The Texas State Board of Examiners of Marriage and Family Therapists (board) adopts the repeal of §§801.18, 801.19, 801.144, 801.201, 801.202, 801.204, and 801.361 - 801.369; new §§801.18, 801.201, 801.202, and 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. New §§801.18, 801.201, 801.202, and 801.362, and amendments to §§801.2, 801.42, 801.44, 801.45, 801.112, 801.142, 801.143, 801.174, 801.203, and 801.233 are adopted with changes to the proposed text as published in the December 23, 2005, issue of the Texas Register (30 TexReg 8595). The repeal of §§801.18, 801.19, 801.144, 801.201, 801.202, 801.204, 801.361 - 801.369; new §§801.361, 801.363, 801.364; and amendments to §§801.1, 801.11 - 801.17, 801.41, 801.43, 801.46 - 801.54, 801.71 - 801.73, 801.91 - 801.93, 801.111, 801.113, 801.114, 801.141, 801.171 - 801.173, 801.231, 801.232, 801.234 - 801.237, 801.261 - 801.268, 801.291 - 801.302, 801.331, 801.332, and 801.351 are adopted without changes, and the sections will not be republished.

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). 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 to update and clarify the rules.

In general, each section was reviewed and new, repealed, or amended rules are adopted in order to ensure clarity; to ensure that the rules reflect current legal, policy, and operational considerations; to ensure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 adoption 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 adopted to improve draftsmanship. Amendments to §801.2 are adopted to add a new definition of "client", to revise the definition of "regionally accredited institution" to "accredited institutions", to improve accuracy and clarity, and to delete unnecessary language.

Regarding Subchapter B, amendments to §801.11 are adopted 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 adopted to improve draftsmanship. Amendments to §801.13 are adopted to reflect current policy and operational considerations. Amendments to §801.14 and §801.15 are adopted to improve accuracy, and revise references to the Act and department. Amendments to §801.16 are adopted to improve and clarify the board's policy regarding disability accommodations. Amendments to §801.17 are adopted to include a "renewal card".

The repeal of §801.18 is adopted as not reflecting current operational procedures.

The repeal of existing §801.19 and new §801.18 are adopted to renumber the section and 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 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 adopted 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 adopted to improve and clarify the sections and to delete the word "rendering" and the subject concerning "scope". Amendments to §801.43 are adopted to improve draftsmanship. Amendments to §801.44 are adopted to clarify board expectations regarding information to be provided to prospective clients.

Amendments to §801.45 - 801.47 are adopted to improve draftsmanship. Amendments to §801.48 are adopted to clarify the section and incorporate the topic of the release of mental health records. Amendments to §801.49 are adopted to eliminate the unnecessary prohibition that applicants may not use board members as references. Amendments to §§801.50 - 801.54 are adopted to improve accuracy and draftsmanship and to clarify the sections.

Regarding Subchapter D, amendments to §801.71 and §801.72 are adopted 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 adopted 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 adopted to improve draftsmanship and accuracy of the sections.

Regarding Subchapter F, amendments to §801.111 are adopted to improve draftsmanship. Amendments to §801.112 are adopted 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 adopted to improve draftsmanship.

Regarding Subchapter G, amendments to §801.141 are adopted to improve draftsmanship. Amendments to §801.142 are adopted 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 adopted 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, a continuing education course in supervision, or be approved by the American Association of Marriage and Family Therapy to supervise interns. The repeal of §801.144 is adopted, 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 adopted to improve draftsmanship. Amendments to §801.173 are adopted to clarify that the section relates to the licensure examination and to delete obsolete language. Amendments to §801.174 are adopted 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 adopted in order to reorganize, rewrite, and improve the subchapter. Amendments to §801.203 are adopted to correct references.

Regarding Subchapter J, amendments to §801.231 are adopted to include late renewal and surrender of license. Amendments to §801.232 are adopted to reflect the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003. Amendments are also adopted 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 adopted to eliminate language relating to fee proration as not reflecting current operating procedure. Amendments to §801.234 are adopted 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 adopted to clarify and update the section. Amendments to §801.236 are adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted to improve accuracy concerning clock hour credits. Amendments to §801.268 are adopted to improve draftsmanship and update the section concerning continuing education.

Regarding Subchapter L, amendments to §§801.291 - 801.293 are adopted to improve draftsmanship and update the sections. Amendments to §801.294 are adopted 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 adopted 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 adopted 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 adopted 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 adopted to revise and add references concerning licensing of persons with criminal backgrounds.

Regarding Subchapter N, amendments to §801.351 are adopted 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 adopted to reorganize and improve the subchapter and to eliminate obsolete and unnecessary provisions. New §§801.361 - 801.364 are adopted to establish updated provisions relating to formal hearings that reflect current operating procedures.

COMMENTS

There were no public comments received regarding the proposal. However, the following changes are made by the board as a result of further review of the rule proposal by the board and its staff.

Change: Regarding the definition of "regionally accredited institutions" in §801.2(24), the term was changed to "accredited institutions". The section was renumbered in order to maintain alphabetical order of definitions. The definition was modified to delete obsolete language relating to accreditation associations and to clarify the accreditation bodies acceptable to the board.

Change: Regarding the definition of "client" in §801.2(7), the definition was modified to clarify that a client is a person who receives services from a license holder.

Change: Regarding the definition of "party" in §801.2(22), the definition was amended to read as it did prior to the proposed change, referencing persons or entities having a justiciable interest in a matter.

Change: Regarding the initial associate licensure fee referenced in proposed §801.18(b)(8), the fee is deleted and the section renumbered accordingly. The initial license fee referenced in §801.18(b)(3) is inclusive of the initial associate license fee.

Change: Regarding §801.42, the first sentence was shortened to improve clarity and structure.

Change: Regarding §801.42(17), the word "and" is deleted to improve clarity and structure.

Change: Regarding new §801.42(19), the rule is added to clarify that "any other related services provided by a licensee" are professional therapeutic services which may be provided by a license holder.

Change: Regarding §801.44(a), the rule is revised to improve clarity and sentence structure.

Change: Regarding §801.45(b), the rule is revised to not delete paragraph (5) as was originally proposed, but to revise the paragraph to clarify that a licensee shall not engage in sexual contact with "a clinical supervisor or supervisee".

Change: Regarding §801.112(b), the rule is revised to reference the term "accredited institutions" and delete obsolete language.

Change: Regarding §801.142, the section title is revised to better reflect the section's content.

Change: Regarding §801.142(a)(1) and (2), the paragraphs are revised to clarify supervised clinical experience and sentence structure.

Change: Regarding §801.142(j), the rule is revised to improve clarity and eliminate the reference to a contract.

Change: Regarding §801.143(a)(3), the rule is revised to provide an additional option for becoming a board-approved supervisor.

Change: Regarding §801.174(f), the rule is revised to clarify that applicants who fail the licensure examination two or more times must identify and complete additional courses of study which address the area(s) of deficit before the board will approve the applicant to reschedule the examination.

Change: Regarding §801.201(a), the rule is revised to improve clarity.

Change: Regarding §801.202(a), the rule is revised to use consistent terminology.

Change: Regarding §801.202(a)(2), the rule is revised to reference the term "accredited institution" and delete obsolete language.

Change: Regarding §801.202(a)(5), the word "licensure" is deleted, as the rule refers to both the licensure and the jurisprudence examinations.

Change: Regarding §801.203(a)(2) and (4)-(6), the rules are revised to delete the word "and" in §801.203(a)(2), to eliminate the reference in proposed §801.203(a)(4) to issuing a provisional license to a person who has not taken a licensure examination, and to revise, improve, and renumber §801.203(a)(5) and (6) to §801.203(a)(4) and (5).

Change: Regarding §801.233, the rule is revised to clarify that it applies to the marriage and family therapist license.

Change: Regarding §801.362(c), the graphic was revised from "NOTICE OF [HEARING/INFORMAL CONFERENCE]" to " NOTICE OF (EITHER HEARING OR INFORMAL CONFERENCE)" to clarify the Notice Of Failure To Appear.

STATUTORY AUTHORITY

The adopted 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.