(a) This subsection applies to counseling records of an LCDC's private practice. Documentation of professional services rendered in another setting shall be created and maintained in accordance with any legal requirements for documentation applicable to the particular setting in which they were provided.
  (1) The counselor shall establish and maintain a record for every client at the time of initial service delivery. The client record shall include:
    (A) client identifying information;
    (B) assessment results, including a statement of the client's problems and/or diagnosis;
    (C) plan of care;
    (D) documentation of all services provided, including date, duration, and method of delivery; and
    (E) a description of the client's status at the time services are discontinued.
  (2) The counselor shall maintain a record of all charges billed and all payments received.
  (3) All entries shall be permanent, legible, accurate, and completed in a timely manner.
  (4) All documents and entries shall be dated and authenticated. Authentication of electronic records shall be by a digital authentication key.
  (5) When it is necessary to correct a record, the error shall be marked through with a single line, dated, and initialed by the counselor.
  (6) The counselor shall protect all client records and other client-identifying information from destruction, loss, tampering, and unauthorized access, use or disclosure. Electronic client information shall be protected to the same degree as paper records and in accordance with applicable law and accepted security standards for electronic health records prevailing at the time, and shall have a reliable backup system.
  (7) The counselor shall comply with all applicable state and federal laws relating to confidentiality, including the requirements of Texas Health and Safety Code, Chapter 611 (relating to Mental Health Records) and Code of Federal Regulations, Title 42, Part 2 (relating to Confidentiality of Alcohol and Drug Abuse Patient Records).
  (8) The counselor shall not deny clients access to the content of their records except as provided by law, including Texas Health and Safety Code, §611.0045 (relating to Right to Mental Health Record).
  (9) Client records shall be kept for at least five years. Records of adolescent clients shall be kept for at least five years after the client becomes eighteen years of age.
(b) This subsection applies to an LCDC in private practice using the internet or telephone to provide chemical dependency counseling services.
  (1) The counselor must reside in and perform the services from Texas.
  (2) The department maintains its authority to regulate the counselor regardless of the location of the client.
  (3) The counselor is subject to the applicable laws of other states and countries where the client may reside or receive services by electronic means, including any laws limiting the counselor's practice.
  (4) The counselor's provision of services by electronic medium must comply with applicable law and accepted security standards at the time, including, as applicable, Code of Federal Regulations, Title 42, Part 2 (relating to Confidentiality of Alcohol and Drug Abuse Patient Records), Texas Health and Safety Code, Chapter 611 (relating to Mental Health Records), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191), and Health Information Technology for Economic and Clinical Health Act (HITECH Act), Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (Feb. 17, 2009), and their implementing regulations, including 45 Code of Federal Regulations Parts 160 (relating to General Administrative Requirements), 164 (relating to Security and Privacy), and 170 (Health Information Technology Standards, Implementation Specifications, And Certification Criteria And Certification Programs For Health Information Technology).
  (5) The counselor must be able to verify the identification of the client and ensure the client's appropriate age.
  (6) If a counselor uses the Internet as the electronic means by which counseling is provided or transfers client or other protected health information through the Internet, the counselor must comply with the following:
    (A) counseling, client, and other protected health information may only be transferred using encryption that meets or exceeds the Security Standards for the Protection of Electronic Protected Health Information under 45 Code of Federal Regulations Part 164, Subpart C, that are in effect at the time;
    (B) e-mail communication containing counseling, client, and/or other protected health information is subject to the restrictions set forth in subparagraph (A) of this paragraph; and
    (C) the counselor must provide technical backup for system problems by providing a phone number to the client to call for technical support and a contingency plan for the client when a technical problem occurs.
  (7) The counselor must provide services that utilize audio or video in real time.
  (8) The counselor must provide a description of all services offered to the client in writing and describe who is appropriate for the services. The description must include:
    (A) a grievance procedure and provide a link to department information for filing a complaint when using the Internet and the toll-free number for the department when counseling by telephone;
    (B) the counselor's credentials, education level, and training;
    (C) a link to the licensure verification page when using the Internet and the toll-free number for the department when counseling by telephone;
    (D) the difference between electronic counseling and traditional counseling; and
    (E) the potential risk regarding clinical issues, security and confidentiality.
  (9) Services may only be offered by licensed chemical dependency counselors.
  (10) The counselor must provide an emergency contact person and phone number and emergency procedures to the client in writing.

Source Note: The provisions of this §140.424 adopted to be effective August 9, 2012, 37 TexReg 5788