Part 6.
TEXAS BOARD OF PROFESSIONAL ENGINEERS
Chapter 139.
ENFORCEMENT
Subchapter C. ENFORCEMENT PROCEEDINGS
22 TAC §139.35
The Texas Board of Professional Engineers proposes amendments
to §139.35, relating to Sanctions and Penalties. The proposed amendments
reorganize the Sanction and Penalty table to include an Administrative classification
and revise some proposed penalties.
The proposed amendments reorganize the Sanction and Penalty table to include
an Administrative classification, and relocate certain current violations
to this new classification. The Board has also reviewed and revised the suggested
sanctions for the Administrative violations.
C.W. Clark, P.E., Director of Compliance & Enforcement for the board,
has determined that for the first five-year period the proposed amendment
is in effect there are no fiscal implications for the state or local government
as a result of enforcing or administering the section as amended. Mr. Clark
has determined that there may be a minor fiscal impact to the agency and licensees.
There is a minor fiscal impact to individuals required to comply with the
rule as proposed, as the sanctions related to Administrative violates have
been modified. There is no effect to small or micro businesses.
Mr. Clark also has determined that for the first five years the proposed
amendment is in effect, the public benefit anticipated as a result of enforcing
the proposed amendment will be clarification of the Compliance & Enforcement
process and Sanction and Penalty table.
Comments may be submitted no later than 30 days after the publication of
this notice to C.W. Clark, P.E., Director of Compliance & Enforcement,
Texas Board of Professional Engineers, 1917 IH-35 South, Austin, Texas 78741
or faxed to his attention at (512) 440-5715.
The amendment is proposed pursuant to the Texas Engineering Practice
Act, Occupations Code §1001.202, which authorizes the board to make and
enforce all rules and regulations and bylaws consistent with the Act as necessary
for the performance of its duties, the governance of its own, proceedings,
and the regulation of the practice of engineering in this state.
No other statutes, articles or codes are affected by the proposed amendment.
§139.35.Sanctions and Penalties.
(a)
The board, the executive director, an administrative law
judge, and the participants in an informal conference may arrive at a greater
or lesser sanction than suggested in these rules. The minimum administrative
penalty shall be $100 per violation. The maximum administrative penalty shall
be $3000 per violation. Pursuant to §1001.502(a) of the Act, each day
a violation continues or occurs is considered a separate violation for the
purpose of assessing an administrative penalty. Allegations and disciplinary
actions will be set forth in the final board order and the severity of the
disciplinary action will be based on the following factors:
(1)
the seriousness of the violation, including:
(A)
the nature, circumstances, extent, and gravity of the prohibited
act; and
(B)
the hazard or potential hazard created to the health, safety,
or economic welfare of the public;
(2)
the history of prior violations of the respondent;
(3)
the severity of penalty necessary to deter future violations;
(4)
efforts or resistance to efforts to correct the violations;
(5)
the economic harm to property or the environment caused
by the violation; and
(6) any other matters impacting justice and public welfare,
including any economic benefit gained through the violations.
(b) The following is a table of suggested sanctions the board
may impose against license holders for specific violations of the Act or board
rules:
(c) - (e) (No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 2, 2006.
TRD-200600003
Dale Beebe Farrow, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 440-7723
Chapter 141.
FITTING AND DISPENSING OF HEARING INSTRUMENTS
22 TAC §§141.1 - 141.24
The State Committee of Examiners in the Fitting and Dispensing
of Hearing Instruments (committee) proposes amendments to §§141.1
- 141.24, concerning the licensure and regulation of hearing instrument fitters
and dispensers.
BACKGROUND AND PURPOSE
Government Code, §2001.039, 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). Sections 141.1
- 141.24 have been reviewed and the committee has determined that the reasons
for adopting the sections continue to exist because rules relating to the
licensure and regulation of hearing instrument fitters and dispensers are
needed in order to protect and promote public health, safety, and welfare.
The amendments are the result of the comprehensive rule review undertaken
by the committee and the committee's staff. In general, each section was reviewed
and proposed for amendment in order to ensure clarity; to ensure that the
rules reflect current legal, policy, and operational considerations; to ensure
accuracy; to improve draftsmanship; and to make the rules more accessible,
understandable, and usable, to the extent possible.
SECTION BY SECTION SUMMARY
The amendment to §141.1 is proposed to improve draftsmanship.
Amendments to §141.2 are proposed to add a definition of "certification
of testing equipment" as a means to clarify the intent of the rules; and to
modify the definition of "department" to reflect the current name of the agency.
Amendments to §141.3 are proposed to clarify the purpose of each standing
subcommittee; to clarify that the executive director is the custodian of the
committee's records; to correct inaccurate language; and to improve draftsmanship.
The amendment to §141.4 is proposed to reflect current operating procedure.
The amendment to §141.5 is proposed to delete unnecessary language.
Amendments to §141.6 are proposed to delete unnecessary language and
to reflect current operating procedure.
Amendments to §141.7 are proposed to reflect current operating procedure;
to eliminate references to requiring notarization of documents; to improve
draftsmanship; and to delete unnecessary language.
Amendments to §141.8 are proposed to eliminate references to requiring
notarization of documents and to improve draftsmanship.
Amendments to §141.9 are proposed to improve draftsmanship and to
eliminate unnecessary language.
The amendment to §141.10 is proposed to improve draftsmanship.
The amendment to §141.11 is proposed to eliminate the option of filing
a cash deposit with the committee. A deposit or negotiable security may not
be in cash.
The amendment to §141.12 is proposed to improve draftsmanship.
Amendments to §141.13 are proposed to delete unnecessary language;
to improve draftsmanship; to reflect two-year license terms; to provide for
electronic license renewal forms; to clarify that certification of testing
equipment and continuing education documentation shall be submitted only if
selected for audit; and to require that licensees maintain continuing education
and certification of testing equipment documentation for a period of three
years.
Amendments to §141.14 are proposed to delete unnecessary language;
to update language relating to two year license terms; to move language relating
to credit for publications to a more appropriate subsection; and to clarify
expectations regarding the submission of continuing education documentation
at the time of audit. The amendment to §141.14(b)(3) provides for the
acceptance of no more than 5 contact hours annually of online continuing education
courses and manufacturer continuing education courses.
Amendments to §141.15(d) are proposed to require that a person who
fails the examination must repeat the hours of direct supervision required
for the sections that were failed and to eliminate the requirement that a
person may only take the examination three times.
Amendments to §141.16 are proposed to improve draftsmanship; to delete
unnecessary language; to require that it is the responsibility of the owner
of the dispensing practice to maintain client records; to reduce the time
period for maintaining records from five to three years after the latest date
of fitting and dispensing of hearing instruments; and to clarify standards
for audiometric testing devices and submission of certification of testing
equipment.
Amendments to §141.17 are proposed to improve draftsmanship; to delete
unnecessary language; to update language to reflect current legal, policy,
and operational considerations; to clarify that all disciplinary action and
license or application denial proposals shall be followed by written notice
of violation and option for formal hearing; to provide that the executive
director may accept a complaint that is not on the official form; and to set
out procedures relating to the surrender of a license after a complaint has
been filed.
Amendments to §141.18 are proposed to improve draftsmanship and clarify
the section's purpose.
Amendments to §141.19 are proposed to delete unnecessary and obsolete
language.
Amendments to §141.20 are proposed to update the rules to reflect
current operating procedure, update obsolete language, and eliminate unnecessary
language.
Amendments to §141.21 are proposed to delete unnecessary language
and update the section title to accurately reflect its contents.
Amendments to §141.22 are proposed to delete unnecessary language,
to improve draftsmanship, to clarify the prohibition on sexual activity with
clients, and to require compliance with the Health Insurance Portability and
Accountability Act of 1996.
Amendments to §141.23 and §141.24 are proposed to improve draftsmanship.
FISCAL NOTE
Joyce Parsons, Executive Director, has determined that for each fiscal
year of the first five years the sections are in effect, there will be no
fiscal implications to the state as a result of enforcing or administering
the sections as proposed. Implementation of the proposed sections will not
result in any fiscal implications for local governments.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Parsons has also determined that there will be no economic costs to
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. There is no anticipated economic
costs to persons who are required to comply with the sections as proposed.
There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
Ms. Parsons 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 effectively regulate the practice of fitting and dispensing
of hearing instruments in Texas, which will protect and promote public health,
safety, and welfare.
REGULATORY ANALYSIS
The committee has determined that this proposal is not a "major environmental
rule" as defined by 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 not
specifically intended to protect the environment or reduce risks to human
health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The committee has determined that the proposed amendments 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 Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Joyce Parsons, Executive Director,
State Board of Examiners in the Fitting and Dispensing of Hearing instruments,
Department of State Health Services, 1100 West 49th Street, Austin, Texas
78756 or by email to fdhi@dshs.state.tx.us. When e-mailing comments, please
indicate "Comments on Proposed Rules" in the e-mail subject line. Comments
will be accepted for 30 days following publication of the proposal in the
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §402.102,
which authorizes the committee to adopt rules necessary for the performance
of the committee's duties.
The proposed amendments affect Occupations Code, Chapter 402.
§141.1.Purpose.
This chapter implements
[
§141.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1) - (6)
(No change.)
(7)
Certification of testing equipment--A
certificate of calibration, compliance, conformance, or performance.
[
(8) - (12)
(No change.)
(13)
Department--
Department of State Health Services
[
(14) - (30)
(No change.)
§141.3.The Committee.
(a) - (f)
(No change.)
(g)
Subcommittees.
(1) - (5)
(No change.)
(6)
The continuing education subcommittee
shall consider matters relating to the continuing education of licensees and
permit holders, including the approval of programs and sponsors, and shall
make recommendations to the committee as appropriate.
(7)
The examination subcommittee
shall consider matters relating to the licensure examination, including administration
and content, and shall make recommendations to the committee as appropriate.
(8)
The applications subcommittee
shall consider matters relating to license and permit applications referred
by the Executive Director and shall make recommendations to the committee
as appropriate.
(9)
The complaints subcommittee
shall consider matters relating to complaints filed against licensees and
permit holders and may propose disciplinary action if a violation of the Act
or the rules is substantiated. The subcommittee may also dismiss matters for
no violation, for lack of substantiation of a violation, or for lack of jurisdiction.
The subcommittee shall make recommendations to the committee as appropriate.
(h)
Executive director. The executive director shall:
(1)
keep the minutes
of
[
(2) - (4)
(No change.)
(5)
have the responsibility of assembling and evaluating materials
submitted for approval as set out in §141.7 of this title (relating to
Processing Procedures). Final determination shall be made by the executive
director with regard to approval of applications for licensure. Determinations
made by the executive director, that propose denial of licensure are subject
to the approval of the applications
subcommittee
[
(6)
(No change.)
(i)
(No change.)
(j)
Official records of the committee.
(1)
Requests for committee records may be made under the Texas
Public Information
[
(2)
(No change.)
(3)
Applicable cost of duplication shall be paid by the
requestor
[
(k) - (m)
(No change.)
§141.4.Licensees and the Committee.
(a)
(No change.)
(b)
A licensee shall have the responsibility of reporting alleged
violations of the Act or this chapter to the
staff
[
(c) - (g)
(No change.)
§141.5.Client Information.
A licensee shall:
(1)
inform each client of the name, address, and telephone
number of the committee office for the purpose of reporting violations of
the Act
[
(A) - (B)
(No change.)
(2) - (4)
(No change.)
§141.6.Application Procedures.
(a)
(No change.)
(b)
General.
(1)
Unless otherwise[
(2) - (3)
(No change.)
(c)
(No change.)
[
(d)
[
(e)
[
(f)
[
(1)
temporary training permit--$205;
(2)
examination fee--$250;
(3)
apprentice permit--$205;
(4)
licensure fee--$205;
(5)
a license issued or renewed for a one-year term--$205;
(6)
a license issued or renewed for a two-year term--$405;
(7)
duplicate document fee--$25;
(8)
continuing education sponsor fee--$500 annually;
and
(9)
reinstatement fee for a license that was suspended for
failure to pay child support--$55
.
[
[
§141.7.Processing Procedures.
Committee staff shall comply with the following procedures in processing
applications for a temporary training permit, apprentice permit, license,
and renewal of a regular license.
(1) - (3)
(No change.)
(4)
The materials required for application are as follows:
(A)
Application form. The application form shall contain:
(i)
specific information regarding personal data, birth date,
place of employment, other state licenses and certifications held, felony[
(ii) - (iv)
(No change.)
(v)
a statement that the applicant understands that
materials
[
(vi) - (vii)
(No change.)
(viii)
the applicant's dated [
(ix)
the dated [
(B)
Supervised experience form. The supervised experience forms
must be completed by the temporary training permit holder and the supervisor
or supervisors and contain:
(i) - (iv)
(No change.)
(v)
the supervisor's [
(vi)
the temporary training permit holder's [
(C)
(No change.)
[
(5)
Applications may be denied as follows.
(A)
The committee may deny an application if the applicant:
(i)
(No change.)
(ii)
has failed to remit any applicable fees required by [
(iii) - (vi)
(No change.)
(B)
If after review the executive director determines that
the application should be denied, the executive director shall ask the applications
subcommittee to review the application. The applications subcommittee shall
take one of the following actions.
(i)
If the subcommittee concurs that the application should
be denied, they shall instruct the executive director to give the applicant
written notice of the reason for the denial and the opportunity for a formal
hearing.
(I)
The formal hearing, if requested, shall be conducted in
accordance with the provisions of the
APA
[
(II)
(No change.)
(ii)
(No change.)
§141.8.Issuance of Permits.
(a)
Temporary training permit.
(1) - (7)
(No change.)
(8)
A temporary training permit holder shall be required to
have at least 160 hours of directly supervised practicum that shall include
the following:
(A) - (B)
(No change.)
(C)
25 client hours of hearing instrument evaluation including
sound
field measurements with recorded and live voice;
(D) - (J)
(No change.)
(9) - (11)
(No change.)
(b)
Apprentice permit.
(1) - (9)
(No change.)
[
(10)
[
(A)
the name of the temporary permit holder;
(B)
the name, address, and licensure status of the temporary
permit holder's supervisor and supervisors;
(C)
the name and address of the business or organization where
the temporary permit holder practices;
(D)
the inclusive dates of the supervised experience;
(E)
the supervisor's [
(F)
the apprentice permit holder's [
(c)
Other conditions for supervised experience for temporary
training permit or apprentice permit.
(1)
(No change.)
(2)
A supervisor may delegate training activities [
§141.9.Issuance of Licenses.
(a)
(No change.)
(b)
License certificate. Upon receiving the licensure form
and fee, the committee shall issue [
(1)
Regular licenses shall
bear the signatures of the
committee members
[
(2)
Temporary training permits and apprentice permits shall
bear the signatures of
[
(3)
(No change.)
(c)
Replacement card. The committee will replace a lost, damaged,
or destroyed license certificate or renewal card upon a written request from
the licensee and payment for a duplicate document. Requests must include a
[
(d)
(No change.)
§141.10.Reciprocity.
In determining whether the licensing requirements of another jurisdiction
are
equal to or greater than the licensing requirements of the Act
[
(1) - (4)
(No change.)
§141.11.Filing of a Bond.
(a)
(No change.)
(b)
A sole proprietor, partnership, corporation, or other legal
entity subject to subsection (a) of this section may file with the committee
a [
(c) - (e)
(No change.)
§141.12.Surrender of a License or Permit.
(a)
Surrender by licensee or permit holder.
(1) - (2)
(No change.)
(3)
If
no complaint is
[
(b) - (c)
(No change.)
§141.13.Renewal of License.
(a)
General.
(1)
A regular license must be renewed
biennially
[
(2) - (6)
(No change.)
(7)
The deadlines established for renewals, late renewals,
and license renewal penalty fees in this section are based on the
postmark
[
(8)
(No change.)
(9)
The committee shall deny renewal
if required by the Texas Education Code, §57.491, relating to defaults
on guaranteed student loans.
[
[
(b)
Staggered renewals. The committee shall use a staggered
system for license renewals.
(1)
(No change.)
(2)
Licensure fees will be prorated if the licensee's initial
renewal date is determined by the committee to have occurred less than
24
[
(3)
(No change.)
(c)
License renewal.
(1)
At least 45 days prior to the
expiration of a regular license, the committee will send notice of license
expiration.
[
[
[
[
(2)
A
paper or electronic
license renewal form shall
be
made available
[
(A) - (C)
(No change.)
(3)
The committee shall not renew a license until it receives
the:
(A) - (C)
(No change.)
(D)
[
(4)
The committee shall issue a renewal
card
[
(5) - (7)
(No change.)
(8)
Each license to fit and dispense hearing instruments shall
be issued for the term of
two years
[
(9)
(No change.)
(10)
If a person's license has been expired for
less than
[
(11) - (12)
(No change.)
(13)
The
[
(14)
A
[
(15)
(No change.)
(16)
Licensees not selected for
audit shall maintain all continuing education and certification of testing
equipment documentation for a period of three years and shall provide copies
if requested by the committee.
[
§141.14.Continuing Education Requirements.
(a)
(No change.)
(b)
General requirements.
A
[
(1)
each year
begins on the first day of
[
(2)
(No change.)
(3)
Online courses offered by an
approved sponsor and courses sponsored by a manufacturer may not make up more
than 5 contact hours of the required 20 contact hours. At least 15 contact
hours of the required 20 contact hours must be obtained from the acceptable
continuing education categories offered by an approved non-manufacturer sponsor
as described in subsection (g) of this section.
[
(c)
(No change.)
[
[
[
(d)
[
(1)
has served in the regular armed forces of the United
States
[
(2)
submits proof from an attending physician that the licensee
suffered a serious disabling illness or physical disability that prevented
compliance with the requirements of this section during the
24
[
(3)
was licensed for the first time during the
24
[
(e)
[
(f)
[
(g)
[
(1)
participation in those sections of programs (e.g., institutes,
seminars, workshops, and conferences) which are designed to increase professional
knowledge related to the practice of fitting and dispensing of hearing instrument
and are conducted by persons qualified within their respective professions
by appropriate state license or certification where state licensure or certification
exists, or in states outside of Texas where licensure or certification does
not exist by completion of a degree in audiology or a related field and certification
by their respective professional associations if such certification exists;
(2)
completion of academic courses at an accredited institution
in areas supporting development of skills and competence in the fitting and
dispensing of hearing instruments; and
(3)
participation or teaching in programs directly related
to the fitting and dispensing of hearing instruments (e.g., institutes, seminars,
workshops, or conferences) which are approved or offered by an accredited
college or university.
(4)
A licensee may be credited
with continuing education credit hours for a published book or article written
by the licensee that contributes to the licensee's professional competence.
No more than five credit hours for preparation of a publication may be claimed
by a license holder each year. The continuing education subcommittee may grant
credit hours based on the degree that the published book or article advanced
knowledge regarding the fitting and dispensing of hearing instruments.
(h)
[
(1)
Each licensee is responsible for providing the information
necessary for the committee to make a determination of the applicability of
the program to the continuing education requirements.
(2)
The committee is responsible for approving individual continuing
education courses. The committee may approve an institute, agency, organization,
association, or individual as a continuing education sponsor of continuing
education units who pay the continuing education sponsor fee. This will permit
the organizations to provide continuing education units for their fitting
and dispensing of hearing instrument courses, seminars and conferences. Any
organization or individual who meets the required criteria may advertise as
approved sponsors of continuing education for licensed fitters and dispensers
of hearing instruments.
(3)
Sponsors may initiate their own requests and when approval
is obtained, shall announce, prior to the commencement of the continuing education
activity, the number of hours approved and the content of the continuing education
activity as submitted and pre-approved by the committee. When approval is
requested by a sponsor, the sponsor shall provide each participant with written
documentation of participation which shall set forth that participant's name,
the number of approved continuing education hours, the title and date(s) of
the program as approved by the committee, and the signature of the sponsor.
(4)
Sponsors shall pay a continuing education sponsor fee as
set out in §141.6 of this title (relating to Application Procedures)
which will be effective for one year from date of receipt.
(i)
[
(1)
relevance of the subject matter to increase or support
the development of skills and competence in the fitting and dispensing of
hearing instruments or in areas of studies or disciplines related to fitting
and dispensing of hearing instruments;
(2)
objectives of specific information and skills to be learned;
(3)
subject matter, educational methods, materials, and facilities
utilized, including the frequency and duration of sessions, and the adequacy
to implement learner objectives; and
(4)
sponsorship and leadership of program including:
(A)
the name of the sponsoring individual(s) or organization(s);
(B)
program leaders, if different from sponsor(s); and
(C)
contact person if different from the preceding.
(j)
[
(k)
[
(1)
Parts of programs which meet the criteria of this section
shall be credited on a one-for-one basis with one contact hour of credit for
each 55 minutes spent in the continuing education activity.
(2)
Teaching in programs which meet the committee's criteria
as set out in this section shall be credited on the basis of one clock-hour
of credit for one contact hour taught plus two contact hour credits for preparation
for each hour taught. No more than 10 of the 20 hours of required continuing
education can be credited under this option, and credit may be granted for
the same presentation or program not more than twice during any continuing
education period. The remaining hours of continuing education required in
each renewal period must be obtained under another of the available options
in accordance with paragraphs (1) or (3) of this subsection.
(3)
Completion of academic work at an institution which meets
the accreditation standards acceptable to the committee shall be credited
on the basis of 15 contact hours of credit for each semester hour, 10 contact
hours of credit for each quarter hour completed and for which a passing grade
was received as evidenced on an official transcript.
(l)
[
(1)
A licensee may submit the required report
at the time
of renewal
[
(2)
Each report must be accompanied by appropriate documentation
of the continuing education claimed on the report as follows:
(A)
for a program attended, signed certification by a program
leader or instructor of the licensee's participation in the program by certificate,
letter or letterhead of the sponsoring agency, or official continuing education
validation form of the sponsoring agency;
(B)
for teaching or consultation in approved programs, a letter
on the sponsoring agency's letterhead giving the name of the program, location,
dates, and subjects taught and indicating total clock-hours credited;
(C)
for completion of work from accredited schools, an official
transcript showing course credit with at least a passing grade; or
(D)
for official verification of a course at a regionally accredited
academic institution, a letter from the dean of the academic institution or
professor which includes the actual number of clock-hours attended.
(m)
[
(1)
education incidental to the regular professional activities
of a licensee such as knowledge gained through experience or research;
(2)
organization activity such as serving on committees or
councils or as an officer in a professional organization; and
(3)
any program which does not fit the types of acceptable
continuing education in this section.
[
§141.15.Examination.
(a) - (b)
(No change.)
(c)
Examination.
(1)
The examination shall consist of a written section and
a practical section. The examination will consist of the following areas as
they relate
to
the fitting and dispensing of hearing instruments:
(A) - (F)
(No change.)
(G)
recording and evaluation of audiograms and speech audiometry
to determine the candidacy for
a
hearing instrument;
(H) - (N)
(No change.)
(2)
(No change.)
(d)
Failure of examination.
(1)
(No change.)
(2)
If the examinee fails the examination, the examinee must
repeat the
hours of direct supervision required for the sections that
were failed
[
(3) - (4)
(No change.)
[
§141.16.Conditions of Sale.
(a)
Compliance with other state and federal regulations. [
(1)
A licensee or permit holder shall
adhere to
the Federal Food and Drug Administration regulations in accordance with 21
Code of Federal Regulations (CFR) §801.420 and §801.421
.
[
(2)
A licensee or permit holder shall
receive a
written statement before selling a hearing instrument that is signed by a
physician or surgeon duly licensed by the
Texas Medical Board
[
(A)
informs the client that the exercise of the waiver is not
in the client's best health interest;
(B)
does not encourage the client to waive the medical evaluation;
and
(C)
gives the client an opportunity to sign a statement on
the contract that says: "I have been advised by (licensee's or permit holder's
name) that the Food and Drug Administration has determined that my best health
interest would be served if I had a medical evaluation by a licensed physician
(preferably a physician or surgeon who specializes in diseases of the ear)
before purchasing one or more hearing instruments. I do not wish to receive
a medical evaluation before purchasing a hearing instrument"
.
[
(3)
A licensee or permit holder shall
not sell a
hearing instrument to a person under 18 years of age unless the prospective
user, parent,
or
guardian has presented to the licensee or permit
holder a written statement signed by a licensed physician specializing in
diseases of the ear that states that the client's hearing loss has been medically
evaluated and the client may be considered a candidate for a hearing instrument.
The evaluation must have taken place within the preceding six months
.
[
(4)
A licensee or permit holder shall
advise clients
who appear to have any of the following otologic conditions to consult promptly
with a physician:
(A) - (H)
(No change.)
(b)
(No change.)
(c)
Written contract for services to client - client protection.
Upon the sale of any hearing instrument(s) or change of model or serial number
of the hearing instrument(s), the licensee or permit holder shall provide
the client with a signed, written contract for services containing the following:
(1) - (10)
(No change.)
(11)
a serial number(s) and follow-up appointment within 30
days after the hearing instrument fitting shall be part of the patient records[
(12)
the date of the end of the
30 day trial. The date must be a business day, not a weekend, a federal holiday,
or a day that the licensee is not open for business.
(d)
(No change.)
(e)
Record keeping.
(1)
The owner of the dispensing practice shall ensure
that records are maintained
[
(A) - (C)
(No change.)
(D)
copies of
written
[
(E) - (F)
(No change.)
(2)
(No change.)
(f)
Audiometers and audiometric testing devices.
(1)
Audiometers and audiometric testing devices shall meet
the current standards of the American National Standards Institute
or
the International Electrotechnical Commission (IEC).
[
(2)
All portable and stationary
testing equipment used by the license holder must be calibrated annually and
proof of certification must be provided upon renewal of license, if the licensee
is selected for audit.
[
(g)
Audiometric testing not conducted in a stationary acoustical
enclosure.
(1)
(No change.)
(2)
Ambient noise level of
the
location
of
the
audiometric testing, if not done in a stationary acoustical enclosure,
shall include a notation on the hearing test of the following items:
(A) - (D)
(No change.)
(3)
(No change.)
(h)
(No change.)
§141.17.Complaints and Violations.
(a)
Disciplinary action; notices.
(1)
(No change.)
(2)
Prior to initiation of formal proceeding to refuse to issue
or renew a license, revoke or suspend a license or permit, probate disciplinary
action,
assess an administrative penalty,
or issue a reprimand
to a permit holder or licensee, the committee or its designee shall give written
notice to the licensee, permit holder, or applicant by certified mail, return
receipt requested, of the facts or conduct alleged to warrant the action,
including the complainant's name if appropriate; and the licensee, permit
holder, or applicant shall be given the opportunity, as described in the notice,
to show compliance with all requirements of the Act and this chapter, as required
by Texas
Government Code
[
(3)
If
disciplinary action against a licensee or permit
holder or denial of a license or permit application or renewal application
[
(4)
(No change.)
(b)
Reporting alleged violations.
(1)
(No change.)
(2)
Upon receipt of a complaint, the executive director shall
send an acknowledgment letter to the complainant with an official form which
the complainant shall be asked to complete and return the form to the committee
[
(3)
(No change.)
(4)
The executive director shall request a
specific
[
(5) - (6)
(No change.)
(7)
The committee, at least quarterly
and until final disposition of the complaint, shall notify the parties to
the complaint of the status of the complaint unless the notice would jeopardize
an undercover investigation.
[
(8)
The committee shall address all complaints in a timely
manner. [
(9)
The executive director shall notify the complaints subcommittee
of a complaint that has not been resolved in a timely manner.
[
(c) - (e)
(No change.)
(f)
Monitoring of licensees.
(1)
The
department
[
(2) - (4)
(No change.)
(g)
When a licensee or permit holder
has offered the surrender of his or her license or permit after a complaint
has been filed, the committee shall consider whether to accept the surrender
of the license or permit. When the committee has accepted such a surrender,
the surrender is deemed to be the result of a formal disciplinary action and
a committee order accepting the surrender may be prepared.
§141.18.Formal Hearings.
(a)
Formal hearings will be conducted
pursuant to the APA and will be held by the State Office of Administrative
Hearings.
[
(b) - (j)
(No change.)
§141.19.Administrative Penalties.
(a)
The committee may assess an
administrative penalty in accordance with the Act.
[
(b)
The complaints subcommittee, with the approval of the committee
[
(c)
(No change.)
§141.20.Informal Disposition.
(a) - (c)
(No change.)
(d)
The executive director shall decide upon the time, date
and place of the settlement conference, and provide written notice to the
licensee or applicant of the same. Notice shall be provided no less than 10
days prior to the date of the conference [
(e)
A copy of the committee's rules concerning informal disposition
may
[
(1) - (8)
(No change.)
(f)
The notice of the settlement conference
may
[
(g)
One member of the complaints subcommittee
shall
[
(h)
(No change.)
(i)
The licensee or applicant, the licensee's or applicant's
attorney, the
complaints subcommittee
[
(j) - (k)
(No change.)
(l)
Access to the committee's investigative file may be prohibited
or limited in accordance with the Public Information Act [
(m)
(No change.)
(n)
The complainant shall not be considered a party in the
settlement conference but
may
[
(o)
At the conclusion of the settlement conference, the subcommittee
member or executive director may make recommendations for informal disposition
of the complaint or contested case. The recommendations may include any disciplinary
action authorized by the
Act.
[
(p)
The licensee or applicant may either accept or reject the
settlement recommendations at the conference. If the recommendations are accepted,
an agreed settlement order shall be prepared by the committee
staff
[
(q) - (w)
(No change.)
§141.21.Suspension of License Relating [
(a) - (d)
(No change.)
(e)
If a suspension overlaps a license renewal period, an individual
with a license suspended under this section shall comply with the standard
renewal procedures in
the
[
(f) - (h)
(No change.)
§141.22.Code of Ethics.
(a)
The purpose of this section is to establish the standards
of professional and ethical conduct required of a licensee or permit holder
[
(b)
A licensee of hearing instruments must observe and comply
with the code of ethics and standards of practice set forth in this chapter.
Any violation of the code of ethics or standards of practice will constitute
unethical conduct or conduct that discredits the profession of the dispensing
and fitting of hearing instruments and is grounds for disciplinary action.
(1) - (4)
(No change.)
(5)
A licensee shall not engage
in sexual contact or sexual exploitation with a client. Sexual contact means
the behaviors and activities described in the Texas Penal Code, §21.01
(relating to Sexual Offenses; Definitions). Sexual exploitation means a pattern,
practice, or scheme of conduct, which may include sexual contact, that can
reasonably be construed as being for the purposes of sexual arousal, sexual
gratification, or sexual abuse.
[
(6)
(No change.)
(7)
A licensee shall refer a client for those services that
they are unable to
provide
[
(8)
A licensee shall comply with
the requirements of the Health Insurance Accountability and Portability Act
of 1996 (HIPAA).
§141.23.Relevant Factors.
When a licensee has violated the Act or this chapter, three general
factors combine to determine the appropriate sanction which include: the culpability
of the licensee; the harm caused or posed; and the requisite deterrence. It
is the responsibility of the licensee to bring exonerating factors to the
attention of the
complaints
[
(1) - (5)
(No change.)
§141.24.Severity Level and Sanction Guide.
The following severity levels and
guide for sanctions
[
(1) - (5)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on January 2, 2006.
TRD-200600006
Ronald Ensweiler
Chair
State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
Chapter 711.
DIETITIANS
22 TAC §§711.1 - 711.3, 711.6 - 711.8, 711.12, 711.14, 711.17, 711.19
The Texas State Board of Examiners of Dietitians (board)
proposes amendments to §§711.1 - 711.3, 711.6 - 711.8, 711.12, 711.14,
711.17, and 711.19, concerning the licensure and regulation of dietitians.
The amendments are proposed pursuant to statutory changes to the Texas
Occupations Code, Chapter 701, regarding House Bill 1155, passed during the
79th Legislature, 2005. Each section was reviewed and proposed for amendment
in order to ensure clarity; to ensure that the rules reflect current legal,
policy, and operational considerations; to ensure accuracy; to improve draftsmanship;
and to make the rules more accessible, understandable, and usable, to the
extent possible.
SECTION BY SECTION SUMMARY
The amendment to §711.1 is amended to reflect the current name of
the agency.
The amendment to §711.2 is amended to clarify travel reimbursement
for board members and the process for the election of presiding officers of
the board.
Amendments to §711.3 add new language that allows hospital dietitians
to take/transcribe dietary and parental nutrition orders under the provision
of protocols approved by the governing bodies of these institutions.
The amendment to §711.6(g)(3) specifies the examination is the "licensing"
examination.
The amendment to §711.6(h) is being deleted because the subsection
is a duplicate rule to 711.6(b).
The amendment to §711.7 is proposed to add new language to require
the Texas Jurisprudence Exam.
The amendment to §711.8 is proposed to add language regarding failure
to show proof of the Texas Jurisprudence exam will be reason for disapproval
of a license. Also, procedures for processing applications will increase from
14 working days to 20 working days.
Regarding §711.12(7), new language is added to allow refusal to renew
for non-payment of an administrative penalty imposed under the Act.
Amendments to §711.14 are proposed to clarify the maximum amount an
administrative penalty may be per violation, per day and the ability to issue
a cease and desist order.
Amendments to §711.17 add new language to require the Texas Jurisprudence
Exam for licensure renewal.
New language was added to §711.19 to allow the board to order a license
holder to issue a refund to a consumer resulting from an informal conference
instead of or in addition to an administrative penalty.
FISCAL NOTE
Bobbe Alexander, Executive Secretary, has determined that for each fiscal
year of the first five years the sections are in effect, there will be no
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. Alexander has also determined that there will be no economic costs
to 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. There are no anticipated economic
costs to persons who are required to comply with these sections as proposed.
There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
Ms. Alexander 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 effectively regulate the practice of dietetics in Texas,
which will protect and promote public health, safety, and welfare.
REGULATORY ANALYSIS
The board has determined that this proposal is not a "major environmental
rule" as defined by 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 not
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 amendments 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 Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Bobbe Alexander, Executive
Secretary, State Board of Examiners of Dietitians, Department of State Health
Services, 1100 West 49th Street, Austin, Texas 78756 or by email to dietitian@dshs.state.tx.us.
When e-mailing comments, please indicate "Comments on Proposed Rules" in the
e-mail subject line. Comments will be accepted for 30 days following publication
of the proposal in the
Texas Register
.
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §701.152,
which authorizes the board to adopt rules necessary for the performance of
the board's duties.
The proposed amendments affect Occupations Code, Chapter 701.
§711.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1) - (10)
(No change.)
(11)
Department--
Department of State Health Services.
[
(12) - (25)
(No change.)
§711.2.The Board's Operation.
(a) - (g)
(No change.)
(h)
Reimbursement for expense.
[
(1)
[
(2)
[
(3)
[
(4)
[
(i) - (l)
(No change.)
(m)
Elections.
(1)
The governor shall designate
a member of the board as the presiding officer of the board to serve in that
capacity at the pleasure of the governor.
[
(2)
The board shall meet to elect
an assistant presiding officer in accordance with the Act.
[
(3)
(No change.)
(4)
A person who is appointed to
and qualifies for office as a member of the board may not vote, deliberate,
or be counted as a member in attendance at a meeting of the board until the
person completes a training program that complies with the Act.
(n)
Committees.
(1) - (6)
(No change.)
(7)
The following standing committees shall be appointed by
the newly elected chair each odd-numbered year to serve a term of two years.
(A) - (C)
(No change.)
(D)
The board shall appoint at least one public member
to any board committee established to review a complaint filed with the board
or review an enforcement action against a license holder related to a complaint
filed with the board.
[
(o)
(No change.)
(p)
Registry.
(1) - (2)
(No change.)
(3)
The registry will be available on the board's Internet
web site [
(q) - (s)
(No change.)
§711.3.The Profession of Dietetics.
(a) - (b)
(No change.)
(c)
Provider of nutrition services.
(1)
A person licensed by the board is designated
as a health care provider of nutrition services.
(2)
A licensed dietitian, acting
within the scope of his or her license and consistent with medical direction
or authorization as provided in this section, may accept, transcribe into
a patient's medical record or transmit verbal or electronically-transmitted
orders, including medication orders, from a physician to other authorized
health care professionals relating to the implementation or provision of medical
nutrition therapy and related medical protocols for an individual patent or
group of patients. In a licensed health facility, the medical direction or
authorization shall be provided, as appropriate, through a physician's order,
or a standing medical order, or standing delegation order, or medical protocol
issued in accordance with Occupations Code, Chapter 157, Subchapter A, and
rules adopted by the Board of Medical Examiners implementing the subchapter.
In a private practice setting, the medical direction or authorization shall
be provided, as appropriate, through the physician's order, standing medical
order, or standing delegation order of a referring physician, in accordance
with Occupations Code, Chapter 157, Subchapter A, and rules adopted by the
Board of Medical Examiners implementing the subchapter.
(3)
A licensed dietitian, acting
within the scope of his or her license and consistent with medical direction
or authorization as provided in this section, may order medical laboratory
tests relating to the implementation or provision of medical nutrition therapy
and related medical protocols for individual patients or groups of patients.
In a licensed health facility, the medical direction or authorization shall
be provided, as appropriate, through a physician's order, or a standing medical
order, or standing delegation order, or medical protocol, issued in accordance
with Occupations Code, Chapter 157, Subchapter A, and rules adopted by the
Board of Medical Examiners implementing the subchapter. In a private practice
setting, the medical direction or authorization shall be provided through
the physician's order, standing medical order, or a standing delegation order
of the referring physician, in accordance with Occupations Code, Chapter 157,
Subchapter A, and rules adopted by the Board of Medical Examiners implementing
the subchapter.
(d) - (g)
(No change.)
§711.6.Examinations for Dietitian Licensure.
(a) - (f)
(No change.)
(g)
Failures.
(1) - (2)
(No change.)
(3)
An applicant who fails the
licensing
examination
three times shall have his/her application denied unless the applicant furnished
the board an official transcript from an accredited college or university
indicating completed course work taken for credit with a passing grade in
the area(s) of weakness determined by analysis of the previous examination(s).
Before the applicant will be scheduled for another examination, the applicant
shall submit an official transcript showing course work completed in the area
of weakness after the date of the last examination taken by the applicant.
(4)
(No change.)
[
§711.7.Application Procedures for All Licensees.
(a)
(No change.)
(b)
General.
(1)
Unless otherwise indicated, an applicant must submit all
required information and documentation of credentials on official board forms.
(2)
Proof of successfully completing
the Texas Jurisprudence Exam must be submitted with the application.
(3)
[
(4)
[
(5)
[
(c)
Required application materials.
(1) - (3)
(No change.)
[
(4)
[
(5)
[
(6)
[
§711.8.Determination of Eligibility for Licensure.
(a) - (d)
(No change.)
(e)
The board may disapprove the application if the person
has:
(1) - (7)
(No change.)
(8)
been convicted of a felony or misdemeanor if the crime
directly relates to the duties and responsibilities of a licensee as set out
in §711.13 of this title (relating to Licensing of Persons with Criminal
Backgrounds To Be Dietitians and Provisional Licensed Dietitians); [
(9)
had a license, registration, or certificate to practice
dietetics in another state or jurisdiction which has been suspended, revoked,
or otherwise restricted by the licensing entity or commission
; or
[
(10)
failed to submit proof of
successfully completing the Texas Jurisprudence exam as required in §711.7(b)
of this title (relating to Application Procedures for All Licensees), or §711.17(i)
of this title (relating to Continuing Education Requirement).
(f) - (g)
(No change.)
(h)
Processing procedures are as follows.
(1)
Time periods. The board shall comply with the following
procedures in processing applications for licensure and renewal.
(A)
The following periods of time shall apply from the date
of receipt of an application until the date of issuance of a written notice
that the application is complete and accepted for filing or that the application
is deficient and additional specific information is required. A written notice
stating that the application has been approved may be sent in lieu of the
notice of acceptance of a complete application. The time periods are as follows:
(i)
letter of acceptance of application for licensure--
20
[
(ii)
letter of application deficiency--
20
[
(iii)
(No change.)
(B)
(No change.)
(2) - (4)
(No change.)
§711.12.License Renewal.
(a)
General.
(1) - (6)
(No change.)
(7)
The board may refuse to renew
the license of a person who fails to pay an administrative penalty imposed
under the Act unless enforcement of the penalty is stayed or a court has ordered
that the administrative penalty is not owed.
(b) - (e)
(No change.)
§711.14.Violations, Complaints, and Subsequent Board Actions.
(a)
(No change.)
(b)
Filing of complaints.
(1)
Anyone may allege to the board that a person has committed
an action prohibited under the Act or that a licensee has violated the Act
or a board rule.
(2)
A person wishing to complain about a prohibited act or
alleged violation shall notify the board office. The initial notification
of a complaint may be in writing, by telephone, or by personal visit to the
executive secretary's office. [
(3) - (4)
(No change.)
(c) - (e)
(No change.)
(f)
In determining the seriousness of the violation under subsection
(e)(1) of this subsection, the board will use the following guidelines.
(1)
Severity Level I violations are those that had or may have
a serious adverse impact on the health and safety of a patient or client.
If an administrative penalty is assessed for a Level I violation, the maximum
amount of the penalty shall be $5,000 per violation per day.
[
(2)
Severity Level II violations are those that had or may
have a significant adverse impact on the health or safety of a patient or
client.
If an administrative penalty is assessed for a Level II violation,
the maximum amount of the penalty shall be $2,500 per violation per day.
[
(3)
Severity Level III violations are those that had or may
have a minor impact on health or safety of a patient or client.
If an
administrative penalty is assessed for a Level III violation, the maximum
amount of the penalty shall be $1,250 per violation per day.
[
(g) - (k)
(No change.)
(l)
Cease and Desist Order. If
it appears to the board that a person who is not licensed under the Act is
violating the Act, a rule adopted under the Act, or another state statute
or rule relating to the practice of dietetics, the board, after notice and
an opportunity for a hearing may issue a cease and desist order prohibiting
the person from engaging in the activity. A violation of an order under this
subsection constitutes grounds for the imposition of an administrative penalty
by the board.
§711.17.Continuing Education Requirements.
(a) - (h)
(No change.)
(i)
The Texas Jurisprudence Exam
shall be required as follows.
(1)
Effective September 1, 2006, all renewal applicants
must successfully complete at the time of renewal, the Texas Jurisprudence
Exam, once every four years.
(2)
Proof of successfully completing the exam must
be retained by the licensee as required in subsection (c) of this section.
(3)
One hour of Continuing education credit will
be granted for successful completion of the Texas Jurisprudence Exam during
a four-year period.
(j)
[
§711.19.Informal Disposition.
(a) - (w)
(No change.)
(x)
Refund order.
(1)
The dietitians board may order a license holder
to pay a refund to a consumer as provided in an agreement resulting from an
informal settlement conference instead of or in addition to imposing an administrative
penalty under this chapter.
(2)
The amount of a refund ordered as provided in
an agreement resulting from an informal settlement conference may not exceed
the amount the consumer paid to the license holder for a service regulated
by this chapter. The board may not require payment of other damages or estimate
harm in a refund order.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on December 30, 2005.
TRD-200506174
Ralph McGahagin
Chair
Texas State Board of Examiners of Dietitians
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
Chapter 810.
COUNCIL ON SEX OFFENDER TREATMENT
The Council on Sex Offender Treatment (Council) proposes the repeal
of §§810.1 - 810.5, 810.7 - 810.9; 810.31 - 810.34, 810.61 - 810.67,
810.91, 810.92, 810.122, 810.151 - 810.153, 810.182, 810.183, 810.211, 810.241,
810.242, 810.271, and 810.272; and new §§810.1 - 810.5, 810.7 -
810.9; 810.31 - 810.34, 810.61 - 810.67, 810.91, 810.92, 810.122, 810.151
- 810.153, 810.182, 810.183, 810.211, 810.241, 810.242, 810.271, and 810.272,
concerning the licensing of sex offender treatment providers and the civil
commitment of sexually violent predators.
BACKGROUND AND PURPOSE
The new sections are due to the statutory changes made during the 79th
Texas Legislative Session, 2005, by the passage of House Bill (HB) 2036, codified
in Occupations Code, Chapter 110. House Bill 2036 creates a protected practice
of sex offender treatment providers which mandates that all such providers
be licensed by the Council on Sex Offender Treatment. The legislation requires
that the Council by rule set licensure requirements and standards for those
individuals who provider sex offender treatment in this state. House Bill
2036 also provides the Council with additional enforcement tools, as well
as, directs the Council to conduct a pilot program involving dynamic risk
assessment and to report its finding to the Governor.
SECTION BY SECTION SUMMARY
New §§810.1 - 810.5, 810.7 - 810.9; 810.31 - 810.34, 810.61 -
810.67, 810.91 - 810.92, 810.122, 810.151 - 810.153, 810.182 - 810.183, 810.211,
810.241 - 810.242, and 810.271 - 810.272 provides clarification to the rules
and statutory changes. New §810.1 provides for clarification of the original
purpose and mission of the Council. New §810.2 adds new definitions and
clarify other definitions. New §810.3 adds two new licensing tiers and
deletes duplicate information. New §810.4 provides clarification to continuing
education hours and adds ethics hours for renewals. New §810.5 provides
a licensing fee in accordance with the tiered structure. New §810.7 provides
clarification regarding letters of reference from experienced professionals.
New §810.8 provides the criteria the council will use in evaluating criminal
convictions for licensing purposes. New §810.9 provides clarification
regarding the timeframe in processing a complaint. New §810.31 provides
that the Council shall obtain a criminal history record as part of the application
process. New §810.32 relates to records held by the Council and changes
the term registrant to licensee. New §810.33 provides for the destruction
of adjudication information by the Council and changes the term registrant
to licensee. New §810.34 clarifies the frequency of performing a criminal
background checks by the Council. New §810.61 provides that the Council
shall maintain a database containing the names of licensed sex offender treatment
providers. New §810.62, provides clarification of the professional and
legal obligations required by licensees. New §810.63 provides clarification
of the professional and legal obligations required by licensee in the assessment
of a sex offender or juvenile with sexual behavior problems. New §810.64
provides clarification of the professional and legal obligations required
by licensee in the assessment of juveniles with sexual behavior problems.
New §810.65 provides clarification of the professional and legal obligations
required by licensee regarding female sex offenders. New §810.66 provides
clarification of the professional and legal obligations required by licensee
regarding the assessment and treatment of developmentally delayed clients.
New §810.67 shall subscribe and adhere to various tenets as the relate
to pertinent issues to be addressed in treatment settings. New §891.91
provides licensees with general guidance regarding their ethical obligations.
New §810.92 provides enforcement of the ethical obligations of all licensees.
New §810.122 provides for various definitional changes involving the
civil commitment program. New §810.151 provides the Council with authority
to employ program specialists to assist in the civil commitment program. New §810.152
provides that a program specialist may be a recipient of information from
the council relating to a sexually violent predator (SVP). New §810.153
provides for a clarification of where an SVP may be housed while in the civil
commitment program, tracking services, follow up polygraph examinations, and
supervision of SVPs. New §810.182 provides that a program specialist
may perform duties relating to the outpatient treatment and supervision program.
New §810.183 relates to the services provided by treatment providers
and changes the term evaluations to assessments. New §810.211provides
that a program specialist shall provide a report regarding the SVP's compliance.
New §810.241-810.242 provides for the program specialist to authorize
release and provide written notice to the SVP. New §810.271 clarifies
that the council shall provide all relevant information to the program specialist.
New §810.272 provides that duties and responsibilities of the Council
under the Civil Commitment Act are suspended upon a person's confinement or
commitment to a community center, mental health facility, or state school,
by governmental action.
FISCAL NOTE
Allison Taylor, Executive Director, Council on Sex Offender Treatment,
has determined that for each calendar year of the first five years the sections
will be in effect, there will be fiscal implications to the state as a result
of enforcing or administering the sections proposed. The effect on state government
will be an increase in revenue to the state of $26,100 the first calendar
year as a result of collecting initial licensure fees set at $300. It is estimated
that the small licensee population will increase by approximately 25% (approximately
87 license holders). There will be an increase in revenue of $17,400 during
the third and fifth calendar year as the 87 additional license holders will
renew licensure set at $200 every two years. This increase in revenue is an
estimate as there is no statistical data on the number of persons providing
sex offender treatment in Texas who are not currently listed on the Council's
registry.
