BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: AB 1715 Hearing Date: June 27,
2016
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|Author: |Holden |
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|Version: |June 9, 2016 > |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Huchel |
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Subject: Healing arts: behavior analysis: licensing
SUMMARY: Establishes a Behavior Analyst (BA) category of licensure to
be administered by the Board of Psychology (BOP).
Existing law:
1)Establishes the BOP to license and regulate the Psychology
Licensing Law. (Business and Professions Code section 2920)
2)Defines the practice of psychology to mean the rendering or
offering to render to individuals, groups, organizations, or
the public any psychological service involving the application
of psychological principles, methods, and procedures of
understanding, predicting, and influencing behavior, such as
the principles pertaining to learning, perception, motivation,
emotions, and interpersonal relationships; and the methods and
procedures of interviewing, counseling, psychotherapy,
behavior modification, and hypnosis; and of constructing,
administering, and interpreting tests of mental abilities,
aptitudes, interests, attitudes, personality characteristics,
emotions, and motivations. (BPC § 2903)
3)Establishes the Board of Behavioral Science (BBS) to enforce
the licensing laws for marriage and family therapists (MFTs),
professional clinical counselors (PCCs), clinical social
workers (CSWs), and educational psychologists (EPs). (BPC §
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4980.34)
4)Defines the practice of practice of marriage and family therapy
as service performed with individuals, couples, or groups
wherein interpersonal relationships are examined for the
purpose of achieving more adequate, satisfying, and productive
marriage and family adjustments. This practice includes
relationship and premarriage counseling. The application of
marriage and family therapy principles and methods includes,
but is not limited to, the use of applied psychotherapeutic
techniques, to enable individuals to mature and grow within
marriage and the family, the provision of explanations and
interpretations of the psychosexual and psychosocial aspects
of relationships, and the use, application, and integration of
the coursework and training as specified. (BPC § 4980.02)
5)Defines the practice of educational psychology as the
performance of any of the following professional functions
pertaining to academic learning processes or the educational
system or both:
a) Educational evaluation.
b) Diagnosis of psychological disorders related to academic
learning processes.
c) Administration of diagnostic tests related to academic
learning processes including tests of academic ability,
learning patterns, achievement, motivation, and personality
factors.
d) Interpretation of diagnostic tests related to academic
learning processes including tests of academic ability,
learning patterns, achievement, motivation, and personality
factors.
e) Providing psychological counseling for individuals,
groups, and families.
f) Consultation with other educators and parents on issues
of social development and behavioral and academic
difficulties.
g) Conducting psychoeducational assessments for the
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purposes of identifying special needs.
h) Developing treatment programs and strategies to address
problems of adjustment.
i) Coordinating intervention strategies for management of
individual crises. (BPC § 4989.14)
6)Defines the practice of clinical social work as a service in
which a special knowledge of social resources, human
capabilities, and the part that unconscious motivation plays
in determining behavior, is directed at helping people to
achieve more adequate, satisfying, and productive social
adjustments. The application of social work principles and
methods includes, but is not restricted to, counseling and
using applied psychotherapy of a nonmedical nature with
individuals, families, or groups; providing information and
referral services; providing or arranging for the provision of
social services; explaining or interpreting the psychosocial
aspects in the situations of individuals, families, or groups;
helping communities to organize, to provide, or to improve
social or health services; doing research related to social
work; and the use, application, and integration of the
coursework and experience, as specified. (BPC § 4996.9)
7)Defines the practice of professional clinical counseling as the
application of counseling interventions and psychotherapeutic
techniques to identify and remediate cognitive, mental, and
emotional issues, including personal growth, adjustment to
disability, crisis intervention, and psychosocial and
environmental problems, and the use, application, and
integration of the coursework and training as specified.
"Professional clinical counseling" includes conducting
assessments for the purpose of establishing counseling goals
and objectives to empower individuals to deal adequately with
life situations, reduce stress, experience growth, change
behavior, and make well-informed, rational decisions. (BPC §
499920 (a)(1))
8)Provides a limited exemption for salaried employees of
accredited or approved academic institutions, public schools,
or governmental agencies who perform psychological activities
as part of the duties for which they were hired. (BPC § 2910)
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9)Requires every health care service plan contract that provides
hospital, medical, or surgical coverage to also provide
coverage for behavioral health treatment for pervasive
developmental disorder or autism, until January 1, 2017.
Requires a health care service plan to maintain an adequate
network that includes qualified autism service providers who
supervise and employ qualified autism service professionals or
paraprofessionals who provide and administer behavioral health
treatment. Defines "behavioral health treatment" as
professional services and treatment programs, including
applied behavior analysis and evidence-based behavior
intervention programs, that develop or restore, to the maximum
extent practicable, the functioning of an individual with
pervasive developmental disorder or autism and that meet
specified criteria. Defines a "qualified autism service
provider" as including a person, entity, or group that is
certified by a national entity, such as the Behavior Analyst
Certification Board, that is accredited by the National
Commission for Certifying Agencies, and who designs,
supervises, or provides treatment for pervasive developmental
disorder or autism, provided the services are within the
experience and competence of the person, entity, or group that
is nationally certified. (Health and Safety Code § 1374.73)
10)States that a person recognized by the national Behavior
Analyst Certification Board as a Board Certified BA may
conduct behavior assessments and provide behavioral
intervention services for individuals with exceptional needs,
but that law does not require a district, special education
local plan area, or county office to use a Board Certified BA
to conduct behavior assessments and provide behavioral
intervention services for individuals with exceptional needs.
(Education Code § 56525)
11)Limits the design and planning of behavioral interventions
shall be designed or planned only by the following personnel:
a) Someone with a pupil Personnel Services Credential that
authorizes school counseling or school psychology.
b) Someone with a credential authorizing the holder to
deliver special education instruction.
c) LMFT, LCSW, LEP, or a psychologist.
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d) Someone with a master's degree issued by a regionally
accredited post-secondary institution in education,
psychology, counseling, behavior analysis, behavior
science, human development, social work, rehabilitation, or
in a related field. (Title 5, California Code of
Regulations § 3051.23)
This bill:
1)Adds BA, assistant behavior analysts (ABA), behavior analysis
technicians (BAT), and behavior analyst interns (BAI) to the
licensees about which the BOP shall disclose information.
2)Increases the BOP from nine to 11 members on July 1, 2018 as
follows:
a) Five public members, who shall not be licentiates of the
BOP or of any healing arts board.
b) Five licensed psychologists.
c) One licensed psychologist and who is qualified to
practice behavior analysis, as follows:
i) For the first appointment, the member shall hold a
certificate as a certified behavior analyst from a
certifying entity.
ii) For subsequent appointments, the member shall
be licensed as a behavior analyst.
3)States that, for the new BOP, six members shall constitute a
quorum.
4)Requires the Governor, in appointing the licensed members of
the BOP, to use his or her judgment to select psychologists
and behavior analysts who represent, as widely as possible,
the varied professional interests of psychologists and
behavior analysts in California.
5)Requires the Governor to appoint three of the public members
and the six licensed members of the BOP, and the Senate
Committee on Rules and the Speaker of the Assembly shall each
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appoint a public member.
6)Establishes the BA Act (Act).
7)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.
8)States the intent of the Legislature that the BOP begin
accepting applications for licensure as a BA or ABA no later
than July 1, 2019, and applications for registration as a BAT
or BAI no later than January 1, 2018.
9)Defines the following terms:
a) "BAT" means an individual who works directly with a
client to implement applied behavior analysis services
under the direction and supervision of a registered
behavior analyst intern, 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, as specified.
b) "Certifying entity" means the Behavior Analyst
Certification Board or its successor, or another national
credentialing organization with behavior analyst
certification programs approved by the BOP and accredited
by the National Commission for Certifying Agencies.
c) "ABA" means a person licensed to practice behavior
analysis under the supervision of a licensed BA or a
licensed psychologist who is qualified to practice behavior
analysis and who maintains active certification with the
certifying entity during the entire period of licensure.
d) "BAI" means a person registered to practice behavior
analysis under the supervision of a licensed BA or a
licensed psychologist who is qualified to practice behavior
analysis.
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e) "Licensed BA" means a person licensed to practice
behavior analysis and who maintains active certification
with the certifying entity during the entire period of
licensure.
f) "Practice of behavior analysis" or "to practice behavior
analysis" means the design, implementation, and evaluation
of instructional and environmental modifications to produce
socially significant improvements in human behavior and
includes the empirical identification of functional
relations between behavior and environmental factors, known
as functional assessment and analysis, interventions based
on scientific research and the direct observation and
measurement of behavior and the environment, and
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.
i) Clarifies 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.
10)States that the Legislature recognizes that the scopes of
practice of other healing arts licensees sometimes contain
similar practices. However, nothing herein shall be construed
to allow a licensed behavior analyst or a licensed assistant
behavior analyst to engage in those practices, including, but
not limited to, assessments, other than specific to their
scope of practice within behavior analysis as described
herein. Any person practicing behavior analysis under this
chapter who violates this provision is subject to disciplinary
action by both the BOP and the board overseeing the relevant
practice.
11)States that the BOP is vested with the power to administer the
provisions and requirements of the Act, and may make and
enforce rules and regulations that are reasonably necessary to
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carry out its provisions.
12)Sunsets the Act on January 1, 2022 and subjects it to Sunset
Review.
13)States that protection of the public shall be the highest
priority for the BOP in exercising its licensing, regulatory,
and disciplinary functions pursuant to this Act. Whenever the
protection of the public is inconsistent with other interests
sought to be promoted, the protection of the public shall be
paramount.
14)Requires the BOP to adopt a program of consumer and
professional education in matters relevant to the ethical
practice of behavior analysis which shall be applied as the
accepted standard of ethical conduct in all law and ethics
licensing examination development and in all BOP enforcement
policies and disciplinary case evaluations involving the
practice of behavior analysis.
15)Establishes the BA Committee (Committee) 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
applied behavior analysis, and unprofessional, unethical, or
harmful conduct by persons licensed to practice behavior
analysis.
16)Requires the Committee to consist of five members, as follows:
a) Two members shall be licensed BAs, one of whom shall
also be a member of the BOP.
b) One member shall be a psychologist who holds a current
certification from a certifying entity as a BA.
c) One member shall be a licensed ABA.
d) One member shall be a public member who is not licensed
by any healing arts board.
17)Requires the Governor to appoint one licensed BA member, the
licensed psychologist member, and the licensed ABA member. The
Senate Committee on Rules shall appoint the public member, and
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the Speaker of the Assembly shall appoint one licensed
behavior analyst member, as specified.
18)States that, except for the initial appointments, each
committee members shall hold office for a term of four years,
and shall serve until the appointment of his or her successor
or until one year has elapsed since the expiration of the term
for which he or she was appointed, whichever occurs first.
Vacancies shall be filled by the appointing power for the
unexpired portion of the terms in which they occur. A member
shall not serve for more than two consecutive terms.
19)Requires the Committee to meet at least once per year, and
abide by the Bagley-Keene Open Meeting Act.
20)Authorizes the Committee to make recommendations to the BOP
regarding licensing and practice standards and regarding the
adoption, amendment, and repeal of regulations to implement
the requirements of the Act including, but not limited to, the
setting of fees and the establishment of disciplinary
guidelines.
21)Requires an applicant for licensure as a BA or ABA to meet the
BOP's requirements and pass a state- and federal-level
criminal offender record information search conducted through
the Department of Justice.
22)Requires the BOP to request subsequent arrest notification
service for each applicant from the Department of Justice.
23)Requires an applicant for BA licensure, until July 1, 2019, to
provide the following:
a) Submit an application on a form approved by the BOP
accompanied by specified fees.
b) Verification from the certifying entity that the
applicant meets both of the following requirements:
c) Has passed the Board Certified Behavior Analyst
examination or an equivalent examination administered by
the certifying entity.
d) Maintains an active status as a certified BA with
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the certifying entity.
e) A passing score on a California law and ethics
examination administered by the BOP.
24)Requires an applicant for BA licensure after July 1, 2019 to
provide the following:
a) Submit an application on a form approved by the BOP
accompanied by specified fees.
b) Verification from the certifying entity that the
applicant meets both of the following requirements:
c) Has passed the Board Certified Behavior Analyst
examination or an equivalent examination administered by
the certifying entity.
d) Maintains an active status as a certified BA with
the certifying entity.
e) A passing score on a California law and ethics
examination administered by the BOP.
f) Proof of one of the following requirements:
i) Possess a master's degree or higher level of
education from an institution, as specified, that was
conferred in behavior analysis, psychology, or education.
ii) Possess a master's degree or higher level of
education, as specified, and completed a behavior
analysis course sequence approved by the certifying
entity.
g) Proof of one of the following requirements:
i) Completion of both of the following:
(1) 270 hours of classroom graduate-level
instruction in specified content areas.
(2) Supervised experiential training, as
specified.
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ii) Completion of all of the following:
(1) 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.
(2) Taught at least five sections or
iterations of behavior analysis coursework, as
specified.
(3) Published one article with specified
characteristics.
(4) Obtained supervised experiential
training, as specified.
iii) Completion of all of the following:
(1) A doctoral degree in behavior analysis,
psychology, or education from an accredited higher
education institution.
(2) Ten years of postdoctoral experience
practicing behavior analysis, as specified.
(3) 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.
25)Requires an applicant for licensure as an ABA, until July 1,
2019, to submit fees, an application on a form approved by the
BOP, and the following:
a) Verification from the certifying entity that the
applicant passed the Board Certified ABA examination or
equivalent examination administered by the certifying
entity and maintains an active status as a certified ABA
with the certifying entity.
b) A passing score on a California law and ethics
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examination administered by the BOP.
c) Proof ongoing supervision by a licensed BA or a licensed
psychologist who is qualified to practice behavior analysis
in a manner consistent with the certifying entity's
requirements for supervision of ABAs.
26)Beginning July 1, 2019 the following are requirements for
licensure as an ABA:
a) A baccalaureate degree or higher level of education from
an institution that meets specified requirements.
b) Verification from the certifying entity that the
applicant has passed the Board Certified ABA examination or
an equivalent examination administered by the certifying
entity, and maintains an active status as a certified ABA
with the certifying entity.
c) A passing score on a California law and ethics
examination administered by the BOP.
d) Proof of ongoing supervision by a licensed BA or a
licensed psychologist who is qualified to practice behavior
analysis in a manner consistent with the certifying
entity's requirements for supervision of ABAs.
e) Completed 180 classroom hours of undergraduate or
graduate level instruction in specified content areas.
f) Obtained supervised experiential training by specified
means.
27)Requires that the education required to obtain a BA or ABA
license shall be from any of the following:
a) A United States institution of higher education listed
by the Council for Higher Education Accreditation.
b) 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.
28)Requires that an applicant for licensure trained in an
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educational institution outside the United States or Canada
demonstrate to the satisfaction of the BOP that he or she
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. Such an applicant shall provide to
the board 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.
29)Establishes the following criteria for registration as a BAI:
a) A BAI may not be a licensed BA, ABA, or registered BAT
in order to prepare for licensure as a BA.
b) Requires the BAI to be supervised in accordance with the
BOP's regulations by a licensed BA or a licensed
psychologist who is qualified to practice behavior analysis
in order to perform behavior analysis services.
c) Meets one of the following requirements:
i) Received a baccalaureate degree from an institution
meeting specified requirements.
ii) Has begun or completed the graduate level
instruction, as specified.
iii) Has begun or completed the supervised
experiential training, as specified.
d) Successfully passed a state- and federal-level criminal
offender record information search conducted through the
Department of Justice, and requires the BOP to request from
the Department of Justice subsequent arrest notification
service.
e) Apply within 14 days of electronic fingerprint image
submission.
f) Pay an application fee determined by the BOP.
30)Requires a BAI to renew his or her registration every two
years by submitting to the board verification of continued
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practice and paying a renewal fee.
31)Requires the BAI's supervisor to 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 responsible for the BAI"s
compliance with the Act.
32)Restricts an individual from practicing as a BAI for a total
of six years (72 months) from the date of initial
registration.
33)Prohibits a BAI from providing behavior analysis services to
the public except as a supervisee of a licensed BA or
qualified licensed psychologist.
34)Requires a BAT practicing in this state under the direction
and supervision of an individual licensed or registered under
the Act or a qualified licensed to be registered by the BOP.
35)Requires the following to register as a BAT:
a) Be at least 18 years of age and possess a minimum of a
high school diploma or its equivalent.
b) Submit an application on a form approved by the BOP.
c) Have successfully passed a state- and federal-level
criminal offender record information search conducted
through the Department of Justice. Requires the BOP to
request from the Department of Justice subsequent arrest
notification service.
d) Apply within 14 days of electronic fingerprint image
submission.
e) Pay an application fee.
36)A BAT must renew his or her registration every two years by
submitting to the BOP verification of continued practice as a
BAT and by paying a renewal fee.
37)Authorizes the BOP to deny or revoke acceptance of an
application or the renewal of a registration if it is
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determined to be in the best interest of public safety and
welfare, as specified.
38)Prohibits the following after July 1, 2019:
a) Engaging in the practice of behavior analysis without
first having complied with the provisions of this Act and
without holding a current, valid, and active license.
b) Representation using the title "licensed behavior
analyst," "licensed assistant behavior analyst,"
"registered behavior analyst intern," or "registered
behavior analysis technician" without being licensed or
registered.
c) Making any use of any title, words, letters, or
abbreviations that may reasonably be confused with a
designation provided by this Act to denote a standard of
professional or occupational competence without being duly
licensed.
d) Materially refuse to furnish the BOP information or
records required or requested pursuant to this Act.
39)States that the Act does not apply to any of the following:
a) An individual licensed to practice psychology, if the
practice of behavior analysis engaged in by the licensed
psychologist is within the licensed psychologist's training
and competence.
b) The following licensed professionals: speech-language
pathologist, audiologist, occupational therapist, a
physical therapist, MFT, EP, CSW, or PCC, 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
her training and competence, provided that he or she does
not represent himself or herself as a licensed BA or ABA,
registered BAI or BAT.
c) A student or other individual pursuing supervised
experience in behavior analysis toward a license described
in (a) or (b) in accordance with the Act.
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d) A parent or guardian or his or her designee of a
recipient of behavior analysis services who acts under the
direction of a licensed BA or an exempt individual. for
that recipient.
e) An individual who teaches behavior analysis or conducts
behavior analysis research and is employed by an accredited
or approved college, junior college, or university, or by a
federal, state, county, or municipal governmental entity
that is not primarily involved in the provision of direct
behavior analysis services. This individual may conduct
research and disseminate his or her research findings and
scientific information.
f) A BA 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 30 days in a
calendar year.
g) 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 or
locations specified in the student's individualized
education program. This individual shall not represent
himself or herself as a licensed BA or ABA 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 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.
40)Requires a licensee or registrant 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, shall be submitted with the notice.
41)Requires a licensee or registrant to file with the BOP his or
her address of record, which shall be used as the mailing
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address for the licensee or registrant and shall be
disclosable to the public. The licensee or registrant may
provide a post office box number or other alternative address
as his or her address of record; however, if a post office box
number or alternate address is used as the address of record,
the licensee or registrant also shall provide a physical
business or residential address for the BOP's internal
administrative use and not for public disclosure.
42)Requires an applicant to provide the BOP with a current email
address.
43)Requires that a license expires and become invalid at midnight
of the last day of the two-year period from the date the
license was issued, if not renewed.
44)Specifies requirements to renew an unexpired license, which
shall include verification from the certifying entity that he
or she maintains an active certification status with the
renewal form and, for an ABA license, proof of ongoing
supervision.
45)States that 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 a delinquency fee. The licensee
shall include verification from the certifying entity that he
or she maintains an active certification status with the
renewal form.
46)Prohibits a license that is not renewed within three years of
its expiration from being renewed, restored, or reinstated,
and the license shall be canceled immediately upon expiration
of the three-year period, except as specified.
47)Prohibits license renewal, a new license after expiration of
an expired license, or a reinstatement license unless the
applicant submits proof that he or she has completed not less
than 32 hours of approved continuing education (CE) in the
preceding two-year licensure cycle for licensed BAs and 20
hours of approved CE in the preceding two-year licensure cycle
for licensed ABAs. Requires each person renewing his or her
license to submit proof of compliance, and any false
statements shall constitute a violation.
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48)Requires a person applying for relicensure or for
reinstatement to an active license status to certify under
penalty of perjury that he or she is in compliance with CE
requirements.
49)Authorizes the BOP to recognize CE courses that have been
approved by the certifying entity.
50)States that a suspended license is subject to expiration and
shall be renewed as provided, but such 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.
51)Prohibits a license revoked on disciplinary grounds from being
renewed. If it is reinstated after its expiration, the
licensee, as a condition of reinstatement, shall pay a
reinstatement fee in an amount equal to the renewal fee, and
any fees accrued at the time of its revocation.
52)Authorizes the BOP on its own, and requires the BOP, upon the
receipt of a complaint from any person, to investigate the
actions of any licensee. The board shall 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 the Act.
53)States that a license 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 certifying entity or falsification of
documentation submitted to the BOP for licensure or submitted
to the certifying entity for certification.
54)Authorizes the BOP to refuse to issue a registration or
license, or issue a registration or license with terms and
conditions, or suspend or revoke the registration or license
of any registrant or licensee if the applicant, registrant, or
licensee has been guilty of unprofessional conduct.
55)Defines unprofessional conduct as include, but not limited to:
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a) Conviction of a crime substantially related to the
qualifications, functions, or duties of a licensed BA or
ABA or a registered BAI or BAT.
b) Use of any controlled substance, as specified, 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.
c) Fraudulently or neglectfully misrepresenting the type or
status of a license held.
d) Impersonating another person holding a license or
allowing another person to use his or her license.
e) Use of fraud or deception in applying for a license or
in passing any examination required by the Act.
f) Paying, offering to pay, accepting, or soliciting any
consideration, compensation, or remuneration, whether
monetary or otherwise, for the referral of clients.
g) Making false or misleading statements, as specified in
BPC § 17500.
h) Willful, unauthorized communication of information
received in professional confidence.
i) Violating any rule of professional conduct promulgated
by the BOP.
j) Being grossly negligent in the practice of his or her
profession.
aa) Violating any of the provisions of the Act.
bb) The aiding or abetting of any person to engage in
the unlawful practice of behavior analysis.
cc) The commission of any dishonest, corrupt, or
fraudulent act.
AB 1715 (Holden) Page 20
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dd) Any act of sexual abuse or sexual relations with a
patient, with a former patient, or with a patient's parent,
guardian, or caregiver within two years following
termination of therapy, or sexual misconduct that is
related to the qualifications, functions, or duties of a
licensed BA or ABA, or a registered BAI or BAT.
ee) Functioning outside of his or her particular field
or fields of competence as established by his or her
education, training, and experience.
ff) Willful failure to submit, on behalf of an
applicant for licensure, verification of supervised
experience to the board.
gg) Repeated acts of negligence.
hh) Failure to comply with all ethical and disciplinary
standards published by the certifying entity.
56)States that 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 constitutes a violation. A certified copy of the
decision or judgment of the other state or country shall be
conclusive evidence of that action.
57)Establishes a three year statute of limitations 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, except
as specified.
58)States that if an alleged act or omission involves a minor,
the seven-year limitations period shall be tolled until the
minor reaches the age of majority.
59)Requires an accusation filed against a licensee alleging
sexual misconduct to be filed within three years after the
board discovers the act or omission alleged a s the ground for
AB 1715 (Holden) Page 21
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disciplinary action, or within 10 years after the act or
omission alleged as the ground for disciplinary action occurs,
whichever occurs first.
60)Requires any proposed decision or decisions that contain any
finding of fact that the licensee engaged in any act of sexual
contact with a former patient, or with a patient's parent,
guardian, or caregiver while the patient was a patient, within
two years following termination of services, to contain an
order of revocation. The revocation shall not be stayed by the
administrative law judge.
61)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 specified.
62)States 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 qualifications, functions, and
duties of a licensed BA or ABA, or a registered BAI or BAT is
deemed to be a conviction. Authorizes the BOP to order the
license suspended or revoked, or 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 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.
63)Prohibits license eligibility for a person required to
register as a sex offender.
64) Authorizes cost recovery for an administrative disciplinary
decision that imposes terms of probation.
65)Requires disciplinary proceedings to adhere to the
Administrative Procedures Act.
66)States that a person who violates the Act is guilty of a
misdemeanor punishable by imprisonment in a county jail not
exceeding six months or by a fine not exceeding $2,000, or by
both.
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67)Authorizes the superior court to issue an injunction or
appropriate restraining order, upon application of the BOP,
Attorney General, or district attorney.
68)Establishes civil penalties for a licensee or a health care
facility that refuses to provide medical records or comply
with a court order, as specified.
69)Requires the BOP to report monthly to the Controller on the
amount and source of all revenue received pursuant to the Act
and at the same time deposit the entire amount in the State
Treasury for credit to the Psychology Fund.
70)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 Department of
Consumer Affairs no later than May 31 of each year.
71)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 administration. The fees
shall be fixed by the board in regulations that are duly
adopted under this chapter. Fees assessed pursuant to this
section shall not exceed the following:
a) The delinquency fee shall be 50 percent of the biennial
renewal fee.
b) The fee for rescoring an examination shall be $20.
c) The fee for issuance of a replacement license shall be
$5.
d) The fee for issuance of a certificate or letter of good
standing shall be $5.
72)Establishes exemptions for payment of renewal fees in any of
the following circumstances:
a) While engaged in full-time active service in the United
States Army, Navy, Air Force, or Marine Corps.
AB 1715 (Holden) Page 23
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b) While in the United States Public Health Service.
c) While a volunteer in the Peace Corps or AmeriCorps
VISTA.
73)Prohibits a person exempted from the payment of the renewal
fee from engaging in any private practice and states that
person 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 shall 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
his or her 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.
74)Prohibits the time spent in full-time active service or
full-time training and active service from being included in
the computation of the three-year period for renewal of an
expired license.
75)Prohibits the payment exemption from being 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.
76)Requires the licensing and regulatory program to be supported
from fees assessed to applicants and licensees. Startup funds
to implement this program shall be derived, as a loan, from
the Psychology Fund, subject to an appropriation by the
Legislature in the annual Budget Act. The BOP shall not
implement this chapter until funds have been appropriated.
FISCAL
EFFECT: This bill is keyed "fiscal" by the Legislative Counsel.
According to the Assembly Appropriations Committee analysis
dated April 20, 2016, this bill has:
An 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
AB 1715 (Holden) Page 24
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licensure category. This is based on an assumption of 3,850
licensees and 45,000 technicians and interns. The
Psychology Fund has a projected balance of $9.4 million at
the end of $2016-17 based on GF loan repayments of $6.3
million in 2016-17.
Unknown, likely minor if any, potential GF revenue, if
penalty authority contained in the bill is used to enforce
the bill's provisions.
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:
1. Purpose. This bill is sponsored by the California
Association for Behavior Analysis. According to the Author's
office, "Existing law recognizes the national certification
of behavior analysts but does not provider for their
licensure. As a result, there is no state oversight, no
ability to police conduct or to enforce the ethical
requirements of national certification. In addition, because
current law recognizes behavior analysts as health care
providers, health plans need to credential them for purposes
of including them in provider networks.
"Since 2012, state law (HSC Code § 1374.73 and INS 10144.51)
mandates that private health plans cover behavioral health
treatment for autism. This mandate has significantly
increased the demand for applied behavior analysis (ABA)
services. Given the increased demand for ABA services, it is
necessary to regulate the behavior analysis profession, to
ensure that children with autism, and others who can benefit
from behavior analysis treatment, have access to safe and
effective services from qualified professionals. The
availability of additional funding for ABA services through
SB 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
AB 1715 (Holden) Page 25
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oversee that practice, consumers will be at increasing risk
of harm from individuals making false claims to be qualified
to provide ABA services.
"Finally, licensure provides protection for consumers.
Treatment of autism and related disorders is both challenging
and emotional for families. While the current certification
available to providers gives consumers reliable standards for
choosing providers, it does not provide them with any
meaningful enforcement of standards or conduct at the state
level."
2. Applied Behavior Analysis. Applied Behavior Analysis evolved
over decades of research as a behavioral health treatment
that uses conditioning techniques and principles to bring
about meaningful and positive change in behavior. These
techniques can be used in structured situations such as a
classroom and in everyday situations such as the playground.
The Centers for Disease Control (CDC) recognizes Applied
Behavioral Analysis as a widely accepted treatment among
healthcare professionals for the treatment of individuals
with autism spectrum disorder (ASD).
ASD is defined by the Centers for Medicare and Medicaid
Services (CMS) as a developmental disability that can cause
significant social, communication and behavioral challenges.
A diagnosis of ASD now includes several conditions that used
to be diagnosed separately: autistic disorder, pervasive
developmental disorder not otherwise specified, and Asperger
syndrome. In 2014, the CDC estimated that approximately 1 in
68 children has been identified with ASD.
There are currently 1,179 Board Certified BAs and 150 Board
Certified ABAs in California, and seven California State
University campuses offer Behavior Analyst Certification
Board (BACB) course sequences, in addition to several private
universities.
3. Behavioral health coverage in California. Health plans and
health insurance policies are required to cover behavioral
health therapy for Californians with pervasive developmental
disorder or autism (PDD/A) and are required to maintain
adequate networks of autism service providers due to SB 946
(Steinberg) Chapter 650, Statutes of 2011. Federal law also
AB 1715 (Holden) Page 26
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mandates services through Medicaid. CMS explained treatment
coverage for children with ASD in a bulletin dated July 2014,
"Clarification of Medicaid Coverage of Services to Children
with Autism." This guidance document clarified coding
provisions for various treatments, including screening and
preventive services and "services of other licensed
practitioners."
Other Licensed Practitioner services (OLP) services are
defined as "medical or remedial care or services, other than
physicians' services, provided by licensed practitioners
within the scope of practice as defined under State law." If
a state licenses practitioners who furnish services to
address ASD, the state may elect to cover those providers
even if the providers are not covered under other sections of
the plan (e.g., physical therapist, occupational therapist,
etc.). The guidance also stated that services furnished by
non-licensed practitioners under supervision of a licensed
provider could be covered under the OLP benefit under
specified conditions.
This bill seeks to create a license for one particular
certain type of ASD therapy in order to take advantage of
increased reimbursement opportunities and standardize
treatment providers in a growing marketplace.
4. Other behavioral health therapies. The CDC groups ASD
treatments into four categories: Behavior and Communication
Approaches; Dietary Approaches; Medication; and Complementary
and Alternative Medicine
Applied Behavioral Analysis is only one of several modalities
within Behavior and Communication Approaches. Other
therapies in this category include:
a) Developmental, Individual Differences,
Relationship-Based Approach (DIR; also called
" Floortime "). Floortime focuses on emotional and
relational development (feelings, relationships with
caregivers). It also focuses on how the child deals
with sights, sounds, and smells.
b) Treatment and Education of Autistic and related
Communication-handicapped Children (TEACCH) TEAACH
AB 1715 (Holden) Page 27
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uses visual cues to teach skills. For example, picture
cards can help teach a child how to get dressed by
breaking information down into small steps.
c) Occupational Therapy . Occupational therapy
teaches skills that help the person live as
independently as possible. Skills might include
dressing, eating, bathing, and relating to people.
d) Sensory Integration Therapy . Sensory
integration therapy helps the person deal with sensory
information, like sights, sounds, and smells. Sensory
integration therapy could help a child who is bothered
by certain sounds or does not like to be touched.
e) Speech Therapy . Speech therapy helps to
improve the person's communication skills. Some people
are able to learn verbal communication skills. For
others, using gestures or picture boards is more
realistic.
f) The Picture Exchange Communication System
(PECS). PECS uses picture symbols to teach
communication skills. The person is taught to use
picture symbols to ask and answer questions and have a
conversation.
These therapies may be provided by other licensed
individuals, such as MFTs, LCSWs, LPCCs, LEPs, psychologists,
or other certified or unlicensed individuals.
To emphasize the various treatment options available, CMS
issued a follow-up bulletin in September 2014 entitled,
"Medicaid and CHIP FAQs: Services to Address Autism." In
answer to a question as to whether CMS mandates Applied
Behavior Analysis services for children with ASD, CMS
replied, "No. Applied Behavior Analysis is one treatment
modality for ASD. CMS is not endorsing or requiring any
particular treatment modality for ASD. State Medicaid
agencies are responsible for determining what services are
medically necessary for eligible individuals."
5. Policy Concerns.
AB 1715 (Holden) Page 28
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a) Certifying body . This bill creates a
licensure based on the certification provided by the
Behavior Analyst Certification Board (BACB), an
independent, nonprofit organization created in 1998.
This bill establishes a state licensing system, but
because it also requires a licensee to maintain
certification with a private entity, the BACB is
empowered to set standards that trump those of the
state. This bill gives the following powers to the
BACB:
i) Approve supplemental course sequence for
individuals who did not take an applied behavioral
analysis course sequence.
ii) Establish supervision requirements.
iii) Approve university practicum.
iv) Establish ethical and disciplinary
standards.
v) Determine eligibility and administer the
licensing exam.
These are powers traditionally reserved for the
state's professional regulatory boards, and it is
unclear what benefit a licensee would derive from both
certification and licensure. Further, in a post FTC
v. North Carolina world, the absolute absence of any
state supervision or ability to modify or veto the
BACB's certification requirements could subject the
state to significant liability.
This bill should strike all references requiring a
licensee to maintain certification and give the BOP
exclusive authority to set licensing standards.
b) Parity among similar license types . While
this bill expressly acknowledges overlap in scope
between a BA and other license types, particularly
psychologists and those licensed by the BBS (MFT,
LCSW, LPCC, and LEP) the bill does not justify unequal
treatment between the professions. Psychologists may
AB 1715 (Holden) Page 29
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supervise behavior analysis assistants, interns, and
technicians, but BBS licensees may not. More
significantly, this bill is structured in a way such
that a licensee without a master's degree in a named
discipline (education, psychology, or behavioral
analysis) may never be able to dual licensure without
repeating a master's program because BACB requires
those particular degrees for certification, and
requires certification to sit for the licensing exam.
BACB currently has the only national exam for
behavioral analysis.
This bill should be amended to allow the BOP to
license and administer BACB's exam (or develop an
alternate exam) for those individuals who do not
qualify for certification. BOP should evaluate the
education and experience of individuals that are
educated in behavioral analysis principles outside of
the BACB sequence and establish alternate pathways for
licensure.
c) Education exemption should be eliminated .
Current education law encourages the provision of
appropriate therapies for children with ASD, and
statute recognizes existing licensees that provide
similar services, but this bill would not require
applied behavioral analysis to be provided by
individuals licensed by the state in public or private
schools, as specified. Discussions with
representatives from the Department of Education did
not yield substantive evidence that their existing
credentialing would provide equal or greater
protections for children seeking behavioral analysis.
Further, existing law does not mandate schools to use
board certified providers, so an explicit exemption
may be redundant.
d) Other concerns:
i) Conform the sunset date for the Behavior
Analyst Committee to that of the BOP.
ii) Increase public membership of the Behavior
Analyst Committee.
AB 1715 (Holden) Page 30
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iii) Clarify that other treatment modalities
are not eclipsed by this bill.
iv) Clarify that a parent or other designee is
not required to maintain a professional relationship
with a licensed individual in order to implement a
treatment plan.
v) Establish fee schedule in the bill, rather
than by regulation.
6. Related legislation. AB 796 (Nazarian) Requires the
Department of Managed Health Care (DMHC) in conjunction with
the California Department of Insurance (CDI) to develop
procedure codes for evidence-based behavioral health
treatment other than applied behavioral analysis. Requires
DMHC to convene a task force, with CDI as lead agency, to
develop a methodology for determining evidence-based
practices in the field of behavioral health treatment, a list
of modalities to be distributed to health plans, and minimum
education and training standards for qualified autism service
professionals and paraprofessionals practicing behavioral
health treatment other than applied behavior analysis.
Removes the sunset date on coverage for behavioral health
treatment for pervasive developmental disorder or autism
(PDD/A). ( Status : This bill is pending in Senate Health
Committee)
SB 1034 (Mitchell) eliminates the sunset date on the health
insurance mandate to cover behavioral health treatment for
PDD/A, and makes other revisions to the law such as
prohibiting denials for medically necessary behavioral health
treatment based on the setting, location or time of the
treatment. ( Status : This bill is pending in the Assembly
Health Committee.)
7. Previous legislation. SB 479 (Bates) of 2015 was a
substantially similar bill to AB 1715. ( Status : This bill
was held in the Assembly Appropriations Committee.)
AB 1279 (Holden) of 2015 would have established the Music
Therapy Act and provided that only a qualified individual, as
specified, may call himself or herself a "Board Certified
AB 1715 (Holden) Page 31
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Music Therapist." ( Status : This bill was vetoed by the
Governor, who stated "Generally, I have been very reluctant
to add licensing or title statutes to the laws of California.
This bill appears to be unnecessary as the Certification
Board for Music Therapists, a private sector group, already
has defined standards for board certification.")
SB 126 (Steinberg) Chapter 680, Statutes of 2013, extended,
until January 1, 2017, the sunset date of an existing state
health benefit mandate that requires health plans and health
insurance policies to cover behavioral health treatment for
PDD/A and requires plans and insurers to maintain adequate
networks of PDD/A service providers.
SB 946 (Steinberg) Chapter 650, Statutes of 2011, required
health plans and health insurance policies to cover
behavioral health therapy for pervasive developmental
disorder or autism, requires plans and insurers to maintain
adequate networks of autism service providers, established an
Autism Advisory Task Force in the Department of Managed
Health Care, sunsetted this bill's autism mandate provisions
on July 1, 2014, and made other technical changes to existing
law regarding HIV reporting and mental health services
payments.
8. Arguments in Support. >
9. Arguments in Opposition. The Association of Regional Center
Agencies writes, "Once phased in, this bill profoundly
jeopardizes access to critical services for individuals with
a variety of developmental disabilities. It will severely
restrict capacity to provide behavioral health treatments,
and increase General Fund costs by millions of dollars. It
applies to an overly-broad range of individuals. And it
restricts an entire field of treatment to just a single
mode."
State Council on Developmental Disabilities and Disability
Rights California write, "Requiring licensure for all levels
of service providers will increase the cost of care and
reduce the number of trained and available professionals.
There are already long waiting lists for ABA services.
Access will be reduced further if all paraprofessional staff
need licensure. Licensure will also greatly increase costs
AB 1715 (Holden) Page 32
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because providers of applied behavior analysis services will
not be able to continue the same level of care at the
reimbursement rates currently provided by the Regional Center
and Medi-Cal. Only children with private insurance, or
families with high resources, will be able to access
intensive behavioral intervention."
The California Association of Marriage and Family Therapists
write, "While we commend the desire for better protection of
the vulnerable population addressed through AB 1715, and
appreciate the willingness of Assemblymember Holden and the
sponsor to work with us on our concerns, we continue to have
? issues with the bill that we believe will lead to
unintended consequences, as currently written."
The Autism Business Association expresses their concern that
the "current state registration proposed for technicians and
interns may delay these staff members' ability to work with
patients due to the fact that there is no timeline for the
BOP to process applications."
A number of parent-led organizations have concerns with
several aspects of the bill, including the requirements on
the BAT and the timing of the licensing and registration
implementation.
SUPPORT AND OPPOSITION:
Support:
Opposition:
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