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CAUSE NO.

CAROL GROTHUES, PH.D.,

Plaintiff

§§§§

vs. §§

TEXAS STATE BOARD OF EXAMINERS §OF PSYCHOLOGISTS, §

§Defendant §

IN THE DISTRICT COURT

JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARYRESTRAINING ORDER AND TEMPORARY INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES CAROL GROTHUES, PH. D. and files this her Declaratory Judgment

action, Application for Temporary Restraining Order and Temporary Injunction against the

Texas State Board of Examiners of Psychologists, and would respectfully show the Court the

following:

I.PARTIES

1.01 Plaintiff Carol Grothues, Ph.D. is an individual and licensed psychologist in the State of

Texas. Plaintiff will be referred to as "Dr. Grothues" in this Petition. Dr. Grothues is the current

President of the Board of Trustees of the Texas Psychological Association, Inc. She resides in

Hays County, Texas. The last 3 digits of her social security number are 805 and the last 3 digits of

her driver's license number are 570. She is an interested party in this litigation because she is a

licensed psychologist whose legal and financial interests are impacted by proposed agency mles

governing a significant change in the scope of practice of persons licensed to practice psychology,

said proposed rules having been submitted for notice and comment by the Texas State Board of

Examiners of Psychologists.PLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION

62J1467. DOCX PAGE 1

7/28/2017 5:12 PM Velva L. Price District Clerk Travis County

D-1-GN-17-003671victoria benavides

D-1-GN-17-003671

98TH

1.02 Defendant Texas State Board of Examiners of Psychologists is the state regulatory

agency that oversees the examination, registration, and professional practice regulation of

psychological health care professionals in Texas, including doctoral-level and masters-level

trained individuals. The agency's offices are located at 333 Guadalupe St., Suite 2-450, Austin,

Texas 78701. Defendant may be served through its Executive Director, Darrel D. Spinks, at its

main office via certified mail, return receipt requested.

1.03 Pursuant to TEX. Cw. PRAC. REM. CODE § 30. 004, Defendant must also be served through

the Attorney General for the State of Texas by mailing a copy of this Petition to the Attorney

General for the State of Texas, Ken Paxton, certified mail, return receipt requested, to the Office

of the Attorney General, 300 West 15th Street, Austin, TX 78701. Defendant will be referred to

as "TSBEP" in this Petition.

II.JUMSDICTION

2. 01 This Court has subject matter jurisdiction of this matter and over TSBEP pursuant to

TEX. GOV'T CODE § 2001. 038(b) and TEX. Civ. PRAC. REM. CODE §37. 004(a). Further, this

Court has subject matter jurisdiction of this matter and over TSBEP since an actual, justiciable

controversy has been created by the TSBEP's submission of proposed mles which materially

alter the scope of practice of Licensed Psychological Associates and which will cause harm to

Dr. Grothues by significantly interfering with and impairing her rights and privileges as a

practicing licensed psychologist as well as affecting the health and safety ofTexans. Tex. Dep 't

of Pub. Safety v. Salazar, 304 S.W.3d 896, (Tex. App.-Austin, 2009, pet. denied) ("Section

2001.038 is considered a legislative grant of subject-matter jurisdiction, so that valid claims

raised pursuant to that provision are not barred by sovereign immunity. "). See also State Bd. of

Ins. v. Deffebach, 631 S.W.2d 794, 797 (Tex. App. -Austin 1982, writ refd n. r. e. )("Under [the

PLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION62J1467.DOCX PAGE 2

prior version of the Uniform Declaratory Judgment Act], one is not required to wait until the mle

is attempted to be enforced against him before he may resort to declaratory relief."]

III.VENUE

3.01 Pursuant to TEX. GOV'T CODE § 2001.038(b), venue of this matter is mandatory and

proper in Travis County since the TSBEP is a Texas state agency and Dr. Grothues challenges

the validity of a proposed mle promulgated by the Defendant, Texas State Board of Examiners of

Psychologists, which rule or its threatened application interferes with or impairs, or threatens to

interfere with or impair, a legal right or privilege of Dr. Grothues. TEX. GOV'T CODE §

2001. 03 8(a).

IV.FACTUAL BACKGROUND

4.01 This is a suit seeking declaratory relief as well as injunctive relief under general equitable

principles. The Texas Legislature enacted the Psychologists' Licensing Act (the Act) to regulate

the practice of psychology. See TEX. Occ. CODE §§ 501. 001-. 505. In the Act, the Legislature

created the Texas State Board of Examiners of Psychologists (TSBEP). The Act governs the

licensure and scope of practice of several different mental health professionals: doctoral-trained

psychologists, masters-level trained psychological professionals, psychological professionals

specializing in school psychology and provisionally licensed psychologist. TEX. Occ. CODE §§

501. 503, 501.252, 501.259, 501. 260. It does so under the Legislature's mandate to "to protect

the public from unqualified practitioners in the field of psychology. " Bloom v. Texas State Bd. Of

The current law, the Psychologists' Licensing Act, is codified at TEX. Occ. CODE §§ 501. 001-. 505.Its predecessor was the Psychologists' Certification and Licensing Act, see Act of May 23, 1969,61st Leg., R. S., ch. 713, §§ 1-28, 1969 Tex. Gen. Laws 2059, 2059-67.PLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION


Exam'rs of Psychologists, 475 S.W.2d 374, 377 (Tex. Civ. App. -Austin 1972), rev'd on other

grounds, 492 S.W.2d 460 (Tex. 1973).

4.02 The Act defines licensed psychological associates ("LPA") as "psychological personnel

who hold a master's degree from an accredited university or college in a program that is

primarily psychological in nature. " TEX. Occ. CODE §§ 501. 002(4), 501.259. The Legislature

instructed the TSBEP to "set standards for the issuance of licenses to psychological personnel

who hold a master's degree" and to "adopt mles necessary to perform its duties and regulate its

proceedings. " M §§ 501. 151, 501.259. Pursuant to this authority, the TSBEP promulgated mles

requiring licensed psychological personnel who hold a master's degree to practice psychology to

apply for a license which demonstrates supervision by a licensed psychologist. See 22 T.A. C. §

463. 8(a). Furthermore, the TSBEP requires that a psychological associate (once licensed) may

practice only under the supervision of a licensed psychologist with a doctoral degree and may

not practice independently. See 22 T.A.C. §§ 465.2(c)(l).

4. 03 In the past 2017 regular session of the Texas Legislature, legislation was proposed to

amend Section 501.259 of the Act in the form of Senate Bill 1339 (Senator Hinojosa) and House

Bill 3268 (Representative Coleman) which would have removed the supervision requirement for

LPAs. These bills outlined the following requirements for licensure and practice as an LPA:

. Completion of a master's degree or equivalent in psychology from a regionallyaccredited institution of higher education;

. At least 60 hours of graduate course work in the professionally acceptedfoundation areas of psychology, including scientific and professional ethics andthe laws governing the practice of psychology;

. At least 6 but not more than 12 semester hours of practicum, internship, orstructured experience (of the total 60 hours); and

. Passing a nationally recognized qualifying examination as well as a jurispmdenceexam.

See Exhibit "A" to this Petition, proposed SB 1339 Subsection (a)(l-4) and proposed HB 3268

PLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION62J1467. DOCX PAGE 4

Subsection (a)(l-4). In addition, this legislation amending the Act would have allowed an LPA

who has completed at least 3, 000 supervised hours to practice independently without any

restriction. See Exhibit "A" to this Petition, proposed Sections (d) to each bill. As a result, a

master's trained LPA could engage in the same practice as doctoral-level trained licensed

psychologists without any restriction at all. This could extend an LPA's ability to practice in

specialty areas such as neuropsychology, forensics and other highly specialized areas without

any additional education and training as required for licensed psychologists. Both Senate Bill

1339 and House Bill 3268 died in committee and were not enacted into law.

4. 04 However, on June 23, 2017, TSBEP submitted two proposed new rules, 22 T.A.C. §§

463. 1 and 463. 8, for notice and comment in the Texas Register purporting to implement this

sweeping change to the scope of practice of licensed psychological associates despite the fact

that the Legislature did not enact such amendments. See 42 Tex. Reg. 3227, 3229 (June 23,

2017), Exhibit "B" to this Petition. These proposed rules seek to change the scope of practice of

LPAs by TSBEP fiat, permitting LPAs to practice without licensed psychologist supervision

after completing 3000 supervised hours despite the fact that the Legislature declined to allow that

change.

4.05 Dr. Grothues is a licensed psychologist who will be materially affected by these mles if

adopted by the TSBEP. As a doctoral-level licensed psychologist, Dr. Grothues performs many

professional activities which, currently, Licensed Psychological Associates cannot by law

perform, and which on a practical and professional level, should not be licensed to perform

because of only the length of time a LPA may have been practicing without reference to any

specific training. For over 50 years, the standard for the independent practice of psychology has

been the doctoral degree. Significant time and money has been spent by over 4000 Ph.D. level


psychologists in Texas to complete their education and training for this purpose. The majority of

these licensed psychologists practice as solo practitioners and will absolutely be impacted by a

change in the requirements to provide independent psychological services to the public.

4. 06 Examples of actual financial impact which would flow from these rule changes are

numerous. Almost all states including Texas require doctoral training for the independent

practice of psychology, and currently only licensed psychologists at this juncture in Texas can

perform projective assessments, psychological and neuropsychological evaluations, biofeedback,

hypnosis, and psychotherapy. One obvious effect of the proposed mles is that once having

reached the 3000 hour mark and being licensed to practice without supervision, although they

will not be called "licensed psychologists, " LPAs will functionally have the same scope of

practice as psychologists; there are absolutely no restrictions in scope written into the_jule

changes. The Court can see merely from that standpoint that these new proposed mles are huge

"sea changes" in the practice of psychology in this state, and require clear, careful, detailed and

thoughtful evaluation by TSBEP before they even should be brought forward to the profession

for comment.

4. 07 Changing the practice of psychology to require only a master's degree with fewer and

eventually no clinical supervision requirements will create a flood of new "psychologists" with

less training than now. Practically speaking, with economic pressure on health care costs, the

availability of master's-level providers who are not limited by the kind and level of services they

offer will induce, if not force, health insurance companies to choose to place sub-doctoral

providers on their panels instead of licensed psychologists because the companies can then

reimburse at lower rates; this will either cause licensed psychologists to refuse to accept

insurance, elect to receive lower reimbursements, or be completely eliminated as a provider -


each option negatively impacting their practices. Licensed psychologists will have greater

barriers to entry in the profession, as well as staying in the profession.

4.08 Neuropsychologists frequently rely upon LPAs to perform evaluations within the

master's-level scope of practice. Many licensed psychologists also have group practices which

include LPAs who provide psychological services safely and effectively under licensed

psychologist supervision. This mle change will dramatically change these practices-why should

LPAs elect to remain in practice with licensed psychologists if they will be able to practice with

unlimited scope after meeting the 3000 hour criterion? From the other direction, by potentially

taking away the supervision requirement for LPAs, these proposed mles will also force licensed

psychologists to limit their current practices; they will no longer be able to afford to hire an

unsupervised person. This is particularly relevant with the downward pressure on

reimbursement rates for mental health care.

4. 09 If LPAs are allowed unrestricted practice merely by meeting a 3000 hour practice

benchmark, the TSBEP will have fundamentally, and immediately, changed the practice of

psychology. By these proposed rules, TSBEP removes any distinction between masters-level

and doctoral-level training. Licensed psychologists, and psychologists who are working to obtain

their doctoral degree are immediately at a professional and financial disadvantage. The costs of

obtaining a doctoral degree and practicing at the doctoral level are greater than what a masters-

level practitioner incurs; licensed psychologists pay more for their professional training and pay

higher fees to become and remain licensed by the state.

4. 10 It can be argued even at this proposed mle stage that, in essence, TSBEP's actions will

make many licensed psychologists' training and practice obsolete. If the TSBEP goes forward

with these new rules without providing any information at all how the TSBEP even thinks these


rules will affect persons licensed to practice psychology, this will, in a very short time change the

marketplace so dramatically that licensed psychologists will no longer be able to compete with

LPAs who will have less educational costs and lower barriers to entry into practice.

4. 11 How can affected stakeholders provide accurate coinment to the TSBEP about these

proposed rules without being able to assess the mandatory data on which they are predicated?

On many levels, these proposed mles are an invalid exercise ofTSBEP's rule making authority

as explained below, for which Dr. Grothues seeks relief from this Court.

A. TSBEP's Due Diligence Required to Submit a Proposed Rule.

1. Small Business and Micro-Business Impact Analysis must be performed.

4. 12 Texas Government Code Section 2006. 002(c) sets out two criteria that a state agency,

including TSBEP, must fulfil before adopting a mle the may have an adverse economic effect on

small businesses:

(c) Before adopting a rule that may have an adverse economic effect on smallbusinesses, a state agency shall prepare:

(1) an economic impact statement that estimates the number of smallbusinesses subject to the proposed rule, projects the economic impact ofthe rule on small businesses, and describes alternative methods ofachieving the purpose of the proposed rule; and

(2) a regulatory flexibility analysis that includes the agency's consideration ofalternative methods of achieving the purpose of the proposed rule.

TEX. GOV'T CODE § 2006. 002(c) (emphasis added).

4. 13 The Austin Court of Appeals has provided sufficient guidance to analyze whether the

TSBEP has met these criteria under these circumstances-and TSBEP has not. See Unified

Loans v. Pettijohn, 955 S. W.2d 649 (Tex. App. -Austin 1997, no pet. ) (analyzing a substantially

similar predecessor statute).

4. 14 The controversy at issue in Unified Loans involved mles promulgated by the Consumer


Credit Commissioner regulating pawnshop operators. Id. at 650. On appeal, the appellant

pawnshop operators argued that the rules were invalid, in part, because the Commission failed to

include in its notice of proposed new mle analysis of how the rules would adversely impact small

businesses. Id. at 651.

The Commissioner's notice stated:

There will be no effect on small businesses. Some pawnbrokers will incurincreased costs associated with minimum requirements for amounts of generalliability and fire insurance. In addition, some pawnbrokers will incur increasedcosts for adequate alarm systems and safes for the security of pledged jewelry.Other pawnbrokers will not incur increased costs as they currently meet theproposed requirements. There is no information reasonably available from whichto estimate a specific cost amount.

Id. at 652 (emphasis added by the court).

The court held that the Commissioner's statement did not fulfill the criteria set forth in

TEX. GOV'T CODE § 2006. 002(c) because the statement contains no analysis of the cost of

compliance for small businesses. Id. The Commissioner had argued that he was not required to

provide such an analysis because he had concluded that there will be no effect on small business,

and therefore the statute's predicate for performing an analysis of potential adverse effect had not

been met. Id. The court rejected that argument because the notice "is absolutely silent regarding

any basis for these conclusions. " Id. (emphasis in original). For this reason the court held that

the Commission did not substantially comply with the statute. See id. at 654 (noting that

"substantial compliance" with statutory requirement contemplates acts that secure legislative

objectives while coming fairly within character and scope of thing required, in concise, specific,

and unambiguous terms).

4. 15 The court clarified that an agency need not recite every piece of information relied on in

reaching its conclusions, but it is required to state in the notice "some basis in order that


interested persons might know and confront that basis in a meaningful way in their comments to

the Commissioner. " Id. at 653.

4. 16 The purposes of Section 2006. 002(c), according to the court, are (a) to force agencies to

"consider seriously, in detail and in orchestration, " the potential adverse economic impact of a

new mle on small businesses, and (b) to provide interested parties the opportunity to comment

intelligently on the proposed rule in light of the underlying data on which the agency is relying.

Id. at 652.

4. 17 The Unified Loans court emphasized, "[i]t is not consonant with the rulemaking

proceeding to promulgate mles on the basis of inadequate data, or on data that, to a critical

degree, is known only to the agency" and "in order that rule-making proceedings ... be

conducted in orderly fashion, information should generally be disclosed as to the basis of a

proposed mle at the time of issuance. " Id. at 651 (quoting Portland Cement Ass'n v.

Ruckelshaus, 158 U. S. App. D.C. 308, 486 F.2d 375, 393-394 (D.C. Cir. 1973), cert. denied, 417

U. S. 921, 41 L. Ed. 2d 226, 94 S. Ct. 2628 (1974).

4. 18 In order to meet the criteria set out in TEX. GOV'T CODE § 2006. 002(c), a state agency

must make an earnest and detailed analysis of a new rule's potential adverse impact on small

businesses, and it must disclose at least some of the data relied on in reaching its conclusions in

order provide interested parties like Dr. Grothues the opportunity to comment intelligently on the

proposed mle in light of this data.

2. How TSBEP May Meet The Due Diligence Requirement.

4. 19 House Bill 3430, which created the current language of Texas Government Code

2006. 002, required the Office of the Attorney General, in conjunction with the Comptroller, to

prepare guidelines to assist agencies in determining a proposed rule's potential adverse economic

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effects on small businesses and in identifying and evaluating alternative methods. TEX. GOV'T

CODE 2006. 002(g); see also HB 3440 Small Business Impact Final Guidelines, April 2008,

available at MtES^Avww^texasattomeygeneral. gov/files/agencyyhb3430guidelijies20(^^ (last

visited July 20, 2017); Southwest Pharmacy Sols., Inc. v. Texas Health & Human Servs., 408

S.W.3d 549, n. 9 (Tex. App. -Austin 2013, pet. denied) (citing the Final Guidelines). The

guidelines essentially outline what an agency must do to meet the due diligence requirements

related to analyzing a new mle's potential adverse impact on small businesses. See Final

Guidelines, Exhibit "C" to this Petition and incorporated herein as if fully set forth.

4.20 The Final Guidelines instruct agencies to make a reasonable, good faith effort to (a)

estimate the number of small businesses in Texas subject to the proposed rule; (b) make a

projection of the potential adverse economic impact of the proposed rule on small businesses and

micro-businesses supported by relevant and up-to-date data; and (c) provide several proposed

methods of reducing the adverse impact of the proposed rule.

i. Estimate The Number of Small Businesses Affected.

4.21 The Final Guidelines state that an agency "must" estimate "the number of small

businesses subject to the proposed rule. " Id. p. 2. In order to assist an agency's efforts to meet

this requirement, the Final Guidelines provide a definition of what a "small business" is under

the Texas Government Code. Id. p. 3. They also provide links to the Comptroller of Public

Accounts and the Texas Workforce Commission's TRACER web site, where information on

small businesses potentially subject to a new mle can be located. Id. p.5. The guidelines

emphasize that an agency "does not need to provide an exact accounting of the number of small

businesses that a proposed rule may affect. The number of businesses may be reported as an

approximation... " Id. p. 6. Nevertheless, providing an estimate is not optional; it is the


necessary first step to meeting the criteria set forth in Section 2006. 002(c). Id. p. 2.

ii. Identify The Potential Adverse Economic Effect.

4.22 Next, an agency must determine whether the proposed new mle will have an adverse

economic effect on the small businesses it identified in step one. Id. p. 3. The Final Guidelines

are instmctive on how to identify an "adverse economic effect" under the Texas Government

Code. Id. They also provide concrete examples of "costs" associated with a proposed mle,

including "costs for modifying any existing processes and procedures;... extra tax costs;

additional employees that may need to be hired; and required fees. " Id. p. 7.

4.23 "If a proposed rule will not have an adverse economic effect on small businesses, an

agency should include a finding to that effect in the notice of the proposed rule. " Id. While an

Economic Impact Statement and a Regulatory Flexibility Analysis are not required under those

circumstances, an agency must still provide "a reasoned explanation" for its conclusions. Id. p. 4

(citing Unified Loans, 955 S.W.2d at 652.).

4.24 In cases where the rule will or may have adverse economic effects on small businesses,

an Economic Impact Statement and a Regulatory Flexibility Analysis are mandatory. Id. p. 4-5.

To that end, "[a]gencies should make a reasonable, good faith effort" to prepare the required

reports, supported by data that interested parties can review and contest. Id.

4. 25 The guidelines do not set forth universally applicable bright-line rules. In fact, they point

out that "the level, scope, and complexity of analysis may very significantly depending on the

characteristics and composition of the industry or small-entity sectors to be regulated. " Id. p. 6.

However, the guidelines do not allow for the complete omission of such analysis on grounds that

it would be abstract. The Attorney General specifically states that the projection supported by its

data need only assess the potential adverse economic effects on small businesses. Id. And the



projection is niandatory when a state agency determines a new rule "may have an adverse effect

on small businesses. " Id. (citing TEX. GOV'T CODE 2006. 002(c)(l)).

iii. Consider Alternative Measures.

4.26 The third criteria that must be met under Section 2006. 002(c), is to provide several

alternative methods of reducing the adverse impact of the proposed rule on small businesses and

micro-businesses. The Final Guidelines, p. 8. The guidelines provide concrete examples of

alternatives that an agency may evaluate, including "establishment of different compliance or

reporting requirements for small entities or timetables that take into account the resources

available to small entities.. . Adopting different standards for the size of businesses... Modifying

the types of equipment that are required for large and small entities. " Id.

4.27 Moreover, the guidelines appear to strictly interpret the statute's mandate that agencies

provide "alternative methods, " plural. The Attorney general states "[a]n agency must include in

the analysis several methods of reducing the adverse impact of a proposed mle on a small

business. " Id. (emphasis added). The guidelines go so far at to say, "[a] common meaning of

several is 'more than two but fewer than many/ with 'many' meaning 'a large number of

persons or things. '" Id.

4.28 The Final Guidelines do not allow for the omission of alternatives on the basis that "no

reasonable alternatives exist, " nor does the language of the statute. When a state agency

determines a new rule may have an adverse effect on small businesses, it must provide several

alternative methods of reducing such adverse effect.

B. Perform Fiscal Note, Public Benefit And Probable Economic Cost Analyses.

4. 29 The Fiscal Note, Public Benefit and Probable Economic Cost analyses are mandated by

TEX. GOV'T CODE § 2001. 024. A state agency must support its conclusions on these items with


at least "some" explanation and data. See Brazoria County v. Tex. Comm 'n on Envtl. Quality,

128 S.W.3d 728, 742-743 (Tex. App. -- Austin 2004, no pet. ) (TCEQ's comment that "$75,000

additional costs" would be the expected impact on affected state and local governments was

sufficient data to meet Section 2001. 024's requirement). Failure to substantially comply with

Section 2001. 024 renders a mle voidable.

C. TSBEP's Basis for the Proposed New Rules Contains No Analyses SufficientUnder The Law.

4. 30 In light of the due diligence requirements stated in Unified Loans, the Attorney General's

Final Guidelines, and Brazoria County, TSBEP has failed to fulfill the criteria of Section

2006. 002(c) required to propose new rules §§ 463. 1 and 463. 8 as well as what is required under

Section 2001.024.

i. TSBEP Does Not Estimate the Number of SmaU Busmesses Affected.

4. 31 As a threshold matter, TSBEP states "[t]he proposed new mle could have an adverse

effect on small or micro-businesses. " It is undeniable, therefore, that TSBEP knows that Section

2006. 002(c) criteria must be met. However, it does not meet them.

4. 32 First, TSBEP states that it is "unable" to provide an estimate of the number of small

businesses impacted by the new rule. TSBEP claims such an estimation is impossible because

the agency lacks "infonnation available as to the number of psychologists [or small businesses]

providing supervision [to psychological associates], as well as the fees charged. " Exhibit B.

4.33 Neither the language of the statute, nor the Final Guidelines permit an agency to claim

"it's impossible" and refuse to provide an estimate of the small business affected. The Final

Guidelines state, "an agency must first know how many regulated entities exist and which are

small businesses. " The Final Guidelines, Exhibit "C, " p. 5. The TSBEP should be required, at

the very least, to utilize the resources cited in the Final Guidelines (the Comptroller's websitePLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION62J1467.DOCX PAGE 14

and Texas Workforce Commission's TRACER website) to determine approximately how many

small businesses are subject to the rule. As stated by the guidelines, TSBEP is not required to

provide an exact accounting. It need only provide an approximation. Therefore, the agency's

statement of inability to provide an estimate of small businesses affected by the new mle is

inadequate.

ii. TSBEP Does Not Identify Any Potential Adverse Economic Effect.

4.34 Second, TSBEP states that it is unable to provide a projection of the potential adverse

economic impact of the proposed rule on small businesses, although it admits that the proposed

new mles "could" have such adverse effects. Exhibit B. Again, the agency apparently claims

that it is unable to provide such a projection because it lacks information as to the number of

small businesses providing supervision to psychological associates and the fees charged. As a

result, TSBEP states that projecting the economic impact "would require the agency staff to

engage in abstract factual determinations which are not appropriate for this process. " Id.

4.35 However, as stated above, neither the statute, the case law, nor the Final Guidelines

allow for the complete omission of such analysis on grounds that it would be "abstract. " The

Attorney General specifically states that the projection need only assess the potential adverse

economic effects on small businesses. Unified Loans, 955 S.W.2d at 652. And the projection is

mandatory when a state agency determines a new rule "may have an adverse effect on small

businesses. " Id. (citing TEX. GOV'TCODE § 2006. 002(c)(l)).

4. 36 TSBEP's refusal to engage in any analysis is akin to the Consumer Credit

Commissioner's insufficient conclusory statements in Unified Loans that its new mles would

have "no adverse economic impact on small businesses." The court observed the

Commissioner's complete lack of analysis and data in deciding that the statement did not fulfill

PLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGOllDER AND TEMPORARY INJUNCTION62J1467.DOCX PAGE 15

the criteria set forth in TEX. GOV'T CODE § 2006. 002(c).

