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.