The Texas State Board of Social Worker Examiners (board) proposes the repeal of §§781.101, 781.102, 781.201 - 781.217, 781.301 - 781.318, 781.401 - 781.419, 781.501 - 781.517, 781.601 - 781.608, 781.610, 781.701 - 781.704, and 781.801 - 781.807; and new §§781.101, 781.102, 781.201 - 781.219, 781.301 - 781.317, 781.401 - 781.418, 781.501 - 781.517, 781.601 - 781.610, 781.701 - 781.704, and 781.801 - 781.808, concerning the licensing and regulation of social workers.

Texas Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Texas Government Code, Chapter 2001 (Administrative Procedure Act). Sections 781.101, 781.102, 781.201 - 781.217, 781.301 - 781.318, 781.401 - 781.419, 781.501 - 781.517, 781.601 - 781.608, 781.610, 781.701 - 781.704, 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in that rules concerning the licensing and regulation of social workers are still needed; however, the rules will be repealed and proposed as new rules as described in this preamble.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 the result of the comprehensive rule review undertaken by the board and the board's staff.

In general, each section was reviewed and proposed for repeal and readoption in order to ensure appropriate subchapter, section, and paragraph organization; to ensure clarity; to improve spelling, grammar, and punctuation; to ensure that the rules reflect current legal and policy considerations; to ensure accuracy of legal citations; to eliminate unnecessary catch-titles; to delete repetitive, obsolete, unenforceable, or unnecessary language; to improve draftsmanship; and to make the rules more accessible, understandable, and usable.

The proposed new rules also establish procedures for the issuance of criminal history evaluation letters, in accordance with Texas Occupations Code, §53.102, as required by House Bill 963, 81st Legislature, 2009, relating to the eligibility of certain applicants for occupational licenses.

SECTION-BY-SECTION SUMMARY

The following section-by-section summary considers only those sections which were substantially changed in language, meaning, or intent. A number of modifications are proposed for the chapter in order to meet the objectives of the rule review such as improving draftsmanship and ensuring clarity.

The following changes are proposed concerning Subchapter A (relating to General Provisions).

Regarding §781.101, the section is modified to improve draftsmanship, delete an obsolete term, and renumber the section. Subsection (c) relating to an exemption from the chapter, is proposed for deletion.

Regarding §781.102, the following definitions are proposed as additions to the section, or are proposed for substantive revision: Assessment; Counseling, clinical; Counseling, supportive or non-clinical; Dual or multiple relationship; Electronic practice; Field placement; Group supervision for licensure or for specialty recognition; Impaired professional; Independent practice recognition; Individual supervision for licensure or specialty recognition; Peer assistance program, and Supervision.

The following terms are proposed for modification to improve draftsmanship and to ensure clarity: ALJ, AMEC, Client, Clinical social work, Confidential information, Conditions of exchange, Contested case, Consultation, Continuing education, Direct practice, Endorsement, Examination, Exploitation, Fraud, Independent clinical practice, Independent non-clinical practice, Investigator, License, LMSW-AP, Non-clinical social work, Psychotherapy, Rules, Social work case management, and Social work practice.

The following terms are proposed for deletion as unnecessary, redundant, or outdated: Detrimental to the client, Family systems, Flagrant, Home study, Independent practice, Indirect practice, Part-time experience, Party, Persistently, Supportive counseling, and Telepractice.

The following changes are proposed relating to the repeal of Subchapter B (relating to The Board) and new Subchapter B (relating to Code of Conduct and Professional Standards of Practice).

Section 781.204(k) addresses the use of electronic practice.

Regarding §781.213, the section title is modified to improve clarity. Regarding §781.218, the section title is modified to reflect updated terms and the former provisions are proposed for deletion as obsolete.

The following changes are proposed relating to the repeal of Subchapter C (relating to Licenses and Licensing Process) and new Subchapter C (relating to The Board).

Regarding §781.305(b), the rule is proposed to set out procedures for any individual to request an agenda item. Regarding §781.310, the section clarifies the duties and responsibilities of the executive director.

Regarding §781.316, the fee section is modified to delete obsolete terminology; to make necessary corrections; to streamline the section; to delete the petition for reexamination fee, a fee that has never been collected by the board; and to establish a new fee for the issuance of criminal history evaluation letters.

Regarding §781.317, the section is proposed to implement the requirements of House Bill 963, 81st Legislature (2009), Texas Occupations Code, §53.102, regarding the issuance of criminal history evaluation letters.

The following changes are proposed relating to the repeal of Subchapter D (relating to Code of Conduct and Professional Standards of Practice) and new Subchapter D (relating to Licenses and Licensing Process).

Regarding §781.401(a), the rule is proposed for modification to address licensure of persons who hold certain licenses issued by other jurisdictions. Regarding §781.401(a)(1)(A), the rule is modified to require an applicant for a clinical social worker license to provide proof of completion of a field placement in social work.

Section 781.401(a)(2)(A) requires an applicant for a master social worker license to provide proof of completion of a field placement in social work, and subsection (b)(1)(E) discontinues the acceptance of new supervision plans for the advanced practitioner specialty recognition, to be effective December 31, 2011. Subsection (c) requires that persons providing social work education and who are eligible for licensure must hold a license in any category by January 1, 2014.

Section 781.402(b), (c), (d), and (e) clarifies that a supervision plan must be submitted and approved for each location of practice and a supervision verification form must be submitted for each location of practice.

Regarding §781.403(e), the rule is proposed for modification to reflect current guidelines of the Internal Revenue Service, relating to employees and independent contractors.

Regarding §781.404(b)(1), the rule is proposed to require that an applicant to be a board-approved supervisor must have practice social work for at least two years at the applicant's current licensure category. Subsection (b)(4) requires content-specific continuing education of board-approved supervisors.

Regarding §781.404(b)(11), the rules are proposed to clearly establish duties and responsibilities of board-approved supervisors and supervisees, and to require that all board-approved supervisors must complete an approved supervision training course by January 1, 2014. Paragraph (12) of the subsection establishes requirements for frequency, duration, and format of supervision for certain applicants, including information regarding electronic supervision.

Section 781.412(b) clarifies that an examination score is valid for licensure purposes for one year. Subsection (g) proposes that an application shall be denied if an applicant has cheated on the examination.

The following changes are proposed relating to the repeal and new Subchapter E (relating to License Renewal and Continuing Education).

Regarding §781.502, the section title is modified to ensure clarity. Regarding §781.506(a), the rule is proposed for modification to require that emeritus status may be requested if a licensee is at least 60 years of age and to require that the status be renewed biennially. Regarding §781.516(h), the rule is proposed to require that supervisor training course providers must submit updated curricula every six years.

The following changes are proposed relating to the repeals and new Subchapter F (relating to Complaints and Violations).

Regarding §781.604(f), language regarding a written statement of dissent and a request for informal hearing is proposed for deletion, as the information is covered in §781.602(b).

Regarding §781.605, the terms "settlement conference" and "informal hearing" are modified to consistently use the term "informal conference."

Regarding §781.610, the section is proposed to establish procedures following violation of an order by a licensee.

The following changes are proposed relating to the repeals and new Subchapter G (relating to Formal Hearings) and Subchapter H (relating to Sanction Guidelines).

The modifications proposed for the subchapters meet the objectives of rule review, improve draftsmanship, and ensure clarity.

Regarding §781.806(2)(N), the rule is proposed to clarify that participation in a peer assistance program may be a condition of probation in some disciplinary matters.

Regarding §781.808, the section is proposed to establish rules and procedures relating to peer assistance programs to assist impaired social workers.

FISCAL NOTE

Carol Miller, Executive Director, has determined that for each fiscal year of the first five years the sections are in effect, there will be fiscal implications to the state as a result of enforcing or administering the sections as proposed. The effect on state government will be an increase in revenue of $1,950 each fiscal year. The implementation of the criminal history evaluation procedures and fee is anticipated to result in an increase of 39 individuals choosing to pay $50 each for the criminal history evaluation letter for a total of $1,950 each fiscal year. The elimination of the petition for reexamination fee will not result in a revenue decrease, as the board has never assessed this obsolete fee. Implementations of the proposed sections will not result in fiscal implications for local governments.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Miller has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This was determined by interpretation of the rules that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the sections.

ECONOMIC COST TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are anticipated economic costs to persons who are required to comply with the sections as proposed. The cost to a person who chooses to request a criminal history evaluation letter is $50. The cost to a license holder who chooses to become a board-approved supervisor or who chooses to maintain board-approved supervisor status, and who will be required to complete a board-approved supervision course if the course has not already been completed, will vary depending upon the course provider. The average cost is estimated to be $500. The licensure cost to an eligible person providing social work education is estimated to be $351 for initial licensure and examination in the master's category, and an ongoing biennial cost of $80-$100 for license renewal. These costs will not apply to persons already licensed by the board. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Ms. Miller 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 continue to ensure public health and safety through the effective licensing and regulation of social workers.

REGULATORY ANALYSIS

The board has determined that this proposal is not a "major environmental rule" as defined by Texas 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 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 Texas Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed rules may be submitted to Carol Miller, Executive Director, Texas State Board of Social Worker Examiners, Mail Code 1982, P.O. Box 149347, Austin, Texas 78714-9347, or by email to lsw@dshs.state.tx.us. When emailing comments, please indicate "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

STATUTORY AUTHORITY

The repeals are authorized by the Texas Occupations Code, §505.201, which authorizes the board to adopt rules necessary for the performance of its duties; and Texas Occupations Code, §502.203, which authorizes the board to set fees reasonable and necessary to cover the costs of administering this chapter; and Texas Occupations Code, Chapter 53, concerning criminal history evaluation.

The repeals affect Texas Occupations Code, Chapters 53, 502 and 505.