The Texas Behavioral Health Executive Council adopts amendments to §465.38, relating to Psychological Services for Schools. Section 465.38 is adopted with changes to the proposed text as published in the December 16, 2022, issue of the Texas Register (47 TexReg 8212) and will be republished. Proposed §465.38(d) stated that an LSSP could use the title school psychologist or licensed school psychologist, as referenced in the Education Code. Turning to Education Code §21.003(b), the title school psychologist is listed but the title licensed school psychologist is not. Therefore, §465.38(d) is adopted with a change; the title licensed school psychologist has been removed but the title school psychologist remains so that this adopted amendment matches the exact language of the Education Code.

Reasoned Justification.

The adopted amendments allow a licensed specialist in school psychology (LSSP) to use the title school psychologist, as referenced in the Education Code. The Council has received comments regarding the public's confusion and unfamiliarity with the title LSSP. The intent behind this rule change is to help address the public's confusion regarding this license type, so the public can better understand and recognize who they are and what activities they are licensed to perform.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

The Council has received approximately 10 public comments that were not in support of this proposed rule change. These commenters believe that allowing LSSPs to use the title school psychologist will cause public confusion. Many of these commenters believe that due to the differences in education, training, and experience requirements for licensure between psychologists and LSSPs, using a similar title for both of these license types will confuse the public and they will not understand the distinction between the two. Some commenters compare the LSSP and psychologist titles to those in the medical profession, such as medical doctors and physician assistants, and the commenters believe the distinctions in titles are necessary to denote the differences in the level of independent practice and training. Several commenters opined that the title psychologist should only be permitted to be used by an individual that has completed a doctoral degree.

One commenter opposes this rule change because the commenter believes only doctoral level providers are able to diagnose conditions, and a masters level provider is not able to diagnose disabilities. Therefore the commenter believes this title change will confuse the public.

One commenter suggested that there should be a distinction in the use of the title school psychologist which lists the level of the degree next to the title, such as school psychologist - specialist or school psychologist - doctorate.

Another commenter believes that the current LSSP title makes it clear to the public that an LSSPs services are school based and changing the name to school psychologist does not provide the public any additional clarity. The commenter claims that this rule change is ultimately intended to be used as a steppingstone for LSSPs to gain full autonomy to function outside of a school setting, which will further confuse the public.

One commenter believes that the current rule as written is anticompetitive, and that it unfairly restricts the practice of psychologists without an LSSP. The commenter asserts that psychologists are just as competent to provide LSSP services and this rule creates an unfair practice and income protection for LSSPs by only allowing non-LSSP licensees to contract for specific types of psychological services but not the broad range of school psychological services listed in the rule.

One commenter opines that this change is only being made due to the voice of the majority of persons voicing support for this change, and majority opinion should not be the reason for the change.

List of interested groups or associations for the rule.

Texas Association of School Psychologists.

Summary of comments for the rule.

The Council has received approximately 1031 public comments in support of this proposed rule change. These commenters believe that the current LSSP title has created a significant amount of confusion and frustration in the education system, which includes school staff and the parents of students, and most do not recognize the LSSP title or have any idea what the LSSP means or does. The proposed change will allow LSSPs to use the same title that is used in 48 other states which is far better recognized and understood by all, thereby greatly reducing public confusion.

Agency Response.

The Council thanks the commenters for the supportive comments, adopts the rule with amendments as explained and described above, and declines to further amend the rule as requested by other commenters.

On May 1, 2023, the Texas Attorney General issued Opinion No. KP-0443, which concluded that an Executive Council rule that allows an LSSP to use the title school psychologist does not contravene specific statutory authority, is not contrary to the general objectives of Chapter 501 of the Occupations Code, and does not impose additional burdens, conditions, or restrictions. Therefore a court would likely conclude that such a rule is within the Executive Council's authority to adopt.

Section 501.260 of the Occupations Code requires the Executive Council to issue the LSSP license which it currently does, and this statute makes it clear that this is the specific license required to provide psychological services in a school district, grades K through 12. Therefore a commenter's assertion that this rule is anticompetitive is inaccurate, this rule follows the statutory requirements established by the Texas Legislature. Additionally, licensed psychologists can and do apply for an LSSP so they can work in a school setting. This rule does not restrict or prohibit psychologists from obtaining an LSSP, therefore this rule is not anticompetitive as the commenter suggested.

A commenter's assertions that masters level licensees of the Executive Council cannot diagnose is incorrect. LPCs, LCSWs, LMFTs, LSSPs, and LPAs all require a minimum graduate level degree for licensure and all can use their license to diagnose mental disorders listed in the DSM-5. Therefore the commenter's assertion that the public will be further confused by this rule change allowing LSSPs to use the title school psychologist is incorrect.

The assertion made by a commenter that this rule change may in the future allow for LSSP independent practice outside of a school setting is inaccurate. As discussed above, Section 501.260 of the Occupations Code makes clear that the LSSP license is required to provide psychological services in a school setting, and this rule, in subsection (c), makes it clear that the LSSP license can be used to provide school psychological services only in public and private schools.

Contrary to the commenters' assertion that this rule change will cause greater public confusion, the Executive Council believes this rule change will reduce public confusion and the Executive Council cites to the approximately 1031 comments it received in favor of this change to support this conclusion. Many, if not most, of the commenters in support of the change are individuals that work in a public school setting and have first-hand knowledge of the confusion that has been cause by the title LSSP. All of these commenters agree that this rule change will reduce public confusion. Since the LSSP license is only allowed to be used in a school setting then the Executive Council does not anticipate that there will be public confusion caused in other settings by this rule change.

This rule change is not being done because it is the will of a majority opinion, this rule change was considered and voted on by the Texas State Board of Examiners of Psychologists because the Board believes this rule change will benefit the state of Texas. The Executive Council also reviewed this rule proposal and agreed that it will have a positive impact. The Executive Council declines to require LSSPs to use the title school psychologist - specialist as this would create a new title not used in other states which would likely cause public confusion and defeat the purpose of this rule change.

Statutory Authority.

The rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council 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 Executive Council adopts this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §501.1515 of the Tex. Occ. Code the Texas State Board of Examiners of Psychologists previously voted and, by a majority, approved to propose the adoption of this rule to the Executive Council. The rule is specifically authorized by §501.1515 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this rule in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed the rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 501 and 507 of the Texas Occupations Code and may adopt this rule.

Lastly, the Executive Council adopts this rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.