TITLE 22. EXAMINING BOARDS

PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 469. COMPLAINTS AND ENFORCEMENT

22 TAC §469.7

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §469.7, Persons with Criminal Backgrounds. The Board's intent behind this proposed amendment is to more accurately describe the crimes which the Board considers as directly related to the practice of psychology. The proposed amendment would delete references to offenses such as disorderly conduct, intoxication offenses, and gambling to name a few examples. The proposed amendment is also intended to provide better clarity to future applicants with a criminal history, so that they may better understand how their criminal history may impact a future license application with the Board.

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule amendments are 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 rule amendment is in effect, there will be a benefit to licensees and the general public because the proposed amendment will provide greater clarity regarding what crimes the Board considers to directly relate to the practice of psychology. Mr. Spinks has also determined that for each year of the first five years the rules is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

PROBABLE ECONOMIC COSTS. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no additional economic costs to persons required to comply with this rule.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO-BUSINESSES AND RURAL COMMUNITIES. Since Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities then the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

LOCAL EMPLOYMENT IMPACT STATEMENT. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov't Code §2001.022.

REQUIREMENT FOR RULES INCREASING COSTS TO REGULATED PERSONS. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to the Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required because the proposed amendment is necessary to protect the health, safety, and welfare of the residents of this state and the licensing and because 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 rule is in effect, the Board estimates that the proposed amendment will have no effect on government growth. The 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 agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand or repeal an existing regulation; 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.

TAKINGS IMPACT ASSESSMENT. Mr. Spinks has determined that there are no private real property interests affect by the proposed rule amendment. Thus the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov't Code §2007.043.

REQUEST FOR PUBLIC COMMENTS. 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 rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; 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 rule is to be adopted, 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 Tex. Occ. 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 proposes the amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

The Board also proposes the amendment pursuant to the authority found in §501.301(b) of the Tex. Occ. Code which vests the Board with the authority to adopt rules under which licenses expire on various dates during the year.

No other code, articles or statutes are affected by this section.

§469.7.Persons with Criminal Backgrounds.

(a) The Board may revoke or suspend an existing valid license, disqualify a person from receiving or renewing a license, or deny to a person the opportunity to be examined for a license due to a felony or misdemeanor conviction, or a plea of guilty or nolo contendere followed by deferred adjudication, if the offense directly relates to the performance of the activities of a licensee and the conviction directly affects such person's present fitness to perform as a licensee of this Board.

(b) Criminal History Evaluation Letters.

(1) In compliance with Chapter 53 of the Texas Occupations Code, the Board will provide criminal history evaluation letters.

(2) A person may request the Board to provide a criminal history evaluation letter if the person is planning to enroll or is enrolled in an educational program that prepares the person for a license with this Board and the person has reason to believe that the person is ineligible for licensure due to a conviction or deferred adjudication for a felony or misdemeanor offense.

(3) The requestor must submit to the Board a completed Board application form requesting an evaluation letter, the required fee, and certified copies of court documentation about all convictions and resolution to the Board.

(4) Requestors must obtain a fingerprint criminal history record check after they have submitted an application for a criminal history evaluation letter.

(5) The Board has the authority to investigate a request for a criminal history evaluation letter and may require that the requestor provide additional information about the convictions and other dispositions if requested by the Board.

(6) The Board will provide a written response to the requestor within 90 days of the Board's receipt of the request, unless a more extensive investigation is required or the requestor fails to comply with a Board investigation. The Board's evaluation letter will state the Board's determination on each ground for potential ineligibility presented by the requestor.

(7) In the absence of new evidence known to but not disclosed by the requestor or not reasonably available to the Board at the time the letter is issued, the Board's ruling on the request determines the requestor's eligibility only with respect to the grounds for potential ineligibility set out in the letter.

(c) The Board shall revoke an existing valid license, disqualify a person from receiving or renewing a license, or deny to a person the opportunity to be examined for a license due to a felony conviction under Section 35A.02 of the Texas Penal Code, concerning Medicaid fraud.

(d) No person currently serving a sentence in a penal institution or correctional facility following a felony conviction is eligible to obtain or renew his/her license.

(e) In determining whether a criminal conviction directly relates to the performance of a licensee, the Board shall consider the factors listed in the Texas Occupations Code, Chapter 53.

(f) These crimes which the Board considers as directly related to the performance of a licensee:

(1) offenses listed in Article 42A.054 of the Code of Criminal Procedure;

(2) any felony offense wherein the judgment reflects an affirmative finding regarding the use or exhibition of a deadly weapon;

(3) any criminal violation of the Psychologists' Licensing Act;

(4) any criminal violation of Chapter 35 (Insurance Fraud) or Chapter 35A (Medicaid Fraud) of the Penal Code;

(5) any criminal violation of Chapter 32, Subchapter B (Forgery) of the Penal Code;

(6) any criminal violation of Sections 32.42 (Deceptive Business Practices), 32.43 (Commercial Bribery), 32.45 (Misapplication of Fiduciary Property), 32.46 (Securing Execution of Document by Deception), 32.50 (Deceptive Preparation and Marketing of Academic Product), 32.51 (Fraudulent Use or Possession of Identifying Information), 32.52 (Fraudulent, Substandard, or Fictitious Degree), or 32.53 (Exploitation of Child, Elderly or Disabled Individual) of the Penal Code;

(7) any criminal violation of Chapter 37 (Perjury and Other Falsification) of the Penal Code;

(8) any offense involving the failure to report abuse;

(9) any criminal violation of Section 38.12 (Barratry and Solicitation of Professional Employment) of the Penal Code;

(10) any criminal violation involving a federal health care program, including 42 USC Section 1320a-7b (Criminal penalties for acts involving Federal health care programs;

(11) any state or federal offense not otherwise listed herein, committed by a licensee while engaged in the practice of psychology; and

(12) any attempt, solicitation, or conspiracy to commit an offense listed herein.

[(f) Those crimes which the Board considers as directly related to the performance of a licensee include but are not limited to:]

[(1) a misdemeanor and/or felony offense under the following titles of the Texas Penal Code:]

[(A) Title 5, pertaining to offenses against the person (for example, homicide, kidnapping, sexual offenses, and assaultive offenses);]

[(B) Title 7, pertaining to offenses against property (for example, arson, robbery, burglary, theft, fraud, money laundering, and insurance fraud);]

[(C) Title 8, pertaining to offenses against public administration (for example, bribery, perjury, and obstruction of justice);]

[(D) Title 9, pertaining to offenses against public order and decency (for example, disorderly conduct and public indecency);]

[(E) Title 10, pertaining to offenses against public health and safety (for example, weapons offenses, gambling, and intoxication offenses); and]

[(F) Title 4, pertaining to the offenses of attempting or conspiring to commit the offenses listed in subparagraphs (A) - (F) of this paragraph.]

[(2) any criminal violation of the Psychologists' Licensing Act or other statutes regulating or pertaining to the profession of psychology;]

[(3) any criminal violation of statutes regulating other professions in the healing arts, which includes, but is not limited to medicine and nursing;]

[(4) any crime involving moral turpitude;]

[(5) any offense involving the failure to report abuse;]

[(6) any state or federal drug offense, including violations of the Controlled Substances and Dangerous Drugs Act; and]

[(7) any other misdemeanor or felony that the Board may consider in order to promote the public safety and welfare, as well as the intent of the Act and these rules.]

(g) In determining whether a criminal conviction directly affects present fitness of the licensee, the Board shall consider the factors listed in Texas Occupations Code, §53.023.

(h) It shall be the responsibility of the licensee to secure and provide to the Board the recommendations of the prosecution, law enforcement, and correctional authorities regarding all criminal offenses.

(i) The licensee shall also furnish proof in such form as may be required by the Board that he/she maintained a record of steady employment and has supported his/her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines and restitution as may have been ordered in all criminal cases in which he/she has been convicted.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 18, 2017.

TRD-201705247

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: February 4, 2018

For further information, please call: (512) 305-7700