Inside Enforcement: A Candid Look at Investigations and Discipline at BHEC

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome back to Know your Regulator the podcast that inspires you to engage. I am your host, simone Murphree, and, if you are joining us, from our last episode you heard us dive into the licensing side of things with Daryl Spinks, the executive director for the Texas Behavioral Health Executive Council. In the second part of our conversation, we’re going to shift gears and talk about something just as important enforcement. So we’ll walk through what happens when a complaint is filed, how investigations unfold and what behavioral health professionals can do to protect their license. We’ll share some key resources and best practices you can use to stay in compliance and avoid potential issues before they start. So let’s jump back in. Let’s look at what happens when a complaint is filed. Can you walk us through how the complaint process at BHEC works?

Speaker 2: 1:00

Sure, and we just recently revamped our complaint process. So if folks want to see what it looks like, an outline of it, you can go to our website and click on I think it’s called complaints and discipline or something like that. It’s pretty intuitive what it’s labeled. You can go there and then there’s a button that’ll tell you. You know, click on that to see the complaint process. We’ve even got a flow chart there for you. You can look at that if you’re curious. But in a nutshell, here’s how it works.

Speaker 2: 1:25

Complaint comes in, it gets assigned to an investigator. The investigator is first going to look at it to see does it even just on its face? Does it allege facts that would constitute a violation? If it doesn’t, then it gets flushed immediately. We just go ahead and dismiss it. Now, what are some examples of that? I’ll give you these are this is a real example.

Speaker 2: 1:47

Now I had a complaint come in against an individual, against a psychologist. His neighbor filed a complaint because his leaves were blowing into the neighbor’s pool. That obviously has nothing to do. Yeah, yeah, this is very definition of frivolous, right there. Well, you know, that psychologist never even knew that complaint got filed, because we flushed it immediately and we don’t tell our licensees if we flush those. We don’t even tell them about the existence of it, because we don’t want them having to tell their insurance carrier that somebody filed a frivolous complaint against them. So they’re never even going to know it was filed. But let’s say, on its face it looks like there is something there.

Speaker 2: 2:26

The investigator is then going to conduct a preliminary investigation, going to reach out to the respondent or the licensee and kind of get their side of it, and they’re going to determine whether or not, you know, they think there’s any fire to go along with whatever smoke they perceived from the very beginning. If so, it gets kicked on up to the legal division. They’ll write up a report and it gets kicked up to the legal division. Legal will look at it and see whether or not the attorney thinks that they can make a case on it and then, if they believe they can, they’ll issue what’s called a notice of violation, which is a more formal document to the licensee saying okay, now the investigator looked at it, now I’ve looked at it and I think there’s something here. So you need to try to convince me why there isn’t, and if you can’t, then we’re going to go to an informal settlement conference, which is your chance to convince either the attorney or possibly a board member, depending on who the ISC panel is made up of.

Speaker 2: 3:21

And if you can’t do that, if you can’t convince them to dismiss it, then you’re either going to get an agreed order, a settlement document that will contain whatever your punishment is going to be in the factual findings and conclusions of law, or you can say go pound sand government, I want a hearing. And we go over to SOA and we try it, and it’s just like a bench trial, except it’s before an administrative law judge, not a district judge. Like a bench trial, except it’s before an administrative law judge, not a district judge. And from there, once the ALJ rules, then it comes back into the agency, back into the fold, and we just run it through the process to decide okay, here’s what the ALJ found, here’s the violations that constitutes and here’s the punishment according to the schedule of sanctions. That goes back to what I said earlier. The boards get to set the schedule of sanctions, remember. So they’re the ones setting what the appropriate punishment is for whatever the factual findings are. So that’s how those tie together.

Speaker 2: 4:12

That’s the process kind of in a nutshell. It’s much more convoluted. It looks more complicated on paper, but that’s just really how it works. It’s not difficult to understand. It’s certainly not anything you ever want to understand from having to go through it. So I would really encourage everybody read your rules. It’s a good idea for folks to read when we put out our monthly board packet or not monthly, but our tri-annual board meeting packets. I put all the agreed orders that everybody, all the naughty things that people have done, are in there, so you can kind of see what’s getting folks in trouble and then don’t do that.

Speaker 2: 4:54

Stay away from that, but that’s kind of my advice on that.

Speaker 3: 4:59

Well, that’s a perfect segue for my next question, Daryl. What would you say are some of the most common violations that lead to enforcement actions?

Speaker 2: 5:09

Here’s where your viewership spikes a little bit. Probably the biggest thing I’ve got. I tracked down five so that I would be able to give you five, if you ask me and it’s standard of care. Issues are the biggest things that we see in complaints and that’s stuff like failure to provide therapy within, you know, in line with industry norms. It’s just what you would normally think of as standard of care misdiagnosis, that kind of thing If you misdiagnose somebody. Sexual misconduct is number two. Uh, I was a little surprised to see that it was that high up, but it is Dual relationships.

Speaker 2: 5:44

Now, sexual misconduct and dual relationships are always going to be like you know, twins or cousins, because oftentimes the one leads into the other if it’s not caught or stopped pretty soon. Failure to report would be number four. Failure to reporture to report criminal offenses or disciplinary actions in other states, and that one is such a silly thing to get hung up on by us and I’ll talk to you a little bit about why in just a second. And then, lastly, is unprofessional conduct, and that’s different from standard of care in that unprofessional conduct are actions or communications that typically just upset the client. Inappropriate comments non-sexual but inappropriate comments, or you’re just rude we get a lot of complaints about. Well, I just don’t feel like you know he was very understanding and I’m like well, maybe you needed to be told something you didn’t like. You know we’re not going to sanction somebody for calling you on the carpet when you went to them because your behavior was problematic to begin with. So you know, those are the five big things you know on the failure report. I just want to take a little bit of liberty on that.

Speaker 2: 6:57

I know people view us as kind of the monster that hides in the night looking to snatch your license away and statistically, when you look at it, that’s just really not the truth. When you look at the number of people that we actually discipline versus the number of complaints we receive, 50 percent of the complaints that come in result in some sort of disciplinary action. It’s not much. So if you are, if you are afraid to report that you got caught streaking on South Padre Island, you’re a fool. Nobody cares that you went streaking on South Padre Island.

Speaker 2: 7:32

You know, unless you’re an axe murderer, it’s really hard to, or unless you commit some sort of an offense that is related to what you’re practicing or in connection with your practice. That is related to what you’re practicing or in connection with your practice, it’s just really hard for us to want to do anything, much less do anything to you as a result of some poor judgment. The criminal system is there to punish and try to redirect your bad decision making. We don’t need to pile on unless it’s something related to us. So I always tell people I’m like, look, just report it. It’s, you know, nine times out of 10, it’s not going to be a problem, it’s just when you don’t report it. It’s 100% of the time a problem in that case. So that’s the only thing I would mention there case.

Speaker 1: 8:29

So that’s the only thing I would mention there. Yeah, I mean, I have always felt honesty is the best policy. Sometimes you start lying and you get so deep into that lie you got to lie on top of it and so I think, yeah, that’s good. Just be honest and forthcoming, and you know that that right there is the testament to your character. Um, good, good advice. Um, let’s say that a license holder does find themselves under investigation. What should they do?

Speaker 2: 8:54

Okay. So I know I’m giving a podcast with a law firm here and I know this is going to sound very strange coming from me, but I would consult with legal counsel first. I’m the government and here I am telling you you need to go talk to a lawyer before you talk to us. Now, full disclosure. I’m not telling folks that because I want to be noble or magnanimous or anything. I’m telling you that because it is so much easier for us to deal with an attorney than it is a pro se party or a respondent licensee.

Speaker 2: 9:23

My folks are really good at doing notes, writing reports within their field, and they are terrible at responding to our preliminary investigation notices or really responding to the information and giving us the information we need.

Speaker 2: 9:38

They’re usually so distraught, they’re nervous, understandably, but that definitely affects your ability to be an effective communicator with us and an attorney kind of gives you that separation, that degree of separation and that objectivity. Plus they typically know how we structure. It’s a very structured format that we use on our notices that go out, and so usually, once you’ve been practicing with us, you know what it looks like. It’s very easy for the attorney to kick out a response and then they also point us to the evidence and the record that we need to know to help us make a decision and make our investigation go quicker. So the first thing, go talk to a lawyer. You know, that’s the biggest thing out there for us, just because let them hold your hand so that we don’t have to, is really what it is, and I don’t mean that to sound snotty or anything, but it just that’s a practical, that’s just a practical truth.

Speaker 1: 10:34

Right.

Speaker 2: 10:36

The other thing that I would say is, if you find yourself in trouble, make sure you you gather up and you keep all the relevant documentation and for heaven’s sakes, don’t start changing stuff, because there’s where you really get yourself into trouble, but not only with us, but that could very well be a crime, you know, especially if, like, insurance is involved, anything like that. Make sure you make notes about any anything, any conversations you’ve had that maybe aren’t documented in the record, just make sure you make some notes. If you had some kind of conversation, or if your staff had some kind of some sort of conversation with a relevant person, make sure they’ve notated that that way, because as this thing progresses down, you know may forget, you may need something to refresh your memory going forward. So just do all of that. And the last thing do not ignore us.

