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Introduced Version Senate Bill 205 History

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Senate Bill No. 205

(By Senator McKenzie)

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[Introduced February 16, 2005; referred to the Committee

on Government Organization; and then to the Committee on Finance.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-41-1, §30-41-2, §30-41-3, §30-41-4, §30-41-5, §30-41-6, §30-41-7, §30-41-8, §30-41-9, §30-41-10, §30-41-11, §30-41-12, §30-41-13 and §30-41-14, all relating to the creation of a Board of Examiners in Marriage and Family Counseling.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §30-41-1, §30-41-2, §30-41-3, §30-41-4, §30-41-5, §30-41-6, §30-41-7, §30-41-8, §30-41-9, §30-41-10, §30-41-11, §30-41-12, §30-41-13 and §30-41-14, all to read as follows:
ARTICLE 41. LICENSED PROFESSIONAL MARRIAGE AND FAMILY THERAPISTS.
§30-41-1. Legislative purpose.

The Legislature hereby finds that in the public interest, persons should not engage in the practice of marriage and family therapy in this State without the requisite experience and training; and that there is presently no adequate means to protect the interests of the citizens of this State from the unauthorized, unqualified and unprofessional practice of counseling. It is therefore declared to be the public policy of this State that the practice of marriage and family therapy affects the general welfare and public interest of the State and its citizens; that persons without the necessary qualifications, training, education, experience and persons not of good character should not engage in the practice of marriage and family therapy; that the unauthorized, unqualified and unprofessional practice of marriage and family therapy may be best prevented, and the interest of the public best served, by regulating and controlling such practice as provided in this article; and that this article should be liberally construed to effect such objects and purposes.
§30-41-2. Definitions.
As used in this article:
(1) "Applicant" means any person making an application for an original or renewal license under the provisions of this article;
(2) "Board" means the West Virginia Board of Examiners in marriage and family therapy established by this article;
(3) "Marriage and family therapy" means the treatment, evaluation, assessment counseling, management and treatment of emotional disorders, whether cognitive, affective, or behavioral, within the context of marriage and family systems, through the professional application of marriage and family therapies and techniques;
(4) "Marriage and family therapist" means one who holds himself or herself out to the public as engaged in the practice of marriage and family therapy as defined herein, and, in so doing, represents he or she has the knowledge, training, expertise and ethical standards necessary to engage in such practice;
(5) "Licensed professional marriage and family therapist" means a marriage and family therapist as defined herein who holds a valid license to practice marriage and family therapy issued pursuant to this article;
(6) "Practice of marriage and family therapy" means the treatment, evaluation, assessment counseling, and management, of emotional disorders, whether cognitive, affective or behavioral, within the context of marriage and family systems, to individuals, couples, and families, singly or in groups, whether those services are offered directly to the general public or through public or private organizations, for a fee, salary or other consideration through the professional application of marriage and family theories, therapies, and techniques, including, but not limited to, psychotherapeutic theories, therapies and techniques that marriage and family therapists are educated and trained to perform. The practice of marriage and family therapy does not mean any of the following:
(a) The treatment of biologically based psychiatric conditions without consultation with an appropriate medical doctor or psychiatrist;
(b) The use of psychotherapeutic techniques that are exclusive to the scope of practice of a licensed psychologist or psychiatrist;
(c) Any act that marriage and family therapists are not educated to perform.
§30-41-3. Activities exempted; persons exempted from licensing; limitations on licensed professional marriage and family therapists.

