The Texas Behavioral Health Executive Council adopts amendments to §882.23, relating to License Required to Practice. Section 882.23 is adopted with changes to the proposed text as published in the November 17, 2023, issue of the Texas Register (48 TexReg 6725) and will be republished. The changes to the adopted rule are made in response to public comments.

Reasoned Justification.

The adopted amendments clarify when an individual is conducting a professional service in Texas, which is regulated by the Executive Council. The determining factor is, if the recipient of the professional service is physically located in Texas, then the individual is conducting the regulated practice of marriage and family therapy, professional counseling, psychology, or social work in Texas.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter opined that Texas has a provider crisis and cannot meet the needs of its own citizens. The commenter believes this rule change is evidence that NGOs are completely incognizant of the reality of mental healthcare in the 21st century, and the rule change is a veiled attempt to inadvertently worsen mental healthcare disparities that will negatively impact the entire nation. The commenter believes that access to mental healthcare should be a right and not a privilege.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

A commenter opined that they believed the rule change is helpful and provides necessary clarification, especially as Telehealth becomes more prominent.

A commenter, while agreeing with the change, requested a clarification or distinction be added to this rule change. The proposed change includes an interviewee in the definition of a client. Mental health professionals, especially forensic evaluators, often meet with consultants and interview collaterals for an evaluation. While the consultants and collaterals are not the recipients of services as it relates to being the person being evaluated, they are recipients of services as it relates to being an interviewee because they receive an interview which is a service as part of an evaluation. Therefore the commenter requested clarification as to whether collateral witnesses are included in the definition of client under this rule.

Agency Response.

The Council declines to amend the rule as requested by the commenter that is against this rule. The purpose of this rule change was not to address access to mental healthcare or disparities in mental healthcare. The purpose of this rule amendment is to clarify when a professional service, that is regulated by the Council, occurs in Texas. Previously, if a provider was physically present in Texas when services were provided to a client in another jurisdiction then that could have constituted the practice of a regulated profession in Texas, thereby requiring a Texas license. The mission of the Council is to protect the people of Texas. Requiring a license for an individual providing services to clients located in another state is not part of the Council's mission. The commenter's concern that his rule change somehow impacts access to or disparities in mental healthcare in Texas is not germane to this rule change. Therefore the Council declines to amend this rule as requested.

The Council thanks the commenters for their supportive comments.

The Council agrees to amend the rule as requested by the commenter asking for additional clarity regarding whether collateral witnesses are included in the definition of client under this rule. The purpose of the rule was to clarify when an individual is conducting a regulated service in Texas, which is when the recipient of the service is physically located in Texas. As the commenter correctly pointed out, the Council included the term interviewee as part of the definition of client. The intent of the rule change was always to include any type of recipient of services in the definition of a client, whether that includes the individual being evaluated or the collateral witnesses being interviewed as part of the evaluation. Therefore the Council adopts the rule with changes to make it clear that a client does include an individual or entity interviewed, examined, or evaluated for the purpose of services (e.g. a collateral witness or collateral sources of information).

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.

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.