Can a Texas psychologist bill an insurer under their own name when a supervisee actually did the testing, without saying so on the bill?

Plain-English summary

The Chair of the Texas State Board of Examiners of Psychologists asked the AG to sort out a tension between a statute and one of the Board's own rules. Under Occupations Code section 501.351, a licensed psychologist may delegate certain tests and services to a supervisee. Subsection (b) says the delegating psychologist stays responsible and that the test or service "is considered to be delivered by the delegating psychologist for billing purposes, including bills submitted to third-party payors," while also requiring the supervisee to tell each patient that they are being supervised. The Board's rule, though, told licensees to identify to third-party payers the person who actually provided the services. The Chair wanted to know which controls, and whether billing under the psychologist's name without naming the supervisee could be insurance fraud under Chapter 35 of the Penal Code.

The AG read the statute's plain language as deciding the billing question. Section 501.351(b) treats the delegated service as delivered by the supervising psychologist for billing, and the AG contrasted that with neighboring provisions where the Legislature did require disclosure (to patients, and against representing to the public that the supervisee can practice). Because the Legislature drew that line, the AG concluded a court would likely read the statute to let a psychologist bill a third-party payer under their own name without indicating a supervisee did the work. Whether that is good policy, the opinion said, is for the Legislature.

On the Board's rule, the AG applied the principle that an administrative rule cannot impose burdens beyond the statute it implements. Since the statute does not require identifying the supervisee on the bill, the rule's demand to name "the person(s) who actually provided the services" adds a condition the statute does not, so a court would likely find the rule inconsistent with section 501.351(b). On the fraud question, the AG noted that Penal Code section 35.02 requires intent to defraud and a statement the person knows is false or misleading. A bill filed in compliance with section 501.351(b) cannot be that false or misleading statement, so it cannot be the sole basis for a section 35.02 violation. The AG expressly declined to go further, saying whether other facts could amount to fraud is a fact question outside the scope of an AG opinion.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG 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 State Board of Examiners of Psychologists (which requested the opinion): The opinion told the Board two things. First, on the AG's reading, section 501.351(b) let a psychologist bill third-party payers under their own name without naming the supervisee. Second, the Board's own rule requiring that the bill identify who actually performed the service was likely inconsistent with the statute because it added a burden the statute did not impose.

Licensed psychologists and their supervisees (as the opinion described them): The opinion treated a delegated test or service as billed in the delegating psychologist's name under section 501.351(b), while keeping the separate statutory duty that the supervisee tell each patient they are being supervised. It did not address every billing scenario; it spoke to the general statutes the Chair cited.

Insurers and anyone weighing a fraud theory (as the opinion described them): The opinion concluded that a bill made in compliance with section 501.351(b) cannot itself be the false or misleading statement that Penal Code section 35.02 requires, so it cannot be the sole basis for that offense. The AG declined to say whether other, fact-specific circumstances could cross into fraud.

Common questions

What does Occupations Code section 501.351(b) actually say about billing?
It says a test or service delegated to a supervisee "is considered to be delivered by the delegating psychologist for billing purposes, including bills submitted to third-party payors." It also requires the supervisee to inform each patient that they are being supervised by a licensed psychologist.

So does the bill have to name the supervisee?
Not under the statute, on the AG's reading. The Legislature required disclosure to patients but treated third-party payers differently, so a court would likely read section 501.351(b) to allow billing under the psychologist's name without identifying the supervisee.

What about the Board's rule that says to identify who provided the service?
The AG concluded that rule is likely inconsistent with the statute. An administrative rule cannot impose conditions beyond the statute it implements, and the statute does not require naming the supervisee on the bill, so the rule's added requirement likely cannot stand.

Could billing this way be insurance fraud?
Penal Code section 35.02 requires intent to defraud and a statement the person knows is false or misleading. A bill that complies with section 501.351(b) is not false or misleading, so it cannot be the sole basis for that offense. The AG said whether other specific facts could amount to fraud is a fact question beyond an AG opinion.

Background and statutory framework

Chapter 501 of the Occupations Code regulates the practice of psychology (Tex. Occ. Code §§ 501.001-.505), requiring a license to practice (id. § 501.251) and providing for psychologist, provisional, and temporary licenses (id. §§ 501.252, 501.253, 501.263). A provisional licensee may practice under a psychologist's supervision to meet licensing requirements (id. § 501.253(b)). Section 501.351 lets a psychologist delegate certain tests and services (id. § 501.351(a)), bars the supervisee from representing to the public that they may practice psychology (id. § 501.351(a)(2)), and in subsection (b) makes the delegated service billable as the supervising psychologist's while requiring patient disclosure. A related provision says the supervisee is not engaged in the independent practice of psychology (id. § 501.352). The opinion read the statute under the plain-meaning approach of Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013), and left policy judgments to the Legislature, citing State Bd. of Ins. v. Betts, 315 S.W.2d 279, 281 (Tex. 1958) and Smith v. Nelson, 53 S.W.3d 792, 796 (Tex. App.-Austin 2001, pet. denied).

On the rule, the opinion applied the test that a rule must harmonize with the statute's objectives and may not add burdens beyond it, citing Gerst v. Oak Cliff Savs. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968) and Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm'n, 452 S.W.3d 479, 486 (Tex. App.-Austin 2014, pet. dism'd). The Chair had pointed to the Board's rule at 22 Tex. Admin. Code § 465.15(a)(5), and the opinion quoted the operative language at 22 Tex. Admin. Code § 465.15(a)(4). The AG cautioned that its conclusion rested on the general statutes cited and that a more specific statute would control under Tex. Gov't Code § 311.026, noting for example the Medicaid-related offenses in Tex. Hum. Res. Code § 36.002. On the fraud question it parsed Penal Code section 35.02(a) and (b) and declined the fact-bound piece, citing Tex. Att'y Gen. Op. Nos. GA-0956 (2012) and JC-0256 (2000). The opinion also flagged that Occupations Code section 105.002(a)(2), on unprofessional conduct, likely came out the same way.

Citations

Cases:

• Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013)
• State Bd. of Ins. v. Betts, 315 S.W.2d 279, 281 (Tex. 1958)
• Smith v. Nelson, 53 S.W.3d 792, 796 (Tex. App.-Austin 2001, pet. denied)
• Gerst v. Oak Cliff Savs. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968)
• Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm'n, 452 S.W.3d 479, 486 (Tex. App.-Austin 2014, pet. dism'd)

Statutes and rules:

• Tex. Occ. Code §§ 501.001-.505, 501.251, 501.252, 501.253, 501.263, 501.351, 501.352, 105.002(a)(2)
• 22 Tex. Admin. Code § 465.15(a)(4), (a)(5)
• Tex. Penal Code § 35.02
• Tex. Gov't Code § 311.026
• Tex. Hum. Res. Code § 36.002

Prior AG opinions:

• Tex. Att'y Gen. LO-96-147 (1996)
• Tex. Att'y Gen. Op. Nos. GA-0956 (2012), JC-0256 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0198
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0198.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 14, 2018

Tim F. Branaman, Ph.D. Opinion No. KP-0198
Chair, Texas State Board of Examiners
of Psychologists Re: Whether a licensed psychologist may
333 Guadalupe, Suite 2-450 submit a bill to a third-party payer under the
Austin, Texas 78701 licensed psychologist's name without indicating
that the psychological services rendered were
provided by a supervisee (RQ-0193-KP)

Dear Dr. Branaman:

    You seek an opinion on the interplay between section 501.351(b) of the Occupations Code and the rule in title 22, section 465.15(a)(5), of the Texas Administrative Code. [1] You ask whether a licensed psychologist who delegates the administration of a test or service to a supervisee "may submit a bill or invoice to a third-party payer pursuant to Section 501.351(b) under the licensed psychologist's own name, without indicating that the psychological services were provided by a supervisee." [2] Request Letter at 1. You are concerned that such a practice "may constitute a violation of Chapter 35 of the Penal Code." Id.

    Chapter 501 of the Occupations Code regulates the practice of psychology. See TEX. OCC. CODE §§ 501.001-.505. Chapter 501 requires a person engaged in the practice of psychology to be licensed as a psychologist. See id. § 501.251; see also id. § 501.252 (providing for psychologist license). Chapter 501 also provides for a provisional license and a temporary license. Id. §§ 501.253 (providing for a provisional license), 501.263 (providing for a temporary license). A provisional licensee may practice psychology "under the supervision of a psychologist to meet the requirements for issuance" of a psychologist license. Id. § 501.253(b). Section 501.351 authorizes a psychologist to delegate the performance of certain tests and services to specific individuals. Id. § 501.351(a). [3] Subsection (b), about which you ask, states that the

             delegating psychologist remains responsible for the psychological test or service performed by the person to whom the test or service is delegated, and the test or service is considered to be delivered by the delegating psychologist for billing purposes, including bills submitted to third-party payors. The person must inform each patient on whom the test or service is performed that the person is being supervised by a licensed psychologist.

Id. § 501.351(b) (emphasis added).

    Like the courts, when construing a statute our "chief objective is effectuating the Legislature's intent, and ordinarily, the truest manifestation of what lawmakers intended is what they enacted. This voted-on language is what constitutes the law, and when a statute's words are unambiguous and yield but one interpretation, the judge's inquiry is at an end." Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013) (quotation marks omitted).

    Section 501.351(b)'s plain language provides that the delegated test or service "is considered to be delivered by the delegating psychologist for billing purposes, including bills submitted to third-party payers." TEX. OCC. CODE § 501.351(b); see also id. § 501.352 (providing that a "person to whom a psychologist delegates a psychological test or service ... is not considered to be engaged in the independent practice of psychology"). This authorization is readily distinguishable from other aspects of section 501.351 in which the Legislature provided that the performance of a test or service by a supervisee must be disclosed. Subsection 501.351(a)(2) requires that a person to whom the test or service has been delegated "does not represent to the public that the person is authorized to practice psychology." Id. § 501.351(a)(2). Subsection 501.351(b) requires that the person delegated to perform the test or service must "inform each patient on whom the test or service is performed that the person is being supervised by a licensed psychologist." Id. § 501.351(b). In these contrasting provisions the Legislature demonstrated its intent to treat third-party payers differently than psychology patients and the public. Given that intent, a court would likely construe subsection 501.351(b) to permit a licensed psychologist to submit a bill to a third-party payer under the licensed psychologist's name without indicating that a supervisee provided the psychological services. [4] Whether a provision such as 501.351(b) constitutes good policy is for the Legislature to determine. See State Bd. of Ins. v. Betts, 315 S.W.2d 279, 281 (Tex. 1958) ("Courts have no concern with the wisdom of legislative acts, but it is our plain duty to give effect to the stated purpose or plan of the Legislature, although to us it may seem ill advised or impracticable."); Smith v. Nelson, 53 S.W.3d 792, 796 (Tex. App.-Austin 2001, pet. denied) (stating that courts "do not sit to assess the wisdom or desirability of the legislative act").

    You direct us to the Board of Examiners of Psychologists' rule related to this provision. See Request Letter at 1. The rule requires that "[i]n reporting their services to third-party payers, licensees accurately reflect the nature, date and fees for the services provided, and the identity of the person(s) who actually provided the services." 22 TEX. ADMIN. CODE § 465.15(a)(4) (Tex. State Bd. of Exam'rs of Psychologists, Fees and Financial Arrangements). The determining factor in analyzing whether a "particular administrative agency has exceeded its rule-making powers is that the rule's provisions must be in harmony with the general objectives of the Act involved." Gerst v. Oak Cliff Savs. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968). "[A]n administrative rule ... must not impose additional burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions." Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm'n, 452 S.W.3d 479, 486 (Tex. App.-Austin 2014, pet. dism'd). The rule requires a licensee to identify to third-party payers "the person(s) who actually provided the services." 22 TEX. ADMIN. CODE § 465.15(a)(4). When a supervisee actually provided the services, the rule imposes an additional burden or condition in excess of the statutory requirement, which does not require the identification of the supervisee who conducted the delegated test or service. Accordingly, a court would likely determine this rule is inconsistent with subsection 501.351(b).

    You tell us that because insurance companies routinely reimburse supervisees at a lesser rate than a licensed psychologist, the "insurance companies will most likely pay more on those claims than they otherwise would have if the identity of the actual provider had been disclosed." Request Letter at 2. For this reason, you ask about section 35.02 of the Penal Code. Section 35.02 sets out the offense of insurance fraud and provides that

           [a] person commits an offense if, with the intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:

               (1) prepares or causes to be prepared a statement that:

                    (A) the person knows contains false or misleading material information; and

                    (B) is presented to an insurer; or

               (2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

TEX. PENAL CODE § 35.02(a); see also id. § 35.02(b) (stating that "[a] person commits an offense if, with the intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services for which a claim for payment is submitted under an insurance policy"). The language of Penal Code section 35.02 is broad but it requires a specific mens rea or mental state: that a person have the "intent to defraud or deceive an insurer." Id. § 35.02(a), (b). It also requires a statement that the person knows contains false or misleading material information. See id. § 35.02(a). Yet, the plain language of Occupations Code section 501.351(b) permits the filing of a bill to third-party payers that treats the test or service to have been delivered by the supervising psychologist. See TEX. OCC. CODE § 501.351(b). Thus, a billing statement made in compliance with Occupations Code section 501.351(b) cannot be one of false or misleading material information and cannot serve as the sole basis for a violation of Penal Code section 35.02. [5] Whether in other particular circumstances the filing of a bill or invoice to a third-party payer could violate Penal Code section 35.02 will depend on specific facts and is beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3; see also Tex. Att'y Gen. Op. No. JC-0256 (2000) at 3 ("[w]hether a person has committed a crime in any particular circumstance is a question of fact that cannot be resolved in an attorney general opinion").

                                   SUMMARY

                   Section 501.351(b) of the Occupations Code expressly provides that a test or service delegated to a supervisee by a licensed psychologist "is considered to be delivered by the delegating psychologist for billing purposes, including bills submitted to third-party payers." With such plain indication of the Legislature's intent, a court would likely construe the provision to permit a licensed psychologist to submit a bill to a third-party payer under the licensed psychologist's name without indicating that the psychological services rendered were provided by a supervisee. The wisdom of such a provision is for the Legislature to determine.

                   The Board of Examiners of Psychologists' administrative rule requiring indication that the test or service was rendered by a supervisee is likely inconsistent with the statute.

                  Section 35.02 of the Penal Code sets out the offense of insurance fraud and requires, in part, a statement the person knows contains false or misleading material information. A billing statement, made in compliance with Occupations Code section 501.351(b), cannot be one of false or misleading material information and cannot serve as the sole basis for a violation of Penal Code section 35.02. Whether in particular other circumstances the filing of a bill or invoice to a third-party payer could violate Penal Code section 35.02 will depend on specific facts and is beyond the purview of an attorney general opinion.

                                          Very truly yours,

                                          KEN PAXTON
                                          Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Letter from Tim F. Branaman, Ph.D., Chair, Tex. State Bd. of Exam'rs of Psychologists, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 9, 2017), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You tell us you do not seek an opinion on federal law or the Texas Medicaid program because the "Medicaid Provider Procedure Manual provides reasonable guidance on third-party billing." Request Letter at 3.

[3] Prior to section 501.351's enactment, a 1996 Attorney General Letter Opinion determined that the statute then governing psychologists did not permit a rule authorizing a psychologist to delegate psychological services to a non-licensed individual. See Tex. Att'y Gen. LO-96-147 (1996) at 1.

[4] Our conclusion is based upon the general scope of the statutes you cited. If a specific statute applies to the services provided, the requirements of the specific statute must be followed. TEX. GOV'T CODE § 311.026 (providing that a specific statute prevails over a conflicting general statute). See, e.g., TEX. HUM. RES. CODE § 36.002 (enumerating unlawful acts related to Medicaid program).

[5] The same is likely true of Occupations Code chapter 105, governing unprofessional conduct by a health care provider. See Supplemental Letter from Tim F. Branaman, Ph.D., Chair, Tex. State Bd. of Exam'rs of Psychologists, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 2, 2018) (raising chapter 105 of the Occupations Code) (on file with the Op. Comm.). Section 105.002 provides that a health care provider commits unprofessional conduct if the provider "in connection with the provider's professional activities: ... (2) knowingly prepares, makes, or subscribes to any writing, with intent to present or use the writing ... in support of a false or fraudulent claim under an insurance policy." TEX. OCC. CODE § 105.002(a)(2).