Can a Texas school psychologist use the 'Nationally Certified School Psychologist' title?

Plain-English summary

Texas reserves the word "psychologist" for people who hold a doctorate and a full psychology license. A separate, lesser license, the Licensed Specialist in School Psychology (LSSP), lets a person provide psychological services in the public schools without that doctorate. The Texas State Board of Examiners of Psychologists, through its chair Tim Branaman, asked whether an LSSP who advertises the "Nationally Certified School Psychologist" (NCSP) credential breaks the Psychologists' Licensing Act, since the NCSP label contains the word "psychologist."

The National Association of School Psychologists awards the NCSP credential to people who meet its education and practice standards. The Texas Board's own licensing rules lean on that credential: a currently valid NCSP certification satisfies the Board's training and internship requirements, and a candidate has to hit the NCSP examination cut-off score before applying for an LSSP license.

The opinion worked through the Act and found nothing that bars an LSSP from using the NCSP title truthfully. The statute that defines "psychologist" only defines the word; it does not regulate how a licensee may describe themselves. The provisions on the practice of psychology and on disciplinary grounds do not speak to credential use either. The Board can prohibit "false, misleading, or deceptive" advertising, but the opinion reasoned that because Texas law itself uses the phrase "school psychologist" and the NCSP credential is built into the Board's own licensing standards, a court would likely find an LSSP's truthful use of a valid NCSP credential neither false nor inherently misleading, so long as the person's practice stays within school psychology. The opinion drew on U.S. Supreme Court and federal cases holding that truthful use of a credential awarded by a private professional organization is not inherently deceptive, and noted that reading the Act to flatly ban the truthful use could raise First Amendment problems. The bottom line: the Act does not prohibit the truthful use, and a Board rule allowing it would not, by that fact alone, violate the Act.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Board of Examiners of Psychologists (as the opinion held for them): The opinion told the Board that the Act did not stand in the way of a rule letting an LSSP use the NCSP credential as a professional descriptor, because the truthful use is not what the Act treats as prohibited representation.

Licensed Specialists in School Psychology (as the opinion described it): The opinion treated an LSSP's truthful use of a valid NCSP credential as permissible, provided the person's practice stayed within the field the LSSP license authorizes, school psychology.

On the limits (as the opinion described it): The opinion rested on the use being truthful and the practice being confined to school psychology. It did not bless any use of the term that strayed beyond what the credential and the LSSP license cover, and it flagged that a flat statutory ban on truthful use could raise First Amendment issues.

Common questions

Does a Texas LSSP break the law by calling themselves a "Nationally Certified School Psychologist"?
According to the opinion, no. The Psychologists' Licensing Act does not prohibit an LSSP from truthfully using a valid NCSP credential as a professional descriptor.

Doesn't Texas limit the word "psychologist" to doctorate holders?
The bare title "psychologist" is tied to the doctoral-level license, but the opinion explained that the statute defining the word only defines it; it does not bar an LSSP from using a credential, like NCSP, that includes the word, especially when the Board's own rules build the NCSP credential into LSSP licensing.

Could the Board pass a rule allowing the NCSP title?
The opinion concluded that a Board rule permitting the truthful use would not, by virtue of that fact, violate the Act.

What if the use were misleading?
The Board retains authority to prohibit false, misleading, or deceptive practices. The opinion's conclusion turned on the use being truthful and the practitioner staying within school psychology.

Background and statutory framework

The Psychologists' Licensing Act is chapter 501 of the Occupations Code. Tex. Occ. Code Ann. §§ 501.001-.505 (West 2004 & Supp. 2011). It defines "psychologist" as a person licensed under section 501.252, which requires a doctoral degree, id. §§ 501.002(5), .252(b)(2) (West 2004), and separately defines a "Licensed Specialist in School Psychology" as a person licensed under section 501.260, id. § 501.002(2). Section 501.260 directs the Board to set the graduate-degree and practice standards for an LSSP, and an LSSP license is the appropriate credential for providing psychological services in the public schools under Education Code section 21.003(b). Id. § 501.260; Tex. Educ. Code Ann. § 21.003(b) (West Supp. 2011). The Board's rules make a valid NCSP certification satisfy LSSP training and internship requirements and require the NCSP examination cut-off score. 22 Tex. Admin. Code § 463.9(b), (e) (2011).

The opinion examined the provisions on the practice of psychology and prohibited representations, Tex. Occ. Code Ann. §§ 501.003(b)(1), .251, the disciplinary grounds, id. § 501.401(1), (4)-(5), and the Board's advertising authority limited to false, misleading, or deceptive practices, id. § 501.156(a). Reading those together, and drawing on Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 145-46 (1994), Peel v. Attorney Registration & Disciplinary Comm'n of Ill., 496 U.S. 91, 110-11 (1990), and Abramson v. Gonzalez, 949 F.2d 1567, 1577 (11th Cir. 1992), the opinion concluded the truthful use was not inherently misleading and that a contrary reading could raise constitutional doubts a court would avoid, St. Martin Evangelical Lutheran Church v. S.D., 451 U.S. 772, 780 (1981).

Citations

Cases:

• Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 145-46 (1994)
• Peel v. Attorney Registration & Disciplinary Comm'n of Ill., 496 U.S. 91, 110-11 (1990)
• Abramson v. Gonzalez, 949 F.2d 1567, 1577 (11th Cir. 1992)
• St. Martin Evangelical Lutheran Church v. S.D., 451 U.S. 772, 780 (1981)

Statutes:

• Tex. Occ. Code Ann. §§ 501.002(5), .252(b)(2) (West 2004)
• Tex. Occ. Code Ann. §§ 501.001-.505 (West 2004 & Supp. 2011)
• Tex. Occ. Code Ann. § 501.002(2)
• Tex. Occ. Code Ann. § 501.260
• Tex. Educ. Code Ann. § 21.003(b) (West Supp. 2011)
• 22 Tex. Admin. Code § 463.9(b), (e) (2011)
• Tex. Occ. Code Ann. §§ 501.003(b)(1), .251
• Tex. Occ. Code Ann. § 501.401(1), (4)-(5)
• Tex. Occ. Code Ann. § 501.156(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0897
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0897.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG 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. OCC. 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 license 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).

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") credential.[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. ADMIN. 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. CODE ANN. § 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." Id. §§ 501.003(b)(1), .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 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 of Bus. & Prof'l 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.

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

[1] See Letter from Tim F. Branaman, Ph.D, Chair, Tex. State Bd. of Exam'rs of Psychologists, to Honorable Greg Abbott, Attorney General of Texas at 1 (Feb. 18, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] See National Association of School Psychologists, "Standards for the Credentialing of School Psychologists" (2010), http://www.nasponline.org/standards/2010standards/2_Credentialing_Standards.pdf.

[3] The 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).

[4] Although 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.

[5] Moreover, 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).