                                                                              ACCEPTED
                                                                         03-13-00077-CV
                                                                                 4288823
                                                                THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                    2/26/2015 4:38:03 AM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                      No. 03-13-00077-CV

                   IN THE COURT OF APPEALS              RECEIVED IN
                                                   3rd COURT OF APPEALS
                FOR THE THIRD JUDICIAL DISTRICT        AUSTIN, TEXAS
                         AUSTIN, TEXAS             2/26/2015 4:38:03 AM
                                                     JEFFREY D. KYLE
                                                           Clerk

  TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY
  THERAPISTS; CHARLES HORTON IN HIS CAPACITY AS EXECUTIVE
   DIRECTOR; SANDRA DESOBE IN HER CAPACITY AS PRESIDING
OFFICER; TEXAS ASSOCIATION FOR MARRIAGE AND FAMILY THERAPY,
                                  Appellants/Cross-Appellees,
                             v.
                 TEXAS MEDICAL ASSOCIATION,
                                    Appellee/Cross-Appellant.


            On Appeal from the 53rd Judicial District
                    Travis County Texas


                      AMICUS BRIEF OF
                 THE ASSOCIATION OF MARITAL
           AND FAMILY THERAPY REGULATORY BOARDS



STEVEN T. PELUSO
THE LAW OFFICE OF
 STEVEN T. PELUSO, ESQ.

The St. James Building
1133 Broadway, Suite 304
New York, New York 10010
Tel.: 646.448.4319
steven.peluso@spelusolawoffice.com
                        TABLE OF CONTENTS

Table of Contents                                           ii

Index of Authorities                                        iv

Statement of Interest                                       1

Statement of Facts                                          3

Summary of the Arguments                                    4

Arguments                                                   7

  A. Licensed Marriage and Family Therapists are fully qualified
     to perform diagnostic assessments as part of their
     therapeutic role in the therapeutic settings in which they
     practice.                                                7

  B. Licensed Marriage and Family Therapists are specifically
     trained to perform diagnostic assessments as part of their
     therapeutic role in the therapeutic settings in which they
     practice.                                                9

  C. Licensed Marriage and Family Therapists are specifically
     tested on their competency to perform diagnostic
     assessments as part of their therapeutic role in the
     therapeutic settings in which they practice.          14

  D. Diagnosis standing alone does not meet the statutory
     definition of practicing medicine under the Texas Medical
     Practice Act.                                          16

  E. There is no lawful mechanism by which a Licensed Marriage
     and Family Therapist may receive a diagnosis from a
     physician.                                          19




                                ii
  F. The Texas legislature has specifically set forth in the
     Medical Practice Act those instances in which a physician
     must supervise a non-physician practitioner when
     performing a medical act.                               20

  G. The structure of the Occupations Code supports that
     Marriage and Family Therapy is not the practice of medicine
     and therefore a diagnostic assessment is not practicing
     medicine.                                               22

  H. Holding that a diagnostic assessment is practicing medicine
     violates the intent of the Code Construction Act.      24

  I. Dr. Priscilla Ray the Texas Medical Association’s expert
     should have been disqualified.                          25

Conclusion                                                  27

Certificates of Compliance                                  29

Certificate of Service                                      30

Appendix A                                                  31

Appendix B                                                  36

Appendix C                                                  38




                                iii
                     INDEX OF AUTHORITIES

STATUTES

Title 3 of the Occupations Code                                 23

TEX. OCC. CODE § 1.001                                          22

TEX. OCC. CODE § 1.001(b)                                       22

TEX. OCC. CODE § 151.2(a)(13)                               16, 17

TEX. OCC. CODE § 157.001 et. seq.                            20,21

TEX. OCC. CODE § 502.002(4)                                     18

TEX. GOV. CODE § 311.021                                        24

TEX. GOV. CODE § 311.021(5)                                     25

RULES

22 TEX. ADMIN CODE §801.2                                       12

22 TEX. ADMIN CODE §801.42                                     8, 9

22 TEX. ADMIN CODE §801.42(13)           3, 4, 5, 6, 7, 8, 9, 25, 27

22 TEX. ADMIN CODE §801.112                                  11,12

22 TEX. ADMIN CODE §801.113                                      11

22 TEX. ADMIN CODE §801.114                                      13




                                    iv
                     STATEMENT OF INTEREST

The Association of Marital and Family Therapy Regulatory

Boards (the “AMFTRB”) is a nonprofit organization whose

members are statutorily constituted regulatory boards, including

administrative agencies, legally responsible for the regulation of

Marital and Family Therapists.1 It is organized to: facilitate

communication among its member boards concerning the

regulation of Marital and Family Therapists; to sponsor

collaboration among the member boards in developing compatible

standards and Family Therapy services to other Marital and

Family Therapy organizations, to legislative, judicial, regulatory,

and executive governmental bodies, and to other groups or

associations whose areas of interest may coincide with those of its

membership; to aid its member boards in fulfilling statutory,

professional, public, and ethical obligations; and to engage in and

encourage research on matters related to the legal regulation of

Marital and Family Therapists. AMFTRB’s membership includes

1
 In Texas the term Licensed Marriage and Family Therapist is
used to describe a licensed practitioner. When relating specifically
to practitioners in the state of Texas, the Texas convention will be
used.
the regulatory agencies of all fifty-(50) states, the District of

