Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Behavior Analysts
16 Texas Administrative Code, amendments to Chapter 121, §§121.10, 121.21, 121.22, 121.26, 121.70, 121.75, and 121.95

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.10, 121.21, 121.22, 121.26, 121.70, 121.75, and 121.95, regarding the Behavior Analysts program, without changes to the proposed text as published in the February 21, 2020, issue of the Texas Register (45 TexReg 1161).

 

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules implement House Bill (HB) 2847, Article 7, §7.003, 86th Legislature, Regular Session (2019), which amends Texas Occupations Code, Chapter 51, adding new subsection 51.252(e) regarding contracting with and providing immunity for individuals assisting in complaint investigations. The adopted rules also implement HB 2059, §1, 86th Legislature, Regular Session (2019), which adds Chapter 116 to the Texas Occupations Code, imposing a requirement for a training course on human trafficking prevention as a condition for certain license renewals on or after September 1, 2020. The adopted rules also implement recommendations from the Behavior Analyst Advisory Board (Advisory Board) to significantly reorganize, expand, and provide specifics for the responsibilities and ethics code of license holders, including expanding the definitions section.

The Board and staff also included specific requirements for acceptable abbreviation of license holders’ titles under the Act, new and updated references to statutes and rules, editorial corrections, and rewording.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §121.10 by adding definitions for “authorized representative,” “multiple relationship,” “service agreement,” and “treatment plan,” and expand the definition of “client.” The section is renumbered accordingly.

The adopted rules amend §121.21 by providing for acceptable abbreviations of the licensed behavior analyst title.

The adopted rules amend §121.22 by providing for acceptable abbreviations of the licensed assistant behavior analyst title.

The adopted rules amend §121.26 by adding the new requirement for human trafficking prevention training as a condition for license renewals on or after September 1, 2020, and renumbers the section.

The adopted rules amend §121.70 by reorganizing, expanding, clarifying, and adding specificity to the responsibilities of license holders. The section is renumbered accordingly.

The adopted rules amend §121.75 by reorganizing, expanding, clarifying, and adding specificity for minimum standards of ethical practice for behavior analysis. The section is renumbered accordingly.

The adopted rules amend §121.95 by implementing Texas Occupations Code §51.252, which provides immunity for assisting in the review and investigation of complaints. The adopted rules also remove a requirement for display of the license because the requirement has been moved to §121.70. References to relevant statutes and rules are added and corrected, and the section is renumbered accordingly.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the February 21, 2020 issue, of the Texas Register (45 TexReg 1161). The deadline for public comments was March 23, 2020. The Department did not receive any comments from interested parties on the proposed rules during the 30-day public comment period and no changes were made to the proposed rule text.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Department consulted with the Presiding Officer of the Behavior Analyst Advisory Board, who agreed that an additional Board meeting was not necessary to again consider the proposed rules. The Presiding Officer expressed the desire for the Department to proceed to present the proposed rules to the Commission for adoption as published in the Texas Register. At its meeting on June 30, 2020, the Commission adopted the proposed rules as supported by the Advisory Board.

STATUTORY AUTHORITY

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

  • 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) Authorized representative -- A person or entity that is authorized to represent the interests of the client and to perform functions including making decisions about behavior analysis services.

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

(7) Client--A person who is receiving behavior analysis services from a license holder for the person’s own treatment purposes, or a person or entity who is not receiving behavior analysis services from a license holder for their own treatment purposes including:

(A) an authorized representative of the person receiving behavior analysis services for the person’s own treatment purposes; or

(B) an individual, institution, school, school district, educational institution, agency, firm, corporation, organization, government or governmental subdivision, business trust, estate, trust, partnership, association, or any other legal entity.

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

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

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

(11) 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.

(12) 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.

(13) Multiple relationship--A personal, professional, business, or other type of interaction by a license holder with a client or with a person or entity involved with the provision of behavior analysis services to a client that is not related to, or part of, the behavior analysis services.

(14) Service agreement--The signed written contract for behavior analysis services. The service agreement includes responsibilities and obligations of all parties and the scope of behavior analysis services to be provided. The service agreement may be identified by other terms including treatment agreement, Memorandum of Understanding (MOU), or Individualized Education Program (IEP).

(15) Treatment plan--The written behavior change program for an individual client. The treatment plan includes consent, objectives, procedures, documentation, regular review, and exit criteria. The treatment plan may be identified by other terms including Behavior Intervention Plan, Behavior Support Plan, Positive Behavior Support Plan, or Protocol.

  • 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."

(d) Persons who hold a current Texas license may use the title “licensed behavior analyst” or a reasonable abbreviation of the title that is accurate and not misleading, including “LBA,” “L.B.A.,” “TXLBA,” or “TX. L.B.A.”

  • 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."

(d) Persons who hold a current Texas license may use the title “licensed assistant behavior analyst” or a reasonable abbreviation of the title that is accurate and not misleading, including “LaBA,” “L.a.B.A.,” “TXLaBA,” or “TX. L.a.B.A.” The letter “a” representing the word “assistant” may not be capitalized unless the abbreviation clearly represents the word “assistant,” including “Lic. Asst. BA,” “TX L. Assist. B.A.” or similar.

  • 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;

(3) demonstrate completion, in a manner prescribed by the department, of human trafficking prevention training required under Texas Occupations Code, Chapter 116, for each license renewal on or after September 1, 2020; and

(4) 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.

