The Texas State Board of Examiners of Professional Counselors (board) adopts amendments to §§681.1 - 681.17, 681.31, 681.41 - 681.52, 681.71 - 681.73, 681.81 - 681.83, 681.91 - 681.93, 681.101 - 681.103, 681.111 - 681.113, 681.121, 681.123 - 681.127, 681.141, 681.142, 681.144 - 681.146, 681.161, 681.162, 681.164 - 681.172, 681.181, 681.182, 681.184, 681.201 - 681.204, 681.251 and 681.252, new §681.114 and §681.143, and the repeal of §681.147, concerning the licensing and regulation of professional counselors. The amendments to §§681.31, 681.41, 681.42, 681.52, 681.82, 681.83, 681.91, 681.92, 681.103, 681.112, 681.123 and 681.141 are adopted with changes to the proposed text as published in the July 12, 2013, issue of the Texas Register (38 TexReg 4465). Sections 681.1 - 681.17, 681.43 - 681.51, 681.71 - 681.73, 681.81, 681.93, 681.101, 681.102, 681.111, 681.113, 681.114, 681.121, 681.124 - 681.127, 681.142 - 681.146, 681.161, 168.162, 681.164 - 681.172, 681.181, 681.182, 681.184, 681.201 - 681.204, 681.251 and 681.252 and the repeal of §681.147 are adopted without changes and, therefore, the sections 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 681.1 - 681.17, 681.31, 681.41 - 681.52, 681.71 - 681.73, 681.81 - 681.83, 681.91 - 681.93, 681.101 - 681.103, 681.111 - 681.113, 681.121, 681.123 - 681.127, 681.141, 681.142, 681.144 - 681.146, 681.161, 681.162, 681.164 - 681.172, 681.181, 681.182, 681.184, 681.201 - 681.204, 681.251 and 681.252 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 professional counselors 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 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.

New §681.114 results from statutory changes made during the 82nd Legislature, Regular Session, 2011, by the passage of Senate Bill (SB) 1733, codified in the Texas Occupations Code, Chapter 55, requiring the board, by rule, to set alternative licensure requirement procedures for military spouses. New §681.143 specifies the types of activities excluded from credit as continuing education hours. Specific amended sections update licensure requirements and standards of practice in the regulation of licensed professional counselors and revisions as outlined in the section-by-section summary of this preamble. Repealed §681.147 results from a determination to move the language in that section to another section for better organization and clarification purposes.

SECTION-BY-SECTION SUMMARY

This 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 agency review of rules as described in this preamble, such as improving draftsmanship and ensuring clarity.

Non-substantive changes were made to various sections of the chapter, including §§681.1 - 681.17, 681.41 - 681.47, 681.50 - 681.52, 681.71, 681.81 - 681.83, 681.91 - 681.93, 681.113, 681.121, 681.124 - 681.127, 681.141, 681.144 - 681.146, 681.161, 681.162, 681.166, 681.167, 681.170, 681.171, 681.181, 681.182, 681.184, 681.201 - 681.204, 681.251 and 681.252.

The following changes were made concerning Subchapter A (relating to the Board):

The amendment to §681.2 expands the definition of Art Therapy, adds definitions for the terms "Direct client contact", "Indirect hours" and "LPC" and updates and clarifies federal legal references. As a result of the new definitions, the subsections are renumbered accordingly.

The amendment to §681.4 specifies the conditions under which the board may transact business.

Amendments to §681.10 delete subsection (c) relating to the executive director's general supervision and delegation of staff and renumber the remainder of the section accordingly.

The amendment to §681.12 removes the department's authority to set copying fees.

Amendments to §681.14 add online payment as a method of paying a fee; in addition, subsection (d) is updated to reflect the ability of the department to collect subscription and convenience fees.

The following changes were made concerning Subchapter B (relating to Authorized Counseling Methods and Practices):

Amendments to §681.31 change the terms "marriage counseling" to "couples counseling," "chemical dependency counseling" to "addictions counseling" and add "crisis counseling" as an authorized counseling method and practice.

The following changes were made concerning Subchapter C (relating to Code of Ethics):

Amendments to §681.41 add new requirements which a licensee must provide to a client in writing prior to providing services; the use of technological means as a method of communication in certain circumstances is also added to this section. Portions of existing subsection (h) of this section are moved to new subsection (i) to ensure better clarity and organization. The remainder of this section is renumbered to reflect the addition of new subsection (i). Other amendments to this section deletes subsection (z) and moves it to subsection (t)(5) which recognize a licensee's mandatory compliance with Health and Safety Code, Chapters 181 and 611. In addition, amendments to this section delete existing subsection (aa); and include in new subsection (t)(6), which also allows a licensee to require only the applicable part of the divorce decree, rather than the entire document, prior to commencement of counseling services to a minor client unless federal or state statute provides an exemption. If an exemption exists, federal or state statute is followed. This change was made in order to ensure a larger population of children can be served and provision of services delivered more effectively and expeditiously. Existing subsection (bb) is deleted in its entirety and moved to amended §681.41(e)(8) for better organization.

Amendments to §681.42 define allowable sexual contact by an LPC with a former client, LPC Intern or student.

Amendments to §681.45 add Texas Health and Safety Code, Chapter 181, to those laws that a licensee must follow concerning access to mental health records and confidential information.

Amendments to §681.48 remove portions of existing subsection (a) and place them in new subsection (e).

Amendments to §681.49 emphasize the conduct or activities under which a mental health care professional's services may be deemed as false, misleading, deceptive advertising or advertising not readily subject to verification. Reformatting and non-substantive changes were also made to this section.

Amendments to §681.51 expand, in new subsections (c) and (d), the grounds under which the board may deny licensure to an applicant, as well as factors taken into consideration by the board in determining an applicant's fitness for licensure.

Amendments to §681.52 clarify the allowable services an LPC Intern can provide.

The following changes were made concerning Subchapter D (relating to Application Procedures):

Amendments to §681.72 reflect the ability of an applicant to submit official transcripts to the board from the applicant's school by either mail or e-transcript in order to promote flexibility for the applicant. Additionally, amendments to this section reflect the waiver of the five-year examination rule for applicants who apply for license by reciprocity. Language in existing subsection (d) is moved to new subsection (c); subsection (e) is deleted and the remainder of the section is renumbered accordingly.

Amendments to §681.73 increase the required amount of client contact hours under the supervision of a licensed professional counselor with an art therapy specialty designation from 1,000 to 1,500 hours. This change was made in order to reflect standard practice within the profession.

The following changes were made concerning Subchapter E (relating to the Academic Requirements for Licensure):

Amended §681.81 expands, in subsection (b), the required documents that must be provided by an applicant who attended or graduated from a foreign university. Amendments to this section also add new subsection (c) concerning the board's consideration, on a case-by-case basis, additional evidence from an applicant who attended or graduated from a foreign university if the applicant has difficulty securing documentation of this educational experience; the rest of the section is renumbered to reflect this addition. Additionally, amendments to this section add new subsection (h) which limits the applicability of a graduate degree and coursework to that earned 10 years or less prior to the licensure application date, absent certain exceptions.

Amended §681.82, stipulates that as of August 1, 2017, applicants for licensure must earn 60 semester hours in a planned graduate counseling or related field; the current requirement is 48 semester hours.

Amendments to §681.83 change subsection (a) to require an applicant complete at least one three-hour course each in a particular subject area and add new subsections (c) and (d) which specify the types of courses which may be used to meet the new 60-semester hour graduate program reflected in amended §681.82 and that passage of the National Counselor Exam does not guarantee satisfaction of minimum Texas state licensure requirements.

The following changes were made concerning Subchapter F (relating to Experience Requirements for Licensure):

Amendments to §681.91 add new subsection (d) to allow an LPC intern only two LPC board-approved supervisor on file at any given time; the rest of the section is renumbered accordingly to reflect this addition. Amendments to this section also add new subsection (h) to mandate that applicants who previously held temporary licenses in Texas must reapply under the standards in place at the time of application. The language in new subsection (h) replaces the former reapplication process. Other amendments to §681.91 specify when supervision of an intern is completed, delete outdated requirements regarding temporary licenses and add the specific steps for which an LPC Intern must take and receive approval before receiving supervision from a new supervisor or at a new supervision site.

Amendments to §681.92 reflect the need for specific types of supervision an LPC Intern must receive and that experience hours earned via technological means of communication may count for no more than one hundred of the total supervised experienced hours. Moreover, beginning on August 1, 2017, an internship may only commence once an applicant has completed a planned graduate program of at least 60 semester hours. Changes to this section also allow an internship experience to include families and couples as acceptable clients and increase the number of direct supervision hours to four hours per month in a face-to-face or live internet web cam supervision. Additional amendments to this section add new subsections (h), (m), and (n); the section is renumbered accordingly to accommodate these changes. These new subsections require supervisors to review board rules with an LPC Intern, cover changes to supervision or supervision site as well as requirements an LPC Intern must meet to upgrade to a full LPC status.

Amendments to §681.93 expand the requirements an LPC must meet prior to applying for supervision status. Additional amendments to this section require supervision status applications be submitted within certain timeframes and remove the exemption previously allowed to licensees in an accredited doctorate program; this section also reflects that disciplinary actions taken against an LPC Intern may also result in his or her supervisor being disciplined. Other changes to §681.93 include requiring accurate documentation of supervised experience be submitted within a certain time frame and impose administrative penalties on supervisors who violate board rules.

