BILL ANALYSIS Ó SB 479 Page 1 Date of Hearing: July 7, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair SB 479(Bates) - As Amended June 30, 2015 SENATE VOTE: 40-0 SUBJECT: Healing arts: behavior analysis: licensing SUMMARY: Establishes the Behavior Analyst Act, which provides for the licensure, registration, and regulation of behavior analysts and assistant behavior analysts, and requires the California Board of Psychology (BOP), until January 1, 2021, to administer and enforce the act. EXISTING LAW: 1)Provides for the licensure, registration, and regulation of psychologists and psychological assistants under the Psychology Licensing Law. (Business and Professions Code (BPC) §§ 2900-2999) 2)Establishes the BOP, which consists of nine members, five professional and four public, requires the BOP to enforce and administer the Psychology Licensing Law, repeals those sections by January 1, 2017, and subjects the BOP to review by the appropriate policy committees of the Legislature. (BPC §§ 2902, 2920) SB 479 Page 2 3)Requires the professional board members to be a licensed psychologist, prohibits the public members from being licensees under any healing arts board, and requires each member be a resident of the state. (BPC § 2923) 4)Requires the BOP to disclose information on the status of every license issued its licensees, including psychologists, psychological assistants, and registered psychologists. (BPC § 27) 5)Requires every private health care service plan contract that provides hospital, medical, or surgical coverage and every private health insurance policy to provide coverage for behavioral health treatment for pervasive developmental disorder or autism, including applied behavior analysis (ABA). (Health and Safety Code (HSC) § 1374.73, Insurance Code (IC) § 10144.51) THIS BILL: 6)Increases, on and after July 1, 2017, the number of members on the BOP to 11, and increases the number of members for a quorum to six members. The members must meet the following requirements: a) Be a resident of the state; b) Five members must be licensed psychologists; c) One member must be qualified to practice behavior analysis, as follows: SB 479 Page 3 i) For the first appointment after the operative date of the section, the member must hold a certificate as a certified behavior analyst from a certifying entity, as defined. ii)For subsequent appointments, the member must be licensed as a behavior analyst under the Act. iii)The public members must not be licensees of any healing arts board. 7)Establishes general provisions of the Behavior Analyst Act (Act): a) 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. b) States that it is also the intent of the Legislature that the BOP begin accepting applications for behavior analyst licensure and assistant behavior analyst licensure no later than January 1, 2018, provided that the funds necessary to implement this chapter have been appropriated by the Legislature. c) Defines "board" as the BOP. d) Defines "certifying entity" as the Behavior Analyst Certification Board (BACB) or its successor, or another national credentialing organization with behavior analyst certification programs approved by the board and accredited by the National Commission for Certifying Agencies (NCCA). SB 479 Page 4 e) Defines "committee" as the Behavior Analyst Committee. f) Defines "department" as the Department of Consumer Affairs (DCA). g) Defines "licensed assistant behavior analyst" (LABA) as a person licensed under the Act to practice behavior analysis under the supervision of a licensed behavior analyst. h) Defines "licensed behavior analyst" (LBA) as a person licensed under the Act to practice behavior analysis. i) Defines "paraprofessional technician" as an individual who works directly with a client to implement applied behavior analysis services under the direction and supervision of a LBA or a LABA and has successfully completed the application requirements under the Act. j) Defines "practice of behavior analysis" or "to practice behavior analysis" as the design, implementation, and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior and includes: i) The empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis; ii)Interventions based on scientific research and the direct observation and measurement of behavior and the environment; and SB 479 Page 5 iii)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. aa)Provides that the practice of behavior analysis does not include psychological testing and assessment, diagnosis of a mental or physical disorder, neuropsychology, psychotherapy, cognitive therapy, sex therapy, psychoanalysis, hypnotherapy, counseling, prescribing drugs, performing surgery, or administering electroconvulsive therapy. bb)States that the Legislature recognizes that the scopes of practice of healing arts licensees regulated under this division sometimes contain similar practices. However, the Act shall not be construed to allow a LBA or a LABA to engage in those practices other than specific to their scope of practice within behavior analysis as described under the Act. Any person practicing behavior analysis under the Act who violates the prohibition is subject to disciplinary action by both the BOP and the board overseeing the relevant practice. 8)Establishes the administration provisions of the Act: a) Vests the BOP, until January 1, 2021, with the power to enforce the Act. b) Provides that protection of the public shall be the highest priority for the BOP in exercising its licensing, regulatory, and disciplinary functions pursuant to the Act. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. c) Requires the BOP to adopt, amend, and repeal regulations to implement the requirements of the Act. All regulations SB 479 Page 6 adopted by the BOP shall comply with the provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. d) Requires the BOP to adopt a program of consumer and professional education in matters relevant to the ethical practice of behavior analysis. The BOP must establish as its standards of ethical conduct relating to the practice of behavior analysis, the "Professional and Ethical Compliance Code for Behavior Analysts" published by the Behavior Analyst Certification Board (BACB). The standards must be applied by the BOP as the accepted standard of care in all licensing examination development and in all board enforcement policies and disciplinary case evaluations. e) Authorizes the BOP to employ, subject to civil service and other laws, employees as may be necessary to carry out the provisions of this chapter under the direction of the executive officer of the BOP. f) Requires the BOP to post information in its website regarding licensed behavior analysts and licensed assistant behavior analysts, as specified. g) Requires the BOP to conduct disciplinary hearings, as specified. h) Makes it unlawful, on and after July 1, 2018, to practice behavior analysis without being licensed by the BOP, except as specified. i) Creates, until January 1, 2021, the Behavior Analyst Committee within the jurisdiction of the BOP to make SB 479 Page 7 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 ABA, and unprofessional, unethical, or harmful conduct by persons licensed to practice behavior analysis. j) The committee must consist of five members. Two members must LBAs, one of which must also be a member of the BOP. One member must be a psychologist licensed under BPC Chapter 6.6 (commencing with § 2900) and who holds a current certification from a certifying entity as a behavior analyst. One member must be a licensed assistant behavior analyst. One member must be a public member who is a consumer of behavior analysis services and who is not licensed under a healing arts board. aa)The Governor must appoint one LBA member, the licensed psychologist member, and the LABA member. The Senate Committee on Rules must appoint the public member, and the Speaker of the Assembly must appoint one LBA member. bb)The initially appointed members of the committee shall be appointed as follows: i) The initial members appointed by the Governor shall be as follows: (1)One member must be currently certified by a certifying entity as a certified behavior analyst and shall serve an initial term of one year. (2)One member must be currently certified by a certifying entity as a certified assistant behavior analyst and shall serve an initial term of two years. (3)One member must be a licensed psychologist who is SB 479 Page 8 currently certified by a certifying entity as a certified behavior analyst and shall serve an initial term of three years. ii)The initial member appointed by the Senate Committee on Rules shall serve a term of four years. iii)The initial member appointed by the Speaker of the Assembly shall be currently