Bill S.2217

FILED ON: 3/21/2012

SENATE . . . . . . . . . . . . . . No. 2217

The Commonwealth of Massachusetts

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In the Year Two Thousand Twelve

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An Act relative to the licensure of behavior analysts.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 13 of the General Laws is hereby amended by adding the following sections:-

Section 109. (a) There shall be within the division of professional licensure a board of registration of applied behavior analysts, in this section and in sections 110 to 114, inclusive, hereinafter called the board, consisting of nine members appointed by the governor for terms of three years. Members of the board shall be residents of the Commonwealth and citizens of the United States. Upon the creation of the Board, two members of the board shall be Doctoral-level Board Certified Behavior Analysts (BCBA-Ds), four shall be Board Certified Behavior Analysts (BCBAs), one shall be a Board Certified Assistant Behavior Analysts (BCaBAs), and two members of said board shall be selected from and shall represent the public, subject to the provisions of section nine B of chapter 13. After the first year, five members of the board shall be Licensed Applied Behavior Analysts and two shall be Licensed Assistant Applied Behavior Analysts under the provisions of sections two hundred and sixty-three to two hundred and sixty-nine, inclusive, of chapter one hundred and twelve and shall have been actively engaged in the practice of behavior analysis for the five years next preceding their appointment.

(b) Of the initial members appointed to said board, three shall serve for terms of three years, three shall serve for terms of two years, and three shall serve for a term of one year. Each member of said board shall hold office until his successor has been qualified. A vacancy in the membership of the board shall be filled for the unexpired term in the manner provided for the original appointment. No member shall serve more than two consecutive full terms. A member appointed for less than a full term may serve 2 full terms in addition to such part of a full term.

(c) The governor shall have the power to remove from office any member of the board for cause; but no board member may be so removed without being informed in writing at least thirty days in advance of the reasons for his removal and of his right to a public or private hearing with counsel.

Section 110. The board shall at its first meeting and, annually thereafter, organize by electing from among its members, by majority vote, a chairman, a vice-chairman, and a secretary. Such officers shall serve until their successors are elected and qualified. The board shall hold at least two meetings each year, but additional meetings may be held upon the call of the chairman, or the secretary, or at the written request of any three members of the board. Five members of the board shall constitute a quorum. The members of the board shall serve without compensation but each member shall be reimbursed for actual expenses reasonably incurred in the performance of his/her duties as a member on behalf of the board. The board shall be empowered to hire such assistants as it may deem necessary to carry on its activities.

Section 111. The board shall have the following powers and duties: (i) to pass upon the qualifications of all applications for licenses under sections two hundred and sixty-three to two hundred and sixty-nine, inclusive, of chapter one hundred and twelve, and issue a license to those who are determined to be qualified as Licensed Applied Behavior Analysts or Licensed Assistant Applied Behavior Analysts (ii) to adopt rules and promulgate regulations governing the licensure of behavior analysts; (iii) to establish eligibility, renewal and examination requirements, which will include current certification by the Behavior Analyst Certification Board®, Inc. (BACB), its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board; (iv) to define by regulation the appropriate standards for education and experience necessary to qualify for licensing, including, but not limited to, continuing professional education requirements for licensed behavior analysts, which shall be no less stringent than those of the BACB, its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board; and for the conduct and ethics which shall govern the practice of behavior analysis; (v) to receive, review, and approve or disapprove applications for a reciprocal license to applicants who are licensed or certified as an applied behavior analyst in another state and who have demonstrated qualifications which equal or exceed those required pursuant to sections two hundred and sixty-three to two hundred and sixty-nine, inclusive, of chapter one hundred and twelve, provided that no reciprocal license shall be granted under this section to an applicant unless the state in which the applicant is licensed affords reciprocal treatment to persons who are residents of the Commonwealth of Massachusetts and who are licensed pursuant to said chapter one hundred and twelve; (vii) (vi) to fine, censure, revoke, suspend or deny a license, place on probation, reprimand or otherwise discipline licensees for violations of the code of ethics or the rules of the board in accordance with sections two hundred and sixty-six to two hundred and seventy-seven, inclusive of chapter 112, but the board shall not have the power of subpoena; (vii) to summarily suspend the license of a licensee who poses an imminent danger to the public but a hearing shall be afforded to the licensee within 7 days of an action by the board to determine whether such summary action is warranted; and (viii) to perform such other functions and duties as may be required to carry out this section.

