TITLE 22. EXAMINING BOARDS

PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS

CHAPTER 5. REGISTERED INTERIOR DESIGNERS

The Texas Board of Architectural Examiners (Board) proposes the amendment of Texas Administrative Code Part 1, Title 22 §5.5 (Terms Defined Herein), §5.31 (Registration of Interior Designers by Examination), §5.32 (Registration by Reciprocal Transfer), §5.33 (Application Process), §5.35 (Pending Applications), §5.36 (Preliminary Evaluation of Criminal History), §5.37 (Provisional Licensure), §5.51 (Requirements), §5.52 (Examination Administration and Scoring), §5.53 (Scheduling of Examinations), and §5.55 (Special Accommodations). Additionally, the Board proposes the repeal of Texas Administrative Code Part 1, Title 22 §5.54 (Transfer of Passing Scores), §5.201 (Description of Approved Education for Registration by Examination), §5.202 (Description of Approved Experience for Registration by Examination), and §5.203 (Other Education and Experience).

This proposed rulemaking action would implement Senate Bill 1932 (85th Regular Session, 2017), which amends the educational and professional experience requirements for registration as a registered interior designer (RID). Prior to the enactment of SB 1932, the Board was authorized under Tex. Occ. Code §1052.155 to adopt rules establishing the educational and professional experience standards required to become registered. However, under SB 1932, the legislature has eliminated this rulemaking authority, and instead applicants for registration will be required to satisfy the educational and professional experience requirements for the registration examination adopted by the Board under authority of Tex. Occ. Code §1053.154. This exam, the NCIDQ, is administered by the Council for Interior Design Qualification (CIDQ), and the eligibility requirements for the exam are set by that organization. Therefore, it is necessary for the Board to repeal the educational and professional experience requirements that were previously adopted by rule, and substitute the educational and professional experience requirements required by CIDQ to sit for the NCIDQ examination. Additionally, the Board proposes amendments to its applications and testing processes to assist the Board in implementing changes to the eligibility requirements.

The proposed amendments to §5.5 revise definitions relevant to eligibility requirements and the applications and examinations processes. In the proposed rules, the term "candidate" is used in reference to person who may not have completed the examination or application process, and the definition in §5.5 has been amended to reflect this use.

Additionally, due to a change in the name of the organization that administers the Board's registration examination, the Board proposes amendments to corresponding definitions in §5.5. Previously, the Council for Interior Design Qualification (CIDQ) was known as the National Council for Interior Design Qualification (NCIDQ). Under both names, the registration examination was known as the "NCIDQ examination." Due to this name change, the Board proposes adoption of definitions for "Council for Interior Design Qualification" and "CIDQ," the amendment of the definition for "NCIDQ" to define the examination itself, and the repeal of the definition for "National Council for Interior Design Qualification." All references elsewhere in Chapter 5 to the "National Council for Interior Design Qualification" have been deleted and replaced, as necessary. Lastly, definitions for "CIDA," "Council for Interior Design Accreditation," "Direct Supervision," and "Table of Equivalents for Education and Experience in Interior Design" have been deleted from §5.5 because these terms are eliminated from Chapter 5 under the proposed amendments.

The proposed amendments to §5.31 would implement the legislative directive contained in SB 1932 by deleting language setting forth the Board's education and experience eligibility requirements for registration as an RID. This language would be replaced with a requirement that an applicant for registration satisfy "the educational and professional experience eligibility requirements adopted by the Council for Interior Design Qualification (CIDQ) to sit for the NCIDQ examination." Additionally, the proposed amendments would include a grandfathering provision under revised subsection (c), which applies to individuals who have been approved by the Board to take the examination prior to January 1, 2018 (the expected effective date of the proposed rules). Under this provision, such applicants would be eligible to qualify for registration as an RID by satisfying either the educational and professional experience required by CIDQ to sit for its examination, or the educational and professional experience requirements adopted by the Board and in effect at the time the application was filed. Though the Board notes that the CIDQ eligibility requirements are generally less stringent, and are thus not expected to result in the loss of eligibility of any applicant, this provision is intended to act as an additional safeguard to ensure the continued eligibility of any currently-approved applicant for examination.

The proposed amendments to §5.32 are non-substantive. In subsection (a), the term "Interior Design" is capitalized to denote that this is a defined term in §5.5. Additionally, subsection (b)(1) is amended to correct an outdated reference to the "National Council for Interior Design Qualification," and to provide for consistency with corresponding provisions in §5.31 and proposed §5.51 regarding predecessors to the NCIDQ examination.

The proposed amendments to §5.33 outline the process to be followed in filing an application for registration by examination. Under the amendments, an applicant would be required to satisfy the educational and professional experience requirements adopted by CIDQ to sit for the NCIDQ examination, and be approved by CIDQ to sit for the examination, prior to filing an application with the Board. Upon filing an application with the Board, an applicant will be required to provide a verified statement of the applicant's education, a detailed summary of interior design work experience, and proof of acceptance by CIDQ to sit for the examination. Under Tex. Occ. Code §1053.155, an applicant for registration is required to demonstrate that he or she has satisfied the educational and professional experience requirements for the examination adopted by the Board (the NCIDQ). By requiring the applicant to provide the Board, at the time of application, with proof of acceptance by CIDQ to sit for the NCIDQ examination, the proposed rule will ensure that this eligibility requirement has been met.

The proposed amendments to §5.35 substitute the term "applicant" for "candidate." Under the revised definitions in §5.5, an applicant is defined in part as a person who has submitted an application to the Board, while a candidate is a person who may not have completed the application process. Since §5.35 describes a person who has completed the application process (and is required to pay record maintenance fee), the appropriate term is "applicant." Likewise, "applicant" is substituted for "candidate" in §5.37, which authorizes the issuance of a certificate of registration or a provisional certificate of registration to an individual who has been convicted of certain criminal offenses. Since the Board would only issue a registration to a person who has completed an application, the use of the term "applicant" is appropriate here.

Board rule §5.36 describes the process for certain individuals, including those enrolled in or planning to enroll in interior design educational programs, to request a preliminary determination of eligibility for registration based on the individual's criminal history. The proposed amendments to §5.36 substitute the term "qualifying interior design educational program" for "accredited program." Under the Board's previously adopted educational standards, an applicant was required to graduate from an accredited interior design program. However, under the CIDQ standards, graduation from an accredited program is not required. As such, the amendment would extend the rule to those who are enrolled in or planning to enroll in a "qualifying" educational program, which the Board interprets to mean an educational program that meets the CIDQ educational standards for examination qualification.

The proposed amendments to §5.51(a) state that an applicant for interior design registration by examination must meet the eligibility and application requirements contained in §5.33(b) and (c). Additionally, §5.51(a) is proposed for non-substantive amendment to provide for consistency with corresponding provisions in §5.31 and proposed §5.51 regarding predecessors to the NCIDQ examination. Additionally, the Board proposes to repeal current §5.51(b), which authorizes an applicant to begin testing after completing six months of full time work experience. This conflicts with recently amended Tex. Occ. Code §1053.155, which states that an application for admission to the examination must be accompanied by evidence that the applicant has satisfied the professional experience requirements for the examination adopted by the Board. Depending on educational background, CIDQ requires prospective examinees to complete at least 3,520 hours (approximately two years) and up to 7,040 hours of work experience prior to taking the final sections of the examination. As such, an applicant with only six months of professional experience would not meet the "professional experience requirements" of CIDQ to take all sections of the examination, and thus it would be inappropriate for the Board to approve the applicant to do so under Tex. Occ. Code §1053.155. Therefore, §5.51(b) is proposed for repeal, and instead the Board proposes the adoption of §5.53(a), which would require an Applicant to schedule and pass all sections of the NCIDQ within the time period required by CIDQ.

Current §5.51(c) is proposed for repeal as discussed below regarding amendments to §5.52. Finally, the term "examinee" is substituted for "candidate" in proposed subsection (c), relating to the process to request the refund of examination fees. Under the application process, an individual may or may not have filed an application with the Board prior to taking the NCIDQ examination. Since this rule is intended to cover requests for refunds from either class of individual, the term "examinee" is appropriate.

The amendments to §5.52 are intended to simplify the Board's rules relating to examination administration and scoring. As currently written, the rule includes a number of provisions relating to examination administration, addressing the timing of examination administrations and the information required to be given to examinees, and imposes requirements on examinees regarding the identification required of examinees in order to enter the examination and the tools to bring to the examination. Similarly, current §5.51(c) addresses the acceptable location at which the examination may be taken. However, as the independent administrator of the examination, CIDQ is responsible for developing and enforcing examination administration procedures and the Board's proposed amendment recognizes this role by stating that, unless otherwise noted in the Board's rules, the administration and examination of the NCIDQ is governed by the procedures adopted by CIDQ.

The amendments to §5.53 amend the Board's rules relating to scheduling of examinations. Under current §5.53(a) an applicant is required to pass all sections of the examination within five years of passing the first section. If a candidate does not pass all sections within five years, credit for any examination passed more than five years prior is forfeited, and the section must be passed again. Comparatively, under CIDQ's current requirements, an examinee is required to pass the first section of the NCIDQ examination (IDFX) within four examination windows of approval (two years), and the other two sections within ten examinations windows (five years). In order to simplify the Board's rules and minimize conflicting information for examinees, the Board proposes to repeal §5.53(a). Rather, the Board proposes the adoption of amended §5.53(a), which would state that an applicant must schedule and pass all sections of the administration within the time period required by CIDQ. Additionally, in order to minimize any disruption to the testing schedule of individuals with pending, approved applications, the Board proposes the adoption of proposed §5.53(b), which would allow those applicants to complete the test within the time period in effect at the time the application was filed. Finally, amended subsection (c) would preserve the opportunity for individuals to request an extension to the examination time period for reasons of child birth or adoption, the development of a serious medical condition, or active duty service in the military. Such requests would be subject to the approval of the Board and CIDQ.

The Board proposes to repeal §5.54 relating to transfer of passing scores. The process described in §5.54, in which examination scores are "transferred" from one state to another, is not consistent with any process used by CIDQ to administer examinations. CIDQ is responsible for maintaining and distributing examination scores to TBAE and other registration boards. Because the "transfer" of scores is not the responsibility of the Board, this rule is inconsistent with practice and unnecessary. Therefore, repeal is appropriate.

The amendments to Rule §5.55 substitute the term "examinee" with "applicant" relating to the consideration of special accommodations for examination administration. Since many individuals pursuing registration in Texas begin testing with CIDQ prior to submitting an application with the Board, it is possible that such an individual would request special testing accommodations through the Board, and the Board would address such testing accommodations with CIDQ, as necessary.

The Board proposes to repeal Subchapter J, §§5.201, 5.202, and 5.203. These rules identify the amount and type of educational and professional experience required to qualify for registration. The proposed repeal would implement amended Tex. Occ. Code §1053.155, eliminated the Board's authority to adopt rules establishing standards for the recognition and approval of interior design educational programs and the amounts and types of professional experience necessary for registration examination eligibility.

FISCAL NOTE

Lance Brenton, General Counsel, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, the amendments will have no significant adverse fiscal impact upon state government, local government, or the Texas Board of Architectural Examiners.

GOVERNMENT GROWTH IMPACT STATEMENT

During the first five years the proposed rules would be in effect, no government program would be created or eliminated. The proposed rules modify or eliminate existing regulations as opposed to create new ones. The legislature's adoption of SB 1932 has resulted in the limitation of existing regulations, in that the educational and professional experience requirements have been decreased, and this rule change implements the change in law. The adoption of the proposed rules would not result in the creation or elimination of employee positions. Implementation of the proposed rule is not expected to require an increase or decrease in legislative appropriations to the agency, and the proposed rule would not increase or decrease the Board's fees. However, if more individuals seek registration due to the relaxed eligibility requirements, then the Board would receive annual registration fees from an increased number of registrants. Similarly, if more individuals seek registration, then more individuals would be subject to regulation by the Board. However, registration with the Board is voluntary, and the proposed rules would not subject any person to increased regulation involuntarily. The proposed rules are not expected to have any adverse impact on the state's economy.

PUBLIC BENEFIT/COST OF COMPLIANCE

For the first five-year period the amended rules are in effect, the public benefit of the proposed rule changes will be the implementation of the policy required by the legislature's enactment of Senate Bill 1932 (85th Regular Session, 2017). Under this enactment, the educational and professional experience requirements to become a registered interior designer in Texas will be those requirements adopted by CIDQ to sit for the NCIDQ examination. Since a greater number of educational programs meet CIDQ's standards compared to the Board's current eligibility requirements, graduates of those programs may now be eligible for registration. If more individuals achieve registration, the public could benefit from a larger population of registered interior designers who have demonstrated competence through education, experience, and examination, and are subject to the Board's continuing education requirements and oversight. Furthermore, candidates for registration will benefit from a simplified process under which the requirements for registration and the requirements for examination qualification are the same. Lastly, the grandfathering provisions in proposed §5.31(c) and §5.53(b) will minimize disruption to those with pending applications before the Board at the time the rule takes effect.

Compliance with the proposed amendments are not expected to result in increased economic costs compared to the existing rules. The proposed rules will have no negative fiscal impact on small or micro-business or rural communities, and no Economic Impact Statement or Regulatory Flexibility Analysis is required.

PUBLIC COMMENT

Comments may be submitted to Lance Brenton, General Counsel, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337. Comments must be received by November 7, 2017.

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §5.5

STATUTORY AUTHORITY

The amendment to §5.5 is proposed under Tex. Occ. Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; §1053.152, which requires the Board to establish the qualifications for the issuance or renewal of an interior design registration, including the passage of an examination, payment of required fees, and other qualifications as determined by the Board; §1053.154, which requires an applicant for interior design registration to pass the examination adopted by the board, and authorizes the Board to adopt the NCIDQ examination or a comparable examination; and §1053.155, which requires an applicant for admission to the registration examination to provide evidence satisfactory to the Board that the applicant has satisfied the educational and professional experience requirements for the examination adopted by the board under §1053.154. In part, the definitions in §5.5 provide guidance in understanding the Board's rules relating to the application and examination processes, and the proposed rules will provide additional clarity to the definitions.

CROSS REFERENCE TO STATUTE

The proposed amendments to these rules do not affect any other statutes.

§5.5.Terms Defined Herein.

The following words, terms, and acronyms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (9) (No change.)

(10) Candidate--An individual that is seeking registration by examination but has not yet completed the examination or application process [Applicant approved by the Board to take the Interior Design registration examination].

(11) CEPH--Continuing Education Program Hour(s).

(12) Chair--The member of the Board who serves as the Board's presiding officer.

(13) CIDQ--The Council for Interior Design Qualification.

[(13) CIDA--The Council for Interior Design Accreditation.]

(14) Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents prepared for the purpose(s) of Regulatory Approval, permitting, or construction.

(15) Consultant--An individual retained by a Registered Interior Designer who prepares or assists in the preparation of technical design documents issued by the Registered Interior Designer for use in connection with the Registered Interior Designer's Construction Documents.

(16) Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearings.

(17) Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.

(18) Council for Interior Design Qualification (CIDQ)--An organization comprised of regulatory boards from the United States and Canada which administers the NCIDQ examination.

[(18) Council for Interior Design Accreditation (CIDA)--An agency that sets standards for postsecondary Interior Design education and evaluates college and university Interior Design programs.]

(19) Delinquent--A registration status signifying that a Registered Interior Designer:

(A) has failed to remit the applicable renewal fee to the Board; and

(B) is no longer authorized to use the title "Registered Interior Designer" ["registered interior designer"] in Texas.

[(20) Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.]

(20) [(21)] Emeritus Interior Designer (or Interior Designer Emeritus)--An honorary title that may be used by a Registered Interior Designer who has retired from the practice of Interior Design in Texas pursuant to §1053.156 of the Texas Occupations Code.

(21) [(22)] Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.

(22) [(23)] Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed Interior Design project from a technical Interior Design standpoint.

(23) [(24)] Good Standing--

(A) a registration status signifying that a Registered Interior Designer is not delinquent in the payment of any fees owed to the Board; or

(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by an Interior Design registration board that would provide a ground for the denial of the application for Interior Design registration in Texas.

(24) [(25)] Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.

(25) [(26)] Inactive--A registration status signifying that a Registered Interior Designer may not practice Interior Design in the State of Texas.

(26) [(27)] Interior Design--The identification, research, or development of creative solutions to problems relating to the function or quality of the interior environment; the performance of services relating to interior spaces, including programming, design analysis, space planning of non-load-bearing interior construction, and application of aesthetic principles, by using specialized knowledge of interior construction, building codes, equipment, materials, or furnishings; or the preparation of Interior Design plans, specifications, or related documents about the design of non-load-bearing interior spaces.

(27) [(28)] Interior Designers' Registration Law--Chapter 1053, Texas Occupations Code.

(28) [(29)] Interior Design Intern--An individual participating in an internship to complete the experiential requirements for Interior Design registration by examination in Texas.

(29) [(30)] Licensed--Registered.

(30) [(31)] Member Board--An Interior Design registration board that is part of CIDQ [NCIDQ].

[(32) National Council for Interior Design Qualification (NCIDQ)--A nonprofit organization of state and provincial interior design regulatory agencies and national organizations whose membership is made up in total or in part of interior designers.]

(31) [(33)] NCIDQ--The examination developed and administered by the [National] Council for Interior Design Qualification, which is the adopted examination for registration as a Texas Registered Interior Designer.

(32) [(34)] Nonregistrant--An individual who is not a Registered Interior Designer.

(33) [(35)] Principal--A Registered Interior Designer who is responsible, either alone or with other Registered Interior Designers, for an organization's practice of Interior Design.

(34) [(36)] Registered Interior Designer--An individual who holds a valid Texas Interior Design registration granted by the Board.

(35) [(37)] Registrant--Registered Interior Designer.

(36) [(38)] Regulatory Approval--The approval of Construction Documents by a Governmental Entity after a review of the Interior Design content of the Construction Documents as a prerequisite to construction or occupation of a building of facility.

(37) [(39)] Reinstatement--The procedure through which a Surrendered or Revoked [revoked ] Texas Interior Design registration certificate is restored.

(38) [(40)] Renewal--The procedure through which a Registered Interior Designer pays a periodic fee so that his or her registration certificate will continue to be effective.

(39) [(41)] Responsible Charge--That degree of control over and detailed knowledge of the content of technical submissions during their preparation as is ordinarily exercised by Registered Interior Designers applying the applicable Interior Design standard of care.

(40) [(42)] Revocation or Revoked--The termination of a Texas Interior Design registration certificate by the Board.

(41) [(43)] Rules and Regulations of the Board--22 Texas Administrative Code §§5.1 et seq.

(42) [(44)] Rules of Procedure of SOAH--1 Texas Administrative Code §§155.1 et seq.

(43) [(45)] Secretary-Treasurer--The member of the Board responsible for signing the official copy of the minutes from each Board meeting and maintaining the record of Board members' attendance at Board meetings.

(44) [(46)] Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.

(45) [(47)] SOAH--State Office of Administrative Hearings.

(46) [(48)] Sole Practitioner--A Registered Interior Designer who is the only design professional to offer or render Interior Design [interior design] services on behalf of a business entity.

(47) [(49)] State Office of Administrative Hearings (SOAH)--A governmental entity [Governmental Entity] created to serve as an independent forum for the conduct of adjudicative hearings involving the executive branch of Texas government.

(48) [(50)] Supervision and Control--The amount of oversight by a Registered Interior Designer overseeing the work of another whereby:

(A) the Registered Interior Designer and the individual performing the work can document frequent and detailed communication with one another and the Registered Interior Designer has both control over and detailed professional knowledge of the work; or

(B) the Registered Interior Designer is in Responsible Charge of the work and the individual performing the work is employed by the Registered Interior Designer or by the Registered Interior Designer's employer.

(49) [(51)] Supplemental Document--A document that modifies or adds to the technical Interior Design content of an existing Construction Document.

(50) [(52)] Surrender--The act of relinquishing a Texas Interior Design registration certificate along with all privileges associated with the certificate.

(51) [(53)] Sustainable Design--An integrative approach to the process of design which seeks to avoid depletion of energy, water, and raw material resources; prevent environmental degradation caused by facility and infrastructure development during their implementation and over their life cycle; and create environments that are livable and promote health, safety and well-being. Sustainability is the concept of meeting present needs without compromising the ability of future generations to meet their own needs.

[(54) Table of Equivalents for Education and Experience in Interior Design--22 Texas Administrative Code §§5.201 et. seq. (§§5.201 - 5.203 of this chapter).]

(52) [(55)] TBAE--Texas Board of Architectural Examiners.

(53) [(56)] TDLR--Texas Department of Licensing and Regulation.

(54) [(57)] Texas Department of Licensing and Regulations (TDLR)--A Texas state agency responsible for the implementation and enforcement of the Texas Architectural Barriers Act.

(55) [(58)] Texas Guaranteed Student Loan Corporation (TGSLC)--A public, nonprofit corporation that administers the Federal Family Education Loan Program.

(56) [(59)] TGSLC--Texas Guaranteed Student Loan Corporation.

(57) [(60)] Vice-Chair--The member of the Board who serves as the assistant presiding officer and, in the absence of the Chair, serves as the Board's presiding officer. If necessary, the Vice-Chair succeeds the Chair until a new Chair is appointed.

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 September 25, 2017.

TRD-201703815

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-8519


SUBCHAPTER B. ELIGIBILITY FOR REGISTRATION

22 TAC §§5.31 - 5.33, 5.35 - 5.37

The amendments to §§5.31 - 5.33 and §§5.35 - 5.37 are proposed under Tex. Occ. Code §53.021, which authorizes the Board to suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of certain criminal offenses; §53.0211, which authorizes the Board to issue a provisional license for a term of six months to an applicant who has been convicted of a criminal offense; §53.102, which authorizes a person to request that the Board issue a criminal history evaluation letter regarding the person's eligibility for a registration with the Board; §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; §1051.207, which directs the Board to adopt rules as necessary to comply with Occupations Code Chapter 53; §1051.305, which authorizes the Board to grant a registration by reciprocity to certain applicants registered in other jurisdictions; §1053.152, which requires the Board to establish the qualifications for the issuance or renewal of an interior design registration, including the passage of an examination, payment of required fees, and other qualifications as determined by the Board; §1053.154, which requires an applicant for interior design registration to pass the examination adopted by the board, and authorizes the Board to adopt the NCIDQ examination or a comparable examination; and §1053.155, which requires an applicant for admission to the registration examination to provide evidence satisfactory to the Board that the applicant has satisfied the educational and professional experience requirements for the examination adopted by the board under §1053.154.

§5.31.Registration by Examination.

(a) In order to obtain Interior Design registration by examination in Texas, an Applicant shall demonstrate that the Applicant has satisfied the educational and professional experience eligibility requirements adopted by the Council for Interior Design Qualification (CIDQ) to sit for the NCIDQ examination, [a combined total of at least six years of approved Interior Design education and experience ] and shall successfully complete the NCIDQ [Interior Design registration] examination or a predecessor or other examination deemed equivalent by CIDQ [NCIDQ] as more fully described in Subchapter C of this chapter.

(b) Alternatively, prior to December 31, 2018, an Applicant may obtain Interior Design registration by examination by successfully completing the Architectural Registration Examination or another examination deemed equivalent by NCARB after fulfilling the prerequisites of §1.21 and §1.41 of this title relating to Board approval to take the Architectural Registration Examination for architectural registration by examination. This subsection is repealed effective January 1, 2019.

(c) An Applicant for Interior Design registration by examination who, as of January 1, 2018, has been approved to take the examination by the Board and has paid all application maintenance fees associated with the application, may qualify for registration by successfully completing the NCIDQ or other qualifying examination and satisfying:

(1) the educational and professional experience required by CIDQ to sit for its examination; or

(2) the educational and professional experience requirements adopted by the Board and in effect at the time the application was filed.

[(c) For purposes of this section, an Applicant has "approved Interior Design education" if:]

[(1) The Applicant graduated from:]

[(A) a program that has been granted professional status by the Council for Interior Design Accreditation (CIDA) or the National Architectural Accreditation Board (NAAB);]

[(B) a program that was granted professional status by CIDA or NAAB not later than two years after the Applicant's graduation;]

[(C) a program that was granted candidacy status by CIDA or NAAB and became accredited by CIDA or NAAB not later than three years after the Applicant's graduation; or]

[(D) an Interior Design education program outside the United States where an evaluation by World Education Services or another organization acceptable to the Board has concluded that the program is substantially equivalent to a CIDA or NAAB accredited professional program;]

[(2) The Applicant has a doctorate, a master's degree, or a baccalaureate degree in Interior Design;]

[(3) The Applicant has:]

[(A) A baccalaureate degree in a field other than Interior Design; and]

[(B) An associate's degree or a two- or three-year certificate from an Interior Design program at an institution accredited by an agency recognized by the Texas Higher Education CoordinatingBoard;]

[(4) The Applicant has:]

[(A) A baccalaureate degree in a field other than Interior Design; and]

[(B) An associate's degree or a two- or three-year certificate from a foreign Interior Design program approved or accredited by an agency acceptable to the Board.]

[(d) In addition to educational requirements, an applicant for Interior Design registration by examination in Texas must also complete approved experience as more fully described in Subchapter J of this chapter (relating to Table of Equivalents for Education and Experience in Interior Design).]

[(e) The Board shall evaluate the education and experience required by subsection (a) of this section in accordance with the Table of Equivalents for Education and Experience in Interior Design.]

[(f) For purposes of this section, the term "approved Interior Design education" does not include continuing education courses.]

[(g) An Applicant for Interior Design registration by examination who enrolls in an Interior Design educational program after September 1, 2006, must graduate from a program described in subsection (c)(1) of this section.]

(d) [(h)] In accordance with federal law, the Board must verify proof of legal status in the United States. Each Applicant shall provide evidence of legal status by submitting a certified copy of a United States birth certificate or other documentation that satisfies the requirements of the Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. A list of acceptable documents may be obtained by contacting the Board's office.

§5.32.Registration by Reciprocal Transfer.

(a) A person may apply for Interior Design registration by reciprocal transfer if the person holds an Interior Design [interior design] registration that is active and in good standing in another jurisdiction and the other jurisdiction:

(1) has licensing or registration requirements substantially equivalent to Texas registration requirements; or

(2) has entered into a reciprocity agreement with the Board that has been approved by the Governor of Texas.

(b) In order to obtain Interior Design registration by reciprocal transfer, an Applicant must demonstrate that the Applicant has:

(1) successfully completed the NCIDQ examination or a predecessor or other examination deemed equivalent by the [another Interior Design registration examination which the National] Council for Interior Design Qualification (CIDQ) [(NCIDQ) has approved as conforming to NCIDQ's examination standards or as being acceptable in lieu of the NCIDQ examination]; and

(2) acquired at least two years of acceptable Interior Design experience following registration in another jurisdiction.

(c) An Applicant for Interior Design registration by reciprocal transfer must remit the required registration fee to the Board within 60 days after the date of the tentative approval letter sent to the Applicant by the Board.

§5.33.Application Process.

(a) (No change.)

(b) Prior to filing an application for registration by examination, an Applicant must:

(1) satisfy the educational and professional experience eligibility requirements adopted by the Council for Interior Design Qualification (CIDQ) to sit for the NCIDQ examination; and

(2) be approved by CIDQ to sit for the examination.

(c) An application for TBAE registration by examination must include:

(1) a verified statement of the Applicant's education, such as a transcript;

(2) a detailed summary of the Applicant's interior design work experience; and

(3) proof of approval by CIDQ to sit for the examination.

(d) [(b)] Upon receipt of the completed application and all required supporting documentation and receipt of the required application fee, the Board shall evaluate the Applicant's application materials. The Board may require additional information or documentation from the Applicant.

(e) [(c)] The Board will notify each Applicant in writing regarding the approval or rejection of the Applicant's application.

(f) [(d)] Pursuant to the provisions of §231.302 of the Texas Family Code, each Applicant shall submit his/her social security number to the Board. The Applicant's social security number shall be considered confidential as stated in §231.302(e) of the Texas Family Code.

(g) [(e)] The Board may take action against an Applicant or Candidate pursuant to §5.160 of this title (relating to Effect of Enforcement Proceedings on Application).

§5.35.Pending Applications.

(a) (No change.)

(b) Each Applicant [Candidate approved for examination] must pay an annual record maintenance fee as prescribed by the Board or the [Candidate's] application file will be closed. An Applicant [A Candidate] may reopen an application file that was closed pursuant to this section only after payment of a fee equal to the sum of the record maintenance fees for the current year and each year the file has been closed plus any costs directly related to the reopening of the application file. An application file that has been closed for five years or longer may not be reopened.

§5.36.Preliminary Evaluation of Criminal History.

(a) An Applicant, Candidate or a person enrolled or planning to enroll in a qualifying Interior Design [an accredited interior design] educational program may make a written request to the Board's executive director for a preliminary criminal history evaluation letter which states the person's eligibility for registration under §5.158 of this chapter (relating to Criminal Convictions).

(b) - (g) (No change.)

§5.37.Provisional Licensure.

(a) The Board shall grant a Certificate of Registration or a provisional Certificate of Registration to an otherwise qualified Applicant [Candidate] who has been convicted of an offense that:

(1) is not directly related to the Practice of Interior Design as determined by the executive director under §5.158 of this chapter (relating to Criminal Convictions);

(2) was committed earlier than five (5) years before the date the Applicant [Candidate] filed an application for registration;

(3) is not an offense listed in §3g, Article 42.12, Code of Criminal Procedure; and

(4) is not a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.

(b) - (e) (No change.)

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 September 25, 2017.

TRD-201703813

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-8519


SUBCHAPTER C. EXAMINATION

22 TAC §§5.51 - 5.53, 5.55

STATUTORY AUTHORITY

The amendments to §§5.51 - 5.53, and §5.55 are proposed under Tex. Occ. Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; §1051.301, which requires the Board to adopt rules to ensure that an examination is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and its subsequent amendments; §1053.152, which requires the Board to establish the qualifications for the issuance or renewal of an interior design registration, including the passage of an examination, payment of required fees, and other qualifications as determined by the Board; §1053.154, which requires an applicant for interior design registration to pass the examination adopted by the board, and authorizes the Board to adopt the NCIDQ examination or a comparable examination; and §1053.155, which requires an applicant for admission to the registration examination to provide evidence satisfactory to the Board that the applicant has satisfied the educational and professional experience requirements for the examination adopted by the board under §1053.154.

§5.51.Requirements.

(a) An Applicant for Interior Design registration by examination in Texas must meet the eligibility and application requirements contained in §5.33(b) and (c) of this chapter, and successfully complete all sections of the NCIDQ [National Council for Interior Design Qualification (NCIDQ)] examination or a predecessor or other examination deemed equivalent by the Council for Interior Design Qualification (CIDQ) [NCIDQ deems equivalent to the NCIDQ examination]. Alternatively, prior to December 31, 2018, an applicant may obtain Interior Design registration by examination by successfully completing all sections of the Architectural Registration Examination (ARE), or another examination NCARB deems equivalent to the ARE, after fulfilling the requirements of §1.21 and §1.41 of this title relating to Board approval to take the ARE for architectural registration by examination.

[(b) The Board may approve an Applicant to take the NCIDQ examination only after the Applicant has completed the educational requirements for Interior Design registration by examination in Texas, has completed at least six (6) months of full-time experience working under the Direct Supervision of a Registered Interior Designer, and has submitted the required application materials. In jurisdictions where interior designers are not licensed, the supervision may be under a licensed architect or a Registered Interior Designer who has passed the NCIDQ examination.]

[(c) An Applicant may take the NCIDQ examination at any official NCIDQ testing center but must satisfy all Texas registration requirements in order to obtain Interior Design registration by examination in Texas.]

(b) [(d)] Each Applicant [Candidate] must achieve a passing score in each division of the NCIDQ examination. Scores from individual divisions may not be averaged to achieve a passing score.

(c) [(e)] An examination fee may be refunded as follows:

(1) The application fee paid to the Board is not refundable or transferable.

(2) The Board, on behalf of an examinee [a Candidate], may request a refund of a portion of the examination fee paid to CIDQ [the national examination provider] for scheduling all or a portion of the registration examination. A charge for refund processing may be withheld by CIDQ [the national examination provider]. Refunds of examination fees are subject to the following conditions:

(A) An examinee [A Candidate], because of extreme hardship, must have been precluded from scheduling or taking the examination or a portion of the examination. For purposes of this subsection, extreme hardship is defined as a serious illness or accident of the examinee [Candidate] or a member of the examinee's [Candidate's] immediate family or the death of an immediate family member. Immediate family members include the spouse, child(ren), parent(s), and sibling(s) of the examinee [Candidate]. Any other extreme hardship may be considered on a case-by-case basis.

(B) A written request for a refund based on extreme hardship must be submitted not later than thirty (30) days after the date the examination or portion of the examination was scheduled or intended to be scheduled. Documentation of the extreme hardship that precluded the examinee [applicant] from scheduling or taking the examination must be submitted by the examinee [Candidate] as follows:

(i) Illness: verification from a physician who treated the illness.

(ii) Accident: a copy of an official accident report.

(iii) Death: a copy of a death certificate or newspaper obituary.

(C) Approval of the request and refund of the fee or portion of the fee by CIDQ [the national examination provider].

(3) An examination fee may not be transferred to a subsequent examination.

§5.52.Examination Administration and Scoring.

(a) An Applicant must apply for Interior Design registration by examination as described in §5.33 of this title (relating to Application Process).

(b) Unless otherwise noted in this chapter, the administration and scoring of the NCIDQ examination shall be governed by the procedures adopted by the Council for Interior Design Qualification (CIDQ). [The NCIDQ examination shall be administered once during the spring and once during the fall of every year.]

[(c) In order for an Applicant to take the NCIDQ examination in the spring, the Applicant's application and supporting documentation must be postmarked or received by the Board no later than December 1st of the preceding year. In order for an Applicant to take the NCIDQ examination in the fall, the Applicant's application and supporting documentation must be postmarked or received by the Board no later than June 1st. If the deadline falls on a date when the Board's office is closed, the application and supporting documentation must be postmarked or received by the Board no later than the next date when the Board's office is open.]

[(d) A Candidate who is approved to take the NCIDQ examination must appear personally for examination as directed in the notification letter sent to the Applicant. In order to be admitted for examination, the Candidate must present the candidate's identification card that was mailed to the Candidate prior to the examination date and must present a separate official form of identification bearing a recent photograph of the Candidate.]

[(e) Each Candidate shall be responsible for taking to the examination all tools necessary to complete the examination.]

[(f) An explanation of the scoring procedures for the NCIDQ examination shall be provided to each Candidate before the examination is administered to the Candidate.]

[(g)] [A Candidate's NCIDQ examination scores shall be determined by the entity that administers the examination. ] The Board shall not review any NCIDQ examination score to determine its validity.

[(h) If, for any reason, a Candidate takes a section or sections of the NCIDQ examination but does not receive a score for the section or sections, the Board shall have no liability beyond authorizing the Candidate to retake the section or sections with the corresponding fee waived.]

§5.53.Scheduling of Examinations. [Reexamination.]

(a) In order to qualify for registration by examination, an Applicant must schedule and pass all sections of the NCIDQ within the time period required by the Council for Interior Design Qualification (CIDQ). [A Candidate's passing grade for any section of the examination is valid for five (5) years. Each Candidate must pass all sections of the examination within five (5) years after the date the Candidate passes a section of the examination. A Candidate who does not pass all sections of the examination within five (5) years after passing a section of the examination will forfeit credit for the section of the examination passed and must pass that section of the examination again.]

(b) Notwithstanding subsection (a) of this section, an Applicant described by §5.31(c) of this chapter may schedule and pass all sections of the NCIDQ examination within the time period:

(1) required by CIDQ; or

(2) adopted by the Board and in effect at the time the application was filed.

(c) [(b)] A qualifying examinee may request an extension if the examinee is [The Board may grant extensions to the 5-year period for completion of the examination if the Candidate is] unable to pass all sections of the examination within the required time [that] period for the following reasons:

(1) The examinee [Candidate] gave birth to, or adopted a child [within that 5-year period];

(2) The examinee [Candidate] developed a serious medical condition [within that 5-year period]; or

(3) The examinee [Candidate] commenced active duty service as a member of the United States military [within that 5-year period].