Columbia, and the Territory of Guam. The Texas State Board of

Examiners of Marriage and Family Therapists (the “Texas MFT

Board”) is a member in good standing of the AMFTRB

      The AMFTRB develops, sponsors, and administers National

Marital and Family Therapy Examination (the “MFT

Examination”). Currently, fifty-one (51) AMFTRB member

jurisdictions use the MFT Examination as part of the licensure

process for Marital and Family Therapists. The Texas MFT Board

utilizes the MFT Examination to test candidates for licensure as

Licensed Marriage and Family Therapists in the State of Texas.

      Given the above set forth, AMFTRB respectively submits

that it is an interested party to this litigation, and furthermore,

requests that the Court consider this Amicus Brief in its

deliberations. Attached as Appendix A, and incorporated herein,

is the affidavit of the Executive Director of the AMFTRB Lois Paff

Bergen, Ph.D. that was executed in support of this Amicus Brief.




                                    2
TO THE HONORABLE THIRD COURT OF APPEALS

           Amicus, the Association of Marital and Family Therapy

Regulatory Boards, respectfully urges that the Court grant the

Appellants’ motion for en banc reconsideration and reverse the

panel’s upholding of the District Court’s finding that 22 TEX.

ADMIN CODE §801.42(13) is invalid and void. AMFTRB

respectfully submits that not to do so frustrates the Texas

legislature’s intent in enacting the Licensed Marriage and Family

Therapist Act, deprives the people of Texas the services of

Licensed Marriage and Family Therapists, and violates the Texas

Code Construction Act in that the ruling favors a private interest

over that of the public.

                       STATEMENT OF FACTS

     The Texas Medical Association (the “TMA”) filed suit

challenging inter alia a rule promulgated by the Texas MFT Board

that permits Licensed Marriage and Family Therapists to perform

diagnostic assessments. 22 TEX. ADMIN. CODE § 801.42(13). The

TMA claimed, and the District Court and a three (3) judge panel of

this Court agreed, that performing a diagnostic assessment as set



                                  3
forth in the rule, or any diagnosis for that matter, falls within the

definition of “practicing medicine” as set forth in the Texas

Medical Practice Act. As Licensed Marriage and Family

Therapists are not licensed as physicians in the state, it was

therefore reasoned that performing a diagnostic assessment or a

diagnosis is the unlicensed practice of medicine. As such 22 TEX.

ADMIN. CODE § 801.42(13) was declared to be invalid and void.

                  SUMMARY OF THE ARGUMENTS

     The TMA has managed to have the language of the Texas

Licensed Marriage and Family Therapist Act contorted in such a

way as to ensure that Licensed Marriage and Family Therapists

in the State of Texas are effectively prohibited from professional

practice. In an exercise of semantic gymnastics, the TMA has

effectively had the marriage and family therapy profession gutted

in the state of Texas.

     On its face, this case would appear to be about the rule

making authority of the MFT Board, and the statutory limits of

that authority. It is not. This case is about market protectionism,

and the medical profession’s effort to prevent another profession



                                   4
from rendering professional services. If a Licensed Marriage and

Family Therapist cannot provide a diagnostic assessment, she

cannot bill an insurance company for her services. If a Licensed

Marriage and Family Therapist cannot bill an insurance company

for her services, she cannot afford to practice. As a result, if

Licensed Marriage and Family Therapists cannot perform

diagnostic assessments as set forth in 22 TEX. ADMIN. CODE §

801.42(13), then the people of the State of Texas will be denied

access to the mental health services of Licensed Marriage and

Family Therapists; mental health services to which the Texas

legislature decided they were entitled when it enacted the Texas

Licensed Marriage and Family Therapist Act.

     The AMFTRB has reviewed the Appellants’ motion for en

banc reconsideration and finds it to be compelling. Furthermore,

the AMFTRB feels that the arguments set forth in the motion are

such that the Appellants’ motion for en banc reconsideration of the

panel’s decision should be granted by the Court and the panel’s

decision upholding of the District Court’s finding that 22 TEX.

ADMIN CODE §801.42(13) as invalid and void should be reversed.



