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Introduced Version Senate Bill 772 History

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Senate Bill No. 772

(By Senators Love, McKenzie, White and Wells)

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[Introduced February 18, 2008; 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, §30-41-14, §30-41-15, §30-41-16, §30-41-17, §30-41-18, §30-41-19, §30-41-20, §30-41-21, §30-41-22, §30-41-23 and §30-41-24, all relating to regulating the practice of marriage and family therapy; legislative findings; definitions; creating the Marriage and Family Therapy Board of Examiners; powers and duties of the board; license and temporary permit requirements; exemptions; scope of practice; hearing and notice requirements; providing a civil cause of action; criminal penalties; and continuation of the board.

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, §30-41-14, §30-41-15, §30-41-16, §30-41-17, §30-41-18, §30-41-19, §30-41-20, §30-41-21 §30-41-22, §30-41-23 and §30-41-24, all to read as follows:
ARTICLE 41. MARRIAGE AND FAMILY THERAPY.
§30-41-1. License required to practice.

(a) The Legislature finds that:
(1) Therapy in the context of a marriage or a family is significantly different from other therapies;
(2) The practice of marriage and family therapy requires specific education and training; and
(3) It is in the public interest to protect the people of this state from the unprofessional, improper, unauthorized and unqualified practice of marriage and family therapy.
(b) Therefore, in order to protect the health, safety, interest and welfare of the public, it is the purpose of this article to regulate the practice of marriage and family therapy in this state by requiring that a person have a license to practice marriage and family therapy.
§30-41-2. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice marriage and family therapy in this state without a license issued under the provisions of this article or to advertise or use any title or description tending to convey the impression that the person is a licensed marriage and family therapist, unless such person has been duly licensed under the provisions of this article, and such license has not expired, been suspended, revoked or exempted.
(b) Without a licensee duly licensed under the provisions of this article, and such license has not expired, been suspended or revoked, it is unlawful for any business entity to practice, offer to practice, advertise, render any service, engage in any activity, or use any title or description tending to convey the impression that it is providing marriage and family therapy services in this state.
§30-41-3. Applicable law.
The practice of marriage and family therapy and the Marriage and Family Therapy Board of Examiners are subject to the provisions of article one of this chapter and the provisions of this article and any rules promulgated thereunder.
§30-41-4. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) "Advertise" means issuing or causing to be distributed any card, sign or device to any person, or causing, permitting or allowing any sign or marking on or in any building, radio or television or by advertising by any other means to secure public attention.
(b) "Board" means the Marriage and Family Therapy Board of Examiners.
(c) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity.
(d) "License" means a marriage and family therapy license issued under the provisions of this article.
(e) "Licensee" means a person holding a marriage and family therapy license issued under the provisions of this article, which license has not been suspended or revoked.
(f) "Marriage and family therapist" means a person licensed under the provisions of this article to practice marriage and family therapy.
(g) "Marriage and family therapy" means the diagnosis and treatment of mental and emotional disorders, whether cognitive, affective or behavioral, within the context of interpersonal relationships, including marital and family systems, and involves the professional application of psychotherapy, counseling, evaluation, assessment instruments, consultation, treatment planning, supervision, research and prevention.
(h) "Qualified supervision" means the supervision of clinical services, in accordance with the standards established by the board, by an individual who has been recognized by the board as an approved supervisor.
(i) "Permittee" means a person holding a temporary permit and known as a temporary licensed marriage and family therapist (TLMFT).
(j) "Recognized educational institution" means an educational institution that:
(1) Issues a master or a doctoral degree;
(2) Provides postgraduate training accredited by the commission on accreditation for marriage and family therapy education (COAMFTE); and/or
(3) Is recognized by the board and a regionally recognized educational body.
(k) "Temporary permit" means a permit to practice, for a period of time not exceeding one year, as a temporary licensed marriage and family therapist (TLMFT) issued pursuant to the provisions of this article, which has not been suspended or revoked.
§30-41-5. Marriage and Family Therapy Board of Examiners.
(a) On the first day of July, two thousand eight, the West Virginia Marriage and Family Therapy Board of Examiners, consisting of five members, is hereby created.
(b) On or before the first day of July, two thousand eight, the Governor shall appoint, by and with the consent of the Senate, the following members:
(1) Four licensed marriage and family therapists selected from a list of five persons nominated by the West Virginia Association for Marriage and Family Therapy, two appointed for an initial term of four years and two appointed for an initial term of two years; and
(2) One citizen member who is not licensed under the provisions of this article and does not perform any services related to the practice licensed under the provisions of this article, for an initial term of three years.
(c) After the initial appointed term, the term shall be four years. Each member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until a successor has been appointed and has qualified.
(d) Each member of the board shall be a resident of West Virginia during the appointment term.
(e) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.
(f) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(g) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice has been suspended or revoked. A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any state or the United States or becomes a nonresident of this state.
(h) The board shall designate one of its members as chairperson and one member as secretary-treasurer who shall serve at the will of the board.
(i) Each member of the board shall receive compensation and expense reimbursement in accordance with article one of this chapter.
(j) A majority of the members of the board shall constitute a quorum.
(k) The board shall hold at least two annual meetings. Other meetings shall be held at the call of the chairperson or upon the written request of three members, at such time and place as designated in the call or request.
(l) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state.
§30-41-6. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter, and elsewhere in law.
(b) The board's powers and duties include:
(1) Holding meetings, conducting hearings and administering examinations and reexaminations;
(2) Setting the requirements for a license and temporary permit to practice marriage and family therapy;
(3) Establishing procedures for submitting, approving and rejecting applications for a license and temporary permit;
(4) Determining the qualifications of any applicant for a license and temporary permit;
(5) Preparing, conducting, administering and grading written examinations and reexaminations for a license and temporary permit;
(6) Contracting with third parties to prepare and/or administer the examinations and reexaminations required under the provisions of this article;
(7) Determining the passing grade for the examinations;
(8) Maintaining records of the examinations and reexaminations the board or a third party administers, including the number of persons taking the examination or reexamination and the pass and fail rate;
(9) Maintaining an accurate registry of names and addresses of all persons regulated by the board;
(10) Defining, by legislative rule, the fees charged under the provisions of this article;
(11) Issuing, renewing, denying, suspending, revoking or reinstating licenses and temporary permits;
(12) Establishing, by legislative rule, the continuing education requirements for licensees;
(13) Suing and being sued in its official name as an agency of this state;
(14) Maintaining an office and hiring, discharging, setting the job requirements and fixing the compensation of employees and investigators necessary to enforce the provisions of this article;
(15) Investigating alleged violations of the provisions of this article, the rules promulgated hereunder, and orders and final decisions of the board;
(16) Conducting disciplinary hearings of all persons regulated by the board;
(17) Setting disciplinary action and issuing orders;
(18) Instituting appropriate legal action for the enforcement of the provisions of this article;
(19) Keeping accurate and complete records of its proceedings, and certifying the same as may be appropriate;
(20) Proposing rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article;
(21) Conferring with the Attorney General or his or her assistants in connection with all legal matters and questions; and
(22) Taking all other actions necessary and proper to effectuate the purposes of this article.
§30-41-7. Rulemaking.
The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(a) Standards and requirements for licensure to practice marriage and family therapy;
(b) Procedures for examinations and reexaminations;
(c) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(d) Educational and experience requirements, and the passing grade on the examination;
(e) Standards for approval of educational courses and institutions;
(f) Procedures for the issuance and renewal of a license and temporary permit;
(g) A fee schedule;
(h) Continuing education requirements for licensees;
(i) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee or permittee;
(j) Requirements for inactive or revoked licenses and permits; and
(k) Any other rules necessary to effectuate the provisions of this article.
§30-41-8. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the Marriage and Family Therapy Board of Examiners Fund, which fund is hereby created. The fund shall be used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.
§30-41-9. Education, experience and examination requirements for licensure.

(a) An applicant for licensure under this article must have completed one of the following education requirements:
(1) Has a master or doctorate degree in marriage and family therapy from a recognized educational institution;
(2) Has a graduate degree in an allied field from a recognized educational institution and has completed graduate level course work equivalent to a master degree in marriage and family therapy; or
(3) On or before the first day of July, two thousand eleven, has a graduate degree in an allied field from a recognized educational institution and has completed an advanced certificate program, as determined by the board.
(b) An applicant must also have completed at least two years of supervised professional experience in marriage and family therapy as determined by the board and passed a standardized national examination prescribed by the board, which examination shall cover the basic subject matter of marriage and family therapy, skills and techniques.
§30-41-10. License requirements.
(a) The board shall issue a license to practice under the provisions of this article to an applicant who meets the following requirements:
(1) Is of good moral character;
(2) Is at least eighteen years of age;
(3) Is a citizen of the United States or is eligible for employment in the United States;
(4) Has not been convicted of a crime involving moral turpitude;
(5) Has not had his or her application for a license to practice as a marriage and family therapist refused in any state of the United States;
(6) Has not had his or her license to practice marriage and family therapy suspended or revoked in any state of the United States; and
(7) Has completed the licensure requirements set out in this article and the rules promulgated hereunder.
(b) The board may issue a license to practice under the provisions of this article to an applicant who does not meet the licensure requirements set out in subdivision (5) or (6) of subsection (a) of this section, but who does meet the licensure requirements established by rule by the board.
(c) An application for a license shall be made on forms prescribed by the board.
(d) An applicant shall pay all the applicable fees.
§30-41-11. Grandfather provision.
Prior to the first day of July, two thousand eleven, the board may issue a license to practice marriage and family therapy under the provisions of this article, to a person who meets the following requirements:
(1) Has provided marriage and family therapy services for at least five years, as approved by the board;
(2)(A) Is a clinical member in good standing of an appropriate professional organization, as approved by the board; or
(B) Is a licensee, in good standing, in West Virginia as a physician, nurse, psychologist, social worker or counselor;
(3) Has satisfied the board that he or she is minimally qualified by education and training to practice marriage and family therapy.
§30-41-12. Marriage and family therapy license from another state; license to practice in this state.

