SECTION 448.911. Treatment Services Provided by Electronic Means

(a) In this section, the following words and terms have the following meanings:

(1) Electronic means--Live, synchronous, interactive treatment program services delivered using telecommunications or information technology by a health professional licensed, certified, or otherwise entitled to practice in this state and acting within the scope of the health professional's license, certification, or entitlement to a patient at a different physical location than the health professional. This term includes services delivered using synchronous audiovisual technology or synchronous audio-only technology but does not include pre-recorded videos.

(2) Existing clinical relationship--A relationship that occurs when a person has received at least one in-person or synchronous audiovisual treatment service from the same provider within the six months prior to the initial service delivered by synchronous telephone (audio-only) technology.

(3) Synchronous audio-only technology--An interactive, two-way audio telecommunications platform, including telephone technology, that uses only sound and meets the privacy requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(4) Synchronous audiovisual technology--An interactive, two-way audio and video telecommunications platform that meets HIPPA privacy requirements.

(5) Verbal consent--The spoken agreement of a client or a client's legally authorized representative to participate in treatment services through electronic means.

(b) Except as provided under §448.801 of this chapter (relating to Screening) and §448.803 of this chapter (relating to Assessment), only a licensed outpatient chemical dependency treatment program may provide treatment program services through electronic means.

(c) The program providing treatment services through electronic means may provide treatment services to adult and adolescent clients to the extent allowed by the facility's license and shall comply with all requirements of this section.

(d) The program shall ensure only the following individuals provide services through electronic means under this section:

(1) a qualified credentialed counselor (QCC); or

(2) a counselor intern who has more than 2,000 hours of supervised work experience or a supervised work experience waiver under §140.408(b) of this title (relating to Requirements for LCDC Licensure) and who has passed the chemical dependency counselor licensing exam.

(e) The program's physical location shall be equipped to provide in-person, face-to-face treatment services with an individual at the individual's request.

(f) The program shall ensure all treatment sessions shall have the following two forms of access control:

(1) all contact between a QCC and clients via electronic means shall begin with a verification of the client through a name, password or pin number; and

(2) security as detailed in HIPAA.

(g) A facility shall implement adequate security and encryption measures to ensure all patient communications, recordings and records are protected and adhere to federal and state privacy laws, including HIPAA and Texas Health and Safety Code Chapters 181, 464, and 466 (relating to Medical Records Privacy; Facilities Treating Persons with a Chemical Dependency, and Regulation of Narcotic Drug Treatment Programs).

(h) A program shall maintain compliance with HIPAA and Code of Federal Regulations (CFR) Title 42, Part 2 (relating to Confidentiality of Substance Use Disorder Patient Records).

(i) A program shall not use e-mail communications containing client identifying information.

(j) A program shall use synchronous audiovisual technology, except as provided in subsection (k) of this section.

(k) A program may provide outpatient individual and group counseling to clients using synchronous audio-only technology only when all the following criteria are met:

(1) the client and provider have an existing clinical relationship;

(2) the provider receives the client's verbal consent before each session; and

(3) the provider documents in the client's record the specific reason why the provider provided outpatient counseling services using synchronous audio-only technology.

(l) A program shall ensure timely access to individuals qualified in the technology as backup for systems problems.

(m) A program shall develop a contingency plan and maintain alternate means of communication for clients when technical problems occur during the provision of services.

(n) A program shall provide individuals and clients with a description of all services offered.

(o) A program shall provide developed criteria, in addition to the Diagnostic and Statistical Manual of Mental Disorders, to assess clients for appropriateness of utilizing services through electronic means.

(p) A program shall provide appropriate referrals for clients who do not meet the criteria for services.

(q) A program shall develop a grievance procedure and provide the website and phone number to the Texas Health and Human Services Commission (HHSC) for filing a complaint.

(r) Prior to clients engaging in services through electronic means, a program shall describe and provide in writing the potential risks to clients. The risks shall address at a minimum the following areas:

(1) clinical aspects;

(2) security; and

(3) confidentiality.

(s) In a HIPAA-compliant manner, a program shall document and maintain in a client's record the client's verbal consent to participate in services provided through electronic means. The program shall provide the verbal consent documentation to HHSC upon request.

(t) A program shall explain to the client or the client's legally authorized representative what verbal consent means and to what the client or client's legally authorized representative is consenting. The verbal consent a client provides when electing to participate in a treatment service delivered through electronic means only applies to one treatment service at a time. A program shall obtain the client's verbal consent before the client receives each service through electronic means.

(u) If the program does not obtain verbal consent for a treatment service through electronic means, the program shall provide the service to the client in-person and face-to-face.

(v) A program shall inform a client who chooses to receive services through electronic means that the program will:

(1) monitor services for evidence of fraud, waste, and abuse;

(2) determine whether the client needs additional social services or supports;

(3) ensure the provider documents, in writing and in the client's record, the client's verbal consent to participate in services provided through electronic means; and

(4) adhere to HIPPA, including using HIPAA-compliant technology for services provided through electronic means.

(w) A program shall create safeguards to ensure adolescents receive treatment services separately from adults and verify a client's identity and the identity of any authorized participant.

(x) A program shall provide clients with information to access online or a copy of the current version of the following chemical dependency treatment facility (CDTF) rules, statutes, and federal regulations to notify clients of applicable rules and laws regarding CDTFs:

(1) This chapter;

(2) Texas Health and Safety Code Chapter 464; and

(3) 42 CFR Part 2.

(y) A program shall provide the program's emergency contact information to the client.

(z) A program shall maintain resource information for the local area of the client.

(aa) A program shall provide reasonable Americans with Disabilities Act of 1990 (ADA) accommodations for clients upon request.

(bb) A program shall be located and perform services in Texas.

(cc) HHSC maintains the authority to regulate the program regardless of the location of the client.

(dd) The facility shall provide the facility's emergency contact information to the client.

(ee) The facility shall maintain resource information for the local area of the client.

Source Note: The provisions of this §448.911 adopted to be effective September 1, 2004, 29 TexReg 2020; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8842; amended to be effective March 3, 2022, 47 TexReg 655; amended to be effective February 22, 2024, 49 TexReg 871