Board of Examiners for Speech-Language Pathology and Audiology

  • Not Accessible to Public
  • Acting as Extension of Professional Associations
  • Subsidizing Professional Association Events
  • Non-Filing of Annual Reports
  • Noncompliance with Open Meetings Law
  • Code of Ethics may Discourage Competition

Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex
(304) 347-4890

Issue Area 1: The Board is not Accessible to the Public.

Of the major private phone books sampled, the Board has no listed phone number through which the public may contact it. The public needs to be able to access the Board in order to make complaints and inquiries. The Legislative Auditor developed an instrument to look for variations of "WV Board of Examiners for Speech-Language Pathology and Audiology" (see Appendix A for evaluation instrument). No listings were found in the white pages (business or residential); the yellow pages; or the blue pages (governmental listings), as reported in Table 1, nor was a phone number available through West Virginia directory assistance.

Table 1 Sample of Telephone Directory Listings
Name of Phone Book Areas Represented Information Available
Bell Atlantic / Huntington and Vicinity Huntington and Vicinity no listing available
Bell Atlantic / Parkersburg and Vicinity Parkersburg and Vicinity no listing available
Bell Atlantic / Kanawha and Putnam County and Vicinity Kanawha and Putnam County and Vicinity no listing available
Tri-State Eastern
Panhandle Phone Book
Eastern Panhandle no listing available
The Mountaineer
County Phone Book
Monongalia, Marion, Harrison,
Taylor, Lewis, Upshur
and Doddridge counties
no listing available
Bell Atlantic / Brooke / Hancock Counties and Vicinity Brooke and Hancock Counties and Vicinity no listing available
Bell Atlantic Fairmont / Grafton and Vicinity Fairmont / Grafton and Vicinity no listing available
Bell Atlantic Williamson, Delbarton, Kermit and Matewan Williamson, Delbarton, Kermit and Matewan no listing available
Source: The Legislative Auditor's Office, Performance Evaluation and Research Division

The Board's telephone number is available through capitol assistance and through the State Capitol Telephone Directory. However these sources are not well known by the general public. Furthermore, the State Capitol Telephone Directory is available to the public at a cost of ten dollars and only 7,000 copies of the directory were printed, most of which are used by government offices. The Professional and Occupational Licensing Directory is a descriptive guide to state and federal licensing, registration and certification requirements for all professions. The Board of Examiners for Speech-Language Pathology and Audiology is not included in the 1996 edition, though the certification requirements of the West Virginia Department of Education for school speech pathologists and audiologists are included.

The Board of Examiners has no permanent office address. It uses a Post Office Box for correspondence. The Board also has no Internet address, though minutes of the July 26, 1997 meeting indicate the Board intends to develop a web-page. During the February 11, 1995 meeting, Board members discussed the possibility of hiring an answering service in response to complaints from licensees regarding the inaccessibility of the Board. During the March 1995 meeting, the Board indicated that this was not warranted at that time due to the drop in workload since the renewal period was over. In March 1996, the West Virginia Speech-Language-Hearing Association proposed that the Board of Examiners join with them in hiring a management firm so that members could have a full-time, central office number where their questions could be addressed. Five months later, the Board rejected the proposal. On November 1, 1996, the Board contracted with a private vendor for administrative support.

The Board has handled only two complaints in its six years of existence. One case occurred in 1994. A Board member found the name of a licensee in the American Speech-Language-Hearing Association monthly journal, listed as having committed an ethics violation. After contacting the national association for more information, the Board revoked the license. The second case occurred in 1997. The Chair was contacted by the Food and Drug Administration regarding a Speech-Language Pathologists using an unapproved device for treatment. The Board ordered permanent cessation of the usage of the equipment. In a 1996 letter to the Hawaiian Department of Commerce and Consumer Affairs, the Director of the American Speech-Language-Hearing Association's State Policy Division stated:

The number of complaints a licensure board receives is directly related to how much the public knows about the services provided by its licensees. Boards in other states have had to embark on consumer awareness programs to help educate the public about speech-language pathology and audiology services and providers. In time, states like North Carolina have seen the number of complaints increase. The regulatory function of the Board has been compromised by its inaccessibility to the public. As recently as April 1997, a licensee wrote to the Board regarding a licensure problem. In the letter, the licensee asked, "could you give me the proper phone number [so] I can reach someone..." Clearly, accessibility remains a problem for the public and licensees alike.


During the 1998 Regular Session, the Legislature addressed the accessibility of state boards. H.B. 4021, amends 30-1-12 of the West Virginia Code. It requires the secretary of every board to ensure that the address and telephone number of the board are included every year in the state government listings of the Charleston Area telephone directory. H.B. 4021 also directs boards to regularly evaluate the feasibility of adopting additional methods of providing public access, including computer based communications. ( See Appendix B for H.B.4021 in its entirety). Though the Board has contracted for administrative office support, it should make public accessibility a priority. The Board was not created to serve the needs of licensees. Its purpose is to protect the public from incompetent, unscrupulous, unauthorized and unprofessional speech-language pathologists and audiologists. It is the opinion of the Legislative Auditor that the Board must be available to the public in order to serve and protect it.

Recommendation 1

At a minimum, the board should comply with H.B. 4021 by publishing its phone number in the Charleston phone directory, pursuant to 30-1-12 of the West Virginia Code, as amended.

Recommendation 2

The Board should establish a web site for citizens to file complaints against licensees, and access a roster of licensees, procedures for licensure, continuing education requirements and licensure fee schedules.

Recommendation 3

The Board should post information concerning licensure requirements and procedures for filing complaints against licensees on the West Virginia Government Web-page, pursuant for H.B. 4021.

Recommendation 4

The Board should amend its rules to require all licensed speech language pathologists and audiologists to post, in a conspicuous place, a detailed explanation on how to file a complaint with the Board.

Issue Area 2: Board is Acting as an Extension of Professional Associations.

The West Virginia Code 30-32, as amended, gives the purpose and Legislative intent of Article 32, which governs the Board of Examiners for Speech-Language Pathology and Audiology. It states:

It is hereby declared to be a policy of this state that the practice of speech-language pathology and audiology is a privilege granted to qualified persons and that, in order to safeguard the public health, safety and welfare, protect the public from being misled by incompetent, unscrupulous and unauthorized persons, and protect the public from unprofessional conduct by qualified speech-language pathologists and audiologists, it is necessary to provide regulatory authority over persons offering speech-language pathology and audiology services as designated in this article.

The sole purpose of the Board is the protection of the public. The Legislative Auditor's Office finds that the close relationships between the Board of Examiners, which represents the public, and the professional associations (West Virginia Speech and Hearing Association, the American Speech-Language-Hearing Association and, perhaps, the National Council of Boards of Examiners for Speech-Language Pathology and Audiology Licensure Boards) which represent the profession, are inappropriate and harmful to the public.

In a letter from the West Virginia Speech-Language Hearing Association's Sunset Review Committee (the state professional association's subcommittee concerned with the Sunset Review of the Licensing Board). The Chairman states that the committee "has a vested interest in the Sunset review process..." In another letter from the Chairman of the West Virginia Speech-Language-Hearing Association's Sunset Review subcommittee, the Chairman states:

The Board of Examiners has been very cooperative with our association leadership regarding matters of continuing education for our colleagues. With the support of the Board of Examiners we have been able to offer a much broader spectrum of educational opportunities for providers of speech, language and hearing services for West Virginia citizens.

Disbursement schedules for FY 96 show $2700 was paid to the West Virginia Speech-Language-Hearing Association under the heading of Training and Development. In FY 97, the Board paid $5000 under the heading "contract/professional," to the West Virginia Speech Language and Hearing Association. During the March 1996 meeting, the Board "unanimously agreed that we would prefer to sponsor big name presenters to encourage larger attendance." The Board had surplus funds and considered sponsorship to be " an excellent way to return the benefits to the licensees." (See Issue Area 3). The Board is supposed to regulate the profession, in part, by setting continuing education standards and assuring compliance with those standards, but not by providing continuing education. The West Virginia Code, as amended, does not give the Board authority to train or educate licensees. The Office of the Legislative Auditor finds that all monies spent subsidizing the professional association and its activities are improper uses of state funds.

