Justification for Administrative Rule Adoption

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Behavior Analysts
16 Texas Administrative Code, amendments to Chapter 121, §§121.10, 121.21, 121.22, 121.70, and 121.75; and new rule §121.71

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, 121.70, and 121.75, regarding the Behavior Analysts Program.

The Commission also adopts new rules at 16 TAC Chapter 121, §121.71, regarding the Behavior Analysts Program.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 121 implement Texas Occupations Code, Chapter 506, Behavior Analysts, and Chapter 111, Telemedicine and Telehealth.

The proposed rules establish standards and responsibilities for delivering behavior analysis services by license holders who choose to provide their services using telehealth. The proposed rules also add relevant definitions, update cross references, and make minor editorial changes in the chapter. The proposed rules are necessary to provide uniform standards and guidelines for the way license holders may practice behavior analysis using telehealth services.

The behavior analyst professional community is regulated by its national certifying entity but desired to create state telehealth standards for Texas. Telehealth as a method of providing behavior analysis services has long been practiced in the state and the rule amendments compile and organize minimum requirements in a framework that will promote consistency and uniform quality of care. The Standard of Care Workgroup of the Advisory Board met on July 20 and September 14 of 2020 to discuss and draft rule language.

The proposed rules were presented to and discussed by the Behavior Analyst Advisory Board at its meeting on November 4, 2020. The Advisory Board made the following changes to the proposed rules: changed “behavior analyst” to “license holder” in new §121.71(a)(1)(C); added “A provider shall consider relevant factors including the client's behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth” in new §121.71(d)(4); added “to a client” to the second half of the sentence in §121.71(d)(14); and made additional minor editorial changes in §121.75. The Advisory Board voted and recommended that the proposed rules with these changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §121.10 by adding thirteen definitions relevant to the practice of telehealth, make minor edits in three existing definitions, and renumber the section accordingly.

The adopted rules amend §121.21, Behavior Analyst Licensing Requirements, by adding a provision that clarifies that a behavior analyst must be licensed in Texas to serve clients in Texas unless exempt.

The adopted rules amend §121.22, Assistant Behavior Analyst Licensing Requirements, by adding a provision that clarifies that an assistant behavior analyst must be licensed in Texas to serve clients in Texas unless exempt.

The adopted rules amend §121.70, Responsibilities of License Holders, by changing the section title to Administrative Practice Responsibilities of License Holders. Professional practice responsibilities are moved from this section to a newly created section, and a set of administrative practice responsibilities for telehealth service is added to §121.70, including minimum requirements for data transmission and technology, and specifying methods of practice and activities that may be conducted using telehealth. Minor editorial changes are also made in the section.

The adopted rules add new §121.71, Professional Services Practice Responsibilities of License Holders. Existing professional responsibilities are moved from §121.70 into the new section, and new requirements are added in the section for professional responsibilities for practicing telehealth. Requirements for disclosure and client consent are updated to include consent for treatment delivery using telehealth, and minimum standards for quality of services, including legal requirements, use of facilitators, supervision, complaints, and records are provided. Cross reference corrections and minor editorial changes are also made in the section. In response to public comments received, the Advisory Board made the following changes to the proposed rules: removed “experimental” and added two instances of “yet” to §121.71(a)(2)(A) to read: “(A) the client’s consent to treatment that is transitional or provisional or for which its effectiveness has not yet been established, or effectiveness has not yet been established for the method, manner, or mode of treatment for which consent is obtained;” and replaced “the procedure is experimental” with “the effectiveness of the procedure has not yet been established for the method, manner, or mode of treatment” in §121.71(d)(3).

The adopted rules amend §121.75, Code of Ethics, to update cross references in accordance with renumbered provisions elsewhere in the chapter, and to make minor editorial changes.

PUBLIC COMMENTS

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the December 4, 2020, issue of the Texas Register (45 TexReg 8691). The deadline for public comments was January 4, 2021. The Department received comments from three interested parties on the proposed rules during the 30-day public comment period, from the Texas Association for Behavior Analysis Public Policy Group (TxABA PPG); the Behavioral Health Center of Excellence (BHCOE); and the Center for Autism and Related Disorders (CARD). The public comments are summarized below.

Comment--TxABA PPG commented in support of the rule amendments, commending the addition of thirteen definitions; the requirement for behavior analysts and assistant behavior analysts to be licensed in Texas to provide services to clients in Texas; the addition of administrative practice responsibilities related to telehealth; the creation of a new section for professional practice responsibilities including the new provisions related to telehealth; and the editorial changes to the Code of Ethics. TxABA PPG commented that the telehealth rules provide a framework for license holders that will result in uniform quality of care and protect the public.