                                   5
Therefore, the AMFTB hereby adopts the arguments set forth by

the Appellants’ in the motion.

     The AMFTRB would like to bring to the Court’s attention

arguments in addition to those that are set forth in the Appellants’

motion. The AMFTRB feels that these arguments lend additional

support to the Appellants’ motion for en banc reconsideration by

the Court and that the panel’s decision upholding of the District

Court’s finding that 22 TEX. ADMIN CODE §801.42(13) as invalid

and void should be reversed. The arguments are summarized as

follows:

  A. Licensed Marriage and Family Therapists are fully qualified
     to perform diagnostic assessments as part of their
     therapeutic role in the therapeutic settings in which they
     practice.

  B. Licensed Marriage and Family Therapists are specifically
     trained to perform diagnostic assessments as part of their
     therapeutic role in the therapeutic settings in which they
     practice.

  C. Licensed Marriage and Family Therapists are specifically
     tested on their competency to perform diagnostic
     assessments as part of their therapeutic role in the
     therapeutic settings in which they practice.

  D. Diagnosis standing alone does not meet the statutory
     definition of practicing medicine under the Texas Medical
     Practice Act.


                                 6
  E. There is no lawful mechanism by which a Licensed Marriage
     and Family Therapist may receive a diagnosis from a
     physician.

  F. The Texas legislature has specifically set forth in the
     Medical Practice Act those instances in which a physician
     must supervise a non-physician practitioner when
     performing a medical act.

  G. The structure of the Occupations Code supports that
     Marriage and Family Therapy is not the practice of medicine
     and therefore a diagnostic assessment is not practicing
     medicine.

  H. Holding that a diagnostic assessment is practicing medicine
     violates the intent of the Code Construction Act.

  I. Dr. Priscilla Ray the Texas Medical Association’s expert
     should have been disqualified.

                          ARGUMENTS

  A. Licensed Marriage and Family Therapists are fully
     qualified to perform diagnostic assessments as part of
     their therapeutic role in the therapeutic settings in
     which they practice.

     The Texas Medical Association selectively cites section 22

TEX. ADMIN. CODE § 801.42(13) of the Texas Administrative Code

and surmises that the Texas MFT Board is authorizing Licensed

Marriage and Family Therapists to diagnosis any and all of the

mental disorders set forth in the nine hundred plus (900+) pages



                                 7
of the Diagnostic and Statistical Manual of Mental Disorders

(DSM). Furthermore, based upon this ridiculously expansive

reading of § 801.42(13), and given the context in which it appears,

the TMA asserts that the Texas MFT Board is explicitly

sanctioning Licensed Marriage and Family Therapists to practice

outside their area of expertise and beyond their level of training,

to include the practice of medicine. This is not the case.

22 TEX. ADMIN. CODE § 801.42(13) reads as follows:

     The following are professional therapeutic services which
     may be provided by a Licensed Marriage and Family
     Therapist or a Licensed Marriage and Family Therapist
     Associate.
     …

     (13) Diagnostic assessment which utilizes the knowledge
     organized in the Diagnostic and Statistical Manual of
     Mental Disorders (DSM) as well as the International
     Classification of Diseases (ICD) as part of their therapeutic
     role to help individuals identify their emotional, mental, and
     behavioral problems when necessary.

22 TEX. ADMIN. CODE § 801.42(13)

     Citing the above section selectively, however, the TMA

removes it from the larger context in which it appears. 22 TEX.

ADMIN. CODE § 801.42 contains a total of twenty-two (22) sections,

twenty (20) of which specify in great detail the professional


                                  8
therapeutic services that may be provided by a Licensed Marriage

and Family Therapist. Far from granting carte blanche for a

Licensed Marriage and Family Therapist to practice in any

therapeutic setting, 22 TEX. ADMIN. CODE § 801.42 acts as a

limitation on the scope of practice.

     As such, the logical reading of 22 TEX. ADMIN. CODE §

801.42(13) is that it confines Licensed Marriage and Family

Therapists to conducting diagnostic assessments related to those

professional therapeutic services specifically set forth in its twenty

(20) other sections. Licensed Marriage and Family Therapists are

specially trained in and specifically tested on conducting

diagnostic assessments related to those professional therapeutic

services.

     B.    Licensed Marriage and Family Therapists are
specifically trained to perform diagnostic assessments as
part of their therapeutic role in the therapeutic settings in
which they practice.

     Under the AMFTRB’s Test Policy, only individuals who have

successfully completed a master or doctorate degree in marital

and family therapy (or its equivalent as established by the

jurisdiction) from a university program that has been accredited


                                   9
by a nationally or regionally recognized accreditation body, and

who have undertaken and/or completed post degree supervised

practical experience as outlined by the jurisdiction in which the

candidate is seeking licensure, may be approved by the

jurisdiction to sit for the MFT Examination. As set forth in Dr.

