Adopted Administrative Rules
JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Speech-Language Pathologist and Audiologist
16 TAC Chapter 111, amendment Subchapter V, §111.212
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter V, §111.212, regarding the Speech-Language Pathologists and Audiologists program, without changes to the proposed text as published in the January 26, 2018, issue of the Texas Register (43 TexReg 433). The rules will not be republished.
JUSTIFICATION AND EXPLANATION OF THE RULES
The adopted rule is a result of changes in regulation involving telepractice and telehealth, specifically related to in-person initial contact. According to the U.S. Federal Trade Commission staff, of the 19 states and the District of Columbia that have telepractice laws, rules, or policies for speech-language pathology or audiology, Texas is one of only three states that has an in-person initial contact or evaluation requirement. (Source: Letter dated November 29, 2016, from the U.S. Federal Trade Commission (FTC) staff to the Delaware Board of Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers (DE Board) regarding the DE Board’s proposed telepractice rules.)
In the FTC letter, the FTC staff discussed various regulations and developments in the use of telepractice to deliver speech-language pathology and audiology services, and the potential increase in competition and access to services through telepractice. The FTC staff encouraged the DE Board to reconsider its proposed telepractice rules by allowing licensees to determine whether telepractice is appropriate for an initial evaluation and by eliminating the requirement that all initial evaluations must be in-person.
In addition, the Texas Legislature enacted S.B. 1107, 85th Legislature, Regular Session (2017). This bill, in part, addressed provisions in the Texas Medical Board’s statute and rules regarding telemedicine and face-to-face contact with patients. The bill also included provisions regarding telehealth, including provisions that the standard of care for services provided by telehealth is the same as the standard of care for services provided in-person, and that a regulatory agency cannot adopt rules that would impose a higher standard of care for telehealth services than for services provided in-person.
The Texas Department of Licensing and Regulation (Department) viewed these changes and others as guidance in reviewing its existing telehealth/telepractice rules. The Department amended §111.212 due to changes in regulation regarding telehealth/telepractice related to in-person initial contact.
The adopted rule is necessary to eliminate a restriction on the use of telehealth by speech-language pathologists. Specifically, the adopted rule eliminates the requirement that the initial contact with a client must be in-person at the same physical location to determine the client’s candidacy for telehealth before any services can be provided by telehealth. The adopted rule eliminates an unnecessary restriction that may be viewed as anti-competitive or as an obstacle to obtaining or providing speech-language pathology services.
The adopted rule amends §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists. The adopted rule amends subsection (h) by eliminating the requirement that a speech-language pathologist’s initial contact with a client must be at the same physical location to determine the client’s candidacy for telehealth before any services can be provided by telehealth. The adopted rule allows a speech-language pathologist’s initial contact with a client to be either at the same physical location or through telehealth/telepractice, as determined appropriate by the licensed speech-language pathologist.
The language in former subsection (h) related to determining the client’s candidacy for telehealth has been modified and relocated to new subsection (i). New subsection (i) provides that the speech-language pathologist shall consider relevant factors including the client’s behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth/telepractice. This determination is not tied to the initial contact with the client.
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the January 26, 2018, issue of the Texas Register (43 TexReg 433). The deadline for public comments was February 26, 2018. During the 30-day public comment period the Department received comments from seven interested parties, consisting of six individuals and the Texas Speech-Language-Hearing Association (TSHA). The public comments received are summarized below.
Comment--The Department received a comment from an individual who supports eliminating the current rule that requires “teletherapists to have first contact in person or conduct an initial evaluation in person.” The comment letter stated that the individual is a teletherapist who lives in Texas but does not see clients in Texas because of the current rule. The individual stated that other states do not have this rule. The individual explained that eliminating the current rule would allow the individual to work with clients in Texas.
