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RULE PROPOSALS
VOLUME 45, ISSUE 5
ISSUE DATE:MARCH 4, 2013
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MARRIAGE AND FAMILY THERAPY EXAMINERS

Proposed New Rules: N.J.A.C. 13:34-9A and 31

Custody/Parenting Time Evaluations and/or Termination of Parental Rights Evaluations

Authorized By: State Board of Marriage and Family Therapy Examiners, Milagros Collazo, Executive Director.

Authority: N.J.S.A. 45:8B-13 and 34 et seq.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2013-039.

Submit comments by May 3, 2013 to:

Milagros Collazo, Executive Director
State Board of Marriage and Family Therapy Examiners
PO Box 45007
124 Halsey Street
Newark, New Jersey 07101

The agency proposal follows:

Summary

The State Board of Marriage and Family Therapy Examiners (the Board) is proposing new rules that establish standards for licensed marriage and family therapists and licensed professional counselors to provide custody/parenting time and termination of parental rights evaluations. The new rules authorizing the provision of these evaluations by licensed professional counselors were drafted in consultation with the Board's Professional Counselor Examiners Committee (the Committee).

Proposed new Subchapters 9A and 31 establish qualifications for marriage and family therapists and professional counselors to perform custody/parenting time and termination of parental rights evaluations, and outline a licensee's responsibilities when performing these evaluations. Proposed new rules N.J.A.C. 13:34-9A.1 and 31.1 set forth the purpose and scope of the respective subchapters. Proposed new rule N.J.A.C. 13:34-31.2 defines "licensee," as used in Subchapter 31, to mean a licensed professional counselor, in order to avoid confusion concerning the applicability of the new rules to licensed associate counselors. As discussed below, the new rules prohibit licensed associate counselors from conducting or participating in custody/parenting time and termination of parental rights evaluations.

Proposed new rules N.J.A.C. 13:34-9A.2 and 31.3 require marriage and family therapists and professional counselors who wish to perform custody/parenting time and termination of parental rights evaluations to obtain education, training, and/or supervised experience in specific subject areas, and to maintain documentation that demonstrates that they have satisfied these requirements. Marriage and family therapists or professional counselors who do not satisfy the education, training, and/or supervised experience requirements of the new rules shall not conduct custody/parenting time or termination of parental rights evaluations. The new rules also provide that when an evaluation involves physical, sexual, or psychological abuse of a spouse or a child, neglect of a child, addictions that impair parenting ability, or medical, physical, or neurological impairment that affects parenting ability, the licensee must have specific training in relevant area(s) or he or she must make a referral of the case to a licensed health care provider, or obtain a consultation with, an expert, to provide an independent assessment on the topic. A licensee must maintain documentation of any referral or consultation.

[page=436] In proposed new rule N.J.A.C. 13:34-9A.2, neither applicants for licensure who hold a temporary permit pursuant to N.J.A.C. 13:34-5 nor interns may not perform any part of an evaluation conducted by a licensed marriage and family therapist or a licensed professional counselor. Proposed new rule N.J.A.C. 13:34-31.3 provides that licensed associate counselors, interns, and students may not perform any part of an evaluation conducted by a licensed marriage and family therapist or a licensed professional counselor.

Proposed new rules N.J.A.C. 13:34-9A.3 and 31.4 prohibit a marriage and family therapist or licensed professional counselor who is currently treating, or has previously treated, a person who is part of a custody/parenting time or termination of parental rights evaluation from assuming the role of an evaluator or parenting coordinator. A licensee acting as an evaluator may assume the role of a treating therapist, provided he or she ceases to act as an evaluator in the matter. A licensee who is a treating therapist may report on a client's mental health status and other treatment issues, but may not make recommendations regarding custody or termination of parental rights. The rules also require this prohibition be reported to any relevant party or court.

Proposed new rules N.J.A.C. 13:34-9A.4 and 31.5 establish requirements for communicating information to the parties involved in custody/parenting time or termination of parental rights evaluations.

Proposed new rules N.J.A.C. 13:34-9A.5 and 31.6 set forth the information that a marriage and family therapist or professional counselor must provide to involved parties concerning the nature of the evaluation being conducted and the terms of their agreement to participate. Licensees must also inform the parties about the purpose of any assessment instruments or interview techniques to be used and about the use of any collected information. Children are to be provided this information as appropriate. Information provided on limits of confidentiality must be as set forth in 42 CFR Part 2, which is herein incorporated by reference.