(d) [(c)] An examinee [Candidate] may receive an extension of up to 6 months for the birth or adoption of a child by filing a written application with the Board together with any corroborating evidence immediately after the examinee [Candidate] learns of the impending adoption or birth. An examinee [A Candidate] may receive an extension for the period of the serious medical condition or for the period of active duty military service by filing a written application with the Board together with corroborating evidence immediately after the examinee [Candidate] learns of the medical condition or the commencement of active duty military service. An examinee [A Candidate] shall immediately notify the Board in writing when the medical condition is resolved or active duty military service ends. Any request for an extension under this section must be approved by the Board and CIDQ.

§5.55.Special Accommodations.

(a) - (c) (No change.)

(d) Procedure for requesting accommodation:

(1) To protect the integrity of the testing process, an examinee [Applicant] requesting an accommodation must submit documentation regarding the existence of a disability and the reason the requested accommodation is necessary to provide the examinee [Applicant] with an equal opportunity to exhibit his/her knowledge, skills, and ability through the examination. The Board shall evaluate each request on a case-by-case basis.

(2) An examinee [Applicant] requesting an accommodation must have a licensed health care professional or other qualified evaluator provide certification regarding the disability as described in Subsection (e) of this section.

(3) An examinee [Applicant] seeking an accommodation must make a request for accommodation on the prescribed form and provide documentation of the need for accommodation well in advance of the examination date. If the form is submitted less than sixty (60) days prior to the examination date, the Board will attempt to process the request but might not be able to provide the necessary accommodation for the next examination.

(e) The following information is required to support a request for an accommodation or an auxiliary aid:

(1) Identification of the type of disability (physical, mental, learning);

(2) Credential requirements of the evaluator:

(A) For physical or mental disabilities (not including learning), the evaluator shall be a licensed health care professional qualified to assess the type of disability claimed. If a person who does not fit these criteria completes the evaluation, the Board may reject the evaluation and require another evaluation, and the request for accommodation may be delayed.

(B) In the case of learning disabilities, a qualified evaluator shall have sufficient experience to be considered qualified to evaluate the existence of learning disabilities and proposed accommodations needed for specific learning disabilities. The evaluator shall be one of the following:

(i) a licensed physician or psychologist with a minimum of three years' experience working with adults with learning disabilities; or

(ii) another professional who possesses a master's or doctorate degree in special education or educational psychology and who has at least three years of equivalent training and experience in all of the areas described below:

(I) assessing intellectual ability and interpreting tests of such ability;

(II) screening for cultural, emotional, and motivational factors;

(III) assessing achievement level; and

(IV) administering tests to measure attention and concentration, memory, language reception and expression, cognition, reading, spelling, writing, and mathematics.

(3) Professional verification of the disability, which shall include a description of:

(A) the nature and extent of the disability, including a description of its effect on major life activities and the anticipated duration of the impairment;

(B) the effect of the disability on the examinee's [applicant's] ability to:

(i) evaluate written material;

(ii) complete graphic sections of the examination by drawing, drafting, and lettering; and

(iii) complete computerized sections of the examination that require data entry via keyboard and the manipulation of a mouse.

(C) whether the disability limits the amount of time the examinee [Applicant] can spend on specific examination tasks;

(D) the recommended accommodation and how it relates to the examinee's [applicant's] disability;

(E) the professional's name, title, telephone number, and his/her original signature;

(F) any other information necessary, in the professional's opinion, to enable the exam provider to understand the examinee's disability and the accommodation necessary to enable the examinee to demonstrate his/her knowledge, skills, and ability.

(f) Documentation supporting an accommodation shall be valid for five (5) years from the date submitted to the Board except that no further documentation shall be required where the original documentation clearly states that the disability will not change in the future.

(g) The Board has the responsibility to evaluate each request for accommodation and to approve, deny, or suggest alternative reasonable accommodations. The Board may consider an examinee's [Applicant's] history of accommodation in determining its reasonableness in relation to the currently identified impact of the disability.

(h) Information related to a request for accommodation shall be kept confidential to the extent provided by law.

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 September 25, 2017.

TRD-201703816

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-8519


22 TAC §5.54

STATUTORY AUTHORITY

The repeal of §5.54 is proposed under Tex. Occ. Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; §1053.152, which requires the Board to establish the qualifications for the issuance or renewal of an interior design registration, including the passage of an examination, payment of required fees, and other qualifications as determined by the Board; §1053.154, which requires an applicant for interior design registration to pass the examination adopted by the board, and authorizes the Board to adopt the NCIDQ examination or a comparable examination; and §1053.155, which requires an applicant for admission to the registration examination to provide evidence satisfactory to the Board that the applicant has satisfied the educational and professional experience requirements for the examination adopted by the board under §1053.154.

§5.54.Transfer of Passing Scores.

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 September 25, 2017.

TRD-201703817

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-8519


SUBCHAPTER J. TABLE OF EQUIVALENTS FOR EDUCATION AND EXPERIENCE IN INTERIOR DESIGN

22 TAC §§5.201 - 5.203

STATUTORY AUTHORITY

The repeal of §§5.201 - 5.203 is proposed under Tex. Occ. Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of interior design; §1053.152, which requires the Board to establish the qualifications for the issuance or renewal of an interior design registration, including the passage of an examination, payment of required fees, and other qualifications as determined by the Board; §1053.154, which requires an applicant for interior design registration to pass the examination adopted by the board, and authorizes the Board to adopt the NCIDQ examination or a comparable examination; and §1053.155, which requires an applicant for admission to the registration examination to provide evidence satisfactory to the Board that the applicant has satisfied the educational and professional experience requirements for the examination adopted by the board under §1053.154.

§5.201.Description of Approved Education for Registration by Examination.

§5.202.Description of Approved Experience for Registration by Examination.

§5.203.Other Education and Experience.

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 September 25, 2017.

TRD-201703818

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-8519


PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 463. APPLICATIONS AND EXAMINATIONS

22 TAC §463.1

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.

§463.1.Types of Licensure.

The Board accepts applications for four types of licenses to practice psychology in the state of Texas:

(1) Licensed Psychological Associate. This is a license for qualified individuals with a graduate degree to practice psychology [under the supervision of a licensed psychologist]. Requirements for the psychological associate license are found in §463.8 of this title (relating to Licensure as a Psychological Associate) and §463.14 of this title (relating to Written Examinations).

(2) Licensed Specialist in School Psychology. This license is required by law for the practice of school psychology in the public schools of Texas. Requirements for the specialist in school psychology license are found in §463.9 of this title (relating to Licensure as a Specialist in School Psychology) and §463.14 of this title.

(3) Provisionally Licensed Psychologist. This is a doctoral level license to practice psychology under the supervision of a licensed psychologist. This license is a prerequisite for licensure as a psychologist. Requirements for provisionally licensed psychologist are found in §463.10 of this title (relating to Provisionally Licensed Psychologist) and §463.14 of this title.

(4) Licensed Psychologist. This is a doctoral level license for the independent practice of psychology. It is obtained by two means:

(A) Obtaining provisional licensure as a psychologist, completing the required two years of supervised experience and taking and passing the required oral exam. Requirements for licensure as a psychologist are found in §463.11 of this title (relating to Licensed Psychologist), §463.14 of this title, and §463.15 of this title (relating to Oral Examination).

(B) Applying from a jurisdiction which holds a reciprocity agreement with Texas, meeting the Board's requirements for licensure by reciprocity, and passing the Board's Jurisprudence Exam. Criteria for reciprocity jurisdictions are listed in §463.29 of this title (relating to Reciprocity Requirements). Requirements for licensure as a psychologist by means of reciprocity are found in §463.12 of this title (relating to Licensed Psychologist by Reciprocity) and §463.14 of this title.

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 September 25, 2017.

TRD-201703808

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7706


22 TAC §463.8

The Texas State Board of Examiners of Psychologists proposes the repeal of rule §463.8, Licensed Psychological Associate. The proposed repeal will correspond with the proposal of the new rule §463.8, 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 new rule would allow experienced LPAs to practice independently. This proposed rule change addresses the licensed mental health provider shortage in Texas by fully utilizing LPAs in the workforce today. The proposed 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 repeal and new rule 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 repeal and new 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 REPEAL AND NEW RULE

The proposed repeal and new rule 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. The proposed repeal and new rule takes into account this wide spectrum of competency possessed by LPAs.

The proposed repeal and new rule would allow an LPA to practice independently, without supervision, if they meet certain requirements. The proposed repeal and new rule 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 repeal and new rule 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 repeal and new rule 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 repeal and new rule addresses the shortage of licensed mental health professionals in Texas.

LPAs are strategically positioned to impact the mental health shortage in Texas. Just like many professions, timely supervision of new graduates is a vital tool to assure quality care is passed from provider to provider. Unlike other professions, LPAs must be supervised long after best practices have been learned. Allowing unsupervised practice of LPAs frees psychologists from working as managers, and allows both professionals to better serve a vulnerable population.

It is well established that the State faces a shortage of licensed mental health care providers. For example, pursuant to House Bill 1023 from the 83rd Legislature, the Texas Department of State Health Services issued a report in February of 2014 titled The Mental Health Workforce Shortage in Texas which found that there were no practicing clinical psychologists in any of the rural border counties. The report further determined that while Texans living in major metropolitan areas of the state were served by one psychologist (of any license type issued by the Board) for every 3,190 Texas, and in non-metropolitan areas along the border there was only one psychologist per 20,024 Texans. The findings of this report as they pertain to licensees of the Board are incorporated herein by reference.

The proposed repeal and new rule addresses licensed mental health provider shortages by fully utilizing professionals in the workforce today. For example, currently 35 LPAs have provided an address to the Board within a county along the border. These LPAs may be able to expand their practice along the border if they are no longer limited by the availability of a supervisor. Additionally, other LPAs will be able to expand their services to underserved counties where they are currently unable to practice due to the lack of an available LP to provide supervision.

The proposed repeal and new rule responds to stakeholder and legislative requests for a change to the LPA supervision requirements.

The proposed repeal and new rule 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 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 Professional Counselors). The proposed repeal and new rule helps ensure consistent training requirements for these dual-licensed mental health professionals.

The proposed repeal and new rule 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 repeal and new rule 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 repeal and new rule 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 repeal and new rule to result in an increase in the number of mental health providers licensed by this agency, because if LPAs are allowed to practice independently than 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 repeal and new rule is in effect, the rule will carry a probable economic cost to some individuals required to comply with the rule. In 2019 there will be a probable economic cost to LPAs to comply with the proposed repeal and new rule. Under the proposed rule, 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 repeal and new rule 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 repeal and new rule change.

Some LPs and LPAs may have entered into fee arrangements for the LPAs supervision. This proposed repeal and new rule 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 LP income 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 repeal and new 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 repeal and new rule 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 repeal and new rule 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 proposed repeal and new rule 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 rule, 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 rule.

Finally, the Board's staff considered a no-change alternative rule 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 rule. 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 repeal and new rule.

RURAL IMPACT STATEMENT: The Board anticipates that the proposed repeal and new rule 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 proposed repeal and new rule 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 rule, an alternative version of the rule regarding rural communities was not considered by the Board.

LOCAL EMPLOYMENT IMPACT STATEMENT. The proposed repeal and new rule 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 repeal and new rule reduces the burdens and responsibilities imposed on regulated persons; 2) this proposed repeal and new rule 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 repeal and new rule is in effect, the Board estimates that the proposed new rule will not affect government growth. This proposed repeal and new rule 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 repeal 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 repeal will have an adverse economic effect on small businesses; if the proposed repeal is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the repeal, describe and estimate the economic impact of the repeal on small businesses, offer alternative methods of achieving the purpose of the repeal, 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 repeal 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. Govt. Code.

STATUTORY AUTHORITY. The repeal 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 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 repeal 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 §§463.1, 463.8, 463.14 and 465.2 of these titles will be affected by this proposed repeal. No other code, articles or statutes are affected by this section.

§463.8.Licensed Psychological Associate.

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 September 25, 2017.

