The Texas Behavioral Health Executive Council adopts amendments to §681.93, relating to Supervisor Requirements. Section 681.93 is adopted without changes to the proposed text as published in the October 1, 2021, issue of the Texas Register (46 TexReg 6483) and will not be republished.

Reasoned Justification.

The Council is no longer mailing renewal permits; verification of licensure status is done online. The amended rule will reduce regulatory burden by allowing the supervisor to print and keep a copy of the online license verification in lieu of a wall certificate. Additionally, the amended rule requires a supervisor to keep a written record acknowledging the supervisee is self-employed, if applicable. And the amended rule clarifies the liability assumed for a supervisee by a supervisor; both are responsible for the professional counseling activities of an LPC-Associate but an LPC-S may be subject to disciplinary action for violations that relate only to the professional practice of counseling committed by the LPC-Associate which the LPC-S knew about or due to the oversight nature of the supervisory relationship should have known about.

List of interested groups or associations against the rule.

American Dance Therapy Association

Christian Counselors of Texas, Inc.

Summary of comments against the rule.

Some commenters believe the quality of care that will be provided by some LPC-Associates will suffer because allowing them to manage and learn how to run a business while also becoming sound grounded clinicians will require a large learning curve. Commenters also believe allowing an LPC-Associate to control their notes limits a supervisor's access to them and can limit their support. Many commenters believe that LPC-Associates should be focused on client work and not on running a business, therefore they believe it could cause harm to the public. Other commenters oppose this rule change because LPC-Associates may have graduated with degrees that do not include courses on business, accounting, or HIPAA compliance, and therefore lack the requisite knowledge to run a business. A commenter believes that not all LMFT-Associates are appropriately marketing their services and this may happen with LPC-Associates - which has many more licensees. Commenters opined that the rule changes do not allow for enough oversight, that supervisors will not have adequate power to meet their responsibilities and liabilities - especially if the supervisor does not maintain and control the client's records. Some commenters believe these rules remove the support of a team and site manager, placing all responsibility on a supervisor, and that owning a practice or business is a privilege and not a right. A commenter believes there is not parity between LMFT-Associates and LPC-Associates because the commenter opines that LMFT-Associates have more coursework and internship requirements. Some commenters believe that only one hour of supervision a week for an LPC-Associate will not be enough given these rule changes. Commenters believe these rule changes will result in more litigation and an increase of complaints filed with the Council, as well as an increased workload for the supervisors and possibly a decrease in the amount of supervisors. One commenter believes the failure rate of LPC-Associates' businesses will cause harm to clients. Other commenters believe LPC-Associates that own their own business may misrepresent the fact that they are under supervision so the public may be misled. A commenter suggested that if an LPC-Associate feels put upon by the supervisor then the cure for a bad supervisory relationship is for LPC-Associate to freely choose another supervisor. Some commenters believe the current system of supervision is working and they do not see the need for change. Some commenters opined that these rules may impact client access to lower cost counseling services because the commenters posit that LPC-Associates will likely charge higher rates under these new rules, and part of the commenters' practice is having LPC-Associates with lower rates which they believe better serves the community. Additionally, some commenters believe this may cause there to be competition between LPC-Associates and LPC-Supervisors. One commenter believes the term self-employed is confusing and it suggests an independent practice. Another commenter opined that the rule change will cause public confusion regarding the distinction between LPC-Associates and supervisors, and the public will think ownership of a business as the functional equivalent of independent practice. Two commenters were unsure as to who would be the direct employee in the supervision arrangement, should there be a sharing of profits, who would be responsible for billing and accepting payment, do insurance payors agree with these changes, and do these changes apply to other Boards? A commenter voiced a word of caution to supervisors, associates, and students that if the proposed changes become law to consider your choices carefully to determine what type of supervisory relationship should be entered into because it will demand and deserve a full investment of time, attention, and energy.

List of interested groups or associations for the rule.

Texas Counseling Association

Summary of comments for the rule.

