Part 3. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
Chapter 73. LICENSES AND RENEWALS
The Texas Board of Chiropractic Examiners (Board) proposes amendments to §73.3, relating to continuing education, and §73.7, relating to approved continuing education courses. The proposed amendments describe specific continuing education requirements and make additional editorial changes to these rules.
Under the proposed amendment to §73.3, paragraph (b)(2) would be amended to require that four of the required 16 hours of continuing education shall consist of required courses. A minimum of two hours will consist of an ethics course specific to the practice of chiropractic. A minimum of one hour will consist of recordkeeping, documentation, and coding relevant to the practice of chiropractic in Texas. A minimum of one hour will relate to risk management relating to the Chiropractic Act, the board's rules, and other law relevant to the practice of chiropractic in Texas. Such risk management courses will include identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating, identifiable risks. The existing language of paragraph (b)(2) will be divided into new subparagraphs.
The existing language of §73.3(b)(4), relating to locations for continuing education presented by the board, will be deleted and the remaining paragraphs will be renumbered. Similarly, the related language under §73.7(k) will be deleted. This language is now obsolete.
The provisions of the current §73.3(b)(5), proposed (b)(4), would be amended to clarify that the letter confirming the illness or disability must be submitted by a doctor of chiropractic, medicine, or osteopathy.
The proposed amendments to §73.7 would include amending paragraph (g)(2) to include the conjunctive "and" and to amend paragraph (g)(3) to include recordkeeping, documentation, and coding and a reference to topics identified by the board as provided under §73.3(b)(2) as part of the list of continuing education topics.
In order to better coordinate the implementation of these proposed amendments and to ensure that licensees are informed of these revised continuing education requirements, the Board is proposing that revised continuing education requirements will not be implemented before July 2009.
Glenn Parker, Executive Director, has determined that for the first five-year period these amended rules are in effect there will be no additional costs to state or local governments as a result of enforcing or administering this rule. There will be no costs or adverse economic effects to small or micro businesses as the proposed amendments do not change the number of continuing education hours that must be obtained each year.
The Board has approximately 5,000 doctor of chiropractic licensees and nearly all of the licensees practice in facilities that are small businesses and many of them are micro-businesses. As the Executive Director has determined that there will not be an adverse economic effect as the result of these proposed amendments, no economic impact statement regulatory flexibility analysis is required.
Mr. Parker has also determined that for each year of the first five-year period these amended rules are in effect the public benefit will be greater awareness by practicing Texas doctors of chiropractic of the statutes and rules governing the practice of chiropractic, better awareness of ethical issues in chiropractic practice, and an increased awareness of proper recordkeeping, documentation and coding relevant to the practice of chiropractic in Texas.
Comments on the proposed amendments may be submitted to Ms. Mary Feys, Texas Board of Chiropractic Examiners, 333 Guadalupe St., Tower III, Suite 3-825, Austin, Texas 78701 or via e-mail to mary.feys@tbce.state.tx.us or via facsimile to (512) 305-6705 no later than 30 days from the date that these proposed amendments are published in the Texas Register.
These amendments are proposed under Texas Occupations Code §201.152, relating to rules, which authorizes the Board to adopt rules necessary to regulate the practice of chiropractic and §201.356 relating to continuing education which requires the Board to adopt rules concerning continuing education and allows the Board to require licensees to attend continuing education classes specified by the Board.
§73.3.Continuing Education.
(a) Condition of Renewal. A licensee is required to attend continuing education courses as a condition of renewal of a license.
(b) Requirements.
(1) Every licensee shall attend and complete 16 hours of continuing education each year unless a licensee is exempted under subsection (d) of this section. Each licensee's reporting year shall begin on the first day of the month in which his or her birthday occurs.
(2) The 16 hours of continuing education may be completed at any course
or
[
of
] seminar elected by the
licensee, which has been approved under §73.7 of this title (relating
to Approved Continuing Education Courses).
(A)
A
[
However, a
]
licensee must attend any course designated as a "TBCE Required Course,"
and the course may be counted as part of the 16 hour requirement.
Effective with all doctor of Chiropractic licenses renewed on or after July
1, 2009, a minimum of four of the 16 required hours of continuing
education shall include topics designated by the board.
(i) A minimum of two hours of the total required continuing education shall consist of an ethics course specifically related to the practice of chiropractic. In addition to the requirements in §73.7 of this title, an instructor for this continuing education must have a doctorate degree and must either have a license to practice chiropractic or law in the State of Texas or be part of the full-time faculty of a chiropractic college accredited by the Council of Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) of this subsection.
(ii) A minimum of one hour of the total required continuing education shall relate to risk management relating to the Chiropractic Act, the board's rules, and other laws relevant to the practice of chiropractic in Texas. For the purpose of this rule, risk management refers to the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating, identifiable risks. In addition to the requirements in §73.7 of this title, a risk management instructor shall have a doctorate degree and must either have a license to practice chiropractic or law in the State of Texas or be part of the full-time faculty of a chiropractic college accredited by the Council of Chiropractic Education. This continuing education may be taken online through a course offered by the board.
(iii) A minimum of one hour of the total required continuing education shall consist of recordkeeping, documentation, and coding relevant to the practice of chiropractic in Texas. In addition to the requirements in §73.7 of this title, a risk management instructor shall have a doctorate degree and must either have a license to practice chiropractic or law in the State of Texas or be part of the full-time faculty of a chiropractic college accredited by the Council of Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) of this subsection.
(iv) In addition, from time to time, the board may issue public memoranda regarding urgent or significant public health issues that licensees need to be aware of. The board will publish such memoranda on the board's web site and distribute the memoranda to the major continuing education providers.
(B) A licensee who serves as an examiner for the National Board of Chiropractic Examiners' Part IV Examination may receive credit for this activity, not to exceed eight (8) hours each year.
(C) No more than six hours or credit may be obtained through online courses.
(3) A list of approved courses, including TBCE Required Courses, is available on the board's website, www.tbce.state.tx.us, as provided in §73.7(f) of this title . The board will also provide notice of a TBCE Course in its newsletter.
[
(4)
Two hours of continuing
education to be presented by the board may be given at the following
venues/locations:]
[
(A)
Texas Chiropractic Association - Midwinter;]
[
(B)
Texas Chiropractic Association Convention;]
[
(C)
Chiropractic Society of Texas Annual Convention;]
[
(D)
Parker College of Chiropractic Homecoming;]
[
(E)
Texas Chiropractic College Homecoming;]
[
(F)
Online at www.tbce.state.tx.us;]
[
(G)
TBCE Headquarters in Austin, TX (check website for details)]
(4)
[
(5)
] A licensee who is unable
to travel for the purpose of attending a continuing education course
or seminar due to a mental or physical illness or disability may satisfy
the board's continuing education requirements by completing 16 hours
of approved continuing education courses online. Video courses will
no longer qualify for credit.
(A) If the licensee is unable to take an online course, the licensee must submit a request for special accommodations to complete their continuing education requirements.
(B) In order for an online course to be accepted by the board, a licensee must submit a letter from a licensed doctor of chiropractic, medicine, or osteopathy who is not associated with the licensee in any manner. In the letter, the doctor must state the nature of the illness or disability and certify that the licensee was ill or disabled, and unable to travel for the purpose of obtaining continuing education hours due to the illness or disability.
(C) A licensee is required to submit a new certificate for each year an exemption is sought. An untrue certification submitted to the board shall subject the licensee to disciplinary action as authorized by the Chiropractic Act, Occupations Code § 201.501 and § 201.502.
(D) The six hour limit provided in subsection (b)(2) of this section for online courses does not apply to a licensee who submits a certification under this subsection.
(c) Verification.
(1) At the request of the Board, a licensee shall submit, to the board, written verification from each sponsor, of the licensee's attendance at and completion of each continuing education course which is used in the fulfillment of the required hours for all years requested.
(2) A licensee submitting hours as a National Boards examiner must submit written verification of the licensee's participation from the National Boards, on National Boards letterhead. The verification must include the licensee's name, board license number, and the date, time, and place of each examination attended by the licensee as an examiner.
(3) Failure to submit verification as required by paragraph (1) of this subsection shall be considered the same as failing to meet the continuing education requirements of subsection (b) of this section.
(d) Qualifying exemption. The following persons are exempt from the requirements of subsection (b) of this section:
(1) a licensee who holds an inactive Texas license. However, if at any time during the reporting year for which such exemption applies such person desires to practice chiropractic, such person shall not be entitled to practice chiropractic in Texas until all required hours of continuing education credits are obtained and the executive director has been notified of completion of such continuing education requirements;
(2) a licensee who served in the regular armed forces of the United States during part of the 12 months immediately preceding the annual license renewal date;
(3) a licensee who submits proof satisfactory to the board that the licensee suffered a mental or physical illness or disability which prevented the licensee from complying with the requirements of this section during the 12 months immediately preceding the annual license renewal date; or
(4) a licensee who is first licensed within the 12 months immediately preceding the annual renewal date.
§73.7.Approved Continuing Education Courses.
(a) Approved sponsors. The board will approve courses sponsored only by a chiropractic college fully credited through the Council on Chiropractic Education or a statewide, national or international professional association, upon application to the board on a form prescribed by the board. Application forms are available from the board.
(b) Application. A separate application must be submitted for each course and must include the course title, subject and description, the number of credit hours, the date, time and location of the course, and the names and backgrounds of speakers or instructors, the method of instruction, the name, address and telephone number of the course coordinator, and the signature of an authorized representative of the sponsor. Each continuing education course shall be approved for one calendar year only. The number of hours of credit to be earned at a course may not be changed after an application has been submitted to the board.
(c) Application deadline and fee. A sponsor may submit an application no later than 60 days prior to the date of the course, along with a nonrefundable application fee of $25 for each course. For the purpose of this subsection, where the same course is held in multiple cities or towns, with different speakers, each location is considered a separate course. If a continuing education program consists of separate sessions or modules, on different topics and on different dates, each session or module is considered a separate course.
(d) A sponsor shall certify on the application that:
(1) all course offered by the sponsor for which board approval is requested will comply with the criteria in this section; and
(2) the sponsor will be responsible for verifying attendance at each course and will provide a certificate of attendance as set forth in subsection (i) of this section.
(e) Rejection. The board will notify, in writing, a sponsor of any rejection.
(f) Approved list of courses. The board will maintain a list of approved courses on their website at www.tbce.state.tx.us for compliance with §73.3 of this title (relating to Continuing Education).
(g) Criteria for continuing education courses. In order for the board to approve a course, the course must:
(1) be presented by one or more speakers or instructors who demonstrate, through a vitae or resume, knowledge, training and expertise in the topic to be covered;
(2) have significant educational or practical content to maintain appropriate levels of competency; and
(3) be on a topic from one or more of the following categories:
(A) general or spinal anatomy;
(B) neuro-muscular-skeletal diagnosis;
(C) radiology or radiographic interpretation;
(D) pathology;
(E) public health;
(F) chiropractic adjusting techniques;
(G) chiropractic philosophy;
(H) risk management;
(I) physiology;
(J) microbiology;
(K) hygiene and sanitation;
(L) biochemistry;
(M) neurology;
(N) orthopedics;
(O) jurisprudence;
(P) nutrition;
(Q) adjunctive or supportive therapy;
(R) boundary (sexual) issues;
(S) insurance reporting procedures;
(T) chiropractic research;
(U) HIV prevention and education;
(V) acupuncture;
(W) Ethics ; or
(X) recordkeeping, documentation, and coding.
(Y) other public health issues identified by the board as provided under §73.3(b)(2)(A)(iv) of this title.
(h) The board will not approve any course on practice management or accept credit for such course in satisfaction of the board's continuing education requirement for licensees.
(i) Sponsor responsibilities. A sponsor of an approved course shall:
(1) notify the board in writing prior to any change in course location, date, or cancellation;
(2) provide a roster of participants who attend the course which contains, at a minimum, each participant's name and current license number if a chiropractor, course number, and number of hours earned by each participant. This roster shall be submitted to the Board no later than 30 days after course completion;
(3) provide each participant in a course with a certificate of attendance. The certificate shall contain the name of the sponsor, the name of the participant, the title of the course, the date and place of the course, the amount and type of credit earned, the course number and the signature of the sponsor's authorized representative;
(4) assure that no licensee receives continuing education credit for time not actually spent attending the course. If any participant's absence exceeds ten minutes during any one hour period, credit for that hour shall be forfeited and noted in the sponsor's attendance roster that is submitted to the Board. Furthermore, the sponsor is responsible for seeing that each person in attendance is in place at the start of each course period;
(5) provide the activity rosters and any other additional information about a course to the board upon request;
(6) shall use the course title listed on the sponsor's application, and approved by the board, to advertise the course; and
(7) retain for a period of three years, for each approved course, documentation of compliance with this section, including:
(A) the curriculum presented;
(B) the names and vitae for each speaker;
(C) the attendance roles; and
(D) credit hours earned.
(j) The board may evaluate an approved sponsor or course at any time to ensure compliance with the requirement of this section. Upon the failure of a sponsor or course to comply with the requirements of this section, the board, at its discretion, may revoke the sponsor or the course's approved status.
[
(k)
The board, at its
discretion, may authorize the presentation of a board required course
at the annual seminars listed in § 73.3 of this title (relating
to Continuing Education). The board will approve the subject, content
and presenter of the course. Such course generally will cover topics
of timely and educational interest to the chiropractic profession.
The sponsor of a seminar shall designate the course as board required
on its seminar agenda and other materials as follows: "TBCE Required
Course." This designation may only be used for a course for which
the sponsor has received written notice from the executive director
that the board has approved the course for such designation.]
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 7, 2008.
TRD-200800067
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 305-6901
The Texas Board of Chiropractic Examiners (Board) proposes an amendment to §75.7 (Required Fees and Charges) to adopt two new fees: a new $750 fee for an application for the recognition of a chiropractic specialty and an annual $8 fee for a newsletter to be sent to licensees. The Board also proposes to update the graphic contained in §75.7(a), which lists agency fees, with the only fee changes being the addition of the two new fees referenced above.
The action is proposed to cover the costs associated with reviewing applications for the recognition of chiropractic specialties as recently adopted in §71.13 and to cover the costs associated with producing and mailing a newsletter to be sent primarily to licensees of the Board.
The Board considered whether it could provide these services without the adoption of additional fees but determined that the fees are necessary for the Board to cover its costs as required by the Texas Legislature. The Board also considered publishing a newsletter in electronic form only but determined that an electronic only version would also have costs to produce and would not reach a sufficient number of licensees.
Glenn Parker, Executive Director, has determined that for the first five-year period the amended rule is in effect there will be no fiscal impact for local government as a result of enforcing or administering the rule. There will be no costs to the general public. There will be no costs to small or micro-businesses other than to licensees of the Board or to professional groups that wish to apply for the recognition of a chiropractic specialty.
Mr. Parker has determined that the financial impact on state revenues or expenditures will be an increase of approximately $36,000 to $40,000 per fiscal year in both revenues and expenditures for each fiscal year the fees are in effect.
Mr. Parker has determined that, for the first five-year period the amended rule is in effect, the public benefit of the fees will be to allow the Board to recover costs associated with reviewing applications for the recognition of chiropractic specialties and producing a newsletter. The recognition of valid chiropractic specialties will allow the public to better evaluate the qualifications of certain doctors of chiropractic in Texas. The newsletter will allow doctors of chiropractic in Texas to be better informed on current statutes and rules under which they practice and to be better aware of regulatory issues of concern to the Board and its licensees.
Comments on the proposed amendments may be submitted to Ms. Mary Feys, Texas Board of Chiropractic Examiners, 333 Guadalupe St., Tower III, Suite 3-825, Austin, Texas 78701 or via e-mail to mary.feys@tbce.state.tx.us or via facsimile to (512) 305-6705 no later than 30 days from the date that these proposed amendments are published in the Texas Register.
The amendments are proposed under Texas Occupations Code §201.152, relating to rules, which authorizes the Board to adopt rules necessary to regulate the practice of chiropractic and §201.356 relating to continuing education which requires the Board to adopt rules concerning continuing education and allows the Board to require licensees to attend continuing education classes specified by the Board.
No other code, article, or statute is affected by the proposed amendment.
§75.7.Required Fees and Changes.
(a) Current fees required by the board are as follows:
(b) - (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 7, 2008.
TRD-200800064
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 305-6901
Chapter 104. CONTINUING EDUCATION
The Texas State Board of Dental Examiners (Board) proposes amendments to §104.1, concerning Continuing Education Requirements. The amendment allows active Board members who serve as Examiners for the Western Regional Examining Board (WREB) to earn up to six hours of continuing education credit per year from WREB's calibration and standardization exercise. Additionally, the rule allows licensees who reside outside the United States to complete their continuing education requirements through self-study, allows licensees to count some risk-management continuing education towards their annual hours required for licensure, allows licensees to count up to six hours of self-study towards their annual hours, and prohibits licensees from counting finance coursework towards the annual hours required for licensure. Some paragraphs were re-ordered for clarification and ease of reference.
Sherri Sanders Meek, Executive Director, has determined that for each year of the first five-years the amended section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section.
The administration and enforcement of the amended section is expected to benefit the public by ensuring that practicing dentists have received the appropriate level and type of training and continuing education to meet the current standard of care in the practice of dentistry.
There is no anticipated impact on large, small or micro-businesses.
There is no anticipated economic cost to persons as a result of enforcing or administering the amended section.
Comments on the proposal may be submitted to Sherri Sanders Meek, Executive Director, Texas State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701, (512) 463-6400. To be considered, all written comments must be received by the Texas State Board of Dental Examiners no later than 30 days from the date that the proposal is published in the Texas Register.
This amendments are proposed under Texas Government Code, §§2001.021, et seq., Texas Civil Statutes; and the Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposed amendments affect Title 3, Subtitle D of the Texas Occupations Code and Title 22, Chapter 101 - 125 of the Texas Administrative Code.
§104.1.Requirement.
As a prerequisite to the annual renewal of a dental or dental hygiene license, proof of completion of 12 hours of acceptable continuing education is required.
(1) Each licensee shall select and participate in the
continuing education courses endorsed by the providers identified
in §104.2 of this title (relating to [
Continuing Education
]
Providers). A licensee
, other than a licensee who resides outside
of the United States,
who is unable to meet education course
requirements may request that alternative courses or procedures be
approved by the
Licensing
[
Continuing Education
]
Committee.
(A) Such requests must be in writing and submitted
to and approved by the
Licensing
[
Continuing Education
]
Committee prior to the expiration of the annual period for which the
alternative is being requested.
(B) A licensee must provide supporting documentation detailing the reason why the continuing education requirements set forth in this section cannot be met and must submit a proposal for alternative education procedures.
(C) Acceptable causes may include [
residence outside
the United States,
] unanticipated financial or medical hardships[
,
] or other extraordinary circumstances that are documented.
(D) A licensee who resides outside of the United States may, without prior approval of the Licensing Committee, complete all required hours of coursework by self-study.
(i) These self-study hours must be provided by those entities cited in §104.2 of this title. Examples of self-study courses include correspondence courses, video courses, audio courses, and reading courses.
(ii) Upon being audited for continuing education compliance, a licensee who submits self-study hours under this subsection must be able to demonstrate residence outside of the United States for all periods of time for which self-study hours were submitted.
(E) Should a request to the Licensing Committee be denied, the licensee must complete the requirements of this section.
[(D) Should the request be denied, the licensee must complete the requirements of this section.]
(2) Effective September 1, 2008, the following conditions and restrictions shall apply to coursework submitted for renewal purposes:
(A) At least 8 hours of coursework must be either technical or scientific as related to clinical care. The terms "technical" and "scientific" as applied to continuing education shall mean that courses have significant intellectual or practical content and are designed to directly enhance the practitioner's knowledge and skill in providing clinical care to the individual patient.
(B) Up to 4 hours of coursework may be in risk-management courses. Acceptable "risk management" courses include courses in risk management, record-keeping, and ethics.
(C) Up to 6 hours of coursework may be self-study. These self-study hours must be provided by those entities cited in §104.2 of this title. Examples of self-study courses include correspondence courses, video courses, audio courses, and reading courses.
(D) Hours of coursework in the standards of the Occupational Safety and Health Administration (OSHA) or in cardiopulmonary resuscitation (CPR) may not be considered in the 12-hour requirement.
(E) Hours of coursework in practice finance may not be considered in the 12-hour requirement.
[(2) Aside from courses taken to satisfy the jurisprudence requirement of §104.1(3) of this title, all coursework must be either technical or scientific as related to clinical care. The terms "technical" and "scientific" as applied to continuing education shall mean that courses have significant intellectual or practical content and are designed to directly enhance the practitioner's knowledge and skill in providing clinical care to the individual patient.]
(3) - (4) (No change.)
(5) Examiners for the Western Regional Examining Board (WREB) will be allowed credit for no more than 6 hours annually, obtained from WREB's calibration and standardization exercise.
(6) Any individual or entity may petition one of the providers listed in §104.2 of this title to offer continuing education.
(7) Providers cited in §104.2 of this title will approve individual courses and/or instructors.
(8) A consultant for the SBDE who is also a licensee of the SBDE is eligible to receive up to 6 hours of continuing education credit annually to apply towards the annual renewal continuing education requirement under this section.
(A) Continuing education credit hours shall be awarded for the issuance of an expert opinion based upon the review of SBDE cases and for providing assistance to the SBDE in the investigation and prosecution of cases involving violations of the Dental Practice Act and/or the Rules of the SBDE.
(B) The amount of continuing education credit hours to be granted for each consultant task performed shall be determined by the Executive Director, Division Director or manager that authorizes the consultant task to be performed. The award of continuing education credit shall be confirmed in writing and based upon a reasonable assessment of the time required to complete the task.
[(5) Hours of coursework in the standards of the Occupational Safety and Health Administration (OSHA) or in cardiopulmonary resuscitation (CPR) may not be considered in the 12-hour requirement.]
[(6) No more than 4 hours in any accumulation of coursework submitted for renewal purposes may be in self-study. These self-study hours must be provided by those entities cited in §104.2 of this title (relating to Providers). Examples of self-study courses include correspondence courses, video courses, audio courses, and reading courses.]
[(7) No more than 4 hours in any accumulation of coursework submitted for renewal purposes may be interactive computerized courses. These interactive computerized courses must be provided by those entities cited in §104.2 of this title. Examples of interactive computer courses include those that involve interactive dialogue through electronic linkage with an instructor in which manipulation of text or data by the licensee occurs.]
[(8) Examiners for the Western Regional Examining Board (WREB) will be allowed credit for no more than 6 hours annually, obtained from WREB's calibration and standardization exercise. This provision shall not apply to active board members.]
[(9) Any individual or entity may petition one of the providers listed in §104.2 of this title to offer continuing education.]
[(10) Providers cited in §104.2 of this title will approve individual courses and/or instructors.]
[(11) A consultant for the SBDE who is also a licensee of the SBDE is eligible to receive up to 6 hours of continuing education credit annually to apply towards the annual renewal continuing education requirement under this section.]
[(A) Continuing education credit hours shall be awarded for the issuance of an expert opinion based upon the review of SBDE cases and for providing assistance to the SBDE in the investigation and prosecution of cases involving violations of the Dental Practice Act and/or the Rules of the SBDE.]
[(B) The amount of continuing education credit hours to be granted for each consultant task performed shall be determined by the Executive Director, Division Director or manager that authorizes the consultant task to be performed. The award of continuing education credit shall be confirmed in writing and based upon a reasonable assessment of the time required to complete the task.]
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, 2008.
TRD-200800001
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 475-0972
Chapter 153. RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT
The Texas Appraiser Licensing and Certification Board proposes amendments to §153.24, relating to processing a complaint. The amendments are being made to clarify the procedures incident to processing and investigating complaints filed with the Texas Appraiser Licensing and Certification Board.
Troy Beaulieu, Attorney for the Texas Appraiser Licensing and Certification Board, has determined that for the first five-year period the amended section is in effect there will be no fiscal implications for the state as a result of enforcing or administering the section. There is no anticipated impact on local or state employment as a result of implementing the amended section.
Mr. Beaulieu also has determined that for each year of the first five years the amendments are in effect, the anticipated public benefit as a result of these amendments is that consumers will have a clearly articulated and well defined outline of the processes that occur upon the filing of a complaint with this agency, as well as the disciplinary consequences associated with different types of violations. There will be no effect on small businesses. There is no anticipated cost to persons who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Troy Beaulieu, Attorney for the Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under the Texas Appraiser Licensing and Certification Act, Subchapter D, Board Powers and Duties (Texas Occupations Code, Chapter 1103), which provides the board with authority to adopt rules under §1103.151, Rules Relating to Certification and Licenses and §1103.154, Rules Relating to Professional Conduct.
No other code, article, or statute is affected by this proposal.
§153.24.Processing a Complaint.
(a) - (d) (No change.)
(e) Pursuant to TEX. OCC. CODE §1103.101(b) the Commissioner is delegated those responsibilities with respect to the enforcement processes of the Board set forth in this chapter.
(f) A complaint must be in writing and must be signed by the complainant. The staff may initiate a complaint.
(g) Upon receipt of a complaint, the staff will:
(1) Send written acknowledgement of receipt to the complainant;
(2) Assign the complaint a case number and enter it onto a complaint tracking system which shall provide all necessary documentation to assure tracking of the handling and disposition of the complaint and the reporting of accurate and verifiable performance measures results;
(3) Make a preliminary determination whether the complaint is within the Board's jurisdiction and, if it is not, initiate the necessary correspondence to advise the complainant and dismiss the case for lack of jurisdiction; if there is jurisdiction the staff will continue as follows:
(A) Review the case and, as deemed necessary and appropriate, recommend to the Commissioner that the matter be investigated covertly. If it is not lawful and appropriate to conduct a covert investigation, the staff will continue as follows;
(B) If the complaint involves appraisal activity, transmit a letter to the person who is the subject of the complaint, referred to herein as the "respondent," requiring a response meeting the below-listed criteria:
(i) The respondent shall, within fourteen (14) calendar days, send a signed letter transmitting a narrative response to the complaint, addressing each and every element thereof and including numbered references to support in the respondent's work file which is to be marked with corresponding tabs. The fourteen (14) day period may be extended for good cause. Any request for extension must be in writing. Email is acceptable. The letter transmitting the response must contain the following statement: EXCEPT AS SPECIFICALLY SET FORTH HEREIN THE COPY OF EACH AND EVERY APPRAISAL WORK FILE ACCOMPANYING THIS RESPONSE IS A TRUE AND CORRECT COPY OF THE ACTUAL WORKFILE, AND NOTHING HAS BEEN ADDED TO OR REMOVED FROM THIS WORKFILE OR ALTERED AFTER PLACEMENT IN THE WORK FILE. (LIST ANY EXCEPTIONS AND IDENTIFY THEM IN THE WORKFILE AS EXCEPTIONS, USING CORRESPONDING TABS.)
(ii) The response may also address other matters not raised in the complaint that the respondent believes likely to be raised by the staff and may be supported by documentation contained in the work file, appropriately identified and tabbed.
(iii) Any supporting documentation that is provided that was not in the work file must be conspicuously labeled as such and kept separate from the work file.
(iv) The response must provide a list of any and all persons known to the respondent to have actual knowledge of any of the matters made the subject of the complaint and, if in the respondent's possession, contact information.
(4) Staff shall review the response, including all supporting materials provided and, no later than 60 days after receipt, contact the respondent to discuss the matter. In this discussion, which may be in person or by telephone, the assigned staff person conducting the investigation will advise the respondent as to:
(A) Their preliminary views, based on a review of the complaint, the response, and all supporting documentation provided, as to the merits of the complaint;
(B) Their preliminary views as to any other violations of the Act, the Rules, or USPAP identified in this review process; and
(C) Unless they believe that additional investigative work is warranted, what they would view as an appropriate resolution.
(5) Following this conversation, if the respondent believes that a face-to-face meeting to discuss the matter further would facilitate resolution, the staff person may agree to such a meeting.
(6) Any general agreement in principle as to resolution may be reduced to a proposed form of consent order or consent agreement and, if the staff attorney and the Commissioner concur, may be presented to the Board for approval, denial, or a request for changes and re-presentation.
(7) If agreement as to resolution cannot be reached, the staff shall proceed with any necessary investigation and the preparation and prosecution of a contested case before the State Office of Administrative Hearings subject to TEX. GOV'T. CODE, Chapter 2001 and TEX. OCC. CODE, Chapter 1103.
(h) In determining the proper disposition of a complaint, staff shall follow the following guidelines:
(1) In addition to the recommended actions provided for above, staff may recommend any or all of the following:
(A) Reducing or increasing the recommended penalty based on documented factors that support the deviation;
(B) Probating all or a portion of a sanction or administrative penalty for a period not to exceed five (5) years;
(C) Requiring additional reporting requirements; and/or
(D) Such other recommendations, with documented support, as will achieve the purposes of the Act, the Rules, and/or USPAP.
(2) Any and all administrative sanctions provided for above are in addition to an agreement or order to comply fully with applicable laws, rules, and regulations.
(3) If after a review of the file and completion of any investigation deemed necessary, the staff concludes that no regulatory purposes would be served by further action, it shall recommend to the Board that the complaint be dismissed without further action.
(i) Whenever staff becomes aware of facts or circumstances that indicate a reasonable likelihood that mortgage fraud may have been committed with the involvement or participation of a licensee, staff will coordinate the handling of that matter in accordance with applicable laws and rules, including the rules of the Mortgage Fraud Task Force under the auspices of the Office of the Attorney General, and make any appropriate referrals and/or reports to prosecutorial authorities or other oversight authorities.
(j) All final orders must be approved by the Board.
(k) The reviews and investigations provided for in these rules are of a regulatory nature and do not constitute engaging in appraisal activity subject to USPAP. With the Commissioner's or the Board's prior approval, staff may perform or engage others to perform appraisal activity for the Board as needed to carry out an effective regulatory oversight and enforcement program.
(l) A Peer Investigative Committee that has been appointed in accordance with TEX. OCC. CODE §1103.453 and it shall receive such compiled complaint files as the Chair may refer to them, review them, and make a report to staff as to:
(1) The general facts presented;
(2) Whether the allegations in the complaint are believed to be true or false and, if believed true, provide a statement as to which documents in the complaint file support that view;
(3) Whether the review indicated any other violations of USPAP that should be added to the complaint and, if so, a statement as to which documents in the complaint file support that view; and
(4) If it is believed that additional investigative work needs to be done, a statement as to what additional investigation is believed to be warranted.
(m) The foregoing processes are deemed to be a regulatory review and are not deemed to be appraisal activity. Staff may rely on the report as setting forth the findings of fact necessary to support any appropriate conclusions of law and determination as to an appropriate regulatory resolution.
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, 2008.
TRD-200800015
Troy Beaulieu
Attorney
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 465-3900
Chapter 681. PROFESSIONAL COUNSELORS
The Texas State Board of Examiners of Professional Counselors (board) proposes amendments to §§681.1 - 681.16, 681.31, 681.41 - 681.52, 681.71 - 681.73, 681.81 - 681.83, 681.91 - 681.93, 681.101, 681.103, 681.111 - 681.113, 681.121, 681.123 - 681.127, 681.141, 681.142, 681.144 - 681.147, 681.161, 681.162, 681.164 - 681.171, 681.181, 681.182, 681.184, 681.201 - 681.204, the repeal of §§681.102, 681.122, 681.143, and 681.183, and new §681.102, concerning the licensing and regulation of professional counselors.
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 681.1 - 681.16, 681.31, 681.41 - 681.52, 681.71 - 681.73, 681.81 - 681.83, 681.91 - 681.93, 681.101 - 681.103, 681.111 - 681.113, 681.121 - 681.127, 681.141 - 681.147, 681.161, 681.162, 681.164 - 681.171, 681.181 - 681.184, 681.201 - 681.204 have been reviewed and the board has determined that the reasons for adopting the sections continue to exist in that rules concerning the licensing and regulation of professional counselors are still needed; however, the rules will be amended and proposed with revisions as described in this preamble. The proposed repeals and amended sections are the result of the comprehensive rule review undertaken by the board and the board's staff.
In general, each section was reviewed and proposed for revisions in order to ensure appropriate subchapter, section, and paragraph organization; to ensure clarity; to improve spelling, grammar, and punctuation; to ensure that the rules reflect current legal and policy considerations; to ensure accuracy of legal citations; to eliminate unnecessary catch-titles; to eliminate the repetitive use of long titles for terms that have been assigned short titles by definition; to delete repetitive, obsolete, unenforceable, or unnecessary language; to improve draftsmanship; and to make the rules more accessible, understandable, and usable.
SECTION-BY-SECTION SUMMARY
In §681.2(6), the definition of "authorized representative" is deleted and redefined in §681.127. Section 681.2(7) - (14) is renumbered due to the deletion of §681.2(6). Section 681.2(8), Counseling-related field is amended so the term counseling and guidance can be in line with the degrees offered at universities in Texas and to add dance therapy as a non-counseling related degree.
Section 681.3 is amended for clarity.
Section 681.4 is amended to require the board to transact business only when a quorum is present.
Sections 681.5 - 681.9 are amended to reflect clarification and update of language.
Section 681.10 is amended to correct the name of the governing agency.
Section 681.11 is amended to revise reimbursement expenses.
Section 681.12 is amended for clarity.
Section 681.13 is amended to expand on non-discriminatory issues.
Section 681.14 amends the rule from biennial to two year for the inactive status fee for consistency throughout the rules.
Section 681.15(a) amends the time periods in which a license should be approved or denied. Section 681.15(c) and §681.16 reflect clarification and update of language.
Section 681.31(14) is edited to acknowledge that the list of expressive therapies is not inclusive.
In §681.41(e), the rule is edited to state that regardless of setting, the counseling treatment must be in the context of a professional relationship. Section 681.41(g) is edited to allow counseling by use of technological means of communication. Section 681.41(j) is edited to not allow a licensee to promote the licensee's personal business activities to the client. Section 681.41(k) is amended to separate a licensee setting professional boundaries with dual relationships. Section 681.41(l) is amended to clarify a dual relationship and when it could be considered detrimental to the client. In §681.41, subsections (l) - (z) are relettered for conformity. Section 681.41(m) is edited to require a licensee to request a release from the client in order to discuss the client with the other counselor when the licensee discovers that the client is seeing another counselor. Section 681.41(n) reflects clarification and update of language. Section 681.41(p) is proposed to clarify what type of records needs to be kept. Section 681.41(q) is amended to shorten the time period a licensee must maintain client files after the last contact with the client. Section 681.41(s)(4) is amended for clarity. Section 681.41(t) is amended and separated into two separate rules for clarity. Section 681.41(u) is added to require the licensee to facilitate the transfer of a client to appropriate care upon termination of a relationship. Section 681.41(w) is amended for clarity. Section 681.41(x) is amended to require a licensee to report the unlicensed practice of counseling to the board. Section 681.41(y) is proposed to add that a licensee shall not participate in any way in the falsification for renewal of a license. Section 681.41(aa) is amended to clarify that the licensee should establish a plan of custody and control of the client's mental health record and the licensee should inform each new client of the plan.
Section 681.42(a) is edited to define the term Mental Health Service Provider. Section 681.42(b)(4) is amended to add that sexual contact can occur more than five years after the termination of the client relationship will not be deemed a violation if the conduct is consensual if certain conditions are met. Section 681.42(c) is deleted and included in §681.42(b). Section 681.42(c) - (g) is relettered for clarity. Section 681.42(g) amends the time period required to notify the board and prosecuting attorney of abuse of a client.
Section 681.43 and §681.44 reflect clarification and update of language.
Section 681.45(d)(1) corrects the title to Texas Family Code, Chapter 261.
Section 681.46(g) is amended for clarity and to state that disciplinary action may be taken if a complaint is filed in bad faith.
Section 681.47 is amended to remove the word allowable.
Section 681.48 in amended to remove the term third party.
Section 681.49 is amended to read the licensee shall clearly state the licensee's licensure status on all advertisements or announcements of counseling treatment interventions.
Section 681.50 is amended to change the term subject to participant.
Section 681.51(b) is added to allow the board discretion on issuing a license should the applicant have conduct prior to application that would be a violation of the code of ethics if the person was a licensee.
Section 681.52(a) is amended for clarity.
Section 681.71 removed the statement that "fees associated with the application process are not refundable."
Section 681.72(d) is amended to state hours without a supervisor agreement form on file with the board may not be accepted by the board. Section 681.72(f) is amended for clarity.
Section 681.73(d) is amended to state what exams are required for licensure.
Section 681.81(b) reflects clarification and update of language.
Section 681.82 is amended to remove the word "professional."
Section 681.83 reflects clarification and update of language.
Section 681.91(b) is amended to clarify the board is referring to the practice of counseling in this state. Section 681.91(c) is amended to add the word counseling to the rule. Section 681.91(e) is amended to specify the length of time an initial temporary license is valid. Section 681.91(f) is amended to no longer allow a 36-month extension but allow the intern to request a one-year extension from the board. Section 681.91(h)(2) is amended to specify the name of the required examination. Section 681.91(k) is added to explain what applicants coming from another state are required to submit to the board office for licensure.
Section 681.92(a) is amended for clarity. Section 681.92(b) is amended to state how many hours and intern can earn via technological means of communication. Section 681.92(c) amends the rule to require an "Intern" to gain the require hours and not an "applicant." Section 681.92(f) is deleted as obsolete. Section 681.92(g) is modified to allow 2 interns in a session to be considered individual supervision and three or more to be a group. Section 681.92, subsections (h) - (i) are relettered for clarity. Section 681.92(j) reflects clarification and update of language. Section 681.92(l) is deleted as unnecessary. Section 681.92(k) reflects clarification and update of language.
Section 681.93(d) is amended to reflect changes §681.83(g) concerning supervisor requirements. Section 681.93(e)(6) is added to require the supervisor to submit the supervised experience documentation form in a timely manner. Section 681.93(h) reflects clarification and update of language. Section 681.93(j) is added to allow for the supervisor status to be denied, revoked, or suspended.
New §681.102 concerns the notice of results for examinations.
Section 681.101 and §681.103 reflect clarification and update of language.
Section 681.111(a) is revised to clarify the term an initial license is issued for. Section 681.111(b) is revised to designate the board chair as the only signature on the regular and temporary license certificate. Section 681.111(c) is revised to remove the term art therapy specialty. Section 681.111(c) - (g) is relettered for conformity.
Section 681.112(a)(2) is revised to designate what is required for an applicant to submit for licensure to the board office. Section 681.112(a)(4) is deleted requiring an applicant for a provisional license to submit a letter of sponsorship from a regular license holder. Section 681.112(b) is deleted as unnecessary. Section 681.112(c) is deleted and reworded in §681.112(b). Section 681.112(b) and (e) reflects clarification and update of language. Section 681.112(c) reflect clarification and update of language.
Section 681.113 reflects clarification and update of language.
Section 681.121 amends the rule from biennial to two years for consistency throughout the rules.
Section 681.123(a) is amended to state that the board will send a renewal notice 30 days prior to expiration to the licensee last known address. Section 681.123(b) is amended to require the licensee to renew their license on time whether a renewal notice is received or not. Section 681.123(c) is amended to state that a license will not be renewed until all renewal information is received in the board office. Section 681.123(d) and (e) reflects clarification and update of language.
Section 681.124(b) is modified to allow the late renewal of a license with a penalty if the license is not renewed by the expiration date but within one year. Section 681.124(c) reflects clarification and update of language. Section 681.124(d) is amended to state that the continuing education must be submitted before the license will be renewed.
Section 681.125(e) is amended to require the Jurisprudence exam and continuing education earned while on inactive status. Section 681.125(f) is amended to clarify the date the inactive status will expire. Section 681.125(g) reflects clarification and update of language Section 681.125(h) amends the rule from biennial to two years for consistency throughout the rules.
Section 681.126(c) reflects clarification and update of language. Section 681.126(d) is added to state that if a licensee request retired status while a complaint is pending, it will be treated as a surrender of the license.
Section 681.127(a) is amended to define "designated representative." Section 681.127(b)(1) is amended to state what the written request is required to contain. Section 681.127(b)(2) is deleted as unnecessary. Section 681.127(b)(2) - (6) is renumbered for conformity. Section 681.127(b)(2) - (6) changes "authorized" to "designated" to match §681.127(a).
Section 681.141(a) reflects clarification and update of language. Section 681.141(c) is amended to require 4 hours of ethics every two years with the Texas Jurisprudence exam counting as one hour of ethics. Section 681.141(e) is modified to state the Texas Jurisprudence exam is required each renewal period. Section 681.141(f) is added to require three hours of continuing education in supervision practices for all board approved supervisors as part of their 24 hours of continuing education each renewal period.
Section 681.142(a) - (b) reflect clarification and update of language. Section 681.142(c) is added to require that continuing education courses must be within the required contend areas or directly related to the continued development of the profession of counseling skills.
Section 681.144(a) is separated into two subsections (a) and (b) and modified for clarity. Section 681.144(b) is added as a separate rule from §681.144(a) for clarity. Section 681.144(c) - (i) is relettered based on the new subsection (b) and modified for clarity.
Section 681.145 is amended to reflect the two-year renewal cycle and 24 hours of continuing education requirement.
Section 681.146 reflects the changes to the way a licensee will report continuing education when selected for audit.
Section 681.147 reflects clarification and update of language.
Section 681.161(a) is amended to require a complaint to be filed in writing to the board office. Section 681.161(j) is amended to require the board to periodically send out pending status letters of open complaints. Section 681.161(k) is deleted as unnecessary.
Section 681.162(a) is amended to add administrative penalties to disciplinary actions. Section 681.162(b) and (c) is amended to remove requiring the notice to be mailed by certified mail.
Section 681.164 reflects clarification and update of language.
Section 681.165 revises the title of the rule.
Section 681.166 is amended to allow the Executive Director to set time limits for testimony during an informal conference and not require that the complainant or client be present during the informal conference. Section 681.166(f) is deleted stating the complainant may be informed of the informal conference. Section 681.166(f) - (v) is relettered for conformity. Section 681.166(f) is amended to require at least one member of the complaints committee to be present at the informal conference. Section 681.166(k) is amended to allow the complaints committee member or the executive director to exclude anyone from all or part of the informal conference.
Section 681.167(a) is amended for clarity. Section 681.167(b) is deleted as unnecessary.
Section 681.168(d), is modified to state that if a license is surrendered during the course of an investigation, the surrender is considered a final disciplinary action and may be considered for denial upon reapplication for licensure.
Section 681.169 is amended to modify the section title and reference the provisions of Senate Bill 228 (2007, 80th Legislature) relating to the denial of license renewal of a license holder who has failed to pay child support or failed to comply with the terms of an order providing for the possession of or access to a child in new subsection (i).
Section 681.170(b) is modified for clarity
Section 681.171(a) is modified to revise the title of the rule.
Section 681.181 is amended to remove the reference to Texas, as it is defined in §681.2(3) definitions, of this code.
Section 681.182(b) - (d) is amended to remove the reference to Texas, as it is defined in §681.2(3) definitions, of this code.
Section 681.183 is deleted as repetitive.
Section 681.184(b) is amended to refer to the board and not department for final orders.
Section 681.201 is amended to remove the reference to Texas, as it is defined in §681.2(3) definitions, of this code.
Section 681.202 reflect clarification and update of language
Section 681.203 title is changed for proper spelling.
Section 681.204 reflect clarification and update of language
Section 681.102, Grading; §681.122, Staggered Renewals; and §681.143 Process for Applying for Programs are repealed.
FISCAL NOTE
Bobbe Alexander, Executive Director, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed. There will be no decrease in general revenue each year of the first five years the sections are in effect.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Alexander has also determined that there will be no economic costs to small businesses or micro-businesses. This was determined by interpretation of the rules that these entities will not be required to alter their business practices to comply with the sections as proposed. The rules relate to individuals who are licensed as professional counselors, and there are 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. 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 counseling in Texas, which will protect and promote public health, safety, and welfare, and to ensure that statutory directives are carried out.
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 proposal does 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, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Bobbe Alexander, Executive Director, State Board of Examiners of Professional Counselors, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756 or by e-mail to lpc@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.
Subchapter A. THE BOARD
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.1.General.
This chapter implements
[
The purpose of this chapter is to implement
] the provisions of Texas Occupations
Code, Chapter 503 (the Licensed Professional Counselor Act), concerning
the licensing and regulation of professional counselors.
§681.2.Definitions.
The following words and terms,
as
[
when
]
used in this chapter, shall have the following meanings unless the
context clearly indicates otherwise.
(1) - (4) (No change.)
(5) Art therapy intern--An LPC or an LPC
Intern
[
intern
] holding a temporary license with an art therapy specialty
designation.
[(6) Authorized representative--An individual authorized to act on behalf of a licensee as evidenced by a written power of attorney; or the licensee's spouse.]
(6)
[
(7)
] Board--The Texas State Board of Examiners of Professional Counselors.
(7)
[
(8)
] Client--A person who
requests and receives counseling services from a licensee or who has
engaged in a therapeutic relationship with a licensee.
(8)
[
(9)
] Counseling-related
field--A mental health discipline utilizing human development, psychotherapeutic,
and mental health principles including, but not limited to, psychology,
psychiatry, social work, marriage and family therapy, and
counseling and guidance
[
guidance and counseling
]. Non-counseling
related
fields include, but are not limited to, sociology, education, administration,
dance therapy
and theology.
(9)
[
(10)
] Department--Department of State Health Services.
(10)
[
(11)
] Health care professional--A
licensee or any other person licensed, certified, or registered by
the state in a health related profession.
(11)
[
(12)
] License--A regular
license, regular license with art therapy specialty designation, provisional
license, or temporary license issued by the board.
(12)
[
(13)
] Licensee--A person
who holds a regular license, regular license with art therapy specialty
designation, provisional license, or temporary license.
(13)
[
(14)
] LPC
Intern
[
intern
]--A person who holds a temporary license to practice counseling.
(14)
[
(15)
] Recognized religious
practitioner--A rabbi, clergyman, or person of similar status who
is a member in good standing of and accountable to a denomination,
church, sect or religious organization legally recognized under the
Internal Revenue Code, §501(c)(3) and other individuals participating
with them in pastoral counseling if:
(A) the counseling activities are within the scope of the performance of their regular or specialized ministerial duties and are performed under the auspices of sponsorship of the legally recognized denomination, church, sect, religious organization or an integrated auxiliary of a church as defined in Federal Tax Regulations, 26 Code of Federal Regulations, §1.6033-2(g)(5)(I) (1982);
(B) the individual providing the service remains accountable to the established authority of that denomination, church, sect, religious organization or integrated auxiliary; and
(C) the person does not use the title of or hold himself or herself out as a professional counselor.
(15)
[
(16)
] Supervisor--A person
approved by the board as meeting the requirements set out in §681.93
of this title (relating to Supervisor Requirements), to supervise
an LPC
Intern
[
intern
].
§681.3.Meetings.
(a) The board
will
[
shall
] hold at least two regular meetings and additional meetings as necessary
during each fiscal year.
(b) The
chair
[
chairperson
] may call meetings after consultation with board members or by a majority
of members so voting at a regular meeting.
(c) (No change.)
§681.4.Transaction of Official Business.
(a) The board
shall
[
may
] transact
official business only when in a legally constituted meeting with
a quorum present. A quorum of the board necessary to conduct official
business is a majority of the members.
(b) - (c) (No change.)
§681.5.Agendas.
(a) The executive director
is
[
shall
be
] responsible for preparing and submitting an agenda to each
member of the board prior to each meeting which includes items requested
by members, items required by law, and other matters of board business
which have been approved for discussion by the
chair
[
chairperson
].
(b) (No change.)
§681.6.Minutes.
(a) The minutes of a board meeting are official only
if
[
when
] affixed with the original signatures of the
chair
[
chairperson
] and the executive director.
(b) - (c) (No change.)
§681.7.Elections.
(a) At the meeting held nearest to August 31 of each
year, the board shall elect a
vice-chair
[
vice-chairperson
].
(b) A vacancy which occurs in the office of
vice-chair
[
vice-chairperson
] may be filled at any regular meeting as required.
§681.8.Officers.
(a) The
chair
[
chairperson
] shall
preside at all meetings at which he or she is in attendance and perform
all duties prescribed by law or this chapter.
(b)
The
chair
[
chairperson
] is
authorized by the board to make day-to-day minor decisions regarding
board activities in order to facilitate the responsiveness and effectiveness
of the board.
(c) The
vice-chair
[
vice-chairperson
]
shall perform the duties of the
chair
[
chairperson
]
in case of the absence or disability of the
chair
[
chairperson
].
(d) In case the office of the
chair
[
chairperson
] becomes vacant, the
vice-chair
[
vice-chairperson
]
shall serve until a successor is appointed.
§681.9.Committees.
(a) The board or the
chair
[
chairperson
]
may establish committees deemed necessary to carry out board responsibilities.
(b) The
chair
[
chairperson
] shall appoint members of the board to serve on committees and shall designate a
chair
[
chairperson
] for each committee.
(c) (No change.)
(d) Committee
chairs
[
chairpersons
]
shall preside at all committee meetings and shall make regular reports
to the board.
(e) (No change.)
(f) Committees shall meet when called by the committee
chair
[
chairperson
] or when so directed by the board.
(g) (No change.)
§681.10.Executive Director.
(a) The executive director of the board shall be an
employee of the department appointed by the Commissioner of
the
Department of State Health Services
[
Health
], with the advice and consent of the board.
(b) - (f) (No change.)
§681.11.Reimbursement for Expenses.
[
(a)
]
A board member is entitled to per
diem and transportation expenses as provided by the General Appropriations Act.
[(b) Payment to members of per diem and transportation expenses shall be on official state vouchers which have been approved by the executive director.]
§681.12.Official Records of the Board.
(a) (No change.)
(b) When
a
[
any person's
] request
would be unreasonably disruptive to the ongoing business of the office
or when the safety of any record is at issue, physical access by inspection
may be denied and the requester will be provided the option of receiving
duplicate copies at the requester's cost.
(c)
Costs
[
Applicable costs
]
of duplication shall be paid by the requester at the time of or before
the duplicated records are sent or given to the requester. The charge
for copies shall be [
the same as
] set by the department
[
for copies
].
(d) (No change.)
§681.13.Impartiality and Non-discrimination.
(a) The board shall make decisions in the discharge
of its statutory authority without regard to any person's
age,
race,
religion,
ethnicity,
[
color,
] sex, disability,
national origin, or genetic information.
(b) (No change.)
(c) Applicants seeking accommodations under the Americans
with Disabilities Act shall inform the board
in advance and in writing
of any special accommodations needed [
in advance and in writing
].
§681.14.Licensing Fees.
(a) Licensing fees are as follows:
(1) - (5) (No change.)
(6)
2-year
[
biennual
] inactive status fee--$50;
(7) - (9) (No change.)
(b) - (f) (No change.)
§681.15.Processing Procedures.
(a) Time periods. The board shall comply with the following procedures in processing applications for a license and renewal of a regular license.
(1) (No change.)
(2) The following periods of time 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 time periods for denial end on the day notice of the proposed decision is mailed to the applicant. The time periods are as follows:
(A) (No change.)
(B) initial letter of approval for a license -
30
[
180
] working days; and
(C) letter of denial of a license -
30
[
180
] working days.
(3) (No change.)
(b) (No change.)
(c) Appeal. If a request for reimbursement under subsection
(b) of this section is denied by the executive director, the applicant
may appeal to the
chair
[
chairperson
] of the
board for a timely resolution of any dispute arising from a violation
of the time periods. The applicant shall give written notice to the
chair
[
chairperson
] at the address of the board that
he or she requests full reimbursement of all fees paid because his
or her application was not processed within the applicable time period.
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 period. The
chair
[
chairperson
] shall provide written notice of the chair's decision to the
applicant and the executive director. An appeal shall be decided in
the applicant's favor if the applicable time period was exceeded and
good cause was not established. If the appeal is decided in favor
of the applicant, full reimbursement of all fees paid in that particular
application process shall be made.
(d) (No change.)
§681.16.Petition for the Adoption of a Rule.
(a)
A
[
Any
] person may petition the board to adopt a rule.
(b) - (i) (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 7, 2008.
TRD-200800070
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendment is authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rule implements Government Code, §2001.039.
The proposed amendment affects Occupations Code, Chapter 503.
§681.31.Counseling Methods and Practices.
The use of specific methods, techniques, or modalities within the practice of professional counseling is limited to professional counselors appropriately trained and competent in the use of such methods, techniques , or modalities. Authorized counseling methods techniques and modalities may include, but are not restricted to, the following:
(1) - (13) (No change.)
(14) expressive [
therapies which utilize therapeutic
]
modalities
utilized
in the treatment of interpersonal,
emotional or mental health issues, chemical dependency, or human developmental
issues
. Modalities include but are not limited to
[
,including, but not limited to
], music [
therapy
], art [
therapy
],
dance [
or
] movement [
therapy, hippotherapy
],
or the use of [
other
] techniques employing animals in providing
treatment
[
therapy as described previously
];
(15) - (17) (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 7, 2008.
TRD-200800071
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.41.General Ethical Requirements.
(a) - (d) (No change.)
(e) Regardless of setting, a licensee shall provide counseling treatment intervention only in the context of a professional relationship. A licensee shall inform an individual in writing before services are provided of the following:
(1) - (6) (No change.)
(f) (No change.)
(g) Where the client is in one location and the counselor is in another, technological means of communication may be used to facilitate the therapeutic counseling process.
[(g) A licensee shall provide counseling treatment intervention only in the context of a professional relationship. Interactive long distance counseling delivery, where the client resides in one location and the counselor in another may be used as part of the therapeutic counseling process. Counselors engaging in interactive long distance counseling must adhere to each provision of this chapter.]
(h)
In accordance with the provisions of the Act, §503.401(a)(4), a
[
A
] licensee shall not intentionally or knowingly
offer to pay or agree to accept any remuneration directly or indirectly,
overtly or covertly, in cash or in kind, to or from any person, firm,
association of persons, partnership, corporation, or entity for securing
or soliciting clients or patronage for or from any health care professional.
[(1) In accordance with the provisions of the Act, §503.401(4), a licensee is subject to disciplinary action if the licensee directly or indirectly offers to pay or agrees to accept remuneration to or from any person for securing or soliciting a client or patronage.]
[
(2)
]
A licensee employed or under contract
with a chemical dependency facility or a mental health facility shall
comply with the requirements in the Texas Health and Safety Code, §164.006,
relating to soliciting and contracting with certain referral sources.
Compliance with the Treatment Facilities Marketing Practices Act,
Texas Health and Safety Code, Chapter 164, shall not be considered
as a violation of state law relating to illegal remuneration.
(i) (No change.)
(j) A licensee shall not promote the licensee's personal
or business activities to a client [
unless the licensee informs
the client of the licensee's personal or business interest in the
activity
].
(k) A licensee shall set and maintain professional boundaries. [
Dual relationships with clients are prohibited.
A dual relationship is considered any non-counseling activity initiated
by either the licensee or client for the purpose of establishing a
non-therapeutic relationship.
]
[(1) The licensee shall not provide counseling services to previous or current:]
[(A) family members;]
[(B) personal friends;]
[(C) educational associates; or]
[(D) business associates.]
[(2) The licensee shall not give or accept a gift from a client or a relative of a client valued at more than fifty dollars, or borrow or lend money or items of value to clients or relatives of clients or accept payment in the form of goods or services rendered by a client or relative of a client.]
[(3) The licensee shall not enter into a non-professional relationship with a client, client's family member or any person having a personal or professional relationship with a client, if such a relationship could be detrimental to the client.]
(l) Dual relationships with clients are prohibited. A dual relationship is considered any non-counseling activity initiated by either the licensee or client for the purpose of establishing a non-therapeutic relationship. (See definition of CLIENT as referenced in §681.2(7) of this title (relating to Definitions).
(1) The licensee shall not provide counseling services to previous or current:
(A) family members;
(B) personal friends;
(C) educational associates; or
(D) business associates.
(2) The licensee shall not give or accept a gift from a client or a relative of a client valued at more than $50, or borrow or lend money or items of value to clients or relatives of clients or accept payment in the form of goods or services rendered by a client or relative of a client.
(3) The licensee shall not enter into a non-professional relationship with a client's family member or any person having a personal or professional relationship with a client, if the licensee knows or reasonably should have known such a relationship could be detrimental to the client.
(m)
[
(l)
] The licensee shall
not knowingly offer or provide counseling treatment intervention to
an individual concurrently receiving counseling treatment intervention
from another mental health services provider except with that provider's
knowledge. If a licensee learns of such concurrent therapy, the licensee
shall
request release from the client to inform the other professional
and strive to establish positive and collaborative professional relationships
[
take immediate and reasonable action to inform the other
mental health services provider
].
(n)
[
(m)
] A licensee may take
reasonable action to inform medical or law enforcement personnel if
the
licensee
[
professional
] determines that
there is a probability of imminent physical injury by the client to
the client or others or there is a probability of immediate mental
or emotional injury to the client.
(o)
[
(n)
] In individual and group
counseling settings, the licensee shall take reasonable precautions
to protect individuals from physical or emotional harm resulting from
interaction within a group or from individual counseling.
(p)
[
(o)
] For each client, a
licensee shall keep accurate records of
the intake assessment,
the
dates of counseling treatment intervention,
principal treatment methods,
[
types of counseling treatment intervention,
]
progress or case notes, [
intake assessment,
] treatment plan, and billing information.
(q)
[
(p)
] Records held by a licensee shall be kept for
a minimum of five years from the date of the
last contact with the client.
[
seven years for adult clients
and seven years beyond the age of 18 for minor clients.
]
(r)
[
(q)
] Records created by
licensees during the scope of their employment by educational institutions;
by federal, state, or local governmental agencies; or their political
subdivisions or programs are not required to comply with subsections
(p)
[
(o)
] and
(q)
[
(p)
] of this section.
(s)
[
(r)
] A licensee shall bill
clients or third parties for only those services actually rendered
or as agreed to by mutual understanding at the beginning of services
or as later modified by mutual written agreement.
(1) Relationships between a licensee and any other person used by the licensee to provide services to a client shall be so reflected on billing documents.
(2) On the written request of a client, a client's guardian, or a client's parent (sole managing, joint managing or possessory conservator) if the client is a minor, a licensee shall provide, in plain language, a written explanation of the types of treatment and charges for counseling treatment intervention previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party.
(3) A licensee may not knowingly [
or flagrantly
]
overcharge a client.
(4)
With the exception of an unkept appointment, a
[
A
] licensee may not submit to a client or a third
party
payor a bill for counseling treatment intervention that
the licensee knows was not provided or knows was improper, unreasonable,
or [
medically or clinically
] unnecessary[
, with the exception of an unkept appointment
].
(t)
[
(s)
] 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.
]
(u) Upon termination of a relationship if professional counseling is still necessary, the licensee shall take reasonable steps to facilitate the transfer to appropriate care.
(v)
[
(t)
] A licensee shall not
evaluate any individual's mental, emotional, or behavioral condition
unless the licensee has personally interviewed the individual or the
licensee discloses with the evaluation that the licensee has not personally
interviewed the individual.
(w)
[
(u)
] A licensee
shall
[
may
] not
knowingly
[
persistently
] over
treat a client.
(x)
[
(v)
] A licensee shall not aid
or
[
and
] abet the unlicensed practice of
professional counseling by a person required to be licensed under
the Act.
A licensee shall report to the board knowledge of any
unlicensed practice of counseling.
(y)
[
(w)
] A licensee or an applicant
for licensure shall not participate in any way in the falsification
of applications for licensure
or renewal of license
.
(z)
[
(x)
] A licensee shall comply
with the requirements of Texas Health and Safety Code, Chapter 611,
concerning the release of mental health records and confidential information.
(aa)
[
(y)
] A licensee shall establish
a plan for the custody and control of the
client's
[
licensee's client
] mental health records in the event of the licensee's
death or incapacity, or the termination of the licensee's counseling
practice. A licensee shall inform each
new
client of the plan.
§681.42.Sexual Misconduct.
(a) For the purpose of this section the following terms shall have the following meanings.
(1)
"
Mental health services
provider"
means
a licensee or any other licensed mental health professional, including
a licensed social worker, a chemical dependency counselor, a licensed
marriage and family therapist, a physician, a psychologist, or a member
of the clergy. Mental health services provider also includes employees
of the above or employees of a treatment facility.
[
assessment,
diagnosis, treatment, or counseling in a professional relationship
to assist an individual or group in:
]
[(A) alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction;]
[(B) understanding conscious or subconscious motivations;]
[(C) resolving emotional, attitudinal, or relationship conflicts; or]
[(D) modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning.]
[(2) Mental health services provider means a licensee or any other licensed or unlicensed individual who performs or purports to perform professional counseling or mental health services, including a licensed social worker, a chemical dependency counselor, a licensed marriage and family therapist, a physician, a psychologist, or a member of the clergy.]
(2)
[
(3)
] Sexual contact means:
(A) deviate sexual intercourse as defined by the Texas Penal Code, §21.01;
(B) sexual contact as defined by the Texas Penal Code, §21.01;
(C) sexual intercourse as defined by the Texas Penal Code, §21.01; or
(D) requests or offers by a licensee for conduct described by subparagraph (A), (B), or (C) of this paragraph.
(3)
[
(4)
]
"
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 or gratification or sexual
abuse of any person. The term does not include obtaining information
about a client's sexual history within standard accepted practice
while treating a sexual or marital dysfunction.
(4)
[
(5)
]
"
Therapeutic deception
"
means a representation by a licensee that sexual
contact with, or sexual exploitation by, the licensee is consistent
with, or a part of, a client's or former client's counseling.
(b) A licensee shall not engage in sexual contact with or sexual exploitation of a person who is:
(1) a client
as defined in §681.2(7) of this
title (relating to Definitions)
[
or former client
];
(2) an LPC
Intern
[
intern
] supervised by the licensee; or
(3) (No change.)
(4) Sexual contact that occurs more than five years after the termination of the client relationship will not be deemed a violation of this section if the conduct is consensual, not the result of sexual exploitation, and not detrimental to the client. The licensee must demonstrate that there has been no exploitation in light of all relevant factors, including, but not limited to:
(A) the amount of time that has passed since therapy terminated;
(B) the nature and duration of the therapy;
(C) the circumstances of termination;
(D) the client's personal history;
(E) the client's current mental status;
(F) the likelihood of adverse impact on the client and others; and
(G) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client.
[(c) A licensee shall not engage in sexual exploitation of a person who is:]
[(1) a client or former client;]
[(2) an LPC intern supervised by the licensee; or]
[(3) a student at an educational institution at which the licensee provides professional or educational services.]
(c)
[
(d)
] A licensee shall not
practice therapeutic deception of a person who is a client
as
defined in §681.2(7) of this title (relating to Definitions)
[
or former client
].
(d)
[
(e)
] It is not a defense under subsections (b) -
(c)
[
(d)
] of this section
if the sexual contact, sexual exploitation, or therapeutic deception
with the person occurred:
(1) with the consent of the client;
(2) outside the professional counseling sessions of the client; or
(3) off the premises regularly used by the licensee for the professional counseling sessions of the client.
(e)
[
(f)
] The following may constitute
sexual exploitation if done for the purpose of sexual arousal or gratification
or sexual abuse of any person:
(1) sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, and:
(A) is offensive or creates a hostile environment, and the licensee knows or is told this; or
(B) is sufficiently severe or intense to be abusive to a reasonable person in the context;
(2) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual;
(3) inappropriate sexual comments about or to a person, including making sexual comments about a person's body;
(4) making sexually demeaning comments about an individual's sexual orientation;
(5) making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in counseling;
(6) requesting details of sexual history or sexual likes and dislikes when not necessary for counseling of the individual;
(7) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;
(8) kissing or fondling;
(9) making a request to date;
(10) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;
(11) any bodily exposure of genitals, anus or breasts;
(12) encouraging another to masturbate in the presence of the licensee; or
(13) masturbation by the licensee when another is present.
(f)
[
(g)
] Examples of sexual
contact are those activities and behaviors described in the Texas
Penal Code, §21.01.
(g)
[
(h)
] A licensee shall report sexual misconduct as follows.
(1) If a licensee has reasonable cause to suspect that
a client has been the victim of sexual exploitation, sexual contact,
or therapeutic deception by another licensee or a mental health services
provider, or if a client alleges sexual exploitation, sexual contact,
or therapeutic deception by another licensee or a mental health services
provider, the licensee shall report the alleged conduct not later
than the
first business day after
[
30th day after
]
the date the licensee became aware of the conduct or the allegations to:
(A) the prosecuting attorney in the county in which
the alleged sexual exploitation, sexual contact or therapeutic deception
occurred; [
and
]
(B) the board if the conduct involves a licensee and
any other state licensing agency which licenses the mental health
services provider
; and
[
.
]
(C) to the appropriate agency listed in §681.45 of this title (relating to Confidentiality and Required Reporting).
(2) Before making a report under this subsection, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous.
(3) A report under this subsection need contain only the information needed to:
(A) identify the reporter;
(B) identify the alleged victim, unless the alleged victim has requested anonymity;
(C) express suspicion that sexual exploitation, sexual contact, or therapeutic deception occurred; and
(D) provide the name of the alleged perpetrator.
§681.43.Testing.
(a) Prior to or following the administration of any
test
[
testing
], a licensee shall make known to clients
the purposes and explicit use to be made of
the test
[
any
testing done
] as a part of a professional counseling relationship.
(b) - (e) (No change.)
§681.44.Drug and Alcohol Use.
A licensee shall not:
(1) use alcohol or drugs in a manner
that
[
which
] adversely affects the licensee's ability to provide counseling
treatment intervention services;
(2) - (3) (No change.)
§681.45.Confidentiality and Required Reporting.
(a) - (c) (No change.)
(d) A licensee shall report information if required by any of the following statutes:
(1) Texas Family Code, Chapter
261
[
2614
],
concerning abuse or neglect of minors;
(2) - (5) (No change.)
§681.46.Licensees and the Board.
(a) - (f) (No change.)
(g) A licensee
who files
[
shall not file
] a complaint with the board in bad faith
may be subject to disciplinary action
.
§681.47.Assumed Names.
(a) An individual practice by a licensee may be established
as a corporation, a limited liability partnership, a limited liability
company, or other [
allowable
] business entity in accordance with state or federal law.
(b) (No change.)
§681.48.Consumer Information.
(a) A licensee shall inform each client of the name, address, and telephone number of the board for the purpose of reporting violations of the Act or this chapter:
(1) on each application or written contract for services; or
(2) (No change.)
(3) on a bill for counseling treatment intervention
provided to a client [
or third party
].
(b) - (d) (No change.)
§681.49.Advertising and Announcements.
(a) - (e) (No change.)
(f) All advertisements or announcements of counseling
treatment intervention including telephone directory listings by a
person licensed by the board
shall
[
may
] clearly
state the licensee's licensure status by the use of a title such as
"Licensed Counselor", or "Licensed Professional Counselor", or "L.P.C.",
or a statement such as "licensed by the Texas State Board of Examiners
of Professional Counselors."
(g) Counselors holding a temporary license shall indicate
intern status on all advertisements, billing, and announcements of
counseling treatment by the use of the term "LPC[
-
]Intern."
(h) (No change.)
§681.50.Research and Publications.
(a) In research with a human
participant
[
subject
], a licensee shall take reasonable precautions to ensure
that the
participant
[
subject
] does not suffer emotional or physical harm.
(b) - (d) (No change.)
§681.51.Finding of Misconduct Occurring before Licensure [ Non-Fitness for Licensure Subsequent to Issuance of License ].
(a) The board may take disciplinary action based upon information received after issuance of a license, if such information would have been the basis for denial of licensure had it been received prior to the issuance of the license.
(b) The board may take disciplinary action against an applicant or licensee for conduct prior to licensure that would have been a violation of a code of ethics if the person was licensed.
§681.52.LPC Interns.
(a) An LPC Intern may not practice within the Intern's own private independent practice of professional counseling.
[(a) An LPC intern may not practice within his or her own private independent practice of professional counseling. Months or hours of independent practice will not count as part of the intern's supervised experience; however, the intern may be employed in his or her supervisor's private practice of professional counseling and the months or hours may be counted.]
(b)
An LPC
Intern
[
intern
] may be employed on a salary basis or be a consultant or volunteer.
(c) - (d) (No change.)
(e) All billing documents for services provided by
an
LPC
Intern
[
interns
] shall reflect that the LPC
Intern
[
intern
] holds a temporary license
and is under supervision.
(f) A supervisor may not be
an employee of
[
employed by
] an LPC
Intern
[
intern
].
(g) The LPC
Intern
[
intern
] may compensate the supervisor for time spent in supervision if the supervision
is not a part of the supervisor's responsibilities as a paid employee
of an agency, institution, clinic, or other business entity.
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 7, 2008.
TRD-200800086
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.71.General.
(a) - (b) (No change.)
(c) Applicants submitting complete application packets,
but which contain incomplete or unacceptable information will be notified
of the specific deficiency in writing. A copy of each unacceptable
document will be returned with the notice. Applicants will have 45
days from the date of the notice to resubmit corrected or replacement
documents. Applications not corrected or completed within 45 days
of notice of deficiencies will be void and application materials will
be returned to the applicant. [
Fees associated with the application
process are not refundable.
]
(d) (No change.)
§681.72.Required Application Materials.
(a) A general application form shall include, but not be limited to:
(1) specific information regarding personal data, employment
and type of practice, other state licenses and certifications held,
felony or misdemeanor convictions,
and
educational background[
, and references
];
(2) - (6) (No change.)
(b) - (c) (No change.)
(d) The supervisory agreement form must be completed, signed and dated by both the supervisor and the applicant. A supervisory agreement form must be submitted for subsequent supervisors and settings, before the supervision begins under the new supervisor or in the new setting. Supervised hours earned without an approved supervisor agreement on file with the board may not be counted toward licensure.
(e) (No change.)
(f)
An applicant must submit examination results
[
Certification
] from the National Board of Certified Counselors verifying
a passing score on
[
successful completion of
] the National
Counselor
[
Counselors
]
Exam
along with proof of completion of
[
and
] the Texas Jurisprudence Exam. The National
Counselor
[
Counselors
] Exam must have been taken no more than five years prior to
the date of application. The Texas Jurisprudence Exam must have been
taken no more than two years prior to the date of application.
§681.73.Application for Art Therapy Specialty Designation.
(a) - (c) (No change.)
(d) An applicant for a regular license with art therapy specialty designation must pass the National Counselor Exam and complete the Texas Jurisprudence Exam.
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 7, 2008.
TRD-200800072
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.81.General.
(a) (No change.)
(b) Degrees and course work received at foreign universities
shall be acceptable only if such course work
would
[
could
] be counted as transfer credit by accredited universities as
reported by the American Association of Collegiate Registrars and
Admissions Officers. If degrees or course work cannot be documented
because the foreign university refuses to issue a transcript or other
evidence of the degrees or course work, the board may consider, on
a case-by-case basis, accepting degrees or course work based on other
evidence presented by the foreign graduate applicant.
(c) - (f) (No change.)
§681.82.Academic Requirements.
(a) - (b) (No change.)
(c) Applicants must also have a supervised practicum
experience that is primarily [
professional
] counseling
in nature of at least 300 clock-hours which were a part of the required
planned graduate program.
(1) - (3) (No change.)
§681.83.Academic Course Content.
(a) An applicant must obtain academic course work in each of the following areas:
(1) - (9) (No change.)
(10) practicum (internship) - as
described
[
referred to
] in §681.82(c) of this title (relating to Academic Requirements).
(b) (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 7, 2008.
TRD-200800073
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.91.Temporary License.
(a) The board may issue a temporary license to an applicant who:
(1) - (4) (No change.)
(5) has completed the required examinations as described in §681.72(f) of this title (relating to Required Application Materials) .
(b)
To practice counseling in Texas,
[
In
this state,
] a person must obtain a temporary license before
the person begins an internship or continues an internship. Hours
obtained by an unlicensed person in any setting shall not count toward
the supervised experience requirements. Supervised experience hours
gained prior to June 1, 1994, may count toward licensure if all academic
requirements are met at the time of application. Hours gained after
June 1, 1994 cannot count, unless the person held a temporary license
while accumulating the hours.
(c) An LPC
Intern
[
intern
] may practice
counseling
only as part of his or her internship.
(d) An LPC
Intern
[
intern
] must maintain a temporary license during his or her supervised experience.
(e)
An initial
[
A
] temporary license
will expire
[
is valid for
] 36 months
from the date of issuance
.
(f) An LPC
Intern
[
intern
] who does not complete the supervised experience during the 36 months may
submit a written request for an extension from the board.
[
renew
his/her temporary license once for an additional 36 months by written
request and payment of a fee.
] The LPC
Intern
[
intern
] must submit proof of successfully completing the Texas Jurisprudence
Exam as a condition for renewal.
(g) (No change.)
(h) An LPC
Intern
[
intern
] who holds a temporary license issued before September 1, 2005, may obtain
a regular license by:
(1) submitting a supervised experience documentation form documenting successful completion of the required hours of supervised experience in accordance with §681.72(c) of this title (relating to Required Application Materials) and §681.92 of this title; and
(2)
passing the National Counselor Exam (NCE)
[
successfully completing the board examination for licensure in accordance
with Subchapter G of this chapter (relating to Licensure Examinations)
].
(i) Applicants who have completed the supervised experience and who have not passed the NCE at the time of application are not eligible for an initial or an additional temporary license. Such applicants may obtain a regular license by taking and passing the NCE.
(j)
[
(i)
] A person holding a
temporary license will provide no direct counseling services unless
acting under a supervisor agreement as stated in §681.93 of this
title (relating to Supervisor Requirements.)
(k) An applicant coming from another state, who has earned post graduate supervised experience in another state, may submit either their application file from the other state showing their post graduate experience or have their experience documented on this states board forms.
§681.92.Experience Requirements (Internship).
(a) Applicants for licensure must complete a supervised
experience acceptable to the board of 3,000 clock-hours [
or 36 months at 20 hours per week
].
(b) The supervised experience must include at least 1,500 clock-hours of direct client counseling contact. Experience hours earned via counseling by technological means of communication may count for no more than 10% of the total supervised experience hours. Only actual time spent counseling may be counted.
(c) An
Intern
[
applicant
] must complete the required 3,000 clock-hours of supervised experience in
a time period of no fewer than 18 months.
(d) - (e) (No change.)
[
(f)
The applicant who
began to accumulate supervised experience on or after October 2, 1996,
must have completed at least 48 graduate semester hours in counseling
or a counseling-related field and hold a temporary license from the
board.]
(f)
[
(g)
] The experience must
have consisted primarily of the provision of direct counseling services
within a professional relationship to individuals or groups by using
a combination of mental health and human development principles, methods,
and techniques to achieve the mental, emotional, physical, social,
moral, educational, spiritual, or career-related development and adjustment
of the client throughout the client's life.
(g)
[
(h)
] The
LPC-Intern
[
applicant
] must have received direct supervision consisting of
an average of
[
a minimum of
] one hour a week of face-to-face supervision in individual
(up to two interns)
or
group
(three or more)
settings
for each week the intern is engaged in counseling
. No more than one half of the total
hours of supervision may be received in group supervision.
(h)
[
(i)
] The experience must
have been under the direction of a board approved supervisor.
(i)
[
(j)
] The board may count
excess practicum hours toward the experience requirements of this
subchapter if:
(1) the hours were part of the applicant's academic practicum or internship accumulated after the commencement of the applicant's planned graduate program;
(2) the hours are in excess of the 300-hour practicum required by §681.82(c) of this title (relating to Academic Requirements); and
(3) the hours to be counted are not more than 400 hours.
(j)
[
(k)
] LPC
Interns
[
interns
] shall comply with the ethical standards set out in
Subchapter C (relating to Code of Ethics) of this chapter.
[
(l)
A person must obtain
a temporary license before the person begins an internship or continues
an internship. Hours obtained by an unlicensed person in any setting
shall not count toward the supervised experience requirements.]
(k)
[
(m)
] Experience received
under a supervisor who is a licensee subject to a board
disciplinary
order shall not qualify as supervised experience for licensure purposes.
§681.93.Supervisor Requirements.
(a) - (c) (No change.)
(d) A board approved supervisor shall maintain and
sign a record(s) to document the date of each supervision conference
[
of a minimum of one hour a week of face-to-face supervision
in individual or group settings
] and [
to
] document
the LPC
Intern's
[
intern's
] total number of
hours of supervised experience accumulated up to the date of the conference.
(e) The full professional responsibility for the counseling
activities of an LPC
Intern
[
intern
] shall rest with the intern's board approved supervisor.
(1) The supervisor shall ensure that the LPC
Intern
[
intern
] is aware of and adheres to Subchapter C (relating to
Code of Ethics) of this chapter.
(2) A dual relationship between the supervisor and the LPC
Intern
[
intern
] that impairs the supervisor's
objective, professional judgment shall be avoided.
(3) A supervisor may not be related within the second
degree by affinity or within the third degree by consanguinity to
the LPC
Intern
[
intern
].
(4) (No change.)
(5) If a supervisor determines that the LPC
Intern
[
intern
] may not have the counseling skills or competence to
practice professional counseling under a regular license, the supervisor
shall develop and implement a written plan for remediation of the
LPC
Intern
[
intern
].
(6) A supervisor shall timely submit accurate documentation of supervised experience.
(f) (No change.)
(g) A supervisor who become subject to a board disciplinary
order is no longer an approved supervisor. The person shall inform
all LPC
Interns
[
interns
] of the board disciplinary order and assist the LPC
Interns
[
interns
] in finding alternate supervision.
(h) A supervisor may not be
an employee of an LPC Intern
[
employed by an LPC intern
].
(i) The LPC
Intern
[
intern
] may
compensate the supervisor for time spent in supervision if the supervision
is not part of the supervisor's responsibilities as a paid employee
of an agency, institution, clinic, or other business entity.
(j) Supervisory status may be denied, revoked, or suspended following a fair hearing for violation of the Act or rules. The fair hearing will be conducted under the fair hearing rules of the Department of State Health 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 January 7, 2008.
TRD-200800074
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments and new rule are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments and new rule affect Occupations Code, Chapter 503.
§681.101.Examination.
(a) Each applicant for licensure is required to take and pass the National Counselor Exam and complete the Texas Jurisprudence Exam prior to application.
(b) (No change.)
(c)
The National Counselor Examination
[
Examinations
] will be administered at testing centers located in various
cities throughout the state.
The Jurisprudence Exam is available
online at the board's website.
(d) The examination
fees
[
fee
]
shall be paid to the
testing company administering the exams
[
board's contractor
].
(e) Applicants seeking accommodations for the licensure
examination under the Americans with Disabilities Act shall inform
the [
national
] testing company of any special accommodations
needed in advance and in writing. Disability accommodation requests
must be accompanied by verification of the disability from a professional
who has diagnosed or can attest to the disability and who recommends
accommodation.
(f) As of September 1, 2005,
LPC Interns
[
LPC-Interns
] who have not passed the Texas exam will be required
to pass the National Counselor Exam prior to the expiration of the
temporary license.
[
(g)
A regular license
will be issued to an applicant only after completion of supervised
experience.]
§681.102.Notice of Results.
(a) The results of electronically administered licensure examinations shall be provided to the applicant at the testing center upon completion of the examination.
(b) Non-electronically administered examinations may be requested as an ADA accommodation; however, grading will not be immediately available upon completion of the examination.
(c) No matter which numerical or other scoring system is used in arriving at examination results, the official notice of results to applicants shall be stated in terms of "pass" or "fail."
§681.103.Reexamination.
(a) An applicant who fails the licensure examination
may schedule a second examination[
. The subsequent examination can be scheduled
] no sooner than 90 days after the prior exam.
(b) (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 7, 2008.
TRD-200800075
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
(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 Texas State Board of Examiners of Professional Counselors 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, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rule implements Government Code, §2001.039.
The proposed repeal affects Occupations Code, Chapter 503.
§681.102.Grading.
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 7, 2008.
TRD-200800076
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.111.Issuance of Licenses.
(a) The board will issue a license to each applicant who has satisfactorily fulfilled all requirements for licensure. An initial regular license will expire on the last day of the licensee's birth month occurring after 12 months of licensure have elapsed.
(b) Regular
and temporary
licenses [
and regular licenses with an art therapy specialty designation
]
shall bear the
signature of the board chair.
[
signatures of board members and be affixed with the seal of the board.
]
[
(c)
Temporary licenses
shall bear the signatures of the board chair and the executive director.]
(c)
[
(d)
] Provisional licenses
[
and provisional licenses with an art therapy specialty designation
]
shall bear the signature of the executive director.
(d)
[
(e)
] Any license certificate
or renewal card issued by the board remains the property of the board
and must be surrendered to the board on demand.
(e)
[
(f)
] The board will replace
a lost, damaged, or destroyed license certificate or renewal cards
upon a written request from the licensee and payment of the license
replacement fee.
(f)
[
(g)
] Upon the written request
and payment of the license certificate duplicate fee by a licensee,
the board will provide a licensee with a duplicate for a second place
of practice which is designated in a licensee's file.
(g)
[
(h)
] Only the highest academic
degree earned from an accredited college or university in counseling
or a counseling-related field may appear on the license certificate.
§681.112.Provisional Licensing.
(a) The board may grant a provisional license to a person who holds, at the time of application, a license as a counselor or art therapist issued by another state, territory, or jurisdiction that is acceptable to the board. An applicant for a provisional license must:
(1) submit an application and license fee;
(2) be licensed in good standing as a counselor or
art therapist in another state, territory, or jurisdiction that has
licensing requirements that are substantially equivalent to the regular
licensing requirements of the Act and submit documentation of such
licensure
including a copy of the licensure file from the other
state, territory or jurisdiction or from the National Credentials
Registry and a letter of good standing; and
[
;
]
(3) have passed the required examinations
.
[
; and
]
[
(4)
submit a letter of
sponsorship from a person who holds a regular license issued by the
board with whom the provisional licensee may practice.]
[
(b)
An applicant for a
provisional license may be excused from the requirement of subsection
(a)(4) of this section if the board determines that compliance with
that subsection constitutes a hardship to the applicant.]
[
(c)
The board must complete
the processing of a provisional licensee's application for a license
not later than the 180th day after the date the provisional license
is issued or at the time licenses are issued following the successful
completion of the examination, whichever is later. The person holding
a provisional license must file all evidence of his or her academic
and experience requirements within the 180 days. The board office
shall evaluate the information received and may issue a deficiency
letter during the 180 days. If the documentation received during the
180 days does not show that the person meets the academic and experience
requirements set out in this chapter, the application shall be proposed
for denial.]
(b)
[
(d)
] A provisional license
is valid
for 180 days or
until the date the board issues
a
regular
license or denies the provisional licensee's
application for a license
, whichever occurs first
.
(c)
[
(e)
] The board shall issue
a regular license [
or a regular license with art therapy specialty
designation
] to the holder of a provisional license if the board
verifies that the provisional licensee has the academic and experience
requirements for a regular license [
or a regular license with
art therapy specialty designation
].
(d)
[
(f)
] The board shall consider
only states, territories, and jurisdictions of the United States as
acceptable for the purposes of provisional licensing.
§681.113.Surrender of License.
(a) A licensee may [
at any time
] voluntarily
offer to surrender his or her license for any reason[
, without compulsion
].
(b) - (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 7, 2008.
TRD-200800077
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
22 TAC §§681.121, 681.123 - 681.127
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.121.General.
(a) A regular license [
or a regular license with
art therapy specialty designation
] must be renewed
every two years
[
annually or bi-annually, as determined by the board
].
(b) A person who holds a regular license [
or a regular license with art therapy specialty designation
] must have fulfilled any continuing education requirements prescribed by
board rule in order to renew a license.
[(c) Each person who holds a regular license or a regular license with art therapy specialty designation is responsible for renewing the license annually or bi-annually, and shall not be excused from paying late renewal fees or renewal penalty fees. Failure to receive notice from the board does not waive payment of late penalty fees.]
(c)
[
(d)
] A person whose license has expired
for more than one year
shall return his or
her license certificate to the board.
(d)
[
(e)
] A person whose license
has expired shall not practice professional counseling or advertise
counseling treatment interventions, unless exempted by the Act.
(e)
[
(f)
] The deadlines established
for renewals, late renewals, and license renewal penalty fees in this
subchapter are based on the postmark date of the documentation submitted
by the licensee.
(f)
[
(g)
] The board shall deny renewal
in accordance with
[
if required by
]
the Texas Education Code, §57.491, relating to defaults on guaranteed
student loans.
§681.123.License Renewal.
(a) At least
30
[
45
] days prior to the expiration of a regular license [
or a regular license
with art therapy specialty designation,
] the board will send notice to a
licensee's last known address
[
licensee
]
that includes the expiration date of the license [
, a form to report annual continuing education activity,
] and instructions for renewing the license.
(b) Failure to receive notice does not relieve the licensee from the responsibility to timely renew.
[(b) Notice of license renewal shall be furnished to licensees eligible for renewal. The notice shall require the licensee to notify the board of any changes to information necessary to keep records current.]
(c) The board shall not renew a license until it receives
the renewal fee and the
completed
board
renewal
form
including criminal history information, changes of address and other
required information
[
for reporting applicable continuing education requirements
].
(d) The board shall issue a renewal card to a licensee
who has met all requirements for renewal. The licensee must display
the renewal card [
in association
] with the license.
(e) A license for which a timely request for renewal has been submitted does not expire until the renewal license has been issued or until the renewal application has been denied.
[(e) The license of a person who made a timely and sufficient request for renewal of his or her license does not expire until the application for renewal is finally determined by the board, or in case the application is denied or the terms of the new license limited, until the last day for seeking review of the board's order or a later date fixed by order of a reviewing court.]
§681.124.Late Renewal.
(a) A person who renews a license after the expiration date but on or within 90 days after the expiration date shall pay the appropriate late renewal fee.
(b) A person whose license was not renewed by the expiration date may renew within one year of the expiration date by paying the renewal fee plus the appropriate license renewal penalty fee.
(c) Upon the expiration of a person's license, the board may require the person to return the license certificate to the board.
[(b) If a person has not renewed a license for more than 30 days after the date of expiration, the board shall again inform the person of the expiration date of the license and the amount of the fee required for renewal.]
[(c) The board shall notify a person whose license is expired that the person may not advertise, practice, or represent himself or herself as a counselor in any manner. Upon the expiration of a person's license, the board may notify the person to return the license certificate to the board.]
[(d) A person whose license was not renewed by the expiration date may renew within one year of the expiration date by paying the renewal fee plus the appropriate license renewal penalty fee. Payment must be in the form of a personal check, certified check, or money order.]
(d)
[
(e)
] If a person did not
have the required continuing education at the time of expiration of
the license, the person must file evidence of completion of the required
continuing education before the license can be renewed.
[
(1)
] A license is considered expired until
all requirements for renewal are met.
[(2) Evidence of continuing education shall be the completed continuing education form and other documentation required by the board.]
[(3) The time period from expiration of the license until renewal of the license shall be subtracted from the next one-year continuing education reporting period.]
(e)
[
(f)
] On or after one year
from the expiration date, a person may no longer reinstate the license
and must reapply by submitting a new application, paying the required
fees, and meeting the current requirements for licensure including
passing all required examinations.
§681.125.Inactive Status.
(a) - (d) (No change.)
(e) A person must notify the board in writing to return to active status.
A
[
Prior to reinstatement, a
]
person seeking active status must successfully complete the Texas
Jurisprudence Examination. Active status shall begin after receipt
of proof of successful completion of the Texas Jurisprudence Examination
, completion of 24 hours continuing education within the two years
preceding reinstatement of active status
and payment of applicable
fees.
(f) The person's next continuing education cycle will
begin upon return to active status and end on the [
last
]
day of
license expiration
[
the person's birth month
].
(g) A person previously approved as a supervisor whose
professional counselor license has been inactive for more than two
years and who resumes active license status may become a supervisor
by again
completing
[
meeting
] the supervision
[
course
] requirements of the board. [
An inactive status
of less than two years will not require a supervision course.
]
(h) The licensee must renew the inactive status
every
two years
[
biennually
].
§681.126.Retired Status.
(a) - (b) (No change.)
(c) A retired license cannot be renewed or reinstated.
To be eligible for a new license to practice professional counseling,
the person
must
[
would be required to
] apply
for
a new
[
another
] license by meeting requirements
in effect at the time of the application, including passing all required
examinations.
(d) A request for retired status while a complaint is pending will be treated as a surrender of license under §681.168 of this title (relating to Surrender of License when Complaint is Pending).
§681.127.Active Military.
(a) For purposes of this section, a "designated representative" is a person authorized in writing by the licensee to act on behalf of the licensee. A copy of the written designation must be provided to the board.
(b)
If a licensee fails to renew his or
her license because the licensee is called to or is on active duty
with the armed forces of the United States serving outside of the
State of Texas, the licensee or the licensee's
designated
[
authorized
] representative may request that the license be declared
inactive or be renewed. A request for inactive status shall be made
in writing to the board prior to expiration of the license or within
one year from the expiration date. A request for renewal may be made
before or after the expiration date.
(1) A written request shall include a copy of the official transfer orders of the licensee or other official military documentation showing that the licensee is called to or on active duty serving outside of the State of Texas.
[(1) If the request is made by the licensee's authorized representative, the request must include a copy of the appropriate power of attorney or written evidence of a spousal relationship].
[(2) The written request shall include a copy of the official transfer orders of the licensee or other official military documentation showing that the licensee is called to or on active duty serving outside of the State of Texas.]
(2)
[
(3)
] The payment of the
inactive status fee, late renewal fee and licensure renewal penalty
fee is waived for a licensee under this section.
(3)
[
(4)
] An active duty licensee
shall be allowed to renew under this section without submitting proof
of continuing education hours [
if proof is required for renewal;
however, the licensee must submit proof of completion of the required
number of continuing education hours by the end of the following time
period. If the licensee fails to submit proof of completion of the
required continuing education by the end of the time period, the board
may suspend or revoke or deny renewal of the license
].
(4)
[
(5)
] The written request
shall include a current address and telephone number for the licensee
or the licensee's
designated
[
authorized
] representative.
(5)
[
(6)
] The board may periodically notify the licensee or the licensee's
designated
[
authorized
] representative that the license of the licensee remains in
inactive status [
, if applicable
].
[(7) Except in extraordinary circumstances, a licensee on active duty serving outside the State of Texas shall notify the board that the licensee is on active duty. The board shall note in the licensee's file that the licensee may be eligible for renewal under this section.]
(6)
[
(8)
] If a licensee is a
civilian impacted or displaced for business purposes outside of the
State of Texas due to a national emergency or war, the licensee or
the licensee's
designated
[
authorized
] representative
may request that the license be declared inactive in the same manner
as described in this section for military personnel. The written request
shall include an explanation of how the licensee is impacted or displaced,
which explanation shall be on the official letterhead of the licensee's
business. The requirements of this section relating to renewal by
active duty licensees shall not apply to a civilian under this paragraph.
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 7, 2008.
TRD-200800078
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
(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 Texas State Board of Examiners of Professional Counselors 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, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rule implements Government Code, §2001.039.
The proposed repeal affects Occupations Code, Chapter 503.
§681.122.Staggered Renewals.
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 7, 2008.
TRD-200800079
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
22 TAC §§681.141, 681.142, 681.144 - 681.147
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.141.General.
(a) The purpose of this subchapter is to establish
the continuing education requirements for the renewal of a regular
license [
or a regular license with art therapy specialty designation
which a licensee must complete annually toward furthering of professional
development in professional counseling
]. These requirements
are intended to maintain and improve the quality of professional counseling
services provided to the public and maintain licensee knowledge of
current research, techniques, and practice; and provide other resources
which will improve skill and competence in professional counseling.
(b) (No change.)
(c)
A licensee must complete at least four hours
of continuing education directly related to counselor ethics issues
each renewal period. Completion of the Texas Jurisprudence Exam will
count as one hour of continuing education in counselor ethics.
[
Every other year, a licensee must complete at least three hours of
continuing education directly related to counselor ethics issues.
]
(d) (No change.)
(e) Beginning January 1, 2007, a licensee must successfully
complete the Texas Jurisprudence Examination
each renewal period
[
in order to renew their license
].
(f) A licensee holding the supervisor status must complete 3 hours of continuing education directly related to supervision practices as part of the 24 hours of continuing education.
§681.142.Types of Acceptable Continuing Education.
(a) Acceptable continuing education may include:
(1)
[
be
] teaching or consultation
in graduate level programs which are designed to increase professional
knowledge related to the practice of professional counseling provided
that such teaching and consultation is not part of, or required as
a part of, one's employment
;
[
.
]
(2)
[
(b)
] [
Acceptable continuing
education may be the
] completion of graduate academic courses
in areas supporting development of skill and competence in professional
counseling at an accredited institution
;
[
.
]
(3)
[
(c)
] [
Acceptable continuing education may be
] participation in case supervision, management,
or consultation provided that it is not required as a part of a licensee's
employment; is conducted according to stated training or didactic
goals such as expertise in specific techniques including supervision
techniques or certification in specialty areas of counseling; is conducted
by an appropriately state-licensed, state-certified, or state-registered
mental health professional who meets board requirements for supervisors,
demonstrates training and expertise in the specific area for which
supervision is provided, and has received prior approval by the board
for the program; and does not exceed six months in length
;
[
.
]
(4)
[
(d)
] [
Acceptable continuing education may be
] participation or teaching in programs directly
related to counseling (e.g., institutes, seminars, workshops, or conferences)
which are approved or offered by an accredited college or university,
a nationally recognized professional organization in the mental health
field or its state or local equivalent organization, or a state or
federal governmental agency
;
[
.
]
(5)
[
(e)
] [
Acceptable continuing education may be the
] completion of an independent study program
directly related to counseling and approved or offered by a nationally
recognized professional organization in the mental health field or
its state equivalent, approved or offered by an accredited college
or university, or approved or offered by a board approved continuing
education provider
; and/or
[
.
]
(6)
[
(f)
] [
Acceptable continuing education may be
] participation in programs directly related
to counseling offered by persons approved by the board as continuing
education providers.
(b)
[
(g)
] Continuing education
hours not applied to the current continuing education requirement
may
only
be applied to meet the continuing education requirement
for the following continuing education period [
only
].
(c) Continuing education must fall within these approved content areas:
(1) normal human growth;
(2) abnormal human behavior;
(3) appraisal or assessment techniques;
(4) counseling theories;
(5) counseling methods or techniques;
(A) counseling individuals; and
(B) groups;
(6) research;
(7) life style and career development;
(8) social, cultural, and family issues;
(9) professional orientation and counselor ethics; and/or
(10) other areas directly supporting the continued development of the profession of counseling skills.
§681.144. Pre- Approved Providers.
(a) Continuing education providers may apply for approval
to provide continuing education on forms provided by the board.
Applicants
[
Continuing education provider applicants
] shall
submit a continuing education provider application form, accompanied
by a $50 [
continuing education provider
] processing fee
[
and shall renew the approval status annually by submission of
a renewal continuing education provider application form, accompanied
by a $50 continuing education provider processing fee
].
(b) Providers shall renew the approval status annually by submission of a renewal application form, accompanied by a $50 processing fee.
(c)
[
(b)
]
Provider
[
Board approval of provider
] applications will be approved based
on a review of the application and a determination of the applicant's
ability to comply with board rules.
(d)
[
(c)
] Board approvals are
effective for twelve months [
from the date of board approval.
Renewal provider applications must be submitted to the board annually,
accompanied by a $50 processing fee
].
(e)
[
(d)
] Approved providers
of continuing education must comply with board requirements as set
out in §681.142 of this title (relating to Types of Acceptable
Continuing Education) and §681.145 of this title (relating to
Determination of Clock-hour Credits).
(f)
[
(e)
] Approved providers
of continuing education must maintain records of all continuing education
activities for a period of five years including names of all presenters,
complete course descriptions and objectives, teaching methods employed,
attendance sheets for each course, sample certificates of attendance,
and evaluation documents from each participant for the specific experience.
The provider shall provide each participant with written documentation
of attendance, which includes the participant's name, the number of
approved continuing education hours, the title and date(s) of the
program, the provider number, and the signature of the provider.
(g)
[
(f)
] Failure to comply with
[
board
] record keeping requirements or failure to comply
with requirements of instructor or course qualifications [
is a violation of board rules and
] may result in termination of
[
approval
] status or denial of renewal
status
[
of provider approval
].
(h)
[
(g)
] Providers are subject
to audit of all continuing education records [
upon written request by the board
]. Upon receipt of written notice of audit, the
provider will submit all requested records of continuing education
to the board within ten working days. Failure to provide documentation
as requested or submission of fraudulent documents will result in
termination of approval status.
(i)
[
(h)
] Upon receipt and audit
of documents submitted by the provider, the board will notify the
provider of the results of the audit. The board may inform the provider
of any corrective action needed, may terminate current approval, or
may deny future applications based on a finding of non-compliance
with this subchapter.
§681.145.Determination of Clock-hour Credits.
(a) Parts of programs which meet the criteria of §681.142[
(a), (e), (f), and (g)
] of this title (relating to Types of
Acceptable Continuing Education) shall be credited on a one-for-one
basis with one clock-hour of credit for each clock-hour spent in the
continuing education activity.
(b) Teaching in programs which meet the board's criteria
as set out in §681.142[
(b)
] of this title shall be
credited on the basis of one clock-hour of credit for one clock-hour
taught plus two clock-hours credit for preparation for each hour actually
taught. No more than
9
[
8
] hours of the
24
[
12
] clock-hour continuing education requirement can be credited
under this option. Credit may be granted for the same presentation
only once during a
two-year
[
12-month
] period.
(c) Completion of academic work at an institution which
meets the accreditation standards acceptable to the board and the
criteria set out in §681.142[
(c)
] of this title shall
be credited on the basis of 15 clock-hours of credit for each semester
hour or 10 clock-hours of credit for each quarter hour completed and
for which a passing grade was received.
(d) No more than four clock-hours of the
24
[
12
] clock-hours continuing education requirement may be obtained
through case supervision, management, and consultation programs set
out in §681.142[
(d)
] of this title.
§681.146.Reporting of Continuing Education.
[
(a)
A licensee shall report
continuing education on a form provided by the board which the licensee
shall complete and sign. No individual documents of participation
in continuing education are to be submitted to the board unless requested
in writing.]
(a)
[
(b)
] The board will monitor
a licensee's compliance with continuing education requirements by
the use of random audit. Licensees will be notified in writing if
they have been selected for a continuing education audit. Individual
supporting documents of participation in continuing education activities
are not to be submitted to the board unless a written Notice of Audit
is received informing the licensee that he or she has been randomly
selected for a document audit. Upon receipt of a Notice of Audit the
licensee will be required to submit all appropriate documentation
to substantiate compliance with the board's continuing education requirements
within 15 working days of receipt of notice.
(b)
[
(c)
] The licensee is responsible
for maintaining continuing education records for a period of two years.
(c)
[
(d)
] An audit shall be automatic
for a licensee who was determined to be non-compliant
during
the
immediately preceding audit.
(d)
[
(e)
] Appropriate continuing education supporting documentation
include:
[
includes:
]
(1)
[
for a
] program attended, certificate of attendance;
(2)
[
for
] teaching or consultation in approved
programs, a letter on the sponsoring agency's letterhead giving name
of program, location, dates, and subjects taught and giving total
clock-hours of teaching or consultation;
(3)
[
for
] completion of academic work from
accredited schools, evidence of course credit;
(4)
[
for
] official auditing of a graduate
level course at a regionally accredited academic institution, a letter
from the academic institution or professor which includes the actual
number of clock-hours attended.
(e)
[
(f)
] Failure to meet the
continuing education requirement, provide documentation as requested
by the board, or providing fraudulent documentation is a violation
of board rules and may result in disciplinary action[
, up to and including license revocation
].
§681.147.Activities Unacceptable as Continuing Education.
The board will not give continuing education credit to a licensee for:
(1) - (2) (No change.)
(3) meetings and activities not related to the practice
of professional counseling
that
[
which
] are required as a part of one's job;
(4) teaching or consultation
that
[
which
]
is part of one's employment; and
(5) an experience
that
[
which
]
does not fit the types of acceptable continuing education in §681.142
of this title (relating to Types of Acceptable Continuing Education).
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 7, 2008.
TRD-200800080
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
(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 Texas State Board of Examiners of Professional Counselors 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, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rule implements Government Code, §2001.039.
The proposed repeal affects Occupations Code, Chapter 503.
§681.143.Procedures for Approval of Programs.
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 7, 2008.
TRD-200800081
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
22 TAC §§681.161, 681.162, 681.164 - 681.171
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.161.Complaint Procedures.
(a)
A complaint may be filed in writing with the
board.
[
A person wishing to report an alleged violation
of the Act or the rules by a licensee or other person shall notify
the executive director. The initial notification may be in writing,
by telephone, or by personal visit to the board office.
]
(b) A complaint shall not be accepted by the board office if
it
[
the official form
] is not filed
within five years of the date of termination of the counselor-client
relationship which gave rise to the alleged violations. If the client
was a minor at the time of the alleged violation, this time limitation
does not begin to run until the client reaches the age of 18 years.
A complainant shall be notified of the non-acceptance of untimely
complaints. This time limitation shall not apply to complaints involving
violations of §681.42 of this title (relating to Sexual Misconduct)
or the board's previous rules relating to sexual activities.
(c) Upon receipt of a complaint, the executive director
shall send an acknowledgment letter to the complainant [
and an
official form which the complainant must complete and return to the
board before further action may be taken
]. The executive director
may accept an anonymous complaint if there is sufficient information
for the investigation.
(d) - (i) (No change.)
(j) If a written complaint is filed with the board
that the board has the authority to resolve, the board,
periodically,
[
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.
[
(k)
If after due investigation
a complaint or allegation is not resolved by the committee of the
board, the committee may recommend that the license be revoked, suspended,
or denied or that other appropriate actions as authorized by law be
taken.]
§681.162.Disciplinary Action; Notices.
(a) The board may deny, revoke, temporarily suspend, or suspend a license, or may probate disciplinary action, or may issue a reprimand or impose an administrative penalty to a person who:
(1) - (5) (No change.)
(b) Prior to institution of formal proceedings to discipline
a licensee, the board shall give written notice to the licensee [
by
certified mail, return receipt requested,
] of the facts or conduct
alleged to warrant the disciplinary action. The notice shall inform
the licensee or applicant of the opportunity to retain legal representation.
The licensee or applicant shall be given the opportunity, as described
in the notice, to show compliance with all requirements of the Act
and this chapter.
(c) If denial, revocation, or suspension of a license
is proposed, the board shall give written notice [
by certified
mail, return receipt requested; or regular mail
] of the basis
for the proposal and that the licensee or applicant must request,
in writing, a formal hearing within 15 working days of receipt of
the notice, or the right to a hearing shall be waived and the license
shall be denied, revoked, or suspended.
(d) - (e) (No change.)
§681.164.Licensing of Persons with Criminal Convictions.
(a) (No change.)
(b) The board shall consider the criminal conviction
of a licensee or applicant as possible grounds for disciplinary action
or application denial [
and shall review the conviction
].
(c) - (d) (No change.)
(e) Procedures for disciplinary action or application
denial against persons with criminal convictions
:
[
.
]
(1) - (2) (No change.)
§681.165.Suspension, Temporary [ Emergency ] Suspension, Revocation, or Denial.
(a) - (d) (No change.)
§681.166.Informal Disposition.
(a) - (d) (No change.)
(e)
The notice shall inform the licensee or applicant
of the nature of the alleged violation or the reason for application
denial; that the licensee may be represented by legal counsel; that
the licensee or applicant may offer the testimony of witnesses and
present other evidence as may be appropriate
within time limits set by the Executive Director
; [
that a complaints committee member shall be present;
] that the board's legal counsel shall
be present; that the licensee's or applicant's attendance and participation
is voluntary; [
that the complainant and any client involved in
the alleged violations may be present;
] and that the informal
conference shall be canceled if the licensee or applicant notifies
the executive director that he or she or his or her legal counsel
will not attend. A copy of the board's rules concerning informal disposition
shall be enclosed with the notice of the informal conference.
[
(f)
The complainant may
be informed that he or she may appear and testify or may submit a
written statement for consideration at the informal conference.]
(f)
[
(g)
]
At least one
[
A
] member of the complaints committee shall be present at an
informal conference.
(g)
[
(h)
] The conference shall
be informal and shall not follow the procedures established in this
chapter for contested cases and formal hearings.
(h)
[
(i)
] The licensee, the licensee's
attorney, the board's attorney, the executive director and the complaints
committee member may question witnesses, make relevant statements,
present statements of persons not in attendance, and present such
other evidence as may be appropriate.
(i)
[
(j)
] The board's legal counsel
may attend each informal conference. The complaints committee member
or executive director may call upon the attorney at any time for assistance
in the informal conference.
(j)
[
(k)
] The licensee shall
be afforded the opportunity to make statements that are material and
relevant.
(k)
[
(l)
] The complaints committee member or the executive director may exclude
anyone
from
all or part
the informal conference [
all persons except
witnesses during their testimony, the licensee, the licensee's attorney,
and board staff
].
(l)
[
(m)
] Any written statement
submitted by the complainant shall be reviewed at the conference.
(m)
[
(n)
] At the conclusion of
the informal conference, the complaints committee member or the 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 or this chapter. The complaints committee
member may also conclude that the board 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.
(n)
[
(o)
] The licensee or applicant
may either accept or reject the recommendations at the informal conference.
If the recommendations are accepted, an agreed order shall be prepared
by the board office or the board's legal counsel and forwarded to
the licensee or applicant. The order may contain agreed findings of
fact and conclusions of law. The licensee or applicant shall execute
the order and return the signed order to the board office within 10
working 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 recommendations.
(o)
[
(p)
] If the licensee or
applicant signs and accepts the proposed recommendations, the agreed
order shall be submitted to the complaints committee and the board
for approval. Placement of the agreed order on the committee and board
agendas shall constitute only a recommendation for approval by the
board.
(p)
[
(q)
] The identity of the
licensee or applicant shall not be made available to the board until
after the board has reviewed and accepted the agreed order unless
the licensee or applicant chooses to attend the board meeting. The
licensee or applicant shall be notified of the date, time, and place
of the board meeting at which the proposed agreed order will be considered.
Attendance by the licensee or applicant is voluntary.
(q)
[
(r)
] Upon an affirmative
majority vote, the board shall enter an agreed order approving the
accepted recommendations. The board may not change the terms of a
proposed order but may only approve or disapprove an agreed order
unless the licensee or applicant is present at the board meeting and
agrees to other terms proposed by the board.
(r)
[
(s)
] If the board does not
approve a proposed agreed order, the licensee or applicant shall be
so informed. The matter shall be referred to the executive director
for other appropriate action.
(s)
[
(t)
] A proposed agreed order
is not effective until the board has approved the agreed order and
the order is signed by the board chair.
(t)
[
(u)
] A licensee's opportunity
for an informal conference under this section shall satisfy the requirement
of the Administrative Procedure Act, Texas Government Code, §2001.054(c).
(u)
[
(v)
] If a licensee who has
requested an informal conference fails to appear at the conference
and fails to provide notice of the licensee's inability to attend
the conference at least 24 hours in advance of the time the conference
is scheduled, such action may constitute a withdrawal of the request
for a formal hearing.
(v)
[
(w)
] Refund Order.
(1) The board may order a license holder to pay a refund to a client or other payer 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 client or other payer 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.
§681.167. Waiver of Right to Hearing [ Default Orders ].
(a)
Failure to respond to a notice from the board
or if a licensee agrees with the action proposed in the notice,
[
If a right to a hearing is waived under §681.162(c) of this title
(relating to Disciplinary Action; Notices) or §681.184(b) of
this title (relating to Action After the Hearing) or a licensee fails
to appear at an informal conference as described in §681.166(v),
relating to informal disposition,
] the board may enter an order
taking disciplinary action or an order of application denial as described
in the written notice to the licensee or applicant.
[
(b)
The licensee or applicant
and the complainant shall be notified of the date, time, and place
of the board meeting at which the default order will be considered.
Attendance is voluntary.]
(b)
[
(c)
] Upon an affirmative
majority vote, the board shall enter an order imposing appropriate
disciplinary action or an order of application denial.
§681.168.Surrender of License when Complaint is Pending.
(a) - (c) (No change.)
(d) Upon surrender of a license during the course of
the investigation, the surrender is considered
a final disciplinary
action and may be considered for denial upon subsequent reapplication
for license.
[
accepted and is not subject to reinstatement
until a hearing has been held.
]
§681.169. License Suspension or Denial [ Suspension of License ] Relating to Child Support and Child Custody.
(a) - (h) (No change.)
(i) In accordance with the Family Code, §232.0135, the board shall deny the license renewal application of a license holder who has failed to pay child support or failed to comply with the terms of an order providing for the possession of or access to a child.
§681.170.Monitoring of Licensees.
(a) (No change.)
(b)
A
[
Each
] licensee that has
had disciplinary action taken against his or her license
may
[
shall
] be required to submit regularly scheduled reports to
the executive director. [
The reports shall be scheduled at intervals
appropriate to each individual situation.
]
(c) - (d) (No change.)
§681.171. Assessment of Administrative Penalties.
(a) - (b) (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 7, 2008.
TRD-200800082
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
22 TAC §§681.181, 681.182, 681.184
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the proposed rule amendments implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.181.Purpose.
These rules cover the hearing procedures and practices that
are available to persons or parties who request formal hearings. The
intended effect of these rules is to supplement the contested case
provisions of the [
Texas
] Government Code, Chapter 2001,
Administrative Procedure Act (APA) and the hearing procedures of the
State Office of Administrative Hearings (Texas Government Code, Chapter 2003).
§681.182.Formal Hearing Procedures.
(a) (No change.)
(b) Remedies available upon default. The Administrative
Law Judge (ALJ) shall proceed in the party's absence and such failure
to appear shall entitle the department to seek informal disposition
as provided by the [
Texas
] Government Code, Chapter 2001.
The ALJ shall grant any motion by the department to remove the case
from the contested hearing docket and allow for informal disposition
by the commissioner.
(c) The board may enter a default judgment by issuing
an order against the defaulting party in which the factual allegations
in the notice of hearing are deemed admitted as true without the requirement
of submitting additional proof, upon the offer of proof that proper
notice was provided to the defaulting party opponent. For purposes
of this section, proper notice means notice sufficient to meet the
provisions of the [
Texas
] Government Code, Chapter 2001,
and the State Office of Administrative Hearings Rules of Procedure.
(d) Motion to set aside and reopen. A timely motion by the respondent to set aside the default order and reopen the record may be granted if the respondent establishes that the failure to attend the hearing was neither intentional nor the result of conscious indifference, and that such failure was due to mistake, accident, or circumstances beyond the respondent's control.
(1) A motion to set aside the default order and reopen
the record shall be filed with the board prior to the time that the
order of the board becomes final pursuant to the provisions of the
[
Texas
] Government Code.
(2) A motion to set aside the default order and reopen
the record is not a motion for rehearing and is not to be considered
a substitute for a motion for rehearing. The filing of a motion to
set aside the default order and reopen has no effect on either the
statutory time periods for the filing of a motion for rehearing or
on the time period for ruling on a motion for rehearing, as provided in the [
Texas
] Government Code.
(e) (No change.)
§681.184.Action After the Hearing.
(a) (No change.)
(b) Appeals. All appeals from final
board
[
department
] orders or decisions shall be governed by the APA
or other pertinent statute and shall be addressed to the board.
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 7, 2008.
TRD-200800083
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
(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 Texas State Board of Examiners of Professional Counselors 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, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rule implements Government Code, §2001.039.
The proposed repeal affects Occupations Code, Chapter 503.
§681.183.General.
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 7, 2008.
TRD-200800084
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The proposed amendments are authorized by Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of the board's duties. The review of the rules implements Government Code, §2001.039.
The proposed amendments affect Occupations Code, Chapter 503.
§681.201.General.
This schedule of sanctions is adopted as required by the Act, §503.402.
The schedule is intended to be utilized by the complaints committee
as a guide in assessing sanctions for violations of the Act or this
chapter. The schedule is also intended to serve as a guide to administrative
law judges, and as a written statement of applicable rules or policies
of the board pursuant to the [
Texas
] Government Code, §2001.058(c).
The failure of an administrative law judge to follow the schedule
may serve as a basis to vacate or modify an order pursuant to the
Texas Government Code, §2001.058(e). This schedule is not intended
as a substitute for thoughtful consideration of each individual disciplinary
matter. Instead, it should be used as a tool in that effort.
§681.202.Relevant Factors.
When a licensee has violated the Act or this chapter, three
general factors combine to determine the appropriate sanction which
includes
[
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 committee or the administrative law judge.
Specific factors are to be considered as set forth as follows.
(1) Seriousness of Violation. The following factors are identified:
(A) - (B) (No change.)
(C) the frequency and time [
-
] periods covered
by the violations, such as whether there were multiple violations,
or a single violation, and the period of time over which the violations
occurred.
(2) Nature of the violation. The following factors are identified:
(A) the relationship between the licensee and the person
harmed, or exposed to harm[
,
] such as a dependent relationship
of a client-counselor, or stranger to the licensee;
(B) - (D) (No change.)
(3) - (5) (No change.)
§681.203.Severity Levels [ Level ] and Sanction Guide.
The following severity levels and sanction guides are based on the relevant factors in §681.202 of this title (relating to Relevant Factors).
(1) - (5) (No change.)
§681.204.Other Actions.
The complaints committee or executive director, as appropriate,
may also resolve pending complaints by issuance of formal advisory
letters informing licensees of their duties under the Act or this
chapter, and whether the conduct or omission complained of appears
to violate such duties. Such advisory letters may be introduced as
evidence in any subsequent disciplinary action involving acts or omissions
after receipt of the advisory letters. The complaints committee or
executive director, as appropriate, may also issue informal reminders
to licensees regarding compliance with minor licensing matters. The
licensee is not entitled to a hearing on the matters set forth in
a
formal advisory
letter
[
letters
] or informal
reminder
[
reminders
], but may submit a written response [
to be included with such letters in their licensing records
].
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 7, 2008.
TRD-200800085
Judy Powell
Chair
Texas State Board of Examiners of Professional Counselors
Earliest possible date of adoption: February 17, 2008
For further information, please call: (512) 458-7111 x6972