Proposed new rules N.J.A.C. 13:34-9A.6 and 31.7 impose requirements on licensees for the handling of fees. Prior to commencing a custody/parenting time or termination of parental rights evaluation, a marriage and family therapist or professional counselor must inform the party responsible for paying the fees what the estimated fees will be for all anticipated services. The information must be provided in writing. The licensee must provide documentation of all fees to the responsible party, including itemizing time, charges, and services, as appropriate. The new rules also impose specific requirements on licensees who accept payment of fees by retainer or by a pre-arranged fee schedule.

Proposed new rules N.J.A.C. 13:34-9A.7 and 31.8 establish standards for issued reports. A license's written report must identify the party on whose behalf the evaluation was prepared, must list all individuals who were personally evaluated by the licensee, and must be completed in a timely manner. The rules prohibit a licensee from providing an opinion regarding any individual whom the licensee has not personally evaluated and designate the individuals to whom the licensee must submit the report.

The Board has provided a 60-day comment period for this notice of proposal, therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Board believes that the proposed new rules will have a positive social impact upon the public by ensuring that licensed marriage and family therapists and licensed professional counselors who perform custody/parenting time and termination of parental rights evaluations are qualified to provide these services. The Board also believes that the proposed new rules will have a positive effect upon members of the regulated community by clarifying their obligations and responsibilities when performing these evaluations.

Economic Impact

The proposed new rules may have an economic impact upon licensed marriage and family therapists and licensed professional counselors who wish to perform custody/parenting time and termination of parental rights evaluations. These licensees may incur costs to obtain the education, training, and/or supervised work experience that are a prerequisite for performing the evaluations under the proposed new rules. These costs are established by entities beyond the Board's authority to regulate, such as independent education and training providers, and are difficult to predict. The Board, however, believes that the costs to licensees are outweighed by the benefit to consumers who choose to utilize a licensed marriage and family therapist or licensed professional counselor to conduct the evaluations. The proposed new rules will help ensure that the evaluations will be conducted by qualified professionals consistent with the professional practice standards established in the rules.

Any increased costs of compliance to licensees who choose to perform evaluations may be reflected in the fees charged to clients.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rules are governed by N.J.S.A. 45:8B-13 and are not subject to any Federal requirements or standards. Although the proposed new rules are not subject to any Federal requirements or standards, where appropriate, the Board has voluntarily required licensees to comply with applicable Federal laws and regulations. Specifically, N.J.A.C. 13:34-9A.5 and 31.6 require licensees to provide parties with information concerning the limits of confidentiality, including confidentiality limitations with respect to alcohol and drug abuse patient information imposed pursuant to 42 CFR Part 2.

Jobs Impact

The Board does not anticipate that the proposed new rules will result in an increase or decrease in the number of jobs in the State.

Agriculture Industry Impact

The Board does not anticipate that the proposed new rules will have any impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

Currently, the Board licenses approximately 500 marriage and family therapists and 2,500 professional counselors. If these licensees are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.

The proposed new rules will impose various reporting, recordkeeping, and compliance requirements upon licensed marriage and family therapists and licensed professional counselors who wish to provide custody/parenting time evaluations and/or termination of parental rights evaluations. These requirements are discussed in the Summary above. No additional professional services will be needed to comply with the proposed new rules. The costs of compliance with the proposed new rules are discussed in the Economic Impact above. The Board believes that the proposed new rules should be uniformly applied to all licensed marriage and family therapists and licensed professional counselors in order to ensure the health, safety, and welfare of the general public in the provision of custody/parenting time and/or termination of parental rights evaluations by these licensees. Therefore, no differing compliance requirements for any licensees are provided based upon the size of the business.

Housing Affordability Impact Analysis

The proposed new rules will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed new rules concern the provision of custody/parenting time and termination of parental rights evaluations by licensed marriage and family therapists and licensed professional counselors.

Smart Growth Development Impact Analysis

The proposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed new rules concern the provision custody/parenting time and termination of parental rights evaluations by licensed marriage and family therapists and licensed professional counselors.

Full text of the proposed new rules follows:

[page=437] SUBCHAPTER 9A. CUSTODY/PARENTING TIME EVALUATIONS AND/OR TERMINATION OF PARENTAL RIGHTS EVALUATIONS

13:34-9A.1 Purpose and scope

The rules in this subchapter set forth the minimum requirements for licensed marriage and family therapists who perform custody/parenting time evaluations and/or termination of parental rights evaluations.

13:34-9A.2 Qualifications

(a) A licensee shall be qualified to perform custody/parenting time evaluations and/or termination of parental rights evaluations through education, training, and/or supervised experience in all of the following categories:

1. Child growth and development;

2. Parent-child bonding;

3. Scope of parenting;

4. Adult development and psychopathology;

5. Family functioning;

6. Child and family development;

7. Child and family psychopathology;

8. The impact of divorce or family dissolution on children; and

9. The impact of age, gender, race, ethnicity, national origin, language, culture, religion, sexual orientation/identity, disability, and socioeconomic status on custody/parenting time evaluations.

(b) When the topics in (b)1 through 5 below are involved, a licensee shall have education, training, and/or supervised experience in the specific topic(s) or the licensee shall refer the case to a licensed health care provider, or obtain a consultation with an expert who has the relevant education, training, and/or experience:

1. Physical, sexual, or psychological abuse of spouse or children;

2. Neglect of children;

3. Substance abuse or other addictions that impair the ability to parent;

4. Medical, physical, and/or neurological impairment that affects the ability to parent; or

5. Other areas beyond the licensee's expertise that are relevant to the custody/parenting time evaluation.

(c) Applicants for licensure who hold a temporary permit pursuant to N.J.A.C. 13:34-5 or interns shall not perform any part of custody/parenting time evaluations and/or termination of parental rights evaluations.

(d) A licensee shall maintain documentation that demonstrates the licensee's education, training, or supervised experience in the topics from (a) and (b) above.

(e) A licensee shall maintain documentation of the referral or the consultation, if a licensee refers a case to a licensed health care provider, or consults with an expert, pursuant to (b) above.

13:34-9A.3 Dual relationships

(a) If a licensee is, or has been, a treating therapist for any person who is part of the custody/parenting time evaluation and/or termination of parental rights evaluation, the treating therapist shall not assume either the role of an evaluator in the custody/parenting time evaluation and/or termination of parental rights evaluation, or the role of a parenting coordinator and shall advise any party or court of this prohibition.

(b) A licensee who is a treating therapist may report on a client's mental health status and treatment issues but shall not make any recommendations regarding custody or termination of parental rights.

(c) After the evaluation process is completed, a licensee, whose initial involvement with a case has been as an evaluator, may agree to function subsequently as a treating therapist or parent coordinator, but shall be precluded from functioning as an evaluator in the case.

13:34-9A.4 Communications

(a) If a licensee is court-appointed, the licensee shall communicate any information only to the court and both parties, or their attorneys, simultaneously, either in writing or through a conference call.

(b) If a licensee is selected by both parties without a court appointment, the licensee shall communicate any information only to both parties, or their attorneys, simultaneously, either in writing or through a conference call.

(c) If a licensee is selected by only one party, the licensee shall communicate any information only to that party, or the party's attorney.

13:34-9A.5 Required disclosures

(a) A licensee shall provide information, in writing, to the parties to assist them in understanding the nature of the custody/parenting time evaluation and/or termination of parental rights evaluation and the terms of their agreement to participate. This information shall include the following:

1. Purpose, procedures, and methods;

2. Fees;

3. Responsibility of parties for payment of the fees and whether payment will be required prior to the delivery of any report;

4. Limits of confidentiality, including the limitations set forth in 42 CFR Part 2, which is incorporated herein by reference;

5. Special policies pertaining to issues, such as canceled and/or missed appointments; and

6. Limitation on communications as set forth in N.J.A.C. 13:34-9A.4.

(b) A licensee shall inform the parties about the purpose of any assessment instruments, interview techniques, and the use of any information collected. The licensee shall provide this information, as appropriate, to children, to the extent that they are able to understand.

13:34-9A.6 Fees

(a) Before commencing the custody/parenting time evaluation and/or termination of parental rights evaluation, a licensee shall inform the party or parties responsible for paying the fees, in writing, of the estimated fees for all anticipated services and any additional fees, should the licensee be required, requested, or mandated to perform additional services.

(b) A licensee shall provide the party or parties responsible for paying the fees with complete documentation of all fees, itemizing time, charges, and services.

(c) A licensee may accept payment of fees by retainer or by a pre-arranged fee schedule.

1. If a partial retainer is accepted, a licensee shall inform the court, attorneys, and/or parties of the schedule for payment of the remainder and of any contingent relationship between complete payment and final delivery of services. A licensee shall inform the court, attorneys, and/or parties that payment in excess of the reasonable estimate is expected if delivery of services unforeseeably exceeds that anticipated. A licensee shall inform the court, attorneys, and/or parties that unused fees will be refunded as soon as possible upon completion of the professional services.

2. If payment by a fee schedule is accepted, a licensee shall provide a complete explanation of the expected per-visit payment or other scheduled costs.

(d) A licensee may require payment for a report prior to its delivery provided that prior notification has been given to the parties under (a) above.

13:34-9A.7 Reports and recommendations

(a) A licensee's written report shall identify the party or parties on whose behalf the evaluation was prepared and list all individual(s) personally evaluated.

(b) A licensee shall complete written reports in a timely manner. Delays of more than two months from when all data has been collected relevant to the custody/parenting time evaluation and/or termination of parental rights evaluation are considered excessive. In the event of extenuating circumstances, such as an inability to collect final documents from collateral contacts, the licensee shall provide the reasons for the delay, in writing, to the party to whom the report is due in accordance with (d), (e), and (f) below.

(c) A licensee shall not provide any opinion regarding any individual who has not been personally evaluated by the licensee. A licensee may report what an evaluated individual has stated or address theoretical issues or hypothetical questions, provided the limited basis of the information is explained.

(d) A licensee that is court-appointed shall submit the report only to the court and to both parties, or their attorneys, unless otherwise specified in a court order.

[page=438] (e) A licensee selected by both parties shall submit the report only to both parties, or their attorneys, unless otherwise specified in a consent order.

(f) A licensee selected by only one party shall submit the report only to that party, or that party's attorney, unless the party notifies the licensee in writing that the party does not want to receive the report.

SUBCHAPTER 31. PROFESSIONAL COUNSELORS: CUSTODY/PARENTING TIME EVALUATIONS AND/OR TERMINATION OF PARENTAL RIGHTS EVALUATIONS

13:34-31.1 Purpose and scope

The rules in this subchapter set forth the minimum requirements for licensed professional counselors who perform custody/parenting time evaluations and/or termination of parental rights evaluations.

13:34-31.2 Definitions

As used in this subchapter, "licensee" means a licensed professional counselor.

13:34-31.3 Qualifications

(a) A licensee shall be qualified to perform custody/parenting time evaluations and/or termination of parental rights evaluations through education, training, and/or supervised experience in all of the following categories:

1. Child growth and development;

2. Parent-child bonding;

3. Scope of parenting;

4. Adult development and psychopathology;

5. Family functioning;

6. Child and family development;

7. Child and family psychopathology;

8. The impact of divorce or family dissolution on children; and

9. The impact of age, gender, race, ethnicity, national origin, language, culture, religion, sexual orientation/identity, disability, and socioeconomic status on custody/parenting time evaluations.

(b) When the topics in (b)1 through 5 below are involved, a licensee shall have education, training, and/or supervised experience in the specific topic(s) or the licensee shall refer the case to a licensed health care provider, or obtain a consultation with an expert who has the relevant education, training, and/or experience:

1. Physical, sexual, or psychological abuse of spouse or children;

2. Neglect of children;

3. Substance abuse or other addictions that impair the ability to parent;

4. Medical, physical, or neurological impairment that affects the ability to parent; or

5. Other areas beyond the licensee's expertise that are relevant to the custody/parenting time evaluation.

(c) Licensed associate counselors, interns, and students shall not perform any part of custody/parenting time evaluations and/or termination of parental rights evaluations.

(d) A licensee shall maintain documentation that demonstrates the licensee's education, training or supervised experience in the topics from (a) and (b) above.

(e) A licensee shall maintain documentation of the referral or the consultation, if the licensee refers a case to a licensed health care provider, or consults with an expert, pursuant to (b) above.

13:34-31.4 Dual relationships

(a) If a licensee is, or has been, a treating therapist for any person who is part of the custody/parenting time evaluation and/or termination of parental rights evaluation, the treating therapist shall not assume either the role of an evaluator in the custody/parenting time evaluation and/or termination of parental rights evaluation, or the role of a parenting coordinator, and shall advise any party or court of this prohibition.

(b) A licensee who is a treating therapist may report on a client's mental health status and treatment issues but shall not make any recommendations regarding custody or termination of parental rights.

(c) After the evaluation process is completed, a licensee, whose initial involvement with a case has been as an evaluator, may agree to function subsequently as a treating therapist or parent coordinator, but shall be precluded from functioning as an evaluator in the case.

13:34-31.5 Communications

(a) If a licensee is court-appointed, the licensee shall communicate any information only to the court and both parties, or their attorneys, simultaneously, either in writing or through a conference call.

(b) If a licensee is selected by both parties without a court appointment, the licensee shall communicate any information only to both parties, or their attorneys, simultaneously, either in writing or through a conference call.

(c) If a licensee is selected by only one party, the licensee shall communicate any information only to that party, or the party's attorney.

13:34-31.6 Required disclosures

(a) A licensee shall provide information, in writing, to the parties to assist them in understanding the nature of the custody/parenting time evaluation and/or termination of parental rights evaluation and the terms of their agreement to participate. This information shall include the following:

1. Purpose, procedures, and methods;

2. Fees;

3. Responsibility of parties for payment of the fees and whether payment will be required prior to the delivery of any report;

4. Limits of confidentiality, including the limitations set forth in 42 CFR Part 2, which is incorporated herein by reference;

5. Special policies pertaining to issues, such as canceled and/or missed appointments; and

6. Limitation on communications as set forth in N.J.A.C. 13:34-31.5.

(b) A licensee shall inform the parties about the purpose of any assessment instruments, interview techniques, and the use of any information collected. The licensee shall provide this information, as appropriate, to children, to the extent that they are able to understand.

13:34-31.7 Fees

(a) Before commencing the custody/parenting time evaluation and/or termination of parental rights evaluation, a licensee shall inform the party or parties responsible for paying the fees, in writing, of the estimated fees for all anticipated services and any additional fees, should the licensee be required, requested, or mandated to perform additional services.

(b) A licensee shall provide the party or parties responsible for paying the fees with complete documentation of all fees, itemizing time, charges, and services.

(c) A licensee may accept payment of fees by retainer or by a pre-arranged fee schedule.

1. If a partial retainer is accepted, a licensee shall inform the court, attorneys, and/or parties of the schedule for payment of the remainder and of any contingent relationship between complete payment and final delivery of services. A licensee shall inform the court, attorneys, and/or parties that payment in excess of the reasonable estimate is expected if delivery of services unforeseeably exceeds that anticipated. A licensee shall inform the court, attorneys, and/or parties that unused fees will be refunded as soon as possible upon completion of the professional services.

2. If payment by a fee schedule is accepted, a licensee shall provide a complete explanation of the expected per-visit payment or other scheduled costs.

(d) A licensee may require payment for a report prior to its delivery provided that prior notification has been given to the parties under (a) above.

13:34-31.8 Reports and recommendations

(a) A licensee's written report shall identify the party or parties on whose behalf the evaluation was prepared and list all individual(s) personally evaluated.

(b) A licensee shall complete written reports in a timely manner. Delays of more than two months from when all data has been collected relevant to the custody/parenting time evaluation and/or termination of parental rights evaluation are considered excessive. In the event of extenuating circumstances, such as an inability to collect final documents from collateral contacts, the licensee shall provide the reasons for the [page=439] delay, in writing, to the party to whom the report is due in accordance with (d), (e), and (f) below.

(c) A licensee shall not provide any opinion regarding any individual who has not been personally evaluated by the licensee. A licensee may report what an evaluated individual has stated or address theoretical issues or hypothetical questions, provided the limited basis of the information is explained.

(d) A licensee who is court-appointed shall submit the report only to the court and to both parties, or their attorneys, unless otherwise specified in a court order.

(e) A licensee who is selected by both parties shall submit the report only to both parties, or their attorneys, unless otherwise specified in a consent order.

(f) A licensee who is selected by only one party shall submit the report only to that party, or that party's attorney unless the party notifies the licensee in writing that the party does not want to receive the report.


 

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