BILL ANALYSIS Ó
AB 1715
Page 1
ASSEMBLY THIRD READING
AB
1715 (Holden)
As Amended April 12, 2016
Majority vote
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|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
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
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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