Proposed Administrative Rules

Chapter 121. Behavior Analyst
Proposal Filed: February 10, 2020 – Published in the Texas Register: February 21, 2020
Deadline for Public Comment: March 23, 2020

The Texas Department of Licensing and Regulation (Department) proposes 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.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rules implement §7.003 of House Bill (HB) 2847, Article 7, 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 proposed rules also implement §1 of HB 2059, 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 proposed rules are also necessary to 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. The proposed rules are the first amendments of the rules following the creation of the Behavior Analyst licensing program at the Department in the 85 th Legislative Session in 2017.

The Standard of Care workgroup of the Advisory Board met on May 23, July 18, and October 29 of 2018, and on September 16, 2019 to deliberate and create the rule amendments. The proposed rules were presented to and discussed by the Advisory Board at its meetings on December 6, 2018 and again on January 29, 2020. The Advisory Board made one change to the proposed rules, replacing "and" with "or" between parts (A) and (B) of the definition of "client." The Advisory Board voted and recommended that the proposed rules with this change be published in the Texas Register for public comment.

SECTION- BY- SECTION SUMMARY

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

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

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

The proposed 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 proposed rules amend §121.95 by implementing Texas Occupations Code §51.252, which provides immunity for assisting in the review and investigation of complaints. The proposed 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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for the first five-year period the proposed rules are in effect there are no estimated additional costs or reductions in costs to the state or to local governments as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or to local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect any local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit because the amendments specify more detailed professional obligations and standards for ethical behavior by license holders and require human trafficking prevention training, thus providing for more effective and efficient regulation and enhancing the public health, safety, and welfare.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed rules elaborate on existing ethical standards and professional obligations already imposed upon license holders by the certifying entity for all current license holders - the Behavior Analyst Certification Board (BACB), and by the Texas Behavior Analyst rules, adding specificity and clarity. For example, the BACB Professional and Ethical Compliance Code for Behavior Analysts requires license holders to prepare written agreements for behavior analysis services; the Texas rules specify minimum items of information to be included in those agreements. HB 2059 sets out the requirement for license holders to complete human trafficking prevention training and requires that the Health and Human Services Commission must provide at least one free option. Therefore, Mr. Couvillon anticipates that there will be no economic cost to license holders to update agreements or to otherwise comply with the proposed rule changes.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules implement changes due to House Bill 2847 and HB 2059 and will create a new regulation (rule) requiring license holders to complete a HHSC-approved human trafficking prevention training course as a condition of license renewal. This requirement becomes effective September 1, 2020. The proposed rules add definitions, expand the license holder’s responsibilities, and expand the Code of Ethics.

6. The proposed rules do not limit or repeal an existing regulation but do expand an existing professional obligation and ethical standards already imposed upon license holders by adding specificity to current requirements.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule’s applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner’s rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Dalma Sotero, Assistant General Counsel, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 506. No other statutes, articles, or codes are affected by the proposed 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) – (4) (No change.)

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

(7) [ (6) ] 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) [ (7) ] Commission--The Texas Commission of Licensing and Regulation.

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

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

(11) [ (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.

(12) [ (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.

(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) – (c) (No change.)

(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) – (c) (No change.)

(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) (No change.)

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

(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) [ (3) ] successfully pass a criminal history background check.

(b) – (h) (No change.)

§121.70. Responsibilities of License Holders.

(a) (No change.)

(b) Administrative Practice Responsibilities. A license holder shall:

(1) – (7) (No change.)

(8) when creating [ provide a client or a minor client's parent or authorized representative with ] a written agreement for services , comply with applicable professional and ethical standards and requirements including those of the license holder’s certifying entity [ 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) upon revision or amendment of a written agreement for services, obtain the signatures of all parties.

(10) [ (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.

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

(A) – (C) (No change.)

(12) [ (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.

(13) [ (12) ] 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) [ (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.

(e) [ (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) (No change.)

(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) – (3) (No change.)

(4) accurately and truthfully represent the license holder’s [ his or her ] education, training, credentials, and competence.

(5) – (8) (No change.)

 

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

(9) [ (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.

(10) [ (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.

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

(A) – (C) (No change.)

(12) [ (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.

(13) [ (14) ] 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 [ 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 ].

(14) [ (15) ] 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 .

[(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. ]

(15) [ (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.

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

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

(18) [ (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.

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

(20) [ (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. ]

(21) [ (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 license holder [ person ] 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) – (4) (No change.)

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

(6) (No change.)

§121.95. Complaints.

(a) – (b) (No change.)

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

(c) [ (d) ] 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) 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. ]

(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) [ (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 Texas Occupations Code §51.254 [ §506.202 of the Act ].

(h) [ (g) ] 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 10, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation