Justification for Adoption of Proposed Behavior Analysts Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Behavior Analyst
16 TAC Chapter 121, new rules §§121.1, 121.10, 121.20 - 121.27, 121.30, 121.50, 121.65 - 121.70, 121.75, 121.80, 121.90 and 121.95

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 121, 121.1, 121.10, 121.20, 121.21, 121.23 - 121.27, 121.30, 121.50, 121.65 - 121.69, 121.75, and 121.90, regarding the Behavior Analyst program, without changes to the proposed text as published in the February 2, 2018, issue of the Texas Register (43 TexReg 501). The rules will not be republished.

The Commission also adopts new rules at 16 TAC, Chapter 121, §§121.22, 121.70, 121.80, and 121.95, regarding the Behavior Analyst program, with changes to the proposed text as published in the February 2, 2018, issue of the Texas Register (43 TexReg 501). The rules will be republished.

Senate Bill 589, 85th Legislature, Regular Session (2017), established Texas Occupations Code, Chapter 506, which requires the Commission and the Texas Department of Licensing and Regulation (Department) to license and regulate behavior analysts and assistant behavior analysts. The adopted new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate this program. The adopted new rules are necessary to implement Senate Bill 589.

The adopted new §121.1 provides the citation to the statutory authority.

The adopted new §121.10 creates the definitions to be used in the behavior analyst program.

The adopted new §121.20 provides the requirements for a complete application in the behavior analyst program.

The adopted new §121.21 establishes the licensing requirements for the behavior analyst.

The adopted new §121.22 establishes the licensing requirements for the assistant behavior analyst.

The adopted new §121.23 provides for the examination required for licensure.

The adopted new §121.24 provides the educational requirements for licensure.

The adopted new §121.25 establishes continuing education requirements to maintain licensure.

The adopted new §121.26 details the renewal process and requirements.

The adopted new §121.27 explains the conditions for inactive status for a license.

The adopted new §121.30 provides conditions regarding exemptions for persons not required to comply with this chapter.

The adopted new §121.50 details the reporting requirements for license holders.

The adopted new §121.65 details the composition of the behavior analyst advisory board and the qualifications for membership.

The adopted new §121.66 provides the advisory board duties.

The adopted new §121.67 explains the advisory board member term of service and vacancy information.

The adopted new §121.68 establishes the appointment and duties of the advisory board presiding officer.

The adopted new §121.69 provides the conditions for meetings of the advisory board.

The adopted new §121.70 details responsibilities of license holders.

The adopted new §121.75 creates the code of ethics to which license holders must adhere.

The adopted new §121.80 creates the fees payable in the behavior analyst program.

The adopted new §121.90 explains the basis and guidelines for taking disciplinary action.

The adopted new §121.95 details how license holders must provide complaint information and explains the handling of complaints.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the February 2, 2018, issue of the Texas Register (43 TexReg 501). The deadline for public comment was March 5, 2018. The Department received comments during the 30-day public comment period from nineteen interested individuals; from the entity Behavior Frontiers; and from three organizations: the Texas Association for Behavior Analysis – Public Policy Group and Texas Association for Behavior Analysis (jointly commenting, and referred to jointly in this section as TXABA); and the Texas Speech-Language Hearing Association (TSHA). Several comments reference a certifying entity, the Behavior Analyst Certification Board, which will be referred to as BACB. The public comments are summarized below.

Comment--Thirteen individuals and TXABA commented regarding the licensing fee, including comments that the fee for the initial license is too high; the renewal fee is too high; the fees are higher than those for similar occupations and higher than the fees in some other states; the amount of the fees is not justified by the anticipated costs of operating the regulatory program; other costs imposed on license holders for certification and continuing education are high; the fee amounts would be a hardship because many license holders work in low-paying settings; and the benefits to the license holders resulting from the licensing fees are not identified or justified. Questions were received regarding the license term covered by the fee, whether the fees might decline over time and with a larger number of license holders, and whether the criminal background check cost is included in the licensing fee.

Department Response--The Department analyzed the anticipated costs and revenues associated with the behavior analyst licensing program as part of the legislative effort adopting the enabling statute. At the time of the analysis, 1,109 behavior analysts, 81 behavior analysts-doctoral, and 90 assistant behavior analysts in Texas were certified by the certifying entity BACB.

Two significant changes have occurred since the time of the initial fiscal analysis. First, the number of certified individuals in Texas has since increased to 1,272 behavior analysts, 86 behavior analysts-doctoral, and 101 assistant behavior analysts who may apply for Texas licensure through the Department. Second, the Department has made significant internal changes to its organizational structure, resulting in the need to reevaluate the earlier agency cost figures and the need for full-time employee equivalent positions (FTEs) to support the behavior analysis program. In addition, as part of the recalculation, some of the figures that were used for the original cost predictions are no longer accurate.

In its updated fiscal analysis, the Department estimates that 1.5 FTEs would be needed to regulate this new license holder population, a reduction from the 3.5 FTEs originally predicted to be needed. The Department estimates the employees would be required to start in the last quarter of fiscal year 2018 to be ready to begin licensing September 1, 2018. For the last quarter of fiscal year 2018, these employees would cost approximately $25,103 in salary and payroll costs, $9,193 in employee benefits, and $720 in other operating expenses. According to Legislative Budget Board analysis, start-up costs for furniture and equipment would be $16,148 in 2018. Beginning in fiscal year 2019, the Department estimates the salary cost each full fiscal year would be $83,676 and associated employee benefits would be $30,642 per fiscal year. Costs for operating expenses for each year would be $2,400. The Department estimates that name-based criminal background check costs would be $1,280 in fiscal year 2018 and $1,280 every two years afterward, when license holders renew. The criminal background check costs were included and calculated in the licensing fee, and will not be a separate cost to applicants. Based on these predictions, the program costs are expected to be $52,443 the first fiscal year the rules are in effect, $116,718 in both the second and fourth years, and $117,998 in the third and fifth years the rules are in effect.