(a) Nothing in this article applies to the following activities:
(1) Teaching, lecturing or engaging in research in marriage and family therapy so long as such activities do not otherwise involve the practice of counseling directly affecting the welfare of the person counseled;
(2) The official duties of persons who are employed by a licensed marriage and family therapist, whose duties are supervised by a licensed professional marriage and family therapist and who represent themselves by a title such as "marriage and family therapist trainee," "marriage and family therapist intern," "marriage and family therapist assistant" or other reasonable facsimile of such title, and do not represent themselves as licensed professional marriage and family therapists as defined by section two of this article.
(3) The activities of a student of marriage and family therapy which are part of the prescribed course of study at an accredited educational institution and are supervised by a licensed professional marriage and family therapist or by a teacher, instructor or professor of marriage and family therapy acting within the official duties or scope of activities exempted by this section; or
(4) The activities and services of qualified members of other recognized professions such as physicians, psychologists, psychoanalysts, social workers, counselors, lawyers, nurses, teachers and clergymen performing counseling consistent with the laws of this State, their training and any code of ethics of their professions so long as such persons do not represent themselves as licensed professional marriage and family therapists as defined by section two of this article.
(b) Nothing in the article requires licensing pursuant to this article of a nonresident marriage and family therapist who holds a license or certificate to engage in the practice of marriage and family therapy issued by another state, the qualifications for which in the opinion of the Board are at least as stringent as those provided in section seven of this article, and who renders marriage and family therapy services in this State for no more than thirty days in any calendar year.
(c) Nothing in this article permits licensed professional marriage and family therapists to administer or prescribe drugs or otherwise engage in the practice of medicine as defined by this code.
§30-41-4. Board of examiners in marriage and family therapy; appointment and qualifications of members.

(a) There is hereby created a West Virginia board of examiners in marriage and family therapy, consisting of seven members who shall be appointed by the Governor by and with the advice and consent of the Senate, subject to the following provisions:
(1) The Board shall be composed of two marriage and family therapy educators engaged in the teaching of marriage and family therapy at an accredited institution of higher education, three practicing marriage and family therapists and two persons chosen from the general public. The five members of the Board who are marriage and family therapy educators and practicing marriage and family therapists must be licensed pursuant to this article and have a minimum of three years of experience except for the initial appointees who must meet the qualifications provided in subdivision (2) of this subsection.
(2) The initial appointees who are practicing marriage and family therapists must be persons who have been rendering marriage and family therapy services for at least three years. The initial appointees who are marriage and family therapy educators must be persons who have been teaching marriage and family therapy at an accredited institution of higher education for at least three years. Each initial appointee shall commence serving a term on the Board on the first day of July, two thousand five. One initial appointee who is a practicing marriage and family therapist and one initial appointee who is chosen from the general public shall serve terms of one year; one initial appointee who is a practicing marriage and family therapist and one initial appointee who is a marriage and family therapy educator shall serve terms of two years; and the remaining initial appointees shall serve terms of three years. Each subsequent appointee shall commence serving a term of five years on the Board beginning on the first day of July in the year of his or her appointment. No board member may serve more than two consecutive full five-year terms.
(3) On or before the first day of July, two thousand six, and each year thereafter in which the term of a member is to expire, the Governor shall appoint a qualified candidate for each vacancy on the Board occurring by reason of the expiration of a term.
(4) Within sixty days of the occurrence of a vacancy on the Board which occurs for any reason other than the expiration of a term, the Governor shall appoint a qualified candidate to serve the unexpired term of the member whom he or she succeeds.
(b) Before entering upon the performance of his or her duties, each member of the Board shall take the oath required by Section five, Article IV of the Constitution of this State. No member of the Board may be removed from office by the Governor except for official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality, and then only in the manner prescribed by law for the removal by the governor of state elective officers.
(c) On the second Monday in July, two thousand five, the Board shall hold its first annual business meeting to elect a chairperson and secretary from its membership, organize the affairs of the Board and transact such other business as may come before it. Such meeting shall be called at a time and place in this State designated by an appointee named by the Governor as a temporary chairperson to serve until a chairperson is elected. The Board shall hold an annual business meeting at the call of the chairperson in July, two thousand five, and in each year thereafter, to elect a chairperson and secretary and transact such other business as may come before it. Additional meetings may be held at the call of the chairperson or at the written request of any three members. Four members of the Board constitute a quorum. Each member of the Board shall receive per diem compensation of fifty dollars for each day actually engaged in the duties of his or her office and reimbursement for all reasonable and necessary expenses actually incurred in the performance of his or her duties as a member of the Board.
§30-41-5. Powers and duties of Board; disposition of Board Funds.

(a) In addition to the duties set forth elsewhere in this article, the Board shall:
(1) Issue, renew, deny, suspend or revoke licenses to engage in the practice of marriage and family therapy and place a licensed marriage and family therapist on probation in accordance with the provisions of this article and, in accordance with the administrative procedures hereinafter provided, may review, affirm, reverse, vacate or modify its order with respect to any such denial, suspension or revocation;
(2) Promulgate reasonable rules pursuant to article three, chapter twenty-nine-a of this code, implementing the provisions of this article and the powers and duties conferred upon the Board hereby including, but not limited to, rules setting forth:
(A) Any and all specific master's and doctoral degree programs considered to be equivalent to a master's or doctoral degree program in counseling for purposes of licensure under subdivision (4), subsection (a), section seven of this article;
(B) The nature of supervised professional experience approved by the Board for the purposes of licensure under subdivision (4), subsection (a), section seven of this article;
(C) A code of ethics for licensed marriage and family therapists patterned after the codes of ethics of related professional groups;
(D) Forms for license applications and license renewal applications; and
(E) A reasonable and appropriate schedule of fees;
(3) Keep accurate and complete records of its proceedings, certify the same as may be appropriate and submit an annual report to the Governor and the Legislature in such form as the Governor may require;
(4) Adopt an official seal to be affixed to all licenses issued by the Board;
(5) Appoint an examiner to determine the eligibility of applicants for a license to engage in the practice of
marriage and family therapy ;
(6) Employ, direct, discharge and define the duties of any and all professional, clerical or other personnel necessary to effectuate the provisions of this article;
(7) Take any other actions as may be reasonably necessary to effectuate the provisions of this article; and
(8) Accept gifts, grants and donations from any source for the purposes of or incidental to this article.
(b) All moneys paid to the Board shall be accepted by a person designated by the Board and deposited by him or her with the treasurer of the State and credited to an account to be known as the "Board of Examiners in
Marriage and Family Therapy Fund." The compensation and expenses of members of the Board and all other costs and expenses incurred by the Board in the administration of this article shall be paid from the Fund, and no part of the State's general revenue fund may be expended for such purpose.
§30-41-6. License required.

Beginning on the first day of July, two thousand five, and thereafter, no person may engage in, offer to engage in or hold himself or herself out to the public as being engaged in the practice of
marriage and family therapy unless such person is licensed or exempted from licensing pursuant to this article.
§30-41-7. Qualifications of applicants for license; application fee.

(a) To be eligible for a license to engage in the practice of
marriage and family therapy , an applicant must:
(1) Be a legal resident of the State of West Virginia;
(2) Satisfy the Board that he or she is of good moral character and merits the public trust, which shall be evidenced as follows:
(A) If the applicant has never been convicted of a felony or a crime involving moral turpitude, the applicant shall submit letters of recommendation from three persons not related to the applicant and a sworn statement from the applicant stating that he or she has never been convicted of a felony or a crime involving moral turpitude; or
(B) If the applicant has been convicted of a felony or a crime involving moral turpitude, it is a rebuttable presumption that the applicant is unfit for licensure unless he or she submits competent evidence of sufficient rehabilitation and present fitness to perform the duties of a licensed professional marriage and family therapist as may be established by the production of: (i) Documentary evidence including a copy of the relevant release or discharge order, evidence showing compliance with all conditions of probation or parole, evidence showing that at least one year has elapsed since release or discharge without subsequent conviction, and letters of reference from three persons who have been in contact with the applicant since his or her release or discharge; and (ii) any collateral evidence and testimony as may be requested by the Board which shows the nature and seriousness of the crime, the circumstances relative to the crime or crimes committed and any mitigating circumstances or social conditions surrounding the crime or crimes and any other evidence necessary for the Board to judge present fitness for licensure or whether licensure will enhance the likelihood that the applicant will commit the same or similar offenses;
(3) Not be an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant who has had at least two continuous years of uninterrupted sobriety in an active recovery process, which may, in the discretion of the Board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;
(4) Have earned a master's degree in an accredited marriage and family therapy program or in a field closely related to an accredited
marriage and family therapy program as determined by the Board, or have received training equivalent to such degree as may be determined by the Board, and have at least two years of supervised professional experience in marriage and family therapy of such a nature as shall be designated by the Board, including at least one year's experience after earning an aforementioned master's degree or equivalent; or have earned a doctorate degree in an accredited marriage and family therapy program or in a field closely related to an accredited marriage and family therapy program as determined by the Board, or have received training equivalent to such degree as may be determined by the Board, and have at least one year of supervised professional experience in marriage and family therapy of such a nature as shall be designated by the Board after earning an aforementioned doctorate degree or equivalent; and
(5) Have passed a standardized national certification examination in
marriage and family therapy approved by the Board.
(b) Any person who holds a license or certificate to engage in the practice of
marriage and family therapy issued by any other state, the qualifications for which license or certificate are determined by the Board to be at least as great as those provided in this article, is eligible for licensure.
(c) Every applicant must submit an application for a license to practice
marriage and family therapy to the Secretary of the Board in such manner, on such forms and containing such information as the Board may prescribe and pay to the Board a nonrefundable application fee as established by the Board.
§30-41-8. Issuance of license; renewal of license; renewal fee; information required in application for renewal.

(a) Whenever the Board finds that an applicant meets all of the qualifications of this article for a license to engage in the practice of
marriage and family therapy , it shall forthwith issue a license to the applicant. The Board shall deny a license to any applicant who does not meet all of the qualifications.
(b) Every license to engage in the practice of
marriage and family therapy must be renewed biennially during the month of July. To renew a license, a licensed professional marriage and family therapist must submit an application for renewal to the Secretary of the Board on such forms as the Board may prescribe and pay to the Board a renewal fee as established by the Board. Any license which is not so renewed shall automatically lapse. Any license which has lapsed may be renewed within two years of its expiration date by payment to the Board of the appropriate renewal fee for each period or part thereof during which the license was not renewed.
(c) Each application to renew a license shall contain or be accompanied by evidence of continued professional development in the practice of
marriage and family therapy as determined by the Board by rule promulgated in accordance with the provisions of chapter twenty-nine-a of this code and any such other reasonable information as the Board may consider appropriate.
§30-41-9. Suspension or revocation of license.

(a) The Board may at any time upon its own motion, and shall upon the written complaint of any person, conduct an investigation to determine whether there are any grounds for placing a licensed professional marriage and family therapist on probation or for the suspension or revocation of a license issued under the provisions of this article.
(b) The Board, upon the affirmative vote of at least five of its members, shall place a licensed professional marriage and family therapist on probation, or suspend or revoke any license when it finds that the holder thereof:
(1) Has been convicted of a felony or a crime involving moral turpitude;
(2) Has used narcotic drugs, other controlled substances or alcohol to the extent that it affects his or her professional competency;
(3) Is under a declaration of mental incompetence;
(4) Has obtained or attempted to obtain a license issued under the provisions of this article by fraud, deceit or willful misrepresentation;
(5) Has failed or refused to comply with the provisions of this article or any rule promulgated by the Board hereunder or any order or final decision of the Board;
(6) Has violated the current code of ethics adopted by the Board;
(7) Has impersonated another licensed professional marriage and family therapist; or
(8) Has allowed his or her name or license issued under the provisions of this article to be used by or transferred to any other person or persons to perform
marriage and family therapy services.
(c) Any licensed professional marriage and family therapist whose license has been suspended or revoked or who has been placed on probation pursuant to Board action under the provisions of subdivision (1) or (2) of this subsection may be reinstated upon a showing of competent evidence of sufficient rehabilitation and present fitness to perform the duties of a licensed professional marriage and family therapist as determined by the Board.
§30-41-10. Procedures for hearing.