Direct Quotations from the Board of Examiner's Meeting Minutes

September 14, 1996

Regarding WVSHA's proposal to hire a management team to establish an office, and their offer to allow the Board to join them in this venture: it was unanimously decided to hire an executive secretary for [the] Board rather than joining with WVSHA. WVSHA had not contacted the Board of Examiners since the original proposal five months earlier...The Board has not received any information from WVSHA to date regarding [their] sponsorship of speakers for the 1997 convention.

December 7, 1996

Future meeting dates were confirmed for 1/4/97 and 2/8/97. The board will also meet during the convention which will be held 4/9/97 through 4/13/97... [A representative of the WVSHA] asked [the Chair] about the Sunset Law, and if the Board should pursue any action in anticipation of this issue, which will come up in 1998. [The Chair] will ask [member X] to write a letter to [Lobbyist X] and ask for advice.

April 11, 1997

This meeting was an informal "Open House" meeting scheduled to introduce the Board members and the Executive Secretary to the licensees during the state association conference... [A guest at the meeting] brought up a request that the Board help sponsor a presentation to the Legislative Interim Meetings on the subject of early intervention and infant hearing screening. The Board agreed that the subject was of interest and that further discussion at [their] next closed meeting should take place and a vote cast.

April 12, 1997

[Member X] said that [a representative of the WVSHA] suggested that the Board might want a block in the newsletter...[The Chair] brought up the fact that if the Convention organizers are going to depend on the Board for money to sponsor convention speakers, then they should start planning the convention two years in advance so that the Board would know what to budget. [Member X] suggested that they should be able to give a synopsis of what some of the presentations would be. It was then agreed that if the Board was going to provide funding for convention speakers, then the Board should have more control over the content. [Member Y] was to write a letter...Ask [the individual who proposed the Board's sponsorship of a seminar during the Legislative Review] to submit proposal in writing with a breakdown of actual costs involved with the seminar...[Member Z] will write a letter...The Board would like to establish guidelines for exactly what type of expenses they will cover in regards to sponsorship. The Board will deny any self promotional presentations. [The Chair] read a letter from [a representative of the WVSHA] that included a copy of a letter from the Office of the Governor acknowledging the recommendations of two individuals for appointment to the Board by WVSHA.

January 17, 1998

Regarding convention speakers. The Board decided to give up to $3,000 to sponsor two speakers for two sessions. The Board would like to recommend [XX and XY]. [XX] is a Speech-Path and is charging $1,400. [XY] is an Audiologist and is charging $1,200.

Since the creation of the Board, a close relationship between the Board and the state professional association is evident in the meeting minutes. Table 2 includes excerpts from minutes of meetings occurring between September 14, 1996 and January 17, 1998, in which the relationships between the licensure board and the professional associations are evident. An expanded version of Table 2, including excerpts from meeting minutes throughout the Board's existence is included in Appendix C.

The West Virginia Speech and Hearing Association proposed that the Board of Examiners for Speech-Language Pathology and Audiology join with them to hire a management team. The minutes of the March 1996 meeting show that the Board gave serious consideration to the proposal, though the proposal was ultimately rejected. In February 1993, the Board discussed the need to do a budget revision in order to include national association dues, of $1,000, for the National Council of Boards of Examiners for State Speech-Language Pathology and Audiology Licensure Boards. This national association is a lobbying group. However, disbursements show that no payment was made to this association.


Ample evidence points to the Board's orientation toward licensed professionals and professional associations. Besides subsidizing the West Virginia Speech and Hearing Association's conventions; playing an active role in selecting speakers for the events; taking up policy issues unrelated to licensure (such as early intervention and infant hearing screening); offering carte blanche approval for any training sponsored by the West Virginia Speech and Hearing Association and American Speech-Language Hearing Association; adopting ASHA's Code of Ethics as a Legislative Rule despite anti-competitive statements; holding regular joint meetings with the West Virginia Speech and Hearing Association; contemplating joining the National Council of Boards of Examiners for State Speech-Language Pathology and Audiology Licensure Boards, a political action group; consideration of WVSHA proposal to share common office and staff (seemed to be dismissed only because the "WVSHA had not contacted the Board of Examiners since the original proposal five months earlier"); and the WVSHA having a sunset subcommittee to monitor this sunset review, other evidence indicates a "professional orientation." The Board's failure to comply with the Open Meetings Law (even when it held what it considered to be "open meetings" it only invited members of the WVSHA) also serves as an example.

Regulating a profession through the creation and application of standards, in the interest of protecting the public, sometimes involves making decisions that may not be popular with the membership of a professional association. If the Board had the same fervor for protecting the public that it has exhibited toward subsidizing and working with professional associations, it would have, at the very least, made its telephone number available to the public.

The Legislature did not establish the Board of Examiners to subsidize professional association events. The Legislature did not establish the Board of Examiners to lobby for professional interests. The Legislature did not establish the Board of Examiners to increase the authority of the professional associations. The Board of Examiners for Speech-Language Pathology and Audiology has lost sight of its statutory purpose and sole reason for existence: the protection of the public. The Board's acting as a subset of professional associations jeopardizes its function of public protection.

Recommendation 5

The Board of Examiners for Speech-Language Pathology and Audiology should cease its practice of subsidizing the professional association

. Recommendation 6

The Board should refocus its mission of Public Service.

Recommendation 7

The Board should maintain arms length relationships with professional associations.

Issue Area 3: The Board paid $7,700 to a Professional Association to Sponsor Speakers at the Professional Association's Conferences in 1996 and 1997 and has agreed to spend another $3,000 for the 1998 Conference.

West Virginia Code 30-32-10, as amended, defines the powers and duties of the Board. It does not give authority to the Board for training, education or the sponsorship of speakers. The West Virginia Speech-Language-Hearing Association billed the Board "for services related to professional training and development of speech-language pathologists and audiologists in the State of West Virginia." A letter from the Chairman of the West Virginia Speech-Language-Hearing Association's Sunset Review Committee states:

We have been able to attract top quality speakers on leading edge topics and we have been able to increase the opportunities for attending these first rate educational events from what was basically one event per calendar year to what is now several such events per year.

During the March 1996 meeting, the Board "unanimously agreed that we would prefer to sponsor 'big name' presenters to encourage larger attendance." The Board considered the use of present surplus funds to "be an excellent way to return the benefits to the licensees."

The Board of Examiners is intended to be a control upon the professional practice of speech-language pathology and audiology. The importance of retaining Board independence from the professional association cannot be understated. Sponsorship of speakers at the professional association's convention is a conflict of interest. The State of West Virginia addresses the independence and impartiality of government in 6B-1-2(a), as amended, which states:

The Legislature hereby finds that the holding of a public office or public employment is a public trust. Independence and impartiality of public officials and public employees are essential for the maintenance of the confidence of our citizens in the operation of a democratic government. The decisions and actions of public officials and public employees must be made free from undue influence, favoritism or threat, at every level of government. Public officials and public employees who exercise powers of their office or employment for personal gain beyond lawful emoluments of their position or who seek to benefit narrow economic or political interests at the expense of the public at large undermine public confidence in the integrity of a democratic government.


The statute governing the Board of Examiners does not give it authority to provide or facilitate education, training and/or development of licensees. It may only assure that its licensees meet continuing education requirements. The Board's duty is the protection of the public, through its specification of requirements for renewal, evaluation of applicant qualifications and other licensure functions. Subsidizing a voluntary professional association from funds derived by mandatory licensure fees is a violation of the public trust and the licensure statute. Furthermore, it is not equitable to those who are paying licensure fees and are not members of the professional association or not attending the convention. Another inequity is that some members of the professional association, for example those working for boards of education which are not required to be licensed by the Board, receive benefit without personal expense.