Section 112. The board shall take no action with respect to the granting of a license or its revocation or suspension without the concurrence of at least five members of the board. The board shall adopt a seal which shall be affixed to all licenses issued by the board.

Section 113. The board shall make available to the public a list of Licensed Applied Behavior Analysts and Licensed Assistant Applied Behavior Analysts.

Section 114. The members of the board, as well as the BACB, its officers and employees, shall be indemnified by the Commonwealth for all actions taken as part of their responsibilities described herein.

SECTION 2. Chapter 112 of the General Laws is hereby amended by adding the following ections:-

Section 263. As used in sections two hundred and sixty-three to two hundred and seventy-seven, inclusive, the following words, unless the context clearly indicates otherwise, shall have the following meanings:

"Assistant Applied Behavior Analyst”, an individual who by training, experience, and examination meets the requirements for licensing by the board and is duly licensed to engage in the practice of behavior analysis under the supervision of a licensed Behavior Analyst.

“Applied Behavior Analyst”, an individual who by training, experience and examination meets the requirements for licensing by the board and is duly licensed to engage in the practice of behavior analysis in the Commonwealth.

“Board”, the board of registration of behavior analysts.

“Nationally Accredited Behavior Analyst Certification Board”, a non-profit organization with a national behavior analyst certification program that is accredited by the American National Standards Institute (ANSI) or the National Commission for Certifying Agencies (NCCA).

“Recognized educational institution”, a degree-granting college or university which is accredited by a Regional Board or Association of Institutions of higher education approved by the Council on Post Secondary Education of the United States Department of Education, or which is chartered to grant masters or doctoral degrees by the Commonwealth. Such institutional accreditation shall exist at the time that the degree is granted or within two years thereafter.

“The scope of practice of applied behavior analysis”, means the design, implementation and evaluation of systematic instructional and environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvements in human behavior, including the direct observation and measurement of behavior and the environment, the empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis, and the introduction of interventions based on scientific research and which utilize contextual factors, antecedent stimuli, positive reinforcement and other consequences to develop new behaviors, increase or decrease existing behaviors, and elicit behaviors under specific environmental conditions that are delivered to individuals and groups of individuals. The practice of applied behavior analysis does not include psychological testing, neuropsychology, diagnosis of psychiatric conditions, psychotherapy, cognitive therapy, sex therapy, psychoanalysis, or hypnotherapy, as treatment modalities, nor does it include academic teaching by college or university faculty.

Section 264 (a). The standards to qualify for the designation of Applied Behavior Analyst include:

1. A Doctoral or Master’s Degree from a recognized educational institution which includes specific graduate level instruction in behavior analysis or a Master’s degree combined with successful completion of a BACB approved course sequence or coursework which otherwise meets the BACB standards.

2. The program in behavior analysis used to meet the coursework standards for licensure under this section must be a BACB approved coursework sequence or meet the coursework standards established by the BACB, its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board.

3. The successful completion of a practicum or supervised experience in the practice of behavior analysis that meets the standards established by the BACB, its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board.

4. The successful completion of the BACB examination for Board Certified Behavior Analysts or other equivalent nationally accredited examination related to the principles and practice of the profession of behavior analysis, as determined by the board.

(b) For the first three years after enactment of this legislation, any applicant who is a “Board Certified Behavior Analyst®" (BCBA) certificant of the BACB or who has graduated with a Doctoral Degree from a recognized educational institution whose doctoral program included a minimum of 60 graduate credit hours in courses directly related to the study of applied behavior analysis or who has graduated with a Master’s Degree from a recognized educational institution whose master’s program included a minimum of 30 graduate credit hours in courses directly related to the study of behavior analysis and can demonstrate that s/he has practiced as an applied behavior analyst continuously for the preceding five years will be eligible to be granted status as a licensed Applied Behavior Analyst. An applicant granted licensure under this section will be permitted to renew said licensure biennially provided that the applicant complete and provide evidence to the board of the proscribed minimum number of hours of continuing education as specified in section 269. All candidates applying for licensure more than three years after enactment of this legislation must meet the requirements noted above in Section 264(a).

Section 265 (a).The standards to qualify for the designation of Assistant Applied Behavior Analyst include:

1. A Bachelor’s Degree from a recognized educational institution which includes specific coursework in behavior analysis or a Bachelor’s degree combined with successful completion of a BACB approved course sequence or coursework which otherwise meets the BACB standards.

3. The successful completion of a practicum or supervised experience in the practice of behavior analysis that meets the BACB eligibility requirements;

4. The successful completion of the BACB nationally accredited examination for Board Certified Assistant Behavior Analyst.

(b) For the first three years of enactment of this legislation, any applicant is a “Board Certified Assistant Behavior Analyst (BCaBA) certificant of the BACB will be eligible to be granted status as a licensed Assistant Applied Behavior Analyst. Thereafter, applicants must meet the requirements noted above in Section 265(a).

Section 266. Each person desiring to obtain a license as an Applied Behavior Analyst or as an Assistant Applied Behavior Analyst shall make application to the board upon such form and in such manner as the board shall prescribe and shall furnish evidence satisfactory to the board that such person is of good moral character, including, but not limited to the fact that such applicant has not been convicted of a felony, which shall include a judgment, an admission of guilt or a plea of nolo contendere to such charges, or of an offense under the laws of another jurisdiction, which, if committed in the Commonwealth of Massachusetts, would be a felony unless the following apply:

(i) At least 10 years have elapsed from the date of conviction.

(ii) The applicant satisfactorily demonstrates to the Board that the applicant has made significant progress in personal rehabilitation since the conviction, so that licensure of the applicant would not be expected to create a substantial risk of harm to the health and safety of the applicant’s clients or the public or a substantial risk of further criminal violations.

Section 267. Notwithstanding the provisions of sections two hundred sixty-four and two hundred and sixty-five, the board may issue a license without examination to an applicant who presents evidence that he/she has been licensed or certified as a Behavior Analyst by a similar board of another jurisdiction whose standards are not lower than those required in the Commonwealth.

Section 268. The board may grant a temporary license for a period not to exceed one year to a Behavior Analyst with prior legal residence outside the Commonwealth to practice within the Commonwealth, provided he/she registers with the board and practices in consultation with, or under the supervision of, a licensed Applied Behavior Analyst or possesses qualifications acceptable to the board.

Section 269. Licenses shall be valid for two years and shall be renewed biennially. On or before April fifteenth every two years, the secretary of the board shall forward to each licensed Applied Behavior Analyst and Assistant Applied Behavior Analyst an application form for renewal. Upon the receipt of the completed form and the renewal fee on or before June first, the secretary shall renew the license for three years commencing July first. Pursuant to the renewal, the applicant shall present to the board documented evidence of the completion of a minimum number of hours of continuing education programs as specified by the board and which are designed to improve the professional competence of the licensee. Such programs shall be completed during the licensed period immediately prior to renewal. Such CEUs must meet the standards specified by the BACB, its successor or other equivalent nationally accredited recognized behavior analyst certification board, as determined by the board. Any application for renewal of a license which has expired shall require the payment of a new application fee and the applicant must meet all of the requirements for licensure as delineated in sections 264(a) and sections 265(a).

Section 270. The following fees shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven and shall be collected by the board: (a) application fee; (b) initial license fee; (c) temporary license fee; and (d) triennial biennial renewal fee.

Section 271. Nothing in sections two hundred and sixty-three to two hundred and seventy-seven, inclusive, shall be construed to prevent qualified members of other professions or occupations such as physicians, psychologists, teachers, members of the clergy, authorized Christian Science practitioners, attorneys-at-law, social workers, guidance counselors, clinical counselors, adjustment counselors, speech pathologists, audiologists or rehabilitation counselors, from doing work of an applied behavior analytic nature consistent with the accepted standards of their respective professions, provided, however, that they do not hold themselves out to the public by any title or description stating or implying that they are Applied Behavior Analysts or that they are licensed to practice applied behavior analysis without holding said license.

Section 272. Those engaged in the practice of applied behavior analysis within the Commonwealth of Massachusetts shall comply with the standards of ethical practice as adopted by the BACB, its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board.

Section 273. As provided in the Individuals with Disabilities Education Act (2004), the Commonwealth of Massachusetts Department of Elementary and Secondary Education (DESE) will establish educational licensure status for licensed applied behavior analysts relative to the provision of special educational services provided at all levels within the Commonwealth. DESE shall adopt the standards provided herein as the elements to meet said educational licensure.

Section 274. Any person not licensed to practice applied behavior analysis who holds himself out to be an applied behavior analyst or who uses the title applied behavior analyst or engages in the practice of applied behavior analysis shall be punished by a fine of not more than five hundred dollars, or by imprisonment of not more than three months, or both such fine and imprisonment.

Section 275. The penalties in section two hundred and forty-eight shall not apply to: faculty or students of applied behavior analysis currently enrolled in an recognized educational institution which meets the educational standards of the BACB its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board, or interns or persons preparing for the practice of applied behavior analysis under qualified supervision in such a program; provided, however, that they are designated by such titles as “applied behavior analyst intern”, “applied behavior analyst trainee” or other title clearly indicating such training status.

Section 276. The board shall investigate all complaints relating to the proper practice of applied behavior analysis by any person licensed under sections two hundred and sixty-three to two hundred and seventy-five, inclusive.

The board may, after a hearing in accordance with the provisions of chapter thirty A, revoke, suspend or cancel the license, or reprimand, censure or otherwise discipline an Applied Behavior Analyst or Assistant Applied Behavior Analyst licensed under said sections two hundred and sixty-three to two hundred and seventy-five, inclusive, upon proof satisfactory to a majority of the board that said Applied Behavior Analyst or Assistant Applied Behavior Analyst

(a) fraudulently procured said license;

(b) is guilty of an offense against any provision of the laws of the Commonwealth relating to the practice of applied behavior analysis or any rule or regulation adopted thereunder;

(c) is guilty of conduct that places into question the applied behavior analyst’s competence to practice applied behavior analysis, including but not limited to gross misconduct in the practice of applied behavior analysis or of practicing applied behavior analysis fraudulently, or beyond its authorized scope, or with gross incompetence, or with gross negligence on a particular occasion or negligence on repeated occasions;

(d) is guilty of practicing applied behavior analysis while the ability to practice was impaired by alcohol, drugs, physical disability or mental instability;

(e) is guilty of being habitually drunk or being or having been within a reasonable period of time addicted to, dependent on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects;

(f) is guilty of knowingly permitting, aiding or abetting an unlicensed individual to perform activities requiring a license for purposes of fraud, deception or personal gain, excluding activities permissible under any provision of laws of the Commonwealth or rules or regulations of the board;

(g) has been convicted of a criminal offense which reasonably calls into question his/her ability to practice behavior analysis; or

(h) is guilty of violating any rule or regulation of the board governing the practice of applied behavior analysis.

(i) is guilty of violating any provision of the Professional Disciplinary and Ethical Standards of the BACB, its successor or other equivalent nationally accredited behavior analyst certification board, as determined by the board.

No person filing a complaint or reporting or providing information pursuant to this section or assisting the board at its request in any manner in discharging its duties and functions shall be liable in any cause of action arising out of the receiving of such information and assistance; provided, however, that the person making the complaint or reporting or providing said information or assistance does so in good faith and without malice. Anonymous complaints submitted to the board of such violations shall not be considered.

If the Applied Behavior Analyst or Assistant Applied Behavior Analyst is found not to have violated any of the provisions set forth in this section, the board shall forthwith order a dismissal of the charges.

Notice in writing of a contemplated revocation or suspension of a license, or the cause therefore in sufficient particularity, and of the date of hearing thereon, shall be sent by registered or certified mail to the licensee at his/her last known address at least fifteen days before the date of such hearing. The Applied Behavior Analyst or Assistant Applied Behavior Analyst against whom a charge is filed shall have a right to appear before the board in person or by counsel, or both, may produce witnesses and evidence on his/her behalf, and may question witnesses. No license shall be revoked or suspended without such hearing, but the nonappearance of the licensee, after notice, shall not prevent such hearing. All matters upon which the decision is based shall be introduced in evidence at the proceeding. The licensee shall be notified in writing of the board’s decision. The board may make such rules and regulations as it deems proper for the filing of charges and the conduct of hearings.

After issuing an order or revocation or suspension the board may also file a petition in equity in the superior court in a county in which the respondent resides or transacts business, or in Suffolk County, to ensure appropriate injunctive relief to expedite and secure the enforcement of its order, pending the final determination.

Any decision the board makes pursuant to this section shall be subject to review in superior court in accordance with the provisions of chapter thirty A.

Section 277. After three years from the date of revocation, an application for reinstatement may be made to the board, which may, upon the affirmative vote of at least five of its members, grant such reinstatement.