Commenters voiced their support for these rule changes, related to LPC-Associates, and opined that it will be beneficial for LPC-Associates as well as clients. Some also believe this rule change will open up new opportunities for rural residents to receive quality counseling services by attracting or retaining more licensees to those communities. Many commenters believe these changes will create greater parity between the other licensed mental health professions. Other commenters believe the changes will encourage greater financial freedom and stability for LPC-Associates, while decreasing possible financial exploitation and allowing for additional learning experience. One commenter in support of this changes also asked if the 3,000 hours could be reconsidered and shortened. Another commenter in favor of the change, was concerned that supervisor will have to advise LPC-Associates on business structure, employment law, and other decisions which may be outside of their scop of practice which could lead to future issues. A commenter voiced support for these changes but request some clarification to correct a possible typographic error and require additional contact information for the supervisor to be disclosed by the supervisee. One commenter in favor of the rule changes also recommended changes to the LPC licensing rules to match more closely with the LMFT licensing requirements, to create greater parity between the LPC and LMFT associate licenses and their requirements for full licensure. A commenter opined that these rules changes have no foreseeable adverse economic effect on small businesses.

Agency Response.

This agency appreciates the supportive comments, and declines to make changes to the rule as requested except to correct a typographical error in the proposed version of §681.91(m). The proposed amendment to subsection (m) inadvertently struck through the word "including" and the Council is adopting the rule with this change to correct this typographical error.

Under these rule amendments LPC-Associates are still prohibited from conducting the practice of professional counseling without the supervision of an LPC-Supervisor. LPC-Associates are still prohibited from representing themselves as independent practitioners, and LPC-Associates are still required to indicate the name of their supervisor when representing themselves professionally. LPC-Associates are still prohibited from employing their supervisor, but the LPC-Associate may compensate the supervisor (e.g. contract for supervision) if the supervision is not a part of the supervisor's responsibilities as a paid employee of an agency, institution, clinic, or other business entity. LPC-Associates and LPC-Supervisors are free to enter into any type of supervision agreement so long as it does not conflict with any applicable law. What these rule amendments do is allow for an LPC-Associate to create and run their own business and then contract for the required supervision with a willing LPC-Supervisor. If a supervisor does not want to enter into such an arrangement then they are not required to do so; for example, supervisors can choose to only offer supervision to direct employees if they so choose. The Council finds that any alleged harm to the public, clients, or licensees that the commenters allege these rule changes will cause are purely speculative, and there is no evidence to suggest the misconduct or harm described in the comments will in fact occur because of these rule changes. LPC-Supervisors are required to provide supervision as it relates to the practice of professional counseling by the LPC-Associate, if a matter is outside of this scope a supervisor would not be subject to a disciplinary action by the Council. For example, if an LPC-Associate decides to create a legal entity, such as a limited liability company, in Texas but fails to timely or properly file a required form or fee with Texas Comptroller of Public Accounts, the Texas Workforce Commission, or any other applicable government agency, then the LPC-Supervisor would not be subject to disciplinary action by the Council for this failure by the LPC-Associate. Rule 681.92(e) requires a minimum of four hours of supervision per month for an LPC-Associate, but this is only the minimum standard - supervisors can provide or require more than this minimum standard if a supervisor finds more supervision is necessary for a particular LPC-Associate. Rule 681.41(s) currently states that if records are created by a licensee during the scope of employment by an agency or institution (e.g. hospital) then the licensee does not have to maintain the records because the hospital should have them. Part of the reasoning behind this rule is that clients will naturally return to a hospital to request a copy of their records and not seek out each provider they received services from during their hospital stay. A similar reason exits for clarifying in these rules that if an LPC-Associate is self employed (e.g. creates their own business) then the client will naturally return to the business where they received services to request a copy of their records. Therefore, in such a situation, a supervisor would not be required to maintain the client's records but the supervisor can and should inspect the records created and maintained by the LPC-Associate. If an LPC-Associate is not property creating and maintaining client records then, per §681.93(e), a supervisor should develop and implement a written plan for remediation of the LPC-Associate. If an LPC-Associate refuses to provide the supervisor access to such records then the supervisor can terminate the supervisory relationship.

The 3,000 hours of supervised experience needed for licensure is required by statute, see §503.302(a)(4) of the Occupations Code, therefore this agency declines to reconsider this requirement or shorten it. The Council declines to amend the licensing requirements for an LPC or LPC-Associate, the Texas State Board of Examiners of Professional Counselors has not articulated a need to amend the licensure requirements because of these rule amendments.

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.

In accordance with §503.2015 of the Tex. Occ. Code the Texas State Board of Examiners of Professional Counselors previously voted and, by a majority, approved to propose the adoption this rule to the Executive Council. The rule is specifically authorized by §503.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this rule in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Texas Occupations Code and may adopt this rule.

Lastly, 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.