Paff Bergen’s affidavit, to the best of AMFTRB’s knowledge, in

order for a program to be accredited by a nationally or regionally

recognized accreditation body its curriculum includes assessment

and diagnosis of patients in the marital and family therapy

practice setting.

       For example, the Commission on Accreditation for

Marriage and Family Therapy (COAMFTE) accredits master's

degree, doctoral degree, and post-graduate degree clinical training

programs in marriage and family therapy throughout the United

States and Canada. COAMFTE is the accrediting arm of the

American Association for Marriage and Family Therapy (AAMFT)

and is recognized by the Council for Higher Education

Accreditation. In order to meet COAFMTE’s Accreditation




                                  10
Standards, a program’s curriculum must include coursework in

systemic/relational assessment and mental health diagnosis.

     The Texas MFT Board has adopted by rule the accreditation

scheme described above. 22 TEX. ADMIN. CODE § 801.113 reads in

relevant part as follows:

     (b) Persons applying for licensure as a marriage and family
     therapist or a marriage and family therapist associate must
     have a master's or doctorate degree in marriage and family
     therapy or a master's or doctorate degree in a related mental
     health field with course work and training determined by
     the board to be substantially equivalent to a graduate degree
     in marriage and family therapy from a regionally accredited
     institution of higher education or an institution of higher
     education approved by the board.

     (c) A degree or course work in a master's or doctorate in
     marriage and family therapy or a related mental health field
     must include at least 45 semester hours which the applicant
     completed at a regionally accredited school, except that those
     applicants starting August 1, 2017, must have 60 semester
     hours.

22 TEX. ADMIN. CODE § 801.113.

     The Texas MFT Board defines the accreditation bodies that

meet the accreditation requirement in two (2) places. First, in 22

TEX. ADMIN. CODE § 801.112, which recognizes COAFMTE

accreditation and reads in relevant part:

     (a) The board shall accept the following as meeting academic


                                 11
     requirements for licensure as a marriage and family
     therapist associate:

           (1) a master's degree or doctorate degree in marriage
           and family therapy from a program accredited by the
           Commission on Accreditation for Marriage and Family
           Therapy Education (COAMFTE);

           (2) a master's degree or doctorate degree in marriage
           and family therapy from an accredited institution or
           program as defined in §801.2 of this title (relating to
           Definitions), but the program is not accredited by
           COAMFTE, provided that the practicum is at least 9
           credit hours or 12 months.

22 TEX. ADMIN. CODE § 801.112

     The Texas MFT Board will also accept non-COAFMTE

accreditation, provided, that, the accreditation body is recognized

by the Council for Higher Education Accreditation (CHEA). As set

forth in the relevant part of 22 TEX. ADMIN. CODE § 801.2:


     The following words and terms when used in this chapter,
     shall have the following meanings unless the context
     indicates otherwise.

           (1) Accredited institutions or programs--An institution
           or program which holds accreditation or candidacy
           status from an accreditation organization recognized
           by the Council for Higher Education Accreditation
           (CHEA).


22 TEX. ADMIN. CODE § 801.2


                                  12
     In addition, an applicant for licensure must have taken a

prescribed number of course hours in the area of assessment as

set forth in 22 TEX. ADMIN. CODE § 801.114, which reads in

relevant part:

     An applicant who holds a graduate degree in a mental
     health-related field must have course work in each of the
     following areas (one course is equal to three semester hours):

           (2) assessment and treatment in marriage and family
           therapy--four courses;

22 TEX. ADMIN. CODE § 801.114

     As the Texas MFT Board utilizes the MFT Examination, and

therefore must bide by the AMFTRB’s Test Policy, all Texas

applicants for licensure as a Licensed Marriage and Family

Therapist must graduate from an accredited institution. As set

forth in the Texas Administrative Code, the Texas MFT Board has

adopted rules consistent with this requirement. As such,

licensure applicants would have had to demonstrate mastery of

assessment and diagnosis of patients in a marital and family

therapy practice setting during their education. Therefore, before

they can even sit for the MFT Examination, every applicant for

licensure as a Licensed Marriage and Family Therapist in the


                                 13
state of Texas will have received training in and demonstrated

mastery of, in the educational setting, diagnostic assessment and

diagnosis in the therapeutic settings in which they will practice.

In short, Licensed Marriage and Family Therapist in Texas must

have demonstrated sufficient training to competently perform

diagnostic assessments and diagnoses in the therapeutic settings

in which they practice, otherwise they would not be eligible for

licensure by the state.

