The Texas State Board of Examiners of Marriage and Family Therapists (board) proposes the repeal of §§801.18, 801.19, 801.144, 801.201, 801.202, 801.204, 801.361 - 801.369; new §§801.18, 801.201, 801.202, 801.361 - 801.364; and amendments to §§801.1, 801.2, 801.11 - 801.17, 801.41 - 801.54, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.114, 801.141 - 801.143, 801.171 - 801.174, 801.203, 801.231 - 801.237, 801.261 - 801.268, 801.291 - 801.302, 801.331 - 801.332, and 801.351, concerning the licensure and regulation of marriage and family therapists.

BACKGROUND AND PURPOSE

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). 22 Texas Administrative Code, Chapter 801 has been reviewed in its entirety and the board has determined that the reasons for adopting the sections continue to exist because rules relating to the licensure and regulation of marriage and family therapists are needed in order to protect and promote public health, safety, and welfare. The rule review revealed that the sections require modification, as described below, to update and clarify the rules.

In general, each section was reviewed and proposed for repeal, new, or amendment in order to ensure clarity; to ensure that the rules reflect current legal, policy, and operational considerations; to ensure accuracy; to improve draftsmanship; and to make the rules more accessible, understandable, and usable, to the extent possible.

Additionally, the 79th Texas Legislature, 2005, enacted House Bill 1413, which became effective September 1, 2005. The legislation was the result of the review of the board and the board's enabling statute by the Sunset Advisory Commission. The Commission recommended, and the Legislature enacted, amendments to the enabling statute (Occupations Code, Chapter 502) that are intended to strengthen the regulation of marriage and family therapists and apply Sunset across-the-board recommendations for licensing programs. This rule proposal addresses those statutory amendments.

The repeals, new sections, and amendments are the result of the comprehensive rule review undertaken by the board and the board's staff, as well as the need to implement and incorporate recent legislation.

SECTION BY SECTION SUMMARY

Regarding Subchapter A, amendments to §801.1 are proposed to improve draftsmanship. Amendments to §801.2 are proposed to add a new definition of "client", to improve accuracy and clarity, and to delete unnecessary language.

Regarding Subchapter B, amendments to §801.11 are proposed to ensure that at least one public member shall be appointed to the Ethics Committee, to ensure that the board member training program shall meet the requirements of the enabling statute, and to clarify that board members are entitled to reimbursement of travel expenses.

Amendments to §801.12 are proposed to improve draftsmanship. Amendments to §801.13 are proposed to reflect current policy and operational considerations. Amendments to §801.14 and §801.15 are proposed to improve accuracy, and revise references to the Act and department. Amendments to §801.16 are proposed to improve and clarify the board's policy regarding disability accommodations. Amendments to §801.17 are proposed to include a "renewal card".

The repeal of §801.18 is proposed as not reflecting current operational procedures. The roster of marriage and family therapists is available on demand through the board's website and the production of a directory is no longer necessary.

The repeal of existing §801.19 and new §801.19 are proposed to reflect the doubling of licensing fees necessitated by the move to two-year license terms. Notwithstanding other law, two-year license terms were mandated by House Bill 2292, 78th Legislature, Regular Session. Fees for a two-year license are two times the amount of the fee for a one-year license. The section is also proposed to reflect the board's authority to collect fees required to fund the Office of Patient Protection and the processing costs of transactions conducted through Texas Online.

Regarding Subchapter C, amendments to §801.41 and §801.42 are proposed to improve and clarify the sections, and to delete the word "rendering" and the subject concerning "scope". Amendments to §801.43 are proposed to improve draftsmanship. Amendments to §801.44 are proposed to clarify board expectations regarding information to be provided to prospective clients.

Amendments to §801.45 are proposed to improve draftsmanship and to eliminate the prohibition against a licensee engaging in sexual contact with a supervisor. The prohibition serves no purpose relating to client or public protection.

Amendments to §801.46 and §801.47 are proposed to improve draftsmanship. Amendments to §801.48 are proposed to clarify the section and incorporate the topic of the release of mental health records. Amendments to §801.49 are proposed to eliminate the unnecessary prohibition that applicants may not use board members as references. Amendments to §§801.50 - 801.54 are proposed to improve accuracy and draftsmanship and to clarify the sections.

Regarding Subchapter D, amendments to §801.71 and §801.72 are proposed to improve draftsmanship and clarify that an application must be complete within one year of the original date of filing or the application may be voided.

Amendments to §801.73 are proposed to reflect current operating procedure, to eliminate the requirement relating to an applicant's references, and to require applicants to submit proof of completion of the jurisprudence examination, which is required by recent Sunset legislation.

Regarding Subchapter E, amendments to §§801.91 - 801.93 are proposed to improve draftsmanship and accuracy of the sections.

Regarding Subchapter F, amendments to §801.111 are proposed to improve draftsmanship. Amendments to §801.112 are proposed to clarify that it is the responsibility of the applicant to have foreign coursework and degrees evaluated by a professional transcript evaluation service approved by the board. Amendments to §801.113 and §801.114 are proposed to improve draftsmanship.