Implementation of the proposed sections may result in fiscal implementations
for local and state governments. There may be fiscal implications for local
and state governmental entities who currently utilize persons who are not
previously registered. Those persons must now meet licensure requirements
authorized through HB 2036 unless the specified entity exempts its provider
from a specific licensing requirement. It is not possible to estimate how
many providers employed through local or state governmental entities are affected
or if the entity will choose to pay the licensing costs for the person. An
affected person must meet the current licensure requirements (including possible
additional education), pay a $300 initial licensure fee, meet continuing education
requirements, and pay a $200 biennial renewal fee.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Taylor has also determined that there may be an effect on small businesses
or micro-businesses to required to comply with the sections as proposed. This
was determined by interpretation of the rules that small businesses and micro-businesses
may be required to alter their business practices in order to comply with
the sections. There is no anticipated negative impact on local employment.
There are anticipated economic costs to individuals who are required to comply
with the sections as proposed. The initial application cost to an individual
is $300 for the biennium plus a $39 for the Department of Public Safety criminal
history check and thereafter a $200 biennial licensing renewal cost.
PUBLIC BENEFIT
In addition, Ms. Taylor has also determined that for each year of the first-five
years the sections are in effect, the public will benefit from the adoption
of the sections. The public benefit anticipated as a result of enforcing or
administering the sections is to ensure and enhance public safety.
PUBLIC COMMENT
Comments on the proposal may be submitted to Lupe Ruedas, Council on Sex
Offender Treatment, 1100 West 49th Street, Austin, Texas 78756, fax 512-834-4511,
or email to lupe.Ruedas@dshs.state.tx.us. Comments will be accepted for 30
days following publication of the proposal in the
Texas Register
.
PUBLIC HEARING
A public hearing to receive comments on the proposal will be scheduled
after publication in the
Texas Register
. For
additional information, please contact Lupe Ruedas at 512-834-4530.
Subchapter A. SEX OFFENDER TREATMENT PROVIDER REGISTRY
22 TAC §§810.1 - 810.5, 810.7 - 810.9
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.1.Introduction.
§810.2.Definitions.
§810.3.Registry Criteria.
§810.4.Registry Renewal.
§810.5.Fees.
§810.7.Documentation of Experience and Training.
§810.8.Revocation, Denial or Non-Renewal of Registration.
§810.9.Complaints, Disciplinary Actions, Administrative Hearings and Judicial Review.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on December 30, 2005.
TRD-200506152
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.1 - 810.5, 810.7 - 810.9
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.1.Introduction.
(a)
Purpose. The provisions of this chapter govern the procedures
relating to the licensing of individuals as sex offender treatment providers
in the State of Texas.
(b)
Construction. These sections cover definitions, licensing
criteria for application, fees, continuing education, complaints and other
general procedures, and policies of the Council on Sex Offender Treatment.
(c)
History. The Council on Sex Offender Treatment (council)
was created by the 68th Legislature (Senate Bill 84) in 1983 under the name
of the Interagency Council on Sex Offender Treatment and is codified in Occupations
Code, Chapter 110. The council was designed to coordinate effective assessment
and treatment strategies to reduce recidivism of sex offenders and to enhance
public safety.
§810.2.Definitions.
(a)
General Definitions.
(1)
ATSA--Association for the Treatment of Sexual Abusers.
(2)
Act--Texas Occupations Code, Chapter 110, relating to the
Council on Sex Offender Treatment.
(3)
Biennium--Every two years.
(4)
Case Management--The coordination and implementation of
activities directed toward supervising, treating, and managing the adult sex
offender or juvenile with sexual behavioral problems.
(5)
Client(s)--Used interchangeably with adult sex offenders
and juveniles with sexual behavior problems.
(6)
Council--Means the Council on Sex Offender Treatment. The
council consists of 7 members, appointed by the Governor with the advice and
consent of the Senate.
(7)
Custodian--The adult who is responsible for the adult or
child.
(8)
Fiscal year--September 1 through August 31.
(9)
Guardian--The person who, under court order, is the guardian
of the person of the adult or the child or the public or private agency with
whom the adult or juvenile has been placed by a court.
(10)
HIPAA--Health Insurance Portability and Accountability
Act, Title 45, Code of Federal Regulations (CFR), Parts 160 and 164.
(11)
Juvenile Court--A court designated under the Family Code,
Title 3, Juvenile Justice Code, §51.04, to exercise jurisdiction over
the proceedings.
(12)
Licensed Practitioner--A licensed practitioner defined
in Health and Safety Code, §1.005 as a sex offender treatment provider
who is licensed under Chapter 110, Occupations Code.
(13)
Licensed Sex Offender Treatment Provider--A treatment
provider licensed by the council and who is recognized based on training and
experience to provide assessment and treatment to adult sex offenders and/or
juveniles with sexual behavioral problems.
(14)
Licensee--A person who is licensed by the Council to assess
and treat adult sex offenders and/or juveniles with sexual behavior problems.
(15)
Mental Health or Medical License--A license or certification
to practice as a physician, psychiatrist, psychologist, psychological associate,
licensed professional counselor, licensed marriage and family therapist, licensed
clinical social worker, licensed master social worker, advanced nurse practitioner,
licensed marriage and family therapist associate, licensed professional counselor
intern, provisionally licensed psychologist, recognized as a psychiatric clinical
nurse specialist or psychiatric mental health nurse practitioner, who provides
mental health or medical services for the treatment of sex offenders.
(16)
Reportable Conviction or Adjudication--A conviction or
adjudication, regardless of the pendency of an appeal.
(b)
Treatment Definitions.
(1)
Ability to give consent--Consent is an expressed agreement.
Consent cannot be given by someone who is not of the legal age, is emotionally
or cognitively disabled, or under the influence of drugs or alcohol. The legal
age to give consent for sexual contact in the State of Texas is 17 years old.
(2)
Accountability--Accurate attributions of responsibility,
without distortion, minimization, or denial.
(3)
Adaptive behavior--The effectiveness with which a person
meets the standards of personal independence and social responsibility reasonably
expected of the person's age and cultural group (Health and Safety Code, Chapter
614).
(4)
Anti-androgens--Medication used to reduce the endogenous
levels of testosterone with the possible result of reducing sexual arousal
and assisting in controlling deviant sexual arousal.
(5)
Appropriate sexual behavior--A sexual act that meets the
following criteria:
(A)
is with a person over the legal age of consent for sexual
contact (17 years of age);
(B)
is with a person able to give consent;
(C)
is not forced;
(D)
does not cause physical harm, or is coerced;
(E)
does not use intimidation or deceit,
(F)
is not paid for; and
(G)
is not harmful or degrading.
(6)
Aversive conditioning--Behavioral techniques that involve
pairing deviant sexual arousal with a noxious stimulus in order to reduce
deviant sexual arousal.
(7)
Clarification--The process designed for the primary benefit
of the victim, by which the adult sex offender or juvenile with sexual behavior
problems clarifies that the responsibility for the assault/abuse resides with
the adult offender or juvenile. The victim has no responsibility for the adult
offender or juvenile's behavior. It addresses the harm done to the victim
and the family. The victim's participation is never required and is sometimes
contraindicated. All contact is victim centered and based on the victim's
need.
(8)
Containment approach--A method of case management and treatment
that seeks to hold adult sex offenders and juveniles with sexual behavioral
problems accountable through the combined use of both internal and external
control measures. A containment approach requires the integration of a collection
of attitudes, expectations, laws, policies, procedures, and practices.
(9)
Denial--Refusal to acknowledge in whole or part sexually
deviant arousal, sexually deviant intent, and/or sexually deviant behavior.
(10)
Deviant sexual arousal--A pattern of physiological sexual
responses to inappropriate fantasies, thoughts, objects, and/or persons that
may or may not precede a sexual act. Deviant sexual arousal is the most obvious
manifestation of deviant sexual interests.
(11)
Deviant sexual behavior--A sexual act that meets one or
more of the subsequent criteria:
(A)
is with a person under the legal age of consent for sexual
contact (17 years of age);
(B)
is with a person who is unable to give consent;
(C)
is forced, causes physical harm, is coerced, uses intimidation
or deceit, or is paid for; or
(D)
is harmful or degrading.
(12)
Developmental disability--A severe and chronic disability
that is attributable to a mental or physical impairment or a combination of
physical and mental impairments, is manifested before age 22, is likely to
continue indefinitely, and results in substantial functional limitations in
three or more of the major life activities (Health and Safety Code, Chapter
614).
(13)
Dynamic risk factors--Risk factors that can change over
time and are therefore important targets for treatment and supervision. Dynamic
risk factors include but are not limited to associations with antisocial peers,
deviant sexual fantasies, and substance use.
(14)
Empathy--The ability to identify and understand another
person's feelings, situation, or ideas.
(15)
Grooming--The process of desensitizing and manipulating
the victim(s) and/or others for the purpose of gaining an opportunity to commit
a sexually deviant act.
(16)
Inappropriate sexual behavior--Any sexual behavior outside
the norm for the age and development for that individual.
(17)
Juvenile with sexual behavior problems--A person who is
ten years of age or older and under 17 years of age who commits any sexual
interaction with a person of any age against the victim's will, without knowing
consent, or in an aggressive, exploitative, or threatening manner (Juvenile
Justice Code Title 3, §51.02).
(18)
Mental illness--An illness, disease, or condition, other
than epilepsy, senility, alcoholism, or mental deficiency, that substantially
impairs a person's thoughts, perception of reality, emotional process, or
judgment or grossly impairs behavior as demonstrated by recent disturbed behavior
(Health and Safety Code, Chapter 571).
(19)
Mental retardation--A significantly sub-average general
intellectual functioning that is concurrent with deficits in adaptive behavior
and originates during the developmental period (Health and Safety Code, §591.003).
(20)
Offense cycle--The specific sequence(s) of thoughts, feelings,
behaviors, and events that precede a sexual offense. The offense cycle is
thought to be a precursor to sexual offending and should be addressed in relapse
prevention.
(21)
Offense specific--Consistent with current professional
practices, and means a long-term comprehensive set of planned treatment experiences
and interventions to modify sexually deviant thoughts and behaviors. Such
treatment specifically addresses the occurrence and dynamics of sexually deviant
thoughts and behaviors and utilizes specific strategies to promote change
and reduce the chance of re-offending. Sex offense specific programming focuses
on concrete details of the actual sexual behavior, the fantasies, the arousal,
the planning, the denial, and the rationalizations. The primary treatment
modality is cognitive behavioral group treatment.
(22)
Penile plethysmograph--A diagnostic method to assess sexual
arousal by measuring the blood flow (tumescence) to the penis during the presentation
of sexual stimuli in a laboratory setting.
(23)
Polygraph (clinical) examination--The employment of any
instrumentation complying with the required minimum standards of the Texas
Polygraph Examiner's Act and used for the purpose of measuring the physiological
changes associated with deception. Four types of polygraphs used in the management
of adult sex offenders and juveniles with sexual behavior problems are the
instant sexual offense polygraph, sexual history polygraph, maintenance polygraph,
and the monitoring polygraph.
(24)
Polygraph examiner--A licensed person who adheres to the
standards set forth by the Joint Polygraph Committee on Offender Testing (JPCOT).
(25)
Rehabilitation service--A mental health treatment or medical
intervention program designed to treat or remedy a client's mental or medical
problem that may relate or contribute to the client's criminal or paraphilic
problem.
(26)
Sex offender--A person who:
(A)
is convicted of committing or adjudicated to have committed
a sex crime under the laws of a state or under federal law, including a conviction
of a sex crime under the uniform code of military justice;
(B)
is awarded deferred adjudication for a sex crime under
the laws of a state or under federal law;
(C)
admits to having violated the law of a state or federal
law with regard to sexual conduct; or
(D)
experiences or evidences a paraphiliac disorder as defined
by the current version of the Diagnostic and Statistical Manual (DSM), as
published by the American Psychiatric Association Press, including any subsequent
revision of the manual, which may place a person at risk for the violation
of sex offender laws.
(27)
Sex offender treatment--Means offense specific cognitive/behavior
treatment which may include a medical intervention program designed to treat
a client's deviant cognitive thoughts process and/or sexual behavior that
relate or contribute to the client's criminal sexual behavior.
(28)
Static risk factors--Risk factors that are unlikely to
change over time such as number of prior offenses, diagnosis of psychopathy
or diagnosis of paraphilia.
(29)
Sub-average general intellectual functioning--Refers to
measured intelligence on standardized psychometric instruments of two or more
standard deviations below the age-group mean for the tests used (Health and
Safety Code, §591.003).
(30)
Successful completion of treatment--Includes but is not
limited to admitting and accepting responsibility for all crimes, demonstrating
the ability to control deviant sexual arousal, understanding of current and
instant offense cycle, increase in pro-social behaviors, increase in appropriate
support systems, improved social competency, compliance with supervision,
compliance with court conditions, increased understanding of victimization,
no deception indicated on exit polygraphs, completing and passing the sex
history polygraph, approved safety plans, approved relapse prevention plan,
successful completion of adjunct treatments (for example: anger management,
substance abuse, etc.), and the demonstrated integration and practical application
of the skills presented in treatment. Each of these issues regarding successful
completion of treatment shall be addressed unless precluded by §810.64
of this title (relating to Juveniles with Sexual Behavior Problems) or §810.66
of this title (relating to Developmentally Delayed Clients). The Licensed
Sex Offender Treatment Provider after collaborating with appropriate criminal/juvenile
justice personnel determines successful completion of treatment.
(31)
Visual reaction time--Means the measurement of sexual
interest. The measurement is based on the relative amount of time spent looking
at visual stimuli.
§810.3.Licensed Required.
A person may not provide a rehabilitation service or act as a sex offender
treatment provider unless the person is licensed by the council. A person
may not claim to be a sex offender treatment provider or use the title or
an abbreviation that implies the person is a sex offender treatment provider
unless the person is licensed under this chapter. The council shall maintain
a list of licensees who meets the council's criteria in the assessment and
treatment of adult sex offenders and/or juveniles with sexual behavior problems.
The council shall recognize the experience and training of treatment providers
in the following categories: Licensed Sex Offender Treatment Provider", Affiliate
Sex Offender Treatment Provider", "Provisional Sex Offender Treatment Provider",
or "Institutional Sex Offender Treatment Provider".
(1)
Licensed Sex Offender Treatment Provider (LSOTP). To be
eligible as a LSOTP, the applicant shall meet all of the following criteria:
(A)
licensed or certified to practice as a physician, psychiatrist,
psychologist, licensed professional counselor, licensed marriage and family
therapist, licensed clinical social worker, or advanced nurse practitioner
recognized as a psychiatric clinical nurse specialist or psychiatric mental
health nurse practitioner, and who provides mental health or medical services
for the treatment of sex offenders and/or juveniles with sexual behavior problems.
The license status shall be current and active;
(B)
experience and training required as listed in clauses (i)-(ii)
of this subparagraph:
(i)
possess a minimum of 1000 documented and verified hours
of clinical experience in the areas of assessment and treatment of sex offenders,
obtained within a consecutive seven-year period, and provide two reference
letters from licensed sex offender treatment providers who have actual knowledge
of the applicant's clinical work in sex offender assessment and treatment;
and
(ii)
possess a minimum of 40 hours of documented continuing
education training, as defined in §810.7 of this title (relating to Documentation
of Experience and Training), obtained within three years prior to the application
date, in the specific area of sex offender assessment and treatment. Of the
initial 40 hours training required, 30 hours shall be in sex offender specific
training. Ten hours shall be in sexual assault survivor/victim related training;
(C)
submit a complete and accurate description of their treatment
program on a form provided by the council;
(D)
persons making initial application or renewing their eligibility
for licensure shall adhere to Subchapter C. Standards of Practice and Subchapter
D. Code of Professional Ethics and shall comply with the following:
(i)
not have been convicted and/or adjudicated of any felony,
or of any misdemeanor involving a sex offense or sexually motivated offense,
nor have received deferred adjudication for a sex offense, and/or required
to register as a sex offender under Texas Code of Criminal Procedures, Chapter
62;
(ii)
not have had licensure revoked or canceled by any professional
licensing body:
(iii)
shall comply with the following: submit themselves to
a criminal history background check. An applicant shall be required to submit
a complete set of fingerprints with the application documents, or other information
necessary to conduct a criminal history background check to be submitted to
the Texas Department of Public Safety or to another law enforcement agency.
If fingerprints are requested, the fingerprints shall be taken by a peace
officer or a person authorized by the council and shall be placed on a form
prescribed by the Texas Department of Public Safety; and
(iv)
not have violated any rule adopted by the council;
(E)
submit an application fee as defined in §810.5 of
this title (relating to Fees);
(F)
submit a copy of his or her mental health or medical license,
as set out in subparagraph (A) of this paragraph, indicating the applicant's
license is current and in good standing;
(G)
sign the application form(s) and attest to the accuracy
of the application; and
(H)
complete the process within 90 days of the application's
receipt in the council office.
(2)
Affiliate Sex Offender Treatment Provider (ASOTP). To be
eligible as an ASOTP, the applicant shall meet all of the following criteria:
(A)
licensed or certified to practice as a physician, psychiatrist,
psychologist, psychological associate, provisionally licensed psychologist,
licensed professional counselor, licensed professional counselor intern, licensed
marriage and family therapist, licensed marriage and family associate, licensed
masters clinical social worker seeking approved supervision towards the licensed
clinical social worker, or advanced nurse practitioner recognized as a psychiatric
clinical nurse specialist or psychiatric mental health nurse practitioner,
and who provides mental health or medical services for the treatment of sex
offenders and/or juveniles with sexual behavior problems. The license status
shall be current and active;
(B)
experience and training required as listed in clauses (i)
- (iii) of this subparagraph:
(i)
possess a minimum of 250 documented and verified hours
of clinical experience in the areas of assessment and treatment of sex offenders
and or juveniles with sexual behavior problems, provide two reference letters
from licensed sex offender treatment providers who have actual knowledge of
the applicant's clinical work in sex offender assessment and treatment;
(ii)
supervised by an LSOTP in accordance with paragraph (4)(C)
of this subsection until LSOTP status is reached and submit a copy of the
LSOTP supervisor's license, indicating the applicant is current and in good
standing ; and
(iii)
possess a minimum of 40 hours of documented continuing
education training, as defined in §810.7 of this title, obtained within
three years prior to application date, in the specific area of sex offender
assessment and treatment. Of the initial 40 hours training required, 30 hours
shall be in sex offender specific training. Ten hours shall be in sexual assault
survivor/victim related training;
(C)
complete and submit an accurate description of their treatment
program on a form provided by the council;
(D)
shall comply with paragraph (1)(D)(i-iv) of this section;
and
(E)
adhere to Subchapter C. Standards of Practice and Subchapter
D. Code of Professional Ethics
(F)
submit an application fee as defined in §810.5 of
this title;
(G)
submit a copy of his or her medical or mental health license
or certification as set out in subparagraph (A) of this paragraph, indicating
the applicant is current and in good standing;
(H)
sign the application form(s) and attest to the accuracy
of the application; and
(I)
complete the process within ninety (90) days of the application's
receipt in the council office.
(3)
Provisional Sex Offender Treatment Provider (PSOTP). This
license status is only valid for one two-year term from the date of receipt
of the application to the Council. To be eligible as a PSOTP, the applicant
shall meet all of the following criteria:
(A)
licensed or certified to practice as a physician, psychologist,
psychological associate, provisionally licensed psychologist, licensed professional
counselor, licensed professional counselor intern, licensed marriage and family
therapist, licensed marriage and family associate, licensed clinical social
worker, licensed masters clinical social worker seeking approved supervision
towards the licensed clinical social worker, or advanced nurse practitioner
recognized as a psychiatric clinical nurse specialist or psychiatric mental
health nurse practitioner, and who provides mental health or medical services
for the treatment of sex offenders and/or juveniles with sexual behavior problems.
The license status shall be current and active;
(B)
experience and training required as listed in clauses (i)-(ii)
of this subparagraph:
(i)
possess a minimum of 250 documented and verified hours
of clinical experience in the areas of assessment and treatment of sex offenders,
obtained within a consecutive seven-year period, and provide two reference
letters from licensed sex offender treatment providers who have actual knowledge
of the applicant's clinical work in sex offender assessment and treatment;
and
(ii)
possess a minimum of 40 hours of documented continuing
education training, as defined in §810.7 of this title (relating to Documentation
of Experience and Training), obtained within 24 months of the date of application,
in the specific area of sex offender assessment and treatment. Of the initial
40 hours training required, 30 hours shall be in sex offender specific training.
Ten hours shall be in sexual assault survivor/victim related training;
(C)
submit a complete and accurate description of their treatment
program on a form provided by the council;
(D)
adhere to Subchapter C. Standards of Practice;
(E)
adhere to Subchapter D. Code of Professional Ethics;
(F)
shall comply with paragraph (1)(D)(i-iv) of this section;
(G)
submit an application fee defined in § 810.5 of this
title;
(H)
submit a copy of his or her medical or mental health license
or certification as set out in subparagraph (A) of this paragraph, indicating
the applicant is current and in good standing;
(I)
shall be supervised by an LSOTP as defined in paragraph
(4)(A)-(D) of this subsection;
(J)
submit a copy of the LSOTP supervisor's license, indicating
the applicant is current and in good standing;
(K)
sign the application form(s) and attest to the accuracy
of the application in the presence of a notary public; and
(L)
complete the process within 90 days of the application's
receipt in the council office.
(4)
Institutional Sex Offender Treatment Provider (ISOTP).
To be eligible as an ISOTP, the applicant shall meet at a minimum the following
criteria:
(A)
employed by the Texas Department of Criminal Justice-Institutional
Division or the Texas Youth Commission;
(B)
graduated from a regionally accredited undergraduate program
preferably in a behavioral social science program or enrolled in regionally
accredited graduate program in a behavioral science program;
(C)
possess 12 hours documented continuing education annually
approved by the Council in the specific area of sex offender assessment and
treatment;
(D)
adhere to Subchapter C. Council's Standards of Practice;
(E)
adhere to Subchapter D. Code of Professional Ethics to
the extent the adherence does not conflict with other laws;
(F)
shall be supervised by an LSOTP as defined in paragraph
(4)(A)-(D) of this section;
(G)
shall comply with paragraph (1)(D)(i-iv) of this section;
(H)
submit an application fee defined in §810.5 of this
title;
(I)
submit a copy of his or her undergraduate transcript and
attest to the accuracy of the application;
(J)
submit a copy of the LSOTP supervisor's license, indicating
the applicant is current and in good standing;
(K)
sign the application form(s) and attest to the accuracy
of the application in the presence of a notary public; and
(L)
complete the process within 90 days of the application's
receipt in the council office.
(M)
This license is only valid for employees within the Texas
Department of Criminal Justice-Institutional Division and Texas Youth Commission
providing institutional sex offender treatment to institutionalized adult
or juvenile sex offenders.
(5)
Licensing Out-of-State Applicants. The council may waive
any prerequisite to licensing for an application after receiving the applicant's
credentials and determining that the applicant holds a valid sex offender
treatment license from another state that has license requirements substantially
equivalent to those of this state.
(6)
Specialized Competencies. Licensed Sex Offender Treatment
Providers with specialized competencies in the assessment and treatment of
juveniles with sexual behavior problems, female sex offenders, and/or developmentally
delayed sex offenders may have those competencies documented by the Council,
provided the following criteria is met:
(A)
possess at least 250 documented and verified hours experience
with each population in the assessment and treatment of juveniles with sexual
behavior problems, female sex offenders, or developmentally delayed sex offenders;
these hours may be part of the original training and experience hours required
for the new application and original CE requirements up to seven years prior;
(B)
possess a minimum of 24 hours of documented continuing
education training with each population in the assessment and treatment of
juveniles with sexual behavior problems, female sex offenders, or developmentally
delayed sex offenders; these hours may be part of the original training and
experience hours required for the original certification;
(C)
possess a minimum of three hours of documented continuing
education training with each population in the assessment and treatment of
juveniles with sexual behavior problems, female sex offenders, or developmentally
delayed sex offenders for renewal of the specialized competencies; and
(D)
pay an annual or biennial fee for each specialty as defined
in §810.5 of this title.
