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RULE §121.71Professional 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.

Source Note: The provisions of this §121.71 adopted to be effective June 1, 2021, 46 TexReg 3389

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