DEPARTMENT OF HEALTH ‑- COUNSELORS ‑- REGISTRATION OF COUNSELORS UNDER THE OMNIBUS CREDENTIALING ACT FOR COUNSELORS

DEPARTMENT OF HEALTH ‑- COUNSELORS ‑- REGISTRATION OF COUNSELORS UNDER THE OMNIBUS CREDENTIALING ACT FOR COUNSELORS

RCW 18.19.030 requires counselors to register with the Department of Health.  This registration requirement applies to individuals who provide counseling services.  A business that employs counselors is not required to register with the Department of Health pursuant to RCW 18.19.030.

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                                                                    July 12, 1991

Honorable Phil Talmadge
State Senator, District 34
5251 California Avenue SW
Seattle, Washington 98136
                                                                                                                 Cite as:  AGO 1991 No. 24

Dear Senator Talmadge:

            By letter previously acknowledged, you have requested our opinion on the following paraphrased question:

            Under the Omnibus Credentialing Act for Counselors, chapter 18.19 RCW, does the Department of Health have registration and disciplinary jurisdiction over businesses which employ counselors, or only over individuals who provide counseling services?

We answer your question by concluding that the Department of Health has registration and disciplinary jurisdiction only over individuals who provide counseling services.  The characterization of someone as a "counselor" is not determinative.  Persons are subject to chapter 18.19 RCW depending on the nature of their activities.

                                                                BACKGROUND

            In 1987, Washington enacted the Omnibus Credentialing Act for Counselors, Laws of 1987, ch. 512, codified in chapter 18.19 RCW (hereafter "Counselors Credentialing Act.").  Initially, enforcement of this chapter was assigned to the Department of Licensing.  However, in 1989, this responsibility was transferred to the Department of Health.  RCW 43.70.220.

             [[Orig. Op. Page 2]]

            The counselor registration requirement is set forth in RCW 18.19.030 which states:

                        Registration or certification required.  No person may, for a fee or as a part of his or her position as an employee of a state agency, practice counseling without being registered to practice by the department of licensing under this chapter unless exempt under RCW 18.19.040.  No person may represent himself or herself as a certified social worker, certified mental health counselor, or certified marriage and family therapist without being so certified by the department of licensing under this chapter.

            Both "counseling" and "counselors" are defined terms.  RCW 18.19.020(5) and (6), respectively.  Exemptions from the registration requirement are not material here.  See RCW 18.19.040.

            Under the terms of the statute, only counselors themselves are required to register.  There is no requirement that businesses which employ counselors register.  Moreover, the enumeration of powers of the Department of Health in regulating the activities of counselors contains no reference to businesses which employ counselors.  See RCW 18.19.050.

            Similarly, the grant of disciplinary authority over persons subject to the Counselors Credentialing Act does not mention businesses which employ counselors.  The Uniform Disciplinary Act (chapter 18.130 RCW) "governs the issuance and denial of certifications and registrations and the discipline of certified practitioners and registrants" under the Counselors Credentialing Act, among others.  RCW 18.19.050(2).  Under the Uniform Disciplinary Act, the disciplinary action is limited to those who are registered or certified, or apply for such status.1/

            RCW 18.130.050 states, in pertinent part:

                        The disciplining authority has the following authority:

                       . . . .

             [[Orig. Op. Page 3]]

                        (7) To take emergency action ordering summary suspension of a license, or restriction or limitation of the licensee's practice pending proceedings by the disciplining authority;

                       . . . .

                        (13) To grant or deny license applications, and in the event of a finding of unprofessional conduct by an applicant or license holder, to impose any sanction against a license applicant or license holder provided by this chapter;

                        (14) To enter into an assurance of discontinuance in lieu of issuing a statement of charges or conducting a hearing.  The assurance shall consist of a statement of the law in question and an agreement to not violate the stated provision.  The applicant or license holder shall not be required to admit to any violation of the law, nor shall the assurance be construed as such an admission.  Violation of an assurance under this subsection is grounds for disciplinary action[.]

