79R710 UM-D

By:  Whitmire                                                     S.B. No. 417


A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas State Board of Examiners of Marriage and Family Therapists. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Sections 502.002(2) and (3), Occupations Code, are amended to read as follows: (2) "Commissioner" means the commissioner of state health services [public health]. (3) "Department" means the [Texas] Department of State Health Services. SECTION 2. Section 502.003, Occupations Code, is amended to read as follows: Sec. 502.003. APPLICATION OF SUNSET ACT. The Texas State Board of Examiners of Marriage and Family Therapists is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2017 [2005]. SECTION 3. Section 502.004, Occupations Code, is amended to read as follows: Sec. 502.004. APPLICATION OF CHAPTER. This chapter does not apply to: (1) the activities of a person employed to perform marriage and family therapy by a federal, state, county, or municipal agency or a public or private educational institution, if the activities are within the scope of the person's employment; (2) the activities of a student, intern, or trainee in marriage and family therapy in a recognized course of study in marriage and family therapy at an accredited institution of higher education or other training institution, if: (A) the activities constitute a part of the course of study; and (B) the person is called a "marriage and family therapist intern" or similar title; (3) [services provided by a person who is not a resident of this state if: [(A) the services are performed for 30 days or less during a calendar year; and [(B) the person is authorized to provide the services under the law of the state or country of the person's residence; [(4)] the activities and services of a person licensed to practice another profession, including a physician, attorney, registered nurse, occupational therapist, psychologist, social worker, or licensed professional counselor; or (4) [(5)] the activities and services of a recognized religious practitioner, including a pastoral counselor or Christian Science practitioner recognized by the Church of Christ Scientist as registered and published in the Christian Science Journal, if the practitioner practices marriage and family therapy in a manner consistent with the laws of this state. SECTION 4. Section 502.053, Occupations Code, is amended to read as follows: Sec. 502.053. 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, or paid consultant of a Texas trade association in the field of health services; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health services [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 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 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 5. Sections 502.056(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 502.052 [for appointment to the board]; (2) does not maintain during service on the board the qualifications required by Section 502.052 [for appointment to the board]; (3) is ineligible for membership under [violates a prohibition established by] Section 502.052(c) or [,] 502.053[, or 502.159]; (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 [unless the absence is excused] by a majority vote of the board; or (6) violates a prohibition established by Section 502.159. (c) If the executive director has knowledge that a potential ground for removal 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 6. Section 502.057(b), Occupations Code, is amended to read as follows: (b) A board member is entitled to[: [(1) the per diem set by the General Appropriations Act for each day that the member performs duties as a board member; and [(2)] reimbursement for expenses as provided by the General Appropriations Act. SECTION 7. Section 502.059, Occupations Code, is amended to read as follows: Sec. 502.059. TRAINING REQUIREMENTS. (a) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section [Before a board member may assume the member's duties, the member must complete at least one course of the training program established by the board under this section]. (b) The training program must provide the person with information [to a participant] regarding: (1) this chapter; (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; (7) the requirements of laws relating to open meetings, public information, administrative procedure, and conflict of interest [the requirements of 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 (8) [(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's office, the attorney general's office, and the Texas Ethics Commission. [(d) If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program, and each member shall comply with the training requirements established by any other state agency that is given authority to establish training requirements for the board]. SECTION 8. Section 502.104, Occupations Code, is amended to read as follows: Sec. 502.104. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate [define] the policy-making [respective] responsibilities of the board and the management responsibilities of the executive director and the staff of the department [board]. SECTION 9. Subchapter D, Chapter 502, Occupations Code, is amended by adding Sections 502.1565, 502.161, 502.162, and 502.163 to read as follows: Sec. 502.1565. 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. Sec. 502.161. BOARD COMMITTEES. (a) The board may appoint committees to assist the board with its functions under this chapter. (b) Only a member of the board may serve as a member of a board committee. Sec. 502.162. 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. 502.163. 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 10. Section 502.204, Occupations Code, is amended by adding Subsections (f)-(h) to read as follows: (f) The board shall maintain a system to promptly and efficiently act on complaints filed with the board. The board shall maintain information about parties to the complaint, the subject matter of the complaint, a summary of the results of the review or investigation of the complaint, and its disposition. (g) The board shall make information available describing its procedures for complaint investigation and resolution. (h) The board shall periodically notify the complaint parties of the status of the complaint until final disposition. SECTION 11. Subchapter E, Chapter 502, Occupations Code, is amended by adding Section 502.2041 to read as follows: Sec. 502.2041. 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 12. Section 502.252(b), Occupations Code, is amended to read as follows: (b) To qualify for a license as a licensed marriage and family therapist associate, a person must: (1) be at least 18 years of age; (2) have completed a graduate internship in marriage and family therapy, or an equivalent internship, as approved by the board; (3) pass the license [an] examination and jurisprudence examination determined by the board; (4) hold a master's or doctoral degree in marriage and family therapy or in a related mental health field with coursework and training determined by the board to be substantially equivalent to a graduate degree in marriage and family therapy from a regionally accredited institution of higher education or an institution of higher education approved by the board; (5) be of good moral character; (6) have not been convicted of a felony or a crime involving moral turpitude; (7) not use drugs or alcohol to an extent that affects the applicant's professional competency; (8) not have had a license or certification revoked by a licensing agency or by a certifying professional organization; and (9) not have engaged in fraud or deceit in applying for a license under this chapter. SECTION 13. The heading to Section 502.254, Occupations Code, is amended to read as follows: Sec. 502.254. LICENSE EXAMINATION. SECTION 14. Section 502.254(c), Occupations Code, is amended to read as follows: (c) The examination consists of[: [(1)] a written examination[; [(2) an oral examination; [(3) a field examination that: [(A) uses questionnaires answered by persons who are competent in the judgment of the board to assess the applicant's professional ability, including the applicant's instructors, employers, or supervisors; and [(B) may include written case studies and taped interviews; or [(4) any combination of those examinations]. SECTION 15. Subchapter F, Chapter 502, Occupations Code, is amended by adding Section 502.2541 to read as follows: Sec. 502.2541. 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 practice of marriage and family therapy. (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 16. Sections 502.301(a) and (d), Occupations Code, are amended to read as follows: (a) A license issued under this chapter is subject to biennial [annual] renewal. The board shall adopt a system under which licenses expire on various dates during the year. (d) 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 [examination] fee. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board [all unpaid renewal fees and] a fee that is equal to 1-1/2 times the amount of the renewal [examination] fee for the license. SECTION 17. Section 502.302(b), Occupations Code, is amended to read as follows: (b) The person must pay to the board a fee that is equal to the amount of the renewal [examination] fee. SECTION 18. Section 502.351, Occupations Code, is amended to read as follows: Sec. 502.351. GROUNDS FOR DISCIPLINARY ACTIONS. The board shall reprimand a license holder, place on probation a person whose license has been suspended, refuse to renew a person's license, or suspend or revoke a holder's license if the person: (1) is convicted of a misdemeanor involving moral turpitude or a felony; (2) obtains or attempts to obtain a license by fraud or deception; (3) uses drugs or alcohol to an extent that affects the license holder's professional competence; (4) performs professional duties in a grossly negligent manner; (5) is adjudicated as mentally incompetent by a court; (6) practices in a manner that is detrimental to the public health or welfare; (7) advertises in a manner that tends to deceive or defraud the public; (8) has a license or certification revoked by a licensing agency or a certifying professional organization; (9) violates this chapter or a rule or code of ethics adopted under this chapter; or (10) commits an act for which liability exists under Chapter 81, Civil Practice and Remedies Code. SECTION 19. Subchapter H, Chapter 502, Occupations Code, is amended by adding Sections 502.357 and 502.358 to read as follows: Sec. 502.357. GROUNDS FOR REFUSING RENEWAL. The board may refuse to renew the license of a person who fails to pay an administrative penalty imposed under Subchapter I unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed. Sec. 502.358. 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 20. Section 502.402(a), Occupations Code, is amended to read as follows: (a) The amount of an administrative penalty may not exceed $5,000 [$1,000] for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. SECTION 21. Subchapter J, Chapter 502, Occupations Code, is amended by adding Section 502.455 to read as follows: Sec. 502.455. 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 marriage and family therapy, 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 22. (a) Not later than January 1, 2006, the Texas State Board of Examiners of Marriage and Family Therapists shall: (1) adopt the policies required by Sections 502.162 and 502.163, Occupations Code, as added by this Act; and (2) adopt the rules required by Chapter 502, Occupations Code, as amended by this Act. (b) Not later than March 1, 2006, the Texas State Board of Examiners of Marriage and Family Therapists shall develop the jurisprudence examination required by Section 502.2541, Occupations Code, as added by this Act. SECTION 23. (a) The changes in law made by Sections 502.053, 502.056, and 502.059, Occupations Code, as amended by this Act, regarding the prohibitions on or qualifications of members of the Texas State Board of Examiners of Marriage and Family Therapists 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 governing the eligibility of a person for a license under Chapter 502, Occupations Code, apply only to an application for a license filed with the Texas State Board of Examiners of Marriage and Family Therapists under Chapter 502, 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. (c) The change in law made by this Act with respect to conduct that is grounds for imposition of a disciplinary sanction, including a refund, refusal to renew a license, 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. (d) The changes in law made by Section 502.252(b), Occupations Code, as amended by this Act, and Section 502.2541, Occupations Code, as added by this Act, regarding the jurisprudence examination, apply only to an application for a license filed with the Texas State Board of Examiners of Marriage and Family Therapists under Chapter 502, Occupations Code, as amended by this Act, on or after September 1, 2006. (e) Section 502.204, Occupations Code, as amended by this Act, applies only to a complaint filed with the Texas State Board of Examiners of Marriage and Family Therapists on or after the effective date of this Act. A complaint filed before the effective date of this Act is governed by the law in effect on the date the complaint was filed, and the former law is continued in effect for that purpose. SECTION 24. Notwithstanding Section 502.301(d), Occupations Code, as amended by this Act, the fees for an applicant renewing an expired license under Chapter 502, 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 502, Occupations Code, on or after September 1, 2007, is subject to the fees provided by Sections 502.301(d) or 502.302(b), Occupations Code, as amended by this Act. SECTION 25. This Act takes effect September 1, 2005.