the event of appeal, are admissible in evidence in the court.

(3) Every order and judgment of the board shall take effect immediately on its promulgation unless the board in the order or judgment fixes a probationary period for applicant, licentiate, or associate. The order and judgment shall continue in effect unless upon appeal the courts by proper order or decree terminate it earlier. The board may make public its order and judgments in the manner and form as it deems proper.

(4) The board may suspend the license of a licensed professional counselor or of an associate licensed counselor for a period of one year. At the end of this period, the board shall reevaluate the suspension and may recommend to the chair the extension of the suspension not to exceed one additional year, the reinstatement, or revocation of the license. A person whose license has been revoked under this section may apply for reinstatement after a period of not less than three years from the date the denial or revocation is legally effective. The board may, upon favorable action by a majority of the board members present and voting, recommend reinstatement.

(c) In addition to any other disciplinary action, the board may levy and collect administrative fines for violations of this chapter or the rules or regulations of the board in an amount not to exceed one thousand dollars ($1,000) for each violation. In addition to fines, the board may assess all legal costs for the preparation and execution of a disciplinary action against a licensee.

(d) The board may issue written reprimands to licensees as an alternative to a formal hearing before the board. The board shall determine the procedures for a written reprimand that shall authorize the investigative committee and members of the board to deliberate and issue written reprimands. No less than two members of the board, along with the investigative committee, shall participate in deliberations leading to a written reprimand. All other members of the board shall remain available for possible appeal. The written reprimand shall not be published by the board, unless required by law, though a copy of the reprimand will be entered into the permanent file of the licensee for a period of time determined by the investigative committee and the members of the board issuing the reprimand. Licensees wishing to appeal the written reprimand may demand a formal hearing before the board members who were not involved in the original reprimand decision. The result of such an appeal may lead to withdrawal of the reprimand, retention of the reprimand, or imposition of additional penalties on the licensee by the board.

(e)(1) Except as provided in subdivisions (2), (3), and (4), all records, reports, documents, photographs, and information contained in complaint and investigation files shall be confidential, shall not be a public record, and shall not be available for court subpoena or for discovery in civil proceedings.

(2) The board shall release all of the following information to the public regarding complaint files and disciplinary action proceedings:

a. A settlement agreement adopted and ratified by the board that closes a complaint file and represents the board's final decision in the disciplinary action proceedings.

b. The formal charges or orders to show cause against an associate licensed counselor or a licensed professional counselor filed by the board's executive director and any amendments thereto.

c. The board's final decision in disciplinary action proceedings entered after a formal disciplinary action hearing.

(3) Notwithstanding any other provisions of this subsection, all complaint and investigation files shall be available to the Department of Examiners of Public Accounts for the purposes of any audit, examination, or review authorized by law.

(4) A party to any civil or administrative proceeding may discover documents, reports, or other tangible items under Act 2009-587 upon a showing that the party seeking discovery has need of the materials in the preparation of the party's case and that party is unable without undue hardship and expense to obtain the substantial equivalent of the documents, reports, or other tangible items by other means.

(Acts 1979, No. 79-423, p. 649, §16; Acts 1997, No. 97-154, p. 196, §3; Act 2000-810, p. 1925, §1; Act 2006-566, p. 1314, §1; Act 2009-587, p. 1724, §1; Act 2010-545, p. 954, §1.)