(7)
Supervision. All ASOTP's, PSOTP's, and ISOTP's, providing
sex offender treatment shall be supervised. Supervision will include the following:
(A)
An ASOTP, PSOTP, and ISOTP providing sex offender treatment
is required to be under the supervision of a LSOTP supervisor approved by
the Council. The ASOTP, PSOTP, or ISOTP shall provide a copy of supervision
documentation to the council during the renewal period.
(B)
An LSOTP that has not been a supervisor approved by the
Council prior to the effective date of this rule shall meet the following
criteria:
(i)
possess five years experience as an LSOTP;
(ii)
sign and acknowledge the LSOTP supervisor's responsibilities
form;
(iii)
submit an annual credentialing fee as defined in §810.5
of this title; and
(iv)
obtain three hours documented continuing education in
the supervision of sex offender treatment providers each renewal period; and
(C)
An ASOTP, PSOTP, and ISOTP shall receive face-to-face supervision
at least one hour per week. Exceptions to supervision requirements shall be
approved on a case-by-case basis by the council.
(D)
The supervising LSOTP shall submit the required documentation
to the council at the time of their renewal; the documentation shall contain
the name(s) of the ASOTP(s), PSOTP(s), and ISOTP(s) and hours that each have
been supervised during the renewal cycle. The supervising LSOTP shall be required
to use the form(s) provided by the council.
(8)
License Certificates. Upon successful completion of the
application or renewal process, licensees shall receive an official certificate
and renewal cards from the council. This certificate shall be displayed at
all locations where sex offender treatment is provided. As set out in §810.5(7)
of this title, duplicate certificates may be obtained for a nominal fee.
(A)
The Council shall prepare and provide to each licensee
a certificate and initial and renewal cards, which contains the licensee's
name and certificate number.
(B)
A licensee shall not display a license certificate or renewal
cards which have been reproduced or is expired, suspended, or revoked.
(C)
A license certificate(s) or renewal card(s) issued by the
council remains the property of the council and shall be surrendered to the
council upon demand.
(D)
The address and telephone number of the council shall be
displayed at all locations where sex offender treatment is conducted and/or
the licensee shall provide a copy to the client on initial intake for the
purpose of directing complaints against the licensee to the council.
(9)
Application processing. The council shall comply with the
following procedures in processing applications for a license.
(A)
The following times shall apply from a completed application
receipt and acceptance date for filing or until the date a written notice
is issued stating the application is deficient and additional specific information
is required. A written notice of application approval may be sent instead
of the notice of acceptance of a complete application. The times are as follows:
(i)
letter of acceptance of application for licensure renewal--30
days; and
(ii)
letter of initial application deficiency--30 days.
(B)
The following times shall apply from the receipt of the
last item necessary to complete the application until the date of issuance
of written notice approving or denying the application. The times for denial
include notification of the proposed decision and of the opportunity, if required,
to show compliance with the law and of the opportunity for a formal hearing.
The times are as follows:
(i)
approval of application - 42 days; and
(ii)
letter of denial of licensure - 90 days.
(10)
Refund processing. The council shall comply with the following
procedures in processing refunds of fees paid to the council. In the event
an application is not processed in the times stated in paragraph (6)(A) of
this section:
(A)
The applicant has the right to request reimbursement of
all fees paid in that particular application process. Application for reimbursement
shall be made to the executive director. If the executive director does not
agree that the time has been violated or finds that good cause existed for
exceeding the time, the request will be denied.
(B)
Good cause for exceeding the time is considered to exist
if the number of applications for a license or renewal exceeds by 15% or more
the applications processed in the same calendar quarter of the preceding year;
another public or private entity relied upon by the council in the application
process caused the delay; or any other condition exists giving the council
good cause for exceeding the time.
(C)
If the executive director denies a request for reimbursement
under subparagraph (A) of this paragraph the applicant may appeal to the council
for a timely resolution of any dispute arising from a violation of the processing
times. The applicant shall give written notice to the council at the address
of the council that he or she requests full reimbursement of all fees paid
because his or her application was not processed within the applicable time.
The executive director shall submit a written report of the facts related
to the processing of the application and of any good cause for exceeding the
applicable time. The council shall provide written notice of the decision
to the applicant and the executive director. The council shall decide an appeal
in favor of the applicant, if the applicable time was exceeded and good cause
was not established. If the council decides the appeal in favor of the applicant,
full reimbursement of all fees paid in that particular application process
shall be made.
(D)
The times for contested cases related to the denial of
a license or renewal are not included with the times listed in paragraphs
(6)(A) and (6)(B) of this section. The time for conducting a contested case
hearing runs from the date the council receives a written hearing request
until the council's decision is final and appealable. A hearing may be completed
within three to nine months, but may be shorter or longer depending on the
particular circumstances of the hearing, the workload of the department and
the scheduling of council meetings.
§810.4.License Renewal.
In order to maintain eligibility for the licensure as a sex offender
treatment provider, the mental health or medical license of each renewal shall
be current and active. All renewal applicants shall comply with the following:
(1)
Number of continuing education hours. All annual renewal
applicants shall include by the end of every fiscal year, a minimum of 12
hours of documented continuing education. Three hours shall be in ethics and
nine hours shall be in sex offender assessment and treatment of which three
hours may be in sexual assault victim related training beginning September
2006. All biennial renewal applicants shall include by the end of the two-year
cycle, a minimum of 24 hours of documented continuing education. Six hours
shall be in ethics and 18 shall be in sex offender assessment and treatment
of which six hours may be in sexual assault victim-related training, beginning
September 2006.
(2)
Renewal forms. All renewal applicants shall submit renewal
forms provided by the council and renewal fees defined in §810.5 of this
title (relating to Fees).
(3)
License expiration. All licenses expire September 30, no
matter the date of initial license.
(4)
Renewal application postmark date. All renewal applications
shall be postmarked by September 30 or a late fee shall be assessed.
(5)
Continuing education activities. Licensees shall request
pre-approval of hours from the council before attending continuing educational
training. Continuing education activities related to the assessment and treatment
of sex offenders or sexual assault victim related training shall be instructor-directed
activities such as conferences, symposia, seminars, and workshops.
(6)
Continuing education hours will be credited for approved,
didactic presentations within the context of a professional conference or
seminar. On the job training, field trips, supervision, and courses taken
at an institution of higher learning shall not be credited with continuing
education hours.
(7)
Online, home, or self-directed study courses must be pre-approved
by the council.
(8)
Presentation of continuing education. All renewal applicants
may count a maximum of four hours per renewal period for the presentation
of continuing education training, lectures, or courses in the specific area
of sex offender treatment and assessment, sexual assault issues and/or victim
training.
(9)
Carrying over continuing education hours. No hours may
be carried over from one renewal period to another renewal period.
(10)
Continuing education extension.
(A)
A licensee who has failed to complete the requirements
for continuing education (CE) may be granted a 90-day extension by the executive
director.
(B)
The request for an extension of the CE period shall be
made in writing and shall be postmarked prior to September 30.
(C)
If an extension is requested, a late fee equal to one-half
of the renewal fee stated in §810.5(6) of this title will be assessed.
(D)
The next CE period shall begin the day after the CE requirement
have been satisfied.
(E)
Credit earned during the extension period cannot be applied
toward the next CE period.
(F)
A person who fails to complete the CE requirements during
the extension or who does not request an extension holds an expired license
and shall not use the title of LSOTP ASOTP, PSOTP, or ISOTP or practice sex
offender treatment.
(11)
Completion of continuing education within the extension
period. A license may be renewed upon completion of the required CE within
the given extension period, submission of the license form, and payment of
the applicable late renewal fee.
(12)
Failure to complete continuing education. A person who
fails to complete CE requirements for renewal and failed to request an extension
to the CE period may not renew the license. The person may obtain a new license
by complying with the current requirements and procedures for obtaining a
license.
§810.5.Fees.
The council has established the following license fees.
(1)
All new LSOTP, ASOTP, and PSOTPs applicants shall submit
a non-refundable annual application fee of $200 or $300 for a biennial application
fee. All ISOTP applicants shall submit a non-refundable application fee of
$20. All renewals shall include a nominal electronic renewal fee if applicable,
as established by the contracting agency. Renewal fees are subject to the
exception in the Occupations Code, §110.302(c). All applicants shall
comply with the following requirements:
(A)
return the completed, signed application form provided
by the council;
(B)
submit the license fee in the form of a check or money
order or if renewing online by credit card; and
(C)
submit, within 90 calendar days any documentation required.
(2)
Applicants that meet the specialized competency criteria
involving the treatment of juveniles, females, or developmentally delayed
populations shall submit a non-refundable annual specialty fee of $20 or a
$40 biennial specialty fee.
(3)
Licensees that meet the LSOTP supervisor criteria and who
seek to be designated as an approved supervisor shall submit a non-refundable
annual credentialing fee of $20 or a $40 biennial credentialing fee.
(4)
Additional fees will be charged for Federal Bureau of Investigations
and Texas Department of Public Safety criminal background checks. Fees shall
be determined by those agencies conducting the investigation.
(5)
Renewal forms and information shall be mailed to each licensee
at least 60 days prior to license expiration and mailed to the licensee's
last address of record with the council.
(6)
To renew, an LSOPT, ASOTP, or PSOTP shall submit a non-refundable
annual renewal fee of $100 or $200 for a biennial renewal. To renew, an ISOTP
shall submit a non-refundable renewal fee of $20. All license renewals shall
submit a nominal electronic renewal fee if applicable, as established by the
contracting agency. Renewal fees are subject to the exception in the Occupations
Code, §110.302(c). All applicants shall comply with the following requirements.
(A)
A person who is otherwise eligible to renew a license may
renew an unexpired license by paying the required license fee to the council
on or before the expiration date of the license.
(B)
Licensees renewing specialized competencies shall be charged
a non-refundable annual fee $20 or a $40 biennial fee per specialty listed.
(C)
If a license has been expired for 90 days or less, the
late renewal fee is equal to one and one-half times the required renewal fee.
(D)
If a license has been expired for longer than 90 days but
less than one year, the reinstatement fee is equal to two times the required
renewal fee.
(E)
If a license has been expired for one year or longer, the
individual may obtain a new license by submitting and complying with the requirements
and procedures for obtaining an original license.
(7)
Licensees who request a duplicate certificates shall be
charged a non-refundable fee of $10 per certificate.
(8)
Effective January 1, 2004, for all applications and renewal
applications, the council is authorized to collect subscription and convenience
fees, in amounts determined by the Texas Online Authority, to recover costs
associated with application and renewal application processing through the
Texas Online.
(9)
Effective January 1, 2004, for all applications and renewals,
the council is authorized to collect fees to fund the Office of Patient Protection,
Health Professions Council, as mandated by law.
§810.7.Documentation of Experience and Training.
In determining the acceptability of the treatment provider's experience
and/or training, the council shall require documentation of experience and/or
training regarding the quality, scope, and nature of the applicant's experience
in the assessment and treatment of adult sex offenders and or juveniles with
sexual behavior problems. This will include two reference letters from professionals
who practice sex offender treatment and can attest to the applicant's work
in sex offender treatment.
§810.8.Revocation, Denial or Non-Renewal of a License.
(a)
The council shall have the right to revoke a license, deny
an application for licensure, and/or refuse to renew a license upon proof
that the treatment provider has:
(1)
been convicted or adjudicated of any felony, or a misdemeanor
involving a sexual offense or sexually motivated offense; has ever received
deferred adjudication for a sexual offense, or has been required to register
as a sex offender in this state under Texas Code of Criminal Procedure, Chapter
62, or under any other law;
(2)
had his/her mental health or medical licensure placed on
inactive status, not renewed, revoked, or canceled, by any professional licensing
body;
(3)
been determined by any professional licensing body to have
engaged in unprofessional or unethical conduct, unless sufficient evidence
of rehabilitation has been established as determined by the council;
(4)
been determined by the council to have engaged in deceit
or fraud in connection with the delivery of services, supervision, or documentation
of licensure requirements;
(5)
violated the Act or any rule adopted by the council;
(6)
been prohibited from renewal by the Education Code, §57.491
(relating to Loan Default Ground for Non-renewal of Professional or Occupational
License); or
(7)
been prohibited from renewal by a court order or attorney
general's order issued pursuant to the Family Code, Chapter 232 (relating
to Suspension of License for Failure to Pay Child Support or Observe a Child
Custody Order).
(b)
The council may take action against a licensee or deny
an application or renewal in accordance with Occupations Code, Chapter 53,
if the licensee has felony or misdemeanor convictions.
(c)
The following felonies and misdemeanors directly relate
to a licensee because these criminal offenses indicate an inability or tendency
to be unable to perform as a LSOTP, ASOTP, or ISOTP:
(1)
an offense involving moral turpitude;
(2)
failure to report child abuse or neglect;
(3)
a misdemeanor involving deceptive business practices;
(4)
any felony or misdemeanor conviction involving a sexual
offense, or having received deferred adjudication for a sex offense;
(5)
the felony offense of theft;
(6)
any offense of assault; and
(7)
any other misdemeanor or felony which would indicate an
inability or tendency to be unable to perform as a LSOTP, ASOTP, PSOTP, or
ISOTP.
(d)
Documentation of rehabilitation may include the following:
(1)
court records related to the conviction;
(2)
documents related to the sentence imposed;
(3)
documents of completion of the sentence;
(4)
documents of satisfactory completion of probation or parole;
(5)
information about subsequent good conduct;
(6)
letters of support from employers or others.
§810.9.Complaints, Disciplinary Actions, Administrative Hearings and Judicial Review.
(a)
Reporting a complaint. A person shall report an alleged
violation of the Act or this chapter by a licensee or other person by notifying
the executive director. The initial notification shall be in writing, by fax,
or by personal visit to the council office.
(b)
Review of complaint.
(1)
The executive director shall review the complaint for violations
of the Act or any rule adopted by the council.
(2)
If it is determined that a violation of the Act or these
sections may have occurred, the executive director or executive director's
designee shall:
(A)
notify the complainant in writing of receipt of the complaint;
(B)
notify the licensee or other person in writing, by phone
or in person that a complaint has been filed; and
(C)
provide a copy of the complaint to the licensee's mental
health or medical licensing agency.
(c)
Responsibilities of licensee.
(1)
A licensee shall cooperate with the council by furnishing
all required documents or information and by responding to a request for information
or a subpoena issued by the council or its authorized representative.
(2)
A licensee shall comply with any order issued by the council
relating to the licensee. A licensee shall not interfere with a council investigation
by the willful misrepresentation of facts to the council or its authorized
representative or by the use of threats or harassment against any person.
(3)
The subject of the complaint shall be notified of the allegations
either in writing, by phone or in person by the executive director or designee
and will be required to provide a response to the allegations within 20 calendar
days of that notice.
(4)
Failure to respond to the allegation within the 20-day
period is evidence of licensees failure to cooperate with the investigation
and may subject the licensee to disciplinary action.
(d)
Actions by the council. The council is authorized to revoke,
suspend or deny to renew a license, place on probation a person whose license
has been suspended, or reprimand a licensee for a violation of the Act, or
a rule of the council.
(e)
Probated Suspension. If the suspension is probated, the
council is authorized by Occupations Code, §110.354, to impose certain
requirements and limitations on a person.
(f)
Disciplinary action on the mental health or medical license.
If a licensee's mental health or medical license is revoked or suspended,
the council may propose to revoke a licensed issued under this chapter.
(g)
Complaint information. The council shall maintain information
about each complaint filed with the council. The information shall include:
(1)
the date the complaint is received;
(2)
the name of the complainant;
(3)
the subject matter of the complaint;
(4)
a record of all witnesses contacted in relation to the
complaint;
(5)
a summary of the results of the review or investigation
of the complaint;
(6)
for a complaint for which the Council took no action, an
explanation of the reason the complaint was closed without action; and
(7)
complaints shall be retained for seven years from the date
of closure.
(h)
Formal hearing.
(1)
The formal hearing shall be conducted according to the
provisions of the Texas Government Code, Title 10, General Government, Chapter
2001, Administrative Procedure Act and held in Travis County, Texas, unless
otherwise determined by the Administrative Law Judge (ALJ) or upon agreement
of the parties.
(2)
Prior to institution of formal proceedings to revoke or
suspend a license, the executive director shall give written notice to the
licensee by certified mail, return receipt requested, of the facts or conduct
alleged to warrant revocation or suspension, and the person shall be given
the opportunity, as described in the notice, to show compliance with all requirements
of the Act and this chapter.
(3)
To initiate formal hearing procedures, the executive director
shall give the licensee written notice of the opportunity for hearing. The
notice shall state the basis for the proposed action. Within 20 calendar days
after receipt of the notice, the licensee shall give written notice to the
executive director that the licensee either waives the hearing and either
surrenders the license, or accepts the proposed sanction, or requests an informal
settlement conference and or a formal hearing. Receipt of the notice is deemed
to occur on the seventh calendar day after the notice is mailed to the licensee's
last reported address unless another date of receipt is reflected on a U.S.
Postal Service return receipt.
(A)
If the licensee fails to request a hearing, the licensee
is deemed to have waived the hearing, and a default order may be entered by
the council.
(B)
If the licensee requests an informal settlement conference
and/or a formal hearing within 20 calendar days after receiving the notice
of opportunity for hearing, the executive director shall initiate an informal
settlement conference and or formal hearing procedures in accordance with
this section.
(i)
Final action.
(1)
If the council suspends a license, the suspension remains
in effect for the period of suspension ordered, or until the executive director
or the council determines that the reasons for suspension no longer exist.
The licensee whose license has been suspended is responsible for securing
and providing to the executive director such evidence, as may be required
by the council, that the reasons for the suspension no longer exist. The executive
director or the council shall investigate prior to making a determination.
(2)
During the time of suspension, the former licensee shall
return all license certificates to the council.
(3)
If a suspension overlaps a renewal period, the former licensee
shall comply with the normal renewal procedures in these sections. The council
shall not renew the certificate until the executive director or the council
determines that the reasons for suspension have been removed.
(4)
A person whose application is denied or whose license certificate
is revoked is ineligible to apply for licensure under this Act for one year
from the date of the denial or revocation.
(5)
Upon revocation or non-renewal, the former licensee shall
return all certificate(s) and renewal card(s) issued to the licensee by the
council. The certificate(s) and renewal card(s) shall be returned to the council
by certified mail, hand-delivered, or by a delivery service, within 30 days
of request.
(j)
Appeal of a decision. A person may appeal a final decision
of the council by filing a petition for judicial review in the manner provided
by the Government Code, §2001.176.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506153
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.31 - 810.34
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.31.Access to Criminal History Records.
§810.32.Records.
§810.33.Destruction of Criminal History Records.
§810.34.Frequency of Criminal Background Check.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506154
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.31 - 810.34
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.31.Access to Criminal History Records.
The council is authorized to obtain information about the conviction
or deferred adjudication that relates to an applicant seeking licensure and
maintained by the Texas Department of Public Safety or the Federal Bureau
of Investigation. The council shall obtain a criminal history record from
any law enforcement agency. The criminal history record information received
under this section is for the exclusive use of the council and is privileged
and confidential. The criminal history record information shall not be released
or otherwise disclosed to any person or agency except on court order or with
the written consent of the applicant.
§810.32.Records.
All other records of the council that are not made confidential by
other law are open to inspection by the public during regular office hours.
The contents of the criminal background check on each licensee are not public
records and are confidential under lock and key security. Unless expressed
in writing by the chairperson of the council, the executive director and the
executive director's designee are the only staff authorized to have daily
access to the criminal history records. These records will be maintained in
separate files and not in the licensee files.
§810.33.Destruction of Criminal History Records.
The council shall destroy adjudication information relating to a person
after the council makes a decision on the eligibility of the applicant unless
the information was the basis for a proposed revocation, suspension or refusal
to renew a person's license. The council shall shred the information provided
by the Texas Department of Public Safety, the Federal Bureau of Investigation
or any other law enforcement agency, and the submitted applicant's fingerprint
card.
§810.34.Frequency of Criminal Background Check.
The council shall conduct a criminal background check on every new
applicant, randomly at the time of renewal, and as deemed necessary.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506155
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.61 - 810.67
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.61.Introduction to Standards of Practice.
§810.62.Council Assertions.
§810.63.Assessment/Evaluation Concerns.
§810.64.Juveniles with Sexual Behavior Problems.
§810.65.Adult Female Sex Offenders.
§810.66.Developmentally Delayed Clients.
§810.67.Pertinent Issues to Be Addressed in Treatment (Adults and Juveniles).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506156
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.61 - 810.67
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.61.Introduction to Standards of Practice.
(a)
The Council on Sex Offender Treatment (council) is dedicated
to the prevention of sexual assault through effective treatment and management
of sex offenders. The council identifies treatment providers who have the
appropriate training and experience in the treatment of adult sex offenders
and juveniles with sexual behavior problems, sponsors training seminars and
conferences, and disseminates information regarding adult sex offenders and
juveniles with sexual behavior problems and their treatment. The council maintains
a database of sex offender treatment providers, which contains the names of
persons who have satisfactorily completed council requirements for licensure.
(b)
Sexual deviance is a learned or acquired behavioral disorder
but may also be influenced by biological factors. Treatment is focused on
recognizing, modifying and managing deviant behavior and the attitudes that
promote it. Sexual deviance is not considered to be a disease that can be
cured. The focus of contemporary treatment is on techniques designed to assist
adult sex offenders and juveniles with sexual behavior problems in maintaining
control throughout their lifetime. Therefore, treatment should include simple,
practical techniques that can be used during and after formal treatment.
(c)
Assessment and treatment requires an approach unfamiliar
to most mental health professionals. Treatment providers often exercise substantial
control over the lives of their clients because of the concern for community
protection. For this and other reasons, standards of practice specific to
the treatment of these clients are necessary.
(d)
This document was developed by the council to delineate
appropriate assessment and treatment procedures and policies. These standards
were developed by reference from the Association for the Treatment of Sexual
Abusers (ATSA) publication entitled, Ethical Standards and Principles for
the Management of Sexual Abusers, Revised 2005. These standards delineate
professional licensing expectations for the treatment of adult sex offenders
and juveniles with sexual behavior problems.
§810.62.Council Assertions.
(a)
Licensees shall:
(1)
be committed to community protection and safety and licensees
shall be aware of any professional and legal obligations regarding a duty
to protect or warn;
(2)
not make statements that a client is no longer at any risk
to reoffend (ATSA Standard);
(3)
not provide evaluation or re-evaluation services for purpose
of determining if someone is guilty or innocent of a specific sexual crime.
Psychological profiles shall not be used to prove or disprove an individual's
propensity to act in a sexually deviant manner or someone's guilt or innocence.
Physiological methods or sexual arousal and preference assessments shall not
be used to prove an individual's guilt or innocence of a specific sex crime;
(4)
recognize and when providing expert testimony, acknowledge
that there is no known psychological or physiological test, profile, assessment
procedure, or combination of such tools that prove or disprove whether the
client has committed a specific sexual crime (ATSA Standard);
(5)
not discriminate against clients with regard to race, sex,
religion, gender preference, choice of lifestyle, or disability;
(6)
treat clients with dignity and respect, regardless of the
nature of their crimes or conduct;
(7)
be knowledgeable of legal statutes and scientific data
relevant to this area of specialized practice;
(8)
perform professional duties with the highest level of integrity,
maintaining confidentiality within the scope of statutory responsibilities;
(9)
ensure that the client fully understands the scope and
exceptions to confidentiality in the context of his or her particular situation;
(10)
refrain from using professional relationships to further
their personal, religious, political, or economic interest other than accepting
customary professional fees;
(11)
not engage in sexual relationships with clients;
(12)
fully inform clients in advance of fees for services;
(13)
refrain from knowingly providing treatment services to
a client who is in treatment with another professional without initial consultation
with the current licensee;
(14)
make appropriate referrals when the licensee is not qualified
or is otherwise unable to offer services to a client;
(15)
ensure that colleagues are qualified by training and experience
before making a referral;
(16)
when withdrawing services, minimize possible adverse effects
on the client and the community by continuing treatment until the client has
been referred into a new sex offender treatment program;
(17)
facilitate the provision of follow-up services for clients
who transition from one program or one jurisdiction to another which includes
a written summary of the assessment of risk, offending pattern, level of participation,
relevant problems and treatment needs, client strengths and deficits, support
group, and recommendations;
(18)
take into account the legal/civil rights of the clients,
including the right to refuse treatment;
(19)
make no claims regarding the efficacy of treatment that
exceed what can be reasonably expected and supported by empirical literature;
(20)
avoid drawing conclusions or rendering opinions that exceed
the present level of knowledge in the field or the expertise of the evaluator;
(21)
report to the appropriate licensing or regulatory authority
unethical, incompetent, and dishonorable treatment or assessment practices;
and
(22)
display or provide in writing the address and telephone
number of the council in all sites where sex offender treatment services are
provided for the purpose of directing complaints to the council.
