BILL ANALYSIS Ó
AB 1715
Page 1
Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
AB 1715
(Holden) - As Amended March 29, 2016
SUBJECT: Healing arts: behavior analysis: licensing.
SUMMARY: Establishes the Behavior Analyst Act, which provides
for the licensure, registration, and regulation of behavior
analysts and assistant behavior analysts, and requires the
California Board of Psychology (BOP), until January 1, 2022, to
administer and enforce the Act.
EXISTING LAW:
1)Provides for the licensure, registration, and regulation of
psychologists and psychological assistants under the
Psychology Licensing Law. (Business and Professions Code
(BPC) §§ 2900-2999)
2)Establishes the BOP, which consists of nine members, five
professional and four public, requires the BOP to enforce and
administer the Psychology Licensing Law, repeals those
sections by January 1, 2017, and subjects the BOP to review by
the appropriate policy committees of the Legislature. (BPC §§
2902, 2920)
3)Requires the professional board members to be a licensed
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psychologist, prohibits the public members from being
licensees under any healing arts board, and requires each
member be a resident of the state. (BPC § 2923)
4)Requires the BOP to disclose information on the status of
every license issued its licensees, including psychologists,
psychological assistants, and registered psychologists. (BPC
§ 27)
5)Requires every private health care service plan contract that
provides hospital, medical, or surgical coverage and every
private health insurance policy to provide coverage for
behavioral health treatment for pervasive developmental
disorder or autism, including applied behavior analysis (ABA).
(Health and Safety Code (HSC) § 1374.73, Insurance Code (IC)
§ 10144.51)
THIS BILL:
6)Increases, on and after July 1, 2018, the number of members on
the BOP to 11, and increases the number of members for a
quorum to 6 members. The members must meet the following
requirements:
a) Be a resident of the state;
b) Five members must be licensed psychologists;
c) One member must be qualified to practice behavior
analysis, as follows:
i) For the first appointment after the operative date
of the section, the member must hold a certificate as a
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certified behavior analyst from a certifying entity, as
defined.
ii)For subsequent appointments, the member must be licensed
as a behavior analyst under the Act.
iii)The public members must not be licensees of any healing
arts board.
7)Establishes general provisions of the Behavior Analyst Act:
a) States that the Legislature finds and declares that the
practice of behavior analysis in California affects the
public health, safety, and welfare, and is subject to
regulation to protect the public from the unauthorized and
unqualified practice of behavior analysis, and
unprofessional, unethical, or harmful conduct by persons
licensed to practice behavior analysis.
b) States that it is also the intent of the Legislature
that the BOP begin accepting applications for behavior
analyst licensure, assistant behavior analyst licensure,
behavior analysis technician approval, and behavior analyst
intern registration no later than January 1, 2018, provided
that the funds necessary to implement this chapter have
been appropriated by the Legislature.
c) Defines "behavior analysis technician" (BAT) as an
individual who works directly with a client to implement
applied behavior analysis services under the direction and
supervision of a licensed behavior analyst, a licensed
assistant behavior analyst, or a licensed psychologist who
is qualified to practice behavior analysis, and has
successfully completed the application requirements
described in BPC § 2999.36.
d) Defines "board" as the BOP.
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e) Defines "certifying entity" as the Behavior Analyst
Certification Board (BACB) or its successor, or another
national credentialing organization with behavior analyst
certification programs approved by the board and accredited
by the National Commission for Certifying Agencies (NCCA).
f) Defines "committee" as the Behavior Analyst Committee.
g) Defines "department" as the Department of Consumer
Affairs (DCA).
h) Defines "licensed assistant behavior analyst" (LABA) as
a person licensed under the Act to practice behavior
analysis under the supervision of a licensed behavior
analyst.
i) Defines "behavior analyst intern" (BAI) as a person
registered under the Act to practice behavior analysis
under the supervision of a licensed behavior analyst or a
licensed psychologist who is qualified to practice behavior
analysis.
j) Defines "licensed behavior analyst" (LBA) as a person
licensed under the Act to practice behavior analysis.
aa)Defines "practice of behavior analysis" or "to practice
behavior analysis" as the design, implementation, and
evaluation of instructional and environmental modifications
to produce socially significant improvements in human
behavior and includes:
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i) The empirical identification of functional relations
between behavior and environmental factors, known as
functional assessment and analysis;
ii)Interventions based on scientific research and the
direct observation and measurement of behavior and the
environment; and,
iii)Utilization of contextual factors, motivating
operations, antecedent stimuli, positive reinforcement,
and other consequences to help people develop new
behaviors, increase or decrease existing behaviors, and
emit behaviors under specific environmental conditions.
bb)Provides that the practice of behavior analysis does not
include psychological testing and assessment, diagnosis of
a mental or physical disorder, neuropsychology,
psychotherapy, cognitive therapy, sex therapy,
psychoanalysis, hypnotherapy, counseling, prescribing
drugs, performing surgery, or administering
electroconvulsive therapy.
cc)States that the Legislature recognizes that the scopes of
practice of healing arts licensees regulated under this
division sometimes contain similar practices. However, the
Act shall not be construed to allow a LBA or a LABA to
engage in those practices other than specific to their
scope of practice within behavior analysis as described
under the Act. Any person practicing behavior analysis
under the Act who violates the prohibition is subject to
disciplinary action by both the BOP and the board
overseeing the relevant practice.
8)Establishes the administration provisions of the Act:
a) Vests the BOP, until January 1, 2022, with the power to
enforce the Act.
b) Provides that protection of the public shall be the
highest priority for the BOP in exercising its licensing,
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regulatory, and disciplinary functions pursuant to the Act.
Whenever the protection of the public is inconsistent with
other interests sought to be promoted, the protection of
the public shall be paramount.
c) Requires the BOP to adopt, amend, and repeal regulations
to implement the requirements of the Act. All regulations
adopted by the BOP shall comply with the provisions of
Chapter 3.5 (commencing with § 11340) of Part 1 of Division
3 of Title 2 of the Government Code.
d) Requires the BOP to adopt a program of consumer and
professional education in matters relevant to the ethical
practice of behavior analysis. The BOP must establish
standards of ethical conduct relating to the practice of
behavior analysis that are based on current standards
published by a national credentialing organization with
behavior analyst certification programs approved by the
board and accredited by the National Commission for
Certifying Agencies. The standards must be applied by the
BOP as the accepted standard of ethics in all law and
ethics licensing examination development and in all BOP
enforcement policies and disciplinary case evaluations
involving the practice of behavior analysis.
e) Authorizes the BOP to employ, subject to civil service
and other laws, employees as may be necessary to carry out
the provisions of this chapter under the direction of the
executive officer of the BOP.
f) Requires the BOP to post information in its website
regarding licensed behavior analysts, licensed assistant
behavior analysts, behavior analyst technicians, and
behavior analyst interns, as specified.
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g) Requires the BOP to conduct disciplinary hearings, as
specified.
h) Makes it unlawful, on and after July 1, 2019, to
practice behavior analysis without being licensed by the
BOP, except as specified.
i) Creates, until January 1, 2022, the Behavior Analyst
Committee within the jurisdiction of the BOP to make
recommendations to the BOP regarding the regulation of the
practice of behavior analysis in the state in order to
protect the public from the unauthorized and unqualified
practice of ABA, and unprofessional, unethical, or harmful
conduct by persons licensed to practice behavior analysis.
j) The committee must consist of five members. Two members
must LBAs, one of which must also be a member of the BOP.
One member must be a psychologist licensed under BPC
Chapter 6.6 (commencing with § 2900) and who holds a
current certification from a certifying entity as a
behavior analyst. One member must be a licensed assistant
behavior analyst. One member must be a public member who
is a consumer of behavior analysis services and who is not
licensed under a healing arts board.
aa)The Governor must appoint one LBA member, the licensed
psychologist member, and the LABA member. The Senate
Committee on Rules must appoint the public member, and the
Speaker of the Assembly must appoint one LBA member.
bb)The initially appointed members of the committee shall be
appointed as follows:
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i) The initial members appointed by the Governor shall
be as follows:
(1)One member must be currently certified by a
certifying entity as a certified behavior analyst and
shall serve an initial term of one year.
(2)One member must be currently certified by a
certifying entity as a certified assistant behavior
analyst and shall serve an initial term of two years.
(3)One member must be a licensed psychologist who is
currently certified by a certifying entity as a
certified behavior analyst and shall serve an initial
term of three years.
ii)The initial member appointed by the Senate Committee on
Rules shall serve a term of four years.
iii)The initial member appointed by the Speaker of the
Assembly shall be currently certified by a certifying
entity as a certified behavior analyst and shall serve an
initial term of four years.
cc)Except as provided, each member of the committee will hold
office for a term of four years, and will serve until the
appointment of his or her successor or until one year has
elapsed since the expiration of the term for which the
member was appointed, whichever occurs first. Vacancies
must be filled by the appointing power for the unexpired
portion of the terms in which they occur. A member may not
serve for more than two consecutive terms.
dd)Provides that all committee member terms begin on July 1
and expire on June 30.
ee)Provides that each member of the committee will receive
per diem and expenses as provided in BPC §§ 103 and 113.
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ff)States that three members of the committee shall at all
times constitute a quorum.
gg)Requires the committee to do all of the following:
i) Meet at least once per quarter. All meetings of the
committee shall be public meetings. Notice of each
regular meeting of the committee shall be given in
accordance with the Bagley-Keene Open Meeting Act
(Article 9 (commencing with § 11120) of Chapter 1 of Part
1 of Division 3 of Title 2 of the Government Code).
ii)Call committee meetings at any time upon reasonable
notice by a written request of two committee members to
the chair. Committee meetings may also be called upon
reasonable notice at the discretion of the chair.
iii)Elect a chair and a vice chair from among its members
at the first meeting held in each fiscal year. The chair
must preside at all meetings of the committee and must
work with the executive officer of the BOP to coordinate
the committee's business. If the chair is unable to
attend a meeting, the vice chair shall preside at the
meeting.
hh)Authorizes the committee may make recommendations to the
BOP regarding licensing and practice standards and the
adoption, amendment, and repeal of regulations to implement
the requirements of the Act including the setting of fees
and the establishment of disciplinary guidelines.
9)Establishes the licensing provisions of the Act:
a) Requires each applicant for a license must meet the
BOP's regulatory requirements, including all of the
following:
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i) The applicant has not committed acts or crimes
constituting grounds for denial of licensure under BPC §
480.
ii)The BOP shall not issue a license or registration to any
person who has been convicted of a crime in this state,
or another state, or in a territory of the United States
that involves sexual abuse of a child, or who is required
to register pursuant to § 290 of the Penal Code or the
equivalent in another state or territory.
iii)The applicant has successfully passed a state and
federal level criminal offender record information search
conducted through the Department of Justice, as follows:
iv)The BOP shall request from the Department of Justice
subsequent arrest notification service, pursuant to §
11105.2 of the Penal Code, for each person who submitted
information pursuant to this subdivision.
v) The Department of Justice shall charge a fee
sufficient to cover the cost of processing the request
described in this section.
b) Requires, until July 1, 2018, in order to receive a
license as a behavior analyst, the following:
i) An individual must submit an application on a form
approved by the BOP accompanied by the fees required by
the BOP as specified in BPC § 2999.93.
ii)The BOP must verify with the certifying entity that the
applicant meets both of the following requirements:
(1)Has passed the Board Certified Behavior Analyst
examination or an equivalent examination administered
by the certifying entity.
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(2)Maintains an active status as a certified behavior
analyst with the certifying entity.
iii)Each applicant must obtain a passing score on a
California law and ethics examination administered by the
BOP.
iv)This requirement will remain in effect until January 1,
2019, and as of that date is repealed.
c) Requires, after July 1, 2018, in order to obtain a
license as a behavior analyst:
i) An individual must submit an application on a form
approved by the BOP accompanied by the fees required by
the BOP as specified in BPC § 2999.93.
ii)An applicant must maintain active status as a certified
behavior analyst in good standing with a certifying
entity.
iii)The BOP must verify with the certifying entity that the
applicant has passed the Board Certified Behavior Analyst
Examination or an equivalent examination administered by
the certifying entity.
iv)Each applicant must obtain a passing score on a
California law and ethics examination administered by the
BOP.
v) The applicant must possess a master's degree or
higher level of education from an institution, which
meets the requirements described in BPC § 2999.35, that
was conferred in behavior analysis, psychology, or
education.
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vi)The applicant must meet one of the following three
requirements in order to be licensed under the Act:
(1)Complete both of the following degree requirements:
(a)Two hundred seventy hours of classroom
graduate-level instruction in all of the following
content areas:
(i)Ethical and professional conduct coursework
consisting of 45 hours. The content must be
taught in one or more freestanding courses
devoted to ethical and professional conduct of
behavior analysts.
(ii)Concepts and principles of behavior analysis
consisting of 45 hours.
(iii)Research methods in behavior analysis,
consisting of 25 hours of measurement, including
data analysis, and 20 hours of experimental
design.
(iv)ABA, consisting of 45 hours of fundamental
elements of behavior change and specific behavior
change procedures, 30 hours of identification of
the problem and assessment, 10 hours of
intervention and behavior change considerations,
10 hours of behavior change systems, and 10 hours
of implementation, management, and supervision.
(v)Elective coursework in behavior analysis
consisting of 30 hours.
(b)Supervised experiential training by any of the
following:
(i)One thousand five hundred hours of independent
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field work in behavior analysis supervised in
accordance with the requirements of the
certifying entity.
(ii)One thousand hours of supervised practicum in
behavior analysis within a university practicum
approved by the certifying entity, taken for
graduate academic credit, and completed with a
passing grade.
(iii)Seven hundred fifty hours of supervised
intensive practicum in behavior analysis within a
university practicum approved by the certifying
entity, taken for graduate academic credit, and
completed with a passing grade.
(iv)A combination of the supervised experience in
clause (i), (ii), or (iii). Hours may be
completed in any combination of the categories of
supervised experience. Hours accrued through a
combination of supervised experience shall be
proportionately calculated.
(2)Meet all of the following teaching requirements:
(a)Have a faculty appointment of at least three years,
cumulatively, of full-time work as a faculty member
at a fully accredited higher education institution
within a five-year period.
(b)Taught at least five sections or iterations of
behavior analytic coursework. An applicant must
have taught at least two behavior analytic content
areas, which are concepts and principles of
behavior, single-subject research methods, applied
behavior analysis, and ethics in behavior analysis,
in separate courses. Each course taught shall have
been exclusively or primarily devoted to behavior
analytic content, and shall have been taught at the
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graduate level. An applicant shall submit proof of
completion of the faculty appointment and teaching
requirements from a department head, including the
syllabus for each course taught, to the BOP.
(c)Published one article with all of the following
characteristics:
(i)Behavior analytic in nature.
(ii)Includes at least one experimental evaluation.
(iii)Published in a high-quality, peer reviewed
journal.
(iv)The applicant is the first, second, or
corresponding author.
(v)The article may have been published at any time
during the applicant's career.
(d)Obtained supervised experiential training by any of
the following:
(i)One thousand five hundred hours of independent
field work in behavior analysis supervised in
accordance with the requirements of the
certifying entity.
(ii)One thousand hours of supervised practicum in
behavior analysis within a university practicum
approved by the certifying entity, taken for
graduate academic credit, and completed with a
passing grade.
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(iii)Seven hundred fifty hours of supervised
intensive practicum in behavior analysis within a
university practicum approved by the certifying
entity, taken for graduate credit, and completed
with a passing grade.
(iv)A combination of the supervised experience in
clause (i), (ii), or (iii). Hours may be
completed in any combination of the categories of
supervised experience. Hours accrued through a
combination of supervised experience shall be
proportionately calculated.
(3)Completed all of the following doctoral requirements:
(a)A doctoral degree in behavior analysis, psychology,
or education from an accredited higher education
institution.