TRD-201703809

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7706


22 TAC §463.8

The Texas State Board of Examiners of Psychologists (Board) proposes new rule §463.8, 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 new rule would allow experienced LPAs to practice independently. This proposed new rule change addresses the licensed mental health provider shortage in Texas by fully utilizing LPAs in the workforce today. The proposed 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 rule 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 new rule 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 new rule takes into account this wide spectrum of competency possessed by LPAs.

The proposed new rule would allow an LPA to practice independently, without supervision, if they meet certain requirements. The proposed new rule 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 new rule 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 new rule 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 new rule addresses the shortage of licensed mental health professionals in Texas.

LPAs are strategically positioned to impact the mental health shortage in Texas. Just like many professions, timely supervision of new graduates is a vital tool to assure quality care is passed from provider to provider. Unlike other professions, LPAs must be supervised long after best practices have been learned. Allowing unsupervised practice of LPAs frees psychologists from working as managers, and allows both professionals to better serve a vulnerable population.

It is well established that the State faces a shortage of licensed mental health care providers. For example, pursuant to House Bill 1023 from the 83rd Legislature, the Texas Department of State Health Services issued a report in February of 2014 titled The Mental Health Workforce Shortage in Texas which found that there were no practicing clinical psychologists in any of the rural border counties. The report further determined that while Texans living in major metropolitan areas of the state were served by one psychologist (of any license type issued by the Board) for every 3,190 Texas, and in non-metropolitan areas along the border there was only one psychologist per 20,024 Texans. The findings of this report as they pertain to licensees of the Board are incorporated herein by reference.

The proposed new rule addresses licensed mental health provider shortages by fully utilizing professionals in the workforce today. For example, currently 35 LPAs have provided an address to the Board within a county along the border. These LPAs may be able to expand their practice along the border if they are no longer limited by the availability of a supervisor. Additionally, other LPAs will be able to expand their services to underserved counties where they are currently unable to practice due to the lack of an available LP to provide supervision.

The proposed new rule responds to stakeholder and legislative requests for a change to the LPA supervision requirements.

The proposed new rule 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 Professional Counselors). The proposed new rule helps ensure consistent training requirements for these dual-licensed mental health professionals.

The proposed new rule 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 new rule 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 new rule 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 new rule 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 new rule is in effect, the rule will carry a probable economic cost to some individuals required to comply with the rule. In 2019 there will be a probable economic cost to LPAs to comply with the proposed rule. Under the proposed rule, 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 new rule 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 rule change.

Some LPs and LPAs may have entered into fee arrangements for the LPAs supervision. This proposed rule 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 new rule 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 new rule 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 rule 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 rule, 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 new rule.

Finally, the Board's staff considered a no-change alternative rule 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 rule. 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 rule.

RURAL IMPACT STATEMENT: The Board anticipates that the proposed new rule 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 new rule 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 rule, an alternative version of the rule regarding rural communities was not considered by the Board.

LOCAL EMPLOYMENT IMPACT STATEMENT. The proposed new rule 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 new rule reduces the burdens and responsibilities imposed on regulated persons; 2) this proposed new rule 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 new rule is in effect, the Board estimates that the proposed new rule will not affect government growth. This proposed new rule 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 new rule 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 new rule will have an adverse economic effect on small businesses; if the proposed rule 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 new rule 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 new rule 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 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 new 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.

Board rules 22 Tex. Admin. Code §§463.1, 463.14 and 465.2 of these titles will be affected by this rule. No other code, articles or statutes are affected by this section.

§463.8.Licensed Psychological Associate (LPA).

(a) Licensure Requirements. An applicant for licensure as a psychological associate must:

(1) hold a graduate degree in psychology from a regionally accredited institution of higher education;

(2) provide documentation of at least six (6) semester credit hours of practicum, internship or other structured experience within the applicant's graduate degree program under the supervision of a licensed psychologist;

(3) pass all examinations required by the board and meet each of the criteria listed in §501.255(a)(2)-(9) of the Occupations Code; and

(4) demonstrate graduate level coursework in each of the following areas:

(A) Psychological Foundations:

(i) the biological bases of behavior;

(ii) the acquired or learned bases of behavior, including learning, thinking, memory, motivation and emotion;

(iii) the social, cultural, and systemic bases of behavior;

(iv) the individual or unique bases of behavior, including personality theory, human development, and abnormal behavior;

(B) Research and Statistics:

(i) the methodology used to investigate questions and acquire knowledge in the practice of psychology;

(ii) coursework in research design and methodology, statistics, critical thinking, and scientific inquiry;

(C) Applied Psychology:

(i) the history, theory, and application of psychological principles;

(ii) the application of psychological theories to individuals, families, and groups;

(D) Assessment:

(i) intellectual, personality, cognitive, physical, and emotional abilities, skills, interests, and aptitudes;

(ii) socio-economic, including behavioral, adaptive, and cultural assessment;

(E) Interventions:

(i) the application of therapeutic techniques;

(ii) the behavior management;

(iii) consultation; and

(F) Scientific and Professional, Legal, and Ethical Issues.

(b) Degree Requirements.

(1) For purposes of this rule:

(A) a graduate degree in psychology means the name of the candidate's major or program of studies contains the term "psychology;"

(B) a specialist degree shall be treated as a graduate degree; and

(C) one semester credit hour equals one and one-half quarter credit hours.

(2) A degree utilized to meet the requirements of this rule must consist of at least sixty (60) semester credit hours, with no more than twelve (12) semester credit hours of practicum, internship, or structured experience being counted toward the total degree hour requirement.

(3) Applicants must demonstrate proof of the graduate level coursework required in subsection (a)(4) of this section by identifying which courses or training listed on their transcripts satisfy the required areas of study. Applicants may be required to provide the board with an official course catalogue or description from their university or training program to verify whether a course meets the requirements of this rule.

(c) Supervision Requirements.

(1) A licensed psychological associate must practice under the supervision of a licensed psychologist and may not practice independently.

(2) Notwithstanding subsection (c)(1) and subject to the limitations set out in subsection (c)(3) below, a licensed psychological associate may practice independently if:

(A) the licensee can demonstrate at least 3,000 hours of post-graduate degree experience in the delivery of psychological services under the supervision of one or more licensed psychologists;

(B) the supervised experience was obtained in not less than 24 consecutive months, but not more than 48 consecutive months, and in not more than three placements; and

(C) the licensee submits an application for independent practice evidencing proof of the required supervised experience.

(3) A licensed psychological associate meeting the requirements of subsection (c)(2) shall be approved for independent practice, but remains subject to all board rules, including Board rule §465.9 relating to competency.

(4) Applicants may not utilize any supervised experience obtained from a psychologist with a restricted license or to whom they are related within the second degree of affinity or consanguinity to satisfy the requirements of this rule.

(5) Applicants licensed as specialists in school psychology may utilize experience acquired under that license if the experience was supervised by a licensed psychologist.

(d) Notwithstanding subsection (c)(3), an application for independent practice may be denied if a gap of more than two years exists between the completion of the supervised experience required for independent practice and the date of application for independent practice. The rules governing the waiver of gaps related to supervised experience found in Board rule §463.11 shall govern any request for a waiver under this rule.

(e) The correct title for a person licensed under this rule shall be "licensed psychological associate" or "psychological associate."

(f) A licensed psychological associate authorized to practice independently under this rule must inform all patients and clients as part of the informed consent process, whether the licensee holds a masters, specialist or doctoral degree, and provide the patient with a current copy of any informational pamphlet or brochure published by the Board describing the differences between the levels of training and education received in masters, specialist, and doctoral degree programs. In lieu of providing each patient or client with a copy of the required pamphlet or brochure, licensees may publish in a conspicuous manner, the pamphlet or brochure on their website or provide a link to the pamphlet or brochure on the Board's website.

(g) Continuation of Prior Law.

(1) Notwithstanding subsection (b)(1)(A), a person who begins a graduate program leading to a degree required by subsection (a)(1) before August 31, 2019, will be considered to have met the requirements of that subsection if the individual's degree is primarily psychological in nature. This subsection expires on August 31, 2021.

(2) Notwithstanding subsection (b)(2), a person who begins a graduate program leading to a degree required by subsection (a)(1) before August 31, 2019, will be considered to have met the requirements of that subsection if the individual has completed 42 semester credit hours with at least 27 of those hours in psychology. Applicants with degrees consisting of less than 42 semester credit hours may utilize a maximum of 12 semester credit hours from another graduate degree program in psychology to achieve the total of 42 semester credit hours. This subsection expires on August 31, 2021.

(h) Notwithstanding subsections (c)(1)-(3), a licensed psychological associate with an active license as of September 1, 2017 who maintained an active license throughout the three years preceding that date, is considered to have met the requirements of subsection (c)(2) and may practice independently in accordance with subsection (c)(3).

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 September 25, 2017.

TRD-201703810

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7706


22 TAC §463.14

The Texas State Board of Examiners of Psychologist (Board) proposes amendment to rule §463.14, Written Examinations. The proposed amendment is necessary to ensure conformity in the Board's rules, namely the proposed new rule §463.8 of this title, Licensed Psychological Associate (LPA), and provide reasonable assurance of competency from licensed psychological associates engaged in independent practice.

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 proposed 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 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.

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.

The proposed amendment increases the examination score requirements for LPA applicants to match the scores of other licensees of this Board who can practice independently. The increased examination score requirements are necessary to protect the health, safety, and welfare of public and help ensure future licensees have the requisite knowledge to be qualified for independent practice.

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.

§463.14.Written Examinations.

(a) Jurisprudence Examination. All applicants for licensure by the Board are required to pass the Jurisprudence Examination prior to licensure.

(b) Examination in School Psychology. Applicants for licensure as a specialist in school psychology must take the National School Psychology Examination administered by the Educational Testing Service and obtain at least the current cut-off score for the National Certified School Psychologist before applying for the Licensed Specialist in School Psychology.

(c) Examination for Professional Practice in Psychology. All applicants for licensure as a psychological associate, provisional licensure as a psychologist, or licensure as a psychologist are required to pass the Examination for Professional Practice in Psychology (EPPP) prior to the Board granting licenses.

(d) Applicants Having Previously Taken the EPPP [Professional Examination]. An applicant for licensure who has taken the EPPP either in the past or in another jurisdiction will not be required to retake the exam provided that:

(1) the applicant's score satisfies [satisfied ] the Board's current minimum acceptable score for licensure; and

(2) the applicant can demonstrate that he/she has remained professionally involved in psychology; i.e., at least half-time professional employment and/or academic enrollment in a regionally accredited educational institution.

[(e) Doctoral Applicants Taking Exam at Master's Level. An applicant for provisional licensure as a psychologist who has taken the EPPP at the master's level will not be required to retake the exam provided that:]

[(1) the applicant's score satisfied the Board's current minimum acceptable score for doctoral level applicants; and]

[(2) the applicant can demonstrate that he or she has remained academically and/or professionally involved in psychology.]

(e) [(f)] Cutoff Scores for the EPPP. The minimum acceptable score for the EPPP is seventy percent (70%) of questions scored [for psychologist licensure applicants and fifty-five percent (55%) of questions scored for psychological associate licensure applicants] on the pencil and paper version of the test. For computer-delivered EPPP examinations, the cutoff scaled score is 500. [are 500 and 350 respectively. Applicants for licensure as a psychological associate must receive a minimum score of eighty percent (80%) of questions scored on the Board's Jurisprudence Examination. All other applications for licensure must receive a minimum score of ninety percent (90%) of questions scored on the Board's Jurisprudence Examination. The exam score of applicants for licensure who have already taken the EPPP must satisfy the requirements of the Board as of the date of application to the Board.]

(f) Cutoff Scores for the Jurisprudence Examination. The minimum acceptable score for the jurisprudence examination for all licensure applicants is ninety percent (90%).

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 September 25, 2017.

TRD-201703811

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7706


CHAPTER 465. RULES OF PRACTICE

22 TAC §465.2

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §465.2, Supervision. 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-BUSINES 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 Section §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.

§465.2.Supervision.

(a) Supervision in General. The following rules apply to all supervisory relationships.

(1) A licensee is responsible for the supervision of all individuals that the licensee employs or utilizes to provide psychological services of any kind.

(2) Licensees ensure that their supervisees have legal authority to provide psychological services.

(3) Licensees delegate only those responsibilities that supervisees may legally and competently perform.

(4) All individuals who receive psychological services requiring informed consent from an individual under supervision must be informed in writing of the supervisory status of the individual and how the patient or client may contact the supervising licensee directly.

(5) All materials relating to the practice of psychology, upon which the supervisee's name or signature appears, must indicate the supervisory status of the supervisee. Supervisory status must be indicated by one of the following:

(A) Supervised by (name of supervising licensee);

(B) Under the supervision of (name of supervising licensee);

(C) The following persons are under the supervision of (name of supervising licensee); or

(D) Supervisee of (name of supervising licensee).

(6) Licensees provide an adequate level of supervision to all individuals under their supervision according to accepted professional standards given the experience, skill and training of the supervisee, the availability of other qualified licensees for consultation, and the type of psychological services being provided.

(7) Licensees utilize methods of supervision that enable the licensee to monitor all delegated services for legal, competent, and ethical performance. Methods of supervision may include remote or electronic means if:

(A) adequate supervision can be provided through remote or electronic means;

(B) the difficulties in providing full-time in-person supervision place an unreasonable burden on the delivery of psychological services; and

(C) no more than fifty percent of the supervision takes place through remote or electronic means.

(8) Licensees must be competent to perform any psychological services being provided under their supervision.

(9) Licensees shall document their supervision activities in writing, including any remote or electronic supervision provided. Documentation shall include the dates, times, and length of supervision.

(10) Licensees may only supervise the number of supervisees for which they can provide adequate supervision.

(b) Supervision of Students, Interns, Residents, Fellows, and Trainees. The following rules apply to all supervisory relationships involving students, interns, residents, fellows, and trainees.

(1) Unlicensed individuals providing psychological services pursuant to §§501.004(a)(2), 501.252(b)(2), or 501.260(b)(3) of the Act must be under the supervision of a qualified supervising licensee at all times.

(2) Supervision must be provided by a qualified supervising licensee before it will be accepted for licensure purposes.

(3) A licensee practicing under a restricted status license is not qualified to, and shall not provide supervision for a person seeking to fulfill internship or practicum requirements, or a person seeking licensure under the Psychologists' Licensing Act, regardless of the setting in which the supervision takes place, unless authorized to do so by the Board. A licensee shall inform all supervisees of any Board order restricting their license and assist the supervisees with finding appropriate alternate supervision.

(4) A supervisor must document in writing their supervisee's performance during a practicum, internship, or period of supervised experience required for licensure. The supervisor must provide this documentation to the supervisee.

(5) An individual subject to this subsection may allow a supervisee, as part of a required practicum, internship, or period of supervised experience required for licensure with this Board, to supervise others in the delivery of psychological services.

(6) For provisional trainees, a supervisor must provide at least one hour of individual supervision per week and may reduce the amount of weekly supervision on a proportional basis for provisional trainees working less than full-time.

(7) Licensees may not supervise an individual to whom they are related within the second degree of affinity or consanguinity.

(c) Supervision of Provisionally Licensed Psychologists and Licensed Psychological Associates. The following rules apply to all supervisory relationships involving Provisionally Licensed Psychologists and Licensed Psychological Associates.

(1) Provisionally Licensed Psychologists [and Licensed Psychological Associates] must be under the supervision of a Licensed Psychologist and may not engage in independent practice.

(2) A Provisionally Licensed Psychologist who is licensed in another state to independently practice psychology and is in good standing in that state, and who has applied for licensure as a psychologist may during the time that the Board is processing the applicant's application for licensure as a psychologist, practice psychology without supervision. However, upon notification from the Board that an applicant has not met the qualifications for licensure as a psychologist, the provisionally licensed psychologists must obtain supervision within 30 days in order to continue to practice.

(3) A provisionally licensed psychologist may, as part of a period of supervised experience required for full licensure with this Board, supervise others in the delivery of psychological services.

(4) A supervisor must provide at least one hour of individual supervision per week. A supervisor may reduce the amount of weekly supervision on a proportional basis for supervisees working less than full-time.

(d) Supervision of Licensed Specialists in School Psychology interns and trainees. The following rules apply to all supervisory relationships involving Licensed Specialists in School Psychology, as well as all interns and trainees working toward licensure as a specialist in school psychology.

(1) A supervisor must provide an LSSP trainee with at least one hour of supervision per week, with no more than half being group supervision. A supervisor may reduce the amount of weekly supervision on a proportional basis for trainees working less than full-time.

(2) Supervision within the public schools may only be provided by a Licensed Specialist in School Psychology, who has a minimum of three years of experience providing psychological services within the public school system without supervision. To qualify, a licensee must be able to show proof of their license, credential, or authority to provide unsupervised school psychological services in the jurisdiction where those services were provided, along with documentation from the public school(s) evidencing delivery of those services.

(3) Supervisors must sign educational documents completed for students by the supervisee, including student evaluation reports, or similar professional reports to consumers, other professionals, or other audiences. It is not a violation of this rule if supervisors do not sign documents completed by a committee reflecting the deliberations of an educational meeting for an individual student which the supervisee attended and participated in as part of the legal proceedings required by federal and state education laws, unless the supervisor also attended and participated in such meeting.

(4) Supervisors shall document all supervision sessions. This documentation must include information about the duration of sessions, as well as the focus of discussion or training. The documentation must also include information regarding:

(A) any contracts or service agreements between the public school district and university school psychology training program;

(B) any contracts or service agreements between the public school district and the supervisee;

(C) the supervisee's professional liability insurance coverage, if any;

(D) any training logs required by the school psychology training program; and

(E) the supervisee's trainee or licensure status.

(5) Supervisors must ensure that each individual completing any portion of the internship required by Board rule §463.9, [463.9,] is provided with a written agreement that includes a clear statement of the expectations, duties, and responsibilities of each party, including the total hours to be performed by the intern, benefits and support to be provided by the supervisor, and the process by which the intern will be supervised and evaluated.

(6) Supervisors must ensure that supervisees have access to a process for addressing serious concerns regarding a supervisee's performance. The process must protect the rights of clients to receive quality services, assure adequate feedback and opportunities for improvement to the supervisee, and ensure due process protection in cases of possible termination of the supervisory relationship.

(e) The various parts of this rule should be construed, if possible, so that effect is given to each part. However, where a general provision conflicts with a more specific provision, the specific provision shall control.

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 September 25, 2017.

TRD-201703814

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7706


PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 511. ELIGIBILITY

SUBCHAPTER D. CPA EXAMINATION

22 TAC §511.92

The Texas State Board of Public Accountancy (Board) proposes an amendment to §511.92, concerning Definitions.

Background, Justification and Summary

The amendment to §511.92 utilizes the best language for describing impairments.

Fiscal Note

William Treacy, 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 to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be a better description of impairments.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the amendment does not impose any duties or obligations upon small businesses or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on November 6, 2017.

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 rule 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 Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§511.92.Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Disability--A physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such an impairment; being regarded as having such an impairment.

(2) Learning disability--Evidence of significant learning difficulties which substantially affect or limit one or more major life activities, and which are not primarily due to cultural, emotional, or motivational factors. The term does not include learning problems which are primarily the result of visual, hearing, or motor disabilities, intellectual disabilities [mental retardation], emotional disturbance, or of environmental, cultural, or economic disadvantage. Note that while some of these factors may be involved in other types of disabilities, such factors are excluded from the determination of a learning disability.

(3) Major life activities--Walking, speaking, seeing, hearing, breathing, learning, working, caring for one's self.

(4) Mental impairment--Any mental or psychological disorder such as organic brain syndrome, emotional or mental illness, and specific learning disabilities.

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 September 21, 2017.

TRD-201703740

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7842


22 TAC §511.94

The Texas State Board of Public Accountancy (Board) proposes an amendment to §511.94, concerning Documentation of the Need for an Accommodation.

Background, Justification and Summary

The amendment to §511.94 utilizes the best language for describing impairments.

Fiscal Note

William Treacy, 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 to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be a better description of impairments.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the amendment does not impose any duties or obligations upon small businesses or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on November 6, 2017.

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 rule 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; and finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§511.94.Documentation of the Need for an Accommodation.

(a) Requirements of an applicant requesting accommodation.

(1) To protect the integrity of the testing process, the board requires documentation of the existence of a disability and reason the requested accommodation is necessary to provide the applicant with an equal opportunity to exhibit his/her knowledge, skills, and ability through the examination.

(2) An applicant requesting an accommodation shall have the professional certifying to the disability provide all of the information listed in subsection (c) of this section. For subsequent examinations, the applicant who was earlier provided an accommodation shall submit a statement from the professional who previously certified to the disability condition stating that the disability condition has not changed to the extent that it would require a modification to the accommodation previously provided. The applicant is responsible for any costs involved in providing this documentation.

(3) An evaluation and documentation supporting a disability shall be valid for three years from the date submitted to the board, except that no further documentation shall be required where the evaluation clearly states that the disability will not change in the future.

(b) Additional requirements for an applicant with a learning disability [a learning-disabled applicant].

(1) The applicant shall demonstrate:

(A) at least average overall intellectual functioning as measured by general cognitive ability tests; and

(B) evidence of a significant impairment in one or more of the following areas of intellectual functioning and information processing:

(i) attention and concentration;

(ii) efficiency and speed of information processing;

(iii) reception (perception and verbal comprehension);

(iv) memory (ability for new learning);

(v) cognition (thinking); and

(vi) expression.

(2) Significant impairment is generally determined by a discrepancy of 1.5 standard deviations, or more, between the applicant's intellectual functioning, as measured by general cognitive ability tests, and actual performance on reliable standardized measures of attention and concentration, memory, language reception and expression, cognition, as well as academic areas of reading, spelling, writing, and mathematics.

(3) Further, determination of the learning disability shall be based on reliable standardized psychometric tests of achievement and ability and a complete clinical history including medical, family, developmental, educational and occupational information.

(c) Information required to evaluate disabilities. An applicant who requests an accommodation and/or an auxiliary aid shall provide the board with the necessary information to evaluate the request. The board shall evaluate each request on a case-by-case basis. The following information is required to support requests for an accommodation and/or auxiliary aid:

(1) identification of the type of disability (physical, mental, learning);

(2) credential requirements of the evaluator:

(A) For physical or mental disabilities (not including learning), the evaluator shall be a licensed physician or psychologist with special expertise in the area of the disability. If someone else who does not fit these criteria completes the evaluation, the board may reject the unqualified evaluation and require another evaluation by a professional of its choosing, and the request may be delayed.

(B) In the case of learning disabilities, a qualified evaluator shall have sufficient experience to be considered qualified to evaluate the existence of learning disabilities and proposed accommodations needed for specific learning disabilities. The evaluator shall be one of the following:

(i) a licensed physician or psychologist who possesses a minimum of three years experience working with adults with learning disabilities, and who has training in all of the areas described in clause (ii) of this subparagraph; or

(ii) another professional who possesses a master's or doctoral degree in special education or educational psychology from a regionally accredited institution, defined as being accredited or an applicant for accreditation, identified by the American Association of Collegiate Registrars and Admissions Officers, and who has at least three years of equivalent training and experience in all of the areas described in subclauses (I) - (IV) of this clause:

(I) assessing intellectual ability level and interpreting tests of such ability;

(II) screening for cultural, emotional, and motivational factors;

(III) assessing achievement level; and

(IV) administering tests to measure attention and concentration, memory, language reception and expression, cognition, reading, spelling, writing, and mathematics.

(3) Professional verification of the disability, which shall include:

(A) the nature and extent of the disability;

(B) the test(s) performed to diagnose the disability, if applicable;

(C) the effect of the disability on the applicant's ability to perform under standard testing conditions;

(D) the recommended accommodation and how it relates to the applicant's disability, given the format of the examination;

(E) the professional's name, title, telephone number, professional license or certification number, educational credential, and his/her original signature; and

(F) a description of the professional's educational experience which qualifies him/her to make the determination.

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 September 21, 2017.

TRD-201703742

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7842


SUBCHAPTER F. EXPERIENCE REQUIREMENTS

22 TAC §511.123

The Texas State Board of Public Accountancy (Board) proposes an amendment to §511.123, concerning Reporting Work Experience.

Background, Justification and Summary

The amendment to §511.123 proposes language requiring the supervising CPA to affirm in writing that he has supervised the work of the applicant for at least one year and expresses the opinion that the applicant is qualified to perform accounting work in accordance with professional standards.

Fiscal Note

William Treacy, 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 to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be applicants whose supervisor has affirmed he has supervised the applicants work to perform accounting work in accordance with professional standards.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the amendment does not impose any duties or obligations upon small businesses or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on November 6, 2017.

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 rule 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 Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§511.123.Reporting Work Experience.

(a) The board requires a minimum of one year of work experience as described in §511.122 of this chapter (relating to Acceptable Work Experience) which shall be obtained in one of the following ways:

(1) full time employment consisting of 40 or more hours per week completed in no less than 12 months; or

(2) part time employment consisting of a minimum of 20 hours per week until 2000 hours of accounting work experience have been completed. Part-time work experience must be completed in no more than 24 months from the date the work begins.

(b) All work experience presented to the board for consideration shall be accompanied by the following items:

(1) a statement from the supervising CPA describing the non-routine work performed by the applicant and a description of the important accounting matters requiring the applicant's independent thought and judgment; [and]

(2) a statement from the supervising CPA describing the type of experience that the CPA possesses which qualifies the CPA to supervise the applicant; and[.]

(3) an affidavit from the supervising CPA stating that he has supervised the applicant's work; and offers his opinion that the applicant is qualified to perform all the accounting related work assigned to the applicant in accordance with the professional standards required by the board.

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 September 21, 2017.

TRD-201703743

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7842


CHAPTER 515. LICENSES

22 TAC §515.8

The Texas State Board of Public Accountancy (Board) proposes an amendment to §515.8, concerning Retired or Disability Status.

Background, Justification and Summary

The amendment to §515.8 provides guidance on what constitutes compensation as it applies to retired CPAs, requires retired CPAs to identify themselves as "retired," and expands upon what constitutes what may be considered to be volunteer work performed in retired status.

Fiscal Note

William Treacy, 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 to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be to make it clearer to the public when a CPA is retired and to clarify when a CPA may provide volunteer accounting work when in retired status.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the amendment does not impose any duties or obligations upon small businesses or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on November 6, 2017.

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 rule 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 Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§515.8.Retired or Disability Status.

(a) Retired status. A licensee who is at least 60 years old and has filed a request on a form prescribed by the board stating that he has no association with accounting [work for compensation] may be granted retired status at the time of license renewal. A licensee [An individual] who has been granted retired status and who reenters the workforce in a position that has an association with accounting [work for which he receives compensation] automatically loses the retired status except as provided for in subsection (a)(1) of this section. [A CPA who serves on a Board of Directors, Board of Trustees, or in a similar governance position is not eligible for retired status unless the service is provided without compensation and for a charity, civic, or similar non-profit organization. Upon reentry into the workforce under such conditions, the individual must notify the board and request a new license renewal notice and:]

(1) A licensee who serves without compensation on a Board of Directors, or Board of Trustees, or provides volunteer tax preparation services, participates in a government sponsored business mentoring program such as the Internal Revenue Service's Volunteer Income Tax Assistance (VITA) program or the Small Business Administration's SCORE program or participates in an advisory role for a similar charitable, civic or other non-profit organization continues to be eligible for retired status.

(2) Licensees providing such uncompensated volunteer services have the responsibility to maintain professional competence relative to the volunteer services they provide even though exempted from CPE requirements.

(3) The board shall require licensees to affirm in writing their understanding of the limited types of activities in which they may engage while in retired status and their understanding that they have a professional duty to ensure that they hold the professional competencies necessary to offer these limited volunteer services.

(4) Licensees may only convert to retired status if they hold a license in good standing and not be subject to any sanction or disciplinary action.

(5) Compensated services do not include routine reimbursement for travel costs and meals associated with the volunteer services or de minimis per diem amounts paid to cover such expenses.

(6) A retired licensee shall place the word "retired" adjacent to his CPA or Public Accountant title on any business card, letterhead or any other document. A licensee may be held responsible for a third party incorrectly repeating the CPA's title and shall make reasonable efforts to assure that the word "retired" is used in conjunction with CPA. Any of these terms must not be applied in such a manner that could likely confuse the public as to the current status of the licensee. The licensee will not be required to have a certificate issued with the word "retired" on the certificate.

(7) A licensee in "retired" status is not required to maintain CPE.

(8) A retired licensee shall not offer or render professional services that requires his signature and use of the CPA title either with or without "retired" attached, except a retired licensee providing supervision of an applicant to take the UCPAE may sign the work experience form.

(9) Upon reentry into the workforce, the licensee must notify the board and request a new license renewal notice and:

(A) [(1)] pay the license fee established by the board for the period since he became employed;

(B) [(2)] complete a new license renewal notice; and

(C) [(3)] meet the CPE requirements for the period since he was granted the retired status as required by §523.113(3) [§523.113(1)(B)(ii)] of this title (relating to Exemptions from CPE).

(b) Disability status. Disability status may be granted to an individual who submits to the board a statement and a notarized affidavit from the licensee's physician which identifies the disability and states that the individual is unable to work because of a severe ongoing physical or mental impairment or medical condition that is not likely to improve within the next 12 consecutive months. This status may be granted only at the time of license renewal.

(1) Disability status is immediately revoked upon:

(A) the CPA reentering the workforce in a position that has an association with accounting work for which he receives compensation; or

(B) the CPA serving on a Board of Directors, Board of Trustees, or in a similar governance position unless the service is for a charity, civic, or similar non-profit organization.

(2) Upon reentry into the workforce under such conditions, the individual must notify the board and request a new license renewal notice and:

(A) pay the license fee established by the board for the period since he became employed;

(B) complete a new license renewal notice; and

(C) meet the CPE requirements for the period pursuant to §523.113(3) [§523.113(1)(B)(ii)] of this title.

(c) For purposes of this section the term "association with accounting [work]" shall include the following:

(1) working[, supervising] or providing oversight of accounting or supervising work performed in the areas of financial accounting and reporting; tax compliance, planning or advice; management advisory services; accounting information systems; treasury, finance, or audit; or

(2) representing to the public, including an employer, that the individual is a CPA or public accountant in connection with the sale of any services or products involving accounting services or work, as provided for in §501.52(22) of this title (relating to Definitions) including such designation on a business card, letterhead, proxy statement, promotional brochure, advertisement, or office; or

(3) offering testimony in a court of law purporting to have expertise in accounting and reporting, auditing, tax, or management services; or

(4) providing instruction in accounting courses; or

(5) [(4)] for purposes of making a determination as to whether the individual fits one of the categories listed in this section [subsection (a) or (b) of this section] the questions shall be resolved in favor of including the work as an "association with accounting[work]."

(d) Nothing herein shall be construed to limit the board's disciplinary authority with regard to a license in retired or disabled status. All board rules and all provisions of the Act apply to an individual in retired or disability status.

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 September 21, 2017.

TRD-201703745

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7842


CHAPTER 519. PRACTICE AND PROCEDURE

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §519.7

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.7, concerning Misdemeanors that Subject a Licensee or Certificate Holder to Discipline by the Board.

Background, Justification and Summary

The amendment to §519.7 puts in place the process for determining whether a misdemeanor conviction in another state is comparable to a misdemeanor in Texas which would subject a licensee to possible disciplinary action.

Fiscal Note

William Treacy, 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 to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit Cost Note

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be a clearer understanding of out of state misdemeanors which could subject a licensee to disciplinary action by the Board.

There will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business and Micro-Business Impact Analysis

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the amendment does not impose any duties or obligations upon small businesses or micro-businesses, therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis is not required.

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854, no later than noon on November 6, 2017.

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 rule 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 Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§519.7.Misdemeanors that Subject a Licensee or Certificate Holder to Discipline by the Board.

(a) Final conviction or placement on deferred adjudication, deferred prosecution, withheld adjudication or community supervision may subject a licensee or certificate holder to disciplinary action pursuant to §501.90 of this title (relating to Discreditable Acts). Licensees and certificate holders are often placed in a position of trust with respect to client funds. The public including the business community relies on the integrity, morality and honesty of licensees and certificate holders in providing professional accounting services or professional accounting work. The board considers conviction or placement on deferred adjudication, deferred prosecution, withheld adjudication or community supervision for any crime relating to integrity, morality and honesty to relate directly to the practice of public accountancy and may subject the licensee or certificate holder to discipline. The board has determined that the following list of misdemeanor offenses that involve integrity, morality and honesty directly relate to the duties and responsibilities involved in providing professional accounting services or professional accounting work, pursuant to the provisions of Chapter 53 of the Occupations Code:

(1) dishonesty or fraud:

(A) Unlawful Use of Criminal Instrument;

(B) Unlawful Access to Stored Communications;

(C) Illegal Divulgence of Public Communications;

(D) Burglary of Coin-Operated or Coin Collection Machines;

(E) Burglary of Vehicles;

(F) Theft;

(G) Theft of Service;

(H) Tampering with Identification Numbers;

(I) Theft of or Tampering with Multichannel Video or Information Services;

(J) Manufacture, Distribution, or Advertisement of Multichannel Video or Information Services Device;

(K) Sale or Lease of Multichannel Video or Information Services Device;

(L) Possession, Manufacture, or Distribution of Certain Instruments Used to Commit Retail Theft;

(M) Forgery;

(N) Criminal Simulation;

(O) Trademark Counterfeiting;

(P) Stealing or Receiving Stolen Check or Similar Sight Order;

(Q) False Statement to Obtain Property or Credit or in the Provision of Certain Services;

(R) Hindering Secured Creditors;

(S) Fraudulent Transfer of a Motor Vehicle;

(T) Credit Card Transaction Record Laundering;

(U) Issuance of a Bad Check;

(V) Deceptive Business Practices;

(W) Rigging Publicly Exhibited Contest;

(X) Misapplication of Fiduciary Property or Property of Financial Institution;

(Y) Securing Execution of Document by Deception;

(Z) Fraudulent Destruction, Removal, or Concealment of Writing;

(AA) Simulating Legal Process;

(BB) Refusal to Execute Release of Fraudulent Lien or Claim;

(CC) Fraudulent, Substandard, or Fictitious Degree;

(DD) Breach of Computer Security;

(EE) Unauthorized Use of Telecommunications Service;

(FF) Theft of Telecommunications Service;

(GG) Publication of Telecommunications Access Device;

(HH) Insurance Fraud;

(II) Medicaid Fraud;

(JJ) Coercion of Public Servant or Voter;

(KK) Improper Influence;

(LL) Acceptance of Honorarium (by restricted government employees);

(MM) Gift to Public Servant by Person Subject to his Jurisdiction;

(NN) Offering Gift to Public Servant;

(OO) Perjury;

(PP) False Report to Police Officer or Law Enforcement Employee;

(QQ) Tampering with or Fabricating Physical Evidence;

(RR) Tampering with Governmental Record;

(SS) Fraudulent Filing of Financial Statement;

(TT) False Identification as Peace Officer;

(UU) Misrepresentation of Property;

(VV) Record of a Fraudulent Court;

(WW) Bail Jumping and Failure to Appear;

(XX) False Alarm or Report;

(YY) Engaging in Organized Criminal Activity;

(ZZ) Violation of Court Order Enjoining Organized Criminal Activity; and

(AAA) Failing to file license holder's own tax return;

(2) moral turpitude:

(A) Public Lewdness;

(B) Indecent Exposure;

(C) Enticing a Child;

(D) Violation of a Protective Order Preventing Offense Caused by Bias or Prejudice;

(E) Failure to Identify;

(F) Hindering Apprehension or Prosecution;

(G) Improper Contact with Victim;

(H) Barratry and Solicitation of Professional Employment;

(I) Unauthorized Practice of Law;

(J) Hindering Proceedings by Disorderly Conduct;

(K) Abuse of Corpse;

(L) Prostitution;

(M) Promotion of Prostitution;

(N) Obscene Display or Distribution;

(O) Obscenity;

(P) Sale, Distribution, or Display of Harmful Material to Minor; and

(Q) Employment Harmful to Children;

(3) alcohol abuse or controlled substances:

(A) Possession of Substance in Penalty Group 3 (less than 28 grams), under the Texas Health and Safety Code;

(B) Possession of Substance in Penalty Group 4 (less than 28 grams), under the Texas Health and Safety Code;

(C) Manufacture, Delivery, or Possession with Intent to Deliver Miscellaneous Substances, under the Texas Health and Safety Code;

(D) Manufacture, Delivery, or Possession of Miscellaneous Substances, under the Texas Health and Safety Code;

(E) Delivery of Marijuana, under the Texas Health and Safety Code;

(F) Possession of Marijuana, under the Texas Health and Safety Code;

(G) Possession or Transport of Certain Chemicals with Intent to Manufacture Controlled Substance (for substance listed in a Schedule but not in a Penalty Group), under the Texas Health and Safety Code;

(H) Possession or Delivery of Drug Paraphernalia, under the Texas Health and Safety Code;

(I) Obstructing Highway or Other Passageway; and

(J) Any misdemeanor involving intoxication under the influence of alcohol or a controlled substance.

(4) physical injury or threats of physical injury to a person:

(A) Assault;

(B) Deadly Conduct;

(C) Terroristic Threat; and

(D) Leaving a Child in a Vehicle.

(b) A licensee or certificate holder is often placed in a position of trust with respect to client funds; and the public, including the business community relies on the integrity, morality and honesty of licensees and certificate holders in preparing reports and providing professional accounting services or professional accounting work. The board considers repeated violations of criminal laws to relate directly to a licensee or certificate holder providing professional accounting services or professional accounting work.

(c) A conviction or placement on deferred adjudication, deferred prosecution, withheld adjudication or community supervision for a violation of any state or federal law that is equivalent to an offense listed in subsection (a)(1) - (4) of this section is considered to directly relate to a licensee or certificate holder providing professional accounting services or professional accounting work and may subject a certificate or registration holder to discipline by the board.

(d) Misdemeanor convictions in another state will be analyzed by the general counsel to determine if such out of state misdemeanor has an equivalency to Texas law prior to opening a complaint investigation.

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 September 21, 2017.

TRD-201703747

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 305-7842


PART 39. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

CHAPTER 851. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES

SUBCHAPTER B. P.G. LICENSING, FIRM REGISTRATION, AND GIT CERTIFICATION

22 TAC §851.21

The Texas Board of Professional Geoscientists (TBPG) proposes an amendment to 22 TAC §851.21 concerning the licensure and regulation of Professional Geoscientists.

BACKGROUND AND PURPOSE

TBPG proposes an amendment to 22 TAC §851.21 to establish guidelines for applicants requesting to sit for a licensing examination. TBPG proposes to add language to provide that an applicant who does not fully meet the education requirement for licensure may sit for a licensing examination as long as the applicant has submitted certain documents and has acknowledged that the applicant does not meet the education requirement. The applicant will then need to resolve the education deficit once the applicant has received passing scores on the licensing examination in order to obtain a Professional Geoscientist license. Resolving the education deficit may include obtaining a waiver of the education requirement, obtaining a substitution of experience for education, or by the Board's determination that the education requirement was met with "equivalent education," as provided by §1002.255(a)(2)(B). An applicant may choose to sit for the examination knowing that the education deficit will not be reviewed by the Board until after the applicant has passed the required examination(s) for licensure, and that the resolution the applicant presents may not be approved.

SECTION SUMMARY

Proposed amendment to §851.21 adds new subsection (h) that specifies that "an individual who plans to apply for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Fundamentals of Geology examination as long as the applicant: (1) Submits two acceptable personal references; (2) Has submitted any other necessary forms, documents, and fees; and (3) Has acknowledged that the Appointed Board must approve an education waiver request or approve the substitution of experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request to substitute experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed." New subsection (i) adds that "an applicant for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Practice of Geology examination as long as the applicant: (1) Meets or is within six months of meeting the qualifying experience requirement for licensure; (2) Submits the required number/type of acceptable references required for licensure verifying the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules); (3) Has submitted a request for an education waiver or a substitution of experience for education; (4) Has submitted any other necessary forms, documents, and fees; and (5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed." New subsection (j) adds that "an applicant for licensure as a Professional Geoscientist in the discipline of geophysics who does not fully meet the education requirement for licensure may take the Texas Geophysics Examination as long as the applicant: (1) Meets or is within six months of meeting the qualifying experience requirement for licensure; (2) Submits the required number/type of acceptable references required for licensure verifying the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules); (3) Has submitted a request for an education waiver or a substitution of experience for education; (4) has submitted any other necessary forms, documents, and fees; and (5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after the Texas Geophysics Examination has been passed."

FISCAL NOTE

Charles Horton, Executive Director of the Texas Board of Professional Geoscientists, has determined that for each fiscal year of the first five years the sections are in effect there is no cost to the state as a result of enforcing or administering the section as proposed.

SMALL AND MICRO-BUSINESS ECONOMIC IMPACT ANALYSIS

Mr. Horton has determined that there will be no anticipated economic costs to small businesses or micro-businesses required to comply with proposed amendment to §851.21. Consequently, an economic impact statement or regulatory flexibility analysis is not required. There will be no anticipated economic cost to individuals who are required to comply with the proposed sections. There is no anticipated negative impact on state or local government.

PUBLIC BENEFIT

Mr. Horton has also determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the sections is that the Texas Board of Professional Geoscientists' rules are clarified regarding license eligibility, and the Board will be able to more effectively regulate the public practice of geoscience in Texas, which will protect and promote public health, safety, and welfare.

REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES

The Board has determined that these proposals are not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. Although Professional Geoscientists and Registered Geoscience Firms play a key role in environmental protection for the state of Texas, this proposal is not specifically intended to protect the environment nor reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

Mr. Horton has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed amendment may be submitted in writing to Charles Horton, Executive Director, Texas Board of Professional Geoscientists, 333 Guadalupe Street, Tower I-530, Austin, Texas 78701 or by mail to P.O. Box 13225, Austin, Texas 78711 or by email to chorton@tbpg.state.tx.us. Please indicate "Comments on Proposed Rules" in the subject line of all emails submitted. Please submit comments within 30 days following publication of the proposal in the Texas Register.

The proposed amendments are authorized by the Texas Occupations Code §1002.151 which provides that the Board shall adopt and enforce rules consistent with the Texas Geoscience Practice Act (the Act); by Occupations Code §1002.154 which provides that Board shall enforce the Act; and by Occupations Code §1002.255, which outlines how an applicant may demonstrate eligibility for a license, including equivalent educational requirements.

The proposed amendments implement the Texas Occupations Code, §§1002.151, 1002.154, and 1002.255.

§851.21.Licensing Requirements--Examinations.

(a) Qualifying examinations:

(1) An applicant for the Geology discipline must pass both parts of the National Association of State Boards of Geology (ASBOG®) examination. Applicants taking the ASBOG® examinations must also abide by the rules and regulations of ASBOG®.

(2) An applicant for the Soil Science discipline must pass both parts of the Council of Soil Science Examiners (CSSE) examination. Applicants taking the CSSE examinations must also abide by the rules and regulations of CSSE.

(3) An applicant for the Geophysics discipline must pass the Texas Geophysics Examination (TGE).

(b) An applicant may request an accommodation in accordance with the Americans with Disabilities Act. Proof of disability may be required.

(c) An applicant who does not timely arrive at and complete a scheduled examination will forfeit the examination fee.

(d) Cheating on an examination is grounds for denial, suspension, or revocation of a license and/or an administrative penalty.

(e) An applicant who has passed an examination may not retake that type of examination.

(f) Applicants requesting a waiver from any examination(s) shall complete a Waiver Request (Form V) and any additional information needed to substantiate the eligibility for the waiver with the application.

(g) Examination requirements and examination procedure: A qualified individual who has not passed qualifying licensing examination(s) may access and abide by all relevant components of one of the following procedures to sit for a qualifying examination(s) in the appropriate discipline:

(1) Licensure in the discipline of geology (part I)/ASBOG® Fundamentals of Geology examination:

(A) Requirements: Completion of the education qualifications for licensure as specified in Texas Occupations Code §1002.255 and §851.25 of this chapter or currently enrolled in a course of study that meets the education requirements for licensure and within two regular semesters of completion of the qualifying course of study.

(B) Procedure:

(i) The applicant shall complete and submit an Exam Request (Form E) and any required documents to the TBPG, along with the appropriate fee by the deadline posted on the TBPG website for the examination date desired by the applicant.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will mail an ASBOG® Examination Candidate Request Form to the applicant.

(iii) The applicant shall submit the ASBOG® Examination Candidate Request Form and send the form, along with the examination fee to ASBOG®. A courtesy copy of the ASBOG® Candidate Request Form shall be provided to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination after receiving the results from ASBOG®.

(2) Licensure in the discipline of geology (part II)/ASBOG® Practice of Geology examination:

(A) Requirements:

(i) Under application for licensure as a Professional Geoscientist with the TBPG.

(ii) Meet all other qualifications for licensure in subsection (a) of this section, and be within six months of meeting the qualifying experience requirement.

(B) Procedure:

(i) The applicant shall complete and submit both the Initial Application for P.G. Licensure (Form A), in accordance with the application procedures specified in subsection (d) of this section, along with the appropriate fee and an Exam Request (Form E) along with the appropriate fee and any required documents to the TBPG, by the deadline posted on the TBPG website for the examination date desired by the applicant.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will mail an ASBOG® Examination Candidate Request Form to the applicant.

(iii) The applicant shall submit the ASBOG® Examination Candidate Request Form and send the form, along with the examination fee to ASBOG®. A courtesy copy of the ASBOG® Examination Candidate Request Form shall be provided to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination after receiving the results from ASBOG®.

(3) Licensure in the discipline of geophysics/TGE:

(A) Requirements:

(i) Under application for licensure as a Professional Geoscientist with the TBPG and meet all qualifications for licensure in subsection (a) of this section, with the exception of the examination requirement; or

(ii) Under application for certification as a Geoscientist-in-Training with the TBPG and meet all qualifications for certification as a Geoscientist-in-Training in §851.41 of this chapter with the exception of having passed the TGE.

(B) Procedure:

(i) The applicant shall complete and submit both Application for Professional Geoscientist (Form A), in accordance with the application procedures specified in subsection (d) of this section, along with the appropriate fee and Examination Request Form (Form E) along with the appropriate fee and any required documents to the TBPG.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will provide TGE scheduling and examination payment information to the applicant.

(iii) The applicant shall submit the required information, along with the examination fee to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination.

(4) Licensure in the discipline of soil science/Council of Soil Science Examiners (CSSE) Fundamentals of Soil Science and Practice of Soil Science Examinations: An applicant must meet the examination requirements of the CSSE; apply to take the required examinations directly with the CSSE and submit the required fees; follow all examination procedures of the CSSE; take and pass both parts of the examination; and follow CSSE procedures to ensure that the passing scores are forwarded to the TBPG.

(h) An individual who plans to apply for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Fundamentals of Geology examination as long as the applicant:

(1) Submits two acceptable personal references;

(2) Has submitted any other necessary forms, documents, and fees; and

(3) Has acknowledged that the Appointed Board must approve an education waiver request or approve the substitution of experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request to substitute experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed.

(i) An applicant for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Practice of Geology examination as long as the applicant:

(1) Meets or is within six months of meeting the qualifying experience requirement for licensure;

(2) Submits the required number/type of acceptable references required for licensure verifying the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules);

(3) Has submitted a request for an education waiver or a substitution of experience for education;

(4) Has submitted any other necessary forms, documents, and fees; and

(5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed.

(j) An applicant for licensure as a Professional Geoscientist in the discipline of geophysics who does not fully meet the education requirement for licensure may take the Texas Geophysics Examination as long as the applicant:

(1) Meets or is within six months of meeting the qualifying experience requirement for licensure;

(2) Submits the required number/type of acceptable references required for licensure verifying the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules);

(3) Has submitted a request for an education waiver or a substitution of experience for education;

(4) Has submitted any other necessary forms, documents, and fees; and

(5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after the Texas Geophysics Examination has been passed.

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 September 25, 2017.

TRD-201703820

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 936-4405