The Texas Behavioral Health Executive Council adopts new §681.35, relating to Informed Consent. Section 681.35 is adopted without changes to the proposed text as published in the March 31, 2023, issue of the Texas Register (48 TexReg 1703) and will not be republished.

Reasoned Justification.

This adopted new rule transfers the existing requirements for informed consent from current §681.41 to this new rule, and it adds new language in subsection (d). Subsection (d) is intended to create a standard by which informed consent can be provided by licensees to clients while licensees are employed by agencies or institutions, where obtaining signed documentation may not be possible or easily accomplished. The adopted new rule requires the same level of notice and public protection that is currently required, while also creating a regulation that is not overly burdensome or impossible to comply with for licensees.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter voiced opposition to this rule because the commenter opined that it was confusing. The commenter's questions centered around the new language in subsection (d), wondering if the written documentation required by this subsection must be made in a session note and whether it needs to be signed by the recipient of services. Further the commenter questioned whether this rule would allow a licensee to provide services to a minor child without a signed informed consent.

Another commenter disagreed with this rule because the commenter felt the rule creates an informed consent that will be multiple pages in length, that the added information is easily provided via public display in an office, and a counselor is not often certain which techniques could be used in the course of treating a client so when new or different techniques or treatments are used it will require additional informed consent which will in turn lead to larger storage requirements.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

A commenter, agreeing with the rule, questioned whether the rule waives the specific informed consent requirement for LPCs and LPC Associates, such as a licensee working at an inpatient medical facility that has a general medical consent but not a counseling specific informed consent.

A commenter agreed with the rule change but felt that subsection (c), regarding the need to obtain the appropriate documentation of legal authority for a parent or guardian to consent the services of a minor child, was either duplicative or insufficient. Additionally, the commenter felt subsection (d) sets up an unintended conflict when a client lacks the capacity to provide consent.

Agency Response.

The Executive Council declines to amend the rule as requested by the commenters. The requirements listed in subsections (a) through (c) of this rule are identical to those that are contained in current §681.41. Subsection (d) contains the only new rule language, and this language requires licensees to provide the same notice to clients as a typical signed informed consent. The only difference is if a licensee is employed by an agency or institution the signature of the client is not required but a licensee is still required to document that all the same required elements of an informed consent were provided to the client and the client consented.

The rule does not specify where such documentation must be entered so long as it is maintained in the client's records. This new rule language does not modify who has legal authority to provide consent for services, a minor child still lacks the legal authority to provide consent for services so a legally authorized individual, such as a parent or guardian, is still required to provide consent.

The elements required to be in an informed consent have not changed, so the commenter's assertion that this rule will lengthen the requirements is inaccurate. One of the purposes of this rule is to ensure that a client is given sufficient notice of the agreement being entered into between the licensee and client, e.g., counseling purposes, goals, and techniques; payment arrangements; and the limits on confidentiality. If a licensee makes a material change to this agreement then an updated informed consent regarding the changes is required under the current rules and will continue to be required under this new rule.

This new rule does not waive the informed consent requirements for any LPCs and LPC-Associates, it only waives the requirement for the client's signature on an informed consent when a licensee is employed by an agency or institution.

Subsection (c) of this new rule contains the same language in current §681.41, and the Council does not find the language in subsection (c) to be unclear. Subsection (c) unambiguously states that if a licensee is providing services to a minor client that is named in a custody agreement or court order, then the licensee must obtain, review, and abide by the custody agreement or court order, as well as any applicable part of a divorce decree. Additionally, new subsection (d) does not modify the requirement that an individual must first have the legal authority to consent for service, so the Council does not see any unintended conflict caused by this subsection.

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.