(b)
Licensees shall utilize the following principles within
their practices:
(1)
community safety shall take precedence over any conflicting
consideration and ultimately, treatment providers shall act in the best interests
of society, the victim, and the client;
(2)
the containment model includes but is not limited to the
communication, cooperation, exchange of information (Article 42.12, Code of
Criminal Procedure, §9, subsection (j), (k), and (l)) and coordination
with community supervision officers, child protective services workers, law
enforcement, polygraph examiners, survivor's therapists, support persons and
is essential to community protection. This collaboration can increase the
effectiveness of community risk management strategies. A close working relationship
recognizes that sexual abuse is criminal behavior and that legal sanctions
apply. Treatment targets and supervision conditions are most effective when
they are consistent with one another and should focus on criminogenic needs
(ATSA Standard);
(3)
a voluntary client accepted for treatment shall be held
to the same standards of compliance as are mandated adult sex offenders and
juveniles with sexual behavior problems;
(4)
shall not to release an untreated client without providing
offense-specific assessment and treatment or specialized supervision;
(5)
comprehensive assessment of the client shall precede treatment
and includes issues addressed in §810.63 of this title (relating to Assessment/Evaluation
Standards);
(6)
adult sex offenders and juveniles with sexual behavior
problems require comprehensive, long term, offense-specific treatment. Cognitive-behavioral
approaches that utilize sex offender groups have been recognized as the standard
method of treatment. Treatment groups for non-developmentally delayed adults
and juveniles with sexual behavior problems shall be at least 90 minutes in
length with no more than 12 clients per group. If treatment groups are utilized
for developmentally delayed adults or juveniles, groups shall be at least
60 minutes in length with no more than eight clients per group. Self-help
groups, drug intervention, or time-limited treatment shall be used only as
adjuncts to more comprehensive treatment;
(7)
a written initial individualized treatment plan that identifies
the issues, intervention strategies, and goals of treatment shall be prepared
for each client within 30 days of the referral. Treatment plans should be
reassessed at least annually;
(8)
the treatment plan shall include behavioral contracts which
outline specific expectations of the client, his/her family, and the client's
support systems. These contracts shall include provisions to avert high-risk
situations. These contracts shall be reassessed annually;
(9)
progress, or lack thereof, shall be clearly documented
in treatment records. Specific achievements, failed assignments and rule violations
should be recorded. This information should be provided to the appropriate
supervising officer in the justice system;
(10)
progress in treatment shall be based on specific, measurable
objectives, observable changes, and demonstrated ability to apply changes
in relevant situations. For most adult sex offenders and juveniles with sexual
behavior problems, progress requires changes in the client's behavior, attitudes,
social and sexual functioning, cognitive processes, and sexual arousal/preference
patterns. These changes shall be demonstrated by an increased understanding
by the client of his/her own deviant behavior, understanding of current and
instant offense cycle, increase in pro-social behaviors, compliance with supervision,
increase in support systems, sensitization to the effects on a survivor, and
ability to seek and apply help;
(11)
communication among the treatment team is critical in
sex offender assessment and treatment; therefore, monthly progress reports
shall be issued to the supervision officer with the client receiving a copy.
Discharge reports shall be issued according to the referring agency policy;
(12)
when a client has made the changes required in treatment,
there should be a gradual and commensurate decline of intervention, support,
and supervision following an offense-specific treatment program;
(13)
there will be instances when the licensee shall refuse
to treat a client because essential ancillary resources do not exist to provide
the necessary levels of intervention or safeguards;
(14)
the licensee shall have an ethical obligation to refer
the client to a more comprehensive treatment program and/or to the judicial
system, when the licensee determines that a client is not making the changes
necessary to reduce the client's risk to the community;
(15)
licensee shall communicate to the supervising officer
in the justice system, failure on the part of clients to abide by their treatment
plans and/or contracts;
(16)
a licensee may decide to decline further involvement with
a client who refuses to address any critical aspect of treatment;
(17)
a licensee shall immediately notify the appropriate authority
when a client refuses or fails to comply with court-ordered treatment;
(18)
most adult sex offenders and juveniles with sexual behavior
problems enter the criminal justice system with varying degrees of denial
regarding their behavior. Overcoming denial is a gradual process achieved
in treatment. The existence of some degree of denial shall not preclude a
client from entering treatment, although the degree of denial shall be a factor
in identifying the most appropriate form and location of treatment;
(19)
treatment is unlikely to be effective unless the client
admits to the criminal sexual behavior. Community based treatment may not
be appropriate for clients who continue to demonstrate complete denial after
a trial period of treatment;
(20)
a licensee shall not rely exclusively on self report by
the client to assess progress or compliance with treatment requirements and/or
conditions of probation or parole. Licensees shall rely on multiple sources
of information which may include physiological methods such as polygraph or
phallometric, and other research-based sexual interest assessments including
but not limited to the Card Sort or visual reaction time methods;
(21)
physiological methods or measures of sexual interest assessment
shall not replace other forms of monitoring but may improve accuracy when
combined with active surveillance, collateral verifications, and self-report.
Penile plethysmograph (PPG) assessments in Texas shall be conducted under
the direction of a licensed practitioner defined in Chapter 1, Health and
Safety Code, §1.005. Licensees should refer the client for a polygraph
exam as soon as possible if the client is suspected of engaging in suppression
behaviors on the PPG. The strongest single predictor of sexual offense recidivism
for sex offenders is the measure of deviant sexual arousal as measured by
phallometric assessment (Hanson and Bussiere 1998);
(22)
polygraph examinations shall only be conducted by licensed
examiners that meet and adhere to the "Recommended Guidelines for the Clinical
Polygraph Examinations of Sex Offenders" as developed by the Joint Polygraph
Committee on Offender Testing (JPCOT). Polygraphs are effective in encouraging
disclosure of behaviors and adherence to rules. This procedure should never
be the only method used to determine factual information. It is the licensees
responsibility to prepare the client for any polygraph. Sexual history polygraphs
are effective in determining a client's risk to the community. Sexual history
polygraphs shall include all aspects of a client's sexual behaviors and a
victim's list. Instant sexual offense polygraphs shall not be conducted without
the official offense report. The licensee shall have the official offense
report in order to adequately prepare the client for the polygraph. Additionally,
the polygraph examiner shall have the official offense report in order to
conduct the polygraph examination;
(23)
informed, voluntary consent shall be obtained prior to
engaging clients in aversive conditioning;
(24)
a sex offender who has been convicted or adjudicated of
a sexual offense against a child or demonstrates deviant arousal and/or deviant
sexual interest in children shall be removed from the primary residence in
which the child or children reside until appropriate safeguards exist;
(25)
In balancing the needs of the client against the safety
of the children, the safety of the children takes precedence. The highest
priority shall be given to the rights, well-being, and safety of children
when making decisions about contact between the client and children. If the
client has a history of deviant sexual arousal and/or deviant sexual interest
to or reported fantasies of sexual contact with children, client shall be
restricted from having access to children. Supervised visits may be considered
if:
(A)
it is determined that sufficient safeguards exist;
(B)
the sex offender has demonstrated control over his or her
deviant arousal;
(C)
it does not impede the sex offender's progress in treatment;
and
(D)
court mandated conditions do not prohibit such contact;
(26)
treatment referrals should be offered to the non-offending
partners and children in cases where a parent or legal guardian has been removed;
(27)
there is evidence to support family participation in the
treatment of the adult sex offender and the juvenile with sexual behavior
problems. Where feasible and appropriate, spouses and other family members
shall be included. Sexual assault survivors or vulnerable children shall be
excluded until such time as joint therapy is determined to be appropriate;
(28)
licensees shall assist in the selection and education
of the potential chaperones for contacts between the client and children.
Potential chaperones shall only be adults who accept and understand the client's
present sexual offense, past sexual offending, and the potential for sexual
re-offense. Licensees shall ensure potential chaperones are educated regarding
the client's sexual history, treatment and supervision conditions, antecedents
to sexual offending, safety plans, relapse prevention, and reporting procedures.
Licensees shall review a detailed safety plan with the child's non-offending
parent or legal guardian that describes the appropriate levels of supervision
for contact, privacy, discipline practice, sexual education, appropriate dress,
hygiene, bedtime routines, conditions and limits that may apply, and how contact
will be terminated if it is no longer appropriate for the child (ATSA Standard);
(29)
the licensee shall make every effort to collaborate with
the survivor's therapist in making decisions regarding communication, visits
and reunification. Licensees shall be sensitive to the survivor's wishes and
needs regarding contact with the offender. Contact shall be arranged in a
manner that places child/victim safety first. When assessing child safety,
both psychological and physical well-being shall be considered. The licensee
shall ensure that custodial parents or legal guardians of the children have
been consulted prior to authorizing contact and that contact is in accordance
with Court directives; and
(30)
if reunification is deemed appropriate with the survivor's
therapist, the process shall be closely supervised. There shall be provisions
for monitoring behavior and reporting rule violations. A survivor's comfort
and safety shall be assessed on a continuing basis. The licensee shall recognize
that supervision during visits with children is critical for those whose crimes
are against children, or who have demonstrated the potential to abuse children.
The supervisor of the contact shall be knowledgeable concerning sexually offending
behaviors.
§810.63.Assessment/Evaluation Standards.
(a)
The assessment/evaluation focuses on both the risks and
needs of the client, as well as identifying factors from social and sexual
history, which may contribute to sexual deviance. Assessments provide the
basis for the development of comprehensive treatment plans and shall provide
recommendations regarding the intensity of intervention, specific treatment
protocol needed, amenability to treatment, as well as the identified risk
the adult sex offender and the juvenile with sexual behavior problems presents
to the community. There is no known set of personality characteristics that
can differentiate the sex offender from the non-sex offender. Psychological
profiles cannot be used to prove or disprove an individual's propensity to
act in a sexually deviant manner.
(b)
The following standards were developed by reference from
the Association for the Treatment of Sexual Abusers publication entitled,
Ethical Standards and Principles for the Management of Sexual Abusers, Revised
2005. Assessments shall precede treatment. In preparing assessments of sex
offenders, licensees shall:
(1)
be fair and impartial, providing objective and accurate
data;
(2)
respond only to referral questions that fall within the
licensee's expertise and present level of knowledge;
(3)
be respectful of the client's right to be informed of the
reasons for the assessment and the interpretation of data, as well as the
basis for recommendations and conclusions;
(4)
be aware of the client's legal status;
(5)
be mindful of the limitations of client's self-report and
make all possible efforts to verify the information provided by the client;
(6)
use evaluative procedures and techniques sufficient to
respond to the presenting issues, as well as to provide appropriate substantiation
for the resulting conclusions and recommendations;
(7)
acknowledge if an assessment consisted of only a review
of data, with no client contact, and clarify the impact that limited information
has on the reliability and validity of the resulting report;
(8)
provide informed consent, releases and/or exceptions to
confidentiality documents in written form and employ verbal explanations for
non-readers;
(9)
thoroughly review written documentation and collateral
interviews. This involves gathering and reviewing information from all available
and relevant sources, including:
(A)
criminal investigation records;
(B)
child protective services investigations;
(C)
previous assessments and treatment progress reports;
(D)
mental health records and assessments;
(E)
medical records;
(F)
TDCJ-Institutional Division reports;
(G)
probation/parole reports;
(H)
information regarding details of the offense as obtained
by law enforcement; and
(I)
official victim statements.
(10)
cautiously interpret assessments conducted without collateral
information;
(11)
list and acknowledge in a written report assessment procedure
summaries, conclusions, recommendations, and all collateral reports and interviews;
(12)
not use re-interviews of survivors for the purpose of
gathering information during the sex offender's assessment; and
(13)
keep the sex offender and survivor's interview and assessment
processes separate. The evaluator shall be extremely vigilant to avoid bias.
(c)
The assessment shall include:
(1)
mental status examination;
(2)
clinical interview;
(3)
personality assessment;
(4)
intellectual assessment;
(5)
sexual assessment; and
(6)
recommendations for case management, treatment planning,
and further assessments.
(d)
Efforts shall be made to acquire the following information
gathered in the assessment process:
(1)
intellectual and cognitive functioning;
(2)
mental status and psychiatric history;
(3)
medical history of head injuries, physical abnormalities,
enuresis, encopresis, current use of medication, allergies, accidents, operations,
and major medical illnesses;
(4)
self-destructive behaviors, self-mutilation, and suicide
attempts;
(5)
psychopathology and personality characteristics;
(6)
family history and marital/relationship history;
(7)
history of victimization; physical, emotional and/or sexual;
(8)
education and occupation history;
(9)
criminal history;
(10)
history of violence and aggression including use of weapons;
(11)
history of truancy, fire-setting, and abuse of animals;
(12)
interpersonal relationships, both past and current;
(13)
cognitive distortions;
(14)
social competence;
(15)
impulse control;
(16)
substance abuse;
(17)
official report regarding the instant offense;
(18)
denial, minimization and inability to accept responsibility;
(19)
sexual history including sexual development, adolescent
sexuality and experimentation, dating history, intimate sexual contacts, gender
identity issues, adult sexual practices, masturbatory practices, sexual dysfunction,
fantasy content, and sexual functioning; and
(20)
sexually deviant behavior, including description of offense
behaviors, number of victims, gender and age of victims, frequency and duration
of abusive sexual contact, victim selection, access, and grooming behaviors,
use of threats, coercion or bribes to maintain victim silence, degree of force
used before, during and/or after offense, and sexual arousal patterns.
(e)
Licensees shall subscribe and adhere to the following tenets
regarding client assessment.
(1)
The comprehensive assessment of the client's sexually deviant
behavior is specific to the ongoing assessment of the client.
(2)
It is important to be sensitive to the individual's cognitive
functioning, including reading and writing capabilities prior to arranging
the battery of testing instruments.
(3)
If a client is illiterate, arrangements for using a standardized
approved auditory (taped or read) version of the test instrument should be
made, to the extent such versions are available.
(4)
The clinical interview shall incorporate sufficient discussion
necessary to augment, clarify and explore the information obtained from the
review of collateral materials (and interviews), as well as the other components
of the assessment (testing results, etc.).
(5)
Licensees shall obtain the official offense report to compare
the degree of similarity or disparity between the client and the victim's
statements.
(6)
The client's explanations for false allegations shall be
documented.
(7)
Assessment of treatment needs shall identify strengths
and weaknesses in the individual's psycho-sexual functioning for the purpose
of directing treatment efforts to the appropriate areas.
(8)
Both community safety and the degree to which a client
is capable and willing to manage risk shall be considered when generating
recommendations.
(9)
A thorough assessment shall be completed prior to a client
being accepted into treatment program.
(A)
If a significant amount of time has lapsed between the
assessment and when the individual applies for acceptance into a treatment
program, an assessment update is required.
(B)
An assessment update shall gather current data upon which
the original treatment plan can either be confirmed or amended.
(10)
A sex offender treatment provider shall never recommend
an inadequate treatment program or level of risk management because existing
resources limit or preclude adequate or appropriate services.
§810.64.Juveniles with Sexual Behavior Problems.
(a)
Licensees shall subscribe and adhere to the following tenets
regarding juveniles with sexual behavior problems:
(1)
Before age 10, some children begin displaying sexually
inappropriate behavior with others. Children may duplicate sexual behavior
they have witnessed on the part of older siblings and/or adults. Therefore,
early identification and treatment are essential for those who have displayed
such behaviors.
(2)
The onset of sexual behavioral problems in juveniles can
be linked to numerous issues related to their experiences, exposure, and/or
developmental deficits. Juveniles are distinct from their adult counterparts.
(3)
Only a minority of juveniles manifest established paraphilic
sexual arousal and interest patterns. These arousal and interest patterns
are recurrent and intense, and related directly to the nature of the sexual
behavior problem. In general, sexual arousal patterns of juveniles appear
more changeable than those of adult sex offenders and relate less directly
to their patterns of offending behavior.
(4)
The treatment of juveniles with sexual behavior problems
has the following components that are essential to the successful treatment
of the juvenile. The program shall include a comprehensive assessment, progressive
levels of treatment and education, relapse prevention, transition into the
community, and aftercare. In order to effectively treat juveniles with sexual
behavior problems the treatment shall be offense specific.
(5)
Working with juveniles shall be based on a multidisciplinary
approach and containment model that includes but is not limited to the juvenile,
family, treatment provider, supervision officer, school officials, law enforcement,
and the victim's therapist (if possible). On-going communication (written
and verbal) is essential in the successful treatment of the juvenile.
(6)
Treatment providers shall focus on the juvenile's existing
strengths and positive support system to promote pro-social behaviors and
facilitate change.
(7)
Juveniles with sexual behavior problems come from all socio-economic,
ethno-cultural, age, and religious backgrounds. They vary in their level of
intellectual functioning, motivation, victim typology, and sexual behaviors.
(8)
Treatment referrals should be offered to the non-offending
guardians/parents and siblings where a juvenile has been removed.
(9)
Juveniles who display sexually abusive behavior are effectively
addressed by targeting risk factors that predispose a child to sexual behavior
problems or that precipitate or perpetuate the problems.
(10)
Special interventions are necessary for juveniles with
intellectual and cognitive impairments.
(11)
Juveniles who display sexually abusive behavior are heterogeneous
groups who have developmental needs, but also have special needs and present
special risks related to their abusive behaviors.
(12)
Risk management strategies are effective in addressing
the needs underlying the juvenile's behavior such as, but not limited to,
child safety zones and/or plans, arousal modification, polygraphs, and sex
education.
(13)
The primary goal is helping juveniles gain control over
their sexual behavior problems and increasing their pro-social interactions,
preventing further victimization, halting development of additional psychosexual
problems, and helping the juvenile develop age-appropriate relationships.
They are children and adolescents first.
(14)
Programs that only focus on sexual behavior problems are
of limited value and researchers have recommended a holistic approach as in
this section.
(b)
Juvenile Assessment.
(1)
The assessment shall focus on strengths, risks, and deficits
of the juvenile with sexual behavior problems, as well as identifying factors
from social and sexual history which may contribute to sexual deviance. Assessments
provide the basis for the development of comprehensive treatment plans and
shall provide recommendations regarding the intensity of intervention specific
treatment protocol needed, amenability to treatment, as well as the identified
risk the juvenile with sexual behavioral problems presents to the community.
There is no known set of personality characteristics that can differentiate
the juvenile with sexual behavioral problems from the juvenile without sexual
behavioral problems. Psychological profiles cannot be used to prove or disprove
an individual's propensity to act in a sexually deviant manner. A comprehensive
evaluation and assessment of juveniles with sexual behavior problems is an
ongoing process.
(2)
The treatment of juveniles with sexual behavior problems
is effective in reducing recidivism. In order for treatment to be effective,
it shall incorporate both cognitive/ behavioral and relapse prevention approaches.
A multifaceted program shall include the following:
(A)
group and individual cognitive behavioral treatment;
(B)
offense cycle/relapse prevention;
(C)
family therapy;
(D)
victim empathy;
(E)
adjunct therapy including substance abuse treatment, anger
and stress management, conflict resolution, sex education, social competence/life
skills, clarifying, values, trauma resolution, problem solving, impulse control
and interpersonal communication;
(F)
psychopharmacological approaches (if appropriate);
(G)
polygraphs (Family Code, Chapter 54, §54.0405); and
(H)
visual reaction time or plethysmographs (if appropriate)
(3)
When using phallometric assessment or aversive treatment
techniques with persons 17 years of age or younger, consent for such assessment
and treatment shall be obtained from the juvenile with sexual behavior problems
and written consent for such assessment and treatment shall be obtained from
the juvenile's parents or legal guardians, and the procedures should be reviewed
by a multi-disciplinary professional or institutional advisory group. This
is intended to ensure that individuals not intimately involved in the treatment
of the juvenile have input regarding the appropriateness of such methods consistent
with the developmental level of the child. Stimuli shall be specific for use
with adolescents.
(4)
The use of the plethysmograph with juveniles is an issue
of some controversy. Research indicates that the age and level of denial of
the juvenile may compromise the validity of the assessment. Younger juveniles
appear to produce less reliable patterns of responding, and those who deny
their offenses tend to produce suppressed, and therefore non-interpretable
patterns of arousal (Becker et al, Kaeming et al, 1995).
(5)
Individuals that are pre-pubescent or under age thirteen
(13) shall not undergo phallometric assessment or aversive treatment except
in rare cases, which shall be approved by a multi-disciplinary advisory group.
(6)
Written consent shall be obtained for assessment and information
exchange from the appropriate parent or legal guardian. Assent from the individual
being evaluated shall be obtained whenever possible.
(c)
Initial Juvenile Assessment.
(1)
The assessment shall be age appropriate.
(2)
The assessment shall be sensitive to any cultural, language,
ethnic, developmental, sexual orientation, gender, medical and/or educational
issues that may arise during the assessment.
(3)
The assessment shall be developmentally appropriate which
includes social, cognitive, and educational levels.
(4)
A reasonable effort should be made to acquire the following
information gathered in the assessment process:
(A)
intellectual and cognitive functioning;
(B)
mental status psychiatric history/hospitalization;
(C)
medical history and an exam by a medical professional to
determine sexual development;
(D)
self-destructive behaviors including self-mutilation and
suicide attempts;
(E)
family origin and history/ relationship history including
exposure to domestic violence;
(F)
criminal history;
(G)
sex offender registration status;
(H)
history of violence and aggression;
(I)
history of school truancy, fire-setting, abuse of animals,
and running away;
(J)
cognitive distortions;
(K)
impulse control;
(L)
trauma assessment (emotional, physical, sexual abuse);
(M)
social and educational competence; sexual education/knowledge
information;
(N)
substance abuse;
(O)
official reports regarding instant offense (Family Code,
Chapter 54, §54.0405);
(P)
sexual history including sexual development, sexuality
and experimentation, gender identity issues, masturbatory practices, and fantasy
content; and
(Q)
sexually deviant behavior-including a description of the
offense behaviors, number of victims, gender and age of victims, frequency
and duration of sexual contact, victim selection, access, grooming behaviors,
use of threats, coercion or bribes to maintain victim silence, degree of force
used before, during and/or after the sexual behavior, and deviant arousal
patterns.
(d)
Collateral Information. The treatment provider shall thoroughly
review written documentation and collateral interviews. This involves gathering
and reviewing information from all available and relevant sources concerning
the juvenile and the victim, including:
(1)
parent(s) or guardian(s);
(2)
siblings;
(3)
statements from the victims;
(4)
school records;
(5)
child protective services;
(6)
previous treatment providers;
(7)
mental health professionals;
(8)
law enforcement; and
(9)
the following information should be provided from the supervision
officer:
(A)
exchange of formal documentation;
(B)
order or judgment;
(C)
victim information;
(D)
juvenile risk assessment;
(E)
data collection form; and
(F)
official offense report.
(e)
Use of Assessment Tools. Assessment tools have been described
as a "critical dimension" to a comprehensive assessment of juveniles. The
primary areas required in the assessment of the juvenile are as follows:
(1)
intellectual and neurological functioning;
(2)
personality (for example: Million Adolescent Criminal Inventory
(MACI), Minnesota Multiphasic Personality Inventory for Adolescents - MMPIA);
(3)
behavioral;
(4)
sexual deviance; and
(5)
co-morbidity.
(f)
Risk Assessments. Current existing risk assessments should
be used but the ultimate determination shall be a combination of the clinical
interview and the assessment instruments. A strong predictor of risk is the
sexual history polygraph. The sex history provides information about the juvenile's
sexual behaviors and victims.
(1)
Currently, there is no juvenile risk assessment that has
been validated so decisions cannot be based solely on their outcomes.
(2)
Risk assessment data is not useful for longer than six
(6) months due to the fluidity of juveniles.
(3)
Family support and structure are important in reducing
risk for re-offense.
(4)
Research on recidivism indicates juvenile's recidivate
at relatively low rates in relation to new sexual offenses.
(5)
Risk Assessments specific to juveniles are available in
the public domain. Some examples are as follows:
(A)
Estimate of Risk of Adolescent Sexual Offense Recidivism
- ERASOR;
(B)
Juvenile Sex Offender Assessment Protocol - JSOAP or JSOAP
II;
(C)
Child and Adolescent Needs and Strengths Sexual Development;
(D)
Texas Juvenile Risk Assessment Instrument and Data Collection
Form;
(E)
Juvenile Risk Assessment Tool - J-RAT; and
(F)
Protective Risk Factor Scale.
(g)
Substance Abuse. It is important to use a valid and reliable
assessment tool to screen for substance abuse problems in determining if the
substance use is a risk factor in the sexual behaviors.
(h)
Polygraphs. Polygraphs are used to facilitate more complete
disclosures of sexual behaviors and to monitor compliance with treatment and
supervision. The polygraph is an essential tool in offender accountability
and honesty.
(1)
Polygraphs shall be administered on a voluntary basis and
with informed consent unless court ordered (Family Code, Chapter 54, §54.0405).
(2)
Polygraph examinations shall follow JPCOT guidelines.
(3)
Polygraphs should never be the only method used to determine
factual information.
(4)
Most practitioners using the polygraph indicate that the
age threshold for use with juveniles is approximately 14 years old.
(5)
The following polygraphs should be conducted: Instant Sexual
Offense, Sexual History, Maintenance, and Monitoring.
(i)
Assessment Recommendations. The following issues shall
be addressed:
(1)
the juvenile's strengths, risks, and deficits; and
(2)
co-morbidity, placement, education/vocational needs, parent
and family issues, substance abuse issues, and supervision.
(j)
If the juvenile has a history of sexual arousal to reported
fantasies of sexual contact with children of a particular age/gender group,
the juvenile should be restricted from having unsupervised access to children
in that identified target population. Supervised visits may be considered
if:
(1)
court mandated conditions do not prohibit such contact;
(2)
it is determined that the sufficient safeguards exists
including but not limited to safety plans approved by the treatment provider
and supervision officer;
(3)
the juvenile has demonstrated control over their deviant
arousal; and
(4)
it does not impede the juvenile's progress in treatment.
(k)
Juvenile Laws. Treatment providers shall be familiar with
the following laws concerning juveniles with sexual behavior problems.
(1)
Occupations Code, Chapter 503.
(2)
Health Insurance Portability and Accountability Act.
(3)
Texas Family Code, Title 3, Chapter 51 et seq.
(4)
Texas Family Code, §153.076-Duty to Provide Information.
(5)
Code of Criminal Procedure, Chapter 62, Sex Offender Registration.
§810.65.Adult Female Sex Offenders.
Licensees shall subscribe and adhere to the following tenets regarding
female sex offenders:
(1)
Although the majority of sex offenders are male, research
suggests that females commit 12% of all sexual offenses against victims under
the age of 6 and 6% of the sexual offenses against children between 6 and
12 years old (Snyder, 2000).
(2)
Female sex offenders are as likely to abuse males as females.
(3)
Professionals shall recognize that females are capable
of using their social position and power to exploit and harm those with whom
they interact.
(4)
Some females use instrumental and gratuitous violence in
the commission of their crimes.
(5)
Females are most likely to sexually abuse persons with
whom they are acquainted. The majority of their victims are likely to be relatives.
(6)
The treatment of female and male sex offenders are similar
in that with both groups sex offender treatment providers shall balance treatment
issues with offender accountability to the victims and the community at large.
(7)
Females may experience deviant sexual arousal that can
lead to sexual abuse.
(8)
Like their male counterparts, females may experience sexual
pleasure from their offending behavior.
(9)
Females shall be assessed for deviant sexual interest and
arousal using appropriate and validated physiological and psychological measures.
(10)
Some female sex offenders co-offend with males.
(11)
Removal of a client from a home in which children are
at risk is often necessary to ensure the safety of those children.
(12)
Treatment programs for female sex offenders shall be holistic
in approach as referenced in §810.64 of this title and not only focused
on sexual behavior.
(13)
In assessing and evaluating female sex offenders, licensee
shall refer to the appropriate rules in §810.63 or §810.64(b) and
(c) of this title.
§810.66.Developmentally Delayed Clients.
(a)
The management and treatment of clients with developmental
disabilities is a developing specialized field. Currently many decisions regarding
standards of practice must be made in the absence of clear research outcomes.
(b)
These standards are based on the best practices known and
designed to minimize any threat the client may pose to the community.
(c)
There are many terms used to refer to the population of
individuals with limited intellectual functioning, including developmentally
delayed, developmentally handicapped, mentally ill, and mentally retarded.
(1)
Licensees shall subscribe and adhere to the following tenets
for developmentally delayed clients:
(A)
A containment approach requires the integration of a collection
of attitudes, expectations, laws, policies, procedures, and practices that
have clearly been designed to work together.
(B)
The presence of developmental disabilities does not minimize
the risk for any client, nor does it mitigate the trauma experienced by sexual
assault victims.
(C)
Managing the risk, behavioral interventions, and the imposition
of appropriate external controls shall be a priority for clients with disabilities.
(D)
There is nothing inherent in the presence of developmental
disabilities that cause sexually deviant behavior and nothing inherent in
developmental disabilities which inoculates from sexually deviant behavior.
(E)
Clients with disabilities shall be offered treatment that
is appropriate to their developmental capacity, their level of comprehension,
and the ability to integrate treatment components.
(F)
The prevalence of sexually deviant behavior among this
population is not known and might be due in part to the mental health service
professional's reluctance to label the behavior.
(G)
Studies suggest that developmentally delayed sex offenders
have an overall offense pattern that is similar to non-delayed adult sex offenders
or juveniles with sexual behavior problems.
(H)
Developmentally delayed sex offenders are distinguished
from non-delayed clients in that they display significantly more social skill
deficits, are sexually naïve, lack interpersonal skill, have a higher
incidence of family psychopathology, psychosocial deprivation, school maladjustment,
and more psychiatric illness, and delinquent or criminal behavior (Health
Canada, 2000).
(I)
Progress in treatment and ability to integrate the components
of treatment is generally slower for these clients. The need for simple, direct
language, the presence of concrete thinking, difficulty with concepts and
abstractions, and the need for frequent repetition are common requirements.
(J)
Clients with developmental disabilities shall be offered
treatment that is appropriate to their developmental capacity, their level
of comprehension, and the ability to integrate treatment components. Group
treatment shall be based on the level of functioning of the client. The single
best indicator of the ability to function in this context is the client's
actual functioning in a group setting.
(K)
In cases where the client's level of functioning is determined
to be too low for group treatment, the use of more individually oriented behavioral
interventions coupled with external containment strategies might be used exclusively.
(L)
If a client is unable to conceptualize the sequential cycle
portion of the traditional relapse prevention plan, a reasonable alternative
would be to focus on identifying risk situation or behaviors and appropriate
interventions.
(M)
Special needs groups shall be limited to 8 clients and
shall be at least 60 minutes in duration. It may be necessary to conduct group
twice per week.
(N)
Clients who remain in significant denial and/or are extremely
resistant to treatment after the finite period of extension determined by
the treatment and supervision team should be terminated if they pose a continued
risk to the community.
(O)
Removal of a client from a home in which children are at
risk is the recommended action. In balancing the needs of the client against
the safety of the children, the safety of the children takes precedence.
(P)
When treating developmentally delayed clients who have
committed a sexual offense, it is essential to recognize their vulnerabilities
and their risk of victimization by non-delayed clients.
(2)
Assessments of the Developmentally Delayed Offender.
(A)
Age equivalent assessment scoring does not correlate to
sexual behavior in adults and licensees should guard against justifying sexually
deviant behavior by indicating that the age equivalence score for any client
has any relation to his or her victim typology.
(B)
Developmentally delayed clients shall be given the opportunity
to exercise their right to make a voluntary and informed decision to participate
in treatment. A client shall be fully informed of the nature of the treatment,
the benefits and the available options. In cases of intellectually handicapped
sex offenders who are unable to give written consent, an interdisciplinary
review and parent's or legal guardian's written consent shall be obtained
for permission to proceed with treatment.
(C)
There is limited data available regarding the use of the
plethysmograph with developmentally delayed offenders. There is evidence that
these clients tend to respond with generally higher levels of sexual arousal
during testing. If a plethysmograph is conducted with this population, caution
shall be used regarding interpretation and validity. Licensees shall utilize
a stimulus package appropriate to the client's developmental level.
(D)
Visual reaction time measures shall only be used with clients
who have an IQ score sufficiently high to achieve valid and reliable test
results. The Relapse Prediction Scores shall not be used as a part of the
assessment since it uses a questionnaire not adapted for this population.
(E)
Prior to conducting polygraph examinations on these clients
the polygraph examiner shall collaborate with the treatment provider and the
supervision officer to assess the client's ability to understand the concepts
of truthfulness and deception or lying and the capacity to anticipate negative
consequences based on deceptive responses. Results of polygraphs are more
likely to reflect an error with this population and alternative steps should
be taken to when results are inconclusive or deceptive and could result in
termination or revocation.
(F)
Polygraph examiners should design questions; conduct the
pre-test, the examination, and the post-test at a level appropriate to the
client's development.
(G)
The assessment shall determine the client's level of functioning,
appropriate treatment interventions, and facilitate the development of an
individualized treatment plan. The assessment shall include:
(i)
current level of functioning:
(I)
cognitive and behavior functioning;
(II)
level of planning the crime of conviction and other sexual
history (Structured Interview, Collateral Information);
(III)
expressive and receptive language skills (for example:
Peabody Picture and Vocabulary Test Revised (PPVT-R);
(IV)
social judgment, adaptive skills, and moral reasoning;
(V)
sexual knowledge;
(VI)
adaptive behavior (for example: Vineland Adaptive Behavioral
Scale, Adaptive Behavioral Scale of the American Association for Mental Retardation);
(VII)
criminal behavior
(VIII)
attention deficit;
(IX)
ability to function in groups;
(X)
support systems (Current MHMR system involvement, family
involvement, social involvement);
(XI)
environmental or contextual factors that contribute to
or maintain the behavior; and
(XII)
trauma assessment (emotional, physical, sexual abuse).
(ii)
official offense report/offense description:
(I)
age and relation to the victim;
(II)
details of the offense;
(III)
past criminal behavior and/or sexually inappropriate
behavior;
(IV)
deviant sexual interest; and
(V)
the extent of denial and cognitive distortions.
(iii)
pertinent history:
(I)
developmental history;
(II)
family, marital, relationship, and personal background;
(III)
medical, psychological and/or psychiatric/ hospitalization
history;
(IV)
educational history;
(V)
occupational history;
(VI)
substance use or abuse;
(VII)
self-destructive behaviors, self-mutilation, and suicide
attempts; and
(VIII)
history of truancy, fire-setting, abuse of animals,
and running away.
(3)
Treatment of the Developmentally Delayed.
(A)
Treatment components for developmentally delayed clients
are based on those used in treating non-developmentally delayed clients but
are tailored to address the learning limitations and special issues compounding
these clients.
(B)
Treatment programs shall address the obstacles such as
lack of opportunity to learn appropriate sexual behavior at an early age,
high probability of past sexual victimization, social isolation, poor community
acceptance of healthy sexual relationships, and difficulty in learning complex
social rules and norms relating to dating, and intimacy.
(C)
Cognitive behavioral therapeutic approaches are effective
when paired with the cognitive strengths and weaknesses of the client.
(D)
The development of appropriate social and sexual skills
is critical in reducing the client's risk to re-offend. Treatment should include
concrete skill building related to social interaction and sexual behavior
and sex education.
(E)
Structured activities to practice social skills may be
required to facilitate the client's healthy development with peers.
§810.67.Pertinent Issues to Be Addressed in Treatment (Adults and Juveniles).
Licensees shall subscribe and adhere to the following tenets:
(1)
The field of sex offender assessment and treatment has
evolved based on extensive research and clinical experience.
(2)
Interventions are designed to assist the individual to
effectively manage thoughts, feelings, attitudes, and behaviors associated
with their risk to reoffend. Structured, cognitive behavioral skills-oriented
treatment programs that target specific criminogenic needs appear to be the
most effective approaches in reducing rates of reoffending (ATSA Standard).
The following treatment components shall be addressed and are accepted as
those most important to the effective treatment of sexual deviancy.
(A)
Arousal Control. Control of deviant arousal, fantasies,
and urges is a priority with most adult sex offenders and juveniles with sexual
behavior problems. Fantasy and sexual arousal to fantasy are precursors to
deviant sexual behavior. It should be assumed that most adult sex offenders
and juveniles with sexual behavior problems have gained sexual pleasure from
their specific form of deviance. Arousal control methods do not eliminate
but only help control arousal. It is therefore necessary that clients learn
to apply these techniques in everyday situations. Arousal control may require
periodic "follow up" sessions for the remainder of the client's life. Effective
arousal control shall also include methods to control spontaneous deviant
fantasies and to minimize contact with stimulating objects or persons. Arousal
control should proceed from the most effective methods for reducing arousal
to less effective methods. To document changes in arousal control, physiological
measurement is essential. Multiple measurements over time are required to
determine change reliability.
(B)
Cognitive Behavioral Treatment. Cognitive distortions are
thoughts and attitudes that allow offenders to justify, rationalize, and minimize
the impact of their deviant behavior. Cognitive distortions allow the adult
sex offender and juveniles with sexual behavior problems to overcome prohibitions
and progress from fantasy to behavior. These distorted thoughts provide the
adult sex offender and juveniles with sexual behavior problems with an excuse
to engage in deviant sexual behavior, and serve to reduce guilt and responsibility.
Cognitive behavioral treatment strives to identify, assess, and modify cognitions
that promote sexual deviance and is considered a vital component of treatment.
(C)
Offense Cycle/Relapse Prevention. Current knowledge of
deviant sexual behavior suggests that there is a cycle of behaviors, emotions,
and cognitions that is identifiable and which precede deviant sexual behavior
in a predictable manner. The ability to accurately identify these maladaptive
behaviors is a primary goal for every adult sex offender and juvenile with
sexual behavior problems in treatment. Autobiographies, sexual history polygraphs,
offense reports, interviews and cognitive-behavioral chains shall be used
to identify antecedents to offending. The ability to intervene can be enhanced
by training primary partners and other support persons to recognize maladaptive
behaviors and to encourage application of proper coping behaviors. In addition,
treatment shall include a formal multi-level relapse prevention plan.
(D)
Victim Empathy. Although there is no clear evidence to
suggest that all sex offenders can gain true empathy for victims of abuse,
a universal goal of treatment is to learn to understand and value others.
Highlighting the consequences of victimization helps sensitize the offender
to the harm he or she has done. Empathy is comprised of cognitive and emotional
aspects and both components may need to be addressed (ATSA Standard). The
use of analogous experiences has been shown to be effective especially with
juveniles. Secondary victims are relatives or other persons closely involved
with the primary victim and client, who are severely impacted emotionally
or physically by the trauma suffered by the victim.
(E)
Biomedical Approaches. Intervention with psychopharmacological
agents is useful in select cases. Antiandrogens such as medrozyprogesterone
acetate, gonadotropin releasing agonist and/or antagonist, or cyproterone
acetate act by reducing testosterone levels and may be helpful in controlling
arousal and libido when these factors are undermining progress in treatment
or increasing the risk of re-offending before significant progress can be
made in the cognitive aspects of treatment. Antidepressants and medications
targeting obsessive-compulsive symptoms are also useful in some individuals
where those symptoms play a role in the overall psychodynamic picture. Likely
candidates for biomedical intervention are those clients who are predatory,
violent, have had prior treatment failures, and report an inability to control
deviant sexual arousal. Use of these agents shall never be the only method
of treatment. Physical or chemical castration shall be utilized only as an
adjunct to treatment and not in lieu of treatment.
(F)
Increasing Social Competence. Many adult sex offenders
and juveniles with sexual behavior problems are poor problem-solvers, lack
assertiveness, lack the ability to develop and sustain reciprocal friendships,
and do not adequately manage anger or stress. They may lack the ability to
develop and sustain reciprocal friendships. One goal of treatment is to improve
the clients' ability to deal effectively with social situations and develop
meaningful relationships with others.
(G)
Improving Primary Relationships. Failure to develop and
maintain a reciprocal, living relationship with an appropriate partner or
healthy functional family may lead one to seek out alternative sexual outlets.
With adults identifying specific sexual dysfunctions, sex therapy, and training
in dating skills may be necessary to develop a functional lifestyle. Failure
to involve the current partners or family members in treatment may lead to
the same stresses that precipitated the sexual deviancy. With juveniles identifying
sex education deficits and training in appropriate dating and relationship
skills are essential to the development of a functional lifestyle.
(H)
Couples/Family Therapy. To facilitate transition of the
client's partner and or family into therapy a variety of treatment modalities
are recommended. Individual, couple, family, and sibling therapy, non-offending
spouses groups, and/or parents or legal guardians of victims' groups prepare
the partner and family for the issues and methods involved in sex offender
treatment. If an adult sex offender or juvenile is to eventually live in a
home where survivors or children reside, a predetermined integration sequence
shall be followed which addresses role and boundary issues. This shall include
close supervision and a variety of safeguards for the protection of children.
(I)
Support Systems. Involvement of close friends and family
in therapy provides the offender with a milieu in which support is available.
Part of the transition to follow-up is a reduction in group and in individual
treatment. To compensate for this loss of support and surveillance, the support
system should assist the adult sex offender and juvenile in avoiding and coping
with antecedents to sexual deviance. The support system shall include individuals
from the adult sex offender and juvenile's daily life (for example: family,
friends, co-workers, church members, and extended family).
(J)
Adjunct Treatments: Individual cognitive behavioral therapy,
substance abuse, anger management, stress management, social skills, or self-help
groups shall only be used as adjuncts to a comprehensive treatment program
in reducing the client's risk to re-offend.
(K)
Co-morbid Diagnosis. In some adult sex offenders and juveniles
with sexual behavior problems there are sufficient signs and symptoms to merit
an additional diagnosis by DSM IV-TR criteria. These diagnoses can be anywhere
in the entire spectrum of psychiatric disorder. The most common are alcohol
abuse, substance abuse and affective disorders. Treating an alcohol or substance
problem should not be assumed to make sex offender treatment unnecessary.
Occasionally, the delusions and hallucinations of schizophrenia will be associated
with the individual committing sexual offenses. The co-morbid diagnosis shall
be treated with the appropriate therapies concomitantly with the treatment
for sex offending behavior except in the case of schizophrenia where the anti-psychotic
therapy would take precedence.
(L)
After-Care Treatment. A therapeutic regimen that includes
after-care treatment significantly increases the likelihood that gains made
during treatment will be maintained. In order for new habits and skills to
be reinforced and to monitor compliance with treatment contracts, after-care
treatment shall involve periodic "follow up" sessions to reinforce and assess
maintenance of positive gains made during treatment. This can be facilitated
by involving the treatment group, supervision personnel, support system, the
use of polygraphs, and phallometric assessment. Information from these sources
may serve to deter future offenses or alert therapists to problems.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506157
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.91, §810.92
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.91.General.
§810.92.Code of Ethics.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506158
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.91, §810.92
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.91.General.
Licensees shall be trained in the assessment and treatment of adult
sex offenders and/or juveniles with sexual behavior problems. Licensees shall
constitute a professional discipline which shall have a membership committed
to establishing and maintaining the highest level of professional standards
related to the assessment and treatment of these clients. As such, licensees
shall be conscious of their special skills and aware of their professional
boundaries. Licensees shall perform their professional duties with the highest
level of integrity and appropriate confidentiality within the scope of their
statutory responsibilities. Licensees shall not hesitate to seek assistance
from other professional disciplines when circumstances dictate a need to do
so.Licensees shall be committed to protect the public against and shall not
hesitate to expose unethical, incompetent, or dishonorable practices. In order
to maintain the highest standard of service and consumer protection, licensees
shall commit themselves to the following principles designed to earn the greatest
level of public confidence.
§810.92.Code Of Ethics.
(a)
Professional Conduct.
(1)
Each licensee shall provide professional service to anyone,
regardless of race, religion, sex, political affiliation, social or economic
status, or choice of life style. A licensee shall not allow personal feelings
related to a client's alleged or actual crimes or behavior to interfere with
professional judgment and objectivity. When a licensee cannot offer services
to a client for any reason, the licensee shall make a proper referral. Licensees
are encouraged to devote a portion of their time to work for which there is
little or no financial return.
(2)
Each licensee shall refrain from using his or her professional
relationship, related to the assessment or treatment of a client, to further
personal, religious, political or economic interests, other than customary
professional fees.
(3)
The proper conduct of each licensee is a personal matter
to the same degree as it is with any other individual, except when such conduct
compromises the fulfillment of professional responsibilities or reduces the
public trust in this specialty area. Consequently, licensees shall be sensitive
to predominant community standards and the potential impact that either conformity
to, or deviation from these standards can have on the perception of their
own performance, as well as that of their colleagues.
(4)
Each licensee shall have an obligation to engage in continuing
education and professional growth.
(5)
Each licensee shall refrain from diagnosing, treating or
advising on problems outside of the recognized boundaries of his/her competence.
(b)
Client Relationships.
(1)
Each licensee, shall offer dignified and reasonable support
to a client, and shall not exaggerate the efficacy of treatment services.
(2)
Each licensee shall recognize the importance pertaining
to financial matters with clientele. Arrangements for payments should be settled
at the beginning of an assessment or a therapeutic relationship.
(3)
Each licensee shall not engage in dual relationships with
clients. These relationships impair professional judgment or pose a risk of
exploiting the client. Examples of dual relationships include, but are not
limited to, the following: treatment of family members, close friends, employees,
supervisors, supervisees, personal contacts outside the scope of treatment,
and relationships outside of treatment such as business or social.
(4)
Licensees shall not engage in sexual harassment or intimacy
with clients or former clients. Sexual behavior between a licensee and a client
constitutes a felony offense in Texas. A licensee shall not engage in a sexual
or intimate relationship with any client who is receiving or has received
professional services, regardless of whether payment for the services was
involved. Licensees shall not engage in sexual intimacy with a client's or
former client's family members.
(5)
A licensee shall not withdraw services to clients in a
precipitous manner. Each licensee shall give careful consideration to all
factors in the situation and take care to minimize possible adverse effects
on the client.
(6)
Each licensee who anticipates termination or disruption
of service to clients shall notify the clients promptly and provide for transfer,
referral, or continuation of service in keeping with the clients needs and
preferences.
(7)
A licensee shall terminate a professional counseling relationship
when it is reasonably clear that the client is not benefiting from the relationship.
When professional counseling is still indicated, the licensee shall take reasonable
steps to facilitate the transfer to an appropriate referral or source. All
clients on supervision shall be referred back to the criminal justice department.
(8)
Each licensee who serves the clients of a colleague during
a temporary absence or emergency shall serve those clients with the same consideration
of that afforded any client.
(9)
In their professional role, licensees shall not engage
in any action, which will violate or diminish the legal and civil rights of
clients or others who may be affected by their actions.
(10)
The licensee shall not give or accept a gift from a client
or a relative of a client, enter into a barter for services, or borrow or
lend money or items of value to clients or relatives of clients or accept
payment in the form of services rendered by a client.
(11)
The licensee shall not knowingly offer or provide counseling,
treatment, or other professional interventions to an individual concurrently
receiving sex offender treatment from another licensed sex offender treatment
provider except with that provider's knowledge and approval. If a licensee
learns of such concurrent counseling, treatment, or other professional interventions,
the licensee shall take immediate and reasonable action to inform the other
mental health service provider.
(c)
Confidentiality.
(1)
Licensees shall keep records on each client, storing them
in such a way as to ensure their safety and confidentiality in accordance
with the highest professional and legal standards including but not limited
to HIPAA and the Texas Health and Safety Code, Chapter 611.
(2)
Each licensee shall be responsible for informing clients
of the exceptions to confidentiality. Clients shall be informed of any circumstances
which may prompt an exception to the agreed upon confidentiality. In accordance
with Occupations Code, §109.054, information not considered confidential
includes criminal history, the discharge summary, the official offense report,
progress reports, test results, victim statements, and any other information
necessary for the treatment of the client.
(3)
Each licensee shall make clear to the client any conflicts
of interest or dual relationships, which affect the licensee's current relationship
with a client.
(4)
Written permission and informed consent shall be granted
by the client before any data may be divulged to other parties.
(5)
When responding to an inquiry for information and when
a written release by the client is obtained, written and oral reports shall
present data germane to the purpose of the inquiry. Every effort shall be
made to avoid an undue invasion of privacy for the client or other related
person.
(6)
Information shall not be communicated to others without
the written consent of the client unless the following circumstances occur:
(A)
There exists a clear and immediate danger to a person from
the client; or
(B)
There is an obligation to comply with specific statutes
requiring reports of suspected abuse to authorities. Each licensee shall be
knowledgeable all statutes, which govern the conduct of licensee's professional
practice.
(d)
Assessments.
(1)
Licensees shall make every effort possible to promote the
client's non-offending behavior while at the same time, acting in the best
interest of the client, so long as others are not placed at identifiable risk.
Licensees shall guard against the misuse of assessment data. Licensees shall
respect their client's right to know the results, the interpretations made,
and the basis for the conclusions and recommendations drawn from such assessments.
Licensees shall ensure that the assessments and reports the licensee provides
are used appropriately by others as well. Reports shall be written in such
a way to communicate clearly to the recipient of the report.
(2)
Unless the client agrees to an exception in advance, each
licensee shall respect the rights of the client to have a complete explanation,
in language which the client is able to understand, of the nature and purpose
of the methodologies, and any foreseeable effects of the assessment.
(3)
Each licensee shall obtain voluntary informed consent,
in written form, from a client prior to conducting a physiological assessment
or engaging in treatment. In cases where a question exists regarding the appropriateness
of administering a test to a particular client, the licensee shall seek expert
guidance from a competent medical and/or psychological authority prior to
testing.
(4)
In court-ordered assessments, the client shall be informed
of the client's rights, including the client's right to confidentiality.
(5)
The responsible use of assessment measures shall be a paramount
concern of each licensee. Assessments regarding a person's degree of sexual
dangerousness, suitability for treatment, or other forensic referral questions
shall not be determined solely by one assessment instrument. Rather, such
data shall be properly integrated within a comprehensive assessment, the components
of which are determined by a person who has specific training and expertise
in making such assessments.
(6)
An assessment shall not be used to confirm or deny whether
an event or crime has taken place.
(7)
In reporting assessment results, licensees shall indicate
any reservations that may exist regarding validity or reliability because
of the circumstances of the assessment or the absence of comparative norms
for the person being tested. Each licensee shall ensure that assessment results
and interpretations are not misunderstood or misused by others. Proper qualifications
shall be made with regard to prediction and generalized ability of data issued
in order to not mislead the consumer of the report.
(8)
While it is ethical for a licensee to address an issue
regarding the probability of a client committing certain criminal acts within
a certain period of time; it is unethical for a licensee to state that an
individual is not at risk to reoffend.
(9)
Each licensee shall be cautious in offering predictions
of criminal behavior for use in imprisoning or releasing individuals. If a
licensee decides that it is appropriate to offer a prediction of criminal
behavior on the basis of a thorough assessment in a given case, the licensee
shall specify clearly:
(A)
the acts being predicted;
(B)
the estimated probability that these acts will occur during
a given period of time; and
(C)
the facts and data on which these empirical predictions
are based.
(10)
Each licensee shall be thoroughly familiar with the assessment
or treatment procedures and data used by another licensee before providing
any public comment or testimony pertaining to the validity, reliability, or
accuracy of such information.
(11)
Each licensee shall safeguard sexual arousal assessment
testing and treatment materials. Each licensee shall recognize the sensitivity
of this material and use it only for the purpose for which it is intended
in a controlled Phallometric laboratory assessment. Licensees shall not make
such materials available to persons who lack proper training and credentials,
or who would misinterpret or improperly use such stimulus materials.
(12)
Each licensee shall have had specific training in the
administration and evaluation of any assessment tool that is utilized. Licensees
shall not release assessment raw data to any person not qualified to interpret
the data. Licensees shall not be bound to release an assessment to the client
if the licensee believes the information would harm the client.
(e)
Professional Relationships.
(1)
Each licensee shall refrain from knowingly offering treatment
services to a client who is in treatment with another professional without
initially consulting with and receiving the approval of the professionals
involved.
(2)
Each licensee shall act with proper regard for the needs,
special competencies, and perspectives of not only colleagues who treat sex
offenders but other professionals as well.
(3)
Each licensee is encouraged to affiliate with professional
groups, clinics, or agencies operating in the assessment and treatment of
sex offenders. Similarly, interdisciplinary contact and cooperation is encouraged.
(f)
Research and Publications.
(1)
Each licensee shall be obligated to protect the welfare
of the licensee's research subjects. Provisions of the human subjects experimental
policy shall prevail as specified by the current United States Department
of Health, Education and Welfare guidelines.
(2)
Each licensee shall carefully evaluate the ethical implications
of possible research and has full responsibility to ensure that ethical practices
are enforced in conducting such research.
(3)
The practice of informed consent prevails. The research
participant shall have full freedom to decline to participate in or withdraw
from the research at any time without any prejudicial consequences.
(4)
The research subject shall be protected from physical and
mental discomfort, harm, and danger that may result from research procedures
to the greatest degree possible.
(5)
Publication credit shall be assigned to those who have
contributed to a publication in proportion to their contribution, and in accordance
with customary publication practices.
(g)
Public Information and Advertising. All professional presentations
to the public shall be governed by the following standards on public information
and advertising.
(1)
General Principles. The practice of assessment and treatment
of the sex offenders exists for the public welfare. Licensees shall inform
the public of the availability of services. The public should be educated
as to the services available from qualified persons who engage in the assessment
and treatment of sex offenders. Therefore, licensees shall have a responsibility
to the public to engage in appropriate informational activities and to avoid
misrepresentation or misleading statements. The selection of a licensee by
a prospective client or by the court, supervision department, and/or attorney
should be made on an informed basis. Advice and recommendations of third parties,
such as community corrections officers, attorneys, physicians, other professionals,
relatives or friends, as well as responses to restrained publicity, may be
helpful. Advertisements and public communications, whether in directories,
announcement cards, newspapers or on radio or television, shall be formulated
to convey accurate information. Self-praising and testimonials shall be avoided.
Information that may be helpful in some situations would include the following:
(A)
office information such as name, including a group name
and names of professional associates, address, telephone number, credit card
acceptability, languages spoken and written, and office hours;
(B)
only earned degrees from an accredited college or university,
state licensure and/or other certification, professional certification or
affiliation;
(C)
description of practice, including the statement that a
practice is limited to the assessment or treatment of adult sex offenders
and juveniles with sexual behavior problems (if appropriate); and
(D)
professional fee information.
(2)
The proper motivation for community publicity by members
who are engaged in the assessment and treatment of adult sex offenders and
juveniles with sexual behavior problems lies in the need to inform the public
of the availability of competent professionals. The public benefit derived
from advertising depends upon the usefulness and accuracy of the information
provided to the community to which it is directed.
(3)
The regulation of public statements by licensees is rooted
in the public interest. Public statements through which a licensee seeks business
by use of extravagant or brash statements or appeals to fears could mislead
or harm the layperson. Furthermore, public communications that would produce
unrealistic expectations in particular cases and would bring about a lack
of confidence in the profession would be harmful to the community. The licensee-client
relationship is personal and unique and shall not be established as the result
of pressures, deception or exploitation of the vulnerability of clients.
(4)
The name under which a licensee conducts the licensees
practice may be a factor in the selection process. Use of a name or credential,
which could mislead referral sources or lay persons shall be considered improper.
A licensee shall not make any representations that the licensee is a partner
or associate of any agency or firm if the licensee is, in fact, not acting
in that capacity (for example: a person engaged in private practice who is
also employed at a state hospital should make it clear to a prospective client
in private practice that he is not acting on behalf of a state hospital).
(5)
In order to avoid the possibility of misleading persons
with whom the licensee treats, a licensee shall be truthful in the representation
of the licensee's professional background, training and status. Each licensee
shall indicate any limitations in his or her practice.
(6)
Licensees shall not represent their affiliation with any
organization or agency in a manner, which falsely implies sponsorship or certification
by that organization.
(7)
Licensees shall not knowingly make a representation about
the licensee's ability, background, or experience, or about that of a partner
or associate, or about a fee or any other aspect of a proposed professional
engagement that is false, fraudulent, misleading, or deceptive. A false, fraudulent,
misleading, or deceptive statement or claim is defined as a statement or claim
which:
(A)
contains a material misrepresentation of fact;
(B)
omits any material or statement of fact which is necessary
to make the statement, in light of all circumstances, not misleading; or
(C)
is intended or likely to create an unjustified expectation
concerning the licensee, or treatment services.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506159
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.122
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Council on Sex Offender Treatment or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeal is authorized by Occupations Code, §110.158 which
requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeal affects Occupations Code, Chapter 110.
§810.122.Definitions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506160
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.122
STATUTORY AUTHORITY
The proposed new section is authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new section affects Occupations Code, Chapter 110.
§810.122.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Act--Health and Safety Code, Chapter 841, Civil Commitment
of Sexually Violent Predators.
(2)
Behavioral abnormality--A congenital or acquired condition
that, by affecting a person's emotional or volitional capacity, predisposes
the person to commit a sexually violent offense, to the extent that the person
becomes a menace to the health and safety of another person.
(3)
Biennial examination expert--A person or persons employed
by or under contract with the council to conduct a biennial examination to
assess any change in the behavioral abnormality for a person committed under
the Act, §841.081.
(4)
Child safety zone--An area as defined in Code of Criminal
Procedure, Art. 42.12, §13B, and Health and Safety Code, §841.134.
(5)
Civil commitment--The civil commitment of a person adjudged
to be a sexually violent predator and committed to the outpatient sexual violent
predator treatment program (OSVPTP).
(6)
Civil commitment case manager--A person employed by or
under contract with the council to perform duties related to the supervision,
coordination and monitoring of the person committed to the outpatient treatment
and supervision program.
(7)
Civil commitment treatment provider--A person under contract
with the council to conduct assessments, provide intensive treatment, conduct
treatment planning, and to assist the Civil Commitment Case Manager in supervising
the sexually violent predator.
(8)
Council--The Council on Sex Offender Treatment.
(9)
Global Positioning Satellite (GPS) Tracking--Technology
that incorporates global positioning tracking and electronic radio frequency.
GPS allows the client's location to be monitored 24 hours per day, seven days
per week.
(10)
Interagency Case Management Team--All professionals involved
in the treatment, assessment, supervision, monitoring, residential housing
of the client, or other approved professionals. The case manager is the chairperson
of the team.
(11)
Multidisciplinary Team--Composed of members of the Council
on Sex Offender Treatment (two), Texas Department of Criminal Justice (one),
Texas Department of Criminal Justice-Victim Service Division (one), Texas
Department Public Safety (one), and Texas Department of State Health Services-Mental
Health Division (two). The team assesses whether a person is a repeat sexually
violent offender and whether the person is likely to commit a sexually violent
offense after release or discharge, gives notice to the Texas Department of
Criminal Justice or the Texas Department of Mental Health and Mental Retardation,
and recommends the assessment of the person for a behavioral abnormality (Act, §841.022).
(12)
Penile Plethysmograph--A diagnostic method to assess sexual
arousal by measuring the blood flow (tumescence) to the penis during the presentation
of sexual stimuli in a laboratory setting. The plethysmograph provides the
identification of clients' arousal in response to sexual stimuli (audio/visual)
and the evaluation of treatment efficacy.
(13)
Polygraph examination (Clinical)--The employment of any
instrumentation complying with the required minimum standards of the Texas
Polygraph Examiner's Act. Polygraphs measure the emotional arousal that is
caused by fear and anxiety. The autonomic nervous system responds to arousal
with physiological reactions such as increased heart rate, depth of respiration,
and sweat gland activity. There are four types of polygraphs.
(A)
Instant Sexual Offense Polygraph--addresses the offense
of conviction in conjunction with the official version;
(B)
Sexual History Polygraph--addresses the complete sexual
history of the client up to the instant offense;
(C)
Maintenance Polygraph--addresses compliance with conditions
of supervision and treatment; and
(D)
Monitoring Polygraph--addresses if the client has committed
a>
(14)
Polygraph examiner--A licensed polygraph examiner who
shall adhere to the Joint Polygraph Committee on Offender Testing (JPCOT)
for polygraphing adult sex offenders and juveniles with sexual behavior problems.
(15)
Predatory act--An act that is committed for the purpose
of victimization and that is directed toward:
(A)
a stranger;
(B)
a person of casual acquaintance with whom no substantial
relationship exists; or
(C)
a person with whom a relationship has been established
or promoted for the purpose of victimization.
(16)
Repeat sexual offender--A person is a repeat sexually
violent offender for the purposes of this chapter if the person is convicted
of more than one sexually violent offense and a sentence is imposed for at
least one of the offenses or if:
(A)
the person:
(i)
is convicted of a sexually violent offense, regardless
of whether the sentence for the offense was ever imposed or whether the sentence
was probated and the person was subsequently discharged from community supervision;
(ii)
enters a plea of guilty or nolo contendere to a sexually
violent offense in return for a grant of deferred adjudication;
(iii)
is adjudged not guilty by reason of insanity of a sexually
violent offense; or
(iv)
is adjudicated by a juvenile court as having engaged in
delinquent conduct constituting a sexually violent offense and is committed
to the Texas Youth Commission under Family Code, §54.04(d)(3) or (m);
and
(B)
after the date on which under Health and Safety Code, §841.003(b)
Subdivision (1), the person is convicted, receives a grant of deferred adjudication,
is adjudged not guilty by reason of insanity, or is adjudicated by a juvenile
court as having engaged in delinquent conduct, the person commits a sexually
violent offense for which the person:
(i)
is convicted, but only if the sentence for the offense
is imposed; or
(ii)
is adjudged not guilty by reason of insanity.
(17)
Residential facility--A community residential facility,
or halfway house, located in the State of Texas, and under contract with the
council.
(18)
Sexually violent offense:
(A)
an offense under the Penal Code, §§21.11(a)(1),
22.011, or 22.021;
(B)
an offense under the Penal Code, §30.04(a)(4), if
the defendant committed the offense with the intent to violate or abuse the
victim sexually;
(C)
an offense under the Penal Code, §30.02, if the offense
is punishable under subsection (d) of that section and the defendant committed
the offense with the intent to commit an offense listed in subparagraphs (A)
or (B) of this paragraph;
(D)
an offense under Penal Code, §19.02 or §19.03,
that, during the guilt or innocence phase or the punishment phase for the
offense, during the adjudication or disposition of delinquent conduct constituting
the offense, or subsequently during the civil commitment proceeding under
Subchapter D, is determined beyond a reasonable doubt to have been based on
sexually motivated conduct;
(E)
an attempt, conspiracy, or solicitation, as defined by
the Penal Code, Chapter 15, to commit an offense listed in subparagraphs (A),
(B), (C), or (D) of this paragraph;
(F)
an offense under prior state law that contains elements
substantially similar to the elements of an offense listed in subparagraphs
(A), (B), (C), (D), (E) of this paragraph; or
(G)
an offense under the law of another state, federal law,
or the Uniform Code of Military Justice that contains elements substantially
similar to the elements of an offense listed in subparagraphs (A), (B), (C),
(D), or (E) of this paragraph.
(19)
Sexually violent predator (SVP)--A person as defined in
the Health and Safety Code, §841.003. A person is a sexually violent
predator for the purpose of this chapter if the person: is a repeat sexually
violent offender; and suffers from a behavioral abnormality that makes the
person likely to engage in a predatory act of sexual violence; is convicted
of more than one sexually violent offense and a sentence is imposed for at
least one of the offenses.
(20)
Supervision, Treatment, and GPS Requirements--Are the
requirements whereby a person agrees to participate and comply with the conditions
of the Outpatient Sexually Violent Predator Treatment Program (OSVPTP).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506161
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.151 - 810.153
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.151.Administration of the Act.
§810.152.Civil Commitment of Sexually Violent Predators.
§810.153.Outpatient Treatment and Supervision Program.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506162
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §§810.151 - 810.153
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.151.Administration of the Act.
The Council on Sex Offender Treatment (council) is responsible for
providing the appropriate and necessary treatment and supervision of a sexually
violent predator (SVP). Pursuant to the Act, the council shall develop and
implement policies and procedures involving standards of treatment and supervision
that enhance public safety and hold the person to the highest level of accountability.
The council shall hire program specialists and/or contract for the services
of case managers, treatment providers, commitment review experts, global positioning
tracking providers, biennial examination experts, transportation providers,
and residential housing providers. The council by rule shall administer this
chapter. Rules adopted by the council under this section shall be consistent
with the purposes of this chapter. The council by rule shall develop standards
of care and case management for persons committed under this chapter. The
council shall appoint two members of the council and two alternates, to serve
as a member of the Multidisciplinary Team (team) as defined in the Act, Health
and Safety Code, §841.022. The council member(s) or designee(s) who serve
on the team shall keep the council informed of the actions taken by the team
by providing the council's Executive Director with periodic reports as required.
§810.152.Civil Commitment of Sexually Violent Predators.
In the event that a judge or jury determines that a person is a sexually
violent predator (SVP), the person shall be committed by the judge to the
Outpatient Sexually Violent Predator Treatment Program (OSVPTP) in accordance
with a treatment and supervision plan approved by the council. Upon making
a determination that a person is a SVP, the committing judge shall provide
the council and the person with a copy of the civil commitment requirements
for the person committed. The OSVPTP shall begin on the person's release from
a secure correctional facility or discharge from a state hospital and shall
continue until the person's behavioral abnormality has changed to the extent
that the person is no longer likely to engage in a predatory act of sexual
violence. A case manager who has been approved by the council shall coordinate
the OSVPTP. The council shall provide the program specialist and/or case manager
with all available documentation relating to the client including but not
limited to a copy of the civil commitment requirements imposed upon the person
by the committing judge.
§810.153.Outpatient Treatment and Supervision Program.
The council shall contract for the provision of an OSVPTP, which utilizes
cognitive behavioral sex offender treatment and intensive supervision to attain
the goal of no more victims. The OSVPTP containment model is composed of treatment
orientation, assessments, and evaluations, global positioning tracking services,
polygraph examinations, medication, transportation, penile plethysmograph,
supervision, treatment, residential housing (if appropriate), and auditing
services.
(1)
Housing. The council shall provide for any necessary supervised
or residential housing, including but not limited to, existing Texas community
residential facilities, or halfway houses currently under contract with the
council or at another location or facility approved by the Council. The supervised
housing shall be approved by the council and shall be in locations around
the State where the Department of Public Safety (DPS) maintains sufficient
personnel who are properly trained in utilizing all forms of tracking services.
(2)
Orientation. A person civilly committed by a judge, shall
receive an orientation session from the assigned treatment provider involving
the OSVPTP. The council shall establish policies and procedures for informing
the person of his rights, obligations, and responsibilities under the OSVPTP.
A person civilly committed to the OSVPTP shall sign all forms, releases and
consent documents approved by the council, including but not limited to, the
Treatment, Supervision, and GPS requirements which relate to said OSVPTP,
and the person shall agree to strictly adhere to the terms and conditions
of said requirements and other documents as required by the Court. A person,
who signs the requirements and adheres to its terms and conditions, is allowed
to begin the OSVPTP. If the person fails to sign the documents, the person
is not permitted to begin the OSVPTP and will be subject to all legal sanctions
available under the Act.
(3)
Assessment. The initial stage of the OSVPTP shall begin
with a formal assessment of the SVP. The initial assessment shall involve
two components. First, the treatment provider shall review and validate the
formal risk assessment. Second, the treatment provider shall conduct an assessment
for the purpose of identifying individual needs, which shall be addressed
during the OSVPTP. The individual needs as identified by the treatment provider
shall be included in the person's individual treatment plan.
(4)
Global Positioning Tracking Services. The council shall
enter into an Interagency Agreement with the DPS, which will provide the technology
and expertise to track sexually violent predators during their commitment
to the OSVPTP in all counties except Tarrant/Dallas and Harris Counties. The
primary focus of intensive tracking services is to ensure public safety, the
highest level of client accountability, compliance with adhering to a daily
activity schedule and to the requirements of the OSVPTP. Such services shall
include but not be limited to monitoring global position tracking, electronic
monitoring, and surveillance. All SVPs shall begin an intensive monitoring
system once a judge civilly commits the person for outpatient treatment and
supervision or is released from a security facility. The person shall be on
the intensive global positioning tracking until the person's behavioral abnormality
has changed to the extent that the person is no longer likely to engage in
a predatory act of sexual violence.
(5)
Polygraph Services. A person is mandated by the order of
commitment to submit to polygraph testing. The treatment plan shall consist
of clinical polygraph exams specific to sex offenders, including instant sexual
offense, sexual history, maintenance and monitoring exams. The council shall
only approve treatment plans, which utilize a licensed polygraph examiner
who adheres to the Joint Polygraph Committee guidelines for polygraphing sex
offenders.
(6)
Medication. Medication may include anti-psychotic, anti-depressant,
anti-anxiety, anti-obsessional, anti-androgenic and/or equivalent chemotherapy.
(7)
Penile Plethysmograph. The person is mandated by the order
of commitment to submit to plethysmograph testing. The plethysmograph shall
be used to identify the clients who manifest excessive deviant arousal in
response to stimuli depicting sexual abuse, discernment of lack of arousal
to stimuli of consenting sex, minimization of distortions evident in self-report
level of arousal, evaluation of treatment efficacy, and enhancement of certain
forms of behavioral treatment. Licensees shall refer the client for a polygraph
exam as soon as possible if the client is suspected of engaging in suppression
behaviors on the PPG.
(8)
Supervision. The council shall establish employment policies
and procedures for the hiring of full time program specialists for Tarrant/Dallas
and Harris counties and contracted case managers for other Texas counties
who shall be responsible for the coordination of the treatment and supervision
of the person civilly committed, and monitoring compliance with the treatment
and supervision requirements for that person. The program specialist and case
manager shall be required to:
(A)
conduct face to face contact at the office, residence,
and field visits to monitor the SVP;
(B)
serve as a liaison with the sex offender therapist, global
positioning tracking services; polygraph examiner, District Attorneys, residential
staff, parole officer, employer, and all other professionals involved in the
person's life;
(C)
shall report any violation to the council within 24 hours;
(D)
shall ensure the residential plan is congruent with the
child safety zone laws;
(E)
shall ensure the person registers with the Texas Department
of Public Safety every thirty (30) days;
(F)
shall make referrals for alcohol and drug testing;
(G)
adjust the person's supervision according to the risk assessment;
(H)
shall make timely recommendations to the judge on whether
to allow the committed person to change residence or to leave the state and
on any other appropriate matters shall inform the person annually of their
right to file for unauthorized release;
(I)
shall submit the biennial report to the Judge;
(J)
shall coordinate transportation services for the person;
and
(K)
shall abide by the Case Manager Code of Ethics.
(9)
Sex Offender Treatment. The council shall approve and contract
for the provision of treatment, which is based on a cognitive behavioral model
with the focus of the treatment being holistic. The OSVPTP shall include,
but not be limited to, sex offender specific group and individual therapy;
social skills training, medicine, and if deemed warranted by the treatment
provider, substance abuse counseling or traditional mental health treatment.
The treatment plan shall be composed of standard tasks, which all persons
shall complete prior to moving to the next stage. In addition, individual
goals shall be established based upon assessment data. A treatment plan shall
include the monitoring of the person with a polygraph and penile plethysmograph.
The council shall establish guidelines and policies and procedures for the
hiring of contracted treatment providers who will be responsible for developing
and implementing an individual treatment plan approved by the council. All
treatment plans and guidelines for standards of care are subject to the approval
of the council prior to implementation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506163
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.182, §810.183
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.182.Civil Commitment Case Manager.
§810.183.Civil Commitment Treatment Provider.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506164
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.182, §810.183
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.182.Civil Commitment Program Specialist and/or Case Manager.