4. 31 TSBEP's complete lack of analysis and data fails to meet statutory prerequisites. As the

Unified Loans court emphasized, the purposes of Section 2006. 002(c) are (a) to force agencies to

consider seriously, in detail and in orchestration, " the potential adverse economic impact of a

new rule on small businesses, and (b) to provide interested parties the opportunity to comment

intelligently on the proposed rule in light of the underlying data the agency is relying on. Unified

Loans, 955 S.W.2d at 652.

4. 37 TSBEP's refusal to provide a projection of the potential adverse economic impact of the

mles on small businesses shows that TSBEP has failed to consider seriously, in detail, what

impact the new rules will likely have, and this deprives Dr. Grothues the opportunity to

intelligently comment on these proposed rules.

iii. TSBEP Does Not Identify Alternative Measures.

4. 38 Third, TSBEP provides no alternative methods of reducing the adverse impact of the

proposed mle on small businesses and micro-businesses. It claims that "there are no reasonable

alternative methods of achieving the purpose of the proposed new mle that would not run afoul

of the Sherman and Clayton Acts. " Such a conclusory, unsupported statement is completely

insufficient under the statute's clear requirements. TSBEP has admitted that the proposed new

mle may have an adverse effect on small businesses. Therefore, under the statute and the Final

Guidelines, the agency "must" provide several alternative methods of reducing such adverse

effect.

4. 39 In light of the Unified Loans court's response to the Commission's conclusory,

unsupported statements, TSBEP is required, at the very least, to consider the concrete examples

of alternatives that an agency may evaluate provided by the Final Guidelines and provide some


analysis and data as to why none are reasonable in this case. It has not done so.

iv. TSBEP Does Not Provide Any Data Complying With The Requirements ofTEX.GOV'T CODE § 2001. 024.

4.40 The Preamble to proposed mle § 463. 8 states:

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, hasdetermined 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 inrevenue to the state or local governments as a result of enforcing or administeringthe rule. Additionally, Mr. Spinks has determined that enforcing or administeringthe mle, does not have foreseeable implications relating to the costs or revenuesof state or local government.

PUBLIC BENEFIT. Mr. Spinks has determined for the first five-year period theproposed new rule is in effect, there will be a benefit to consumers due to greatercompetition between licensed mental health providers. Additionally, Mr. Spinksreasonably anticipates the proposed new mle to result in an increase in thenumber of mental health providers licensed by this agency, as well as an increasein the number of providers servicing mental health professional shortage areasthroughout the state.

PROBABLE ECONOMIC COSTS. Mr. Spinks, has determined for the first five-year period the proposed new mle is in effect, the mle will carry a probableeconomic cost to some individuals required to comply with the mle. Morespecifically, once a psychological associate qualifies for independent practiceunder the mle, that individual would no longer be required to pay for supervisionor split his or her revenue with a supervisor. Thus, psychologists who charge fortheir supervision services could see a reduction in their incomes. However, thisreduction may be offset, either in whole or in part, if a psychologist provides otheractivities or services during the time previously utilized for supervision. Becauseof the lack of information available as to the number of psychologists providingsupervision, as well as the fees charged, the agency is unable to provide aprobable cost estimate at this time. To do so would require agency staff to engagein abstract factual determinations which are not appropriate for this process.

Exhibit B. None of these statements suffices to satisfy TEX. GOV'T CODE § 2001. 024. Cf.,

Brazoria County. 128 S.W.Sd at 742-743. There is no cost data or information supporting the

statements, for example, that there will be "no additional estimated costs or revenue" to local or

state governments, " "greater competition" or the amount and degree of probable economic costs

to licensees; one can only conclude that these statements are speculation. What is particularly


troubling is TSBEP's statement that it cannot provide probable cost estimates because "to do so

would require agency staff to engage in abstract factual determinations which are not appropriate

for this process. " TEX. GOV'T CODE § 2001. 024 does not permit the agency to dismiss the entire

requirement! There is no "loophole" or excuse to avoid these requirements. The statute says

that the agency "must" include:

(4) a fiscal note showing the name and title of the officer or employeeresponsible for preparing or approving the note and stating for each year of thefirst five years that the mle will be in effect:

(A) the additional estimated cost to the state and to local governmentsexpected as a result of enforcing or administering the mle;

(B) the estimated reductions in costs to the state and to local governmentsas a result of enforcing or administering the rule;

(C) the estimated loss or increase in revenue to the state or to localgovernments as a result of enforcing or administering the rule; and

(D) if applicable, that enforcing or administering the rule does not haveforeseeable implications relating to cost or revenues of the state or localgovernments;

(5) a note about public benefits and costs showing the name and title of theofficer or employee responsible for preparing or approving the note and statingfor each year of the first five years that the rule will be in effect:

(A) the public benefits expected as a result of adoption of the proposedrule; and

(B) the probable economic cost to persons required to comply with therule...

TEX. GOV'T CODE § 2001. 024(4), (5).

D. Conclusion.

4. 41 Undeniably, TSBEP has not complied with TEX. GOV'T CODE §§ 2001. 024(4), (5) and

2006. 002(c) before submitting the proposed rules because it did not (a) estimate the number of

small businesses in Texas subject to the proposed mles; (b) make a projection of the potential



adverse economic impact of the proposed rules on small businesses and micro-businesses

supported by relevant and up-to-date data; (c) provide several proposed methods of reducing the

adverse impact of the proposed rules, or (d) provide any fiscal evaluation of the estimated costs

of the proposed mles. Given the agency's lack of explanation for not providing the required

infonnation as well as its admissions that it has no data to support the proposed rules, the

proposed rules are not valid exercises of the TSBEP's mle making authority, and, therefore, Dr.

Grothues moves for relief as set forth below.

V.CAUSE OF ACTION FOR DECLARATORY RELIEF

5. 01 A rule is a "state agency statement of general applicability that: (1) implements,

interprets, or prescribes law or policy; or (2) describes the procedure or practice requirements of

a state agency. " TEX. GOV'T CODE § 2001. 003(6)(A). Proposed new mles 22 T.A.C. §§ 463.1

and 463. 8, unquestionably meet that definition, but TSBEP cannot demonstrate that these

proposed rules meet statutory requisites to even be submitted as "proposed mles" under Texas

law. As a licensed psychologist, Dr. Grothues is an "interested party" contemplated by the

Government Code and Uniform Declaratory Judgment Act, who would need the data and basis

of the TSBEP's proposed new mles which utterly change the landscape of psychology practice in

order to respond appropriately during any comment period of a proposed rule for which the

TSBEP has done its homework.

5.02 Dr. Grothues incorporates here by reference as if fully set forth all of the information,

arguments and allegations contained within Paragraphs I-IV above.

5.03 Pursuant to TEX. GOV'T CODE § 2001. 038 and TEX. Civ. PRAC. REM. CODE §§ 37. 001, et.

seq.. Dr. Grothues seeks a declaration from the Court that declares the following:


1) Proposed Rule 22 Tex. Admin. Code § 463. 1 does not meet the mandatory statutoryrequirements of TEX. GOV'T CODE §§ 2001. 024 and 2006. 002, is an invalid proposedrule, and, therefore, should be officially withdrawn by TSBEP in the Texas Register fromthe notice and comment period;

2) Proposed Rule 22 Tex. Admin. Code § 463. 8 does not meet the mandatory statutoryrequirements of TEX. GOV'T CODE §§ 2001. 024 and 2006. 002, is an invalid proposedmle, and, therefore, should be officially withdrawn by TSBEP in the Texas Register fromthe notice and comment period.

VI.APPLICATION FOR TEMPORARY RESTRAINING ORDER AND

APPLICATION FOR TEMPORARY INJUNCTION

6. 01 Dr. Grothues incorporates here by reference as if fully set forth all of the information,

arguments and allegations contained within Paragraphs I-V above. Under the analysis and facts

described above, Dr. Grothues is probably correct and will prevail on her claim that the TSBEP

has not fulfilled its statutory duties to submit mles that meet basic requirements, and she asserts

that she has a significant chance of success on the merits under these circumstances. Therefore,

pending a determination of the merits. Dr. Grothues seeks relief in the form of a Temporary

Restraining Order followed by a Temporary Injunction against TSBEP to cease and desist from

implementing proposed Rules 462. 1 and 463. 8 until and unless all law-mandated due diligence

and investigatory requirements are met by TSBEP that would allow a realistic evaluation of the

professional and financial impact of the new mles by interested parties in this state. Unless the

TSBEP is immediately restrained and enjoined from further interfering with Dr. Grothues' rights

without the delay required for notice and hearing, both Dr. Grothues and the Texas citizens she

treats will suffer immediate and irreparable loss, damage, and injury because Dr. Grothues will

be unable to offer reasonable and appropriate commentary to TSBEP as the law contemplates

and these proposed mles, if iinplemented, will create a vast change in the practice of psychology

which will affect Dr. Grothues, all other licensed psychologists in this state and Texans as



described in this pleading. See Rutherford Oil Corp. v. General Land Office, 776 S.W. 2d 232,

235 (Tex. App. - Austin 1989, no writ)("The purpose of this statute is to obtain a final

declaration of a rule's validity before the mle is applied. ")

6. 02 These injuries and damages are irreparable and Dr. Grothues has no adequate remedy at

law because the harm caused by TSBEP to Dr. Grothues and to the public, while substantial, are

difficult of proof and cannot be adequately measured by any certain pecuniary standard; the

damages include serious potential health, safety and economic risks to the public generally and

to Dr. Grothues; and Dr. Grothues has no statutory or administrative or other remedy that is as

practical or efficient as an equitable injunction remedy. The potential harm to Dr. Grothues

would be substantial if the Temporary Restraining Order is not granted (including but not limited

to the inability to adequately respond to the TSBEP on proposed mle changes which significantly

and substantively affect Dr. Grothues' practice and the mental and psychological health of

Texans), while granting of the Temporary Restraining Order will not result in any substantial

harm to TSBEP pending a hearing on the Temporary Injunction (i. e., a delay in implementing

rules regarding a significant change to the scope of practice of psychologists in Texas while

requiring the TSBEP to meet statutory requirements for such proposed rules-which should have

been met before the TSBEP submitted them in the Texas Register) pending a hearing on the

temporary injunction.

6. 03 Dr. Grothues requests that a Temporary Restraining Order be issued enjoining TSBEP

from: (a) moving forward in the rule making process with respect to proposed rule 22 Tex.

Admin. Code §463. 1; (b) moving forward in the mle making process with respect to proposed

rule 22 Tex. Admin. Code §463. 8; (c) implementing proposed rule 22 Tex. Admin. Code

§463. 1 and proposed mle 22 Tex. Admin. Code §463. 8. Dr. Grothues also requests that the

Court order TSBEP to cease and desist from any further action leading to implementation of thePLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION62J1467.DOCX PAGE 21

mles in question until and unless TSBEP is able to demonstrate compliance with TEX. GOV'T

CODE §§ 2001. 024 and 2006. 002 with respect to these proposed mles, subject to further orders of

the Court.

6. 04 Further, Dr. Grothues also requests that the TSBEP be cited to appear and show cause

and that on such hearing, a Temporary Injunction be issued enjoining TSBEP from: (a) moving

forward in the rule making process toward implementation of proposed mle 22 Tex. Admin.

Code §463. 1; (b) moving forward in the rule making process toward implementation of

proposed mle 22 Tex. Admin. Code §463. 8; (c) implementing proposed mle 22 Tex. Admin.

Code §463. 1 and proposed rule 22 Tex. Admin. Code §463. 8. Dr. Grothues also requests that

the Court order TSBEP to cease and desist from any farther action seeking implementation of the

rules in question until and unless TSBEP is able to demonstrate compliance with TEX. GOV'T

CODE §§2001. 024 and 2006. 002 with respect to these proposed rules, subject to further orders of

the Court. This includes, but is not limited to, ordering TSBEP to withdraw the proposed mles in

the Texas Register until and unless TSBEP is able to demonstrate compliance with TEX. GOV'T

CODE §§ 2001. 024 and 2006. 002 with respect to these proposed rules.

6. 05 This controversy is not caused by inequitable conduct on the part of Dr. Grothues in this

case.

6. 06 Immediate relief from TSBEP going forward in the mle making process is necessary in

order that TSBEP provide complete and accurate demographic and financial data to stakeholders,

including Dr. Grothues, in order that appropriate, accurate responses can be made to the TSBEP

with respect to the proposed rules' impact on the profession of psychology in Texas with

concomitant impact on Texans' health and safety. In that respect, Dr. Grothues seeks an order

from this Court temporarily restraining TSBEP from any further implementation of these

proposed rules until, after notice and hearing, the Court may consider evidence to show cause

whether a temporary injunction should issue preventing submission of these proposed mles untilPLAINTIFF'S PETITION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAININGORDER AND TEMPORARY INJUNCTION62J1467.DOCX PAGE 22

all statutory requisites are met by the TSBEP. TEX. Cw. PRAC. REM. CODE §37. 011 (West

2017).

6.08 In summary, the injuries and damages suffered by and which will be suffered by Dr.

Grothues are irreparable and Dr. Grothues has no adequate remedy at law because (a) this

conduct by TSBEP impair the ability of Dr. Grothues to offer reasonable, accurate and

appropriate comment to the TSBEP concerning a huge change in the scope of practice of

licensed psychologists and licensed psychological associates that has state-wide and massive

financial implications, (b) Dr. Grothues' ability to enforce her legal and equitable rights with

respect to her scope of practice, that of other persons licensed to practice psychology in Texas

and as well as to safeguard the health and safety of Texans will become significantly more

difficult, and (c), the burden on the parties (and the Courts) will be unreasonably and

unnecessarily increased, and the number of parties required to adjudicate this suit will be greatly

increased if TSBEP is not ordered to cease all further efforts to implement these proposed mles

until TSBEP can meet mandatory statutory prerequisites to submit these proposals for notice and

comment. Dr. Grothues has no statutory, administrative, or other remedy that is as practical or

efficient as an equitable injunctive remedy under these circumstances.

6. 09 In order to protect Dr. Grothues from irreparable harm and to preserve the status quo of

the subject matter of this suit, TSBEP should be restrained and enjoined from: (a) moving

forward in the rule making process with respect to proposed rule 22 Tex. Admin. Code §463. 1;

(b) moving forward in the rule making process with respect to proposed mle 22 Tex. Admin.

Code §463. 8; (c) implementing proposed rule 22 Tex. Admin. Code §463. 1 and proposed rule

22 Tex. Admin. Code §463. 8. Dr. Grothues also requests that the Court issue a Temporary

Injunction to order TSBEP to cease and desist fi-om any farther action leading to implementation

of the mles in question until and unless TSBEP is able to demonstrate compliance with TEX.


GOV'T CODE §§ 2001. 024 and 2006. 002 with respect to these proposed rules, subject to further

orders of the Court.

WHEREFORE, PREMISES CONSIDERED, Dr. Grothues respectfully prays that the

Court grant the requested relief in all respects and declare the proposed mles invalid pursuant to

Texas law and should be withdrawn, further that a temporary restraining order be issued against

TSBEP without notice halting any mle making activities seeking to implement the proposed

rules, that upon hearing, a temporary injunction be issued enjoining TSBEP from any farther

implementation of the proposed mles as set forth above until TSBEP can demonstrate

compliance with TEX. GOV'T CODE §§ 2001. 024 and 2006. 002, that Dr. Grothues have judgment

for costs of court and for general relief, at law or equity, to which Dr. Grothues may show herself

justly entitled.

Respectfully submitted,

By: /s/Jennifer M. AndrewsJennifer M. AndrewsState Bar No. 01243010Email: iandrews(a);namanhowell.com

NAMAN, HOWELL, SMITH & LEE, PLLC306 West 7th Street, Suite 405Fort Worth, Texas 76102-4911Telephone: 817-509-2025Jennifer M. Andrews Direct: 817-509-2042Facsimile: 817-509-2060


And

Bradley K. DouglasState Bar No. 06039750Email: bdguglas(2inamanhowell. comJ. Baird SmithState Bar No. 24082170Email: jbsmith(%namanliowell. com

NAMAN, HOWELL, SMITH & LEE, PLLC83 ION. Capital of Texas Hwy., Suite 490Austin, Texas 78731Telephone: 512-479-0300Bradley KL. Douglas Direct: 512-807-2474J.Baird Smith Direct: 512-807-2478Facsimile: 512-474-1901

ATTORNEYS FOR CAROL GROTHUES,PH.D.

CERTIFICATE OF SERVICE

On this the 28th day of July 2017, 1 hereby certify that a tme and correct copy of theabove and foregoing was served on all known parties and counsel of record as indicated below:

Barrel D. Spinks, Executive Director, Via certified mail, return receipt requestedTexas State Board of Examiners of Psychologists333 Guadalupe St., Suite 2-450Austin, Texas 78701

Attorney General for the State of Texas, Ken Paxton, Via certified mail, return receipt requestedOffice of the Attorney General300 West 15th StreetAustin, TX 78701

/s/Jennifer M. AndrewsOfNaman, Howell, Smith & Lee, PLLC


STATE OF TEXAS §§

COUNTY OF HAYS §

VERIFICATION

BEFORE ME, the undersigned authority, on this day personally appeared Carol Grothues,

Ph.D., blown to me to be the person whose name is subscribed below, and upon her oath said that

she is Plaintiff in the above-styled and numbered cause, and that she has read the foregoing

Declaratory Judgment action. Application for Temporary Restraining Order and Temporary

Injunction against the Texas State Board of Examiners of Psychologists, and that the factual

statements contained therein are true and correct.

^u^ , fu>.Carol Grothues, Ph.D.

/-

SUBSCRIBED AND SWORN TO before me, this the ̂Aday of rTQl^A , 2017 tocertify which witness my hand and seal of office.

DEBORAH FONTNotaryM>lfc. Slar«*?n!!BCemn. EiqphwOa-IO.MMMotaiyW "90237-3

Notary PuBlic in and for the

PLAINTIFF'S PETITTION FOR DECLARATORY JUDGMENT, APPLICATION FOR TEMPORARY RESTRAINING ORDERAND TEMPORARY INJUNCHON62J1467-DEC ACTION TRO TI.DOCX PAGE 25

EXHIBIT A

By; Hinojosa S.B. No. 1339

A BILL TO BE ENTITLED

AN ACT

2 relating to the licensing and practice of psychological associates3 BE IT ENACTED BY THE LEGISLATURE GV THE STATE OF TEXAS:

4 SECTION 1. Section 501. 259, Occupations Code, is amended to5 read as follows;

6 Sec. 501. 259. LICENSING OF AKD PRACTICE BY PSYCHOLOGICAL

7 ASSOCIATE, (a) A_person may not be licensed as a psychological8 associate unless the person:

9 11] holds at least a master's degree or its equivalent

10 in pavchology from a regionally accredited institution of higher11 education;

12 (2) completes at least 60 hours of graduate course13 WOIk at a regionally aceredited institution of hiirher education i;

14 the professionally accepted foundation areas of psvcholoav,15 _includinq scientific and professional ethics and the laws qoverniRa16 the practice of pS YCholoqy;

- <3) completes at least 6 but not more than 12 semester

18 hours of practicum, internship.. or structures experience as part of19 the 60 hours required in Subdivis^i. or, (2) ,. and

20 (4) passes;

21 ^A) a nationally recocinized qualifying22 examinatior. determined to be appropriate by the bo aid; and

23 (Bi a jurisprudence examination administered bv

24 the board [The boarri nh.->T opt: ctanda. rdc for the inauancc of

85R7494 EES-F

S. B. No: 1339

^ lioonooD to psyohological poroonnb

2 an aooieda-tcd univeroity ox oollog

..hold Ct.OBl

-^ narily

3 pcychologioal. in naturo] .

4 (b5 Notwithstanding Subsection (a)(2i, a person who begins5 graduate course work required under that aubdivisioR at a

6 regionally accredited institution of higher education before

7 August 1, 2019, must complete 48 hours of the graduate course WOIK

8 described by that subdivision to satisfy the requirements of that

9 subdivision. This subsection expires August 1, 202910 i£l The board shall designate a person who holds a license

11 authorized by this section by the IA] title "£sy^cloqicai

12 associate f.tehat inoluapB.+'hn .Tlaaii.f .iTrn "pny'7h"li'jit)3l" followed by13 -a-noun -cuch -&a-".acoociatoi" -"acoict^nt, " -"tBaaincr, " or14 .t'toohnioian] ."

15 (d) A psychological associate who completes at least 3._OGO

16 hours cf swervised experience after the date the psvcholoqical

17 associate is licensed to engage in the practice of psychology as a18 psychological associ&te is not reouired to be supervised bv a19 psychologist.

20 (e^ lFor purposes of Subsection (d), experience is

21 supervised only if the experience is supervised by a psychologist22 in the manner provided by the board's supervision quidelines_

23 (^) This section does r.ot prohibit a psychological24 associate who has completed the 3, 000 houxs of supervised25 experience described by Subsection id) from practicing under the26 supervision of a psychologist:

27 (1) for the purpose of cbtainin<j competency in the

S. B. So. 1339

1 application of new techniques; cz

(2) as r.eguired by the board in response to a complaint

j filed with the board or_as part_of_a disciBlMary a.ction taken by

4 the board.

c SECTION 2. Section 32. 024, Human Resources Code, is aaended

>.. t?7 Ailsi;i>B ^'j^cacf^pr . tfi <(.' -sda ss ri ; H'i.i;ii

'' (11) The executive comr.issipner shall establish a separate

H provider type for psychological associates licensed under Chapter

.-. 501, Occupations Code, for purposes of enrollment as a provider for

10 and reimbursement under .the.medical assistance pxoqram.

11 . SECTION 3. Section 32. 027(1), Hiunan Resources Code, is

12 amended to read &B follows:

13 (1) Subject to appropriations, the conunission shall assure

14 that a recipient of aedical assistance under this chapter mAy

15 select a licensed psychologist, a licensed psycho losjca^l

16 associate, a licensed marriage ana EamiLy therapist, as defined by

17 Section 502. 002, Occupations Code, a licensed professional

18 counselor, as defined by Section 503. C02, Occupations Code, or a

19 Licensed maBter eocial worker, as defined by Section 505. 002,

20 Occupations Code, to perform any health care service or procedure

21 covered under the medical assistance pxogran if the selected person

22 is authorized by law tc perform the service or procedure. This

23 subsection shall be liberally construed.

24 SECTION 4. Section 1451.001(18). Insurance Cede, is aniended

25 to read as fallowsi

26 (18) "Psychological associate" means an individual

27 licensed as a psychological associate by the Texas State Board of

S. B. Ko. 1339

1 Examiners of Psychologists [whe - practs-ioeo -aolo-ly -un4eB -tete&

2 oupcxvicion of a-MGcnccflt.poychologicfe].

3 SBCTIOK 5. As soon as practicable, the Texas State Board of

4 Examiners of Psychologists shall adopt rules necessaiy to iBiplement

5 the changes made by this Act.

6 SECTION 6. (a) A person is entitled to engage in the

7 practice of psychology as a psychological aasociate without being

8 supervised by a psychologist and without fulfilling the educational

9 and expexience regui-reaients prescxibed by Section 501. 259,

10 Occupations Code, as amended by this Act, if, before January 1,

11 2018, the person subnits to the Texas State Board of Exaainers of

12 Psychologists proof that the person;

13 (1) holds at least a master's degree ox its equivalent

14 from an accredited institution of higher educatl-on in & progiiun

15 that is psiroari-ly psychological in n&tuxe?

16 (2) ia currently li.cense& in good standing as a

17 psychological associate in this states and

18 (3} has been continuously practicing during the

19 two-year period preceding the effective date of this Act as!

20 (A) a licensed psychological associate;

21 (B) a licensed specialist in school psychology;

22 (C) a licensed marriage and family therapist;

23 (D) a licensed professional counselor; or

24 (E) a licensed social worker

2S (b) The Texas State Board of Examiners Of PsychoiogistB may

26 xer. ew an expired psychological &ssociate license of a peraon and

27 authorize the peison to engage in the practice of psychology as a

S. B. No 1339

3 psychological associate without being supervised by a psychologist

2 and without fulfilling the educational and experience requirements

3 prescribed by Section 501. 259, Occupations Code, as amended by this4 Act, if, before January 1, 2018, -the person subnits to the Texas

5 State Board of Examiners of Psychologists proof that the person:6 (1) holds at least a master's degree or its equivalent

7 from an accredited institution of higher education in a program8 that is primarily psychological in nature;

9 (2) was licensed as a psychological associate in this10 state; and

11 (3) is currently licensed in good standing in this

12 state and has been continuously practicing during the two-year13 pericd preceding the effective date of this Act as:

14

15

16

17

18

(A) a licensed specialist in school psychology;

(B) a licensed marriage and family therapist,-

(C) a licensed professional counselor; or

(D) a licensed social worker.

SECTION 7. The educational requirements prescribed by19 Sections 50l. 259(a) and (b), Occupations Code, as amended by this20 Act, apply only to a person who files an initial application for a

21 psychological associ&te license on or after the effective date of22 this Act.

23 SECTION 8. If, before implementing any provision of this24 Act, a state agency determines that a waiver or authorization from a

25 federal agency is necessary for implementation of that provision,26 the agency affected by the provision shall request the waiver or27 authorization and may delay implementing that provision until the

S. B. No. 1339

waiver or authorization is granted..

2 SECTION 9. This Act takee effect September 1, 2017

7/19/2017 85(R) HB 3268 - Introduced version - Bill Text

85R7494 EES-F

By: Coleman H. B. No. 3268

A BILL TO BE ENTITLEDAN ACT

relating to the licensing and practice of psychological associates.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 501. 259, Occupations Code, is amended toread as follows:

Sec. 501. 259. LICENSING OF AND PRACTICE BY PSYCHOLOGICAL

ASSOCIATE, (a) A person may not be licensed as a psychologicalassociate unless the person:

(1) holds at least a master's degree or its equivalentin psvcholoav from a regionally accredited institution of highereducation;

(2) completes at least 60 hours of graduate course

work at a regionally accredited institution of higher education inthe professionally accepted foundation areas of psychology.including scientific and professional ethics and the laws governingthe practice of psvcholoav;

(3) completes at least 6 but not more than 12 semesterhours of practicum, internship, or structured experience as part ofthe 60 hours required in Subdivision (2);_,and

(4) passes:

(A) a nationally recognized qualifyingexamination determined to be appropriate by the board; and

(B) a -lurisprudence examination adminj^stered bvthe board [The board shall oct otandardo for the ioauancc of4A -te^ T- Aological p Ao hold a maatcr'o dc fromlcgrcc

a program that io primarilytft&

an accredited univcraity or college inpoychologioQl in nature].

(b) Notwithstanding Subsection (a)(2), a person who beginsgraduate course work required under that subdivision at aregionally accredited institution of higher education beforeAugust 1, 2019, must complete 48 hours of the graduate course workdescribed bv that subdivision to satisfy the requirements of thatsubdivision. This subsection_exRires Aucrust 1, 2029

(c) The board shall designate a person who holds a licenseauthorized by this section by the fci-l title "psychologicalassociate [that includco the adjective "paychological" followe^-^&y

noun auch ao "aoaociatc, "-"aooiotant, " "'examiner,

"tcch

(d) A psychological associate who completes at least 3, 000hours of supervised experience after the date the psychologicalassociate is licensed to engage in the practice of psycholoav as apsychological associate is not required to be supervised by apsvcholoaist.

(e) For purposes of Subsection (d) , experience i s

supervised only if the experience is supervised by a psychologistin the manner provided by the board's supervision guidelines

(f) This section does not prohibit a psychologicalassociate who has completed the 3, 000 hours of___suDervised

experience described by Subsection (d) from practicing under thesupervision of a psvcholoaist:

(1) for the purpose of obtaining competency in t h eapplication of new techniques; or

(2) as required by the board in response to a complaintfiled with the board or as part of a disciplinary action taken bythe board.

SECTION 2. Section 32. 024, Human Resources Code, is amendedby adding Subsection (11) to read as follows:

(11) The executive commissioner shall establish a separate

http://www.legis.state.tx.us/tlodocs/85R/billtexVhtml/HB032681.htm 1/3


provider type for psychological associates licensed under Chapter501, Occupations Code, for purposes of enrollment as a provider forand reimbursement under the medical assistance program

SECTION 3. Section 32. 027(1), Human Resources Code, isamended to read as follows:

(1) Subject to appropriations, the commission shall assure

that a recipient of medical assistance under this chapter mayselect a licensed psychologist, a licensed psychologicalassociate, a licensed marriage and family therapist, as defined bySection 502. 002, Occupations Code, a licensed professionalcounselor, as defined by Section 503. 002, Occupations Code, or alicensed master social worker, as defined by Section 505. 002,Occupations Code, to perform any health care service or procedurecovered under the medical assistance program if the selected personis authorized by law to perform the service or procedure. Thissubsection shall be liberally construed.

SECTION 4. Section 1451. 001(18), Insurance Code, is amendedto read as follows:

(18) "Psychological associate" means an individuallicensed as a psychological associate by the Texas State Board ofExaminers of Psychologists [tifho practicco oololy under theoupcrvioion of a liccnacd poychologiat].

SECTION 5. As soon as practicable, the Texas State Board ofExaminers of Psychologists shall adopt rules necessary to implementthe changes made by this Act.

SECTION 6. (a) A person is entitled to engage in thepractice of psychology as a psychological associate without beingsupervised by a psychologist and without fulfilling the educationaland experience requirements prescribed by Section 501. 259,Occupations Code, as amended by this Act, if, before January 1,2018, the person submits to the Texas State Board of Examiners ofPsychologists proof that the person:

(1) holds at least a master's degree or its equivalentfrom an accredited institution of higher education in a programthat is primarily psychological in nature;

(2) is currently licensed in good standing as apsychological associate in this state; and

(3) has been continuously practicing during thetwo-year period preceding the effective date of this Act as:

(A)(B)(C) a licensed marriage and family therapist;(D) a licensed professional counselor; or(E) a licensed social worker.

(b) The Texas State Board of Examiners of Psychologists mayrenew an expired psychological associate license of a person andauthorize the person to engage in the practice of psychology as apsychological associate without being supervised by a psychologistand without fulfilling the educational and experience requirementsprescribed by Section 501. 259, Occupations Code, as amended by thisAct, if, before January 1, 2018, the person submits to the TexasState Board of Examiner5 of Psychologists proof that the person:

(1) holds at least a master's degree or its equivalentfrom an accredited institution of higher education in a programthat is primarily psychological in nature;

(2) was licensed as a psychological associate in thisstate; and

(3) is currently licensed in good standing in thisstate and has been continuously practicing during the two-yearperiod preceding the effective date of this Act as:

(A) a licensed specialist in school psychology;(B) a licensed marriage and family therapist;(C) a licensed professional counselor; or(D) a licensed social worker.

SECTION 7. The educational requirements prescribed by

http://www.legis.state. tx.us/tlodocs/85R/billtext/html/HB032681.htm

a licensed psychological associate;a licensed specialist in school psychology;

2/3


Sections 501. 259(a) and (b), Occupations Code, as amended by thisAct, apply only to a person who files an initial application for apsychological associate license on or after the effective date ofthis Act.

SECTION 8. If, before implementing any provision of thisAct, a state agency determines that a waiver or authorization from afederal agency is necessary for implementation of that provision,the agency affected by the provision shall request the waiver orauthorization and may delay implementing that provision until thewaiver or authorization is granted.

SECTION 9. This Act takes effect September 1, 2017.

http://www.legis.state. tx.us/tlodocs/85R/billtext/html/HB032681.htm 3/3

EXHIBIT B

Volume 42, Number 25, June 23, 2017

PROPOSED RULES

Reporter42 TEXREG 3227 *

Ty-Texas Register > 2017 > June > June 23. 2017 > PROPOSED RULES > TEXAS STATEBOARD OF EXAMINERS OF PSYCHOLOGISTS

Notice

Added: Text htghlighted in gnenDeleted: Red text with a strikethfeyg^

Agency

TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

Administrative Code Citation

22 TACS 463.1

Text

NOTES:

The Texas State Board of Examiners of Psychologiste proposes an amendment to mte § 463. i, Types of Licensure.The proposed amendment is necessary to ensure conformity in the Board's rules, as well as the proposed changeto allow independent practice by licensed psychological associates.

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year periodthe proposed amendment is in effect, fliere will be no additional estimated cost, reduction in costs, or loss orincrease in revenue to the state or local governments as a result of enforcing or administering the mle as amended.Additionally, Mr. Spinks has determined that enforcing or administering the mte as amended, does not haveforeseeable implications relating to the costs or revenues of state or local government

PUBLIC BENEFIT. Mr. Spinks has determined for the first five-year period the proposed amendment is in effect, thepublic benefit anticipated as a result of enfordng 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 amendmentis in effect, the amended rule will not carry a economic cost to small businesses or local economies.

42 TEXREG 3227, *3227Page 2 of 3

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS. The proposed amendment will not have anadverse effect on small or micro-businesses.

LOCAL EMPLOYMENT IMPACT STATEMENT. The proposed amendment will not affect a local economy, thus alocal emptoyment impact statement is not required.

Comments on the proposed amendment may be submitted to Brenda Skiff, Public Information Officer, Texas StateBoard of Examiners of Psychologists, 333 Guadalupe, Ste. 2-450, Austin, Texas 78701, within 30 days ofpublication of this proposal in the Texas Register. Comments may also be submitted via fax to (512) 305-7701, orvia email to Open. RecordsiSf.tsbeD.texas.gov.

The Board specifically invites commente from the public on the issues of whether or not the proposed amendmentwill have an adverse economic effect on small businesses; if the proposed rule is believed to have an adverseeffect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describeand estimate the economic impact of the rule on small businesses, offer alternative methods of achieving thepurpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on smallbusinesses considering the purpose of the statute under which the proposed rule is to be adopted, finally describehow the health, safety, environmental and economic welfare of the state will be impacted by the various proposedmethods. See § 2006. 002(c) and (o1) of the Texas Government Code.

STATUTORY AUTHORIPK'. The amendment is proposed under Texas OccupaUons Code, Title 3, Subtitle I.Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make allrules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the properperformance of its duties and regulations of proceedings before it.

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

HISTORY:

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legalauthority to adopt.

Filed with the Office of the Secretary of State on June 6, 2017

TRD-201702197

Darrel D. Spinks

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: July 23, 2017

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

Regulations

TITLE 22. EXAMINING BOARDS

PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 463. APPLICATIONS AND EXAMINATIONS

[*3228]

§ 463. 1 Types of Licensure.

42TEXREG3227, *3228Page 3 of 3

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

(1) Licensed Psychological Associate. This is a license for qualified individuals v.itft a graduate degree topractice psychology under tho cuporvision of a. -licensed-. pG ychologiGt . Requirements "for the

psychological assodate license are found in § 463. 8 of this title (relating to Licensure as aPsychological Assodate) and § 463. 14 of this title (relating to Written Examinations).

(2) Licensed Specialist in School Psychology. This license is required by law for the practice of schoolpsychology in the public schools of Texas. Requirements for the spedalist in school psychology licenseare found in § 463. 9 of this title (relating to Licensure as a Specialist in School Psychology) and §463. 14 of this title.

(3) Provisionalty Licensed Psychologist. This is a doctoral level license to practice psychology under thesupen/ision of a licensed psychologist This license is a prerequisite for licensure as a psychologistRequirements for provisionally licensed psychologist are found in § 463. 10 of this title (relating toProvisionally Licensed Psychologist) and § 463.14 of this title.

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

(A) Obtaining provisional licensure as a psychologist, completing the required two years of supervisedexperience and taking and passing the required oral exam. Requirements for licensure as apsychologist are found in § 463. 11 of this title (relating to Licensed Psychologist), § 463. 14 of thistitle, and § 463.15 of this title (relating to Oral Examination).

(B) Applying from a jurisdiction which holds a reciprocity agreement with Texas, meeting the Board'srequirements for licensure by reciprocity, and passing the Board's Jurisprudence Exam. Critena forrecipnacity jurisdictions are listed in § 463. 29 of this title (relating to Reciprocity Requirements).Requirements for licensure as a psychologist by means of reciprocity are found in § 463. 12 of thistitle (relating to Licensed Psychologist by Reciprodty) and § 463. 14 of this title.

TEXAS REGISTER

'ocrment

Volume 42, Number25, June 23, 2017

PROPOSED RULES

Reporter42TEXREG3229*

TX-Texas Register > 2017 > June > June 23, 2017 > PROPOSED RULES > TEXAS STATEBOARD OF EXAMINERS OF PSYCHOLOGISTS

Notice

Added: Tixt htfihlight^d in gnen

Agency

TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

Administrative Code Citation

22 TAG 5 463.8

Text

NOTES:

The Texas ̂ tate Board of Examiners of Psychologist proposes new rule § 463. 8, Licensed PsychologicalAssociate. The proposed new rule is necessary to give full effect to the Sunset Advisory Commission'smanagement action requiring the agency to conduct a rule review to identify all rules susceptible to legal challengeunder the Sherman and Clayton Acts, and then either modify or repeal those rules. The proposed new rule is alsodirectly responsive to stakeholder requeste for changes allowing for independent practice by psychologicalassociates, as well as requests from legislators who have expressed more than a passing interest in the sameissue.

FISCAL NOTE. Darrel D. Spinks, Executive Director of the Board, has determined that for the first five-year periodthe proposed new rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increasein 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 ft>reseeable implications relating tothe costs or revenues of state or local government.

PUBLIC BENEFIT. Mr. Spinks, has determined for the first five-year period e proposed new mle is in effect, therewill be a benefit to consumere due to greater competition between licensed mental health providers. AdditionaHy.Mr. Spinks reasonably anticipates the proposed new rule to result in an increase in the number of mental hMlth

42 TEXREG 3229. *3229Page 2 of 5

providers licensed by this agency, as well as an increase in the number of provkiers servicing mental healthprofessional shortage areas throughout the state.

PROBABLE ECONOMIC COSTS. Mr. Spinks, has determined for the first five-year period the proposed new rule isin effect, the rule will carry a probable ecx>nomic cost to some individuals required to comply with the rule. Morespecifically, once a psychological assodate qualifies for independent practice under the rule, that IndMdual wouldno longer be required to pay for supervision or split his or her revenue with a supervisor. Thus, psychologists whocharge for their supervision services could see a reduction in their incomes. However, this reduction may be offset,either in whole or in part, if a psychologist provides other activities or services during the time previously utilized forsupervision. Because of the lack of information available as to the number of psychologists providing supervision,as well as the fees charged, the agency is unable to provide a probable cost estimate at this time. To do so wouldrequire agency staff to engage in abstract factual determinations which are not appropriate for ftis process.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS. The proposed new rule could have an adverseeffect on small or micro-businesses, but the agency cannot estimate the number of businesses impacted or theeconomic impact for the same reasons it cannot estimate the probable economic costs associated with the newrule. Furthermore, there are no reasonable alternative methods of achieving the purpose of the proposed new rulethat would not run afoul of the Sherman and Clayton Acts.

LOCAL EMPLOYMENT IMPACT STATEMENT. The proposed new rule will not affect a local economy, thus a localemployment impact statement is not required.

PUBLIC COMMENT. Comments on the proposed new rule may be submitted to Brenda Skiff, Public InformationOfficer, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Ste. 2-450, Austin, Texas 78701, within30 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. RecordsS>tsbeo. texas. aov.

The Board specifically invites comments from the public on the issues of whether or not the proposed new rule willhave an adverse economic effect on small businesses; if the proposed rule is believed to have an adverse effect onsmall businesses, estimate the number of small businesses believed to be impacted by the rule, describe andesUmate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose ofthe rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businessesconsidering the purpose of the statute under which the proposed rule is to be adopted, finally describe how thehealth 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 Texas Government Code.

STATUTORY AUTHORITY- The new rule is proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules notinconsistent with the Constitution and Laws of this State, which are reasonably necessary for the properperformance of its duties and regulations of proceedings before it.

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

HISTORY:

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legalauthority to adopt.

Filed with the Office of the Secretary of State on June 6, 2017

TRD-201702199

Darrel D. Spinks

Executive Director

42 TEXREG 3229, *3229

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: July 23, 2017

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

Regulations

Page 3 of 5

TITLE 22. EXAMINING BOARDS

PART 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 463. APPLICATIONS AND EXAMINATIONS

f3230]

S 4<3.». Licensed Paycholcgicai Assodata

(a) Licannire Rcquirertients An awlisant for licsnsure as a paychoiogilGat a»sociate must

(1) hoW a graiduatB dBQroe in psy^&iosy frM'i a regionaUv accfsdited institution of higher educafapn,

(2) (ôvade documentation of at teast E§X (6) ae,Tes*er ciiedtt hours of practicum, internship or otherstruchired e\-pwiwce viWn the applicants s.*adiiate dogree progrsfn under the »upervision of ahcentttd psycnofogKt,

(3) pais ai! axarrAiartfons required by the fcae'd and ms&t each 6ffr.»CTtwta litSec! m §!.')1 .?5{y[a){2)-MsfjfteOssyeaÂ^C&â. and

(4) dwnonstraie greduato tevei courswrork in .ach of the fottowr. g areas

(A) Psydiotoflical Foundation i

(I) the bwtosicai fcases of t»havk;r,

(il» the acqutwl or teamed bwes of tohavk>T, inaiudiRg iean-iins, th)r:htr;s, mei-rtory, mobvahon.nd emotion,

(Ki) U social, cuthira!, anri syatemic bai>es o? behavior:

(hr) the indh/idya' or u.i»que ba»es of bdiavior, indujing pe'sonrf.ty Qmxy, humandewtopnient, a^J abnomtal b<havior;

(B) Retewch and St^sd.'x-

(0 ttr methodotegy uvwS to invcstgaia quttion» and acqui.'® lmo*tedfl» in ttic pracbce ofpsychotogy;

<tl) coursework in researdi dwign and rnBtf.odotofly, st^sfccs, c'llical thinking. and scientoficinquiiy.

(C» Applied Psychology

(I) Qw history, tbwry, snd appKcafon ofp»ychotog<cat principNw,

(M) the application of psycholoflicat ifte&nes to indivtduals, familiu, and flroups,(D) Asswsment:

(1» inteNectual, peraondfty, o&gnrtive, physical, an'j ctnotional abilities, skills, intewsts, wdWttudct;

(B) Boctoôonom. s, (nctudtng behavioral, adapttw. and cultural aasewment;

) Inlwvenbons.

of 542 TEXREG 3229, *3230

(1) the aj^lication of theTapoybc techniques,

(H) the bahgwior management.

(Ul)con3a rton, and

(P) Sdentfte and Professtona}, Legal, and Ethical Issusa

(b) Degree Requiwnents

(1) For purpows of this nite

(A) a graduate dagre* tn (»ych<Aigy means the ranrte cf the candidate's fragor or prognm ofstudiea cqntainB the tarm "piycôlogy.'

(B» a speciahst d^jnc shal be tnatod M a gradyate degree, T.d

(C) one semester credit tour eûalt one and one-ha?F quarter credtt hour&

(2) A degree utitlzed to nwet the requwmente of th» rute mu*t oonsit of at teast sixty (60) -mertarcmd;t houre, with no mom than twetvs (12) wmwter aedit ho'-trs of pfasttsum, tntemsh^. or.tructyrad expanence being countBrt tcvi 'ani {he totat degree hnyr iiBqutramenl

(3) ̂ )plScant3 must dBmonstnto proof of the gmduato iwri oounK»^>rk nquirad tn subsKtfon (a)(4) ofthr section &y id<m^fy»ng which coyês or trainiRfl (wtod on thw L<an»cnpte saftriy tha required9STW6 c* study Applisente .'nay b« wquirgist to provtda fr>» bcaral w;lh an <^da} course catatogua ordeaenption 'raw the»r ynsvanity or trai.-Hnfl prognim to vtrify wîether a course meeta thereciuiremsr.i» oflhf rule.

(c) Supfenrfiion R«qoiWFncril'!»

(1) A Ucemed payclwtocica? aesodata mygt pracUoe under the ftuperviaion of a licensed psychotoflistand may not pract»o» independenfly

<2) NG&wdhslanding aubswrtiGn (c)(1) . nd subatct to fa*w !imrtBt?3ns wt out in subswtion (c){3) beky.v, a(icerwad j»ychotogtcat asacctate may practica indepeftderrtly tf

(A) the ticensee can <temon£tre^ at toast 3,000 houre of post-graduate deyee expenence in thedetivtiy of ptychotogicai swviow urwter th< t;pervision of one w mwv licena^l psychotogtrts,

(B) fte sup£'vi3ad eypenenoe waa obtained m not tow than 24 con&eaitive months, but n<»t mo»athan 48 oonaecyL-t/e months, and in not more than thrae ptecenwnits, and

(C) the Itoensae sabmite an appttcatiQn for indeptndcnt pmcfio* c-/Ktonang proof of ttie mquiwd.upervsaed exp9f<fiNncc

<3) A licwnwJ psychotogical aswciate rReeting ttw ntqumnents of sutewcbon (c)(2) slwfl be appro'/edfor independent przdice. but remains subject to all board ruics, inclucling Boart ruto 465 9 retatingtocon^»t«»Qr

(4) AppEscanta may not ubtize any tuperviae^ experonce obt&.-ned ffom a paychtiiog'st with a retnctedBcsrwe or to whom (hay are related wSBim tha »ecood dearet of affini.'y or consanguinrty to sabsfy(he nquiniricnts of this lule.

(5) Applkanh licaiwed M r.pedaiits in .choct piychotogy may utilê cxpmTence acquired under (hathcenae tf the e)qpenence wa» «uperv»»ed by a kpeniffld psychotoflKt

<d» Notwfthstandtng subsecbon (c)(3). an application for tndepwdmt pmctice may be dmnd if a flap ofmore Aan two years . xitte brtwen the con-. ptoBon of tha .upwviwl experience rwiuired forindependwit pradioe and tha data of applicaEon for indape.-tdwrt pwctroe. The rules gowm»ng thawaver of gaps related to supeivised expwnce found in Board rute 46311 shall govern anyfor a wawer under this rute - . .

42 TEXREG 3229, *3230Page 5 of 5

(.) The correct title for a pcncn bwn»ed under mis n*le sha3 b® licensed psychological associate" or"psychological asgoc-te"

r323lj (f) A lioerwad ptychok^ical associate auihoraed to pr»3faoe IndependenUy urKter this ruto

must snfDrm all prtSiente and ctenti as pwt of the informed con»»nt procesk, whether the licensee holdsa mastBTB, spesalitt or tfactorat ctegrce, and provide the prtent wrth a current copy of anyirribrTTNrtionat pamphlet or fcnxhura published by the BMUXI dwcntoing the difference* between th«tevcle of training and aducabon .recewd in maters, specialu^. and doctoral degree programs. In lieu ofprovtding -d. prtrnt or cllant with a copy of tfw cqufrad parr4»htot or brochum.'licftnsws may pubiidt»n a conspicuous nwnriBT, Uw panwhlat or b?iochur» on thwr w!»rte or prsvide a link to th® pamphletor brochum on th* Board's web»»^

(g) Conhnuation of Prior Law.

(1) Notwtthrtandtng »ut»estton (b){1){A). . p&-son who bagin» a gniduato jxogram (ead»nfl to a degreenquind by aubsection (a)(1) before Augurt 31, 2019. wili be conudered to have met ttierequirements of that sybwcbon tf the indhndyaFs dtBg'ee » pnnwify psycholoflical in nature Th®subsection expires on Augut 31, 2Q21

(2) NolwKhstanding »jb»«*c«i (&K2), . pcr&on who begin* a graduate prognam leading to a <tesn»required by aubwcUon {s»{1) befow Aiigust 31, 2019. will be copsidered to have »?iet th®nsqulremante of that tybMiCfcon ^ ttie indtyMual ha» compietsd <?. s«mestBr crodrt houre wrth attoast 27 of thoM hoyis in paychoSosy. Appttcapte with degrees cons'sUng of law than 42 sameatercredrt hours may .itbluie a maximum of 12 semestflr credit hojns ftuii another gnaduate degreeprognam (n p»y4hotagy to adiwve the tota! of 42 temester credit houre This aubsecthMi expiws onAugust 31, 2021

(h) Nolwaistand^g sijbK-saons (c)(1H£), a iiceff»Bd p'&ychaiogscal waociate with an acBve licenw a» ofSepttnber 1, 2017 ̂ o matntei^ad sut activa ih-enae throuflhou*. 8w ftree years precaling ftatdate. raconsidered to Siavc met ttw raquloBmente of subwrf'on <&)(2) and ptay practice indep<p.dent5y inacooidanoB with subtecUon (c)(3)

TEXAS REGISTER

Gny ~>f Docti«n. ;nt

EXHIBIT C

HB 3430 SMALL BUSINESS IMPACTFINAL GUIDELINES

April 2008

>thThe 80"' Legislature adopted HB 3430 which, among other things, requires that, as part ofthe mlemaking process, state agencies must prepare an Economic Impact Statement tihatassesses the potential impact of a proposed rule on small businesses and a RegulatoryFlexibility Analysis that considers alternative methods of achieving the purpose of therule if the proposed rule will have an adverse economic effect on small businesses. HB3430 also required that the Attorney General, in consultation with the Comptroller,prepare these .guidelines to assist agencies in detennining a proposed mle's potentialadverse economic effects on small businesses and in identifying and evaluatingalternative methods.

The Office of the Attorney General prepared Interim Guidelines in September 2007 anddistributed them to state agencies and other interested parties for review and comment.Proposed Guidelines were prepared based on the comments received and were publishedin the Texas Register for additional public comment on February 1, 2008 (33 TexReg985). These Final Guidelines were developed in response to the comments received.

Attached to these Guidelines are the following appendixes: Text of § 2006.002 asamended, a Sample Economic Impact Statement and Regulatory Flexibility Analysis, anda Sample Statement Regarding the Public Health, Safety, and Welfare.

I. REQUIREMENTS

The requirements for an Economic Impact Statement and Regulatory Flexibility Analysisare set forth under section 3 ofHB 3430, which amends Texas Government Code §2006.002. Section 2006.002 as amended by HB 3430 is set out in an appendix to theseguidelines.

HB 3430 requires that before adopting a rule that may have an adverse economic effecton small businesses a state agency shall prepare an Economic Impact Statement thatestimates the number of small businesses subject to the proposed mle, projects theeconomic impact of the rule on small businesses, and describes alternative methods ofachieving the purpose of the proposed rule. An agency's consideration of alternativemethods must be set forth in a Regulatory Flexibility Analysis (§ 2006.002(c)). TheRegulatory Flexibility Analysis must consider, if consistent with the health, safety, andenvironmental and economic welfare of the state, using regulatory methods that willaccomplish the objectives while minimizing adverse impacts on small businesses. Thestate agency must include in the analysis several proposed methods of reducing theadverse impact of a proposed mle on a small business (§ 2006. 002(c-l)). Each agencymust assess for itself the quality and quantity of the data needed to prepare an EconomicImpact Statement for a proposed rule.

The Economic Impact Statement and Regulatory Flexibility Analysis must be included inthe notice of the proposed rule (§ 2006.002(d)). Copies of the notice of the proposed rulethat is submitted to die Texas Register must also be provided to the Senate and Housestanding committees that are charged with reviewing the proposed rule (§ 2006.002(d)).

Section 2006.002, as amended by HB 3430, applies only to a rule that is adopted on orafter January 1, 2008. A rule adopted before that date is governed by the law in effectwhen the rule was adopted, and the former law is continued in effect for that purpose. Inaccordance with the Administrative Procedure Act, Texas Government Code Ch. 2001,the use of the word "adopted" indicates that this requirement applies to the date that arule is actually adopted by a state agency, not to the date when an adopted rule is filedwith the Secretary of State. See Texas Government Code § 2001.033 and § 2001.036.

II. OUTLINE OF REQUIRED STEPS

Is an Economic Impact Statement required?Would the proposed rule have:1) an adverse economic effect;2) on small businesses?

If the answer to both question is yes, then an Economic Impact Statement must beprepared that includes:

An estimate of the number of small businesses subject to the proposedmle;A projection of the economic impact of the proposed rule on smallbusinesses; and,A Regulatory Flexibility Analysis, which reflects an agency'sconsideration of the alternative methods described in the Economic

Impact Statement, must include:Consideration of the use of regulatory methods that will achievethe purpose of the proposed rule while minimizing adverse impactson small businesses, if consistent with the health, safety, andenvironmental and economic welfare of the state; and,An analysis of several proposed methods of reducing the adverseimpact of the proposed rule on small businesses.

Notice and Comment is required:Include the Economic Impact Statement and the Regulatory FlexibilityAnalysis in the notice of the proposed rule in the Texas RegisterProvide copies to the standing committees of each house of thelegislature that is charged with reviewing the proposed mleRespond to any comments on the Economic Impact Statement andRegulatory Flexibility Analysis as required in any adoption preamble.

III. WHAT IS A SMALL BUSINESS?

As provided under § 2006. 001(2), as amended by HB 3430, a small business is an entitythat is:

1) for profit,2) independently owned and operated, and3) has fewer than 100 einployees or less than $6 million in annual gross

receipts.

Each of these three elements should be met in order for an entity to qualify as a smallbusiness under HB 3430. A business must be operated for profit. Consequently, rulesthat apply exclusively to non-profit and governmental entities need not comply with HB3430.

Independently owned and operated businesses are self-controlling entities that are notsubsidiaries of other entities or otherwise subject to control by other entities and entitiesthat are not publicly traded, To qualify as a small business, an entity must have eitherfewer than 100 employees or less than $6 million in annual gross receipts. Practically,the standard of fewer than 100 employees will be the easiest to determine and implement.Data on an entity's annual gross receipts is generally not publicly available.

In some cases, individual persons licensed by an agency might be considered to be smallbusinesses. Whether an individual licensee might be a small business will depend uponthe nature of the regulated profession or trade and the governing statute. An agencyshould look to see if any of its licensees might practice as small businesses.

IV. ADVERSE ECONOMIC EFFECT

Section 2006. 002(c) requires that "[bjefore adopting a rule that may have an adverseeconomic effect on small businesses, a state agency shall prepare" an Economic ImpactStatement and Regulatory Flexibility Analysis. One of an agency's first inquiries shouldbe whether a proposed rule may have an adverse economic effect on small businesses.1

If a proposed rule will not have an adverse economic effect on small businesses, anagency should include a finding to that effect in the notice of the proposed rule. Anagency is not required to prepare an Economic Impact Statement and RegulatoryFlexibility Analysis if there is no adverse economic effect. An agency should, however,

Courts have not interpreted the meaning of "adverse effect" under § 2006.002. See Unified Loans. Inc. v.Peftijohn, 955 S.W.2d 649 (Tex. App. -Austin 1997, no pet, ). WEBSTER'S DICTIONARY defines "adverse"as " 1 : acting against or in a contrary direction: Hostile <hindered by ~ winds> 2 : opposed to one'sinterests: Unfavorable <an ~ verdicO. " 59 (9th New Collegiate ed. 1990).

2 Texas Shrimp Ass 'n v. Texas Parks & Wildlife Dep '1, 2005 WL 1787453, at *6 (Tex. App. -Austin2005, no pet. ) (not designated for publication) ("The requirements in section 2006. 002 are not absolute,

provide a reasoned explanation in the preamble for the proposed rule as to why anEconomic Impact Statement and Regulatory Flexibility Analysis is not required for aproposed rule.

Adverse economic effects can include the costs to a small business for compliance with aproposed rule and may include a loss of business opportunities as the result of regulatorylimits. What constitutes an adverse economic impact may depend upon thecharacteristics of a regulated industry and upon the effect of a proposed rule. However,an agency need only consider direct adverse economic effects. An agency need notconsider indirect economic effects, such as impacts on small businesses that are notregulated entities. 4 Generally, there is no need to examine the indirect effect of aproposed rule on entities outside of an agency's regulatory jurisdiction. However, anagency should carefully evaluate a proposed rule where indirect effect may be ofparticular concern, such as the impact of a proposed rule on other regulated entities.

Adverse economic effects need not be limited to regulatory programs. Adverse economiceffects can also be associated with grant programs or other voluntary programs.

V. ECONOMIC IMPACT STATEMENT AND REGULATORYFLEXIBILITY ANALYSIS

Agencies should make a reasonable, good-faith effort to prepare an Economic ImpactStatement and Regulatory Flexibility Analysis that will provide the public and theaffected small businesses with infomiation about the potential adverse effects of theproposed mle and about potentially less-burdensome alternatives. Substantial

but raAer are conditioned on the adoption of 'a rule that would have an adverse economic effect on smallbusinesses', " quoting the text of § 2006.002(c) as it existed at the tune).

An objective of statutes such as § 2006.002 "is to aflford adequate notice-to place the agency'sassessment before interested persons in advance in order that (1) interested persons might commentintelligently on the proposed rules and (2) the agency might exercise intelligently its responsibilities inarriving at the contents of the rule as finally adopted, in stating reasons for and against adoption, and informulating the required contents of the adopting order, including a 'reasoned justification' for the rule."Umfied Loans, 955 S.W.2d at 652.

Courts have held that the federal Regulatory Flexibility Act, 5 U.S.C. §§ 601-612, applies only to directeconomic impacts. See Mid-Tex, Elec. Coop v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (Regulations forgenerating utilities did not need to consider potential adverse effect on transmission utilities); AmericanTrucking Ass'ns v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (EPA's national ambient air quality standards didnot have a direct impact on small entities which were regulated directly through state implementationplans), aff'd in part and rev'd m part on other grounds, Whitman v. American Trucking Ass 'ns, 53 1 U. S.457 (2001); United Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996) (Regulatory flexibilityanalysis provision applies only to small entities that are subject to the requirements of the rule and theagency had no obligation to analyze the effects on entities which it did not regulate).

5 See Southern Offshore Fishing Assoc. v. Daley, 995. F.Supp. 1411, 1437 (M. S. Fla. 1998) (interpretingthe federal requirement to examine impacts on small entities). One court required that a federal agencyconsider comments not submitted during the formal notice and comment period because the agency'sproposed rule did not properly inform the regulated industry that its interests were at stake. NorthwestMining Assoc. v. Babbitt, 5 F.Supp.2d 9 (D.D.C. 1998).

compliancerequires that the Economic Impact Statement provide interested persons withan opportunity to comment intelligently on the basis for an agency's projected economicimpact of a proposed rule on small businesses.6

An agency should individually analyze the impacts of each proposed mle or ruleamendment. While an agency may be able to take advantage of the data and analysiscompiled as part of an Economic Impact Statement for a prior rulemaking, the agencyshould confirm that the data is appropriate for each proposed rule.

A. Determining the Number of Small Businesses

To know whether a proposed mle affects a number of small businesses, an agency mustfirst know how many regulated entities exist and which are small businesses. For someagencies that regulate only one industry or profession, this may require determining onlyhow many of the businesses that the agency regulates meet the standards for smallbusinesses. For some agencies, most of their regulated individuals and entities, if notnearly all, may qualify as small businesses.

The most readily determinable factor will be whether a business has less than 100employees. If a business does, then it is clearly a small business and an economic impactstatement and regulatory flexibility analysis should be prepared. With regard tobusinesses with more than 100 employees, but less than $6 million in annual grossreceipts, ftirther information may be obtained by consulting.

The Comptroller of Public Accounts has developed a web site to assist agencies indetermining a proposed rule's potential adverse economic effect on small businesses(https://fii-ix. cpa. state. tx. us/fm?{. /leeis/ecoeffect/). Additional information on employerswith fewer than 100 employees is available from the Texas Workforce Commission'sTRACER web site (www.tracer2. com).7

An agency that regulates only one industry or profession may only need to conduct thisanalysis once to determine the number and/or percentage of small businesses that itregulates. That analysis can then be used in future rulemakings, however, the analysisshould be reviewed and updated periodically to reflect changes in the number ofregulated businesses or changes to the agency's jurisdiction.

Agencies that adopt rules affecting multiple industries will likely need to determine foreach proposed mle the number of small busmesses that may be affected. The first step inthis analysis would be to identify the industry sectors to be regulated. In the past, manyagencies used the Standard Industrial Classification (SIC) codes to categorize regulatedbusinesses on an industry-by-industry basis. In 1999, the SIC system was rq)laced by the

6 See Unified Loans, 955 S.W.2d at 652-654.

7 Additional labor market and other information may be found atwww.twc.state.tx.us/customers/rpm/rDmsub3 .html.

North American Industry Classification System (NAICS), which breaks down industrysectors in much greater detail.

For a grant program or other voluntary program, an agency can develop an estimate ofthe number of small businesses affected by anticipating the potential number ofapplicants and potential number of grant recipients. The number of applicants from pastyears of a program could be used as examples, or the number of applicants for similarprograms can be used as the basis for an estimate. An agency should strive to providesome reasoned explanation for an estimate of the number of applicants and themethodology and quality of the data used to derive the estimate.

An agency does not need to provide an exact accounting of the number of smallbusinesses that a proposed rule may affect. The number of businesses may be reportedas an approximation, such as "more than," or in a range such as: 1-100, 101-500, 501-1000, 1001-5000, 5001-10,000, or 10,000+.

In some instances, an agency may regulate businesses that are located outside of Texas.In such a case, an agency should look to see whether any of these businesses are smallbusinesses that should be included in the number that fhe proposed rule might affect.However, an agency need only assess the general adverse effect of a proposed rule onsmall businesses doing business in Texas; it need not perform a detailed analysis of howa proposed mle might have a different effect, if any, on small businesses that are locatedoutside of Texas.

B. Projecting the Economic Impact

Under § 2006. 002(c)(l), an agency is required to project the economic impact of aproposed rule on small businesses. Every rule is different. The level, scope, andcomplexity of analysis may vary significantly depending on the characteristics andcomposition of the industry or small-entity sectors to be regulated. The projection needonly assess the potential adverse economic effects on small businesses.

Agencies are also required, under § 2006.002(f), to reduce the adverse effect of rules onmicro-businesses. Under § 2006. 001(1), a micro-business is defined as an entity with notmore than 20 employees. Consequently, the number ofmicro-businesses in a regulatedindustry or profession is a subset of the number of small businesses. In some instances,however, a proposed rule may have a disparate effect on micro-businesses as compared tosmall businesses. An agency's projection of economic impact should include an analysisas to whether a proposed rule may have an adverse effect on micro-businesses distinctfrom any potential adverse effect on small businesses.

See U.S. SMALL BUSINESS ADMINISTRATION, OFFICE OF ADVOCACY, STATE GUIDE TO REGULATORYFLEXIBILITY FOR SMALL BUSINESSES (March 2007) (Examining the regulatory flexibility programs ofRhode Island, South Dakota, and other states).

Examples of the costs associated with a proposed rule may include:- recordkeeping;- reporting;- requu-ed professional expertise, such as lawyer, accounting, or engineering;- capital costs for any required equipment;- costs for modifying ,any existing processes and procedures;- lost sales and profits resulting fix>m the proposed rule;- changes in market competition as a result of the proposed rule and its effect on

the balance between specific submarkets;- extra tax costs;- additional employees that may need to be hired; and- required fees.

C. Regulatory Flexibility Analysis

In preparing the Regulatory Flexibility Analysis, as required under § 2006. 002(c)(2), anagency must consider alternative methods of achieving the purpose of the proposed mle.As provided under § 2006.002(c-l), the alternatives should:

be consistent with the health, safety, and environmental and economic welfare ofthe state;accomplish the objectives of the rule; andminimize adverse impacts on small businesses

An agency must also include in the analysis several proposed methods of reducing theadverse impact of a proposed mle on a small business. The Regulatory FlexibilityAnalysis and Economic Impact Statement can be combined into a single report.

1. Exception for the Public Health, Safety, and Welfare

Under § 2006. 002(c-l), an agency must "consider, if consistent with the health, safety,and environmental and economic welfare of the state, using regulatory methods that willaccomplish the objectives of applicable rules while minimizing adverse impacts on smallbusiness. " An agency is not required to consider alternatives that, while possiblyminimizing adverse impacts on small businesses would not be protective of the health,safety and environmental and economic welfare of the state. 6ne_common. examplewould appear to j5t within this exception. Agencies m.ay be required to adopt as rulesspecific fees or specific standards and procedures under a legislative or federal mandate.In such a situation, the mandated language may be considered per se consistent with thehealth, safety, or environmental and economic welfare of the state and the agency neednot consider other regulatory methods. Other situations may not be as clear, and eachagency should exercise professional discretion and expertise in making thisdetermination. It is reasonable to conclude that this per se exception should be nanxiwlyapplied, and it should only be applied in situations where the governing standard has left

9 Protection of the public health, safety, and welfare is part of the inherent power of a sovereign state. SeeBarshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 633-635 (Tex. 1996);BLACK'S LAW DICTIONARY 1178 (7th ed. 1999).

the agency with no discretion as to the standard to be applied and the method forimplementing the rule.

2. Alternatives Analysis

The kinds of alternatives that are possible will vary based on the particular regulatoryobjective and the characteristics of the regulated industry. Examples of alternatives thatan agency may identify and evaluate include:

Establishment of different compliance or reporting requirements for small entitiesor timetables that take into account the resources available to small entities.Clarification, consolidation, or simplification of compliance and reportingrequirements for small entities,Use of performance rather than design standards.Implementation of different requirements or standards for micro-businesses.Exemption for certain or all small entities from coverage of the mle, in whole orm part.Adopting different standards for the size of businesses.Modifying the types of equipment that are required for large and small entities.The effect of not adopting the proposed regulation, a "no action" alternative.

An agency must include in the analysis several methods of reducing the adverse impactof a proposed rule on a small business. A common meaning of "several" is "more thantwo but fewer than many, " with "many" meaning "a large number of persons or things."

VI. REVIEW AND COMMENT ON THE ECONOMIC IMPACTSTATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

Under § 2006. 002(d), an agency must "include the economic impact statement andregulatory flexibility analysis as part of the notice of the proposed rule that the agencyfiles with the secretary of state for publication in the Texas Register. " Thus, theEconomic Impact Statement and Regulatory Flexibility Analysis should be included inthe preamble for a proposed rule along with other required findings such as the fiscal noteand note on public benefits and costs required under the Administrative Procedure Act(APA), Government Code § 2001.024(a)(4)&(5). 10

Under § 2006. 002(d), an agency must also provide copies of the proposed rule andpreamble to the standing committee of each house of the Legislature that is charged withreviewing the proposed rule. Typically, these will be the legislative committees that haveprimary jurisdiction over the agency or over the area of law or the subject matter underwhich the rule is adopted.

The previous text of § 2006. 002 constituted "any other statement required by law" which must beincluded in the notice of a proposed rule as described under § 2001.024(a)(8) of the APA. Unified Loans,955S. W.2dat651.

While the Economic Impact Statement and Regulatory Flexibility Analysis are notrequired to be included in the preamble for the rule adoption, an agency should respondto any comments received regarding the Economic Impact Statement and RegulatoryFlexibility Analysis as required under the APA, § 2001.029.

VII. QUESTIONS

For further information or a response to any questions that you may have regarding theseguidelines, please contact:

Barbara B, DeaneChief, Administrative Law DivisionOFFICE OF THE ATTORNEY GENERAL512-936-1836512-474-1062 (fax)barbara. deane(a), oaR. state. tx,us

Jeb BoytAssistant Attorney GeneralOFFICE OF THE ATTORNEY GENERAL512-475-4200512-474-1062 (fax)jeb,boyt(S), oaR. state. tx.us

Don Hoyte, Ph.D.Manager, Regional Fiscal AnalysisTEXAS COMPTROLLER OF PUBLIC ACCOUNTS512-475-0446512-475-0363 (fax)don. hovte(%coa. state. tx.us

Mark HughesDirector, Labor Market and Career InformationTEXAS WORKFORCE COMMISSION512-490-4800mark. huehes(%twc. state. tx.us

APPENDIX

§ 2006.002. Adoption of Rules with Adverse Economic Effect

(a) A state agency considering adoption of a rule that would have an adverse economic effect onsmall businesses or micro-businesses shall reduce that effect if doing so is legal attd feasibleconsidering the purpose of the statute under which the rule is to be adopted.

(b) To reduce an adverse effect on small businesses, an agency may:

(1) establish separate compliance or reporting requirements for small businesses;(2) use performance standards in place of design standards for small businesses; or(3) exempt small businesses from all or part of the rule.

(c) Before adopting a rule that may have an adverse economic effect on small businesses, a stateagency shall prepare:

(1) an economic impact statenient that estimates the number of small businesses subjectto the proposed rule, projects the economic impact of the rule on small businesses, and describesalternative methods of achieving the purpose of the proposed rule; and

(2) a regulatory flexibility analysis that includes the agency's consideration of alternativemethods of achieving the purpose of the proposed rule.

(c-l) The analysis under Subsection (c) shall consider, if consistent with the health, safety, andenvironmental and economic welfare of the state, using regulatory methods that will accomplishthe .objectives of applicable rules while minimizing adverse impacts on small businesses. Thestate agency must include in the analysis several proposed methods of reducing the adverseimpact of a proposed rule on a small business.

(d) The agency shall include the economic impact statement and regulatoiy flexibility analysis aspart of the notice of the proposed rule that the agency files with.the secretary of state forpublication in the Texas Register and shall provide copies to the standing committee of eachhouse of the legislature that is charged with reviewing the proposed rule.

(e) This section does not apply to a rule adopted under Title 2, Tax Code. ,

(f) To reduce an adverse effect of rules on micro-businesses, a state agency shall adoptprovisions concerning micro-businesses that are uniform with those outlined in Subsections (b)-(d) for small businesses.

(g) The attorney general, in consultation with the comptroller, shall prepare guidelines to assist astate agency:

(1) in determining a proposed rule's potential adverse economic effects on smallbusinesses; and

(2) in identifying and evaluating alternative methods of achieving the purpose of theproposed rule.

Example Economic Impact Statement and Regulatory Flexibility Analysis

The Board has approximately 5,000 doctor ofchiropractic licensees and 3,000 registered

facilities, and nearly all of these entities are small businesses and many of them are

micro-businesses. The projected economic impact of this rule amendment on these small

businesses will be neutral to positive for licensees and clinics in that licensees will be

able to more effectively use their practice time by delegating approved tasks to qualified

assistants when appropriate. In preparing this proposed rule, the Board considered

several alternative methods for achieving the purposes of this rule amendment. The

Board considered requiring, under proposed subsection (j), that each person performing

treatments sign the patient records, but this was rejected as excessively burdensome

recordkeeping. The Board considered not modifying the standards for "qualified and

properly trained" in proposed subsection (d), but the Board decided that the public

welfare would benefit from clearer standards. The Board considered adopting more

specific standards regarding the required education, training, and skills of personnel, but

the Board decided instead that it would be easier for licensees to implement the general

standards included in the proposed mle under subsection (d).

Sample Statement Regarding the Public Health, Safety, and Welfare

The Agency estimates that there are approximately 7, 500 widget manufacturers in Texas

and that approximately nine out often of these manufacturers are small businesses and

that three out often are micro-businesses. The Agency estimates that the projected

economic impact of this proposed mle will be increased costs of compliance for safety

training and reporting. Under § 2006(c-l), an agency is required to consider alternative

regulatory methods only if the alternative methods would be consistent with the health,

safety, and environmental and economic welfare of the state. The Agency has developed

this proposed rule in accordance with a legislative mandate and in coinpliance with the

requirements of the regulations of the U. S. Environmental Protection Agency.

Consequently, any variance from the federal standards would not be consistent with the

health, safety, and environmental and economic welfare of the state, and no alternative

regulatory methods have been considered.

CIVIL CASE INFORMATION SHEET

CAUSE NUMBER (FOR CLERK USE ONLY): COURT (FOK CLERK USE ONLY):

STYLED CAROL GROTHUES. PH.D.. V TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS(e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter of the Estate of George Jackson)

A civil case infonnation sheet must be completed and subinitted when an original petition or application is filed to initiate a new civil, family law, probate, or mentalhealth case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. Tlie infonnation should be tile best available atdie time of filing.

1. Contact information for person completing case information sheet: Names of parties in case: Person or entity completing sheet is:

Name:Jennifer M. Andrews

Address:

306 West 7"' Street. Suite 405

City/State/Zip:Fort Worth. Texas 76102

Signature:

/s/ Jennifer M. Andrews

Email:

iandrews(%namanhowell. com

Telqihone:817-509-2042

Fax:814-509-2060

State Bar No:01243010

Plaintiff(s)/Petitioner(s):

Carol Grothues. M. D.

ElAllorney for Plaintifl7PetitionerDP/-O Se Plaintiff/PetitionerDTitle IV-D AgencyQOther:

Defendant(s)/Respondent(s):

Texas State Board of Examiners

of Psychologists

Additional Parties in Child Support Case:

Custodial Parent:

Non-Custodial Parent:

Presumed Father:

[Attach additional page as necessary to list all parties]

2. Indicate case hpe, or identify the most important issue in the case (select only I):

Civil Family Law

Contract Injury or Damage Real Property Marriage RelatioiishipPost-judgment Actions

(non-Title IV-D)Dcbt/Coiilnicl

QConsumer/DTPADDebt'ContractD Fraud/MisrepresentationQoiher Debt/Contract:

l-'orerlosiire

[_] Home Equity-ExpeditedDOlher Foreclosure

QFranchiseD Insurancen Landlord/Tenant1iNon-CompetitionD PartnershipQOther Contract:

QAssault/Baltei-yDConslructionDDefainationMalpractice

D AccountingD LegalD MedicalDOtlier Professional

Liability:DMotor Vehicle AccidentDPreinisesI'rwiurl Liability

DAsbestos/SilicaDdlier Product Liability

List Product:

QEininent Domain/Condemnation

D PartitionD Quiet TitleD Trespass to Try TitleQOther Property:

ilAnnulmentQDcclare Marriage VoidDivorce

Dwith ChildrenDNO Children

f1 EnforcementQModification-CustodyD M odi fication-Other

Title IV-DD Enlbreement/ModificationD PaternityDReciprocals (UIFSA)D Support Order

Related to Criminal

Matters

QOlher Injury or Damage:

QExpunctionQjudgmcnt NisiIiNon-DisclosureQSci/ure/ForfeitureD Writ of Habeas Corpus-

Pre-indictment

DOlher:

Other Family LawQ En force Foreign

JudgmentD Habeas CorpusDName ChangeD Protective OrderQReinoval of Disabilities

ol'MinorityDOther:

Parcnt-Child Relationship

Employment Other Civil

QDiscriminationa RetaliationQTerminationQWorkers' CompensationQOther Employment:

QAdniinistrative AppealQAntiti-ust/Unfair

CoiiipetitionDCode ViolationsD Foreign JudgmentD Intellectual Propeily

D Lawyer DisciplineQ Perpetuate TestimonyQSccurities/StockQTortious Interference^Other: Declarator/Judgment and TRO

Q Adoption'Adoption withTcniiination

Ddiild ProtectionDchild SupportQCustody or VisitationDGcstational ParentingQd'andparent AccessD Paternity/ParentageDTennination of Parental

RightsQOther Parent-Child:

Tax Probate & Mental HealthQTax AppraisalQTax DelinquencyDOther Tax

Probate/Wilts/Intestate Administration

QDependent AdministrationDlndependent AdministrationQOther Estate Proceedings

LJGuardianship-AdultQCuardianship-MinorDMental HealthDOther:

3. Indicate procedure or remedy, if applicable (may select more than I):

QAppeal from Municipal or Justice CourtDArbitration-relatedD AttachmentDBill of ReviewQCertiorariDdass Action

13 Declaratory JudgmentD GarnishmentQlnierpleaderD LicenseQMandamusDPost-judgment

LJPi'cJudgment RemedyDProlective OrderD ReceiverQSequcstration^Temporary Restraining Order/lnjunctionDTumover

4. Indicate damages sought (do no select if it is a family law case):I, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorneys fees

^ Less than $100,000 and non-monetary reliefDOver $100,000 but not more than $200, 000DOver $200,000 but not more than $1,000,000Dover $1,000, 000

Rev 2, 13

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