On Our Inclusion in Health Care Provider Definition
I have just finished studying the BHEC Request for Opinion from the TX AG (Request No. 0605-KP) and here is our understanding and thoughts on our inclusion in the "Health Care Provider" definition. We hope they aid you in clarifying yours.
The Ask from BHEC'S ED
1. Requesting an opinion as to whether or not the mental health licensees of the BHEC agency are included in the definition of "health care provider" as it pertains to this bill, SB12. (SB12 outlawed the puberty blockers, hormone therapies, and surgical procedures related to the transgender transitioning process in TX.)
2. If included, what are the practice implications and limitations for mental health licensees since SB12 is obviously targeted to apply to the white coat medical communities, the final code (161.702) addressing only treatments and procedures that fall outside the scope of traditional mental health practice.
Bottom line, will licensed counselors in TX still be able to write assessment letters greenlighting these procedures in other states?
Arguments FOR Inclusion
- Licensed mental health professionals have traditionally been included in the definition of "health care provider" in other code. It is precedent (see Chapter 611 in Health & Safety Code).
- By their own actions (published protocol), even WPATH has included the licensed MH counselor in their transition protocol. It is the very first, gatekeeper step in the physical transition process.
- Although the definition, 161.701(2) is murky, the phrase, "other than a physician" argues FOR inclusion providing latitude but ultimately comes down to the scope of what's included under the term, "health care". Is "mental health care", "health care" or not?
Arguments AGAINST Inclusion
- This bill was NOT written with the overall physical transition process in mind, but specifically targeted towards the role the white coat medical community and their procedures play in the process. The bill authors apparently did not intend for the bill to encompass BHEC licensees given the list of banned procedures, that much appears obvious. Whether the exclusion of the mental health community from this bill was by design for some unstated reason or simply poor research into the overall transition protocol on the part of the original bill authors is irrelevant.
- From BHEC's RFO letter:
a. BHEC states that the definition of "Health Care Provider" in 161.701 (2) is ambiguous as to inclusion hence the request for clarification.
b. The targeted scope of SB12 as outlined in the final code, 161.702 is a list of white coat medical procedures and does not include a single service offered by a mental health licensee, specifically the affirming letters.
c. BHEC's conclusion is that the definition is fuzzy as to the inclusion of BHEC licensees and doesn't believe that based on a literal reading of the original bill and codified statute that mental health licensees were intended to be included in either the bill or its definition of health care providers.
Two Potential Outcomes and a Bonus 3rd Scenario
Scenario #1-NOT Included in Definition
1. This would further underscore the point that MH providers are not limited by anything in the codified SB12 and so are free to continue to write the gender affirming transition process letters for procedures performed in another state.
2. This brings up a potential liability issue for future suits brought by de-transitioners against all parties involved including letter-writing MH counselors but that is a separate issue from the discussion of definition inclusion.
3. This would necessitate the development of another bill in the next legislative session specifically addressing any transition protocol steps not addressed in SB12, specifically the assessment letter writing. (More detail in Summary below.)
Scenario #2-MH Professionals ARE Included in Definition
1. Since SB12 specifically targets the white coat medical communities and by simple exclusion does not address practice limitations for mental health practitioners, clarification from the AG's office on mental health practice parameters must be forthcoming.
Specifically:
a. Are mental health providers still allowed to write assessment letters greenlighting puberty blockers, hormone therapies, and transition surgeries to be performed in other states?
b. What can be said/done in counseling sessions with GAC clients? (This is HUGE and is currently before the U.S. Supreme Court in Chiles vs Salazar)
Scenario #3 (BONUS)-Regardless of the Inclusion/Exclusion Ruling Outcome (Additional Questions)
a. If a TX licensed MH counselor writes a letter greenlighting medical transitioning procedures to be performed in any state, is that considered child abuse?
b. Does a mental health professional have an obligation to report child abuse to CPS (TX State Agency) and file a complaint with BHEC against that counselor if they're aware that another TX counselor has written one of these letters?
c. Does a mental health professional have an obligation to report child abuse to CPS (TX State Agency) when a child/minor is going through puberty blockers, hormone therapies and subsequent surgeries as a minor, in Texas?
And, if we are ruled NOT to fall under the "health care providers" umbrella,
d. are we (licensed TX counselors) now exempt from abiding by Texas Health and Safety Code Chapter 611? This code is in the BHEC Rulebook for licensed counselors as result of the assumption we fall under the "health care providers" definition outlined in that code. Will there be a ripple effect across different codes and their definitions of "health care provider"?
Summary
Based on common sense and past practice we would like to see licensed mental health counselors included under the definition of healthcare providers as they have traditionally been. Unfortunately, we also think a legislatively amended definition of 161.701(2) may likely be required for that to come about.
If the inclusion is granted without legislative amendment then clarification of practice parameters will have to come about in one of several ways:
a. The AG's office can provide those guidelines which will probably be challenged by the opposition in court, or
b. SB12 could be amended in the next legislative session in 2026-2027 to 1) include MH Professionals in the definition and 2) expand the scope of prohibited services in 161.702, or
c. a new bill outlining those practice guidelines could be proposed and hopefully passed in the 90th legislature.
We'll know what the next step is by Dec 29th!
Got Something to Say?
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About the Author
Phillip's background has blessed him with a variety of interests, skills, and tools to get things done. He spent 25 years in the printing and marketing industry before meeting Kathleen Mills in 2015. They quickly figured out that they made a pretty good business team and, owing to Kathleen's story, embarked upon a mission that would see the creation of PracticeMentors.us and eventually the Association for Mental Health Professionals.