The council shall approve and contract or employ for the services of
a person to perform duties related to outpatient treatment and supervision
of a person civilly committed to the Outpatient Sexually Violent Predator
Treatment Program (OSVPTP). The council shall establish employment policies
and procedures, which set forth duties and responsibilities, minimum qualifications,
knowledge, skills, and abilities required of a person serving in such capacity.
The program specialist and/or case manager shall report directly to the council
through its Executive Director or designee; provide supervision to the sexually
violent predator (SVP); ensure community safety by monitoring the SVP; communicate
with law enforcement, treatment providers, prosecutors, and the judge having
jurisdiction over the person's commitment; coordinate outpatient treatment
for the SVP; periodically reviews assessments to determine the success of
outpatient treatment and supervision; train residential housing staff; provide
periodic reports to the council through its Executive Director or designee
and to the judge having jurisdiction over the person's commitment; and make
recommendations to the judge having jurisdiction over the person's commitment
as to whether or not to allow the committed person to change residence, or
any other appropriate matters relating to the person's civil commitment.
§810.183.Civil Commitment Treatment Provider.
The council shall approve and contract for the services of a person
or persons to perform duties related to the outpatient treatment of a person
civilly committed to the OSVPTP, and shall establish assessment and treatment
guidelines for the Civil Commitment Treatment Providers to adhere to. The
council shall establish employment policies and procedures, which set forth
duties and responsibilities, minimum qualifications, knowledge, skills, and
abilities required of a person or persons serving in such capacity. A treatment
provider shall report directly to the council through its Executive Director
or designee regarding the treatment and supervision of a person committed
to the OSVPTP; shall conduct assessments; provide treatment and conduct treatment
planning; provide the case manager with data that will assist in the supervision
of the sexually violent predator (SVP); follow assessment and treatment guidelines
and policies as established by the council; conduct assessments and on-going
risk assessments; recommend increases or decreases in supervision and privileges
for the SVP based upon assessments and observations; conduct group and individual
counseling; conduct treatment planning and submit incident reports to the
program specialist and/or case manager; liaison with the case manager and
other professionals providing services to the SVP; document all services provided
to the SVP; and provide status reports to the case manager regarding the person's
compliance with the treatment and supervision requirements of the OSVPTP.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506165
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.211
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Council on Sex Offender Treatment or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeal is authorized by Occupations Code, §110.158 which
requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeal affects Occupations Code, Chapter 110.
§810.211.Biennial Examination.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506166
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.211
STATUTORY AUTHORITY
The proposed new section is authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new section affects Occupations Code, Chapter 110.
§810.211.Biennial Examination.
(a)
A person who is civilly committed under the Act, §841.081,
shall receive a biennial examination conducted by an expert. The council shall
approve and contract for the services of an expert who will conduct a biennial
examination of the person civilly committed as a sexually violent predator.
The expert shall not be the same expert who conducted the initial examination
of the person for civil commitment purposes. The expert shall produce a written
report within 90 days from the date of referral or earlier if required by
the court, which shall include the following:
(1)
the client's name, identification number, and date of examination;
(2)
client's version and official version of the instant offense;
(3)
client's level of denial of the instant offense and denial
of deviant arousal or intent;
(4)
history of assessment utilized, method and description
of testing, and analysis of test data;
(5)
a background summary of the client's history regarding
sexual history, social history, birth/development, family marital, education,
employment, substance abuse, anger, suicide, psychiatric, and current psychiatric
symptoms;
(6)
current mental status based on clinical observation and
diagnosis of mental illness as per the current Diagnostic and Statistical
Manual;
(7)
a treatment or supervision history and a description of
the client's history in an outpatient program;
(8)
a determination if the client's behavioral abnormality
has changed to the extent that the person is no longer likely to engage in
a predatory act of sexual violence;
(9)
the examiner's recommendation regarding the client's need
for civil commitment; and
(10)
expert's signature and title.
(b)
The report shall also include a consideration of whether
to modify a requirement imposed on the person under the Act, and whether to
release the person from all of the requirements imposed on the person under
the Act. The program specialist and/or case manager shall provide a report
of the client's compliance or non-compliance with treatment and supervision
to the judge having jurisdiction over the person's commitment, and to the
council through its Executive Director or designee.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506167
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.241, §810.242
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Council on Sex Offender Treatment or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed repeals affect Occupations Code, Chapter 110.
§810.241.Authorized Petition for Release.
§810.242.Unauthorized Petition for Release.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506168
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
22 TAC §810.241, §810.242
STATUTORY AUTHORITY
The proposed new sections are authorized by Occupations Code, §110.158
which requires the council to adopt rules consistent with this chapter and §110.159
which requires the council to charge fees for issuing or renewing a license.
The proposed new sections affect Occupations Code, Chapter 110.
§810.241.Authorized Petition for Release.
In the event that the program specialist and/or case manager and council
determine that the committed person's behavioral abnormality has changed to
the extent that the person is no longer likely to engage in a predatory act
of sexual violence, the program specialist and/or case manager and the council
shall authorize the person to petition the court for release. Prior to authorizing
the person to petition the court for release, the case manager shall notify
the council through its Executive Director or designee.
§810.242.Unauthorized Petition for Release.
Upon a person's commitment to the OSVPTP and on an annual basis thereafter,
the program specialist and/or case manager shall provide the committed person
with written notice of the committed person's right to file a petition for
release which has not been authorized by the case manager. The program specialist
and/or case manager shall provide a copy of the written notice to the council
through its Executive Director or designee.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on December 30, 2005.
TRD-200506169
Walter J. Meyer, M.D.
Chair
Council on Sex Offender Treatment
Earliest possible date of adoption: February 12, 2006
For further information, please call: (512) 458-7236
Part 7.
STATE COMMITTEE OF EXAMINERS IN THE FITTING AND DISPENSING OF HEARING INSTRUMENTS
The purpose of this chapter
is to implement
] the provisions of Texas Occupations Code, Chapter 402,
concerning the licensure and regulation of fitters and dispensers of hearing
instruments.
(7)
Board--The Texas Board of
Health.]
The Texas Department of Health
].
on
] proceedings
of the committee and shall be custodian of the files and records of the committee
[
unless another custodian is designated by the committee
];
committee
] of the committee; and
Open Records
] Act, [
the
] Government
Code, Chapter 552. Records which are public may be reviewed by inspection,
duplication, or both upon written request.
applicant at the time of or before the duplicated records
are sent or given to the applicant
]. The charge for copies shall be
the same as set by the department for copies.
committee
office
].
Texas Occupations Code, Chapter 402, (Act),
] or
this chapter on:
,
] indicated, an applicant
must submit all required information and documentation of credentials on official
committee
forms [
of the State Committee of Examiners in the Fitting
and Dispensing of Hearing Instruments (committee)
].
(d)
Remittances submitted to the
committee in payment of fees may be in the form of a cashier's check or money
order.]
(e)
] For all applications and renewal
applications, the committee is authorized to collect subscription and convenience
fees, in amounts determined by the Texas Online Authority, to recover costs
associated with application and renewal application processing through Texas
Online.
(f)
] For all applications and renewal
applications, the committee is authorized to collect fees to fund the Office
of Patient Protection, Health Professions Council, as mandated by law.
(g)
] The fees for administering
the Act
[
Texas Occupations Code, Chapter 402, (Act),
] and
this chapter shall be as follows:
; and
]
(10)
reinstatement fee for a license
that was suspended for student loan default--$55.]
,
] and misdemeanor convictions, educational background, supervised experience
,
[
and
] references
, and social security number
;
new material
] submitted to the committee become the property
of the committee and are not returnable (unless prior arrangements have been
made);
and notarized
] signature;
and
and notarized
] signature of the
supervisor or supervisors who can formally attest to the applicant's direct
supervised experience.
notarized
] signature; and
notarized
] signature.
(D)
Applicant's affidavit. The
facts in the application shall be sworn to by the applicant before a notary.]
§402.106 of
] the Act
or this chapter
;
Administrative
Procedures Act, Government Code, Chapter 2001
].
(10)
The dated and notarized signature
of the supervisor or supervisors who can formally attest to the apprentice
permit holder's supervised experience.]
(11)
] The supervised experience
forms must be completed by the apprentice permit holder and the supervisor
or supervisors and contain:
notarized
] signature; and
notarized
] signature.
to
another eligible supervisor for the supervision
] of a temporary training
permit holder
to another licensee
. The supervisor shall be responsible
for the day-to-day supervision of a trainee. The supervisor shall also be
ultimately responsible for services provided to a client by the temporary
training permit holder. A supervisor shall not delegate the responsibility
of supervision.
to the licensee,
] a license
certificate which indicates the licensee's name and license number.
be signed by the committee members and be affixed
with the seal of the committee
].
be signed by
] the committee president
and executive director.
notarized
] statement detailing the loss or destruction of the
licensee's original license or card or be accompanied by the damaged certificate
or card.
equivalent to or higher than Texas
], the following criteria shall be
considered by the committee:
cash
] deposit or other negotiable security acceptable to the
committee in the amount required in subsection (a) of this section in lieu
of a bond.
there is not complaint
] pending, the committee office may accept the surrender and void the
license or permit.
annually or biannually, as determined by the committee
].
postmarked
] date of the documentation submitted by the
licensee [
if legible and on the date stamped at the Texas Department
of Health if the postmark is not legible
].
(9)
A licensee or permit holder
who has been notified of a student loan default shall surrender their license
or permit until the loan payment has been resolved to the satisfaction of
the National Student Loan Center.]
(10)
A licensee or permit holder
shall pay a reinstatement fee as set out in §141.6 of this title (relating
to Application Procedures) prior to issuance of the license or permit under
this subsection.]
12
] months after the original date of licensure.
(1)
At least 45 days prior to
the expiration of a regular license, the committee will send notice to a licensee
that includes:]
(A)
the expiration date of the license;]
(B)
a schedule of the renewal and late fees; and]
(C)
the number of hours needed to complete any
continuing education requirements.]
furnished
] to licensees eligible
for renewal. The form shall require the licensee to provide:
the
] documentation showing that the licensee
has complied with applicable continuing education requirements
if selected
for audit
.
certificate
] to a licensee who has met all the requirements for renewal.
The licensee must display the renewal
card
[
certificate
]
in association with the license.
one year
] and shall,
unless suspended or revoked, be renewed
biennially
[
annually
] on payment of the renewal fee and compliance with this section by
the licensee.
not more than
] 90 days, the person may renew the license
by paying the required renewal fee and a fee that is one-half of the examination
fee for the license to the committee.
Before a license can be renewed,
the
] committee shall require certification that all testing equipment,
both portable and stationary, used by the licensee has been calibrated within
one year prior to the renewal date
, if the licensee is selected for audit
.
Before a license can be renewed, a
] licensee must demonstrate compliance with the
continuing education
requirements [
of continuing education
] established by the
committee
, if selected for audit
[
under the Act in §141.14
].
(16)
Before a license can be
renewed, the licensee must submit a copy of the written contract for services
employed by the licensee.]
The committee
shall require that a
] fitter and dispenser licensed under
the Act
[
Texas Occupations Code, Chapter 402, (Act) and this chapter,
]
must
complete 20 contact hours of continuing education
each year. For purposes of this section:
runs concurrently with
] the effective
month
[
date
]
of a license issued under the Act and this chapter;
(3)
no more than 5 contact hours
of the 20 contact hours required may be obtained from a course sponsored by
a manufacturer.]
(d)
Credit hours for publications.
A licensee may be credited with continuing education credit hours for a published
book or article written by the licensee that contributes to the licensee's
professional competence.]
(1)
No more than five credit hours for preparation
of a publication may be claimed by a licensed holder in an annual reporting
period.]
(2)
The continuing education subcommittee may grant
credit hours based on the degree that the published book or article advanced
knowledge regarding the fitting and dispensing of hearing instruments.]
(e)
] Noncompliance. A licensee
who has not complied with the continuing education requirements of this section
may not be issued a renewal license unless the licensee:
Stated
] during any part of the
24
[
12
] months before the [
annual
] reporting date;
12
] months before the [
annual
] reporting date; or
12
] months before the [
annual
] reporting date.
(f)
]
If selected for audit,
a
[
Attendance. A
] licensee shall provide written proof of
[
attendance and
] completion of [
an
] approved
courses
[
course on a form prescribed by the committee
].
(g)
] Renewal period for continuing
education. Continuing education requirements for renewal shall begin on the
first day of a licensee's renewal
period
[
year
] and
end on the last day of the licensee's renewal
period
[
year
].
(h)
] Course categories. Continuing
education shall be acceptable if the education falls in one or more the following
categories:
(i)
] Requests for credit. Individuals
and organizations may initiate requests for committee approval and hour credit
of specific programs for continuing education credit at least 30 days prior
to the first scheduled presentation.
(j)
] Evaluation of continuing education
programs. Each continuing education program submitted by a licensee or approved
sponsor will be evaluated on the basis of the following criteria:
(k)
] Academic requirements. Completion
of academic work shall be in accordance with subsection
(i)
[
(j)
] of this section. Official transcripts from accredited
schools
[
school
] showing completion of hours in appropriate areas
for which the licensee received at least a passing grade is required.
(l)
] Approved credit. The committee
shall credit continuing education experience as follows.
(m)
] Reporting.
If selected
for audit, the
[
The
] requirements for reporting continuing
education shall be as follows.
at renewal time
]. Continuing education must be
reported and approved prior to renewal at the end of the renewal period. Each
licensee is responsible for ensuring that the committee receives timely notice
of the licensee's completion of continuing education activities.
(n)
] Disapproved credit. The committee
will not give continuing education credit to any licensee for:
(o)
Mandatory continuing education.
The mandatory five of the 20 required continuing education hours will be conveyed
in the committee newsletter and renewal packet.]
160 hours of direct supervision
].
(5)
The examinee may take the
examination no more than three times.]
A licensee or permit holder under Texas Occupations Code, Chapter 402, (Act)
shall:
]
;
]
Texas State Board of Medical Examiners, one
] who specializes in diseases
of the ear
. The written statement shall confirm
[
and states
] that the client's hearing loss has been medically evaluated during
the preceding six-month period and that the client is age 18 or older
. The
[
, the
] licensee may inform the client that the medical
evaluation requirement may be waived as long as the licensee:
;
]
; and
]
.
]
; and
It is the licensee's responsibility
to keep records
] on every client
who receives services
[
to whom the licensee renders service
] in connection with the fitting
and dispensing of hearing instruments. Such records shall be preserved for
at least
three
[
five
] years after the fitting and dispensing
of the hearing instrument(s) to the client. If other hearing instruments are
subsequently fitted and dispensed to that client, cumulative records must
be maintained for at least
three
[
five
] years after
the latest fitting and dispensing of the hearing instrument(s) to that client.
The records must be available for the committee's inspection and
shall
[
will
] include but not be limited to the following:
writing
] contracts
for services and receipts executed in connection with the fitting and dispensing
of each hearing instrument provided;
or as otherwise
specified by the Texas Department of Health (department).
]
(2)
Current audiometer or audiometric
testing device calibration records shall be maintained with each audiometer
or audiometric testing device. Audiometer or audiometric testing device calibration
records and data shall be maintained for inspection by the department for
a period of three years.]
Civil Statutes
], §2001.054(c)(2).
suspension of a license or permit of an applicant
] is proposed,
the committee or its designee shall give written notice by certified mail,
return receipt requested, of the basis for the proposal and that the licensee,
permit holder, or applicant must request, in writing, a formal hearing within
ten days of receipt of the notice, or the right to a hearing shall be waived
and the
proposed action shall be taken
[
committee may refuse
to issue or renew a license, revoke or suspend a license or permit; probate
disciplinary action, or reprimand a licensee or permit holder
].
before further action can be taken
]. The executive director may
accept an anonymous complaint if there is sufficient information for investigation.
The Executive Director may accept a complaint that is not on the official
form.
notarized
] response from the licensee or permit holder against whom
the alleged violation has been filed and gather information required by the
complaints subcommittee.
(7)
At each 90-day interval, following
the receipt of the complaint until the complaint is finally resolved or closed,
the committee shall notify a complainant of the status of his or her complaint
unless the notice would jeopardize an undercover investigation.]
After review of each complaint, the executive director shall
establish a schedule for conducting each phase of the complaint procedure
not later than the 30th day after the date the complaint is received. The
schedule shall be kept in the information file for the complaint. A change
in the schedule must be noted in the complaint information file.
]
if a change extends the time prescribed for resolving the complaint.
]
executive director
]
shall maintain a complaint tracking system.
(a)
Purpose. This section covers
the formal hearing procedures and practices that will be used by the committee
in handling suspensions, revocation of license, denial of licenses, probating
a license suspension, and reprimanding a licensee. Such hearing will be conducted
pursuant to the contested case provisions of the Administrative Procedure
Act (APA), Texas Government Code, Chapter 2001 and will be held by the State
Office of Administrative Hearings.]
(a)
The assessment of an administrative
penalty is governed by the State Committee of Examiners in the Fitting and
Dispensing of Hearing Instruments, Texas Occupations Code Act (Act), §402.511.]
and the Texas Board of Health (board)
] may impose a fine not to
exceed $250 plus costs for the first violation and not to exceed $1,000 plus
costs for each subsequent violation of the Act, and the rules adopted under
the Act, on any person or entity described in the Act. The fine may be invoked
as an alternative to any other disciplinary measure, except for probation,
as set forth by the committee.
by certified mail, return receipt
requested,
] to the last known address of the licensee or applicant or
by personal delivery. The 10 days shall begin on the date of mailing or personal
delivery. The licensee or applicant may waive the
10-day
[
10 day
] notice requirement.
shall
] be enclosed with the notice of the settlement
conference. The notice shall inform the licensee or applicant of the following:
shall
] be sent [
by certified mail, return receipt requested,
]
to the complainant at his or her last known address or personally delivered
to the complainant. The complainant
may
[
shall
] be informed
that he or she may appear and testify or may submit a written statement for
consideration at the settlement conference. [
The complainant shall be
notified if the conference is canceled.
]
may
] be present at a settlement conference.
Complaints Committee
] members, the committee's legal counsel, and the executive director,
may question witnesses, make relevant statements, present statements of persons
not in attendance and present such other evidence as may be appropriate.
(Open Records
Act)
], Government Code, Chapter 552, and the Administrative Procedure
Act (APA), Government Code, Chapter 2001.
shall
] be given the opportunity
to be heard [
if the complainant attends
]. Any written statement
submitted by the complainant shall be reviewed at the conference.
State Committee of Examiners
in the Fitting and Dispensing of Hearing Instruments Act (Act).
] The
committee member may also conclude that the committee lacks jurisdiction,
conclude that a violation of the Act or this chapter has not been established,
order that the investigation be closed, or refer the matter for further investigation.
office
] or the committee's legal counsel and forwarded to the licensee
or applicant. The order shall contain agreed findings of fact and conclusions
of law. The licensee or applicant shall execute the order and return the signed
order to the committee
staff
[
office
] within ten days
of his or her receipt of the order. If the licensee or applicant fails to
return the signed order within the stated time period, the inaction shall
constitute rejection of the settlement recommendations.
for Failure ] to [ Pay ] Child Support and Child Custody Orders .
State Committee of Examiners in
the Fitting and Dispensing of Hearing Instruments
] Act [
, Texas
Occupations Code, §402.301, and §141.13 of
]
and
this
title [
(relating to Renewal of License)
]. However, the license
will not be renewed until the requirements of subsections (g) and (h) of this
section are met.
under the State Committee of Examiners in the Fitting and Dispensing
of Hearing Instruments Act (Act), Texas Occupations Code, Chapter 402,
]
and constitutes a code of ethics as authorized by the Act. It is the responsibility
of all
licensees and permit holders
[
dispensers, fitters,
and apprentice licensees covered under the Act
] to uphold the highest
standards of integrity and ethical principles.
(5)
A licensee shall not engage
in any explorative or sexual act with a client.]
meet
].
complaint
] subcommittee
or administrative law judge. Specific factors are to be considered as set
forth herein.
sanction guides
] are based on the relevant factors in §141.23 of
this title (relating to Relevant Factors).
Part 31.
TEXAS STATE BOARD OF EXAMINERS OF DIETITIANS
The Texas Department of Health or its successor organization.
]
(1)
A board member is entitled
to a per diem payment at the rate set by the legislature for state employees
in the latest General Appropriations Act passed by the Texas Legislature.]
(2)
] A board member is entitled
to compensation for
travel
[
transportation
] expenses
as provided by the latest General Appropriations Act passed by the Texas Legislature.
(3)
] Payment to board members of
travel
[
per diem and transportation
] expenses shall be requested
on official state travel vouchers which have been approved by the executive
secretary.
(4)
] Board travel must conform to
existing policies of the department.
(5)
] Attendance at conventions,
meetings, and seminars must be clearly related to the performance of board
duties and show a benefit to the state.
(1)
At the meeting held after
August 31 of each odd-numbered year, the board shall elect by a majority vote
of those members present and voting, a chair and a vice-chair. When the Governor
appoints new board members to replace those currently serving as chair or
vice chair, an election will be held not later than the 30th day after the
date the governor makes the appointment in accordance with the Act, §701.057.]
(2)
A vacancy which occurs in
the offices of chair and vice-chair shall be filled, for the duration of the
unexpired term, by a majority vote of those members present and voting at
the next board meeting.]
The complaint committee shall be composed
of a person(s) appointed by the chair.
] The committee may review complaints
received by the board and shall recommend action to be taken on complaints
in accordance with §711.14 of this title (relating to Violations, Complaints,
and Subsequent Board Actions).
at www.tdh.state.tx.us/hcqs/plc/diet.htm
].
(h)
Registered dietitians. The
board shall waive the licensing examination requirement for applicants who
are registered in active status by the commission at the time of making application
to the board.]
(2)
] The board will not consider
an application as officially submitted until the applicant pays the application
fee. The fee must accompany the application form. See fee schedule in §711.2(u)
of this title (relating to the Board's Operation).
(3)
] The board must receive all
required application materials at least 60 days prior to the date the applicant
wishes to take the examination.
(4)
] The executive secretary will
send a notice listing the additional materials required to an applicant who
does not complete the application in a timely manner. An application not completed
within 30 days after the date of the board's notice may be voided.
(4)
An applicant shall have two
professional references (included in the application packet) submitted by
licensed dietitians or registered dietitians who can attest to the applicant's
dietetic skills and professional standards of practice. The references shall
be persons who are not named elsewhere in the applicant's application and
who are not current members of the board.]
(5)
] If an applicant is or has been
licensed, certified, or registered in another state, territory, or jurisdiction,
the applicant must submit information required by the board concerning that
license, certificate, or registration on official board forms.
(6)
] Vitae, resumes, and other documentation
of the applicant's credentials may be submitted.
(7)
] A provisional licensed dietitian
applicant must submit a completed supervision contract.
or
]
.
]
14
] working days;
14
] working days; and
The mailing address is Texas State Board
of Examiners of Dietitians, 1100 West 49th Street, Austin, Texas 78756-3183,
1-800-942-5540 or the web site at www.tdh.state.tx.us/hcqs/plc/diet.htm
].
The maximum penalty is $5,000 per violation per day.
]
The maximum fine is $2500 per violation per day.
]
The maximum fine is $1250 per violation per day and the minimum fine is $50.
]
(i)
] Any licensee attaining the
age of 60 years who is not in the active practice of dietetics shall have
the continuing education requirements waived upon the licensee's request.
Part 36.
COUNCIL ON SEX OFFENDER TREATMENT
Subchapter A. LICENSED SEX OFFENDER TREATMENT PROVIDERS
Subchapter B. CRIMINAL BACKGROUND CHECK
Subchapter C. STANDARDS OF PRACTICE
Subchapter D. CODE OF PROFESSIONAL ETHICS
Subchapter E. GENERAL PROVISIONS
Subchapter E. CIVIL COMMITMENT GENERAL PROVISIONS
Subchapter F. CIVIL COMMITMENT
Subchapter G. CIVIL COMMITMENT CASE MANAGER AND TREATMENT PROVIDER DUTIES AND RESPONSIBILITIES
Subchapter G. CIVIL COMMITMENT PROGRAM SPECIALIST AND/OR CASE MANAGER AND TREATMENT PROVIDER DUTIES AND RESPONSIBILITIES
Subchapter H. CIVIL COMMITMENT REVIEW
Subchapter I. PETITION FOR RELEASE
Subchapter J. MISCELLANEOUS PROVISIONS