Recommendation 8

The WV Board of Examiners for Speech-Language Pathology and Audiology should cease subsidizing the West Virginia Speech and Hearing Association's activities.

Issue Area 4: The Board has never filed an annual report with the Legislature and Secretary of State's Office, as mandated by statute.

West Virginia Code 30-1-12 (b), as amended, requires:

On or before the first day of January of each year in which the Legislature meets in regular session, the board shall submit to the governor and to the Legislature a report of its transactions for the preceding two years, an itemized statement of its receipts and disbursements for that period, a full list of the names of all persons licensed or registered by it during that period, statistical reports by county of practice, by specialty if appropriate to the particular profession, and a list of any complaints which were filed against persons licensed by the board, including any action taken by the board regarding those complaints. The report shall be certified by the president and the secretary of the board, and a copy filed with the secretary of state. (Emphasis added.)

The Legislative Auditor requested all annual reports filed by the Board of Examiners for Speech-Language Pathology and Audiology between 1993 and 1998 from the Secretary of State. After researching all of the West Virginia Registers since January of 1993, the Administrative Law Division of the Secretary of State's Office was unable to find any annual reports filed by the Board of Examiners for Speech Language Pathology and Audiology. As of March 1998, the Office of the Senate Clerk had not received any report from the Board, nor was the Office of the House Clerk able to find any reports filed by the Board, as required by 30-1-12 (b), as amended.

The Chair of the Board of Examiners for Speech-Language Pathology and Audiology stated to the Office of the Legislative Auditor that:

It is not that we have been unable to file the reports, we had no knowledge that there were reports that needed to be filed. As I have stated earlier, when our Board was originally appointed, we were given no instruction or guidelines as to anything that was required. We tried our best to do as we were requested, but if the information was not requested, we didn't know to file. This has been a very interesting learning experience. I am sorry that we have done so many things wrong, but at least we will be able to make corrections before we continue.


The requirement of state boards to file annual reports with the Secretary of State guarantees accountability to the citizens of West Virginia. It is the way public boards make their information available to the public, which it serves, and to governmental entities, which provide oversight.

Recommendation 9 The Board should immediately comply with 30-1-12 (b) by submitting the annual report due January 1, 1998.

Issue Area 5. The Board is in Violation of the Open Meetings Law.

West Virginia Code 6-9A-1, as amended, declares the purpose and intent of the Open Meetings Law. It reads as follows:

The Legislature hereby finds and declares that public agencies, boards, commissions, governing bodies, councils and all other public bodies in this state exist for the singular purpose of representing citizens of this state in governmental affairs, and it is, therefore, in the best interests of the people of this state for all proceedings of all public bodies to be conducted in an open and public manner. The Legislature hereby further finds and declares that the citizens of this state do not yield their sovereignty to the governmental agencies which serve them. The people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government created by them.

Further, West Virginia Code 6-9A-3, as amended, states: Each governing body of the executive branch of the state shall file a notice of any meeting with the secretary of state for publication in the state register.

The Administrative Law Division of the Secretary of State's Office found no record of any meeting notices filed by the Board of Examiners for Speech-Language Pathology and Audiology since the Board's creation. McComas v. Fayette County Board of Education establishes that proof of intent is not required to establish a violation for failure to file notice with the Secretary of State.

The Legislative Auditor's Office requested that the current Chair of the Board of Examiners denote which meetings were open and which were closed to the public. Out of 45 meetings held since 1992, two were reported to have been open meetings, nine both open and closed meetings and 34 closed meetings. In a legal sense, all 45 meetings of the Board have been closed since no notice of public meeting was filed with the Secretary of State.

The Open Meetings Law provides for the holding of executive sessions under certain exceptions. One of these exceptions permits the holding of executive sessions to effect the denial, suspension or revocation of a license. However, this exception is not to be used for more routine licensure discussions. To invoke an exception to the Open Meetings Law and hold an executive session, the Board's presiding officer must identify and present to the general public the statutory authorization for holding an executive session and a majority affirmative vote of the members of the Board is also required. This procedure has not been the practice of the Board. The Open Meetings Law also prohibits the making of decisions while in executive session. The Board routinely made decisions while holding closed meetings. Such decisions can be annulled by a court of law under the authority of West Virginia Code 6-9A-6. (See Appendix D for the Open Meetings Law in its entirety.)

