Adopted Rules Title 22

TITLE 22. EXAMINING BOARDS

PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER A. LICENSING

The Texas Funeral Service Commission (Commission) adopts amendments to §203.8(g), relating to the number of in person continuing education hours that need to be completed by the time of license renewal. The amended section is adopted without changes to the proposed text as published in the September 18, 2020, issue of the Texas Register (45 TexReg 6570). The rule will not be republished.

REASONED JUSTIFICATION FOR RULE ADOPTION: The adopted amendments/repeal to Chapter 203, Subchapter A are necessary to comply with statutory changes made during the 86th Legislative Session in HB 1540, as directed by the Texas Sunset Advisory Commission, or as requested by stakeholders to clarify the rules. The adopted amendments also address challenges arising from the COVID-19 pandemic by removing the requirement of in-person continuing education requirements and only requiring 16 hours of continuing education units (CEU).

PUBLIC COMMENTS: There have been no comments submitted regarding this adoption.

CHANGES TO PUBLISHED TEXT: The amended section is adopted, in part, to correct the details of the number of specific CEU that are required to be completed for license renewal, with regard to the modality of the CEU hours. Since the onset of the COVID-19 health crisis, in-person continuing education hours cannot be completed without risk to the presenter and the participants. Therefore, it is the position of the Commission to remove the in-person continuing education hour requirement and only require a total of 16 hours of CEU be completed prior to a license renewal. This adoption has no impact on the requirements presented in §203.8(f).

STATUTORY AUTHORITY: This proposal is made pursuant to (1) Texas Occupations Code §651.152, which authorizes the Commission to adopt rules considered necessary for carrying out the Commission's work; (2) Texas Occupations Code §651.2, which authorizes the Commission to renew licenses; (3) Texas Occupations Code §§651.255-651.256, which outline exams required to be licensed as a funeral director or embalmer; (4) Texas Occupations Code §651.259, which authorizes the Commission to reciprocate licenses from other states; (5) Texas Occupations Code §651.265, which authorizes the Commission to renew licenses in active/inactive status; (6) Texas Occupations Code §651.266, which authorizes the Commission to adopt rules related to continuing education; (7) Texas Occupations Code §651.3045, which authorizes the Commission to offer education waivers to certain applicants; and (8) Texas Occupations Code Chapter 55, which outlines requirements for occupational licensing of military members, veterans and spouses.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 2, 2020.

TRD-202004570

Glenn A. Bower

Executive Director

Texas Funeral Service Commission

Effective date: November 22, 2020

Proposal publication date: September 18, 2020

For further information, please call: (512) 936-2469

22 TAC §203.16

The Texas Funeral Service Commission (Commission) adopts amendments to §203.16, relating to Consequences of Criminal Convictions. The amended section is adopted without changes to the proposed text as published in the September 18, 2020, issue of the Texas Register (45 TexReg 6572). The rule will not be republished.

REASONED JUSTIFICATION FOR RULE ADOPTION: The amended section is adopted, in part, to bring the rule in alignment with Texas Occupation Code §53.021. The Texas State Auditor Office and the Office of the Attorney General have placed requirements on all the state agencies to bring their rules in alignment with Occupations Code §53.021 so that the individual agency rules do not conflict or contradict the state code.

PUBLIC COMMENTS: There have been no comments submitted regarding this adoption.

STATUTORY AUTHORITY: This proposal is made pursuant to (1) Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, (2) Texas Occupations Code Chapter 53, which outlines how a licensing agency may review criminal backgrounds of applicants and licensees in accordance with changes made when the 86th Texas Legislature enacted HB 1342 and SB 1217; and (3) the authority of the Commission to issue licenses pursuant to Texas Occupations Code §§651.251-253.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 2, 2020.

TRD-202004573

Glenn A. Bower

Executive Director

Texas Funeral Service Commission

Effective date: November 22, 2020

Proposal publication date: September 18, 2020

For further information, please call: (512) 936-2469

PART 17. TEXAS STATE BOARD OF PLUMBING EXAMINERS

CHAPTER 361. ADMINISTRATION

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §361.6

The Texas State Board of Plumbing Examiners (Board) adopts amendments to 22 Texas Administrative Code §361.6 without changes to the proposed text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4474).

REASONED JUSTIFICATION

The board sets license fees in amounts that are reasonable and necessary to cover the cost of administering Texas Occupations Code Chapter 1301. The amendment to §361.6, concerning fees, is in response to a need to remove barriers for those who may wish to establish a plumbing business. Fees for Journeyman and Master Plumber licenses in Texas are significantly lower than the national average. The Responsible Master Plumber endorsement is in addition to the cost of a Master Plumber license and establishes that a Master Plumber holds the required insurance and license to contract and offer to perform plumbing work for the general public.

PUBLIC COMMENT

The Board published the proposed amendments to 22 Texas Administrative Code §361.6 in the July 3, 2020, issue of the Texas Register (45 TexReg 4474). No comments were received. A public hearing in accordance with Texas Government Code §2001.029 was not required.

STATEMENT OF AUTHORITY

Amended §361.6 is adopted under the authority of §1301.251(2) of the Texas Occupations Code, which requires the Board to adopt and enforce rules necessary to administer and enforce chapter 1301 of the Occupations Code (Plumbing License Law) and under the authority of, and to implement Plumbing License Law §1301.253, concerning fees. This adoption affects the Plumbing License Law.

No other statute is affected by the adoption of this rule.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 29, 2020.

TRD-202004527

Lisa Hill

Executive Director

Texas State Board of Plumbing Examiners

Effective date: November 18, 2020

Proposal publication date: July 24, 2020

For further information, please call: (512) 936-5200

PART 30. TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS

CHAPTER 681. PROFESSIONAL COUNSELORS

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §§681.2, 681.4, 681.5, 681.9, 681.11

The Texas Behavioral Health Executive Council adopts amended §§681.2, 681.4, 681.5, 681.9, and 681.11, relating to General Provisions. Sections 681.4, 681.5, 681.9, and 681.11 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4876) and will not be republished. In response to public comments requesting the definition for Recognized Religious Practitioner not be repealed, §681.2 is being changed and adopted as republished below.

Reasoned Justification.

The amended rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507.

If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical practice for a profession; continuing education requirements; or a schedule of sanctions then the rule must first be proposed to the Executive Council by the applicable board for the profession before the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code.

The amended rules are the definitions for the rules in Chapter 681 and pertain to the general operations for the Texas State Board of Examiners of Professional Counselors; the rules also incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Examiners of Professional Counselors, in accordance with §503.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Tex. Occ. Code and may adopt these rules.

List of interested groups or associations against the rule.

American Art Therapy Association - §681.2(9)

Texas Association of Psychological Associates - §681.2(18)

Texas Counseling Association - §681.2(19)

Summary of comments against the rule.

A commenter recommends including art therapy in the definition for counseling-related field in §681.2(9) for consistency and clarity.

Commenters expressed their disapproval of the change of the term LPC Intern to LPC Associate, as listed in §681.2(18), pertaining to definitions, and reflected elsewhere throughout these rules. Commenters felt the term associate would be misleading or confusing, and felt the term intern was more accurate.

Commenters requested the definition for Recognized Religious Practitioner not be repealed from §681.2. A commenter opined that this definition was important because it provided notice that in order for individuals to meet this exemption, in their provision of counseling related support, they need to be affiliated with a legally recognized religious organization. Commenters also felt retaining this definition would maintain consistency with other rules.

A commenter questioned why §681.2 retained the definition for the Board when, as the commenter opined, the Executive Council has replaced it.

A commenter was concerned that changing the requirement that a consent for services must be signed, to it must be executed, would cause confusion in §681.2.

A commenter opined that removing the requirement for a quorum and the use of Robert's Rules of Order when the Board took action in §681.4 was not a good thing, and the commenter believes that it removes some due process.

List of interested groups or associations for the rule.

Texas Counseling Association - §681.2(18)

Summary of comments for the rule.

Commenters expressed their support for the change of the term LPC Intern to LPC Associate, as listed in §681.2, pertaining to definitions, and reflected elsewhere throughout these rules. Commenters felt the term associate will be more accurately reflect an individual's skills and qualifications to practice.

Agency Response.

The Executive Council declines to include art therapy in the definition for counseling-related field in §681.2(9) because art therapy is already defined in §681.2(3).

The Executive Council believes LPC Associate will more accurately reflect an individual's skills and qualifications to practice, and therefore will proceed with adopting the change in §681.2(18), and all other corresponding rules where this term is used.

The Executive Council agrees there will be a benefit to keeping the definition for Recognized Religious Practitioner listed in §681.2(19), and agrees not to repeal the definition. The Executive Council also acknowledges that §801.2(22) contains an almost identical definition, so keeping the definition will also be helpful for clarity and consistency.

The Executive Council declines to delete the definition of the Board in §681.2(4) because the Board still exists and was not replaced as the commenter asserts.

The Executive Council declines to change the term executed back to signed in §684.2(7), pertaining to consent form. This amendment was discussed at the Board's July 9, 2020, public meeting, and the intent of this change was to make this definition clearer. The Executive Council agrees that this change provides greater clarity and therefore adopts this rule without any changes.

The Executive Council declines to make any changes to §681.4, pertaining to transaction of official business. A quorum of Board members is still required by this rule, as well as by other applicable Texas statutes. Additionally, the Board is not required to adopt Robert's Rules of Order and sees no benefit in doing so, therefore the Executive Council declines to amend this rule as requested.

Statutory Authority.

The rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §503.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §503.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts these rules in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Texas Occupations Code and may adopt these rules.

Lastly, the Executive Council adopts these rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§681.2.Definitions.

The following words and terms, as used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) Accredited school--An institution of higher education accredited by a regional accrediting agency recognized by the Council for Higher Education Accreditation, the Texas Higher Education Coordinating Board, or the United States Department of Education.

(2) Act--The Licensed Professional Counselor Act, Texas Occupations Code, Chapter 503.

(3) Art therapy--A human service profession in which clients, facilitated by the art therapist, use art media, the creative process, and the resulting artwork to explore their feelings, reconcile emotional conflicts, foster self-awareness, manage behavior, develop social skills, improve reality orientation, reduce anxiety and increase self-esteem.

(4) Board--The Texas State Board of Examiners of Professional Counselors.

(5) Client(s)--A person(s) who requests and receives counseling services from a licensee or who has engaged in a therapeutic relationship with a licensee.

(6) Consent for services--Process for receiving permission from the legally authorized person who agrees to services.

(7) Consent Form--A document executed by the legally authorized person to ensure the client is aware of fees and arrangements for payment; counseling purposes, goals, and techniques; restrictions placed on the license by the Council; limits on confidentiality; intent of the licensee to use another individual to provide counseling treatment intervention to the client; supervision of the licensee by another licensed health care professional including the name, address, contact information, and qualifications of the supervisor; and the name, address, and telephone number of the Council for the purpose of reporting violations of the Act or this chapter.

(8) Council--The Texas Behavioral Health Executive Council.

(9) Counseling-related field--A mental health discipline using human development, psychotherapeutic, and mental health principles including, but not limited to, clinical or counseling psychology, psychiatry, social work, marriage and family therapy, and counseling and guidance. Non-counseling related fields include, but are not limited to, sociology, education, administration, dance therapy and theology.

(10) Executive Director--The executive director for the Texas Behavioral Health Executive Council. The executive director may delegate responsibilities to other staff members.

(11) Direct client contact--Time spent counseling clients.

(12) Health care professional--Any person licensed, certified, or registered by the state in a health related profession.

(13) Indirect hours--Time spent in management, administration or other aspects of counseling service ancillary to direct client contact.

(14) Jurisprudence exam--The Texas State Board of Examiners of Licensed Professional Counselors Jurisprudence exam. An online exam based upon the statutes and rules relating to the practice of counseling.

(15) License--An LPC license, LPC license with art therapy specialty designation, or LPC Associate license issued by the Council.

(16) Licensee---A person who holds an LPC license, LPC license with art therapy specialty designation, or LPC Associate license.

(17) LPC--Licensed Professional Counselor. A person holding an LPC license as a professional counselor with authority to practice in independent practice.

(18) LPC Associate--Licensed Professional Counselor Associate. A person who holds an LPC Associate license to practice counseling only under a board Council-approved supervisor and not as an independent practitioner.

(19) 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, 26 U.S.C. §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, L1.6033-2(g)(i)(2012);

(B) the individual providing the service remains accountable to the established authority of that denomination, church, sect, religious organization or integrated auxiliary; and

(20) Supervisor--An LPC approved by the Council as meeting the requirements set out in §681.93 of this title (relating to Supervisor Requirements) to supervise an LPC Associate.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004558

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

22 TAC §§681.10, 681.12 - 681.17

The Texas Behavioral Health Executive Council adopts the repeal of §§681.10, 681.12 - 681.17, relating to the Board, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4879). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

The adopted repeal of these rules is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507.

The Executive Council has adopted new rules, in this and a prior edition of the Texas Register, which concern the same subject matter and many of the same details and requirements found in these rules, therefore the repeal of these rules is necessary to implement H.B. 1501.

List of interested groups or associations against the rule repeal.

Texas Counseling Association - §681.13 and §681.16

Summary of comments against the rule.

Commenters requested §681.13, pertaining to impartiality and non-discrimination for Board determinations, not be repealed. Commenters opined that even though other laws would prohibit the Board from failing to be impartial or non-discriminatory, the commenters felt it would be beneficial to retain this rule.

Commenters requested §681.16, pertaining to petition for adoption of a rule, not be repealed. Commenters opined that keeping this rule will allow such petitions to be submitted directly to the Board, instead of first through the Executive Council.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council declines to retain §681.13. The Executive Council has already adopted a rule that addresses Council and Board member recusals, if one cannot be impartial, see §881.5.

And the Executive Council has already adopted and posted its Compact with Texans which states the agency's commitment to non-discrimination and reasonable accommodations.

The Executive Council declines to retain §681.16. The Executive Council has already adopted a rule that addresses petitions for rulemaking, see §881.21. Additionally, the Executive Council has already proposed an amendment to §881.21 which states that agency staff will submit to the appropriate member board for review and consideration petitions for rulemaking which involves any matters set forth in §507.153(a) of the Tex. Occ. Code.

Statutory Authority.

The repeal is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this repeal pursuant to the authority found in §507.152 of the Tex. Occ. Code, which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §503.2015 of the Tex. Occ. Code, the Texas State Board of Examiners of Professional Counselors previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §503.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Texas Occupations Code and may adopt this repeal.

Lastly, the Executive Council adopts this repeal under the authority found in §2001.004 of the Tex. Gov't Code, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004544

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER B. AUTHORIZED COUNSELING METHODS AND PRACTICES

22 TAC §681.31

The Texas Behavioral Health Executive Council adopts the repeal of §681.31, relating to authorized counseling methods and practices, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4880). The rule will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004545

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER B. RULES OF PRACTICE

22 TAC §§681.31, 681.41 - 681.47, 681.49 - 681.53

The Texas Behavioral Health Executive Council adopts new §§681.31, 681.41 - 681.47, and 681.49 - 681.53, relating to Rules of Practice. Sections 681.31, 681.42 - 681.47, and 681.49 - 681.53 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4881) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §681.41 is being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507.

The new rules pertain to the scope of practice, standards of care, and ethical practice for professional counselors; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter requested §681.31 be amended to include EMDR as a counseling method.

A commenter requested §681.41 be amended to include what the Board will do when unlicensed practice is reported, that the rule is too vague regarding a licensee's duty to make reasonable attempts to remove misleading information, that the duty to update the informed consent with a client should also require a client's signature, and that employees of an agency should be required to maintain records the same as other licensees.

A commenter requested §681.41, pertaining to general ethical requirements, be amended to include prohibitions against licensees discriminating against clients. The commenter opines that it is imperative that the citizens of Texas know that their LPC will not discriminate in the provision of their services.

A commenter wondered about having to list the supervisor's address on the supervisee's cards and marketing. Presumably this comment concerns §§681.41(e) and 681.49.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

A commenter appreciated the changes made to the required time period for the retention of records, the commenter opined that this will better match HIPAA requirements. Presumably this comment concerns §681.41(r). The commenter also stated that having the supervisor's name in a different font style or size should be fine as long as it is not 6 point font or smaller, which is the commenter's understanding. Presumably this comment concerns §681.49(h).

Agency Response.

The Executive Council declines to amend §681.31 to specifically list EMDR as a counseling method. The rule is not intended to be an exhaustive list of all counseling methods, techniques, and modalities; and at this time there is not a need to add to the list of examples in this rule.

The Executive Council declines to amend §681.41 as requested. The Executive Council will process complaints filed in accordance with its rules, see §§884.10 - 884.12, and it is unnecessary to list the same in §681.41. The Executive Council does not agree that the rule is too vague in its requirements for licensees to take reasonable action to address misleading information. What a reasonable action will be would have to be determined on a case-by-case basis, depending upon the facts of each scenario, and it would not be possible to create an exhaustive list of all reasonable actions a licensee could or should take given the wide variety of factual scenarios a licensee could encounter regarding misleading information. The Executive Council declines to add any additional requirements to §681.41 that would require additional signatures to a new or amended consent form when changes are made. The rule already requires an informed consent to be executed by the client, and the licensee must then provide written notification of any changes, but the Executive Council does not see then need to require the consent form to be executed again each time a change has to be made. The Executive Council declines to make any changes regarding record maintenance for employees of agencies in §681.41. The employers of licensees would, in all likelihood, be covered by other state and federal laws regarding the maintenance of records and licensees are still required to create appropriate records regarding their services. When a client receives services from an agency, such as a hospital, they will typically then return to that agency for their records instead of reaching out to all the individual licensees the client may have seen at the agency, or hospital. Requiring a licensee employed by a hospital to maintain their own set of records would be duplicative and unnecessary.

The Executive Council declines to amend §681.41 to add prohibitions against discriminatory conduct as requested. The current proposal does not address the issues the commenter requests added to the rule, therefore adding any such change would be a substantive change requiring re-proposal. Chapter 503 of the Tex. Occ. Code is the Licensed Professional Counselor Act. This Act, as well as Chapter 507 of the Tex. Occ. Code, grants the Executive Council the legal authority to adopt rules pertaining to LPCs. The Executive Council does not have the legal authority to adopt beyond the scope and authority of these statutes. At this time, it is not clear that the Executive Council has the legal authority to adopt rules as the commenter has requested, therefore the agency must decline, at this time, to amend the rule as requested. Current §882.36 requires licensees to comply with all state and federal laws affecting a licensee's practice. Therefore if a licensee violates the Civil Rights Act, the Americans with Disabilities Act, or any other such law prohibiting discrimination then a licensee could be cited for violating §882.36.

Per §681.41(e) a supervisor's address must be listed in an informed consent, but §681.49(h), pertaining to advertising, does not require a supervisee's marketing to list the supervisor's address, it only requires the supervisor's name to be listed. The Executive Council makes no changes to these rules, it appears the commenter's question and concern about having to list the supervisor's address on the supervisee's cards and marketing has already been addressed.

The Executive Council appreciates the commenters supportive comments for the changes to §681.41(r) regarding the required time period for the retention of records, this was done to align with other rules; and the Executive Council appreciates the commenter's support for repealing the restrictions on font size and style when listing a supervisor and supervisee, per §681.49(h).

Statutory Authority.

Additionally, the Executive Council adopts these rules pursuant to the authority found in §507.152 of the Tex. Occ. Code, which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §503.2015 of the Tex. Occ. Code, the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §503.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

Lastly, the Executive Council adopts these rules under the authority found in §2001.004 of the Tex. Gov't Code, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§681.41.General Ethical Requirements.

(a) A licensee must not make any false, misleading, deceptive, fraudulent or exaggerated claim or statement about the licensee's services, including, but not limited to:

(1) the effectiveness of services;

(2) the licensee's qualifications, capabilities, background, training, experience, education, professional affiliations, fees, products, or publications; or

(3) the practice or field of counseling.

(b) A licensee must not make any false, misleading, deceptive, fraudulent or exaggerated claim or statement about the services of a mental health organization or agency, including, but not limited to, the effectiveness of services, qualifications, or products.

(c) A licensee must discourage a client from holding exaggerated or false ideas about the licensee's professional services, including, but not limited to, the effectiveness of the services, practice, qualifications, associations, or activities. If a licensee learns of exaggerated or false ideas held by a client or other person, the licensee must take immediate and reasonable action to correct the ideas held.

(d) A licensee must make reasonable efforts to discourage others whom the licensee does not control from making misrepresentations; exaggerated or false claims; or false, deceptive, or fraudulent statements about the licensee's practice, services, qualifications, associations, or activities. If a licensee learns of a misrepresentation; exaggerated or false claim; or false, deceptive, or fraudulent statement made by another, the licensee must take immediate and reasonable action to correct the statement.

(e) Regardless of setting, a licensee must provide counseling only in the context of a professional relationship. Prior to providing services, a licensee must obtain from an individual a signed informed consent, signed written receipt of information, or in the case of involuntary treatment a copy of the appropriate court order, including the following:

(1) fees and arrangements for payment;

(2) counseling purposes, goals, and techniques;

(3) any restrictions placed on the license by the Council;

(4) the limits on confidentiality;

(5) any intent of the licensee to use another individual to provide counseling treatment intervention to the client;

(6) supervision of the licensee by another licensed health care professional including the name, address, contact information and qualifications of the supervisor;

(7) the name, address and telephone number of the Council for the purpose of reporting violations of the Act or this chapter; and

(8) the established plan for the custody and control of the client's mental health records in the event of the licensee's death or incapacity, or the termination of the licensee's counseling practice.

(f) A licensee must inform the client in writing of any changes to the items in subsection (e) of this section, prior to initiating the change.

(g) Technological means of communication may be used to facilitate the therapeutic counseling process.

(h) In accordance with §503.401(a)(4) of the Act, a licensee must 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.

(i) A licensee employed or under contract with a chemical dependency facility or a mental health facility must 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, will not be considered as a violation of state law relating to illegal remuneration.

(j) A licensee must not engage in activities for the licensee's personal gain at the expense of a client.

(k) A licensee may promote the licensee's personal or business activities to a client if such activities, services or products are to facilitate the counseling process or help achieve the client's counseling goals. Prior to engaging in any such activities, services or product sales with the client, the licensee must first inform the client of the licensee's personal and/or business interest therein. A licensee must not exert undue influence in promoting such activities, services or products.

(l) A licensee must set and maintain professional boundaries.

(m) Except as provided by this subchapter, non-therapeutic relationships with clients are prohibited.

(1) A non-therapeutic relationship is any non-counseling activity initiated by either the licensee or client that results in a relationship unrelated to therapy.

(2) A licensee may not engage in a non-therapeutic relationship with a client if the relationship begins less than two (2) years after the end of the counseling relationship; the non-therapeutic relationship must be consensual, not the result of exploitation by the licensee, and is not detrimental to the client.

(3) A licensee may not engage in sexual contact with a client if the contact begins less than five (5) years after the end of the counseling relationship; the non-therapeutic relationship must be consensual, not the result of exploitation by the licensee, and is not detrimental to the client.

(4) For purposes of paragraphs (2) and (3) of this subsection, the licensee must be able to demonstrate there has been no exploitation and the non-therapeutic relationship is not detrimental to the client in light of all relevant factors, including, but not limited to, the factors set forth in §681.42(b)(4)(A) - (G) of this title (relating to Sexual Misconduct).

(5) The licensee must not provide counseling services to previous or current:

(A) family members;

(B) personal friends;

(D) business associates.

(6) The licensee must not give or accept a gift from a client or a relative of a client valued at more than $50, 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.

(7) The licensee must 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.

(n) The licensee must not knowingly offer or provide counseling 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 must request release from the client to inform the other professional and strive to establish positive and collaborative professional relationships.

(o) A licensee may take reasonable action to inform medical or law enforcement personnel if the licensee determines 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.

(p) The licensee must take reasonable precautions to protect clients from physical or emotional harm resulting from interaction:

(1) within a group; or

(2) individual counseling.

(q) For each client, a licensee must keep accurate records of:

(1) signed informed consent, signed written receipt of information, or, in the case of involuntary treatment, a copy of the appropriate court order

(2) intake assessment;

(3) dates of counseling treatment intervention;

(4) principal treatment methods;

(5) progress notes;

(6) treatment plan; and

(7) billing information.

(r) In the absence of applicable state and federal laws, rules or regulations, records held by a licensee must be kept for a minimum of seven (7) years from the date of termination of services with the client, or five (5) years after the client reaches the age of majority, whichever is greater.

(s) Records created by licensees during the scope of their employment by agencies or institutions that maintain client records are not required to comply with (q) and (r) of this section.

(t) Billing Requirements.

(1) A licensee must 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.

(2) Relationships between a licensee and any other person used by the licensee to provide services to a client must be so reflected on billing documents.

(3) Pursuant to Texas Health and Safety Code, Chapter 611, 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 must 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.

(4) A licensee may not knowingly overcharge a client.

(5) With the exception of an unkept appointment, a licensee may not submit to a client or a third party payor a bill for counseling treatment intervention the licensee knows or should know is improper, unreasonable, or unnecessary.

(u) A licensee must comply with all requirements of Texas Health and Safety Code Chapters 611 and 181 concerning the release of mental health records and confidential information.

(v) Prior to the commencement of counseling services to a minor client who is named in a custody agreement or court order, a licensee must obtain and review a current copy of the custody agreement or court order, as well as any applicable part of the divorce decree. A licensee must maintain these documents in the client's record and abide by the documents at all times. When federal or state statutes provide an exemption to secure consent of a parent or guardian prior to providing services to a minor, a licensee must follow the protocol set forth in such federal or state statutes.

(w) A licensee must terminate a professional counseling relationship when it is reasonably clear the client is not benefiting from the relationship.

(x) Upon termination of a relationship if professional counseling is still necessary, the licensee must take reasonable steps to facilitate the transfer to appropriate care.

(y) A licensee must not evaluate any individual's mental, emotional, or behavioral condition unless the licensee has personally interviewed the individual or the licensee discloses in the evaluation the licensee has not personally interviewed the individual.

(z) A licensee must not knowingly overtreat a client.

(aa) A licensee must not aid or abet the unlicensed practice of professional counseling by a person required to be licensed under the Act.

(bb) A licensee must report to the Council knowledge of any unlicensed practice of counseling.

(cc) A licensee or an applicant must not participate in the falsification of any materials submitted to the Council.

(dd) A licensee must not provide services while impaired by a physical, mental, or medical condition or by medication, drugs or alcohol.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004559

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER C. CODE OF ETHICS

22 TAC §§681.41 - 681.51

The Texas Behavioral Health Executive Council adopts the repeal of §§681.41 - 681.51, relating to code of ethics, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4891). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

A commenter wondered if there could be some other requirement than having to list a licensee's full legal name on marketing materials to protect the privacy of licensees. Presumably this comment concerns §681.48.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council is adopting the repeal of §681.48, but licensees are still required, per §882.30, to display their license which will have their full name listed. Additionally, any informed consent must include the licensee's name, per §681.2(7). While the Executive Council believes the privacy of licensees is important, the agency also believes it is important that clients know who they are receiving services from, and so a client can file a complaint against a licensee if needed. Therefore, the Executive Council declines to make any rule changes that the commenter is requesting.

Statutory Authority.

In accordance with §503.2015 of the Tex. Occ. Code the Texas State Board of Examiners of Professional Counselors previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §503.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004546

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER C. APPLICATION AND LICENSING

22 TAC §§681.71 - 681.73, 681.81 - 681.83, 681.91, 681.93, 681.101, 681.114, 681.141 - 681.143, 681.145, 681.147

The Texas Behavioral Health Executive Council adopts new §§681.71 - 681.73, 681.81 - 681.83, 681.91, 681.93, 681.101, 681.114, 681.141 - 681.143, 681.145, and 681.147, relating to Application and Licensing. Sections 681.71 - 681.73, 681.82, 681.91, 681.93, 681.101, 681.114, 681.141 - 681.143, 681.145, and 681.147 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4892) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §681.81 and §681.83 are being changed and adopted as republished below.

Reasoned Justification.

The new rules pertain to the qualifications necessary to obtain a license and continuing education requirements for professional counselors; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

American Art Therapy Association - §§681.73(b), 681.82(c), and 681.83(b)

Summary of comments against the rule.

Commenters pointed out that the American Art Therapy Association is in the process of phasing out its approval process for graduate art therapy educational programs, and the Accreditation Council for Art Therapy Education is taking its place; so the commenters request a change or update to §681.73(b).

A commenter requested changes to §681.82(c) to add language to clarify that a professional art therapy license in good standing issued by another jurisdiction will also be deemed as having met all academic requirements if the state license requires a graduate degree from an approved/accredited art therapy program that is substantially equivalent to §681.82 or if it meets the requirements of §681.73.

A commenter requested changes to §681.83(c) to clarify that the additional coursework requirement in that subsection would not apply to applicants holding graduate degrees from approved/accredited degree programs in art therapy.

A commenter opined that §681.91(d) is being interpreted to require LPC-As to be W-2 employees of an LPC-S, and not allowing LPC-As to be independent contractors.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council appreciates the comments regarding §681.73(b) and may initiate rule making proceedings in the future; but since the American Art Therapy Association is still in the process of phasing out its approval of graduate art therapy educational programs the Executive Council declines to make any changes to this rule at this time.

The Executive Council declines to make the requested changes to §681.82(c) and §681.83(c). Art therapy is a specialty designation for a person who holds a license as a professional counselor, see §503.303 of the Tex. Occ. Code. Therefore one must first qualify for an LPC before an art therapy designation can be granted, and therefore by statute the requested revisions to the rules cannot be made.

The Executive Council declines to make any changes to §681.91(d). The only change made from the prior version of §681.91(d) was changing the word intern to associate. No new prohibit against the use of independent contractors was added to this rule. The specific prohibition the commenter opines about is not specifically listed or contained in §681.91(d), therefore no change is needed.

Statutory Authority.

§681.81.General Academic Requirements.

(a) The Council will accept as meeting academic requirements graduate degrees from accredited schools that meet the requirements of §681.82 of this title (relating to Academic Requirements) and §681.83 of this title (relating to Academic Course Content).

(b) Degrees and course work received at foreign universities will be acceptable only if such course work would be counted as transfer credit by an accredited school. The applicant must provide the Council with documents and evidence to establish his or her formal education is equivalent to at least a master's degree granted by an accredited school. In order to meet this requirement the applicant must comply with Council §882.11 of this title (relating to Applicants with Foreign Degrees).

(c) Applicants must provide upon request a course description from an official school catalog or bulletin or a course syllabus to substantiate the relevance of the course to the academic requirements of §681.83 of this title.

(d) The Council will not consider undergraduate level courses as meeting any academic requirements for licensure unless the applicant's official transcript clearly shows the course was awarded graduate credit by the school.

(e) The Council will consider courses for which an applicant's official transcript indicates a passing grade or credit was earned.

(f) In evaluating transcripts, the Council will consider a quarter hour of academic credit as two-thirds of a semester hour.

§681.83.Academic Course Content.

(a) An applicant who holds a graduate degree in counseling from an accredited school is presumed to have satisfied the academic course content requirements described in this section.

(b) An applicant who holds a graduate degree in a counseling-related field must complete at least one course in each of the following areas:

(1) normal human growth and development - the process and stages of human intellectual, physical, social, and emotional development from prenatal origins through adulthood;

(2) abnormal human behavior - the principles of understanding dysfunction in human behavior or social disorganization;

(3) appraisal or assessment techniques - the principles, concepts, and procedures of systematic appraisal or assessment of an individual's attitudes, aptitudes, achievements, interests, and personal characteristics, which may include the use of both non-testing approaches and test instruments;

(4) counseling theories - the major theories of professional counseling;

(5) counseling methods or techniques - the methods or techniques used to provide counseling treatment intervention including:

(A) counseling individuals; and

(B) the theory and types of groups, including dynamics and the methods of practice with groups;

(6) research - the methods of research which may include the study of statistics or a thesis project;

(7) life style and career development - the theories of vocational choice, career choice and life style, sources of occupational and educational information, and career decision-making processes;

(8) social, cultural, and family issues - the studies of change, ethnic groups, gender studies, family systems, urban and rural societies, population patterns, cultural patterns, and differing life styles;

(9) professional orientation - the objectives of professional organizations, codes of ethics, legal aspects of practice, standards of preparation, and the role identity of persons providing direct counseling treatment intervention; and

(10) practicum (internship) - supervised practicum experience primarily counseling in nature which includes:

(A) At least 300 clock-hours, of which at least 100 hours must be direct client counseling.

(B) Academic credit or other acknowledgment of the practicum/internship must appear on the applicant's official graduate transcript.

(c) The remaining courses needed to meet the 48/60 graduate semester hour requirement must be counseling-related course work in areas directly supporting the development of an applicant's professional counseling skills and must be courses related primarily to professional counseling.

(d) As of August 1, 2017, the following courses must be taken in addition to those outlined in subsection (b) of this section, to meet the 60 semester hour requirement:

(1) addictions counseling; to include, but not limited to, gambling, sexual, eating, alcohol, or drug;

(2) an additional course in counselor ethics; to include records management, an overview of business/family law and professional practice, and the study of current Council rules;

(3) couples, marriage, or family counseling; and

(4) a course in psychopathology to include such content as criteria of psychiatric diagnosis, use of the current Diagnostic and Statistical Manual of Mental Disorders and the theories of psychopathology. The course should also include the basic knowledge of types of psychopharmacological medications.

(e) Passing the National Counselor Exam or National Clinical Mental Health Counselor Exam does not guarantee that Texas state licensure requirements have been satisfied.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004560

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER D. APPLICATION PROCEDURES

22 TAC §§681.71 - 681.73

The Texas Behavioral Health Executive Council adopts the repeal of §§681.71 - 681.73, relating to application procedures, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4898). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

The Executive Council has adopted new rules, in this and a prior edition of the Texas Register, which concern the same subject matter and many of the same details and requirements found in these rules; therefore, the repeal of these rules is necessary to implement H.B. 1501.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions, unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004547

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER D. SCHEDULE OF SANCTIONS

22 TAC §§681.201, 681.203 - 681.205

The Texas Behavioral Health Executive Council adopts new §§681.201 and 681.203 - 681.205, relating to Schedule of Sanctions. Sections 681.201, 681.204, and 681.205 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4900). These rules will not be republished. Section 681.203 is adopted with changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4900) due to a grammatical error. This rule will be republished.

Reasoned Justification.

The new rules pertain to a schedule of sanctions for professional counselors; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter asked where does the $5,000 fine in §681.203 go? The commenter requested that the fine be used for a victim compensation for treatment.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Typically, administrative penalties that are collected by a state agency are paid to the State of Texas. Section 503.407 of the Tex. Occ. Code allows the Executive Council to order a license holder to pay a refund to consumers, but there is no statutory authority for this agency to create a victims' compensation fund for treatment. Therefore the Executive Council declines to amend the rule as requested.

Statutory Authority.

§681.203.Severity Levels for the Schedule of Sanctions.

(a) The following are the severity levels for the schedule of sanctions:

(1) Level One--revocation of license. These violations evidence intentional or gross misconduct on the part of the licensee and/or cause or pose a high degree of harm to the public and/or require severe punishment as a deterrent to the licensee, or other licensees. The fact that a license is ordered revoked does not necessarily mean the licensee can never regain licensure.

(2) Level Two--extended suspension of license. These violations involve less misconduct, harm, or need for deterrence than Level One violations, but may require termination of licensure for a period of not less than one year.

(3) Level Three--moderate suspension of license. These violations are less serious than Level Two violations, but may require termination of licensure for a period of time less than a year.

(4) Level Four--probated suspension of license. These violations do not involve enough harm, misconduct, or need for deterrence to warrant termination of licensure, yet are severe enough to warrant monitoring of the licensee to ensure future compliance. Probationary terms may be ordered as appropriate.

(5) Level Five--reprimand. These violations involve inadvertent or relatively minor misconduct and/or rule violations.

(b) Licensees who are in violation of a Council rule in this chapter may be subject to an administrative penalty of up to $5,000 per violation, per day of occurrence, and/or be required to refund all or a portion of the fees received from a consumer.

(c) Supervisors who are in violation of a Council rule in this chapter may be subject to an administrative penalty of up to $5,000 per violation, per day of occurrence, and/or be required to refund all or a portion of the fees received by the supervisor to his or her LPC Associate(s).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004561

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER E. ACADEMIC REQUIREMENTS FOR LICENSURE

22 TAC §§681.81 - 681.83

The Texas Behavioral Health Executive Council adopts the repeal of §§681.81 - 681.83, relating to academic requirements for licensure, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4902). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004548

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER F. EXPERIENCE REQUIREMENTS FOR LICENSURE

22 TAC §681.91, §681.93

The Texas Behavioral Health Executive Council adopts the repeal of §681.91 and §681.93, relating to experience requirements for licensure, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4903). The repealed rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004549

Darrel D. Spinks

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER G. LICENSURE EXAMINATIONS

22 TAC §§681.101 - 681.103

The Texas Behavioral Health Executive Council adopts the repeal of §§681.101 - 681.103, relating to licensure examinations, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4904). The repealed rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

A commenter is concerned that the repeal of §681.103 will place limits on the amount of times an applicant can retake an examination for licensure.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council declines to retain this rule or make the commenter's requested changes. Rule §681.103 must be repealed because it has already been replaced by rule §882.6, regarding limitation on number of examination attempts. While rule §882.6 does state an application will be denied if an examination is failed three time, the rule allows for applicants to reapply to take the examination but to do so a detailed study plan designed to address the known or suspected areas of deficiency is required and must be approved by the relevant member board.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004550

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER H. LICENSING

22 TAC §§681.111 - 681.114

The Texas Behavioral Health Executive Council adopts the repeal of §§681.111 - 681.114, relating to licensing, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4905). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

Additionally, the Executive Council adopts this repeal pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §503.2015 of the Tex. Occ. Code the Texas State Board of Examiners of Professional Counselors previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §503.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

Lastly, the Executive Council adopts this repeal under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004551

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER I. REGULAR LICENSE RENEWAL; INACTIVE AND RETIREMENT STATUS

22 TAC §§681.121, 681.123 - 681.126

The Texas Behavioral Health Executive Council adopts the repeal of §§681.121, 681.123 - 681.126, relating to regular license renewal; inactive and retirement status, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4907). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004552

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER J. CONTINUING EDUCATION REQUIREMENTS

22 TAC §§681.141 - 681.143, 681.145 - 681.147

The Texas Behavioral Health Executive Council adopts the repeal of §§681.141 - 681.143 and 681.145 - 681.147, relating to continuing education requirements, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4908). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004553

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER K. COMPLAINTS AND VIOLATIONS

22 TAC §§681.161, 681.162, 681.164 - 681.172

The Texas Behavioral Health Executive Council adopts the repeal of §§681.161, 681.162, and 681.164 - 681.172, relating to complaints and violations, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4909). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004554

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER L. FORMAL HEARINGS

22 TAC §§681.181, 681.182, 681.184

The Texas Behavioral Health Executive Council adopts the repeal of §§681.181, 681.182, and 681.184, relating to formal hearings, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4911). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004555

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER M. SCHEDULE OF SANCTIONS

22 TAC §§681.201 - 681.204

The Texas Behavioral Health Executive Council adopts the repeal of §§681.201 - 681.204, relating to schedule of sanctions, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4912). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

Texas Counseling Association - §681.202

Summary of comments against the rule.

Commenters recommend retaining §681.202, pertaining to relevant factors which are considered when assessing a rule violation. Commenters believed that this rule should be retained for clarity in the sanctioning process, and believes this information should be available to licensees and the general public since both can benefit for this information.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council declines to retain §681.202. The Executive Council has already adopted a rule that addresses the same issues and subject matter that this prior rule dealt with, see §884.20 pertaining to disciplinary guidelines which applies to all rule violations.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004556

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER N. PARENTING COORDINATION AND FACILITATION AND CHILD CUSTODY AND ADOPTION EVALUATIONS

22 TAC §§681.251 - 681.253

The Texas Behavioral Health Executive Council adopts the repeal of §§681.251 - 681.253, relating to parenting coordination and facilitation and child custody and adoption evaluations, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4913). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004557

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Professional Counselors

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

CHAPTER 781. SOCIAL WORKER LICENSURE

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §§781.101, 781.102, 781.202, 781.203, 781.205 - 781.209

The Texas Behavioral Health Executive Council adopts amended §781.101 and §781.102 and new §§781.202 - 781.203, and §§781.205 - 781.209, relating to General Provisions. Sections 781.101, 781.102, 781.202, 781.203, and 781.205 - 781.209 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4915). The rules will not be republished.

Reasoned Justification.

The amended and new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507.

The amended and new rules are the definitions for the rules in Chapter 781 and pertain to the general operations for the Texas State Board of Social Worker Examiners; the rules also incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

The Texas State Board of Social Worker Examiners, in accordance with §505.2015 of the Tex. Occ. Code, previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Tex. Occ. Code and may adopt these rules.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §505.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts these rules in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt these rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004537

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER B. CODE OF CONDUCT AND PROFESSIONAL STANDARDS OF PRACTICE

22 TAC §§781.201 - 781.223

The Texas Behavioral Health Executive Council adopts the repeal of §§781.201 - 781.223, relating to code of conduct and professional standards of practice, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4919). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code the Texas State Board of Social Worker Examiners previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §505.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004530

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER B. RULES OF PRACTICE

22 TAC §§781.301 - 781.313, 781.316 - 781.323

The Texas Behavioral Health Executive Council adopts new rules §§781.301 - 781.313 and 781.316 - 781.323, relating to Rules of Practice. Sections 781.301 - 781.303, 781.306 - 781.311, 781.313, and 781.316 - 781.323 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4921) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §§781.304, 781.305, and 781.312 are being changed and adopted as republished below.

Reasoned Justification.

The new rules pertain to the scope of practice, standards of care, and ethical practice for social workers; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §505.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts these rules in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt these rules.

§781.304.Relationships with Clients.

(a) A social worker shall inform in writing a prospective client about the nature of the professional relationship, which can include but is not limited to office procedures, after-hours coverage, services provided, fees, and arrangements for payment.

(b) The social worker shall not give or receive a commission, rebate, or any other form of remuneration for referring clients. 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. In accordance with the provisions of the Act, §505.451, 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. Payment of credentialing or other fees to insurance companies or other third party payers to be part of an approved provider list shall not be considered as a violation of this chapter.

(c) A social worker shall not enter into a business relationship with a client. This rule does not prohibit a professional social work relationship with a client, as described in this subchapter.

(d) A social worker shall not engage in activities that seek to primarily meet the social worker's personal needs or personal gain instead of the needs of the client.

(e) A social worker shall be responsible for setting and maintaining professional boundaries.

(f) A social worker shall keep accurate records of services to include, but not be limited to, dates of services, types of services, progress or case notes and billing information for a minimum of seven years after the date of termination of services for an adult client or five years beyond the age of 18 years of age for a minor, whichever is greater.

(g) A social worker shall bill clients or third parties for only those services actually rendered or as agreed to by mutual written understanding.

(h) A licensee shall not make any false, misleading, deceptive, fraudulent or exaggerated claim or statement about the effectiveness of the licensee's services; the licensee's qualifications, capabilities, background, training, experience, education, professional affiliations, fees, products, or publications; the type, effectiveness, qualifications, and products or services offered by an organization or agency; or the practice or field of social work.

(i) If the licensee learns that false, misleading, deceptive, fraudulent or exaggerated statements about the services, qualifications, or products have been made, the licensee shall take reasonable steps to correct the inappropriate claims, prevent their reoccurrence, and report the incident to the Council.

(j) A licensee shall provide social work intervention only in the context of a professional relationship.

(k) Electronic practice may be used judiciously as part of the social work process and the supervision process. Social workers engaging in electronic practice, providing services to clients located in the State of Texas, must be licensed in Texas and adhere to provisions of this chapter.

(l) The licensee shall not provide social work services or intervention to previous or current family members; personal friends; educational or business associates; or individuals whose welfare might be jeopardized by a dual or multiple relationship.

(m) The licensee shall not accept from or give to a client any gift with a value in excess of $25. If the licensee's employer prohibits giving or receiving gifts, the licensee shall comply with the employer's policy.

(n) The licensee or relatives to the fourth degree of consanguinity or affinity of the licensee may not intentionally borrow or lend money or items of value to clients or relatives to the fourth degree of consanguinity or affinity of clients.

(o) The licensee shall take reasonable precautions to protect individuals from physical or emotional harm resulting from interaction within individual and group settings.

(p) A licensee shall not promote the licensee's personal or business activities that are unrelated to the current professional relationship.

(q) A licensee shall set and maintain professional boundaries, avoiding dual or multiple relationships with clients. If a dual or multiple relationship develops, the social worker is responsible for ensuring the client is safe.

(r) A licensee may not enter into a non-professional relationship with a client's family member or any person having a personal or professional relationship with the client, if the licensee knows or reasonably should have known such a relationship could be detrimental to the client.

§781.305.Sexual Misconduct.

(a) Definitions.

(1) Sexual contact--Any touching or behavior that can be construed as sexual in nature or as defined by the Texas Penal Code, §21.01, relating to assault.

(2) Therapeutic deception--A licensee's act or statement representing that sexual contact or sexual exploitation between the licensee and a client or client group is a valid part of the treatment process.

(3) Sexual exploitation--A pattern, practice or scheme of exploitation, which may include, but is not limited to, sexual contact with a client.

(b) A licensee shall not engage in sexual contact or sexual exploitation with a client or former client; a supervisee of the licensee; or a student at an educational institution at which the licensee provides professional or educational services.

(d) It is not a defense to a disciplinary action under subsections (a) - (c) of this section, if the person was no longer emotionally dependent on the licensee when the sexual exploitation began, the sexual contact occurred, or the therapeutic deception occurred. It is also not a defense that the licensee terminated services with the person before the date the sexual exploitation began, the sexual contact occurred or the therapeutic deception occurred.

(e) It is not a defense to a disciplinary action under subsections (a) - (c) of this section, if the sexual contact, sexual exploitation, or therapeutic deception with the person occurred with the client's consent; outside appointments with the client; or off the premises the licensee used for appointments with the client.

(f) A licensee shall report sexual misconduct in accordance with Texas Civil Practice and Remedies Code, Chapter 81, relating to sexual exploitation by a mental health services provider. 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 30th day after the date the licensee became aware of the conduct or the allegations to:

(1) the prosecuting attorney in the county in which the alleged sexual exploitation, sexual contact or therapeutic deception occurred; and

(2) the Council if the conduct involves a licensee and any other state licensing agency which licenses the mental health services provider.

(3) Before making a report under this subsection, the licensee shall inform the alleged victim of the licensee's duty to report and shall determine if the alleged victim wants to remain anonymous.

(4) A report under this subsection shall contain information necessary to identify the licensee; identify the alleged victim, unless the alleged victim has requested anonymity; express suspicion that sexual exploitation, sexual contact, or therapeutic deception occurred; and provide the alleged perpetrator's name.

(g) The following may constitute sexual exploitation if done for sexual arousal, sexual gratification, or sexual abuse of either the social worker or a person who is receiving or has received the licensee's professional services as a social worker:

(1) sexual harassment, sexual solicitation, physical advances, verbal or nonverbal conduct that is sexual in nature;

(2) any behavior, gestures, comments, or expressions which may reasonably be interpreted as inappropriately seductive or sexual, including making sexual comments about a person's body or making sexually demeaning comments about an individual's sexual orientation, or making comments about potential sexual performance except when the comment is pertinent to issues of sexual function or dysfunction in counseling;

(3) initiating conversation about the licensee's sexual problems, preferences, or fantasies; or requesting details of sexual history or sexual likes and dislikes when those details are not necessary for counseling;

(4) kissing or fondling, or making any other deliberate or repeated comments, gestures, or physical acts of a sexual nature, even if they are not sexually intimate;

(5) making a request to date;

(6) exposing genitals, anus or breasts; or

(7) encouraging another person to masturbate in the licensee's presence; or the licensee masturbating in front of another person.

§781.312.Licensees and the Council.

(a) Any person licensed as a social worker is bound by the provisions of the Act and this chapter and Council rules and statutes.

(b) A social worker shall report alleged misrepresentations or violations of this chapter to the Council.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004538

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER C. THE BOARD

22 TAC §§781.301 - 781.317

The Texas Behavioral Health Executive Council adopts the repeal of §781.301 - 781.317, relating to the Board, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4930) and will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

The Executive Council has adopted new rules, in this and a prior edition of the Texas Register, which concern the same subject matter and many of the same details and requirements found in these rules; therefore, the repeal of these rules is necessary to implement H.B. 1501.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 29, 2020.

TRD-202004531

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 18, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER C. APPLICATION AND LICENSING

22 TAC §§781.401 - 781.406, 781.411, 781.412, 781.414, 781.418, 781.419, 781.508 - 781.510, 781.514

The Texas Behavioral Health Executive Council adopts new §§781.401 - 781.406, 781.411, 781.412, 781.414, 781.418, 781.419, 781.508 - 781.510, and 781.514, relating to Application and Licensing. Sections 781.402, 781.403, 781.405, 781.406, 781.412, 781.414, 781.418, 781.419, 781.508 - 781.510, and 781.514 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4931) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §§781.401, 781.404, and 781.411 are being changed and adopted as republished below.

Reasoned Justification.

The new rules pertain to the qualifications necessary to obtain a license and continuing education requirements for social workers; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §505.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts these rules in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt these rules.

§781.401.Qualifications for Licensure.

(a) Licensure. The following education and experience is required for licensure as designated. If an applicant for a license has held a substantially equivalent license in good standing in another jurisdiction for one year immediately preceding the date of application, the applicant will be deemed to have met the experience requirement under this chapter.

(1) Licensed Clinical Social Worker (LCSW).

(A) Has been conferred a master's degree in social work from a CSWE-accredited social work program, or a doctoral degree in social work from an accredited institution of higher learning acceptable to the Council, and has documentation in the form of a university transcript of successfully completing a field placement in social work.

(B) Has had 3000 hours of Council-approved supervised professional clinical experience over a period of 24 to 48 months, or its equivalent if the experience was completed in another jurisdiction. Council-approved supervised professional experience must comply with §781.404 of this title (relating to Recognition as a Council-approved Supervisor and the Supervision Process) and all other applicable laws and rules.

(C) Has had a minimum of 100 hours of Council-approved supervision, over the course of the 3000 hours of experience, with a Council-approved supervisor. Supervised experience must have occurred within the five calendar years immediately preceding the date of LCSW application. If the social worker completed supervision in another jurisdiction, the social worker shall have the supervision verified by the regulatory authority in the other jurisdiction. If such verification is impossible, the social worker may request that the Council accept alternate verification of supervision.

(D) Has passed the Clinical examination administered nationally by ASWB.

(2) Licensed Master Social Worker (LMSW).

(A) Has been conferred a master's degree in social work from a CSWE-accredited social work program, or a doctoral degree in social work from an accredited university, and has documentation in the form of a university transcript of successfully completing a field placement in social work.

(B) Has passed the Master's examination administered nationally by ASWB.

(3) Licensed Baccalaureate Social Worker (LBSW).

(A) Has been conferred a baccalaureate degree in social work from a CSWE accredited social work program.

(B) Has passed the Bachelors examination administered nationally by ASWB.

(b) Specialty Recognition. The following education and experience is required for specialty recognitions.

(1) Licensed Master Social Worker-Advanced Practitioner (LMSW-AP).

(A) Is currently licensed in the State of Texas or meets the current requirements for licensure as an LMSW.

(B) While fully licensed as a social worker, has had 3000 hours of Council-approved supervised professional non-clinical social work experience over a period of 24 to 48 months, or its equivalent if the experience was completed in another jurisdiction. Council-approved supervised professional experience must comply with §781.404 of this title and all other applicable laws and rules.

(C) Has had a minimum of 100 hours of Council-approved supervision, over the course of the 3000 hours of experience, with a Council-approved supervisor. Supervised experience must have occurred within the five calendar years immediately preceding the date of LMSW-AP application. If supervision was completed in another jurisdiction, the social worker must have the supervision verified by the regulatory authority in the other jurisdiction. If such verification is impossible, the social worker may request that the Council accept alternate verification of supervision.

(D) Has passed the Advanced Generalist examination administered nationally by the ASWB.

(2) Independent Non-clinical Practice.

(A) Is currently licensed in the State of Texas as an LBSW or LMSW.

(B) While fully licensed as a social worker has had 3000 hours of Council-approved supervised full-time social work experience over a minimum two-year period, but within a maximum five-year period or its equivalent if the experience was completed in another state. Council-approved supervised professional experience must comply with §781.404 of this title and all other applicable laws and rules.

(C) Has had a minimum of 100 hours of Council-approved supervision, over the course of the 3000 hours of experience, with a Council-approved supervisor. Supervised experience must have occurred within the 5 calendar years immediately preceding the date of application for IPR specialty recognition. If supervision was completed in another jurisdiction, the social worker shall have the supervision verified by the regulatory authority in the other jurisdiction. If such verification is impossible, the social worker may request that the Council accept alternate verification.

(c) Applicants for a license must complete the Council's jurisprudence examination and submit proof of completion at the time of application.

§781.404.Recognition as a Council-approved Supervisor and the Supervision Process.

(a) Types of supervision include:

(1) administrative or work-related supervision of an employee, contractor or volunteer that is not related to qualification for licensure, practice specialty recognition, a disciplinary order, or a condition of new or continued licensure;

(2) clinical supervision of a Licensed Master Social Worker in a setting in which the LMSW is providing clinical services; the supervision may be provided by a Licensed Professional Counselor, Licensed Psychologist, Licensed Marriage and Family Therapist, Licensed Clinical Social Worker or Psychiatrist. This supervision is not related to qualification for licensure, practice specialty recognition, a disciplinary order, or a condition of new or continued licensure;

(3) clinical supervision of a Licensed Master Social Worker, who is providing clinical services and is under a Council-approved supervision plan to fulfill supervision requirements for achieving the LCSW; a Licensed Clinical Social Worker who is a Council-approved supervisor delivers this supervision;

(4) non-clinical supervision of a Licensed Master Social Worker or Licensed Baccalaureate Social Worker who is providing non-clinical social work service toward qualifications for independent non-clinical practice recognition; this supervision is delivered by a Council-approved supervisor;

(5) non-clinical supervision of a Licensed Master Social Worker who is providing non-clinical social work service toward qualifications for the LMSW-AP; this supervision is delivered by a Council-approved supervisor; or

(6) Council-ordered supervision of a licensee by a Council-approved supervisor pursuant to a disciplinary order or as a condition of new or continued licensure.

(b) A person who wishes to be a Council-approved supervisor must file an application and pay the applicable fee.

(1) A Council-approved supervisor must be actively licensed in good standing by the Council as an LBSW, an LMSW, an LCSW, or be recognized as an Advanced Practitioner (LMSW-AP), or hold the equivalent social work license in another jurisdiction. The person applying for Council-approved status must have practiced at his/her category of licensure for two years. The Council-approved supervisor shall supervise only those supervisees who provide services that fall within the supervisor's own competency.

(2) The Council-approved supervisor is responsible for the social work services provided within the supervisory plan.

(3) The Council-approved supervisor must have completed a supervisor's training program acceptable to the Council.

(4) The Council-approved supervisor must complete three hours of continuing education every biennium in supervision theory, skills, strategies, and/or evaluation.

(5) The Council-approved supervisor must designate at each license renewal that he/she wishes to continue Council-approved supervisor status.

(6) The Council-approved supervisor must submit required documentation and fees to the Council.

(7) When a licensee is designated Council-approved supervisor, he or she may perform the following supervisory functions.

(A) An LCSW may supervise clinical experience toward the LCSW license, non-clinical experience toward the Advanced Practitioner specialty recognition, non-clinical experience toward the Independent Practice Recognition (non-clinical), and Council-ordered probated suspension;

(B) An LMSW-AP may supervise non-clinical experience toward the Advanced Practitioner specialty recognition; non-clinical experience toward the non-clinical Independent Practice Recognition; and Council-ordered probated suspension for non-clinical practitioners;

(C) An LMSW with the Independent Practice Recognition (non-clinical) who is a Council-approved supervisor may supervise an LBSW's or LMSW's non-clinical experience toward the non-clinical Independent Practice Recognition; and an LBSW or LMSW (non-clinical) under Council-ordered probated suspension;

(D) An LBSW with the non-clinical Independent Practice Recognition who is a Council-approved supervisor may supervise: an LBSW's non-clinical experience toward the non-clinical Independent Practice Recognition; and an LBSW under Council-ordered probated suspension.

(8) The approved supervisor must renew the approved supervisor status in conjunction with the biennial license renewal. The approved supervisor may surrender supervisory status by documenting the choice on the appropriate Council renewal form and subtracting the supervisory renewal fee from the renewal payment. If a licensee who has surrendered supervisory status desires to regain supervisory status, the licensee must reapply and meet the current requirements for approved supervisor status.

(9) A supervisor must maintain the qualifications described in this section while he or she is providing supervision.

(10) A Council-approved supervisor who wishes to provide any form of Council-approved or Council-ordered supervision must comply with the following:

(A) The supervisor is obligated to keep legible, accurate, complete, signed supervision notes and must be able to produce such documentation for the Council if requested. The notes shall document the content, duration, and date of each supervision session.

(B) A social worker may contract for supervision with written approval of the employing agency. A copy of the approval must accompany the supervisory plan submitted to the Council.

(C) A Council-approved supervisor may not charge or collect a fee or anything of value from his or her employee or contract employee for the supervision services provided to the employee or contract employee.

(D) Before entering into a supervisory agreement, the supervisor shall be aware of all conditions of exchange with the clients served by her or his supervisee. The supervisor shall not provide supervision if the supervisee is practicing outside the authorized scope of the license. If the supervisor believes that a social worker is practicing outside the scope of the license, the supervisor shall make a report to the Council.

(E) A supervisor shall not be employed by or under the employment supervision of the person who he or she is supervising.

(F) A supervisor may not supervise an individual who is related within the second degree of affinity or consanguinity.

(G) A supervisee must have a clearly defined job description and responsibilities.

(H) A supervisee who provides client services for payment or reimbursement shall submit billing to the client or third-party payers which clearly indicates the services provided and who provided the services, and specifying the supervisee's licensure category and the fact that the licensee is under supervision.

(I) If either the supervisor or supervisee has an expired license or a license that is revoked or suspended during supervision, supervision hours accumulated during that time will be accepted only if the licensee appeals to and receives approval from the Council.

(J) A licensee must be a current Council-approved supervisor in order to provide professional development supervision toward licensure or specialty recognition, or to provide Council-ordered supervision to a licensee. Providing supervision without having met all requirements for current, valid Council-approved supervisor status may be grounds for disciplinary action against the supervisor.

(K) The supervisor shall ensure that the supervisee knows and adheres to Subchapter B, Rules of Practice, of this Chapter.

(L) The supervisor and supervisee shall avoid forming any relationship with each other that impairs the objective, professional judgment and prudent, ethical behavior of either.

(M) Should a supervisor become subject to a Council disciplinary order, that person is no longer a Council-approved supervisor and must so inform all supervisees, helping them to find alternate supervision. The person may reapply for Council-approved supervisor status by meeting the terms of the disciplinary order and having their license in good standing, in addition to submitting an application for Council-approved supervisor, and proof of completion of a 40-hour Council-approved supervisor training course, taken no earlier than the date of execution of the Council order.

(N) The Council may deny, revoke, or suspend Council- approved supervisory status for violation of the Act or rules. Continuing to supervise after the Council has denied, revoked, or suspended Council-approved supervisor status, or after the supervisor's supervisory status expires, may be grounds for disciplinary action against the supervisor.

(O) If a supervisor's Council-approved status is expired, suspended, or revoked, the supervisor shall refund all supervisory fees the supervisee paid after the date the supervisor ceased to be Council-approved.

(P) A supervisor is responsible for developing a well-conceptualized supervision plan with the supervisee, and for updating that plan whenever there is a change in agency of employment, job function, goals for supervision, or method by which supervision is provided.

(Q) All Council-approved supervisors shall have taken a Council-approved supervision training course by January 1, 2014 in order to renew Council-approved supervisor status.

(11) A Council-approved supervisor who wishes to provide supervision towards licensure as an LCSW or towards specialty recognition in Independent Practice (IPR) or Advanced Practitioner (LMSW-AP), which is supervision for professional growth, must comply with the following:

(A) Supervision toward licensure or specialty recognition may occur in one-on-one sessions, in group sessions, or in a combination of one-on-one and group sessions. Session may transpire in the same geographic location, or via audio, web technology or other electronic supervision techniques that comply with HIPAA and Texas Health and Safety Code, Chapter 611, and/or other applicable state or federal statutes or rules.

(B) Supervision groups shall have no fewer than two members and no more than six.

(C) Supervision shall occur in proportion to the number of actual hours worked, with a base line of one hour of supervision for every 40 hours worked. If the supervisee works full-time, supervision shall occur on average at least twice a month and for no less than four hours per month; if the supervisee works part-time (at least 20 hours per week), supervision shall occur on average at least once a month and no less than two hours per month. Supervisory sessions shall last at least one hour and no more than two hours per session. No more than 10 hours of supervision may be counted in any one month, or 30-day period, as appropriate, towards satisfying minimum requirements for licensure or specialty recognition.

(D) The Council considers supervision toward licensure or specialty recognition to be supervision which promotes professional growth. Therefore, all supervision formats must encourage clear, accurate communication between the supervisor and the supervisee, including case-based communication that meets standards for confidentiality. Though the Council favors supervision formats in which the supervisor and supervisee are in the same geographical place for a substantial part of the supervision time, the Council also recognizes that some current and future technology, such as using reliable, technologically-secure computer cameras and microphones, can allow personal face-to-face, though remote, interaction, and can support professional growth. Supervision formats must be clearly described in the supervision plan, explaining how the supervision strategies and methods of delivery meet the supervisee's professional growth needs and ensure that confidentiality is protected. The plan must be approved by the Council.

(E) Supervision toward licensure or specialty recognition must extend over a full 3000 hours over a period of not less than 24 full months and a period of not more than 48 full months for LCSW or LMSW-AP or not more than 60 full months for Independent Practice Recognition (IPR). Even if the individual completes the minimum of 3000 hours of supervised experience and minimum of 100 hours of supervision prior to 24 months from the start date of supervision, supervision which meets the Council's minimum requirements shall extend to a minimum of 24 full months. A month is a 30-day period or the length of the actual calendar month, whichever is longer.

(F) The supervisor and the supervisee bear professional responsibility for the supervisee's professional activities.

(G) If the supervisor determines that the supervisee lacks the professional skills and competence to practice social work under a regular license, the supervisor shall develop and implement a written remediation plan for the supervisee.

(H) Council-approved supervised professional experience towards licensure must comply with §781.401 of this title (relating to Qualifications for Licensure) and §781.402 of this title (relating to Clinical Supervision for LCSW and Non-Clinical Supervision for LMSW-AP and Independent Practice Recognition) of this title and all other applicable laws and rules.

(12) A Council-approved supervisor who wishes to provide supervision required as a result of a Council order must comply with this title, all other applicable laws and rules, and/or the following.

(A) A licensee who is required to be supervised as a condition of initial licensure, continued licensure, or disciplinary action must:

(i) submit one supervisory plan for each practice location to the Council for approval by the Council or its designee within 30 days of initiating supervision;

(ii) submit a current job description from the agency in which the social worker is employed with a verification of authenticity from the agency director or his or her designee on agency letterhead or submit a copy of the contract or appointment under which the licensee intends to work, along with a statement from the potential supervisor that the supervisor has reviewed the contract and is qualified to supervise the licensee in the setting;

(iii) ensure that the supervisor submits reports to the Council on a schedule determined by the Council. In each report, the supervisor must address the supervisee's performance, how closely the supervisee adheres to statutes and rules, any special circumstances that led to the imposition of supervision, and recommend whether the supervisee should continue licensure. If the supervisor does not recommend the supervisee for continued licensure, the supervisor must provide specific reasons for not recommending the supervisee. The Council may consider the supervisor's reservations as it evaluates the supervision verification the supervisee submits; and

(iv) notify the Council immediately if there is a disruption in the supervisory relationship or change in practice location and submit a new supervisory plan within 30 days of the break or change in practice location.

(B) The supervisor who agrees to provide Council-ordered supervision of a licensee who is under Council disciplinary action must understand the Council order and follow the supervision stipulations outlined in the order. The supervisor must address with the licensee those professional behaviors that led to Council discipline, and must help to remediate those concerns while assisting the licensee to develop strategies to avoid repeating illegal, substandard, or unethical behaviors.

(c) A licensee who submits one of the following: a Clinical Supervision Plan, a Non-Clinical Supervision Plan, or a Council-Ordered Supervision Plan, to the Council for approval, shall receive a written response from the Council of either approval or deficiency related to the plan. If no written response is received by the licensee within four weeks of submission of the plan, it is the responsibility of the licensee who has submitted the plan to follow-up with the Council office related to receipt and/or status of the plan within 60 days of submission. If written approval or deficiency is sent to the last known address of the licensee, a Council response related to acceptance of the plan shall be considered to have been sent. Supervision and supervised experience hours are not acceptable to meet minimum requirements towards licensure or specialty recognition or to satisfy the terms of a Council order if not accrued under a Council-approved plan without explicit authorization from the Council.

§781.411.Temporary License.

(a) Prior to examination, a licensure applicant may obtain a temporary social work license as long as the applicant meets all the requirements, except the licensing examination, for the license category the applicant seeks.

(b) A person holding a temporary license must take the designated examination within six months of issuance of the temporary license.

(c) The temporary license is valid until the licensee attempts the appropriate examination or the end of the six-month issuance of the temporary license.

(d) A person holding a temporary license must display the license at the licensee's place of business and must use the appropriate licensed title or initials followed by the word "Temporary" in all professional use of the licensee's name.

(e) Should the applicant take and fail the examination, the temporary license is no longer valid. The applicant must immediately cease and desist from using the temporary license and title, and return the license certificate and certificate card to the Council.

(f) Should the applicant pass the examination, the Council will issue the license or specialty recognition. A temporary license holder who has passed the licensing examination continues to be temporarily licensed until the Council issues a regular license or the temporary license expires.

(g) A person who failed the examination and is without a valid temporary license may retake the examination under §781.412 of this title (relating to Examination Requirement).

(h) A temporary license will not be granted to an applicant who has held a temporary license for the same license category previously within his/her lifetime.

(i) An applicant for LCSW or specialty recognition is not eligible for a temporary or provisional license.

(j) Applicants requesting a temporary license must submit the application form and fee required by the Council.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004539

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER D. LICENSES AND LICENSING PROCESS

22 TAC §§781.401 - 781.419

The Texas Behavioral Health Executive Council adopts the repeal of §§781.401-781.419, relating to licenses and licensing process, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4939) and will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

The Executive Council has adopted new rules, in this and a prior edition of the Texas Register, which concern the same subject matter and many of the same details and requirements found in these rules; therefore, the repeal of these rules is necessary to implement H.B. 1501.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency sResponse.

None.

Statutory Authority.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004532

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER D. SCHEDULE OF SANCTIONS

22 TAC §§781.801, 781.803 - 781.805

The Texas Behavioral Health Executive Council adopts new §§781.801 and 781.803 - 781.805, relating to Schedule of Sanctions. Sections 781.801 and 781.804 are adopted without changes to the proposed text as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4941) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §781.803 and §781.805 are being changed and adopted as republished below.

Reasoned Justification.

The new rules pertain to a schedule of sanctions for social workers; and incorporate changes necessary to implement H.B. 1501. Therefore, these rules are covered by §507.153 of the Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code, the Board previously voted and, by a majority, approved to propose the adoption of these rules to the Executive Council. The rules are specifically authorized by §505.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts these rules in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed these rules to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt these rules.

§781.803.Severity Levels.

The following are severity levels for the schedule of sanctions:

(1) Level One--Revocation of license. These violations evidence the licensee's intentional or gross misconduct, cause or pose a high degree of harm to the public, and/or require severe punishment to deter the licensee, or other licensees. The fact that a license is ordered revoked does not necessarily mean the licensee can never regain licensure. The Council may also impose an administrative penalty of not less than $250 or more than $5,000 for each Level One violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a financial penalty.

(2) Level Two--Extended suspension of license. These violations involve less misconduct, harm, or need for deterrence than Level One violations, but require suspension of licensure for a period of not less than one year. The Council may also impose an administrative penalty of not less than $250 or more than $4,000 for each Level Two violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

(3) Level Three--Moderate suspension of license. These violations involve less misconduct, harm, or need for deterrence than Level Two violations, but require suspension of licensure for some period of time. The Council may also impose an administrative penalty of not less than $250 or more than $3,000 for each Level Three violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

(4) Level Four--Probated suspension of license. These violations do not involve enough harm, misconduct, or need for deterrence to warrant suspension of licensure, yet are severe enough to warrant monitoring of the licensee to ensure future compliance. Possible probationary terms are set out as in §781.806 of this title (relating to Probation) and may be ordered as appropriate. The Council may also impose an administrative penalty of not less than $250 or more than $2,000 for each Level Four violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

(5) Level Five--Reprimand. These violations involve minor misconduct not directly involving the health, safety or welfare of the particular member of the public at issue. The Council may also impose an administrative penalty of not less than $250 or more than $1,000 for each Level Five violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

§781.805.Schedule of Sanctions.

The following standard sanctions shall apply to violations of the Act and these rules.

Figure: 22 TAC §781.805 (.pdf)

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 29, 2020.

TRD-202004540

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 18, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER E. LICENSE RENEWAL AND CONTINUING EDUCATION

22 TAC §§781.501 - 781.517

The Texas Behavioral Health Executive Council adopts the repeal of §§781.501 - 781.517, relating to licensing renewal and continuing education, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4943). The rules will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004533

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER F. COMPLAINTS AND VIOLATIONS

22 TAC §§781.601 - 781.610

The Texas Behavioral Health Executive Council adopts the repeal of §§781.601 - 781.610, relating to complaints and violations, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4944). The adopted repeals will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

The Executive Council has adopted new rules in this and a prior edition of the Texas Register, which concern the same subject matter and many of the same details and requirements found in these rules, therefore the repeal of these rules is necessary to implement H.B. 1501.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code, the Texas State Board of Social Worker Examiners previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §505.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004534

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER G. FORMAL HEARINGS

22 TAC §§781.701 - 781.704

The Texas Behavioral Health Executive Council adopts the repeal of §§781.701 - 781.704, relating to formal hearings, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4946). The repeals will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code, the Texas State Board of Social Worker Examiners previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §505.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004535

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

SUBCHAPTER H. SANCTION GUIDELINES

22 TAC §§781.801 - 781.808

The Texas Behavioral Health Executive Council adopts the repeal of §§781.801 - 781.808, relating to Sanction Guidelines, without changes as published in the July 17, 2020, issue of the Texas Register (45 TexReg 4947). The repeals will not be republished. This adopted repeal corresponds with the adoption of new rules elsewhere in this edition of the Texas Register.

Reasoned Justification.

List of interested groups or associations against the rule repeal.

None.

Summary of comments against the rule.

None

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

In accordance with §505.2015 of the Tex. Occ. Code, the Texas State Board of Social Worker Examiners previously voted and, by a majority, approved to submit the adoption of this repeal to the Executive Council. The repeal is specifically authorized by §505.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this repeal in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed to adopt this repeal to the Executive Council. Therefore, the Executive Council has complied with Chapters 505 and 507 of the Texas Occupations Code and may adopt this repeal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 30, 2020.

TRD-202004536

Darrel D. Spinks

Executive Director

Texas State Board of Social Worker Examiners

Effective date: November 19, 2020

Proposal publication date: July 17, 2020

For further information, please call: (512) 305-7706

PART 36. COUNCIL ON SEX OFFENDER TREATMENT

CHAPTER 810. COUNCIL ON SEX OFFENDER TREATMENT

SUBCHAPTER A. LICENSED SEX OFFENDER TREATMENT PROVIDERS

22 TAC §810.4

The Council on Sex Offender Treatment (Council) adopts an amendment to Title 22, Texas Administrative Code, §810.4, concerning License Issuance and/or Renewal, in order to provide licensed sex offender treatment providers with the flexibility to obtain additional online continuing education hours for renewal requirements. The amendment to §810.4 is adopted without changes to the proposed text as published in the August 7, 2020, issue of the Texas Register (45 TexReg 5501). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The Council is required to adopt rules for procedures and eligibility and other requirements for renewal of a sex offender treatment provider license, including requirements related to continuing education.

At its regularly scheduled meeting on June 12, 2020, the Council approved the amendment to §810.4(7) to increase the maximum number of allowable online continuing education hours for license renewal from six hours to 12 hours. Online hours accrued to satisfy the continuing education ethics requirement do not count toward the maximum of 12online hours.

COMMENTS

The 31-day comment period ended September 8, 2020.

During this period, the Council received comments regarding the proposed rule from two commenters. A summary of comments relating to the rule and Council's responses follows:

Comment: One commenter was in agreement with the rule change.

Response: No change was made as a result of this comment.

Comment: One commenter was opposed to limiting the number of online continuing education unit hours to just 12 hours. The commenter also stated that due to the current COVID-19 pandemic, it may be difficult for professionals to attend live events.

Response. The Council disagrees and declines to revise the rule in response to this comment.

STATUTORY AUTHORITY

The amendment is authorized by Texas Occupations Code, §110.158, which authorizes the Council to adopt rules necessary for the performance of its duties; and §110.302, which requires the Council to adopt licensing requirements for sex offender treatment providers.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 2, 2020.

TRD-202004579

Aaron Pierce, PhD, LPC, LSOTP-S

Chair

Council on Sex Offender Treatment

Effective date: November 22, 2020

Proposal publication date: August 7, 2020

For further information, please call: (512) 231-5721