TITLE 22. EXAMINING BOARDS

PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS

CHAPTER 1. ARCHITECTS

The Texas Board of Architectural Examiners (Board) proposes the amendment of Texas Administrative Code Part 1, Title 22 §1.5 (Terms Defined Herein), §1.21 (Registration by Examination), §1.22 (Registration by Reciprocal Transfer), §1.41 (Requirements), and §1.123 (Titles).

This proposed rulemaking action would implement a non-substantive change in terminology for the program previously known in the Board's rules as the "Intern Development Program." This program is administered by the National Council of Architectural Registration Boards (NCARB). It is a standardized program that is accepted by Texas and most other jurisdictions to demonstrate sufficient experience to become registered as an architect. Recently, NCARB renamed this program the "Architectural Experience Program." To ensure that agency rules remain current, the Board proposes to replace obsolete references to the "Intern Development Program," with citations to the updated term "Architectural Experience Program." This rule change is non-substantive and will not affect current or future eligibility for any person who completed the program under the previous name.

Additionally, the Board proposes to correct a reference in §1.5(39), which defines "National Council of Architectural Registration Boards (NCARB)." Currently, the definition states that NCARB is a nonprofit federation of architectural registration boards from 55 states and territories of the United States. In fact, NCARB is made up of 54 jurisdictions. Therefore, the Board proposes to amend the definition to provide accurate information.

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 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 make non-substantive changes to existing regulations as opposed to create new ones. The adoption of the proposed rules would not result in the creation or elimination of employee positions. Implementation of the proposed rule would not require an increase or decrease in legislative appropriations to the agency and the proposed rule would not increase or decrease the Board's fees. The proposed rule would not increase the number of individuals subject to regulation. The proposed rule is not expected to have any impact on the state's economy.

PUBLIC BENEFIT/COST OF COMPLIANCE

For the first five-year period the amended rule is in effect, the public benefit of the proposed rule change will be greater consistency between the Board's rules and the terminology used by NCARB in describing and administering the Architectural Experience Program. This will decrease potential confusion of applicants for architectural registration in Texas.

Compliance with the proposed amendments is 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, TX 78711-2337.

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §1.5

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of architecture; and Texas Occupations Code §1051.705, which authorizes the Board to prescribe satisfactory architectural experience to sit for the registration examination.

CROSS REFERENCE TO STATUTE

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

§1.5.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) Architectural Experience Program-- The comprehensive architectural experience program established, interpreted, and enforced by NCARB, or the predecessor Intern Development Program.

(11) [(10)] Architectural Intern--An individual enrolled in the Architectural Experience Program (AXP) [Intern Development Program (IDP)].

(12) [(11)] ARE--Architect Registration Examination.

(13) [(12)] AREFAF--Architect Registration Examination Financial Assistance Fund.

(14) AXP--The Architectural Experience Program.

(15) [(13)] Barrier-Free Design--The design of a building or a facility or the design of an alteration of a building or a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.

(16) [(14)] Board--Texas Board of Architectural Examiners.

(17) [(15)] Cancel, Cancellation, or Cancelled--The termination of a Texas architectural registration certificate by operation of law two years after it expires without renewal by the certificate-holder.

(18) [(16)] Candidate--An Applicant approved by the Board to take the ARE.

(19) [(17)] CEPH--Continuing Education Program Hour(s).

(20) [(18)] Chair--The member of the Board who serves as the Board's presiding officer.

(21) [(19)] 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.

(22) [(20)] Consultant--An individual retained by an Architect who prepares or assists in the preparation of technical design documents issued by the Architect for use in connection with the Architect's Construction Documents.

(23) [(21)] 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 hearing.

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

(25) [(23)] Council Certification--Certification granted by NCARB to architects who have satisfied certain standards related to architectural education, training, and examination.

(26) [(24)] Delinquent--A registration status signifying that an Architect:

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

(B) is no longer authorized to Practice Architecture in Texas or use any of the terms restricted by the Architects' Registration Law.

(27) [(25)] Emeritus Architect (or Architect Emeritus)--An honorary title that may be used by an Architect who has retired from the Practice of Architecture in Texas pursuant to Texas Occupations Code, §1051.357.

(28) [(26)] 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.

(29) [(27)] Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed architectural project from a technical architectural standpoint.

(30) [(28)] Good Standing--

(A) a registration status signifying that an Architect 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 architectural registration board that would provide a ground for the denial of the application for architectural registration in Texas.

(31) [(29)] Governmental Entity--A Texas state agency or department; a district, authority, county, municipality, or other political subdivision of Texas; or a publicly owned Texas utility.

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

[(31) IDP--The Intern Development Program as administered by NCARB.]

(33) [(32)] Inactive--A registration status signifying that an Architect may not Practice Architecture in the State of Texas.

[(33) Intern Development Program (IDP)--A comprehensive internship program established, interpreted, and enforced by NCARB.]

(34) Institutional Residential Facility--A building intended for occupancy on a 24-hour basis by persons who are receiving custodial care from the proprietors or operators of the building. Hospitals, dormitories, nursing homes and other assisted living facilities, and correctional facilities are examples of buildings that may be Institutional Residential Facilities.

(35) Licensed--Registered.

(36) Member Board--An architectural registration board that is part of the nonprofit federation of architectural registration boards known as NCARB.

(37) NAAB--National Architectural Accrediting Board.

(38) National Architectural Accrediting Board (NAAB)--An agency that accredits architectural degree programs in the United States.

(39) National Council of Architectural Registration Boards (NCARB)--A nonprofit federation of architectural registration boards from fifty-four (54) [fifty-five (55)] states and territories of the United States.

(40) - (71) (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 March 22, 2018.

TRD-201801232

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: May 6, 2018

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


SUBCHAPTER B. ELIGIBILITY FOR REGISTRATION

22 TAC §1.21, §1.22

The amendments are proposed under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of architecture; and Texas Occupations Code §1051.705, which authorizes the Board to prescribe satisfactory architectural experience to sit for the registration examination.

CROSS REFERENCE TO STATUTE

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

§1.21.Registration by Examination.

(a) In order to obtain architectural registration by examination in Texas, an Applicant:

(1) shall have a professional degree from:

(A) an architectural education program accredited by the National Architectural Accreditation Board (NAAB),

(B) an architectural education program that became accredited by NAAB not later than two years after the Applicant's graduation,

(C) an architectural education program that was granted candidacy status by NAAB and became accredited by NAAB not later than three years after the Applicant's graduation, or

(D) an architectural education program outside the United States where an evaluation by NAAB or another organization acceptable to the Board has concluded that the program is substantially equivalent to an NAAB accredited professional program;

(2) shall successfully demonstrate completion of the Architectural Experience Program (AXP) [Intern Development Program]; and

(3) shall successfully complete the architectural registration examination as more fully described in Subchapter C.

(b) An Applicant who applies for architectural registration by examination on or before August 31, 2011 is not required to complete the Architectural Experience Program (AXP) [Intern Development Program] if the Applicant successfully demonstrates that prior to January 1, 1984, he/she acquired at least eight (8) years of acceptable architectural experience or eight (8) years of a combination of acceptable education and experience. This subsection is repealed effective September 1, 2011.

(c) - (e) (No change.)

§1.22.Registration by Reciprocal Transfer.

(a) A person may apply for architectural registration by reciprocal transfer if the person holds an architectural 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 architectural registration by reciprocal transfer, an Applicant must demonstrate the following:

(1) the Applicant has:

(A) successfully completed the Architect Registration Examination (ARE) or another architectural registration examination which the National Council of Architectural Registration Boards (NCARB) has approved as conforming to NCARB's examination standards; and

(B) successfully completed the requirements of the Architectural Experience Program (AXP) [Intern Development Program (IDP)] or acquired at least three years of acceptable architectural experience following registration in another jurisdiction; or

(2) the Applicant has been given Council Certification by NCARB and such Council Certification is not currently in an expired or revoked status.

(c) An Applicant for architectural 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.

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 March 22, 2018.

TRD-201801233

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: May 6, 2018

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


SUBCHAPTER C. EXAMINATION

22 TAC §1.41

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of architecture; and Texas Occupations Code §1051.705, which authorizes the Board to prescribe satisfactory architectural experience to sit for the registration examination.

CROSS REFERENCE TO STATUTE

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

§1.41.Requirements.

(a) Every Applicant for architectural registration by examination in Texas must successfully complete all sections of the Architect Registration Examination (ARE).

(b) The Board may approve an Applicant to take the ARE only after the Applicant has completed the educational requirements for architectural registration by examination in Texas, has completed at least six (6) months of full-time experience working under the direct supervision of a licensed architect, has enrolled in the Architectural Experience Program (AXP)[Intern Development Program] by establishing a council record with NCARB, and has submitted the required application materials.

(c) - (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 March 22, 2018.

TRD-201801234

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: May 6, 2018

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


SUBCHAPTER G. COMPLIANCE AND ENFORCEMENT

22 TAC §1.123

STATUTORY AUTHORITY

The amendment is proposed under Texas Occupations Code §1051.202, which authorizes the Board to adopt reasonable rules as necessary to regulate the practice of architecture; and Texas Occupations Code §1051.705, which authorizes the Board to prescribe satisfactory architectural experience to sit for the registration examination.

CROSS REFERENCE TO STATUTE

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

§1.123.Titles.

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

(d) A person enrolled in the Architectural Experience Program (AXP) [Intern Development Program (IDP)] may use the title "architectural intern."

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 March 22, 2018.

TRD-201801235

Lance Brenton

General Counsel

Texas Board of Architectural Examiners

Earliest possible date of adoption: May 6, 2018

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


PART 9. TEXAS MEDICAL BOARD

CHAPTER 198. STANDARDS FOR USE OF INVESTIGATIONAL AGENTS

The Texas Medical Board (Board) proposes amendments to §§198.1 - 198.4 and new §198.5 and §198.6, concerning Standards for Use of Investigational Agents.

The Board proposes to amend Chapter 198 by dividing Chapter 198 into two separate subchapters, and adding Subchapter A, "Standards for Use of Investigational Drugs, Biological Products, or Devices" in an effort to distinguish the applicability of the provisions contained in Subchapter A and those provisions contained in proposed Subchapter B. Subchapter A contains proposed amendments to §§198.1 - 198.4.

The amendment to §198.1, concerning Purpose, removes the word "agents" and replaces it with the terms "drugs, biological products, or devices" in order to align with statutory language contained in Health and Safety Code Chapter 489. It also includes new language to distinguish the applicability of Subchapter A and to differentiate Subchapter B.

The amendment to §198.2, concerning Definitions, removes the definition of "investigational agent" and defines the terms "drugs, biological products, or devices" and "terminal illness." These proposed changes are consistent with the definitions and terms used in the Texas Health and Safety Code Chapter 489. The proposed changes also include limiting language to clarify that such definitions are not applicable to Subchapter B.

The amendments to §198.3, concerning Practice Guidelines for the Use of Investigational Agents, removes the term "agent" throughout the section and includes the terms "drugs, biological products, or devices" in line with statutory language contained in Health and Safety Code, Chapter 489.

The amendments to §198.4, concerning Use of Investigational Agents for Patients with Terminal Illnesses, changes the title of this section by removing the term "agent" and replacing it with the terms "drugs, biological products, or devices" in order to correspond with statutory terms in Chapter 489 of the Texas Health and Safety Code. The remainder of this section is deleted, as it is contained in Chapter 489 of the Health and Safety Code.

The Board proposes new Subchapter B, "Investigational Stem Cell Treatments for Patients With Certain Severe Chronic Diseases or Terminal Illnesses" to distinguish the provisions contained therein with those provisions contained in proposed Subchapter A. Subchapter B, contains proposed new §198.5 and §198.6.

Proposed new §198.5, concerning Use of Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses implements the requirements of House Bill 810, 85th Leg. R.S. (2017) which establishes the regulation of investigational stem cell treatments in Texas as set forth in Chapter 1003 of the Texas Health and Safety Code.

Proposed new §198.6, concerning Process and Procedures for IRBs Engaged in the Use of Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses, implements the requirements of House Bill 810, 85th Leg. R.S. (2017) which establishes the regulation of investigational stem cell treatments in Texas through statutory changes in Chapter 1003 of the Texas Health and Safety Code.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be to have rules that are consistent with statutes and to eliminate unnecessary language that mirrors statutory requirements and to implement statutory requirements in Chapter 1003 of the Texas Health and Safety Code, which allows patients with severe chronic diseases or terminal illnesses, defined by forthcoming DSHS rulemaking, to gain access to potentially beneficial investigational stem cell treatments.

Mr. Freshour has also determined that for the first five-year period the proposed rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no effect to individuals required to comply with the rules as proposed. There will be no effect on small or micro businesses. There will be no effect on rural communities.

Government Growth Impact Statement. Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed amendments will be in effect, Mr. Freshour has determined the following:

(1) The proposed rules do not create or eliminate a government program.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules do not require an increase or decrease in fees paid to the agency.

(5) The proposed rules 198.5 and 198.6 implement the new regulation created by HB810.

(6) The proposed rules do not expand or repeal any existing regulations.

(7) The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

(8) The proposed rules do not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or e-mail comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

SUBCHAPTER A. STANDARDS FOR USE OF INVESTIGATIONAL DRUGS, BIOLOGICAL PRODUCTS, OR DEVICES

22 TAC §§198.1 - 198.4

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

No other statutes, articles or codes are affected by this proposal.

§198.1.Purpose.

(a) The purpose of this chapter is to recognize that physicians should be allowed a reasonable and responsible degree of latitude in the kinds of therapies they offer their patients. The Board has determined that use of investigational agents constitutes the practice of medicine and is[,] thus[,] subject to all applicable statutory and regulatory provisions of the Medical Practice Act and Board Rules unless otherwise specifically stated. Section 198.4 of this chapter (relating to Use of Investigational Drugs, Biological Products, or Devices [Agents] for Patients with Terminal Illnesses) sets forth specific requirements applicable only to terminal patients being treated with investigational drugs, biological products or devices [agents].

(b) Subchapter B of this title (relating to Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses) sets forth separate requirements applicable only to the use of investigational stem cell treatments.

§198.2.Definitions.

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

(1) Investigational drug, biological product, or device--A drug, biological product, or device that is [Investigational Agents--Investigational agents include, but are not limited to medications, biological products, devices, diagnostic products and treatment regimens] not approved or licensed by the Food and Drug Administration (FDA) for use in humans. Investigational drugs, biological products, and devices [These investigational agents] may be used for the purposes of prevention, treatment, diagnosis or for relieving symptoms of a disease. An investigational drug, biological product or device [agent] shall not include:

(A) [(1)] a drug [medications ], biological product, device, [products, devices,] diagnostic product or [products and] treatment regimen [regimens] approved by the FDA, but used for off-label purposes;

(B) [(2)] a drug [medications ], biological product, device, [products, devices,] diagnostic product or [products and] treatment regimen which is [regimens that are] already approved for use by an existing Institutional Review Board (IRB);

(C) [(3)] products processed or manufactured as human cell, tissue or cellular-or-tissue-based product ("HCT/P") pursuant to Sections 351 and 361 of the Public Health Service Act ("PHSA") (42 U.S.C. 264); or [nor]

(D) [(4)] a drug, device or biological product [biologic] pursuant to the federal Food Drug and Cosmetic Act (FDCA).

(2) Terminal illness--An advanced stage of a disease with an unfavorable prognosis that, without life-sustaining procedures, will soon result in death or a state of permanent unconsciousness from which recovery is unlikely.

(b) These definitions do not apply to Subchapter B, of this title (relating to Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses).

§198.3.Practice Guidelines for the Use of Investigational Agents.

(a) The administration or provision of an [Administering or providing] investigational drug, biological product, or device [agents] constitutes the practice of medicine and, therefore, must be performed under the direction of a licensed physician who is responsible for compliance with the Medical Practice Act, Texas Occupations Code, Title 3, Subtitle B and applicable Board Rules. [Use of stem cells in humans shall be considered investigational unless they are used in the conduct of an FDA-approved clinical trial or until such time as they are approved by the FDA.] Physicians administering or providing an investigational drug, biological product, or device [using investigational agents] are obligated to maintain their ethical and professional responsibilities. This includes[, including] maintaining a distinction between their roles as physician-investigators and their roles as treating physicians, as required by applicable federal law.

(b) Prior to the administration or provision [administering or providing] of an investigational drug, biological product or device, [investigational agents,] physicians must have their proposed use either included in an FDA/NIH approved protocol/study or approved by an IRB. The IRB must:

(1) be affiliated with an academic setting or a Texas licensed hospital;

(2) be accredited by the Association for the Accreditation of Human Research Protection Programs, Inc. (AAHRPP);

(3) be registered by the U.S. Department of Health and Human Services Office for Human Research Protection, pursuant to 21 CFR Part 56; or

(4) have received national accreditation by an organization acceptable to the TMB.

(c) Physicians who fall under subsection (a) of this section [engaged in administering or providing investigational agents] must obtain written assurances from the individual or facility from which they obtained the investigational drug, biological product or device [agents] that the investigational drug, biological product or device was [these agents were] manufactured, labeled, and distributed in a manner consistent with the Texas Food, Drug, and Cosmetic Act and the federal Food, Drug, and Cosmetic Act.

(d) Physicians who fall under subsection (a) of this section [engaged in administering or providing of investigational agents] shall be expected to conform to the following standards:

(1) The administration or provision of an investigational drug, biological product, or device [investigational agents] should be part of a systematic program competently designed, under accepted standards of scientific research, to evaluate the efficacy and safety of the investigational drug, biological product, or device [investigational agents], which shall include:

(A) oversight by a principal investigator whose specific responsibility is to ensure that subjects are enrolled through appropriate inclusion and exclusion criteria;

(B) written documentation regarding the objectives of the study that is made available to subjects, including information regarding the distinction between the goals of the clinical research study and the goals, risks and benefits of treatment;[,] and

(C) written disclosure to patients if the clinical research study involves the use of placebos, including an explanation of the placebos.

(2) It is the physician's responsibility to ensure that the name and complete contact information of the individuals to whom an investigational drug, biological product, or device [investigational agents] are administered or provided as well as data regarding efficacy and safety of the investigational drug, biological product, or device [agents ] is available for review by TMB within 14 days of request by the TMB and to ensure that subjects are aware of the TMB's ability to obtain such information.

(3) In accordance with the Declaration of Helsinki, the Belmont Report, and CFR Part 46, physicians who engage in the administration or provision of an investigational drug, biological product, or device [administering or providing investigational agents] should demonstrate the highest concern and caution for the welfare, safety, and comfort of the patient to whom an investigational drug, biological product, or device is [investigational agents are] administered or [and] provided.

(4) Physicians who fall under subsection (a) of this section, [engaged in administering or providing investigational agents] must have patients sign informed consent forms that are compliant with applicable [state and federal] regulations, and which indicate that an investigational drug, biological product, or device is [investigational agents are ] or may be administered or provided to [used in] these patients. These consent forms shall:

(A) be approved by the IRB; and

(B) when [if] applicable, state whether drugs, [medications] biological products, or devices[, diagnostic products or treatment regiments] are not commercially available and[, therefore, are also an] investigational and [agent] subject to clinical investigation standards as discussed in §200.3(7) of this title (relating to Practice Guidelines for the Provision of Complementary and Alternative Medicine).

(e) The TMB will use the guidelines as provided herein to determine whether a physician's conduct violates the Medical Practice Act, §§164.051 - 164.053 in regard to administering or providing an investigational drug, biological product, or device [using investigational agents].

(1) Patient Assessment. Prior to the enrollment of patients into a clinical research study that involves the administration of an investigational drug, biological product, or device [agent], the attending physician or the physician enrolling the patient in the research study shall undertake an assessment of the patient. Such assessment shall be documented in the patient's medical record and the clinical research study record and be based on performance and review of an appropriate medical history and physical examination of the patient;

(2) Treatment Plan. A treatment plan tailored for the individual needs of the patient shall be compiled by the attending physician and should include criteria by which treatment progress or success can be evaluated with stated objectives. Such a documented treatment plan shall consider pertinent medical history, previous medical records and physical examination, as well as the need for further diagnostic further testing, consultations, referrals, or the use of other treatment modalities.

(3) Adequate Medical Records. A physician using an investigational drug, biological product or device [agents] shall keep accurate and complete medical records to include:

(A) any diagnostic, therapeutic and laboratory results;

(B) the results of evaluations, consultations and referrals;

(C) treatments employed and their progress toward the stated objectives, expected outcomes, and goals of the treatment and clinical research study;

(D) the date, type, dosage, and quantity prescribed of any drug, supplement, or remedy used in the treatment plan;

(E) all patient instructions and agreements regarding the investigational agents and the clinical research study;

(F) periodic reviews of the condition of the patient;

(G) documentation of any communications with the patient's concurrent healthcare providers informing them of treatment plans; and

(H) a copy of the executed consent form.

(f) A licensed physician shall not be found guilty of unprofessional conduct or be found to have committed professional failure to practice medicine in an acceptable manner solely on the basis of administering or providing an [using] investigational drug, biological product, or device [agents ], unless it can be demonstrated that such use does not comply with this section.

§198.4.Use of Investigational Drugs, Biological Products, or Devices [Agents] for Patients with Terminal Illnesses.

[(a)] [Definitions. The following words, when used in this section, will have the following meanings:]

[(1)] Investigational drugs [drug ], biological products [product], or devices which meet the criteria enumerated in §198.2, of this title (relating to Definitions) and have [device--A drug, biological product, or device that has] successfully completed phase one of a clinical trial [but has not yet been approved for general use by the United States Food and Drug Administration] and remains under investigation in the clinical trial shall be administered and provided to patients with terminal illnesses in accordance with applicable law, including Chapter 489 of the Texas Health and Safety Code.[;]

[(2) Terminal illness--An advanced stage of a disease with an unfavorable prognosis that, without life-sustaining procedures, will soon result in death or a state of permanent unconsciousness from which recovery is unlikely.]

[(b) Patient Eligibility. A patient is eligible to access and use an investigational drug, biological product, or device under this chapter if:]

[(1) the patient has a terminal illness, attested to by the patient's treating physician; and]

[(2) the patient's physician:]

[(A) in consultation with the patient, has considered all other treatment options currently approved by the United States Food and Drug Administration and determined that those treatment options are unavailable or unlikely to prolong the patient's life; and]

[(B) has recommended or prescribed in writing that the patient use a specific class of investigational drug, biological product, or device.]

[(c) Informed Consent. Before receiving an investigational drug, biological product, or device, an eligible patient must sign a written informed consent. If the patient is a minor or lacks the mental capacity to provide informed consent, a parent or legal guardian may provide informed consent on the patient's behalf.]

[(d) Discipline. The Board shall not revoke, fail to renew, suspend, or take any action against a physician's license under Texas Occupations Code Chapter 164, Subchapter B, based solely on the physician's recommendations to an eligible patient with terminal illness regarding access to or treatment with an investigational drug, biological product, or device, provided that the recommendations made to the patient meet the medical standard of care.]

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 March 26, 2018.

TRD-201801276

Scott Freshour

Interim Executive Director

Texas Medical Board

Earliest possible date of adoption: May 6, 2018

For further information, please call: (512) 305-7016


SUBCHAPTER B. INVESTIGATIONAL STEM CELL TREATMENTS FOR PATIENTS WITH CERTAIN SEVERE CHRONIC DIAGNOSES OR TERMINAL ILLNESSES

22 TAC §198.5, §198.6

The new rules are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

No other statutes, articles or codes are affected by this proposal.

§198.5.Use of Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses.

(a) The Legislature recognizes the need for patient access to innovative medical treatments. At the same time, the health and welfare of Texas citizens must be protected. These goals must be carefully balanced.

(b) The purpose of this subchapter is to set out the requirements for a patient to be eligible for consideration of receiving investigational stem cell treatment and under what circumstances a certified physician may administer or provide investigational stem cell treatments. The implementation of this rule is contingent upon qualifying chronic diseases or terminal illness being defined, as set out in §1003.052 of the Texas Health and Safety Code.

(c) This rule does not require an eligible patient receive such treatment, but rather the statute sets the eligibility standards and the parameters under which treatment may be provided to an individual with a qualifying severe chronic disease or terminal illness.

(d) Stem cell treatments which are under investigation in a clinical trial and being administered to human participants:

(1) may be administered or provided to eligible patients with qualifying terminal illnesses or severe chronic diseases as defined by the executive commissioner of the Health and Human Services Commission; and

(2) must be done in compliance with applicable law.

(e) In order for a patient to be eligible to receive treatment with investigational stem cells, the eligible patient must:

(1) be enrolled in a clinical trial investigating the use of adult stem cells in humans;

(2) sign a written informed consent before receiving treatment, include documentation in the medical record of compliance with §1003.053(2)(a) of the Texas Health and Safety Code;

(3) receive treatment from a physician certified under §1003.055 of the Texas Health and Safety Code by:

(A) a qualifying IRB;

(B) a medical school as defined by §61.501 of the Education Code; or

(C) a hospital licensed under Chapter 241 of the Texas Health and Safety Code; and

(4) receive treatment in a qualifying facility under §1003.055 of the Texas Health and Safety Code.

§198.6.Process and Procedures for IRBs Engaged in the Use of Investigational Stem Cell Treatments for Patients with Certain Severe Chronic Diseases or Terminal Illnesses.

(a) In accordance with Chapter 1003 of the Texas Health and Safety Code, each IRB overseeing clinical trials of investigational stem cell treatments shall submit an annual report to the Board that:

(1) sets forth the study's current findings;

(2) specifies the number of patients participating in the stem cell clinical trial(s);

(3) includes the treatment results of all patients treated with investigational stem cell treatments;

(4) generally describes the effects of the treatments and study's findings to date, including all adverse events;

(5) includes the medical school or hospital the IRB is affiliated with in accordance with §1003.055 of the Texas Health and Safety Code;

(6) includes the location where the patients' treatments were provided in accordance with §1003.055 of the Texas Health and Safety Code;

(7) includes the names of all physicians certified by the IRB or the affiliated entity to administer or provide investigational stem cell treatments and the time-period of that certification; and

(8) shall not include any patient identifying information, as the report will be made available to the public upon request.

(b) Each IRB overseeing clinical trials must be current with required reporting to the TMB. The annual report shall cover the time-period beginning September 1 and ending on August 31. The report must be submitted to the Medical Board before the end of the calendar year in which the reporting time-period ends.

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 March 26, 2018.

TRD-201801277

Scott Freshour

Interim Executive Director

Texas Medical Board

Earliest possible date of adoption: May 6, 2018

For further information, please call: (512) 305-7016


PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 201. LICENSING AND ENFORCEMENT--PRACTICE AND PROCEDURE

22 TAC §201.18

The Texas Funeral Service Commission (Commission) proposes to amend Title 22 Texas Administrative Code, Part 10, Chapter 201, Licensing and Enforcement--Practice and Procedure by proposing new §201.18, Agency Staff Training and Education.

The Commission is proposing this rule because the State Employee Training Act (Texas Government Code Chapter 656 Subchapter C) sets out requirements for state agencies to adopt rules regarding training and education for state employees.

FISCAL NOTE: Janice McCoy, Executive Director, has determined for the first five-year period the new rule is in effect there will be no fiscal implication for state or local governments, or local economies.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed new rule will be in effect, the public benefit is compliance with state law regarding state employee training. There will not be any economic cost to any individuals required to comply with the proposed new rule and there is no anticipated negative impact on local employment because the rule impacts how the Commission offers training and education to its employees.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. The agency has determined that there will be no economic effect on small or micro-businesses or rural communities because the rule impacts how the Commission offers training and education to its employees.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years a rule would be in effect: 1. The proposed rule does not create or eliminate a government program; 2. The proposed rule will not require a change in the number of employees of the agency; 3. The proposed rule will not require additional future legislative appropriations; 4. The proposed rule will not require an increase in fees paid to the agency; 5. The proposed rule will not create a new regulation; 6. The proposed rule will not expand, limit, or repeal an existing regulation; 7. The proposed rule will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule will neither positively nor negatively affect this state's economy because no new fees are imposed. This rule impacts how the Commission offers training and education to its employees.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed new rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government because the rule only impacts how the Commission offers training and education to its employees. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

The agency has determined Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the agency is not required to complete a takings impact assessment regarding this proposal.

Comments on the proposal may be submitted in writing to Mr. Kyle Smith at P.O. Box 12217, Capitol Station, Austin, Texas 78711-1440, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Texas Government Code §656.048, which requires the agency to adopt rules regarding training offered to state employees.

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

§201.18.Agency Staff Training and Education.

(a) In accordance with the State Employee Training Act, Commission staff may be permitted or required to attend training or education programs if those programs are related to the employee’s duties or prospective duties, and the training materially aids effective administration of the Cemetery and Crematory Services, Funeral Directing, and Embalming Act or Commission rules and serves an important purpose.

(b) The Commission’s Executive Director shall be eligible to attend training and education programs, and shall determine which other employees will be permitted or required to attend training or education programs.

(c) Employees who receive training or education must utilize the training or educational opportunity to prepare for technological and legal developments facing the Commission, or to increase their work capabilities or competence.

(d) An employee, prior to receiving training or education for three or more months, during which the employee does not perform his or her regular duties, must enter into a written agreement with the Commission to comply with the requirements of Tex. Gov’t Code §656.103(a)(1). Employees who fail or refuse to enter into such an agreement shall not be permitted to attend training or educational programs lasting three or more months.

(e) The Commission shall pay the costs and expenses related to approved training or educational programs in accordance with the State Employee Training Act, the Comptroller’s rules and regulations, and the Commission’s own policies relating to employee reimbursement.

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 March 23, 2018.

TRD-201801241

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: May 6, 2018

For further information, please call: (512) 936-2480


CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER B. DUTIES OF A FUNERAL ESTABLISHMENT/LICENSEE

22 TAC §203.26

The Texas Funeral Service Commission (Commission) proposes to amend 22 Texas Admin. Code §203.26, Presentation of Consumer Brochure. The rule currently requires funeral establishments to display and offer consumer brochures promulgated under §201.7 of the title. The rule states only the Commission may print the brochure and authorizes the Commission to charge a fee for the brochures.

Many entities, especially pre-need trust and insurance funded companies, are starting to move to an online only presence. With the Commission's current rule, the entity is required to mail a copy of the brochure to the online only consumer.

The Commission was asked to provide a mechanism to allow for the digital transmission of the consumer brochure. This rule amendment authorizes the Commission to provide a digital "license" to an entity so the entity can provide the consumer brochure in digital form. The rule maintains the requirement that a Commission printed brochure is required for any in-person arrangements, whether pre-need or at-need.

FISCAL NOTE: Janice McCoy, Executive Director, has determined for the first five-year period the new chapter is in effect there will be no fiscal implication for state or local governments, or local economies.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed new rule will be in effect, the public benefit is that all consumers are provided the brochure in a timely and efficient manner. There is no additional economic cost to individuals required to comply with the proposed new rule. There is no anticipated negative impact on local employment.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. The agency has determined that there will be no economic effect on small or micro-businesses or rural communities.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years a rule would be in effect: 1. The proposed rule does not create or eliminate a government program; 2. The proposed rule will not require a change in the number of employees of the agency; 3. The proposed rule will not require additional future legislative appropriations; 4. The proposed rule will not require an increase in fees paid to the agency; 5. The proposed rule will not create a new regulation; 6. The proposed rule will not expand, limit, or repeal an existing regulation; 7. The proposed rule will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule will neither positively nor negatively affect this state's economy. This rule only provides an additional mechanism to presenting the consumer brochure.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed new rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government because the entity who chooses to use the digital brochure may purchase fewer printed copies and will save on postage costs of mailing the printed brochure to its online only customers. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

The agency has determined Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the agency is not required to complete a takings impact assessment regarding this proposal.

Comments on the proposal may be submitted in writing to Mr. Kyle Smith at P.O. Box 12217, Capitol Station, Austin, Texas 78711-1440, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and §651.201 which requires the Commission to provide brochures of public interest to licensed entities as it considers appropriate.

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

§203.26.Presentation of Consumer Brochure.

(a) Consumer brochures as promulgated under §201.7 of this title shall be prominently displayed in the public view, offered free of charge for keeping to any person, and presented at the beginning of the arrangement conference for the disposition of a dead body.

(b) For entities that are transacting business exclusively via digital means with a consumer, the entity may present the consumer brochure in a digital format as authorized and provided by the Commission. In-person arrangements, whether pre-need or at-need, still require presentation of the Commission printed paper copy of the consumer brochure.

(c) [(b)] Consumer brochures are designed and printed by the Commission and may be copied only when the Commission is unable to furnish the funeral establishment with an ordered supply.

(d) [(c)] The Commission determines the minimum order size and the fees for the brochures, however the Commission may provide the digital brochure to a consumer or public interest group formed to assist consumers in funeral proceedings free of charge.

(e) Each digital consumer brochure shall be labeled with the entity's name and effective dates of the right to provide the consumer brochure in a digital format.

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 March 23, 2018.

TRD-201801242

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: May 6, 2018

For further information, please call: (512) 936-2480


CHAPTER 205. CEMETERIES AND CREMATORIES

22 TAC §205.11

The Texas Funeral Service Commission (Commission) proposes to amend Title 22, Texas Administrative Code, Part 10, Chapter 205, Cemeteries and Crematories, by amending rule §205.11, Prerequisites for Cremation.

In 2014, the agency updated Chapter 205 in its entirety as a part of the agency's quadrennial rules review. The update was intended to improve ease of use for both consumers and industry and to improve efficiencies for agency staff as the rules were updated and clarified.

However, it has been brought to the agency's attention that changes made to §205.11, Prerequisites for Cremation, have created delays in the cremation process which negatively impact consumers and their requests for timely disposition of their loved ones.

This proposed rule would clarify that the death record required by Texas Health and Safety Code, Chapter 716.051, could be the burial transit permit as required by 25 TAC §181.2. In effect, this clarification allows only two documents to be presented before cremation can occur.

FISCAL NOTE: Janice McCoy, Executive Director, has determined for the first five-year period the new chapter is in effect there will be no fiscal implication for state or local governments, or local economies.