(b)Ten years of postdoctoral experience practicing
behavior analysis. The duration of practice shall be
at least 10 years, cumulatively, of full-time
practice. An applicant's practice shall have
occurred under a relevant state professional
credential or license.
(c) At least 500 hours of supplemental supervised
experiential training that meets current experience
standards of the certifying entity, commencing after
the 10 years of postdoctoral experience required
above.
d) Requires, until July 1, 2019, to obtain a license as an
assistant behavior analyst:
i) An individual must submit an application on a form
approved by the BOP accompanied by the fees required by
the BOP as specified in BPC § 2999.93.
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ii)The BOP must verify with the certifying entity that the
applicant meets all of the following requirements:
(1)Has passed the Board Certified Assistant Behavior
Analyst examination or equivalent examination
administered by the certifying entity.
(2) Maintains an active status as a certified assistant
behavior analyst with the certifying entity.
iii) Each applicant must obtain a passing score on a
California law and ethics examination administered by the
BOP.
iv)Each applicant must provide proof to the BOP of ongoing
supervision by a LBA in a manner consistent with the
certifying entity's requirements for supervision of
assistant behavior analysts.
v) This requirement will remain in effect only until
January 1, 2019, and as of that date is repealed.
e) Requires, after July 1, 2019, in order for an individual
to be licensed as an assistant behavior analyst:
i) The applicant must possess a baccalaureate degree or
higher level of education from an institution that meets
the requirements described in BPC § 2999.35.
ii)The applicant must maintain active status as a certified
behavior analyst in good standing with a certifying
entity. The BOP must verify with the certifying entity
that the applicant has passed the Board Certified
Behavior Analyst Examination or an equivalent examination
administered by the certifying entity.
iii)The applicant must obtain a passing score on a
California law and ethics examination administered by the
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BOP.
iv)The applicant shall provide proof to the BOP of ongoing
supervision by a LBA in a manner consistent with the
certifying entity's requirements for supervision of
assistant behavior analysts.
v) The applicant must meet all of the following
requirements:
(1)Completed a baccalaureate degree or higher level of
education from an institution that meets the
requirements in Section 2999.35.
(2)An applicant shall meet both of the following:
(a)Completed 180 classroom hours of undergraduate or
graduate level instruction in all of the following
content areas:
(i)Ethical and professional conduct coursework of
behavior analysis consisting of 15 hours.
(ii)Concepts and principles of behavior analysis
consisting of 45 hours.
(iii)Research methods in behavior analysis,
consisting of 10 hours of measurement, including
data analysis, and five hours of experimental
design.
(iv)ABA, consisting of 45 hours of fundamental
elements of behavior change and specific behavior
change procedures, 30 hours of identification of
the problem and assessment, five hours of
intervention and behavior change considerations,
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five hours of behavior change systems, and five
hours of implementation, management, and
supervision.
(v)Elective coursework in behavior analysis
consisting of 15 hours.
(b)Obtained supervised experiential training by any of
the following:
(i)One thousand hours of independent field work in
behavior analysis supervised in accordance with
the requirements of the certifying entity, taken
for academic credit, and completed with a passing
grade.
(ii)Six hundred seventy hours of supervised
practicum in behavior analysis within a
university practicum approved by the certifying
entity, taken for academic credit, and completed
with a passing grade.
(iii)Five hundred hours of supervised intensive
practicum in behavior analysis within a
university practicum approved by the certifying
entity, taken for academic credit, and completed
with a passing grade.
(iv)A combination of the supervised experience in
clause (i), (ii), or (iii). Hours may be
completed in any combination of the categories of
supervised experience. Hours accrued through a
combination of supervised experience shall be
proportionately calculated.
f) Provides that the education to obtain a behavior analyst
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license or an assistant behavior analyst license be from
any of the following:
i) A United States institution of higher education
listed by the Council for Higher Education Accreditation.
ii)A Canadian institution of higher education that is a
member of the Association of Universities and Colleges of
Canada or the Association of Canadian Community Colleges.
iii)An applicant for licensure trained in an educational
institution outside the United States or Canada shall
demonstrate to the satisfaction of the BOP that the
applicant possesses a degree in a relevant subject that
is equivalent to a degree earned from a regionally
accredited university in the United States or Canada. The
applicant must provide to the BOP a comprehensive
evaluation of the degree performed by a foreign
credential service that is a member of the National
Association of Credential Evaluation Services (NACES),
and any other documentation that the BOP deems necessary.
g) Authorizes a person other than a LBA, LABA, or approved
BAT to register as a BAI with the BOP in order to meet the
requirements for licensure as a behavior analyst. The BAI
shall be supervised in accordance with the BOP's
regulations by a LBA or a licensed psychologist who is
qualified to practice behavior analysis in order to perform
behavior analysis services provided that all of the
following apply:
i) The person's title is "behavior analyst intern."
ii)The person meets one of the following requirements:
iii)Is enrolled in a defined program of study, course,
practicum, internship, or postdoctoral program that meets
the requirements of subdivision (d) of Section 2999.32.
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iv)Has completed a defined program of study, course, or
postdoctoral traineeship that meets the requirements of
subdivision (d) of Section 2999.32 and is currently
completing supervised experiential training in accordance
with this chapter.
h) Provides that the BAI's supervisor shall be responsible
for ensuring that the extent, kind, and quality of the
behavior analysis services the BAI performs are consistent
with his or her training and experience and shall be
responsible for the BAI's compliance with this chapter and
regulations duly adopted hereunder, including those
provisions set forth in Section 2999.62.
i) Requires the BAI to be registered by the BOP. In order
to register as a BAI an individual shall:
i) Submit fingerprint images to the California
Department of Justice for a state and federal criminal
background report within 14 days from the date of
application.
ii)Pay an application fee, in an amount not to exceed a
reasonable regulatory cost, to be determined by the
board.
iii)Renew his or her application every two years by
submitting to the BOP verification of continued practice,
as specified in this section, and by paying to the board
a renewal fee in an amount that is 50 percent of the
application fee.
iv)An individual may only practice as a BAI for up to six
years from the date of initial registration.
j) No LBA or licensed psychologist who is qualified to
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practice behavior analysis may supervise more than four
BAIs at any given time unless specifically authorized to do
so by the BOP. No BAI may provide behavior analysis
services to the public except as a supervisee of a LBA or
licensed psychologist who is qualified to practice behavior
analysis.
aa)Requires BATs practicing under the direction and
supervision of an individual licensed to practice behavior
analysis to satisfy all of the following requirements:
i) Be at least 18 years of age and possess a minimum of
a high school diploma or its equivalent.
ii)Submit an application on a form approved by the BOP.
iii)Submit fingerprint images to the California Department
of Justice for a state and federal criminal background
report within 14 days from the date of application.
iv)Pay an application fee, in an amount not to exceed a
reasonable regulatory cost, to be determined by the BOP.
v) Renew his or her application every two years by
submitting to the BOP verification of continued practice
as a BAT and by paying to the BOP a renewal fee in an
amount that is 50 percent of the application fee.
vi)The BOP may deny or revoke acceptance of an application
or the renewal of an application under this section if it
is determined to be in the best interest of public safety
and welfare, as described in Section 2999.21.
bb)Makes it unlawful, on and after July 1, 2019, for any
person to engage in any of the following acts:
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i) Engage in the practice of behavior analysis, as
defined, without first having complied with the
provisions of this chapter and without holding a current,
valid, and active license as required by the Act.
ii)Use the title "licensed behavior analyst," or "licensed
assistant behavior analyst" without being duly licensed
according to the Act.
iii)Use any title, words, letters, or abbreviations that
may reasonably be confused with a designation provided by
the Act to denote a standard of professional or
occupational competence without being duly licensed.
iv)Materially refuse to furnish the BOP information or
records required or requested pursuant to the Act.
cc)Excludes the following from the licensure requirements:
i) An individual licensed to practice psychology in
this state under BPC Chapter 6.6 (commencing with Section
2900), if the practice of behavior analysis engaged in by
the licensed psychologist is within the licensed
psychologist's training and competence.
ii)A speech-language pathologist or an audiologist licensed
under Chapter 5.3 (commencing with Section 2530), an
occupational therapist licensed under Chapter 5.6
(commencing with Section 2570), a physical therapist
licensed under Chapter 5.7 (commencing with Section
2600), a marriage and family therapist licensed under
Chapter 13 (commencing with Section 4980), an educational
psychologist licensed under Chapter 13.5 (commencing with
Section 4989.10), a clinical social worker licensed under
Chapter 14 (commencing with Section 4991), or a
professional clinical counselor licensed under Chapter 16
(commencing with Section 4999.10), if the services
provided by any of those licensees are within his or her
licensed scope of practice and within the scope of his or
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her training and competence, provided that he or she does
not represent himself or herself as a LBA or LABA.
iii)A parent or guardian, or his or her designee, of a
recipient of behavior analysis services who acts under
the direction of a LBA or other licensed individual
exempt from behavior analysis-specific licensing
requirements.
iv) An individual who teaches behavior analysis or
conducts behavior analytic research, provided that the
teaching or research does not involve the direct delivery
of behavior analysis services.
v) A behavior analyst licensed in another state or
certified by the certifying entity to practice
independently, and who temporarily provides behavior
analysis services in California during a period of not
more than 90 days in a calendar year.
vi)An individual who is vendorized by one or more regional
centers of the State Department of Developmental Services
while practicing behavior analysis services authorized
under that vendorization. The individual may not
represent himself or herself as a LBA or LABA unless he
or she holds a license under this chapter, and shall not
offer behavior analysis services to any person or entity
other than the regional centers with which he or she is
vendorized or accept remuneration for providing behavior
analysis services other than the remuneration received
from those regional centers unless he or she holds a
license under this chapter.
vii)An individual employed or contracted by a local
educational agency, or a nonpublic agency or school with
a contract with a local educational agency, for the
purpose of serving students with behavioral and
developmental issues when in classroom and other school
settings. This individual shall not represent himself or
herself as a LBA or LABA unless he or she holds a license
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under this chapter, and shall not offer behavior analysis
services to any person or entity other than the local
education agencies with which he or she has a contract or
accept remuneration for providing behavior analysis
services other than the remuneration received from those
local education agencies unless he or she holds a license
under this chapter.
dd)Requires a licensee to give written notice to the BOP of a
name change within 30 days after each change, giving both
the old and new names. A copy of the legal document
authorizing the name change, such as a court order or
marriage certificate, must be submitted with the notice.
ee)Establishes the following regarding license renewals:
i) A license will expire and become invalid two years
after it is issued at 12 midnight on the last day of the
month in which it was issued, if not renewed.
ii)To renew an unexpired license, the licensee must, on or
before the date on which it would otherwise expire, apply
for renewal on a form provided by the BOP, accompanied by
the renewal fee set by the BOP. The licensee must
include verification from the certifying entity that he
or she maintains an active certification status with the
renewal form.
iii)To renew an assistant behavior analyst license, in
addition to the above requirements, the licensee must
submit proof of ongoing supervision by a LBA or a
licensed psychologist who is qualified to practice
behavior analysis in a manner consistent with the CBA's
requirements for supervision of assistant behavior
analysts. A LABA must be supervised by a LBA for at
least 2 percent of the hours of behavior analysis
services the LABA provides per month.
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iv)A license that has expired may be renewed at any time
within three years after its expiration by applying for
renewal on a form provided by the BOP, payment of all
accrued and unpaid renewal fees, and the delinquency fee
specified in BPC § 2999.93. The licensee must include
verification from the certifying entity that the licensee
maintains an active certification status with the renewal
form.
v) Except as provided in BPC § 2999.46.5, a license
that is not renewed within three years of its expiration
shall not be renewed, restored, or reinstated, and the
license shall be canceled immediately upon expiration of
the three-year period.
vi)A suspended license is subject to expiration and must be
renewed as provided, but the renewal does not entitle the
licensee, while the license remains suspended, and until
it is reinstated, to engage in the licensed activity or
in any other activity or conduct in violation of the
order or judgment by which the license was suspended.
vii)A license revoked on disciplinary grounds is subject to
expiration as provided, but it may not be renewed. If it
is reinstated after its expiration, the licensee, as a
condition of reinstatement, must pay a reinstatement fee
in an amount equal to the renewal fee, plus the
delinquency fee, and any fees accrued at the time of its
revocation.
ff)Establishes the following regarding continuing education
(CE):
i) The BOP may not issue any renewal license, a new
license after expiration of an expired license, or a
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reinstatement license unless the applicant submits proof
that the applicant has completed not less than 32 hours
of approved CE in the preceding two-year licensure cycle
for LBAs and 20 hours of approved CE in the preceding
two-year licensure cycle for LABAs.
ii)Each person renewing or reinstating his or her license
or obtaining a new license after expiration of a prior
license issued pursuant to the act must submit proof of
compliance with the CE requirements to the BOP.
iii)A person applying for renewal, a new license after
expiration of a prior license, or reinstatement to an
active license status must certify under penalty of
perjury that the person is in compliance with the CE
requirements.
iv)The BOP may recognize CE courses that have been approved
by the certifying entity.
v) Requires the BOP to adopt regulations as necessary
for implementation of the CE requirement.
10)
Establishes the enforcement provisions of the Act:
a) Provides that the BOP may on its own, and shall, upon
the receipt of a complaint from any person, investigate the
actions of any licensee. The BOP must review a licensee's
alleged violation of statute, regulation, or any other law
and any other complaint referred to it by the public, a
public agency, or the department, and may upon a finding of
a violation take disciplinary action under this article.
b) Provides that a license issued under the Act may be
denied, revoked, or otherwise sanctioned upon demonstration
of ineligibility for licensure, including, but not limited
to, failure to maintain active certification by the
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certifying entity or falsification of documentation
submitted to the board for licensure or submitted to the
certifying authority for certification.
c) Authorizes the BOP to refuse to issue a registration or
license, to issue a registration or license with terms and
conditions, or to suspend or revoke the registration or
license of any registrant or licensee if the applicant,
registrant, or licensee has been guilty of unprofessional
conduct.
d) Defines unprofessional conduct to include:
i) Conviction of a crime substantially related to the
qualifications, functions, or duties of a LBA or a LABA.
ii)Use of any controlled substance as defined in Division
10 (commencing with Section 11000) of the Health and
Safety Code, dangerous drug, or any alcoholic beverage to
an extent or in a manner dangerous to himself or herself,
any other person, or the public, or to an extent that
this use impairs his or her ability to safely perform the
practice of behavior analysis.
iii)Fraudulently or neglectfully misrepresenting the type
or status of a license actually held.
iv)Impersonating another person holding a license or
allowing another person to use his or her license.
v) Use of fraud or deception in applying for a license
or in passing any examination required by this chapter.
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vi)Paying, offering to pay, accepting, or soliciting any
consideration, compensation, or remuneration, whether
monetary or otherwise, for the referral of clients.
vii)Violating Section 17500.
viii)Willful, unauthorized communication of information
received in professional confidence.
ix)Violating any rule of professional conduct promulgated
by the board and set forth in regulations duly adopted
under this chapter.
x) Being grossly negligent in the practice of his or
her profession.
xi)Violating any of the provisions of the Act or
regulations adopted by the BOP.
xii)The aiding or abetting of any person to engage in the
unlawful practice of behavior analysis.
xiii)The suspension, revocation, or imposition of
probationary conditions or other disciplinary action by
another state or country of a license, certificate, or
registration to practice behavior analysis issued by
that state or country to a person also holding a license
issued under the Act if the act for which the
disciplinary action was taken constitutes unprofessional
conduct. A certified copy of the decision or judgment of
the other state or country must be conclusive evidence
of that action.
xiv)The commission of any dishonest, corrupt, or fraudulent
act.
xv)Any act of sexual abuse or sexual relations with a
patient or former patient within two years following
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termination of therapy, or sexual misconduct that is
related to the qualifications, functions, or duties of a
LBA or a LABA.
xvi)Functioning outside of his or her particular field or
fields of competence as established by his or her
education, training, and experience.
xvii)Willful failure to submit, on behalf of an applicant
for licensure, verification of supervised experience to
the board.
xviii) Repeated acts of negligence.
xix)Failure to comply with all ethical and disciplinary
standards published by the certifying entity.
