Texas Counseling Association
1204 San Antonio, Suite 201
Austin, TX 78701
512-472-3403 ● www.txca.org
Comments on Proposed Rules – Texas Register January 15, 2016
The Texas Counseling Association, representing more than 7,000 professional counselors across Texas,
is very pleased to submit the following comments on the proposed rule changes published in the
January 15, 2016 edition of the Texas Register. TCA appreciates the due diligence of the Rules
Committee, the Board and the staff throughout the rule revision process. We commend you for the
opportunity that the Board provides to engage the professional counseling community throughout this
process.
TCA acknowledge the efforts of the Board to clarify and streamline the rules. We support the proposed
rule changes that achieve those objectives. TCA especially supports adoption of the proposed new rule
§681.82 (c) as it will help expedite the licensure of well qualified Licensed Professional Counselors from
other states.
The balance of our comments will be on those proposed rules that TCA feels would benefit from new
language or that we feel are not necessary at all. TCA welcomes the opportunity to collaborate with the
Board to ensure that the rules governing the practice of professional counseling are reasonable and
improve access to well qualified Licensed Professional Counselors.

§681.2. (6): TCA opposes adoption of this rule. As currently written, the term “person” more
accurately describes client than the list of entities proposed in the new rules. Merriam-Webster
describes “person” as “one (as a human being, a partnership, or a corporation) that is recognized
by law as the subject of rights and duties.” The proposed language obfuscates the purpose of
defining “client” in rule.

§681.2. (12): TCA opposes adoption of this rule change to add “consultation” to the definition of
“indirect Hour.” The definition of “Consulting” in §503.003 of the Occupations Code appears to
include what could be considered direct services, especially when working with families, groups or
organizations. The purpose of the Administrative Code is to clarify statutory intent. Adoption of this
rule appears to conflict with a statutory definition and create confusion rather than clarity.
Further, this rule conflicts with numerous models (Caplan Model, Mental Health Model, Behavioral
Model) and definitions (Knoff, 1988) that recognize that use of consultation is certain
circumstances encompasses the direct delivery of service because the consultation results in better
outcomes for the client. In addition, the proposed rules could have the unintended consequence of
limiting the ability of LPCs to participate in state and federal loan repayment programs because
those programs include “consulting” as part of direct hours when the “consulting” is done to
improve outcomes for the client.

681.15 (4): TCA opposes adoption of this new rule. The Occupations Code specifically establishes
timelines for the review and approval of license applications and renewals to protect the licensees
and to increase access to services by consumers. TCA contends that this rule change conflicts with
statute (i.e., §503.304, §503.306, §503.311) and is therefore not enforceable. TCA appreciates that
increased volumes of applications impact review and time periods. It is unfair to further penalize the
LPCs and LPC-Interns who rely on timely receipt of their licenses. Timelines are rigorously enforced
for applicants. The same should hold true for the Board. When work volumes increase, additional
resources need to be allocated. The language in this section is overly vague and sets no parameters
for the length of the extension.

§681.41 (e): TCA opposes adoption of this rule change. TCA agrees that LPCs should be required to
provide clients with written documents that delineate fees, counseling goals and techniques, limits
of confidentiality, and the other information set forth in this rule. Given that not all clients seek
services voluntarily, requiring a “signed informed consent” may not be possible. Thus this proposed
rule change could have the unintentional consequence of a provider violating a rule because a client
receiving mandated services refused to sign any consent document even when the licensee provides
all the required written information to a client.

§681.41 (g): TCA opposes adoption of this rule change as proposed. As you know, on May 29, 2015,
in Teladoc, Inc., Et Al v Texas Medical Board, Et Al, the US District Court Western District Austin
Division approved a temporary injunction against the “face to face” rules promulgated by the Texas
Medical Board. The fundamental argument in the Teladoc case is that the rules will increase price,
reduce choice, reduce access, reduce innovation and reduce the overall supply of providers without
any indication that these rules will prevent harm to patients. These are the same reasons that TCA
cited in our comments opposing this rule in August 2014, October 2014 and June 2015. In addition,
the proposed rule conflicts with the Health and Human Resource Commission policy regarding
telehealth procedure as presented to the Texas House Public Health Committee on February 10,
2016. In that presentation they exclude mental health diagnosis and conditions from the
requirement that an in-person evaluation must be completed prior to delivery of telehealth services
under the state’s Medicaid program. This rule could have the unintended consequence of excluding
Licensed Professional Counselors from providing and be reimbursed for services that other mental
health professionals are authorized to deliver through the use of technology.

§681.41 (q): TCA proposes alternative language for this rule change. As stated in our opposition to
the change in rule §681.41 (e), some clients in certain settings or in certain circumstances are not
voluntarily seeking services and may therefore refuse to sign an informed consent document. We
request consideration of the following language change:
o §681.41 (q) For each client, a licensee shall keep accurate records of the signed receipt of
information required under this subchapter, informed consent, intake assessment, dates of
counseling treatment intervention, principal treatment methods, progress notes, treatment
plan, and billing information.

§681.41 (cc): TCA recommends additional rules be drafted to more clearly delineate the sections of
Texas Family Code, Chapter 107, Subchapters D, E and F to ensure that consumers, licensees,
investigators and Board members are very clear on how this new statutory language will impact
professional counselors. Specifically, we recommend the following subsections be added under
§681.41 (cc):
o (1) Any complaint relating to the outcome of a child custody evaluation or adoption
evaluation conducted by a licensee must be reported to the court that ordered the
evaluation. The Board only reviews complaints regarding forensic evaluations addressing
violation of specific Board rules.
o
o
(2) A Licensed Professional Counselor Intern shall not conduct child custody evaluations or
adoption evaluations unless qualified by another professional license to provide such
services.
(3) Disclosure of confidential information in violation of the Family Code, Sections 107.111
or 107.163 is grounds for disciplinary action by the Board.

§681.48 (c): TCA proposes alternative language for this new rule to better protect the public. We
appreciate the Board taking action to require that a licensee’s legal name be used on their license
and renewal card. Although these documents are posted in a licensee’s office, requiring that they
also be included on marketing and client resource materials better protect the public by making it
easier for clients to verify licensure prior to receiving treatment and to file complaints when
necessary. We request consideration of the following language change:
o (c) The legal name of the licensee shall appear on the license certificate and renewal card.
Licensees shall include their license number on all marketing and client resource materials if
they do not use their legal name in their practice.

§681.143 (2): TCA opposes adoption of this rule change. TCA appreciates the time and dedication
that professional board members volunteer through their service on committees on the Board and
the knowledge that they garner from this experience. At the same time, it is essential that the Board
be current on emerging trends, new research and best practices in the counseling profession which
would require participation in professional development activities outside committee meetings of
the board. As written, this rule change does not put a cap on the number of hours that can be
earned by a member of the Board nor does it define which committee meetings would qualify for
continuing education credit.

§681.161 (e): TCA opposes adoption of this rule change. Client records include confidential
information that may not be relevant to the complaint. Review of the entire record places the board
at risk for non-compliance with HIPPA rules and potentially endangers clients or licensees when
confidential information is discussed in open meetings. TCA sees no benefit to protecting the public
by enacting this change.
Thank you very much for your consideration of our comments. We are available to provide clarification
or additional information.
B.J. Barksdale
TCA President, 2015-2016