Request By:
Robert B. Sivley, Ph.D.
Chairman, State Board of Psychology
Box 456
Frankfort, Kentucky 40602
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask whether certain regulations adopted by the Superintendent of Public Education which relate to "school psychologists" violate the Psychology Practice Act, KRS Chapter 319.
KRS 319.005 provides as follows:
"No person not licensed or certified as provided in KRS 319.005 to 319.131 shall engage in any practice which in the judgment of the board of examiners constitutes the practice of psychology as defined in KRS 319.010, and is against the public interest. No person shall use the title of 'psychologist' in this state without a license granted by said board of examiners and signed by each member thereof. No person not licensed as provided in KRS 319.005 to 319.131 shall hold himself out to the public by any title or description of services representing himself as a psychologist which incorporates the words 'psychological, ' 'psychologist, ' or 'psychology' ; except as such usage or title and/or description is authorized by the board. The use of the title 'psychologist' and the description of services cited above is authorized to those who apply for and are granted certificates within two (2) years after June 18, 1964 as long as they maintain such certificates. "
KRS 319.010 defines the practice of psychology. KRS 319.015 excludes certain activities from this definition. The applicable exclusion is set forth in KRS 319.015(4):
"The recognized educational activities of teachers in accredited public and private schools, or the authorized duties of guidance counselors and psychometricians who are certified by the state board of education, or special education supervisor in state department of education, or the activities of persons using psychological techniques in business and industrial or business employes. However, no industrial or business firm or corporation may sell or offer to the public or to other firms or corporations for remuneration any psychological services as specified in this law, unless such services are performed or supervised by individuals duly and appropriately licensed under KRS 319.005 to 319.131."
With the foregoing in mind, we may now turn to the action taken by the Superintendent of Public Education. KRS 157.360 directs the Superintendent to determine the funds to be allotted to each school district from the foundation program created by KRS 157.310 et seq. based upon, inter alia, the number of "classroom units for superintendents, principals and the certificated assistants and other administrative and special educational service personnel, " see KRS 157.360(1). The number of classroom units for a district is calculated according to a formula set forth in KRS 157.360(7). 1 As we read KRS 157.360(7), the Superintendent has authority to define the personnel to whom or for whom classroom units are adopted.
In summary, each local school district is entitled to a portion of funds from the foundation program. There is a formula by which the amount of money to which the district is entitled may be calculated. The Superintendent has the authority to define the positions which are funded by money from the foundation program.
Pursuant to his authority, the Superintendent has adopted 704 KAR 3:175 2 which defines the criteria which the person filling the position of school psychologist must meet if the position is to be funded by money from the foundation program. 3 The criteria set forth in the regulation does not include the requirement that the "school psychiatrist" be licensed by the board. We do not perceive this regulation as permitting any person who is not licensed by the board to hold himself out as a psychologist or to practice psychology in violation of KRS 319.005 and 319.010. Rather, the regulation merely establishes the criteria which an otherwise qualified psychologist must meet if his position is to be funded with money from the foundation program. Accordingly, any person holding himself out as a "school psychologist" or engaging in the practice of psychology without a license issued by the board violates KRS Chapter 319 and is subject to the penalties contained in KRS 319.990.
Footnotes
Footnotes
1 KRS 157.360(7) provides:
"In allotting classroom units for superintendents, principals, their certificated assistants, and other administrative and special instructional service personnel, the total number of classroom units allotted in subsections (2), (5), (6) and (10) shall be divided by eight and the quotient shall be the number of classroom units allotted to the district for superintendents, principals, their certificated assistants and other administrative and special instructional service personnel as are authorized by Kentucky administrative regulations of the state board of education. Provided, however, that in allotting classroom units for superintendents, principals, their certificated assistants, and other administrative and special instructional service personnel, the total number of pupils in average daily attendance pursuant to subsections (5) and (6), for new classroom units approved beyond those allotted in the school year 1975-76 shall be divided by two hundred and sixteen (216) and the quotient shall be the number of class units allotted to the district for superintendents, principals, their certificated assistants, and other administrative and special instructional service personnel pursuant to subsections (5) and (6)."
2 704 KAR 3:175 provides:
"Section 1. The unit for the position of school psychologist shall be defined as the services provided by a certified school psychologist and described as follows. The school psychologist is a person with a unique combination of skills in psychology and education. The school psychologist is trained in the usual area of psychological study including human development, learning theory, human exceptionalities, group social processes, psychodiagnostics, intervention strategies, and research. In addition, this professional is particularly cognizant of educational theory, school curriculum, school administration, mental health education, and procedures in special education. Furthermore, the school psychologist is trained in applying the principles of this broad background in school settings. Specifically, this practitioner of behavioral science possesses consultative skills which enables combining of the principles of psychology and education. The school psychologist works cooperatively with other members of the pupil personnel team, teachers, children, and other school staff. He/she is also capable of utilizing parents and community resources as a means of enhancing the effectiveness of the school program.
"Section 2. (1) A person qualified to serve in an approved unit for school psychologist shall hold either the provisional or standard certificate for school psychologist.
(2) A school psychologist legally certified or licensed for the position of school psychologist and employed within a local school district for the position during the 1978-79 school term [holding a valid teaching certificate who was approved for serving in a unit for school psychologist in 1959-60] shall have continuing approval for serving in the position of school psychologist so long as such legal certification or licensure is kept valid."
3 The Superintendent has also adopted regulations relating to psychometricians, see 704 KAR 3:180. Whether this regulation defines the practice of psychometry is not a question we reach because psychometricians are exempt from the board's jurisdiction by virtue of KRS 319.015(4).