TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 121. BEHAVIOR ANALYST

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 TAC, Chapter 121, Subchapter A, §121.10; Subchapter B, §§121.20 - 121.22, 121.27, and 121.30; Subchapter D, §121.71 and §121.75; and Subchapter G, §121.90 and §121.95; new rules at 16 Texas Administrative Code (TAC), Chapter 121, Subchapter B, §121.26; Subchapter D, §§121.70, 121.72 - 121.74; Subchapter E, §§121.76 - 121.81; and Subchapter F, §121.85; and the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.23, 121.24, 121.26, 121.50, 121.70, and 121.80 regarding the Behavior Analyst program; and the addition of subchapter titles to an existing chapter. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rules implement changes from the internal four-year rule review. The proposed rules are necessary to provide guidelines to health professionals for the use of telehealth, update rule provisions to reflect current Department procedures, restructure the existing rules for better organization, and amend outdated rule language.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Behavior Analyst Advisory Board at its meeting on December 1, 2022. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter A, General Provisions.

The proposed rules amend §121.10, Definitions. The proposed rules remove references to supervision which have been moved to §121.76, Supervision; references to telehealth, which have been moved to Subchapter E, Telehealth; clarifies terms and removes definitions that are not used throughout the chapter.

The proposed rules create new Subchapter B, Licensing Requirements.

The proposed rules amend §121.20, Applications, which includes provisions from §121.23, Examinations, which was repealed and relocated into this section, and amends outdated rule language.

The proposed rules amend §121.21, Behavior Analyst Licensing Requirements, which includes provisions from §121.24, Educational Requirements, which was repealed and relocated into this section, and amends outdated rule language.

The proposed rules amend §121.22, Assistant Behavior Analyst Licensing Requirements, which includes provisions from §121.24, Educational Requirements, which was repealed and relocated into this section, and amend outdated rule language.

The proposed rules repeal §121.23, Examinations, as the text is being relocated to the proposed §121.20 discussed above.

The proposed rules repeal §121.24, Educational Requirements, as the text is being relocated to the proposed §§121.21-121.22.

The proposed rules repeal §121.26, Renewal, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §121.26, Renewal, by clarifying the requirements for renewal, including term of license, and removes the provision which prevents the department from renewing the license of a person who is in violation of rules or law at the time of renewal and amending outdated rule language.

The proposed rules amend §121.27, Inactive Status, update language to clarify that there is no fee to move from an active to inactive license status.

The proposed rules amend §121.30, Exemptions, to align the rule with statutory provisions.

The proposed rules repeal §121.50, Reporting Requirements, as the text is being relocated to the proposed §121.74, Reporting Requirements.

The proposed rules create new Subchapter C, Advisory Boards.

The proposed rules create new Subchapter D, Responsibilities of License Holders.

The proposed rules repeal §121.70, Administrative Practice Responsibilities of License Holders, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §121.70, Administrative Practice Responsibilities of License Holders, which remove duplicative provisions included in §121.95; moves license display requirements to new §121.72; moves recordkeeping requirements to §121.73; and moves telehealth requirements to Subchapter E, Telehealth.

The proposed rules amend §121.71, Professional Services Practice Responsibilities of License Holders, which clarify the definition and function of a treatment plan; and moves telehealth requirements to Subchapter E, Telehealth.

The proposed rules add new §121.72, Display of License, which relocates license display provisions and limitations related to the photocopy and reproduction of a license from §121.70, as discussed above.

The proposed rules add new §121.73, Recordkeeping Requirements, which relocates requirements from §121.70, and clarifies who owns and is responsible for maintaining patient records.

The proposed rules add new §121.74, Reporting Requirements, which relocates requirements from §121.74 without changes, which was repealed as discussed above.

The proposed rules amend §121.75, Code of Ethics, which includes amendments to outdated rule language.

The proposed rules create new Subchapter E, Telehealth.

The proposed rules add new §121.76, Definitions Relating to Telehealth, which relocates definitions related to telehealth and aligns them with other department health programs.

The proposed rules add new §121.77, Service Delivery Methods, which relocates delivery methods defined in §121.10 and §121.70 and aligns them with other department health programs.

The proposed rules add new §121.78, Technology and Equipment Requirements, which relocates telecommunications requirements related to equipment and competencies from §§121.70-121.71.

The proposed rules add new §121.79, License Holder Responsibilities for Providing Telehealth Services and Using Telehealth, which relocates responsibilities for providers from §§121.70-121.71 and aligns them with other department health programs.

The proposed rules add new §121.80, Use of Facilitators with Telehealth, which relocates requirements regarding facilitators for telehealth from §121.71.

The proposed rules add new §121.81, Client Contacts and Communications, which relocates requirements regarding required notifications to clients and complaint information from §121.70.

The proposed rules repeal §121.80, Fees, which has been relocated to new Subchapter F, discussed below.

The proposed rules create new Subchapter F, Fees.

The proposed rules add new §121.85, Fees, which relocates §121.80 without changes.

The proposed rules create new Subchapter G, Enforcement.

The proposed rules amend §121.90, Basis for Disciplinary Action, to provide more concise language related to which disciplinary actions can be taken against a license holder.

The proposed rules amend §121.95, Complaints, adds a requirement to include a parent or authorized representative in the complaint process and amends outdated rule language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

Tony Couvillon, Policy Research and Budget Analyst, 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 local government 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, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect a 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 benefit will be more effective and efficient regulation of behavior analysts and assistant behavior analysts, which enhances the health, safety, and welfare of the public.

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.

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

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a 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.

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 not create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rules expand a regulation to require records created as a result of treatment in a school setting to be maintained as part of the student's permanent school record, expand the definitions for telehealth and telecommunications.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' 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 electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

16 TAC §§121.23, 121.24, 121.26, 121.50, 121.70, 121.80

STATUTORY AUTHORITY

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

§121.23.Examination.

§121.24.Educational Requirements.

§121.26.Renewal.

§121.50.Reporting Requirements.

§121.70.Administrative Practice Responsibilities of License Holders.

§121.80.Fees.

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 December 22, 2022.

TRD-202205200

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §121.10

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) (No changes.)

(2) Advertising--The offer to perform behavior analysis services by an individual or [solicitation for] business, including utilizing the titles "licensed behavior analyst" or "licensed assistant behavior analyst."

(3) - (4) (No changes.)

[(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].

(5) [(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.

(6) [(7)] Behavior Analyst Certification Board (BACB)--A certifying entity for persons practicing behavior analysis.

(7) Client--A person who is:

(A) an individual receiving behavior analysis services from a license holder;

(B) an authorized representative of the individual receiving behavior analysis services; or

(C) 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 not receiving behavior analysis services for their own treatment purposes.

[(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.]

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

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

(10) [(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.]

(11) [(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.]

(12) [(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.

(13) [(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.

(14) [(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.

(15) [(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.]

(16) [(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).

(17) [(23)] Supervision--Supervision of a person who performs behavior analysis services, and may include both direct and indirect supervision. A license holder may engage in direct supervision or indirect supervision in-person and on-site, through telehealth, or in another manner approved by the license holder's certifying entity.

[(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.]

(18) Telehealth--See definitions in Subchapter E. Telehealth.

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

(19) [(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.

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 December 22, 2022.

TRD-202205180

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER B. LICENSING REQUIREMENTS

16 TAC §§121.20 - 121.22, 121.26, 121.27, 121.30

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.

§121.20.Applications.

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

(b) An applicant [Applicants] must submit the following:

(1) - (2) (No change.)

(3) the fee required under §121.85 [§121.80].

(c) Upon request, the [The] department may require an applicant to submit additional information or documentation for evaluation of an applicant's qualifications, including the following:

(1 ) - (7) (No change.)

(8) documentation demonstrating passage of the Board Certified Behavior Analyst examination, or an equivalent examination offered by the certifying entity, in applied behavior analysis [successful completion of applicable examination requirements, including a pass/fail report];

(9) - (11) (No change.)

(d) - (g) (No change.)

§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; and[.]

(3) meet the educational requirements of the certifying entity for the Board Certified Behavior Analyst, the Board Certified Behavior Analyst-Doctoral, or an equivalent standard of the certifying entity approved by the department.

(b) (No change.)

(c) A person [Persons] who holds a [hold] current certification by the certifying entity but who does [do] not hold a current license may not:

(1) - (2) (No change.)

(d) - (e) (No change.)

§121.22.Assistant Behavior Analyst Licensing Requirements.

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

(1) (No change.)

(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; and[.]

(4) meet the educational requirements of the certifying entity for the Board Certified Assistant Behavior Analyst or an equivalent standard of the certifying entity approved by the department.

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

(c) A person [Persons] who holds a [hold] current certification by the certifying entity but who does [do] not hold a current license may not:

(1) - (2) (No change.)

(d) A person [Persons] who holds [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) (No change.) §121.26.Renewal.

(a) A behavior analyst and assistant behavior analyst license is valid for two years from the date of issuance and may be renewed biennially.

(b) A license holder is responsible for submitting all required documentation and information and paying the renewal application fee prior to the expiration date of the license.

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

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

(2) provide a current certification number from the BACB;

(3) successfully pass a criminal history background check; and

(4) submit the fee required under §121.85.

(d) The license holder must complete the human trafficking prevention training required under Texas Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department.

(e) A person whose license has expired may not provide or offer to provide behavior analysis services or use the title or represent or imply that he or she has the title of "licensed behavior analyst" or "licensed assistant behavior analyst" and may not use any variation of those.

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

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

§121.27.Inactive Status.

(a) To change a license to inactive status, an applicant must submit a complete application on a department-approved form. There is no fee required to change from active status to inactive status.

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

(1) - (2) (No change.)

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

(4) (No change.)

(c) - (d) (No change.)

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

(1) (No change.)

(2) pay the fee required under §121.85(b)(6) [§121.80(b)(6)]; and

(3) (No change.)

§121.30.Exemptions.

(a) (No change.)

(b) A person who is no longer eligible for an exemption under §§506.051 - 506.059 of the Act is [Persons who are providing services for which a license is required under the Act or this chapter but who are not certified by a certifying entity may be] required to become certified by a certifying entity approved by the department and obtain a license under this chapter [in order] to continue to provide services.

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 December 22, 2022.

TRD-202205191

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER D. RESPONSIBILITIES OF LICENSE HOLDERS

16 TAC §§121.70 - 121.75

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.

§121.70.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 that satisfactorily demonstrates to the department the license holder's qualifications for certification by the certifying entity or for licensure by the department;

(3) report, in accordance with §121.74, to the department any fact that may affect a license holder's qualifications to hold a certification or license;

(4) 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;

(5) 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;

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

(7) comply with applicable professional and ethical standards and requirements including those of the license holder's certifying entity when creating a written agreement for services;

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

(9) 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; and

(10) 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.

§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) (No change.)

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

(C) (No change.)

(2) - (4) (No change.)

(b) - (c) (No change.)

[(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.]

§121.72.Display of License.

(a) A license holder shall display the current original license certificate issued by the department in the primary location of practice, if any, or in the license holder's business office.

(b) In the absence of a primary location of practice or business office, or when the license holder is employed in multiple locations, the license holder shall carry a current license identification card issued by the department.

(c) A license holder shall not:

(1) display a photocopy or other reproduction of a license certificate or identification card; or

(2) alter a license certificate or identification card.

§121.73.Recordkeeping Requirements.

(a) A licensee shall maintain legible and accurate records of behavior analysis services rendered.

(1) Records are the responsibility and property of the entity or individual who owns the practice or the practice setting.

