The Texas Behavioral Health Executive Council adopts new §681.36, relating to Client Records. Section 681.36 is adopted without changes to the proposed text as published in the March 31, 2023, issue of the Texas Register (48 TexReg 1704) and will not be republished.

Reasoned Justification.

This adopted new rule transfers the existing requirements for records from current §681.41 to this new rule.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter voicing opposition to this rule stated that subsection (c) puts unnecessary responsibility on a licensee when agencies and institutions own the client's records and thus should remain the property of the agency or institution.

Another commenter opposed this rule opining that it is unreasonable for clinicians to keep records until the client reaches 18 years and then five years after that, and the commenter would like for the requirement to change to 7 years for all clients, regardless of the age of the client. The commenter believes this requirement is too costly to comply with and the commenter cannot recall ever receiving a request for records from a family of a child five years after they had become an adult.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council declines to amend the rule as requested by the commenters. While the wording of new subsection (c) may be slightly different than current §681.41, the requirements are the same. As this subsection states, licensees are required to maintain a client's records, but if a licensee is employed with an agency or institution and this employer maintains the client's records then the licensee is not required to maintain a duplicate set of the client's records.

The requirement of subsection (b) of this rule are the same as current §681.41. On November 19, 2020, the requirements for the retention of client records were amended from a 6 year requirement to the current 7 seven years from the date of termination of services, or 5 years after the client reaches the age of majority, whichever is greater. This change was not only done with the consent of the Texas State Board of Examiners of Professional Counselors but identical changes to the retention of records rules for all the other Boards under the Executive Council were also made. This was done to standardize the retention of records rules for all licensees under the Executive Council. And this was also done to align the record retention requirements with the Executive Council's rule that governs the timeliness of complaints, §884.1. Therefore, during the period of time that a complaint can be timely filed against a licensee the licensee is required to maintain the client's records. That way a licensee will still have the relevant client records pertaining to a complaint if one is timely filed. Any changes to the records retention period in a Board's rules must take all of these factors into consideration, and at this time the Executive Council does not see the need to change this requirement.

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.