The Texas State Board of Social Worker Examiners (board) adopts amendments to §§781.102, 781.215, 781.217, 781.301 - 781.304, 781.306, 781.313, 781.314, 781.402, 781.405, 781.409, 781.413, 781.414, 781.508, 781.511 - 781.514, 781.604, 781.605, 781.806 and new 781.516 and 781.517, concerning the licensure and regulation of social workers. The amendments to §§781.102, 781.217, 781.301, 781.303, 781.402, 781.414, 781.508, 781.512, 781.513 and new 781.516 and 781.517 are adopted with changes to the proposed text as published in the September 29, 2006, issue of the Texas Register (31 TexReg 8176). Sections 781.215, 781.302, 781.304, 781.306, 781.313, 781.314, 781.405, 781.409, 781.413, 781.511, 781.514, 781.604, 781.605, and 781.806 are adopted without changes and, therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The adopted amendments and new sections are necessary to complete implementation of Senate Bill 810, 78th Texas Legislature, 2003, which amended the Occupations Code, Chapter 505, and required the board to establish independent practice authorization for all levels of licensure.

Additionally, the board adopts amendments to correct minor errors, improve the rules, and ensure that the rules reflect current legal, policy, and operational considerations.

SECTION-BY-SECTION SUMMARY

The amendments to §781.102 adds new definitions of "Conditions of exchange," "Independent clinical practice," "Independent non-clinical practice," and "Sole responsibility for the client," improves the definition of Supervisor; and renumbers the definitions accordingly.

The amendments to §781.215 clarify what is displayed on the license certificate. Amendments to §781.217 clarify the fees for changing to inactive status, the reactivation of a license, and renewal fee for an inactive license; update terminology used for an approved continuing education provider and a board approved supervisor; and renumber the section accordingly.

The amendments to §781.301 reflect the new designation of "Bachelors" for the examination for LBSW; specify the licensure categories and specialty recognition required to practice independently (and receive remuneration from direct billing or through contract work); establish August 31, 2007, as a deadline for licensees to have obtained the appropriate level of licensure and/or specialty recognition (or be under application for same) in order to continue practicing independently; clarify that a person may not practice independently without the proper license or specialty recognition; and reorder and renumber the section accordingly. The amendments to §781.302 define two distinct supervised experience tracks, one for clinical licensure and one for non-clinical independent practice recognition; establish that experience under a temporary license is not eligible for supervision hours or experience toward clinical licensure or independent practice recognition; provide clarity on the process for application for a licensure upgrade or independent practice recognition and required supervision and experience documentation; and establish rules for supervision when it is required as a condition of initial or continued licensure or as a result of disciplinary action or in order to participate in the AMEC program. The amendments to §781.303 establish a one time application period ending on August 31, 2007, for a waiver of the experience requirements for independent practice recognition based on criteria established in rule; to establish that appeals of denials by staff be reviewed by the board whose decisions on appeals are final; and establish that a licensee who applies for the independent practice recognition must cease and desist independent practice immediately if their application is finally denied (30 days after the denial of the application by staff or an appeal is not granted), unless they are under a board approved supervision plan for independent practice recognition. Amendments to §781.304 clarify language referring to a supervisor as a board approved supervisor, to clarify the application and approval process, and establish the supervisory functions that are authorized by holding board approved supervisory status according to license type and specialty recognition held by the supervisor; add rules that revise the general rules of supervision; and, reorder and renumber the section accordingly. The amendment to §781.306 deletes obsolete language. The amendments to §781.313 establish that the criteria for eligibility for the AMEC program is to have scored twice within five points of passing instead of four points and to require that supervision required for participation in the AMEC program be provided by a board approved supervisor. The amendments to §781.314 specify information provided on a license certificate.

The amendments to §781.402 change the title of the section; add language describing services that constitute the practice of social work; and revise the terms used for the independent practice of clinical social work from "private practice" to "independent clinical practice" and revise the term used for non-clinical independent practice from "independent practice" to "independent non-clinical practice." The amendments to §781.405 clarify that sexual exploitation may occur in an agency setting in addition to an independent practice setting and revise language to be consistent with the current definition of independent practice. The amendments to §781.409 clarify the duties of licensees regarding maintaining compliance with laws concerning confidentiality of protected health information and the release of mental health records. The amendments to §781.413 revise language to be consistent with the current definition of independent clinical and non-clinical practice. The amendments to §781.414 revise the methods by which a licensee may provide consumer information to consumers to be consistent with the Occupations Code, §505.252.

The amendments to §781.508 specify that the executive director's decision regarding a request for a waiver of all or part of continuing education requirements may be appealed to the board as opposed to the Professional Development Committee. The amendments to §781.511 change the title of the section; change the term of continuing education sponsor to a continuing education provider; update the rule, indicating that the executive director reviews continuing education provider applications to indicate that the function is provided by department staff; require that continuing education providers provide a list of subcontractors upon renewal or upon request; require continuing education providers to maintain training records for a period of three years as opposed to two years; and renumber the section accordingly. The amendments to §781.512 revise the title of the section; change the term of "Continuing education sponsor" to "Continuing education provider"; define the process of evaluating continuing education providers; provide for the review by a committee of the board for possible rescinding of approved continuing education provider status if a provider is not in compliance with rules regarding continuing education programs; disallow credit toward approval as a supervisor by the board for a completion of a course by a provider after the provider's approval status has been rescinded; and renumber the section accordingly. The amendments to §781.513 change the term of continuing education sponsor to a continuing education provider and update the rule to indicate that the decision of the executive director regarding the acceptability of continuing education from providers approved by another licensing board may be appealed to the appropriate board committee. The amendments to §781.514 revise the number of hours that may not be exceeded during a renewal period for published works and independent study programs. New §781.516 establishes the criteria for approval and renewal of a supervisory training course provider and supervisory training program; establishes rules regarding application for approval; and establishes rules regarding documentation of participation and retention of the documentation. New §781.517 establishes a process for the evaluation of supervisor training course providers and the courses they present; establishes a process for the board to rescind approval of a supervisor training course provider; establishes a process for reapplication for approved supervisor training course provider status once it has been rescinded; and disallows credit toward approval as a supervisor by the board for a completion of a course by a provider after the provider's approval status has been rescinded.

The amendments to §781.604 allow only the respondent to a complaint to request an informal hearing, as opposed to allowing any party to a complaint to request an informal hearing. The amendments to §781.605 reflects the current name of the board committee that reviews complaints filed with the board from "Complaints Committee" to "Ethics Committee."

The amendments to §781.806 allow supervision of licensees on probation by any board approved supervisor with expertise in the licensee's field of practice, as opposed to only LCSWs and to be consistent with supervisory functions authorized by proposed changes in §781.304.

COMMENTS

The board has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. The commenters were individuals, associations, and/or groups, including the following: National Association of Social Workers--Texas Chapter, Texas Society of Clinical Social Work, Department of State Health Services Children and Pregnant Women program staff, three licensees of the board and one comment came from a member of the public. The commenters were not against the rules in their entirety; however, the commenters suggested recommendations for change as discussed in the summary of comments. Commenters were generally in favor of the rules.

The following comments were received from the National Association of Social Workers--Texas Chapter.

Comment: Concerning §781.102(38), the commenter stated that the definition of clinical social work is too broad. The commenter recommended replacing the words "for the welfare of the client and the services rendered" with "for the nature and quality of the services provided to the client."

Response: The board agreed with the comment and modified the definition of clinical social work. Paragraphs (37) - (39) of the section reflect the revised language and are renumbered for proper sequence. The board also determined that paragraph (64) of the section should be deleted as not accurately reflecting the responsibility of the social worker.

Comment: Concerning §781.402(d) and (e), the commenter recommended that the definition of independent clinical practice should be modified by replacing, "welfare of the client and services rendered" with "nature and quality of the services provided."

Response: The board agreed with the comment and modified the definition of independent clinical practice.

Comment: Concerning §781.512(e), the commenter stated that it is unclear what mechanism would be used for licensees to ascertain whether a continuing education provider's approved status has been rescinded. The commenter suggests that the board address any gap between a licensee attending an event and learning that the providers' stratus had been removed.

Response: The board agreed to review this issue more closely and consider possible process or rule changes which might be needed.

Comment: The commenter also commented on the following rules which were not proposed for change: §§781.402(b), 781.402(c), 781.508(b), and 781.514. The board could not consider revising rules as a result of the comments, but did agree to review the comments during a future review of rules for proposed changes.

The following comments were received from the Texas Society of Clinical Social Workers.

Comment: Concerning §781.102, the commenter did not concur with the addition of a definition for, "Conditions of Exchange," as it is unnecessary and could cause potential problems for social workers in independent practice with a mixed payor population.

Response: The board disagreed with the comment because the term conditions of exchange is used in rule §781.304(12). Section 781.304(12) was not open to a substantive change, therefore the board decided to define the term. No change was made as a result of this comment.

Comment: Concerning §781.303, the commenter indicated support of the waiver of the supervised experience requirement for independent practice recognition, but only if the applicant had two years licensed experience with social work supervision or four years licensed experience without social work experience.

Response: The board disagreed with the comment and adopted the rule as proposed, allowing three years licensed social work experience with the supervision of a licensed mental health professional. No change was made as a result of this comment.

Comment: Concerning §781.402, the commenter expressed support of the recommendations for the practice of baccalaureate social work with the exception of mediation.

Response: The board disagreed with the comment because when a baccalaureate social worker is performing mediation services in the context of court ordered family mediation and other related forms of mediation, the baccalaureate social worker is practicing social work. No change was made as a result of this comment.

Comment: Concerning §781.409, the commenter recommended inclusion of all applicable state laws pertaining to confidentiality.

Response: The board's proposed rule change already lists the state laws that most directly relate to the confidentiality and includes all other state laws not listed. No change was made as a result of this comment.

Comment: Concerning §781.414, the commenter recommended adding the word, "or" to allow for options in the methods of providing consumer information to clients.

Response: The board agreed with the comment and revised the rule to provide clarity of the methods available for social workers to provide consumer information to their clients.

Comment: Concerning §781.512, the commenter supported the recommended changes, with the exception that the executive director should have responsibility for these continuing education provider audits.

Response: The board disagrees with the comments because the department staff provides the support function of continuing education audits. The executive director will continue to coordinate the process of board review of audit results when it is indicated.

Comment: Concerning §§781.508, 781.512(b) - (e), 781.513(b), 781.516(g), and 781.517(d) - (f), the commenter supported the recommendations, but suggested that the word "committee" be replaced by "board".

Response: The board agreed with and adopted language changes that clarified responsibilities and the readability of the rule.

Comment: The commenter also commented on several rules which were not proposed for change. The board could not consider revising rules as a result of the comments, but did agree to review the comments during a future review of rules for proposed changes.

The following comment regarding the rules was received from both individuals and associations:

Comment: Numerous commenters noted that in rule §781.402 the practice of clinical social work by a Licensed Master Social Worker is authorized only in an agency setting and only under clinical supervision. The commenters questioned whether affected social workers are aware of the requirement and, whether affected social workers have access to supervision and whether affected social workers/their agencies have resources to comply with the stipulation.

Response: The board could not consider a rule change at this time since the rule was not proposed for change. The board agreed to review the issue for possible proposed rule revision in the future.

The following comments were received from individual commenters:

Comment: Concerning §781.303, the commenter noted omissions of the requirement to be licensed as a social worker in order for social work experience to qualify a person for the waiver under §781.303(b)(3) and (4) and a duplication of language in §781.303(b)(3). The commenter recommended language to clarify the license requirement.

Response: The board agreed with the comments and made changes to clarify the licensed supervised experience requirement for the waiver.

Comment: Three commenters asked general questions concerning the practice settings and authorized social work activities as a result of the rules as proposed.

Response: The board did not make changes as a result of the comments.

DEPARTMENT COMMENTS

Comments were received by the board from department staff and through discussion during the board rules committee meeting on December 1, 2006. The board agreed to the following changes to clarify intent and improve accuracy of the sections.

Change: Section 781.217(a)(8)(B) was modified by setting the fee to convert an active license to inactive at $30 for the transaction and by setting the fee to reactivate an inactive license at the current renewal fee for the license.

Change: Concerning §781.301(c) - (e) and §781.303(b) and (d), the board agreed to a staff comment that the effective date did not coincide with the end of the fiscal year, as intended, and the date of "August 1, 2007" was changed to "August 31, 2007."

Change: Concerning §781.303(a)(1) and (2), an editorial revision of "Board" to "board" was made to the paragraphs of this section.

STATUTORY AUTHORITY

The amendments are adopted under the Occupations Code, §505.201, which authorizes the board to adopt rules necessary to perform the board's duties, and to establish standards of conduct and ethics for license holders; by Occupations Code, §505.203, which authorizes the board to set fees; and by Occupations Code, §505.404, which requires the board to establish mandatory continuing education requirements for license holders.