Department Response--The Department appreciates the comment in support of the proposed rule and the information provided regarding the impact of the current rule and the proposed rule on the commenter’s practice and the information about other states not having this rule. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from an individual who supports the rule change, but wants the change expanded to audiologists. The individual noted that the rule change only affects telepractice for speech-language pathologists and asked if this rule change could be expanded to amend the same requirement currently in place for audiology telepractice. The individual requested information regarding how to send a request for a rule change.
Department Response--The Department appreciates the comment in support of the proposed rule regarding telepractice for speech-language pathologists. Regarding the audiology telepractice rules, there is not a similar in-person initial contact requirement for audiologists in rule 16 TAC §111.215, Requirements for Providing Telepractice Services in Audiology. There is an in-person initial contact requirement in the joint rules with the Hearing Instrument Fitters and Dispensers regarding fitting and dispensing hearing instruments by telepractice (16 TAC §111.232(j) and §112.150(l)). These joint rules have been sent to a joint workgroup of the Speech-Language Pathologists and Audiologists Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board for review and future revision.
The requirements for requesting a rule change are set out under 16 Texas Administrative Code §60.102, Petition for Adoption of Rules. This rule is part of the Department’s procedural rules under 16 TAC Chapter 60, which are posted on the Department’s website. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from an individual who supports the proposed rule change. The individual stated that telehealth services “are designed to bring expert clinicians to those who are either living too far away from services, cannot physically access services, or who wish a particular type of service that is out of reach. In addition, telehealth services provide clients with more choices.” The individual stated that the current restriction creates barriers and that allowing telehealth for initial contact and assessment will improve services and will be in line with other states. The individual stated that a “need for consistency across states, is a growing concern and a topic in discussion in ASHA circles.”
Department Response--The Department appreciates the comment in support of the proposed rule and the information provided regarding telehealth services, the impact of the current rule and the proposed rule on providing services, the alignment of the proposed rule with other states, and the discussions that are happening in the American-Speech-Language-Hearing Association (ASHA) community. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from an individual who would like to see the initial in-person contact requirement waived or removed. The individual, who owns a clinic, would like to provide services to people in underserved areas in Texas, but is unable to do so because of the current rule. The individual stated that there is very little physical touching between the licensed speech pathologist and the patient and that a person “on the ground” would be able to aid with an online evaluation. The individual further stated that “other companies are now offering the ability to practice telehealth from outside of Texas for a private fee that is often inflated. Having the ability to assess and treat via telehealth will allow Texans across the state to be served by other Texans for a fair, market rate. Additionally, insurance companies have all approved the use of teletherapy for speech pathology, including the American Speech and Hearing Association. The removal of this rule will open the door for under-served areas to have speech pathologists help where needed at a fair cost.”
Department Response--The Department appreciates the comment in support of the proposed rule and the information provided regarding speech-language pathology services, the impact of the current rule and the proposed rule on providing and obtaining services in Texas, and the approved use of telehealth for speech pathology by insurance companies and the association. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from an individual who supports “the proposed rule change eliminating the need for an initial in person contact prior to initiating tele therapy services.” The comment stated that the individual has worked in California and Illinois via teletherapy and has “found student success with evaluations as well as therapy without the need for an initial contact in person.”
Department Response--The Department appreciates the comment in support of the proposed rule and the information provided regarding the use and success of teletherapy in other states. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from an individual who supports removing the initial in-person requirement, whether through the proposed amendment or the repeal of the current rule. The individual is licensed in several states including Texas. The individual currently works as a teletherapist serving students in three different school districts around the United States.
The comment explained the individual’s experience with schools and school districts that have chronic and consistent shortages of speech-language pathologists and that teletherapy is “a must for these schools”. The individual stated that teletherapy is reducing the provider gap, but speech-language pathologists “need the option to use teletherapy for speech assessments.” The current rule, which requires initial in-person contact for assessment, is delaying services for schools that do not have an onsite speech-language pathologist to conduct the assessment. The individual stated that students “must wait until a therapist is able to travel to the school; this wait can be weeks.”
