172 Neb. Admin. Code, ch. 94, § 013

Current through September 17, 2024

Section 172-94-013 - UNPROFESSIONAL CONDUCT

Unprofessional conduct includes but is not limited to the acts set out in Neb. Rev. Stat. § 38-179 and these regulations.

013.01COMPETENCE. A credential holder must not provide services for which he or she is not trained or experienced, unless he or she associates with another credential holder with established competence in the service or obtains the knowledge through necessary study. A credential holder must not encourage or promote the practice of mental health services, social work, professional counseling, or marriage and family therapy by untrained or unqualified persons.

013.02CONFIDENTIALITY. A credential holder must hold in confidence information received from a potential client with respect to the service requested, except in those unusual circumstances in which to do so would result in clear danger to the person or to others, or where otherwise required or permitted by law. A person who communicates information unilaterally to a credential holder without a reasonable expectation that the credential holder is willing to form a client-therapist relationship, is not a potential client.

013.03DISCLOSURE OF CONFIDENTIAL INFORMATION. A person credentialed or certified pursuant to these regulations must not disclose any information he or she may have acquired from a client or patient, except:

(A) With the written consent of such person;

(B) In the case of death or disability when the client or patient is unable to consent, with the consent of a person legal authorized to consent on behalf of the decedent or client or patient;

(C) When more than one person in a family received therapy conjointly, each such family member who is legally competent to execute a waiver must agree to the waiver referred to in this section. Without such a waiver from each family member legally competent to execute a waiver, a practitioner must not disclose information received from any family member who received therapy conjointly for any therapy session where the non-consenting family member was present;

(D) As such privilege is limited by the laws of the state of Nebraska;

(E) When the person waives the privilege by bringing charges against the credential holder; and

(F) When there is a duty to warn under the limited circumstances set forth in Neb. Rev. Stat. § 38-2137.

013.04DISCRIMINATION. Credential holders must provide professional assistance to clients or patients without discrimination on the basis of race, color, religion, sex, disability, marital status, national origin, age, familial status, and ancestry.

013.05DUAL RELATIONSHIP. Credential holders must make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of exploitation. When a dual relationship cannot be avoided, credential holders must take appropriate professional precautions, such as seeking supervision or professional consultation, to ensure judgment is not impaired and no exploitation occurs. Dual relationships include, but are not limited to, business or close personal relationships with a client.

013.05(A)SEXUAL INTIMACY OR CONTACT. Sexual intimacy or contact with a client during the provision of professional services, 5 years preceding the provision of professional services, or with a former client less than 5 years following the last professional contact is prohibited.

(i) Sexual Intimacy means any written, verbal, or physical behavior which a reasonable person would find to be sexually seductive or sexually demeaning. Sexual intimacy may or may not include sexual contact.

(ii) Sexual contact includes sexual intercourse, either genital or anal, cunnilingus, fellatio, sodomy or the handling of breasts, genital areas, buttocks, or thighs whether clothed or unclothed, initiated or consented to by the credential holder.

013.05(B)EXPLOITATION. In the therapeutic relationship, credential holders need to be aware of the intimacy and responsibilities inherent in the therapeutic relationship and must avoid actions that seek to meet their personal needs at the expense of clients. Credential holders must be aware of their influential positions with respect to clients, and they must avoid exploiting the trust and dependency of such persons. Credential holders, therefore, must make every effort to avoid conditions and multiple relationships with clients that could impair professional judgment or increase the risk of exploitation. Failure to comply with this standard is considered unprofessional conduct.

013.06PROFESSIONAL RECORDS. Failure to comply with the following professional record requirements is unprofessional conduct:

(A) Client records must be maintained a minimum of 5 years following termination of services. Records or documentation of the actual fact of clinical record destruction must be maintained for an additional 5 years;

(B) Client records must be stored, safeguarded, and disposed of in ways that maintain confidentiality and in accord with applicable laws and professional standards;

(C) Prior to the credential holder moving from the area, closing a practice, or prior to the death of the credential holder, a credential holder must arrange for the storage, transfer, or access to, or dispose of client records in ways that maintain confidentiality and safeguard the welfare of clients;

(D) Client records must include a signed and dated informed consent agreement outlining confidentiality and the limitations of confidentiality, as well as the rights and responsibilities of the client in the client's file;

(E) Client records must include documentation which reflect the services provided and include applicable release of information and discussions with other professionals; and

(F) A credential holder must allow a client access to his or her records in accordance with Neb. Rev. Stat. § 71-8401 to 71-8407.

013.07PROFESSIONAL RELATIONSHIPS. A credential holder must safeguard the welfare of clients or patients and maintain professional relationships with clients or patients. Commission of any of the following acts or behavior constitutes unprofessional conduct.

(A) Exploiting another person for one's own advantage;

(B) Performing or agreeing to perform mental health services, social work, professional counseling, or marriage and family therapy that have been requested when such services are known to be contraindicated or unjustified;

(C) Performing or agreeing to perform procedures that have been requested when such procedures are known to be outside of the mental health practice, social work, professional counseling, or marriage and family therapy scope of practice;

(D) Verbally or physically abusing clients or patients;

(E) Attempting to provide diagnostic or treatment information to patient(s) or client(s) that is beyond the credential holder's level of education, training and expertise;

(F) Failing to make a referral when a referral is in the patient's or client's best interest;

(G) Delegating to other personnel those client or patient related services for which the clinical skills and expertise of a credential holder are required;

(H) Failure to safeguard the patient's or client's dignity and right to privacy;

(I) Failure to take reasonable steps to clarify at the outset the following:

(i) Who is the client or patient; and

(ii) The relationship the practitioner will have with each person if there are multiple individuals present. This clarification includes the practitioner's role, the probable services to be provided, and the probable uses of the information obtained; or

(J) Committing any act which endangers client or patient safety or welfare.

013.08REFERRALS. If, for any reason, a credential holder is unable to provide therapeutic services to a client or patient, the credential holder must refer the client or patient to other credential holders. This may be done by directing the client or patient to specific credential holders or to a list or directory of credential holders who may be able to provide professional assistance. The referral must be documented in the client or patient's record. Failure to comply with this standard is unprofessional conduct.

013.09SEXUAL HARASSMENT. A credential holder must not under any circumstances engage in sexual harassment of clients or patients. Sexual harassment includes making unwelcome sexual advances, requesting sexual favors, and engaging in other verbal or physical conduct of a sexual nature which results in:

(A) Providing or denying care to a client or patient;

(B) Creating an intimidating, hostile, or offensive environment for the client or patient; or

(C) Interfering with a patient's or client's ability to recover.

013.10STUDENTS AND SUPERVISEES. Failure to comply with the following is considered unprofessional conduct:

(A) A credential holder must not exploit the trust and dependency of students and supervisees.

(B) A credential holder must be aware of his or her influential positions with respect to students and supervisees, and they must avoid exploiting the trust and dependency of such persons. Credential holders, therefore, must make every effort to avoid conditions and multiple relationships that could impair professional objectivity or increase the risk of exploitation. When the risk of impairment or exploitation exists due to conditions or multiple roles, therapists must take appropriate precautions.

(C) A credential holder must not provide professional services to current students or supervisees.

(D) A credential holder must not engage in sexual intimacy with students or supervisees during the evaluative or training relationship between the credential holder and student or supervisee

(E) A credential holder must take reasonable measures to ensure that professional services provided by supervisees are within the supervisees training, level of experience, and competence.

(F) A credential holder must avoid accepting as supervisees or students those individuals with whom a prior or existing relationship could compromise the credential holder's objectivity. When such situations cannot be avoided, credential holders must take appropriate precautions to maintain objectivity. Such relationships include, but are not limited to, those individuals with whom the credential holder has a current or prior sexual, close personal, immediate familial, or therapeutic relationship.

(G) A credential holder must not disclose information from a supervisee about a client or patient which is obtained as part of a professional relationship except with written authorization or waiver from or by the client or patient, or when mandated or permitted by law. In educational or training settings where there are multiple supervisors, disclosures are permitted only to other professional colleagues, administrators, or employers who share responsibility for training of the supervisee.

(H) A credential holder must sign-off as completed a supervisee's hours of experience, when the hours have been completed.

013.11FAILURE TO COOPERATE WITH INVESTIGATIONS. Refusal to cooperate or failure to furnish requested information during any investigation by the Department.

172 Neb. Admin. Code, ch. 94, § 013

Amended effective 7/12/2021