  • 121.70. 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) Administrative Practice Responsibilities. 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) when creating a written agreement for services, comply with applicable professional and ethical standards and requirements including those of the license holder’s certifying entity.

(9) upon revision or amendment of a written agreement for services, obtain the signatures of all parties.

(10) 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.

(11) 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.

(12) 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.

(13) display the current original license certificate as issued by the department in the primary location of practice, if any, or in the license holder’s business office, but shall not display a license that has been photographically or otherwise reproduced.

(14) carry and display a department-issued duplicate of the current license certificate or license card or an unmodified image of the department-issued license certificate or license card, as appropriate and necessary, at locations other than the primary location of practice. The license holder shall produce the current original department-issued license certificate or license card upon request.

(15) use electronic methods to create, amend, or sign documents, and accept signatures of clients on documents related to the provision of behavior analysis services, only in accordance with applicable law.

(c) Professional Services Practice Responsibilities. A license holder shall:

(1) enter into a service agreement with a client, as defined in §121.10(7), when behavior analysis services are to be provided;

(A) The services to be delivered shall be described in a service agreement and may include the following activities: consultation, assessment, training, treatment design, treatment implementation, and treatment evaluation.

(B) A treatment plan shall be created when the service agreement provides for a behavior analyst to deliver treatment to an individual.

(C) A treatment plan is not required if a behavior analyst will not deliver treatment to an individual.

(2) include in the service agreement or otherwise document and disclose to the client, as appropriate;

(A) conflicts of interest or multiple relationships that the license holder is aware of or becomes aware of, as defined in §121.10;

(B) a description of how a conflict of interest or multiple relationship will be addressed if one is discovered or disclosed;

(C) the acknowledgment of known conflicts of interest or multiple relationships and agreement to begin or to continue behavior analysis services despite them; and

(D) a reasoned justification for beginning or continuing to provide behavior analysis services if conflicts of interest or multiple relationships are acknowledged;

(3) re-evaluate treatment progress as needed and at least annually, and document the evaluation; and

(4) comply with all applicable requirements of the license holder’s certifying entity including the BACB Professional and Ethical Compliance Code for Behavior Analysts when entering into service agreements and providing behavior analysis services.

(d) 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.

(e) 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.

(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 the license holder’s 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) 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.

(10) obtain written consent from a client in order to use the client's data or information for research or teaching activities.

(11) 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.

(12) 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.

(13) if requested, provide an explanation of the charges for behavior analysis services previously made on a bill or statement in writing and in plain language.

(14) if requested, accurately represent and describe any product created or recommended by the license holder that is used or will be used in providing behavior analysis services to the client.

(15) 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.

(16) not overcharge a client or third party.

(17) not over treat a client.

(18) 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.

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

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

(21) 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 license holder is incapable of practicing with reasonable skill and safety to clients in the provision of behavior analysis services.

(22) 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.

(23) refrain from participating in inappropriate or exploitative multiple relationships. Inappropriate or exploitative multiple relationships are prohibited.

(A) Inappropriate or exploitative relationships include, but are not limited to, relationships in which:

(i) the license holder's objectivity is impaired or likely to be impaired;

(ii) the license holder’s ability to provide competent services is impaired or prevented;

(iii) the relationship is or reasonably could be harmful to the well-being of a client, supervisee, employee, student, or other person involved in the provision of behavior analysis services with the license holder, including the person’s emotional, psychological, physical, social, or financial well-being;

(iv) the relationship creates or could create a conflict of interest among the license holder and a client or any person or entity involved in or connected with the provision of behavior analysis services to a client, unless the conflict of interest has been addressed in accordance with §121.70(c)(2); or

(v) the license holder receives an advantage, benefit, or thing of value other than regular compensation for behavior analysis services provided.

(B) Inappropriate or exploitative relationships may include unprofessional behavior such as: deception; trickery; undue pressure or influence, including giving or acceptance of gifts; intimidation; or threats; but need not be accompanied by such behaviors to be inappropriate or exploitative.

(C) Multiple relationships, other than those related to the provision of behavior analysis services or that have been addressed in accordance with §121.70(c)(2), between the license holder and the following may be considered inappropriate or exploitative unless evidence demonstrates otherwise:

(i) client;

(ii) authorized representative of the client;

(iii) spouse or significant other of the client;

(iv) cohabitants of the client;

(v) first-degree and second-degree relatives of the client; and

(vi) persons with whom the client shares a close personal, business, or financial relationship.

(D) Except as provided in §121.70(c)(2), multiple relationships are prohibited:

(i) during the provision of behavior analysis services to the client;

(ii) for a minimum of two years after behavior analysis services have ended;

(iii) at all times after behavior analysis services have ended if behavior analysis services for the same client are reasonably expected to be requested from the license holder again; and

(iv) indefinitely until there is reasonable certainty that the potential for harm to the client is unlikely.

(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 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.

  • 121.95. 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 not make any alteration on official documents issued by the department.

(d) The commission has adopted rules in Chapter 100 of this title related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031.

(e) A qualified person may assist the department in the review and investigation of complaints and is immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

(f) Provisions regarding the confidentiality of complaint and disciplinary information under this chapter are located in Texas Occupations Code §51.254.

(g) 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 Texas Occupations Code §51.254.

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

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on July 9, 2020.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation