An Insider’s Guide to Licensing with the Texas Behavioral Health Executive Council

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome back to another episode of Know your Regulator, the podcast that inspires you to engage. I am your host, simone Murphy, and co-hosting with me today is Melissa Hooper. Hey, melissa.

Speaker 2: 0:24

Hey Simone, I’m super excited for this podcast.

Speaker 1: 0:28

Me too. We are diving into the Texas Behavioral Health Executive Council, or often referred to as BHEC, which oversees licensing and enforcement for psychologists, social workers, marriage and family therapists and professional counselors. Social workers, marriage and family therapists and professional counselors and who better to help us break it all down than Daryl Spinks, bhec’s Executive Director? Daryl, thanks for joining us.

Speaker 3: 0:54

Well, thank you both for having me. I appreciate it. It’s a pleasure to be here and present to you all today, and to your audience.

Speaker 1: 1:01

Thank you. Thank you For those who may not be familiar, bhec plays a key role in licensing and enforcement for behavioral health professionals in Texas. We’re going to talk about what BHEC does, common licensing issues and what happens if a complaint is filed. So let’s get started. Daryl, we’ll start with the basics. Can you give us a quick overview of BHEC and its purpose?

Speaker 3: 1:25

Sure, bhec is a relatively new agency in terms of the state agencies that are out there. There’s probably close to 200 state agencies in Texas, and we are one of the newest, if not the newest, state agency. We are the product of back-to-back sunset reviews, which I don’t know of any other agency that can say that If you don’t know what sunset is, it’s. Every agency has a built-in death clock in their enabling legislation that says if the legislature doesn’t extend them or continue them, they automatically go away by operation of law. So the psychology board, the counseling board, marriage and family therapy and social work boards were all subject to sunset review in 2017. Marriage and family therapy and social work boards were all subject to sunset review in 2017.

Speaker 3: 2:10

Well, that review went on. It went through the normal processes, but instead of actually being continued, then, due to some procedural maneuvering on the House floor one evening, our sunset bills failed and so we actually had to come back the next session, or we actually had to be extended in a special session that Governor Abbott called, and then the next session, they actually continued the agencies and created BHEC, and BHEC was created really for very two simple reasons. One is to correct some administrative inefficiencies that were taking place for those boards that were housed at the Health and Human Services Commission, hhsc, and that was the LPC, marriage and Family Therapy and Social Work boards. The psychology board, for which I was the executive director at the time, was a true standalone agency. It wasn’t attached to any other agency. So BHEC was created to cure those inefficiencies at HHSC. But it was also created to cure a situation that had come down from the US Supreme Court, that said, state agencies whose boards are made up of a controlling number of market participants must have active state supervision.

Speaker 3: 3:14

I won’t bore your listeners with what all that means because I can wax on for hours about that. That’s my forte. But basically what it means is, in order for us to maintain sovereign immunity from federal antitrust law, we have to have nonpartisan or nonparticipants in the profession kind of control the decision making on regulatory decisions. And it keeps keeps you from having kind of a thin blue line mentality of the profession policing itself. You’ve got outsiders actually policing the profession and that’s what BHEC is designed to do. It’s a public majority council, so five out of the four council members are actually members of the public and they help make the decisions on how these professions are regulated.

Speaker 2: 4:00

That’s awesome. I appreciate you sharing some of that In addition to those that you just mentioned. How else would you say BHEC differs from other Texas regulatory agencies?

Speaker 3: 4:13

Yeah, we’re quite a bit different from most other agencies. I would say a lot of agencies share a lot of similarities in the rulemaking process and kind of overall structure. Rulemaking process and kind of overall structure you know you have a governing board that’s made up of gubernatorial appointees who are confirmed by the Senate. That’s true with BHEC and all of its member boards. But here’s where we differ. So BHEC is the umbrella agency and all those four boards that underwent Sunset Review that I talked about, they still exist and they are still tasked with certain key functions that I’ll go into here in just a little bit. But BHEC is actually the agency that does the rulemaking. It’s the one that is actually responsible for managing the budget, the personnel, all the administrative day-to-day stuff that an agency has to do. All of that is tasked or charged to BHEC, not those member boards anymore. Now here’s where BHEC really differs Most other agencies. That board also makes the decisions about how to regulate the profession.

Speaker 3: 5:12

Bhec does not in a similar manner. So let’s just take, for example, psychology. If psychologists wanted to change the number of continuing education hours that they are required to have on a per renewal cycle, bhec could not just on its own say, we don’t think 40 is enough, we think it needs to be up to 60. By statute, each of the member. If you’re going to propose a change in the rules or regulations that govern a profession, and those rules or regs address scope of practice, standard of care, continuing education, the schedule of sanctions, those types of rule changes have to take place first at the member board level and then, if the member board approves of them, then they go on up to the council where the council does an anti-competitive analysis and the statutory analysis and what we call a good governance analysis. None of that takes place at any agency other than BHEC. We’re the only one that does that kind of an analysis and that’s part of that active state supervision.

Speaker 3: 6:15

So you’ve got the member boards, who are made up of controlling number of market participants, and then you’ve got BHEC kind of grading their homework, so to speak. So that’s the big difference there, bhec kind of grading their homework, so to speak. So that’s the big difference there. Now BHEC does rulemaking for everything else you know licensing, process, enforcement. They set up all the processes.

Speaker 3: 6:37

If you had a gripe about a process at BHEC, you would go to the council If you have a gripe about the licensing standards or the schedule of sanctions, then you go to the member board first and then, if they see fit, they float that idea or that change up to the council. That then kind of grades their homework. So it almost works like an appellate court. In that instance it’s a very. When you first see it it’s not I would almost say it’s not an intuitive process, but it is what I call kind of the grand bargain, which was a compromise struck between the professions and the Sunset Advisory Commission when BHEC was created. You know they had everybody. There were problems, everybody acknowledged they had to fix it. But the boards didn’t want to give up too much autonomy in governing these professions. So BHEC was the resulting compromise.

Speaker 1: 7:21

That is really, really interesting and I’m really glad that you shared that with our viewers because, gosh, I don’t know how many people, even licensed professionals, would know about that, and I think that’s really an important piece to know about how their governing agency functions. Sort of on that same you know wavelength for these licensed professionals that are governed by BHEC. Why is it so important to be familiar with the rules and the processes?

Speaker 3: 7:52

Well, you know all of the professions that we regulate. They are I know this sounds repetitive, but they are professions. So our licensees are all professionals. Now, being a professional, I mean unfortunately I don’t know how to say unfortunately or fortunately, I’m not sure what the correct terminology is here but if you’re going to be a professional, it’s about more than just knowing the substance of what it is that you’re practicing. So, for me, I’m an attorney. So being a professional it’s more than just about knowing the law, the rules of procedure, the rules of evidence.

Speaker 3: 8:32

I also need to know what the regulations are that govern me as an attorney, what I can and can’t do in my client relationships, my billing relationships. So it’s actually it is critical for professionals under BHEC to know not only the science, the evidence-based practices that they need to use when delivering mental and behavioral health services to the, to the everybody outside my windows here, but it’s also critically important that they know well what are the rules governing that, what can I, can and can’t I do in my relationships? Can I hire a patient or a client in a, in a side business that I have, you know? Can I have what’s? What’s appropriate in terms of texting, what’s appropriate in terms of billing arrangements and how do I deal with insurance and all of that. So you have to know all that as part of being a professional and and I mean it’s just one of those things that, whether you like it or not, it’s one of those things that you kind of give up as a professional. You’re no longer free range if you will. It’s not the Wild West anymore.

Speaker 3: 9:27

If you’re going to be a professional, there are going to have to be codes of conduct and just rules that you have to follow. That’s what sets you apart from being an unregulated occupation or field. So that’s why it’s really important and it’s really important to understand that we don’t propose and adopt rules just willy-nilly. We’re not out there just making the law. You know, yeehaw, here we go, let’s make a rule. There’s always a very good reason for why we have done something. You may not agree with the reason, but I can assure you there is a reason behind whatever the law is that’s governing your conduct as a professional. So it’s critically important that you know it. It’s better if it’s good, if you understand the rationale behind it, but at a minimum, you just need to know what the law is so that you can follow it.

Speaker 2: 10:14

Perfectly said. Thank you, Now let’s talk about licensing. Now let’s talk about licensing. We know professionals put a lot of work to get into the professions, but sometimes they can hit roadblocks. Daryl, what would you say are some of the common issues you see with licensing applications?

Speaker 3: 10:34

You know, I kind of anticipated this was going to come up. This question would come up because it comes up all the time in when I’m giving presentations around the state, people always want to know about what are the problems in licensing and what are the problems? Who do you see getting in trouble? That’s always the sexy side of it, but the big things on the licensing side are some of the easiest to cure and avoid, but they’re also some of the most difficult from our perspective the regulator to implement a cure or kind of impose a cure on, and that is, know, read and understand the rules governing licensing criteria and the process before you begin. It would be nice if people looked into this before they ever started their degree program so that they made sure they were picking degree programs that actually produced a degree and gave them the training and education that they needed to get the licensure. Unfortunately, that’s not always the case. We have people that go, you know, spend thousands of dollars and go through the process only to find out that the degree they were pitched and sold does not qualify for licensure. You know who’s to blame for that? I’m not going to point fingers here today, but there’s definitely a discussion that needs to be had on that at some point, you know, probably at the capital level, but that’s probably one of the big. That is, the biggest thing we have is people just simply not reading and understanding what the rules are that govern licensure. This is the second thing is we build this website, we put all this information on it, we put FAQs, we put how-tos, we put checklists, all these kind of cheat sheet programs, cliff notes on how to do this and people do not read it. I know they don’t read it because I can see the web traffic that goes on this stuff. So it’s not like I’m just saying they don’t read it. I know they don’t read it because I can see the web traffic that goes on this stuff. So it’s not like I’m just saying they don’t read it. I can actually see that stuff ought to be more heavily visited than what it is. So that part is a problem that causes those two things. Right, there are the single biggest driver of problems on the licensing side and unfortunately there’s not much I can do to make people read. I can encourage it, but sometimes it falls on deaf ears.

Speaker 3: 12:46

I would say the third thing. I’ve got four items identified here. The third thing is really, folks, slow down, pay attention to what you’re actually applying for. I cannot tell you how many times we have to deal with folks who have applied for the wrong license altogether. That’s a little concerning when you’re looking to enter into a profession and you’ve applied for a counseling license but you were really shooting for the social work field or whatever the case may be. People will take the wrong exam and then wonder what happened there and I’m like well, you’re an LPC, you’re not a psychologist. You sat for the wrong jurisprudence exam. Different set of laws altogether govern you. So that is a problem.

Speaker 3: 13:30

And what’s particularly frustrating for us at this level is we build in a lot of safeties, safety checks and valves and that you know things you have to click through and acknowledge before you actually jump into that. So and you can tell when people are just clicking through things to get through it and I’m like no, stop and read. I mean stop it and pay attention to it. And then the last thing that I would say is a big hang up on folks is maintain your own record set. Don’t rely on your schools, don’t rely on your supervisors.

Speaker 3: 14:01

I cannot tell you the number of times I’ve had people go well, the hospital burned down, and I’m like, oh, horse feathers, that building can’t be burning down across this nation. And it turns out they were telling the truth. I mean, there’s just this rash of fires that happens every now and then. Fires, floods I haven’t had locusts or any other biblical plague descend on anybody yet, but just give it time and then supervisors die. You know, folks die, move on, you lose contact with them and, despite the world we live in, it can be very difficult to track folks down, especially once they kind of retire and move off the grid. They’re no longer active in whatever the circles of where you used to run originally.

Speaker 3: 14:43

So maintain your own records, keep copies of them, because at a minimum maybe we can do something with that. If we can’t get what we call a primary source copy of it, there are still things we can do to get you in. But we can’t do much if we’re not just going to take your word on if you say, well, I had those hours, but the hospital burned down. If we’re not just going to take your word on if you say, well, I had those hours, but the hospital burned down, okay, well, I’m sorry. That’s going to be one of those insurmountable obstacles there. So that was a long-winded answer to what you asked me, but those are the four things that I would say are probably the biggest problems we see.

Speaker 1: 15:16

I would think that I mean, man, that’s such great information. You know, I would hope that these applicants are looking at you know, making sure, like you said, they have their records or get copies of your records right now. You know, go ask for them, go request them, because that is really good information and, like you said, it’s all kind of things that are easy fixes, of things that are easy fixes, right or easy things to Doable Exactly. They’re very doable, very easy solutions. So, thanks, daryl, that’s really good information for our applicants and even our license holders who are already licensed with BHEC, to know what about those who are moving to Texas from out of state? Can you talk to us about BHAC handles license portability.

Speaker 3: 16:07

Yes, portability has always been, apart from the whole FTC. You know the restraint of trade type issue that we talked about earlier. Portability is kind of one of my very near and dear to my heart. Just because when you talk to really any kind of regulator, all the agencies that regulate the health professions, and state you’ll see that there is a workforce shortage in almost every aspect of healthcare in Texas Doctors, nurses, podiatrists, you know PTOT, I mean you name it, you just fill in the blank for the healthcare profession and there’s going to be a shortage. The problem is is there’s a shortage nationwide on all of those, which means we just can’t mint enough of them. And now, so you know, it’s something that we look at constantly at BHEC. We’re trying to figure out. Okay, if we can’t mint enough providers in the state of Texas, what can we do to ease the importation of them? Unfortunately, and that sounds very easy to do. It just sounds like well, just make it so that you can recognize out-of-state licensure. That way you’re not having to run people through the ringer a second time when Virginia has already done it. Why can’t we just rely on what Virginia has done? Unfortunately, it doesn’t work that way, excuse me. Work that way.

Speaker 3: 17:26

Excuse me, little thing called federalism means that every state gets to determine its own licensing criteria and what it what it wants to do in terms of allowing people to practice whatever the profession is in the state. So one of the things that we we try to do is we recognize we take a lot of steps to recognize out of state supervised experience. But we can’t just give you a license based off of an existing license you have in another state and that’s because of certain statutory requirements. I’ll give you an example. We have a lot of people come to Texas who want to be LPCs. Texas has probably one of the more stringent LPC licensing requirements in the country in that we require 3,000 hours of supervised experience. A lot of states only require 2,000 hours.

Speaker 3: 18:13

So we have individuals come here who have 20 plus years of experience practicing professional counseling in another state, maybe even serve as a supervisor training new counselors in that state, and when they get here I tell them you can’t have a license, you don’t have enough supervised experience. I’m like you got to go back under supervision and acquire 1000 more additional hours of supervised experience and they’re like but I’ve been a counselor, I’m a known quantity in my home state and I agree, I’m like, I agree this is a stupid problem to have, but it’s a problem nevertheless and it’s one that, unfortunately, as the agency, we can’t do anything about it because that’s a statutory component. And you will find that in marriage and family therapy, counseling not so much social work but to some degree psychology we get hung up by a lot of statutory requirements that we simply can’t waive, and so that really prevents us from just recognizing or handing somebody a license based off of their out-of-state license that they have.

Speaker 3: 19:16

The military folks are a little different because the legislature, there’s some uniform laws that get passed by all the states that deal with them. But just for the general population, the non-military civilian population, it’s difficult, it’s frustrating for both applicants and for those of the agency because, like I say, they can apply with me. I know they’re not going to be a problem. I have zero concerns based off the fact that they’re a 10, 15 year veteran in their home state with no disciplinary history. I’m like common sense tells you this is going to be fine.

Speaker 1: 19:48

Right.

Speaker 3: 19:48

We can’t do anything about it because there’s a statutory component there. Fine, we can’t do anything about it because there’s a statutory component there.

Speaker 1: 19:54

That’s really good information to know. And just a question that I’d like to add in how do you see that being resolved, or do you even see that problem being? You know, you yourself see it actually playing out to resolution?

Speaker 3: 20:16

You know, as you’re talking about this right now, Simone, there are three, four bills pending over the legislature right now. That would address a lot of this. Senator Sparks has two bills, one and I like both of them. As an agency I’m prohibited from lobbying, but I can certainly talk up the benefits of them and say how easy they would make my life as a regulator. It would be very easy to bring people into the work, put boots on the ground. I mean, that’s what you’re talking about is how fast can I get boots on the ground to address the mental and behavioral health needs of the state? So Senator Sparks has several bills that are pending right now.

Speaker 3: 20:46

One is a telehealth registry law, whereas if you just want to practice telehealth in the state, it’s very simple. It’s modeled after Florida’s. It’s just a simple registration, low fee, low cost to maintain it, but it’s telehealth only. And then he also has something Florida calls it the mobility endorsement law, which I’m not sure how Senator Springer refers to it, but it’s modeled after Florida as well, and instead of just getting telehealth kind of a limited telehealth license, you get a full license based off of your out-of-state license elsewhere. And it’s very quick. It’s almost like hey, we recognize you’re coming from another state. That’s kind of similar to us. We’re just going to go and give you a Texas license.

Speaker 3: 21:30

That kind of stuff would make it very quick. It’s a very quick, efficient way to address workforce needs. The problem is, as both of you probably know and as a lot of your audience may know, is the legislative process is not designed to push a lot of bills through. It is designed to. It’s designed so that only the strong survive through. It is designed to it’s designed to so that only the strong survive. Only the really good ideas and the ones that are, you know, almost immediately or manifestly needed by the state make it through.

Speaker 3: 22:00

So I what I can’t do is predict for any of you you know what the future of those bills are but, there are several bills like that that are pending and that type of stuff has picked up a lot of momentum in recent years because I think the workforce shortage as it becomes more and more in the forefront of legislators’ thoughts, they’re starting to look at more solutions. Plus, when you have states like Florida and Arizona who have already pioneered these things and you actually have a working model one of these is legislature.

Speaker 3: 22:29

I think you’re sometimes scared to do something because you’re like well, this has never been done before. I’m not sure I want to be the test case on it. Well, here you’ve already got several states, big states, that have done it and it’s like OK, there were no hiccups, no problems, a parade of horribles didn’t happen. So we’ve got a working model we can look at. So hopefully we’ll see something there.

Speaker 1: 22:51

Yeah, yeah, and kind of going back to you know why is it crucial to to be aware of what’s going on with your regulatory agency? I mean, this is kind of case in point right there. When you’ve got some, you know legislative action being taking place, you can make your voice heard as a license holder and you know talk about how that would affect you and your profession. So really great, that’s just good information to know, mr Spinks. Thank you Awesome. Well, thank you again, daryl, for joining us today and walking us through how BHEC operates and giving us a better understanding of the licensing process. This is exactly why it’s important to stay engaged with your regulatory agency. You want to know, you know what’s happening with your license, what’s happening with those laws and rules that can affect your career as well.

Speaker 1: 23:45

Now we are not done yet. In part two of this conversation we’re going to dive into the enforcement side of things what happens when a complaint is filed, how investigations work and how you can protect your license. So make sure you are subscribed and following. Know your Regulator, and we will see you in part two. Know your Regulator the podcast that inspires you to engage.