The Texas State Board of Social Worker Examiners (board) adopts 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. The new §§781.102, 781.201 - 781.204, 781.210, 781.211, 781.216, 781.315, 781.401, 781.402, 781.404, 781.511, 781.602, 781.603, 781.806, and 781.808 are adopted with changes to the proposed text as published in the August 6, 2010, issue of the Texas Register (35 TexReg 6749). 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, 781.801 - 781.807 and new §§781.101, 781.205 - 781.209, 781.212 - 781.215, 781.217 - 781.219, 781.301 - 781.314, 781.316, 781.317, 781.403, 781.405 - 781.418, 781.501 - 781.510, 781.512 - 781.517, 781.601, 781.604 - 781.610, 781.701 - 781.704, 781.801 - 781.805, and 781.807 are adopted without changes and, therefore, the sections will not be republished.

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). 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in that rules concerning the licensing and regulation of social workers are still needed; however, the rules will be repealed and adopted as new rules as described in this preamble. The adopted 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In general, each section was reviewed, repealed, and readopted in order to ensure appropriate subchapter, section, and paragraph organization; to ensure clarity; to improve spelling, grammar, and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 adopted new rules also establish procedures for the issuance of criminal history evaluation letters, in accordance with 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 adopted for the chapter in order to meet the objectives of the rule review such as improving draftsmanship and ensuring clarity.

The following changes are adopted relating to the repeal and new 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 deleted.

Regarding §781.102, the following definitions are adopted as additions to the section, or are adopted 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 modified 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 deleted 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 adopted 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 781.201(a)(10), §781.202(c) and (f), and §781.203(4) and (7) are modified to improve clarity.

Section 781.204(b) adds a sentence to clarify that "Payment of credentialing or other fees to insurance companies or other third party payers to be part of an approved provider list shall not be considered as a violation of this chapter." Subsection (k) addresses the use of electronic practice.

Section 781.210(a) adds a sentence to clarify that "Payment of credentialing or other fees to insurance companies or other third party payers to be part of an approved provider list shall not be considered as a violation of this chapter."

Section 781.211(g) is deleted as redundant and subsection (h) is renumbered as new (g).

Regarding §781.213, the section title and text are modified to improve clarity in prohibiting advertising in a field outside of social work.

Section 781.216 is modified to improve clarity regarding the board's discretion in providing a roster of licensees on its public website.

Regarding §781.218, the section title is modified to reflect updated terms and the former provisions are deleted as obsolete.

The following changes are adopted 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 adopted 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 §781.315, the section is modified to improve clarity.

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 adopted to implement the requirements of House Bill 963, 81st Legislature (2009), Occupations Code, §53.102, regarding the issuance of criminal history evaluation letters.

The following changes are adopted 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 modified 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.

Regarding proposed §781.401(c), the subsection is deleted as a result of comments, and subsections are renumbered.

Section 781.402(b), (c), (d), and (e) clarify 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 modified to reflect current guidelines of the Internal Revenue Service, relating to employees and independent contractors.

Regarding §781.404(b)(1), the rule is adopted to require that an applicant to be a board-approved supervisor must have practiced social work for at least two years at the applicant's current licensure category. Subsection (b)(2) is modified for clarity, and subsection (b)(4) requires content-specific continuing education of board-approved supervisors.

Regarding §781.404(b), the section is modified to improve clarity. Regarding paragraph (11) of the subsection, rules are adopted 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. Subparagraph (C) of the paragraph modifies the calculation method for acceptance of minimum requirements for supervision sessions. The calculation method for the duration and frequency of supervision sessions is changed from a required, specific minimum number of hours per month and a required, specific number of supervision sessions per month to an average minimum number of hours per month and an average number of supervision sessions per month extending over the entire time period of supervision.

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

The following changes are adopted 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 modified 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 adopted to require that supervisor training course providers must submit updated curricula every six years.

Regarding §781.511(c), law and professional counseling are added as related fields in reference to automatic approval for continuing education provider status.

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

Regarding 781.602(b), the rule is modified for clarity.

Regarding 781.603(h), the rule is modified to give the executive director authority to close non-jurisdictional complaints under certain circumstances.

Regarding 781.603(p), the rule is modified related to the procedure to address new allegations uncovered in the course of the investigation of a complaint.

Regarding 781.604(f), language regarding a written statement of dissent and a request for informal hearing is deleted, 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 adopted to establish procedures following violation of an order by a licensee.

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

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

Regarding §781.806(1), the section is modified for clarity. Subparagraph (L) is added which describes requirements for supervision that is board-ordered as a condition of initial licensure, continued licensure, or a disciplinary action.

Regarding §781.806(2)(N) is adopted 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 adopted to establish rules and procedures relating to peer assistance programs to assist impaired social workers. Subsection (g) is modified to specify that a licensee who knows or suspects that another licensee is impaired is required to report this information to the board within a specified timeframe.

COMMENTS

The board has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. The commenters were thirty-four individuals and several associations, organizations, and entities, including the National Association of Social Workers/Texas Chapter, the Texas Society for Clinical Social Work, the Texas Association of Social Work Deans and Directors, the School of Social Work at Texas State University, the University of Houston Graduate College of Social Work, and the University of Texas System Office of Academic Affairs. The commenters were not against the rules in their entirety; however, the commenters suggested recommendations for change as discussed in the summary of comments.

Comment: Concerning §781.102, the proposed deletion of "Home Study" which was in the current rules at §781.102(34) before this proposal but did not appear in the proposed §781.102, one commenter supported this deletion.

Response: The board agrees.

Comment: Concerning §781.102(7), the definition of "Assessment," two commenters opposed the proposed language and offered modified language, and one commenter supported the proposed language.

Response: The board agreed in part and deleted the phrase, "however, it does not include diagnosing a physical condition."

Comment: Concerning §781.102(11), the definition of "Client," one commenter offered modified language and another commenter agreed with the proposed language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(12), the definition of "Clinical Social Work," one commenter recommended amended language, one opposed the concepts of "assessment, treatment, and diagnosis" as essential to the definition, and one supported the proposed language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(13), the definition of "Confidential information," one commenter supports the proposed change.

Response: The board agrees.

Comment: Concerning §781.102(15), the definition of "Conditions of exchange," one commenter supports the proposed change.

Response: The board agrees.

Comment: Concerning §781.102(17), the definition of "Counseling, clinical," three commenters opposed the proposed change, two of whom offered modified language.

Response: The board agrees in part and deleted "A method that social workers use to assist individuals, couples, families or groups learn how" and added in its place, "The use of clinical social work to assist individuals, couples, families or groups in learning..."

Comment: Concerning §781.102(18), the definition of "Counseling, non-clinical," two commenters opposed the proposed language and offered modified language, and one commenter supported.

Response: The board agreed in part and deleted "or non-clinical" and "Supportive counseling is not clinical social work."

Comment: Concerning §781.102(19), the definition of "Consultation," one commenter requested clarification/modification of the definition, one commenter offered modified language, and one commenter supported the proposed language.

Response: The board disagrees that clarification/modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(25), the definition of "Electronic practice," one commenter supported the proposed language, and one commenter suggested modified language.

Response: The board disagreed that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(26), the definition of "Endorsement," one commenter offered modified language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(35), the definition of "Impaired professional," four commenters offered suggestions for modified language.

Response: The board agrees in part and deleted "professional," added "social work" and "physical health, mental health, or by medication, drugs or alcohol," and deleted "addition or by mental illness."

Comment: Concerning §781.102(36), the definition of "Independent clinical practice," two commenters offered modified language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(37), the definition of "Independent non-clinical practice," one commenter offered modified language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(47), the definition of "Non-clinical social work," two commenters opposed the proposed rule, and one supported.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(50), the definition of "Psychotherapy," one commenter offered modified language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(53), the definition of "Social work case management," one commenter suggested this is hard to distinguish from another existing definition, and one commenter supported the proposed language.

Response: The board disagrees that modification is required. No change was made as a result of the comment.

Comment: Concerning §781.102(55), the definition of "Social work practice," one commenter opposed inclusion of "administration of social work services, policy analysis and development, research, advocacy for vulnerable groups, and social work education" as unnecessarily expanding the definition of social work practice. One commenter opposed changes to language related to "marriage, family and couples intervention" from "marriage and family therapy" and other changes perceived to limit the diversity of the practice of social work, and offered modified language. Specific to the inclusion of "social work education" in this definition, thirty-two commenters offered comments, of which twenty opposed inclusion and twelve supported.