TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 170. PRESCRIPTION OF CONTROLLED SUBSTANCES

The Texas Medical Board (Board) adopts amendments changing the title of 22 TAC Chapter 170 to "Prescription of Controlled Substances." Further amendments are adopted to §170.2, concerning Definitions, and §170.3, concerning Minimum Requirements for the Treatment of Chronic Pain. The Board also adopts new rule §170.9, in new Subchapter C, titled "Prescription Monitoring Program Check."

The amendments to §170.2 are adopted pursuant to HB 2174, 86th Texas Legislature, which set forth certain opioid prescription limits for the treatment of acute pain through new Section 481.07636 of the Texas Health and Safety Code. Section 170.3 amendments are proposed pursuant to §481.0764 of the Texas Health and Safety Code, which mandates a review of the Prescription Monitoring Program (PMP) prior to the issuance of a prescription for opioids, benzodiazepines, barbiturates, and carisoprodol. New Subchapter C, Prescription Monitoring Program Check, is adopted in accordance with Sections 481.076, 481.0764, and 481.0765 of the Texas Controlled Substances Act.

The Board sought stakeholder input at meetings held on October 9, 2019 and February 18, 2020. The stakeholder comments were incorporated into the proposed rules as published in the April 3, 2020, issue of the Texas Register (45 TexReg 2284).

The amendments to §170.2 and §170.3 are adopted without changes to the proposed text published in the April 3, 2020, issue of the Texas Register (45 TexReg 2284). The adopted amendments to §170.2 and §170.3 will not be republished.

The new rule §170.9 in new Subchapter C titled Prescription Monitoring Program Check is adopted with non-substantive changes to the proposed language published in the April 3, 2020, issue of the Texas Register (45 TexReg 2284), based upon written comments received. Adopted new §170.9 will be republished.

The adopted amendments to §170.2, Definitions, are as follows:

The amendment to §170.2(2), relating to the definition for acute pain, clarifies that acute pain is time limited to no more than 30 days from the date of initial prescription for opioids for treatment of the pain during a period of treatment for the acute condition orinjury.

The amendment to §170.2(4), relating to definition for chronic pain, clarifies that chronic pain is pain that exists for a period that has continued for no less than 91 days from the date of initial prescription for opioids for treatment of the condition or injury.

The amendments add new 170.2(10), setting forth a definition for post-surgical, post-procedure, persistent non-chronic pain. The new definition clarifies that there is pain that continues to exist in a period after the acute phase, but before becoming medically recognized as chronic pain. This period of pain exists for a period of more than 30 days but less than 91 days from the date of initial prescriptions for opioids during a period of treatment. This definition creates a period of time in which a physician will be allowed to prescribe opioids for more than a 10-day period for a condition, injury, or disease not already excepted under HB 2174, if the standard of care permits, and allow for an appropriate period for such treatment without the requirements related to chronic pain applying. Paragraphs (11) - (14) are re-numbered accordingly.

The adopted amendments to §170.3, Minimum Requirements for the Treatment of Chronic Pain, are as follows:

Section 170.3 amendments are adopted pursuant to §481.0764 of the Texas Controlled Substances Act, which mandates a review of the PMP prior to the issuance of a prescription for opioids, benzodiazepines, barbiturates, and carisoprodol.

Section 170.3(1)(C) is amended so that a review of the PMP is mandatory rather than optional. Remaining proposed amendments are changes made for readability and represent other non-substantive re-wording necessitated by the primary changes in text.

Section 170.3(5)(E)(v) is amended so that language indicating an option of checking the PMP when conducting a periodic review of a patient's compliance is deleted. A physician must continue to review the PMP prior to issuing each and every prescription for opioids, benzodiazepines, barbiturates, and carisoprodol. The proposed deletion is not intended to change a physician's duty to review the PMP and represents a non-substantive re-wording of the section.

Section 170.3(7) is amended to clarify that documentation of the PMP check must be maintained in the patient's medical record.

Chapter 170, New Subchapter C, §170.9. Prescription Monitoring Program Check.

The Texas Medical Board (Board) adopts new Subchapter C, Prescription Monitoring Program Check, in accordance with Sections 481.076, 481.0764, and 481.0765 of the Texas Controlled Substances Act. The purpose of the rule is to clarify when and under what circumstances a physician is required to check the PMP before issuing certain controlled substances. New Subchapter C adds one new section, §170.9, which contains five interrelated parts.

New §170.9(1) provides a description of the types of physician-patient interaction and medical settings that require a PMP check. This portion of the rule also specifies that the check is required prior to and each time a prescription is issued for opioids, benzodiazepines, barbiturates, or carisoprodol to the ultimate user.

New §170.9(2) clarifies the types of physician-patient interaction and medical settings that do not require a PMP check.

New §170.9(3) clarifies that documentation of the PMP check is required. The language also clarifies that it is permissible to place a copy of the patient's PMP history in the patient's medical record to demonstrate the check was conducted as required when a prescription is issued for opioids, benzodiazepines, barbiturates, or carisoprodol to the ultimate user. This documentation method is proposed as acceptable, in addition to other appropriate forms and methods of documentation.

New §170.9(4) clarifies that physicians must perform the PMP check. This portion of the rule also specifies that physicians may allow certain other qualified individuals to check the PMP under Section 481.076(a)(5)(B) of the Health and Safety Code.

New §170.9(5) provides exceptions to the required PMP check in accordance with Section 481.0765 of the Texas Controlled Substances Act.

TMB received no written comments regarding proposed amendments to §170.3.

TMB received written comments regarding proposed amendments to §170.2 from the Texas Chiropractic Association (TCA) and a joint comment submitted by the following eight organizations (hereinafter referred to collectively as "the Organizations"): The Texas Medical Association, Texas Pain Society, Texas Society of Anesthesiologists, Texas Academy of Physicians, Texas Chapter of the American College of Physician Services, American College of Obstetricians and Gynecologists, Texas Association of Obstetricians and Gynecologists, and the Texas College of Emergency Physicians. TMB received written comments regarding proposed amendments to §170.9 from the Texas Orthopaedic Association (TOA) and the Organizations. No one appeared to provide oral comment at the TMB meeting held on June 12, 2020.

Summary of Comments

Section 170.2, Definitions

Joint Comment: The Organizations indicated a mix of support and opposition to the proposed definitions, objected to the lack of input on the proposed language prior to publication, and asked that the rules be returned to additional opioid workforce meetings for further discussion and development. The Organizations stated that their membership expressed concern and some confusion with tying the definitions to a prescription for opioids, recommending that they be tied to the onset or duration of pain instead. The Organizations recommended that the reference to palliative care should be referred to as "supportive palliative care", in accordance with changes adopted through SB 916 to Section 142A of the Texas Health and Safety Code.

TMB Response: TMB disagrees and declines to adopt the proposed amendments with changes. The new language reflects significant discussion from numerous physicians and associations over the terms "acute pain" "persistent non-chronic pain" and "chronic pain" during the opioid workgroup meetings. The general understanding, based on opioid workgroup and audience input, was that the proposed definitions were acceptable to utilize. However, additional opioid workgroup meetings will be held in order to continue discussing further possible improvements to the definitions.

The new and amended definitions retain the commonly understood timeframe that pain persisting over 90 days should be considered chronic. In addition, limiting acute to 30 days is consistent with the intent of the legislature to ensure judicious use of opioids during initial treatment phase for pain. Current research indicates that tolerance and addiction potential is greatly increased when these types of medication are prescribed for periods more than ten days.

Regarding the request to refer to "supportive palliative care" rather than "palliative care", SB 916' s language provides that all references to "palliative care" in the Health and Safety Code or other law mean "supportive palliative care", making it unlikely that there will be confusion between the two terms. TMB' s adopted language referencing "palliative care" reflects the wording of Section 481.07636 of the Health and Safety Code.

Texas Chiropractic Association Comment: TCA opposed TMB' s proposed language defining "acute pain" and "post-surgical, post-procedure, persistent non-chronic pain", stating the definitions were not supported by the medical literature and were contrary to the legislative intent behind HB 2174. TCA requested that the proposed definition for "acute pain" be changed so it is defined to last longer than 30 days and further asked that the proposed definition for "post-surgical, post-procedure, persistent non-chronic pain" be eliminated so that it would be included in the definition of "acute pain."

TMB Response: TMB disagrees and declines to adopt the amended definitions with changes recommended by TCA. The new language reflects significant discussion from numerous physicians and associations during the opioid workgroup meetings. Section 481.07636 concerns limits on acute pain prescribing, but it is commonly understood that many forms of pain can exceed the 10-day prescription limit. The limit of 10-days is retained in the rules. However, consistent with its express rulemaking authority related to the treatment of pain and opioid prescribing, TMB recognizes the need for flexibility in treating patients.

These definitions retain the commonly understood timeframe of pain persisting over 90 days being considered chronic pain. In addition, limiting the acute pain definition to 30 days is consistent with the intent of the legislature to ensure judicious use of opioids during the initial treatment period for pain. Current research indicates that tolerance and addiction potential is greatly increased when these types of medication are prescribed for periods of more than ten days. But the rule also acknowledges each patient presents unique considerations related to a physician' s medical decision-making related to pain treatment and prescription medications.

New Section 170.9

Texas Orthopaedic Association Comment: TOA expressed general support for the rule, and specifically for the language allowing qualified delegates to perform the PMP check, but opposed documentation requirements set forth under the rule. TOA recommended allowing PMP' s technology to document evidence of a PMP check and further that the rules provide that the use of an integrated PMP within an EHR program provide evidence of compliance.

