TITLE 22. EXAMINING BOARDS

PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 461. GENERAL RULINGS

22 TAC §461.9

The Texas State Board of Examiners of Psychologists adopts new rule §461.9, concerning Conflicts of Interest and Recusals, without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3226). The new rule will not be republished.

The new rule is being adopted to ensure the protection and safety of the public.

The new rule as adopted is being offered to fulfill the requirements of recommendation 3.9 in the Sunset Advisory Commission's report.

No comments were received regarding the adoption of the new rule.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703533

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §461.14

The Texas State Board of Examiners of Psychologists adopts amendment §461.14, concerning Conflicts Between Other Laws and Board Rules without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3227) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to clarify the hierarchy of controlling legal doctrine in the event of a conflict with an agency rule.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703534

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


CHAPTER 463. APPLICATIONS AND EXAMINATIONS

22 TAC §463.5

The Texas State Board of Examiners of Psychologists adopts amendments to §463.5, concerning Application File Requirements, without changes to the proposed text as published in the July 14, 2017, issue of the Texas Register (42 TexReg 1316). The amended rule will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is being offered to align the rule with recommendation 3.8 in the Sunset Staff report.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703535

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: July 14, 2017

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


22 TAC §463.28

The Texas State Board of Examiners of Psychologists adopts the repeal of §463.28, concerning Emergency Limited Temporary Licensure without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3232) and will not be republished.

The repeal is being adopted to ensure the protection and safety of the public.

The repeal as adopted is due to the lack of statutory basis.

No comments were received regarding the adoption of the repeal.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703536

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §463.30

The Texas State Board of Examiners of Psychologists adopts amendments to §463.30, concerning Licensing for Military Service Members, Veterans and Spouses, without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3243). The amended rule will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is being offered to bring the rule into alignment with Management Recommendation No. 3.8 on page 24 of the Sunset Commission Staff Report. The adopted amendment is necessary to ensure compliance with §55.007, Occupations Code, by eliminating reference letters from the list of licensing criteria which may be satisfied by military service, training, or education.

A general comment was received regarding the adoption of the amendment.

Comment

The Board received one comment. Commenter reflects disagreement with the proposed change allowing LPAs to practice independently, and reiterates the need to continue imposing perpetual supervision for practicing LPAs.

Response

The proposed amendment does not grant LPAs the ability to practice independently. Thus, the Board declines to withdraw or modify the proposed change based upon this comment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703537

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


CHAPTER 465. RULES OF PRACTICE

22 TAC §465.1

The Texas State Board of Examiners of Psychologists adopts the amendment §465.1, concerning Definitions without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3234) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to clarify the meaning of specific terms used in this rule.

Comments were received regarding the adoption of the amendment.

Comments

The comments received reflect concern about releasing test responses on computerized assessments, and suggest changing the rule to require the release of test scores only.

Response

The proposed amendment is necessary to clarify specific terms and to ensure those terms comport with a patient's right to his or her records under Ch. 611 of the Health & Safety Code. Additionally, the Board is unpersuaded by the argument that some patient responses are not reported or reflected on a printout - the proposed amendments do not require a licensee to provide test results where it is not possible to do so. With that being said, Ch. 611 of the Health & Safety Code does not contain an exception to a patient's right of access to his or her file simply because it will be difficult for the licensee to comply with the request. The Board has encountered many situations where patient responses were requested for legitimate reasons and the test scores alone would not have been responsive to the needs of the patient or his or her provider. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Comment

The Board received one comment, commenter also expressed concern about the constitutionality of how the Board defines psychological services and professional relationship.

Response

The Board declines to withdraw or modify the proposed change based upon the concerns expressed about the constitutionality of the Board's definitions. The Board will, however, be reviewing its definitions further as part of the proposed rule review, and it will make any changes identified as being necessary in light of the Serafine opinion.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703538

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.3

The Texas State Board of Examiners of Psychologists adopts amendments to §465.3, concerning Providers of Psychological Services, without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3238). The amended rule will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted serves to eliminate redundant language and clarify the principle that agency rules are subservient to conflicting laws and guidelines found at both the state and federal level.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703539

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.6

The Texas State Board of Examiners of Psychologists adopts the amendment to §465.6, concerning Public Statements, Advertisements, and Specialty Titles with changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3239) and will be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to remove restrictions on speech which represent an unreasonable risk of liability in light of the recent Serafine v. Branaman opinion.

Comments were received regarding the adoption of the amendment.

Comments

The comments received reflect disagreement with the proposed deletion of subsection (a) from the rule.

Response

The proposed amendment would not, contrary to what has been suggested in the comments, allow anyone other than a psychologist to list himself or herself under the heading of "Psychologist" in the phone book. The Board would direct each individual submitting comments on this rule to subsection (a)(1) of the proposed rule, which will guard against the very concerns expressed in these comments. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

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

§465.6.Public Statements, Advertisements, and Specialty Titles.

(a) Public Statements and Advertisements.

(1) Licensees shall not authorize, use or make any public statements or advertisements that are false, deceptive, misleading or fraudulent, either because of what they state, convey or suggest or because of what they omit concerning their own training, experience, abilities or competence; their academic degrees; their credentials; their institutional or association affiliations; or their publications or research.

(2) Licensees who learn of any false or deceptive statements about any of the matters referenced in subsection(a)(1) must make reasonable efforts to correct such statements.

(b) Solicitation of Testimonials and/or Patients.

(1) Licensees do not solicit testimonials from current clients or patients or from other persons who are vulnerable to undue influence.

(2) Licensees do not engage, directly or through agents, in uninvited in-person solicitation of business from actual or potential patients or clients.

(c) Use of Titles.

(1) An individual may not use the title of "Licensed Psychologist" unless the individual is licensed as such by this agency.

(2) An individual may not use the title of "Psychologist" when engaged in the practice of psychology, unless the individual is licensed as such by this agency.

(3) A licensed psychologist may not use a specialty title unless one or more of the following criteria have been met:

(A) the individual holds a doctorate in the area of specialization;

(B) the individual has undergone retraining under the American Psychological Association retraining guidelines of 1977 in the area of specialization;

(C) the individual has completed a two-year postdoctoral fellowship in the area of specialization;

(D) for individuals who matriculated from a doctoral program in psychology prior to 1978, documentation of academic coursework and relevant applied experience, as well as proof that the title has been used for at least five years; or

(E) documentation of certification, approval, or specialist status granted by a professional, refereed board, provided that the licensee indicates the name of the board which granted the title and that the individual's status with the specialty board is current and in good standing. Use of the term "Board Certified" or "Board Approved" or any similar words or phrases calculated to convey the same meaning shall constitute misleading or deceptive advertising, unless the licensee discloses the complete name of the specialty board that conferred the aforementioned specialty title, certification, approval or specialist status.

(d) Assumed Names and Legal Entities. Licensees engaged in the practice of psychology under an assumed name or through a legal entity must comply with the name and notification requirements set out in the Assumed Business and Professional Name Act found in Chapter 71 of the Texas Business and Commerce Code and §5.060 of the Texas Business Organizations Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703540

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.11

The Texas State Board of Examiners of Psychologists adopts the amendment to §465.11, concerning Informed Consent/Describing Psychological Services without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3240) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to comply with the management action adopted by the Texas Sunset Advisory Commission requiring this agency to amend its rules to allow LSSPs to practice in private schools.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703541

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.16

The Texas State Board of Examiners of Psychologists adopts an amendment to §465.16, concerning Evaluation, Assessment, Testing, and Reports, without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3242). The amended rule will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to ensure conformity in the Board's rules and provide reasonable assurance of competency from licensed psychological associated engaged in independent practice.

Comments were received regarding the adoption of the amendment.

Comments

The comments received reflect disagreement with the proposed rule change, and instead suggest making a distinction between qualifications to purchase and use a test.

Response

The proposed amendment is offered to ensure adequate protections of the public following the newly created pathway for independent practice by LPAs, but does not operate to limit the effect of Board rule 465.9. The proposed amendment would not, contrary to what has been suggested in the comments, allow an LPA to administer an exam, despite have purchased the exam from a test publisher or authorized vendor, when that licensee is not competent to do so. The proposed change speaks only to the education, training, or licensure requirements established by a test publisher- it does not create a presumption of competency under Board rule 465.9.

Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703542

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.19

The Texas State Board of Examiners of Psychologists adopts the repeal of §465.19, concerning Teaching without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3243) and will not be republished.

The repeal is being adopted to ensure the protection and safety of the public.

The repeal as adopted is necessary because the Board either lacks the statutory authority to regulate matters covered by this rule or the matters are already covered by existing rules elsewhere.

No comments were received regarding the adoption of the repeal.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703543

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.22

The Texas State Board of Examiners of Psychologists adopts the amendment to §465.22, concerning Psychological Records, Test Data and Text Materials without changes to the proposed text published in the June 23, 2017, issue of the Texas Register (42 TexReg 3243) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to incorporate changes made to terms defined elsewhere in the rules, as well as clarify the relationship between test data, test materials, and a patient's records.

Comments were received regarding the adoption of the amendment.

Comments

The comments received reflect a general disagreement with requiring the release of test responses and requiring psychologists to notify test publishers when test materials are subpoenaed.

Response

The proposed amendment is necessary to ensure a patient has access to his or her records as guaranteed under Ch. 611 of the Health & Safety Code. Furthermore, the Board is unpersuaded by the argument that some patient responses are not reported or reflected on a printout - the proposed amendments do not require a licensee to provide test results where it is not possible to do so. With that being said, Ch. 611 of the Health & Safety Code does not contain an exception to a patient's right of access to his or her file simply because it will be difficult for the licensee to comply with the request. The Board has encountered many situations where patient responses were requested for legitimate reasons and the test scores alone would not have been responsive to the needs of the patient or his or her provider. Thus, the Board declines to withdraw or modify the proposed change based upon these comments.

Additionally, contrary to the suggestion in these comments, proposed subsection (c)(4) does not require a licensee to notify a test publisher, but rather, says that a licensee should notify a test publisher. The Board would remind its licensees that generally under Texas law, a party must object to a request for test materials prior to the date of production or the objection is waived. A licensee could find himself or herself in a situation where he or she is forced to produce protected material if no objection is asserted in a timely manner. This proposed amendment seeks to provide licensees with a best practice to follow when presented with a subpoena compelling production of test materials by suggesting that the test publisher be provided with an opportunity to lodge an objection, thereby shifting the burden of objecting from the licensee to the test publisher.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703544

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §465.38

The Texas State Board of Examiners of Psychologists adopts the amendment to §465.38, concerning Psychological Services for Schools without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3245) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to comply with the management action requirement adopted by the Texas Sunset Advisory Commission requiring this agency to amend its rules to allow LSSPs to practice in private schools. The adopted amendment also serves to remove restrictions on speech which represent an unreasonable risk of liability in light of the tenuous argument for public protection supporting those restrictions. Lastly, the adopted amendment removes unreasonable restrictions on a licensee's ability to contract for the delivery of services in a public or private school.

Comments were received regarding the adoption of the amendment.

Comments

The comments received supported the proposed changes.

Response

The Board generally agrees with the comments.

Comment

The comment received in opposition to the proposed change reflects a belief that doctoral supervision should be required for a specified amount of time in order to ensure protection of the public.

Response

The proposed amendment is necessary to give full effect to the Sunset Advisory Commission's management action requiring the agency to make changes to its rules and allow LSSPs to practice in both public and private schools. The Board disagrees that doctoral supervision is necessary to ensure adequate public protection given the scope and applicability of the Board's existing rules in a private school setting.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703545

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


CHAPTER 469. COMPLAINTS AND ENFORCEMENT

22 TAC §469.1

The Texas State Board of Examiners of Psychologists adopts the amendment to §469.1, concerning Timeliness of Complaints without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3247) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to clarify the limitations periods applicable to carious rule violations, as well as clarify the applicability of limitations to complaints brought by the agency itself.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703546

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


22 TAC §469.9

The Texas State Board of Examiners of Psychologists adopts the amendment to §469.9, concerning Complaints Alleging Violations of Court Orders or Education Law without changes to the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3248) and will not be republished.

The amendment is being adopted to ensure the protection and safety of the public.

The amendment as adopted is necessary to ensure consistency in decisions between state agencies with regard to complaints involving standard of care issue brought against licensed specialist in school psychology. The Board's intent by and through this amendment is to avoid potentially conflicting findings by this agency and the Texas Education Agency, thereby placing both the public and licensees in a state of confusion about what constitutes lawful and ethical practice.

No comments were received regarding the adoption of the amendment.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 6, 2017.

TRD-201703547

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Effective date: September 26, 2017

Proposal publication date: June 23, 2017

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


PART 39. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

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

The Texas Board of Professional Geoscientists (TBPG) adopts amendments to 22 TAC §§851.10, 851.20, 851.23, 851.25, 851.30, 851.80, 851.157, and 851.203; adopts the repeal of §851.158; and adopts new rules §§851.158, 851.159, and 851.220 concerning the licensure and regulation of Professional Geoscientists. The amendments to §§851.10, 851.20, 851.23, 851.25, 851.30, 851.80, 851.157, and 851.203; the repeal of §851.158; and new rules §851.159 and §851.220 are adopted without changes to the proposed text as published in the July 7, 2017 issue of the Texas Register (42 TexReg 3549), and will not be republished. New rule §851.158 is adopted with changes to the proposed text and is republished below. The repeal of §851.158 will be effective as of the date the new §851.158 takes effect.

Adopted amendments to §851.10 and §851.30 clarify the definition and role of an "Authorized Official of a Firm" (AOF). Adopted amendments to §851.80 amend language to establish a proctored review of a Texas Geophysics Examination for a fee, and provide a reduction of the renewal fee to half price for a person who has a medical disability. Adopted amendments to §851.20 clarify that an applicant who is not a citizen of the United States must provide a copy of a current visa or something equivalent. Adopted amendments to §851.23 provide an alternate process for applicants who cannot provide a professional reference to verify qualifying work experience. Adopted amendments to §851.25 re-sequence elements of the existing rule so that the rule is consistent with the Texas Geoscience Practice Act, and provide that, by rule, the Board has determined that a person has satisfied "other equivalent education, as determined by the Board," if the applicant has a four year college or university degree and has the appropriate number of total hours of geoscience coursework and in upper level courses. The adopted change also provides that the Appointed Board could still determine whether an applicant's education is equivalent after review of the applicant's credentials. Adopted revisions to §851.157, along with the repeal of current §851.158 and the addition of new §851.158 and §851.159, reorganize the rules in current §851.157 and §851.158, and provide that the default for not responding to a Notice of Alleged Violation or a scheduled informal settlement conference may be to a Board Order instead of the current default of scheduling a hearing with the State Office of Administrative Hearings (SOAH), and provide certain clarifying language regarding the procedures by which complaints are investigated and adjudicated. Current §851.158 is repealed because these provisions are provided for in TOC Chapter 1002, Subchapters J and K, making the rule redundant and, therefore, unnecessary. An adopted amendment to §851.203 adds provisions to the default process that is followed when a respondent does not appear at a SOAH hearing. Adopted new rule §851.220 provides a procedure for judicial review of a default or contested Board Order by a respondent.

The Board received no comments regarding the adoption of the amendments, the repeal, and the new rules. However, upon further review, the Board further clarified §851.158 upon adoption. No substantive changes were made.

The Board adopted new rule §851.158 with changes to include the addition of subparagraph (I) under paragraph (1), which now specifies the staff action of "dismissing complaints that are administrative, meritless, or non-jurisdictional (with or without advisement)." Additional language to paragraph (3)(A) was added to show that the notice of alleged violation will state "the authority of the TBPG to enforce the Act and take disciplinary action." In paragraph (3)(B), it now reads, "The notice of alleged violation will provide three options," and combines item (iv) with item (i), which now reads, "Accept the proposed findings and proposed disciplinary action, "and waive the right to an informal conference, contested-case hearing, and judicial review," by signing and returning the enclosed proposed Board order."

SUBCHAPTER A. DEFINITIONS

22 TAC §851.10

The adopted 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; by Occupations Code §1002.351, which authorizes temporary licenses.

The adopted amendments implement the Texas Occupations Code, §§1002.151, 1002.154, and 1002.351.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 5, 2017.

TRD-201703506

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Effective date: September 25, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-4400


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

22 TAC §§851.20, 851.23, 851.25, 851.30, 851.80

The adopted 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 §1002.152, which authorizes the Board to set reasonable and necessary fees for applicants and license holders; by Occupations Code §1002.154, which provides that Board shall enforce the Act; by Occupations Code §1002.255, which provides that an applicant must meet certain requirements for licensure; by Occupations Code §1002.256, which provides that the Board apply certain standards when evaluating the work experience of an applicant; and by Occupations Code §1002.351, which provides that the Board may adopt rules relating to the public practice of geoscience by a firm or corporation.

The adopted amendments implement the Texas Occupations Code, §§1002.151, 1002.152, 1002.154, 1002.255, 1002.256, and 1002.351.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 5, 2017.

TRD-201703507

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Effective date: September 25, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-4400


SUBCHAPTER D. COMPLIANCE AND ENFORCEMENT

22 TAC §§851.157 - 851.159

The adopted amendments and new rules 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; by §1002.403, which provides that the Board may take specific disciplinary actions; and by §1002.453, which provides that the Board adopt rules of procedure for the imposition of an administrative penalty, and that such rules must conform to the requirements of Chapter 2001, Government Code.

The adopted amendments and new rules implement the Texas Occupations Code, §§1002.151, 1002.154, 1002.402, 1002.403, 1002.452, and 1002.453.

§851.158.Procedures.

Procedures generally. Except for a suspension under TOC §1002.403(3), the procedures for investigation and dispensation of complaints are as follows:

(1) Staff action.

(A) Verify that the complaint meets legal requirements;

(B) Verify the identity of the complainant (if complaint is not notarized);

(C) Open complaint and set up complaint record;

(D) Review complaint for TBPG jurisdiction;

(E) Review for imminent danger to the public health, safety, or welfare;

(F) Prioritize complaint as required by TOC §1002.154;

(G) Provide acknowledgement and notification to complainant;

(H) Investigate complaint and complete confidential investigation report;

(I) Dismiss complaints that are administrative, meritless, or non-jurisdictional (with or without advisement).

(2) Complaint review team. Review of complaint and investigation with the possible outcomes of:

(A) Dismissal of complaint (with or without non-disciplinary advisory or warning); or

(B) Issue notice of alleged violation-proposed finding of violation and proposed disciplinary action.

(3) Notice of alleged violation.

(A) The notice of alleged violation will state the authority of the TBPG to enforce the Act and take disciplinary action, the facts or conduct alleged to warrant disciplinary action, identify the proposed disciplinary action, provide the opportunity for an informal conference to show compliance with all requirements of law, and provide the opportunity for a contested-case hearing.

(B) The notice of alleged violation will provide three options:

(i) Accept the proposed findings and proposed disciplinary action, and waive the right to an informal conference, contested-case hearing, and judicial review, by signing and returning the enclosed proposed Board order;

(ii) Request an informal conference and a contested-case hearing; and

(iii) Request a contested-case hearing.

(C) Waiver and default.

(i) To proceed to issue a default order, the notice of alleged violation must state the following in capital letters in at least 12-point bold-face type: FAILURE TO TIMELY RESPOND TO THIS NOTICE BY TIMELY REQUESTING EITHER AN INFORMAL CONFERENCE AND A CONTESTED-CASE HEARING OR A CONTESTED-CASE HEARING WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION BEING GRANTED BY DEFAULT. YOU MUST RESPOND AND REQUEST A HEARING IN WRITING WITHIN 30 DAYS OF RECEIPT OF THIS NOTICE OR YOU WAIVE YOUR RIGHT TO A HEARING.

(ii) Additionally, to proceed to issue a default order, the notice of alleged violation must also state the following: If you fail to request a hearing in writing within 30 days of receipt of this notice you will be deemed to have admitted the factual allegations in this notice, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

(iii) If a person fails to file a written request for a contested-case hearing within 30 days of receipt of the notice of alleged violation, the person will be deemed to have admitted the factual allegations in the notice of alleged violation, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

(iv) If a person responds and waives the right to an informal conference and a contested-case hearing or fails to file a written request for either an informal conference and a contested-case hearing or a contested-case hearing within 30 days of receipt of the notice of alleged violation, the Board shall proceed to resolve the matter on an informal basis by issuing a default order.

(D) The Board may serve the notice of alleged violation by sending it to the person's last known address as shown by the Board's records.

(E) The notice of alleged violation shall be sent by first class or certified mail to the person's last known address as shown by the Board's records, and in addition should also be sent to the person's email address as shown by the Board's records.

(4) Informal conference.

(A) The informal conference will be informal and will not follow procedures for contested cases.

(B) The informal conference panel may be composed of Board staff and Board members. The panel may limit attendance and the time allotted for the informal conference.

(C) The informal conference is an opportunity for a person to show compliance with law. The person may speak and provide documents for the panel's consideration.

(D) The informal conference panel may recommend proposed action to be taken by the Board. The proposed action may be different from that stated in the notice of alleged violation.

(5) Contested-case hearing. If a person timely and properly requests a contested-case hearing, one shall be set at the State Office of Administrative Hearing.

(6) Board order. Except for dismissals, the Board should resolve complaints by order. The Board may accept or reject any proposed order. If a proposed order is rejected, the Board may among other things dismiss the complaint, direct Board staff to modify an order and propose the modified order for later consideration, or direct that the matter be set for a contested-case hearing.

(7) All disciplinary actions shall be permanently recorded. Except for private reprimands, all disciplinary actions shall be placed on the TBPG's website and made available upon request as public information.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 5, 2017.

TRD-201703509

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Effective date: September 25, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-4400


22 TAC §851.158

The adopted repeal of 22 TAC §851.158 is 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).

The adopted repeal implements the Texas Occupations Code, §1002.151.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 5, 2017.

TRD-201703508

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Effective date: September 25, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-4400


SUBCHAPTER E. HEARINGS--CONTESTED CASES AND JUDICIAL REVIEW

22 TAC §851.203, §851.220

The adopted amendments and new rules 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; by §1002.403, which provides that the Board may take specific disciplinary actions; and by §1002.453, which provides that the Board adopt rules of procedure for the imposition of an administrative penalty, and that such rules must conform to the requirements of Chapter 2001, Government Code.

The adopted amendments and new rules implement the Texas Occupations Code, §§1002.151, 1002.154, 1002.403, and 1002.453.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 5, 2017.

TRD-201703510

Charles Horton

Executive Director

Texas Board of Professional Geoscientists

Effective date: September 25, 2017

Proposal publication date: July 7, 2017

For further information, please call: (512) 936-4400