11)
Establishes the following enforcement procedures:
a) Any accusation filed against a licensee pursuant to §
11503 of the Government Code shall be filed within three
years from the date the BOP discovers the alleged act or
omission that is the basis for disciplinary action, or
within seven years from the date the alleged act or
omission that is the basis for disciplinary action
occurred, whichever occurs first.
b) An accusation filed against a licensee pursuant to §
11503 of the Government Code alleging the procurement of a
license by fraud or misrepresentation is not subject to the
limitations above.
c) The limitation provided for will be tolled for the
length of time required to obtain compliance when a report
required to be filed by the licensee or registrant with the
BOP pursuant to BPC Article 11 (commencing with § 800) of
Chapter 1 is not filed in a timely fashion.
d) If an alleged act or omission involves a minor, the
seven-year limitations period and the 10-year limitations
period will be tolled until the minor reaches the age of
majority.
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e) An accusation filed against a licensee pursuant to §
11503 of the Government Code alleging sexual misconduct
shall be filed within three years after the BOP discovers
the act or omission alleged as the ground for disciplinary
action, or within 10 years after the act or omission
alleged as the ground for disciplinary action occurs,
whichever occurs first.
f) The limitations period provided above will be tolled
during any period if material evidence necessary for
prosecuting or determining whether a disciplinary action
would be appropriate is unavailable to the BOP due to an
ongoing criminal investigation.
g) Any proposed decision or decisions issued under the Act
in accordance with the procedures set forth in Chapter 5
(commencing with § 11500) of Part 1 of Division 3 of Title
2 of the Government Code that contains any finding of fact
that the licensee engaged in any act of sexual contact, as
defined in BPC § 728, when that act is with a patient, with
a former patient, or with a patient's parent, guardian, or
caregiver within two years following termination of
services, shall contain an order of revocation. The
revocation shall not be stayed by the administrative law
judge.
h) Authorizes the BOP to deny an application for, or issue
subject to terms and conditions, or suspend or revoke, or
impose probationary conditions upon, a license or
registration after a hearing as provided in BPC § 2999.
i) Provides that a plea or verdict of guilty or a
conviction following a plea of nolo contendere made to a
charge which is substantially related to the
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qualifications, functions, and duties of a LBA or LABA is
deemed to be a conviction. The BOP may order the license
suspended or revoked, or may decline to issue a license
when the time for appeal has elapsed, the judgment of
conviction has been affirmed on appeal, or when an order
granting probation is made suspending the imposition of
sentence, irrespective of a subsequent order under § 1203.4
of the Penal Code allowing the person to withdraw his or
her plea of guilty and to enter a plea of not guilty, or
setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment.
j) Provides that any person required to register as a sex
offender pursuant to § 290 of the Penal Code, is not
eligible for licensure by the BOP.
aa)Defines an administrative disciplinary decision that
imposes terms of probation to include, among other things,
a requirement that the licensee who is being placed on
probation pay the monetary costs associated with monitoring
the probation.
bb)Requires that the proceedings under the Act must be
conducted by the BOP in accordance with Chapter 5
(commencing with § 11500) of Part 1 of Division 3 of Title
2 of the Government Code.
cc)Provides that a person who violates any of the provisions
of this chapter is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding six months or
by a fine not exceeding two thousand five hundred dollars
($2,500), or by both that fine and imprisonment.
dd)Provides that whenever any person has engaged, or is about
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to engage, in any acts or practices that constitute, or
will constitute, an offense under the Act, the superior
court in and for the county wherein the acts or practices
take place, or are about to take place, may issue an
injunction or other appropriate order restraining that
conduct on application of the BOP, the Attorney General, or
the district attorney of the county. The proceedings will
be governed by Chapter 3 (commencing with § 525) of Title 7
of Part 2 of the Code of Civil Procedure, except that it
will be presumed that there is no adequate remedy at law
and that irreparable damage will occur if the continued
violation is not restrained or enjoined. On the written
request of the BOP, or on its own motion, the BOP may
commence an action in the superior court.
ee)Provides that a licensee who fails or refuses to comply
with a request for the medical records of a client, that is
accompanied by that client's written authorization for
release of those records to the BOP, within 15 days of
receiving the request and authorization, must pay to the
board a civil penalty of one thousand dollars ($1,000) per
day for each day that the documents have not been produced
after the 15th day, unless the licensee is unable to
provide the documents within this time period for good
cause.
ff) Defines "health care facility," for purposes of the
enforcement rules, as a clinic or health facility licensed
or exempt from licensure pursuant to Division 2 (commencing
with § 1200) of the Health and Safety Code.
gg)Requires a health care facility to comply with a request
for the medical records of a client that is accompanied by
that client's written authorization for release of records
to the BOP together with a notice citing this section and
describing the penalties for failure to comply with this
section. Failure to provide the authorizing client's
medical records to the BOP within 30 days of receiving the
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request, authorization, and notice will subject the health
care facility to a civil penalty, payable to the BOP, of up
to one thousand dollars ($1,000) per day for each day that
the documents have not been produced after the 30th day, up
to ten thousand dollars ($10,000), unless the health care
facility is unable to provide the documents within this
time period for good cause. This paragraph does not
require health care facilities to assist the BOP in
obtaining the client's authorization. The BOP shall pay
the reasonable costs of copying the medical records.
hh)Establishes penalties for a licensee who fails or refuses
to comply with a court order, issued in the enforcement of
a subpoena, mandating the release of records to the BOP:
i) The licensee must pay to the BOP a civil penalty of
one thousand dollars ($1,000) per day for each day that
the documents have not been produced after the date by
which the court order requires the documents to be
produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations
applicable to the filing of an accusation by the BOP
shall be tolled during the period the licensee is out of
compliance with the court order and during any related
appeals; and
ii)The licensee shall be subject to a civil penalty,
payable to the BOP, in an amount not to exceed five
thousand dollars ($5,000). The amount of the penalty
shall be added to the licensee's renewal fee if it is not
paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by
the board shall be tolled during the period the licensee
is out of compliance with the court order and during any
related appeals.
iii)Multiple violations shall be a misdemeanor, punishable
by a fine not to exceed five thousand dollars ($5,000) or
by imprisonment in a county jail not exceeding six
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months, or by both that fine and imprisonment.
ii)Establishes penalties for a health care facility that
fails or refuses to comply with a court order, issued in
the enforcement of a subpoena, mandating the release of
client records to the BOP:
i) The facility shall pay to the BOP, if accompanied by
a notice citing this requirement and describing the
penalties for failure to comply with this section, a
civil penalty of up to one thousand dollars ($1,000) per
day for each day that the documents have not been
produced, up to ten thousand dollars ($10,000), after the
date by which the court order requires the documents to
be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations
applicable to the filing of an accusation by the BOP
against a licensee shall be tolled during the period the
health care facility is out of compliance with the court
order and during any related appeals.
ii)The facility shall be subject to a civil penalty,
payable to the BOP, in an amount not to exceed five
thousand dollars ($5,000). Any statute of limitations
applicable to the filing of an accusation by the BOP
against a licensee shall be tolled during the period the
health care facility is out of compliance with the court
order and during any related appeals.
iii)Multiple violations shall be a misdemeanor, punishable
by a fine not to exceed five thousand dollars ($5,000),
and shall be reported to the State Department of Health
Care Services and will be considered as grounds for
disciplinary action with respect to licensure, including
suspension or revocation of the license or certificate.
jj)Provides that a failure or refusal of a licensee to comply
with a court order, issued in the enforcement of a
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subpoena, mandating the release of records to the BOP
constitutes unprofessional conduct and is grounds for
license suspension or revocation.
aaa)Requires the imposition of the civil penalties be in
accordance with the Administrative Procedure Act (Chapter 5
(commencing with § 11500) of Part 1 of Division 3 of Title
2 of the Government Code).
12)
Establishes the revenue provisions of the Act:
a) Requires the BOP to report each month to the Controller
the amount and source of all revenue received pursuant to
this chapter and at the same time deposit the entire amount
thereof in the State Treasury for credit to the Psychology
Fund established by BPC § 2980.
b) Requires the moneys credited to the Psychology Fund
under BPC § 2999.90, upon appropriation by the Legislature,
be used for the purposes of carrying out and enforcing the
provisions of this chapter.
c) Requires the BOP to keep records that will reasonably
ensure that funds expended in the administration of each
licensing category bear a reasonable relation to the
revenue derived from each category, and shall so notify the
DCA no later than May 31 of each year.
d) Requires the BOP to establish fees for the application
for and the issuance and renewal of licenses to cover, but
not exceed, the reasonable regulatory costs of the BOP
related to administering the Act. The fees shall be fixed
by the BOP in regulations that are duly adopted under the
Act. Fees assessed may not exceed the following:
i) The delinquency fee shall be 50 percent of the
biennial renewal fee.
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ii)The fee for rescoring an examination shall be twenty
dollars ($20).
iii)The fee for issuance of a replacement license shall be
twenty dollars ($20).
iv)The fee for issuance of a certificate or letter of good
standing shall be twenty-five dollars ($25).
e) Provides that a person licensed under the Act is exempt
from the payment of the renewal fee in any of the following
instances:
i) While engaged in full-time active service in the
United States Army, Navy, Air Force, or Marine Corps.
ii)While in the United States Public Health Service.
iii)While a volunteer in the Peace Corps or AmeriCorps
VISTA.
f) Provides that every person exempted from the payment of
the renewal fee may not engage in any private practice and
will become liable for the fee for the current renewal
period upon the completion of his or her period of
full-time active service and will have a period of 60 days
after becoming liable within which to pay the fee before
the delinquency fee becomes applicable. Any person who
completes the period of full-time active service within 60
days of the end of a renewal period is exempt from the
payment of the renewal fee for that period.
g) Provides that the time spent in that full-time active
service or full-time training and active service shall not
be included in the computation of the three-year period for
renewal of an expired license specified in BPC § 2999.45.
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h) Provides that the exemption provided are not applicable
if the person engages in any practice for compensation
other than full-time service in the United States Army,
Navy, Air Force, or Marine Corps, in the United States
Public Health Service, or the Peace Corps or AmeriCorps
VISTA.
i) Requires the licensing and regulatory program under the
Act to be supported from fees assessed to applicants and
licensees. Startup funds to implement this program must be
derived, as a loan, from the Psychology Fund, subject to an
appropriation by the Legislature in the annual Budget Act.
The BOP may not implement the Act until funds have been
appropriated.
13) States that no reimbursement is required by this bill pursuant
to § 6 of Article XIII B of
the California Constitution because the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates
a crime or infraction, or changes the penalt14) y for a
crime or infraction, within the meaning of § 17556 of the
Government Code, or changes the definition of a crime within
the meaning of § 6 of Article XIII B of
the California Constitution.
FISCAL EFFECT: Unknown. This bill is keyed fiscal by the
Legislative Counsel.
COMMENTS:
Purpose. This bill is sponsored by the California Association
for Behavior Analysis . According to the author, "California law
mandates that health plans and health insurance policies cover
behavioral health treatment for autism. This mandate has
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substantially increased demand for [ABA] services. With the
increased demand, there is a greater need to regulate the
behavior analysis profession, and to protect autistic children
and others who can benefit from [ABA] treatment from people who
falsely claim that they are qualified to practice behavior
analysis. To protect the public from the unauthorized and
unqualified practice of behavior analysis, and from
unprofessional, unethical or harmful conduct by licensees, [this
bill] will create licensure for behavior analysts, with
regulation under the [BOP]."
Background. According to the American Psychological
Association, behavior analysis is the study of behavior. The
clinical practice of behavior analysis, called ABA, applies
basic psychological principles of learning and association to
change the behavior of an individual. For example, a behavior
analyst may train a child (conditioning) to respond to things in
the environment (stimuli) in a desirable way by offering praise
when the desirable behavior occurs (positive reinforcement).
In early psychology, behaviorism was an approach that sought to
find connections between environment and behavior. Because
behaviorism was a bottom-up approach, it focused on observable
behaviors rather than the internal state of mind.
Behaviorism-driven research produced principles and behavioral
techniques that could be used to manage and modify behavior in
humans and animals without addressing cognition (mental thoughts
and processes). The application of the research to the clinical
setting led to the practice of behavioral management and
modification, or behavior therapy.
Modern psychological theory departed from the behavior-only
model with the introduction of a top-down model, the social
learning theory (social cognitive theory). The shift to social
learning theory resulted in the addition of techniques and
interventions drawn from cognitive research. Due to the shift,
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many modern psychotherapies incorporate both behavioral and
cognitive components. For example, cognitive behavioral therapy
(CBT) is a popular psychotherapy intervention which often
involves addressing problematic thought patterns and reinforcing
the positive changes through behavior modification.
Still, ABA as a treatment modality continues to be utilized in
modern psychology practice and elsewhere. ABA's behavior-only
interventions are useful for targeting unintentionally
disruptive behaviors and conditions without cognitive concerns
(problematic thoughts or emotions), such as speech conditions
and developmental disorders. Further, once a proper diagnosis
is made, the ABA techniques can be implemented by others,
including a parent, which makes it useful for intensive,
continuous treatment plans.
As a modality, ABA includes several behavioral interventions,
including:
1)Discrete Trial Training-a style of teaching that uses a series
of trials to teach each step of a desired behavior or response.
Lessons are broken down into their simplest parts and positive
reinforcement is used to reward correct answers and behaviors.
Incorrect answers are ignored.
1)Verbal Behavior-focuses on teaching language using a sequenced
curriculum that guides children from simple verbal behaviors
(echoing) to more functional communication skills through
techniques such as errorless teaching and prompting.
2)Pivotal Response Training-aims at identifying pivotal skills,
such as initiation and self-management, that affect a broad
range of behavioral responses. This intervention incorporates
parent and family education aimed at providing skills that
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enable the child to function in inclusive settings.
Still, not all behavioral therapies are based on the ABA
modality, such as DIR/Floortime.
ABA and PDD/ASD. The concept of ABA-only providers has grown in
popularity in recent years. Prior to SB 946 (Steinberg),
Chapter 650, Statutes of 2011, health plans in California were
not required to provide behavioral health treatments (BHTs),
including for pervasive developmental disorders (PDD) or autism
spectrum disorder (ASD).
While BHTs may have already been popular, they were often not
covered for certain conditions because they were considered
habilitative. In contrast to rehabilitative services,
habilitative services aim to bring an individual's functioning
above what the individual's normal development provides. As a
result, many plans did not consider them medically necessary.
This is salient because medical necessity is often required for
reimbursement. Further, the efficacy of many BHTs for PDD and
ASD is difficult to prove, given the wide range of diagnoses,
settings, and therapies (See California Health Benefits Review
Program Analyses (CHBRP) for SB 126, SB 796, AB 2041).
Subsequently however, SB 946 and a number of related behavioral
health mandate bills were signed into law, mandating coverage of
BHTs, including ABA. Further, recent guidance from the federal
Centers for Medicare and Medicaid Services (CMS) has stated that
BHTs such as ABA-based therapies are covered under the Medicaid
benefit for children, Early and Periodic, Screening, Diagnosis,
and Treatment (EPSDT). As a result, many health plans are now
required to include BHT providers in their networks, including
low-level providers, to provide coverage for the benefit.
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Because some of the most popular behavioral health treatments
specific to PDD and ASD are ABA-based, the number of
ABA-specific treatment providers and practitioners is rising (as
distinguished from other mental health providers who are
qualified to provide BHT and diagnoses including: social
workers, licensed professional clinical counselors, marriage and
family therapists, psychiatrists and psychologists).
Board Certification of Behavior Analysts. Because the
standalone practice of ABA is relatively new, there is only one
certification board for behavior analysts, the Behavior Analyst
Certification Board (BACB). The BACB is a nonprofit 501(c)(3)
corporation established in 1998 that is accredited by the
National Commission for Certifying Agencies Accreditation
(NCCA). The BACB provides certifications for professional
behavior analysts and approves school programs for behavior
analysis. Because the BACB is currently the only NCCA
accredited program that provides behavior analysis
certifications, this bill was crafted to closely match the
BACB's requirements. The BACB provides four types of
credentials: (1) board certified behavior analyst (BCBA); (2)
board certified assistant behavior analyst (BCaBA); (3)
registered behavior technicians (RBTs); and (4) the
doctoral-level BCBA ( BCBA-D). The BACB requirements for the
initial certification and renewal of BCBA and BCaBA
certifications are nearly identical to the requirements for LBAs
and LABAs under this bill.
The BACB requirements for RBTs are similar to the
paraprofessional technician, except that the BACB requires a
40-hour training program and a competency assessment, while this
bill does not. The BCBA-D designation requires specific
requirements above the regular BCBA and would qualify for
licensure under this bill.
Scope of Practice of a Behavior Analyst. This bill would define
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the practice of behavior analysis as the design, implementation,
and evaluation of instructional and environmental modifications
to produce socially significant improvements in human behavior.
This includes three things, 1) functional analysis (the
observation of relations between behavior and environment), 2)
the use of behavioral interventions based on the functional
analysis; and 3) the use of operant conditioning (such as
positive and negative reinforcement).
The bill also distinguishes the practice of behavior analysis
from psychological testing and assessment and the diagnosis of a
mental or physical disorder. Currently, in California it is the
unlicensed practice of both medicine and psychology to perform
ABA services. The current scope of practice for psychologists
includes "any psychological service [for a fee] involving the
application of psychological principles, methods, and procedures
of understanding, predicting, and influencing behavior, such as
the principles pertaining to learning." A psychiatrist's scope
is even broader, being all of medicine (all treatment for all
physical and mental conditions, BPC § 2051). Interestingly,
however, the behavior analyst scope is not limited by services
requiring a fee.
Because ABA principles are basic principles of learning drawn
from psychology, this bill is essentially licensing a group of
practitioners that practice a subset of psychology and
psychiatry. Psychologists that perform ABA include clinical
psychologists, industrial-organizational (I/O) psychology and
behavioral and cognitive psychology, among others. Industrial
organizational psychologists specialize assessing behavior and
creating interventions in the work place, and behavioral and
cognitive psychologists specialize in ABA, behavior therapy, and
cognitive therapy among others.
In addition, because there are many other types of behavior
therapies, there may be overlap in many other professions as
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well. Therefore, this bill also provides a list of exemptions
for other professions, including the following:
15)Speech-language pathologists or audiologists;
16)Occupational therapists;
17)Physical therapists;
18)Marriage and family therapists;
19)Educational psychologists;
20)Clinical social workers; and,
21)Professional clinical counselors.
However, as noted above, there are other types of BHTs that are
not considered ABA. Therefore, this bill may also
unintentionally impact other providers that provide BHTs, which
may not be licensed.
Other States. Currently 24 other states either license or
certify ABA practitioners. In seven states, they are regulated
by a psychology board (AZ, MO, ND, NV, OH, TN, UT). In eight
states, they are regulated under a behavior analysis board (AL,
KY, LA, MS, NY, OK, OR, RI). In five states, they are either
issued direct licenses from a consumer agency (AK, HI, VT, WA,
WI). In the remainder of the states, they are licensed under
the behavioral sciences board (KS), the allied mental health
board (MA), or the medical board (VA).
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Prior Related Legislation. SB 479 (Bates), of 2015 was
substantially similar to this bill and would have regulated,
LBAs, LABAs, and paraprofessional technicians under the BOP.
NOTE: This bill was held in the Assembly Appropriations
Committee.
AB 796 (Nazarian), of 2015 would have expanded the eligibility
for a person to be a qualified autism service professional to
include a person who possesses a bachelor of arts or science
degree and meets other specified requirements, a registered
psychological assistant, a registered psychologist, or an
associate clinical social worker. The bill also expands the
eligibility for a person to be a qualified autism service
paraprofessional to include a person with a high school diploma
or equivalent and, among other things, 6 months experience
working with persons with developmental disabilities. STATUS:
This bill was held in the Senate Health and Human Services
Committee.
SB 126 (Steinberg), Chapter 680, Statutes of 2013, extended the
operation of the BHT mandate until January 1, 2017.
AB 1205 (Berryhill) of 2011 would have provided for the
licensure and regulation of behavior analysts under the Board of
Behavioral Sciences. NOTE: This bill was held in the Assembly
Appropriations Committee.
AB 2041(Jones) of 2013 would have required that a regional
center classify a vendor as a behavior management consultant or
behavior management assistant if the vendor designs or
implements evidence-based behavioral health treatment, has a
specified amount of experience in designing or implementing that
treatment, and meets other licensure and education requirements.
NOTE: This bill was held in the Senate Appropriations
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Committee.
SB 946 (Steinberg), Chapter 650, Statutes of 2011, among other
things, mandated health care service plan contracts and health
insurance policies, except as specified, to provide coverage for
BHT, as defined, for PDD and ASD.
ARGUMENTS IN SUPPORT:
The California Association for Behavior Analysis (sponsor)
writes in support, "Behavior analysts and assistant behavior
analysts who are certified by the national [BACB] provide the
vast majority of ABA services. Though accredited and certified,
these professionals are not licensed or regulated by the state.
[This bill's] licensure requirement would provide both the state
of California and its resident's additional consumer protections
and recourse when there are concerns with the services provided
by behavior analysts and assistant behavior analysts. At the
same time, this bill would not preclude other licensed
professionals from providing behavior analysis services."
ARGUMENTS IN OPPOSITION:
The California Psychological Association writes in opposition,
"CPA is concerned with specific language in the bill and the
need for a separate license for one treatment technique.
CPA is concerned the precedent the bill could create. We could
potentially see dozens of new licenses based on a single
treatment modality, and not the general licenses we have
employed for years. Cognitive behavioral therapy is a technique
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many psychologists employ, but they are licensed under the
general psychology license and not as a Cognitive Behavioral
Therapist. We're concerned that setting a precedent here could
result in other groups seeking licensure for specific
techniques. We are also concerned about the potential
complications of the license's tiered model.
We have supported the previous insurance mandate to define
'qualified autism providers' and are supporting current
legislation to expand the services under the mandate. Mental
health professionals, including psychologists, as well as
certified BCBAs, are included in current mandates."
POLICY ISSUES FOR CONSIDERATION:
Regional Center Exemption. This bill exempts individuals
vendorized through the regional centers from the licensure
requirements. However, the BOP, which will be the agency to
administer the provisions of this bill, is opposed unless the
exemption is removed.
According to the BOP, "A key component of the consumer
protection mandate of the [BOP] is the jurisdiction the [BOP]
has over an individual's license to ensure minimal competency.
Exempting an entire category from licensure because of their
relationship to the regional centers potentially places a large
number of ABA practitioners beyond the [BOP's] jurisdiction and
does not ensure minimal competency of these individuals. The
BOP is aware of concerns regarding access to care. However, if
the legislature believes minimum standards of competency must be
obtained by an individual to provide ABA services to the public,
the threshold for such services should not be determined by
one's financial status or insurance. Californians should be
confident that applied behavior analysis services are being
given by a trained, ethical individual free of criminal history.
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Additionally, financially disadvantaged individuals should not
be deprived of the ability to pursue administrative action if
there is a deviation from the standard of care."
While there may be concerns surrounding the continuity of care
for regional center clients, even if many providers vendorized
with the regional centers do not meet the requirements for
licensure, they can still register as a paraprofessional and
continue to practice under supervision of a licensed
professional. According to the BOP, registration should not be
a financial burden. The BOP has calculated that the
registration fees will be approximately fifty dollars.
Providers that cannot meet license requirements or are not being
supervised may not be qualified to provide services for the
regional center clients. Therefore, the Committee may wish to
consider if behavior analysts become a licensed group under the
BOP, should vendorized regional center providers of ABA be
exempted from licensure requirements.
Therapist/Client Privilege. While many other counselors and
therapists have a professional/client privilege, this bill does
not include a privilege clause for LBAs and LABAs (like
psychologists have in BPC § 2918). Therefore, the BOP has
requested that a privilege clause be added.
The purpose of privilege is to protect client records and ensure
that patients are not deterred from being candid with their
therapist. If this bill is enacted, client records, which
include confidential information such as diagnoses, will still
be protected by the privilege that licensed psychologists are
psychiatrists may exercise. However, the Committee may wish
consider whether there should be a privilege clause for this new
category of licensure.
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Unintended Effect on Other BHT Providers. Due to the fact that
so many licensed providers have asked for specific exclusions
from the licensure requirements for a LBA and LABA, this bill
may have an unintended consequence of negatively impacting other
types of BHT providers that may fall under the newly created BA
scope of practice, such as DIR/Floortime providers.
The issue is that ABA therapies can be viewed as a category of
treatment within psychology rather than a distinct field of
study. The legitimacy that licensure provides ABA providers may
result in unintentional discrimination against other BHT
modalities as lay persons may assume that ABA is a more
effective treatment for autism or other developmental
disabilities versus other BHTs.
Need for Licensure. In July of 2015, the U.S. Department of the
Treasury's Office of Economic Policy, the White House's Council
of Economic Advisers, and the U.S. Department of Labor issued a
report entitled Occupational Licensing: A Framework for
Policymakers. According to the report, the purpose of
occupational licensing is to protect consumers from harm by
establishing minimum competency standards. Therefore, the
report recommended that when determining whether an occupation
should be licensed, states should weigh the benefits to the
public against the burden on the licensees.
As a result, it may be prudent to perform a cost-benefit
analysis. Criteria included in the following analysis cover 1)
gravity and potential risk of harm to consumers, 2) availability
of consumer remedies, 3) sufficiency of industry regulation, and
4) cost to the licensees.
1)According to the sponsor's 2014 sunrise report, "The
availability of additional funding for ABA services through SB
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946, together with increasing numbers of people receiving
diagnoses of ASD and other conditions for which ABA services
have proved effective, will further increase consumer demand
for those services going forward. Without a statute and
regulations formalizing minimum standards for practicing ABA
competently and establishing a body within the state to
oversee that practice, consumers will be at increasing risk of
harm from individuals making false claims to be qualified to
provide ABA services."
While avoiding harm to individuals receiving treatment for ASD
and PDD is desirable, it is not clear that licensure is
necessary to do so (certificate or title protection seem like
viable alternatives). Further, the sponsors note that ABA is
used for much more than just treating ASD and developmental
disorders, including workplace and organizational behavior
management. It is not clear that the gravity of the potential
harm from organizational consulting work merits licensure.
2)As to the risk of harm, the sponsors also note that as of
March 18, 2016, there were 7,363 practitioners in California
certified by the BACB, including 3168 BCBAs, 284 BCBA-Ds, 166
BCaBAs, and 3745 RBTs. This is an increase of approximately
5000 practitioners since 2014. While most of the increase
accounts for the new RBT practitioner, the remainder is a
nearly 100% increase in the main certificate type
(approximately 1400 new BCBAs). It is unclear how many other
uncertified providers there may be. The U.S. Bureau of Labor
Statistics does not currently track behavior analysts or
behavioral therapists as their own profession (they are
currently tracked under the psychologist category).
If there is a high risk of harm, one can assume there will be
a large number of complaints. As of March 30, 2016, the BACB
has 42 notices of alleged violations (complaints) against
behavior analysts in California, a number of which date back
to 2005, about 10 years (many of which were closed due to lack
of evidence). This is contrasted with the BOP, which has
about 22,000 licensees and received 668 complaints in FY
12/13, 643 complaints in FY 13/14, and 900 complaints in FY
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14/15, for a total of 2211 complaints over four years.
Interestingly, the total number of complaints on the BACB's
website was less than 300. While this analysis is likely an
incomplete picture because there is insufficient data to
capture all of the variables, such as the impact the
visibility of the BOP as a public agency might have or
underreporting, the evidence does not suggest a significant
risk to consumers.
3)The next criterion is the availability of consumer remedies.
In this case, the typical remedies are available, including
civil suits, criminal charges, health plan complaints, and
certification board complaints. However, as noted above, ABA
falls within the practice of both medicine and psychology.
Therefore, the BOP and the Medial Board of California have the
authority to cite ABA practitioners for unlicensed practice as
well as follow-up on consumer complaints, referring cases to
the appropriate authority. In the past, the BOP noted that it
has pursued cases of unlicensed behavior therapy in egregious
cases. Therefore, there appear to be sufficient consumer
remedies.
4)There also appears to be sufficient industry regulation
(supported by the low number of consumer complaints). Because
of the recent rise in the practice of ABA services for PDD and
ASD, the health industry regulates many ABA practitioners
through reimbursement rates and plan-provider contracts.
Often, for liability purposes, plans will require that
providers only use qualified practitioners, up to requiring
certification by the BACB. Further, the sponsors have noted
that many providers of ABA services have already adopted the
BACB as the minimum standard for their providers, including
many of the regional centers (possibly also due to push back
from the plans). Further, given that the many, if not most,
ABA services require a diagnosis from a licensed professional
or are provided in group practices such as community clinics,
there seems to be sufficient oversight of behavior analyst
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practitioners at all levels.
5)Lastly, while valuable in theory, the benefit to consumers is
minimally supported by the data. This must be weighed against
the cost to the licensees. Based on projected numbers
provided in the sponsor's sunrise report and pulled from the
BACB website, a BCBA applicant would have to pay a $230 exam
fee to the BACB, a $125 exam fee to the exam provider (Pearson
VUE), and a $250 application fee and $200 initial license fee
to the BOP (a total of $805 if the applicant passes the first
time). Every two years after that, the BCBA would pay a
biennial renewal fee of $300 to the BOP, a $200 continuing
education examination fee to the BACB, and a $130 continuing
education fee to the BACB (a total of $630). However, these
were based on the sponsor's 2014 projections, and they may
have gone up or down based on the current status of the BOP.
As of the BOP's most recent sunset review, the BOP's fund
condition is stable. However, the number of potential
licensee's has risen sharply, and it is unclear whether this
will require an increase in license fees.
Therefore, the need for licensure is not clear. While better
standards for consumers of health care services is a laudable
goal, the Committee may wish to determine whether the quantified
benefit to consumers outweighs the burden to the professionals
to be licensed.
AMENDMENT:
To alleviate the concerns of the BOP regarding the exemption for
regional center vendors, the author should make the following
amendment:
Page 24, strike lines 1-11, inclusive:
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(f) An individual who is vendorized by one or more regional
centers of the State Department of Developmental Services while
practicing behavior analysis services authorized under that
vendorization. That individual shall not represent himself or
herself as a licensed behavior analyst or licensed assistant
behavior analyst unless he or she holds a license under this
chapter, and shall not offer behavior analysis services to any
person or entity other than the regional centers with which he
or she is vendorized or accept remuneration for providing
behavior analysis services other than the remuneration received
from those regional centers unless he or she holds a license
under this chapter.
REGISTERED SUPPORT:
California Association for Behavior Analysis (sponsor)
Advance Kids, Inc.
A.G.E.S. Learning Solutions, Inc.
Autism Behavior Intervention
Behavioral Learning Network
Building Blocks Behavior Consultants, Inc.
CARE, Inc.
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Central Valley Autism Project
Coyne Associates Education Corporation
Ed Support Services
Gateway Learning Group
The Kendall Centers
Kids Overcoming, LLC
North Los Angeles County Regional Center
The Reilly Behavioral Group, LLC
Shabani Institute
STE Consultants
Trumpet Behavioral Health
2 individuals
REGISTERED OPPOSITION:
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California Board of Psychology
DIR/Floortime Coalition of California
1 individual
Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301, Le
Ondra Clark Harvey, Ph.D. / B. & P. / (916) 319-3301