(2) 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.

(3) Records created as a result of treatment in a school setting shall be maintained as part of the student's permanent school record.

(b) 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.

(c) Records shall be maintained for a minimum of the longer of:

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

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

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

§121.74.Reporting Requirements.

(a) A license holder shall report the following in a manner prescribed by the department within ten days:

(1) Surrender, voluntary termination, or expiration of the license holder's certification;

(2) Commencement of inactive status of the license holder's certification;

(3) Limitation on or termination of the license holder's certification;

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

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

(6) The license holder's placement on deferred adjudication or criminal conviction, other than a Class C misdemeanor traffic offense;

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

(8) An action against the license holder by a governmental agency or by a licensing or certification body.

(b) A license holder shall report a change in name or contact information to the department within thirty days in a manner prescribed by the department.

§121.75.Code of Ethics.

(a) (No change.)

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

(1) - (23) (No change.)

(c) (No change.)

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 December 22, 2022.

TRD-202205194

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER E. TELEHEALTH

16 TAC §§121.76 - 121.81

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.

§121.76.Definitions Relating to Telehealth.

Unless the context clearly indicates otherwise, the following words and terms, when used in this subchapter, shall have the following meanings.

(1) Client site--The physical location of the client at the time the telehealth services are being provided.

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

(3) Provider--An individual who provides telehealth services and holds a current:

(A) behavior analyst license under Texas Occupations Code §506.253 and §506.255; or

(B) assistant behavior analyst license under Texas Occupations Code §§506.254 - §506.255.

(4) Provider site--The physical location of the provider at the time the telehealth services are provided that is distant or remote from the client site.

(5) Telecommunications--Interactive communication at a distance by concurrent two-way transmission, using telecommunications technology, of information, including, without limitation, sound, visual images, and/or computer data, between the client site and the provider site, and required to occur without a change in the form or content of the information, as sent and received, other than through encoding or encryption of the transmission itself for purposes of and to protect the transmission.

(6) Telecommunications technology--Computers, smart phones, and equipment, other than email or fax, used or capable of use for purposes of telecommunications. For purposes of this subchapter, the term includes, without limitation:

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

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

(C) smart phones, or any audio-visual, real-time, or two-way interactive communication system; and

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

(7) Telehealth--The use of telecommunications and telecommunications technologies for the exchange of information from one site to another for the provision of behavior analysis services to a client from a provider, including for assessments, interventions, or consultations.

(8) Telehealth services--The application of telecommunications technology to deliver behavior analysis services at a distance for assessment, intervention, and/or consultation including the rendering of behavior analysis services through telehealth to a client who is physically located at a site other than the site where the provider is located.

§121.77.Service Delivery Models.

(a) Telehealth providers shall only provide behavior analysis services to an individual via audio-visual telecommunication, and shall not provide services by audio communication, or correspondence including mail, email, or fax, although these may be used as adjuncts to telehealth.

(b) Telehealth may be delivered in a variety of ways, including, but not limited to:

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

(2) the clinician interactive model which is a synchronous, real-time interaction between the provider and client that occurs via audio-visual telecommunication; and

(3) the self-monitoring/testing model which occurs when the client receiving the services provides data to the provider without a facilitator present at the site of the client.

(c) Live versus stored data refers to the actual data transmitted during the telehealth service. Both live, real-time, and stored clinical data may be included during the telehealth service.

§121.78.Technology and Equipment Requirements.

(a) A provider shall only utilize telecommunications technology if:

(1) the provider is competent to use the telecommunications technology as part of the provider's telehealth services;

(2) the telecommunications technology located at the client site and at the provider site are:

(A) appropriate to the telehealth services to be provided and in good working order; and

(B) are of sufficient quality to allow the provider to deliver equivalent service and quality to the client as if those services were provided in person at the same physical location.

(3) the provider is able to see and hear the client and the 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; and

(4) the quality of electronic transmissions shall be adequate to provide an individual client telehealth service.

(b) A provider 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.

§121.79.License Holder Responsibilities for Providing Telehealth Services and Using Telehealth.

(a) Applicability.

(1) Except where noted, this subchapter applies to behavior analysts and assistant behavior analysts, as authorized under this subchapter.

(2) Except to the extent it imposes additional or more stringent requirements, this subchapter does not affect the applicability of any other requirement or provision of law to which an individual is otherwise subject under this chapter or other law.

(b) Licensure and Scope of Practice.

(1) An individual shall not provide telehealth services to a client in the State of Texas, unless the individual is licensed by the department and qualifies as a provider as that term is defined in this subchapter or is otherwise legally authorized to do so.

(2) A provider may provide only those telehealth services that are within the course and scope of the provider's license and competence and delivered in accordance with the requirements of that license and pursuant to the terms and conditions set forth in this chapter.

(3) A provider may engage in direct observation, direct supervision, or indirect supervision in-person and on-site, through telehealth, or in another manner approved by the provider's certifying entity. Supervision provided through telehealth must meet the standards of the certifying entity.

(c) Competence and Standard of Practice; Code of Ethics.

(1) A provider of telehealth services shall be competent in both the type of services provided and the methodology and equipment used to provide the service.

(2) A provider shall comply with the code of ethics and scope of practice requirements in this chapter when providing telehealth services.

(3) The scope, nature, and quality of the services provided via telehealth shall be the same as the services provided during in-person sessions.

(4) A provider shall determine whether a particular service or procedure is appropriate to be provided via telehealth. A 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, the provider shall notify the 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.

(5) Documentation of telehealth services shall include documentation of the date and nature of services performed by the provider through telehealth and the assistive tasks of the facilitator, if used.

(6) A provider shall:

(A) consider relevant factors including the client's behavioral, physical, and cognitive abilities in determining the appropriateness of providing services via telehealth;

(B) be aware of the client's level of comfort with the technology being used as part of the telehealth services; and

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

§121.80.Use of Facilitators with Telehealth.

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

(b) A provider shall document whether a facilitator is used in providing telehealth services. If a facilitator is used, the provider shall document the tasks in which the facilitator provided assistance.

(c) Before allowing a facilitator to assist the provider in providing telehealth services, the provider shall ascertain and document the facilitator's qualifications, training, and competence, as appropriate and reasonable, in:

(1) each task the provider directs the facilitator to perform at the client site; and

(2) the methodology and equipment the facilitator is to use at the client site.

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

(1) 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

(2) 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.

§121.81.Client Contacts and Communications.

(a) A telehealth provider shall notify a client, the guardian, the caregiver, 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.

(b) A telehealth provider shall obtain client consent before services may be provided through telehealth. If a client previously consented to in-person services, a telehealth provider shall obtain updated consent to include telehealth services.

(c) The initial contact between a provider and client may be at the same physical location or through telehealth, as determined appropriate by the provider.

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 December 22, 2022.

TRD-202205196

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER F. FEES

16 TAC §121.85

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.

§121.85.Fees.

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

(b) Licensing fees are as follows:

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

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

(3) renewal, behavior analyst--$165

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

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

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

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

(8) license duplicate or replacement--$25

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

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

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

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 December 22, 2022.

TRD-202205198

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879


SUBCHAPTER G. ENFORCEMENT

16 TAC §121.90, §121.95

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.

§121.90.Basis for Disciplinary Action.

(a) - (c) (No change.)

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

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

(1) - (2) (No change.)

§121.95.Complaints.

(a) (No change.)

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

(1) - (2) (No change.)

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

(c) [(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.

(d) [(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.

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

(f) [(g)] The department may disclose a complaint or investigation and all information and materials compiled by the department in connection with the complaint or investigation to a person's certifying entity in accordance with Texas Occupations Code §51.254.

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

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 December 22, 2022.

TRD-202205189

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 5, 2023

For further information, please call: (512) 475-4879