BILL ANALYSIS ----------------------------------------------------------------------- |Hearing Date:May 3, 2010 |Bill No:SB | | |1282 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Gloria Negrete McLeod, Chair Bill No: SB 1282Author:Steinberg As Amended:April 28, 2010 Fiscal: No SUBJECT: Applied behavior analysis services: California Behavioral Certification Organization. SUMMARY: Creates the California Behavioral Certification Organization (CBCO) and provides for the certification of applied behavior analysts and applied behavior analyst assistants by the CBCO. Existing law: 1) Licenses and regulates the practice of psychotherapy preformed by marriage and family therapists (MFTs), licensed educational psychologists (LEPs), and licensed clinical social workers (LCSWs) by the Board of Behavioral Sciences (BBS) within the Department of Consumer Affairs (DCA). Beginning January 1, 2012, the BBS will additionally license professional clinical counselors (LPCCs). 2) Licenses and regulates various health care professions including physicians and surgeons, psychologists, speech-language pathologists, occupational therapists, physical therapists by the various healing arts boards within the DCA. 3) California law does not license, certify or specifically regulate applied behavioral analysis services. This bill: 1) Defines the following terms: a) "Applicant" means a person who applies for certification pursuant to the chapter. SB 1282 Page 2 b) "Applied behavior analyst" as a person provides applied behavior analysis services and who may be certified by the CBCO. c) "Applied behavior analyst assistant" as a person provides applied behavior analysis services under the supervision of an applied behavioral analyst and who may be certified by the CBCO. d) "ANSI" as the American National Standards Institute. e) "BACB" as the Behavior Analyst Certification Board. f) "CBCO" as the California Behavioral Certification Organization established by the chapter. g) "NCCA" as the National Commission for Certifying Agencies. 2) Provides that "applied behavior analysis services" includes the following functions: a) Designing, implementing, and evaluating systematic instructional and environmental modifications to produce social improvements in the behavior of individuals or groups. b) Applying the principles, methods, and procedures of behavior analysis. c) Utilizing contextual factors and establishing operations, antecedent stimuli, positive reinforcement, other consequences, and other behavior analysis procedures to help people develop new behaviors, increase or decrease existing behaviors, and emit behaviors under specific environmental conditions. d) Assessing functional relations between behavior and environmental factors. e) Using procedures based on scientific research and the direct observation and measurement of behavior and environment. f) Determining whether a nonlicensed or noncertified individual shall be deemed as qualified to perform all of the functions under this subdivision subject to his or her supervision. g) Excludes from the specified functions: psychological testing, neuropsychology, psychotherapy, sex therapy, psychoanalysis, hypnotherapy, and long-term counseling. SB 1282 Page 3 h) Applies the definition regardless of the source of payment or reimbursement. 3) Establishes the CBCO and specifies that the CBCO shall be a nonprofit corporation exempt from taxation under Section 501(c)(3) of Title 26 of the United States Code. Provides that the CBCO may commence authorized activities once it has submitted a request to the Internal Revenue Service and the Franchise Tax Board seeking the exemption. Authorizes the CBCO to take any reasonable actions to carry out the responsibilities and duties in the chapter, including, but not limited to, hiring staff and entering into contracts. 4) Provides that the CBCO shall include the following members: a) Two representatives from each professional society, association, or other entity whose membership is comprised of applied behavior analysts and that has a membership in California or on a national basis of at least 1,000 individuals for the last three years and that requires its members to abide by a code of ethics. b) Additional persons shall be included on the board of directors as established by the CBCO bylaws. c) Additional members of the board of directors may include certified behavior analysts and at least two consumer or public members. 5) Provides that the CBCO shall establish certification fees that are reasonably related to the cost of providing services and carrying out its ongoing responsibilities and duties. 6) Provides that the meetings of the CBCO shall be subject to the Bagley-Keene Open Meetings Act. 7) Requires the CBCO to issue an " applied behavior analyst " certificate to an applicant who submits a written application, pays the required fees, and provides satisfactory evidence that he or she meets either of the following requirements: a) Holds a current, valid certification in applied behavior analysis from the BACB or another organization accredited by the NCCA or ANSI whose mission is to meet professional credentialing needs identified by behavior analysts, governments, and consumers SB 1282 Page 4 of behavior analysis services. b) Meets all of the following requirements: i) Possesses a master's or doctorate degree in applied behavior analysis or a related field. ii) Demonstrates 3 years of experience in the last 5 years of providing those functions specified in Item #2) above, to individuals, either as an independent professional or as an employee of an organization. 8) Requires the CBCO to issue an " applied behavior analyst assistant " certificate to an applicant who submits a written application, pays the required fees, and provides satisfactory evidence that he or she meets either of the following requirements: a) Holds a current, valid certification as an assistant behavior analysis from the BACB or another organization accredited by the NCCA or ANSI whose mission is to meet professional credentialing needs identified by behavior analysts, governments, and consumers of behavior analysis services. b) Meets all of the following requirements: i) Possesses a bachelor's degree in applied behavior analysis or a related field. ii) Demonstrates 3 years of experience in the last 5 years of providing those functions specified in Item #2) above, to individuals, either as an independent professional or as an employee of an organization. 9) Provides that a certificate shall be subject to renewal in a manner prescribed by the CBCO and shall expire unless renewed every two years. Further, authorizes the CBCO to provide for the late renewal of a certification. 10)Authorizes the CBCO to receive factual information as a condition of taking any action, and to conduct oral interviews or make any investigation deemed necessary to establish the accuracy of any information. 11)Provides that an applied behavior analyst shall maintain that certification only by meeting the CBCO requirements for continuing education and ethical standards. SB 1282 Page 5 12)Prohibits the CBCO from issuing certificates prior to September 1, 2011. 13)Provides for the CBCO to require an applicant to submit fingerprints, and establish a procedure consistent with state law to obtain background information on applicants. 14)Authorizes the CBCO to discipline a certificate holder by any, or a combination of, the following methods: probation; certificate suspension; certificate revocation; conditional certificate suspension; and, any other appropriate action. 15)Establishes various grounds for discipline against a certificate holder or for denial of a certificate to an applicant, including: unprofessional conduct; procurement of certificate by fraud, misrepresentation or mistake, conviction of a felony or misdemeanor substantially related to their qualifications, functions or duties, or committing any fraudulent, dishonest, or corrupt act that is substantially related, and committing any act punishable as a sexually related crime. 16)Provides that discipline or denial of a certificate or registration by CBCO must be in keeping with specific procedures, and that denial or discipline not in keeping with the procedures is void and without effect. Establishes the following procedures for discipline: a) The denial or discipline shall be done in good faith and in a fair and reasonable manner, as described below; however, a court may also find other procedures to be fair and reasonable when the full circumstances of the denial or discipline are considered. b) A procedure is fair and reasonable if the procedure is: Set forth in the CBCO articles or bylaws; provides for 15 days notice prior to the denial or discipline and the reasons therefore; provides an opportunity for the person denied or disciplined to be heard, orally or in writing, not less than five days before the effective date by a person or body authorized to decide that the proposed denial or discipline not take place. c) Notice may be given by a method reasonably calculated to provide actual notice, as specified. d) Any action challenging a denial or discipline, shall be commenced within one year after the date of the denial or SB 1282 Page 6 discipline. If the challenge is successful, the court may order any relief, including reinstatement, it finds equitable under the circumstances. e) A person who is denied or disciplined shall be liable for any charges incurred, services or benefits actually rendered, dues, assessments, or fees incurred before the denial or discipline or arising from contract or otherwise. 17)Provides that it is an unfair business practice for any person to advertise or represent to the public, that he or she is certified, registered, or licensed by a governmental agency as an applied behavior analyst or applied behavior analyst assistant. 18)Provides that it is an unfair business practice for any person to hold himself or herself out or use the title of "certified applied behavior analyst" or "certified applied behavior analyst assistant" or any other term, such as "licensed," "registered," "CABA" or "CABAA" or any term that implies or suggests that the person is certified as an applied behavior analyst or applied behavior analyst assistant without meeting the certification requirements. 19)Provides that the superior court in and for the county in which any person acts as an applied behavior analyst or applied behavior analyst assistant in violation of the chapter, may, upon a petition by any person, issue an injunction or other appropriate order restraining the conduct. 20)Requires the CBCO to make available to the public the current status certificate holders; requires the CBCO to maintain on its Internet Website information updated annually related to implementation of the chapter. 