The Texas Behavioral Health Executive Council adopts new §681.37, relating to Billing and Financial Arrangements. Section 681.37 is adopted with changes to the proposed text as published in the March 31, 2023, issue of the Texas Register (48 TexReg 1706) and will be republished. The adopted changes make grammatical and technical corrections to subsection (a)(3) and (5) but substantially does not change the rule.

Reasoned Justification.

This adopted new rule transfers the existing requirements for billing and financial arrangements 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 opined that this rule appears to prohibit licensees from advertising on websites or in trade publications when it actually prohibits illegal quid-pro-quo referrals or kickbacks, the commenter feels subsection (b) is confusing and should be reworded.

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 commenter. The language in subsection (b) is taken from current §681.41, and this language was taken from §503.401(a)(4) of the Occupations Code. This statute and rule does not prohibit licensees from advertising, but the wording of the rule was specifically chosen in an effort to correlate this rule with the statutory language, so the Executive Council does not see a need to change this language at this time.

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.