Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n

• Decision Date: 24 February 2017
• Docket Number: No. 15–0299,15–0299
• Citation: 511 S.W.3d 28
• Parties: TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS; Cheryl Gomez in Her Capacity as Executive Director; Michael Puhl, in His Capacity as Presiding Officer ; Texas Association for Marriage and Family Therapy, Petitioners, v. TEXAS MEDICAL ASSOCIATION, Respondent
• Court: Texas Supreme Court

511 S.W.3d 28

TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS; Cheryl Gomez in Her Capacity as Executive Director; Michael Puhl, in His Capacity as Presiding Officer ; Texas Association for Marriage and Family Therapy, Petitioners,

v.TEXAS MEDICAL ASSOCIATION, Respondent

No. 15–0299

Supreme Court of Texas.

Argued October 11, 2016

Opinion delivered: February 24, 2017

Charles Roy, First Assistant Attorney General, Dustin Mark Howell, Eric Lance Vinson, W. Kenneth Paxton Jr., Warren Kenneth Paxton Jr., Evan S. Greene, Office of the Attorney General, Scott A. Keller, Office of the Attorney General, Solicitor General, David T. Arlington, Gavin Robert Villareal, Matthew Carlton Wood, Thomas R. Phillips, Baker Botts L.L.P., Austin, TX, for Petitioner.

Andrea Schwab, Donald P. Wilcox, Texas Medical Association, Austin, TX, David F. Bragg, Law Offices of David F. Bragg, P.C., Bastrop, TX, for Respondent.

Justice Boyd delivered the opinion of the Court.

Over twenty years ago, the Texas State Board of Examiners of Marriage and Family Therapists (the Therapists Board) adopted a rule that permits licensed marriage and family therapists (MFTs) to provide "diagnostic assessment ... to help individuals identify their emotional, mental, and behavioral problems." Nearly ten years ago, the Texas Medical Association filed this suit asserting that the rule is invalid because the Texas Occupations Code does not authorize MFTs to provide diagnostic assessments. The Medical Association asserts that, subject to a few exceptions that do not include MFTs, only those who are licensed to practice medicine may provide a diagnostic assessment. We conclude that the Code authorizes MFTs to provide the type of diagnostic assessment the rule permits. We reverse the court of appeals' judgment and render judgment that the rule is valid.

I.Background

The Texas Licensed Marriage and Family Therapists Act (the Therapists Act) regulates the practice of marriage and family therapy in Texas. TEX. OCC. CODE §§ 502.001 –.455. "Marriage and family therapy" means "providing professional therapy services to individuals, families, or married couples, alone or in groups, that involve applying family systems theories and techniques." Id. § 502.002(6). The Therapists Act expressly provides that these professional therapy services include "the evaluation and remediation of cognitive, affective, behavioral, or relational dysfunction in the context of marriage or family systems." Id.

In 1994, the Therapists Board, relying on this statutory authority, adopted a rule listing specific therapeutic services that MFTs may provide. See 22 TEX. ADMIN. CODE § 801.42. In addition to various types of therapies, consultations, referrals, and other services, the rule permits MFTs to provide "[d]iagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) ... as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary." Id. § 801.42(13).¹

The DSM, published by the American Psychiatric Association, is a comprehensive collection of information regarding a wide range of mental disorders. To promote consistency in the identification of mental disorders, the DSM provides diagnostic classifications, criteria, and descriptions of mental disorders based on the presence or absence of particular signs, symptoms, and features.² The DSM assigns to each mental disorder a unique diagnostic code based on the diagnostic coding system adopted by the World Health Organization.³ The Therapists Board and its supporting amici curiae⁴ explain (and the Medical Association does not dispute) that the "DSM, along with the [diagnostic coding system], is the universal diagnostic system used in diagnosing mental health disorders in the United States and much of the rest of the world." Like other mental-health professionals, MFTs in Texas are trained and qualified to perform diagnostic assessment using the DSM and are tested on that ability as part of their licensing requirements.

The Therapists Board and its amici contend that the ability to provide diagnostic assessments using the DSM is essential to an MFT's practice. When necessary to assist a client, MFTs perform DSM-based diagnostic assessments to identify a client's mental disorder, develop a proper treatment plan, determine the client's eligibility for various services, consult with physicians and other health professionals about the client, provide statistical information to government health agencies and private health institutions, and obtain insurance payments for their services. According to the Board and its amici, if MFTs cannot provide a diagnostic assessment using the DSM, they simply cannot provide adequate marriage and family therapy, and Texans would lack a substantial source of mental health care at a time when the shortage of such care has reached crisis levels.

In 2008, fourteen years after the Therapists Board adopted rule 801.42(13),⁵ the Medical Association filed this suit against the Board⁶ seeking a declaratory judgment that the rule is invalid. The Association alleged that by permitting MFTs to provide diagnostic assessments, the rule grants MFTs authority that the Therapists Act does not grant and that the Texas Medical Practice Act reserves for medical licensees.⁷ The Medical Practice Act, TEX. OCC. CODE §§ 151.001 –169.005, requires a license to practice medicine in Texas, id. § 155.001, and defines "practicing medicine" as "the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who ... charges money or other compensation for those services." Id. § 151.002(13). The Medical Association contends that, by authorizing MFTs to make a "diagnostic assessment" using the DSM, the rule permits MFTs to practice medicine without a license by making a "diagnosis [of] ... a mental ... disease or disorder."⁸

In response, the Therapists Board and its amici do not assert that their practice requires or that the rule permits them to provide diagnostic assessments of every kind of mental disorder. They concede that the rule does not permit them to provide a "medical" diagnosis or any diagnosis that requires them to act beyond their area of expertise and level of training. But they contend that both the Therapists Act and the rule authorize them to diagnose some "nonmedical" disorders like relational dysfunction, adjustment disorder, mood disorder, anxiety disorder, behavioral dysfunction, sexual dysfunction, anorexia, depression, conduct disorder, personality disorder, and addiction, which are DSM diagnoses that relate to conditions often caused not by medical issues but by psychological and social experiences like sexual abuse, physical abuse, trauma, domestic violence, physical illness, and loss.

In the trial court, the parties filed cross-motions for summary judgment on the Medical Association's declaratory-judgment claim. The court granted the Association's motion, denied the Board's motion, and entered judgment declaring the diagnostic-assessment rule invalid because it "exceeds the scope" of the Therapists Act. The court of appeals affirmed. 458 S.W.3d 552, 560 (Tex.App.–Austin 2014).

II.Validity of the Diagnostic–Assessment Rule

In defense of the diagnostic-assessment rule, the Therapists Board and its amici note that the DSM itself permits MFTs to make DSM diagnoses, and that the DSM "has been—and is intended to be—used by" MFTs as well as a "wide variety" of other mental-health professionals besides physicians.⁹ In fact, the American Psychiatric Association (which publishes the DSM) has said that MFTs are "able to independently make DSM diagnoses without supervision," and even invited MFTs to participate in field-testing the DSM's latest revision.¹⁰ As a result, no other state "expressly prohibits Licensed MFTs from diagnosing mental and behavioral disorders," and the court of appeals' decision here "makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients." The Therapists Board argues that it "would be absurd to deprive MFTs of the right to use the very manual that the American Psychiatric Association (an organization of physicians) entrusted them to help prepare."

Accepting all of that as true, however, we must decide this case based on the relevant Texas statutes, not on whether MFTs are qualified to make DSM diagnoses or whether the DSM or other states' laws allow them to. As a state administrative agency, the Therapists Board has only those powers that the Texas Legislature has expressly conferred upon it and those implied powers that are reasonably necessary to carry out its statutory duties. Public Util. Comm'n of Tex. v. City Pub. Serv. Bd. , 53 S.W.3d 310, 315 (Tex. 2001). As such, it can adopt "only such rules as are authorized by and consistent with its statutory authority." R.R. Com'n of Tex. v. Lone Star Gas Co. , 844 S.W.2d 679, 685 (Tex. 1992) (quoting State Bd. of Ins. v. Deffebach , 631 S.W.2d 794, 798 (Tex. App.–Austin 1982, writ ref'd n.r.e.) ). Courts generally presume that agency rules are valid, so parties who challenge a rule have the burden of proving its invalidity. See Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm'n , 452 S.W.3d 479, 481 (Tex. App.–Austin 2014, pet. dism'd).

To meet its burden, the challenging party must show that the rule's provisions are not "in harmony with the general objectives of the act involved." Edgewood Indep. Sch. Dist. v. Meno , 917 S.W.2d 717, 750 (Tex. 1995) (citing Gerst v. Oak Cliff Sav. & Loan Ass'n , 432 S.W.2d 702, 706 (Tex.1968) ). We discern those "general objectives" from the plain text of the statutes that grant or limit the agency's authority....