The board may issue a license to practice marriage and family therapy in this state, without requiring an examination, to an applicant from another jurisdiction who:
(1) Is not a resident of this state;
(2) Is of good moral character;
(3) Holds a valid marriage and family therapy license, certificate or other authorization to practice marriage and family therapy in another jurisdiction and meets requirements which are substantially equivalent to the marriage and family therapy licensure requirements set forth in this article;
(4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice marriage and family therapy and has never had a license or other authorization to practice marriage and family therapy revoked;
(5) Has not previously failed an examination for licensure in this state;
(6) Has paid all the applicable fees; and
(7) Has completed such other action as required by the board.
§30-41-13. License renewal requirements.
(a) A licensee shall, annually or biennially upon or before the first day of July, renew his or her license by completing a form prescribed by the board, paying a renewal fee, and submitting any other information required by the board.
(b) At least thirty days prior to the first day of July, either annually or biennially, the secretary-treasurer of the board shall mail to every licensee a notice of renewal, an application for renewal and a statement for the renewal fee.
(c) The board shall charge a fee for each renewal of a license and a late fee for any renewal not paid in a timely manner.
(d) The board shall require as a condition for the renewal of a license that each licensee complete continuing education requirements.
(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.
§30-41-14. Display of license.
(a) The board shall prescribe the form for a license and may issue a duplicate license, upon payment of a fee.
(b) A licensee shall conspicuously display his or her license at his or her principal place of practice.
§30-41-15. Temporary permit.
(a) Upon proper application and payment of the applicable fees, the board may issue a temporary permit, for a period of time not to exceed five years, to an applicant who has completed the educational and examination requirements set out in this article, but who has not completed the experience requirement.
(b) The temporary permit expires when the permittee completes the experience requirement satisfactory to the board or no longer than five years after issuance, whichever is sooner.
(c) The temporary permit may not be renewed nor another temporary permit be issued to the same person.
(d) The temporary permit may be revoked for any reason which would justify the suspension, revocation, limitation or denial of a license.
§30-41-16. Refusal to issue or renew; suspension or revocation;
disciplinary action.

(a) The board may refuse to issue, refuse to renew, suspend, revoke or limit any license, temporary permit or practice privilege and may take disciplinary action against a licensee or permittee who, after notice and a hearing, has been adjudged by the board as unqualified for any of the following reasons:
(1) Fraud, misrepresentation or deceit in obtaining or maintaining a license or permit;
(2) Failure by any licensee or permittee to maintain compliance with the requirements for the issuance or renewal of a license or temporary permit;
(3) Dishonesty, fraud, professional negligence in the performance of marriage and family therapy services, or a willful departure from the accepted standards of practice and professional conduct;
(4) Violation of any provision of this article or any rule promulgated hereunder;
(5) Violation of any professional standard or rule of professional conduct;
(6) Failure to comply with the provisions of this article or any rule promulgated hereunder;
(7) Failure to comply with any order or final decision of the board;
(8) Failure to respond to a request or action of the board;
(9) Conviction of a crime involving moral turpitude;
(10) Conviction of a felony or a crime involving dishonesty or fraud or any similar crime under the laws of the United States, this state or another jurisdiction, if the underlying act or omission involved would have constituted a crime under the laws of this state;
(11) Any conduct adversely affecting the licensee's or permittee's fitness to perform marriage and family therapy; or
(12) Knowingly using any false or deceptive statements in advertising; or
(b) If the board suspends, revokes, refuses to issue, refuses to renew or limits any license, temporary permit or practice privilege, the board shall make and enter an order to that effect and give written notice of the order to the person by certified mail, return receipt requested, which order shall include a statement of the charges setting forth the reasons for the action, and notice of the date, time and place of the hearing. If a license or temporary permit is ordered suspended or revoked, then the licensee or permittee shall, within twenty days after receipt of the order, return the license or temporary permit to the board. The hearing shall be held in accordance with the provisions of this article.
(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, administrative fines and mandatory attendance at continuing education seminars.
§30-41-17. Complaints; investigations; notice.
(a) The board may, on its own motion, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee or permittee. The board shall, upon the verified written complaint of any person, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee or permittee. For the purposes of an investigation, a member of the board or the executive director may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation.
(b) Upon receipt of a written complaint filed against any licensee or permittee, the board shall provide a copy of the complaint to the licensee or permittee.
(c) If the board finds, upon investigation, that probable cause exists that the licensee or permittee has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee or permittee with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.
§30-41-18. Hearing and judicial review.
(a) Any person adversely affected by an order entered by the board is entitled to a hearing. A hearing on a statement of the charges shall be held in accordance with the provisions for hearings set forth in article one of this chapter and the procedures specified by the board by rule.
(b) Either party may elect to have an administrative law judge or hearing examiner conduct the hearing and must notify the other party of the election. The administrative law judge or hearing examiner, at the conclusion of a hearing, shall prepare a proposed order which shall contain findings of fact and conclusions of law. Disciplinary action may be a part of the proposed order, or the board may reserve this obligation for its consideration. The board may accept, reject or modify the decision of the administrative law judge or hearing examiner.
(c) For the purpose of conducting a hearing, a member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum which shall be issued, served and enforced as specified in section one, article five, chapter twenty-nine-a of this code, and all of the said section one provisions dealing with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.
(d) If, after a hearing, the board determines the licensee or permittee has violated any provision of this article, or the board's rules, a formal decision shall be prepared and signed by a member of the board or the executive director of the board, which contains findings of fact, conclusions of law and specifically lists the disciplinary actions imposed.
(e) Any licensee or permittee adversely affected by any decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code and may appeal any ruling resulting from judicial review in accordance with article five, chapter twenty-nine-a of this code.
(f) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.
§30-41-19. Injunctions.
(a) When, by reason of an investigation under this article or otherwise, the board or any other interested person believes that a person has violated or is about to violate any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, the board or any other interested person may apply to any court of competent jurisdiction for an injunction against such person enjoining such person from the violation. Upon a showing that the person has engaged in or is about to engage in any prohibited act or practice, an injunction, restraining order or other appropriate order may be granted by the court without bond.
(b) The board may fine and/or issue cease and desist orders against individuals and/or firms found to be in violation of the provisions of this article or any rule adopted thereunder.
(c) A cause of action by the board may be brought in the circuit court of the county where the board's office is located or in the circuit court of the county where the cause of action took place.
§30-41-20. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.
(b) If a court of law finds that a person knowingly violated any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and no more than one thousand dollars for each violation, imprisoned for up to six months for each violation, or both fined and imprisoned.
§30-41-21. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
§30-41-22. Scope of practice for marriage and family therapist.
(a) The scope of practice for a marriage and family therapist includes, but is not limited to, the rendering of professional marital and family therapy services to individuals, family groups, couples and marital pairs, singly or in groups.
(b) A marriage and family therapist may perform services for which he or she has received training or possesses expertise through experience as authorized by rule or by the board.
§30-41-23. Exemptions from marriage and family therapist license.
(a) The following are exempted from the provisions of this article:
(1) A person teaching, lecturing or engaging in research in marriage and family therapy which does not involve the practice of marriage and family therapy and does not directly affect the welfare of a person;
(2) A person employed by the United States of America, the State of West Virginia or its political subdivisions who is engaged in his or her official duties;
(3) A person acting in official duties as a volunteer or for compensation or other personal gain, in any public or private nonprofit corporations, organizations, associations or charities determined by the board to meet community needs;
(4) A person under qualified supervision in a training institution or facility, or in a supervisory arrangement recognized and approved by the board: Provided, That the person is designated "marriage and family therapy intern", "marriage therapy intern" or "family therapy intern" and do not present themselves as a licensee;
(5) A student studying counseling which is part of the prescribed course of study at an accredited educational institution and are supervised by a licensed professional counselor or by a teacher, instructor or professor of counseling acting within his or her official duties; or
(6) The activities and services of qualified members of other recognized professions, such as, physicians, psychologists, psychoanalysts, social workers, professional counselors, clinical professional counselors, attorneys, nurses, teachers and clergy performing marriage and family therapy consistent with the laws of this state, their training and any code of ethics of their professions so long as such person does not present themselves as a licensed marriage and family therapist as defined by section four of this article. This chapter may not give the board the right to restrict or regulate the lawful practice of any other profession licensed in the State of West Virginia and acting within their scope of practice, except to restrict such professions from unlawfully advertising as a licensed marriage and family therapist when they do not possess such license.
§30-41-24. Regulatory Board Review of the Marriage and Family Therapy Board of Examiners.

The board is subject to a regulatory board review pursuant to the provisions of article ten, chapter four of this code.


NOTE: The purpose of this bill is to regulate the practice of marriage and family therapy by establishing the Marriage and Family Therapy Board.

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