172 Neb. Admin. Code, ch. 86, § 011 - UNPROFESSIONAL CONDUCT

Unprofessional conduct includes acts set out in Neb. Rev. Stat. § 38-179 and acts set out in this chapter.

011.01 ETHICS CODE. It is unprofessional conduct for a credential holder to depart from or fail to conform to the ethics of the behavior analyst profession, found in the "Ethics Code for Behavior Analysts" as revised on January 1, 2022, and as published by the Behavior Analyst Certification Board.

011.02 COMPETENCE. It is unprofessional conduct for a credential holder to provide services for which he or she is not trained.

011.03 CLIENT CONFIDENTIALITY. It is unprofessional conduct for a credential holder to disclose any information they have acquired from a client, client's parent or guardian, or stakeholder except:

(A) With the written consent of the client;

(B) With the written consent of the client's parent or guardian if the client is unable to consent;

(C) As required or permitted by the laws of the state of Nebraska; or

(D) When the client waives confidentiality by bringing charges against the credential holder.

011.04 NOTIFICATION. It is unprofessional conduct for a credential holder to fail to comply with the notification requirements in this section. A credential holder must inform each client; the client's parent if the client is under the age of majority; and the client's guardian, if one is appointed, of how to access these regulations and the right to file a complaint with the Department or certifying entity within 30 days of beginning services. For existing clients receiving services, a credential holder must inform each existing client; the client's parent if the client is under the age of majority; and the client's guardian, if one is appointed, of how to access these regulations and the right to file a complaint with the Department or certifying entity no later than 60 days after the effective date of these regulations. The credential holder must document completion of this notice in the client's file.

011.05 DISCONTINUATION OF SERVICES. It is unprofessional conduct for a credential holder to fail to:

(A) Discontinue services when a client has achieved the discharge goals set out in the service plan;

(B) Discontinue services after it becomes evident the services are not effective or beneficial for the client and to take appropriate steps to transition the client to another provider;

(C) Create a written plan to transition the client to another provider if services are ended for reasons other than the client achieved the goals for which services were set out in the service plan or it becomes evident the services are not effective or beneficial for the client; or

(D) Make appropriate and timely efforts to facilitate the continuation of behavior analysis services in the event of an unplanned interruption in services caused by the credential holder or the credential holder's employer.

011.06 DISCRIMINATION. It is unprofessional conduct for a credential holder to refuse to provide services or assistance to clients or stakeholders based on race, color, religion, sex, disability, marital status, national origin, age, familial status, and ancestry.

011.07 FAILURE TO COOPERATE WITH INVESTIGATIONS. Credential holders must provide information and documentation as requested during any investigation by the Department or other official entities. Refusal to cooperate or failing to furnish requested information and documentation during any investigation is considered unprofessional conduct.

011.08 FAILURE TO REPORT REGISTRY FINDING. It is unprofessional conduct for a credential holder to fail to report as required by this section. A credential holder must notify the Department within 10 days of being placed on any state's adult abuse and neglect registry or child abuse and neglect registry.

011.09 CHARGES FOR SERVICES. It is unprofessional conduct for a credential holder to fail to comply with this section. A credential holder must provide accurate information regarding fees charged to clients or relevant stakeholders and provide accurate information on reports, bills, invoices, requests for reimbursements, and receipts.

011.10 MULTIPLE RELATIONSHIPS. Credential holders must make every effort to avoid multiple relationships that could impair professional judgment or increase the risk of exploitation. If a multiple relationship cannot be avoided, it is unprofessional conduct for a credential holder to:

(A) Not seek supervision or professional consultation to ensure judgment is not impaired and no exploitation occurs.

(B) Engage in any abuse of power or authority by coercing or exploiting the person over whom the credential holder has authority.

011.11 SEXUAL MISCONDUCT. It is unprofessional conduct for a credential holder to:

(A) Engage in romantic or sexual relationships with a client, a client's parent, or a client's guardian;

(B) Engage in romantic or sexual relationships with former clients within two years from the date the professional relationship ended;

(C) Engage in romantic or sexual relationships with former supervisees or trainees until there is documentation that the professional relationship has ended;

(D) Supervise or train individuals with whom the credential holder has had a romantic or sexual relationship within the past six months; or

(E) Engage in sexual harassment.

011.12 PUBLIC STATEMENTS. It is unprofessional conduct for a credential holder to fail to protect the rights of their clients, stakeholders, trainees, and supervisees in all public statements by:

(A) Failing to protect a client's confidentiality in public facing statements and media except when informed consent is obtained;

(B) Failing to make sure the statements about the credential holder's professional activities are accurate and not misleading;

(C) Failing to take appropriate action to address untruthful, misleading, or inaccurate advertising or statements about the credential holder by the credential holder's employer, marketers, clients, or stakeholders;

(D) Advertising nonbehavioral services as behavioral services;

(E) Soliciting testimonials from current clients for advertising purposes;

(F) Failing to comply with intellectual property laws;

(G) Posting confidential information on social media websites;

(H) Encouraging or promoting the practice of behavior analysis by untrained or unqualified persons; and

(I) Providing information in any form related to the practice of behavior analysis that is untruthful, intentionally misleading, or fraudulent.

011.13 RESEARCH WITH HUMAN PARTICIPANTS. It is unprofessional conduct for a credential holder to fail to respect the dignity and welfare of human research participants and conform with acceptable and prevailing standards in research. Unprofessional conduct includes:

(A) Unless it is considered minimal risk, a credential holder's failure to establish an agreement that clarifies the obligations and responsibilities of the credential holder and the human research participant prior to the human research participant's participation in a credential holder's research;

(B) Except where the nature of the credential holder's research precludes full disclosure, failure to inform human research participants of all aspects of the research that might be expected to influence willingness to participate, or failing to explain all aspects of the research about which a participant inquires. Where the nature of the research precludes full prior disclosure, or where the research is with children or with individuals with a legal guardian, failing to implement additional safeguards to protect the welfare and dignity of the human research participants;

(C) Where methodological requirements of a study make the use of concealment or deception necessary:

(i) Failure to determine whether the use of the techniques are justified by the study's prospective scientific, educational, or applied value before conducting the study; or

(ii) Failure to determine whether alternative procedures are available that do not use concealment or deception before conducting the study;

(D) Failure to grant a participant the right to decline to participate in or to withdraw from the credential holder's research at any time without impacting other services received from the credential holder;

(E) Failure to inform the participant of undue physical and mental discomfort, harm, and danger that may arise from research procedures;

(F) Failure to inform the participant of the use of research procedures likely to cause serious or lasting harm to a participant unless fully informed and voluntary consent is obtained from the participant;

(G) Withholding information from participants about the nature of the study, after data has been collected, unless there is a scientific or humane value justifying the delay;

(H) Failure to make reasonable efforts to detect and remove or correct undesirable consequences for the individual participants;

(I) Knowingly publishing misleading or inaccurate research findings;

(J) Solicitation of research participants with false representations;

(K) Failure to obtain a parent or guardian's consent to participate in research and, when appropriate, obtaining assent from the research participant; and

(L) Offering professional services as an inducement for participation.

011.14 PROFESSIONAL RECORDS. Failure to comply with the following is unprofessional conduct:

(A) Client records must be maintained a minimum of seven years following termination of services;

(B) Client records must be stored, safeguarded, and disposed of in ways that maintain confidentiality and in accordance with applicable laws and professional standards;

(C) Prior to the credential holder moving from the area or closing a practice, a credential holder must arrange for the storage, transfer, access to, or disposition of client records in ways that maintain confidentiality of the clients;

(D) Client records must include a signed and dated informed consent agreement outlining the credential holder's confidentiality obligations, as well as the client's rights and responsibilities;

(E) Client records must include documentation which reflect the services provided and include applicable releases of information and discussions with other professionals; and

(F) A credential holder must allow a client access to his or her records in accordance with Neb. Rev. Stat. §§ 71-8401 to 71-8407.

011.15 MINIMIZING CLIENT RISK. It is unprofessional conduct to fail to use the least restrictive and least intrusive measures in accordance with the client's treatment plan.

011.15(i) PHYSICAL INTERVENTION. A credential holder must obtain informed consent and, when appropriate, client assent. A credential holder must document that they obtained informed consent, and document the occurrence and effectiveness of a restrictive or punishment-based procedure. Any physical management implemented must be communicated with the client's parent, if the client is a minor, guardian if appointed, or stakeholder when used in an emergent situation.

011.16 SUPERVISION OF LICENSED ASSISTANT BEHAVIOR ANALYST BY A BEHAVIOR ANALYST. A licensed assistant behavior analyst must be supervised by a licensed behavior analyst holding a Nebraska credential. It is unprofessional conduct to fail to meet any of the following supervision criteria:

(A) Supervision by a behavior analyst with a Nebraska license; and

(B) Supervision consistent with the requirements of the certifying entity, as defined by Neb. Rev. Stat. § 38-4405.

011.17 SERVICE DELIVERY. It is unprofessional conduct for the licensed behavior analyst or licensed assistant behavior analyst to fail to do the following:

(A) Provide semi-annual client progress documentation to the client, the client's parent if the client is under the age of majority, or the client's guardian, if one is appointed;

(B) Provide notification to the client, the client's parent if the client is under the age of majority, or the client's guardian, if one is appointed, of any meetings with stakeholders;

(C) Attend, either in person or by video conference, an initial client meeting at the beginning of delivery of services; and

(D) Attend at least one meeting, either in person or by video conference, with the client, the client's parent if the client is under the age of majority, or the client's guardian, if one is appointed, every six months, to review and discuss the client's progress and goals. If a higher meeting frequency is agreed upon by the client's service delivery team, the licensed behavior analyst must attend at the agreed upon frequency.

011.17(i) CLIENT MEETING. If a licensed behavior analyst is providing services to a client at the effective date of these regulations, the licensed behavior analyst must meet with the client, the client's parent if the client is under the age of majority, or the client's guardian, if one is appointed, within 60 days. The licensed behavior analyst may include in the client's file documentation of meeting with the client, the client's parent, if the client is under the age of majority, or the client's guardian, if one is appointed, within six months prior to the effective date of these regulations, to satisfy this requirement.

011.18 COLLABORATION WITH COLLEAGUES. It is unprofessional conduct for a credential holder to fail to make efforts to collaborate with colleagues from their own and other professions identified in the client's service plan. The credential holder must document this collaboration or their efforts at collaboration.

Notes

172 Neb. Admin. Code, ch. 86, § 011

Adopted effective 1/20/2025