  C. Licensed Marriage and Family Therapists are
     specifically tested on their competency to perform
     diagnostic assessments as part of their therapeutic
     role in the therapeutic settings in which they practice.

     The MFT Examination is an objective competency based

national licensure examination that tests candidates on six (6)

practice domains. The MFT Examination is based upon a role

delineation study. The purpose of the role delineation study is to

develop practice-relevant test specifications for the MFT

Examination. The role delineation is updated every five (5) to

seven (7) years to ensure it remains current. The last such update

for the MFT Examination was in 2013.




                                  14
      The process works as follows: First, an Examination

Advisory Committee (the “EAC”) is convened to define the

performance domains, tasks, and knowledge required for entry-

level practice in marital and family therapy. Members of the EAC

are appointed by the AMFTRB and include representatives from

various practice settings. The draft of role delineation is then

constructed. Next, the draft role delineation undergoes a

validation study by a representative sample of licensed Marital

and Family Therapists nationwide. Once validated, the task

statements are rated for frequency of performance and relation to

clinical competence; knowledge statements are rated and weighted

for contribution to public protection and appropriateness for entry-

level practice. Based upon these ratings, test specifications are

developed. Perhaps most importantly to this litigation is Domain

2 of the test specifications

      Domain 2 of the test specifications of the MFT Examination

is entitled: Assessing, Hypothesizing, and Diagnosing. It tests

candidates’ knowledge with respect to each of those tasks.

Domain 2 of the MFT Examination is based upon the most current



                                  15
version of the DSM. In the event that the DSM changes in

between role delineation updates, all questions on the MFT

Examination related to the DSM are updated to the new version.

     By requiring candidates to pass the MFT Examination as

part of the licensure process, the Texas MFT Board ensures all

Texas licensure candidates are tested on diagnostic assessment.

Furthermore, in being required to pass the MFT Examination as

part of the licensure process, all Licensed Marriage and Family

Therapists in Texas have objectively demonstrated competency in

performing diagnostic assessments and diagnoses in the

therapeutic settings in which they practice.

  D. Diagnosis standing alone does not meet the statutory
     definition of practicing medicine under the Texas
     Medical Practice Act.

TEX. OCC. CODE § 151.2(a)(13) reads as follows:

     DEFINITIONS. (a) In this subtitle:

     …

     (13) "Practicing medicine" means the diagnosis, treatment,
     or offer to treat a mental or physical disease or disorder or a
     physical deformity or injury by any system or method, or the
     attempt to effect cures of those conditions, by a person who:

     (A) publicly professes to be a physician or surgeon; or


                                 16
     (B) directly or indirectly charges money or other
     compensation for those services.

TEX. OCC. CODE § 151.2(a)(13)

     Diagnosis standing alone does not meet the statutory

definition of practicing medicine. In order to meet the statutory

definition of practicing medicine, a diagnosis must be coupled with

either a: “treatment, or an offer to treat a mental or physical

disease or disorder or a physical deformity or injury [.]” TEX. OCC.

CODE § 151.2(a)(13). Such a reading is consistent with the

practice of medicine. Diagnosis absent a treatment, or an offer to

treat, is an empty act. Similarly, treatment, or an offer to treat,

cannot be made absent a diagnosis. Diagnosis and treatment are

inextricably intertwined in the practice of medicine and should be

interpreted as such by this court.

     Given that a diagnosis must be coupled with treatment, or

an offer to treat, to meet the statutory definition of practicing

medicine, it logically follows that the diagnosis must be related to

a type of treatment offered by a physician. The therapeutic role

Licensed Marriage and Family Therapists perform and the

therapeutic settings in which they practice are not the same as


                                     17
those of physicians. In this instance, to define diagnosis so

broadly as to include the therapeutic role and therapeutic settings

in which physicians do not practice as practicing medicine is to de

facto render the Licensed Marriage and Family Therapist Act null

and void. Surely, the Texas legislature never intended such a

counterintuitive result.

      In addition, the Texas Licensed Marriage and Family

Therapist Act defines a Licensed Marriage and Family Therapist

as:

      DEFINITIONS. In this chapter:

      …

     (4) “Licensed marriage and family therapist" means a person
who offers marriage and family therapy for compensation.

      TEX. OCC. CODE § 502.002(4).

      The Licensed Marriage and Family Therapy Act only

permits the practitioner the to use the title Licensed Marriage and

Family Therapist. As the use of additional titles such as

"physician” or “surgeon" are not permitted, the public will not

mistakenly believe that a Licensed Marriage and Family

Therapist is practicing medicine.


                                    18
  E. There is no lawful mechanism by which a Licensed
     Marriage and Family Therapist may receive a
     diagnosis from a physician.

     If as the TMA asserts, performing a diagnostic assessment is

practicing medicine and as such may only be done by a physician,

then from where will the diagnosis for a Licensed Marriage and

Family Therapist originate? Nowhere in the Licensed Marriage

and Family Therapist Act or the Medical Practice Act is a

physician authorized to provide a diagnosis to a Licensed

Marriage and Family Therapist. Absent such authorization, only

two (2) conclusions can follow. Either, the Texas legislature

intended physicians to aid and abet the unlicensed practice of

medicine by Licensed Marriage and Family Therapists; or in

enacting the Licensed Marriage and Family Therapist Act the

Texas legislature created a licensed profession with what amounts

to no authority to practice. Neither conclusion makes any sense.

     The only logical conclusion is that in enacting the Licensed

Marriage and Family Therapist Act the legislature intended

marriage and family therapy to be a stand-alone profession,

including conducting the diagnostic assessment upon which



                                 19
treatment would be based. Further analysis as set forth in the

next two (2) arguments supports this view.

  F. The Texas legislature has specifically set forth in the
     Medical Practice Act those instances in which a
     physician must supervise a non-physician
     practitioner when performing a medical act.

     The Texas legislature has specifically set forth in the

Medical Practice Act those instances in which a physician must

supervise a non-physician practitioner when performing a medical

act. By not requiring that Licensed Marriage and Family

Therapists receive such supervision, the legislature made a

determination that marriage and family therapy is a stand-alone

profession. Therefore, a diagnostic assessment by a Licensed

Marriage and Family Therapist in the context of the practice of

that profession cannot be the practice of medicine.

     Chapter 157 of the Medical Practice Act, Authority of

Physician to Delegate Certain Medical Acts, sets forth the

circumstances under which a physician may delegate medical acts

to certain licensed persons. TEX. OCC. CODE § 157.001 et. seq. If a

proper delegation is made, that person is not considered to be

practicing medicine without a license in performing the medical


                                 20
act. Chapter 157 covers, for example, Advanced Practice

Registered Nurses, Physician Assistants, and Pharmacists.

Licensed Marriage and Family Therapists are not listed in

Chapter 157.

     The omission of Licensed Marriage and Family Therapists in

Chapter 157 was not an accident. If the legislature determined

that marriage and family therapy was the practice of medicine

and as such must be delegated by a physician, Licensed Marriage

and Family Therapists would have been listed in the chapter as

well. Similarly, if in the context of marriage and family therapy a

diagnostic assessment was a medical act and as such the practice

of medicine that required a diagnosis be made by a physician, the

legislature would have stated such and included Licensed

Marriage and Family Therapists as part of Chapter 157.

     Similarly, there is no mention in the Texas Licensed

Marriage and Family Therapist Act of a Licensed Marriage and

Family Therapist requiring a diagnosis. Had a Licensed Marriage

and Family Therapist required a diagnosis or a referral from a

physician, the Texas Licensed Marriage and Family Therapist Act



                                 21
would have required such.

   G. The structure of the Occupations Code supports that
      Marriage and Family Therapy is not the practice of
      medicine and therefore a diagnostic assessment is not
      practicing medicine.

      In setting forth the purpose of the Texas Occupations Code,

and the revisions thereto, TEX. OCC. CODE § 1.001 states in

relevant part:

      Sec. 1.001. PURPOSE OF CODE. (a) This code is enacted
      as a part of the state's continuing statutory revision program,
      begun by the Texas Legislative Council in 1963 as directed
      by the legislature in the law codified as Section 323.007,
      Government Code. The program contemplates a topic-by-
      topic revision of the state's general and permanent statute
      law without substantive change.

      (b) Consistent with the objectives of the statutory revision
      program, the purpose of this code is to make the law
      encompassed by this code more accessible and
      understandable by:

      (1) rearranging the statutes into a more logical order;
      …

TEX. OCC. CODE § 1.001(b)

      Given the above expressed purposes the legislature was

seeking to accomplish when revising the Occupations Code, its

structure and the placement of sections are instructive of

legislative intent.


                                  22
     More specifically, Title 3 of the Occupations Code is entitled:

Health Professions. Within Title 3 there are thirteen (13)

Subtitles A through M. Subtitle B concerns physicians. Subtitle

C is entitled: Other Professions Performing Medical Procedures.

Within Subtitle C are: Chiropractors, Podiatrists, Midwives,

Physician Assistants, Acupuncturists, and Surgical Assistants.

     The Licensed Marriage and Family Therapist Act is set forth

in Subtitle I entitled: Regulation of Psychology and Counseling.

Also listed therein are Psychologists, Licensed Professional

Counselors, Chemical Dependency Counselors, and Social

Workers. Had the legislator intended that marriage and family

therapy be an extension of the medical profession, as a finding

that a diagnostic assessment is practicing medicine suggests, the

Licensed Marriage and Family Therapist Act would appear either

in Subtitle B or Subtitle C of Title 3 of the Occupations Code, not

in Subtitle I where it currently appears along with the other

recognized mental health counseling professions.




                                  23
  H. Holding that a diagnostic assessment is practicing
     medicine violates the intent of the Code Construction
     Act.

The Code Construction Act, TEX. GOV. CODE § 311.021 states in
relevant part:

     Sec. 311.021. INTENTION IN ENACTMENT OF
     STATUTES. In enacting a statute, it is presumed that:

           (1) compliance with the constitutions of this state and
           the United States is intended;
           (2) the entire statute is intended to be effective;
           (3) a just and reasonable result is intended;
           (4) a result feasible of execution is intended; and
           (5) public interest is favored over any private interest.

TEX. GOV. CODE § 311.021

     Holding that a diagnostic assessment is practicing medicine

violates Subsections (2) through (5) of Subchapter C of the Code

Construction Act as set forth above. Specifically, the holding

violates Subsections (2) through (4) because: it renders the

statute ineffective in that it severely restricts or eliminates a

Licensed Marriage and Family Therapist’s ability to practice; is

not just and reasonable in that it severely restricts or eliminates a

Licensed Marriage and Family Therapist’s ability to practice; and

it does not result in feasible execution of the statute as intended,

i.e., that Licensed Marriage and Family Therapist will be able to


                                   24
practice. Perhaps most importantly, however, such a holding

violates TEX. GOV. CODE § 311.021(5) in that it favors a private

interest over the public interest.

     As the Appellants point out in their motion, a holding that

diagnostic assessment is practicing medicine will result in an

acute shortage of mental health professionals within the State of

Texas. As the TMA points out in its Original and Amended

petitions, it is seeking to protect its members’ rights to practice

and the integrity of their licenses. This places the private

interests of the TMA’s members before the public’s interest in a

fully functioning mental health system. A holding that a Licensed

Marriage and Family Therapist cannot perform a diagnostic

assessment as set forth in 22 TEX. ADMIN. CODE § 801.42(13) will

deny the people of the State of Texas certain mental health

services to which the legislature decided they were entitled when

it enacted the Texas Licensed Marriage and Family Therapist Act.

  I. Dr. Priscilla Ray the Texas Medical Association’s
     expert should have been disqualified.

     In both its Original Petition and Second Amended Original

Petition, the TMA relies on the affidavit of Priscilla Ray, MD as its


                                     25
expert. A search of Dr. Ray’s physician profile as maintained by

the Texas Medical Board, and accessed through the board’s

website, reveals that Dr. Ray has been the subject of two (2)

separate and distinct administrative proceedings, both of which

involved ethics lapses, and both of which resulted in action by the

Texas Medical Board.

     In October 2008, the Texas Medical Board imposed a two

thousand dollar ($2,000) administrative penalty on Dr. Ray. This

penalty was the result of Dr. Ray ignoring two (2) separate audit

letters issued by the Texas Medical Board requesting information

about her continuing medical education. Attached hereto and

incorporated herein as Appendix B is a copy of the Texas Medical

Board’s Order Imposing Administrative Action on Dr. Ray dated

October 8, 2008.

     In February 2013, Dr. Ray entered into a Remedial Plan

with the Texas Medical Board requiring that she take continuing

medical education credits in the topic of ethics. The Remedial

Plan was the result of Dr. Ray continuing to write prescriptions

following the expiration of her Texas Controlled Substance



                                  26
Registration on August 31, 2010 and its renewal on September 20,

2010. Attached hereto and incorporated herein as Appendix C is

a copy of the Texas Medical Board’s Order Remedial Plan for Dr.

Ray dated February 8, 2013.

     Given the above ethical lapses on the part of Dr. Ray, both of

which resulted in administrative action by the Texas State

Medical Board, Dr. Ray should be disqualified as an expert in this

matter. To the extent that either the District Court or the three

(3) judge panel of this Court relied upon her affidavit, such

reliance in and of itself should be the basis of a reversible error.

At a minimum, it calls for reconsideration of this matter by this

Court.

                            CONCLUSION

     For the reasons both set forth in the Appellants’ motion and

this amicus brief, the AMFTRB respectfully submits that

Appellants’ motion for en banc reconsideration of the panel’s

decision should be granted by the Court and the panel’s decision

upholding of the District Court’s finding that 22 TEX. ADMIN CODE

§801.41(13) as invalid and void should be reversed. Not to do so



                                   27
frustrates the legislative intent behind the Texas Licensed

Marriage and Family Therapist Act. Perhaps more importantly,

however, is that it deprives the people of the State of Texas access

to the mental health services that Licensed Marriage and Family

Therapists provide.

Dated: February 25, 2015

Respectfully submitted,

By:   /s/ Steven T. Peluso
      STEVEN T. PELUSO, ESQ.

THE LAW OFFICE OF
  STEVEN T. PELUSO, ESQ.
The St. James Building
1133 Broadway, Suite 304
New York, New York 10010
Tel.: 646.448.4319
steven.peluso@spelusolawoffice.com


       ATTORNEY FOR AMICUS THE ASSOCIATION OF MARITAL
           AND FAMILY THERAPY REGULATORY BOARDS




                                  28
                 CERTIFICATE OF COMPLIANCE

     In accordance with Rule 11(c) of the Texas Rules of Appellate
Procedure, the Association of Marital and Family Therapy
Regulatory Boards has paid all fees and costs in connection with
preparing this Amicus Curie Brief.

                                 /s/ Steven T. Peluso
                                 STEVEN T. PELUSO

                 CERTIFICATE OF COMPLIANCE

     In compliance with 9.4(e) of the Texas Rules of Appellate
Procedure, this Amicus Curie Brief has been prepared using a size
14 Century Schoolbook Font. In compliance with 9.4(i)(2) of the
Texas Rules of Appellate Procedure this Amicus Curie Brief
contains 4,899 words, excluding those portions exempted under
Rule 9.4(i)(1).

                                 /s/ Steven T. Peluso
                                 STEVEN T. PELUSO




                                 29
                      CERTIFICATE OF SERVICE

      I Steven T. Peluso hereby certify that I have served a copy of
this amicus brief of the Association of Marital and Family Therapy
Regulatory Boards on all Counsel of record by United States
Postal Service Express Mail Service on February 25, 2015 as listed
below:

BAKER BOTTS L.L.P.                     COUNSEL FOR
                                       APPELLANTS/CROSS-
MATT C. WOOD                           APPELLEES TEXAS STATE
                                       BOARD OF EXAMINERS OF
98 San Jacinto Blvd.,                  MARRIAGE AND FAMILY
 Suite 1500                            THERAPISTS, CHARLES
Austin, Texas 78701-4039               HORTON, AND SANDRA
                                       DESOBE
COUNSEL FOR
APPELLANT/CROSS-APPELLEE               LAW OFFICES OF DAVID F.
TEXAS ASSOC. FOR MARRIAGE              BRAGG, P.C.
AND FAMILY THERAPY                     D AVID F. BRAGG

OFFICE OF   THE   ATTORNEY             P. O. Box 2047
GENERAL                                Bastrop, Texas 78602-2047

DUSTIN M. HOWELL                       C OUNSEL FOR
Assistant Attorney                     A PPELLEE /C ROSS -
 General, Solicitor                    A PPELLANT
 General Division                      T EXAS M EDICAL
                                       A SSOCIATION
P.O. Box 12548 (MC-
059) Austin, Texas                     / S / Steven T. Peluso
78711-2548                             STEVEN T. PELUSO




                                  30
APPENDIX A




    31
32
33
  IO)The MFT Examination is an objective competency based national
     licensure examination that tests candidates on six (6) practice domains.
     The MFT Examination is based upon a role delineation study. The
     purpose of the role delineation study is to develop practice-relevant
     test specifications for the examination. The role delineation is updated
     every five (5) to seven (7) years to ensure it remains current. The last
     such update was in 2013.

  ll)The process works as follows: First, an Examination Advisory
     Committee (the "EAC") is convened to define the performance domains,
     tasks, and knowledge required for entry-level practice in marital and
     family therapy. Members of the EAC are appointed by the AMFTRB
     and include representatives from various practice settings. The draft
     of role delineation is then constructed. Next, the draft role delineation
     undergoes a validation study by a representative sample of licensed
     Marital and Family Therapists nationwide. Once validated, the task
     statements are rated for frequency of performance and relation to
     clinical competence; knowledge statements are rated and weighted for
     contribution to public protection and appropriateness for entry-level
     practice. Based upon these ratings, test specifications are developed.
     Perhaps most importantly to this litigation is Domain 2 of the test
     specifications

  12)Domain 2 of the test specifications of the MFT Examination is entitled:
     Assessing, Hypothesizing, and Diagnosing. It tests candidates'
     knowledge with respect to each of those tasks. Domain 2 of the MFT
     Examination is based upon the most current version of the DSM. In
     the event that the DSM changes in between role delineation updates,
     all questions on the MFT Examination related to the DSM are updated
     to the new version.

[Text continues on Page 4.]




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APPENDIX B




    36
37
APPENDIX C




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   SIGNED AND ENTERED by the presiding officer of the Texas Medical Board on this
J_dayof ~~ ,201.3.




                                                                      Page 5 of5




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