BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1715


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          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           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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                                                                    AB 1715


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          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  








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            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  








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            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  








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          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  








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          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  








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          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.








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          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.  








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          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  








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          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  








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          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  








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          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