A. General
The Board shall, upon referral from a Discipline Specific
Committee, promulgate, administer and enforce the provisions of the Act, which
shall from time to time include the adoption of such rules, regulations, and
amendments as it may deem necessary to enable it to perform its duties. All
rules and regulations shall be adopted in accordance with the Mississippi
Administrative Procedures Law:
1.
Rules may be revised periodically by the Board and all applicants and licensees
are subject to the revised rules once adopted by the Board.
2. Applications received during a particular
period of rules will be subject to and processed under those rules.
3. Disciplinary actions taken by the Board
may be reported to professional associations and other entities when deemed
necessary.
The Board will adhere to all State and Federal laws and
regulations including, but not limited to, child support and other areas of
enforcement.
B.
Personnel
The Board shall have the power to employ, subject to the
approval of the Mississippi State Personnel Board, an executive director, and
such attorneys, experts, and other employees as it may from time to time find
necessary for the proper performance of its duties and for which the necessary
funds are available.
C.
Licensure
Upon recommendation of the Discipline Specific Committee, the
Board shall:
1. Examine and pass on
the qualifications of all applicants under the Act, initial or renewal and,
issue a license to each successful applicant or renewal applicant.
2. Require each applicant for licensure
(first time applicant in any licensure category) to complete, through the
appropriate governmental authority or authorities as designated by the Board, a
criminal history record information check. The Board shall be authorized to
charge and collect from the applicant, in addition to all other applicable fees
and costs, such amount as may be incurred by the Board in requesting and
obtaining the criminal history records information on the applicant.
3. Obtain, through the appropriate
governmental authority or authorities, a criminal history record information
check and a check of the Mississippi Sex Offender Registry for each person
applying for licensure. The board shall be authorized to charge and collect
from the applicant or licensee, in addition to all other applicable fees and
costs, such amount as may be incurred by the Board in requesting and obtaining
the information required in this paragraph for the applicant or
licensee.
4. Suspend and revoke
licenses and impose penalties and sanctions upon licensees as prescribed by law
and by regulation set forth specifically by each discipline, either social work
or marriage and family therapy, as appropriate.
5. Approve all examinations for licensure
under the Act.
6. Have other such
powers as may be required to carry out licensure requirements prescribed by law
and by regulation.
7. Conduct
random audits to determine the accuracy of initial and renewal applications,
continuing education reports and any other materials submitted to the Board by
or on behalf of applicants or licensees.
D. Method of Operation
The Board follows the procedures required by
Mississippi Code of 1972 (as amended) §
25-43-2.104.
E. Oral Proceedings on Proposed Rules
1.
Scope. This rule applies to
all oral proceedings held for the purpose of providing the public with an
opportunity to make oral presentations on proposed new rules and amendments to
rules before the Board of Examiners for Social Workers and Marriage and Family
Therapists pursuant to §
25-43-3.104.
2.
When Oral Proceedings will be
Scheduled on Proposed Rules. The Board will conduct an oral proceeding
on a proposed rule or amendment if requested by a political subdivision, an
agency or ten (10) persons in writing within twenty (20) days after the filing
of the notice of the proposed rule.
3.
Request Format. Each request
must be printed or typewritten, or must be in legible handwriting. Each request
must be submitted on standard business letter-size paper (8-1/2 inches by 11
inches). Requests may be in the form of a letter addressed to the Board and
signed by the requestor(s).
4.
Notification of Oral Proceeding. The date, time and place of all
oral proceedings shall be filed with the Secretary of State's office and mailed
to each requestor. The oral proceedings will be scheduled no earlier than
twenty (20) calendar days from the filing of this information with the
Secretary of State.
5.
Presiding Officer. The Commissioner or his designee, who is
familiar with the substance of the proposed rule, shall preside at the oral
proceeding on a proposed rule.
6.
Public Presentations and Participation.
a. At an oral proceeding on a proposed rule,
persons may make oral statements and make documentary and physical submissions,
which may include data, views, comments or arguments concerning the proposed
rule.
b. Persons wishing to make
oral presentations at such a proceeding shall notify the Board at least one
business day prior to the proceeding and indicate the general subject of their
presentations. The presiding officer in his or her discretion may allow
individuals to participate that have not previously contacted the
Board.
c. At the proceeding, those
who participate shall indicate their names and addresses, identify any persons
or organizations they may represent, and provide any other information relating
to their participation deemed appropriate by the presiding officer.
d. The presiding officer may place time
limitations on individual oral presentations when necessary to assure the
orderly and expeditious conduct of the oral proceeding. To encourage joint oral
presentations and to avoid repetition, additional time may be provided for
persons whose presentations represent the views of other individuals as well as
their own views.
e. Persons making
oral presentations are encouraged to avoid restating matters that have already
been submitted in writing.
f. There
shall be no interruption of a participant who has been given the floor by the
presiding officer, except that the presiding officer may in his or her
discretion interrupt or end the partisan's time where the orderly conduct of
the proceeding so requires.
7.
Conduct of Oral Proceeding.
a. Presiding officer. The presiding officer
shall have authority to conduct the proceeding in his or her discretion for the
orderly conduct of the proceeding. The presiding officer shall (i) call
proceeding to order; (ii) give a brief synopsis of the proposed rule, a
statement of the statutory authority for the proposed rule, and the reasons
provided by the Board for the proposed rule; (iii) call on those individuals
who have contacted the Board about speaking on or against the proposed rule;
(iiv) allow for rebuttal statements following all participants' comments; (v)
adjourn the proceeding.
b.
Questions. The presiding officer, where time permits and to facilitate the
exchange of information, may open the floor to questions or general discussion.
The presiding officer may question participants and permit the questioning of
participants by other participants about any matter relating to that
rule-making proceeding, including any prior written submissions made by those
participants in that proceeding; but no participant shall be required to answer
any question.
c. Physical and
Documentary Submissions. Submissions presented by participants in an oral
proceeding shall be submitted to the presiding officer. Such submissions become
the property of the Board and are subject to the Board's public records request
procedure.
d. Recording. The Board
may record oral proceedings by stenographic or electronic means.
F. Declaratory Opinions
1.
Scope
These rules set forth the Board of Examiners for Social
Workers and Marriage and Family Therapists, hereinafter "Board," rules
governing the form and content of requests for declaratory opinions, and the
Board's procedures regarding the requests, as required by Mississippi Code
§
25-43-2.103. These rules are
intended to supplement and be read in conjunction with the provisions of the
Mississippi Administrative Procedures Law, which may contain additional
information regarding the issuance of declaratory opinions. In the event of any
conflict between these rules and the Mississippi Administrative Procedures Law,
the latter shall govern.
2.
Persons Who May Request Declaratory
Opinions
Any person with a substantial interest in the subject matter
may request a declaratory opinion from the Board by following the specified
procedures. "Substantial interest in the subject matter" means: an individual,
business, group or other entity that is directly affected by the Board's
administration of the laws within its primary jurisdiction. "Primary
jurisdiction of the agency" means the agency has a constitutional or statutory
grant of authority in the subject matter at issue.
3.
Subjects Which May Be
Addressed In Declaratory Opinions
The Board will issue declaratory opinions regarding the
applicability to specified facts of:
(1) a statute administered or enforceable by
the Board or
(2) a rule promulgated
by the Board. The Board will not issue a declaratory opinion regarding a
statute or rule which is outside the primary jurisdiction of the
agency.
4.
Circumstances in which Declaratory Opinions Will Not Be
Issued
The Board may, for good cause, refuse to issue a declaratory
opinion. The circumstances in which declaratory opinions will not be issued
include, but are not necessarily limited to:
a. A lack of clarity concerning the question
presented;
b. There is pending or
anticipated litigation, administrative action, or other adjudication which may
either answer the question presented by the request or otherwise make an answer
unnecessary;
c. The statute or rule
on which a declaratory opinion is sought is clear and not in need of
interpretation to answer the question presented by the request;
d. The facts presented in the request are not
sufficient to answer the question presented;
e. The request fails to contain information
required by these rules or the requestor failed to follow the procedure set
forth in these rules;
f. The
request seeks to resolve issues which have become moot, or are abstract or
hypothetical such that the requestor is not substantially affected by the
statute or rule on which a declaratory opinion is sought;
g. No controversy exists concerning the issue
as the requestor is not faced with existing facts or those certain to arise
which raise a question concerning the application of the statute or
rule;
h. The question presented by
the request concerns the legal validity of a statute or rule;
i. The request is not based upon facts
calculated to aid in the planning of future conduct but is, instead, based on
past conduct in an effort to establish the effect of that conduct;
j. No clear answer is determinable;
k. The question presented by the request
involves the application of a criminal statute or a set of facts which may
constitute a crime;
l. The answer
to the question presented would require the disclosure of information which is
privileged or otherwise protected by law from disclosure;
m. The question is currently the subject of
an Attorney General's opinion request or has been answered by an Attorney
General's opinion;
n. A similar
request is pending before this agency or any other agency or a proceeding is
pending on the same subject matter before any agency, administrative or
judicial tribunal, or where such an opinion would constitute the unauthorized
practice of law.
o. Where issuance
of a declaratory opinion may adversely affect the interests of the State, the
Board or any of their officers or employees in any litigation which is pending
or may reasonably be expected to arise;
p. The question involves eligibility for a
license, permit, certificate or other approval by the Board or some other
agency, and there is a statutory or regulatory application process by which
eligibility for said license, permit, certificate or other approval would be
determined.
5.
Written Request Required
Each request must be printed or typewritten, or must be in
legible handwriting. Each request must be submitted on standard business
letter-size paper (8-1/2 inches by 11 inches). Requests may be in the form of a
letter addressed to the Board.
6.
Where to Send
Requests
All requests must be mailed, delivered or transmitted via
facsimile to the Board. The request shall clearly state that it is a request
for a declaratory opinion. No oral, telephone requests or email requests will
be accepted for official opinions.
7.
Name, Address and
Signature of Requestor
Each request must include the full name, telephone number,
and mailing address of the requestor. All requests shall be signed by the
person filing the request, who shall attest that the request complies with the
requirements set forth in these rules, including but not limited to a full,
complete, and accurate statement of relevant facts and that there are no
related proceedings pending before any other administrative or judicial
tribunal.
8.
Question Presented
Each request shall contain the following:
a. A clear and concise statement of all facts
on which the opinion is requested;
b. A citation to the statute or rule at
issue;
c. The question(s) sought to
be answered in the opinion, stated clearly;
d. A suggested proposed opinion from the
requestor, stating the answers desired by petitioner and a summary of the
reasons in support of those answers;
e. The identity of all other known persons
involved in or impacted by the described factual situation, including their
relationship to the facts, name, mailing address and telephone number;
and
f. A statement to show that the
person seeking the opinion has a substantial interest in the subject
matter.
9.
Time for Board's Response. Within
forty-five (45) calendar days after the receipt of a request for a declaratory
opinion which complies with the requirements of these rules, the Board shall,
in writing:
a. Issue a declaratory opinion
regarding the specified statute or rule as applied to the specified
circumstances;
b. Decline to issue
a declaratory opinion, stating the reasons for its action; or
c. Agree to issue a declaratory opinion by a
specified time but not later than ninety (90) calendar days after receipt of
the written request;
The forty-five (45) calendar day period shall begin running
on the first State of Mississippi business day on or after the request is
received by the Board, whichever is sooner.
10.
Opinion Not Final for
Sixty Days. A declaratory opinion shall not become final
until the expiration of sixty (60) calendar days after the issuance of the
opinion. Prior to the expiration of sixty (60) calendar days, the Board may, in
its discretion, withdraw or amend the declaratory opinion for any reason which
is not arbitrary or capricious. Reasons for withdrawing or amending an opinion
include, but are not limited to, a determination that the request failed to
meet the requirements of these rules or that the opinion issued contains a
legal or factual error.
11.
Notice by Board to third parties. The
Board may give notice to any person, agency or entity that a declaratory
opinion has been requested and may receive and consider data, facts, arguments
and opinions from other persons, agencies or other entities other than the
requestor.
12.
Public Availability of Requests and Declaratory
Opinions. Declaratory opinions and requests for declaratory
opinions shall be available for public inspection and copying in accordance
with the Public Records Act and the Board's public records request procedure.
All declaratory opinions and requests shall be indexed by name and subject.
Declaratory opinions and requests which contain information which is
confidential or exempt from disclosure under the Mississippi Public Records Act
or other laws shall be exempt from this requirement and shall remain
confidential.
13.
Effect of a Declaratory Opinion. The
Board will not pursue any civil, criminal or administrative action against a
person who is issued a declaratory opinion from the Board and who, in good
faith, follows the direction of the opinion and acts in accordance therewith
unless a court of competent jurisdiction holds that the opinion is manifestly
wrong. Any declaratory opinion rendered by the Board shall be binding only on
the Board and the person to whom the opinion is issued. No declaratory opinion
will be used as precedent for any other transaction or occurrence beyond that
set forth by the requesting person.
G. Public Records Request
All public requests to inspect, copy or mechanically
reproduce or obtain are production of any public record of the Mississippi
Board of Examiners for Social Workers and Marriage and Family Therapists
(Board) must be submitted in writing to: the Executive Director, Mississippi
Board of Examiners for Social Workers and Marriage and Family Therapists, P.O.
Box 4508, Jackson, Mississippi 39296-4508. This rule is not intended to apply
to any record or other document, which is exempted or privileged under the
provisions of the Mississippi Public Records Act.
The written request must be typed or clearly hand printed on
a letter size piece of paper and must specify in detail the public record(s)
sought. The request must include a description of the type of record, dates,
title of a publication, and other information which may aid in locating the
record. No verbal or telephone requests for records will be accepted.
Under the Public Records Act, documents that are exempt from
public access to records include, but are not limited to, personnel records,
appraisal records, attorney communications and work products of attorneys,
academic records, third party confidential commercial or financial information,
licensure applications and examination records, and individual tax
records.
Within seven (7) working days of the Board's receipt of a
public records request, the Board shall review same and determine whether the
records sought are exempt or privileged by law and shall either:
i) produce the records;
ii) allow access to records;
iii) if the request is unclear or does not
sufficiently identify the record sought, request clarification from the
requestor; or
iv) deny access to or
production of the records sought. If the Board is unable to produce a public
record by the seventh working day after the request is received, the Board will
provide the requester with a written explanation stating that the record
requested will be produced and specify the reason why the records cannot be
produced within the seven-day period. Unless there is mutual agreement between
the Board and the request, the date for production of the requested record will
be no later than fourteen (14) working days from the Board's receipt of the
original public record request.
When a request for information is made for documents
furnished to the Board by a third party, the Board will give notice of the
request to the third party as required by the Public Records Act. Such third
party information will not be released without the prior written consent of the
third party authorizing the release of the information and/or until the third
party has been provided with notice of the public records request and an
opportunity to seek a court order protecting such records from public review.
No third party information will be released by the Board if the third party
obtains a court order prohibiting the disclosure of such information.
When possible, nonexempt material will be separated from
exempt material and only the exempt material will be withheld from disclosure
by the Board.
If the Board determines that the records requested are exempt
or privileged under the law, the request shall be denied and the person making
the request will be provided a statement of the specific reasons for the
denial. Such denials shall be kept on file for inspection by any person for
three (3) years from the date such denials are made.
Public records of the Board are available for inspection and
copying or reproduction during regular office hours (8:00 a.m. through 5:00
p.m., Monday through Friday) by appointment. All inspection, copying or
mechanical reproduction of records must be done in the office of the Board. The
time, place and manner of inspection and reproduction or copying will not be
allowed to interfere with the official duties of the Board. The Board will not
allow its records to be taken from the Board office.
The request must pay the Board in advance all reasonably
estimated costs of searching, obtaining from storage, reviewing, shipping
and/or duplicating the requested records. Such payment must be sufficient to
cover the actual costs to the Board of complying with the public records
request. There shall be a charge of $1.00 per page for each copy. Copies
printed on both sides (front and back) shall be considered as two (2) pages for
copy charge purposes. Mailing cost shall be calculated at the applicable rate
for each such mailing. If the request involves notice being given to a third
party, the cost of mailing such notice to the third party shall be charged to
the request. Cost of obtaining records from any state storage facilities and
the search for the records shall be charged to the request. If the actual cost
of a public records request exceeds the estimated cost provided to the request,
the request will be required to pay the Board the difference between the
amounts paid in advance by the request and the actual cost of supplying the
record to the request.
Payment by the public records request must be made by money
order or certified check.
The Board has also established a schedule of standard fees
for frequently requested documents and information, directory or labels of
licensees, and electronically accessible data. The schedule of standard
documents and fees is set forth in Rule 4.3 Fees and
Costs.
Miss. Code
Ann. §§
73-53-8(11),
73-53-11,
73-54-11,
73-54-13 and
73-54-17 (Supp.2011); Miss. Code
Ann. §§
25-43-2.103,
25-43-2.104 and
25-43-3.104 (Rev. 2010); Miss.
Code Ann. 25-61-1 through
25-61-12 (Rev.
2010).