(a) Whenever the Board denies an application for any license or renewal of any license or suspends or revokes any license or places any licensed professional marriage and family therapist on probation, it shall make and enter an order to that effect and serve a copy thereof on the applicant or licensed professional marriage and family therapist, as the case may be, at his or her last known address, by certified mail, return receipt requested. The order shall state the grounds for the action taken and shall require that any license suspended or revoked thereby shall be returned to the Board by the holder within twenty days after receipt of the copy of the order.
(b) Any person adversely affected by any such order is entitled to a hearing thereon (as to all issues not excluded from the definition of a "contested case" as set forth in section one, article one, chapter twenty-nine-a of this code) if, within twenty days after receipt of a copy thereof, he or she files with the Board a written demand for a hearing. A demand for hearing shall operate automatically to stay or suspend the execution of any order placing a licensed marriage and family therapist on probation, suspending or revoking a license or denying an application for a renewal license. The Board may require the person demanding the hearing to give reasonable security for the costs thereof and if the person does not substantially prevail at the hearing, such security shall be forfeited or the costs shall be assessed against him or her and may be collected by an action at law or other proper remedy.
(c) Upon receipt of a written demand for a hearing, the Board shall set a time and place therefor not less than ten and not more than thirty days thereafter. Any scheduled hearing may be continued by the Board upon its own motion or for good cause shown by the person demanding the hearing.
(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code apply to and govern the hearing and the administrative procedures in connection with and following the hearing, with like effect as if the provisions of said article five were set forth in this section.
(e) Any such hearing shall be conducted by a quorum of the Board. For the purpose of conducting any such hearing, any member of the Board has the power and authority to issue subpoenas and subpoenas duces tecum which shall be issued and served within the time, for the fees and shall be enforced, as specified in section one, article five of chapter twenty-nine-a of this code and all of the provisions of said section one dealing with subpoenas and subpoenas duces tecum apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.
(f) At any such hearing the person who demanded the same may represent himself or herself or be represented by an attorney licensed to practice law in this State. Upon request by the Board, it shall be represented at any such hearing by the attorney general or his or her assistants without additional compensation.
(g) After any such hearing and consideration of all of the testimony, evidence and record in the case, the Board shall render its decision in writing. The written decision of the Board shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code. A copy of the decision and accompanying findings and conclusions shall be served by certified mail, return receipt requested, upon the person demanding the hearing, and his or her attorney of record, if any.
(h) The decision of the Board is final unless reversed, vacated or modified upon judicial review thereof in accordance with the provisions of section eleven of this article.
§30-41-11. Judicial Review; appeal to Supreme Court of Appeals; legal representation for Board.

Any person adversely affected by a decision of the Board rendered after a hearing held in accordance with the provisions of section ten of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code apply to and govern such judicial review with the effect as if the provisions of said section four were set forth in this section.
The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
Legal counsel and services for the Board in all appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any circuit court by the prosecuting attorney of the county as well, all without additional compensation.
§30-41-12. Penalties.

Any person who violates any of the provisions of this article, any of the reasonable rules promulgated hereunder or any order or any final decision of the Board is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned in jail not more than six months, or both fined and imprisoned.
§30-41-13. Disclosure.

All information communicated to or acquired by a licensed professional marriage and family therapist while engaged in the practice of providing
marriage and family therapy to a client is privileged information and may not be disclosed by the marriage and family therapist except:
(a) With the written consent of the client, or in the case of death or disability, with the written consent of a personal representative or other person authorized to sue or the beneficiary of any insurance policy on the client's life, health or physical condition;
(b) When a communication reveals the contemplation of an act dangerous to the client or others; or
(c) When the client, or his or her personal representative, waives the privilege by bringing charges against the licensed professional marriage and family therapist.
§30-41-14. Actions to enjoin violations.

Whenever it appears to the Board that any person has been or is violating or is about to violate any provision of this article, any reasonable rule promulgated hereunder or any order or final decision of the Board, the Board may apply in the name of the State to the circuit court of the county in which the violation or violations or any part thereof has occurred, is occurring or is about to occur, or the judge thereof in vacation, for an injunction against such person and any other persons who have been, are or are about to be, involved in any practices, acts or omissions, so in violation, enjoining such person or persons from any such violation or violations. The application may be made and prosecuted to conclusion whether or not any such violation or violations have resulted or result in prosecution or conviction under the provisions of section twelve of this article.
Upon application by the Board, the circuit courts of this State may by mandatory or prohibitory injunction compel compliance with the provisions of this article, the reasonable rules promulgated hereunder and all orders and final decisions of the Board. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed.
The judgment of the circuit court upon any application permitted by the provisions of this section shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil actions.
The Board shall be represented in all such proceedings by the Attorney General or his or her assistants and in such proceedings in the circuit court by the prosecuting attorneys of the several counties as well, all without additional compensation.



NOTE: The purpose of this bill is to establish a Board of Examiners for marriage and family therapist.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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