The Texas State Board of Social Worker Examiners (board) adopts an amendment to §781.301 concerning the allowance of social workers at all levels of license to participate as case managers in the medical case management program administered by the Texas Department of Health (TDH) with changes to the proposed text as published in the Texas Register on December 15, 2000, (25 TexReg 12316).

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th legislature, 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). The Texas State Board of Social Worker Examiners has reviewed §781.301 and has determined that reasons for readoption, with the inclusion of this amendment, of §781.301 continues to exist.

A Notice of Intention to Review the section as required by Government Code, §2001.039, (Rider 167), was published in the Texas Register on May 20, 1998, (23 TexReg 5742). No comments were received in regards to this notice.

In March 1999, the board was approached by the TDH regarding case managers at all levels of license participating in the Texas Health Steps Program. The board determined the program as structured was in violation of the private practice provision of the board rules and began negotiations with the TDH for a mutual resolution to the dilemma. In December 2000, the board published a proposed exemption for the program in the Texas Register allowing for a 45-day public comment period. The board received a total of 50 (22 prior to the public comment period, 26 during the public comment period, and 2 after the public comment period ended) comments regarding the proposed rule.

The following comments were received concerning the proposed rule.

Comment: Of the 5 comments opposing the rule received during the public comment period, three of them were concerned as to the ability of those at the Social Worker Associate, Licensed Social Worker and Licensed Master Social Worker level of licensure to work independent of supervision.

Response: The board took no action regarding the proposed rule, however, the board did attempt to work with the TDH regarding this issue of supervision for several months prior to the promulgation of this rule. The board was informed that while direct supervision, in accordance with board rule definitions did not occur, TDH Central Office and Regional staff provide ample oversight. The TDH Texas Health Steps Medical Case Management (THSteps MCM) Program stated that there was not enough staff to provide direct oversight of the providers and that requiring the contracting of supervision services by the providers was a great expense to the providers. No change was made as a result of the comments.

Comment: One commenter felt that the THSteps MCM program needed to expand their acceptance of individuals with other forms of licensure and not restrict services to only social workers and nurses.

Response: The board took no action regarding the proposed rule nor did the board have jurisdiction regarding the rules promulgated for the TDH MCM program. No change was made as a result of the comments.

Comment: During the comment period one group raised a question as to the legal authority of the board to promulgate, through rules, an exemption that would go against the enabling legislation.

Response: During their March 3, 2001, board meeting, the board voted that the program, as structured, was in violation of the private practice portion of the rules and law. The board at that time voted against the adoption of the rule, as proposed because it did not have the authority to promulgate a rule that would be in violation of the enabling legislation. No change was made as a result of the comments.

In March 2001, shortly after the board voted against adoption of the rule, as part of the 77th Legislative Session, House Bill 3365 was introduced that mandated the Texas State Board of Social Worker Examiners to promulgate rules, within 120 days of passage, that would allow all levels of licensure to participate as case managers in the medical case management programs administered by the TDH. The bill passed and was signed by the Governor on May 28, 2001. The board did not pull the proposed rule as published in the Texas Register on December 15, 2000, (25 TexReg 12316), after voting against the adoption of the rule in March 2001, based on the filing of House Bill 3365. The board amended §781.301(b)(5) to state that all levels of licensed social workers may provide medical case management services.

The commenters were Texas Tech University Health Sciences Center at Amarillo, Coalition of Health Services, Texas Society for Clinical Social Work, and numerous individuals.

The amendment is adopted, as amended, under the Occupations Code, §505.201, which provides the board with the authority to adopt rules necessary for the performance of its duties and implement Rider 167 and Government Code, §2001.039.