Regarding Subchapter G, amendments to §801.141 are proposed to improve draftsmanship. Amendments to §801.142 are proposed to clarify that the section relates only to experience requirements for licensure and to move existing language from §801.144 into the section. Amendments to §801.143 are proposed to improve accuracy and draftsmanship and clarify the section's intent. The section is also amended to clarify that an approved supervisor must have either completed a graduate level course in supervision or be approved by the American Association of Marriage and Family Therapy to supervise interns. Existing language from §801.144 is also being incorporated into the section. The repeal of §801.144 is proposed, as the language of the section is more appropriately placed into §801.142 and §801.143.

Regarding Subchapter H, amendments to §801.171 and §801.172 are proposed to improve draftsmanship. Amendments to §801.173 are proposed to clarify that the section relates to the licensure examination and to delete obsolete language. Amendments to §801.174 are proposed to clarify and establish procedures for the licensure and jurisprudence examinations.

Regarding Subchapter I, the repeal of §§801.201, 801.202 and 801.204 and new §801.201 and §801.202 are proposed in order to reorganize, rewrite, and improve the subchapter. Amendments to §801.203 are proposed to correct references.

Regarding Subchapter J, amendments to §801.231 are proposed to include late renewal and surrender of license. Amendments to §801.232 are proposed to reflect the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003. Amendments are also proposed to update language relating to failure to pay student loans and to incorporate language relating to failure to pay an administrative penalty, as established by recent Sunset legislation. Amendments to §801.233 are proposed to eliminate language relating to fee proration as not reflecting current operating procedure. Amendments to §801.234 are proposed to reflect current operating procedure, to improve section intent, and to eliminate unnecessary language relating to license renewal when a contested case is pending. The Administrative Procedure Act governs license renewal when a contested case is pending.

Amendments to §801.235 are proposed to clarify and update the section. Amendments to §801.236 are proposed to clarify and update the section; to require that inactive status periods are two-year periods and are renewable biennially, to eliminate fee proration upon return to active status, and to eliminate unnecessary language. Amendments to §801.237 are proposed to clarify procedures relating to license surrender when a complaint is not pending and when a complaint is pending.

Regarding Subchapter K, amendments to §§801.261 - 801.264 are proposed to improve draftsmanship; to incorporate references and procedures relating to the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003; and to provide for the acceptance of one hour of ethics continuing education for completing the jurisprudence examination. Amendments to §801.265 are proposed to establish that the board may evaluate continuing education sponsors, remove sponsor approval for non-compliance, and disallow continuing education hours gained from unapproved sponsors.

Amendments to §801.266 are proposed to reference the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003 and to clarify the use of clinical supervision as continuing education hours. Amendments to §801.267 are proposed to improve accuracy concerning clock hour credits. Amendments to §801.268 are proposed to improve draftsmanship and update the section concerning continuing education.

Regarding Subchapter L, amendments to §§801.291 - 801.293 are proposed to improve draftsmanship and update the sections. Amendments to §801.294 are proposed to incorporate the board's new authority to issue a cease and desist order to an unlicensed person who is in violation of the Act or rules, and to impose an administrative penalty upon that person for violation of an order. Amendments to §§801.295 - 801.298 are proposed to improve draftsmanship; to clarify, update, and improve the sections; to update obsolete language relating to cease and desist orders; and to clarify monitoring requirements. Amendments to §801.299 are proposed to update the board's administrative penalty schedule to reflect recent Sunset legislation and to eliminate obsolete language. Amendments to §801.300 - 801.302 are proposed to improve draftsmanship and clarify that administrative penalties may be assessed in combination with or in lieu of other disciplinary action.

Regarding Subchapter M, amendments to §801.331 and §801.332 are proposed to revise and add references concerning licensing of persons with criminal backgrounds.

Regarding Subchapter N, amendments to §801.351 are proposed to change the term "settlement conference" to "informal conference"; to update the section to reflect current operating procedure; to improve accuracy; to incorporate language relating to the board's new authority to order consumer refunds as part of an informal conference agreement; and to establish new language relating to the failure to appear at an informal conference.

Regarding Subchapter O, the repeal of §§801.361 - 801.369 are proposed to reorganize and improve the subchapter and to eliminate obsolete and unnecessary provisions. New §§801.361 - 801.364 are proposed to establish updated provisions relating to formal hearings that reflect current operating procedures.

FISCAL NOTE

Charles Horton, Executive Director, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to the state as a result of enforcing or administering the sections as proposed. The amendments to licensing fees reflect the move to two-year license terms as required by House Bill 2292, 78th Legislature, Regular Session. As a result, licensing fees are doubled for a two-year license term. This is the same cost to those who are required to comply with the sections as was previously incurred with a one-year license term. The licensing fee is now due biennially, instead of annually. Implementation of the proposed sections will not result in fiscal implications for local governments.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Mr. Horton has also determined that there will be no economic costs to small businesses or micro-businesses. This was determined by the interpretation of the rules that these entities will not be required to alter their business practices to comply with the sections as proposed. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

Mr. Horton has also determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to effectively regulate the practice of marriage and family therapy in Texas, which will protect and promote public health, safety, and welfare.

REGULATORY ANALYSIS

The board has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The board has determined that the proposed rules do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposal may be submitted to Charles Horton, Executive Director, Texas State Board of Examiners of Marriage and Family Therapists, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756 or by email to mft@dshs.state.tx.us. When e-mailing comments, please indicate "Comments on Proposed Rules" in the e-mail subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

STATUTORY AUTHORITY

The proposed amendments are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

The proposed amendments affect Occupations Code, Chapter 502.