McDonald, Mackay and White, LLP

Texas Board of Examiners of Psychology
Investigations and Disciplinary Actions

By law there are currently nine members of the Board, six are licensed psychologists and three are public members.

Investigations

Board can be aggressive in its investigations and there is a chance of having restrictions placed on one’s license, if you do not take the process seriously. It is crucial for psychologists to understand the Board’s role and the process that a psychologist undergoes if he/she is under investigation.

The investigation portion of the disciplinary process with the Board starts when the psychologist is notified of the investigation by mail, unless doing so would jeopardize the Board's investigation. The Board “fast tracks” cases with allegations of sexual misconduct or imminent patient harm. This letter informs the psychologist that he/she has an opportunity to respond to the allegations within thirty days and that they can be represented by an attorney. This initial response to the Board is critically important. It will set the tone for the investigation. More importantly, if done well with supporting information, it could lead to an earlier conclusion to the investigation.

The Board’s investigator will request various records pertaining to the allegations, such as medical records, witness statements, and other information related to the investigation. Occasionally, the Board investigator will go in person to the psychologist’s practice. Once the psychologist has responded and the investigator has obtained all pertinent information, the investigator makes a recommendation regarding the allegations and what the evidence has shown. The information obtained by the investigator is presented to senior staff and an ultimate decision is made regarding the disposition of the case. The case may be dismissed, or the case is set for an Informal Conference.

Informal Settlement Conference

While this proceeding is called an “Informal” Conference, it is not an informal proceeding. The informal means the rules of procedure and evidence do not apply. At the Informal Conference, the allegations and evidence are presented to Board members and those members then ask questions of the psychologist. The psychologist and his/her attorney are allowed to provide evidence and other mitigating information for the members to take into consideration. After all the information is presented and questions are asked, the members convene separately and discuss the information presented during the Informal Conference. The psychologist is then called back into the meeting room and the Board presents their decision. The psychologist knows the recommendation prior to leaving the Board’s offices. The recommendations can be a dismissal, or a proposed Agreed Order or the case is referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings [SOAH].

Agreed Orders

If the evidence shows a violation of the Licensing Act or the Board’s rules and regulations, the Board may propose a settlement offer in the form of a proposed Agreed Order. The Agreed Order will state the allegations against the psychologist, the sections of the law that have been violated and the restrictions being placed on the individual’s license. The restrictions can be varied and may include educational courses, job restrictions, a fine, employer notifications, supervision requirements, counseling requirements, practice restrictions and other actions deemed necessary. If there are any mitigating factors in the psychologist’s case, the severity of the restrictions may be decreased. The length of the Agreed Order can vary depending on individual circumstances. Agreed Order can be negotiated.

If the psychologist agrees with the proposed Agreed Order, the psychologist signs the order and the Order is presented to the Board for ratification. The Board may either ratify the Order as is, or suggest a modification, or reject the Order. If the Order is accepted by the Board, a final copy of the signed Order is mailed to the psychologist and to the psychologist’s attorney. The disciplinary action is entered onto the Board’s website and printed in the quarterly newsletter. It is also given to national data banks. All of the Board’s disciplinary actions are public information and become a permanent part of the psychologist’s license, which means that even when the stipulations are completed and the psychologist’s license becomes “clear”, the psychologist will always have a disciplinary action record.

SOAH Hearings

The hearing process begins with the filing of Formal Charges with SOAH and sets a hearing date. Hearings are similar to trials except that the proceeding is before an Administrative Law Judge instead of a judge/jury and some of the evidence and procedural rules are different. The Board has the burden to prove the allegations against the psychologist and the psychologist is allowed to present his/her side of the case. After the completion of the hearing, the Judge will issue his or her proposal for decision, which contains findings of fact and conclusions of law and recommended actions. This proposal for decision is presented to the Board and the Board either accepts the Judge’s recommendations or the Board rejects all or part of the Judge’s recommendations and substitutes their own, in limited circumstances. The recommendations may be a dismissal, or proposed restrictions on the psychologist’s license, a suspension of the psychologist’s license, or a revocation of the psychologist’s license. If a psychologist disagrees with either the SOAH Judge or the Board’s substituted Order, the psychologist may appeal the process to District Court.

This can be a timely and burdensome process. It is wise to be prepared and assistance of an attorney knowledgeable in this process to help you navigate these difficult processes preserves your rights and protects your livelihood.