The Texas State Board of Examiners of Psychologists adopts the repeal of rule §463.8, Licensed Psychological Associate, without changes to the proposed text published in the October 6, 2017, issue of the Texas Register (42 TexReg 5346), will not be republished.

BACKGROUND AND JUSTIFICATION. The purpose of this adopted repeal is to delete the current version of §463.8 and replace it with a new §463.8, which is also published elsewhere and adopted in this issue of the Texas Register.

Currently, LPAs must be under the supervision of a Licensed Psychologist and may not engage in independent practice. The new §463.8 will allow qualified LPAs to practice independently. The new rule addresses the licensed mental health provider shortage in Texas by fully utilizing LPAs in the workforce today. The new rule will be a benefit to consumers because it will increase access, affordability, and capacity of licensed mental health providers. The new rule is also directly responsive to stakeholder requests to allow independent practice by psychological associates, as well as requests from legislators who have expressed an interest in this issue.

The new §463.8 will continue to require an LPA to hold a graduate degree in psychology from an accredited university or college, but will require the degree to consist of a minimum of 60 semester credit hours, rather than the 42 semester hours previously required. In conjunction with the amendment to §463.14, regarding written examinations, which is also published elsewhere and adopted in this issue of the Texas Register, LPAs will be required to achieve a minimum score on all licensure examinations equal to other licensees that can practice independently. The new §463.8 will also require an LPA to obtain at least 3,000 hours of supervised practice from a licensed psychologist after receiving their degree to be eligible to practice independently. The increased credit hours, examination standards, and supervised practice requirements are all necessary to protect the public and help ensure future licensees have the requisite knowledge, are appropriately trained, and have the minimum level of skills to be qualified for independent practice. The Board's competency rule, §465.9, would still apply to LPAs; therefore an LPA would be required to practice only within their areas of competency.

The new §463.8 will also require LPAs practicing independently to inform all patients and clients, as part of the informed consent process, what type of degree the LPA holds and the LPA will also be required to provide or post conspicuously a copy of a Board approved notice or brochure that describes the differences between the levels of training and education one receives in a master's, specialist, or doctoral degree program. The importance of this Board approved notice or brochure is to inform and protect the public so they may be aware of the licensee's education, training, and skills in order to make an informed decision about engaging the licensee's services. The Board reviewed draft language of a notice or brochure at the quarterly meeting on November 9, 2017, and approved the language to be published on the Board's website.

The new §463.8 is also necessary to give full effect to the Sunset Advisory Commission's management action from its review of this agency in the 85th Legislature which states: "[t]he board should repeal any rule that, after its evaluation, it deems susceptible to legal challenge based on precedent in the Supreme Court ruling" in North Carolina State Board of Dental Examiners v. Federal Trade Commission.

Comments

The Board did not receive any written comments strictly related to the repeal of §463.8 during the 30-day comment period, which ended November 6, 2017, regarding this proposed repeal of §463.8, but the Board did receive comments regarding the new §463.8. Since the new §463.8 relates to the repeal of the current version of §463.8 the comments received for new §463.8 are included below.

The Board received both verbal and written comments prior to and during the quarterly meeting held on November 9, 2017, and those comments were considered when deciding to adopt the new rule. During the 30-day comment period, which ended November 6, 2017, the Board received comments in support of the new rule from the following interested groups or associations: the Texas Association of Psychological Associates together with approximately 21 individuals.

A summary of the comments in support of the new rule are:

The comments received reflect general agreement with the proposed changes, and further reinforce the benefits such a change would bring about. More particularly, the comments are supportive of an increase in the number of mental health providers anticipated following this change, greater fairness in marketplace competition, and increased licensing standards. The comments also raised the point of a lack of empirical support for the lifetime supervision requirement.

During the comment period, the Board received comments in opposition of the new rule from the following interested groups or associations: the Texas Psychological Association, the Capital Areas Psychological Association, and the American Psychological Association together with approximately 240 individuals.

A summary of comments in opposition of the new rule are:

The comments received reflect fervent disagreement with the proposed change allowing LPAs to practice independently, and reiterate the need to continue imposing perpetual supervision for practicing LPAs. In general, the comments reflect a belief that master's level training programs do not constitute sufficient training and education for LPAs to practice safely independent of supervision from a licensed psychologist. The comments also suggest that the proposed change will not increase the number of mental health providers, but rather cause a decrease in numbers; that LPAs will practice beyond the scope of their training and education at the expense of public safety; that greater competition will result from LPA independent practice thereby driving down the cost of services, and necessarily psychologists' income; will result in a loss of distinction between doctoral and master's degrees; and finally, will result in confusion if LPAs are permitted to use the title of "psychologist."

The Board's responses to these comments are:

The proposed amendment is necessary to give full effect to the Sunset Advisory Commission's management action requiring the agency to conduct a rule review to identify all rules susceptible to legal challenge under the Sherman and Clayton Acts, and then either modify or repeal those rules. The proposed amendment is also directly responsive to stakeholder requests for changes allowing for independent practice by psychological associates, as well as requests from legislators who have expressed interest in the same issue.

With regard to the comments in opposition, the Board will first address the concern about confusion over the use of titles. The proposed change is extremely clear about the correct title for LPAs to use, whether practicing independently or under supervision. The Board is unpersuaded that the use of the title "Licensed Psychological Associate" or "Psychological Associate" will cause confusion with members of the public. To suggest that the use of the word "psychological" within the permissible title somehow equates to the title of "psychologist" strains credibility past its breaking point. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Second, the Board disagrees that the proposed change will not result in an increase in the number of mental health providers. Based upon comments received in the past and other anecdotal observations, the Board believes more individuals will apply for licensure as an LPA if a reasonable pathway to independent practice is created. Moreover, the Board does not believe the proposed change will lead to an exodus of psychologists from the profession because, contrary to the alarmist positions reflected in many of the comments received, such an exodus did not occur when other masters level mental health care providers gained licensure and independent practice authority in the past. In fact, the number of psychologists being licensed by this agency continues to grow despite competition from other masters level providers such as Licensed Specialists in School Psychology (LSSPs), Licensed Professional Counselors (LPCs), Licensed Marriage and Family Therapists (LMFTs), and Social Workers. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Third, the Board disagrees with the suggestion that LPAs will practice beyond the scope of their training and education at the expense of public safety. The Board is not aware of any evidence to support this allegation nor was any such evidence provided in the comments. Thus, the Board declines to impute such a wholesale disregard of Board rule §465.9 to an entire class of licensees. It was also suggested within several of the comments that LPAs may inadvertently practice beyond the scope of their training and education because "they don't know what they don't know." If true, such an argument would apply equally to doctoral level providers. However, the Board is unaware of any prior threats to public health, safety, or welfare arising out of a licensee's practice beyond his or her competency where the Board's existing rules proved inadequate. The Board is also unpersuaded that any of its licensee populations would be more likely than another to practice beyond the scope of their competency. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Fourth, the Board disagrees with how many of those submitting comments framed the issue as being a question of whether LPAs receive sufficient training and education within their master's degree programs to practice safely independent of supervision from a licensed psychologist. The question is not whether LPAs have sufficient training and education to practice independently upon graduation from a master's degree program, but rather, whether that training and education, when coupled with the additional requirements for independent practice set out in the rule provide adequate assurances of public protection. Additionally, while virtually every individual who commented in opposition to the proposed change alleged that LPAs lack sufficient training and education upon graduation from a master's degree program, none provided competent evidentiary support for their claims. Absent some evidentiary support for such claims, the Board is of the opinion that the proposed change reflects a reasonable approach that balances licensure eligibility and scope of practice with public safety. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Fifth, the Board disagrees that the proposed change will result in a loss of distinction between doctoral and master's degrees. The Board does not believe the public's perception, much less the perception of the profession itself, will be affected by the proposed change. The proposed change does nothing to take away from the significant training and education that goes into earning a doctoral degree, nor does it prevent psychologists from advertising these differences in the marketplace. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Sixth, the Board agrees with those comments suggesting that the proposed change will result in greater competition - that is one of the underlying reasons behind the proposed change. A careful review of the Board's Sunset hearing and report, together with a thorough review of the Sherman and Clayton Acts and related secondary materials, reveals that restraint-of-trade and market competition are two important factors that necessitate the proposed change. As several of the individuals submitting comments suggested, with independent practice, LPAs will provide greater competition to other mental health care providers. And while some providers may suffer a decline in income as a result of greater market competition, it equally stands to reason that LPA practitioners may see an increase in their income. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Lastly, the Board declines to adopt the following proposals made by individuals submitting comments in opposition to the proposed rule.

Complete 3,000 hours of post-graduate supervised experience in not more than 36 months.

Require at least two hours of individual supervision and two hours of additional training or supervision each week during the post-graduate supervised experience.

Receive verification from at least two psychologists that the LPA is competent to practice independently.

Pass a proficiency exam or other certification process approved by the Board in desired areas of practice.

Requiring an individual to demonstrate at least 1,000 hours of supervised practice in each of the years required for "grandfathering" under subsection (h).

With regard to the first proposal, the Board fails to see any substantial difference between the stakeholder proposal and the Board proposed change. The Board has proposed requiring 3,000 hours of post-graduate supervised experience be completed within two to four years. With regard to the second proposal, Board rule §465.2(c)(4) would require LPAs for whom supervision is required, to receive at least one hour of individual supervision per week. This requirement was adopted following extensive stakeholder input during the recent revision of the Board's rules governing supervision. Since then, the Board has not been presented with any information necessitating an increase like that suggested here.

With regard to the third proposal, the Board has serious reservations about granting one category of licensees authority to determine "readiness to practice" over another, when the underlying concern behind the rule change is restraint of trade between the groups. Additionally, the Board does not believe it proper to delegate its decision making authority in such a manner. With regard to the fourth proposal, the Board would remind its licensees that it issues a generic license, rather than a specialty license. Thus, the Board does not have authority to license LPAs in specialty areas only. Lastly, with regard to the "grandfathering" proposal, the Board declines to impose the suggested requirement based upon the improbable and theoretical scenarios described by the individual submitting the proposal.

STATUTORY AUTHORITY. The repeal is adopted under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Board adopts this repeal pursuant to the authority found in §501.259 of the Texas Occupations Code which vests the Board with the authority to set standards for the issuance of licenses to psychological personnel who hold a master's degree.