certified by a certifying entity as a certified behavior analyst and shall serve an initial term of four years. cc)Except as provided, each member of the committee will hold office for a term of four years, and will serve until the appointment of his or her successor or until one year has elapsed since the expiration of the term for which the member was appointed, whichever occurs first. Vacancies must be filled by the appointing power for the unexpired portion of the terms in which they occur. A member may not serve for more than two consecutive terms. dd)Provides that all committee member terms begin on July 1 and expire on June 30. ee)Provides that each member of the committee will receive per diem and expenses as provided in BPC §§ 103 and 113. ff)States that three members of the committee shall at all times constitute a quorum. gg)Requires the committee to do all of the following: i) Meet at least once per quarter. All meetings of the committee shall be public meetings. Notice of each regular meeting of the committee shall be given in SB 479 Page 9 accordance with the Bagley-Keene Open Meeting Act (Article 9 (commencing with § 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). ii)Call committee meetings at any time upon reasonable notice by a written request of two committee members to the chair. Committee meetings may also be called upon reasonable notice at the discretion of the chair. iii)Elect a chair and a vice chair from among its members at the first meeting held in each fiscal year. The chair must preside at all meetings of the committee and must work with the executive officer of the BOP to coordinate the committee's business. If the chair is unable to attend a meeting, the vice chair shall preside at the meeting. hh)Authorizes the committee may make recommendations to the BOP regarding licensing and practice standards and the adoption, amendment, and repeal of regulations to implement the requirements of the Act including the setting of fees and the establishment of disciplinary guidelines. 9)Establishes the licensing provisions of the Act: a) Requires each applicant for a license must meet the BOP's regulatory requirements, including all of the following: i) The applicant has not committed acts or crimes constituting grounds for denial of licensure under BPC § 480. ii)The BOP shall not issue a license or registration to any person who has been convicted of a crime in this state, or another state, or in a territory of the United States that involves sexual abuse of a child, or who is required to register pursuant to § 290 of the Penal Code or the equivalent in another state or territory. iii)The applicant has successfully passed a state and SB 479 Page 10 federal level criminal offender record information search conducted through the Department of Justice, as follows: iv)The BOP shall request from the Department of Justice subsequent arrest notification service, pursuant to § 11105.2 of the Penal Code, for each person who submitted information pursuant to this subdivision. v) The Department of Justice shall charge a fee sufficient to cover the cost of processing the request described in this section. b) Requires, until July 1, 2018, in order to receive a license as a behavior analyst, the following: i) An individual must submit an application on a form approved by the BOP accompanied by the fees required by the BOP as specified in BPC § 2999.93. ii)The BOP must verify with the certifying entity that the applicant meets both of the following requirements: (1)Has passed the Board Certified Behavior Analyst examination or an equivalent examination administered by the certifying entity. (2)Maintains an active status as a certified behavior analyst with the certifying entity. iii)Each applicant must obtain a passing score on a California law and ethics examination administered by the BOP. iv)This requirement will remain in effect until January 1, 2019, and as of that date is repealed. c) Requires, after July 1, 2018, in order to obtain a SB 479 Page 11 license as a behavior analyst: i) An individual must submit an application on a form approved by the BOP accompanied by the fees required by the BOP as specified in BPC § 2999.93. ii)An applicant must maintain active status as a certified behavior analyst in good standing with a certifying entity. iii)The BOP must verify with the certifying entity that the applicant has passed the Board Certified Behavior Analyst Examination or an equivalent examination administered by the certifying entity. iv)Each applicant must obtain a passing score on a California law and ethics examination administered by the BOP. v) The applicant must possess a master's degree or higher level of education from an institution, which meets the requirements described in BPC § 2999.35, that was conferred in behavior analysis, psychology, or education, or conferred in a degree program in which the applicant completed a behavior-analytic course sequence approved by the certifying entity. vi)The applicant must meet one of the following three requirements in order to be licensed under the Act: (1)Complete both of the following degree requirements: (a)Two hundred seventy hours of classroom graduate-level instruction in all of the following content areas: (i)Ethical and professional conduct coursework consisting of 45 hours. The content must be SB 479 Page 12 taught in one or more freestanding courses devoted to ethical and professional conduct of behavior analysts. (ii)Concepts and principles of behavior analysis consisting of 45 hours. (iii)Research methods in behavior analysis, consisting of 25 hours of measurement, including data analysis, and 20 hours of experimental design. (iv)ABA, consisting of 45 hours of fundamental elements of behavior change and specific behavior change procedures, 30 hours of identification of the problem and assessment, 10 hours of intervention and behavior change considerations, 10 hours of behavior change systems, and 10 hours of implementation, management, and supervision. (v)Elective coursework in behavior analysis consisting of 30 hours. (b)Supervised experiential training by any of the following: (i)One thousand five hundred hours of independent field work in behavior analysis supervised in accordance with the requirements of the certifying entity. (ii)One thousand hours of supervised practicum in behavior analysis within a university practicum approved by the certifying entity, taken for graduate academic credit, and completed with a passing grade. SB 479 Page 13 (iii)Seven hundred fifty hours of supervised intensive practicum in behavior analysis within a university practicum approved by the certifying entity, taken for graduate academic credit, and completed with a passing grade. (iv)A combination of the supervised experience in clause (i), (ii), or (iii). Hours may be completed in any combination of the categories of supervised experience. Hours accrued through a combination of supervised experience shall be proportionately calculated. (2)Meet all of the following teaching requirements: (a)Have 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. (b)Taught at least five sections or iterations of behavior analytic coursework. An applicant must have taught at least two behavior analytic content areas, which are concepts and principles of behavior, single-subject research methods, applied behavior analysis, and ethics in behavior analysis, in separate courses. Each course taught shall have been exclusively or primarily devoted to behavior analytic content, and shall have been taught at the graduate level. An applicant shall submit proof of completion of the faculty appointment and teaching requirements from a department head, including the syllabus for each course taught, to the board. (c)Published one article with all of the following characteristics: SB 479 Page 14 (i)Behavior analytic in nature. (ii)Includes at least one experimental evaluation. (iii)Published in a high-quality, peer reviewed journal. (iv)The applicant is the first, second, or corresponding author. (v)The article may have been published at any time during the applicant's career. (d)Obtained supervised experiential training by any of the following: (i)One thousand five hundred hours of independent field work in behavior analysis supervised in accordance with the requirements of the certifying entity. (ii)One thousand hours of supervised practicum in behavior analysis within a university practicum approved by the certifying entity, taken for graduate academic credit, and completed with a passing grade. (iii)Seven hundred fifty hours of supervised intensive practicum in behavior analysis within a university practicum approved by the certifying entity, taken for graduate credit, and completed with a passing grade. (iv)A combination of the supervised experience in clause (i), (ii), or (iii). Hours may be completed in any combination of the categories of SB 479 Page 15 supervised experience. Hours accrued through a combination of supervised experience shall be proportionately calculated. (3)Completed all of the following doctoral requirements: (a)A doctoral degree in behavior analysis, psychology, or education from an accredited higher education institution. (b)Ten years of postdoctoral experience practicing behavior analysis. The duration of practice shall be at least 10 years, cumulatively, of full-time practice. An applicant's practice shall have occurred under a relevant state professional credential or license. (c) 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 required above. d) Requires, until July 1, 2018, to obtain a license as an assistant behavior analyst: i) An individual must submit an application on a form approved by the BOP accompanied by the fees required by the BOP as specified in BPC § 2999.93. ii)The BOP must verify with the certifying entity that the applicant meets all of the following requirements: (1)Has passed the Board Certified Assistant Behavior Analyst examination or equivalent examination administered by the certifying entity. (2) Maintains an active status as a certified assistant behavior analyst with the certifying entity. SB 479 Page 16 iii) Each applicant must obtain a passing score on a California law and ethics examination administered by the BOP. iv)Each applicant must provide proof to the BOP of ongoing supervision by a LBA in a manner consistent with the certifying entity's requirements for supervision of assistant behavior analysts. v) This requirement will remain in effect only until January 1, 2019, and as of that date is repealed. e) Requires, after July 1, 2018, in order for an individual to be licensed as an assistant behavior analyst: i) The applicant must possess a baccalaureate degree or higher level of education from an institution that meets the requirements described in BPC § 2999.35. ii)The applicant must maintain active status as a certified behavior analyst in good standing with a certifying entity. The BOP must verify with the certifying entity that the applicant has passed the Board Certified Behavior Analyst Examination or an equivalent examination administered by the certifying entity. iii)The applicant must obtain a passing score on a California law and ethics examination administered by the BOP. iv)The applicant shall provide proof to the BOP of ongoing supervision by a LBA in a manner consistent with the certifying entity's requirements for supervision of assistant behavior analysts. v) The applicant must meet all of the following SB 479 Page 17 requirements: (1)Completed a baccalaureate degree or higher level of education from an institution that meets the requirements in Section 2999.35. (2)An applicant shall meet both of the following: (a)Completed 180 classroom hours of undergraduate or graduate level instruction in all of the following content areas: (i)Ethical and professional conduct coursework of behavior analysis consisting of 15 hours. (ii)Concepts and principles of behavior analysis consisting of 45 hours. (iii)Research methods in behavior analysis, consisting of 10 hours of measurement, including data analysis, and five hours of experimental design. (iv)ABA, consisting of 45 hours of fundamental elements of behavior change and specific behavior change procedures, 30 hours of identification of the problem and assessment, five hours of intervention and behavior change considerations, five hours of behavior change systems, and five hours of implementation, management, and supervision. (v)Elective coursework in behavior analysis consisting of 15 hours. (b)Obtained supervised experiential training by any of SB 479 Page 18 the following: (i)One thousand hours of independent field work in behavior analysis supervised in accordance with the requirements of the certifying entity, taken for academic credit, and completed with a passing grade. (ii)Six hundred seventy hours of supervised practicum in behavior analysis within a university practicum approved by the certifying entity, taken for academic credit, and completed with a passing grade. (iii)Five hundred hours of supervised intensive practicum in behavior analysis within a university practicum approved by the certifying entity, taken for academic credit, and completed with a passing grade. (iv)A combination of the supervised experience in clause (i), (ii), or (iii). Hours may be completed in any combination of the categories of supervised experience. Hours accrued through a combination of supervised experience shall be proportionately calculated. f) Provides that the education to obtain a behavior analyst license or an assistant behavior analyst license be from any of the following: i) A United States institution of higher education listed by the Council for Higher Education Accreditation. ii)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. iii)An applicant for licensure trained in an educational SB 479 Page 19 institution outside the United States or Canada shall demonstrate to the satisfaction of the BOP that the applicant 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. The applicant must provide to the BOP 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. g) Requires paraprofessional technicians practicing in this state under the supervision of an individual licensed under the Act to satisfy all of the following requirements: i) Be at least eighteen years of age and possess a minimum of a high school diploma or its equivalent. ii)Submit an application on a form approved by the BOP. iii)Submit fingerprint images to the California Department of Justice for a state and federal criminal background report within fourteen days from the date of application. iv)Annually pay an application fee, in an amount not to exceed a reasonable regulatory cost, to be determined by the board. v) The BOP may deny or revoke an application if it is determined to be in the best interest of public safety and welfare, as described in § 2999.21. h) Makes it unlawful, on and after July 1, 2018, for any person to engage in any of the following acts: i) Engage in the practice of behavior analysis, as defined, without first having complied with the SB 479 Page 20 provisions of this chapter and without holding a current, valid, and active license as required by the Act. ii)Use the title "licensed behavior analyst," or "licensed assistant behavior analyst" without being duly licensed according to the Act. iii)Use any title, words, letters, or abbreviations that may reasonably be confused with a designation provided by the Act to denote a standard of professional or occupational competence without being duly licensed. iv)Materially refuse to furnish the BOP information or records required or requested pursuant to the Act. i) Excludes the following from the licensure requirements: i) An individual licensed to practice psychology in this state under BPC Chapter 6.6 (commencing with Section 2900), if the practice of behavior analysis engaged in by the licensed psychologist is within the licensed psychologist's training and competence. ii)A speech-language pathologist or an audiologist licensed under Chapter 5.3 (commencing with Section 2530), an occupational therapist licensed under Chapter 5.6 (commencing with Section 2570), a physical therapist licensed under Chapter 5.7 (commencing with Section 2600), a marriage and family therapist licensed under Chapter 13 (commencing with Section 4980), an educational psychologist licensed under Chapter 13.5 (commencing with Section 4989.10), a clinical social worker licensed under Chapter 14 (commencing with Section 4991), or a professional clinical counselor licensed under Chapter 16 (commencing with Section 4999.10), 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 behavior SB 479 Page 21 analyst or licensed assistant behavior analyst. iii)A student or other individual pursuing supervised experiential training toward a license described in the Act, provided such training is conducted in accordance with the requirements of the Act. iv)A student, or post-graduate individual, pursuing supervised experience in behavior analysis toward a license. The experience must be gained in accordance with the experience and supervision requirements of the respective healing arts licensure act for the license. v) A parent or guardian of a recipient of behavior analysis services who acts under the extended authority and direction of a licensed behavior analyst or licensed assistant behavior analyst. vi)A matriculated college or university student who practices behavior analysis as a part of a defined program of study, course, practicum, internship, or postdoctoral trainee, provided that the behavior analysis activities are directly supervised by a licensed behavior analyst, a licensed psychologist, or by an instructor in a course sequence approved by the certifying entity. vii)An individual who teaches behavior analysis or conducts behavior analytic research, provided that the teaching or research does not involve the direct delivery of behavior analysis services. viii)A behavior analyst 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 SB 479 Page 22 more than 90 days in a calendar year. ix)An individual who is vendorized by one or more regional centers of the State Department of Developmental Services while practicing behavior analysis services authorized under that vendorization. The individual may not represent himself or herself as a LBA or LABA 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 regional centers with which he or she is vendorized or accept remuneration for providing behavior analysis services other than the remuneration received from those regional centers unless he or she holds a license under this chapter. x) An individual employed by a local educational agency for the purpose of assisting students with behavioral and developmental issues when in classroom and other school settings. j) Requires a licensee 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, must be submitted with the notice. aa)Establishes the following regarding license renewals: i) A license will expire and become invalid two years after it is issued at 12 midnight on the last day of the month in which it was issued, if not renewed. ii)To renew an unexpired license, the licensee must, on or before the date on which it would otherwise expire, apply for renewal on a form provided by the BOP, accompanied by the renewal fee set by the BOP. The licensee must include verification from the certifying entity that he or she maintains an active certification status with the renewal form. SB 479 Page 23 iii)To renew an assistant behavior analyst license, in addition to the above requirements, the licensee must submit proof of ongoing supervision by a LBA or a licensed psychologist who is qualified to practice behavior analysis in a manner consistent with the CBA's requirements for supervision of assistant behavior analysts. A LABA must be supervised by a LBA for at least 2 percent of the hours of behavior analysis services the LABA provides per month. iv)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 the delinquency fee specified in BPC § 2999.93. The licensee must include verification from the certifying entity that the licensee maintains an active certification status with the renewal form. v) Except as provided in BPC § 2999.46.5, a license that is not renewed within three years of its expiration shall not be renewed, restored, or reinstated, and the license shall be canceled immediately upon expiration of the three-year period. vi)A suspended license is subject to expiration and must be renewed as provided, but the 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. vii)A license revoked on disciplinary grounds is subject to expiration as provided, but it may not be renewed. If it is reinstated after its expiration, the licensee, as a SB 479 Page 24 condition of reinstatement, must pay a reinstatement fee in an amount equal to the renewal fee, plus the delinquency fee, and any fees accrued at the time of its revocation. bb)Establishes the following regarding continuing education (CE): i) The BOP may not issue any renewal license, a new license after expiration of an expired license, or a reinstatement license unless the applicant submits proof that the applicant has completed not less than 32 hours of approved CE in the preceding two-year licensure cycle for LBAs and 20 hours of approved CE in the preceding two-year licensure cycle for LABAs. ii)Each person renewing or reinstating his or her license or obtaining a new license after expiration of a prior license issued pursuant to the act must submit proof of compliance with the CE requirements to the BOP. iii)A person applying for renewal, a new license after expiration of a prior license, or reinstatement to an active license status must certify under penalty of perjury that the person is in compliance with the CE requirements. iv)The BOP may recognize CE courses that have been approved by one or more private nonprofit organizations that have at least 10 years' experience managing continuing education programs for behavior analysts. v) The BOP may adopt regulations as necessary for implementation of this requirement. 10) Establishes the enforcement SB 479 Page 25 provisions of the Act: a) Provides that the BOP may on its own, and shall, upon the receipt of a complaint from any person, investigate the actions of any licensee. The BOP must 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 this article. b) Provides that a license issued under the Act 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 board for licensure or submitted to the certifying authority for certification. c) Authorizes the BOP to deny a license application, issue a license with terms and conditions, suspend or revoke a license, or place a license on probation if the applicant or licensee has been guilty of unprofessional conduct. d) Defines unprofessional conduct to include: i) Conviction of a crime substantially related to the qualifications, functions, or duties of a LBA or a LABA. ii)Use of any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, 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. iii)Fraudulently or neglectfully misrepresenting the type or status of a license actually held. SB 479 Page 26 iv)Impersonating another person holding a license or allowing another person to use his or her license. v) Use of fraud or deception in applying for a license or in passing any examination required by this chapter. vi)Paying, offering to pay, accepting, or soliciting any consideration, compensation, or remuneration, whether monetary or otherwise, for the referral of clients. vii)Violating Section 17500. viii)Willful, unauthorized communication of information received in professional confidence. ix)Violating any rule of professional conduct promulgated by the board and set forth in regulations duly adopted under this chapter. x) Being grossly negligent in the practice of his or her profession. xi)Violating any of the provisions of the Act or regulations adopted by the BOP. xii)The aiding or abetting of any person to engage in the unlawful practice of behavior analysis. xiii)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 SB 479 Page 27 that state or country to a person also holding a license issued under the Act if the act for which the disciplinary action was taken constitutes unprofessional conduct. A certified copy of the decision or judgment of the other state or country must be conclusive evidence of that action. xiv)The commission of any dishonest, corrupt, or fraudulent act. xv)Any act of sexual abuse or sexual relations with a patient or former patient within two years following termination of therapy, or sexual misconduct that is related to the qualifications, functions, or duties of a LBA or a LABA. xvi)Functioning outside of his or her particular field or fields of competence as established by his or her education, training, and experience. xvii)Willful failure to submit, on behalf of an applicant for licensure, verification of supervised experience to the board. xviii) Repeated acts of negligence. xix)Failure to comply with all ethical and disciplinary standards published by the certifying entity. e) Establishes the following enforcement procedures: i) Defines "health care facility," for purposes of the enforcement rules, as a clinic or health facility licensed or exempt from licensure pursuant to Division 2 (commencing with § 1200) of the Health and Safety Code. ii)Any accusation filed against a licensee pursuant to § 11503 of the Government Code shall be filed within three years 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. iii)An accusation filed against a licensee pursuant to § SB 479 Page 28 11503 of the Government Code alleging the procurement of a license by fraud or misrepresentation is not subject to the limitations above. iv)The limitation provided for will be tolled for the length of time required to obtain compliance when a report required to be filed by the licensee or registrant with the BOP pursuant to BPC Article 11 (commencing with § 800) of Chapter 1 is not filed in a timely fashion. v) If an alleged act or omission involves a minor, the seven-year limitations period and the 10-year limitations period will be tolled until the minor reaches the age of majority. vi)An accusation filed against a licensee pursuant to § 11503 of the Government Code alleging sexual misconduct shall be filed within three years after the BOP discovers the act or omission alleged as the ground for disciplinary action, or within 10 years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. vii)The limitations period provided above will be tolled during any period if material evidence necessary for prosecuting or determining whether a disciplinary action would be appropriate is unavailable to the BOP due to an ongoing criminal investigation. viii)Any proposed decision or decisions issued under the Act in accordance with the procedures set forth in Chapter 5 (commencing with § 11500) of Part 1 of Division 3 of Title 2 of the Government Code that contains any finding of fact that the licensee engaged in any act of SB 479 Page 29 sexual contact, as defined in BPC § 728, when that act is with a patient, or with a former patient, within two years following termination of services, shall contain an order of revocation. The revocation shall not be stayed by the administrative law judge. f) 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 provided in BPC § 2999. g) Provides 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 LBA or LABA is deemed to be a conviction. The BOP may order the license suspended or revoked, or may 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 § 1203.4 of the Penal Code 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. h) Provides that any person required to register as a sex offender pursuant to § 290 of the Penal Code, is not eligible for licensure by the BOP. i) Defines an administrative disciplinary decision that imposes terms of probation to include, among other things, a requirement that the licensee who is being placed on probation pay the monetary costs associated with monitoring the probation. j) Requires that the proceedings under the Act must be conducted by the BOP in accordance with Chapter 5 SB 479 Page 30 (commencing with § 11500) of Part 1 of Division 3 of Title 2 of the Government Code. aa)Provides that a person who violates any of the provisions of this chapter is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that fine and imprisonment. bb)Provides that whenever any person has engaged, or is about to engage, in any acts or practices that constitute, or will constitute, an offense under the Act, the superior court in and for the county wherein the acts or practices take place, or are about to take place, may issue an injunction or other appropriate order restraining that conduct on application of the BOP, the Attorney General, or the district attorney of the county. The proceedings will be governed by Chapter 3 (commencing with § 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that it will be presumed that there is no adequate remedy at law and that irreparable damage will occur if the continued violation is not restrained or enjoined. On the written request of the BOP, or on its own motion, the BOP may commence an action in the superior court. cc)Provides that a licensee who fails or refuses to comply with a request for the medical records of a client, that is accompanied by that client's written authorization for release of those records to the BOP, within 15 days of receiving the request and authorization, must pay to the board a civil penalty of one thousand dollars ($1,000) per day for each day that the documents have not been produced after the 15th day, unless the licensee is unable to provide the documents within this time period for good cause. SB 479 Page 31 dd)Requires a health care facility to comply with a request for the medical records of a client that is accompanied by that client's written authorization for release of records to the board together with a notice citing this section and describing the penalties for failure to comply with this section. Failure to provide the authorizing client's medical records to the CBA within 30 days of receiving the request, authorization, and notice will subject the health care facility to a civil penalty, payable to the BOP, of up to one thousand dollars ($1,000) per day for each day that the documents have not been produced after the 30th day, up to ten thousand dollars ($10,000), unless the health care facility is unable to provide the documents within this time period for good cause. This paragraph does not require health care facilities to assist the BOP in obtaining the client's authorization. The BOP shall pay the reasonable costs of copying the medical records. ee)A licensee who fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the BOP shall: i) Pay to the BOP a civil penalty of one thousand dollars ($1,000) per day for each day that the documents have not been produced after the date by which the court order requires the documents to be produced, unless it is determined that the order is unlawful or invalid. Any statute of limitations applicable to the filing of an accusation by the board shall be tolled during the period the licensee is out of compliance with the court order and during any related appeals; and, ii)Be subject to a civil penalty, payable to the CBB, of not to exceed five thousand dollars ($5,000). The amount of the penalty shall be added to the licensee's renewal fee if it is not paid by the next succeeding renewal date. Any statute of limitations applicable to the SB 479 Page 32 filing of an accusation by the board shall be tolled during the period the licensee is out of compliance with the court order and during any related appeals. iii)Shall be a misdemeanor, if there are multiple violations, punishable by a fine not to exceed five thousand dollars ($5,000) or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. ff)A health care facility that fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of client records to the BOP: i) Shall pay to the BOP, if accompanied by a notice citing this requirement and describing the penalties for failure to comply with this section, a civil penalty of up to one thousand dollars ($1,000) per day for each day that the documents have not been produced, up to ten thousand dollars ($10,000), after the date by which the court order requires the documents to be produced, unless it is determined that the order is unlawful or invalid. Any statute of limitations applicable to the filing of an accusation by the BOP against a licensee shall be tolled during the period the health care facility is out of compliance with the court order and during any related appeals. ii)Be subject to a civil penalty, payable to the board, of not to exceed five thousand dollars ($5,000). Any statute of limitations applicable to the filing of an accusation by the BOP against a licensee shall be tolled during the period the health care facility is out of compliance with the court order and during any related appeals. iii)Shall be a misdemeanor, if there are multiple SB 479 Page 33 violations, punishable by a fine not to exceed five thousand dollars ($5,000) and will be reported to the State Department of Health Care Services and will be considered as grounds for disciplinary action with respect to licensure, including suspension or revocation of the license or certificate. gg)Provides that a failure or refusal of a licensee to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the BOP constitutes unprofessional conduct and is grounds for license suspension or revocation. hh)Requires the imposition of the civil penalties be in accordance with the Administrative Procedure Act (Chapter 5 (commencing with § 11500) of Part 1 of Division 3 of Title 2 of the Government Code). 11) Establishes the revenue provisions of the Act: a) Requires the BOP to report each month to the Controller the amount and source of all revenue received pursuant to this chapter and at the same time deposit the entire amount thereof in the State Treasury for credit to the Psychology Fund established by BPC § 2980. b) Requires the moneys credited to the Psychology Fund under BPC § 2999.90, upon appropriation by the Legislature, be used for the purposes of carrying out and enforcing the provisions of this chapter. c) 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 DCA no later than May 31 of each year. SB 479 Page 34 d) 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 the BOP related to administering the Act. The fees shall be fixed by the BOP in regulations that are duly adopted under the Act. Fees assessed may not exceed the following: i) The delinquency fee shall be 50 percent of the biennial renewal fee. ii)The fee for rescoring an examination shall be twenty dollars ($20). iii)The fee for issuance of a replacement license shall be twenty dollars ($20). iv)The fee for issuance of a certificate or letter of good standing shall be twenty-five dollars ($25). e) Provides that a person licensed under the Act is exempt from the payment of the renewal fee in any of the following instances: i) While engaged in full-time active service in the United States Army, Navy, Air Force, or Marine Corps. ii)While in the United States Public Health Service. iii)While a volunteer in the Peace Corps or AmeriCorps VISTA. f) Provides that every person exempted from the payment of the renewal fee may not engage in any private practice and 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 will have a period of 60 days SB 479 Page 35 after becoming liable within which to pay the fee before the delinquency fee becomes applicable. Any person who completes the 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. g) Provides that the time spent in that full-time active service or full-time training and active service shall not be included in the computation of the three-year period for renewal of an expired license specified in BPC § 2999.45. h) Provides that the exemption provided are not 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. i) Requires the licensing and regulatory program under the Act to be supported from fees assessed to applicants and licensees. Startup funds to implement this program must be derived, as a loan, from the Psychology Fund, subject to an appropriation by the Legislature in the annual Budget Act. The BOP may not implement the Act until funds have been appropriated. 12) States that no reimbursement is required by this bill pursuant to § 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of § 17556 of the Government Code, or changes the definition of a crime within the meaning of § 6 of Article XIIIB of the California Constitution. FISCAL EFFECT: According to the Senate Appropriations SB 479 Page 36 Committee, this bill will result in one-time costs of about $1.7 million and ongoing costs of about $1 million per year to license and regulate behavior analysts and assistant behavior analysts. The costs would ultimately be offset by licensing fees. There will also be no significant increase in costs to provide applied behavior analysis services under the Medi-Cal program or through the Department of Developmental Services. COMMENTS: Purpose. This bill is sponsored by the California Association for Behavior Analysis . According to the author, "California law mandates that health plans and health insurance policies cover behavioral health treatment for autism. This mandate has substantially increased demand for [ABA] services. With the increased demand, there is a greater need to regulate the behavior analysis profession, and to protect autistic children and others who can benefit from [ABA] treatment from people who falsely claim that they are qualified to practice behavior analysis. To protect the public from the unauthorized and unqualified practice of behavior analysis, and from unprofessional, unethical or harmful conduct by licensees, [this bill] will create licensure for behavior analysts, with regulation under the [BOP]. While [ABA] can help various populations achieve improvements to socially significant behaviors, it is most commonly recognized for helping autistic children foster basic skills, such as looking, listening and imitating, as well as develop and improve complex skills, such as reading, conversing, and understanding another person's perspective. Research shows that early, intensive [ABA] treatment can produce significant improvements in the overall functioning of young children with autism, when that treatment is designed and supervised by qualified professional behavior analysts. By contrast, studies have shown that early 'behavioral' interventions by unqualified individuals SB 479 Page 37 produced no improvements in young children with autism. This reinforces why it is important for qualified behavior analysts to be distinguished from unqualified practitioners through licensing and regulation." Background. According to the American Psychological Association, behavior analysis is the study of behavior. The clinical practice of behavior analysis, called ABA, applies basic psychological principles of learning and association to change the behavior of an individual. For example, a behavior analyst may train a child (conditioning) to respond to things in the environment (stimuli) in a desirable way by offering praise when the desirable behavior occurs (positive reinforcement). In early psychology, behaviorism was an approach that sought to find connections between environment and behavior. Because behaviorism was a bottom-up approach, it focused on observable behaviors rather than the internal state of mind. Behaviorism-driven research produced principles and behavioral techniques that could be used to manage and modify behavior in humans without addressing inner thoughts. The application of the research to the clinical setting led to the practice of behavioral management and modification, or behavior therapy. Modern psychology departed from the behavior-only model with the social learning theory (social cognitive theory). Social learning theory combines behavior principles with principles of cognitive psychology (the science of mental thoughts). As a result, many modern psychological behavioral therapies often incorporate a cognitive component. For instance, one popular form of psychotherapy is cognitive behavioral therapy (CBT), in which a therapist attempts to solve a client's problem by addressing both thought patterns and behaviors. ABA, however, remains focused on the behavior-only model and has become a standalone profession. SB 479 Page 38 Board Certification of Behavior Analysts. ABA is a relatively new profession, and there is only one certification board for behavior analysts, the Behavior Analyst Certification Board (BACB). The BACB is a nonprofit 501(c)(3) corporation established in 1998 that is accredited by the National Commission for Certifying Agencies Accreditation (NCCA). The BACB provides certifications for professional behavior analysts and approves school programs for behavior analysis. Because the BACB is currently the only NCCA accredited program that provides behavior analysis certifications, this bill was crafted to closely match the BACB's requirements. The BACB provides four types of credentials: (1) board certified behavior analyst (BCBA); (2) board certified assistant behavior analyst (BCaBA); (3) registered behavior technicians (RBTs); and (4) the doctoral-level BCBA ( BCBA-D). The BACB requirements for the initial certification and renewal of BCBA and BCaBA certifications are nearly identical to the requirements for LBAs and LABAs under this bill. The BACB requirements for RBTs are similar to the paraprofessional technician, except that the BACB requires a 40-hour training program and a competency assessment, while this bill does not. The BCBA-D designation requires specific requirements above the regular BCBA and would qualify for licensure under this bill. ABA and PDD/ASD. As noted above, ABA is a relatively new profession and its specific therapies have only recently gained popularity. Prior to SB 946 (Steinberg), Chapter 650, Statutes of 2011, health plans in California were not required to provide behavioral health treatments (BHTs) for pervasive developmental disorders (PDD) or autism spectrum disorder (ASD). SB 479 Page 39 While behavioral health therapies were popular, they were often not covered for PDD and ASD because they were considered habilitative. In contrast to rehabilitative services, habilitative services aim to bring an individual's functioning above what the individual's normal development provides. As a result, many plans did not consider them medically necessary. This is salient because medical necessity is often required for reimbursement. Further, the efficacy of many BHTs for PDD and ASD is difficult to prove, given the wide range of diagnoses, settings, and therapies (See California Health Benefits Review Program Analyses (CHBRP) for SB 126, SB 796, AB 2041). However, after SB 946 and the subsequent behavioral health mandate bills passed, the use of BHTs such as ABA increased. In addition, last year the federal Centers for Medicare and Medicaid Services (CMS) wrote that BHTs such as ABA-based therapies are now covered under the Medicaid benefit for children, Early and Periodic, Screening, Diagnosis, and Treatment. Consequently, health plans and providers were required to begin implementing BHT providers, including low-level providers, to provide coverage for the benefit. Because some of the most popular behavioral health treatments specific to PDD and ASD are ABA-based, the utilization of BHT providers like BCBAs has increased. However, while ABA is often referred to as a specific form of treatment, it is actually a discipline that includes many behavioral therapies, such as: 13)Discrete Trial Training-a style of teaching that uses a series of trials to teach each step of a desired behavior or response. Lessons are broken down into their simplest parts and positive reinforcement is used to reward correct answers and behaviors. Incorrect answers are ignored. 14)Verbal Behavior-focuses on teaching language using a sequenced curriculum that guides children from simple verbal SB 479 Page 40 behaviors (echoing) to more functional communication skills through techniques such as errorless teaching and prompting. 15)Pivotal Response Training-aims at identifying pivotal skills, such as initiation and self-management, that affect a broad range of behavioral responses. This intervention incorporates parent and family education aimed at providing skills that enable the child to function in inclusive settings. Still, not all behavioral therapies are based on ABA, such as DIR/Floortime. Further, ABA's practice is not confined to the treatment of PDD and ASD. Scope of Practice of Behavior Analysts. While ABA is most popular for PDD and ASD treatments, it is much broader. According to the BACB, the application of ABA can be used in "building the skills and achievements of children in school settings; enhancing the development, abilities, and choices of children and adults with different kinds of disabilities; and augmenting the performance and satisfaction of employees in organizations and businesses." However, because ABA principles are basic principles of learning that can be utilized in many other fields and therapies, there is significant overlap in other fields. For instance, because ABA sticks to the behavior-only model, it is often seen as a field that is distinguishable from psychology. Still, its basic principles are built into many psychological approaches, such as industrial-organizational (I/O) psychology and behavioral and cognitive psychology-industrial organizational psychologists specialize in behavior in the work place, and behavioral and cognitive psychologists specialize in ABA, behavior therapy, and cognitive therapy. SB 479 Page 41 As a result, in California, it is the unlicensed practice of psychology to perform behavioral therapies without meeting the requirements of the Psychology Licensing Law. While many providers that currently provide ABA-based behavioral interventions are licensed psychologists, a BCBA that is not licensed in psychology risks falling within the scope of practice of psychology. Therefore, this bill places the regulation of behavior analysts under the BOP. Still, because there are many other types of behavior therapies, there may be overlap in many other professions as well. Therefore, this bill also provides a list of exemptions for other professions, including: 16)Speech-language pathologists or audiologists; 17)Occupational therapists; 18)Physical therapists; 19)Marriage and family therapists; 20)Educational psychologists; 21)Clinical social workers; and, 22)Professional clinical counselors. However, as noted above, there are other types of BHTs that are not considered ABA. Therefore, this bill may also unintentionally impact other providers that provide BHTs, which may not be licensed. SB 479 Page 42 Need for Licensure. The sponsors also note that as of March 18, 2014, there were 2,198 practitioners in California certified by the [BACB], including 1779 BCBAs, 269 BCBA-Ds, and 150 BCaBAs. It is unclear how many other uncertified providers there may be. The U.S. Bureau of Labor Statistics does not currently track behavior analysts or behavioral therapists as their own profession. They are currently tracked under the psychologist categorization. According to the sponsor's sunrise report, "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 oversee that practice, consumers will be at increasing risk of harm from individuals making false claims to be qualified to provide ABA services." Further, ABA is a practice rather than a specific treatment, the other aspects of ABA-practice may be overlooked. However, under existing law, the BOP has the authority to require ABA practitioners to become licensed as psychologists. In the past, the BOP has pursued cases of unlicensed behavior therapy. In addition, because of the recent rise in the practice of ABA services for PDD and ASD, the health industry regulates many ABA practitioners through reimbursement rates and plan-provider contracts. Other States. Currently 19 other states either license or certify ABA practitioners. In six states, they are regulated by a psychology board (AZ, MO, ND, NV, OH, TN). In seven states, they are regulated under a behavior analysis board (AL, KY, LA, SB 479 Page 43 NY, OK, OR, RI). In the remainder of the states, they are either issued direct licenses (AK, WI) or licensed under the behavioral sciences board (KS), the allied mental health board (MA), or the medical board (VA). Current Related Legislation. AB 796 (Nazarian), of this legislative session, expands the eligibility for a person to be a qualified autism service professional to include a person who possesses a bachelor of arts or science degree and meets other specified requirements, a registered psychological assistant, a registered psychologist, or an associate clinical social worker. The bill also expands the eligibility for a person to be a qualified autism service paraprofessional to include a person with a high school diploma or equivalent and, among other things, 6 months experience working with persons with developmental disabilities. STATUS: This bill was held in the Assembly Business and Professions Committee. Prior Related Legislation. SB 126 (Steinberg), Chapter 680, Statutes of 2013, extended the operation of the BHT mandate until January 1, 2017. AB 1205 (Berryhill) of 2011 would have provided for the licensure and regulation of behavior analysts under the Board of Behavioral Sciences. NOTE: This bill was held in the Assembly Appropriations Committee. AB 2041(Jones) of 2011 would have required that a regional center classify a vendor as a behavior management consultant or behavior management assistant if the vendor designs or implements evidence-based behavioral health treatment, has a specified amount of experience in designing or implementing that treatment, and meets other licensure and education requirements. NOTE: This bill was held in the Senate Appropriations Committee. SB 479 Page 44 SB 946 (Steinberg), Chapter 650, Statutes of 2011, among other things, mandated health care service plan contracts and health insurance policies, except as specified, to provide coverage for BHT, as defined, for PDD or ASD. ARGUMENTS IN SUPPORT: The California Association for Behavior Analysis (sponsor) writes in support, "Behavior analysts and assistant behavior analysts who are certified by the national [BACB] provide the vast majority of ABA services. Though accredited and certified, these professionals are not licensed or regulated by the state. [This bill's] licensure requirement would provide both the state of California and its resident's additional consumer protections and recourse when there are concerns with the services provided by behavior analysts and assistant behavior analysts. At the same time, this bill would not preclude other licensed professionals from providing behavior analysis services." ARGUMENTS IN OPPOSITION: None on file. POLICY ISSUES FOR CONSIDERATION: Regional Center Exemption. This bill exempts individuals vendorized through the regional centers from the licensure requirements. However, it is not clear that the regional centers need to be excluded. Therefore, the BOP requests that SB 479 Page 45 the exemption be deleted. According to the BOP, "A key component of the consumer protection mandate of the [BOP] is the jurisdiction the [BOP] has over an individual's license to ensure minimal competency. Exempting an entire category from licensure because of their relationship to the regional centers potentially places a large number of ABA practitioners beyond the [BOP's] jurisdiction and does not ensure minimal competency of these individuals. The BOP is aware of concerns regarding access to care. However, if the legislature believes minimum standards of competency must be obtained by an individual to provide ABA services to the public, the threshold for such services should not be determined by one's financial status or insurance. Californians should be confident that applied behavior analysis services are being given by a trained, ethical individual free of criminal history. Additionally, financially disadvantaged individuals should not be deprived of the ability to pursue administrative action if there is a deviation from the standard of care." While there may be concerns surrounding the continuity of care for regional center clients, even if many providers vendorized with the regional centers do not meet the requirements for licensure, they can still register as a paraprofessional and continue to practice under supervision of a licensed professional. According to the BOP, registration should not be a financial burden. The BOP has calculated that the registration fees will come out to about fifty (50) dollars. Providers that cannot meet license requirements or are not being supervised may not be qualified to provide for the regional center clients. Therefore, the Committee may wish to consider whether, if behavior analysts should be licensed, vendorized regional center providers should be exempted. SB 479 Page 46 Therapist/Client Privilege. While many other counselors and therapists have a professional/client privilege, this bill does not include a privilege clause for LBAs and LABAs (like psychologists have in BPC § 2918). Therefore, the BOP has requested that a privilege clause is added. The purpose of privilege is to protect client records and ensure that patients are not deterred from being candid with their therapist. However, this is a new licensure scheme and a relatively new profession. Further, the nature of the information disclosed to a licensee of this bill is different from that disclosed to a mental health therapist as the treatment is purely behavioral in nature. In addition, client records, which include confidential information such as diagnoses, will still be protected by the privilege that licensed psychologists are psychiatrists may exercise. As a result, it is not clear that the nature of the information shared between a licensee under this bill and a client merits a privilege clause. However, the Committee may wish consider whether there should be a privilege clause for this new category of licensure. Unintended Effect on Other BHT Providers. Due to the fact that so many licensed providers have asked for specific exclusions from the licensure requirements for a LBA and LABA, this bill may have an unintended consequence of negatively impacting other types of BHT providers that may fall under the ABA scope of practice, such as DIR/Floortime providers. For example, the legitimacy that licensure provides ABA providers may result in unintentional discrimination against other BHT modalities as lay persons may assume that ABA is a more effective treatment for autism or other developmental disabilities versus other BHTs. AMENDMENTS: SB 479 Page 47 LABA License Renewal Supervision. Under BPC § 2999.44(c), this bill allows a LABA to submit proof of ongoing supervision a LBA or a licensed psychologist who is qualified to practice behavior analysis when renewing a license. However, it also requires that a LABA be supervised by a LBA for at least two percent of the hours of behavior-analytic services they provide per month. As written, this bill provides no clear distinction between a LBA and a licensed psychologist that is qualified to practice behavior analysis. Under the current scheme, the psychology scope of practice is much more broad. Additionally, psychologists are the provider that will make the initial diagnosis. Therefore, there is no reason to require a LABA to be supervised by a LBA if they are already being supervised by a qualified psychologist. While the two percent requirement may be consistent with the BACB's requirements, it does not leave the door open for other certifying entities in the future. Further, LABAs are already required to maintain active status with the certifying entity (which also includes the BACB), so the requirement is redundant. Therefore, the author should amend the bill to strike the requirement: On page 22, lines 33-36, strike out "A licensed assistant behavior analyst shall be supervised by a licensed behavior analyst for at least 2 percent of the hours of behavior-analytic services they provide per month." Technical Amendments. The author should make the following conforming and clarifying technical amendments: SB 479 Page 48 23)The author should correct a typographical error: On page 17, line 30 insert: assistant 24)The author should amend the term "paraprofessional technician" to "behavior analysis technician" for clarity: On page 9, line 1, strike out "Paraprofessional technician" and insert: behavior analysis technician On page 19, line 23, strike out "Paraprofessional technician" and insert: behavior analysis technician 25)The author should amend the bill to replace the term "behavior analytic" with "behavior analysis" when possible: On page 14, line 24, strike out "behavior-analytic" and insert: behavior analysis On page 15, line 30, strike out "analytic" and insert: SB 479 Page 49 analysis On page 15, line 32, strike out "analytic" and insert: analysis On page 15, line 36, strike out "analytic" and insert: analysis On page 21, line 29, strike out "analytic" and insert: analysis 26)The author should amend the bill to conform to recent amendments regarding the supervision of LABAs and paraprofessionals: On page 17, line 15, after "analyst" insert: or a licensed psychologist who is qualified to practice behavior analysis On page 17, line 21, after "analyst" insert: or a licensed psychologist who is qualified to practice behavior analysis SB 479 Page 50 On page 19, line 25, after "chapter" insert: or a licensed psychologist who is qualified to practice behavior analysis 27)The author should amend the committee requirements to conform to the amendments striking, for privacy reasons, the requirement that a public member of the board be a consumer of ABA services: On page 11, lines 14-15, strike out "who is a consumer of behavior analysis services and" 28)The author should amend the bill to conform to recent amendments regarding BOP confirmation of licensure requirements: On page 13, line 34, strike out "The board shall verify with the certifying entity that the" and insert: An applicant shall include, with the application, verification from the certifying entity that the On page 14, strike out lines 13-17 and insert:(b) An applicant shall include, with the application, verification from the certifying entity that the applicant SB 479 Page 51 meets both of the following requirements: (1) Has passed the Board Certified Behavior Analyst examination or an equivalent examination administered by the certifying entity. (2) Maintains an active status as a certified behavior analyst with the certifying entity. On page 17, line 5, strike out "The board shall verify with the certifying entity that the" and insert: An applicant shall include, with the application, verification from the certifying entity that the On page 17, strike out lines 29-33 and insert:(b) An applicant shall include, with the application, verification from the certifying entity that the applicant meets both of the following requirements: (1) Has passed the Board Certified Behavior Analyst examination or an equivalent examination administered by the certifying entity. (2) Maintains an active status as a certified assistant behavior analyst with the certifying entity. 29)The author should amend and consolidate the duplicative student exemptions: SB 479 Page 52 On page 21, strike out lines 1-13 and insert: (c) A student or other individual pursuing supervised experience for any of the following: (1) Experiential training toward a license described in this chapter in accordance with the requirements of this chapter. (2) Experience in behavior analysis toward a license described in subdivision (a) or (b) in accordance with the requirements of the respective licensure act in this division. (3) As a part of a defined program of study, course, practicum, internship, or postdoctoral program, provided that the behavior analysis activities are directly supervised by a licensed behavior analyst, a licensed psychologist, or by an instructor in a course sequence approved by a certifying entity. On page 21, strike out lines 18-23 30)Because "extended authority" is not clear, the author strike it out and leave "direction": On page 21, line 15, strike out "extended authority and" 31)To clarify that SLP assessments are not included in the LBA's scope of practice, the author should make the following amendment: SB 479 Page 53 On page 9, line 34, after "practices" insert: including, but not limited to, assessments, REGISTERED SUPPORT: California Association for Behavior Analysis (sponsor) Behavior Intervention Association California Association of Private School Education Schools Center for Autism and Related Disorders Southern California Consortium for Behavior Analysis Seven individuals REGISTERED OPPOSITION: None on file. Analysis Prepared by:Vince Chee, and Le Ondra Clark Harvey, Ph.D. / B. & P. / (916) 319-3301 SB 479 Page 54