The Texas State Board of Examiners of Marriage and Family Therapists (board) proposes amendments to §§801.1, 801.2, 801.11 - 801.19, 801.41 - 801.56, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.115, 801.141 - 801.143, 801.171 - 801.174, 801.201 - 801.203, 801.231 - 801.237, 801.261 - 801.268, 801.291 - 801.303, 801.331, 801.332, 801.351, and 801.361 - 801.364 and new §801.204, concerning the licensing and regulation of marriage and family therapists.

BACKGROUND AND PURPOSE

The 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 801.1, 801.2, 801.11 - 801.19, 801.41 - 801.56, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.115, 801.141 - 801.143, 801.171 - 801.174, 801.201 - 801.203, 801.231 - 801.237, 801.261 - 801.268, 801.291 - 801.303, 801.331, 801.332, 801.351 and 801.361 - 801.364 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 marriage and family therapists are still needed; however, changes are needed as described in this preamble and 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 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 section establishes procedures for issuance of licenses to military spouses, as required by Senate Bill 1733, 82nd Legislature, 2011, amending Texas Occupations Code, Chapter 55, relating to the licensing process for military spouses.

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 as described above, such as improving draftsmanship and ensuring clarity.

Nonsubstantive changes were made to various sections of the chapter, including §§801.1, 801.14, 801.15, 801.17, 801.19, 801.43, 801.46 - 801.48, 801.51, 801.53, 801.54, 801.72, 801.91, 801.111 - 801.115, 801.141, 801.143, 801.171, 801.172, 801.201, 801.203, 801.231, 801.233, 801.235, 801.236, 801.237, 801.263, 801.266, 801.267, 801.292, 801.293 - 801.296, 801.298 - 801.302, 801.331, 801.332, 801.351 and 801.361 - 801.364.

The following changes are proposed concerning Subchapter A (relating to the Introduction).

Proposed changes to §801.2 demonstrate the board no longer recognizes educational institutions registered by the California Bureau for Private Postsecondary and Vocational Education and relies instead on accredited institutions and programs of or by the Council for Higher Education (CHEA). This change potentially affects access to initial licensure in Texas and portability for those applicants who received a qualifying degree in California from a school or program which was not accredited by CHEA or one of CHEA's recognized accrediting bodies but which was registered under the California Bureau for Private Postsecondary and Vocational Education (Bureau).

Additional amendments to §801.2 clarify the correct terminology for "Associate" and expand the definition of "Client". Nonsubstantive changes were also made to various portions of §801.2.

The following changes are proposed concerning Subchapter B (relating to The Board).

Amendments to §801.11 alter the procedures for submitting an agenda item and participation during the public comment period. Additionally, changes to §801.11 recognize the board's expectation that licensees seek professional consultation and legal advice from qualified individuals for resolution of ethical dilemmas or practice issues not explicitly articulated in board law, rule or policy.

An amendment to §801.12 deletes paragraph (2) concerning rulemaking procedures as unnecessary since the provision is spelled out in Texas Government Code, §2001.021. The remaining paragraphs are renumbered accordingly.

To reflect current operational procedures, the amendment to §801.13 deletes the requirement that the executive director sign the approved minutes of each meeting.

A reference to 42 U.S.C. §1.201 et seq. was added to §801.16 for the Americans with Disabilities Act.

Amended §801.18 reflects the current electronic address to which applications and renewal applications are sent and processed.

The following changes are proposed concerning Subchapter C (relating to Guidelines for Professional Therapeutic Services and Code of Ethics).

Amended §801.41 adds the requirement that a licensee observe and comply with the code of ethics and standards of practice and that failure to do so is grounds for disciplinary action.

Amended §801.42 reflects that the practice of marriage and family therapy is not limited to the marital relationship but includes couples therapy; the term "marriage" is deleted in the context of describing the changing life cycle.

Amended §801.44 clarifies confidentiality provisions, specifies requirements related to soliciting and contracting with certain referral sources, prohibits a licensee from exploiting a position of trust, simplifies, removes redundancies in other subsections and reorders subsections (l) - (s) to accommodate changes. The amendment to §801.44 also adds new subsections related to exempting certain licensees from the record keeping requirements, prohibiting a licensee from knowingly offering or providing professional services to an individual concurrently receiving professional services from another mental health service provider unless special precautions are taken; changes to §801.44 also add new subsections that require an impaired licensee to refrain from providing services and require a licensee take reasonable steps to facilitate the transfer of a client. Changes to §801.44 prohibit a licensee from aiding or abetting the unlicensed practice of marriage and family therapy, require the licensee to report unlicensed practice to the board and prohibit a licensee from entering into a non-professional relationship with certain persons related to or known by a client if the licensee knows or reasonably should have known such a relationship could be detrimental to the client.

Regarding §801.45, the board proposes several substantive changes including expanding the scope of individuals with whom the licensee may not engage in sexual conduct, deleting the previous time limitation on sexual contact and permanently barring sexual contact with a current client or a former client.

Amended §801.48 requires that a licensee also comply with Texas Health and Safety Code, Chapter 181, in addition to those statutes or rules regarding access to mental health records and confidentiality.

Amended §801.49 mandates certain written reports that must be made to the board and that the failure to do so may result in disciplinary action against the licensee.

Amended §801.50 changes the section name from "Assumed Names" to "Corporation and Business Names" to provide clarity about the intent of the section.

Changes to §801.52 modify the existing language of subsection (a) for clarity and add new subsection (e), regarding responsibility of the licensee for any use or misuse of a reproduced board-issued license.

