TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 86. VEHICLE TOWING AND BOOTING

16 TAC §86.700

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 86, §86.700, regarding the Vehicle Towing and Booting program, without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 8949). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 86, implement Texas Occupations Code, Chapter 2308, Vehicle Towing and Booting.

The adopted rule clarifies the limited locations to which a tow truck company or a tow truck operator may take a vehicle involved in an Incident Management (IM) or other Non-Consent tow, by stating the two options in more concise language.

Additionally, the adopted rule explicitly prohibits: 1) a tow truck company or tow operator from recommending or soliciting authorization to tow or move a vehicle involved in an IM or other Non-Consent tow to any location other than a licensed vehicle storage facility (VSF) or 2) from obtaining authorization for any repairs or services other than those that are necessary for the tow.

The adopted rule is necessary because the Department continues to see a rise in vehicle "flipping" - a practice which involves towing vehicles involved in IM or other Non-Consent tows from one location to an unlicensed and unregulated body shop for storage and unauthorized work. The adopted rule will explicitly prohibit this practice and allow the Department to prosecute both tow companies and tow truck operators for using deception and dishonesty to funnel disabled vehicles away from licensed VSFs where storage fees are regulated and capped.

The need for rules addressing the practice of "flipping" has been discussed by the Towing and Storage Advisory Board for more than a year. During a Board meeting on September 22, 2020, it formally requested that the Department engage in the rulemaking process on this issue and present it with a proposed draft. The Sunset Commission has also recommended that the Department consider rules on this issue.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §86.700 by:

1. adding tow truck operators to the persons or entities subject to the rule;

2. explicitly adding Incident Management (IM) tows to the rule language to emphasize applicability to all types of Non-Consent tows;

3. adding a prohibition on tow truck companies and tow truck operators recommending or soliciting authorization to tow vehicles involved in IM and other Non-Consent tows to locations other than those allowed by rule;

4. adding clarifying language to emphasize where a vehicle involved in IM or other Non-Consent tows must be taken if the vehicle operator selects a location of their own choosing and the tow truck company or tow truck operator declines to tow the vehicle there; and

5. renumbering all sections.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the December 18, 2020, issue of the Texas Register (45 TexReg 8949). The deadline for public comments was January 19, 2021. The Department received comments from five interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment: Although the Department received five comments, one of them was unrelated to the proposed rule and concerned a licensing question.

Department Response: This unrelated comment was forwarded to the appropriate TDLR Division for handling. The Department did not make any changes to the proposed rule as a result of this unrelated comment.

Comment: Of the remaining four comments, two echoed the sentiment of the Board that "flipping" is an ongoing and pervasive issue in the TOW/VSF industry. Both commenters, speaking as individual licensees, stated that they were in support of the proposed rules and did not suggest any changes.

Department Response: The Department agrees with these two comments. The act of "flipping" has become an increasing concern to both TDLR and TOW/VSF licensees who operate honestly and in compliance with their respective statutes and rules. Both the industry and the Sunset Commission have recognized the need to enhance consumer protection by amending the applicable rule to explicitly address this practice. The Department did not make any changes to the proposed rule as a result of these comments.

Comment: The third remaining comment expressed concern that the proposed rule would allow tow operators to refuse a vehicle owner or operator's request to take their vehicle to a destination of their choice and instead re-route the vehicle to a VSF that may be at a much farther distance and which may also be owned by the tow company. The commenter, commenting as an individual licensee, further expressed that the vehicle owner or operator could be subject to "�extortion' through no fault of their own. Although the commenter did not explicitly express whether they supported or opposed the proposed rule, TDLR construes the comment as being opposed to the rule.

Department Response: The Department disagrees with this comment. The rule protects consumers from unilateral, and often undisclosed, decisions by tow operators to take vehicles to unregulated body shops. Additionally, the rule protects tow operators by providing them with the ability to decline to take the vehicle to locations suggested by a consumer that may be long distances, or which may be difficult to reach. By mandating that if a tow operator declines to take the vehicle to a destination chosen by the vehicle owner or operator it must still be taken to a regulated vehicle storage facility, the rule effectively reduces the opportunity for "flipping" to occur. The Department did not make any changes to the proposed rule as a result of this comment.

Comment: The fourth remaining comment proposed a modification to the proposed rule to remove tow companies from being subject to the rule. The commenter, commenting as an individual licensee, stated that tow companies may not have control over a tow operator or know what they are doing but will still be held accountable under the rule. Although the commenter did not explicitly express whether they supported or opposed the proposed rule, TDLR construes the comment as being opposed to the rule.

Department Response: The Department disagrees with this comment. The rule addresses the significant problem for TDLR Enforcement of tow companies seeking to absolve themselves from engaging in "flipping" by asserting that they are not responsible for the actions of tow operators. It also puts equal responsibility onto tow companies and tow operators to recognize and stop a practice which harms consumers and the industry. The Department did not make any changes to the proposed rules as a result of this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Towing and Storage Advisory Board met on March 16, 2021, to discuss the proposed rule and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on May 6, 2021, the Commission adopted the proposed rules as recommended by the Advisory Board.

STATUTORY AUTHORITY

The adopted rule is adopted under Texas Occupations Code, Chapters 51 and Texas Occupations Code, Chapter 2308, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and Texas Occupations Code, Chapter 2308. No other statutes, articles, or codes are affected by the adopted rule.

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

Filed with the Office of the Secretary of State on May 10, 2021.

TRD-202101839

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: June 1, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 463-3671


CHAPTER 120. LICENSED DYSLEXIA THERAPISTS AND LICENSED DYSLEXIA PRACTITIONERS

16 TAC §§120.21 - 120.23, 120.25, 120.90

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 120, §§120.21, 120.22, 120.23, 120.25, and 120.90, regarding the Dyslexia Therapy Program, with changes to the proposed text as published in the December 4, 2020, issue of the Texas Register (45 TexReg 8687). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 120 implement Texas Occupations Code, Chapter 403, Licensed Dyslexia Practitioners and Licensed Dyslexia Therapists.

The proposed rules make changes recommended by Department staff to reduce the documentation that must be provided by license applicants who are certified by the Academic Language Therapy Association (ALTA); to clarify courses that qualify for continuing education credit; to allow telehealth services without an initial in-person meeting; and to correct cross-references. The proposed rules also make changes recommended by the Education and Examination Workgroup of the Dyslexia Therapy Advisory Committee to designate the examinations approved by the Department and to allow continuing education credit for the human trafficking prevention training course required for license renewal. The proposed rules are necessary to remove unnecessary burdens in obtaining and renewing a license; to designate the examinations required for licensure; to increase the availability of telehealth services; and to provide clarity.

The proposed rules were presented to and discussed by the Dyslexia Therapy Advisory Committee at its meeting on October 27, 2020. The Advisory Committee did not recommend any changes to the proposed rules. The Advisory Committee voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §120.21, Dyslexia Therapist Licensing Requirements, by allowing a person who holds current certification as an academic language therapist issued by ALTA to apply for a dyslexia therapist license without being required to provide a diploma or transcript proving that the person has earned a master's degree from an accredited institution of higher education.

The adopted rules amend §120.22, Dyslexia Practitioner Licensing Requirements, by allowing a person who holds current certification as an academic language practitioner issued by ALTA to apply for a dyslexia practitioner license without being required to provide a diploma or transcript proving that the person has earned a bachelor's degree from an accredited institution of higher education.

The adopted rules amend §120.23(a) by designating the therapist level examination administeredby ALTA as the examination required for licensure as a dyslexia therapist. The adopted rule language includes a change recommended by Department staff to remove the specific name of the examination currently administered by ALTA to allow for future changes to the name.

The adopted rules amend §120.23(b) by designating the practitioner level examination administered by ALTA as the examination required for licensure as a dyslexia practitioner. The adopted rule language includes a change recommended by Department staff to remove the specific name of the examination currently administered by ALTA to allow for future changes to the name.

The adopted rules amend §120.25, Continuing Education, by clarifying that courses and programs provided by education service centers are included in the acceptable categories for continuing education credit; correcting erroneous cross-references; and allowing the human trafficking prevention training course required for license renewal to be accepted for up to one hour of continuing education credit.

