H.B. No. 1283




AN ACT
relating to the continuation and functions of the Texas State Board of Examiners of Professional Counselors; providing an administrative penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 503.002, Occupations Code, is amended by adding Subdivision (1-a) and amending Subdivision (2) to read as follows: (1-a) "Commissioner" means the commissioner of the department. (2) "Department" means the [Texas] Department of State Health Services. SECTION 2. Section 503.005, Occupations Code, is amended to read as follows: Sec. 503.005. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Professional Counselors is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2017 [2005]. SECTION 3. Section 503.101, Occupations Code, is amended to read as follows: Sec. 503.101. BOARD MEMBERSHIP. (a) The Texas State Board of Examiners of Professional Counselors consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) five licensed professional counselor members, at least three of whom are in private practice and at least one of whom is a counselor educator; and (2) four members who represent the public. (b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. SECTION 4. Section 503.103, Occupations Code, is amended to read as follows: Sec. 503.103. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if: (1) the person [or the person's spouse: [(1)] is registered, certified, or licensed by an occupational regulatory agency in the field of health care; (2) the person's spouse is registered, certified, or licensed by an occupational regulatory agency in the field of mental health; or (3) the person or the person's spouse: (A) is employed by or participates in the management of a business entity or other organization receiving funds from the board; (B) [(3)] owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving funds from the board; or (C) [(4)] uses or receives a substantial amount of funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. SECTION 5. Section 503.104, Occupations Code, is amended to read as follows: Sec. 503.104. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a [nonprofit,] cooperative[,] and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) A person [An officer, employee, or paid consultant of a Texas trade association in the field of health care] may not be a member of the board and may not be a department [an] employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if: (1) the person is an officer, employee, manager, or paid consultant of a Texas trade association in the field of health care; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of mental health [of the department who carries out the functions of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule]. (c) [A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the department who carries out the functions of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule. [(d)] A person may not be [serve as] a member of the board or act as the general counsel to the board or the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. SECTION 6. Sections 503.107(a) and (c), Occupations Code, are amended to read as follows: (a) It is a ground for removal from the board that a member: (1) does not have at the time of taking office [appointment] the qualifications required by Section 503.102 [for appointment to the board]; (2) does not maintain during the service on the board the qualifications required by Section 503.102 [for appointment to the board]; (3) is ineligible for membership under [violates a prohibition established by] Section 503.103 or [Section] 503.104[(b) or (c)]; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a [unless the absence is excused by] majority vote of the board. (c) If the executive director has knowledge that a potential ground for removal [of a board member] exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and attorney general that a potential ground for removal exists. SECTION 7. Section 503.108, Occupations Code, is amended to read as follows: Sec. 503.108. [PER DIEM;] REIMBURSEMENT. [(a) A board member is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board. [(b)] A board member may receive reimbursement for expenses as provided by the General Appropriations Act. SECTION 8. Sections 503.110(a), (b), and (c), Occupations Code, are amended to read as follows: (a) A person who is appointed to and qualifies for office as a member of the [Before a] board may not vote, deliberate, or be counted as a member in attendance at a meeting until the person completes [member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of] a training program that complies with [established by the board under] this section. (b) The training program must provide the person with information [to a participant] regarding: (1) this chapter and the board's programs, functions, rules, and budget; (2) [the programs operated by the board; [(3) the role and functions of the board; [(4) the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority; [(5) the current budget for the board; [(6)] the results of the most recent formal audit of the board; (3) [(7)] the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts-of-interest; and (4) [Chapters 551, 552, 2001, and 2002, Government Code; [(8) the requirements of the conflict of interest laws and other laws relating to public officials; and [(9)] any applicable ethics policies adopted by the board or the Texas Ethics Commission. (c) A person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office [In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission]. SECTION 9. Section 503.154, Occupations Code, is amended to read as follows: Sec. 503.154. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate [define] the policymaking [respective] responsibilities of the board and the management responsibilities of the executive director and staff of the department [board]. SECTION 10. Subchapter E, Chapter 503, Occupations Code, is amended by adding Section 503.2045 to read as follows: Sec. 503.2045. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. (a) The board shall adopt rules necessary to comply with Chapter 53. (b) In its rules under this section, the board shall list the specific offenses for which a conviction would constitute grounds for the board to take action under Section 53.021. SECTION 11. Section 503.205, Occupations Code, is amended to read as follows: Sec. 503.205. DELEGATION TO [INDIVIDUAL MEMBER OR] COMMITTEE. The board may delegate a function or activity required by this chapter [to an individual board member or] to a committee of board members on a permanent or temporary basis if[: [(1)] the board agrees to the delegation[; and [(2) the person clearly possesses the professional and personal qualifications to carry out the delegation]. SECTION 12. Subchapter E, Chapter 503, Occupations Code, is amended by adding Sections 503.210 and 503.211 to read as follows: Sec. 503.210. USE OF TECHNOLOGY. The board shall implement a policy requiring the board to use appropriate technological solutions to improve the board's ability to perform its functions. The policy must ensure that the public is able to interact with the board on the Internet. Sec. 503.211. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) The board shall develop and implement a policy to encourage the use of: (1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of board rules; and (2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction. (b) The board's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (c) The board shall designate a trained person to: (1) coordinate the implementation of the policy adopted under Subsection (a); (2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (3) collect data concerning the effectiveness of those procedures, as implemented by the board. SECTION 13. Section 503.253, Occupations Code, is amended to read as follows: Sec. 503.253. RECORDS OF COMPLAINTS. (a) The board shall maintain a system to promptly and efficiently act on complaints filed with the board. The board shall maintain: (1) information about the parties to the complaint and the subject matter of the complaint; (2) a summary of the results of the review or investigation of the complaint; and (3) information about the disposition of the complaint [keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of: [(1) each person contacted in relation to the complaint; [(2) a summary of findings made at each step of the complaint process; [(3) an explanation of the legal basis and reason for dismissal of a complaint; [(4) the schedule established for the complaint under Section 503.255 and a notation of any change in the schedule; and [(5) other relevant information]. (b) The board shall make information available describing its procedures for complaint investigation and resolution. (c) The board shall periodically notify the parties of the status of the complaint until final disposition of the complaint [If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation]. SECTION 14. Subchapter F, Chapter 503, Occupations Code, is amended by adding Section 503.2555 to read as follows: Sec. 503.2555. COMPLAINT COMMITTEE. The board shall appoint at least one public member to any board committee established to review a complaint filed with the board or review an enforcement action against a license holder related to a complaint filed with the board. SECTION 15. Section 503.302(a), Occupations Code, is amended to read as follows: (a) A person qualifies for a license under this chapter if the person: (1) is at least 18 years old; (2) has a master's or doctoral degree in counseling or a related field; (3) has successfully completed a graduate degree at a regionally accredited institution of higher education and the number of [a planned graduate program of 48] graduate semester hours required by board rule, which may not be less than 48 hours and must include [including] 300 clock hours of supervised practicum that: (A) is primarily counseling in nature; and (B) meets the specific academic course content and training standards established by the board; (4) has completed the number of supervised experience hours required by board rule, which may not be less than [36 months or] 3,000 hours [of supervised experience] working in a counseling setting that meets the requirements established by the board after the completion of the graduate program described by Subdivision (3); (5) except as provided by Subsection (b), passes the license examination and jurisprudence examination required by this chapter; (6) submits an application as required by the board, accompanied by the required application fee; and (7) meets any other requirement prescribed by the board. SECTION 16. Section 503.305(b), Occupations Code, is amended to read as follows: (b) The [As determined by the] board shall contract with a nationally recognized testing organization to develop and administer a written professional counselor licensing examination to applicants who apply for a license under this chapter [for each applicant, the license examination may be: [(1) a field examination using questionnaires answered by the applicant's instructors, employers, supervisors, references, and others who are competent, in the board's judgment, to evaluate the applicant's professional competence; or [(2) another type of examination as prescribed by the board]. SECTION 17. Subchapter G, Chapter 503, Occupations Code, is amended by adding Section 503.3055 to read as follows: Sec. 503.3055. JURISPRUDENCE EXAMINATION. (a) The board shall develop and administer at least twice each calendar year a jurisprudence examination to determine an applicant's knowledge of this chapter, board rules, and any other applicable laws of this state affecting the applicant's professional counseling practice. (b) The board shall adopt rules to implement this section, including rules related to the development and administration of the examination, examination fees, guidelines for reexamination, grading the examination, and providing notice of examination results. SECTION 18. Section 503.306, Occupations Code, is amended by adding Subsection (d) to read as follows: (d) Notwithstanding the other provisions of this section, the board may notify an applicant of the applicant's examination results in the manner provided in a contract between the board and a testing organization selected by the board under Section 503.305. SECTION 19. Section 503.310(b), Occupations Code, is amended to read as follows: (b) An applicant for a provisional license must: (1) be licensed in good standing as a counselor or art therapist in another state, territory, or jurisdiction that has licensing requirements substantially equivalent to the requirements of this chapter; (2) have passed the required license [a national or other] examination [recognized by the board relating to counseling or art therapy]; and (3) be sponsored by a person licensed under this chapter with whom the applicant may practice under a provisional license. SECTION 20. Section 503.351, Occupations Code, is amended to read as follows: Sec. 503.351. [ANNUAL] RENEWAL; ELIGIBILITY. A person licensed under this chapter may renew the