The Texas Behavioral Health Executive Council adopts new §882.37, relating to COVID-19 Vaccine Passports Prohibited. Section 882.37 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 TexReg 6500) and will not be republished.

Reasoned Justification.

The new rule is needed to implement S.B. 968, 87th Leg., R.S. (2021), which codifies new Section 161.0085 of the Health and Safety Code. This new statute requires state agencies to ensure compliance with this statute and may require compliance as a condition for licensure.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

Commenters opposed this rule because they felt it took away a licensee's right to decide how to enact their own safety protocols. Some commenters believed licensed behavioral health professionals should be allowed to act in the interest of public health by requiring patients to be vaccinated, and one commenter opined that the protocols the rule allows are vague. While other comments opposed this rule because they believe it mandates people to get a COVID vaccine.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

A commenter voice support for this rule, and recommended adding practicum and internship locations to the list of locations where vaccine passports are prohibited.

Agency Response.

This agency declines to withdraw or amend this rule. This rule does not require any person to get a COVID-19 vaccine. This rule is required by statute, Section 161.0085 of the Health and Safety Code, which was enacted by the Texas Legislature and signed into law by the Texas Governor in 2021. Section 882.37 tracks this statutory language, so even prior to the enactment of this rule licensees were required to comply with these statutory legal requirements. This rule does not prohibit licensees from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health. Such protocols are numerous and changing, as more information is developed, so it would not be inappropriate for the rule to list all such protocols. Additionally, practicum and internships typically take place during or part of a graduate degree program, as such this agency does not regulate university programs so the recommended expansion of this rule would not be legally permissible.

Statutory Authority.

The 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 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 also adopts this 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.