Bill Text: HI HB2271 | 2018 | Regular Session | Amended
Bill Title: Relating To The Practice Of Behavior Analysis.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Passed) 2018-07-11 - Act 205, 07/10/2018 (Gov. Msg. No. 1314). [HB2271 Detail]
Download: Hawaii-2018-HB2271-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2271 |
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TWENTY-NINTH LEGISLATURE, 2018 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO THE PRACTICE OF BEHAVIOR ANALYSIS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. The legislature finds that behavior analysis means the design, implementation, and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior. The practice of behavior analysis includes the empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis, as well as the use of contextual factors, motivating operations, antecedent stimuli, positive reinforcement, and other consequences to help individuals develop new behaviors, increase or decrease existing behaviors, and display behaviors under specific environmental conditions.
Act 199, Session Laws of Hawaii 2015, established the behavior analyst program within the department of commerce and consumer affairs and established licensing requirements for behavior analysts. Licensing of behavior analysis services was made concurrent with mandated insurance coverage for diagnosis and treatment related to autism disorders.
Act 107, Session Laws of Hawaii 2016, temporarily exempted some practitioners from licensing requirements of the practice of behavior analysis, in particular, direct support workers who provide autism treatment services pursuant to an individualized education plan.
Many students enrolled in department of education schools would benefit from the expansion of behavior analysis services throughout Hawaii's public school system, including but not limited to students with autism disorders.
Accordingly, the purpose of this part is to clarify the provision of behavioral analysis services to students in public schools.
SECTION 2. 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;], including individuals directly supervised by a
licensed professional, such as unlicensed master's level practitioners,
students, and postdoctoral fellows, who may train and supervise a
paraprofessional, direct support worker, or parent or guardian in implementing
an applied behavioral analysis intervention; provided that the supervision
falls within that licensed professional's scope of practice; provided further
that the licensed professional and the supervised individual shall not use the
title of "licensed 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 in a school
setting who [provides autism treatment services pursuant to an
individualized education plan] directly implements a behavior analysis
program under the supervision of a professional licensed in this State to
practice behavior analysis and does not design intervention or assessment plans
on or before January 1, 2019; [[]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."
PART II
SECTION 3. The legislature finds that the department of health, developmental disabilities division operates the medicaid intellectual and developmental disabilities home and community based services waiver, also known as the HCBS I/DD waiver, on behalf of the department of human services, Med-Quest division. The HCBS I/DD waiver, which is provided under section 1915(c) of the Social Security Act and reviewed and approved by the federal Centers for Medicare and Medicaid Services, has many requirements to ensure the appropriate and efficient provision of services and supports to people with intellectual and developmental disabilities.
The legislature further finds that, for children who qualify for a HCBS I/DD waiver who have an autism spectrum disorder, the Centers for Medicare and Medicaid Services has clarified that, per section 1905(a) of the Social Security Act, services "recommended by a physician or other licensed practitioner of the healing arts" for the treatment of autism spectrum disorders must be provided through the child's medicaid health plan through the early and periodic screening, diagnostic, and treatment benefit, and cannot be provided as a HCBS I/DD waiver service. This leaves a gap in coverage for adults with autism spectrum disorders who would be best served under the HCBS I/DD waiver. This gap could be filled by professionals who are exempt from behavior analyst licensure requirements and fall outside the scope of the section 1905(a) requirement, which would allow certain individuals who implement applied behavior analysis services or plans under the oversight of others to provide appropriate treatment to adults with autism spectrum disorders in accordance with the HCBS I/DD waiver.
The legislature additionally finds that the Centers for Medicare and Medicaid Services requires the states to provide participant safeguards that ensure the health, safety, and rights of HCBS I/DD waiver participants. The developmental disabilities division has policies and procedures to ensure positive behavior supports are used to proactively minimize challenging behaviors and to limit the use of restrictive procedures. The developmental disabilities division also conducts oversight and continuous quality assurance to ensure safe and appropriate practices including a behavioral review committee to review quality of care for individuals who need supports to learn new behaviors.
