BILL ANALYSIS Ó AB 1715 Page 1 ASSEMBLY THIRD READING AB 1715 (Holden) As Amended April 12, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Business & |14-0 |Salas, Baker, Bloom, | | |Professions | |Campos, Chávez, | | | | |Dahle, Dodd, Eggman, | | | | |Gatto, Gomez, Holden, | | | | |Mullin, Ting, Wood | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |15-1 |Gonzalez, Bigelow, |Gallagher | | | |Bloom, Bonilla, | | | | |Bonta, Calderon, | | | | |Daly, Eggman, Eduardo | | | | |Garcia, Roger | | | | |Hernández, Holden, | | | | |Quirk, Santiago, | | | | |Weber, Wood | | | | | | | | | | | | ------------------------------------------------------------------ AB 1715 Page 2 SUMMARY: Establishes the Behavior Analyst Act (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. Specifically, this bill: 1)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 under the Act. 2)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). 3)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. 4)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. 5)Defines "licensed behavior analyst" (LBA) as a person licensed under the Act to practice behavior analysis. 6)Defines "practice of behavior analysis" or "to practice behavior analysis" as the design, implementation, and evaluation of instructional and environmental modifications to AB 1715 Page 3 produce socially significant improvements in human behavior, as specified. 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. 7)Establishes the educational, experiential, disciplinary, and fee requirements for the licensees and registrants above. 8)Makes it unlawful, on and after July 1, 2019, to practice behavior analysis without being licensed by BOP, except as specified. 9)Exempts a licensed speech-language pathologist or audiologist, a licensed occupational therapist, a licensed physical therapist, a licensed marriage and family therapist, a licensed educational psychologist, a licensed clinical social worker, a licensed professional clinical counselor, a parent, a researcher, and an individual employed or contracted by a school. FISCAL EFFECT: According to the Assembly Appropriations Committee: 1)Approximate fiscal impact to BOP of $1.9 million in 2017-18, the first year of implementation, and about $2.6 million ongoing (loan from the Psychology Fund, to be reimbursed by fees). Initial costs relate to promulgation of regulations, development of materials, build-out of office space, and information technology changes to add a licensure category. This is based on an assumption of 3,850 licensees and 45,000 technicians and interns. The Psychology Fund has a projected AB 1715 Page 4 balance of $9.4 million at the end of $2016-17 based on General Fund (GF) loan repayments of $6.3 million in 2016-17. 2)Unknown, likely minor if any, potential GF revenue, if penalty authority contained in the bill is used to enforce the bill's provisions. 3)Significant costs over the first year of licensure and minor ongoing costs to the Department of Justice for additional background checks, reimbursed by the individuals being screened (Fingerprint Fees Account). 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 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 AB 1715 Page 5 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). ABA 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. 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). 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 AB 1715 Page 6 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 BAT under this bill, 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 defines 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 ABA services fall within the scope of many other types of licensees. 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 AB 1715 Page 7 principles pertaining to learning." A psychiatrist's scope is even broader, being all of medicine (all treatment for all physical and mental conditions, Business and Professions Code Section 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. In addition, because there are many other types of behavior therapies, there may be overlap in many other professions as well. Therefore, this bill also provides a list of exemptions for other professions, including the following: 1)Speech-language pathologists or audiologists; 2)Occupational therapists; 3)Physical therapists; 4)Marriage and family therapists; 5)Educational psychologists; 6)Clinical social workers; and, 7)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. AB 1715 Page 8 Other States. Currently 24 other states either license or certify ABA practitioners. In seven states, they are regulated by a psychology board (Arizona, Missouri, North Dakota, Nevada, Ohio, Tennessee, Utah). In eight states, they are regulated under a behavior analysis board (Alabama, Kentucky, Louisiana, Mississippi, New York, Oklahoma, Oregon, Rhode Island). In five states, they are either issued direct licenses from a consumer agency (Alaska, Hawaii, Vermont, Washington, Wisconsin). In the remainder of the states, they are licensed under the behavioral sciences board (Kansas), the allied mental health board (Massachussets), or the medical board (Virginia). 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. AB 1715 Page 9 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 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: Need for Licensure. In July of 2015, the United States (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. In this case, the need for licensure is not clear. First, while avoiding harm to individuals receiving treatment for ASD and PDD AB 1715 Page 10 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. Second, the incidence of harm does not seem to merit licensure, the sponsors 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 Fiscal Year (FY) 12/13, 643 complaints in FY 13/14, and 900 complaints in FY 14/15, for a total of 2211 complaints over four years. 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 AB 1715 Page 11 not suggest a significant risk to consumers. Third, there seem to be a sufficient number of consumer remedies for any potential harms. 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 Medical 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. 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 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 analysis providers. Lastly, the benefit to consumers 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 AB 1715 Page 12 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, it is not clear if the benefit to consumers outweighs the burden to the professionals to be licensed in this case. Analysis Prepared by: Le Ondra Clark Harvey Ph.D., Vincent Chee / B. & P. / (916) 319-3301 FN: 0003199