Starting an Autism/ABA Therapy Practice: Key Legal Considerations 

Autism can be a very challenging diagnosis for both child and family, and many families will seek assistance in helping their child with skills to navigate school, home, and social life. Autism and ABA (Applied Behavior Analysis) therapy are becoming increasingly important as awareness and diagnosis of autism spectrum disorders rise. With more families seeking effective, evidence-based treatment options, ABA therapy is gaining traction for its ability to improve skills and behaviors in children with autism, making it a key part of early intervention and long-term support. 

As the demand for personalized care continues to grow, Autism/ABA therapy practices are poised for significant expansion in the coming years. Starting an Autism/ABA therapy practice involves more than just providing exceptional care; it also requires careful attention to various legal considerations. From ensuring compliance with healthcare regulations and insurance requirements to understanding state-specific licensing laws and patient privacy protections, the legal requirements can be challenging to work through. Whether you are setting up a small private practice or expanding a larger operation, it is crucial to address these legal factors and business needs early on to avoid potential pitfalls and create a strong foundation for your practice’s success.

What Is An Autism/ABA Therapy Practice?

An Autism/ABA therapy practice provides specialized treatment for individuals with autism spectrum disorder (ASD) using Applied Behavior Analysis (ABA), a research-based therapy designed to improve social, communication, and behavioral skills. ABA therapy focuses on teaching specific skills through reinforcement strategies, aiming to reduce challenging behaviors and promote independence. The practice typically involves one-on-one therapy sessions with trained professionals, such as Board Certified Behavior Analysts (BCBAs), who design and implement individualized treatment plans.

What Sorts of Things Do Autism/ABA Therapy Owners Need to Consider?

Because potential autism/ABA therapy owners are likely focused on offering excellent service to their clients, they often fail to consider some of the logistics of the operation. These are just some of the considerations that autism/ABA therapy owners must have:

• Compliance manuals and policies
• Corporate formation, including operating agreements, formation documents, EIN, and employment agreements
• Corporate practice of medicine considerations
• Design of written policies, procedures, and handbooks
• Employment law issues, agreements, and dispute resolution
• Financing and business partnerships
• Flat-fee-based outside general counsel services
• Licensing services
• Litigation management
• M&A transactions and joint ventures
• Navigating payor audits and recoupment demands
• Real estate leases
• Safety and security matters
• Trademark and intellectual property issues
• Vendor and payor contracting

What Legal Considerations Exist For Those Interested In Having An Autism/ABA Therapy Practice?

From just starting out to being operational, autism/ABA therapy practice owners have a great deal to navigate. Here is a rough guide.

Business Formation 

The first step in establishing any therapy practice is determining the business structure. Whether one chooses to form a sole proprietorship, partnership, limited liability company (LLC), or corporation, the legal structure of the business will affect taxation, liability, and ownership. 

After selecting a business structure, the next step is drafting the necessary operating agreements or bylaws for LLCs or corporations. These documents outline how the business will operate, how decisions will be made, and the rights and responsibilities of each owner. These documents should be thorough, as they can help resolve disputes down the line and ensure smooth operation.

An EIN is required for tax purposes and to hire employees. This identification number is obtained through the IRS, and it is crucial for maintaining legal compliance with state and federal tax regulations.

Finally, you will need to figure out employment agreements. Autism/ABA therapy practices may employ a wide range of employees, and those agreements should reflect those differences.

Board-Certified Behavior Analysts (BCBAs)

These highly qualified professionals often require more detailed agreements due to their specialized skills and responsibilities. Employment agreements for BCBAs should outline not only their therapy-related duties but also their role in supervising other staff members, conducting assessments, and designing behavior intervention plans. These agreements should also address any continuing education or certification renewal requirements that BCBAs must adhere to.

Registered Behavior Technicians (RBTs)

RBTs typically have less education and training than BCBAs, but their role is still essential to the success of an ABA therapy practice. Employment agreements for RBTs may focus more on training, supervision, and adherence to ethical standards. It is important to specify the expectations for direct care and any requirements for continued supervision by a BCBA.

Administrative and Support Staff

While the focus of the therapy practice may be on clinical work, administrative and support staff play a key role in the smooth operation of the business. Employment agreements for these employees should outline their office-related duties, expectations regarding client communication, and confidentiality requirements. These agreements may also address whether employees are expected to assist in billing, scheduling, or other administrative tasks.

Securing Licensing and Certification Requirements

ABA therapy is a regulated field, and it is important to understand both state and national licensing requirements. Therapy practices may need to adhere to state-specific regulations regarding professional licensing for practitioners, including BCBAs and RBTs.

The Behavior Analyst Certification Board (BACB) offers certifications like the BCBA and RBT. Therapists and technicians must meet BACB’s educational and experience requirements before practicing. Each state may have specific requirements for licensure or certification, and these can vary widely. Providers must familiarize themselves with these requirements to avoid fines or other penalties.

Many states require physical therapy facilities to meet specific health and safety standards. Your practice may need to obtain a license for the therapy center from the state’s health department, which often includes inspections and adherence to sanitation and patient care standards.

Crafting Employment Contracts

One of the key legal considerations in employment law is properly classifying workers as either employees or independent contractors. Misclassification can result in penalties and fines. Many therapy practices hire independent contractors, such as speech-language pathologists or occupational therapists, but it is important to ensure that their classification aligns with IRS guidelines.

ABA therapy providers also must adhere to minimum wage laws and overtime requirements set by the Fair Labor Standards Act (FLSA). Additionally, if you offer health benefits or other perks, these benefits should be clearly documented and provided in accordance with legal requirements.

Employers are required to adhere to federal anti-discrimination laws under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). These laws prohibit discrimination in hiring, firing, promotions, and wages based on race, gender, disability, or other protected classes.

You will also want to consider dispute resolution. Any dispute resolution clauses in employee contracts must comply with local and federal labor laws. For example, it is essential to ensure that the contract doesn’t waive an employee’s right to file claims with government agencies like the Equal Employment Opportunity Commission (EEOC) or wage-and-hour complaints with the Department of Labor. Additionally, the contract should clearly state the jurisdiction and venue for arbitration, ensuring that employees are aware of where any disputes will be resolved.

Before pursuing mediation or arbitration, contracts can include an internal dispute resolution process. This often involves direct negotiations between the employee and employer, with the possibility of involving a supervisor or HR representative to help find a resolution. Encouraging direct communication can resolve many issues before they escalate.

Mediation is often the first step in resolving conflicts. It involves a neutral third-party mediator who helps both parties come to a mutually agreeable solution. Mediation is confidential, less formal than arbitration or litigation, and can often preserve working relationships. The employee contract should specify that, in case of a dispute, mediation will be the first line of defense before moving to more formal procedures. If mediation fails, the next step could be arbitration. Arbitration is more formal than mediation but still avoids the full scale of a court trial. An arbitrator—an impartial third party—reviews the evidence and makes a binding decision. Employee contracts can include a clause that requires employees to arbitrate disputes, particularly regarding matters such as wrongful termination, discrimination, or wage disputes, which are common in employee-employer conflicts.

Detailing Contracts With Clients, Insurance, and Vendors  

Contracts with clients, vendors, and other service providers are a central part of the operations of an ABA therapy practice. It is essential to ensure that these agreements are clear, legally binding, and comply with all relevant laws.

Client contracts should be written agreements that outline the scope of services, pricing, insurance information, and payment schedules. A well-drafted contract helps protect both the client and the provider by setting clear expectations.

Many ABA therapy practices deal with insurance companies or payors to receive reimbursement for services provided. Negotiating these contracts can be complex, and it’s essential to have a solid understanding of payer requirements, reimbursement rates, and billing practices. 

If your practice relies on third-party vendors for supplies, therapy tools, or other materials, it is important to formalize these relationships through written contracts. These contracts should outline delivery timelines, pricing, and dispute-resolution mechanisms.

Designing Written Policies and Procedures

Written policies, procedures, and handbooks are vital for an ABA (Applied Behavior Analysis) or autism therapy practice. This will help the medical practice have consistent operations, ensure compliance with legal and ethical standards, and promote clear communication among staff and clients. These documents serve as a framework for day-to-day operations and provide guidance for handling various situations.

Policies should outline the practice’s mission, values, and operational guidelines. These policies typically include confidentiality and HIPAA compliance, emergency procedures, and ethical guidelines for therapy. They should also address handling of sensitive information, reporting of suspected abuse or neglect, and procedures for responding to incidents or emergencies.

Procedures provide step-by-step instructions for specific tasks, such as conducting assessments, creating individualized treatment plans, and providing parent or caregiver training. Clear procedures ensure consistency and efficiency across all sessions, maintaining high-quality care for each patient.

Handbooks should be provided to staff and families. The staff handbook includes expectations for professional conduct, job responsibilities, and disciplinary procedures. The family handbook should explain the therapy process, expected outcomes, and rights regarding treatment. Both handbooks help set clear expectations, promote transparency, and build trust with clients and staff.

Ensuring Client Privacy

ABA therapy practices deal with private information related to the diagnosis, treatment plans, and behavioral interventions of individuals, often children, with autism spectrum disorders. Given the sensitive nature of therapy practices, ABA therapy providers must adhere to strict confidentiality and privacy laws to protect patient health information. These protections are essential not only to comply with federal regulations but also to maintain trust and the integrity of the therapeutic relationship. The Health Insurance Portability and Accountability Act (HIPAA) is the primary federal regulation that governs the use, disclosure, and protection of patient health information, ensuring that all health-related data is kept confidential and secure.

Full compliance requires both having the appropriate policies in place and staff training. Training staff on HIPAA compliance is crucial for ABA therapy practices, ensuring that employees understand privacy, confidentiality, and the proper handling of protected health information (PHI). Training covers topics like PHI, confidentiality obligations, permissible disclosures, and breach reporting. Implementing security protocols, such as access controls, encryption, and audit trails, further protects electronic health records (ePHI). ABA practices must also follow strict data storage and transmission practices, including secure physical and electronic storage and using encryption for data sharing.

Consult a Healthcare Practice Attorney Experienced With Autism/ABA Therapy Practices

Starting an Autism/ABA therapy practice requires careful planning and attention to various legal considerations. From selecting the right business structure and obtaining the necessary certifications to navigating insurance reimbursement, contracts, and compliance with health and safety regulations, the legal landscape is complex but manageable. By addressing these key legal issues with an experienced healthcare law lawyer from the outset, practice owners can create a solid foundation for success, ensuring their ability to provide high-quality, legally compliant services to families affected by autism.