TITLE 22. EXAMINING BOARDS

PART 30. TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS

CHAPTER 681. PROFESSIONAL COUNSELORS

The Texas State Board of Examiners of Professional Counselors (board), proposes amendments to §§681.41, 681.114, and 681.125; the repeal of §681.127; and new §681.253, concerning the licensure and regulation of professional counselors.

BACKGROUND AND PURPOSE

To implement Senate Bill (SB) 807 and SB 1307, 84th Legislature, Regular Session, 2015, which amended Texas Occupations Code, Chapter 55, relating to occupational license application; examination fees and licensing and renewal of certain military service members, military veterans, and military spouses, the board proposes to repeal §681.127, concerning active military renewal and inactive status, and amend §681.114, such that the section provides for initial licensing and license renewal procedures specific to military service members, military veterans, and military spouses as well as includes provisions concerning inactive status for military service members. In addition, §681.125 includes a provision for licensees impacted or displaced by national emergency or war that was previously in §681.127.

To implement House Bill (HB) 1449, 84th Legislature, Regular Session, 2015, as it relates to child custody and adoption evaluations in certain suits affecting the parent-child relationship, by stipulating minimum qualifications for licensees who hold doctoral degrees to serve as a child custody evaluator and prohibiting a holder of a Licensed Professional Counselor Intern (LPC Intern) from conducting a child custody or adoption evaluation under amended Texas Family Code, Chapter 107, unless the individual is otherwise qualified by law to conduct the evaluation, or is appointed by a court to conduct it under Texas Family Code, §107.106 or §107.155, as applicable, the board proposes to repeal §681.41(cc), and to propose new §681.253.

SECTION-BY-SECTION SUMMARY

This summary considers only those sections which were substantially changed in language, meaning, or intent.

Subchapter C. Code of Ethics

The board proposes to repeal §681.41(cc), which was previously adopted and became effective on July 14, 2016, to implement HB 1449, 84th Legislature, Regular Session, 2015, as it relates to child custody and adoption evaluations.

Subchapter H. Licensing

The board proposes to amend §681.114, implementing SB 807 and SB 1307, 84th Legislature, Regular Session, 2015, which amended Texas Occupations Code, Chapter 55, relating to occupational license application and examination fees and to licensing and renewal of certain military service members, military veterans, and military spouses. In addition, §681.114 is amended to include provisions previously located under §681.127 concerning inactive status for military service members. However, the amendments do not implement SB 807 and SB 1307 concerning the examination fee waiver, because the professional counselor licensure examination fees and jurisprudence examination fees are not paid to the state, but to the third party administrator(s) of the examination(s).

Subchapter I. Regular License Renewal; Inactive and Retirement Status

The board proposes to amend §681.125, and includes a provision for a licensee impacted or displaced due to a national emergency or war to request inactive status. This provision was in the previous §681.127, which the board is now proposing to repeal.

The board proposes to repeal §681.127, so all provisions concerning initial licensing and license renewal procedures specific to military service members, military veterans, and military spouses as well as provisions concerning inactive status for military service members are easily found under §681.114.

Subchapter N. Parenting Coordination and Parenting Facilitation. The board proposes to rename this subchapter as "Subchapter N. Parenting Coordination and Facilitation and Child Custody and Adoption Evaluations."

The board introduces new §681.253 to implement HB 1449 of the 84th Legislature, Regular Session, 2015, as it relates to Licensed Professional Counselors and child custody and adoption evaluations. HB 1449 amended the Texas Family Code, Chapter 107, relating to child custody and adoption evaluations conducted and provided in certain suits affecting the parent-child relationship. New §681.253 provides minimum qualifications for child custody/adoption evaluator for a licensee who holds a doctoral degree. New §681.253 directs all other licensees to comply with minimum qualifications stipulated under Texas Family Code, Chapter 107 for child custody evaluators; §107.154 states minimum qualifications for adoption evaluators. New §681.253 prohibits LPC Interns from conducting child custody/adoption evaluations unless the individual is otherwise qualified by law to conduct the evaluation. Texas Family Code, §107.106 or §107.155 provides an exception to the required qualifications in a county with a population of less than 500,000, such that the court may appoint an otherwise qualified individual, if a court finds that an individual who meets the minimum qualifications of §107.104 or §107.154 is not available in the county to conduct the evaluation in a timely manner. New §681.253 also specifies certain standards of conduct for licensees performing child custody evaluations or adoption evaluations.

