By Matt Harrington, BCBA · Behaviorist Book Club · Research-backed answers for behavior analysts
A BCBA who receives a subpoena should not immediately release records. The first step is to verify that the subpoena is valid and legally enforceable in the applicable jurisdiction. Then, consult with an attorney about the scope of the subpoena and any available objections or limitations. Notify the client or their legal representative about the subpoena so they can assert any applicable privileges. Review the records to be produced and ensure they contain only clinically relevant information. If the subpoena requests information that would be harmful to the client, discuss with your attorney whether grounds exist to challenge or limit the scope of production. Document all steps taken throughout the process.
The BCBA should first review the custody order to determine which parent has legal authority for healthcare decisions. If both parents share decision-making authority, both must consent to treatment. If one parent has sole authority, that parent's consent is sufficient but the other parent may have a right to access records. The BCBA should not take sides in the dispute, should document all communications with both parents, and should focus exclusively on the child's treatment needs. If the situation becomes unworkable, consult with an attorney about the behavior analyst's obligations and consider whether a referral to another provider might better serve the child's interests.
Non-compete clauses can restrict a BCBA's ability to practice in a geographic area or serve specific clients for a defined period after leaving employment. The enforceability of these clauses varies significantly by state, with some states like California largely prohibiting non-competes and others enforcing them if they are reasonable in scope, duration, and geographic area. The BACB Ethics Code does not override contractual obligations, but behavior analysts should consider the ethical implications of non-compete clauses on client welfare before signing employment agreements. When possible, negotiate provisions that allow continuity of care for existing clients or that include reasonable exceptions for client welfare.
The BACB Ethics Code (2022), Code 1.02, addresses this situation directly. Behavior analysts should make known their commitment to the Ethics Code and take steps to resolve the conflict responsibly. In practice, this means identifying the specific provisions that conflict, seeking legal consultation about the legal requirement, consulting with the BACB ethics department about the ethical requirement, documenting the conflict and the analysis process, and selecting a course of action that satisfies both obligations to the greatest extent possible. When true conflicts exist and compromise is not possible, the behavior analyst must make a judgment call that prioritizes the welfare of the client while minimizing legal risk.
HIPAA applies to behavior analysts who work in covered entities such as healthcare providers who transmit health information electronically, health plans, or healthcare clearinghouses. Where HIPAA applies, it establishes minimum standards for the protection of protected health information that overlay the Ethics Code's confidentiality requirements. HIPAA permits certain disclosures without patient authorization including for treatment, payment, and healthcare operations, and requires disclosures in response to valid court orders. The Ethics Code may impose additional confidentiality protections beyond HIPAA's requirements, in which case the behavior analyst should follow the more protective standard unless doing so would violate a legal requirement.
The BCBA should first consult with an attorney about the scope and nature of the testimony expected. Determine whether the testimony is being requested by one party in an adversarial proceeding or by the court itself. Review the client's records to prepare for questions about assessment findings and treatment. Provide testimony that is objective, factual, and within the scope of your professional competence. Avoid offering opinions on ultimate legal issues such as custody determinations, which are beyond the behavior analyst's scope of practice. If testifying would require disclosure of confidential information, ensure that appropriate authorization or a valid court order is in place before proceeding.
Arbitration clauses require disputes between the employee and employer to be resolved through arbitration rather than litigation. These clauses are generally enforceable and limit the behavior analyst's legal options if disputes arise. Before signing an employment agreement with an arbitration clause, understand what types of disputes are covered, whether the arbitration process is fair and neutral, whether the clause limits your ability to file complaints with regulatory bodies or the BACB, and whether class action waivers are included. If possible, negotiate to exclude professional ethics complaints and regulatory reporting from the arbitration requirement. An attorney can help evaluate whether specific arbitration provisions are fair and enforceable in your jurisdiction.
All states have mandatory reporting laws that require certain professionals, including behavior analysts in most jurisdictions, to report suspected child abuse or neglect. This obligation exists regardless of confidentiality provisions and regardless of the source of the information. Behavior analysts do not need proof of abuse to report; a reasonable suspicion is sufficient. Reports should be made to the appropriate child protective services agency or law enforcement agency as specified by state law. The behavior analyst should document the basis for their suspicion and the report that was made. Failure to report when mandated can result in criminal penalties. This is an area where legal and ethical obligations align completely.
The BCBA should decline to write a letter that advocates for one parent's custody position. The behavior analyst's role is to provide behavioral services to the child, not to evaluate parental fitness or make custody recommendations. Writing such a letter would create a multiple relationship that could compromise the therapeutic relationship and would likely fall outside the BCBA's scope of competence. The BCBA can offer to provide factual information about the child's treatment progress if both parents consent and if appropriate legal authorization is in place. If pressed, explain that maintaining neutrality serves the child's best interests by preserving the treatment relationship regardless of the custody outcome.
Legal protections vary significantly by state. Many states have whistleblower protection laws that provide some protection for employees who report illegal activity, but these laws may not cover all types of ethical concerns. Healthcare-specific protections may exist for reporting fraud, patient safety issues, or regulatory violations. The BACB Ethics Code requires reporting of ethical violations but cannot provide legal protection against employer retaliation. Behavior analysts who anticipate reporting ethical violations within their organization should consult with an attorney about available protections in their state, document the concerns and the reporting process thoroughly, and consider reporting through channels that trigger statutory protections when available.
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All behavior-analytic intervention is individualized. The information on this page is for educational purposes and does not constitute clinical advice. Treatment decisions should be informed by the best available published research, individualized assessment, and obtained with the informed consent of the client or their legal guardian. Behavior analysts are responsible for practicing within the boundaries of their competence and adhering to the BACB Ethics Code for Behavior Analysts.