PUBLIC BENEFIT/COST NOTE. Ms. McCoy has determined that, for each year of the first five years the proposed new rule will be in effect, the public benefit is requested cremations are done in a timely manner. There is no additional economic cost to an individuals required to comply with the proposed new rule. There is no anticipated negative impact on local employment.

ADVERSE IMPACT ON SMALL OR MICRO-BUSINESSES OR RURAL COMMUNITIES. The agency has determined that there will be no economic effect on small or micro-businesses or rural communities.

GOVERNMENT GROWTH IMPACT STATEMENT. Ms. McCoy also has determined that, for the first five years a rule would be in effect: 1. The proposed rule does not create or eliminate a government program; 2. The proposed rule will not require a change in the number of employees of the agency; 3. The proposed rule will not require additional future legislative appropriations; 4. The proposed rule will not require an increase in fees paid to the agency; 5. The proposed rule will not create a new regulation; 6. The proposed rule will not expand, limit, or repeal an existing regulation; 7. The proposed rule will not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule will neither positively nor negatively affect this state's economy.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT. Under Government Code, §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c). The proposed new rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government because the rule only clarifies the documents that are need before a cremation can be performed. Therefore, the agency is not required to take any further action under Government Code, §2001.0045(c).

The agency has determined Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the agency is not required to complete a takings impact assessment regarding this proposal.

Comments on the proposal may be submitted in writing to Mr. Kyle Smith at P.O. Box 12217, Capitol Station, Austin, Texas 78711-1440, (512) 479-5064 (fax) or electronically to info@tfsc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Health and Safety Code, §716.002, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work, and Health and Safety Code, §716.051, which outlines the documents necessary for cremation.

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

§205.11.Prerequisites for Cremation.

(a) The following [Three] documents are required to cremate deceased human remains:

(1) a cremation authorization form signed by the person responsible for making arrangements for final disposition; and

(2) a death certificate or other death record indicating that the deceased human remains may be cremated[; and].

(b) A [(3) a] burial transit permit is [as] required under [by] 25 TAC §181.2 and may be considered other death record under subsection (a)(2).

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 March 23, 2018.

TRD-201801240

Janice McCoy

Executive Director

Texas Funeral Service Commission

Earliest possible date of adoption: May 6, 2018

For further information, please call: (512) 936-2480


PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 461. GENERAL RULINGS

22 TAC §461.3

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §461.3, Former Board Members. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§461.3.Former Board Members.

A Board member whose term has expired and who has ceased to serve as a Board member will not be employed or utilized to represent the Board in any official capacity except to serve as [an oral examiner or as] a professional reviewer. A former Board member may not hold himself or herself out as an official or unofficial representative of the Board. Any such representations are not binding upon the Board in any way. Disclosure of confidential or privileged information obtained by a former Board member in his or her capacity as a Board member is unprofessional conduct and grounds for disciplinary action 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 March 23, 2018.

TRD-201801243

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


CHAPTER 463. APPLICATIONS AND EXAMINATIONS

22 TAC §463.6

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.6, Regionally Accredited Institutions. The proposed amendment is necessary to update changes in the regional accrediting organizations recognized as providing accreditation to universities through the U.S. The proposed change is necessary because the North Central Association of Colleges and Schools, also known as the North Central Association, was dissolved in 2014, and the Higher Learning Commission acquired the assets of the association some time thereafter. Additionally, the Middle States Commission on Higher Education, while associated with the Middle States Association of Colleges and Schools, is the entity responsible for accreditation for institutions of higher education; the Middle States Association of Colleges and Schools is responsible for accreditation of elementary and secondary schools.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide more accurate and up-to-date information regarding licensing requirements and standards. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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); it does not expand or repeal an existing regulation (it clarifies an existing regulation); it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

Lastly, the Board proposes this rule amendment pursuant to the authority found in §§501.255, 501.259, and 501.260 of the Texas Occupations Code which vests the Board with the authority to set the standards to qualify for a license.

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

§463.6.Regionally Accredited Institutions.

A regionally accredited educational institution stated in §§501.255(a)(1)(A), 501.259, 501.004 and 501.260 of the Act is defined as an educational institution accredited by one of the following regional accrediting organizations [which satisfies the standards of the accrediting association in one of the following six regions throughout the United States]:

(1) Southern Association of Colleges and Schools Commission on Colleges

(2) Western Association of Schools and Colleges, Senior College and University Commission

(3) Northwest Commission on Colleges and Universities

(4) Higher Learning Commission [North Central Association of Colleges and Schools]

(5) New England Association of Schools and Colleges

(6) Middle States Commission on Higher Education, also known as the Mid-Atlantic Region Commission on Higher Education [Middle States Association of Colleges and Schools]

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 March 23, 2018.

TRD-201801244

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.12

The Texas State Board of Examiners of Psychologists proposes the repeal of rule §463.12, Licensed Psychologist by Reciprocity. The proposed repeal is necessary to ensure the Board achieves maximum efficiency and licensure mobility when exploring reciprocity with other jurisdictions. The proposed repeal is also necessary to ensure an equal opportunity for reciprocity among the various types of licensure issued by this agency.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed repeal 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 repeal of this rule. Additionally, Mr. Spinks has determined that enforcing or administering the repeal of this 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 is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed repeal will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the repeal of the rule will be to help the Board protect the public.

Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed repeal is in effect, there will be no additional economic costs to persons required to comply with the repeal of the rule.

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed repeal is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed repeal will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov't Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed repeal does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed repeal is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed repeal is in effect, the Board estimates that the proposed repeal will have no effect on government growth. The proposed repeal 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 does not expand or repeal an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed repeal. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov't Code §2007.043.

Request for Public Comments.

Comments on the proposed 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 proposed repeal, describe and estimate the economic impact of the proposed repeal on small businesses, offer alternative methods of achieving the purpose of the proposed 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, 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 repeal 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 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 §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.12.Licensed Psychologist by Reciprocity.

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 March 23, 2018.

TRD-201801245

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.12

The Texas State Board of Examiners of Psychologists proposes a new rule §463.12, Licensure by Reciprocity. The proposed new rule is necessary to ensure the Board achieves maximum efficiency and licensure mobility when exploring reciprocity with other jurisdictions. The proposed new rule is also necessary to ensure an equal opportunity for reciprocity among the various types of licensure issued by this agency.

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 licensees, applicants, and the general public because the proposed new rule will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed new rule is in effect, there will be no additional economic costs to persons required to comply with this rule.

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed new rule is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed new rule will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov't Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed new rule does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed new rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed new rule is in effect, the Board estimates that the proposed new rule will have no effect on government growth. The 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed new rule. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov't Code §2007.043.

Request for Public Comments. Comments on the proposed 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 new 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, 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 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.

Additionally, the Board proposes this new rule pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.12.Licensure by Reciprocity.

An individual applying for licensure by reciprocity with this agency must meet each of the following criteria to be eligible for licensure by reciprocity:

(1) Submit an application and corresponding fee;

(2) Submit written verification that the applicant is actively licensed, certified, or registered in good standing in a jurisdiction with which Texas shares reciprocity. The written verification must be sent directly to the Board from the other jurisdiction;

(3) Submit a self-query report from the National Practitioner Data Bank (NPDB) reflecting no disciplinary history, other than disciplinary history related to continuing education or professional development. The report must be submitted with the application in the sealed envelope in which it was received from the NPDB;

(4) Pass the jurisprudence examination;

(5) Undergo a fingerprint based criminal history check which reflects no disqualifying criminal history; and

(6) Submit any other documentation or information requested in the application or which the Board may deem necessary in order to ensure the public's safety when processing the application.

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 March 23, 2018.

TRD-201801246

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.18

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.18, Failing Written Examinations. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board’s rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov’t Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov’t Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov’t Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule’s applicability; and it does not positively or adversely affect the state’s economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed rule amendment. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov’t Code §2007.043.

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov’t Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.18.Failing Written[/Oral] Examinations.

Applicants who fail the written examinations [or the Oral Examination] are permitted to take them again by paying additional examination fees. [Split decisions on the Oral Examination are considered to be failures.]

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 March 23, 2018.

TRD-201801247

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.19

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.19, Time Limit on Examination Failures and Passing Scores. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.19.Time Limit on Examination Failures and Passing Scores.

(a) Applicants must successfully pass all examinations required of them within two years from the date they are approved by the Board to sit for the exams. [The Board may adjust this requirement within 10 days to provide flexibility in the Board's scheduling of Oral Examinations.]

(b) For the purpose of fulfilling application requirements for licensure, a passing score on the Board's Jurisprudence Examination is valid for only four years, unless the applicant has other active licensure with the Board at the time the application is received 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 March 23, 2018.

TRD-201801248

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.20

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.20, Refunds and Transfers of Application and Examination Fees. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.20.Refunds and Transfers of Application and Examination Fees.

(a) Application fees are non-refundable and non-transferable.

[(b) The Oral Examination fee may be transferred to a subsequent examination when an applicant fails to appear for their scheduled examination, if an applicant makes a written request for a transfer and provides the Board with documentation demonstrating good cause for why the applicant failed to appear on their scheduled examination date. Upon written request and showing of good cause, the Board shall excuse the applicant's failure to appear, and allow the examination fee to be applied, one time only, toward the next regularly scheduled examination.]

(b) [(c)] The Jurisprudence Examination fee may be transferred to a subsequent examination when an applicant fails to timely complete the examination, if an applicant makes a written request for a transfer and provides the Board with documentation demonstrating good cause for why the applicant failed to timely complete the examination. Upon written request and showing of good cause, the Board shall excuse the applicant's failure to timely complete the examination, and allow the Board's portion of the examination fee to be applied, one time only, toward a subsequent examination. The Applicant however, must pay that portion of the examination fee attributable to the third-party vendor administering the online examination, before they will be allowed to retake the examination.

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 March 23, 2018.

TRD-201801249

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.21

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.21, Board Members as Reviewers of Examinations. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Texas Occupations Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.21.Board Members as Reviewers of Examination.

All Board members serve as reviewers of written examination [and Oral Examination] materials and procedures unless a member is matriculated in a graduate program in psychology or is related within the second degree of affinity or within the second degree of consanguinity to a person who matriculated in a graduate program in psychology.

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 March 23, 2018.

TRD-201801250

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.23

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §463.23, Criteria for Examination Consultants. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation, it amends an existing regulation; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.23.Criteria for Examination Consultants.

The Board may employ licensees to act as consultants for purposes of developing and administering the Jurisprudence Examination [and the Oral Examination]. All such consultants shall be considered as agents of the Board. To be eligible to serve as a consultant for an examination, an individual must:

(1) Be currently licensed by the Board and must have three years of experience in their area of expertise as a licensee;

(2) Not be related within the second degree of affinity (marriage) or consanguinity (blood relationship) to an individual who has applied to take the examination;

(3) Have no restrictions or pending complaints against his/her license; and

(4) Be approved 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 March 23, 2018.

TRD-201801251

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §463.24

The Texas State Board of Examiners of Psychologists proposes the repeal of rule §463.24, Oral Examination Work Group. The proposed repeal is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed repeal makes conforming changes by deleting any references to the former oral examination rule, thus the oral examination working group is no longer needed.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed repeal 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 repeal of this rule. Additionally, Mr. Spinks has determined that enforcing or administering the repeal of this 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 is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed repeal will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the repeal of the rule will be to help the Board protect the public.

Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed repeal is in effect, there will be no additional economic costs to persons required to comply with the repeal of the rule.

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed repeal is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed repeal will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov't Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed repeal does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed repeal is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed repeal is in effect, the Board estimates that the proposed repeal will have no effect on government growth. The proposed repeal 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 does not expand or repeal an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed repeal. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov't Code §2007.043.

Request for Public Comments.

Comments on the proposed 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 proposed repeal, describe and estimate the economic impact of the proposed repeal on small businesses, offer alternative methods of achieving the purpose of the proposed 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, 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 repeal 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 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 §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§463.24.Oral Examination Work Group.

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 March 23, 2018.

TRD-201801252

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


CHAPTER 465. RULES OF PRACTICE

22 TAC §465.1

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §465.1, Definitions. The proposed amendment is necessary to eliminate the duplicative definition of "multiple relationship." The proposed amendment is also necessary to bring the agency's definition of "professional relationship" into alignment with the U.S. 5th Cir. Court of Appeals opinion in Serafine vs. Branaman. More specifically, the Court opined that with regard to professional speech, "outside of the fiduciary relationship between client and therapist, speech is granted ordinary First Amendment protection." The proposed amendment seeks to clarify that a professional relationship is a fiduciary relationship, and one where the patient or client, at a minimum, reasonably believes his or her treatment provider is subject to Chapter 611 of the Health and Safety Code. These two factors help ensure that protected speech enjoys the full benefit of §501.003(c) of the Occupations Code, while speech constituting the practice of psychology remains subject to this agency's jurisdiction.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to §2006.002 of the Tex. Gov't Code.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation, it amends an existing regulation; it does not expand or repeal an existing regulation but does clarify an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed rule amendment. Thus, the Board is not required to prepare a takings impact assessment pursuant to §2007.043 of the Tex. Gov't Code.

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Texas Occupations Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

§501.003 of the Tex. Occ. Code and Board rules §§465.8, 465.11, 465.13, and 465.21 will be affected by this proposed rule amendment.

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

§465.1.Definitions.

The following terms have the following meanings:

(1) "Adoption evaluation" has the same meaning as assigned by Tex. Fam. Code Ann. §107.151.

(2) "Child custody evaluation" has the same meaning as assigned by Tex. Fam. Code Ann. §107.101.

(3) [(1)] "Client" means a party other than a patient seeking or obtaining psychological services, as defined in §501.003 of the Occupations Code, for a third-party with the goal of assisting or caring for that third-party or answering a referral question through the use of forensic psychological services.

(4) [(2)] "Dual Relationship" means a situation where a licensee and another individual have both a professional relationship and a non-professional relationship. Dual relationships include, but are not limited to, personal friendships, business or financial interactions, mutual club or social group activities, family or marital ties, or sexual relationships.

[(3) "Forensic psychological services" are services involving courts, legal claims, or the legal system. The provision of forensic psychological services includes any and all preliminary and exploratory services, testing, assessments, evaluations, interviews, examinations, depositions, oral or written reports, live or recorded testimony, or any psychological service provided by a licensee concerning a current or potential legal case at the request of a party or potential party, an attorney for a party, or a court, or any other individual or entity, regardless of whether the licensee ultimately provides a report or testimony that is utilized in a legal proceeding. However, forensic psychological services do not include evaluations, proceedings, or hearings under the Individuals with Disabilities Education Improvement Act (IDEIA).]

(5) [(4)] "Forensic evaluation" is an evaluation conducted, not for the purpose of providing mental health treatment, but rather at the request of a court, a federal, state, or local governmental entity, an attorney, or an administrative body including federal and private disability benefits providers to assist in addressing a forensic referral question.

(6) "Forensic psychological services" are services involving courts, legal claims, or the legal system. The provision of forensic psychological services includes any and all preliminary and exploratory services, testing, assessments, evaluations, interviews, examinations, depositions, oral or written reports, live or recorded testimony, or any psychological service provided by a licensee concerning a current or potential legal case at the request of a party or potential party, an attorney for a party, or a court, or any other individual or entity, regardless of whether the licensee ultimately provides a report or testimony that is utilized in a legal proceeding. However, forensic psychological services do not include evaluations, proceedings, or hearings under the Individuals with Disabilities Education Improvement Act (IDEIA).

(7) [(5)] "Informed Consent" means the written documented consent of the patient, client and other recipients of psychological services only after the patient, client or other recipient has been made aware of the purpose and nature of the services to be provided, including but not limited to: the specific goals of the services; the procedures to be utilized to deliver the services; possible side effects of the services, if applicable; alternate choices to the services, if applicable; the possible duration of the services; the confidentiality of and relevant limits thereto; all financial policies, including the cost and methods of payment; and any provisions for cancellation of and payments for missed appointments; and right of access of the patient, client or other recipient to the records of the services.

(8) [(6)] "Licensee" means a licensed psychologist, provisionally licensed psychologist, licensed psychological associate, licensed specialist in school psychology, applicants to the Board, and any other individual whom the Board has the authority to discipline under these Rules.

[(7) "Multiple Relationship" means any relationship between a licensee and another individual involving a professional relationship and a non-professional relationship.]

(9) [(8)] "Patient" means a person who receives psychological services, as defined in §501.003 of the Occupations Code, regardless of whether the patient or a third-party pays for the services. The term "patient" shall include a client if the client is a person listed in §611.004(a)(4) or (5) of the Health and Safety Code who is acting on a patient's behalf. A person who is the subject of a forensic evaluation is not considered to be a patient under these rules.

(10) "Private school" has the same meaning as assigned by §5.001 of the Texas Education Code, but does not include a parent or legal guardian who chooses to homeschool a child.

(11) [(9)] "Professional relationship" means a fiduciary relationship between a licensee and a patient or client involving communications and records deemed confidential under §611.002 of the Health and Safety Code. A professional relationship also exists where licensees are appointed by a court or other governmental body to answer a referral question through the use of forensic psychological services [is any relationship between a licensee and another individual, group or organization in which the licensee delivers psychological services to the individual, group, or organization].

(12) [(10)] "Professional standards" are determined by the Board through its rules, regulations, policies and any other sources adopted by the Board.

(13) [(11)] "Provision of psychological services" means any use by a licensee of his or her education or training in psychology in the context of a professional relationship. Psychological services include, but are not limited to, therapy, diagnosis, testing, assessments, evaluation, treatment, counseling, supervision, consultation, providing forensic opinions, rendering a professional opinion, performing research, or teaching to an individual, group, or organization.

(14) "Public school" means any state agency, regional education service center, diploma program, school district, or charter school established or authorized under Title 2 of the Texas Education Code and supported in whole or in part by state tax funds.

(15) "Recognized member of the clergy," as used in §501.004(a)(4) of the Act, means a member in good standing of and accountable to a denomination, church, sect or religious organization legally recognized under the Internal Revenue Code, §501(c)(3).

(16) "Records" are any information, regardless of the format in which it is maintained, that can be used to document the delivery, progress or results of any psychological services including, but not limited to, data identifying a recipient of services, dates of services, types of services, informed consents, fees and fee schedules, assessments, treatment plans, consultations, session notes, test results, reports, release forms obtained from a client or patient or any other individual or entity, and records concerning a patient or client obtained by the licensee from other sources.

(17) "Report" includes any written or oral assessment, recommendation, psychological diagnostic or evaluative statement containing the professional judgment or opinion of a licensee.

(18) "Supervision" refers to direct, systematic professional oversight of individuals who provide psychological services under the authority of a supervising licensee, whereby the supervisor has the responsibility and ability to monitor and control the psychological services provided to ensure the patient's or client's best interests are met and that the public is protected. In the context of psychological training and education, "supervision" also refers to the formal provision of systematic education and training for purposes of licensure or competency that serves to assist individuals with gaining experience and developing the skills necessary for licensure or competent practice in a particular practice area. However, the term "supervision" does not apply to the supervision of purely administrative or employment matters.

(19) "Test data" refers to a patient's specific answers to test materials, whether spoken or written, generated in drawings, or recorded by computers or other lab devices.

(20) "Test materials" refers to test booklets, forms, manuals, instruments, protocols, software, as well as test questions, and stimuli protected by federal copyright law and used in psychological testing to generate test results and test reports.

[(12) "Recognized member of the clergy," as used in §501.004(a)(4) of the Act, means a member in good standing of and accountable to a denomination, church, sect or religious organization legally recognized under the Internal Revenue Code, §501(c)(3).]

[(13) "Records" are any information, regardless of the format in which it is maintained, that can be used to document the delivery, progress or results of any psychological services including, but not limited to, data identifying a recipient of services, dates of services, types of services, informed consents, fees and fee schedules, assessments, treatment plans, consultations, session notes, test results, reports, release forms obtained from a client or patient or any other individual or entity, and records concerning a patient or client obtained by the licensee from other sources.]

[(14) "Report" includes any written or oral assessment, recommendation, psychological diagnostic or evaluative statement containing the professional judgment or opinion of a licensee.]

[(15) "Test materials" refers to test booklets, forms, manuals, instruments, protocols, software, as well as test questions, and stimuli protected by federal copyright law and used in psychological testing to generate test results and test reports.]

[(16 "Test data" refers to a patient's specific answers to test materials, whether spoken or written, generated in drawings, or recorded by computers or other lab devices.]

[(17) "Supervision" refers to direct, systematic professional oversight of individuals who provide psychological services under the authority of a supervising licensee, whereby the supervisor has the responsibility and ability to monitor and control the psychological services provided to ensure the patient's or client's best interests are met and that the public is protected. In the context of psychological training and education, "supervision" also refers to the formal provision of systematic education and training for purposes of licensure or competency that serves to assist individuals with gaining experience and developing the skills necessary for licensure or competent practice in a particular practice area. However, the term "supervision" does not apply to the supervision of purely administrative or employment matters.]

[(18) "Child custody evaluation" has the same meaning as assigned by Tex. Fam. Code Ann. §107.101.]

[(19) "Adoption evaluation" has the same meaning as assigned by Tex. Fam. Code Ann. §107.151.]

[(20) "Private school" has the same meaning as assigned by §5.001 of the Texas Education Code, but does not include a parent or legal guardian who chooses to homeschool a child.]

[(21) "Public school" means any state agency, regional education service center, diploma program, school district, or charter school established or authorized under Title 2 of the Texas Education Code and supported in whole or in part by state tax funds.]

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 March 23, 2018.

TRD-201801260

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §465.13

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §465.13, Personal Problems, Conflicts and Dual Relationships. The proposed amendment is brought to clarify the standards for licensees confronted with multiple relationships and to eliminate duplicate or confusing language. The amendment is also being offered to provide a more balanced approached by requiring the likelihood of certain harms before prohibitions in the rule are triggered, as opposed to the mere potential for such harm.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule amendment does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to the agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation, it amends an existing regulation; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§465.13.Personal Problems, Conflicts and Dual Relationships.

(a) In General.

(1) Licensees refrain from providing services when they know or should know that their personal problems or a lack of objectivity are likely [have the potential ] to impair their competency or harm a patient, client, colleague, student, supervisee, research participant, or other person with whom they have a professional relationship.

(2) Licensees seek professional assistance for any personal problems, including alcohol or substance abuse likely [that have the potential] to impair their competency.

(3) Licensees do not exploit persons over whom they have supervisory evaluative, or other authority such as students, supervisees, employees, research participants, and clients or patients.

(4) Licensees refrain from entering into or must withdraw from any professional relationship that conflicts with their ability to comply with all Board rules applicable to other existing professional relationships.

[(5) Licensees withdraw from any professional relationship that conflicts, or comes into conflict with, their ability to comply with Board rules relating to other existing professional relationships.]

(b) Dual Relationships.

(1) A licensee must refrain from entering into a dual relationship with a client, patient, supervisee, student, group, organization, or any other party if such a relationship is likely to [presents a risk that the dual relationship could] impair the licensee's objectivity, prevent the licensee from providing competent psychological services, or exploit or otherwise cause harm to the other party.

(2) A licensee must refrain from entering into or withdraw from a professional relationship where personal, financial, or other relationships are likely to impair the licensee's objectivity or pose an unreasonable risk of harm to a patient or client. [A licensee must refrain from a professional relationship where pre-existing personal, financial, professional, or other relationships have the potential to impair the licensee's objectivity or have any other potential to harm or exploit the other party.]

(3) A licensee who is considering or involved in a professional or non-professional relationship that could result in a violation of this rule must take appropriate measures, such as obtaining professional consultation or assistance, to determine whether the licensee's relationships, both existing and contemplated, are likely to impair the licensee's objectivity or cause harm to the other party.

(4) [(3)] Licensees do not provide psychological services to a person with whom they have had a sexual relationship.

(5) [(4)] Licensees do not terminate psychological services with a person in order to have a sexual relationship with that person. Licensees do not terminate psychological services with a person in order to have a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of the client.

[(5) A licensee considering a professional relationship that would result in a dual or multiple relationship shall take appropriate measures, such as obtaining professional consultation or assistance, to determine whether there is a risk that the dual relationship could impair the licensee's objectivity or cause harm to the other party. If potential for impairment or harm exists, the licensee shall not provide services regardless of the wishes of the other party.]

[(6) A licensee in a potentially harmful dual or multiple relationship must cease to provide psychological services to the other party, regardless of the wishes of that party.]

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 March 23, 2018.

TRD-201801253

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §465.18

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §465.18, Forensic Services. The proposed amendment is necessary to comply with Section 6 of HB 1501 passed by the 85th Legislature, Regular Session. In short, the proposed change will ensure child custody evaluators licensed by this agency are held accountable for maintaining the confidentiality of the sensitive information referenced in §107.1111 of the Family Code.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules and consistency with the Texas Family Code. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§465.18.Forensic Services

(a) In General.

(1) A licensee who provides services concerning a matter which the licensee knows or should know will be utilized in a legal proceeding, such as a divorce, child custody determination, fitness for duty evaluation for high risk personnel, disability claim, or risk assessment evaluations of employees, must comply with all applicable Board rules concerning forensic services regardless of whether the licensee is acting as a factual witness or an expert.

(2) Licensees who engage in forensic services must have demonstrated appropriate knowledge of and competence in all underlying areas of psychology about which they provide such services.

(3) All forensic opinions, reports, assessments, and recommendations rendered by a licensee must be based on information and techniques sufficient to provide appropriate substantiation for each finding.

(4) A licensee who provides forensic services must comply with all other applicable Board rules and state and federal law relating to the underlying areas of psychology relating to those services.

(5) When appointed or designated in writing by a court to provide psychological services, a licensee shall obtain and keep a copy of the court order.

(6) When providing forensic psychological services to a minor who is the subject of a court order or the ward of guardianship, a licensee shall obtain and keep a copy of the relevant portions of any court order, divorce decree, or letters of guardianship authorizing the individual to provide substitute consent on behalf of the minor or ward.

(b) Limitation on Services.

(1) A licensee who is asked to provide an opinion concerning an area or matter about which the licensee does not have the appropriate knowledge and competency to render a professional opinion shall decline to render that opinion.

(2) A licensee who is asked to provide an opinion concerning a specific matter for which the licensee lacks sufficient information to render a professional opinion shall decline to render that opinion unless the required information is provided.

(3) A licensee shall not render a written or oral opinion about the psychological characteristics of an individual without conducting an examination of the individual unless the opinion contains a statement that the licensee did not conduct an examination of the individual.

(4) A written or oral opinion about the psychological characteristics of an individual rendered by a licensee who did not conduct an examination of that individual must contain clarification of the extent to which this limits the reliability and validity of the opinion and the conclusions and recommendations of the licensee.

(5) When seeking or receiving court appointment or designation as an expert for a forensic evaluation a licensee specifically avoids accepting appointment or engagement for both evaluation and therapeutic intervention for the same case. A licensee provides services in one but not both capacities in the same case.

(c) Describing the Nature of Services. A licensee must document in writing that subject(s) of forensic evaluations or their parents or legal representative have been informed of the following:

(1) The nature of the anticipated services (procedures);

(2) The specific purpose and scope of the evaluation;

(3) The identity of the party who requested the psychologist's services;

(4) The identity of the party who will pay the psychologist's fees and if any portion of the fees is to be paid by the subject, the estimated amount of the fees;

(5)The type of information sought and the uses for information gathered;

(6) The people or entities to whom psychological records will be distributed;

(7) The approximate length of time required to produce any reports or written results;

(8) Applicable limits on confidentiality and access to psychological records;

(9) Whether the psychologist has been or may be engaged to provide testimony based on the report or written results of forensic psychological services in a legal proceeding; and

(10) The licensee's name as it appears in their professional file with the Board prior to initiating services.

(d) Certain Testimony Prohibited.

(1) A licensee may not offer an expert opinion or recommendation relating to the conservatorship of or possession of or access to a child unless the licensee has conducted a child custody evaluation.

(2) In a contested suit, a licensee may provide other relevant information and opinions, other than those prohibited by paragraph (1) of this subsection, relating to any party that the licensee has personally evaluated or treated.

(3) This subsection does not apply to a suit in which the Department of Family and Protective Services is a party.

(e) Child Custody Evaluations.

(1) The role of the child custody evaluator is one of professional expert. A licensee serving as a child custody evaluator shall not function as an advocate, but must remain impartial and objective. Licensees conducting child custody evaluations, including those licensees appointed by a court, are subject to the Board's jurisdiction and must follow all applicable Board rules.

(2) The term "supervision" as used in this subsection shall have the meaning assigned by Tex. Fam. Code Ann. §107.101. However, the term shall not encompass the restrictions and requirements set forth in Board rule §465.2 of this title (relating to Supervision) nor shall a licensee providing supervision under this subsection have supervisory responsibility under Board rule §465.2 of this title.

(3) Minimum Qualifications of Child Custody Evaluator.

(A) A licensee must be qualified to conduct a child custody evaluation pursuant to Tex. Fam. Code Ann. §107.104 before the licensee may conduct an evaluation. Licensees qualified to conduct evaluations under Tex. Fam. Code Ann. §107.104(b)(2) must conduct evaluations under supervision in accordance with that section.

(B) Notwithstanding any other grounds for qualification, the Board has determined that a licensed psychologist is qualified to conduct child custody evaluations if the licensee:

(i) has obtained a minimum of 8 professional development hours directly related to the performance of child custody evaluations since becoming a licensed psychologist, and is board certified in forensic psychology by the American Board of Professional Psychology (ABPP); or

(ii) has obtained a minimum of 40 professional development hours directly related to the performance of child custody evaluations since becoming a licensed psychologist, and has conducted at least three child custody evaluations under the supervision of a qualified licensee.

(C) A licensee who does not meet the minimum qualification requirements set forth in Tex. Fam. Code Ann. §107.104, may nevertheless conduct a child custody evaluation if:

(i) appointed to do so pursuant to Tex. Fam. Code Ann. §107.106. A licensee appointed under Tex. Fam. Code Ann. §107.106 must comply with the provisions of Subchapter D of the Texas Family Code and this rule;

(ii) the individual is licensed as a psychologist, and has completed at least ten social studies or other child custody evaluations ordered by a court in suits affecting the parent-child relationship prior to September 1, 2015; or

(iii) the licensee was qualified to conduct a social study evaluation under former Tex. Fam. Code Ann. §107.0511(g). This subpart shall expire on August 31, 2017, at which time it shall have no further force and effect.

(D) If requested by a court, a licensee selected to conduct or who is conducting a child custody evaluation must demonstrate appropriate knowledge and competence in child custody evaluation services consistent with professional models, standards, and guidelines.

(E) In addition to the minimum qualifications set forth by this rule, an individual must complete at least eight hours of family violence dynamics training provided by a family violence service provider to be qualified to conduct child custody evaluations.

(4) Disclosure of Conflicts and Bias.

(A) Licensees shall comply with all disclosure requirements set forth in Tex. Fam. Code Ann. §107.107.

(B) Following any disclosure required by Tex. Fam. Code Ann. §107.107(c), a licensee must resign as child custody evaluator, unless:

(i) the court finds that no conflict of interest exists and that any previous knowledge of a party or child who is the subject of the suit is not relevant; or

(ii) the parties and any attorney for a child who is the subject of the suit agree in writing to the licensee's continued appointment as the child custody evaluator.

(C) Except as authorized by Tex. Fam. Code Ann. §107.107(f), licensees may not accept appointment as a child custody evaluator if they have worked in a professional capacity with a party, a child who is the subject of the suit, or a member of the party's or child's family. The term "family" as used in this subpart has the meaning assigned by Tex. Fam. Code Ann. §71.003.

(5) Elements of Child Custody Evaluation.

(A) Licensees shall comply with Tex. Fam. Code Ann. §§107.108, 107.109, and 107.1101 when conducting child custody evaluations.

(B) Licensees may conduct psychometric testing as part of a child custody evaluation in accordance with Tex. Fam. Code Ann. §107.110.

(6) Communications and Recordkeeping of Child Custody Evaluator.

(A) Licensees shall comply with the requirements of Tex. Fam. Code Ann. §107.112 regarding:

(i) the disclosure of communications between evaluation participants;

(ii) the creation and retention of records relevant to the evaluation; and

(iii) access to evaluation records.

(B) Licensees conducting child custody evaluations shall maintain the confidentiality of records obtained from the Department of Family and Protective Services pursuant to Tex. Fam. Code Ann. §107.111, as well as any records obtained pursuant to Tex. Fam. Code Ann. §107.1111 . Licensees may not disclose any information obtained from the records except as required or allowed by law. Failure to maintain confidentiality as required by law [Tex. Fam. Code Ann. §107.111] will result in disciplinary action against a licensee.

(7) Evaluation Report.

(A) A licensee who conducts a child custody evaluation shall prepare and file a report in accordance with Tex. Fam. Code Ann. §107.113.

(B) A licensee shall provide a copy of any report filed with the Court in accordance with Tex. Fam. Code Ann. §107.114.

(f) Adoption Evaluations.

(1) The role of the adoption evaluator is one of professional expert. A licensee serving as an adoption evaluator shall not function as an advocate, but must remain impartial and objective. Licensees conducting adoption evaluations, including those licensees appointed by a court, are subject to the Board's jurisdiction and must follow all applicable Board rules.

(2) Minimum Qualifications of Adoption Evaluator.

(A) A licensee must be qualified to conduct an adoption evaluation pursuant to Tex. Fam. Code Ann. §107.154 before the licensee may conduct an evaluation.

(B) Licensees qualified to conduct a child custody evaluations are also qualified to conduct adoption evaluations.

(C) A licensee who does not meet the minimum qualification requirements set forth in Tex. Fam. Code Ann. §107.154, may nevertheless conduct an adoption evaluation if:

(i) appointed to do so pursuant to Tex. Fam. Code Ann. §107.155. A licensee appointed under Tex. Fam. Code Ann. §107.155 must comply with the provisions of Subchapter E of the Texas Family Code and this rule; or

(ii) the individual is licensed as a psychologist, and has completed at least ten social studies or other child custody evaluations ordered by a court in suits affecting the parent-child relationship prior to September 1, 2015.

(3) Disclosure of Conflicts and Bias.

(A) Licensees shall comply with all disclosure requirements set forth in Tex. Fam. Code Ann. §107.156.

(B) Following any disclosure required by Tex. Fam. Code Ann. §107.156(c), a licensee must resign as adoption evaluator, unless:

(i) the court finds that no conflict of interest exists and that any previous knowledge of a party or child who is the subject of the suit is not relevant; or

(ii) the parties and any attorney for a child who is the subject of the suit agree in writing to the licensee's continued appointment as the adoption evaluator.

(C) Except as authorized by Tex. Fam. Code Ann. §107.156(e), licensees may not accept appointment as an adoption evaluator if they have worked in a professional capacity with a party, a child who is the subject of the suit, or a member of the party's or child's family. The term "family" as used in this subpart has the meaning assigned by Tex. Fam. Code Ann. §71.003.

(4) A licensee shall report to the Department of Family and Protective Services any adoptive placement that appears to have been made by someone other than a licensed child-placing agency or a child's parent or managing conservator.

(5) Licensees shall comply with Tex. Fam. Code Ann. §§107.158, 107.159, and 107.160 when conducting adoption evaluations.

(6) Licensees conducting adoption evaluations shall maintain the confidentiality of records obtained from the Department of Family and Protective Services pursuant to Tex. Fam. Code Ann. §107.163. Licensees may not disclose any information obtained from the records except as required or allowed by law. Failure to maintain confidentiality as required by Tex. Fam. Code Ann. §107.163 will result in disciplinary action against a licensee.

(g) Duty to Report Complaints. Licensees must report any complaint filed against them with this Board that alleges facts tending to show a violation of this rule in connection with a child custody or adoption evaluation. The report must be made to the court that ordered the evaluation within 30 days of receiving notice of the complaint from the Board. Only those complaints for which a licensee receives notice from the Board need to be reported.

(h) Parenting Facilitators.

(1) The title "parenting facilitator" is defined in the Texas Family Code, Title 5, Subtitle B, Chapter 153, Subchapter K, Parenting Plan, Parenting Coordinator, and Parenting Facilitator.

(2) The Board's jurisdiction over licensees who also accept engagements as parenting facilitators is limited to its enforcement of Board rules. The Family Code sets forth procedures for the qualifications, duties, appointment and removal, reporting, record retention, and compensation of parenting facilitators. The Family Code also provides procedures for disclosure of conflicts of interest by parenting facilitators. In the event of conflict between the Family Code and Board rules, the Family Code controls, pursuant to Board rule §461.14 of this title (relating to Conflict between Laws and Board Rules).

(3) A parenting facilitator who is also a licensed psychologist in Texas is a provider of forensic psychological services and must comply with all other applicable Board rules and state and federal laws relating to the underlying areas of psychology relating to those services.

(4) Participants in parenting facilitation are not patients as defined in these rules and in Texas Health and Safety Code §611.001. Records created during parenting facilitation are not confidential.

(5) Parenting facilitators must comply with the Texas Family Code at §153.6061 as to duties and §153.6101 as to qualifications, and with the "Guidelines for Parenting Coordination" developed by the Association of Family and Conciliation Courts Task Force on Parenting Coordination, dated May 2005.

(6) The following psychologist-parenting facilitator practice standards are set forth consistent with Texas Family Code §153.6101.

(A) Parenting facilitators licensed by the Board shall comply with the standard of care applicable to the license to practice psychology in Texas.

(B) Psychologist-parenting facilitators meet all requirements of Texas Family Code §153.6101, including active licensure to practice as a psychologist in Texas; completion of 8 hours of family violence dynamics training provided by a family violence service provider; 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court; 24 classroom hours of training in the fields of family dynamics, child development, and family law; and 16 hours of training in the laws governing parenting coordination and parenting facilitation and the multiple styles and procedures used in different models of service.

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 March 23, 2018.

TRD-201801254

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §465.33

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §465.33, Improper Sexual Conduct. The Board's intent behind this proposed rule amendment is to more accurately describe sexual harassment. The proposed rule amendment is intended to provide greater clarity to licensees and the general public regarding what acts constitute sexual harassment, which may result in disciplinary action by the Board.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees and the general public because the proposed rule amendment will provide greater clarity in the Board’s rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the proposed rule amendment will have no adverse economic effect on small businesses, micro-businesses, or rural communities. Thus, the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov’t Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov’t Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov’t Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule’s applicability; and it does not positively or adversely affect the state’s economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed rule amendment. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov’t Code §2007.043.

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov’t Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§465.33.Improper Sexual Conduct.

(a) "Sexual Harassment" means sexual advances, requests for sexual favors, or other verbal or physical conduct or contact of a sexual nature that has the purpose or effect of creating an intimidating, hostile, or offensive environment and that occurs within a professional relationship. The determination of whether conduct or comments rise to the level of sexual harassment must be made based upon the totality of the circumstances, and from the viewpoint of a reasonable person. Sexual harassment does not include simple teasing, offhand comments, or isolated incidents that are not serious in nature. [includes solicitation, physical advances, or verbal or nonverbal conduct consisting of a single intense or severe act or of multiple persistent or pervasive acts by a licensee toward another individual that are sexual in nature and occur in connection with licensee's professional activities and that are unwelcome, offensive, or create a hostile workplace environment for that individual.]

(b) "Sexual Impropriety" is deliberate or repeated comments, gestures, or physical acts of a sexual nature that include, but are not limited to:

(1) Behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexually demeaning;

(2) Making inappropriate comments about an individual's body;

(3) Making sexually demeaning comments to an individual;

(4) Making comments about an individual's potential sexual performance, except when the examination or consultation is pertinent to the issue of sexual function or dysfunction in therapy/counseling;

(5) Requesting details of a patient or client's sexual history when not clinically indicated for the type of consultation;

(6) Requesting a date;

(7) Initiating conversation regarding the sexual problems, preferences, or fantasies of either party; or

(8) Kissing of a sexual nature.

(c) A sexual relationship is the engaging in any conduct that is sexual or may be reasonably interpreted as sexual in nature including, but not limited to:

(1) Sexual intercourse;

(2) Genital contact;

(3) Oral to genital contact;

(4) Genital to anal contact;

(5) Oral to anal contact;

(6) Touching breasts or genitals;

(7) Encouraging another to masturbate in one's presence;

(8) Masturbation in another's presence; or

(9) Exposure of sexual organs, breasts or buttocks.

(d) A dating relationship is a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature, but does not include a casual acquaintanceship or ordinary fraternization in a business or social context. The existence of such a relationship shall be determined based on consideration of:

(1) The length of the relationship;

(2) The nature of the relationship; and

(3) The frequency and type of interaction between the persons involved in the relationship.

(e) A licensee may not engage in sexual harassment, sexual impropriety, or a sexual relationship with a current patient or client; a former patient or client over whom the licensee has influence due to a therapeutic relationship; current students or trainees of the licensee; individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of current patients or a supervisee over whom the licensee has administrative or clinical responsibility. A licensee may not engage in a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of former patients for at least two years after termination of services.

(f) A licensee may not engage in a dating relationship with a current client or former client over whom the licensee has influence due to therapeutic relationship; current students or trainees of the licensee; individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of current clients, or a supervisee over whom the licensee has administrative or clinical responsibility. A licensee may not engage in a dating relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of former clients, for at least two years after termination of services. A licensee may never engage in a dating relationship when there is potential for harm to any of these individuals.

(g) Psychologists do not accept as clients individuals with whom they have engaged in sexual relationships.

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 March 23, 2018.

TRD-201801255

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


CHAPTER 469. COMPLAINTS AND ENFORCEMENT

22 TAC §469.8

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §469.8, Rehabilitation Guidelines. The proposed amendment is necessary because the agency has repealed former Board rule §463.15, Oral Examination. The proposed amendment makes conforming changes by deleting any references to the former oral examination rule.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board’s rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov’t Code §2006.002.

Local Employment Impact Statement. Mr. Spinks has determined that the proposed rule amendment will have no impact on local employment or a local economy. Thus, the Board is not required to prepare a local employment impact statement pursuant to Tex. Gov’t Code §2001.022.

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov’t Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule’s applicability; and it does not positively or adversely affect the state’s economy.

Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the proposed rule amendment. Thus, the Board is not required to prepare a takings impact assessment pursuant to Tex. Gov’t Code §2007.043.

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov’t Code.

Statutory Authority. The rule 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 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 rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

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

§469.8.Rehabilitation Guidelines.

(a) In the event of revocation or suspension of a license due to non-compliance with the rules of the Board and/or its ethical principles, the Board, in its discretion, may implement a plan of rehabilitation. The plan shall outline the steps the person must follow in order to be considered for relicensure or removal of suspension. Completion of the plan may lead to consideration of submission of an application for relicensure; removal of suspension; or removal of supervision requirements. In the event the licensee has not met the Board's criteria for rehabilitation, the plan may be revised, expanded, and/or continued depending upon the progress of the rehabilitation program. The licensee, before beginning the options outlined in subsection (b) of this section, must address any outstanding complaints.

(b) The Board may follow one or more options in devising a rehabilitation program:

(1) The individual may be supervised for a specified length of time in all or selected areas of activities related to his/her practice as a licensee by a licensed psychologist approved by the Board.

(A) The Board will specify the focus of the supervision.

(B) The Board will specify the number of hours per week required in a face-to-face supervisory contract.

(C) The supervisor will provide periodic and timely reports to the Board concerning the progress of the supervisee.

(D) Any fees for supervision time will be the responsibility of the supervisee.

(2) The individual may be expected to successfully complete a variety of appropriate educational programs. Appropriate educational formats may include but are not limited to workshops, seminars, courses in regionally accredited universities, or organized pre- or post-doctoral internship settings. Workshops or seminars which are not held in a setting of academic review (approved professional development) need prior approval of the Board. Any course of study must be approved by the Board prior to enrollment if it is to meet the criteria of a rehabilitation plan.

(3) The Board may require of the individual:

(A) psychodiagnostic evaluations by a psychologist approved by the Board;

(B) a physical examination including alcohol and drug screening by a physician approved by the Board;

(C) psychotherapy on a regular basis from a psychologist approved by the Board; or

(D) any other requirement that seems appropriate to the individual case.

(4) The Board may require the individual to:

(A) take or retake and pass the appropriate professional examination;

(B) take or retake and pass the Jurisprudence Examination; or

[(C) take or retake and pass the Oral Examination;]

(C) [(D)] complete any other requirement that seems appropriate to the individual case.

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 March 23, 2018.

TRD-201801256

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


CHAPTER 470. ADMINISTRATIVE PROCEDURE

22 TAC §470.21

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §470.21, Disciplinary Guidelines. The proposed amendment removes the schedule of sanctions for violations the Board considers worthy of revocation. The schedule of sanctions for revocation violations is proposed to be moved to §470.22, regarding the Board's schedule of sanctions, which is published elsewhere in this issue of the Texas Register. The Board proposes this change so the Board's schedule of disciplinary sanctions can be included in a single rule instead of two rules. This amendment is proposed to simplify the Board's rules, make the Board's schedule of sanctions more straightforward, and provide greater clarity to licensees and the general public. This proposed amendment also adds a fifth category to the Board's schedule of sanctions, administrative penalty, for the least severe violations of Board rules.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 § 2006.002(c) and (c-1) of the Tex. Gov't Code.

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

Additionally, the Board proposes this rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

The Board also proposes this rule amendment pursuant to the authority found in §501.404 of the Tex. Occ. Code which grants the Board with the authority to adopt a schedule of disciplinary sanctions that the Board may impose.

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

§470.21.Disciplinary Guidelines.

(a) Purpose. The Purpose of the guidelines is to:

(1) Provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary matters;

(2) Promote consistency in the exercise of sound discretion by the Board in the imposition of sanctions in disciplinary matters; and

(3) Provide guidance for the resolution of potentially contested matters.

(b) Limitations. The Board shall render the final decision in a contested case and has the responsibility to assess sanctions against licensees who are found to have violated the Act. The Board welcomes recommendations of administrative law judges as to the sanctions to be imposed, but the Board is not bound by such recommendations. A sanction should be consistent with sanctions imposed in other similar cases and should reflect the Board's determination of the seriousness of the violation and the sanction required to deter future violations. A determination of the appropriate sanction is reserved to the Board. The appropriate sanction is not a proper finding of fact or conclusion of law. This chapter shall be construed and applied so as to preserve the Board's discretion in the imposition of sanctions and remedial measures pursuant to the Act's provisions related to methods of discipline and administrative penalties. This chapter shall be further construed and applied so as to be consistent with the Act, and shall be limited to the extent as otherwise proscribed by statute and Board rule.

[(c) Revocation. The Board shall revoke the license of any licensee if the Board determines that the continued practice of psychology by the licensee poses a harm to the public. The Board shall revoke the license of any licensee who is convicted of a felony involving Medicare or Medicaid fraud. The Board may revoke the license of any licensee who receives deferred adjudication for a felony involving Medicare or Medicaid fraud, if, after consideration of the factors described by Sections 53.022 and 53.023(a) of the Occupations Code, the Board determines that the licensee may pose a continued threat to public safety; or the practice of psychology by the licensee would create a situation in which the licensee has an opportunity to repeat the prohibited conduct. Licensees who violate the following Board rules shall be subject to revocation without reference to subsections (e) through (g) of this section:]

[(1) Board rule §465.13(b)(3) and (b)(6) of this title (relating to Personal Problems, Conflicts and Dual Relationships) pertaining to certain forms of sexual impropriety with current patients;]

[(2) Board rule §465.33(d) of this title (relating to Improper Sexual Conduct) as it pertains to sexual relations, defined in §465.33(c), with current patients; and]

[(3) Board rule §469.7(d)(1)(A) of this title (relating to Persons with Criminal Backgrounds) pertaining to offenses against the person (for example, homicide, kidnapping, sexual offenses, and assaultive offenses).]

[(4) Board rule §461.16 of this title (relating to (Inaccurate and False Information in Licensure Application/Documentation and for Annual Licensure Renewal Application/Documentation), as it pertains to serious falsification of an application or documentation to obtain a license or renewal, and therefore fraud in obtaining a license.]

(c) [(d)] The Board's rules concerning disciplinary guidelines, schedule of sanctions, and aggravating and mitigating circumstances [enumerated above] are not intended to be exhaustive. The Board may recommend revocation for licensees who violate one or more Board rules. [that are not listed above.]

(d) [(e)] Disciplinary Sanctions. If the Board does not revoke a license in connection with a [the license of a licensee as part of a] disciplinary matter, it may impose the following disciplinary sanctions which are listed in descending order of severity:

(1) Suspension for a definite period of time;

(2) Suspension plus probation of any or all of the suspension period;

(3) Probation of the license for a definite period of time;

(4) Reprimand; and [.]

(5) Administrative penalty.

(e) [(f)] Additional conditions. As terms of any sanction imposed by the Board upon a licensee pursuant to a disciplinary matter the Board may, at its discretion, impose any additional conditions and/or restrictions upon the license of the licensee that the Board deems necessary to facilitate the rehabilitation and education of the licensee and to protect the public, including but not limited to:

(1) Consultation with the licensee on matters of ethics rules, laws and standards of practice by a licensed psychologist approved by the Board;

(2) Restrictions on the licensee's ability to provide certain types of psychological services or to provide psychological services to certain classes of patients;

(3) Restrictions on the licensee's supervision of others in the practice of psychology;

(4) Completion of a specified number of continuing education hours on specified topics approved in advance by the Board in addition to any minimum number required of all licensees as a condition of licensure;

(5) Taking and passing with the minimum required score of any examination required by the Board of a licensee;

(6) Undergoing a psychological and/or medical evaluation by a qualified professional approved in advance by the Board and undergoing any treatment recommended pursuant to the evaluation;

(7) Writing a research paper on a specific topic;

(8) Any other condition reasonably related to the rehabilitation and education of the licensee.

(f) [(g)] The length of the sanction period shall be determined by the Board taking into account the time reasonably required to complete the required terms and conditions set forth in the order imposing the sanction.

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 March 23, 2018.

TRD-201801257

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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


22 TAC §470.22

The Texas State Board of Examiners of Psychologists proposes an amendment to rule §470.22, Schedule of Sanctions. The proposed amendment adds the schedule of sanctions for violations the Board considers worthy of revocation. The schedule of sanctions for revocation violations is proposed to be removed from §470.21, regarding disciplinary guidelines, which is published elsewhere in this addition of the Texas Register. The Board proposes this change so that the schedule of disciplinary sanctions can be included in a single rule instead of two rules. This amendment is proposed to simplify the Board's rules, make the Board's schedule of sanctions more straightforward, and provide greater clarity to licensees and the general public. This proposed amendment also reflects the Board's recent review of its rules and updates have been made to accurately reflect the Board's current categorization of what each sanction should be for each rule violation.

Fiscal Note. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year period the proposed rule 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 rule amendment is in effect, there will be a benefit to licensees, applicants, and the general public because the proposed rule amendment will provide greater clarity in the Board's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Board protect the public.

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

Small Business, Micro-Business, and Rural Community Impact Statement. Mr. Spinks has determined for the first five-year period the proposed rule amendment is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities.

Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that there are no anticipated adverse economic effects on small businesses, micro-businesses, or rural communities and that the Board is not required to prepare a regulatory flexibility analysis pursuant to Tex. Gov't Code §2006.002.

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

Requirement for Rules Increasing Costs to Regulated Persons. The proposed amendment does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments therefore, pursuant to Tex. Gov't Code §2001.0045, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule amendment is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.

Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule amendment will have no effect on government growth. The proposed rule 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; it does not expand or repeal an existing regulation, it clarifies an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.

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

Request for Public Comments. Comments on the proposed rule 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 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 §2006.002(c) and (c-1) of the Tex. Gov't Code.

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

Additionally, the Board proposes this rule amendment pursuant to the authority found in §501.151(a) of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and regulate its proceedings.

The Board also proposes this rule amendment pursuant to the authority found in §501.404 of the Tex. Occ. Code which grants the Board with the authority to adopt a schedule of disciplinary sanctions that the Board may impose.

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

§470.22.Schedule of Sanctions.

(a) These disciplinary sanction guidelines are designed to provide guidance in assessing sanctions for violations of the Psychologists' Licensing Act and Board Rules of conduct. The ultimate purpose of disciplinary sanctions is to protect the public, deter future violations, offer opportunities for rehabilitation if appropriate, punish violators, and deter others from violations. These guidelines are intended to promote consistent sanctions for similar violations, facilitate timely resolution of cases, and encourage settlements.

(1) Single Violation. The standard sanctions outlined below shall apply to cases involving a single violation of the Act, and in which there are no aggravating or mitigating factors that apply.

(2) Multiple Violations. The board may impose more restrictive sanctions when there are multiple violations of the Act.

(3) Aggravating and Mitigating Factors. The Board may impose more or less severe or restrictive sanctions, based on any aggravating and/or mitigating factors listed in §470.23 of this chapter (relating to Aggravating and Mitigating Circumstances) that are found to apply in a particular case.

(4) The standard and minimum sanctions outlined below are applicable to first time violators. The Board shall consider more severe sanctions if the person is a repeat offender.

(5) The maximum sanction in all cases is revocation of the license, which may be accompanied by an administrative penalty of up to $1,000 per violation. In accordance with §501.452 of the Act, each day the violation continues is a separate violation.

(6) Each violation constitutes a separate offense, even if arising out of a single act.

(7) Failure to list a type of violation or Board Rule in this rule does not prevent the Board from taking disciplinary action for such a violation.

(8) If a sanction for a violation of Board Rules is not listed in this rule, or specifically stated elsewhere in laws, the default sanction shall be a reprimand.

(9) Notwithstanding paragraph (8) of this subsection, the Board will evaluate and determine, on a case-by-case basis, the appropriate sanction for an individual with a qualifying conviction under §501.401(2) of the Act, as well as for an individual found to be incompetent under §501.158 of the Act.

(b) The following standard sanctions shall apply to violations of the Act and Rules:

Figure: 22 TAC §470.22(b) (.pdf)

[(1) Reprimand, assessment of up to $1,000 in administrative penalties per violation per day, administrative costs, and professional development in the appropriate areas for the following offenses:]

[(A) repeated failure to timely report professional development (Board rule §461.11);]

[(B) basic supervision violation (Board rule §465.2);]

[(C) advertising or specialty title violations (Board rule §465.6);]

[(D) informed consent (Board rule §465.11);]

[(E) misuse of professional services by a third party (Board rule §465.14);]

[(F) fee and third party financial arrangements (Board rule §465.15);]

[(G) technical teaching violations (most of Board rule §465.19);]

[(H) technical research violations (Board rule §465.20(a));]

[(I) records violations (Board rule §465.22);]

[(J) providing services to those served by others (Board rule §465.34);]

[(K) technical violation of some other law pertaining to the practice of psychology (Board rule §465.37);]

[(L) technical violations of supervision rules and other laws pertaining to school psychology (Board rule §465.38); and]

[(M) failure to post complaint notice or inform another about the Board's complaint process (Board rule §469.2).]

[(2) Probated suspension, monitoring of professional practice by independent professional, assessment of up to $1,000 in administrative penalties per violation per day, administrative costs, and professional development in the appropriate areas for the following offenses:]

[(A) employment of unlicensed and non-exempt individuals (Board rule §465.4);]

[(B) one-time incompetence, including violations related to evaluations, testing, use of professional judgment, forensic services, or treatment plans (includes Board rules §§465.9, 465.10, 465.16, 465.17, 465.18, and 465.25);]

[(C) breach of confidentiality (Board rule §465.12);]

[(D) sexual harassment of any type (Board rule 465.33(c));]

[(E) dual relationships, conflicts and personal problems (Board rule §465.13);]

[(F) improper termination, abandonment of clients, and disposition of a professional practice (Board rules §465.21 and §465.32); and]

[(G) failure to remedy or report a violation of the Rules by another (Board rule §465.35).]

[(3) Actual suspension for a period of time, followed by a period of probated suspension with the terms and conditions outlined in paragraph (2) for the following offenses:]

[(A) Sexual relationship with prohibited classes other than current patients (former patients, students, supervisees) or any type of sexual impropriety (Board rule §465.33);]

[(B) Commission of a crime listed in Board rule §469.7, other than those that lead to automatic revocation as outlined in Board rule §470.21;]

[(C) Use of alcohol or drugs in a way that impairs professional competency, as outlined in §501.401(3) of the Act; and]

[(D) Failure to abide by a Board order, as outlined in Board rule §461.15.]

[(4) The types of violations that would automatically lead to revocation are enumerated in Board rule §470.21 and are not subject to aggravating or mitigating circumstances. These offenses include sexual relationships with current patients, severe criminal offenses, and fraud in obtaining a license.]

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 March 23, 2018.

TRD-201801262

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: May 6, 2018

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