There is an estimated gain in revenue in three of the first five years the rules are in effect and no revenue gain or loss in the other two years, corresponding with the initial licensing in the first year and renewals following every two years after the first license. The amount of revenue from licensing fees is estimated to be $235,180 in each of those three years. The licenses will be issued for two-year terms. All potential license holders must hold licenses by September 1, 2018, so it is assumed that they will be licensed by that date, thus obtaining their licenses in the first year the rule is in effect. In the years that the license holders do not renew, there will be no revenue, other than new license holders obtaining their initial licenses. The number of new license holders that will enter the profession each year is unknown.

The Department is required to ensure that the revenue from each of its programs covers the costs of operating the programs. Recalculating the costs for recoupment through the licensing fees resulted in a revised fee of $165 for behavior analysts for both the initial and renewal fee for a two-year license, and $110 for assistant behavior analysts for the initial and renewal fee for a two-year license.

The fees were established based on the fiscal analysis and are designed to spread the cost across the licensed population. Because the costs associated with the initial licenses and renewal licenses are similar, the initial and renewal fees were most appropriately made equal. Some commenters noted that other costs and fees associated with practicing the behavior analysis profession are high, but those costs are not part of the fiscal analysis of the implementation of the program in Texas. The Department annually analyzes fees and the agency costs associated with operating each of its programs, and adjustment of the fees follows as necessary. The costs of the behavior analyst licensing program are spread across a relatively small population of license holders, but due to the requirement to balance revenues and costs the Department set the fees as it was required to do.

During the legislative process to initiate the behavior analysis licensing program the costs and benefits to potential license holders, patients and clients, the public, and stakeholders were considered and weighed. The Texas legislature created the legislation to reflect its decisions about those considerations, and these rules implement the regulatory licensing program that resulted. The Department’s calculations relating to the costs and revenues, and ultimately, the fee amounts, are reflective only of the financial aspects of regulation that can be estimated. Those calculations cannot capture unquantifiable benefits to each type of stakeholder from the implementation of the regulatory program, and the benefits of regulation do not necessarily fall equally on all categories of stakeholders.

The fee amounts provided in §121.80 have been amended in accordance with the updated fiscal analysis.

Comment--Two individuals and TXABA commented that the need to hire 3.5 full-time staff for the operation of the behavior analysis program is not justified by the amount of work that will be required to operate the program and this figure should be revised.

Department Response--The number of staff needed to operate the new program was determined from the information the Department has about the program and from the Department’s experience in bringing on new and existing programs and successfully implementing them. Based on what is known of the program and the estimated population size of license holders, the Department initially believed that 3.5 FTEs was the appropriate number of employees to be assigned to the regulation of this program, which includes licensing, compliance and enforcement, customer service, and other functions. The Department reevaluated its predictions and calculations in light of the increasing number of potential licensees and new estimates that lower the anticipated costs associated with the regulation of behavior analysts. The expected number of FTEs now predicted for the program is 1.5. With additional knowledge and experience gained as the program begins operation and needs are reassessed, the number of FTEs may be adjusted and likewise, potentially, the fees. As a consequence of this and related comments the Department’s recalculation of the fiscal impacts resulted in a reduction in the licensing fee, and the fees provided in §121.80 have been changed accordingly.

Comment--Two individuals commented about exemptions from licensing, noting that there are Frequently Asked Questions about exemptions on the web site but an absence of rule provisions about exemptions, and questioning the lack of an exemption from licensing for employees of the state. One of the commenters asked whether licensing would be a condition of state employment.

Department Response--Texas Occupations Code, Chapter 506 (the Act), Subchapter B, provides that the Act does not apply to the activities and occupations listed in that subchapter. The list has not been repeated in the rules. The legislature did not specifically include state employees among those to whom the Act does not apply, and the Department is not authorized to create exemptions from licensing or to make the Act inapplicable to additional occupations or activities. Employers may require employees to become licensed as a condition of employment, and the Act requires people to become licensed if the requirement to have a license applies to them. Persons not required to become licensed may choose to obtain a Texas license if qualified. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter recommends a grandfathering period for one year to address the shortage of individuals practicing behavior analysis.

Department Response--The Act requires persons practicing behavior analysis or using the title of “licensed behavior analyst” or “licensed assistant behavior analyst” to become licensed beginning September 1, 2018. No person is authorized to identify themselves as a license holder or perform activities requiring a license after that date unless the person has obtained a Texas license. The Department is not authorized to waive or delay imposing licensing requirements or to license persons who do not meet the criteria in the Act. The Department did not make any changes to the rules in response to this comment.

Comment--Two commenters questioned the requirement for examination, the purpose of the examination, and the rule provision allowing the Department to impose additional examination requirements.

Department Response--The Act requires applicants for a license to pass the examination offered by the certifying entity. The rules provide that the examination conducted by the Behavior Analyst Certification Board is the designated examination. No other certifying entities have been approved and therefore no other examination is yet approved. Examinations in addition to the one required by the certifying entity are not required or anticipated at this time, but the Department has reserved the ability to require or accept an alternative examination, or to impose additional examination requirements, if necessary. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter recommends that the Department require license holders to report and track the persons working under the supervision of license holders. This commenter asked if supervision agreement templates provided by the Behavior Analyst Certification Board should be used, and whether the Department will post templates.

Department Response--The Act imposes no supervision-related requirements on the Department, and requires only that licensed assistant behavior analysts be under the supervision of a licensed behavior analyst. The Department has chosen not to conduct tracking or monitoring, or to otherwise administer requirements related to supervision or employment agreements or relationships except to investigate irregularities that could affect a license holder’s certification or license. The Department does not seek to burden license holders with duplication of administrative requirements imposed by the certifying entity. License holders must of course comply with those requirements to maintain certification, including any reporting obligations and the use of the certifying entity’s forms and templates if required by the certifying entity. The Department did not make any changes to the rules in response to this comment.

Comment--One individual commented that the rules do not require education and that behavior analysts are not educated about, or qualified to provide, speech therapy, resulting in the inability to recognize the need for speech therapy and leading to the provision of inadequate or inappropriate therapy. The commenter recommends raising the education, supervision, experience, and continuing education standards for behavior analysts and assistant behavior analysts to parallel those for speech-language pathologists and assistant speech-language pathologists. The commenter further recommends that the provision of speech therapy be left to speech-language pathologists and assistants.

