Texas State Board of Examiners of Psychologists Panel

Texas State Board of Examiners of Psychologists Panel Discussion: Board Complaints and Hot Topics Moderator: Angela A. Downes, J.D., Board Member Panel Members: Donna L. Black, M.A., Board Member Darrel D. Spinks, Executive Director of TSBEP Gail Cheramie, Ph.D., Assoc. Professor, Univ. of Houston-Clear Lake 1

Texas State Board of Examiners of Psychologists Board Member Date of Term Hometown Jeff Baker, Ph.D. 2010-2015 League City Donna Lord Black, M.A. 2007-2017 Frisco Tim F. Branaman, Ph.D. 2008-2019 Dallas Jo Ann Campbell, M.S. 2008-2017 Abilene Carlos R. Chacón 2008-2015 Houston John Huffman, J.D. 2012-2017 Southlake Angela A. Downes, J.D. 2008-2019 Dallas Lou Ann Todd Mock, Ph.D. 2008-2019 Bellaire Leslie D. Rosenstein, Ph.D. 2010-2015 Dallas 2

Make-Up of the Board Section 501.051 of the Psychologists’ Licensing Act reads in part: (a) The Texas State Board of Examiners of Psychologists consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) four psychologist members who have engaged in independent practice, teaching, or research in psychology for at least five years; (2) two psychological associate members who have been licensed as psychological associates under this chapter for at least five years; and (3) three members who represent the public. (a-1) One of the members appointed under Subsection (a)(1) or (a) (2) must practice as a licensed specialist in school psychology under Section 501.260. 3

House Bill 646 Effective 6/14/2013 (signed by Governor Perry) Amends Section 501.260 of TX Occupations Code ‒ Adds requirement that one of the members appointed to TSBEP must practice as a licensed specialist in school psychology Changes do not affect currently serving Board members As terms expire, the governor shall appoint or reappoint a member who meets the requirement 4

Complaints 5

Complaint Statistics FY2013-Board disposed of 263 complaints and opened 290 new complaints. FY2014-Board disposed of 251 complaints and opened 243 new complaints. Categories of complaints disposed of in Categories of complaints disposed of in FY2013 FY2014 Administrative Violations – 44 Administrative Violations – 18 CE Violations – 124 CE Violations – 143 Cease and Desist – eligibility 11 Cease and Desist –8 – Although proceedings are initiated by Forensic – 42 Forensic – 23 Of those 42, 27 were those 23,disciplinary 16 (70%) were the filing of(64%) a complaint, they Of are not complaints arising out of complaints arising out of Custody/Visitation cases Custody/Visitation cases actions General Therapy – 26 General Therapy – 40 School Psychology – 12 (1 reprimand; 1 admin. School Psychology – 5 (1 reprimand, 4 dismissals) penalty; 10 dismissals) Sexual Misconduct – 9 Sexual Misconduct – 1 Misc. – 5 Misc. – 3 6

Complaint Statistics, cont’d FY2013 Board heard 34 cases at informal settlement conferences -7 were school psychology related Complaints involving school psychology made up 5% of the complaints disposed of -21% of the cases heard at informal settlement conferences FY2014 Board heard 28 cases at informal settlement conferences - 0 were school psychology related Complaints involving school psychology made up 2% of the complaints disposed of -0% of the cases heard at informal settlement conferences 7

Examples of Complaints Resulting in Disciplinary Action FY2013 Complaints – LSSP reprimanded for failing to identify any limitations with regard to their opinion, or acknowledge the effects of additional information – LSSP was assessed an administrative penalty for providing school psychological services outside of the public school setting FY2014 Complaints – LSSP reprimanded for failing to timely renew license, and practicing on delinquent status 8

Conflict between Board Rules and State or Federal Law Board rule 461.14 – In the event of conflict among state or federal statutes and Board rules, state or federal statute(s) control. Board rule 465.38(6) - In the event of conflict among state or federal statutes and Board rules, state or federal statute(s) control. U.S. Const. art. VI, cl. 2, The Supremacy Clause 9

Areas of Frequent Inquiry The following areas are some of the more frequently inquired about by LSSPs: Informed Consent Records and Record Keeping Supervision 10

Informed Consent 11

Informed Consent Board rule 465.11, Informed Consent/Describing Psychological Services Must be in writing prior to delivery of services Must describe the services being provided and any potential limits on confidentiality Must be updated with any change in service provided Must explain the nature of the relationship between the licensee, patient(s), and any third-party See also Board rule 465.18(c), Forensic Services. The sister rule to the Board’s informed consent rule 12

Informed Consent The Board has published two newsletter articles concerning informed consent in the public schools: Informed Consent in the Public Schools: Analysis of Impact of Federal Education Law on Board Rules Governing Informed Consent – http:// www.tsbep.texas.gov/files/newsletters/Summer2013-Vol -26-No-2.pdf Informed Consent in Public Schools – http:// www.tsbep.texas.gov/files/newsletters/Spring2014 New 13 sletter Vol 27 No 2.pdf

Informed Consent In public schools, there are three types of activities requiring informed consent Special education evaluation Special education services General education consultation 14

Informed Consent: Special Education Evaluation 15

Special Education: Consent for Evaluation The LEA must make reasonable efforts to obtain informed consent for an evaluation which includes: 1) Detailed records of telephone calls made or attempted and the results of those calls; 2) Copies of correspondence sent to the parents and any responses received; and 3) Detailed records of visits made to the parent ’s home or place of employment and the results of those visits. [34 CFR §300.322(d)] 16

Initial Evaluation: Student Enrolled or Seeking Enrollment in Public School Parent Fails to Respond or Refuses Consent The LEA may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards, including the mediation or the due process hearing procedures, in order to obtain agreement or a ruling that the evaluation may be conducted; and The LEA does not violate its obligation under child find duty and evaluation procedures if it declines to pursue the evaluation. [34 CFR §300.300(a)(3)] 17

Initial Evaluation: Student is Home-Schooled or Private-Schooled Parent Fails to Respond or Refuses Consent The LEA may not pursue the initial evaluation by utilizing the procedural safeguards, including the mediation or due process hearing procedures, in order to obtain agreement or a ruling that the evaluation may be conducted; and The LEA is not required to consider the child as eligible for services under the proportionate share funding for parentally-placed private school child and private schools frameworks. [34 CFR §300.300(d)(4)] 18

Initial Evaluation: Student is a Ward of the State (not with parent) The LEA is not required to obtain informed consent from the parent if: Despite reasonable efforts to do so, the LEA cannot discover the whereabouts of the parent of the child; The rights of the parents of the child have been terminated in accordance with state law; or The rights of the parent to make educational decisions have been substituted by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. [34 CFR §300.300(a)(2)] 19

Informed Consent: Additional Information Parental consent for an initial evaluation does not constitute CONSENT FOR SERVICES. 34 CFR §300.300(a)(1)(ii) A separate consent for a psychological evaluation is not needed. 34 CFR § 300.304(c)(4) & (6) 20

Reevaluation: Parent Fails to Respond No consent is required if the LEA can demonstrate 1. Reasonable efforts were made to obtain parental consent; and (despite these efforts) 2. The parent failed to respond [34 CFR §300.300(c)(2)] 21

Reevaluation: Students in Private School or Home Schooled Parent fails to respond or refuses consent: The LEA may not pursue the reevaluation by using the procedural safeguards (including the mediation or due process procedures) in order to obtain agreement or a ruling that the evaluation may be conducted; and [34 CFR §300.300(d)(4)(i)] The LEA is not required to consider the child as eligible for services under the proportionate share funding for parentally-placed private school child and private schools frameworks. [34 CFR §300.300(d) (4)(ii)] 22

Reevaluation: Students Enrolled in Public School Parent Refuses Consent The LEA may, but is not required to, pursue the reevaluation by using the procedural safeguards (including the mediation or due process procedures) in order to obtain agreement or a ruling that the evaluation may be conducted; and [34 CFR §300.300(c) (1)(ii)] The LEA does not violate its obligation under child find duty and evaluation procedures if it declines to pursue the reevaluation. [34 CFR §300.300(c)(1)(iii)] 23

Parent Revokes Consent Revocation of consent for initial evaluation or reevaluation is not retroactive (i.e., it does not negate actions that occurred after consent was given or before consent was revoked. 34 CFR 300.9(c)(2) 24

Actions Not Considered an Evaluation (thus, no consent required) Screening to determine strategies for curriculum implementation; Conducting a Review of Existing Evaluation Data (REED) as part of an initial evaluation or a reevaluation; and Administering a test or other evaluation that is administered to all children. 34 CFR §300.300(d)(1)(ii) 25

Informed Consent: Special Education Services 26

Consent for Services The LEA must make reasonable efforts to obtain informed consent for the initial provision of services which includes: 1) Detailed records of telephone calls made or attempted and the results of those calls; 2) Copies of correspondence sent to the parents and any responses received; and 3) Detailed records of visits made to the parent ’s home or place of employment and the results of those visits. [34 CFR §300.322(d)] 27

Consent for Services If the parent refuses to respond or refuses to consent to the initial provision of special education and related services, the LEA: – May not use the procedural safeguards (including the mediation or the due process procedures) in order to obtain agreement or a ruling that services may be provided to the child; – Will not be considered to be in violation of the requirement to make available a free appropriate public education (FAPE) to the child because of the failure to provide the child with the special education and related services for which the LEA requests consent; and – Is not required to convene an admission, review and dismissal (ARD) committee meeting or develop an individualized education program (IEP) for the child, as defined in the rule of construction framework. 28

Consent for Services When consent for services is revoked after the initial provision of services [34 CFR §300.300(b)(4)] – The revocation must be in writing – The LEA May not continue to provide special education and related services to the child Must provide prior written notice before ceasing to provide special education and related service (continued on next slide ) 29

Consent for Services – The LEA (continued) May not use the procedural safeguards (including the mediation procedures or the due process procedures) in order to obtain agreement or a ruling that the services may be provided to the child Will not be considered to be in violation of the requirement to make a FAPE available to the child because of the failure to provide the child with further special education and related services; and Is not required to convene an ARD committee meeting or develop an IEP for further provision of special education and related services for the child, as defined in rule of construction. 30

Informed Consent: General Education See Handouts: 1. Informed Consent in the Public Schools: Analysis of Impact of Federal Education Law on Board Rules Governing Informed Consent 2. Informed Consent in the Public Schools 31

Regulatory Authority of TSBEP TSBEP does not regulate school districts; it regulates the use of titles and the “activities” of the individuals licensed by the Board (which includes LSSPs) The “activities” performed by LSSPs that are subject to Board regulatory authority are the activities that constitute psychological services [Board Rule 465.1(10)] Some “activities” performed by LSSPs may be considered “educational services” and not “psychological services” (continued on next slide.) 32

Educational or Psychological Service? Questions to help determine the type of activity: 1. Does the activity require the individual to hold a specific license or credential to provide that activity in the public school? 2. Is the activity solely reliant upon specialized education and training in psychology and psychological principles (such as that held by an LSSP)? 3. Is the activity “psychological” in nature (i.e., would it constitute the practice of psychology as defined by TSBEP and the Psychologist’s Licensing Act)? 4. Does the activity involve direct student services (i.e., services that are not under the direct authority of the teacher or another staff member)? 33

Records and Record Keeping 34

Records and Record Keeping 465.22, Psychological Records, Test Data and Test Protocols (a)(6) – Licensees working in public school settings shall comply with all federal and state laws and regulations relative to the content, maintenance, control, access, retention and destruction of psychological and educational records, test data and test protocols. (b)(6) – Records and test data of psychological services rendered by an employee of an agency or organization belong to the employer, unless provided otherwise by law or agreement. 35

Records and Record Keeping 465.22(c), Access to Records and Test Data – “Test Data” is defined in 465.1(14) as “testing materials, test booklets, test forms, test protocols and answer sheets used in psychological testing to generate test results and test reports.” 465.22(d)(2), Retention of Records – In the absence of other applicable law, records must be kept for a minimum of 7 yrs. after termination of services, or until the client turns 21, which ever is longer. 36

Records and Record Keeping 37

Legal Framework, Applicable Laws Under the category of Records, the following “authorities” are listed as governing Records: 34 C.F.R. Parts 75, 80, 99 and 300 20 U.S.C. §1414, 1415, 1232(g); 26 U.S.C. §152 19 T.A.C. Chapter 89, Chapter 101 Texas Government Code Texas Local Government Code Texas Education Code Texas Family Code 38

Applicable Laws Texas State Library and Archives Commission, Local Schedule SD Retention Schedule for Records of Public School Districts (42-page document) – Part 2: FERPA regulations – Part 3: Special Populations and Services – Part 7: Discipline and Counseling HANDOUT 39

Special Education Records (§3-1) Records of each student referred to or receiving special education services, including referral, assessment, and reevaluation reports; enrollment and eligibility forms; admission, review, and dismissal (ARD) and transitional planning committee documentation; individual educational plans (IEP) and individual transitional plans (ITP); parental consent forms for testing and placement; and other records of services required under federal and state regulation. 40

Bilingual Records (§3-2) Records of each student referred to or receiving bilingual or special language services, including recommendations from parents or teachers for bilingual instruction, student interview documentation, notifications to parents, parental consents or denials, language proficiency assessment committee (LPAC) reports, exit reports, follow-up study reports, and other records of services required by state regulation or pertinent to the identification of students for bilingual education or special language programs 41

504 Records (§3-4) Records of each student referred to or receiving services under Section 504, including referral, pre-placement, and reevaluation reports, parental notices; group and impartial hearing deliberations; and other records of services required under Section 504 regulations 42

Dyslexia Records (§3-5) Records of each student referred to or receiving dyslexia program services, including referral and assessment reports; group deliberations; parental notices; and other records of services required under state regulations 43

Retention of Records For the special education, 504 and special program records noted on previous slides: Retention: Cessation of services 5 years Prior to destruction, eligible student or parents must be notified 44

Part 7: Discipline & Counseling Records Records relating to removal to a Disciplinary Alternative Education Program, suspension, or expulsion 5 years Individual student counseling files maintained by school counselors, including parental conference reports. AV (as long as administratively valuable) Retention Note: It is an exception to the retention period for this record group that guidance and counseling files programmatically associated with participation in special programs as described in Part 3 of this schedule must be retained for the same period as the student records for the special program. In addition, records of counseling in any federally funded special guidance or counseling project or program must be retained for 5 years beyond cessation of counseling services to the student. 45

19 Texas Administrative Code § 89.1075 General Program Requirements and Local District Procedures. (a) Each school district shall maintain an eligibility folder for each student receiving special education services, in addition to the student's cumulative record. The eligibility folder must include, but need not be limited to: copies of referral data; documentation of notices and consents; evaluation reports and supporting data; admission, review, and dismissal (ARD) committee reports; and the student's individualized education programs (IEPs). 46

34 Code of Federal Regulations § 300.501 Opportunity to examine records; parent participation in meetings. (a) Opportunity to examine records The parents of a child with a disability must be afforded, in accordance with the procedures of §§ 300.613 through 300.621, an opportunity to inspect and review all education records with respect to — (1) The identification, evaluation, and educational placement of the child; and (2) The provision of FAPE to the child. 47

34 C.F.R.§ 99.20 and 300.618 Amendment of the student's education records? If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy or other rights, he or she may ask the educational agency or institution that maintains the information to amend the record/information. 48

34 CFR § 99.20 and 300.618 (c) If the agency decides to refuse to amend the information in accordance with the request, it must inform the parent of the refusal and advise the parent of the right to a hearing under § 300.619. 49

Key Concepts for LSSPs Accuracy Comprehensiveness Documentation of Progress, Measurable Inspect and Review Be very careful about destruction – you should know your district’s policy about this. Review Legal Framework! 50

Supervision 51

Supervision 465.2, Supervision Board rules governing supervision are very broad, and the nature and amount of supervision necessary is left to the discretion of the supervisor based upon a totality of the circumstances – Generally, 465.2 requires that the level of supervision provided be adequate based upon accepted professional standards given the experience, skill and training of the supervisee and the type of psychological services provided 465.38(4) and (5) addresses supervision requirements unique to LSSPs 52

Supervision The Board is in the process of conducting a review and revision to its rules governing the supervision of those acquiring the supervised experienced necessary for licensure, as well as the supervision required for practice by provisionally licensed psychologists, psychological associates, and specialists in school psychology. This process began in October 2012, and is expected to be completed in fiscal year 2015. The objective is to further clarify the legal requirements for the delivery of psychological services under supervision, and increase the measure of protection afforded the public. To aid in this process, the Board has engaged the use of an ad hoc advisory committee made up of stakeholders pursuant to Tex. Gov’t Code Ann. §2001.031. 53

How Do I Keep Up-to-Date With Board Rule Changes? The Texas Register may be found at http:// www.sos.state.tx.us/texreg/index.shtml 54

You may also register to receive email notifications of when the latest edition of the Texas Register has been published http://www.sos.state.tx.us/texreg/subinfo.shtml 55

?Questions? “Ask me no questions, and I’ll tell you no lies.” – Oliver Goldsmith 56

Overview of the Complaint Process §501.204 of the Psychologists’ Licensing Act, General Rules Regarding Complaint Investigation and Disposition: Ensure that a complaint is not dismissed without appropriate consideration Advise Board and Complainant of dismissal – While Board Staff could dismiss complaints under statute, Staff do not. Dismissal occurs by full Board only, following recommendation by Staff or ISC Panel. 57

Overview of the Complaint Process, cont’d Allow each Complainant an opportunity to explain his/her allegations Dispose of complaints in a timely manner Board to prioritize complaints – Priority 1 cases: imminent physical harm to the public – Priority 2 cases: sexual misconduct by a licensee – Priority 3 cases: violations by applicants – Priority 4 cases: all other violations 58

Overview of the Complaint Process, cont’d Title 22, Pt. 21, Ch. 469, Complaints and Enforcement, of the TAC – Rules governing procedure of complaint process 469.1, Limitations: – General Rule-5 yrs following termination of services or receipt of notice of disciplinary action from other jurisdiction – Sexual Misconduct and Records Violation-7 yrs following termination of services or 3 yrs following age of majority, whichever is greater 59

Overview of the Complaint Process, cont’d 469.5, Complaint Disposition: – Complaints that do not state a violation on their face, are recommended for dismissal without notice ever being sent to licensee – Complaints that if taken as true, state a violation, must be investigated – Following investigation, if P.C. exists, the Enforcement Manager and G.C. set the complaint for a hearing at the Board’s I.S.C. 60

Overview of the Complaint Process, cont’d Title 22, Pt. 21, Ch. 470, Administrative Procedure, of the TAC 470.8, Informal Disposition of Complaints: – An informal disposition may be made of any complaint by stipulation, agreed settlement, consent order, default, or dismissal in accordance with Tex. Gov’t Code Ann. §2001.056. – I.S.C. Panel made up of three Board members, the E.D., G.C. Enforcement Manager, and Investigator – Complainant and licensee may present evidence and witnesses, separately from one another, at the I.S.C. 470.12, Contested Cases Referred to the State Office of Administrative Hearings: – In the event a complaint is not disposed of informally, the complaint is referred to the State Office of Administrative Hearings per Board rule 470.12. 61

Overview of the Complaint Process, cont’d Summary of Complaint Process: 1. Complaint received by the Board 2. Investigator reviews to determine whether a violation has been stated on face of complaint If not, complaint is referred to SDM and ultimately full Board for dismissal If so, complaint is sent to Investigations 3. Licensee is sent NOV and investigation ensues If no P.C. found, complaint is referred to SDM and ultimately full Board for dismissal If P.C. found, licensee is either sent a proposed agreed order or invited to I.S.C. 4. Informal Settlement Conference If panel recommends sanction, proposed agreed order sent If panel recommends dismissal, complaint is referred to full Board for dismissal 5. Informal vs. Formal Disposition of Complaints Complaints resolved informally following ISC are referred to full Board for final disposition Contested complaints are referred to SOAH for a contested hearing 6. Full Board disposes of complaints resolved informally or following a contested hearing at SOAH 7. Appeal of Board’s decision in contested case through the state court system 62

Overview of the Complaint Process, cont’d Types of disciplinary action taken by the Board: – Revocation – Suspension – Probated Suspension(either in whole or in part) – Reprimand – Administrative Penalty Board may also impose other reasonable terms and conditions upon a licensee who receives a sanction. §501.158 of the Act, Competency Requirements – Board may require, upon reasonable belief, a licensee to submit to a physical or mental exam to determine their fitness to practice. Failure to abide by a Board directive to submit to the examination would constitute a violation of Board rules 461.15 and 465.35(c). 63

Overview of the Complaint Process, cont’d The Board’s website contains a general discussion of the complaint process at: http://tsbep.texas.gov/how-to-file-a-complaint-enforcement 64