Speaker 2: 11:30

That is one of the most frustrating things is when people just blow us off and they’re like well, I guess it’ll go away, or it’s just who cares. I’m like, well, that was a big mistake, because now it really doesn’t matter if it was a BS claim against you. Now you’ve ignored and you’ve failed to cooperate with an investigation that is now taking primacy in the investigatory process. So that’s probably what you’re going to get dinged on is the failure to cooperate. Even if it turns out the initial complaint was maybe, you know, pointless or there just wasn’t anything there, we would have agreed with you that it wasn’t worth pursuing.

Speaker 2: 12:07

But now, because you ignored us and you made us expend and jump through all these extra hoops to get you into the system, you’re going to have to pay for that. So in that, I don’t I’m not trying to sound, you know, overly dictatorial there or anything like that but you have to do that. You kind of have to hold people’s feet to the fire. That’s part of again being a professional. You have now subjugated yourself to this and you need to honor that. It’s a contract. We have given you a monopoly to practice in this profession and you need to respond to us whenever we have questions about how you’ve conducted yourself. So that’s the trade-off.

Speaker 3: 12:47

So, Daryl, one question that I’d like to bring up almost in every podcast is how do these investigations get sent to the clients?

Speaker 2: 12:58

Like our licensee.

Speaker 3: 13:00

Yes.

Speaker 2: 13:02

So if we move forward, then whatever the complaint that sends us, we share that with the respondent licensee. We have an open file policy. The only thing that doesn’t get shared is the investigator’s report, because it’s like a police report, it’s more of an internal document. But everything else goes. Uh, the the licensee has access to everything. Um, we don’t, we don’t redact. Uh, there’s no.

Speaker 2: 13:29

People can file anonymous complaints, but the chances of an anonymous complaint actually going anywhere are slim to none unless I can objectively verify. Here’s an example. If somebody says, hey, daryl’s out there advertised that he’s a psychologist when he’s not on his side at his office, well, I could go look at that, take a picture and go yeah, you violate the law, but we have anonymous complaints. Come in all the time. That says you know well, daryl’s cheating insurance and you need to look into his files. I’m like well, I’m not going to subpoena all his patient records to see who he’s. You know, I’m not going to go on a fishing expedition, so that kind of stuff just goes away. But you know, that’s really. I mean, that’s it. We have an open file policy. You’re going to get to see whatever we got to see and whatever we’re going to use at trial. You’re going to get to see that, so there’s not going to be any gotcha. No-transcript.

Speaker 3: 14:29

Okay, I appreciate that. In addition to that, what would you say are some preventative steps license holders can take to stay in compliance and to avoid complaints?

Speaker 2: 14:43

Read the rules. I mean, stay up to date on the rules, and I’m not saying you have to study them every week, every month, but you ought to study them. You ought to study them after every council meeting. And here’s why Because any changes that will have occurred have to have occurred.

Speaker 2: 14:58

Only the council can propose and adopt rules. Remember, they may come from the member boards, but it’s only the council that can propose and adopt them. So you don’t have to be constantly watching for new changes. You just have to watch after each council meeting and, honestly, we publish a PDF on our website. It’s under the statutes and rules sections. There’s a PDF and we actually list all the changes that we made in that particular rule, I think going back a year. So you can flip through that and just look and see. Oh, that might be something that pertains to me and I’ll go look at that. Also. Every council meeting, when we propose new rules, we have a web page that’s dedicated to.

Speaker 2: 15:42

If you want to give public comment I mean, you can give public comment but if you just want to look at what the change is, just click on that web page and click on the rule and it will show you the strikethroughs, the underlines. It’ll show you what changes were being proposed, so you can kind of keep track that way, of what’s going on. Now, does this require a little bit of work on your part as a professional? Absolutely, but again, you’re a professional, that’s part of it, you know. So I don’t have a lot of sympathy for you there. Maybe that’s just me being a lawyer, but I don’t have a lot of sympathy for you if you’re. If you claim well, I didn’t know, you know, I’ve done everything I can to make it easy for you to know, right.

Speaker 1: 16:23

Right, yeah, hey, no, you want to. You want to get in, the, get your head in the ball game. I don’t know, I don’t have a good analogy for that, but yeah no that makes sense.

Speaker 1: 16:33

You know, you, you’re, you’re on this train man, you know and that’s. You can’t just get off when you want to. You got to wait for your stop and so while you’re riding you need to make sure that you’re being a law abiding passenger, kind of on that. Same again, same wavelength, what, what other kinds of resources? I know we’ve named a few. You’ve talked about the newsletter. You’ve talked about board meeting minutes and taking a look at that. Are there other resources that BHEC offers that can help professionals stay compliant and updated on rules and renewals and enforcement trends, things like that?

Speaker 2: 17:14

I’ll tell you what we have started doing and I personally enjoy doing it is we have after every council meeting, so three times a year we have something called Insights Over the Lunch Hour, which is where staff put on executive staff put on a webinar and we outline all the major rule changes that were adopted, and I think sometimes we even do the stuff that was proposed, but then we also open it up to questions after that, and I don’t, I mean you can ask me what my favorite color is, whatever. It’s all fair game. The only thing I won’t talk about is a pending application or a pending complaint. But then every month we also do something called. It’s like listening over the lunch hour. I forget you’d think I would remember this since I set it up, but it’s basically it’s just a listening session where you get me, my deputy, my GC, all my board administrators If they’re practice related, if you just want to gripe about, you know this rule stinks.

Speaker 2: 18:12

We don’t like the way it works. Okay, you can tell us and then we’ll just answer you right then, or you know we’ll talk to you about why something is that way. So we’re trying to make it. We’re not a small agency, but I think we’re probably the only agency that does this. I don’t know of another agency that puts their entire executive team out there in a webinar and says I don’t either. Yeah, and when we get a lot of hard questions that are sometimes hard to, you got to be willing to take some arrows, sure.

Speaker 3: 18:46

Yeah, and and Daryl, the name of it is leadership listening hour, Cause I I?

Speaker 1: 18:50

attend those.

Speaker 2: 18:51

I was going to say Melissa’s seen a few of them, yeah, I’m ashamed to say I didn’t even know the name of the listening hour, but there it is. She got it.

Speaker 1: 19:01

That’s awesome, though that is just like you said. I don’t know of another agency that does that too, and I think that is so great for license holders there. Gosh, you really can’t come back and say I didn’t know. When it comes to the behavioral health executive council, you really can’t come back and say I didn’t know. When it comes to the Behavioral Health Executive Council, you guys are really giving license holders tons of options and opportunities to make their voices heard and understand completely what the rules are surrounding their professions Fantastic.

Speaker 3: 19:31

Daryl, what would you say is one key piece of advice you’d give to behavioral health professionals to protect their licensing careers?

Speaker 2: 19:42

Maintain good communications with your clients and your patients. Well, let me back up. Number one stay abreast, stay current on what the rules and regs are. It’s really not that hard, it’s just not. The substantive components really don’t change that much, so it shouldn’t be that hard. Number two make sure you respond to emails, inquiries, attempts to communicate from your clients or your patients, whatever you call them.

Speaker 2: 20:16

Oddly enough, this third one is going to sound strange, but I always tell people I’m like don’t text, stay off social media with your clients. I’m not saying you don’t need to have a Facebook page for friends and family and you know goofy stuff that you want to do, but I see more. I’m telling you right now, text messaging and social media is like a slippery slope, you know, greased with axle grease. I just see almost nothing good come about of it whenever people start doing that and it takes you right into a pit of problems that if you just hadn’t responded on the weekend to that one text, it never would have started snowballing into something else. So if there was one thing I could do to get my licensees, I would be like quit texting, quit allowing your patients, your clients, to text you.

Speaker 2: 21:06

If it were me, I wouldn’t even do it, for, hey, I’m going to be late to this appointment. I would say you need to call my secretary or send an email, but you’re never going to have my personal cell phone number. That is probably. That’s one of the biggest dangers that I see as the executive director of this agency, and it’s true across all the professions. It’s not, it’s not just psychology, it’s not counseling. It’s true against you know, across all of them. So I would just avoid that if at all possible. Now, I know there’s a big school of thought out there that disagrees with me on that, but I see it as very dangerous.

Speaker 1: 21:42

Yeah, I can definitely see where those lines may get blurred when it comes to social media texting and things like that. And you know, these were not issues that we were having 20 years ago. So it’s all you know. It’s all new, and with new technology always comes new regulations. So, yeah, absolutely, I mean it’s good to be aware of that. So well, thank you, daryl, so much for your time this afternoon and sharing your insights with our team and our viewers. I mean this has just been a really great episode, full of takeaways. Good.

Speaker 2: 22:21

It’s a pleasure meeting two of you and doing this.

Speaker 3: 22:24

Yes, sir, thank you.

Speaker 1: 22:27

And thank you to our listeners as well. If you would like to learn more about BHEX rules, licensing, updates or enforcement policies, please visit the website below in our description. Don’t forget to subscribe to Know your Regulator for more episodes breaking down these Texas rules and regulations. Until next time, stay inspired and continue engaging with your regulatory agency.

Speaker 2: 22:49

Know your.

Speaker 1: 22:50

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