The following changes were made concerning Subchapter G (relating to Licensure Examination):

The amendment to §681.101 deletes subsection (f) regarding the necessity for LPC Interns to pass the National Counselor Exam in lieu of the Texas exam prior to the expiration of their temporary licenses.

The amendment to §681.102 deletes a particular method of notifying applicants of examination results.

Concerning §681.103(a), the board has removed the reference of a "second" examination and added "next" based on Senate Bill 913, 83rd Legislature, Regular Session, 2013, which allows for three examinations instead of two before requiring additional requirements as outlined in §681.103(b).

Amended §681.103 deletes, in subsection (b), prior language and replaces it with new language which requires applicants who fail the licensure examination three times to either wait for a period of two years or to complete nine graduate hours in the applicant's weakest portion of the examination prior to retesting, provided the applicant earn at least a grade of "B" in the completed graduate hours.

The following changes were made concerning Subchapter H (relating to Licensing):

Amendments to §681.111 delete subsection (c) relating to provisional licenses, as the executive director no longer signs the provisional license. All licenses are signed by the board chair. The remaining subsections are renumbered accordingly.

Proposed amendments to §681.112 concerning provisional licensing were removed in the adopted rule text in subsection (a) and new subsection (d) of the section since Texas Occupations Code, Chapter 503 no longer requires a full LPC license be secured before an art therapy license may be obtained. However, the word "currently" was added in subsection (a)(2) to state that "An applicant for a provisional license must be currently licensed in good standing...."

New §681.114 "Licensing of Military Spouses" sets forth the alternative licensure procedure for the spouse of a person serving on active duty as a member of the United States armed forces if the military spouse holds a license as a professional counselor in another state. New §681.114 adds the licensing process for military spouses as required by Senate Bill 1733, 82nd Legislature, (Regular Session) 2011.

The following changes were made concerning Subchapter I (relating to the Regular License Renewal; Inactive and Retirement Status):

The amendment to §681.123 provides that continued education information is part of the required information which must be received before the board renews a license.

The amendment to §681.124 adds new subsection (e) to allow the board to renew an expired license without reexamination, provided certain conditions are met.

The amendment to §681.125(i) removes the references to LPC Intern inactive status.

The following changes were made concerning Subchapter J (relating to Continuing Education Requirements):

The amendment to §681.126 removes language in subsection (c) which previously included language relating to eligibility for a new license.

The following changes were made concerning Subchapter J (relating to Continuing Education Requirements):

Amendments to §681.141 remove January 1, 2007 as the beginning date a licensee must successfully complete the Texas Jurisprudence Examination each renewal period; the amendments also require an LPC Supervisor to complete six additional hours of continuing education in counselor supervision with each renewal.

Amendments to §681.142 remove subsection (a)(1) which previously allowed teaching a graduate level course as an acceptable type of continuing education hours; the remainder of the subsection is renumbered accordingly. New subsection (a)(6) is added to reflect attendance at a complaints committee may be credited as continuing education hours in certain circumstances.

New §681.143 specifies the type of activities that the board will not credit a licensee as continuing education hours and incorporates provisions of repealed §681.147.

The amendment to §681.145 allows certain types of teaching to be credited as continuing education hours.

Section 681.147 is repealed and provisions of it are moved to new §681.143 for better organization and placement.

The following changes were made concerning Subchapter K (relating to Complaints and Violations):

The amendment to §681.164 defines moral turpitude.

Amended §681.165 changes a portion of the section title from "Temporary Suspension" to "Emergency Suspension" to better explain this type of suspension the board is allowed to impose.

Amendments to §681.168 specify that violations of the Act or Chapter 681 of this title must be alleged before the board may consider the surrender of an LPC's license.

The amendment to §681.169 changes the name of the section in order to delineate the rationale for license suspension under this section.

The amendment to §681.172 specifies the font size to be used in a portion of the Notice of Violation.

The following changes were made concerning Subchapter L (relating to Formal Hearings):

The amendment to §681.182 specifies that Chapter 2001, Government Code, is also known as the Administrative Procedure Act.

The following changes were made concerning Subchapter N (relating to Parenting Coordination and Parenting Facilitation):

Amendments to §681.251 and §681.252 replace references to parent coordination and parent facilitator with "parenting" before the terms "coordination" and "facilitator."

COMMENTS

The board received the following comments on the proposed rules during the comment period and the board's response follows each comment. The commenters were the Texas Counseling Association and individuals who were for and against the rules as reflected in this summary of comments.

Comment: There were 60 comments against §681.41(g) concerning the requirement of an established relationship before using technological means of counseling.

Response: The board agrees and modified the rule to reflect that technological means of communication may be used to facilitate the therapeutic counseling process, with no requirement that an established relationship must exist to use this method of counseling.