Department Response--The Act requires license applicants to have met the educational requirements of the certifying entity and does not impose additional educational requirements. Behavior analysis license holders may be required to become licensed in other occupations if their activities subject them to the licensing requirements of those occupations. The Act does not specifically define the complete scope of activities that a behavior analysis license holder might perform, but does exclude psychological testing, psychotherapy, cognitive therapy, psychoanalysis, hypnotherapy, and counseling as treatment modalities, and prohibits the diagnosis of disorders. The Department is not averse to exploring the need for development of regulation regarding the respective scope of practice applicable to the speech-language and behavior analysis professions, each of which it licenses and regulates. Because the scope of practice in these professions may touch or overlap, there is a need for caution before attempting to define and regulate the boundaries of the respective practices. That effort is outside of the scope of this rulemaking. At this time, the Department is not expanding or reducing any boundaries placed on the scope of practice by the certifying entity. As the Department gains knowledge and expertise regulating these programs, and considering that both are evolving, the Department will evaluate and reassess on an ongoing basis. Both of these regulated populations are encouraged to participate in efforts to identify and define scope of practice. The Department did not make any changes to the rules in response to this comment.

Comment--One individual and TSHA commented regarding scope of practice: persons practicing behavior analysis do not have adequate education and training to provide many therapies and services they are providing; and their scope of practice should be better defined and limited to exclude areas of therapy more properly provided by speech-language therapists, occupational therapists, physical therapists, and teachers of math and reading.

Department Response--The Department agrees that the scope of practice should be evaluated and further rulemaking may be appropriate. However; defining the scope of practice of the behavior analyst and assistant behavior analyst is outside of the scope of this rulemaking. The proposed behavior analysis rules were necessary to implement the legislation that created the regulatory program within the required time period, and further refinement of the rules will occur over time. The Department did not make any changes to the rules in response to this comment.

Comment--One individual opposes the rule and comments that the profession of behavior analysis is coercive/coerces parents into using behavior analysis services through fear of adverse consequences if it is not used; that it encroaches upon other professionals helping those with autism; that the certifying entity advances determinism, and requires certificants to administer painful aversion therapy; and that the Association for Behavior Analysis International approved one of these techniques, electric skin shock, as being aligned with its mission.

Department Response--The Act requires the Department to administer a licensing program for behavior analysis professionals. The rules implement the program and regulate individual Texas license holders. The Department has no authority over certifying entities or professional associations or organizations. The rules contain many provisions to prevent inappropriate, unprofessional, and deceptive practice by license holders. As the Department gains experience and expertise in regulating this program the need for expanded regulation to address abuses or misbehavior that is not adequately covered by the rules will be reassessed on an ongoing basis. All persons are encouraged to make a complaint to the Department about conduct or treatment that they believe violates the standards and requirements in the Act and rules. The Department did not make any changes to the rules in response to this comment.

The organization TXABA provided several comments which are summarized with the Department’s responses below:

Comment 1--The fiscal impact statement states that the Department needed to hire 3.5 additional full-time employees but the governmental growth impact statement states that the creation of new employee positions is not required.

Department Response--The fiscal impact statement indicates the number of full-time employee equivalents the Department expects will be needed to fulfill the statutory requirement to create and operate the licensing program. The governmental growth impact statement focuses on requirements imposed only by the rules or by implementation of the rules. The rules do not impose or create requirements for staffing the program. The Department did not make any changes to the rules in response to this comment.

Comment 2--The proposed rule indicates that approximately 1,280 persons will be required to be licensed in Texas, but the certifying entity, the Behavior Analyst Certification Board, shows 1,458 certified persons in Texas, and therefore the rule should be updated.

Department Response--The Department’s fiscal analysis for the behavior analysis program was performed when the enabling legislation was being created, and that analysis was also used for developing the rules for the new program. The Department agrees that the analysis should be updated and has revised the fiscal analysis to reflect the increase in the number of certified persons in Texas, currently at 1,459. The revision of the fiscal analysis has resulted in lower licensing fees, so §121.80, Fees, has been amended accordingly. The Department did not make any changes to the rules in response to this comment.

Comment 3--In §121.22(a)(3) the term “behavior therapy” should be changed to “applied behavior analysis” in the requirement “To qualify for licensure as an assistant behavior analyst, a person must . . . be in compliance with the applicable supervision requirements of the certifying body at all times when practicing behavior therapy.”

Department Response--The Department agrees that the rules should be internally consistent and has changed the term to “behavior analysis” in §121.22(a)(3).

Comment 4--The wording of §121.70(b)(9) should be changed from “A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the recordkeeping requirements of the educational setting or with the retention requirements of the certifying entity, if more stringent” to “A license holder practicing in an educational setting, school, learning center, or clinic shall comply with the recordkeeping requirements of the service setting or with the retention requirements of the certifying entity, if the latter are more stringent.”

Department Response--Because the license holder is required to comply with applicable recordkeeping and retention requirements imposed by the certifying entity or imposed by the service setting, the Department believes the suggested change creates no additional obligations on license holders and is within the scope of this rulemaking. The recommended change to §121.70(b)(9) has been made.

Comment 5--To be consistent with §121.95(b)(1) and (c), the wording of §121.70(b)(12) should be changed from “A license holder shall display the license in the primary location of practice, but shall not display a license that has been photographically or otherwise reproduced” to “A license holder shall display the license in the primary location of practice, if any, but shall not display a license that has been photographically or otherwise reproduced.”

Department Response--The Department agrees that the recommended change would increase the internal consistency of the rules and has added “if any” to §121.70(b)(12).

Comment 6--The wording of §121.75(b)(6) should be changed from “All license holders shall . . . be knowledgeable of all available information relevant to the behavior analysis services being provided to the client” to “All license holders shall . . . be knowledgeable of all available historical and current information relevant to the behavior analysis services being provided to the client.”

