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 ----------------------------------------------------------------- |Author: |Holden | |----------+------------------------------------------------------| |Version: |June 9, 2016 > | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Sarah Huchel | |: | | ----------------------------------------------------------------- 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 § AB 1715 (Holden) Page 2 of ? 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 AB 1715 (Holden) Page 3 of ? 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) AB 1715 (Holden) Page 4 of ? 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. AB 1715 (Holden) Page 5 of ? 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 AB 1715 (Holden) Page 6 of ? 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. AB 1715 (Holden) Page 7 of ? 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 AB 1715 (Holden) Page 8 of ? 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 AB 1715 (Holden) Page 9 of ? 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 AB 1715 (Holden) Page 10 of ? 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. AB 1715 (Holden) Page 11 of ? 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 AB 1715 (Holden) Page 12 of ? 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 AB 1715 (Holden) Page 13 of ? 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 AB 1715 (Holden) Page 14 of ? 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 AB 1715 (Holden) Page 15 of ? 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. AB 1715 (Holden) Page 16 of ? 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 AB 1715 (Holden) Page 17 of ? 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. AB 1715 (Holden) Page 18 of ? 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: AB 1715 (Holden) Page 19 of ? 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 of ? 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 of ? 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. AB 1715 (Holden) Page 22 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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 of ? 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: -- END --