Amended §801.53 references the exceptions to allowable advertising. Amendments to §801.55 and §801.56 make changes throughout the section to recognize the terminology "parenting coordinator."

The following changes are proposed concerning Subchapter D (relating to Application Procedures).

Amended §801.71 adds "marriage and family therapist associate" as being covered by Subchapter D of this chapter. Changes to §801.73 include the requirement that applicants report any disciplinary actions taken by other jurisdictions on the application form. The board also proposes edits to §801.73(a)(2) and (7) for clarity.

The following changes are proposed concerning Subchapter E (relating to the Criteria for Determining Fitness of Applicants for Examination and Licensure).

Changes to §801.92 remove the requirement that an applicant may be considered unfit for licensure only if he or she lacks the necessary skills and abilities to provide adequate marriage and family therapy in an independent practice setting.

Regarding §801.93, the board proposes a change to allow the board to discipline a licensee based upon information received after license issuance even if it determines the violation occurred prior to the license issuance date.

The proposed changes concerning Subchapter F (relating to the Academic Requirements for Examination and Licensure) are editorial for clarity and improved draftsmanship.

The following changes are proposed concerning Subchapter G (relating to the Experience Requirements for Licensure).

Regarding §801.142, the board proposes to reorganize and rework paragraph (1)(A) for clarity and consistency with current board policies related to minimum requirements for licensure for supervision and supervised experience. The deletion of subparagraph (G) of the paragraph is proposed to eliminate redundancy with the changes as proposed in paragraph (1)(A); the following subparagraphs were relettered accordingly.

The following changes are proposed concerning Subchapter H (relating to Examinations).

Section 801.171 and §801.172 specify licensure must be board approved. Section 801.173 states that when an applicant is notified of application disapproval, the notification must provide the reason for disapproval. Proposed changes to §801.174 would require an applicant to pay an examination fee to the appropriate party as dictated by the current contract or agreement rather than simply at the examination site.

The following changes are proposed concerning Subchapter I (relating to Licensing).

Amended §801.201 specifies that upon receipt and approval of application documentation and required fees, the board shall issue the person a license with a unique license number within 30 days.

Regarding §801.202, the board proposes changes to subsection (b) and the addition of subsections (c) - (e) to articulate the exceptions to the 72-month maximum time limit that an individual may hold an LMFT Associate to meet all minimum requirements for licensure as an LMFT.

New §801.204, "Licensing of Military Spouses," adds the licensing process for military spouses as required by Senate Bill 1733, 82nd Legislature (Regular Session) 2011.

The following changes are proposed concerning Subchapter J (relating to License Renewal and Inactive Status).

Proposed changes to §801.231 and §801.232 set forth the period of licensure renewal and deadlines. In the amendment to §801.234, the board proposes reducing the time frame for sending a licensure renewal form to each licensee from 60 to 30 days from license expiration date to accommodate potential logistical challenges in renewal form distribution.

The following changes are proposed concerning Subchapter K (relating to Continuing Education Requirements).

Concerning §801.261, a licensee must complete continuing education biennially or as appropriate for license renewal.

Regarding §801.264, the board proposes revisions, including reorganization, of this section that expand the types of acceptable continuing education providers and activities.

Regarding §801.265, the board proposes edits to identify the appropriate committee of the board to review continuing education provider approval issues and clarification related to paragraphs (10) and (11).

Regarding §801.268, the board proposes deletion of subsection (c) related to acceptance of continuing education credits from providers who are not board-approved.

The following changes are proposed concerning Subchapter L (relating to Complaints and Violations).

Regarding §801.291, the board proposes modification of paragraph (1)(H) to include license or certification revocation by a governmental agency.

Regarding §801.296, the board proposes new language in subsection (c) to clarify that the board, the executive director or his/her designee may request that all relevant client records be submitted in conjunction with the investigation of an allegation. The board also proposes to clarify subsection (j) to identify that a complaint may be closed through informal measures, including a "Conditional Letter of Agreement" or other action which is not a formal disciplinary action but which would constitute a formal request of the board.

Regarding §801.297, the board proposes to add new subsections (f), (g), and (h) to specifically articulate some of the conditions of probation, the requirements for release of probation, and information about board-ordered supervision.

Regarding §801.303, the board proposes editing existing language and adding additional language related to resolution of pending complaints with actions which are not considered formal disciplinary actions.

The editorial changes concerning Subchapter M (relating to the Licensing of Persons with Criminal Backgrounds), Subchapter N (relating to Informal Conferences), and Subchapter O (relating to Formal Hearings) are to improve clarity and draftsmanship.

FISCAL NOTE

Crystal Beard, LMSW-AP, Executive Director, has determined that for each of the first five years the sections are in effect, there will not be fiscal implications to the state or local governments as a result of enforcing or administering the sections as proposed.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Beard 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 COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed. The proposal will not affect a local economy. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Ms. Beard 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 marriage and family therapists. Finally, the restructuring of many of the rules should improve comprehension, resulting in fewer legal costs to the State and providers.

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 Crystal Beard, Executive Director, Texas State Board of Examiners of Marriage and Family Therapists, Mail Code 1982, P.O. Box 149347, Austin, Texas 78714-9347, or by email to mft@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 amendments are authorized by the Texas Occupations Code, §502.152, which authorizes the board to adopt rules necessary for the performance of its duties, as well as under the Texas Occupations Code, §502.153, which authorizes the board to set fees reasonable and necessary to cover the costs of administering this chapter.

The amendments affect Texas Occupations Code, Chapter 502.