Department Response--The Department disagrees and believes that the proposed rule is clear and appropriate in scope. The recommended change would not improve the rule. The Department did not make any changes to the rules in response to this comment.

The organization TSHA provided several comments which are summarized with the Department’s responses below:

Comment 1--The Department should not rely on the BACB Code of Ethics to regulate license holders: §121.70(d) requires license holders to comply with the requirements of the certifying entity, not the Department, if the requirements of the certifying entity and the Department conflict and the license holder cannot reasonably comply with both requirements.

Department Response--The Act imposes the requirement that all applicants for licensure must be certified by a certifying entity. It also requires the Department to create rules to regulate license holders and requires license holders to comply with the Act and rules. Part of complying with the Act is maintaining certification by the certifying entity. The certifying entity obligates license holders to comply with its requirements, and the Department requires compliance with both the Act and the rules, and, by virtue of requiring certification, with the requirements of the certifying entity, so that the license holder can maintain the necessary certification. Should the license holder be subject to conflicting requirements, a decision to comply with the state requirement at the cost of violating the certifying entity’s requirement could jeopardize the certification and result in the loss of the both the certification and the Department license. The provision waiving compliance with a state requirement is provided only for this limited purpose of protecting the certification and does not shift the regulatory burden to the certifying entity. The Department did not make any changes to the rules in response to this comment.

Comment 2--A licensing requirement should be imposed on Board Certified Assistant Behavior Analysts (BCaBAs), Registered Behavior Technicians (RBTs), and Applied Behavior Analysis Line Therapists. The comment compares and contrasts the qualifications and duties relevant to these occupations and describes perils associated with the lack of a license requirement, including no mandatory background check.

Department Response--The Act created only two licenses: behavior analyst and assistant behavior analyst. The Act does not authorize the Department to create additional licenses. Section 121.70(b)(11) imposes responsibility on license holders for the actions of unlicensed persons employed or contracted by them, and prohibits delegation of services, functions, or responsibilities requiring professional competence to a person not competent or not properly credentialed. The Department performs a criminal background check for every new and renewal license application and denies or does not renew licenses if applicants fail. The Department did not make any changes to the rules in response to this comment.

Comment 3--The BCBA Professional and Ethical Compliance Code for Behavioral Analysts does not put consumer safety and well-being first but demands promotion of their field above all else. The Code does not prohibit all use of harmful reinforcers.

Department Response--The Act requires license holders to maintain certification by their certifying entity in order to hold a Texas behavior analysis license, so license holders must comply with the requirements of the certifying entity. The Department has no role in the creation and imposition of requirements by certifying entities upon those certified by them. The Department did not make any changes to the rules in response to this comment.

Comment 4--Registered Behavior Technicians (RBTs) perform the bulk of direct behavior analysis services, but the BACB Code of Ethics places no limit on the number of RBTs who may be supervised by a license holder. The commenter advocates placing such limits.

Department Response--Imposing substantial limitations on the supervision relationship that exceed those of the certifying entity is not required by the Act and is outside of the scope of this rulemaking. The Department may examine developing limitations or requirements regarding the supervision relationship that may exceed those of the certifying entity as the program begins operation and needs can be assessed. The Department did not make any changes to the rules in response to this comment.

Comment 5--The BACB code of ethics requirement for professional cooperation and the requirement for professional collaboration in the American Speech-Language-Hearing Association (ASHA) ethics code are compared and contrasted. The commenter states that the difference in emphasis puts the profession of Speech-Language Pathology at high risk for encroachment and inappropriate representation of behavior analysts’ services, and recommends amending the rule to rectify the deficiencies and keep the public safe.

Department Response--The Texas Legislature in 2015 passed legislation moving the Speech-Language Pathologists and Audiologists program to the Department from the Department of State Health Services. In 2017, the legislature created the new licensing program for behavior analysis, for which the initial rules are being adopted here. The Department recognizes the role of the BACB and ASHA in developing standards and guidance for these occupations. The Department is not averse to exploring the need for development of regulation regarding the respective scope of practice applicable to each profession. Because the scope of practice in these professions may touch or overlap, there is a need for caution before attempting to define and regulate the boundaries of practice. That effort is outside of the scope of this rulemaking. At this time, the Department is not enlarging or reducing any boundaries placed on the scope of practice by the certifying entity. As the Department gains knowledge and expertise regulating these programs, and considering that both are evolving, the Department will evaluate and reassess on an ongoing basis. Both of these regulated populations are encouraged to participate in efforts to identify and define scope of practice. The Department did not make any changes to the rules in response to this comment.

The entity Behavior Frontiers provided several comments which are summarized with the Department’s responses below:

Comment 1--The commenter states that the Qualified Applied Behavior Analysis Credentialing Board (QABA) and the Behavioral Intervention Certification Council (BICC) are certifying entities for persons practicing applied behavior analysis. The commenter recommends text changes to list and include these entities by name in the rules in addition to the BACB, as certifying entities, because their absence has the potential to exclude providers certified by these entities from licensure and result in reduced access to care for families in need of services.

Department Response--The Act defines the certifying entity to mean “the nationally accredited Behavior Analyst Certification Board or another entity that is accredited by the National Commission for Certifying Agencies or the American National Standards Institute to issue credentials in the professional practice of applied behavior analysis and approved by the Department.” To date, no certifying entities other than the BACB have met this standard or have obtained approval by the Department. As individuals apply for licensing, other certifying entities will be evaluated for approval by the Department as necessary. Approved certifying entities need not be listed in the rules to be recognized as approved certifying entities, and no entity is excluded by the rules from consideration for approval. The Department did not make any changes to the rules in response to this comment.

Comment 2--The commenter recommends expanding the provision in §121.20(c), stating “The Department may require an applicant to submit additional information or documentation of an applicant’s qualifications . . . to provide supervision in behavior analysis to unlicensed persons or to behavior analysis license holders” to specifically include verification of meeting the 2015 BACB standards, the QABA’s coursework, the BICC coursework or standards, other approved certifying entity’s coursework or standards, or verification of having met defined standards to provide supervision, for those providing supervision before January 1, 2015 when the BACB instituted defined supervision standards. The defined standards would include unencumbered BACB certification; unencumbered psychologist licensure, or other unencumbered licensure at the time supervision was being provided. The commenter also recommends amending the rule to exempt persons who received their certification before January 2015 from the requirement to provide documentation of supervision relationships, because no documentation was required before January 2015 and therefore it could not be provided.

Department Response--The Act imposes no supervision-related requirements on the Department, and requires only that licensed assistant behavior analysts be under the supervision of a licensed behavior analyst. Applicants who are certified by the BACB and who are in compliance with its supervision-related requirements will not be asked to provide information or documentation about supervision qualifications unless the Department requests it for enforcement or other purposes. Likewise, if other entities become Department-approved certifying entities, applicants who are in compliance with the certifying entity’s requirements for supervision will not be asked to provide additional information or documentation unless necessary. The Department has chosen not to conduct tracking or monitoring, or to otherwise administer requirements related to supervision or employment agreements or relationships except to investigate irregularities that could affect a license holder’s certification or license. The Department does not seek to burden license holders with duplication of administrative requirements imposed by the certifying entity and will request documents only when a specific need arises. The Department sees no need to insert in the rule a list of alternative supervision documents that might be requested. The Department did not make any changes to the rules in response to this comment.

Comment 3--The commenter recommends listing by name the Qualified Autism Service Provider credential and the BICC certification in addition to the BACB certification in the required qualifications for licensure as an assistant behavior analyst.

Department Response--The Act defines the certifying entity to mean “the nationally accredited Behavior Analyst Certification Board or another entity that is accredited by the National Commission for Certifying Agencies or the American National Standards Institute to issue credentials in the professional practice of applied behavior analysis and approved by the Department.” To date, no certifying entities other than the BACB have met this standard or have obtained approval by the Department. As individuals apply for licensing, other certifying entities will be evaluated for approval by the Department as necessary. Approved certifying entities need not be listed in the rules to be recognized as approved certifying entities. The Department did not make any changes to the rules in response to this comment.

Comment 4--The commenter compares the availability and cost of the BACB assistant behavior analyst examination unfavorably to the Qualified Applied Behavior Analysis Credentialing Board QASP examination, and recommends listing both examinations as the examinations designated and approved for the assistant behavior analyst license. The designation of only the BACB examination unfairly favors the BACB and negatively impacts qualified potential providers and supervisors.

Department Response--The Act requires applicants for a license to pass the examination offered by the certifying entity. The rules provide that the examination conducted by the Behavior Analyst Certification Board is the designated examination. No other certifying entities have been approved by the Department and therefore no other examination is yet approved. The Department did not make any changes to the rules in response to this comment.

In addition to changes made in response to the comments on the proposed rule, the Department has edited the rule text in §121.22 (consistent terminology) and §121.95 (the license card need not be displayed in the location of practice; it is carried on the person).

The Behavior Analyst Advisory Board (Board) met on March 16, 2018, and recommended the proposed rules be adopted with changes. At its meeting held on March 27, 2018, the Commission adopted the proposed rules with changes as recommended by the Board and the Department.

The new rules are adopted under Texas Occupations Code, Chapters 51 and 506, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 506. No other statutes, articles, or codes are affected by the adoption.

§121.1. Authority.

This chapter is promulgated under the authority of Texas Occupations Code, Chapters 51 and 506.

§121.10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Occupations Code, Chapter 506.

(2) Advertising--The solicitation for business utilizing the titles "licensed behavior analyst" or "licensed assistant behavior analyst."

(3) Advisory Board--The Behavior Analyst Advisory Board.

(4) Applicant--A person who applies for a license to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(5) Behavior Analyst Certification Board (BACB) – a certifying entity for persons practicing behavior analysis.

(6) Client--A person who is receiving behavior analysis services from a license holder.

(7) Commission--The Texas Commission of Licensing and Regulation.

(8) Department--The Texas Department of Licensing and Regulation.

(9) Executive director--The executive director of the department.

(10) License--A license issued under the Act authorizing a person to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

(11) License holder--A person who has been issued a license in accordance with the Act to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.

§121.20. Applications.

(a) Unless otherwise indicated, applicants for a license must submit all required information on department-approved forms or in a manner specified by the department.

(b) Applicants must submit the following:

(1) a complete application;

(2) the applicant’s certification number by a behavior analyst certifying entity or other documentation of current certification by a behavior analyst certifying entity, as approved by the department; and

(3) the fee required under §121.80.

(c) The department may require an applicant to submit additional information or documentation of an applicant’s qualifications, including the following:

(1) official transcripts of all relevant college work or educational programs demonstrating successful completion and degrees earned as applicable to the requirements under the Act and §121.21 and §121.22;

(2) experience in behavior analysis;

(3) applicable training;

(4) qualifications to provide supervision in behavior analysis to unlicensed persons or to behavior analysis license holders;

(5) behavior analysis supervision experience provided or received;

(6) certifications of individuals providing or receiving supervision;

(7) supervision contracts or supervision agreements, or terms of employment;

(8) successful completion of applicable examination requirements, including a pass/fail report;

(9) information regarding other state licenses, certifications; or registrations that an applicant holds or held in behavior analysis or a related field;

(10) information about pending or concluded disciplinary actions against the applicant by the certifying entity; or

(11) any other documents or information including documents or information related to the applicant’s certification, continuing education, employment, or criminal history.

(d) The applicant must successfully pass a criminal history background check.

(e) An applicant shall not submit to the department any examination-related materials or information, including examination questions, specifications, forms, or scoring sheets, except as provided in subsection (c)(8).

(f) Materials submitted in the licensing process become the property of the department and are not returnable.

(g) Licenses are valid for two years from the date of issuance.

§121.21. Behavior Analyst Licensing Requirements.

(a) To qualify for licensure as a behavior analyst, a person must:

(1) hold current certification as a Board Certified Behavior Analyst or a Board Certified Behavior Analyst-Doctoral or equivalent, issued by the Behavior Analyst Certification Board or its equivalent as approved by the department; and

(2) be in compliance with all professional, ethical, and disciplinary standards established by the certifying entity.

(b) Persons who are subject to or have received a disciplinary action by the certifying entity may be ineligible for a license.

(c) Persons who hold current certification by the certifying entity but who do not hold a current license may not:

(1) practice behavior analysis; or

(2) use the title “licensed behavior analyst.”

§121.22. Assistant Behavior Analyst Licensing Requirements.

(a) To qualify for licensure as an assistant behavior analyst, a person must:

(1) hold current certification as a Board Certified Assistant Behavior Analyst or equivalent, issued by the Behavior Analyst Certification Board or its equivalent as approved by the department;

(2) be in compliance with all professional, ethical, and disciplinary standards established by the certifying entity; and

(3) be in compliance with the applicable supervision requirements of the certifying entity at all times when practicing behavior analysis.

(b) Persons who are subject to or have received a disciplinary action by the certifying entity may be ineligible for a license.

(c) Persons who hold current certification by the certifying entity but who do not hold a current license may not:

(1) practice behavior analysis; or

(2) use the title “licensed assistant behavior analyst.”

§121.23. Examination.

(a) The examination designated and approved by the department for licensure as a behavior analyst is the Board Certified Behavior Analyst examination in applied behavior analysis, administered by the Behavior Analyst Certification Board.

(b) The examination designated and approved by the department for licensure as an assistant behavior analyst is the Board Certified Assistant Behavior Analyst examination, administered by the Behavior Analyst Certification Board.

(c) The department may designate and approve an equivalent examination.

(d) The department may impose additional examination requirements.

§121.24. Educational Requirements.

(a) An applicant shall meet the educational requirements of the certifying entity for the Board Certified Behavior Analyst or the Board Certified Behavior Analyst-Doctoral or an equivalent standard of the certifying entity to become qualified to apply for the Behavior Analyst license.

(b) An applicant shall meet the educational requirements of the certifying entity for the Board Certified Assistant Behavior Analyst or an equivalent standard of the certifying entity to become qualified to apply for the Assistant Behavior Analyst license.

§121.25. Continuing Education.

(a) An applicant shall meet the continuing education requirements of the certifying entity, including the continuing education requirements for the Board Certified Behavior Analyst, Board Certified Behavior Analyst-Doctoral, or Board Certified Assistant Behavior Analyst, as applicable, to become qualified to apply for a behavior analysis license.

(b) License holders shall comply with the continuing education requirements imposed by the certifying entity.

(c) License holders shall verify completion of continuing education requirements upon request.

(d) Licenses will be renewed only if continuing education requirements have been met.

§121.26. Renewal.

(a) To renew a license, a license holder must:

(1) submit a complete renewal application on a department-approved form;

(2) submit the fee required under §121.80; and

(3) successfully pass a criminal history background check.

(b) Applicants for renewal are subject to §121.20(c).

(c) Each license holder is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification prior to the expiration date of the license shall not excuse failure to apply for renewal or late renewal.

(d) A person whose license has expired may late renew the license in accordance with §60.31 (relating to License Renewal Applications) and §60.83 (relating to Late Renewal Fees) of this title.

(e) A person whose license has expired may not use the title or represent or imply that he or she has the title of 'licensed behavior analyst' or 'licensed assistant behavior analyst' and may not use any facsimile of those titles in any manner.

(f) A person whose certification by the certifying entity is on inactive status may renew a license that is on inactive status if the person is in compliance with the requirements of the certifying entity for inactive status.

(g) A person whose certification by the certifying entity is on inactive status may not renew a license that is on active status.

(h) The department may not renew the license of a license holder who is in violation of the Act or commission rules at the time of application for renewal.

§121.27 Inactive Status.

(a) To change a license to inactive status, an applicant must submit a complete application on a department-approved form.

(b) A person whose license is on inactive status may not:

(1) practice applied behavior analysis;

(2) engage in any activity for which a license is required;

(3) participate in a supervision relationship with another license holder or unlicensed person unless an active license is not required for the license holder’s activity; or

(4) engage in any activity for which the person is required to be actively licensed for the interests of another person also engaged in that activity with the license holder.

(c) A person whose license is on inactive status must comply with the certifying entity’s requirements for the applicable certification during the time the license is on inactive status, or must become recertified before applying to change the license to active status.

(d) A license on inactive status may be renewed in accordance with §121.26.

(e) To change from an inactive license status to an active license status, a person must:

(1) submit a complete application on a department-approved form;

(2) pay the fee required under §121.80(b)(6); and

(3) successfully pass a criminal history background check.

§121.30 Exemptions.

(a) A person’s certification status by a certifying entity does not affect the applicability of the Act to that person’s activities under §§506.051 - 506.059 of the Act.

(b) Persons who are providing services for which a license is required under the Act or this chapter but who are not certified by a certifying entity may be required to become certified and obtain a license under this chapter in order to continue to provide services.

§121.50 Reporting Requirements.

(a) License holders shall report the following to the department in the manner specified by the department not later than ten days after the action, activity, change, or event occurs; the license holder has been notified; the action becomes final; or a decision, order, or judgment issues:

(1) Expiration of the license holder’s certification;

(2) Surrender or voluntary termination of the license holder’s certification;

(3) A violation by the license holder of the certifying entity’s requirements, the Act, or this chapter;

(4) Suspension, probation, reprimand, or any other discipline or revocation of the license holder’s certification;

(5) The license holder’s arrest, deferred adjudication, or criminal conviction, other than a Class C misdemeanor traffic offense;

(6) The filing of a criminal case against the license holder;

(7) The settlement of or judgment rendered in a civil lawsuit filed against the license holder and relating to the license holder’s professional behavior analysis practice;

(8) Complaints, investigations, or actions against the license holder by a governmental agency or by a licensing or certification body;

(9) Initiation of disciplinary action or other proceedings against the license holder by an employer or other entity that may result in civil liability or criminal charges, or that may result in disqualification for certification by the certifying entity in accordance with the certifying entity’s requirements;

(10) Commencement of inactive status of the person’s certification by the certifying entity; or

(11) Any other limitation on, or termination of, the license holder’s certification.

(b) License holders shall report the following to the department in the manner specified by the department not later than thirty days after the action, activity, change, or event occurs; the license holder has been notified; or the action becomes final:

(1) Initiation of disciplinary action against the license holder by a behavior analyst certifying entity; or

(2) Changes in name, mailing address, phone number, or email contact.

§121.65. Behavior Analyst Advisory Board; Membership.

(a) The Behavior Analyst Advisory Board shall be appointed under and governed by the Act and this section. The advisory board is established under the authority of Occupations Code, §506.101.

(b) The advisory board is subject to Government Code, Chapter 2110, concerning state agency advisory boards.

(c) The advisory board shall be composed of nine members appointed by the presiding officer of the commission with the approval of the commission. The composition of the advisory board shall include:

(1) four licensed behavior analysts, at least one of whom must be certified as a Board Certified Behavior Analyst--Doctoral or hold an equivalent certification issued by the certifying entity;

(2) one licensed assistant behavior analyst;

(3) one physician who has experience providing mental health or behavioral health services; and

(4) three members who represent the public and who are either former recipients of applied behavior analysis services or the parent or guardian of a current or former recipient of applied behavior analysis services.

(d) To be qualified for appointment to the advisory board in the position of licensed behavior analyst, a person must have at least five years of experience as a licensed behavior analyst after being certified by the certifying entity.

§121.66. Advisory Board: Duties.

The advisory board shall provide advice and recommendations to the department on technical matters relevant to the administration of the Act and this chapter.

§121.67. Advisory Board: Terms; Vacancies.

(a) The term of office of each member of the advisory board shall be six years. Members shall serve after expiration of their term until a replacement is appointed.

(b) A member of the advisory board may be removed from the advisory board pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

(c) Grounds for removal include any action by the certifying entity that suspends or terminates the certification of the member; the expiration of the member’s certification; the change of the certification from active to inactive status; or the voluntary surrender of certification by the member.

§121.68. Advisory Board: Officers.

(a) The presiding officer of the commission shall designate a member of the advisory board as the presiding officer of the advisory board to serve for a term of one year.

(b) The presiding officer of the advisory board shall preside at all advisory board meetings at which he or she is in attendance. The presiding officer of the advisory board may vote on any matter before the advisory board.

§121.69. Advisory Board: Meetings.

(a) The advisory board shall meet at least twice each year and at the call of the presiding officer of the commission or the executive director.

(b) Meetings shall be announced and conducted under the provisions of the Open Meetings Act, Texas Government Code, Chapter 551.

(c) A quorum of the advisory board is necessary to conduct official business. A quorum is five members.

(d) Advisory board action shall require a majority vote of those members present and voting.

§121.70. Responsibilities of License Holders.

(a) Licenses issued by the department remain the property of the department and shall be surrendered to the department on demand.

(b) A license holder shall:

(1) inform the department of any violations of this chapter or the Act.

(2) promptly provide upon request any documents or information satisfactory to the department to demonstrate the license holder’s qualifications for certification by the certifying entity or for licensure by the department.

(3) report to the department any fact that may affect the license holder’s qualifications to hold a certification or license in accordance with §121.50.

(4) notify each client or the minor client's parent or authorized representative of the department's name, website, email address, mailing address, and telephone number for the purpose of directing complaints to the department.

(5) truthfully respond in a manner that fully discloses all information in an honest, materially responsive and timely manner to a complaint filed with or by the department.

(6) not interfere with a department investigation or disciplinary proceeding in any way, including by misrepresentation or omission of facts to the department or using threats or harassment against any person.

(7) comply with any order issued by the commission or the executive director that relates to the license holder.

(8) provide a client or a minor client's parent or authorized representative with a written agreement for services prior to the commencement of behavior analysis services.

(A) The agreement shall contain, at a minimum, a description of the services to be provided, goals, techniques, materials, the cost for services, payment arrangements and policies, hours, cancellation and refund policies, contact information for both parties, and the dated signatures of both parties.

(B) Any subsequent modifications to the agreement shall be signed and dated by both parties.

(9) maintain legible and accurate records of behavior analysis services rendered. A license holder practicing in an educational setting, school, learning center, or clinic [,] shall comply with the recordkeeping requirements of the service setting or with the retention requirements of the certifying entity, if the latter are more stringent.

(10) maintain records for a minimum of the longer of:

(A) seven years following the termination of behavior analysis services;

(B) seven years following the date on which a minor client reaches the age of 22; or

(C) the retention period required by the certifying entity.

(11) not delegate any services, functions, or responsibilities requiring professional competence to a person not competent or not properly credentialed. A license holder in private practice is responsible for the services provided by unlicensed persons employed or contracted by the license holder.

(12) display the license in the primary location of practice, if any, but shall not display a license that has been photographically or otherwise reproduced.

(c) If any requirement of a license holder’s certifying entity differs in stringency from a requirement of the Act or the commission rules, the more stringent provision shall apply.

(d) If any requirement of a license holder’s certifying entity conflicts with a requirement of the commission rules such that the license holder cannot reasonably comply with both requirements, the license holder shall comply with the requirement of the certifying entity.

§121.75 Code of Ethics.

(a) Individuals certified by the BACB are required to comply with the BACB Professional and Ethical Compliance Code for Behavior Analysts.

(1) The department may consult the requirements of the certifying entity or the BACB Professional and Ethical Compliance Code for Behavior Analysts in the application and enforcement of the ethical standards included in this section.

(2) The department will apply the requirements of this section consistent with the requirements, guidance, and interpretations of the certifying entity unless an alternate interpretation is reasonably necessary or required.

(b) License holders shall comply with the following ethical standards when providing behavior analysis services. All license holders shall:

(1) comply with all provisions of the Act and this chapter, as well as any other state or federal law or rule that applies to the provision of behavior analysis services by, or the regulation of the license holder.

(2) provide behavior analysis services without discrimination based on race, color, national origin, religion, gender, age, or disability.

(3) offer to perform or perform only behavior analysis services for which the license holder is qualified and that are within the scope of the license holder's certification, license, or competence, considering level of education, training, and experience.

(4) accurately and truthfully represent his or her education, training, credentials, and competence.

(5) fully and accurately inform clients of the nature and possible outcomes of services rendered.

(6) be knowledgeable of all available information relevant to the behavior analysis services being provided to the client.

(7) take reasonable measures to ensure a safe environment for clients.

(8) maintain objectivity in all matters concerning the welfare of the client.

(9) refrain from participating in inappropriate or exploitative multiple relationships.

(10) not guarantee, directly or by implication, the results of any behavior analysis services, except that a reasonable statement of prognosis may be made. A license holder shall not mislead clients to expect results that cannot be predicted from reliable evidence.

(11) obtain written consent from a client or a minor client's parent or authorized representative in order to use the client's data or information for research or teaching activities.

(12) reveal confidential or personal information about a client only with authorization unless:

(A) required by law or compelled by a court to reveal the information;

(B) required by the certifying entity to reveal the information; or

(C) revealing the information is necessary to protect the welfare of the client or of the community.

(13) document any confidential or personal information disclosed, the person or entity to whom it was disclosed, and the justification for disclosure in the client's record if a license holder reveals such information about a client without authorization.

(14) provide, in plain language, a written explanation of the charges for behavior analysis services previously made on a bill or statement, upon the written request of a client or the minor client's parent or authorized representative.

(15) accurately represent and describe any product created or recommended by the license holder.

(16) not require the purchase by a client of any product created or produced by the license holder.

(17) not use his or her professional relationship with a client to promote any product for personal gain or profit, unless the license holder has disclosed to the client the nature of the license holder's personal gain or profit.

(18) not offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting clients or patronage.

(19) not persistently or flagrantly overcharge a client or third party.

(20) not persistently or flagrantly over treat a client.

(21) terminate a professional relationship when it is reasonably clear that the client is not benefitting from the services being provided or when it is reasonably clear that the client no longer needs the services.

(22) seek to identify competent, dependable referral sources for clients and shall refer when requested or appropriate.

(23) not sell, barter, or offer to sell or barter a license.

(24) refrain from engaging in sexual contact, including intercourse or kissing, sexual exploitation, or therapeutic deception, with a client. Sexual contact and sexual intercourse mean the activities and behaviors described in Penal Code, §21.01. Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. Therapeutic deception means a representation by a license holder that sexual contact with, or sexual exploitation by, the license holder is consistent with, or part of, the behavior analysis services being provided to the client.

(25) refrain from practicing behavior analysis if, due to illness or use of alcohol, drugs or medications, narcotics, chemicals or other substances, or from mental or physical conditions, the person is incapable of practicing with reasonable skill and safety to clients in the provision of behavior analysis services.

(c) Information used by a license holder in any advertisement or announcement shall not contain information that is false, inaccurate, misleading, incomplete, out of context, deceptive or not readily verifiable. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, and billing statements. False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a professional service;

(3) compares a professional's services with another professional's services unless the comparison can be factually substantiated;

(4) causes confusion or misunderstanding as to the credentials, education, or licensing of a professional;

(5) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of client; or

(6) represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional, unless the license holder is licensed or otherwise authorized to use the title or professional identification.

§121.80. Fees.

(a) All fees paid to the department are nonrefundable.

(b) Licensing fees are as follows:

(1) application and initial license, behavior analyst--$165

(2) application and initial license, assistant behavior analyst--$110

(3) renewal, behavior analyst--$165

(4) renewal, assistant behavior analyst--$110

(5) change, active status to inactive status--$0

(6) change, inactive status to active status--$25

(7) renewal of license on inactive status--renewal fees as stated in paragraphs (3) and (4)

(8) license duplicate or replacement--$25

(c) Late renewal fees for licenses issued under this chapter are prescribed under §60.83 of this title (relating to Late Renewal Fees).

(d) The fee for a dishonored/returned check or payment is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(e) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

§121.90. Basis for Disciplinary Action.

(a) This section is authorized under Texas Occupations Code, Chapters 51 and 506.

(1) If a person violates any provision of Texas Occupations Code, Chapters 51, 506, or any other applicable provision, this chapter, or a rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 and 506, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) The department may consult the requirements of the certifying entity, and the BACB Professional and Ethical Compliance Code for Behavior Analysts, in the application and enforcement of this chapter.

(c) The department will apply the requirements of this section consistent with the requirements, guidance, and interpretations of the certifying entity unless an alternate interpretation is reasonably necessary.

(d) The department may refer or report to a certifying entity information, including complaints, investigations, and violations of Texas law, rules, or orders that are or may be relevant to the qualifications of any person to obtain or maintain a certification.

(e) The commission or the executive director may deny, revoke, suspend, probate, reprimand, or otherwise discipline a license, or impose an administrative penalty, when a person through fraud, misrepresentation, concealment of a material fact, or in violation of the certifying entity’s requirements, the Act, or this chapter:

(1) obtains, renews, or maintains a license; or

(2) practices or offers to practice behavior analysis services.

§121.95. Complaints.

(a) The department shall list, with its business telephone number, a toll-free telephone number established to accept complaints relating to a health profession regulated by the department.

(b) A license holder shall notify each client of the name, mailing address, email address, telephone number, and website of the department for the purpose of directing complaints to the department. A license holder shall display this notification:

(1) on a sign prominently displayed in the primary location of practice of each license holder, if any; and

(2) on written documents including a written contract, a bill for service, or information brochure provided by the license holder to a client or third party.

(c) A license holder shall display the license certificate as issued by the department in the primary location of practice, if any.

(d) A license holder shall not make any alteration on official documents issued by the department.

(e) All information and materials subpoenaed or compiled by the department in connection with a complaint and investigation under this chapter are confidential in accordance with §506.202 of the Act.

(f) The department may disclose a complaint or investigation and all information and materials compiled by the department in connection with the complaint or investigation to a person’s certifying entity in accordance with §506.202 of the Act.

(g) For purposes of this chapter, a health profession is a profession for which the enabling statute is located in Title 3, Occupations Code, or that is determined to be a health profession under other law.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on April 10, 2018.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation