The Texas State Board of Examiners of Marriage and Family Therapists (board) adopts amendments to §§801.2, 801.11 - 801.17, 801.19, 801.42 - 801.58, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.115, 801.141, 801.174, 801.203, 801.204, 801.232 - 801.235, 801.237, 801.291 - 801.294, 801.297 - 801.303, 801.331, 801.332, 801.351, and 801.362 - 801.364; new §§801.74 - 801.76, 801.142, 801.143, 801.201, 801.202, 801.236, 801.296, and 801.304; and the repeal of §§801.142, 801.143, 801.172, 801.173, 801.201, 801.202, 801.236, and 801.296, concerning the licensing and regulation of marriage and family therapists.

The amendments to §§801.2, 801.11, 801.14, 801.15, 801.19, 801.43 - 801.45, 801.48, 801.53, 801.55 - 801.58, 801.112 - 801.114, 801.204, 801.232, 801.237, 801.291 - 801.293, 801.297, 801.299, 801.301, 801.303, and 801.351; and new §§801.74, 801.76, 801.142, 801.143, 801.201, and 801.296 are adopted with changes to the proposed text as published in the December 14, 2018, issue of the Texas Register (43 TexReg 8006). Therefore, these rules will be republished.

The amendments to §§801.12, 801.13, 801.16, 801.17, 801.42, 801.46, 801.47, 801.49, 801.50 - 801.52, 801.54, 801.71 - 801.73, 801.91 - 801.93, 801.111, 801.115, 801.141, 801.174, 801.203, 801.233 - 801.235, 801.294, 801.298, 801.300, 801.302, 801.331, 801.332, and 801.362 - 801.364; new §§801.75, 801.202, 801.236, and 801.304; and the repeal of §§801.142, 801.143, 801.172, 801.173, 801.201, 801.202, 801.236, and 801.296 are adopted without changes to the proposed text as published in the December 14, 2018, issue of the Texas Register (43 TexReg 8006). Therefore, these rules will not be republished.

The board defers action on proposed amendments to §§801.18, 801.262, and 801.268; new §§801.263, 801.264, and 801.266; and the repeal of §§801.263 - 801.267 as published in the December 14, 2018, issue of the Texas Register (43 TexReg 8006) to allow further consideration of the Sunset Advisory Commission recommendations and public comment.

BACKGROUND AND JUSTIFICATION

Texas Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency. All sections of Chapter 801 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 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 board notes the following legal or technical correction to the proposed text in §801.11(j), concerning board member training, listing both Texas Occupations Code §502.059 and Texas Government Code Chapter 551 because board member training must meet the requirements of both.

Sections 801.57(d), 801.76(b)(2), 801.112(d), 801.114(d), 801.201(d), 801.237, 801.291(1), 801.299(a), and 801.301(2)(D) are amended to include minor revisions for punctuation and grammar.

COMMENTS

The 30-day comment period ended January 14, 2019.

During this period, the board received comments regarding the proposed rules from five individuals and two associations, including Texas Counseling Association (TCA), and Texas Association for Marriage and Family Therapy (TAMFT). A summary of comments relating to the rules and the board's responses follows.

Comment: Regarding proposed rules, overall: TAMFT states "We support the Board efforts to rid the rules of grey areas in changing the language from "shall' to "must' in several instances as we believe stricter guidelines will take away the ability of error." TAMFT cited numerous instances and suggested changes.

Response: The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311. For consistency the board changes "will not" to "may not" in §§801.2(35), 801.14(b), 801.204(b), and 801.232(b); changes "will make no decision" to "may not make a decision" in §801.15(a); adds "may" to "not participate in any board proceedings" in §801.15(b); changes "will" to "must" in §801.11(f), (h)(1)(A) and (B), (2), (3), and (4), §801.19(d) and (e), and §801.351(o)(1)(A); changes "must not" to "may not" in §801.43(b) - (d), §801.44(f) - (h) and (t), §801.55(e), and §801.143(j); changes "No commissions, rebates, or similar remuneration may be given or received by a licensee" to "A licensee may not give or receive a commission, rebate, or similar remuneration" in §801.56(q); and changes "will" to "may" in §801.351(d).

Comment: Regarding proposed rule §801.2(32), concerning the definition of "Respondent," the commenter suggests consistent capitalization in the oft-used phrase "Act or board rules."

Response: The board agrees and makes the change for consistency.

Comment: Regarding proposed rule §801.2(33) and (34), concerning the definitions of "Supervision" and "Supervision hour," the commenter suggests clarification between supervision for the purpose of completing experience requirements for licensure and board-ordered supervision resulting from disciplinary action.

Response: The board agrees and includes clarifying definitions of "Supervision for licensure" and "Supervision, Board-ordered." The definition of "Supervision hour" is 50 minutes, regardless of the supervision type.

Comment: Regarding proposed rule §801.11(e)(2)(B), concerning the role of the board's vice-chair while the position of board chair is vacant, one commenter suggests clarification that the governor may appoint a new chair or designate a new chair from the existing board members.