            The Uniform Disciplinary Act also provides for injunctive relief against a person or business regulated by chapter 18.19 RCW.  RCW 18.130.185.  In addition, after a determination that an unlicensed person requires a license, a cease and desist order shall be issued.  RCW 18.130.190(1).  Similarly, under RCW 18.130.190(2), an injunction is available against "any person practicing a profession or business for which a license is required . . . ."  Finally, under RCW 18.130.190(3), criminal sanctions are available for "unlicensed practice of a profession or operating a business for which a license is required . . . ."

            Consistent with these statutory provisions, the administrative rules adopted under authority of the Counselors Credentialing Act, now codified in chapter 246-810 WAC, are directed almost exclusively toward the individual counselor.  For example, the rules recognize that firms, agencies or businesses may supply "generic information relative to a counselor's disclosure to the client," but this is not intended as a substitute for the required disclosure by the counselor.  WAC 246-810-030.  The rules also require counselors to disclose the name of their firm, agency or business, if any.  WAC 246-810-031.

            It is pertinent to note that the Counselors Credentialing Act is not "name protective;"i.e., persons need not be  [[Orig. Op. Page 4]] registered in order to refer to themselves as counselors.2/

            An earlier version of the bill which ultimately became the Counselors Credentialing Act would have precluded a person from representing himself or herself as counselor without being registered, but this language was not included in the bill that was enacted.

                                                                     ANALYSIS

            The words of a statute are to be given their plain and ordinary meaning.  Unless a contrary intent is evident, the clear language of the statute is to be respected.  Federated Am. Ins. Co. v. Marquardt, 108 Wn.2d 651, 658, 741 P.2d 18 (1987);Griffin v. Department of Social & Health Servs., 91 Wn.2d 616, 624, 590 P.2d 816 (1979).

            A state agency has only those powers expressly granted by the Legislature or which have been conferred by implication, as a necessary incident to the exercise of those expressly granted powers.  Anderson, Leech & Morse, Inc. v. Liquor Control Bd., 89 Wn.2d 688, 694, 575 P.2d 221 (1978);State ex. rel. Puget Sound Nav. Co. v. Department of Transp., 33 Wn.2d 448, 476, 206 P.2d 456 (1949).

            We find in the Counselors Credentialing Act no authority, conferred either expressly or by necessary implication, which would justify regulation of businesses which employ counselors, either in addition to, or in place of, regulation of the counselors themselves.3/

            The express statutory grant of authority only refers to individuals who by their conduct are subject to registration.  Enforcement by way of suspension, restriction, or limitation of a registration is similarly limited to applicants and registrants.  Enforcement by way of cease and desist order, injunction, or criminal prosecution is also directed only at the individual required to register.

            Regulation of businesses which employ counselors is not a necessary incident of these enumerated powers.  The Legislature  [[Orig. Op. Page 5]] has granted specific authority to discipline, enjoin, or prosecute those who are required to or do register.  There is no indication that culpability by an employer was covered by this legislation, and no regulatory authority over such employers legitimately can be implied.  When the Legislature has described those persons or classes of entities covered by a regulatory scheme, a legal inference arises that exclusion of other persons or classes of entities was intentional.  Washington Natural Gas Co. v. Public Util. Dist. No. 1, 77 Wn.2d 94, 98, 459 P.2d 633 (1969).  (Statutory list of "natural persons, corporations, trusts, unincorporated associations and partnerships" held to exclude municipal corporations.)  We find nothing in the statutes discussed previously that would rebut our conclusion that the Legislature intended to exclude businesses which employ counselors from the Department of Health's registration and disciplinary jurisdiction.

            We therefore conclude that the Department of Health has registration and disciplinary jurisdiction over counselors, as they are defined in the Counselors Credentialing Act, but does not have such jurisdiction over businesses employing such counselors.  Of course, businesses employing counselors may engage in conduct that render them liable under other laws, e.g., the Consumer Protection Act, chapter 19.86 RCW.  However, in that situation, the Department of Health would not have jurisdiction under chapter 18.19 RCW in such cases.

            With regard to the second issue referenced in your letter, having concluded above that "counselor" is not "name protected," it follows that because a person is referred to as a "counselor" does not mean registration necessarily is required.  Whether a person is a counselor subject to registration under the Counselors Credentialing Act depends on the specific nature of that person's conduct.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

DONALD T. TROTTER
Assistant Attorney General