license biennially [annually] if the person: (1) is not in violation of this chapter when the person applies for renewal; and (2) fulfills the continuing education requirements established by the board. SECTION 21. Sections 503.354(c) and (d), Occupations Code, are amended to read as follows: (c) A person whose license has been expired for 90 days or less may renew the license by paying to the board [the required renewal fee and] a fee that is equal to 1-1/4 times [half of] the amount of the renewal [license examination] fee. (d) If a person's license has been expired for more than 90 days but less than one year [because the person did not pay the renewal fee or did not meet continuing education requirements], the person may renew the license by[: [(1)] paying to the board [all unpaid renewal fees and] a fee that is equal to 1-1/2 times the amount of the renewal [license examination] fee[; and [(2) providing the board with proof that the person has completed the required continuing education]. SECTION 22. Subchapter I, Chapter 503, Occupations Code, is amended by adding Section 503.407 to read as follows: Sec. 503.407. REFUND. (a) Subject to Subsection (b), the board may order a license holder to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter. (b) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the license holder for a service regulated by this chapter. The board may not require payment of other damages or estimate harm in a refund order. SECTION 23. Subchapter J, Chapter 503, Occupations Code, is amended by adding Section 503.454 to read as follows: Sec. 503.454. CEASE AND DESIST ORDER. (a) If it appears to the board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of professional counseling, the board after notice and opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity. (b) A violation of an order under this section constitutes grounds for imposing an administrative penalty under this chapter. SECTION 24. Section 503.502, Occupations Code, is amended by adding Subsection (c) to read as follows: (c) The board by rule shall adopt an administrative penalty schedule based on the criteria listed in Subsection (b) for violations of this chapter or board rules to ensure that the amounts of penalties imposed are appropriate to the violation. The board shall provide the administrative penalty schedule to the public on request. SECTION 25. The following sections are repealed: (1) Section 503.053, Occupations Code; (2) Section 503.110(d), Occupations Code; (3) Sections 503.302(b) and (c), Occupations Code; (4) Section 503.303(c), Occupations Code; (5) Sections 503.305(c), (d), and (e), Occupations Code; and (6) Section 503.309, Occupations Code. SECTION 26. (a) Not later than January 1, 2006, the Texas State Board of Examiners of Professional Counselors shall: (1) adopt the policies required by Sections 503.210 and 503.211, Occupations Code, as added by this Act; and (2) adopt the rules required by Chapter 503, Occupations Code, as amended by this Act. (b) Not later than March 1, 2006, the Texas State Board of Examiners of Professional Counselors shall: (1) develop the jurisprudence examination required by Section 503.3055, Occupations Code, as added by this Act; and (2) contract with a nationally recognized testing organization for the administration of the license examination as required by Section 503.305(b), Occupations Code, as amended by this Act. SECTION 27. (a) The changes in law made by Sections 503.104, 503.107, and 503.110, Occupations Code, as amended by this Act, regarding the prohibitions on or qualifications of members of the Texas State Board of Examiners of Professional Counselors do not affect the entitlement of a member serving on the board immediately before September 1, 2005, to continue to serve and function as a member of the board for the remainder of the member's term. The changes in law made by those sections apply only to a member appointed on or after September 1, 2005. (b) The changes in law made by this Act related to the filing or investigation of a complaint under Chapter 503, Occupations Code, as amended by this Act, apply only to a complaint filed with the Texas State Board of Examiners of Professional Counselors on or after the effective date of this Act. A complaint filed before the effective date of this Act is governed by the law as it existed immediately before that date, and the former law is continued in effect for that purpose. (c) The changes in law made by this Act governing the eligibility of a person for a license under Chapter 503, Occupations Code, apply only to an application for a license filed with the Texas State Board of Examiners of Professional Counselors under Chapter 503, Occupations Code, as amended by this Act, on or after the effective date of this Act. A license application filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose. (d) The change in law made by this Act with respect to conduct that is grounds for imposition of a disciplinary sanction, including a refund, temporary license suspension, or cease and desist order, applies only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose. (e) The change in law made by Section 503.302(a), Occupations Code, as amended by this Act, and Section 503.3055, Occupations Code, as added by this Act, regarding the jurisprudence examination, applies only to an application for a license filed with the Texas State Board of Examiners of Professional Counselors under Chapter 503, Occupations Code, as amended by this Act, on or after the effective date of this Act. SECTION 28. Notwithstanding Section 503.354, Occupations Code, as amended by this Act, the fees for an applicant renewing an expired license under Chapter 503, Occupations Code, before September 1, 2007, are governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose. An applicant who renews an expired license under Chapter 503, Occupations Code, on or after September 1, 2007, is subject to the fees provided by Section 503.354, Occupations Code, as amended by this Act. SECTION 29. This Act takes effect September 1, 2005. ______________________________ ______________________________ President of the Senate Speaker of the House I certify that H.B. No. 1283 was passed by the House on May 9, 2005, by the following vote: Yeas 146, Nays 0, 2 present, not voting. ______________________________ Chief Clerk of the House I certify that H.B. No. 1283 was passed by the Senate on May 24, 2005, by the following vote: Yeas 31, Nays 0. ______________________________ Secretary of the Senate APPROVED: _____________________ Date _____________________ Governor