The Texas State Board of Social Worker Examiners (board) adopts amendments to §§781.101, 781.102, 781.209, 781.215, 781.217, 781.301 - 781.304, 781.311, 781.314, 781.402 - 781.405, 781.409, 781.414, 781.502, 781.505, 781.509, 781.511, 781.512, 781.517, and 781.603; new §781.419, and the repeal of §781.609, concerning the licensure and regulation of social workers. The amendments to §§781.102, 781.303, and 781.402 are adopted with changes to the proposed text as published in the November 16, 2007, issue of the Texas Register (32 TexReg 8265). The amendments to §§781.101, 781.209, 781.215, 781.217, 781.301, 781.302, 781.304, 781.311, 781.314, 781.403 - 781.405, 781.409, 781.414, 781.502, 781.505, 781.509, 781.511, 781.512, 781.517; and 781.603; new §781.419; and the repeal of §781.609 are adopted without changes and, therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The adopted amendments, new rule, and repeal are necessary to implement Occupations Code, Chapter 505. The amended and new rules correct minor errors, improve the clarity of the rules, and ensure that the rules reflect current legal, policy, and operational considerations. Additionally, the repeal eliminates duplication of language.

SECTION-BY-SECTION SUMMARY

The amendments to §781.101 improve the description of the restriction in the Social Work Practice Act of the use of the social worker title.

The amendments to §781.102 improve the definitions of accredited university, Association of Social Work Boards, clinical social work, confidential information, detrimental to the client, direct practice, direct practice, dual relationship, exploitation, family systems, flagrant, fraud, full-time experience, group supervision, indirect practice, individual supervision, investigator, licensee, part-time experience, psychotherapy, social work practice, supportive counseling, supervision, telepractice, and termination; delete the definitions of exploitive behavior, pleading, reciprocity, sexual contact, and sexual exploitation; and, renumber the definitions accordingly.

The amendments to §781.209 clarify the types of committees that may be established by the board.

The amendments to §781.215 clarify what is displayed on the license certificate, add the requirements of a provisional license certificate, and reorder and renumber the section accordingly.

The amendments to §781.217 change the penalty fee for late renewal to one-fourth of the biennial license renewal fee (for late renewals from 1-90 days late); change the penalty fee for late renewal to one-half of the biennial license renewal fee (for late renewals from 91-365 days late); eliminate the student loan default reinstatement fee; and, renumber the section accordingly.

The amendments to §781.301 specify the academic requirements for licensure as a Licensed Clinical Social Worker to be consistent with the Occupations Code, §505; improve language, to establish a one time window between April 1, 2008 and March 31, 2010 during which LMSW licensees of the board may use clinical supervision which was on file with the board before the board established by rule change effective August 24, 2005 that clinical and non-clinical supervision expired after five years (After March 31, 2010, supervision toward clinical or non-clinical licensure or specialty recognition must have occurred within the previous five calendar years occurring from the date of application); remove the requirements of the advanced practice specialty recognition from subsection (a) and restore the requirements in subsection (b); add the requirements for independent non-clinical specialty recognition into subsection (b); remove language regarding the scope of practice in subsection (b) for placement in §781.402; remove language regarding the scope of practice in subsections (c), (d), and (e) for modification and placement in §781.402; and reorder and renumber the section accordingly.

The amendments to §781.302 remove provisions allowing licensees to obtain supervision toward licensure without a supervision plan; improve language, allow for a social worker to be under more than one supervision plan at the same time; and reorder and renumber the section accordingly.

The amendments to §781.303 improve language; delete language related to qualifications for independent practice recognition (note that the deleted language is added to §781.301); remove language in subsection (a) related to the application process for independent practice recognition; remove language in subsection (b) related to the initial one-time waive of the supervised experience requirement that expired August 31, 2007; remove language in subsection (f) that allowed for an LMSW or LBSW to practice independently until August 31, 2007; provide that an LMSW or LBSW may practice independently when the LMSW or LBSW holds the independent practice specialty recognition, is under application for the specialty recognition under the waiver of the supervised experience requirement, or when under a supervision plan for independent practice that has been approved by the board; and reorder and renumber the section accordingly.

Amendments to §781.304 improve language; specify that supervisors may supervise only supervisees providing professional services within the supervisor's own competency; establish the supervisor status renewal period is two years and to be renewed in conjunction with the license renewal; provide a process for a supervisor to surrender supervisory status; specify that any month of supervision under a supervision plan is not creditable unless the conditions of supervision specified in the section were met; forbid supervisors from providing supervision to a social worker who is practicing outside of the scope of the license; require a supervisor who believes a supervisee is practicing outside the scope of the license to make a report to the board; remove language that allows for supervision completed before the effective date of the chapter to be evaluated based on the rules that were in effect at the time the supervision plan or verification was submitted to the board; and reorder and renumber the section accordingly.

The amendment to §781.311 allows a temporarily licensed social worker who passes the licensing examination to be considered temporarily licensed until a regular license is issued by the board or the temporary license expires, whichever is first.

The amendments to §781.314 improve language and use updated terminology.

The amendments to §781.402 add language regarding the scope of practice removed from §781.301; to improve language; to include Current Procedural Terminology (CPT) Codes among identified diagnostic classification systems in assessment, diagnosis, treatment and other social work practice activities Licensed Clinical Social Workers are qualified to use; specify that a LMSW may provide clinical social work services under a contract with an agency when under a board approved clinical supervision plan; remove definitions of independent non-clinical practice and independent clinical practice since the definitions already appear in §781.102; and reorder and renumber the section accordingly.

The amendments to §781.403 improve language and add a general standard of practice for social workers to ensure that the client or a legally authorized person representing the client has signed a consent for services, when appropriate.

The amendments to §781.404 add "services to be provided" to the list of items that a social worker shall make known to a prospective client.

The amendments to §781.405 add a definition of sexual exploitation and improve language.

The amendments to §781.409 improve language; clarify the requirement that a social worker provide a written explanation of types of treatment and charges on a bill or statement to a client even if the bill is paid by a third party; and remove language that indicated that a social worker would be responsible for services rendered when providing approval by signature by another individual who may or may not be licensed.

The amendments to §781.414 improve language and specify that the board will provide consumer information on its web site.

New §781.419 provides that a social worker who is licensed as a sex offender treatment provider by the Council on Sex Offender Treatment is not subject to disciplinary action by the board in relation to the social worker's provision of sex offender treatment; specify that a social worker who is a sex offender treatment provider and who acts in conformance with the rules, policies, and procedures of the council is not subject to any administrative sanction by the board; and specify that if the Council on Sex Offender Treatment takes disciplinary action against a social worker who is a sex offender treatment provider, the board may consider the final order imposing such disciplinary action as grounds for disciplinary action by the board.

The amendments to §781.502 rename the section; reflect that licenses are renewed for a two-year term; and delete language that provided for prorated fees during the transition from renewal terms of one year to two years.

The amendments to §781.505 improve language; use the current terms of "expire" and "expiration" as opposed to the terms "lapse" and "lapsed"; specify the current process for placing a license on inactive status; and specify the process to reactivate a license that was placed on inactive status.

The amendment to §781.509 improves language.

The amendments to §781.511 add the expiration date of a continuing education provider's approved status to certificates of completion issued by the provider and specify that a program offered for continuing education in ethics shall meet the minimum course requirements for an ethics course approved by the board.

The amendments to §781.512 improve language.

The amendment to §781.517 requires that supervisory training courses approved by the board before September 8, 2007, must meet the requirements in §781.511 by August 31, 2008.

The amendments to §781.603 clarify the functions in the complaint procedure that are preformed by department staff; remove the requirement that the executive director make a sworn statement in order to open an anonymous complaint; more accurately describe the review process and decisions made by the executive director upon the receipt of a complaint relative to referral for investigation and notification of the respondent to a complaint; update the complaint procedure; update the range of information provided to the board's ethics committee regarding the status of open complaints; update references to timelines; and reorder and renumber the section accordingly.

Section 781.609 is repealed because language in current board rule §781.703 provides for appropriate default procedures.

COMMENTS

The board has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. The commenters were one individual, associations, and/or groups, including the following: Licensees representing the National Association of Social Workers--Texas Chapter, the Texas Society of Clinical Social Work, and one licensee of the board. 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.

Comment: Concerning §781.102(11) and §781.102(47), the commenter indicated agreement with the proposed changes to §781.102(11). The commenter stated that the definition of clinical social work could be improved by making it clear who is restricted from practicing clinical social work and recommended adding the phrase, "The practice of Clinical social work is restricted to either: (A) a Licensed Clinical Social Worker; or (B) a Licensed Master Social Worker under clinical supervision." The commenter noted that there is currently an insufficient and unworkable delineation between the definitions of clinical and non-clinical social work. The commenter recommended adding language to the definition of non-clinical social work (§781.102(47)) to include direct practice elements of non-clinical social work, such as counseling, case management, interviewing, assessment, intervention, mediation, problem solving, treatment and evaluation. Supportive counseling was not on the list because it defined as non-clinical.

Response: The board agreed with the comment and amended the definition in §781.102(11) accordingly. The board noted that §781.102(47) was not open to substantive change and, therefore, could not act on the recommended change. The board noted that this issue would be referred to the rules committee for consideration in a future rule discussion.

Comment: Concerning §781.102(22), the commenter stated that the definition of "direct practice" should be clarified to limit a "client" to an individual or group who perceives themselves to be (or who are reasonably perceived by others) as social services seekers or recipients. The commenter recommended adding the words, "with those seeking social services," to the end of the current definition.

Response: The board disagreed with the comment because the current definition is generally accepted by the board. No change was made as a result of this comment.

Comment: Concerning §781.102(57), the commenter stated that the definition of "social work practice" is defined by focusing on what social work practice is, not by whom it is provided or whether it is for compensation. The commenter recommended deleting the words, "as an employee, independent practitioner, consultant, or volunteer for compensation or pro bono."

Response: The board disagreed with the comment because it should be clear that social work practice by a licensee in all settings, including unpaid volunteer work is under the jurisdiction of the board. No change was made as a result of this comment.

Comment: Concerning §781.102(60)(B), the commenter stated that the addition of definitions of specific types of supervision is necessary and useful in determining the purpose of the activity. Subparagraph (B) distinguishes what clinical supervision will not be acceptable to the board. The commenter recommended adding to subparagraph (B) the words, "non-approved supervisor" and deleting the words, "Licensed Masters Social Worker providing clinical services by a Licensed Professional Counselor, Licensed Psychologist, Licensed Marriage and Family Therapist, Licensed Clinical Social Worker or Psychiatrist."

Response: The board disagreed with the comment because subparagraph (B) clarifies the specific license holders who are authorized to provide clinical supervision to an LMSW under which a LMSW may practice clinical social work, as authorized by the license, but the supervision is not creditable toward the supervised clinical experience requirement for licensure as a LCSW. No change was made as a result of this comment.

Comment: Concerning §781.102(60)(C), the commenter recommended adding the words, "as a Licensed Clinical Social Worker" to the end of subparagraph (C) to clarify the definition.

Response: The board agreed with the comment and made the change.

Comment: Concerning §781.102(60)(D), the commenter recommended the addition of the words, "in independent practice or as a Licensed Master Social Worker--Advanced Practice" to the end of subparagraph (D) to clarify the definition.

Response: The board agreed with the comment and made the change.

Comment: Concerning §781.102(61), the commenter stated that the general definition of a meeting between a supervisor and supervisee needs not to be so narrowly defined. Other sections of the rules give directions as to the specific time requirements for different types of supervision acceptable to the board. The commenter recommended changing the definition of "supervision hour" to "supervisory session" and provided language to revise the definition.

Response: The board disagreed with the comment because the definition of "supervision hour" is useful for licensee accruing hours of supervision toward the necessary 100 hours for eligibility to examine for the LCSW license. No change was made as a result of this comment.

Comment: Concerning §781.301(a)(3), the commenter stated that, to her knowledge, a specific social work degree in colleges and universities did not exist prior to 1971 and that students interested in a social work career prior to 1971 obtained a degree in "Sociology." The commenter recommended changing the academic requirement for licensure as a Licensed Baccalaureate Social Worker (LBSW) to include a degree in Sociology, if the degree was obtained prior to 1971.

Response: The board disagreed with the comment because the Occupations Code, §505.353(b)(2), specifies that the academic requirement for licensure as a Licensed Baccalaureate Social Worker (LBSW) is a "baccalaureate degree" in social work from an educational program accredited by the Council on Social Work Education. No change was made as a result of this comment.

Comment: Concerning §781.302(b), the commenter recommended changing the word "upgrade" to "change."

Response: The board disagreed with the comment because the "change" from the license of LMSW to LCSW is an upgrade since the license authorizes the additional scope of practice of clinical social work without supervision. No change was made as a result of this comment.

Comment: Concerning §781.302(e), (f), and (g), the commenter stated that the subsections do not address the heading and recommended placement of the subsections in §781.610.

Response: The board disagreed with the comment because the subsections are appropriately placed. No change was made as a result of this comment.

Comment: Concerning §781.303, the commenter referred to previous comments on §781.102 regarding the definitions of clinical and non-clinical social work and that if recommended changes were not adopted in regard to the definitions, then the "non-clinical" qualifier of independent practice recognition should be stricken in all instances. The commenter further recommended that the board include contract clinical services under appropriate supervision as within the scope of an LMSW who holds the independent practice recognition.

Response: The board disagreed with the comment because the non-clinical qualifier is a relevant distinction. As noted above, the board agreed that the definition of non-clinical social work should be considered for amendment in the future since it was not opened for change with this adoption. The board disagreed with the comment regarding including contract clinical supervision under appropriate supervision as within the scope of an LMSW who holds the independent practice recognition because an LMSW with appropriate supervision may provide contract clinical services only under a board approved clinical supervision plan under the supervision of a board approved supervisor. The holding of independent practice recognition is not relevant to the validity of the relationship. No change was made as a result of this comment.