The Texas State Board of Social Worker Examiners proposes the repeal of §§781.101, 781.102, 781.201 - 781.217, 781.301 - 781.315, 781.401, 781.402, 781.501 - 781.514, 781.601 - 781.610, 781.701 - 781.707, 781.801 - 781.807 and new §§781.101, 781.102, 781.201 - 781.217, 781.301 - 781.317, 781.401 - 781.418, 781.501 - 781.515, 781.601 - 781.610, 781.701 - 781.707, and 781.801 - 781.807, concerning the licensing of social workers.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 781.101, 781.102, 781.201 - 781.217, 781.301 - 781.315, 781.401, 781.402, 781.501 - 781.514, 781.601 - 781.610, 781.701 - 781.707, and 781.801 - 781.807 have been reviewed and the board has determined that the reasons for adopting the sections continue to exist in that rules concerning the licensing and regulation of social workers are still needed; however, the rules will be repealed and proposed as new rules as described in this preamble.

The proposed repeals and new sections are a result of comprehensive rule review undertaken by the board, identified stakeholder groups and the board's staff as a result of the passage of Senate Bill (SB) 810 in the 78th Regular Session of the Texas Legislature. This legislation was the result of a taskforce of stakeholders groups and the board in response to House Bill (HB) 3365 of the 77th Regular Session of the Texas Legislature regarding the independent practice of social work. SB 810 created new categories of social worker licensure, abolishing the Social Worker Associate category, a statute of limitations on complaints and modified requirements for board membership based on licensing categories and the creation of independent practices status for all levels of licensure.

In general, the board and stakeholder group representatives reviewed each section and proposed the repeal, readoption or revision of each section in order to ensure appropriate subchapter, section and paragraph organization; to modify rules in accordance with legislative changes impacting social work practice; to ensure clarity and improve spelling, grammar and punctuation; to ensure that the rules reflect current legal and policy considerations; to ensure accuracy of legal citations, eliminate unnecessary catch-titles, and eliminate repetitive use of long titles for terms that have been assigned short titles by definition; to delete repetitive, obsolete, unenforceable or unnecessary language; to improve draftsmanship; and to make the rules more understandable and usable.

The following changes are proposed relating to the repeal and readoption of Subchapter A (relating to General Provisions).

No changes are proposed to §781.102(1) - (5). These definitions are determined by review as necessary to the regulation of social work and are proposed for readoption.

Regarding §781.102(6) "Association of Social Work Board (ASWB)" is proposed as necessary to provide definition of the association which is owner of the national exam utilized by the board for licensure eligibility. The definition provides guidance to the public, applicants and stakeholders as to the meaning of the term.

A substantial revision was made to the following terms defined in §781.102: Client; Confidential Information; and Exploitive Behavior. The revisions better define the terms. The definitions provides better guidance and understanding to the public, applicants, and stakeholders as to the meaning of the terms.

A substantial revision to the definition of "Clinical Social Work" is necessary and definition §781.102(10) is proposed. The new definition is more in line with national standards for the definition of clinical social work and provides better guidance and understanding to the public, applicants, licensees and stakeholders on clinical social work in Texas.

New definitions of the following terms are proposed in §781.102: Clinical Supervision; Completed Application; Contested Case; Counseling; Consultation; Continuing Education; Direct Practice; Endorsement; Examination; Exploitation; Family System; Formal Hearing; Group Supervision; Health Care Professional; Home Study; Independent Practice; Indirect Practice; Individual Supervision; Investigator; LBSW; LCSW; Party; Person; Pleading; Psychotherapy; Reciprocity; Rules; Social Work Case Management; Social Work Practice; Supportive Counseling; Supervisor; Supervision Hour; Telepractice; Texas Open Meetings Act; Texas Public Information Act; and Waiver. The new definitions clarify clinical terms and provides better guidance and understanding to the public, licensees, applicants and stakeholders as to the meaning of the term.

The definitions of the following terms in §781.102 were renumbered to maintain alphabetical order: Detrimental to the Client; Dual Relationship; Flagrant; Fraud; Full-time Experience; License; Licensee; LMSW; LMSW-ACP; LMSW-AP; LSW; Non-clinical Social Work; Part-time; Persistently; Recognition; Sexual Contact; Social Worker; Supervision; SWA; and Termination.

The definition of the "Department of State Health Services" is proposed to be changed due to the change of name from the "Texas Department of Health" and is renumbered alphabetically at §781.102(19).

The definition of "Private Independent Practice" is repealed as part of the creation of independent practice at all levels of licensure.

The definitions of "Professional Social Work Practice" and "Sexually Exploitive Behavior" are repealed and replaced in §781.102, respectively by the new definitions of "Social Work Practice" and "Sexual Exploitation." The new definitions clarify the terms and provides better guidance and understanding to the public, licensees, applicants, and stakeholders as to the meaning of the term.