Response: The board agrees and updates the provision for clarification.

Regarding proposed rule §801.18, concerning Fees, the board defers action to allow further consideration of the Sunset Advisory Commission recommendations and public comment.

Comment: Regarding proposed rule §801.44(p), concerning a licensee's services must be within his or her professional competency and accepted professional standards, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.44(s), prohibiting a licensee from promoting or encouraging a client's illegal use of alcohol or drugs, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.45(b), concerning Sexual Misconduct, TCA and TAMFT as well as one commenter support the clarification to prohibit a licensee's sexual contact with a client or a former client; a supervisee, an LMFT Associate, or an intern for whom the licensee has administrative or clinical responsibility; or a student in a marriage and family therapy graduate program in which the licensee offers professional or educational services. However, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.45(c), prohibiting a licensee from providing therapeutic services to a person with whom the licensee has had a sexual relationship, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.45(d), prohibiting therapeutic deception or sexual exploitation, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.45(e), concerning disallowed "defenses" against finding of sexual misconduct, one commenter suggests clarification to align with proposed changes in §801.45(b).

Response: The board agrees and makes the clarifying change.

Comment: Regarding proposed rule §801.45(f), concerning definition of sexual exploitation, one commenter appreciates the clarification to include inappropriate behaviors with a supervisee, LMFT Associate, or student.

Response: The board appreciates the supportive comments.

Comment: Regarding proposed rule §801.47, concerning drug and alcohol use, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.48(b), requiring a licensee must comply with Texas Health and Safety Code, Chapter 611, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.48(d)(4), requiring a licensee to adhere to Texas Civil Practice and Remedies Code, §81.006 and repealed §801.48(h), detailing the Duty to Report Sexual Exploitation by a Mental Health Services Provider, TCA recognizes requirements in repealed subsection (h) are set forth in statute, but asserts that the public is better protected by adding language under subsection (d) to emphasize that a licensee is mandated to report incidents within 30 days. Another commenter understands that the repealed subsection (h) is repetitive of the requirements "implied in §801.48(d)(4)" but believes "the details help licensees fully comprehend this important reporting duty." This commenter recommends "some of the information in §801.48(h) currently being proposed for deletion be moved instead to be in §801.48(d)(4)(A)." In addition, TCA points out that proposed preamble referred to §801.48(d)(5) but no such provision was published in the proposed rules.

Response: The board agrees and inserts the proposed subsection (h) marked for deletion to §801.48(d)(4)(A) - (C) to provide further clarity of this requirement.

Comment: Regarding proposed rule §801.48(e), concerning record retention, one commenter opposes change as "no valid reason to hold adult records for six years." A second commenter asks if the requirement should be consistently six years for an adult and six years after a minor client reaches the age of 18.

Response: The board disagrees. The board confirms that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires record retention for six years after the end of services provided to an adult, and maintains consistency across the boards served by Professional Licensing and Certification Unit (PLCU) to require record retention for five years after a minor client reaches the age of 18, whichever is longer. The board clarified the language to state "whichever is longer" instead of "whichever comes last."

Comment: Regarding proposed rule §801.50(b), concerning a licensee's use of an assumed name, TCA opposes changing "must not" to "may not" as this seems to imply the rule is "permissive." TCA suggests keeping "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.53(a), prohibiting a licensee from advertising with false, misleading, deceptive, inaccurate, incomplete, out of context, or not readily verifiable information, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.53(d), requiring a licensee to clearly state license status in advertisement, one commenter suggests changing a typo from "a licensee must shall clearly state" to "a licensee must clearly state."

Response: The board agrees and makes the change.

Comment: Regarding proposed rule §801.53(e), prohibiting a licensee advertising with confusing or misleading reference to membership or certification in a field outside therapy, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(d), prohibiting a parenting facilitator from providing other marriage and family therapy services unless so ordered by a court, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(e), prohibiting an LMFT Associate from serving as a parenting facilitator, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(l), prohibiting a parenting facilitator from providing legal advice, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(n), prohibiting a parenting facilitator from providing services before receiving and reviewing the fully executed and filed court order or the signed agreement of the parties, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(p)(2) - (5), prohibiting a parenting facilitator from giving or accepting a gift, favor, loan or other item of value; from coercing or improperly influencing any party to make a decision; from intentionally or knowingly misrepresenting or omitting any material fact, law, or circumstance; and from compromising the facilitator's integrity or impartiality by accepting any engagement, providing any service, or performing any act outside the role of parenting facilitation, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.

Comment: Regarding proposed rule §801.56(v), prohibiting a parenting facilitator from sharing information obtained during the parenting facilitation process except for certain purposes, TCA opposes changing "shall not" to "may not" as this seems to imply the rule is "permissive." TCA suggests changing "shall not" to "must not."

Response: The board disagrees. The board appreciates the comment, but to be consistent with statutory construction, the board will use the Code Construction Act definitions regarding "must," "may," and "may not" located in Texas Government Code Chapter 311.