BILL ANALYSIS S.B. 1478 By: Madla (Coleman) 05-12-95 Committee Report (Substituted) BACKGROUND The Psychologists' Certification and Licensing Act, Article 4512c, Vernon's Texas Civil Statutes (Act), regulates the practice of psychology. The Act provides for both the licensure and certification of psychologists. However, some of the provisions of the Act fail to properly distinguish between these two categories of authorization to practice. The term certified psychologists has been confusing to the public as there is a variance in the types of persons practicing under this title. This bill would establish the certified psychologists in the process of obtaining full licensure as provisional licensed psychologists, and the certified psychologists who are not actually practicing psychology and often are working in university or research settings, would retain the title. Certified psychologists have been unable to directly bill the insurance companies for reimbursement, but the provisional licensed psychologists are able to do so. Both certified psychologists and provisional licensed psychologists are required to be supervised at all times by a licensed psychologist when practicing psychology. While the Texas State Board of Examiners of Psychologists (Board) administers both a written and oral examination, the Act fails to clearly specify that both exams will be given to individuals seeking certification and licensure. The Act also provides for the issuance of temporary licenses or certificates. However, the Act requires that the Board act on these within 180 days, which is not sufficient time to allow an applicant to take both the oral and written tests. For this reason, very few individuals have been able to obtain a temporary license or certificate and otherwise qualified psychologists were prohibited from practicing in Texas. The Act also fails to provide for the confidentiality of complaints filed with the Board, and Board investigations pertaining to psychologists. The lack of confidentially assurances allows for unsubstantiated complaints to become public information, which can be unnecessarily damaging to the practitioner. Other regulatory bodies, such as the Board of Medical Examiners, provide that disciplinary actions are public knowledge, while complaint files are not. The Act also does not allow psychologists against whom a disciplinary action is pending, access to the files of the Board. This potentially denies the psychologists the ability to adequately defend themselves in a hearing before the Board. PURPOSE S.B. 1478 as substituted proposes amendments to the Act to clarify distinctions between licensed and certified psychologists and changes the title of a certificate to a provisional license, to avoid confusion between a licensed and certified psychologist. Amendments in the bill also would place more responsibility regarding wrongdoing on the Board. The bill would also amend the Act to provide psychologists with a temporary or provisional license while seeking permanent licensure. Finally, the bill would amend the Act to ensure the confidentiality of compliant investigations and patient identities, and to allow psychologists timely access to Board files to have the opportunity to adequately defend themselves in a disciplinary hearing. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the Board in Section 10 (Section 15A the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.)), and Section 17 ( Section 22, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.)). SECTION BY SECTION ANALYSIS SECTION 1. Amends Sec. 2, Psychologists' Certification and Licensing Act (Article 4512(c), Vernon's Texas Civil Statutes), as follows: (a) Adds the definitions of "certificate," "full license," "license," "provisional license," "psychologist," and "psychological associate." (b) Makes nonsubstantial language changes to the description of a person who represents himself to be a "psychologist" within the meaning of this Act. (c) Makes nonsubstantial language changes to the term "psychological services." SECTION 2. Amends Section 5(e)(3) of Psychologists' Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes) to change the procedure for reporting a potential ground for removal. Current law requires the executive director to notify the governor and attorney general if a potential ground for removal exists. As amended, 5(e)(3) would require the executive director to notify the Board that a potential ground for removal may exist. The Board would be required to notify the governor and attorney general if a potential ground for removal exists. SECTION 3. Amends Section 8(f), (g), (j), and (m), Psychologists Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes), as follows: (f) Changes the term "licensee" to "license holder." (g) Changes the term "licensee" to "license holder." (j) Requires the Board to establish mandatory continuing education programs for persons licensed by the Board, and deletes the reference to the programs being regulated by the Board. Deletes the references to a certificate. (m) States that the Board is subject to Chapters 551 and 2001, Government Code, and deletes that the Board is subject to the open meetings law and the Administrative Procedure and Texas Register Act. SECTION 4. Amends Section 8A(a), Psychologists' Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes), to add that the policy statement must include personnel policies in compliance with Chapter 21, Labor Code. Deletes that the policies must be in compliance with the Commission on Human Rights Act. SECTION 5. Amends Section 8D(c), Psychologists' Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes), to add that a training program established under this section shall provide information to a participant regarding the requirements of Chapters 551, 552, and 2001, Government Code, rather than the deleted open meetings law, open records law, and the Administrative Procedure and Texas Register Act. SECTION 6. Amends Section 11 of the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), by deleting the reference to certification and adding "a provisional license" in Subsection (a), and adding the words "or certified" to the provision in Subsection (d)(4)(D) that an applicant for certification examination must not have aided or abetted a person who is not a licensed "or certified" psychologist in representing that the person is a psychologist in Texas. SECTION 7. Amends Section 12, Article 4512c, Vernon's Texas Civil Statutes, to delete the reference to certifications, and add "a provisional license;" to add a reference to Section 22 of this Act, regarding examination as a psychologist; and to change a reference from certification fee to application fee. SECTION 8. Amends Sections 14 of the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to specify that the examinations the Board must administer are both "oral and written" examinations for a provisional license; to add that an examination is administered under Subsection (a) of this section, rather than the deleted certification that is administered under this Act; and to add that the jurisprudence exam shall be administered and must be passed by all applicants before issuance of a provisional license under this Act. SECTION 9. Amends Section 15, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), to change the title from "CERTIFICATION" to "ISSUANCE OF PROVISIONAL LICENSE," and add that the Board is required to issue a provisional license to a qualified applicant who has successfully passed the exam and paid the fee for a provisional license. Deletes references to certification, and deletes that a person passing the exam and paying the fee shall be certified by the Board as a psychologist. SECTION 10. Amends Section 15A the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as follows: Sec. 15A(a) is amended to provide for the granting of temporary licenses and certificates to individuals seeking permanent certification or licensure, including individuals seeking reciprocity, under certain conditions. Sec. 15A(a)(3) is amended to provide that one of the conditions for a temporary license or certificate is that the applicant has passed a national or other examination that is equivalent to the examination required by the Board for a license under this Act. Sec. 15A(a)(4) is deleted. It requires an applicant for a provisional license or certificate to be sponsored by a person licensed or certified by the Board under the Act. Sec. 15A(b) is deleted. It allows an applicant for a provisional license or certificate to be excused from the requirement of Subsection (a)(4). Sec. 15A(c) is relettered as 15A(b) and is amended to provide that a temporary license or certificate is valid for one year or until a permanent license or certificate is granted. Deletes previous language regarding license qualifications for provisional license holders. A new Sec. 15A(c) is added to state that a temporary license or certificate automatically expire if the Board denies an application for a permanent license or certification. Sec. 15A(d) is amended to state that each temporary license issued by the board expires 18 months after the date of issuance. The language requiring the Board to process a provisional license is deleted. Sec. 15A(e) is amended to provide that the Board may adopt rules for the issuance of a temporary license instead of the deleted provisional certification or licensing. Sec. 15A(f) is added, stipulating that a temporary license or certificate does not constitute a vested property right. Sec. 15A(g) is added to require that signs be displayed indicating that the practitioner holds a temporary license or certificate. SECTION 11. Amends Section 16B(a), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), to change certification to provisional licensure with regard to fees, and to specify that there is also a fee for a full license. SECTION 12. Amends Section 17, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), by adding "LICENSE" to the title, deleting the references to certification, and adding license or provisional license where applicable. Subsection (d) adds the words "the psychologist's" before the word license and makes a nonsubstantive wording change. Sec. 17(f) is deleted, providing that a license issued under Sec. 21 of this Act be renewed as a license and not a certificate. Sec. 17(g) is relettered as Sec. 17(f), and is amended to delete doctoral level certificates from a provision stating to what items renewal procedures apply. Sec. 17(h) is relettered as Sec. 19(g) and amended to change "license" to a "sub-doctoral level license," and make a non-substantial conforming change. SECTION 13. Amends Section 18 of the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to provide that an annual list of all licensed and certified psychologists must be published. Deletes the requirement that this list be published each April. SECTION 14. Amends Section 19A(k), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to add that the advisory committee is subject to Chapters 551, 552, and 2001, Government Code, rather than the deleted open meetings law, the open records law, and the Administrative Procedure and Texas Register Act. SECTION 15. Amends Section 20, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to delete a reference to certified, and add that a person exempt under Section 22 of this Act is exempt from the license requirement. SECTION 16. Amends Section 21, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to change the title from "LICENSING" to "FULL LICENSE," add specifications to the requirements a psychologist must satisfy to obtain a full license, and add that a person is not eligible unless the person holds a provisional license. SECTION 17. Amends Section 22(a) and adds Sections 22(b) and (c), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) as follows: (a) Adds to the title a reference to "CERTIFICATION PROGRAM," adds that nothing in this Act shall be construed to apply to specified activities, services, or persons, and deletes an exception to this. Ensuing subsections are renumbered to reflect these changes, and non-substantial language changes are made. (b) Requires the Board by rule to adopt a certification program for a person who is exempt from the license requirements of this Act but who wishes to hold a credential issued by the Board in engaging in an activity or performing a service authorized under this section. (c) Allows the Board to by rule establish all requirements relating to the certification program. Sets forth the particular specified requirements the Board may establish. (d) Allows the holder of a certificate to exercise all of the rights and states that the holder has all of the responsibilities as specified in this subsection that applies to a license holder under this Act. (e) Requires the Board to issue a certificate on request to specified persons meeting the conditions and paying the required fees. (f) Requires specified provisional license holders and specified psychologists or psychological associates to hold a license issued under this Act. SECTION 18. Amends Section 23, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) by removing the references to certification or a certificate, where applicable. Deletes the references to the Administrative Procedure and Texas Register Act, and adds that proceedings and appeals are governed by Chapter 2001, Government Code. SECTION 19. Amends Section 23A(a), (d), (i), (j), (n) and (r), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as follows: (a) Deletes "licensed" from the provision allowing the Board to penalize a regulated person. (d) Removes permissive language and instead requires an executive director who determines that a violation may have occurred to issue to the Board a report stating the facts upon which the determination is based. Further clarifies the process by requiring the Board to determine whether a violation has occurred. If the Board determines a violation has occurred, Sec. 23A(d) requires the Board to make a recommendation concerning the imposition of a penalty. (i) Adds that notice of the Board's order is governed by Chapter 2001, Government Code, rather than the deleted Administrative Procedure and Texas Register Act, and its subsequent amendments. (j) Adds that the Board's order is final as provided by Section 2001.144, Government Code, rather than the deleted Administrative Procedure and Texas Register Act, and (n) Adds that judicial review of the order of the Board is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code, rather than the deleted Administrative Procedure and Texas Register Act. (r) Adds that all proceedings under this section are subject to Chapter 2001, Government Code, rather than the deleted Administrative Procedure and Texas Register Act, and SECTION 20. Amends Sections 23B(a), (c), and (d), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), to delete the references to a certificate. SECTION 21. Amends Section 24A, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), to delete the references to certification, add license or provisional license where applicable, and make other non-substantial language changes to this section regarding the enforcement of competency requirements. SECTION 22. Amends Section 25A, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as follows: Sec. 25A(e) is added, stipulating that compliant investigations are confidential. Sec. 25A(f) is added, providing certain exceptions to the confidentiality of compliant investigations. Sec. 25A(g) is added, prohibiting information from being released unless proper consent is given by the affected patient. States that the only records that may be disclosed are records created by a state hospital or school or its employees. Sec. 25A(h) is added, requiring the Board to provide the psychologist access to the information that the Board will offer into evidence at a disciplinary hearing within 30 days of receipt of written request, unless good cause for delay is shown to the person presiding as officer in the hearing. Sec. 25A(i) is added to require the confidentiality of patient identities when records are examined as part of a disciplinary investigation or proceeding be protected by the Board, except in limited circumstances. Sec. 25A(j) is added, allowing a patient record or other information that identifies a patient or client to be released to a designated representative only if proper consent has been obtained from the patient or client. SECTION 23. Amends Section 25C(a), Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as follows: (a) Deletes the reference to the Administrative Procedure and Texas Register Act, and adds Section 2001.056, Government Code instead, regarding the Board's requirement to adopt rules governing informal disposition of a contested case. (b) Deletes the reference to the Administrative Procedure and Texas Register Act, and adds Section 2001.054, Government Code instead, regarding the Board's requirement to adopt rules governing informal proceedings held in compliance with this Section of the Code. SECTION 24. Amends Section 25D, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) to delete the references to a certificate or certificate holder, regarding the monitoring of a license holder. SECTION 25. Repeals Section 17A, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), regarding the expiration dates of certifications and the proration of fees. SECTION 26. (a) States that this Act applies only to a license or certificate issued or renewed by the Board on or after the effective date of this Act, and that a license issued before this is governed by the law previously in effect. (b) States that Section 25A, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as amended by this Act, applies only to a disciplinary action of the Board occurring on or after the effective date of this Act, and that a disciplinary action that occurred before, is governed by the law previously in effect. SECTION 27. (a) States that the expiration date of a certificate issued by the Board under Section 15, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as that section existed before this Act, is not affected by this Act, but may not be renewed. Requires the Board to issue a provisional license under Section 15, Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.), as amended by this Act, to a person who meets the requirements for renewal of the former certificate and who is not yet entitled to a full license. (b) Allows the Board to issue and renew certificates under the Psychologists' Certification and Licensing Act (Article 4512c, V.T.C.S.) only to specified persons who are eligible, effective September 1, 1995. SECTION 28. Effective date: September 1, 1995. SECTION 29. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute for S.B. 1478 makes this bill comparable to H.B. 2933 as passed by the House Public Health Committee, with the addition of some minor changes. The changes in S.B. 1478 as substituted, compared with the bill as engrossed, are recommendations by the Board and the Texas Psychological Association. The substitute creates the title of a provisional license for a psychologist and clarifies the differences between a certified psychologist, a psychologist who has a provisional license, and a fully licensed psychologist. Those persons in the process of obtaining full licensure would become provisional licensed psychologists, while the certified psychologists who are not actually practicing psychology and often are working in university or research settings, would retain the title. The references to the open meetings law, the open records law, and the Administrative Procedure and Texas Register Act are removed because they are outdated, and the substitute adds the appropriate sections of the Government Code, where applicable, to update the Act. SUMMARY OF COMMITTEE ACTION S.B. 1478 was considered by the Public Health Committee in a formal meeting on May 12, 1995. The committee considered a complete substitute for the bill. The substitute was adopted without objection. The bill was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 5 AYES, 0 NAYS, 0 PNV, and 4 ABSENT.