FISCAL NOTE

Cristina De Luna, Executive Director, has determined that for each year of the first five years that the proposed new section and amendments will be in effect, there will be no anticipated cost or saving, nor effect on revenue, to local government as a result of the proposed rule changes. There will be an anticipated fiscal cost to state government as a result of lost revenue from waiving certain initial application fees for military service members, military veterans, and military spouses, and renewal late fees for certain military service members. Since examination fees for the board are not paid to the state, the statutory waiver provision for such fees does not affect revenue for the board. Fees under current laws and rules for the board to which the waiver provisions would apply for qualified applicants and license holders are as follows:

As set forth in 22 TAC §681.14, $190 for application and license issue fee; $125 for late renewal fee within 90 days of expiration date; and $150 late renewal fee for 91 days up to not more than one year of expiration date.

In addition, a $5 Office of Patient Protection (OPP) fee under Texas Occupations Code, §101.307 applies to initial licensure applications. A $5 Texas.gov fee under Texas Government Code, §2054.252 applies to initial licensure applications.

In Fiscal Year 2016, the board received a total of 47 applications from individuals identifying themselves as eligible for an initial license fee waiver; this averages out to 3.9 applications per month. Staff used an average of five applications per month for the following estimates. Given that the late fee waiver previously existed in statute, with the recent legislative amendments only broadening to some extent the scope of eligibility for active military service members, the impact of the waiver provisions can be expected to be greater in relation to new applicants who may be eligible for the initial license application fee waiver.

Thus, an estimated loss of revenue per eligible applicant from fee waivers can be expected to be approximately $200, including the OPP and Texas.gov surcharges, with only minimal impact from the new legislative amendments mandating waivers of late renewal fees for active-duty military service members.

Based upon the slightly inflated rate of five eligible applicants per month; assuming some increase in the number of applications after the rules take effect and as they become better known; and allowing for occasional requests for late fee waivers, the department estimated rates of waiver requests at seven per month for the first year, nine per month for the second year, and so on, to assume approximately 15 per month by the fifth year. The board further approximated the application fee plus the applicable surcharges, totaling a $200 initial application rate as the base rate. These figures would result in an estimated $16,800 loss in revenue for year one; $21,600 loss in revenue for year two; $26,400 loss in revenue for year three; $31,200 loss in revenue for year four; and $36,000 loss in revenue for year five of the rules being in effect, for a total estimated loss of revenue for the board of approximately $132,000. However, the board does not anticipate an impact to its ability to meet the costs of administering the program through existing revenue under the current fee structure, even with this loss of revenue due to the new fee waivers.

MICRO-BUSINESSES AND SMALL BUSINESSES IMPACT ANALYSIS

Ms. De Luna has also determined that there will be no adverse economic effect on small businesses or micro-businesses. This determination was made because the proposed amendments and new rules do not impose any new requirements on businesses, and any new requirements in the new rule are minimal and will not require small businesses and micro-businesses to significantly alter their business practices.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are anticipated savings for those military service members, military veterans, and military spouses who are eligible applicants for a waiver of certain fees. There is no anticipated negative impact on local employment.

REGULATORY ANALYSIS

The board has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean "a rule, the specific intent to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. The proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The board has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC BENEFIT

In addition, Ms. De Luna has determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to continue to ensure public health and safety through the licensing and regulation of professional counselors, and to increase the availability of licensed professional counselors by facilitating the licensing of applicants with relevant military experience and of qualified military spouses.

PUBLIC COMMENT

Comments on the proposal may be submitted to Cristina De Luna, Executive Director, Texas State Board of Examiners of Professional Counselors, Professional Licensing and Certification Unit, Division for Regulatory Services, Department of State Health Services, Mail Code 1982, P.O. Box 149347, Austin, Texas 78714-9347, (512) 834-6658, or by email to lpc@dshs.state.tx.us. When submitting comments by email, please include "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

SUBCHAPTER C. CODE OF ETHICS

22 TAC §681.41

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The amendment affects Texas Occupations Code, Chapter 503.

§681.41.General Ethical Requirements.

(a) - (bb) (No change.)

[(cc) Child Custody Evaluation, Adoption Evaluation, and Evaluations in Contested Adoptions.]

[(1) Licensees shall comply with Texas Family Code, Chapter 107, Subchapters D, E, and F concerning Child Custody Evaluation, Adoption Evaluation, and Evaluations in Contested Adoptions.]

[(2) Any complaint relating to the outcome of a child custody evaluation or adoption evaluation conducted by a licensee must be reported to the court that ordered the evaluation. The board only reviews complaints regarding forensic evaluations addressing violation of specific board rules.]

[(3) A Licensed Professional Counselor Intern shall not conduct child custody evaluations or adoption evaluations unless qualified by another professional license to provide such services.]

[(4) Disclosure of confidential information in violation of Texas Family Code, §107.111 or §107.163 is grounds for disciplinary action, up to and including revocation of license, by the board.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700410

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Earliest possible date of adoption: March 12, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER H. LICENSING

22 TAC §681.114

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The amendments affects Texas Occupations Code, Chapter 503.

§681.114.Licensing of Military Service Members, Military Veterans, and Military Spouses.

(a) This section sets out initial licensing and license renewal procedures specific to [for] military service members, military veterans, and military spouses pursuant to Texas [required under] Occupations Code, Chapter 55 (relating to Licensing of Military Service Members, Military Veterans, and Military Spouses) as well as provisions concerning Inactive Status for Military Service Members. For purposes of this section:

(1) "Active duty" means current full-time military service in the armed forces of the United States or active duty military service as a member of the Texas military forces, as defined by Government Code, §437.001 or similar military service of another state.

(2) "Armed forces of the United States" means the army, navy, air force, coast guard, or marine corps of the United States or a reserve unit of one of those branches of the armed forces.

(3) "Designated representative" is a person authorized in writing by the military service member to act on behalf of the military service member. A copy of the written authorization must be provided to the board with the request for inactive status.

(4) "License" means a license, certificate, registration, permit, or other form of authorization required by law or a state agency rule that must be obtained by an individual to engage in a particular business.

(5) [(1)] "Military service member" means a person who is on active duty. [currently serving in the armed forces of the United States, in a reserve component of the armed forces of the United States, including the National Guard, or in the state military service of any state.]

(6) [(2)] "Military spouse" means a person who is married to a military service member [who is currently on active duty].

(7) [(3)] "Military veteran" means a person who has served on active duty and who was discharged or released from active duty. [in the army, navy, air force, marine corps, or coast guard of the United States, or in an auxiliary service of one of those branches of the armed forces.]

(b) An applicant shall provide documentation acceptable to the board of the applicant's status as a military service member, military veteran, or military spouse. Acceptable documentation includes, but is not limited to, copies of official documents such as military service orders, marriage licenses, and military discharge records. The application of a person who fails to provide documentation of his or her status shall not be processed under [the requirements of] this section.

(c) Upon request, an applicant shall provide [acceptable ] proof specified by, or otherwise acceptable to, the board of current licensure issued by another jurisdiction. Upon request, the applicant shall provide proof that the licensing requirements of that jurisdiction are substantially equivalent to the licensing requirements of this state.

(d) The board's authority to require an applicant to undergo a criminal history background check, and the timeframes associated with that process, are not affected by the provisions [requirements ] of this section.

(e) For an application for a license submitted by a verified military service member or military veteran, the applicant shall receive credit towards any licensing requirements [or apprenticeship requirements], except an examination requirement, for verified military service, training, or education that the board determines is relevant to the licensing requirements, [occupation,] unless he or she holds a restricted license issued by another jurisdiction or [if he or she] has a [an unacceptable] criminal history for which adverse licensure action is authorized by law. [as described by the Act and this chapter.]

(f) An applicant who is a military service member, military veteran, or military spouse holding [who holds] a current, unrestricted license issued by another jurisdiction that has substantially equivalent [licensing] requirements to the requirements for licensure in this state shall complete and submit an application form and a supplemental application form for military service member, veteran, or military spouse [fee]. As soon as practicable after a complete application under this subsection is filed, the [The] board will process and [shall] issue a license to an [a qualified] applicant who holds such a license, satisfies the application and supplemental application requirements, and meets the requisite substantial equivalency requirements of the other state, if the applicant has no unresolved allegations or criminal background relevant to the license, and there are no other facts or circumstances providing grounds for denial of the license. The license will have the same term as the applicable license type issued under the Act and this subchapter. Renewal [as soon as practicable and the renewal] of the license shall be in accordance with subsection (i) of this section.

(g) An applicant who is a military service member, military veteran, or military spouse who held a license under the Act and this subchapter within the five years preceding the application date, and without restriction, shall complete and submit an application form and a supplemental application form for military service member, veteran, or military spouse. As soon as practicable after a complete application under this subsection is filed, the board will process and issue a license under the Act and this subchapter to an applicant who held such a license and who satisfies the application and supplemental application requirements, if the applicant has no unresolved allegations or criminal background relevant to the license, and there are no other facts or circumstances providing grounds for denial of the license. The license will have the same term as a license for the same license type otherwise issued under the Act or this subchapter. Renewal of the license shall be in accordance with subsection (i) of this section.

(h) [(g)] In accordance with Texas Occupations Code, §55.004(b) [§55.004(c) ], the board or its designee [executive director] may waive any prerequisite to obtaining a license after reviewing the [applicant's] credentials of an applicant who is eligible to apply under subsection (f) or (g) of this section [and determining that the applicant holds a license issued by another jurisdiction that has licensing requirements substantially equivalent to those of this state].

[(h) A military spouse who within the five years preceding the application date held the license in this state that expired while the applicant lived in another state for at least six months is qualified for licensure based on the previously held license, if there are no unresolved complaints against the applicant and if there is no other bar to licensure, such as criminal background or non-compliance with a board order.]

(i) If the board issues an initial license pursuant to subsection (f) or (g) [to an applicant who is a military spouse in accordance with subsection (f)] of this section to an applicant who is a military service member, military veteran, or military spouse, the board will [shall] assess whether the applicant has met all licensing requirements of this state [by virtue of the current license issued by another jurisdiction]. The board will [shall] provide this assessment in writing, which may be by electronic means, to the applicant at the time the license is issued. If the applicant has not met all licensing requirements of this state, the applicant must provide proof of completion at the time of the first application for license renewal. A license under this subchapter will [shall] not be renewed, will [shall ] be allowed to expire, and will [shall] become ineffective if the applicant does not provide proof of completion at the time of the first application for licensure renewal.

(j) Notwithstanding any other law, the board will waive the registration application fees paid to the state for an applicant described in paragraph (1) or (2) of this subsection. An applicant shall provide any proof requested by the board that the applicant is:

(1) A military service member or military veteran whose military service, training, or education substantially meets all applicable requirements for the license; or

(2) A military service member, military veteran, or military spouse who holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state.

(k) For license renewal, the board will exempt an individual who holds a license issued by the board from any increased fee or other penalty imposed for failing to renew the license in a timely manner if the individual establishes to the satisfaction of the board that the individual failed to renew the license in a timely manner because the individual was serving as a military service member.

(l) A military service member who holds a license is entitled to two years of additional time beyond the expiration date of the license to complete:

(1) any continuing education requirements; and

(2) any other requirement related to the renewal of the military service member's license.

