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.