Department Response--The Department appreciates the support expressed by TxABA PPG and agrees that the new and amended rules for the provision of behavior analysis using telehealth will benefit both clients and the profession. No changes have been made to the rules in response to this comment.

Comment--BHCOE and CARD oppose the use of the word “experimental” in two subsections of §121.71:

--(a) “A license holder shall: (2) include in the service agreement or otherwise document and disclose to a client, as appropriate:

(A) the client’s consent to treatment that is transitional, experimental, or provisional or for which its effectiveness has not been established, or effectiveness has not been established for the method, manner, or mode of treatment for which consent is obtained . . . .”

--(d)(3) “. . . A telehealth provider shall maintain a focus on evidence-based practice and identify appropriate meaningful outcomes for a client. When an established telehealth procedure is not available, a license holder shall notify a client or multi-disciplinary team, as appropriate, that the procedure is experimental.”

The BHCOE objects to the characterization of behavior analysis practiced using telehealth as “experimental.” The BHCOE states that the treatment itself is still evidence-based and is administered within the same practice standards of the licensed practitioner. BHCOE also expressed concern that labeling treatment administered through telehealth as experimental may affect insurance reimbursement for services.

CARD expressed support for the Department’s rules to facilitate the practice of behavior analysis through telehealth. However; CARD echoes the concerns that the use of the word “experimental” in the proposed rule opens the door to characterizing behavior analysis treatment as experimental. CARD raised the concern that insurance coverage could be denied or adverse benefit determinations could result. Citing Insurance Code §1355.251, defining nonquantitative treatment limitations that include “a medical management standard limiting or excluding benefits based on . . . whether a treatment is experimental or investigational,” CARD recommends that the Department’s rule specifically refer to Insurance Code, §1355.251.

The commenter noted that Texas law prohibits limits on mental health care such as behavior analysis from being more restrictive than limits on other health care services but believes the Department’s rule does this by labeling behavior analysis treatment experimental. CARD commented that the rule does not define what is an established telehealth procedure such that a treatment should be characterized as experimental if it does not fit that meaning or if an established telehealth procedure does not exist. CARD expressed concern that established behavior analysis treatment, unlike other healthcare services, is being required to be labeled as experimental if the mode of delivery has changed to telehealth, and therefore is being treated more restrictively than other health care services. Both BHCOE and CARD request the removal of the two sentences in §121.71 that contain the word “experimental” and, if they are not removed, CARD recommends that the Department clarify that characterizing behavior analysis as experimental is not a basis on which insurers or health plans may deny coverage.

Department Response--The Department appreciates CARD’s support for the telehealth rules. The Department disagrees that the rule amendments characterize treatment delivered using telehealth as experimental. However, the Department agrees that requiring the use of the word “experimental” to describe a telehealth procedure that has not become established is not necessary. The rule text in §121.71(d)(3) has been modified to require that notification that the effectiveness of the procedure has not been established is required, and the license holder may use any appropriate descriptors applicable to the treatment or the method of delivery of the treatment. In addition, the word “experimental” has been removed from §121.71(a) to avoid misinterpretation. The license holder is not required to use any particular terminology but must accurately describe the support for the effectiveness of both the treatment that is to be provided and its delivery using telehealth when obtaining consent for behavior analysis treatment. This specificity for the consent to treatment is in keeping with the license holder’s professional and ethical responsibilities under the Act, this chapter, and the certifying entity’s requirements regarding the obligation to be candid and forthright with clients about the provision of services.

The Department is unable to prescribe by rule what treatments or treatment methods should be considered experimental; the license holder must make this determination individually for each client. Even a behavior analysis treatment method that is fully accepted as evidence-based and effective may not be demonstrated to be effective when delivered using telehealth. Under such conditions the license holder is obligated to acknowledge that the effectiveness of the telehealth procedure has not yet been established for the particular behavior analysis service provided using that method of delivery. The Department has added the word “yet” to the two modified rule provisions to reflect the ongoing process and temporal nature of the development of evidence to support delivery of services via telehealth.

The Department is not authorized to regulate the obligations of license holders in relation to billing or payment for behavior analysis services and does not interpret or enforce related requirements. Behavior analysts are obligated to know and follow the law governing the practice of their profession, including restrictions and limitations on the provision of their services. The Department does not regulate the terminology used for billing purposes or for describing the treatment and services provided to clients, other than to require it to be truthful and accurate.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Behavior Analyst Advisory Board met on February 26, 2021, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register, with the noted changes to §121.71 made in response to public comments. At its meeting on May 6, 2021, the Commission adopted the proposed rules with changes as recommended by the Board.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, which authorize the Texas Commission of Licensing and Regulation, 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, 111, 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) Asynchronous telehealth--Store-and-forward telehealth practice including the transmission of images or data when the data transfer does not occur in real-time.

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

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

(8) 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.

(9) Client site--The physical location of a client at the time behavior analysis services are practiced through synchronous or asynchronous telehealth. Also termed the origination site.

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

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

(12) Direct observation--A method of data collection that consists of observing the object of study in a particular situation or environment.

(13) Direct supervision--Supervision of a person who is performing behavior analysis services with a client.

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

(15) Facilitator--An individual physically present with a client who assists with the delivery of behavior analysis services at the direction of a behavior analyst or assistant behavior analyst.

(16) Indirect supervision--Supervision of a person who performs behavior analysis services but which does not occur when services are being provided to a client. This may include behavioral skills training and delivery of performance feedback; modeling technical, professional, and ethical behavior; guiding behavioral case conceptualization, problem-solving, and decision-making repertoires; review of written materials such as behavior programs, data sheets, or reports; oversight and evaluation of the effects of behavioral service delivery; and ongoing evaluation of the effects of supervision.

(17) 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.

(18) 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.

(19) 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.

(20) Provider--An individual who holds a current, renewable, behavior analyst or assistant behavior analyst license under this chapter, or who is authorized to provide behavior analysis services.

(21) Provider site--The physical location of a provider at the time behavior analysis services are furnished through synchronous or asynchronous telehealth. Also termed the distance site.

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

(23) Supervision--Supervision of a person who performs behavior analysis services, and may include both direct and indirect supervision.

(24) Synchronous telehealth--telehealth services that require transmission of images, video, or data through a communication link for real-time interaction to take place.

(25) Telecommunications--Interactive communication by two-way transmission using telecommunications technology, including, but not limited to sound, visual images, or computer data.

(26) Telecommunications technology--Computers and equipment used or capable of use for purposes of telecommunications, other than analog telephone, email, or facsimile technology and equipment. Telecommunications technology includes, but is not limited to:

(A) compressed digital interactive video, audio, or data transmission;

(B) clinical data transmission using computer imaging by way of still-image capture, storage and forward; and

(C) other technology that facilitates the delivery of telehealth services.

(27) Telehealth service--The meaning of “telehealth service” is the same as defined in Occupations Code Chapter 111.

(28) Treatment plan--A written behavior change program for an individual client. A treatment plan includes consent, objectives, procedures, documentation, regular review, and exit criteria. A 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."

(e) Except as provided in Subchapter B, Texas Occupations Code Chapter 506, a person must be licensed under this chapter to provide behavior analysis services to a client in Texas.

  • 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.

(e) Except as provided in Subchapter B, Texas Occupations Code Chapter 506, a person must be licensed under this chapter to provide behavior analysis services to a client in Texas.

  • 121.70 Administrative Practice 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 a license holder's qualifications to hold a certification or license in accordance with §121.50.

(4) notify each client or a 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. A 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) Administrative Practice Responsibilities: Telehealth.

(1) Licensed behavior analysts and licensed assistant behavior analysts may provide telehealth services in accordance with the Act and Occupations Code, Chapter 111, and any requirements imposed by laws and rules governing health professional programs administered by the department. Unless the context requires otherwise, a reference to “direct” care, treatment, or other actions or observations by a behavior analyst or a person supervising a licensed behavior analyst or a licensed assistant behavior analyst in the course of client care include the provision of telehealth services.

(2) Except to the extent it imposes additional or more stringent requirements, this subsection does not affect the applicability of any other requirement or provision of law to which a person is subject under the Act, this chapter, or other law, or by the person’s certifying entity, when the person is functioning as a provider of telehealth services.

(3) Telehealth services may be delivered in a variety of ways, including, but not limited to, the following:

(A) the store-and-forward service delivery model/electronic transmission is an asynchronous electronic transmission of stored clinical data from one location to another; and

(B) the clinician interactive service delivery model is a synchronous, real time interaction between a provider and a client that may occur via telecommunication links.

(4) Live as compared to stored data refers to the actual data transmitted during the telehealth session. Live, real-time and stored clinical data may be included during the telehealth session.

(5) A license holder may engage in direct observation, direct supervision, or indirect supervision in-person and on-site, through telehealth, or in another manner approved by the license holder’s certifying entity.

(6) The quality of electronic transmissions shall be adequate for the provision of an individualized client’s telehealth service.

(7) A telehealth provider shall only utilize technology that the provider is competent to use as part of the provider’s telehealth services.

(8) A telehealth provider shall maintain equipment used for telehealth services at the provider site and, as applicable, at a client site at which a client is present, in adequate operational status to provide appropriate quality of service.

(9) Telehealth providers shall ensure that communications occur without a change in the form or content of the information, as sent and received, other than through encoding or encryption of a transmission itself for purposes of and to protect the transmission.

  • 121.71 Professional Services Practice Responsibilities of License Holders

(a) A license holder shall:

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

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

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

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

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

(A) the client’s consent to treatment that is transitional or provisional or for which its effectiveness has not yet been established, or effectiveness has not yet been established for the method, manner, or mode of treatment for which consent is obtained;

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

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

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

(E) 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.

(b) 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.

(c) 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.

(d) Professional Services Practice Responsibilities: Telehealth.

(1) Except to the extent it imposes additional or more stringent requirements, this subsection does not affect the applicability of any other requirement or provision of law to which a person is subject under the Act, this chapter, or other law, or by the person’s certifying entity, when the person is functioning as a provider of telehealth services.

(2) The requirements of this section apply to the use of telehealth by behavior analysts and assistant behavior analysts licensed under this chapter.

(3) A license holder shall provide the same quality of services via telehealth as is provided during in-person sessions. A telehealth provider shall maintain a focus on evidence-based practice and identify appropriate meaningful outcomes for a client. When an established telehealth procedure is not available, a license holder shall notify a client or multi-disciplinary team, as appropriate, that the effectiveness of the procedure has not yet been established for the method, manner, or mode of treatment.

(4) A telehealth provider shall notify a client or multi-disciplinary team, as appropriate, of the conditions of telehealth services, including, but not limited to, the right to refuse telehealth services, options for service delivery, differences between in-person and remote service delivery methods, and instructions for filing and resolving complaints.

(A) A telehealth provider shall obtain client consent before services may be provided through telehealth.

(B) A provider shall consider relevant factors including the client’s behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth.

(C) If a client previously consented to in-person services, a telehealth provider shall obtain updated consent to include telehealth services.

(5) Telehealth providers shall not provide services by correspondence only, e.g., mail, email, or faxes, although these may be used as adjuncts to telehealth.

(6) The initial contact between a license holder and a client may be at the same physical location or through telehealth, as deemed appropriate by the license holder.

(7) Telehealth providers shall comply with all laws, rules, and certifying entity requirements governing the maintenance of client records, including client confidentiality requirements, regardless of the state where the records of any client within this state are maintained.

(8) A telehealth provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management of a client when providing services through telehealth.

(9) Supervision undertaken through telehealth must meet the standards of the certifying entity.

(10) Subject to the requirements and limitations of this section, a telehealth provider may utilize a facilitator at a client site to assist the provider in rendering telehealth services.

(11) A telehealth provider, before allowing a facilitator to assist a provider in rendering telehealth services, shall ascertain a facilitator’s qualifications, training, and competence, as appropriate and reasonable, for each task a provider directs a facilitator to perform, and in the methodology and equipment a facilitator is to use.

(12) A facilitator may perform at a client site only the following tasks:

(A) a task for which a facilitator holds and acts in accordance with any relevant license, permit, or authorization required or exemption available under the Texas Occupations Code to perform the task; and

(B) those physical, administrative, and other tasks for which a telehealth provider determines a facilitator is competent to perform in connection with the rendering of behavior analysis services for which no license, permit, or authorization under the Texas Occupations Code is required or to which an exemption applies.

(13) A telehealth provider shall be able to see and hear a client and a facilitator, if used, via telecommunications technology in synchronous, real-time interactions, even when receiving or sending data and other telecommunication transmissions, when providing telehealth services.

(14) A telehealth provider shall not render telehealth services to a client if the presence of a facilitator is required for safe and effective service to a client and no qualified facilitator is available.

(15) A telehealth provider shall document the provider’s telehealth services to the same standard as in-person services.

  • 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, a 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 a license holder is qualified and that are within the scope of a 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 a client.

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

(8) maintain objectivity in all matters concerning the welfare of a 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 a 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 a 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 a 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 a license holder that is used or will be used in providing behavior analysis services to a 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 a client is not benefitting from the services being provided or when it is reasonably clear that a 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, a 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 a 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) a license holder's objectivity is impaired or likely to be impaired;

(ii) a 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 a 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 a 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 §121.71(a)(2); or

(v) a 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 §121.71(a)(2), between a license holder and the following may be considered inappropriate or exploitative unless evidence demonstrates otherwise:

(i) client;

(ii) authorized representative of a client;

(iii) spouse or significant other of a client;

(iv) cohabitants of a client;

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

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

(D) Except as provided in §121.71(a)(2), multiple relationships are prohibited:

(i) during the provision of behavior analysis services to a 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 a license holder again; and

(iv) indefinitely until there is reasonable certainty that the potential for harm to a 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 a license holder is licensed or otherwise authorized to use the title or professional identification.

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 May 12, 2021.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation