85R29022 KKR-F     By: Lucio, et al. S.B. No. 589     (Simmons, Gonzales of Williamson, Stucky, Coleman)     Substitute the following for S.B. No. 589:  No.       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.          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.  PERSONS WHO DO NOT PROVIDE DIRECT SERVICES.     (a) This chapter does not apply to a person who:                (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.          (b)  A person described by Subsection (a) may use the title   "behavior analyst."   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.          Sec. 506.106.  GROUNDS FOR REMOVAL. A member of the advisory   board may be removed as provided by Section 51.209.          Sec. 506.107.  COMPENSATION; REIMBURSEMENT. (a) A member   of the advisory board may not receive compensation for service on   the advisory board.          (b)  A member of the advisory board is entitled to   reimbursement for actual and necessary expenses incurred in   performing functions as a member of the advisory board, subject to   any applicable limitation on reimbursement provided by the General   Appropriations Act.   SUBCHAPTER D.  POWERS AND DUTIES          Sec. 506.151.  GENERAL POWERS AND DUTIES. (a) The   commission shall adopt rules consistent with this chapter for the   administration and enforcement of this chapter.          (b)  The department shall:                (1)  administer and enforce this chapter;                (2)  evaluate the qualifications of license   applicants;                (3)  provide for the examination of license applicants;                (4)  issue licenses;                (5)  in connection with a hearing under this chapter,   issue subpoenas, examine witnesses, and administer oaths under the   laws of this state; and                (6)  investigate persons engaging in practices that   violate this chapter.          (c)  The commission or executive director may deny, revoke,   or suspend a license or may otherwise discipline a license holder in   accordance with Section 51.353.          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,   in accordance with Section 51.252, 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.          Sec. 506.154.  FEES. The commission by rule shall set fees   in amounts reasonable and necessary to cover the costs of   administering 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, a commission rule, or an   order of the commission or the executive director;                (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.  ENFORCEMENT PROCEDURES          Sec. 506.401.  ENFORCEMENT PROCEEDINGS. The commission,   department, or executive director may enforce this chapter, a rule   adopted under this chapter, or an order of the commission or   executive director as provided by Subchapters F and G, Chapter 51.          SECTION 3.  (a)  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.          (b)  Notwithstanding Section 506.101, Occupations Code, as   added by this Act, a person who meets the requirements of Section   506.253 or 506.254, Occupations Code, as added by this Act, may be   appointed as an initial behavior analyst or assistant behavior   analyst member of the Behavior Analyst Advisory Board, as   applicable, regardless of whether the person holds a license issued   under Chapter 506, Occupations Code, as added by this Act.          SECTION 4.  Not later than April 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 September 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   September 1, 2018.