TMB Response: TMB disagrees and declines to adopt the rule with the recommended changes. TMB has been given express authority under Tex. Occ. Code Chapters 153 and 168 to write rules related to the treatment of pain, including documentation standards. These additions for documenting PMP checks are consistent with existing rules in Chapter 170 related to documentation as a method to ensure compliance with the legislative intent to monitor prescribing practices. In addition, TMB understands the EHR systems are set-up to integrate automatic PMP checks. The concern is that this can be done by anyone with access to the records and an electronic check could be done by simply clicking a box, creating uncertainty as to the identity of the individual who completed the review. Therefore, there is a need to add a requirement of verification to ensure that the practitioner prescribing is the individual who reviewed the information prior to issuing the prescription.

Joint Comment: The organizations expressed overall support for the rule, but opposed the documentation requirement, stating that Health and Safety Code Section 481.0764 does not require documentation of the PMP check. The organizations also stated that other agency rules, the Texas Board of Pharmacy (BOPH) and Texas Department of Licensing and Regulation (TDLR), respectively, do not require such documentation for pharmacists or podiatrists. The organizations further requested TMB "to deem physicians using an integrated EHR system to check the PMP as compliant with Section 481.0764(a)", stating that such would be consistent with TDLR and BOPH rules. Finally, the organizations recommended non-substantive drafting revisions.

TMB Response: TMB disagrees and declines to adopt the rule with the recommended changes related to the documentation mandate. Requiring the documentation of PMP checks is consistent with existing rules in Chapter 170 related to documentation as a method to ensure compliance with the legislative intent to monitor prescribing practices. In addition, TMB understands the EHR systems are set-up to integrate automatic PMP checks. The concern is that this can be done by anyone with access to the records and an electronic check could be done by simply clicking a box, creating uncertainty as to the identity of the individual who completed the review. Therefore, there is a need to add a requirement of verification to ensure that the practitioner prescribing is the individual who reviewed the information prior to issuing the prescription.

TMB agrees and appreciates the minor drafting revisions recommended, and adopts the new rule 170.9 with non-substantive changes incorporating those revisions.

SUBCHAPTER A. PAIN MANAGEMENT

22 TAC §170.2, §170.3

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle. The amendments are further adopted under the authority of Sections 481.07636, 481.076, 481.0764, and 481.0765 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 23, 2020.

TRD-202002503

Scott Freshour

General Counsel

Texas Medical Board

Effective date: July 13, 2020

Proposal publication date: April 3, 2020

For further information, please call: (512) 305-7016


SUBCHAPTER C. PRESCRIPTION MONITORING PROGRAM CHECK

22 TAC §170.9

The new rule is adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle.

The new rule is further adopted under the authority of Sections 481.07636, 481.076, 481.0764, and 481.0765 of the Texas Health and Safety Code.

§170.9.Prescription Monitoring Program Check.

The legislature has recognized the impact of the opioid crisis on the health and well-being of its citizens. The Prescription Monitoring Program (PMP) is a valuable tool to help prevent diversion of drugs and opioid-related overdose deaths. This subchapter establishes rules for a mandatory PMP check.

(1) Before a prescription for opioids, benzodiazepines, barbiturates, or carisoprodol will be issued to a patient, a mandatory PMP check of the patient's controlled substance prescription history is required. The review of the patient's PMP prescribing history must be completed prior to and each time a prescription is issued for opioids, benzodiazepines, barbiturates, or carisoprodol to the patient for:

(A) take-home use, upon leaving an outpatient setting such as doctor's office, or ambulatory surgical center; or

(B) upon discharge from an inpatient setting, such as a hospital admission or discharge from an emergency department visit.

(2) A mandatory PMP check is not required before or during an inpatient stay, such as a hospital admission, or during an outpatient encounter in settings, such as an emergency department or ambulatory surgical center visit.

(3) The review of the patient's PMP prescribing history must be documented in the patient's medical records. Permitted documentation methods include, but are not limited to, placing a copy of the PMP check in the patient's medical records.

(4) The PMP check and documentation required by this section may be done by:

(A) the physician; or

(B) a delegate of the physician who is legally authorized under Section 481.076(a)(5)(B) of the Health and Safety Code.

(5) Exceptions. The PMP check set forth under paragraph (1) of this section is not required in the following circumstances:

(A) the prescriptions are issued pursuant to hospice care, treatment for a patient's diagnosis of cancer, or treatment for a patient's sickle cell disease and this is clearly documented in the patient's medical record; or

(B) the prescriber makes and documents a good faith attempt to comply but is unable to access the PMP because of circumstances outside the control of the prescriber.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 23, 2020.

TRD-202002504

Scott Freshour

General Counsel

Texas Medical Board

Effective date: July 13, 2020

Proposal publication date: April 3, 2020

For further information, please call: (512) 305-7016


PART 41. TEXAS BEHAVIORAL HEALTH EXECUTIVE COUNCIL

CHAPTER 881. GENERAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §§881.1 - 881.13

The Texas Behavioral Health Executive Council adopts new §§881.1 - 881.13, relating to general provisions for the Executive Council. Except for §881.2, concerning Definitions, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2640) and will not be republished. In response to changes being proposed in 22 Texas Administrative Code Chapter 681, where the term Licensed Professional Counselor Intern (LPC-I) is being changed to Licensed Professional Counselor Associate (LPC-A), the Council adopts the corresponding name changes in §881.2 as a non-substantive change, which will be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules are the general framework regarding the Executive Council's operations and the implementation of its statutory duties.

List of interested groups or associations against the rules.

None.

Summary of comments against the rules.

A commenter recommended deleting all of proposed §881.13. The commenter believed the rule was too vague, restricts citizen's rights to participate in public meetings, and provided too much discretion for the agency to act based upon what the commenter believes is undefined criteria.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Texas agencies have the inherent authority to not only conduct meetings and other operations but also control how to conduct such proceedings. Section 881.13 insures that all participants, including the agency and the public, are treated fairly and respectfully so that agency business can be conducted in an orderly fashion. The rule aids and promotes respectful participation in meetings and put those on notice that if they choose to be threatening or abusive such conduct has no place before this agency. For these reasons the agency declines to make the requested changes, and hereby adopts the rule with nochanges.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code, which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§881.2.Definitions.

(a) The following definitions are generally applicable throughout the agency's rules and policies:

(1) The term "ALJ" as used herein shall refer to an administrative law judge employed by SOAH.

(2) The terms "Chapter 501," "Chapter 502," "Chapter 503," "Chapter 505," and "Chapter 507" as used herein shall refer to the corresponding chapter in the Occupations Code.

(3) The term "Executive Council" or "Council" as used herein shall refer to the Texas Behavioral Health Executive Council (BHEC).

(4) The term "member board" as used herein shall refer to:

(A) The Texas State Board of Examiners of Marriage and Family Therapists (TSBEMFT);

(B) The Texas State Board of Examiners of Professional Counselors (TSBEPC);

(C) The Texas State Board of Examiners of Psychologists (TSBEP); or

(D) The Texas State Board of Social Worker Examiners (TSBSWE).

(5) The term "PFD" as used herein shall refer to a proposal for decision issued by an ALJ.

(6) The terms "professional development" and "continuing education" as used herein have the same meaning.

(7) The term "SOAH" as used herein shall refer to the State Office of Administrative Hearings.

(8) The term "TAC" as used herein shall refer to the Texas Administrative Code.

(b) The following definitions apply only to those rules specific to the regulation of the practice of marriage and family therapy:

(1) "LMFT" refers to a licensed marriage and family therapist and has the same meaning as assigned by §502.002 of the Occupations Code.

(2) "LMFT Associate" refers to a licensed marriage and family therapist associate and has the same meaning as assigned by §502.002 of the Occupations Code.

(c) The following definitions apply only to those rules specific to the regulation of the practice of professional counseling:

(1) "LPC" refers to a licensed professional counselor and has the same meaning as assigned by §503.002 of the Occupations Code.

(2) "LPC Associate" refers to an individual licensed as a professional counselor associate under §503.308 of the Occupations Code.

(d) The following definitions apply only to those rules specific to the regulation of the practice of psychology:

(1) "LPA" or "Psychological Associate" refers to an individual licensed as a psychological associate under §501.259 of the Occupations Code.

(2) "LSSP" refers to an individual licensed as a specialist in school psychology under §501.260 of the Occupations Code.

(3) "Provisionally licensed psychologist" or "provisional licensee" means an individual licensed as a psychologist with provisional status under §501.253 of the Occupations Code.

(4) "PSYPACT" refers to the Psychology Interjurisdictional Compact found in Chapter 501, Subchapter L of the Occupations Code.

(e) The following definitions apply only to those rules specific to the regulation of the practice of social work:

(1) "LBSW" refers to a licensed baccalaureate social worker and has the same meaning as assigned by §505.002 of the Occupations Code.

(2) "LCSW" refers to a licensed clinical social worker and has the same meaning as assigned by §505.002 of the Occupations Code.

(3) "LMSW" refers to a licensed master social worker and has the same meaning as assigned by §505.002 of the Occupations Code.

(4) "LMSW-AP" refers to an individual licensed as a master social worker with the advanced practitioner specialty recognition.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002597

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER B. RULEMAKING

22 TAC §881.20, §881.21

The Texas Behavioral Health Executive Council adopts new §881.20 and §881.21, relating to rulemaking for the Executive Council. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2643). The rules will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 507.153 Tex. Occ. Code limits the ability of the Executive Council to adopt rules pertaining to qualifications for licensure, the scope and standards of practice, continuing educations requirements, and a schedule of sanctions unless such a rule is first proposed by a member board. Additionally, §2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules are the general framework regarding the Executive Council's rulemaking procedures and proceedings.

List of interested groups or associations against the rule.

