Senate Bill No. 205
(By Senator McKenzie)
____________
[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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