The Texas Behavioral Health Executive Council adopts new §681.140, relating to Requirements for Continuing Education. Section 681.140 is adopted without changes to the proposed text as published in the December 16, 2022, issue of the Texas Register (47 TexReg 8226) and will not be republished.

Reasoned Justification.

This adopted new rule consolidates all the continuing education requirements contained in multiple rules into this single rule. Additionally, this rule adds and changes some of the requirements for each renewal cycle. For example, LPCs will now be required to complete three hours of cultural diversity or competency; licensees with supervisor status will be required to complete six hours in supervision, but these hours will count towards the minimum required hours instead of in addition to the required hours; licensees may carry up to 10 unclaimed continuing education hours of from one renewal period to the next; and lastly licensees can now claim up to one hour of self-study continuing education credit.

The Executive Council had previously received public comments both in support and in opposition to subsection (f), which requires licensees to obtain at least fifty percent of their continuing education hours from one of the providers listed in subsection (f). The requirements of subsection (f) are intended to make sure that at least some of the continuing education that licensees receive is from sources that have a level of organization and oversight available to ensure the quality of the coursework provided. This requirement will alleviate the risk that licensees receive all of their continuing education from one individual or single source provider that has never been reviewed, edited, or vetted by any other individual or organization. Many of the comments in opposition to subsection (f) request that the Executive Council include other groups of individuals or entities to this list. The Executive Council believes the currently adopted list is sufficient and declines to include an exhaustive list of every individual or entity that may be worthy of inclusion because, as the Texas Court of Civil Appeals for Texarkana concluded in Marrs v. Matthews, 270 S.W. 586, at 588 (Tex. Civ. App.-Texarkana 1925, writ ref'd) :

Different minds might reach different conclusions as to what qualities of character should render one unworthy to hold a certificate to teach. But there can be no difference of opinion about the fact that an unworthy person should not be permitted to teach in the public schools. What qualities, or lack of qualities, should render one unworthy would be difficult for legislative enumeration. They are so numerous, and their combinations so varied in different individuals, that a statute which undertakes to be more specific would either be incomplete, or so inflexible as to defeat the ends sought. In the very nature of the subject there must be lodged somewhere a personal discretion for determining who are the "unworthy."

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter voiced opposition to the rule because the commenter believed the requirement that fifty percent of a licensee's continuing education hours must come from a provider listed in subsection (f) will make it more costly for licensees to earn the required hours during their renewal period.

A commenter voiced opposition to the rule because the commenter opined that the new rule was overly complicated and restrictive, which will create new ways for licensees to be in violation. The commenter disagrees with the inclusion of licensees with supervisor status to subsection (f), because the commenter believes taking a 40 hour supervisory course is not sufficient to teach continuing education. The commenter is opposed to the inclusion of the 3 required hours of cultural diversity or competency because the commenter believes this requirement is unnecessary and fulfills some type of political agenda of activists trying to assert their values on the profession. The commenter does not believe these rule changes will fix any problems.

List of interested groups or associations for the rule.

Texas Counseling Association

Texas Medical Association

Summary of comments for the rule.

Several commenters voiced their support for this new rule.

One commenter voiced support for the addition of cultural competency requirements but asked to clarify whether the human trafficking course moving forward would be optional or mandatory for the renewal of a license.

A commenter voiced support for this rule stating that it will help protect the public and allow flexibility for licensees.

A commenter voiced support for the inclusion of the 3 required hours of cultural diversity or competency, but the commenter believes the requirement that fifty percent of continuing education come from providers listed in subsection (f) may be difficult to manage and the commenter requested this requirement be reduced to twenty-five percent.

A commenter voiced support for this rule change, the commenter believes this rule change aligns with the mission of the Texas State Board of Examiners of Professional Counselors, which the commenter states is to protect the protect the people of Texas by ensuring professional counselors are qualified and competent practitioners. Further, the commenter believes that the rule ensures that continuing education programs for all licensees reflect the needs of our diverse communities, impart the best and most current research and practices across the counseling profession, are accessible through an array of delivery options, and that LPC-Supervisors are well trained. The commenter opined that subsection (f) is intended to ensure that at least some of the continuing education that licensees receive is from sources that have a level of organization and oversight to monitor and maintain the quality of the coursework provided. And the expanded list of activities in subsection (h) provides a broad array of opportunities to earn continuing education hours and ensures that no single entity will have a monopoly on continuing education programs. Lastly, the commenter appreciated that the rule allows for continuing education credit for passage of the jurisprudence examination, but the commenter requested that the rule mandate passage of this exam for the renewal of a license.

One commenter supports the rule amendments but requests a citation to Chapter 503 of the Occupations Code be added to this rule. This commenter opines that the addition of this citation will direct readers to the underlying authority, which will aid continuing education providers and licensees in developing and selecting courses that will meet approval.

Agency Response.

The Executive Council appreciates the supportive comments and declines to amend the rule as requested by some of the commenters.

The Executive Council does not believe that subsection (f) will cause an increase in costs to licensees as suggested by some commenters. Subsection (f) does not require all continuing education obtained by a licensee to come from a provider listed in this subsection, it only requires fifty percent. The Executive Council has crafted the proposed provisions in a manner that balances the promotion of quality coursework through oversight with the preservation of flexibility for licensees to take and offer a wide range of continuing education courses. Many, if not most, licensees are already taking courses that comply with subsection (f). Therefore, it is believed that subsection (f) will have little to no impact on the costs of continuing education.

The inclusion of licensees with supervisor status in subsection (f) is consistent with the purposes behind this rule, as well as the purpose a licensee with supervisor status serves. Contrary to the commenter's assertion, to achieve supervisor status a licensee must do more than just take a 40 hour supervisory course. Additionally, supervisors are those licensees that are authorized to and capable of educating, teaching, and training associate licensees during their required 3,000 hours of supervised experience, so a supervisor should also be capable of presenting a continuing education course. Additionally, the inclusion of the 3 required hours of cultural diversity or competency does not advance any specific political, social, or activist agenda. Subsection (d) provides a non-exhaustive list of acceptable cultural diversity or competency hours, which include, but are not limited to continuing education regarding age, disability, ethnicity, gender, gender identity, language, national origin, race, religion, culture, sexual orientation, and socio-economic status. Subsection (d) does not require licensees take specific cultural diversity or competency courses, it only requires that they take some continuing education hours, of their choosing, that relate to cultural diversity or competency.

Section 116.003 of the Occupations Code requires that in order to renew a licensee issued by the Executive Council an individual must complete a required training course on human trafficking prevention. This rule makes it clear that licensees will receive continuing education credit when they complete this required course.

The Executive Council declines to reduce the requirements of subsection (f) from fifty percent to twenty-five percent because, as discussed above, it is believed that many, if not most, licensees are already taking courses that comply with subsection (f). Additionally, subsection (a)(2) will now allow a licensee to carry forward up to 10 hours to the next renewal period if those hours were not needed for renewal, so the Executive Council believes this will also help reduce the burden on licensees to comply with this rule, specifically subsection (f). And lastly, subsection (k) makes the effective date of the requirements of subsection (f) January 1, 2024, so licensees should have plenty of time to adjust and comply with this new requirement.

An amendment to this rule to require passage of the jurisprudence examination is not needed because subsection (b)(2) of the adopted rule requires that all licensees must successfully complete the jurisprudence examination each renewal period.

Section 681.1 states the purpose for the Texas State Board of Examiners of Professional Counselors' rules, which is to implement the provisions of Chapter 503 of the Occupations Code, the Licensed Professional Counselor Act. Additionally, §681.2(2) defines the term "Act" as the Licensed Professional Counselor Act, Chapter 503 of the Occupations Code; and this term is used throughout the Board's rules. With there already being references to Chapter 503 in the Board's rules, the Executive Council finds there is not a need to provide additional citations or references to the samestatutory authority.

These adopted rule amendments are consistent with state policy, therefore the Executive Council adopts this rule without any changes.

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.