The following changes are proposed relating to the repeal and readoption of Subchapter B (relating to The Board).

No substantive changes are proposed to §§781.201 - 781.216. These definitions are determined by review as necessary to the regulation of social work and are proposed for readoption. The sections and format were standardized.

Section 781.217 is proposed for modification based on new fees and categories of licensure and the requirement for biennial renewal based on the passage of HB 2292 in the 78th Legislative Session, Regular Session, 2003.

Section 781.217(2), (3), (4), (5), and (9) are proposed to reflect the new categories of licensure and biennial renewal of licenses.

Section 781.217(11) and (12) are proposed for the written verification of licenses and specialty licenses. Members of the public, licensees and stakeholder groups can verify a license without cost on the board's Internet website.

Section 781.217(16) and (17) are proposed to insure compliance with the collection of mandated fees required by state law.

Section 781.217(18) is proposed for better tracking of those individuals providing approved supervisor services and to provide regular contact with the board regarding those services.

Section 781.217(19) is proposed as part of the requirements of §781.313 of this title.

Section 781.217(20) is proposed as part of the process for approval to sit for re-examination after failing the required exam. The fee will provide better guidance to ensure only those applicants who are eligible will be able to sit for re-examination.

Section 781.217(21) is proposed as a new fee as part of the process to apply for temporary licensure.

The following changes are proposed relating to the repeal and readoption of Subchapter C (relating to Licenses and Licensing Process). Several new subsections are proposed and a reformatting of the Subchapter is proposed for better paragraph outline and structure.

Section 781.301(a)(1) and (3) create requirements for licensure. The section outlines the changes of required supervise experience from being tracked in months to hours and the required supervision to be received for the licensed clinical social worker license and the licensed master social worker-advanced practitioner recognition. The section also establishes time frames in which the supervised experience must occur.

Section 781.301(a)(4) reflects the change in category from licensed social worker to licensed baccalaureate social worker.

Section 781.301(a)(5) is repealed, as the social worker associate (SWA) category is no longer included by statute (Occupations Code, Chapter 505).

Section 781.301(a)(5) reflects the changes in the license categories as well as the authorization for licensees recognized for independent practice to engage in such practice. The section also defines the independent practice of an LCSW, LBSW, LMSW and LMSW-AP.

Section 781.302 clarifies the process for supervision and reflects the new license categories.

New §781.303 is proposed to establish the criteria for achieving the independent practice recognition including supervision and experience. The section also establishes time frames in which the supervision must be completed. The section also establishes the criteria to be used by the board in identifying independent practice.

New §781.304 concerns the recognition of supervisors at all levels of licensure. The process outlines the requirements to become an approved supervisor and the requirements of the supervisory process. The section clarifies the supervision process for licensees and applicants. New to this process is the requirement that all approved supervisors complete the approved supervisor-training course prior to being approved by the board. Additionally the approved supervisor will pay the required fee.

Section 781.305 proposes changes to reduce the time between when an applicant applies and when the application lapses to 12 months. This changes reflects more national standards with social worker licensing application and national testing guidelines. The section also reflects the changes in licensing categories.

Section 781.311 reflects the changes in license categories.

Section 781.312(c) proposes that an applicant who fails the exam must wait the required timeframe and petition the board for reexamination.

Section 781.313 outlines changes to the Alternative Method of Examining Competency Program. These changes include a reduction in fail scores from 10 points of passing to 5 points of passing. The change also outlines the requirements for the professional portfolio to be created as part of the program participation. Additionally, minimum and maximum time frames for program participation are established.

The following changes are proposed relating to the repeal and readoption of Subchapter D (relating to Code of Conduct and Professional Standards of Practice). Several new subsections are proposed and a reformatting of the Subchapter is proposed for better paragraph outline and structure. The renaming of §781.401 and complete revision of §781.402, change the current litany of standards to better define subsections clarifying the standards of practice.

It is proposed to change the title of Subchapter D to "Code of Conduct and Professional Standards of Practice" in lieu of "Code of Ethics and Professional Standards of Practice" to better reflect the actions of the subchapter along with other proposed changes.

Section 781.401 will, by the change of name to "Code of Conduct," distinguish the board's code apart from the "Code of Ethics" of any professional, public, licensee, or stakeholder group. The term clarifies the section and provides better guidance and understanding to the public, licensees, applicants and stakeholders as to the meaning of the term. No change to content of the code is proposed.

New §781.402 is titled the "Standards of Practice of Professional Social Work." The section clarifies the practice of social work at each category of licensure. The section also repeats the definitions of independent practice and private practice as proposed in §781.102 to assist the public, licensees and stakeholders in their meaning in relation to the standards of practice of professional social work.