The adopted rules amend §120.90, Professional Standards and Basis for Disciplinary Action, by removing the prohibition against providing services solely by written, telephone, or electronic/video correspondence or communication; and renumbering the remaining provisions accordingly. This change will allow a license holder to provide telehealth services without the requirement for an initial in-person meeting with a client.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the December 4, 2020, issue of the Texas Register (45 TexReg 8687). The deadline for public comments was January 4, 2021. The Department did not receive any comments from interested parties on the proposed rules during the 30-day public comment period.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Dyslexia Therapy Advisory Committee met on February 24, 2021, to discuss the proposed rules. The Advisory Committee recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §120.23 made in response to Department recommendations, as explained in the Section-by-Section Summary. At its meeting on May 6, 2021, the Commission adopted the proposed rules with changes as recommended by the Advisory Committee.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 403, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 403. No other statutes, articles, or codes are affected by the adopted rules.

§120.21.Dyslexia Therapist Licensing Requirements.

(a) A person who holds current certification as an academic language therapist issued by the Academic Language Therapy Association or its equivalent as approved by the department, may be licensed as a dyslexia therapist if the person has earned at least a master's degree from an accredited public or private institution of higher education.

(b) A person who qualifies for licensure under subsection (a) is not required to provide documentation to the department that the person meets the requirements of Occupations Code §403.105, Eligibility for Licensed Dyslexia Therapist License.

(c) A licensed dyslexia therapist may practice in a school, learning center, clinic, or private practice setting.

§120.22.Dyslexia Practitioner Licensing Requirements.

(a) A person who holds current certification as an academic language practitioner issued by the Academic Language Therapy Association or its equivalent, as approved by the department, may be licensed as a dyslexia practitioner if the person has earned a bachelor's degree from an accredited public or private institution of higher education.

(b) A person who qualifies for licensure under subsection (a) is not required to provide documentation to the department that the person meets the requirements of Occupations Code §403.104, Eligibility for Licensed Dyslexia Practitioner License.

(c) A licensed dyslexia practitioner may practice only in an educational setting, including a school, learning center, or clinic.

§120.23.Examination.

(a) The examination designated and approved by the department for licensure as a dyslexia therapist is the therapist level examination administered by the Academic Language Therapy Association.

(b) The examination designated and approved by the department for licensure as a dyslexia practitioner is the practitioner level examination administered by the Academic Language Therapy Association.

(c) The applicable licensure examination requirement is waived for a person who holds current certification as an academic language therapist or academic language practitioner issued by the Academic Language Therapy Association, or its equivalent, as approved by the department.

§120.25.Continuing Education.

(a) A license holder must complete 20 clock-hours of continuing education during each two-year licensure period.

(b) Continuing education credit taken by a license holder for renewal shall be acceptable if the experience falls in one or more of the following categories and meets the requirements of subsection (c):

(1) academic courses at a regionally accredited college or university;

(2) in-service educational programs, training programs, institutes, seminars, workshops and conferences, including courses and programs provided by education service centers;

(3) instructing or presenting education programs or activities at an academic course, in-service educational programs, training programs, institutes, seminars, workshops and conferences not to exceed five clock-hours each continuing education period;

(4) publishing a book or an article in a peer review journal not to exceed five clock-hours each continuing education period; or

(5) successful completion of a self-study program, not to exceed ten clock-hours each continuing education period.

(c) Continuing education credit taken by a license holder, shall be in one or more of the following content areas:

(1) basic language and/or learning disorders;

(2) applied multisensory practice and methodology;

(3) curricula in academic language therapy;

(4) related research in medicine, psychology, education, or linguistics; or

(5) professional practice, including relevant laws, rules, and ethics of practice.

(d) Continuing education experience shall be credited as follows:

(1) Completion of course work at or through an accredited college or university, shall be credited for each semester hour on the basis of ten clock-hours of credit for each semester hour successfully completed for credit or audit as evidenced by a certificate of successful completion or official transcript.

(2) Parts of programs that meet the criteria of subsection (b)(2) or (3) shall be credited on a one-for-one basis with one clock-hour of credit for each clock-hour spent in the continuing education experience.

(3) A clock-hour shall be 50 minutes of attendance and participation in an acceptable continuing education experience.

(4) Continuing education programs, as described in subsection (b)(2) and (3), must be offered or approved by the Academic Language Therapy Association or its equivalent, as approved by the department.

(5) Successful completion of continuing education experience, as described in subsection (b)(2) and (3), is evidenced by a certificate of completion or attendance issued by the approved sponsoring organization of the course.

(6) Successful completion of continuing education experience, as described in subsection (b)(4), is evidenced by submission of a copy of the publication.

(7) Successful completion of continuing education experience, described in subsection (b)(5), is evidenced by a certificate of completion presented by the sponsoring organization of the self-study program.

(e) The department shall employ an audit system for continuing education reporting. The license holder shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours, are not to be forwarded to the department at the time of renewal unless the license holder has been selected for audit.

(f) The audit process shall be as follows.

(1) The department shall select for audit, a random sample of license holders for each renewal month. License holders will be notified of the continuing education audit when they receive their renewal documentation.

(2) All license holders selected for audit shall submit copies of certificates, transcripts or other documentation satisfactory to the department, verifying the license holder's attendance, participation and completion of the continuing education. All documentation must be provided at the time of renewal.

(3) Failure to timely furnish this information or providing false information during the audit process or the renewal process are grounds for disciplinary action against the license holder.

(4) A license holder who is selected for continuing education audit may renew through the online renewal process. However, the license will not be considered renewed until the required continuing education documents are received, accepted and approved by the department.

(g) Licenses will not be renewed until continuing education requirements have been met.

(h) A person who fails to complete continuing education requirements for renewal may not renew the license. The person may obtain a new license by complying with the current requirements and procedures for obtaining a license.

(i) The department may not grant continuing education credit to any license holder for:

(1) education incidental to the regular professional activities of a license holder, such as learning occurring from experience or research;

(2) professional organization activity, such as serving on committees or councils or as an officer;

(3) any continuing education activity completed before or after the period of time described in subsection (a); or

(4) performance of duties that are routine job duties or requirements.

(j) The human trafficking prevention training course required for license renewal under §120.26(b) may be accepted for up to one hour of continuing education credit.

§120.90.Professional Standards and Basis for Disciplinary Action.

(a) This section is authorized under Texas Occupations Code, Chapters 51 and 403.

(1) If a person violates any provision of Texas Occupations Code, Chapters 51, 403, or any other applicable provision, this chapter, or a rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 and 403, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) A license holder shall comply with the following requirements in the provision of professional services. All license holders shall:

(1) only provide professional services that are within the scope of the license holder's competence, considering level of education, training, and experience.

(2) ensure a safe therapy or teaching environment for clients.

(3) not jeopardize a client's safety or well-being by abusive or inattentive behavior.

(4) maintain objectivity in all matters concerning the welfare of the client.

(5) 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.

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

(7) provide accurate information to clients and the public about the nature and management of dyslexia and about the services rendered.

(8) be knowledgeable of all available diagnostic data and other relevant information regarding each client.

(9) not guarantee, directly or by implication, the results of any therapeutic or teaching 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) accurately represent and describe any product created or recommended by the license holder.

(11) not require the exclusive use or purchase by a client of any product created or produced by the license holder.

(12) 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.

(13) not misrepresent his or her education, training, credentials, or competence.

(14) fully inform clients of the nature and possible outcomes of services rendered.

(15) obtain written consent from a client or a minor client's parent or legal guardian in order to use the client's data or information for research or teaching activities.

(16) not falsify records.

(17) bill a client or third party only for the services actually rendered in the manner agreed to by the license holder and the client or the minor client's parent or legal guardian.

(18) not provide professional services to a client who is receiving dyslexia services from another license holder, except with the prior knowledge and consent of the other license holder.

(19) not reveal, without authorization, any professional or personal information about a client unless required by law or compelled by a court to do so, or unless doing so is necessary to protect the welfare of the client or of the community. If a license holder reveals professional or personal information about a client without authorization, the information disclosed, the person or entity to whom it was disclosed, and the justification for disclosure shall be documented by the license holder in the client's record.

(20) provide, in plain language, a written explanation of the charges for professional services previously made on a bill or statement, upon the written request of a client or the minor client's parent or legal guardian.

(21) not engage in the medical diagnosis or treatment of clients.

(22) not engage 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 professional services being provided to the client.

(23) not use alcohol or drugs, not legally prescribed for the license holder, when the use adversely affects or could adversely affect the provision of professional services.

(24) 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.

(25) comply with all provisions of the Act and this chapter, as well as any other state or federal law or rule that relates to the provision of professional services by, or the regulation of the license holder.

(26) not obtain a license by means of fraud, misrepresentation, or concealment of a material fact.

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

(28) inform the department of any violations of this chapter or the Act.

(29) comply with any order issued by the department that relates to the license holder.

(30) not interfere with a department investigation or disciplinary proceeding by misrepresentation or omission of facts to the department or by the use of threats or harassment against any person.

(31) cooperate with the department by promptly furnishing required documents and by promptly responding to a request for information from the department.

(32) provide professional services without discrimination based on race, color, national origin, religion, gender, age, or disability.

(c) A license holder in private practice shall:

(1) provide a client or a minor client's parent or legal guardian with a written agreement for services prior to the commencement of professional 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.

(2) maintain legible and accurate records of professional services rendered. A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the recordkeeping requirements of the educational setting.

(3) maintain records for a minimum of five years following the termination of services. A license holder practicing in an educational setting, including a school, learning center, or clinic, shall comply with the records retention requirements of the educational setting.

(4) not delegate any service requiring professional competence to a person not competent to provide the service. A license holder in private practice is responsible for the services provided by unlicensed persons employed or contracted by the license holder.

(5) notify each client or the minor client's parent or legal guardian of the department's name, website, email address, mailing address, and telephone number for the purpose of directing complaints to the department by providing notification on a sign prominently placed in the primary place of business or on a written document, such as an agreement or contract for services or an informational brochure provided by a license holder to a client or the minor client's parent or legal guardian.

(6) display the license in the primary location of practice, but shall not display a license that has been photographically or otherwise reproduced.

(d) Information used by a license holder in any advertisement or announcement shall not contain information that is false, inaccurate, misleading, incomplete, out of context, deceptive or not readily verifiable. Advertising includes, but is not limited to, any announcement of services, letterhead, business cards, commercial products, and billing statements. False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a professional service;

(3) compares a professional's services with another professional's services unless the comparison can be factually substantiated;

(4) causes confusion or misunderstanding as to the credentials, education, or licensing of a professional;

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

(6) represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional, unless the license holder is licensed or otherwise authorized to use the title or professional identification.

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

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

Filed with the Office of the Secretary of State on May 12, 2021.

TRD-202101855

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: June 1, 2021

Proposal publication date: December 4, 2020

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


CHAPTER 121. BEHAVIOR ANALYST

16 TAC §§121.10, 121.21, 121.22, 121.70, 121.71, 121.75

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 121, §§121.10, 121.21, 121.22, 121.70, and 121.75, regarding the Behavior Analysts Program, without changes to the proposed text as published in the December 4, 2020, issue of the Texas Register (45 TexReg 8691). These rules will not be republished.

The Commission also adopts new rules at 16 TAC Chapter 121, §121.71, regarding the Behavior Analysts Program, with changes to the proposed text as published in the December 4, 2020, issue of the Texas Register (45 TexReg 8691). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

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

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

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

SECTION-BY-SECTION SUMMARY

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

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

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

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

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

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

PUBLIC COMMENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

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

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.

§121.71.Professional Services Practice Responsibilities of License Holders.

(a) A license holder shall:

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

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

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

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

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

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

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

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

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

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

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

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

(b) If any requirement of a license holder's certifying entity differs in stringency from a requirement of the Act or the commission rules, the more stringent provision shall apply.

(c) If any requirement of a license holder's certifying entity conflicts with a requirement of the commission rules such that the license holder cannot reasonably comply with both requirements, the license holder shall comply with the requirement of the certifying entity.

(d) Professional Services Practice Responsibilities: Telehealth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed with the Office of the Secretary of State on May 12, 2021.

TRD-202101854

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Effective date: June 1, 2021

Proposal publication date: December 4, 2020

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