Bill Text: TX SB589 | 2017-2018 | 85th Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to the licensing and regulation of behavior analysts and assistant behavior analysts; requiring an occupational license; imposing fees.

Spectrum: Bipartisan Bill

Status: (Passed) 2017-06-15 - See remarks for effective date [SB589 Detail]

Download: Texas-2017-SB589-Engrossed.html

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By: Lucio, et al. S.B. No. 589

A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of behavior analysts and
assistant behavior analysts; requiring an occupational license;
imposing fees; providing a civil penalty; creating a criminal
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.2031(a), Occupations Code, is amended
to read as follows:
(a) This section applies only to the regulation of the
following professions by the department:
(1) athletic trainers;
(2) behavior analysts;
(3) dietitians;
(4) [(3)] hearing instrument fitters and dispensers;
(5) [(4)] midwives;
(6) [(5)] orthotists and prosthetists; and
(7) [(6)] speech-language pathologists and
audiologists.
SECTION 2. Subtitle I, Title 3, Occupations Code, is
amended by adding Chapter 506 to read as follows:
CHAPTER 506. BEHAVIOR ANALYSTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 506.001. SHORT TITLE. This chapter may be cited as the
Behavior Analyst Licensing Act.
Sec. 506.002. DEFINITIONS. In this chapter:
(1) "Advisory board" means the Behavior Analyst
Advisory Board.
(2) "Certifying entity" means the nationally
accredited Behavior Analyst Certification Board or another entity
that is accredited by the National Commission for Certifying
Agencies or the American National Standards Institute to issue
credentials in the professional practice of applied behavior
analysis and approved by the department.
(3) "Commission" means the Texas Commission of
Licensing and Regulation.
(4) "Department" means the Texas Department of
Licensing and Regulation.
(5) "Executive director" means the executive director
of the department.
(6) "License holder" means a person licensed under
this chapter.
(7) "Licensed assistant behavior analyst" means a
person who is certified by the certifying entity as a Board
Certified Assistant Behavior Analyst or who has an equivalent
certification issued by the certifying entity and who meets the
requirements specified by Sections 506.252 and 506.254.
(8) "Licensed behavior analyst" means a person who is
certified by the certifying entity as a Board Certified Behavior
Analyst or a Board Certified Behavior Analyst--Doctoral or who has
an equivalent certification issued by the certifying entity and who
meets the requirements specified by Sections 506.252 and 506.253.
(9) "Physician" means a person licensed to practice
medicine by the Texas Medical Board.
Sec. 506.003. PRACTICE OF APPLIED BEHAVIOR ANALYSIS.
(a) The practice of applied behavior analysis is the design,
implementation, and evaluation of instructional and environmental
modifications to produce socially significant improvements in
human behavior.
(b) The practice of applied behavior analysis includes the
empirical identification of functional relations between behavior
and environmental factors, known as functional assessment or
functional analysis.
(c) Applied behavior analysis interventions:
(1) are based on scientific research and the direct
observation and measurement of behavior and environment; and
(2) use contextual factors, motivating operations,
antecedent stimuli, positive reinforcement, and other procedures
to help individuals develop new behaviors, increase or decrease
existing behaviors, and elicit or evoke behaviors under specific
environmental conditions.
(d) The practice of applied behavior analysis does not
include:
(1) psychological testing, psychotherapy, cognitive
therapy, psychoanalysis, hypnotherapy, or counseling as treatment
modalities; or
(2) the diagnosis of disorders.
SUBCHAPTER B. APPLICATION OF CHAPTER; USE OF TITLE
Sec. 506.051. LICENSED PSYCHOLOGISTS. This chapter does
not apply to a person licensed to practice psychology in this state
if the applied behavior analysis services provided are within the
scope of the licensed psychologist's education, training, and
competence.
Sec. 506.052. OTHER LICENSED PROFESSIONALS. This chapter
does not apply to a person licensed to practice another profession
in this state if the applied behavior analysis services provided
are within:
(1) the scope of practice of the person's license under
state law; and
(2) the scope of the person's education, training, and
competence.
Sec. 506.053. FAMILY MEMBERS AND GUARDIANS. This chapter
does not apply to a family member or guardian of a recipient of
applied behavior analysis services who is implementing a behavior
analysis treatment plan for the recipient under the extended
authority and direction of a licensed behavior analyst or licensed
assistant behavior analyst.
Sec. 506.054. PARAPROFESSIONALS. This chapter does not
apply to a paraprofessional technician who delivers applied
behavior analysis services if:
(1) the applied behavior analysis services are
provided under the extended authority and direction of a licensed
behavior analyst or licensed assistant behavior analyst; and
(2) the person is designated as an "applied behavior
analysis technician," "behavior technician," "tutor," or
"front-line therapist."
Sec. 506.055. STUDENTS, INTERNS, AND FELLOWS. This chapter
does not apply to an applied behavior analysis activity or service
of a college or university student, intern, or fellow if:
(1) the activity or service is part of a defined
behavior analysis program of study, course, practicum, internship,
or postdoctoral fellowship;
(2) the activity or service is directly supervised by
a licensed behavior analyst or an instructor in a course sequence
approved by the certifying entity; and
(3) the person is designated as a "student," "intern,"
"fellow," or "trainee."
Sec. 506.056. SUPERVISED EXPERIENCE. This chapter does not
apply to an unlicensed person pursuing supervised experience in
applied behavior analysis if the supervised experience is
consistent with the requirements of the certifying entity and
commission rules.
Sec. 506.057. TEMPORARY SERVICES OF BEHAVIOR ANALYST FROM
ANOTHER STATE. (a) This chapter does not apply to a behavior
analyst licensed in another jurisdiction or certified by the
certifying entity if the activities and services conducted in this
state:
(1) are within the behavior analyst's customary area
of practice;
(2) are conducted not more than 20 days in a calendar
year; and
(3) are not otherwise in violation of this chapter.
(b) A behavior analyst described by Subsection (a) shall
inform the recipient of applied behavior analysis services, or a
parent or guardian of the recipient if the recipient is under 18
years of age, that:
(1) the behavior analyst is not licensed in this
state; and
(2) the activities and services provided by the
behavior analyst are time-limited.
Sec. 506.058. TEACHER OR EMPLOYEE OF SCHOOL DISTRICT.
(a) This chapter does not apply to a teacher or employee of a
private or public school who provides applied behavior analysis
services if the teacher or employee is performing duties within the
scope of the teacher's or employee's employment.
(b) A person described by Subsection (a) may not:
(1) represent that the person is a behavior analyst,
unless the applied behavior analysis services provided are within
the person's education, training, and competence;
(2) offer applied behavior analysis services to any
person, other than within the scope of the person's employment
duties for the school; or
(3) receive compensation for providing applied
behavior analysis services, other than the compensation that the
person receives from the person's school employer.
Sec. 506.059. USE OF TITLE "BEHAVIOR ANALYST." (a) This
chapter does not apply to a person described by Subsection (b).
(b) A person may use the title "behavior analyst" if the
person:
(1) is a behavior analyst who practices with
nonhumans, including an applied animal behaviorist or an animal
trainer;
(2) teaches behavior analysis or conducts behavior
analytic research if the teaching or research activities do not
involve the delivery or supervision of applied behavior analysis
services; or
(3) is a professional who provides general applied
behavior analysis services to organizations if those services:
(A) are for the benefit of the organization; and
(B) do not involve direct services to
individuals.
SUBCHAPTER C. BEHAVIOR ANALYST ADVISORY BOARD
Sec. 506.101. ADVISORY BOARD MEMBERSHIP. (a) The advisory
board is composed of nine members appointed by the presiding
officer of the commission with the approval of the commission as
follows:
(1) four licensed behavior analysts, at least one of
whom must be certified as a Board Certified Behavior
Analyst--Doctoral or hold an equivalent certification issued by the
certifying entity;
(2) one licensed assistant behavior analyst;
(3) one physician who has experience providing mental
health or behavioral health services; and
(4) three members who represent the public and who are
either former recipients of applied behavior analysis services or
the parent or guardian of a current or former recipient of applied
behavior analysis services.
(b) To be qualified for appointment under Subsection
(a)(1), a person must have at least five years of experience as a
licensed behavior analyst after being certified by the certifying
entity.
(c) Appointments to the advisory board shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
Sec. 506.102. DUTIES OF ADVISORY BOARD. The advisory board
shall provide advice and recommendations to the department on
technical matters relevant to the administration of this chapter.
Sec. 506.103. TERMS; VACANCY. (a) Members of the advisory
board serve staggered six-year terms, with the terms of three
members expiring February 1 of each odd-numbered year.
(b) A member may not serve more than two consecutive
six-year terms.
(c) If a vacancy occurs during a member's term, the
presiding officer of the commission, with the commission's
approval, shall appoint a replacement who meets the qualifications
for the vacant position to serve for the remainder of the term.
Sec. 506.104. PRESIDING OFFICER. The presiding officer of
the commission shall designate a member of the advisory board to
serve as the presiding officer of the advisory board for a term of
one year. The presiding officer of the advisory board may vote on
any matter before the advisory board.
Sec. 506.105. MEETINGS. The advisory board shall meet at
least twice each year and at the call of the presiding officer of
the commission or the executive director.
SUBCHAPTER D. POWERS AND DUTIES
Sec. 506.151. GENERAL POWERS AND DUTIES. (a) The
executive director shall administer and enforce this chapter.
(b) The department shall:
(1) evaluate the qualifications of license
applicants;
(2) provide for the examination of license applicants;
(3) in connection with a hearing under this chapter,
issue subpoenas, examine witnesses, and administer oaths under the
laws of this state; and
(4) investigate persons engaging in practices that
violate this chapter.
Sec. 506.152. STANDARDS OF ETHICAL PRACTICE. The
commission shall adopt rules under this chapter that establish
standards of ethical practice.
Sec. 506.153. ASSISTANCE FILING COMPLAINT. The department
shall provide reasonable assistance to a person who wishes to file a
complaint with the department regarding a person or activity
regulated under this chapter.
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 506.201. TELEPHONE NUMBER FOR COMPLAINTS. The
department shall list with its regular telephone number any
toll-free telephone number established under other state law that
may be called to present a complaint about a health professional.
Sec. 506.202. CONFIDENTIALITY OF COMPLAINT INFORMATION.
(a) Except as provided by Subsection (b), a complaint and
investigation concerning a license holder and all information and
materials compiled by the department in connection with the
complaint and investigation are not subject to:
(1) disclosure under Chapter 552, Government Code; or
(2) disclosure, discovery, subpoena, or other means of
legal compulsion for release of information to any person.
(b) A complaint or investigation subject to Subsection (a)
and all information and materials compiled by the department in
connection with the complaint, in accordance with Chapter 611,
Health and Safety Code, may be disclosed to:
(1) the department and its employees or agents
involved in license holder discipline;
(2) a party to a disciplinary action against the
license holder or that party's designated representative;
(3) a law enforcement agency if required by law;
(4) a governmental agency if:
(A) the disclosure is required or permitted by
law; and
(B) the agency obtaining the disclosure protects
the identity of any patient whose records are examined; or
(5) the legislature.
(c) The department shall protect the identity of any patient
whose records are examined in connection with a disciplinary
investigation or proceeding against a license holder, except:
(1) a patient who initiates the disciplinary action;
or
(2) a patient who has submitted a written consent to
release the records.
SUBCHAPTER F. LICENSE REQUIREMENTS
Sec. 506.251. LICENSE REQUIRED. (a) Except as provided by
Subchapter B, a person may not engage in the practice of applied
behavior analysis unless the person holds a license under this
chapter.
(b) A person may not use the title "licensed behavior
analyst" or "licensed assistant behavior analyst," as appropriate,
unless the person is licensed under this chapter.
(c) Except as provided by Subchapter B, a person may not use
the title "behavior analyst" unless the person is licensed under
this chapter.
Sec. 506.252. LICENSE APPLICATION. Each applicant for a
license under this chapter must submit an application and the
required fees to the department. The application must include
sufficient evidence, as defined by commission rules, that the
applicant has successfully completed a state-approved criminal
background check.
Sec. 506.253. REQUIREMENTS FOR LICENSED BEHAVIOR ANALYST.
An applicant for a license as a licensed behavior analyst must
present evidence to the department that the applicant:
(1) is currently certified by the certifying entity as
a Board Certified Behavior Analyst or a Board Certified Behavior
Analyst--Doctoral or an equivalent certification issued by the
certifying entity;
(2) has met the educational requirements of the Board
Certified Behavior Analyst standard or the Board Certified Behavior
Analyst--Doctoral standard or an equivalent standard adopted by the
certifying entity;
(3) has passed the Board Certified Behavior Analyst
examination, or an equivalent examination offered by the certifying
entity, in applied behavior analysis;
(4) is in compliance with all professional, ethical,
and disciplinary standards established by the certifying entity;
and
(5) is not subject to any disciplinary action by the
certifying entity.
Sec. 506.254. REQUIREMENTS FOR LICENSED ASSISTANT BEHAVIOR
ANALYST. An applicant for a license as a licensed assistant
behavior analyst must present evidence to the department that the
applicant:
(1) is currently certified by the certifying entity as
a Board Certified Assistant Behavior Analyst or an equivalent
certification issued by the certifying entity;
(2) has met the educational requirements of the Board
Certified Assistant Behavior Analyst standard or an equivalent
standard adopted by the certifying entity;
(3) has passed the Board Certified Assistant Behavior
Analyst examination, or an equivalent examination offered by the
certifying entity, in applied behavior analysis;
(4) is in compliance with all professional, ethical,
and disciplinary standards established by the certifying entity;
(5) is not subject to any disciplinary action by the
certifying entity; and
(6) is currently supervised by a licensed behavior
analyst in accordance with the requirements of the certifying
entity.
Sec. 506.255. ISSUANCE OF LICENSE. The department shall
issue a license as a licensed behavior analyst or a licensed
assistant behavior analyst, as appropriate, to an applicant who:
(1) complies with the requirements of this chapter;
(2) meets any additional requirements the commission
establishes by rule; and
(3) pays the required fees.
Sec. 506.256. RECIPROCITY. (a) The department shall issue
a license to a person who is currently licensed as a behavior
analyst or as an assistant behavior analyst from another state or
jurisdiction that imposes licensure requirements similar to those
specified in this chapter.
(b) An applicant for a reciprocal license shall:
(1) submit evidence to the department that the
applicant:
(A) is in good standing as determined by the
department;
(B) holds a valid license from another state or
jurisdiction; and
(C) is in compliance with other requirements
established by Section 506.252, 506.253, 506.254, or 506.255, as
appropriate; and
(2) pay the required fees.
Sec. 506.257. RETIREMENT STATUS. The commission by rule
may adopt a system for placing a person licensed under this chapter
on retirement status.
SUBCHAPTER G. LICENSE RENEWAL
Sec. 506.301. LICENSE EXPIRATION. A license issued under
this chapter expires on the second anniversary of the date of
issuance.
Sec. 506.302. LICENSE RENEWAL. Before the expiration of a
license, a license may be renewed by:
(1) submitting an application for renewal;
(2) paying the renewal fee imposed by the commission;
and
(3) providing verification to the department of
continued certification by the certifying entity, which signifies
that the applicant for renewal has met any continuing education
requirements established by the certifying entity.
SUBCHAPTER H. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 506.351. GROUNDS FOR LICENSE DENIAL AND DISCIPLINARY
ACTION. After a hearing, the commission or executive director may
deny a license to an applicant, suspend or revoke a person's
license, or place on probation a license holder if the applicant or
license holder:
(1) violates this chapter or a commission order or
rule;
(2) obtains a license by means of fraud,
misrepresentation, or concealment of a material fact;
(3) sells, barters, or offers to sell or barter a
license; or
(4) engages in unprofessional conduct that:
(A) endangers or is likely to endanger the
health, welfare, or safety of the public as defined by commission
rule; or
(B) violates the code of ethics adopted and
published by the commission.
SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 506.401. AMOUNT OF ADMINISTRATIVE PENALTY. The amount
of an administrative penalty imposed against a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter may not exceed $200. Each day a
violation continues or occurs is a separate violation for the
purpose of imposing a penalty.
Sec. 506.402. CIVIL PENALTY. (a) A person found by a court
to have violated this chapter is liable to this state for a civil
penalty of $200 for each day the violation continues.
(b) A civil penalty may be recovered in a suit brought by the
attorney general, a district attorney, or a county attorney.
Sec. 506.403. CRIMINAL OFFENSE. (a) A person commits an
offense if the person knowingly violates this chapter.
(b) An offense under this section is a Class A misdemeanor.
SECTION 3. As soon as practicable after the effective date
of this Act, the presiding officer of the Texas Commission of
Licensing and Regulation shall appoint nine members to the Behavior
Analyst Advisory Board in accordance with Chapter 506, Occupations
Code, as added by this Act. In making the initial appointments, the
presiding officer of the commission shall designate three members
for terms expiring February 1, 2019, three members for terms
expiring February 1, 2021, and three members for terms expiring
February 1, 2023.
SECTION 4. Not later than January 1, 2018, the Texas
Commission of Licensing and Regulation shall adopt the rules,
procedures, and fees necessary to administer Chapter 506,
Occupations Code, as added by this Act.
SECTION 5. Notwithstanding Chapter 506, Occupations Code,
as added by this Act, a behavior analyst or assistant behavior
analyst is not required to hold a license under that chapter to
practice as a licensed behavior analyst or licensed assistant
behavior analyst in this state before June 1, 2018.
SECTION 6. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2017.
(b) Section 506.251, Occupations Code, and Subchapter I,
Chapter 506, Occupations Code, as added by this Act, take effect
June 1, 2018.