West Virginia Code 6-9A-7 makes willful violation of the Open Meetings Law a criminal offense, punishable by up to a $500 fine and/or imprisonment in the county jail for up to ten days.

In a letter to the Legislative Auditor's Office, the Chair expressed:

We were not informed by anyone in Charleston as to how to hold open meetings or who to notify of such. We notified our State association, the West Virginia Speech-Language-Hearing Association by word of mouth on several occasions, however in our infancy as a Board we failed to document these kinds of contacts.{1}
Staff in the Secretary of State's office has agreed to provide the Board assistance in complying with the Open Meetings Law.

Conclusion The Open Meetings Law applies to all public bodies and guarantees public accountability. By failing to notify the Secretary of State's office of its meetings, the Board of Examiners for Speech-Language Pathology and Audiology failed to conduct a single open meeting, as defined and required by statute. The only group of people the Board thought to inform of upcoming meeting dates was the professional association.

Recommendation 10

The Board should immediately comply with the requirements of the Open Meetings Law.

Recommendation 11

The Legislature should consider amending Chapter 30, Article 1 requiring training for members of professional or occupational licensing boards to be conducted by the State Auditor's Office, with the cooperation of the Budget and Purchasing Divisions of the Department of Administration, the Ethics Commission, the Attorney General' s Office, and the Secretary of State's Office. Training should include budgeting, purchasing, open meetings, ethics, filing annual reports, and records management.

Issue Area 6: The West Virginia Board of Examiners for Speech Language Pathology and Audiology's Adoption of the American Speech-Language-Hearing Association's Code of Ethics as part of an Administrative Rule may Discourage Competition.

On September 20, 1992, the Board of Examiners for Speech Language Pathology and Audiology adopted the American Speech Language-Hearing Association's Code of Ethics. In 1987, the Federal Trade Commission ruled, in South Carolina, that there is a danger in adopting the ASHA's code of ethics because it contains anti-competitive statements. The FTC confirmed this position in 1992. In 1998, the FTC reconfirmed its position in a letter to the West Virginia Legislative Auditor's Office (see Appendix E for FTC opinion). A portion of the Board's Ethics Code, as adopted as part of Administrative Rule Title 29, Series 1, states:

Speech-language pathologists and audiologists must not use professional or commercial affiliations in any way that would mislead or limit services to persons served professionally.

The Federal Trade Commission found that it may be illegal for speech pathologists and audiologists to practice in a commercial establishment, to set up a corporate practice, or to be affiliated with a managed care organization. Additionally, the Ethics Code further states:

...speech-language pathologists and audiologists should announce services in a manner consonant with highest professional standards in the community.

Federal Trade Commission opined that this restriction on advertising is overly broad and unnecessary to protect consumers. The regulation may prohibit comparative advertising, dramatization or testimonials, even if they are truthful and non-deceptive. Such advertising can provide useful information to consumers in choosing a speech pathologists or audiologist. The minutes of the April 22, 1994 Board meeting state: "The Board will write a letter to the American Speech-Language-Hearing Association requesting a clarification on the ethics of advertising." Future minutes do not indicate that this issue was revisited by the Board of Examiners.


While most of the language in the professional association's Code of Ethics is acceptable, codified anti-competitive statements as part of a state board's administrative rule are not acceptable state policy.

Recommendation 12

The Board should revise its Code of Ethics by promulgating a new rule to allow for participation in Managed Care Organizations as well as to allow competition in advertising.

Recommendation 13

The Legislature should consider continuing the Board of Examiners for one year, pending a compliance review in 1999, pursuant to the West Virginia Sunset Law.


{1} This is further evidence that the Board considers its primary customer to be the members of the state professional association.