She filed a malpractice complaint against her licensed counselor. Her case highlighted flaws in the system and inspired change

Texas’ top regulator acknowledges that a patient complaint failed, but has made changes to prevent similar cases.

DALLAS He often whispered as he spoke.

I’m human too, he told her. If I’m attracted to you, I can be attracted to you.

But the person who says it is not what you would expect. He was her advisor and she was his client.

This happened to both of us, I understand, I’m the professional here, he told her. You have affected me in a way that no one else ever has.

Shed came that day to confront him.

I felt hurt because of you, she said. I felt manipulated by you.

She secretly recorded the meeting.

During the more than two-hour recording, the counselor alternates between apologizing for what happened while simultaneously blaming her patient, asking her not to report him because he feared losing his license.

I didn’t want him to be able to continue doing what he did to me, she told VFAA. I didn’t want him to be able to do that to other people.

She asked us not to use her real name. Instead, we use the pseudonym, Emily.

A VFAA investigation found that after Emily filed a complaint in 2019, the counselor allowed his license to lapse without the state ever taking action. Later, the same counselor had her license reinstated without her complaint being investigated, even though Shedd provided state regulators with a copy of the audio recording.

As a result of the VFAA’s investigation, state regulators have enacted changes to ensure this does not happen again.

“I’m still angry about that because they’re an agency that’s supposed to keep people safe,” Emily said in an interview.

In 2018, Emily sought help for anxiety from licensed professional counselor Max Duran. She says she saw him once a week for about 10 months.

I would say the process of his inappropriateness was very gradual, Emily told VFAA. It’s hard to explain how those little incremental things didn’t raise red flags. But when they happen little by little, maybe not every session, them not yelling at you is something that shouldn’t happen.

He says that over time she started to have feelings for him, so she told him about it.

At the end of the day, I think he picked up on it and used it as a way to be abusive, Emily said.

Shannon Thomas, who specializes in counseling victims of abuse, told the VFAA that it’s not uncommon for clients to feel supported and then switch to thinking there is a romantic relationship.

We go to therapy for trust, for a place where we feel safe, Thomas said. A predatory therapist focuses on that and will absolutely exploit it.

Emilys’ complaint to state regulators says it started with an arm hug and eventually sexually inappropriate comments. She told state officials that it escalated into fondling and kissing after about eight months.

I didn’t leave therapy feeling good, Emily said. I left therapy feeling really confused. Hurt. So I reached out to my friend and informed her what was happening. And she immediately said, You have to stop seeing him.

That was in the summer of 2019, according to her complaint. Emily says she took a picture of him the last time she saw him.

I know what I did wrong. Okay? Duran explained to Emily, according to the tape.

In the tape, Duran told Emily he didn’t want to punish her by sending her to another counselor.

I was vulnerable and weak, Duran said in the video.

The thing is, I was supposed to be vulnerable, Emily replied.

Yes, yes, yes, yes, Duran said. You see, what people also don’t understand is that therapists are also vulnerable.

In the video, Duran asked Emily not to report him to state officials.

If I have a reputation for being suspended for trespassing, it’s over, Duran said. You don’t have to take my license away to teach me a lesson.

But Emily could not be dissuaded. She reported him to the Texas Department of Health and Human Services, which at the time oversaw the licensing of counselors, therapists and social workers. What Emily didn’t know at the time was that the department was years behind in investigating complaints against counselors and therapists.

It was very common to have complaints sit for three, four, five, six years before anything happened, said attorney Kenda Dalrymple, who represents counselors and other licensed professionals. It was the worst mess ever.

Around the time Emily filed her complaint in 2019, the Texas Legislature created the Behavioral Health Executive Council, or BHEC. The agency has taken over the duties of several agencies to regulate and license therapists, counselors, psychologists and social workers.

But it would take time for the new agency to hire enough staff, write policies and procedures, and then begin dealing with a backlog of about 1,400 complaints against therapists and counselors dating back more than a decade. Dozens of complaints related to sexual misconduct.

Darrell Spinks, executive director of the new agency, said the BEHC found that some of the backlog of complaints had been investigated but had not made it through the system. Hundreds of others have simply not been investigated at all. The new agency cut the backlog by more than half within a year.

We threw manpower at it, Spinks told VFAA.

But before the agency could act on Emily’s complaint, Duran let his license expire. Emily received a letter in May 2021 informing her that he was no longer licensed and therefore no longer under the authority of the council. The case was closed, which meant the council no longer had the authority to act.

They didn’t even talk to me about my complaint, Emily told VFAA. I submitted the video and absolutely nothing came from them until they dropped the case.

Spinks told the VFAA that if Emily had filed a complaint with BHEC today, it would have been handled much differently.

He wouldn’t stand that long today, he just wouldn’t, Spinks told VFAA.

The VFAA asked what would happen if an advisor with a pending complaint tried to re-license. Spinks told the VFAA that the agency has a system to track complaints. If someone’s license expires and they come back to get it back, they would reopen the investigation and move forward with it.

We’re not going to let you avoid the investigation or the consequences of that just by letting your license expire, Spinks said.

But our interview also prompted Spinks to look up the case we described, and that’s when he discovered that Duran had his license reinstated in December 2022. In his request for reinstatement, he denied having had any administrative or disciplinary action. that were pending licenses, records show.

Duran told state regulators he let his license lapse during the pandemic.

Due to public and client concerns, I stopped consulting because I could not provide services personally, Duran wrote to BHEC.

When Spinks discovered that Duran had been relicensed, a BHEC investigator contacted Emily to inform her that her complaint had been reopened. The investigator also asked her to resend the audio recording that she previously attached to the complaint.

My first response was definitely a lot of anger, Emily said. Personally, I never felt like my complaint was taken seriously.

Spinks commissioned the audit, which found that complaints filed under the old system at Texas Health and Human Services were not flagged for special tracking.

There was nothing to indicate to the staff that hey, you need to be on the lookout, this person has expired with a pending complaint, Spinks said. After finding this one, I kind of held my breath. I thought ‘I hope we haven’t done this in any other case.’ We cleaned up the system and that was the only person who got their license back.”

Spinks, however, told the VFAA that BHEC has identified another eight complaints filed under the old system that were dismissed due to license expiration. Spinks said they have since flagged those cases if those people reapply for a license.

But that was not all. The review revealed a gap in the existing system.

Spinks said the policy does not explicitly state that special monitoring should remain if an appeal is dismissed because the license is expiring. State regulators changed the policy to make clear that monitoring should remain in those cases.

The VFAA first met with Spinks on August 23. Two days later, on August 25, an agency panel convened and suspended Durance’s license. The order states that there was sufficient evidence to show that the previous complaint alleging sexual abuse and sexual exploitation had merit.

In October, Duran failed to appear for a scheduled hearing before an administrative law judge. Agency officials told the judge that Duran did not respond to notices about the investigation.

The BHEC meets in February and is expected to decide on Duran’s case. Duran did not respond to the VFAA’s requests for comment.

He knows he’s been caught and there’s no use fighting it, Emily said.

Emily told the VFAA that she was relieved that her complaint was finally being handled the way it should have been, but also frustrated that it wasn’t handled the way it should have been.

Spinks apologized to Emily on behalf of the agency.

I hope she finds solace and comfort in the fact that she has made a change in an agency with state jurisdiction for an area that desperately needs that change, Spinks said. It came at a price, and for that I can only apologize to her.

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