(m) A military service member or his or her designated representative may submit a request for inactive status in writing to the board.

(1) A written request for inactive status must be received by the board prior to expiration of the license or within one year from the expiration date and shall include

(A) a copy of the official transfer orders of the military service member or other official military documentation; and

(B) a current address and telephone number for the military service member or the military service member's designated representative.

(2) The payment of the inactive status fee is waived for a military service member under this subsection.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700411

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Earliest possible date of adoption: March 12, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER I. REGULAR LICENSE RENEWAL; INACTIVE AND RETIREMENT STATUS

22 TAC §681.125

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The amendment affects Texas Occupations Code, Chapter 503.

§681.125Inactive Status.

(a) - (i) (No change.)

(j) A licensee who is impacted or displaced due to a national emergency or war may submit a request for inactive status in writing to the board.

(1) A written request for inactive status must be received by the board prior to expiration of the license or within one year from the expiration date and shall include:

(A) an explanation of how the licensee is impacted or displaced; and

(B) a current address and telephone number for the impacted or displaced licensee.

(2) The payment of the inactive status fee is waived for a licensee who is impacted or displaced due to a national emergency or war.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700412

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Earliest possible date of adoption: March 12, 2017

For further information, please call: (512) 776-6972


22 TAC §681.127

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The repeal affects Texas Occupations Code, Chapter 503.

§681.127.Active Military.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700413

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Earliest possible date of adoption: March 12, 2017

For further information, please call: (512) 776-6972


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

22 TAC §681.253

STATUTORY AUTHORITY

The new section is proposed under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The new section affects Texas Occupations Code, Chapter 503.

§681.253.Child Custody Evaluation, Adoption Evaluation, and Evaluations in Contested Adoptions.

(a) Licensees shall comply with Texas Family Code, Chapter 107, Subchapters D, E, and F concerning Child Custody Evaluation, Adoption Evaluation, and Evaluations in Contested Adoptions.

(b) A licensee who has completed a doctoral degree and at least 10 court-ordered child custody evaluations under the supervision of an individual qualified by Texas Family Code, Chapter 107 to perform child custody evaluations is qualified to conduct child custody evaluations under Texas Family Code, Chapter 107. All other licensees must comply with qualifications stipulated in Texas Family Code, Chapter 107.

(c) Any complaint relating to the outcome of a child custody evaluation or adoption evaluation conducted by a licensee must be reported to the court that ordered the evaluation. The board only reviews complaints regarding forensic evaluations addressing violation of specific board rules.

(d) Disclosure of confidential information in violation of Texas Family Code, §107.111 or §107.163 is grounds for disciplinary action, up to and including revocation of license, by the board.

(e) A licensee who provides services concerning a matter which the licensee knows or should know will be utilized in a legal proceeding, such as a divorce, child custody determination, disability claim, or criminal prosecution, must comply with all applicable board rules regardless of whether the licensee is acting as a factual witness or an expert.

(f) A licensee may not provide therapy and any other type of service, including but not limited to a child custody evaluation or parenting facilitation, in the same case, whether such services are delivered sequentially or simultaneously.

(g) Licensees may not offer an expert opinion or recommendation relating to the conservatorship of or possession of or access to a child unless the licensee has conducted a child custody evaluation relating to the child under Texas Family Code, Subchapter D, Chapter 107.

(h) Licensees providing child custody evaluations or adoption evaluations shall, prior to beginning the evaluation, in writing inform the parties of:

(1) The limitations on confidentiality in the evaluation process; and

(2) The basis of fees and costs and the method of payment, including any fees associated with postponement, cancelation and/or nonappearance, and the parties' pro rata share of the fees and costs as determined by the court order or written agreement of the parties.

(i) A Licensed Professional Counselor Intern (LPC Intern) shall not conduct child custody evaluations or adoption evaluations unless qualified by another professional license to provide such services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700414

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Earliest possible date of adoption: March 12, 2017

For further information, please call: (512) 776-6972