30 Miss. Code. R. 1901-1.3

Current through December 10, 2024

Rule 30-1901-1.3 - DUTIES AND POWERS OF THE BOARD

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.

30 Miss. Code. R. 1901-1.3

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).

Amended 2/10/2020

Amended 11/17/2022