Untitled Texas Attorney General Opinion ( 2011 )

GREG
o
ATTORNEY GENERAL OF TEXAS
ABBOTT
December 15, 2011
Tim F. Branaman, Ph.D. Opinion No. GA-0897
Chair, Texas State Board of Examiners
of Psychologists Re: Whether the use of the term "Nationally
333 Guadalupe, Suite 2-450 Certified School Psychologist" by a Licensed
Austin, Texas 78701 Specialist in School Psychology is a violation of the
Psychologists' Licensing Act (RQ-0947-GA)
Dear Dr. Branaman:
On behalf of the Texas State Board of Examiners of Psychologists (the "Board"), you ask
whether a Licensed Specialist in School Psychology who uses the term "Nationally Certified School
Psychologist" violates the Psychologists' Licensing Act (the "Act") because the term includes the
word "psychologist,,,1 which Texas law defines as being limited to persons holding a doctorate in
that field. See TEX. Oee. CODE ANN. §§ 501.002(5), .252(b)(2) (West 2004).
The Act, chapter 501 of the Occupations Code, governs the practice of psychology. Id.
§§ 501.001 (short title), .251 (generally prohibiting an unlicensed person from engaging in
or representing that the person is engaged in the practice of psychology). See generally id.
§§ 501.001-.505 (West 2004 & Supp. 2011) (chapter 501). The Act defines "psychologist" as "a
person who holds a license to engage in the practice of psychology issued under Section 501.252,"
and section 501.252 requires a candidate for such a licensee to obtain a doctoral degree. Id.
§§ 501.002(5), .252(b)(2) (West 2004). The Act defines a "Licensed Specialist in School
Psychology" ("LSSP") as "a person who holds a license to engage in the practice of psychology
under Section 501.260." Id. § 501.002(2). Section 501.260 requires the Board to establish, among
other things, the graduate degree requirements that must be satisfied to obtain an LSSP license. Id.
§ 501.260(b). An LSSP license "constitutes the appropriate credential for a person who provides
psychological services as required by Section 21.003(b), Education Code." Id. § 501.260(a). The
referenced section of the Education Code provides that a person must be appropriately licensed
to "be employed by a school district as [a] ... school psychologist[.]" TEX. EDUC. CODE ANN.
§ 21.003(b) (West SUpp. 2011).
I See Letter from Tim F. Branaman, Ph.D, Chair, Tex. State Bd. ofExam'rs of Psychologists, to Honorable Greg
Abbott, Attorney General of Texas at 1 (Feb. 18, 2011), https:llwww.oag.state.tx.us/opin/index_rq.shtml ("Request
Letter").
Tim F. Branaman, Ph.D. - Page 2 (GA-0897)
The National Association of School Psychologists bestows on persons who have met the
association's educational and professional practice standards a "Nationally Certified School
Psychologist" ("NCSP") credentia1. 2 Texas Board rules for licensing a candidate as an LSSP
provide that a currently valid NCSP certification satisfies the rule's training and internship
requirements, and the rules require a candidate to "obtain at least the current cut-off [examination]
score for the NCSP before applying for the licensed specialist in school psychology." 22 TEX.
ADMJN. CODE § 463.9(b), (e) (2011) (Tex. State Bd. Of Exam'rs of Psychologists, Licensed
Specialist in School Psychology).3 Nevertheless, because the NCSP credential contains the word
"psychologist," you wish to know whether a board rule promulgated to allow "the use of the
professional descriptor 'Nationally Certified School Psychologist' by a person who holds the LSSP
license [would violate] the Act's provision for use of the term "psychologist" under [section]
501.002(5)." Request Letter at 2.4
Section 501.002(5) defines the word "psychologist," but does not address its use by licensees.
TEX. OCC.CODEANN. § 501.002(5) (West 2004). Consequently, we examine other pertinent statutes
to determine if the Act prohibits an LSSP from using NCSP as a "professional descriptor." Under
the Act, representations "to the public by a title or description of services that includes the word
'psychological,' 'psychologist,' or 'psychology'" constitute the practice of psychology, and the
Act prohibits a person from "engag[ing] in or represent[ing] that the person is engaged in
the practice of psychology unless the person is licensed under this chapter or exempt." /d.
§§ 501.003(b)(l), .251 (emphasis added). Neither statute addresses the use of credentials by an
LSSP who, by definition, is licensed to engage in the practice of school psychology under the
chapter. Id. § 501.002(2) (citing section 501.260).
The grounds for disciplinary action stated in section 501.401 include a licensee's violation
of the chapter or a board rule, "fraud or deceit in connection with services provided as a
psychologist," and representations that a person is licensed to engage in psychology when that is not
the case. Id. § 501.401(1), (4)-(5). The statute does not specifically address a licensee's use of
credentials.
The Board is authorized to restrict advertising and competitive bidding, limited to rules
that "prohibit false, misleading, or deceptive practices" by a person regulated by the Board. Id.
§ 501. 156(a). However, in light of the statutes' own use of the term "school psychologist" and the
prominent role that NCSP credentialing plays in board requirements for licensing a person as an
2See National Association of School Psychologists, "Standards for the Credentialing of School Psychologists"
(2010), http:///www.nasponline.org/standards!201 Ostandards!2_Credentialing_Standards. pfd.
3The Board is required to establish licensing standards for an LSSP, which must include "rules of practice for
an [LSSP that] comply with nationally recognized standards for the practice of school psychology." TEX. OCC. CODE
ANN. § 501.260(c) (West 2004).
4Although you inform us that a particular rule has been proposed, the question you pose is general, and
accordingly, we do not address the specific terms of the proposed rule.
Tim F. Branaman, Ph.D. - Page 3 (GA-0897)
LSSP, a court would likely find that an LSSP's use of a valid NCSP credential is neither false nor
inherently misleading or deceptive-provided the credentialed professional's practice is limited to
the field authorized by law, school psychology. Cf Ibanez v. Fla. Dep 't ofBus. & Prof' I Regulation,
512 U.S. 136, 145-46 (1994) (attorney's truthful use of designation "Certified Financial Planner,"
as authorized by a private professional organization, was neither false nor inherently deceptive); Peel
v. Attorney Registration & Disciplinary Comm'n of Ill., 496 U.S. 91, 110-11 (1990) (Stevens, J.,
plurality) (concluding that letterhead statement that attorney was certified as a civil trial specialist
by the National Board of Trial Advocacy was neither actually nor inherently misleading); Abramson
v. Gonzalez, 949 F.2d 1567, 1577 (11th Cir. 1992) (truthful statement that person is a psychologist
is not inherently misleading).5
In sum, no provision of the Act prohibits an LSSP from truthfully using the NCSP
certification as a professional descriptor. Consequently, a Board rule that allows such use would not,
by virtue of that fact, violate the Act.
5Moreover, if chapter 501 were construed as flatly prohibiting the truthful use of the NCSP certification, such
a construction could pose First Amendment issues. Abramson, 949 F.2d at 1577 (statements about a person's occupation
that are neither false nor inherently misleading may be regulated but not prohibited entirely). If possible, a court will
give a statute a construction that will "avoid raising doubts of its constitutionality." St. Martin Evangelical Lutheran
Church v. S. D., 451 U.S. 772, 780 (1981).
Tim F. Branaman, Ph.D. - Page 4 (GA-0897)
SUMMARY
The Psychologists' Licensing Act does not prohibit a Licensed
Specialist in School Psychology who has obtained the necessary
credentials from the appropriate accrediting organization from using
the term "Nationally Certified School Psychologist" as a professional
descriptor. A rule by the Board of Examiners of Psychologists that
would allow such use would not by virtue of that fact violate the Act.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee