Texas Register Preamble
The Texas State Board of Examiners of Psychologists (Board) proposes an amendment to rule §463.1, Types of Licensure. The proposed amendment is necessary to ensure conformity in the Board's rules, namely with the proposed new rule §463.8 of this title, Licensed Psychological Associate (LPA).
Currently, LPAs must be under the supervision of a Licensed Psychologist (LP) and may not engage in independent practice. The proposed amendment would allow experienced LPAs to practice independently. This proposed amendment change addresses the licensed mental health provider shortage in Texas by fully utilizing LPAs in the workforce today. The proposed amendment 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 amendment is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to adopt 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 proposes this rule pursuant to the authority found in §501.259 of the Tex. Occ. 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.
EXPLANATION OF THE PROPOSED RULE
The proposed amendment allows for independent LPA practice by LPAs who meet certain requirements.
Currently, LPAs must practice under the supervision of an LP. This restriction is a permanent limitation to the associate license no matter how much training or experience an LPA has. While some LPAs receive substantial, direct supervision from a psychologist, many LPAs, particularly those with many years of experience, receive only the one hour per week supervision required by current Psychology Board Rules. See 22 Tex. Admin. Code §465.2 of this title. The proposed amendment takes into account this wide spectrum of competency possessed by LPAs.
The proposed amendment would allow an LPA to practice independently, without supervision, if they meet certain requirements. The proposed amendment would continue to require an LPA to hold a graduate degree in psychology from an accredited university or college, but would require the degree to consist of a minimum of 60 semester credit hours, rather than the 42 semester hours currently required. The proposed amendment would also require an LPA to obtain at least 3,000 hours of supervised practice by a licensed psychologist after receiving their degree to be eligible to practice independently. The Board's competency rule would still apply to LPAs; therefore an LPA would be required to practice only in their areas of competency. See 22 Tex. Admin. Code §465.9 of this title.
This approach will facilitate a more robust market by utilizing LPAs in the current workforce to increase access, affordability, and expand capacity of mental health services throughout the State. Allowing LPAs to practice independently will allow LPAs to offer services in more rural counties where a supervising psychologist may not currently be available. Moreover, the proposed amendment recognizes the long-standing importance of allowing the average citizen to select his or her own health care provider, rather than unnecessarily limiting the marketplace.
The proposed amendment responds to stakeholder and legislative requests for a change to the LPA supervision requirements.
The proposed amendment also responds to stakeholder requests for independent practice. Currently the Board licenses approximately 915 individuals as LPAs, and as of August of 2016 approximately 860 LPAs also held a license as a professional counselor. Licensed Professional Counselors may practice independently after completing a 60 credit-hour master's degree program and completing 3,000 hours of supervised internship. See 22 Tex. Admin. Code §681.82 of this title (relating to Academic Requirements for Licensed Professionals Counselors). The proposed amendment helps ensure consistent training requirements for these dual-licensed mental health professionals.
The proposed amendment 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. The Board hereby incorporates by reference the Texas Sunset Advisory Commission's Staff Report with Final Results of the Texas State Board of Examiners of Psychologists for the 85th Legislature.
FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule. Additionally, Mr. Spinks has determined that enforcing or administering the rule does not have foreseeable implications relating to the costs or revenues of state or local government.
PUBLIC BENEFIT. Mr. Spinks has determined for the first five-year period the proposed amendment is in effect, there will be a benefit to consumers due to an increase in access, affordability, and capacity of licensed mental health providers. Additionally, Mr. Spinks reasonably anticipates the proposed amendment to result in an increase in the number of mental health providers licensed by this agency, because if LPAs are allowed to practice independently then it is anticipated that more individuals will apply for an LPA license. It is also anticipated that LPAs, being able to practice independently, will increase the number of providers servicing mental health professional shortage areas throughout the state.
PROBABLE ECONOMIC COSTS. Mr. Spinks has determined for the first five-year period the proposed amendment is in effect, the rule will carry a probable economic cost to some individuals required to comply with the amendment. In 2019 there will be a probable economic cost to LPAs to comply with the proposed amendment. Under the proposed amendment, the credit hours for an acceptable graduate degree to qualify for licensure as an LPA will increase from 42 to 60 credit hours. The additional 18 credit hour requirement may cause an additional cost to some LPA applicants in the form of increased tuition to schools that do not currently require 60 credit hours for a master's degree in psychology. The impact will vary by school and degree program.
The increased credit hours are necessary to protect the public and help ensure future licensees have the requisite knowledge to be qualified for independent practice. The 60 credit hours is a similar standard to that used by other mental health professionals with a graduate degree that can practice independently. See 22 Tex. Admin. Code §681.82 (relating to Academic Requirements for Licensed Professional Counselors).
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS. The proposed amendment may have an adverse effect on small or micro-businesses. However, any potential adverse effect is estimated to be outweighed by the positive public benefit. And, although some LP small or micro businesses may see a negative impact in regards to lost income, an LPA's business will likely experience a positive impact.
According to the most recent data collected by the Board, there are approximately 915 LPAs and 4,835 LPs actively licensed by this agency. While a majority of LPAs engaged in the practice of psychology must be under the supervision of a psychologist, some are exempt under §501.004 of the Tex. Occ. Code, and others may not be engaged in the practice of psychology and thus do not require a supervisor. Additionally, other LPAs may be dually licensed as a Licensed Specialist in School Psychology and work in a public school where the supervision of an LP is not required. Furthermore, not all LPs supervise an LPA. Therefore, while an exact number is impossible to determine based upon the information available, assuming an LP employs and supervises at least one LPA, it is estimated that no more than 915 LP small or micro-businesses will be adversely impacted by the proposed amendment change.
Some LPs and LPAs may have entered into fee arrangements for the LPAs supervision. This proposed amendment may reduce the income for LPs in terms of lost income from the loss of the supervision fee after an LPA has completed the 3,000 hours of supervision. Thus, psychologists who charge for their supervision services could see a reduction in their incomes. Conversely, the LPAs that are no longer required to be supervised could see an increase in their incomes since they would no longer be required to pay for supervision or split their revenue with a supervisor.
However, this reduction may be offset, either in whole or in part, if a psychologist provides other activities or services during the time previously utilized for supervision. The loss of income by LPs could also be replaced by hiring newly licensed LPAs to take the place of an LPA that decide to leave for independent practice. Additionally, not all LPAs may leave, some may stay under the supervision of an LP, the proposed rule does not require LPAs to practice independently.
Because, as noted above, the outcome of the negotiations between an LP and an LPA are outside the Board's control, the amount of adverse economic impact to LPs cannot be calculated with certainty.
This proposed amendment may also increase market competition as it will likely increase affordability of mental health services and expand capacity and access in the marketplace to mental healthcare as a result of the increase of independent practitioners. This amendment will likely result in a positive economic impact for those LPAs who achieve independent practice status since they will no longer have to pay for permanent supervision.
The Board considered the following alternative methods in an attempt to achieve the same purpose of the amendment while minimizing the adverse impacts on small and micro businesses.
First, the Board considered issuing a specialty license to LPAs for particular areas of practice once they complete an additional 3,000 hours of supervised experience in a given practice area. This requirement would not be congruent with the general licensing scheme administered by the agency. While the Board possesses the rulemaking authority to restrict a licensee's practice to those areas where he or she is competent to deliver services, the Board only has authority to issue a general license, not a specialty license. The Board does not have the authority to issue a separate license for each area of competency. Furthermore, such a licensing scheme is not necessary because the Board will rely on its competency rule to require LPAs to practice only within their areas of competency. Under the Board's Competency Rule, a licensee may only provide services for which they have the education, skills, and training to perform competently. See 22 Tex. Admin. Code §465.9(a) of this title. Additionally, under this amendment, a licensee who lacks the competency to provide a psychological service must withdraw and refer the individual to a competent service provider. See 22 Tex. Admin. Code §465.9(h) of this title. Therefore, adding a requirement that an LPA receive a specialty license to practice independently would not provide any additional safeguard for the public and would not be consistent with the Board's licensing scheme.
Another alternative considered was to expressly prohibit the practice of neuropsychology by LPAs. Like the first proposal, this alternative was found to be unnecessary since the Board currently has rules in place which prevent any provider, including LPAs, from practicing outside their scope of competency. The Board's competency rule has proven effective in the past, for example in limiting the practice of Industrial/Organizational Psychologists, and the Board has found no evidence as to why this would not be equally effective with regards to independent practice by LPAs.
The Board also considered creating a certification committee for LPA independent practice, consisting of 3 LPs and 2 LPAs, that would certify LPAs to practice in certain areas of psychology and set standards for areas of competency. This alternative would again limit the scope of practice of an LPA and, as discussed above, this proposal would essentially create specialty licenses for LPAs which is not consistent with the Board's licensing scheme and frustrates the purposes for the proposed amendment.
Finally, the Board's staff considered a no-change alternative amendment that would still require LP supervision of LPAs if the LPA is working for an employer that has fewer than 100 employees or less than $6 million in annual gross receipts and would allow independent practice only for LPAs employed by a larger business. Such an alternative rule would be impracticable for licensure and enforcement as it would be difficult for the Board to maintain current information on each small business, and again, this would frustrate the purposes behind the proposed amendment. Also, this exception would likely swallow the rule since it is estimated that most LPAs are employed in small or micro businesses.
While there may be alternatives that minimize the adverse impact on small or micro businesses, the alternatives are not consistent with the health, safety, and economic welfare of the state and do not accomplish the objective of the proposed amendment.
RURAL IMPACT STATEMENT: The Board anticipates that the proposed amendment will not have an adverse impact on rural communities. Rather, the Board estimates that allowing LPAs to practice independently will allow LPAs the opportunity to offer services in more rural counties where a supervising psychologist may not currently be available. Therefore, the Board believes this amendment will have a positive effect on rural communities. Since the Board estimates that the 147 rural counties with a population of 25,000 or less are not likely to be adversely affected by the proposed amendment, an alternative version of the amendment regarding rural communities was not considered by the Board.
LOCAL EMPLOYMENT IMPACT STATEMENT. The proposed amendment will not affect a local economy; thus, a local employment impact statement is not required.
Requirement for Rule increasing costs to regulated persons. No repeal of another rule is required to offset any increased costs because 1) this proposed amendment reduces the burdens and responsibilities imposed on regulated persons; 2) this proposed amendment is necessary to protect the health, safety, and welfare of the residents of this state; and 3) the licensing and regulatory costs imposed by the Board on licensees is not expected to increase.
Government Growth Impact Statement. For the first five-year period the proposed amendment is in effect, the Board estimates that the proposed amendment will not affect government growth. This proposed amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the this agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation (it amends an existing regulation by repeal and adoption); it does not expand or repeal an existing regulation, but it does limit existing regulations by removing supervision as a permanent requirement for an LPA; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.
PUBLIC COMMENT. Comments on the proposed amendment may be submitted to Brenda Skiff, Public Information Officer, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Ste. 2-450, Austin, Texas 78701, within 30 days of publication of this proposal in the Texas Register. Comments may also be submitted via fax to (512) 305-7701, or via email to Open.Records@tsbep.texas.gov.
The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses; if the proposed amendment is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the amendment, describe and estimate the economic impact of the amendment on small businesses, offer alternative methods of achieving the purpose of the amendment, then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed amendment is to be adopted, and finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See §2006.002(c) and (c-1) of the Tex. Gov't. Code.
STATUTORY AUTHORITY. The amendment is proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to adopt 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 proposes this amendment pursuant to the authority found in §501.259 of the Tex. Occ. 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.
Board rules 22 Tex. Admin. Code §§463.8, 463.14 and 465.2 of these titles will be affected by this amendment. No other code, articles or statutes are affected by this section.
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