The individual stated that teletherapy “is a proven service mechanism and the students I have served have thrived using this mechanism. I am a trained professional who is comfortable using teletherapy and I am able to assess a student’s needs and address the issue if teletherapy is not appropriate for a student.”
The individual also stated that “as part of my SLP license I may not ‘engage in unprofessional conduct that endangers the health, welfare, or safety of the public’. . . and I may only ‘render those telepractice services that are within the course and scope of [my] licensure and competence”.… I am already bound to ensure that I am comfortable and competent with the technology and its abilities and limits, and any service or assessment I may do via teletherapy is consistent with in-person services and does not harm the patient. Our licensure already ensures proper services for patients at all stages and thus restricting telepractice, even when done with good intent, only hampers our ability to provide the best possible services to all of our students.”
Department Response--The Department appreciates the comment in support of the proposed rule and the information provided regarding the shortage of speech-language pathologists in school districts, the impact of the current rule on school districts, the commenter’s experiences in successfully using teletherapy, and the standard of care in using telehealth. The Department did not make any changes to the proposed rule based on the public comment.
Comment--The Department received a comment from the Texas Speech-Language-Hearing Association (TSHA). TSHA expressed concerns with the proposed rule change to §111.212(h), and asked that the current requirement not be changed.
The TSHA comment expressed concerns that the proposed rule conflicts with “best practices.” (A specific set of best practices was not referenced or provided with the comment letter.) The comment stated: “Best practice dictates that the responsible fully licensed SLP must evaluate and determine the best course of treatment for a client, since they are ultimately responsible. … [The] assessment and ultimate decision of the best means by which therapy (if indicated) should be provided must be made by a fully licensed SLP in a face-to-face meeting with the client, in accordance with best practices.”
The TSHA comment also expressed concerns that the proposed rule “challenges the limits of our code-of-ethics.” (A specific code of ethics was not referenced or provided with the comment letter.)
The TSHA comment recognized that the current rule language has been challenged by the U.S. Federal Trade Commission (FTC) in other regions. However, the comment stated that the licensing statute is a public protection act and “should not be compromised to accommodate the wishes of therapy providers who do not have fully licensed SLP’s available on-site to provide services. Quality care for the citizens of Texas should be the mantra for the delivery of our services.”
Department Response--The Department appreciates the comment and the concerns expressed. The Department will address those concerns in its response below; however, the Department did not make any changes to the proposed rule based on the public comment.
Regarding the concern about “best practices,” the Department agrees that the licensed speech-language pathologist must evaluate and determine the best course of treatment for a client since the licensed speech-language pathologist is ultimately responsible. The proposed rule provides that the determination, regarding whether the initial contact with a client will be in person or through telehealth, will be made by the licensed speech-language pathologist. The licensed speech-language pathologist will use his or her professional judgment in determining whether the use of telehealth is appropriate. The proposed rule also requires the licensed speech-language pathologist to consider relevant factors in determining the appropriateness of providing services via telehealth/telepractice.
The former rule contained a blanket requirement that all initial contacts must be in person, which does not allow for the professional judgment of the licensed speech-language pathologist. The proposed rule replaces the across-the-board restriction with a provision that allows the licensed speech-language pathologist to make the determination whether in person contact or telepractice is appropriate for an initial contact with a client.
A specific set of best practices was not referenced or provided with the TSHA comment letter. Department staff reviewed the TSHA website (http://www.txsha.org/) and were unable to locate any documents identified as “best practices” documents. The TSHA website contained a page on “Telepractice Resources” (http://www.txsha.org/page/telepractice-resources); however, the public pages (pages that were accessible and not restricted to members only) did not include any “best practices” documents or any statements that the initial contact with the client must be in-person. The TSHA “Professional Resources” page (http://www.txsha.org/professional_resources) included a list of topics with links to the American Speech-Language-Hearing Association (ASHA) website. The Telepractice topic linked to the ASHA Practice Portal website on Telepractice.