The Bluebonnet Counseling Association of Texas

The American Association for Marriage and Family Therapy

The Texas Counseling Association

The Texas Psychological Association

The Texas Association of Marriage and Family Therapy

The National Association of Social Workers - Texas Chapter

The Texas Society for Clinical Social Work

Summary of comments against the rule.

Commenters suggested changes to rule §881.20. Many requested grammatical changes, such as changing "must also" with "may only" because they felt §507.153 of the Tex. Occ. Code would require such a change. Generally, the commenters were concerned that rule §881.20 does not appropriately delineate the roles the Council and each underlying board will play in the rule making process or does not align with statutory intent.

Commenters suggested changes to rule §881.21. A commenter requested grammatical changes for the purposes of clarity. Other commenters requested the rule allow for petitions for rulemaking to be submitted directly to the appropriate boards instead of directly to the Council.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The agency disagrees that rule §881.20 usurps the authority of an underlying board or does not align with statutory intent. Sections 507.151 and 507.152 of the Tex. Occ. Code make it clear that all authority to administer, enforce, and adopt rules regarding the regulation of marriage and family therapists, professional counselors, psychologists, and social workers resides with the Council. While §507.153(a) of the Tex. Occ. Code does require that all rules concerning qualifications for licensure, scope of practice, continuing education requirements, and a schedule of sanction be first proposed by the applicable board; §507.153(c) and (d) of the Tex. Occ. Code states the council retains authority for final adoption of all rules and may adopt rules prescribing the procedure by which rules may be proposed to the Council. Rule §881.20 comports with this statutory mandate; and the commenters requested changes to this rule would impose limitations and restrictions upon the Council's review of rules proposed by boards that is not required by the Texas Occupations Code. The Council is required by law to review the rules proposed by boards and the agency disagrees that it should further restrict or limit its ability to do so, therefore the Council declines to make the requested changes.

Because the statutory authority for the adoption of all rules resides with the Council, then it is necessary for rule §881.21 to require all petitions for rulemaking to be directed to the Council. If a petition addresses a subject matter that by statute must first be proposed by a board, then under §507.151(b) of the Tex. Occ. Code the Council may request input or assistance from the applicable board. The Council also declines to make the requested grammatical changes because the rule, as drafted, does not appear to create any confusion or misunderstand to the general public.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council also adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

Lastly, the Executive Council adopts part of these new rules under the authority found in §2001.021 of the Tex. Gov't Code which requires state agencies to prescribe by rule the form for a petition for adoption of rules by interested persons and the procedure for its submission, consideration, and disposition

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002598

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER C. PERSONNEL

22 TAC §§881.30 - 881.32

The Texas Behavioral Health Executive Council adopts new §§881.30 - 881.32, relating to personnel for the Executive Council. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issues of the Texas Register (45 TexReg 2646) and will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.101 and 507.102 of the Tex. Occ. Code authorizes the Executive Council to employ an executive director and develop policymaking and management responsibilities for the Executive Council and executive director. Additionally, §656.048 of the Tex. Gov't Code requires state agencies to adopt rules relating to training and education for agency administrators and employees. Lastly, §661.002 of the Tex. Gov't Code requires state agencies to adopt rules and prescribe procedures relating to the operation of the agency sick leave pool. These new rules implement these requirements.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter question why are more procedures needed than in the Government Code and Employees Retirement System of Texas pertaining to the sick leave pool.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Section 661.002 of the Tex. Gov't Code requires state agencies to adopt rules and prescribe procedures relating to the operation of an agency sick leave pool, therefore the Executive Council must adopt rule §881.32.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts part of these new rules under the authority found in §656.048 of the Tex. Gov't Code which requires state agencies to adopt rules relating to training and education for agency administrators and employees.

Lastly, the Executive Council adopts these new rules pursuant to the authority found in §661.002 of the Tex. Gov't Code which requires state agencies to adopt rules and prescribe procedures relating to the operation of an agency sick leave pool.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002599

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER D. CONTRACTS AND PROCUREMENT

22 TAC §881.40, §881.41

The Texas Behavioral Health Executive Council adopts new §881.40 and §881.41, relating to contracts and procurement for the Executive Council. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issues of the Texas Register (45 TexReg 2647). The rules will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 2155.076 of the Tex. Gov't Code requires state agencies to develop and adopt protest procedures for resolving vendor protests relating to purchasing issues, which must be consistent with the comptroller's rules. Section 2156.005 of the Tex. Gov't Code requires state agencies making purchases to adopt the comptroller's rules related to bid opening and tabulation. Section 2260.052 of the Tex. Gov't Code requires state agencies with rulemaking authority to develop rules to govern the negotiation and mediation of a claim for breach of contract. Section 2261.202 of the Tex. Gov't Code requires state agencies that make procurements to establish and adopt by rule a policy that clearly defines the contract monitoring roles and responsibilities. Section 2161.003 of the Tex. Gov't Code requires a state agency to adopt the comptroller's rules adopted under Section 2161.002 of the Tex. Gov't Code, pertaining to historically underutilized businesses, as the agency's own rules. These new rules implement these requirements.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules pursuant to the authority found in §§2155.076, 2156.005, 2161.002, 2161.003, 2260.052, and 2261.202 of the Tex. Gov't Code which as previously discussed requires state agencies to enact rules pertaining to bidding, purchasing, contracting, procurement, protests, and dispute resolution.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002600

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


CHAPTER 882. APPLICATIONS AND LICENSING

SUBCHAPTER A. LICENSE APPLICATIONS

22 TAC §§882.1 - 882.13

The Texas Behavioral Health Executive Council adopts new §§882.1 - 882.13, relating to license applications. Except for §882.6, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2649) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §882.6 is being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. Generally, these new rules implement the application process and procedures which will be used by the Executive Council.

List of interested groups or associations against the rule.

The Bluebonnet Counseling Association of Texas

The Texas Counseling Association

The Texas Psychological Association

The Texas Association of Marriage and Family Therapists

The National Association of Social Workers - Texas Chapter

The Texas Society for Clinical Social Work

Summary of comments against the rule.

A commenter requested rule §882.1 be changed to no longer require a letter be sent notifying the applicant of the agency's determination and instructions for next steps. The commenter suggests replacing letters with email notifications. Another commenters recommends that the processing time periods for all applications be made the same. One commenter believes this rule conflicts with the rule pertaining to fees, rule §885.1, because this rule states applications with the incorrect fee amount will be returned while the fees rule states fees are non-refundable.

A commenter questioned whether rule §882.2, which requires transcripts be sent to the agency directly, will still allow for applicants that are students to still be able to be approved to take certain licensure exams prior to conferral of a degree. Another commenter requested the deletion of the requirement to use DHS-USCIS Systematic Alien Verification of Entitlements (SAVE) Program for the verification of immigration status of applicants because the commenter felt it was unnecessarily and burdensome.

A commenter requested changes to rule §882.3 for the purposes of clarity, to include the possible denial of an application for examination as well as an application for licensure.

A commenter requested rule §882.6 be changed to allow for a board to set the amount of times an applicant may retake an exam. Another commenter requested the rule be changed to allow an applicant that has failed an exam to practice under supervision of a licensed practitioner for several years to then make a recommendation regarding the candidate's licensure. A commenter also requested changes for the purpose of clarity.

Commenters requested changes to rule §882.9, they want the rule to state that the Council will publish processing times of applications for each license type.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Administrative Procedures Act, Chapter 2001 of the Tex. Gov't Code, requires notification by certain means; therefore rule §882.1 must comport with these requirements and require notification by letter, although this rule does not prohibit the use of email when corresponding with applicants. Rule §882.1 does not conflict with rule §885.1 because the Council will not process an application until it is complete, which requires the Council to receive the correct fee amount. Once the correct fee amount is received it is non-refundable, and the application will be processed, but if the wrong amount is received it will be returned to the applicant to submit the correct amount. Rule §882.1 specifies different processing time periods for different license types because that is the current practice in place, in the future the Council may reevaluate whether to make all the same but, due to data base restrictions, for the time being this rule will maintain the same time periods for the completeness of an application submission that currently exist.

Rule §882.2 must require that transcripts come directly from a verified source in order to ensure the authenticity of the submission. Depending upon a particular board, there may still be procedures for an applicant to be approved to sit for an examination prior to graduation but a license cannot be issued until the Council receives an official copy of a transcript verifying the conferral of a degree. The Council believes the utilization of the SAVE Program will make the application process easier for the verification of immigration status of applicants, additionally the use of the SAVE Program is required by federal law.

The Council declines to amend rule §882.3 as requested because the requested edits to add denial of exam applications to the rule appears unnecessary to the agency and does not appear to add any additional clarity to the rule.

Rule §882.6 is authorized and required, as written, because §507.253 of the Tex. Occ. Code states the Council shall, by rule, establish a limit on the number of exam retakes and the requirements for retaking an exam.

The Council declines to amend rule §882.9 as requested. While the Council's intent is to provide the public as much information as possible about processing times for licenses, depending upon what information and how it is stored by all the boards will determine what the Council will be able to publish. The rule as written will more accurately demonstrate the agency's workload. The agency does not see the need to include these requested changes in the rule, as the Council believes the general language currently in the rule is sufficient.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules in part under the authority found in §§2005.003 and 2005.006 of the Tex. Gov't Code which requires state agencies to adopt rules for processing applications and issuing licenses, as well as complaint procedures for the same.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§882.6.Limitation on Number of Examination Attempts.

(a) An applicant may take an examination administered or required by the Council no more than three times. Failure to pass an examination subject to this rule within three attempts, will result in an automatic denial of an application.

(b) Notwithstanding subsection (a) of this section, an applicant whose application is denied under this rule may reapply for licensure, but will not be allowed or approved to sit for the exam again until the applicant has submitted a detailed study plan designed to address the known or suspected areas of deficiency. The study plan must be approved by the relevant member board before authorization will be given to retake the examination.

(c) Examinations which do not require pre-authorization by the Council to take, are not subject to this rule.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002601

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER B. LICENSE

22 TAC §§882.20 - 882.27

The Texas Behavioral Health Executive Council adopts new §§882.20 - 882.27, relating to license. Except for §882.22 and §882.23, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2652) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §882.22 and §882.23 are being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. Generally, these new rules provide the form and function for the licenses issued by the Executive Council.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter requested changes to rule §882.22(a) for consistency reasons. The commenter believes previously licensed marriage and family therapists seeking to reinstate a revoked license should be excepted from this rule to be consistent with §502.252(b)(7) of the Tex. Occ. Code.

A commenter requested edits to rule §882.26(c). The commenter believes the requirement that two or more psychologist be on staff limits opportunities for post-doctoral training and does not guarantee greater learning than if there was just one. Additionally, the commenter believes the minimum two hours per week of face-to-face supervision does not allow for supervision by technology or electronic means.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The lack of an exclusion or exception in rule §882.22(a) for LMFTs is unnecessary. Rule §881.10(a), pertaining to conflicts between other laws and council rules, would dictate that if a Council rule conflicted with a statute in the Texas Occupations Code, the statute would control. In this instance, rule §882.22(a) allows those with a prior license to apply for reinstatement with the Council. This does not guarantee that all prior revoked licensees will be reinstatement. An individual who had an LMFT revoked may still apply for reinstatement, but pursuant to §502.252(b)(7) the Tex. Occ. Code the Council would not be able to reinstate the license. Therefore rule §882.22(a) does not conflict with the Texas Occupations Code.

Rule §882.26(c) pertains to the criteria for a post-doctoral program to be consider substantially equivalent to an APA accredited or APPIC member program. An individual may always apply with the Council for licensure and once approved the individual may conduct a post-doctoral program required for licensure as a psychologist that is not APA accredited, an APPIC member program, or substantially equivalent. Therefore this rule does not limit the opportunity for post-doctoral training, it defines the pathway to complete this training prior to an application for licensure. Additionally, other rules, such as 22 Texas Administrative Code §465.2, allow for supervision by electronic means.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§882.22.Reinstatement of a License.

(a) A person whose license has expired or been retired, revoked, or resigned, may apply for reinstatement of the license. A person seeking re-licensure must apply for reinstatement, rather than applying for a new license.

(b) An application for reinstatement shall be in writing and in the form prescribed by the Council.

(c) In the case of revocation or resignation, application for reinstatement shall not be made prior to one year after the effective date of the revocation or resignation or prior to any time period specified in the order of revocation or resignation. A person whose license was revoked under §108.053 may apply for reinstatement of the license if the person meets the requirements of §108.055 of the Occupations Code.

(d) A person seeking reinstatement of a license shall appear before the Council or member board to answer any questions or address any concerns raised by the person's application if requested by a council or board member or the Executive Director. Failure to comply with this paragraph shall constitute grounds for denial of the application for reinstatement.

(e) The Council may approve or deny an application for reinstatement, and in the case of a denial, the Council may also set a reasonable period that must elapse before another application may be filed. The Council may also impose reasonable terms and conditions that an applicant must satisfy before reinstatement of an unrestricted license.

(f) An application for reinstatement of an expired, retired, revoked, or resigned license may be granted upon proof of each of the following:

(1) payment of the application fee;

(2) submission of a self-query report from the National Practitioner Data Bank (NPDB) reflecting any disciplinary history or legal actions taken against the applicant. A self-query report must be submitted to the agency in the sealed envelope in which it was received from the NPDB;

(3) a fingerprint based criminal history check which reflects no disqualifying criminal history;

(4) passage of any examinations required by a member board;

(5) documentation of any continuing education required by a member board; and

(6) submission of any other documentation or information requested in the application or which the Council or a member board may deem necessary in order to ensure the public's safety.

(g) The Council will evaluate each of the following criteria when considering reinstatement of an expired, revoked, or resigned license:

(1) circumstances surrounding the expiration, revocation, or resignation of the license;

(2) conduct of the applicant subsequent to the expiration, revocation, or resignation of the license;

(3) lapse of time since the expiration, revocation, or resignation of the license;

(4) compliance with all terms and conditions imposed by the Council or a member board in any previous order; and

(5) applicant's present qualification to practice the regulated profession based upon the history of related employment, service, education, or training, as well as the applicant's continuing education since the expiration, revocation, or resignation of the license.

(h) Notwithstanding time limits on original applications and examinations found elsewhere in these rules, an applicant seeking reinstatement of a license must submit all required documentation and information, and successfully pass all required examinations within the period specified by the Council. Failure to do so shall result in the application for reinstatement expiring.

§882.23.License Required to Practice.

(a) A person may not engage in or represent that the person is engaged in the practice of marriage and family therapy, professional counseling, psychology, or social work within this state, unless the person is licensed or otherwise authorized to practice by law.

(b) A person is engaged in the practice of marriage and family therapy within this state if any of the criteria set out in §502.002(6) of the Occupations Code occurs either in whole or in part in this state.

(c) A person is engaged in the practice of professional counseling within this state if any of the criteria set out in §503.003(a) of the Occupations Code occurs either in whole or in part in thisstate.

(d) A person is engaged in the practice of psychology within this state if any of the criteria set out in §501.003(b) of the Occupations Code occurs either in whole or in part in this state.

(e) A person is engaged in the practice of social work within this state if any of the criteria set out in §505.0025 of the Occupations Code occurs either in whole or in part in this state.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002602

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER C. DUTIES AND RESPONSIBILITIES

22 TAC §§882.30 - 882.36

The Texas Behavioral Health Executive Council adopts new §§882.30-882.36, relating to duties and responsibilities. The new sections are adopted without changes to the proposed text as published in the April 24, 2020 issue of the Texas Register (45 TexReg 2655) and will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. These new rules pertain to the duties and responsibilities of applicants going through the application process and licensees once they have obtained a license, which generally prohibit false or deceptive statements or practices.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter is concerned that rule §882.30(b) does not treat all license types equally and requests the rule be a single unified standard for all license types.

A commenter believes rule §882.32(a) requires licensees to be responsible for ensuring adequate record keeping for the agency and believes licensees cannot make sure the agency does the right thing with the information provided.

One commenter requested the addition of the word "must" to rule §882.36(a) for grammatical reasons. Another commenter requested the inclusion of Chapter 104 and 107 of the Texas Family Code in this rule.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Pursuant to Tex. Occ. Code §§502.261(a) and 503.314(a) a marriage and family therapist and a licensed professional counselor must, respectively, display a copy of their license at their principle place of practice or in an appropriate and public manner. Therefore rule §882.30(b) must provide an exception for those licensed under Chapters 502 and 503 because Texas law will not allow them to provide a patient or client only written notification of a holder's license number along with instructions for verification.

Rule §882.32(a) requires licensee to update their contact information in the Council's online licensing system. A licensee will be responsible for entering the required information into this system, which the licensee will be able to check online. All data entry will be done by the licensee, there is no basis to think that the agency will manipulate, alter, or not use this data.

The addition of the word "must" in rule §882.36(a) would have no effect on this rule, and the agency does not find that this requested change is necessary to clear up any potential public confusion or misunderstanding of this rule. Rule §882.36 provides references to many of the statutes effecting a licensee's practice, but the rule is not intended to be an exhaustive list of every statute that could have an effect on a licensee. Citations to the Texas Family Code, specifically Chapter 107, are included in other rules of practice which a licensee should already be aware of before conducting any practice in the areas governed by the Texas Family Code; therefore the Council declines to add additional statutory references to this rule.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002605

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER D. CRIMINAL HISTORY AND LICENSE ELIGIBILITY

22 TAC §§882.40 - 882.42

The Texas Behavioral Health Executive Council adopts new §§882.40 - 882.42, relating to criminal history and license eligibility. Except for §882.42, concerning Ineligibility Due to Criminal History, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2658) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §882.42 is being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board; and §507.156 of the Tex. Occ. Code requires the Executive Council to adopt rules pertaining to the Executive Council's authority to revoke, suspend, or deny a license based upon a criminal conviction. These new rules implement this statutory duty.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter was concerned that subsections (b) and (d) of §882.40 contradicted each other and subsection (c) will allow licensees to renew a license by merely being fingerprinted and not completing any other renewal requirement.

One commenter requested the addition of the word "based" to fingerprint criminal history background checks in §882.41(d) for consistency reasons.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Section 882.40(b) is a standalone requirement, it can apply to any licensee at any time, and does not contradict any other subsection of this rule. Subsection (c) of the rule deals with licensees who have not yet been required to complete a criminal history background check, and it does not waive any requirements for the renewal of a license. Subsection (d) of the rule pertains solely to those applicants who have already completed a criminal history background check and it exempts them from subsection (c).

The addition of the word "based" in §882.41(d) to describe the fingerprint criminal history background check would have no effect on this rule, the same term was used in §882.60(e), and the agency does not find that this requested change is necessary to clear up any potential public confusion or misunderstanding of this rule.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code, which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.156 of the Tex. Occ. Code, which requires the Executive Council to adopt rules necessary to comply with Chapter 53 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§882.42.Ineligibility Due to Criminal History.

(a) The Council may revoke or suspend a license, disqualify a person from receiving or renewing a license, or deny a person the opportunity to be examined for a license due to a felony or misdemeanor conviction, or a plea of guilty or nolo contendere followed by deferred adjudication, if the offense:

(1) is listed in Article 42A.054 of the Code of CriminalProcedure;

(2) was a sexually violent offense, as defined by Article 62.001 of the Code of Criminal Procedure; or

(3) directly relates to the duties and responsibilities of a licensee.

(b) In determining whether a criminal conviction directly relates to the duties and responsibilities of a licensee, the agency shall consider the factors listed in §53.022 of the Occupations Code. Each member board shall determine which crimes are directly related to the duties and responsibilities of its licensees.

(c) If the agency determines that a criminal conviction directly relates to the duties and responsibilities of a licensee, the agency must consider the factors listed in §53.023 of the Occupations Code when determining whether to suspend or revoke a license, disqualify a person from receiving a license, or deny a person the opportunity to take a licensing examination. It shall be the responsibility of the applicant or licensee to provide documentation or explanations concerning each of the factors listed in the law. Any documentation or explanations received will be considered by the agency when deciding whether to suspend or revoke a license, disqualify a person from receiving a license, or deny a person the opportunity to take a licensing examination.

(d) Notwithstanding any schedule of sanctions adopted by the Council or a member board, the Council shall:

(1) revoke a license due to a felony conviction under §35A.02 of the Penal Code, concerning Medicaid fraud, in accordance with §36.132 of the Human Resources Code;

(2) revoke or suspend a license for unprofessional conduct in accordance with §105.002 of the Occupations Code; and

(3) revoke a license due to a license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

(e) In accordance with Chapter 108 of the Occupations Code, an application for licensure as a psychologist or social worker will be denied if the applicant:

(1) is required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure;

(2) has been previously convicted of or placed on deferred adjudication for the commission of a felony offense involving the use or threat of force; or

(3) has been previously convicted of or placed on deferred adjudication for the commission of an offense:

(A) under §§22.011, 22.02, 22.021 or 22.04 of the Penal Code, or an offense under the laws of another state or federal law that is equivalent to an offense under one of those sections;

(B) during the course of providing services as a health care professional; and

(C) in which the victim of the offense was a patient.

(f) A person whose application was denied under subsection (e) of this section may reapply for licensure if the person meets the requirements of §108.054 of the Occupations Code.

(g) In accordance with §108.053 of the Occupations Code, the Council shall revoke the license of a psychologist or social worker if the licensee is:

(1) convicted or placed on deferred adjudication for an offense described by subsection (e)(2) or (3) of this section; or

(2) required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure.

(h) The Council will provide notice to a person whose application has been denied due to criminal history as required by §53.0231 and §53.051 of the Occupations Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002606

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER E. CONTINUING EDUCATION

22 TAC §882.50

The Texas Behavioral Health Executive Council adopts new §882.50, relating to continuing education. The new section is adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2660) and will not be republished.

Reasoned Justification.

The new rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. In order to maintain and renew a license, each license holder is required to obtain a minimum amount of education per renewal period in order to renew a license. Each applicable board will determine the minimum amount of required education and the Executive Council will ensure compliance. This new rule pertains to the Executive Council's ability to audit license holders for compliance purposes.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter requested the rule reference that inactive status licensees do not have to comply with this rule. Other commenters were concerned that the rule would result in 10% of all licensees being audited every month, which would could result in over auditing and be more burdensome than beneficial to licensees and the agency.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Rule §882.21(b)(2) already states that inactive licensees do not have to comply with continuing education requirements while the license is inactive, restating the same in §882.50 would be duplicative and unnecessary.

Rule §882.50(a) requires all licensee to complete the minimum amount of continuing education required to renew a license for each renewal period. Rule §882.50(b) allows the agency to conduct audits of licensees to ensure compliance with the continuing education requirements. Every month, a group of licensees will be required to renew their license and under §882.50(b)(1) 10% of these licensees will be subject to an audit, and, as the rule states, they will need to show compliance before their license will be renewed. Therefore, the only licensees that will be subject to the random audits of rule §882.50(b)(1) will be those renewing their license.

For these reasons the agency declines to make the requested changes, and hereby adopts the rule with no changes.

Statutory Authority.

The new rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this new rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002607

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER F. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, VETERANS, AND MILITARY SPOUSES

22 TAC §882.60, §882.61

The Texas Behavioral Health Executive Council adopts new §882.60 and §882.61, relating to licensing provisions related to military service members, veterans, and military spouses. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2661). The rules will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. Chapter 55 of the Tex. Occ. Code requires state agencies that issue a license to adopt rules pertaining to licensing eligibility requirements for military service members, veterans, and spouses. These new rules implement this statutory duty.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

One commenter requested the addition of the word "based" to fingerprint criminal history background checks in rule §882.60(e) for consistency reasons.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

One commenter thought the addition of rule 882.61 was an excellent change.

Agency Response.

The addition of the word "based" in rule §882.60(e) to describe the fingerprint criminal history background check would have no effect on this rule, the same term was used in rule §882.41(d), and the agency does not find that this requested change is necessary to clear up any potential public confusion or misunderstanding of this rule. For these reasons the agency declines to make the requested change, and hereby adopts the rule with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.156 of the Tex. Occ. Code which requires the Executive Council to adopt rules necessary to comply with Chapter 53 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002608

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER G. EMERGENCY TEMPORARY LICENSE

22 TAC §882.70

The Texas Behavioral Health Executive Council adopts new §882.70, relating to Emergency Temporary License. The new section is adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2663). The rule will not be republished.

Reasoned Justification.

The new rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.254 of the Tex. Occ. Code authorizes the Executive Council to issue a license, which must also include the name of the applicable board. Sections 501.263, 502.258, 503.308, and 505.357 of the Tex. Occ. Code require the adoption of rules for the Executive Council to issue a temporary license. This new rule implements this statutory duty.

List of interested groups or associations against the rule.

The Bluebonnet Counseling Association of Texas

The Texas Counseling Association

The Texas Psychological Association

The Texas Association of Marriage and Family Therapists

The National Association of Social Workers - Texas

The Texas Society for Clinical Social Work

Summary of comments against the rule.

Commenters have requested rule §882.70, pertaining to emergency temporary license, be amended to allow out-of-state licensees who are not in good standing the ability to apply for and be granted temporary licensure. Additionally, one commenter requested the emergency temporary license be made available for those applicants needing a job but waiting for the agency to process the application.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

To allow out-of-state licensees who are not in good standing, meaning they are subject to a current disciplinary action, to apply for and be granted emergency temporary licenses would be antithetical to the mission of this agency - to protect the public. Once the out-of-state licensee is no longer subject to a disciplinary action then the licensee may apply, but to allow potential bad actors a pathway to temporary licensure will increase the potential for more harm. The purpose for the emergency temporary license is to allow out-of-state licensees to provide services in Texas in response to a disaster, therefore this licensing rule is not something that should be used for the typical or regular licensing process. For these reasons the agency declines to make the requested changes, and hereby adopts the rule with no changes.

Statutory Authority.

The new rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this new rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts this new rule pursuant to the authority found in §§501.263, 502.258, 503.308, and 505.357 of the Tex. Occ. Code which requires the Executive Council to adopt rules for the issuance of temporary licenses.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002609

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


CHAPTER 883. RENEWALS

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §§883.1 - 883.3

The Texas Behavioral Health Executive Council adopts new §§883.1 - 883.3, relating to general provisions for the renewal of a license. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issues of the Texas Register (45 TexReg 2665). The rules will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.255 of the Tex. Occ. Code authorizes the Executive Council to renew licenses issued by the Executive Council, which must also include the name of the applicable board, and these new rules implement this statutory duty. Generally, these new rules establish the requirements for the biennial renewal of a license, and this biennial renewal period will be based upon the last day of the license holder's birth month.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter believes rule §883.2 should be amended so it does not conflict with the renewal or expiration dates listed in the rules for other license types.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

Rule §883.2 concerns the date on which a license, that can be renewed, must be renewed by, which is the last day of the licensee's birth month; except for those individuals that have more than one license from a member board, the renewal date shall coincide with the individual's existing renewal date. The commenter is concerned that this rule will conflict with the rules concerning the LPC-A (22 TAC §681.91) and the temporary license for social workers (22 TAC §781.411), but, by statute (§§503.308 and 505.357 of the Tex. Occ. Code, respectively) and by these rules, neither of those licenses can be renewed; so there exists no conflict because rule §883.2 does not apply to those rules. The commenter is also concerned that rule §883.2 will conflict with the rule concerning LMFT Associates (22 TAC §801.202). Rule §883.2 will work with the LMFT Associate rule because LMFT Associates will be required to renew on a biennial basis by the last day of the licensee's birth month. The only difference is under the LMFT Associates rule there is a limit to how many times a licensee may renew that license, because the license is intended to be used to gain licensure as an LMFT. Rule §883.2 does not conflict with the LMFT Associate rule because rule §883.2 only specifies the date upon which a renewal is required but does not address when a particular license can no longer be renewed. Additionally, the rules the commenter is concerned will conflict with rule §883.2 are currently working through the rule amendment process in an effort to avoid any possible future conflict. For these reasons the agency declines to make the requested changes, and hereby adopts the rule with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority of §507.255 of the Tex. Occ. Code which authorizes the Executive Council to issue license renewals upon meeting certain criteria.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002610

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER B. RENEWAL PROVISIONS FOR MILITARY PERSONNEL

22 TAC §883.10

The Texas Behavioral Health Executive Council adopts new §883.10, relating to renewal terms for military personnel on active duty. The new section is adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2667). The rule will not be republished.

Reasoned Justification.

The new rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Section 507.255 of the Tex. Occ. Code authorizes the Executive Council to renew licenses issued by the Executive Council, which must also include the name of the applicable board; and §55.002 of the Tex. Occ. Code requires state licensing agencies to adopt a rules regarding licensing renewal exemptions for individuals serving as military service members. This new rule implements the statutory duty.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this new rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts this new rule under the authority of §507.255 of the Tex. Occ. Code which requires the Executive Council to issue license renewals upon meeting certain criteria.

Lastly, the Executive Council adopts this new rule pursuant to the authority found in §55.002 of the Tex. Occ. Code which requires state licensing agencies to adopt a rules regarding licensing renewal exemptions for individuals serving as military service members.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002611

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


CHAPTER 884. COMPLAINTS AND ENFORCEMENT

SUBCHAPTER A. FILING A COMPLAINT

22 TAC §§884.1 - 884.3, 884.5, 884.6

The Texas Behavioral Health Executive Council adopts new §§884.1 - 884.3, 884.5, and 884.6, relating to filing a complaint. Except for §884.2, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2668) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §884.2 is being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules are the general framework regarding the Executive Council's procedures for filing a complaint.

List of interested groups or associations against the rule.

The Coalition for Family Court Reform

Summary of comments against the rule.

A commenter requested rule §884.1 be amended so there would be no time limit for complaints alleging sexual misconduct, the commenter wanted to allow child victims as much time as possible to file a complaint. The commenter acknowledges that this would exceed record retention requirements but felt other records or testimony could be used in an investigation of such a complaint.

Commenters requested changes or the deletion of rule §884.3 in its entirety. Some commenters believe the process and requirements outlined in the rule for filing a complaint against a forensic examiner is overly burdensome to complainants and will not help protect to public against bad actors and misconduct. Some commenters believe the intent of the rule is so staff may dismiss complaints without investigating them. Some ask that the rule allow for the filing of a complaint while a family law case is still pending before a court and that there be no requirement for a complainant to provide or include any documentation regarding their complaint. Another commenter was concerned that allowing attorneys to provide opinion letter in support of a complaint will unnecessarily involve attorneys in the complaint process allowing them to opine on how a licensee did or did not follow the Texas Family Code as it relates to testing, which the commenter asserts an attorney has no such expertise to do. The commenter is afraid that attorneys will try to use the complaint process as a litigation tactic in family law cases. Another commenter wants the rule to include language that allows a complainant to file a copy of a court order making a finding that a child custody evaluator's report is defective, deficient, or in violation of a legal standard.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

While the Council is sympathetic to the commenter's concern in rule §884.1 regarding the investigation of sexual abuse allegations perpetrated against children, as a matter of fairness the Council believes that some time limitation must be imposed upon complaints against licensees. In order for licensees to be able to appropriately and fully respond to a complaint a licensee will almost always provide a copy of the records maintained by the licensee pertaining to the alleged victim, which is typically a patient file. Logically, it only makes sense to tie the requirement in this rule to the records retention requirements for each licensee. Additionally, if a criminal statute of limitation has not expired, the alleged victim may file a criminal complaint and if the licensee is convicted of a criminal offense it will most likely also result in a disciplinary action against that individual's license.

Regarding the comments pertaining to §884.3, this agency is charged with the task of fairly regulating its licensees - so that the public is protected and that licensees are fairly investigated and prosecuted. The Council believes this rule will maintain this balance. The purpose behind the rule is to streamline the complaint intake process, the documents or information needed to initiate the complaint are items that will be necessary in virtually every court ordered forensic evaluation. Agency staff currently reviews complaints when they are initially filed for legal sufficiency, such as to determine if the allegation on their face state a violation of the law. The basic documentation and information required by this rule are used to make this determination. If a complaint fails to state a violation of law the complaint will be dismissed and the complainant will be notified why the agency could not investigate the complaint. Agency staff will often contact a complainant for more information or documentation regarding an alleged violation of law that staff is unable to determine if a violation of law has occurred. What this rule does is put complainants on notice of what staff will need to process and start investigations such complaints. Currently attorneys are not prohibited from filing complaints and opinion letters, the rule uses an attorney opinion letter as one example of possible documentation that may aid in the processing of a complaint and this agency does not have statutory authority to prohibit attorneys from filing complaints or letters for or against a complaint. The rule is intended to curtail the use of this agency's complaint process as a litigation tactic by requiring a judgment, final order, or dismissal be entered and provided with the complaint prior to the agency processing the complaint. The rule, as currently drafted, allows a complainant may file a copy of a court order finding a defect in a report or ordering a licensee to correct a defect in a report.

For these reasons the agency declines to make the requested changes, and hereby adopts the rules with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§884.2.Standardized Complaint Form.

All complaints must be submitted on the Council-approved complaint form. The complaint form shall be obtained free of charge from the Council's website or by requesting a copy from the Council.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002612

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER B. INVESTIGATIONS AND DISPOSITION OF COMPLAINTS

22 TAC §§884.10 - 884.12

The Texas Behavioral Health Executive Council adopts new §§884.10 - 884.12, relating to investigation and disposition of complaints. Except for §884.10 and §884.12, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2670) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §884.10 and §884.12 are being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules are the general framework regarding the Executive Council's procedures for investigating and potentially resolving a complaint.

List of interested groups or associations against the rule.

The Bluebonnet Counseling Association of the Texas

The Texas Counseling Association

The Texas Psychological Association

The Texas Association of Marriage and Family Therapists

The National Association of Social Workers - Texas Chapter

The Texas Society for Clinical Social Work

Summary of comments against the rule.

Commenters requested changes to rule §884.12(c). In general commenters requested the rule be changed from allowing members boards to provide input and assistance in enforcement matters and proceedings to requiring it. Some commenters believed §507.306 of the Tex. Occ. Code requires this change.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The comments all focus on subsection (c) of rule §884.12 but they may not have considered this subsection in conjunction with the entire rule. Subsection (a) of the rule states, in part: "each member board shall be responsible for reviewing complaints involving the standard of care, ethical guidelines, or scope of practice following a contested case before SOAH and making a recommendation to the Council regarding the final disposition." Then in subsection (c) the Council is allowed to solicit input and request assistance from a member board before entering the final order. Changing subsection (c) to a mandatory requirement, as opposed to permissive one, will only make subsection (c) redundant to the requirements of subsection (a). Therefore rule §884.12 complies with §507.306 of the Tex. Occ. Code; and for these reasons the agency declines to make the requested changes, and hereby adopts the rule with no changes.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

The Executive Council adopts these new rules pursuant to the authority found in §§507.305 and 507.306 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning informal proceedings to resolve a complaint and assistance in disciplinary proceedings.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§884.10.Investigation of Complaints.

(a) The following priority rating system shall serve to distinguish between categories of complaints. The priority rating system is as follows:

(1) cases involving a probability of imminent physical harm to the public or a member of the public;

(2) cases involving sexual misconduct;

(3) cases involving applicants for licensure; and

(4) cases involving all other violations of state or federal law.

(b) The Enforcement Division shall investigate all complaints in a timely manner. A schedule shall be established for conducting each phase of a complaint that is under the control of the Council not later than the 30th day after the date the complaint is received. The schedule shall be kept in the information file of the complaint, and all parties shall be notified of the projected time requirements for pursuing the complaint. A change in the schedule must be noted in the complaint information file, and all parties to the complaint must be notified in writing not later than the seventh day after the date the change is made.

(c) The Council may accept, but is not obligated to investigate, a complaint that lacks sufficient information to identify the source or the name of the person who filed the complaint.

(d) A complainant may explain the allegations made in the complaint by attaching or including with the complaint any evidence the complainant believes is relevant to a determination of the allegations, including written statements or communications, medical or mental health records, recordings, photographs, or other documentary evidence.

(e) A review will be conducted upon receipt of a complaint to determine if the Council has jurisdiction over the complaint, and if so, whether the complaint states an allegation which, if true, would constitute a violation of the Council's rules or other law within the jurisdiction of the Council.

(f) Complaints that do not state a violation of a law within the jurisdiction of the Council shall be dismissed. If the complaint alleges a violation of a law within the jurisdiction of another agency, the complaint will be referred to that agency as required or allowed by law.

(g) Complaints that state a violation of a law within the jurisdiction of the Council shall be investigated by an investigator assigned by the Enforcement Division.

(h) Licensees will receive written notice of any alleged complaint(s), including specific information regarding any violation(s) encountered. Notice to a licensee is effective and service is complete when sent by registered or certified mail to the licensee's address of record at the time of the mailing.

(i) Following completion of the investigation, an investigation report shall be drafted. This report shall include a recommendation as to whether the investigation has produced sufficient evidence to establish probable cause that a violation has occurred.

(j) The Enforcement Division Manager (or the manager's designee) and legal counsel shall review the investigation report to determine if there is probable cause that a violation occurred.

(k) A complaint for which the staff determines probable cause exists shall be referred for an informal conference by agency staff or a member board's Disciplinary Review Panel. Agency staff shall send the respondent notice of the date and time of the informal conference.

(l) A complaint for which staff or a Disciplinary Review Panel determines that probable cause does not exist shall be referred for dismissal.

(m) The services of a private investigator shall be retained only in the event that staff investigator positions are vacant or inadequate to provide essential investigative services. The services of a private investigative agency shall be obtained in accordance with the state's procurement procedures.

(n) If a complainant or respondent are represented by an attorney, any notice or service required by law shall be made upon the attorney at the attorney's last known address. §884.12.Complaint Disposition.

(a) The Council must approve and enter all final orders following a contested case before SOAH or where no agreement exists between the agency and the respondent regarding the disposition of a contested enforcement related matter. However, each member board shall be responsible for reviewing complaints involving the standard of care, ethical guidelines, or scope of practice following a contested case before SOAH and making a recommendation to the Council regarding the final disposition. A recommendation from a member board must include any recommended modifications to the findings of fact and conclusions of law in the PFD, as well as the recommended sanction. A proposed final order reflecting a member board's recommendations shall satisfy the requirements of this rule.

(b) The Council shall review recommendations from member boards for anti-competitive impacts, administrative consistency, and good governance concerns. The Council may not substitute its judgment in contested enforcement matters for that of a member board where, in the Council's determination, none of the aforementioned concerns are present.

(c) The Council may solicit input from and request the assistance of a member board when considering a contested enforcement matter if there are concerns about the standard of care or ethical practice shown by a licensee. The Council may specify the format of the input and assistance requested to satisfy the requirements of this rule.

(d) Each member board is authorized to dismiss complaints and approve and enter agreed final orders and informal dispositions; Council ratification is not required. The Executive Director shall report the number of dismissals and agreed orders entered under this rule at Council meetings.

(e) Disposition by the Executive Director.

(1) The Executive Director is authorized to:

(A) dismiss a complaint if the investigator and legal counsel agree that a violation did not occur or that the agency lacks jurisdiction over the complaint;

(B) dismiss a complaint recommended for dismissal by a Disciplinary Review Panel;

(C) dismiss a complaint following a contested case hearing before SOAH where the ALJ finds no violation of the law has occurred;

(D) accept the voluntary resignation of a license;

(E) offer, approve, and enter agreed orders if the disciplinary sanction imposed complies with the disciplinary guidelines and relevant schedule of sanctions; and

(F) enter an order suspending a license upon receipt of an order suspending a license issued under Chapter 232 of the Family Code. Council ratification is not required.

(2) The Executive Director shall report the number of agreed orders, dismissals, resignations, and suspensions ordered, along with a brief summary of the basis for each, to the Council and relevant member board at the next regular meeting.

(3) The Executive Director must, when offering an agreed order or resignation order prior to an informal conference, advise the respondent of the right to an informal conference and that the matter will be set for an informal conference if requested or if an informal disposition cannot be agreed upon.

(f) Any person who files a complaint will be notified of the disposition of the complaint. A person who filed a complaint that is dismissed will be notified of the dismissal by letter and the letter will reflect the legal basis or reason for the dismissal. A person who filed a complaint resulting in disciplinary action will be sent a copy of the Council's final order.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002613

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER C. DISCIPLINARY GUIDELINES AND SCHEDULE OF SANCTIONS

22 TAC §884.20, §884.21

The Texas Behavioral Health Executive Council adopts new §884.20 and §884.21, relating to disciplinary guidelines and schedule of sanctions. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2673) and will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules are the general framework regarding the Executive Council's procedures for imposing sanctions.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

The Executive Council adopts these new rules pursuant to the authority found in §507.304 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning a schedule of sanctions.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002614

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER D. DUTIES AND RESPONSIBILITIES

22 TAC §§884.30 - 884.32

The Texas Behavioral Health Executive Council adopts new §§884.30 - 884.32, relating to Duties and Responsibilities. Except for §884.30 and §884.32, the new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2676) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §884.30 and §884.32 are being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules require licensees to provide notice to the public of the complaint process, they require licensees to cooperate with Executive Council investigations, and they require licensees to report legal actions and a discipline.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

The Executive Council adopts these new rules pursuant to the authority found in §507.202 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning notice to the public of the complaint process.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§884.30.Cooperation with Council Investigations.

Licensees must cooperate with and respond to Council investigations. Failure to cooperate or respond may serve as grounds for a Council-initiated complaint and disciplinary action.

§884.32.Reportable Legal Action and Discipline.

(a) Licensees are required to report legal actions as follows:

(1) Any conviction, sentence, dispositive agreement, or order placing the licensee on community supervision or pretrial diversion, must be reported in writing to the Council within thirty days of the underlying event. A report must include the case number, court, and county where the matter is filed, together with a description of the matter being reported. A licensee shall provide copies of court documents upon request from agency staff.

(2) Any lawsuit brought by or against a licensee concerning or related to the delivery of services regulated by this agency or billing practices by the licensee. A report must include a copy of the initial pleading filed by or served upon the licensee, and must be submitted to the Council within thirty days of either filing by or service upon the licensee.

(3) Any administrative or disciplinary action initiated against a licensee by another health regulatory agency in this state or any other jurisdiction, or any agency or office within the federal government, must be reported to the Council by sending notification of the action within thirty days of the licensee receiving notice of the action. A report must include a copy of any complaint, notice of violation, or other documentation received by the licensee from the initiating entity which describes the factual basis for the action. A licensee must also supplement this report to the Council with a copy of any order, letter, or determination setting forth the final disposition of the matter within thirty days following the final disposition.

(b) A complaint shall be opened if a reported criminal action constitutes grounds for disciplinary action under applicable state or federal law. A complaint may be opened if a reported civil action constitutes grounds for disciplinary action under Council rules.

(c) Reciprocal Discipline:

(1) A complaint may be opened upon receipt of a report of discipline against a licensee by another health licensing agency in this state or any other jurisdiction.

(2) The Council may impose disciplinary action on a licensee according to its own schedule of sanctions for the conduct forming the basis of the other health licensing agency's disciplinary action.

(3) A voluntary surrender of a license in lieu of disciplinary action or during an investigation by another health licensing agency constitutes disciplinary action under this rule.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002615

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER E. LICENSE SUSPENSION

22 TAC §884.40, §884.41

The Texas Behavioral Health Executive Council adopts new §884.40 and §884.41, relating to license suspension. Except for §884.40, the new sections are adopted without changes to the proposed text as published in the April 24, 2020 issue of the Texas Register (45 TexReg 2677) and will not be republished. In response to non-substantive changes being requested by the Office of the Texas Governor, §884.40 is being changed and adopted as republished below.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules pertain to the Executive Council's proceedings to temporarily suspend a license.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§884.40.Temporary Suspension of a License.

(a) In accordance with §507.302 of the Occupations Code, a license shall be temporarily suspended when the Council or an executive committee of the Council determines that the continued practice by a licensee (respondent) would constitute a continuing and imminent threat to the public welfare.

(b) An executive committee of the Council shall convene as follows:

(1) For each temporary suspension proceeding, the Council shall appoint a three-member executive committee, called a "suspension panel," to consider the information and evidence presented by agency staff. The suspension panel must have at least one member from the same profession as the respondent and a majority of members from the respondent's member board. The suspension panel shall confer with each other and name a chair of the suspension panel.

(2) In the event of the recusal of a suspension panel member or the inability of a suspension panel member to attend a temporary suspension proceeding, the presiding officer for the Council may appoint an alternate council member to serve on the suspension panel.

(3) The suspension panel may convene in-person or via telephone, video conference, or other electronic means.

(c) Temporary Suspension Hearing. The meeting at which the suspension panel considers a temporary suspension is a temporary suspension hearing. At the temporary suspension hearing, agency staff shall present evidence and information to the suspension panel that the continued practice by a person licensed by the Council would constitute a continuing and imminent threat to the public welfare. Notice of the temporary suspension hearing shall be sent to the respondent no less than 10 days before the hearing by personal service or by registered or certified mail.

(d) Order of Temporary Suspension. If a majority of the suspension panel votes to temporarily suspend a license, the suspension shall have immediate effect, and the chair of the suspension panel will sign an Order of Temporary Suspension. The Order of Temporary Suspension shall include a factual and legal basis establishing imminent peril to the public health, safety, or welfare, as required by §2001.054(c-1) of the Government Code. The Order shall be sent to the respondent by first-class mail or email.

(e) Temporary Suspension Without Notice. In accordance with §507.302(b) of the Occupations Code, a license may be suspended without notice to the respondent if at the time of the suspension, agency staff request a hearing before SOAH to be held as soon as practicable but no later than 14 days after the date of the temporary suspension. The hearing is referred to as the "probable cause hearing."

(f) Notice, Continuance, and Waiver of Probable Cause Hearing. Agency staff shall serve notice of the probable cause hearing upon the respondent in accordance with SOAH's rules. The respondent may request a continuance or waiver of the probable cause hearing. If the ALJ grants the continuance request or the respondent waives the probable cause hearing, the suspension remains in effect until the suspension is considered by SOAH at the continued probable cause hearing or at the final hearing. If the probable cause hearing is not held within 14 days and the respondent did not request a continuance or waive the probable cause hearing, the suspended license is reinstated.

(g) Probable Cause Hearing. At the probable cause hearing, an ALJ shall determine whether there is probable cause to continue the temporary suspension of the license and issue an order on that determination.

(h) Final Hearing. The State Office of Administrative Hearings shall hold a hearing no later than 61 days from the date of the temporary suspension. At this hearing, agency staff shall present evidence supporting the continued suspension of the license and may present evidence of any additional violations related to the licensee. This hearing is referred to as the "final hearing."

(i) Notice and Continuance of Final Hearing. Agency staff shall send notice of the final hearing in accordance with SOAH's rules. The respondent may request a continuance or waive the final hearing. If a final hearing is not held within 61 days of the date of the temporary suspension and the respondent did not request a continuance or waive the final hearing, the license is reinstated.

(j) Proposal for Decision. Following the final hearing, the ALJ shall issue a PFD on the suspension. The PFD may also address any other additional violations related to the licensee.

(k) A temporary suspension takes effect immediately and shall remain in effect until:

(1) a final or superseding order of the Council is entered;

(2) the ALJ issues an order determining that there is no probable cause to continue the temporary suspension of the license; or

(3) a SOAH hearing is not timely held.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002617

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER F. SPECIAL PROVISIONS FOR PERSONS LICENSED TO PRACTICE PSYCHOLOGY

22 TAC §884.50, §884.51

The Texas Behavioral Health Executive Council adopts new §884.50 and §884.51, relating to special provisions for persons licensed to Practice Psychology. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2680). The rules will not be republished.

Reasoned Justification.

The new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules pertain to the Executive Council's proceedings for competency evaluations and remedial plans for persons licensed under Chapter 501 Tex. Occ. Code.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002618

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER G. COMPLIANCE

22 TAC §884.55

The Texas Behavioral Health Executive Council adopts new §884.55, relating to Compliance. The new section is adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2682). The rule will not be republished.

Reasoned Justification.

The new rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. This new rule pertains to the Executive Council's procedures for monitoring and ensuring compliance with Executive Council orders.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this new rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts this new rule pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

The Executive Council adopts this new rule pursuant to the authority found in §507.404 of the Tex. Occ. Code which requires the Executive Council to adopt rules regarding monitoring a license holder's compliance with Executive Council orders.

Lastly, the Executive Council adopts this new rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002620

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


SUBCHAPTER H. CONTESTED CASES

22 TAC §§884.60 - 884.63, 884.65

The Texas Behavioral Health Executive Council adopts new §§884.60 - 884.63 and 884.65, relating to Contested Cases. The new sections are adopted without changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2683) and will not be republished.

Reasoned Justification.

Overview and Explanation of the Proposed Rule. The proposed new rules are needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 2001.004 of the Tex. Gov't Code requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. These new rules pertain to the Executive Council's procedures for conducting a contested case to resolve a complaint.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

None.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

None.

Statutory Authority.

The new rules are adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts these new rules pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts these new rules pursuant to the authority found in §507.204 of the Tex. Occ. Code which requires the Executive Council to adopt rules concerning the investigation of a complaint filed with the Executive Council.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002622

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706


CHAPTER 885. FEES

22 TAC §885.1

The Texas Behavioral Health Executive Council adopts new §885.1, relating to Fees.

The new section is adopted with changes to the proposed text as published in the April 24, 2020, issue of the Texas Register (45 TexReg 2685). In response to changes being proposed in 22 Texas Administrative Code Ch. 681, where the term Licensed Professional Counselor Intern (LPC-I) is being changed to Licensed Professional Counselor Associate (LPC-A), the Council adopts the corresponding name changes in rule §885.1, as a non-substantive change, which is republished below. Additionally, other changes have been made to the adopted rule to correct errors in the previously published text.

Reasoned Justification.

The new rule is needed to implement Tex. H.B. 1501, 86th Leg., R.S. (2019). This legislation created the Texas Behavioral Health Executive Council and authorized the Executive Council to regulate marriage and family therapists, professional counselors, psychologists, and social workers. Sections 507.151 and 507.152 of the Tex. Occ. Code authorizes the Executive Council to administer and enforce Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code, as well as adopt rules as necessary to perform the Executive Council's duties and implement Chapter 507. Section 507.154 of the Tex. Occ. Code authorizes the Executive Council to set fees necessary to cover the costs of administering Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code. The new rule establishes application and renewal fees in the amount necessary to meet the contingency rider found in §18.11 of Art. IX in the General Appropriations Act for 2020-2021, see Tex. H.B. 1, 86th Leg., R.S. (2019).

List of interested groups or associations against the rule.

The Texas Counseling Association

The Texas Psychological Association

The Fort Bend Psychological Association

The Texas Association of Marriage and Family Therapists

The National Association of Social Workers - Texas Chapter

The Texas Society for Clinical Social Work

Summary of comments against the rule.

Commenters voiced their disapproval with the increase in fees, and many asked for a reduction in either the increase of the fees or a reduction in the fees previously charged. Some of the commenters believed licensing's fees were already too high and others requested that the fees stay the same. A group of licensees, psychologists, voiced their disapproval that the fees for their particular licensure application and renewals was substantially higher than others license types, some believed they were paying a disproportionate amount to fund the agency, and requested either a decrease in their fees or that all fees be the same for each license type. Some commenters voiced an opinion that an increase in fees will negatively impact businesses, while others believed businesses will be negatively impacted until the fees for all license types are the same. Some commenters also believed that having different fees for different licenses will reduce competition and put those license types with higher fees at a competitive disadvantage.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The agency must generate enough revenue to meet the contingency rider found in §18.11 of Art. IX in the General Appropriations Act for 2020-2021. Therefore, in order to meet this obligation, some of the current fees for applications and renewals must be increased.

This adopted rule will increase application fees for the following license types: Licensed Baccalaureate Social Worker (LBSW) and Licensed Master Social Worker (LMSW) applications will increase by $29; Licensed Clinical Social Worker (LCSW) applications will increase by $29; Social Worker supervisor status applications will increase by $30; initial Licensed Marriage and Family Therapist (LMFT) associate applications will increase by $29; LMFT by endorsement applications will increase by $31; LMFT supervisor status applications will increase by $30; Licensed Professional Counselor (LPC), LPC intern, and provisional license applications will increase by $31; and LPC supervisor status applications will decrease by $50.

This adopted rule will increase renewal fees for the following license types: LBSW and LMSW renewal applications will increase by $61; LMSW advanced practitioner and LCSW renewal applications will increase by $63; LMFT and LMFT associate renewal applications will increase by $11; LPC renewal applications will increase by $41; LPC supervisor status renewal applications will decrease by $50; and Licensed Specialist in School Psychology renewal applications will increase by $21. This adopted rule will create a new fee for the renewal of supervisor status for social workers which will be $50.

Those license types not listed will have no increase in application or renewal fees. For example, the application fee for psychologists may appear to have increased but the application process for licensure as a psychologist now includes the prior provisional licensure processes, so the net increase is effectively zero.

In order to equitably distribute the fees among the different license types, the agency started with the current application and renewal fees. In order to meet the legislatively mandated revenue requirement and in effort to implement the smallest possible changes to the current fee structure in place, those fees that were substantially higher than others stayed the same while those fees that were lower were increased modestly as listed above.

Several psychologists commented that by paying higher fees they were paying a disproportionate amount to fund the agency then other license types so they would be paying more and receiving the same benefits as others. This comment is not mathematically correct. According to the 2017 Sunset Commission report there are approximately 4,826 psychologists, if all renew their license under the new renewal fee of $412 it will generate approximately $1,988,312. According to the 2015 Sunset Commission report there are approximately 23,797 social workers, if all renew their license under the new renewal fee of $135 it will generate approximately $3,212,595. As a licensee group, psychologists will not be contributing a larger amount of revenue to the agency, the opposite is actually correct. Additionally, such a comment runs contrary to the intended purpose for the creation of the Executive Council, so that multiple mental health professions could come together, to pool resources, and become a more efficient regulatory body, as opposed to each licensed profession remaining siloed, having little interaction with each other.

Currently all license types are active in the Texas marketplace, and there is no current indication or data to support one license type has a competitive advantage or disadvantage over the other due to the current fee structure. The commenters have provided no empirical data or other information to support any anti-competitive effect the current fee structure has on the Texas marketplace. The commenters assume an increased fee or higher fee directly correlates to an anti-competitive effect, but psychologists have historically paid higher fees than other license types and again there is no current data to demonstrate one mental health profession has a competitive advantage or disadvantage over the other due to the current fees in place.

For these reasons the agency declines to make the requested changes, and hereby adopts the rule with no changes.

Statutory Authority.

The new rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this new rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

The Executive Council adopts this new rule pursuant to the authority found in §507.154 of the Tex. Occ. Code which authorizes the Executive Council to set fees necessary to cover the costs of administering Chapters 501, 502, 503, 505, and 507 of the Tex. Occ. Code.

Lastly, the Executive Council adopts these new rules under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§885.1.Executive Council Fees.

(a) General provisions.

(1) All fees are nonrefundable and cannot be waived except as otherwise permitted by law.

(2) Fees required to be submitted online to the Council must be paid by debit or credit card. All other fees paid to the Council must be in the form of a personal check, cashier's check, or money order.

(3) For applications and renewals the Council is required to collect fees to fund the Office of Patient Protection (OPP) in accordance with Texas Occupations Code §101.307, relating to the Health Professions Council.

(4) For applications, examinations, and renewals the Council is required to collect subscription or convenience fees to recover costs associated with processing through Texas.gov.

(5) All examination fees are to be paid to the Council's designee.

(b) The Executive Council adopts the following chart of fees:

Figure: 22 TAC §885.1(b) (.pdf)

(c) Late fees.

(1) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the Council a fee in an amount equal to one and one-half times the base renewal fee.

(2) If the person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the Council a fee in an amount equal to two times the base renewal fee.

(3) If the person's license has been expired for one year or more, the person may not renew the license; however, the person may apply for reinstatement of the license.

(d) Open Records Fees. In accordance with §552.262 of the Government Code, the Council adopts by reference the rules developed by the Office of the Attorney General in 1 TAC Part 3, Chapter 70 (relating to Cost of Copies of Public Information) for use by each governmental body in determining charges under Government Code, Chapter 552 (Public Information) Subchapter F (Charges for Providing Copies of Public Information).

(e) Military Exemption for Fees. All licensing and examination base rate fees payable to the Council are waived for the following individuals:

(1) military service members and military veterans, as those terms are defined by Chapter 55, Occupations Code, whose military service, training, or education substantially meets all licensure requirements; and

(2) military service members, military veterans, and military spouses, as those terms are defined by Chapter 55, Occupations Code, who hold a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements of this state.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 29, 2020.

TRD-202002623

Darrel D. Spinks

Executive Director

Texas Behavioral Health Executive Council

Effective date: September 1, 2020

Proposal publication date: April 24, 2020

For further information, please call: (512) 305-7706