The Texas State Board of Examiners of Marriage and Family Therapists (board) adopts 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. Sections 801.11, 801.41, 801.42, 801.44, 801.142, 801.203, and 801.297 are being adopted with changes to the proposed text as published in the September 28, 2012, issue of the Texas Register (37 TexReg 7660). Amendments 801.1, 801.2, 801.12 - 801.19, 801.43, 801.45 - 801.56, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.115, 801.141, 801.143, 801.171 - 801.174, 801.201, 801.202, 801.231 - 801.237, 801.261 - 801.268, 801.291 - 801.296, 801.298 - 801.303, 801.331, 801.332, 801.351, and 801.361 - 801.364 and new §801.204 are adopted without changes and, therefore, will not be republished.

BACKGROUND AND PURPOSE

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 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 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 were adopted for the chapter in order to meet the objectives of the rule review as described previously, such as improving draftsmanship and ensuring clarity.

Nonsubstantive changes were adopted to various sections of the chapter, including §§801.1, 801.14, 801.15, 801.17, 801.19, 801.42, 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 - 801.237, 801.263, 801.266, 801.267, 801.292 - 801.296, 801.298 - 801.302, 801.331, 801.332, 801.351, and 801.361 - 801.364.

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

Adopted 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).

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 adopted 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, an 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. §12101 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 adopted 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 with other sections and reorders subsections (l) - (s) to accommodate changes. Amended §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 for another mental health service provider unless special precautions are taken; changes to §801.44 also add new subsections that restrict an impaired licensee from providing services and require a licensee to 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 adopts 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, permanently barring sexual contact with a current client or a former client.

Amended §801.48 requires 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 states 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; amended §801.55 and §801.56 make changes throughout the section to recognize the terminology "parenting coordinator."

The following changes are adopted 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 adopts edits to §801.73(a)(2) and (7) for clarity.

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

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

Regarding §801.142, the board adopts amendments 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 eliminates redundancy with the changes as adopted in paragraph (1)(A); the following subparagraphs were reordered accordingly.

The following changes are adopted 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. The changes also require payment of appropriate fees. Adopted 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 adopted 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 adopts 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 license to meet all minimum requirements for licensure as an LMFT.

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

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

Changes to §801.231 and §801.232 set forth the period of licensure renewal and deadlines. Changes to §801.234 reduce the time frame for sending a licensure renewal form to each licensee from 60 to 30 days of license expiration date to accommodate potential logistical challenges in renewal form distribution.

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

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

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

Regarding §801.265, the board adopts edits to identify the appropriate board committee to review continuing education provider approval issues and clarification related to paragraphs (9), (10), and (11).

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

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

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

Regarding §801.296, the board adopts 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 adopts clarification to 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 adopts 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 adopts edits of existing language and new 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 adopted to improve clarity and draftsmanship.

COMMENTS

The board has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. The commenters were associations, including the following: Texas Association of Marriage and Family Therapists and Texas Counseling Association. 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 §801.2(1), one commenter questioned the board's rationale for the proposed amendment, as well as the public benefit. The commenter also implied that certain license applicants may be negatively affected by the amendment.

Response: The board disagrees. The amendment is appropriate, as the accreditation standards for the California Bureau for Private Postsecondary and Vocational Education are significantly lower than those of the Council for Higher Education Accreditation. The public benefits from consistent, high quality accreditation standards. No change was made as a result of this comment.

Comment: Concerning §801.41, one commenter stated that the amendment is vague.

Response: The board disagrees that the language is vague. However, the board has determined that the amendment may be unnecessary or unenforceable and has deleted the proposed language.

Comment: Concerning §801.44(i), one commenter suggested removing "prospective clients" from the amendment.

Response: The board agrees and has made the recommended change.

Comment: Concerning §801.44(j), one commenter questioned whether the amendment conforms to a Texas Supreme Court ruling on this topic.

Response: The board agrees and the proposed change to §801.44(j) was not adopted and the word "may" was left as in existing language.

Comment: Concerning §801.44(p), one commenter suggested adding "electronic communication" to this rule.

Response: The board disagrees. The phrase "in writing" is inclusive of various forms of electronic communication. No change was made as a result of the comment.

Comment: Concerning §801.44(q), one commenter recommended adding the phrase "electronic communication," so that consumers are aware that they can contact the board via email.

Response: The board agrees and has added the phrase to the rule.

Comment: Concerning §801.44(w), one commenter stated that the rule may be in conflict with federal law and requested that the board clarify the meaning of "impaired."

Response: The board agrees in part. In relation to the concern about federal law, the phrase "physical health, mental health, medical condition" were not adopted as part of the rule. In relation to the meaning of "impaired," the board believes no clarification is necessary.

Comment: Concerning §801.142(1)(A)(ii)(III), one commenter recommended that an LMFT Associate who is not changing supervisors, but only practice locations, should not be required to report the change to the board.

Response: The board disagrees. The board believes that required reporting of both supervision and practice location for LMFT Associates is an appropriate and effective regulatory mechanism. No change was made as a result of this comment.

Comment: Concerning §801.142(1)(A)(iii)(IV), one commenter recommended that one-half of the required supervision hours should be accepted via telephone or electronic means. Additionally, the commenter recommended that the rule should specify whether the supervisor must be physically present in Texas when providing supervision via telephone or electronic means.

Response: The board is unable to make this substantive change to the rules at the time of adoption, as other stakeholders have not had an opportunity to comment on this proposal. The board agrees to work with the commenter to study these concerns in the future. No change was made as a result of this comment.

Comment: Concerning §801.142(1)(A)(iii), one commenter recommended that the rule should reflect that a supervision hour is 50 minutes in duration and that a minimum of one supervision hour should be required every two weeks.

Response: The board agrees and has added these two clarifications in §801.142(1)(A)(iii)(V) and (VI).

Comment: Concerning §801.203, one commenter recommends adding new language similar to the language in §801.204 which gives the executive director the flexibility to waive licensing prerequisites for certain applicants who hold out-of-state licenses.

Response: The board disagrees. The referenced language is statutory and applies only to military spouses, as described in new §801.204. Section 801.203 applies to out-of-state applicants who are not military spouses, which is controlled by Texas Occupations Code, §502.259. This section does not authorize the board to accept the recommendation. No change was made as a result of this comment.

Comment: Concerning §801.297(f)(1)(E), two commenters identified a typographical error in the rule.

Response: The board agrees and has changed the term "social work licensing authorities" to "marriage and family therapist licensing authorities" in renumbered §801.297(f)(5).

Comment: Concerning proposed §801.297(f)(2), one commenter expressed concerns that some of the special conditions described in the proposed rule may place the board in a potentially libelous situation.

Response: The board consulted with its legal counsel and the board disagrees that the proposed language is potentially libelous. Upon further consideration of the rule, however, the board has determined that §801.297(f)(2) should be deleted. Subsection (f)(2) was deleted and subsection (f) was renumbered.

Concerning §801.11(h)(1)(C), §801.42(8), and §801.203(c)(2), grammatical changes were corrected.

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.