From: Phillip Crum, PracticeMentors.us-Owner
To: LPC Board Members

Phillip's Written Submission-LPC Board Meeting 9-9-22

I would like to offer a recap of my 5 main objections to the CE Rules Change proposal, then offer several, practical solutions.

1. This proposal fixes no problems, but it does create some.

According to BHEC's own quarterly report, I see NO complaints against ce providers at all for the past year. That means this entire effort is a solution looking for a problem to fix. Or, a group with an agenda is looking to put their social construct in place.

2. Duty to Assess Proposal Impact on Small Business

The approval process for this proposal has also spotlighted some check-points in the BHEC approval protocol that are not being adhered to.

The President of the TCA was incorrect when she spoke at the BHEC Meeting and said the Council has no obligation to consider the impact of proposed rules on small business. (In fact, we'd love to debate the point in a podcast episode. Give us a call.)

According to the Texas Administrative Code, Title 22, Part 41, Chapter 881, SubChapter B, Rule 881.20 (i)(5), The Council shall consider each of the following factors when reviewing a draft rule submitted by a member board:

including:

(5) Whether the proposed rule would significantly reduce market participation or competition in the state and, if so, whether the reduction would be more harmful to the public than the harm that might result from the absence of the proposed rule;

So, The Council does, indeed have an obligation to assess impact of proposed rules on small business. One can make the case that unnecessarily restricting (See #1 above) a counselor's access to her preferred CEU's limits her practice growth and adversely affects Joe Citizen. All the Board has to do now is quantify that potential harm as the burden of proof is on the Board.

Also,

According to the Government Code, TITLE 10. General Government, Subtitle A. Administrative Procedure and Practice, Chapter 2001. Administrative Procedure, Subchapter A. General Provisions

Sec. 2001.024.  Content of Notice 

(a)  The notice of a proposed rule must include:

(5)  a note about public benefits and costs showing the name and title of the officer or employee responsible for preparing or approving the note and stating for each year of the first five years that the rule will be in effect:

(A)  the public benefits expected as a result of adoption of the proposed rule;  and

(B)  the probable economic cost to persons required to comply with the rule;

Was this document created and included? If not, the Board (apparently) needs to produce that document before re-submitting this proposal to The Council.

And,

Sec. 2006.002.  Adoption of Rules With Adverse Economic Effect. 

(a)  A state agency considering adoption of a rule that would have an adverse economic effect on small businesses, micro-businesses, or rural communities shall reduce that effect if doing so is legal and feasible considering the purpose of the statute under which the rule is to be adopted.

(c)  Before adopting a rule that may have an adverse economic effect on small businesses or rural communities, as applicable, a state agency shall prepare:

(1)  an economic impact statement that estimates the number of small businesses or rural communities subject to the proposed rule, projects the economic impact of the rule on small businesses or rural communities, and describes alternative methods of achieving the purpose of the proposed rule; and

(2)  a regulatory flexibility analysis that includes the agency's consideration of alternative methods of achieving the purpose of the proposed rule.

(c-1) The state agency must include in the analysis several proposed methods of reducing the adverse impact of a proposed rule on a small business or rural community.

(d)  The agency shall include the economic impact statement and regulatory flexibility analysis as part of the notice of the proposed rule that the agency files with the secretary of state for publication in the Texas Register.

In other words, The Council has a duty to make sure any proposed rules do not adversely impact small business and a duty to mitigate that impact prior to any approval. Has an Economic Impact Statement and Regulatory Flexibility Analysis been completed? If not, you are statutorily required to do so before re-submitting the proposal to The Council.

Failure to produce these required reports casts further doubt as to whether or not the complete checklist outlined in 881.20 (i)(1)-(6) has been addressed and completed.

3. The Approved Provider List

Was something broken with the available ce market that needed to be addressed? (See #1.) Is the number of complaints from Joe Citizen related to the quality of counselor training up? (No, the number of complaints overall is down.) So, where's the logic behind implementing change where no change is needed, if there's no problem to address?

4. The 50% Rule

Whatever this rule's original purpose was, that problem does not exist in the LPC marketplace in 2022 (See #1, again) which negates any overt need for this rule.

5. The MultiCultural/Diversity Requirement

The multi-cultural band-wagon has been hijacked by the "diversity crowd" and is being used to promote and normalize conditions which our society has heretofore viewed as mental illness.

That group of people who do not subscribe to that way of thinking do not want an ideology which runs counter to our moral values forced upon us.

That group of people who do subscribe to this way of thinking will voluntarily take this type of offering and that is their right to do so. So why does this need to be a required course?

Where Do We Go From Here? Solution Options

1. Simply refuse to pass the proposal in its entirety.

Nothing requires the passage of this thing in any form at all.

2. Table it for a year.

Why not? Two other boards have passed it so let's wait and see what happens to them before we jump into the same crocodile infested waters. Their experiences will then tell you what needs to be done. What's the hurry?

3. Add a 7th category to the Approved Provider List

That category would be, "Independent Stakeholders", defined as “any licensed counselor offering ce courses for credit that does not have any affiliation with, or desire to affiliate with, any entity on the Approved Provider List”. Simply adding "Supervisors" to the A/P list is inadequate.

4. Delete the 3-Hr Multi-Cultural/Diversity Requirement

Those courses will still be offered by someone and those that subscribe to that worldview may freely take them, then no one is forced to take the course. Everybody wins.

5. Resubmit to the BHEC Council

If the proposal is to be resubmitted to The Council, make sure those various and required small-business impact statements listed above are created and presented with the re-submission.

Phillip Crum
PracticeMentors.us-Owner
pcrum@practicementors.us
469-536-2347

Plan Smart. Be Safe. Serve Others.

Kathleen Mills, LPC-S, CEAP