New §781.403 regards the general standards of social work practice. The section provides general standards for practice of social work at all levels and in all environments.

New §781.404 regards the relationships between social workers and clients. The section defines the length of time client records shall be retained and places structure and limits on the relationships between social workers and their clients.

New §781.405 defines sexual misconduct. The section clarifies the prohibition of sexual relationship between social workers and clients and provides requirements to report such actions in accordance with state law.

New §781.406 regards professional representation. The section clarifies the actions of fraud or deceptive or misleading services of social workers.

New §781.407 regards the use of diagnostic devices aiding in the assessment, diagnosis and treatment of clients.

New §781.408 defines the use of alcohol and drugs in the scope of professional practice of social work.

New §781.409 regards the client record and the retention of the client record. The section better defines the responsibility of the social worker regarding the creation, maintenance and retention of client records.

New §781.410 regards billing and financial relationships. The section clarifies the fiduciary relationship of social work practice and the responsibilities of social workers in billing practices.

New §781.411 regards client confidentiality. The section clarifies the social workers responsibility in complying with confidentiality requirements of various laws and practice standards. The section also clarifies reporting requirements regarding child abuse, abuse of elderly or disable persons and sexual exploitation by a mental health services provider. The section further clarifies opportunities to report to medical or law enforcement personnel the probability of imminent harm or danger in compliance with state law.

New §781.412 regards the relationship between licensees and the board. The section requires reports to the board and timeframes for those reports.

New §781.413 regards assumed names. The section clarifies the use of business or agency names used in the creation of practice of social work.

New §781.414 regards consumer information. The section mandates information to be provided to clients of social workers by the social work and the board for the purpose of complaints.

New §781.415 regards the requirement to display the license of the social worker. The section restricts the displaying or copying of a license and places the responsibility of use or misuse of a copied license on the licensee.

Section 781.416 regards advertising and announcements related to services of social workers. The section clarifies statements used in advertisements of social worker regarding their professional services. The section requires the use of license titles in all advertising or announcements of professional services.

Section 781.417 regards research and publications. The section establishes guidance regarding the use of clients in scholarly research or publications required credit for authorship.

New §781.418 regards the provision of court ordered home studies or custody evaluations. The section clarifies the social workers role in such evaluations and maintenance of copies of such evaluations. The section further clarifies restrictions on the performance of such evaluations.

The following changes are proposed relating to the repeal and readoption of Subchapter E (relating to License Renewal and Continuing Education). Several new subsections are proposed and a reformatting of the Subchapter is proposed for better paragraph outline and structure.

Section 781.501 clarifies the requirement of biennial renewal in compliance with state law in §781.501(a).

Section 781.501(i) establishes that a license must be in good standing before it can be upgraded to a different category of licensure.

Section 781.508 is related to changes from continuing education units to continuing education hours to simplify the mathematics of counting continuing education credits. The section also clarifies the number of hours needed for continuing education during biennial renewal cycle.

Section 781.509 concerns types of acceptable continuing education and clarifies the types of continuing education acceptable for the renewal of a license.

Section 781.510 relates to what is not acceptable as continuing education for the renewal of a license.

Section 781.511 relates to approval of continuing education sponsors. The section clarifies the requirements to become and remain an approved sponsor of continuing education. The sections further clarifies the responsibility of the sponsor in provision of continuing education to licensees and the reporting of the completion of the continuing education to the licensee and the board. The section also clarifies the retention of records related to continuing education by approved sponsors.

New §781.512 regards the removal of an approved continuing education sponsor and the sponsor's right of due process.

Section 781.513 regards continuing education approved by another board and its possible acceptance as social work continuing education. This section assists those social workers working in multi-professional or non-traditional settings of social work practice.

Section 781.514 clarifies credit hours granted and the maximum hours to be received in any single activity of continuing education.

The following changes are proposed relating to the repeal and readoption of Subchapter F (relating to Complaints and Violations). New rules are proposed and a reformatting of the Subchapter is proposed for better paragraph outline and structure.

Section 781.603 relates to complaint procedures. Section 781.603(c) establishes a statute of limitations on the filing of a complaint in accordance with SB 810 passed in the 78th Regular Session of the Texas Legislature. The rule establishes a 5-year date from termination for the filing of the complaint.

Section 781.603(d) relates to complaint procedures. The rule establishes the right of the board to waive the statute of limitations in complaints of egregious acts or continuing threats to public health and safety.

Changes are proposed relating to the repeal and readoption of Subchapter G (relating to Formal Hearings) and Subchapter H (relating to Sanction Guidelines). No new rules are proposed. The proposed changes include a reformatting of the Subchapters for better paragraph outline and structure.