The legislature also finds that there is confusion in the community as to the scope of the behavior analyst profession. Different professionals use different titles and different terminology to refer to themselves and what they do. The legislature further finds that this confusion may be increased based on the proposed expansion of waivers for licensing.
Therefore, the purpose of this part is to:
(1) Allow adults with autism spectrum disorders to receive appropriate applied behavior analysis treatment, while simultaneously providing safeguards for consumer protection;
(2) Exempt from the licensure requirement for behavior analysts certain individuals who implement applied behavior analysis services or plans to adult participants in the HCBS I/DD waiver program on or before January 1, 2024, or under the direction of a licensed behavior analyst or Hawaii-licensed psychologist; and
(3) Update and standardize the terminology used to refer to behavior analysts.
SECTION 4. Section 465D-7, Hawaii Revised Statutes, is amended to read as follows:
"§465D-7 Exemptions. (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 applied behavior analysis; provided that the person does not purport to be a licensed 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 licensed behavior analyst [licensed
in this State];
(3) An individual
who designs or implements applied behavior analysis services to participants in
the medicaid home and community-based services waiver program pursuant to
section 1915(c) of the Social Security Act on or before January 1, 2024;
[(3)] (4) 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 licensed behavior analyst [licensed
in this State]; or
(B) Is a direct
support worker who provides autism treatment services pursuant to an
individualized education plan on or before January 1, 2019; [[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)] (5) A family member [or],
legal guardian, or caregiver implementing an applied behavior analysis
plan and who acts under the direction of a licensed behavior analyst [licensed
in this State;] or Hawaii-licensed psychologist; provided that for the
purposes of this paragraph, "caregiver" means an individual who
provides habilitative services in an adult foster home, developmental
disabilities domiciliary home, adult residential care home, expanded adult
residential care home, special treatment facility, or therapeutic living
program, pursuant to the medicaid home and community-based services waiver
program authorized by section 1915(c) of the Social Security Act;
[(5)] (6) An individual who engages in the
practice of applied behavior analysis with nonhuman or nonpatient
clients or consumers including but not limited to applied animal behaviorists
and practitioners of organizational behavior management;
[(6)] (7) A matriculated graduate student or
postdoctoral fellow whose activities are part of a defined applied 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 licensed
behavior analyst [licensed in this State] or an instructor in a Behavior
Analyst Certification Board-approved course sequence; or
[(7)] (8) An individual pursuing experience in applied
behavior analysis consistent with the Behavior Analyst Certification Board's
experience requirements; provided that the experience is supervised by a licensed
behavior analyst [licensed in this State].
(b)
Nothing in this chapter shall be construed to prevent any licensed
psychologist from engaging in the practice of applied behavior analysis
in this State as long as the [person] licensed psychologist is
not in any manner held out to the public as a "licensed behavior
analyst" or "behavior analyst" and the behavior analysis
services provided by the licensed psychologist are within the licensed
psychologist's recognized scope of practice."
SECTION 5. Sections 465D-2, 465D-4, 465D-5, and 465D-11, Hawaii Revised Statutes, are amended by substituting the phrase "practice of applied behavior analysis" wherever the phrase "practice of behavior analysis" appears, as the context requires.
SECTION 6. Section 465D-11, Hawaii Revised Statutes, is amended by substituting the phrase "applied behavior analysis" wherever the phrase "behavior analysis" appears, as the context requires.
PART III
SECTION 7. The legislature finds that behavior analysis means the design, implementation, and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior. The practice of behavior analysis includes the empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis, as well as the use of contextual factors, motivating operations, antecedent stimuli, positive reinforcement, and other consequences to help individuals develop new behaviors, increase or decrease existing behaviors, and display behaviors under specific environmental conditions.
Act 199, Session Laws of Hawaii 2015, established the behavior analyst program within the department of commerce and consumer affairs and established licensing requirements for behavior analysts. Licensing of behavior analysis services was made concurrent with mandated insurance coverage for diagnosis and treatment related to autism disorders.
Act 107, Session Laws of Hawaii 2016, temporarily exempted some practitioners from licensing requirements of the practice of behavior analysis, in particular, direct support workers who provide autism treatment services pursuant to an individualized education plan.
Many students enrolled in department of education schools would benefit from the expansion of behavior analysis services throughout Hawaii's public school system, including but not limited to students with autism disorders.
Accordingly, the purpose of this part is to:
(1) Clarify the licensing exemptions for certain individuals under certain conditions who provide behavior analysis services; and
(2) Require the department of education to create and implement a plan to provide medicaid billable applied behavior analysis services to all students diagnosed with autism spectrum disorder within the department.
SECTION 8. Section 465-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This chapter shall not apply to:
(1) Any person teaching, lecturing, consulting, or engaging in research in psychology insofar as the activities are performed as part of or are dependent upon employment in a college or university; provided that the person shall not engage in the practice of psychology outside the responsibilities of the person's employment;
(2) Any person who performs any, or any combination of the professional services defined as the practice of psychology under the direction of a licensed psychologist in accordance with rules adopted by the board; provided that the person may use the term "psychological assistant", but shall not identify the person's self as a psychologist or imply that the person is licensed to practice psychology;
(3) Any person employed by a local, state, or federal government agency in a school psychologist or psychological examiner position, or a position that does not involve diagnostic or treatment services, but only at those times when that person is carrying out the functions of such government employment;
(4) Any person who is a student of psychology, a psychological intern, or a resident in psychology preparing for the profession of psychology under supervision in a training institution or facility and who is designated by a title as "psychology trainee", "psychology student", "psychology intern", or "psychology resident", that indicates the person's training status; provided that the person shall not identify the person's self as a psychologist or imply that the person is licensed to practice psychology;
(5) Any person who is a member of another profession licensed under the laws of this jurisdiction to render or advertise services, including psychotherapy, within the scope of practice as defined in the statutes or rules regulating the person's professional practice; provided that, notwithstanding section 465-1, the person does not represent the person's self to be a psychologist or does not represent that the person is licensed to practice psychology;
(6) Any person who is a member of a mental health profession not requiring licensure; provided that the person functions only within the person's professional capacities; and provided further that the person does not represent the person to be a psychologist, or the person's services as psychological;
(7) Any person who is
a duly recognized member of the clergy; provided that the person functions only
within the person's capacities as a member of the clergy; and provided further
that the person does not represent the person to be a psychologist, or the
person's services as psychological; [or]
(8) Any psychologist
employed by the United States Department of Defense, while engaged in the
discharge of the psychologist's official duty and providing direct telehealth
support or services, as defined in section 431:10A-116.3, to neighbor island
beneficiaries within a Hawaii National Guard armory on the island of Kauai,
Hawaii, Molokai, or Maui; provided that the psychologist employed by the United
States Department of Defense is credentialed by Tripler Army Medical Center[.];
or
(9) Any direct
support worker as defined in section 465D‑7, who provides autism
treatment services pursuant to an individualized education plan and is under
the direction of a psychologist licensed in the State."
SECTION 9. 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;] An individual licensed in
the State who practices other professions and their supervisees; provided that
behavior analysis is in the scope of practice of the profession's licensure law
and the services provided are within the boundaries of the licensed
professional's education, training, and competence; provided further that the
individual does not purport to be a behavior analyst;
(2) An individual
licensed in the State who practices psychology and their supervisees; provided
that behavior analysis is in the scope of practice of the psychology licensure
law and the behavior analysis services provided are within the boundaries of
the licensed psychologist's education, training, and competence; provided
further that the individual does not purport to be a behavior analyst;
[(2)] (3) 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)] (4) A licensed classroom teacher, or someone
who is working as a classroom teacher and is enrolled in a teacher preparation
program working toward licensure, in a school setting who implements and does
not design behavior analysis services in direct collaboration with a
professional licensed to practice behavior analysis in the State;
(5) An
individual who directly implements [applied] and does not design
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 in a school setting who [provides autism treatment
services pursuant to an individualized education plan] directly
implements a behavior analysis program under the supervision of a professional licensed
in this State to practice behavior analysis intervention or assessment plans
on or before January 1, 2019; [[]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;] Is an individual who works within the scope of
practice or duties of and is directly supervised by a licensed psychologist; provided
that the supervised individual shall not use the title of "licensed
behavior analyst";
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];
(6) An
individual who designs or implements behavior analysis services to participants
in the medicaid home and community-based service waiver program pursuant to
section 1915(c) of the Social Security Act on or before January 1, 2024;
[(4)] (7) A family member [or],
legal guardian, or caregiver implementing [an applied] a behavior
analysis plan and who acts under the direction of a licensed behavior
analyst [licensed in this State]; provided that for the purposes of
this paragraph, "caregiver" means an individual who provides
rehabilitative services in an adult foster home, developmental disabilities
domiciliary home, adult residential care home, expanded adult residential care
home, special treatment facility, or therapeutic living program pursuant to the
medicaid home and community-based service waiver program;
[(5)] (8) 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)] (9) 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] Board-verified course sequence; or
[(7)] (10) 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 10. (a) The department of education shall create an implementation plan for the delivery of medicaid billable applied behavior analysis to all students diagnosed with autism spectrum disorder within the department.
(b) The department of education shall submit an initial report to the legislature and board of education within ninety days of the effective date of this Act; provided that the initial report shall include clear objectives on staffing, data collection and analysis, reporting and accountability, and any other necessary points to effectuate the implementation plan pursuant to subsection (a).
(c) After the submission of the initial report to the legislature and board of education pursuant to subsection (b), the department of education shall submit quarterly reports to the legislature and board of education; provided that the quarterly reports shall include the following:
(1) The number of students diagnosed with autism spectrum disorder;
(2) The number of students with autism spectrum disorder as part of their individualized education plan;
(3) The number of students requiring applied behavior analysis;
(4) Staffing updates and needs;
(5) Medicaid reimbursement schedules and amounts;
(6) Licensure updates; and
(7) Any other information pertinent to the implementation of this part.
PART IV
SECTION 11. The legislature finds that the State's department of health developmental disabilities division operates the medicaid intellectual and developmental disabilities home and community-based services waiver under the medicaid services section 1915(c) of the Social Security Act (HCBS I/DD waiver). The HCBS I/DD waiver is reviewed and approved by the United States Department of Health and Human Services Centers for Medicare and Medicaid Services and has many requirements to ensure appropriate and efficient provision of services and supports to people with intellectual and developmental disabilities.
For children in the HCBS I/DD waiver who have an autism spectrum disorder, the Centers for Medicare and Medicaid Services has clarified that services for the treatment of autism spectrum disorder must be provided through the child's medicaid health plan through medicaid's early and periodic screening, diagnosis, and treatment benefit. Services cannot be provided under waiver services pursuant to section 1915(c) of the Social Security Act. Therefore, the developmental disabilities division provides behavior analysis services only to adults with behavioral challenges and only in home and community-based settings.
The legislature further finds that the Centers for Medicare and Medicaid Services requires states to provide participant safeguards that ensure the health, safety, and rights of HCBS I/DD waiver participants. The state developmental disabilities division has policies and procedures to ensure that positive behavior supports are used to proactively minimize challenging behaviors, and define and limit the use of restrictive procedures. The developmental disabilities division also conducts oversight for continuous quality assurance to ensure safe and appropriate practices that include a behavior review committee to review quality of care for individuals who need supports to learn new behaviors.
Amending the exemptions for participants in the medicaid intellectual and developmental disabilities waiver will ensure that a qualified workforce can continue to provide necessary behavior interventions while simultaneously facilitating efforts to build an adequate workforce for clients who depend on these services.
The purpose of this part is to:
(1) Clarify and standardize the terminology used to refer to behavior analysis and the practice of applied behavior analysis; and
(2) Broaden the exemption of certain
individuals and licensed or credentialed practitioners practicing within their
own recognized scopes of practice who are exempt from chapter 465D, Hawaii
Revised Statutes, the behavior analysts law.
SECTION 12. Section 465D-2, Hawaii Revised Statutes, is amended by amending the definitions of "licensed behavior analyst" and "practice of behavior analysis" to read as follows:
""Licensed behavior analyst" means a person:
(1) Who engages in the practice of applied behavior analysis and uses the title of licensed behavior analyst;
(2) Who has been issued a license under this chapter; and
(3) Whose license is in effect and not revoked, suspended, or encumbered.
"Practice
of applied behavior analysis" means the design, implementation, and
evaluation of instructional and environmental modifications to produce socially
significant improvements in human behavior.
Practice of applied behavior analysis includes the empirical
identification of functional relations between behavior and environmental
factors, known as functional assessment and analysis. Practice of applied behavior analysis
also includes the use 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.
Practice of applied behavior analysis expressly excludes
psychological testing, diagnosis of a mental or physical disorder,
neuropsychology, psychotherapy, cognitive therapy, sex therapy, psychoanalysis,
hypnotherapy, and long-term counseling as treatment modalities."
SECTION 13. Section 465D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Beginning on January 1, 2016, except as specifically provided in this chapter, no person shall engage in the practice of applied behavior analysis or use the title "licensed behavior analyst" or "behavior analyst" without a valid license issued pursuant to this chapter."
SECTION 14. Section 465D-5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§465D-5[]] Powers and duties of the director. In addition to any other powers and duties
authorized by law, the director shall have the powers and duties to:
(1) Grant, deny, renew, refuse to renew, restore, terminate, reinstate, condition, restrict, suspend, or revoke a license issued pursuant to this chapter;
(2) Grant permission to a person to engage in the practice of applied behavior analysis and to use the title of "licensed behavior analyst" or a description indicating that the person is a licensed behavior analyst in this State;
(3) Adopt, amend, or repeal rules pursuant to chapter 91 as the director finds necessary to carry out this chapter;
(4) Administer, coordinate, and enforce this chapter;
(5) Discipline a licensed behavior analyst on grounds specified by this chapter or chapter 436B or for any violation of rules adopted by the director pursuant to this chapter; and
(6) Refuse to license a person for failure to meet the licensing requirements in this chapter or for any reason specified by this chapter as grounds to discipline a behavior analyst including but not limited to violations of the Behavior Analyst Certification Board's ethical guidelines for responsible conduct."
SECTION 15. Section 465D-7, Hawaii Revised Statutes, is amended to read as follows:
"§465D-7 Exemptions. (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 applied behavior analysis[; provided that the person does
not purport to be a behavior analyst;], including individuals directly
supervised by a licensed professional, such as unlicensed master's level
practitioners, students, and postdoctoral fellows, who may train and supervise
a paraprofessional, direct support worker, or parent or guardian in
implementing an applied behavior analysis intervention; provided that the
supervision is within that licensed professional's recognized scope of
practice; and provided further that the licensed professional and the
supervised individual shall not use the title "licensed behavior analyst";
(2) An individual who implements or designs
applied behavior analysis services and possesses board certification as an
assistant behavior analyst from a national certifying agency or 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] national certifying agency under the
direction of a licensed behavior analyst [licensed in this State;]
or licensed psychologist;
(3) An individual who designs or implements
applied behavior analysis services to participants in the medicaid home and
community-based services waiver program pursuant to section 1915(c) of the
Social Security Act on or before January 1, 2024;
[(3)] (4)
An individual who directly implements applied behavior analysis services
and:
(A) Is credentialed as a [registered]
behavior technician by a nationally recognized training organization or the
Behavior Analyst Certification Board, and is under the direction of a licensed
behavior analyst [licensed in this State;] or licensed psychologist;
or
(B) Is a direct support worker who provides autism
treatment services pursuant to an individualized education plan on or before
January 1, 2019; [[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)] (5)
A family member [or], legal guardian, or caregiver
implementing an applied behavior analysis plan and who acts under the direction
of a licensed behavior analyst [licensed in this State;] or
licensed psychologist; provided that for the purposes of this paragraph,
"caregiver" means an individual who provides habilitative services in
an adult foster home, developmental disabilities domiciliary home, adult
residential care home, expanded adult residential care home, special treatment
facility, or therapeutic living program pursuant to the medicaid home and
community-based services waiver;
[(5)] (6)
An individual who engages in the practice of applied behavior
analysis with nonhuman or nonpatient clients or consumers including but not
limited to applied animal behaviorists and practitioners of organizational
behavior management;
[(6)] (7)
A matriculated graduate student or postdoctoral fellow whose activities
are part of a defined applied 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 licensed behavior
analyst [licensed in this State] or licensed psychologist or an
instructor from a nationally recognized training organization or in a
Behavior Analyst Certification Board-approved course sequence; or
[(7)] (8)
An individual pursuing experience in applied 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.
(b) Nothing in this chapter shall be construed to
prevent any licensed psychologist from engaging in the practice of applied
behavior analysis in this State as long as the person is not in any manner held
out to the public as a "licensed behavior analyst" [or
"behavior analyst"] and the applied behavior analysis
services provided by the licensed psychologist are within the licensed
psychologist's recognized scope of practice."
SECTION 16. Section 465D-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore and may deny, revoke, suspend, or condition in any manner any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failure to meet or to maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements in advertising;
(3) Engaging in the practice of applied behavior analysis while impaired by alcohol, drugs, physical disability, or mental instability;
(4) Procuring through fraud, misrepresentation, or deceit a license to engage in the practice of applied behavior analysis;
(5) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license for the practice of applied behavior analysis;
(6) Engaging in professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of applied behavior analysis;
(7) Engaging in conduct or a practice contrary to recognized standards of the most recent ethical guidelines for the practice of applied behavior analysis as adopted by the Behavior Analyst Certification Board;
(8) Violating any condition or limitation imposed by the director on a license to practice applied behavior analysis;
(9) Engaging in the practice of applied behavior analysis in a manner that causes injury to one or more members of the public;
(10) Failing to comply with, observe, or adhere to any law in a manner that causes the director to determine that the applicant or holder is unfit to hold a license;
(11) Having a license revoked or suspended or other disciplinary action by any state or federal agency for any reason that is provided by the applicable licensing laws or by this section;
(12) Having been convicted or pleaded nolo contendere to a crime directly related to the qualifications, functions, or duties of the practice of applied behavior analysis;
(13) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(14) Failing to report in writing to the director the Behavior Analyst Certification Board's revocation of the certification of a licensee or applicant within fifteen days of the revocation;
(15) Employing, whether gratuitously or for pay, any person not licensed pursuant to this chapter to perform the functions or duties of the practice of applied behavior analysis; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
PART V
SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 18. This Act shall take effect on July 1, 3000.
Report Title:
Practice of Behavior Analysis; School Setting; Applied Behavior Analysis; Developmental Disabilities; Department of Education; Applied Behavior Analysis; Implementation Plan; Reporting; Autism Spectrum Disorder; Scope of Practice; Medicaid
Description:
Part I: Clarifies the provision of behavioral analysis services to students in public schools. Part II: Allows adults with autism spectrum disorders to receive appropriate applied behavior analysis treatment, while simultaneously providing safeguards for consumer protection. Exempts from the licensure requirement for behavior analysts certain individuals who implement applied behavior analysis services or plans to adult participants in the HCBS I/DD waiver program on or before January 1, 2024, or under the direction of a licensed behavior analyst or Hawaii-licensed psychologist. Updates and standardizes the terminology used to refer to behavior analysts. Part III: Clarifies the licensing exemptions for certain individuals under certain conditions who provide behavior analysis services. Requires the Department of Education to create and implement a plan to provide Medicaid billable applied behavior analysis services to all students diagnosed with autism spectrum disorder within the Department. Establishes reporting requirements. Part IV: Clarifies and standardizes the terminology used to refer to behavior analysis and the practice of applied behavior analysis. Broadens and clarifies the exemption of licensed or credentialed practitioners practicing within their own recognized scopes of practice who are already exempt from the Behavior Analyst Law. Effective 7/1/3000. (SD1)
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