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Telehealth Certification Institute, LLC

Texas

Marriage and Family Therapists

Texas Administrative Code
Title 22. Examining Boards
Part 35. Texas State Board of Examiners of Marriage and Family Therapists
Chapter 801. Licensure and Regulation of Marriage and Family Therapists

http://www.dshs.state.tx.us/mft/default.shtm

§801.58. Technology-Assisted Services.

(a)Licensees who provide marriage and family therapy to clients or supervision to supervisees outside the State of Texas shall comply with the laws and rules of this board and of the out-of-state regulatory authority.

(b)Licensees who provide treatment, consultation, and supervision using technology-assisted services shall meet the same standards of appropriate practice as licensees who practice in traditional (i.e., in-person) settings.

(c)In accordance with Occupations Code, §502.251 (relating to License Required), a person may not practice as a marriage and family therapist unless the person holds a license under this chapter or is exempt under Occupations Code, §502.004 (relating to Application of Chapter).

(d)Licensees may use technology-assisted services only after receiving appropriate education, training, and/or supervised experience in using relevant technology. A therapist who uses technology-assisted services must maintain documentation of academic preparation and supervision in the use of technology-assisted services as part of the therapist's academic program or the substantial equivalent provided through at least 15 hours of continuing education and 2 hours every subsequent renewal period. Licensees must comply with this subsection by January 1, 2018.

(e)A licensee shall not render therapy using technology-assisted services without complying with the following at the onset of each session:

(1)fully verifying the location and identity of the client, to the most reasonable extent possible;

(2)disclosing the identity and applicable credentials of the licensee; and

(3)obtaining appropriate consents from clients.

(f)Before providing technology-assisted services, licensees shall determine whether a client is a minor. Upon determining that a client is a minor, and before providing technology-assisted services, licensees shall obtain required consent from a parent or guardian and shall verify the identity of the parent, guardian, or other person consenting to the minor's treatment.

(g)The licensee shall determine if technology-assisted service is an appropriate delivery of treatment or supervision, considering the professional, intellectual, or emotional needs of the client or supervisee.

(h)Informed consent shall include, at a minimum, information that defines electronic service delivery as practiced by the licensee and the potential risks and
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22 Texas Administrative Code, Chapter 801 Page 30
Texas State Board of Examiners of Marriage and Family Therapists

ethical considerations. The licensee shall obtain and maintain written and/or electronic evidence documenting appropriate client informed consent for the use of technology-assisted services. The licensee shall ensure that the informed consent complies with other informed consent requirements in this chapter and shall include the following:

(1)identification of the client, the therapist, and the therapist's credentials;

(2)list of services provided by the licensee using technology-assisted services;

(3)client agreement that the therapist determines on an on-going basis whether the condition being assessed and/or treated is appropriate for technology-assisted services;

(4)details on security measures taken with the use of technology-assisted services, as well as potential risks to privacy notwithstanding such measures;

(5)information regarding secure protocols and back-up plans in case of technical failure;

(6)the licensee's credentials or training to engage in technology-assisted services, physical location of practice, and contact information;

(7)risks and benefits of engaging in the use of technology;

(8)emergency procedures to follow when the therapist is not available;

(9)information collected and any passive tracking mechanisms used;

(10)third-party websites or services used by the licensee to facilitate technology-assisted services; and

(11)an explanation of how records are maintained electronically, including, but not limited to, encryption type and record security, and the archival storage period for transaction records.

(i)Therapists who use technology-assisted services shall meet or exceed applicable federal and state legal requirements of health information privacy, including, but not limited to, compliance with the Health Insurance Portability and Accountability Act of 1966 (HIPAA), Public Law 104-191; The Health Information Technology for Economic and Clinical Health (HITECH) Act, 42 U.S.C. Chapter 156, Subchapter III; Health and Safety Code, Chapter 181 (relating to Medical Records Privacy); and state privacy, confidentiality, and security rules.

(j)Licensees must comply with this section by January 1, 2018.

Psychologists

Texas State Board of Examiners of Psychologists

Telepractice Policy Statement

http://www.tsbep.texas.gov/files/newsletters/1999Fall.pdf

Vol 12 No.2

December 1999

• Telepractice Policy Statement

• Policy on Licensees Working in Exempt Facilities

• No Duty to Warn: Says Texas Supreme Court

Telepractice Policy Statement

The delivery of psychological services by telephone, teleconferencing, and the Internet is a

rapidly evolving area. Board rules do not specifically address telepractice, teletherapy,

teleconferencing, or electronically providing services. No rules currently prohibit such services.

However, it is important for psychologists to be aware of a number of concerns about

telecommunication-based service delivery including the following:

1. The increased potential that a therapist will have limited knowledge of a distant community’s

resources in times of crisis.

2. Problems associated with obtaining informed consent.

3. The lack of standards for training providers in the use of technology as well as the special

therapeutic considerations in the use of the medium.

4. The lack of vocal, visual, and other sensory cues.

5. The potential that equipment failures may lead to undue patient anxiety particularly in crisis

situations.

6. The potential inability of patients in crisis or those unfamiliar with technology to adequately

access and use the technology.

7. The lack of full disclosure of provider credentials.

8. The lack of definition of professional relationships.

9. The lack of confidentiality and privacy.

All of these issues are actively being explored, discussed, and debated at both state and national

levels. It is important to remember that the

Psychologists’ Licensing Act and all other laws affecting the delivery of psychological services

apply to all psychological services delivered anywhere within the state of Texas, regardless of

whether or not they are provided via electronic media.

Complaints received by the Board regarding psychological services delivered through electronic

media, including telephone, teleconferencing, electronic mail and Internet, will be evaluated by

the Board on a case-by-case basis. However, the following general principles apply.

An individual who is physically located in another state shall be considered to be practicing

psychology in Texas and, therefore, subject to the Act, if a recipient of psychological services provided by the individual is physically located in the state of Texas. Licensees should also be aware that services they offer to consumers in other states may similarly be regulated by the laws of the state in which the consumers are located.

The Board currently considers the use of non-traditional media to deliver psychological services,

including telephone, teleconferencing, e-mail, and the Internet, as “emerging areas” as set forth

in Board rule 465.9(e), Competency. That rule states: “in those emerging areas in which generally recognized standards for preparatory training do not exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect patients, clients, students, research participants, and other affected individuals from the potential for harm.” Board rule 465.9(d) requires that licensees who provide services in new areas or involving new techniques do so only after undertaking appropriate study, training, supervision, and/or consultation from persons who are competent in those areas or techniques.

Other Board rules that licensees should also consider include:

465.1. Definitions

465.6. Listings and Advertisements

465.8. Psychological Services Are Provided within a Defined Relationship

465.10. Basis for Scientific and Professional Judgments

465.11. Informed Consent/Describing

Psychological Services

465.12. Privacy and Confidentiality

465.15. Fees and Financial Arrangements

465.16. Evaluation, Assessment, Testing, and Reports

465.17. Therapy and Counseling

465.36. Code of Ethics.

Other rules may also apply depending on the type of services involved.

It is important for licensees considering such services to review the characteristics of the

services, the service delivery method, and the provisions for confidentiality to ensure compliance

with the rules of the Board and the acceptable standards of practice

Policy on Licensees Working in Exempt Facilities

In compliance with Section 501.004 of the Act, persons who are licensed with this Board and

who work in exempt settings are exempt from the Act if their “activities and services” are a part

of the duties of their positions with the exempt agencies.

Section 501.004 states that persons who are employed in exempt facilities as psychologists or

psychological associates are not required to be licensed with this Board. However, this section

does require that persons who are employed by an exempt agency and who provide services to

the public for added compensation above their salary from the exempt agency have to be

licensed with the Board.

Therefore, any “activities and services” regarding the practice of psychology and licensure with

this Board outside the context of the exempt setting are subject to the requirements of the Act

and the rules and to the discipline of the Board. For example, a licensee may work part-time in

an exempt facility and part-time in private practice. The private practice would be subject to all

the rules regarding supervision, record keeping, confidentiality, etc. However, the work in the

exempt facility would be exempt from such rules of the Board.

Since activities such as renewal, payment of fees, submission of mandatory continuing

education, etc. are not considered “activities and services” performed in the context of an exempt

setting, the licensee would have to adhere to these provisions of the Act and rules to keep the

license in good standing.

Complaints received by the Board concerning the “activities and services” of a licensee in an

exempt setting are referred to the appropriate exempt agency so that the matter can be resolved in

the most expedient and proper manner. Complaints pertaining to the “activities and services”

occurring outside of the exempt setting by a licensee who is employed by an exempt agency will

be investigated and resolved by the Board.

No Duty to Warn: Says Texas Supreme Court

On June 24, 1999, the Supreme Court of Texas delivered its opinion concerning mental health professionals’ duty to warn third parties as to specific threats of harm made by a patient of the professional. In Thapar v. Zezulka, a psychiatrist had been treating a patient for approximately three years for post-traumatic stress disorder, alcohol abuse, and various delusional beliefs about his stepfather. After being admitted to the hospital, the patient stated to his psychiatrist that he  had felt like killing his stepfather. A few weeks after being released from the hospital, the patient did, in fact, shoot and kill his stepfather.

The specific issue before the court was whether or not the psychiatrist was negligent in failing to

disclose the patient’s threats to the family or to law enforcement officials. Chapter 611 of the

Texas Health and Safety Code provides that mental health information is confidential and

permits disclosure of mental health information only in limited circumstances.

Section 611.004 lists these exceptions and specifically states in 611.004(a)(2) that,

(a) A professional may disclose confidential information only:

(2) to medical or law enforcement personnel if the professional determines that there is a

probability of imminent physical injury by the patient to the patient or others or there is a

probability of immediate mental or emotional injury to the patient.” Texas Health and Safety

Code Ann. 611.004(a)(2).

Because Section 611.004 does not provide an exception for disclosure to third parties threatened

by the patient (such as the potential victim or their family members), the court concluded that the

psychiatrist could not have legally warned the patient’s stepfather or his family without violating

the confidentiality statute. As such, the doctor in Thapar was prohibited from warning the

patient’s family members as to the threat and, therefore, had no duty to warn potential third party

victims as a result.

However, Section 611.004 does allow disclosure of serious threats to medical or law

enforcement personnel. Nevertheless, the court determined that this disclosure was permissive on

the part of the professional rather than mandatory. Consequently, a mental health professional

has no legal duty to warn a third party of a patient’s threat but may contact the appropriate

officials in the event that the professional has determined that there is a probability of imminent

injury by the patient to himself or others, or mental or emotional injury to the patient.

The current law will not penalize a mental health professional for failing to disclose threats to the

proper officials even if he or she truly believes that some type of harm is imminent. However,

professionals who do choose to disclose threats are not immune from civil liability for improper

disclosure of confidential communications. This is true even if the disclosure was made in good

faith. While there are circumstances where a patient’s right to confidentiality may be legally

compromised, it will be incumbent on the mental health professional to show why the disclosure

was permissible and made pursuant to the exception stated in 611.004(a)(2).

Copies of the Texas Supreme Court opinion in this Thapar v. Zezulka can be obtained at the

Court’s website at http://www.supreme.courts.state.tx.us on the June 1999 “Opinions” page.

Texas State Board Of Examiners Of Psychologists’ Rules Of Practice.

Texas Administrative Code

TITLE 22        EXAMINING BOARDS

PART 21         TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

CHAPTER 465           RULES OF PRACTICE

RULE §465.9  Competency

(a) Licensees provide only services for which they have the education, skills, and training to perform competently.

(b) Competency includes the ability to provide services concerning a specific individual that takes into account characteristics of that individual including age, gender, ethnicity, national origin, disability, language, and socio-economic status.

(c) Licensees maintain current knowledge of scientific and professional information that ensures competency in every area in which they provide services.

(d) Licensees provide services in an unfamiliar area or involving new techniques only after first undertaking appropriate study and training, including supervision, and/or consultation from a professional competent to provide such services.

(e) In emerging areas in which generally recognized standards for preparatory training do not exist, licensees take reasonable steps to ensure the competence of their work and to protect patients, clients, research participants, and other affected individuals from the potential for harm.

(f) Licensees are responsible for ensuring that all individuals practicing under their supervision are competent to perform those services.

(g) Licensees who delegate performance of certain services such as test scoring are responsible for ensuring that the entity to whom the delegation is made is competent to perform those services.

(h) Licensees who lack the competency to provide particular psychological services to a specific individual must withdraw and refer the individual to a competent appropriate service provider.

(i) Emergency Situations. In emergencies, when licensees are asked to provide services to individuals for whom appropriate mental health services are not available and for which the licensee has not obtained the necessary competence, licensees may provide such services only to the extent necessary to ensure that services are not denied. If ongoing services are provided, licensees must comply with subsection (d) of this section as soon as practicable or refer the patient as per subsection (h) of this section.

(j) Licensees refrain from initiating or continuing to undertake an activity when they know or should know that there is a substantial likelihood that personal problems or conflicts will prevent them from performing their work-related activities or producing a psychological report in a competent and timely manner. When licensees become aware of such conflicts, they must immediately take appropriate measures, such as obtaining professional consultation or assistance in order to determine whether they should limit, suspend, or terminate the engagement in accordance with Board rule §465.21 of this title (relating to Termination of Services).

Source Note: The provisions of this §465.9 adopted to be effective June 3, 1999, 24 TexReg 4017; amended to be effective September 12, 2002, 27 TexReg 8479; amended to be effective June 5, 2005, 30 TexReg 3099; amended to be effective May 30, 2007, 32 TexReg 2864; amended to be effective September 19, 2012, 37 TexReg 7289

Social Workers

Texas State Board Of Social Worker Examiners

Code Of Conduct And Professional Standards Of Practice

http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=34&ch=781&rl=204

Texas Administrative Code

TITLE 22        EXAMINING BOARDS

PART 34         TEXAS STATE BOARD OF SOCIAL WORKER EXAMINERS

CHAPTER 781           SOCIAL WORKER LICENSURE

SUBCHAPTER B      CODE OF CONDUCT AND PROFESSIONAL STANDARDS OF PRACTICE

RULE §781.204          Relationships with Clients

(k) Electronic practice may be used judiciously as part of the social work process and the supervision process. Social workers engaging in electronic practice must be licensed in Texas and adhere to provisions of this chapter.

LICENSES AND LICENSING PROCESS

http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=34&ch=781&rl=414

RULE §781.414          Issuance of License Certificates

(e) A licensee who offers social work services on the Internet must include a statement that the licensee is licensed by the State of Texas and provide a copy of the Code of Conduct with the information on how to contact this board by mail or telephone.

Counselors

Texas State Board Of Examiners Of Professional Counselors

Code Of Ethics

http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=30&ch=681&rl=41

Texas Administrative Code

TITLE 22        EXAMINING BOARDS

PART 30         TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS

CHAPTER 681           PROFESSIONAL COUNSELORS

SUBCHAPTER C      CODE OF ETHICS

RULE §681.41            General Ethical Requirements

(g) Technological means of communication may be used to facilitate the therapeutic counseling process. Counselors engaging in interactive distance counseling must adhere to each provision of the rules and statutes of the board.

Marriage and Family Therapists

TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=35&ch=801&rl=44

Texas Administrative Code

TITLE 22        EXAMINING BOARDS

PART 35         TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS

CHAPTER 801           LICENSURE AND REGULATION OF MARRIAGE AND FAMILY THERAPISTS

SUBCHAPTER C      TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS

RULE §801.44            Relationships with Clients

(q) A licensee who engages in interactive therapy via the telephone or internet must provide the client with his/her license number and information on how to contact the board by telephone, electronic communication, or mail, and must adhere to all other provisions of this chapter.

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