The Department staff reviewed the American Speech-Language-Hearing Association (ASHA) website (https://www.asha.org/). Under the ASHA Practice Portal on Telepractice (https://www.asha.org/Practice-Portal/Professional-Issues/Telepractice/), there is a variety of information under the tabs: Overview, Key Issues, Resources, and References.
Under the Telepractice Key Issues tab, there are 11 key issues listed, and three of those issues appear to be most relevant to the proposed rules.
Roles and Responsibilities. Under this key issue, the provisions state that the responsibilities of the speech-language pathologist include: (1) “selecting clients who are appropriate for assessment and intervention services via telepractice”; and (2) “selecting and using assessments and interventions that are appropriate for the technology being used and that take into consideration client and disorder variables”.
Client Selection. Under this key issue, the provisions state: “Because clinical services are based on the unique needs of each individual client, telepractice may not be appropriate in all circumstances or for all clients. Candidacy for receiving services via telepractice should be assessed prior to initiating services. The client’s culture, education level, age, and other characteristics may influence the appropriateness of audiology and speech-language services provided via telepractice.” This provision also includes a list of factors that may impact the client’s ability to benefit from telepractice (physical and sensory characteristics; cognitive, behavioral and/or motivation characteristics; communication characteristics; and client support resources). These client selection provisions, however, do not include any statements that require in-person initial contact with all clients or require face-to-face meetings for assessments.
Practice Areas. Under this key issue, the speech-language pathologist provisions state: “Telepractice is being used in the assessment and treatment of a wide range of speech and language disorders,” and it goes on to list a variety of disorders with cites to the research.
The Department staff was not able to locate any “best practices” documents or statements that state that the initial contact between the licensed speech-language pathologist and the client must be in-person, face-to-face.
Code of Ethics
Regarding the concerns about the code of ethics, the Department does not believe that the proposed rule conflicts with the speech-language pathologists’ code of ethics as set out in existing rule 16 TAC §111.155, Standards of Ethical Practice (Code of Ethics). The proposed rule does not require or permit licensed speech-language pathologists to violate their professional responsibilities or any code of ethics in delivering services to clients by telehealth/telepractice. In addition, 16 TAC §111.212 includes provisions that require licensed speech-language pathologists to work within their scope of practice and competence related to the use of telepractice.
A specific code of ethics was not referenced or provided with the TSHA comment letter. Department staff reviewed the Code of Ethics published on the TSHA website (http://www.txsha.org/code_of_ethics) and the Code of Ethics published on the ASHA website (https://www.asha.org/Code-of-Ethics/). Neither associations’ Code of Ethics contained provisions that required in-person initial contact prior to the use of telehealth services or contained statements indicating that the proposed rule would cause speech-language pathologists to violate a specific code of ethics.
Public Protection and Quality Care
Regarding the concern about protecting the public and delivering quality care, the Department agrees that one of the primary purposes of the speech-language pathologists licensing statute and rules is protecting the public and ensuring the delivery of quality care and services. The Department believes the proposed rule protects the public and promotes the delivery of quality care by removing an unnecessary barrier for licensed speech-language pathologists and for clients seeking services.
The proposed rule eliminates a barrier to licensed speech-language pathologists providing services by eliminating a restriction on the speech-language pathologist’s professional judgment and putting the determination about the appropriateness of the use of telehealth/telepractice in the hands of the licensed speech-language pathologist. The public benefit will be the elimination of a restriction on the use of telehealth, which may make it easier for qualified, licensed individuals to provide speech-language pathology services remotely.
In addition, the proposed rule eliminates a barrier to clients having access to and receiving services. It would benefit clients, especially those who do not live close to licensed speech-language pathologists, by saving the clients time and travel costs associated with attending an initial visit at the same physical location as the licensed speech-language pathologist. As noted in the TSHA comment, some clients will thrive in therapy using telepractice. The Department wants to eliminate an unnecessary barrier for clients receiving services through telepractice.
Regarding the concerns about the quality of service provided through telehealth, the services provided through telehealth must be delivered at the same standard of care as services provided in person. The existing rules in Subchapter V, Telehealth, including §111.212, already establish protections regarding the delivery and quality of services provided by telehealth/telepractice.
On April 4, 2018, the Department received a late public comment on the proposed rule. The Commission previously met on March 27, 2018, and adopted the proposed rule without changes as recommended by the Advisory Board. The Department will not address or respond to this late public comment as part of this rulemaking.
ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION
The Department staff made a presentation at the Speech-Language Pathologists and Audiologists Advisory Board (Advisory Board) meeting on June 30, 2017, regarding the trends in regulation involving telehealth/telepractice and in-person initial contact with clients.
Draft options for the proposed rule were presented to and discussed by the Advisory Board at its meetings on November 15, 2017, and January 4, 2018. The proposed rule reflected those discussions with Advisory Board members and Department staff and reflected the option selected by the Advisory Board.
At its meeting on January 4, 2018, the Advisory Board voted and recommended that the proposed rule be published in the Texas Register for public comment.
The Advisory Board met again on March 6, 2018, to review the public comments received on the rule and to make a recommendation to the Commission regarding the proposed rule. Based on the public comments received, the Advisory Board did not recommend any changes to the proposed rule as published. The Advisory Board voted and recommended that the Commission adopt the proposed rule as published.
At its meeting held on March 27, 2018, the Commission adopted the proposed rule without changes as recommended by the Advisory Board.
The amendments are adopted under Texas Occupations Code, Chapters 51 and 401, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 401. No other statutes, articles, or codes are affected by the adoption.
§111.212. Requirements for the Use of Telehealth by Speech-Language Pathologists.
(a) The requirements of this section apply to the use of telehealth by speech-language pathologists.
(b) A provider shall comply with the commission's Code of Ethics and Scope of Practice requirements when providing telehealth services.
(c) The scope, nature, and quality of services provided via telehealth are the same as that provided during in-person sessions by the provider.
(d) The quality of electronic transmissions shall be equally appropriate for the provision of telehealth services as if those services were provided in person.
(e) A provider shall only utilize technology which they are competent to use as part of their telehealth services.
(f) Equipment used for telehealth services at the clinician site shall be maintained in appropriate operational status to provide appropriate quality of services.
(g) Equipment used at the client/patient site at which the client or consultant is present shall be in appropriate working condition and deemed appropriate by the provider.
(h) The initial contact between a licensed speech-language pathologist and client may be at the same physical location or through telehealth/telepractice, as determined appropriate by the licensed speech-language pathologist.
(i) A provider shall consider relevant factors including the client’s behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth/telepractice.
(j) A provider shall be aware of the client or consultant level of comfort with the technology being used as part of the telehealth services and adjust their practice to maximize the client or consultant level of comfort.
(k) When a provider collaborates with a consultant from another state in which the telepractice services are delivered, the consultant in the state in which the client receives services shall be the primary care provider for the client.
(l) As pertaining to liability and malpractice issues, a provider shall be held to the same standards of practice as if the telehealth services were provided in person.
(m) A provider shall be sensitive to cultural and linguistic variables that affect the identification, assessment, treatment, and management of the clients.
(n) Upon request, a provider shall submit to the department data which evaluates effectiveness of services provided via telehealth including, but not limited to, outcome measures.
(o) Telehealth providers shall comply with all laws, rules, and regulations 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.
(p) Notification of telehealth services shall be provided to the client, the guardian, the caregiver, and the multi-disciplinary team, if appropriate. The notification shall include, but not be limited to: the right to refuse telehealth services, options for service delivery, and instructions on filing and resolving complaints.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Office of the Secretary of State, on April 10, 2018.
Brian E. Francis
Texas Department of Licensing and Regulation