21)Provides that nothing under this law shall be construed to: a) Prevent behavior analysis service providers who are vendorized by one of the California Regional Centers or hold state accredited nonpublic agency status from developing, providing, or supervising applied behavior analysis consistent with the requirements of their Regional Center vendorization or nonpublic agency certification or accreditation, provided their practice of behavior analysis is commensurate with their level of training and experience, and they do not hold themselves out to the public by any title or description stating or implying that they are Certified Behavior Analysts, that they are "certified" to practice behavior analysis if they are not in fact certified, or SB 1282 Page 7 that they are recognized or certified by the state to practice applied behavior analysis. b) Require certification, licensure, recognition, or authorization to provide applied behavior analysis services nor to add to or increase requirements for providing those services. 22)Subjects the CBCO to the "sunset review process" conducted by the Joint Committee on Boards, Commissions, and Consumer Protection (Joint Committee), and accordingly sunsets these provisions on January 1, 2017. FISCAL EFFECT: None. This bill has been keyed "nonfiscal" by Legislative Counsel. COMMENTS: 1.Purpose. This bill was introduced by the Author to establish a process, as well as standards and criteria, by which the state confers recognition (based on the education, training and experience of the applicants) upon individuals that provide applied behavior analysis (ABA) services to individuals with medical conditions such as autism spectrum disorders (ASD) and other disorders that are responsive to ABA. 2.Background. According to the Author, "Currently there are no standards, criteria, or professional requirements that indicate the level of education, training, experience and other professional factors that reflect on the background and qualifications of individuals who currently provide ABA services. Furthermore, the ABA profession lacks any form of recognition or standing within the California Business and Professions Code. During the past decade, there has been increasing evidence that ABA therapy is an important and valuable therapeutic intervention in the treatment of medical conditions such as ASD. Consequently, there has been an extensive increase in the practices of this profession throughout California. However, consumers may face significant difficulties and challenges in making an informed decision with regard to these programs and services. Specifically, some consumers may lack adequate information by which they can choose an ABA provider and/or ABA services in an informed manner. Consequently, in some cases, these ABA programs may be designed, supervised, and/or implemented by individuals who lack the appropriate training and educational background. SB 1282 is an initial step in providing professional SB 1282 Page 8 standards and guidelines for ABA services that will assist consumers in making more informed decisions." 3.Autism and Autism Spectrum Disorder (ASD). Autism and ASDs are neurodevelopment disorders that typically last throughout a person's lifetime and may cause significant impairments in language, communications, play and social interactions, abnormalities in behaviors, and other physical manifestations. ASDs represent the spectrum of these disabilities and include Autistic Disorder (or classic autism), Asperger Syndrome, Pervasive Developmental Syndrome and others. ASD manifests itself in various ways, including difficulty in using and understanding language; poorly developed social skills; over- and-under sensitivity to sound, sight, taste, touch or smell; repetitive behaviors; difficulty with changes in surroundings or routines; and uneven skill development. a) Increase of ASDs. According to the Centers for Disease Control and Prevention (CDC), more children than ever before are being classified as having ASDs. It is unclear, however, how much of this increase may be attributed to changes in identifying and classifying ASDs. The CDC states, that by current standards ASDs are the second most common serious developmental disability after mental retardation/intellectual impairment, but still less common than other conditions that affect children's development, such as speech and language impairments, learning disabilities, and attention deficit/hyperactivity disorder (ADHD). According to data from the California Health Interview Survey, it is estimated that more than 36,000 children age 3-11 had autism in 2005. The State Department of Developmental Services (DDS) indicates that the population of persons with autism in California's developmental services system rose by 634% from 1987 and 2002, and nearly doubled in the four years from 1998 to 2002. ASDs is the fastest growing serious developmental disability and now impacts one out of every 150 children in the United States; also, most school districts in California have seen a doubling of students with ASDs in the past five years. b) Resources for Families with Autistic Children. Children with autism are served by a number of government and private entities: regional centers and the Department of Developmental Services; schools, school districts, and the Department of Education. Health care service plans and insurers are required under mental health parity laws to provide benefits on a par with physical illness, although coverage of specific benefits and treatments has been unclear. In addition, the California Center for Autism SB 1282 Page 9 and Developmental Disabilities Research and Epidemiology (CADDRE), a government-provider partnership, conducts surveillance and research on ASD, as well as creates information on autism in multiple languages. i) Lanterman Act and Regional Centers. In the late 1960s and '70s, the Lanterman Act established California's system of care for persons with developmental disabilities, including ASD, which consists of 21 regional centers and five state developmental centers where people are assessed for developmental disabilities and, if they qualify, are served for life by a regional center. Children age three and older may be served through this system. A Senate Human Services Committee analysis of AB 1478 of 2006 (an autism-related measure) notes that, over the last decade, overall regional center caseload has grown by 68.9 percent, as compared to the state's overall growth rate of 17.2 percent for a comparable period. The Department of Developmental Service's Fact Book for 2005, indicates that currently 15.1 percent of the regional center caseload is described as autistic while only 5.3 percent were so described a decade ago. ii) Early Start. Implemented by DDS and regional centers, in collaboration with the Department of Education, local education agencies, and other state agencies, the Early Start program serves children under the age of three, who may receive early intervention services if they have a developmental delay in either cognitive, communication, social or emotional, adaptive, or physical and motor development, including vision and hearing, or have certain risk conditions for these delays. Under Early Start, eligible individuals may receive screening and assessment; case management; family training, counseling, and home visits; health, nutrition, nursing, physical therapy, psychological, speech and language, and transportation services, among other services. iii) Local Education Agencies. Children age 3 to 21 may receive specialized instruction and related services through local education agencies, through the development of an individualized education program (IEP). 4.Legislative Emphasis on Autism and Related Disorders. In 2005, SCR 51 (Perata, Resolution Chapter 124, Statutes of 2005) established, until November 30, 2007, the Legislative Blue Ribbon Commission on SB 1282 Page 10 Autism. Pursuant to its mandate, the commission submitted its report, An Opportunity to Achieve Real Change for Californians with Autism Spectrum Disorders, to the Governor and Legislature in 2007. The report provided specific findings and recommendations to: (a) Establish models of integrated, comprehensive services for early identification and intervention of ASDs. (b) Ensure appropriate and equitable coverage for ASDs by private health plans and insurers. (c) Improve access to services and navigating complex systems of care. (d) Prepare teachers and other school-based personnel to educate children with ASDs. (e) Resolve service disputes effectively and equitably. (f) Design new employment and housing strategies for individuals with ASDs. (g) Increase awareness and knowledge of ASDs among law enforcement officers and other first responders. In 2009, the Senate established the Senate Select Committee on Autism and Related Disorders (Select Committee), chaired by Senator Steinberg. The Select Committee was authorized and directed to: (a) Provide a legislative forum for research, analysis, deliberations, and outreach in order to promote policies and legislation to better assist individuals with ASDs and their families. (b) Advance the work of the Legislative Blue Ribbon Commission on Autism. (c) Address the issues that were identified within the 2007-08 California Autism Legislative Package, which included SB 527 , SB 1175 , SB 1364 , SB 1475 , SB 1531 , SB 1563 , AB 1872 , and AB 2302 of the 2007-2008 Legislative Session. (d) Deal with the fiscal challenges that confront the state in providing the necessary and crucial services for individuals with ASDs. The Select Committee has appointed regional autism taskforces comprised of consumers and consumer family members, advocates, providers, researchers, and other experts in the area of ASDs, and other stakeholders, to provide assistance to, and to support the work of, the select committee. The Select Committee has established the Statewide Coordinating Council of Autism Taskforces consisting of the chairs and co-chairs of the regional autism taskforces and which will meet periodically to review the input from the various regional autism taskforces and develop integrated recommendations for consideration by the Select Committee. The Legislature recognizes that public information and awareness efforts are of paramount importance in accelerating early identification efforts and the proliferation of early intervention programs and services. SB 1282 Page 11 5.Title Act vs. Practice Act Protection. It is important to note the distinction between "title act" and certification or registration regulation versus "practice act" and licensing regulation. A practice act along with licensure confers the exclusive right to practice a given profession on practitioners who meet specified criteria related to education, experience, and examination, and often is embodied in a statutory licensing act (i.e., those who are not licensed cannot lawfully practice the profession). A practice act is the highest and most restrictive form of professional regulation, and is intended to avert severe harm to the public health, safety or welfare that could be caused by unlicensed practitioners. A title act and a certification or registration program, on the other hand, reserves the use of a particular professional (named) designation to practitioners who have demonstrated specified education, experience or other criteria such as certification by another organization. A title act typically does not restrict the practice of a profession or occupation and allows others to practice within that profession; it merely differentiates between practitioners who meet the specified criteria, and are authorized by law to represent themselves accordingly, (usually by a specified title) and those who do not. Some title acts also include a state certification or registration program, or reliance on a national certification or registration program, so that those who use the specified title, and hold themselves out to the public, have been certified or registered by a state created or national entity as having met the specified requirements. This entity may also regulate to some extent the activities of the particular profession by setting standards for the profession to follow, and to also provide oversight of the practice of the profession by reporting unfair business practices or violations of the law and either denying or revoking a certification or registration if necessary. SB 1282 does not establish a licensing practice act; it instead establishes a title act. The bill authorizes those who engage in the functions described as applied behavior analysis and who are certified by CBCO to use the title "applied behavior analyst" or "applied behavior analyst assistant" and prohibits, by making it an unfair business practice, a person not certified by CBCO from using the title of "certified applied behavior analyst" or "certified applied behavior analyst assistant." In addition, SB 1282 does not create a state-operated certification or a program under a state agency to provide oversight of this profession; there is instead a provision to establish a private non-profit corporation to certify individuals who meet certain requirements for performing applied SB 1282 Page 12 behavioral analysis services. 6.Prior Legislation. California's leadership in providing services and treatment for individuals with ASDs began with the passage of the Lanterman Developmental Disabilities Services Act of 1969 and AB 3854 (Burton) in 1974, relating to autism and public education. Numerous other legislation has been enacted or proposed in the succeeding years that provided funding, recognition, awareness and support of individuals with ASDs and the numerous organizations that serve these individuals. SB 527 (Steinberg, 2008) would have required the Department of Developmental Services (DDS) to work with one or more regional centers to establish the Autism Spectrum Disorders (ASD) Early Screening, Intervention, Pilot Program (pilot program), a two-year program to improve services for children with ASD. The bill was vetoed by the Governor, stating that the bill's provisions can be accomplished administratively with funding from private, non-state general fund sources, and that given the state's ongoing fiscal challenges, it is not the time to be enacting new programs in statute. AB 1478 (Frommer, 2006) would have required DDS, in consultation with specified state departments, to develop guidelines for the treatment of autism spectrum disorders and to disseminate the information to parents. This bill was vetoed by the Governor. AB 2513 (Pavley, Chapter 783, Statutes of 2006) requires the Superintendent of Public Instruction to convene, with input from certain entities, an advisory committee to develop specified recommendations that would identify the means by which public and nonpublic schools, including charter schools, may better serve children with autism. Appropriated $100,000 from the General Fund to the Superintendent for this purposes and required the committee to submit its recommendations to the Legislature and to the Governor by November 1, 2007. SB 749 (Speier, 2005) would have required a health care service plan or a disability insurer to cover the diagnosis of pervasive developmental disorders or autism that follows current best practice standards developed by the Department of Developmental Services. The bill would also have required the Department of Managed Health Care Services and the Department of Insurance to enact regulations determining responsibility for reimbursement of diagnostic services. The bill was pulled by the Author, and held in Senate Health Committee. SB 1282 Page 13 AB 857 (Frommer, 2004) would have created the Autism Information Resource Center within DDS to assist in the coordination of services for autistic people and their families. This measure was vetoed by Governor. AB 636 (Frommer, 2003) would have created the Autism Information Resource Center within DDS to assist in the coordination of services for autistic people and their families. This measure was held in Assembly Appropriations. AB 88 (Thomson, Chapter 534, Statutes of 1999) requires a health care service plan contract or disability insurance policy to provide coverage for severe mental illnesses, and for the serious emotional disturbances of a child, including pervasive developmental disorders or autism. 7.Behavior Analyst Certification Board (BACB). Under this bill, one way in which the CBCO would grant a certificate as an applied behavior analyst or an applied behavior analyst assistant in California is for the applicant to be previously certified by BACB. The applicant would submit to the CBCO a written application, along with the required fees and evidence of BACB certification. Applicants would also be required to submit fingerprint images to CBCO in order to conduct background checks. The BACB is national association based in Florida, and is a nonprofit 501(c)(3) corporation established in 1998 to meet professional credentialing needs identified by behavior analysts, governments, and consumers of behavior analysis services. According to the BACB's Internet Website, the BACB adheres to the national standards for boards that grant professional credentials. BACB states that its certification procedures and content undergo regular psychometric review and validation, pursuant to a job analysis survey of the profession and standards established by content experts in the field. The BACB program is based on a Behavior Analysis Certification Program developed by the State of Florida. Similar programs were previously established in California, Texas, Pennsylvania, New York and Oklahoma; however, each of these programs transferred their certification and credentialing responsibilities to the BACB and closed. The BACB credentials practitioners at three levels. (1) Board Certified Behavior Analysts (BCBA) must possess at least a masters SB 1282 Page 14 degree, have 225 classroom hours of specific graduate-level coursework, meet experience requirements, and pass the behavior analyst certification examination. (2) Board Certified Assistant Behavior Analysts (BCaBA) must have at least a bachelor's degree, have 135 classroom hours of specific coursework, meet experience requirements, and pass the assistant behavior analyst certification examination. (3) Board Certified Behavior Analyst-Doctoral must be BCBAs with doctorate degrees and meet other criteria. BACB certificate holders must accumulate continuing education credit to maintain their credentials. 8.National Accrediting Organizations. In addition to certification by the BACB, the bill would also authorize the CBCO to issue certification to an individual certified as an applied behavior analyst or an applied behavior analyst assistant from another organization accredited by the NCCA or ANSI whose mission is to meet professional credentialing needs identified by behavior analysts, governments, and consumers of behavior analysis services. National Commission for Certifying Agencies (NCCA) . The NCCA was created in 1987 as the accreditation body of Institute for Credentialing Excellence (ICE) to help ensure the health, welfare, and safety of the public through the accreditation of a variety of certification programs and organizations that assess professional competence. Certification programs that receive NCCA accreditation demonstrate compliance with the NCCA's Standards for the Accreditation of Certification Programs. NCCA uses a peer review process to establish accreditation standards, evaluate compliance with the standards, recognize organizations or programs which demonstrate compliance, and serve as a resource on quality certification. Certification organizations that submit their programs for accreditation are evaluated based on the process and products, not the content, and are therefore applicable to numerous professions and industries. According to NCCA, accredited programs certify individuals in a wide range of professions and occupations including nurses, automotive professionals, respiratory therapists, counselors, emergency technicians, crane operators and more. To date, NCCA has accredited over 200 programs from more than 100 organizations. American National Standards Institute (ANSI) . ANSI is a private non-profit 501(c)(3) organization headquartered in Washington, DC that oversees the development of voluntary consensus standards for products, services, processes, systems, and personnel in the United States. ANSI coordinates U.S. standards with international SB 1282 Page 15 standards for a wide variety of products, and accredits standards that are developed by representatives of standards developing organizations, government agencies, consumer groups, companies, and others. ANSI also accredits organizations that carry out product or personnel certification in accordance with requirements defined in international standards. 9.Arguments in Opposition. The California Psychological Association (CPA) has taken an "Oppose Unless Amended" position on the bill. CPA contends that certification by a private, nonprofit entity does not appear to be in the best interests of consumers, who are currently protected by state regulatory agencies through licensing. CPA believes that the bill would permit unlicensed, masters level individuals to independently practice ABA with poor consumer protection mechanisms or the ability to adequately regulate the scope of practice. CPA is further concerned that while allowing certified practitioners to work with persons with developmental disabilities, the bill would also allow treatment of behaviors associated with depression, anxiety, psychosis, or trauma thereby practicing outside their scope of competence. This bill is opposed by the California Association of Health Plans (CAHP), who states that those dealing with developmental disabilities and mental health conditions often need additional supportive services to help them with housing, everyday living skills and education. Unfortunately, the state lacks clear guidelines for who is responsible for providing many of these services, creating great confusion for families and those living with developmental disabilities and mental illness. CAHP opposes the bill because it appears to require health plans to pay for educational services in addition to the health care and mental health care that health plans already provide. Shifting responsibility for educational and other non-medical services to health plans would create a costly new mandate that would cause already increasing health insurance costs to skyrocket, according to CAHP. CAHP is concerned that while the bill focuses on the certification of providers of ABA, the bill links those providers to payments by health plans and insurers. CAHP states that because ABA helps children learn everyday life and social skills, most health plans do not consider educational services like ABA to be a covered service under the terms and conditions of their contracts, and notes that the American Academy of Pediatrics lists ABA as an educational service. SB 1282 Page 16 CAHP further cites a California Department of Managed Health Care (DMHC) memorandum issued March 9, 2009 regarding compliance with mental health parity laws by health plans, which states in part that health plans must "Provide mental health services only through providers who are licensed or certified in accordance with applicable California law." CAHP is concerned that the language in SB 1282 is intended to compel the DMHC to require coverage of ABA services, and is, in effect, a benefit mandate. 10.Other Policy Issues to be Addressed by the Author. The primary purview of the BP&ED Committee is not the health issues of applied behavior analysis (ABA) services or autism spectrum disorders (ASD). The Committee's primary purview with reference to this bill is the regulatory scheme for certification of individuals who perform these services. As such, Committee staff has worked with the Author to establish a framework and consumer protections consistent with other regulatory frameworks found in the Business and Professions Code. Other models for certification by a private non-profit certifying organization are: Certified Interior Designers (BPC 5800-5812); Tax Preparers (BPC 22250-22259); Massage Therapists (BPC 4600-4620); Common Interest Development Managers (BPC 11500-11506). The latest amendments to the bill were drafted by Committee staff at the request of the Author to more clearly conform the bill's provisions to existing certification models. The Author recognizes that the bill will be a process of continued discussions with the stakeholders and interested parties in ABA services and treatment of ASDs. The Author is committed to working cooperatively with all parties to enact a bill which best meets the needs of all affected parties. As such, it is anticipated that a number of issues will still need to be addressed by the Author, including, but not limited to: Composition of the CBCO Board . The composition of the CBCO's board of directors will have to be addressed so that it is appropriately balanced to represent the interests and needs of providers of ASD services, as well as consumers, and related professional associations and groups. Transparency of CBCO Operations . Currently the bill requires the meetings of the CBCO to be subject to the Bagley-Keene Open Meetings Act, and to make available to the public information regarding certified persons, and publish certain information on SB 1282 Page 17 the CBCO's Internet Website. The Author may wish to consider whether the CBCO should be additionally subject to public inspection of records. Clarify Definition of ABA Services . The bill currently excludes psychological testing, neuropsychology, psychotherapy, sex therapy, psychoanalysis, hypnotherapy, and long-term counseling from the definition of a certified applied behavior analyst. The Author may wish to consider amending the bill to address the concerns of CPA by clarifying that the definition of a certified applied behavior analyst does not also include treatment of behaviors associated with depression, anxiety, psychosis, or trauma. Clarify Titles Used by Certified Persons . The bill currently defines the titles "applied behavior analyst" and "applied behavior analyst assistant" and prohibits a person not certified by CBCO from using the title of "certified applied behavior analyst" or "certified applied behavior analyst assistant." It has been pointed out that these terms may be in conflict with the titles currently used by persons certified by BACB. Therefore, these terms should be clarified to insure there is no infringement on those terms utilized by BACB. Education Requirement for Assistants . Currently the bill provides for a two-tiered certification by authorizing the CBCO to issue an assistant certification to a person who possesses a bachelor's degree, and can demonstrate 3 years experience in the last 5 years. Persons certified as assistants must practice under supervision, as specified. Concern has been raised that a bachelor's degree may not be an adequate criteria for issuing a certificate as an assistant. Going forward, the Author may wish to consider an acceptable level of education for certification of a behavioral therapist assistant. SUPPORT AND OPPOSITION: Support: None received as of April 28, 2010 Support if Amended: Alliance of California Autism Organizations Behavioral intervention Association SB 1282 Page 18 Center for Autism and Related Disorders Sacramento based ABC Schools Oppose Unless Amended: California Psychological Association Opposition: California Association of Health Plans Consultant:G. V. Ayers