Hawaii-2018-HB2271-Introduced

SECTION 1. The legislature finds that the department of education is committed to equity and excellence in the State's public schools and provides educational supports and services to students, including those students with disabilities, to enable all students to successfully discover and embark on their chosen path in life.

The legislature further finds that the broad definition of "practice of behavior analysis" under chapter 465D, Hawaii Revised Statutes, has resulted in department of education employees being referred to the department of commerce and consumer affairs' licensing division for alleged violations of this chapter. The department of education was not aware that the definition of "practice of behavior analysis" could be interpreted so broadly, applicable to all department of education employees and volunteers, even when these employees or volunteers are performing their function of redirecting students while they are standing in lunch lines or on the playground. Nearly every department of education employee and volunteer uses behavioral interventions when working with students to ensure a safe learning environment for all students. According to the department of education, the department previously interpreted the "practice of behavior analysis" to apply to a very small subset of employees and was unaware that the term was being interpreted so expansively.

The legislature additionally finds that this expansive interpretation of "practice of behavior analysis" under chapter 465D, Hawaii Revised Statutes, has a direct impact on all school personnel, all 179,255 public school students, and all charter and private school students. The legislature notes that addressing behaviors through the use of interventions is the foundation of education, as one cannot effectively teach without being able to manage the behaviors of school children.

Accordingly, the purpose of this Act is to clarify the scope of licensure for individuals engaged in the practice of behavior analysis in a school setting.

SECTION 2. Chapter 465D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§465D- Practice of behavior analysis; scope of licensure; school setting. (a) Persons engaged in the practice of behavior analysis in a school setting shall meet the licensing requirements of this chapter or possess board certification from a national certifying agency only when serving a student:

(1) With severe challenging behavior or communication and social interaction issues, or both, that:

(A) Present a safety risk to self or others, such as self-injury, aggression toward others, destruction of property, elopement, or severe disruptive behavior; or present a significant functional interference at school; and

(B) Negatively impact the student's access to education;

(2) Whose behaviors have not been amenable, as determined by the student's multi-disciplinary school team, to multi-tiered positive behavioral supports and whose behaviors are reasonably expected by the student's multi-disciplinary school team to improve significantly with an applied behavior analysis program; or

(3) With communication and social interaction issues that:

(A) Have not been amenable, as determined by the student's multi-disciplinary school team, to other interventions; and

(B) Are reasonably expected by the student's multi-disciplinary school team to improve significantly with an applied behavior analysis program.

(b) Persons meeting the licensing requirements of this chapter or possessing board certification from a national certifying agency may supervise, as authorized by their license or board certification, registered behavior technicians or other individuals who possess board certification from a national certifying agency and directly implement behavior analysis services under this section."

SECTION 3. Section 465D-7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) This chapter is not intended to restrict the practice of other licensed or credentialed practitioners practicing within their own recognized scopes of practice and shall not apply to:

(1) An individual working within the scope of practice or duties of another licensed profession that overlaps with the practice of behavior analysis; provided that the person does not purport to be a behavior analyst;

(2) An individual who implements or designs applied behavior analysis services and possesses board certification as an assistant behavior analyst by the Behavior Analyst Certification Board and who practices in accordance with the most recent supervisory and ethical requirements adopted by the Behavior Analyst Certification Board under the direction of a behavior analyst licensed in this State;

(3) An individual who directly implements applied behavior analysis services and:

(A) Is credentialed as a registered behavior technician by the Behavior Analyst Certification Board, and is under the direction of a behavior analyst licensed in this State;

(B) Is a direct support worker who [~~provides autism treatment services pursuant to an individualized education plan~~] directly implements an applied behavior analysis program under supervision of a licensed professional and does not design intervention or assessment plans on or before [~~January 1, 2019; [or]~~] July 1, 2020; or

[[](C)[]] Is a direct support worker who provides medicaid home and community-based services pursuant to section 1915(c) of the Social Security Act on or before January 1, 2019;

provided that for purposes of this paragraph, "direct support worker" means a teacher or paraprofessional [~~who directly implements intervention or assessment plans under supervision and does not design intervention or assessment plans~~];

(4) A family member or legal guardian implementing an applied behavior analysis plan and who acts under the direction of a behavior analyst licensed in this State;

(5) An individual who engages in the practice of behavior analysis with nonhuman or nonpatient clients or consumers including but not limited to applied animal behaviorists and practitioners of organizational behavior management;

(6) A matriculated graduate student or postdoctoral fellow whose activities are part of a defined behavior analysis program of study, practicum, or intensive practicum; provided that the student's or fellow's activities or practice is directly supervised by a behavior analyst licensed in this State or an instructor in a Behavior Analyst Certification Board-approved course sequence; or

(7) An individual pursuing experience in behavior analysis consistent with the Behavior Analyst Certification Board's experience requirements; provided that the experience is supervised by a behavior analyst licensed in this State."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2271
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII