1. New Developments in the Licensure of Behavior Analysts Stephen R
New Developments in the Licensure of Behavior Analysts Stephen R. Anderson, Ph.D., BCBA - D

2. Dedicated exclusively to the practice of ABA
Not-for-profit 501(c)(6)
Membership organization
We have come a long ways
I began my post PhD career in this area in 1982
In 1983, the May Institute received a private foundation grant (later a federal DOE) to replicate the work of Ivaar Lovaas
I cannot adequately express how challenging it was at that time to do our work.
The first line of opposition was psychiatry but we won them over
The second line of opposition was educators - suggesting that no child should be expected to learn in methods we proposed to use and that it was abusive to expect so much time devoted to teaching and you can’t reach plan or social skills directly
Although the climate is better, we now have a new threats to our ability to apply our trade – such as opposition from insurance companies, sufficient number of trained and skilled individuals, push back from other trades such as psychology and occupational therapy
This is one of the many reasons that APBA exists
International

3. Mission Represent the interests of BACB-credentialed professions
Provide support and resources to members
Work with federal, state, governmental and third party entities to support its members

4. Mission Provide educational opportunities
Provide information to professionals in other fields and consumers about applied behavior analysis
Support improvements in access to services provided by behavior analysts
Promote public understanding of the practice of behavior analysis
To accomplish these things we need your support and by your being her today, by becoming members of APBA you help to provide the income and energy needed to support our activities

5. Disclaimer
NYSABA does not provide legal advice nor does it recommend actions its members should or should not take.  You should seek a qualified professional advice if you have questions on your qualification to provide services. 

6. Behavior Analysis- Good News
Applied Behavior Analysis for the Treatment of Autism is referenced in:
Discussions of the Health Care Affordability Act
NYS Insurance Reform Act
Early Intervention Regulations
Part 200 Regulations of the NYS SED
SED’s Report to the Governor and Legislature regarding the use of unlicensed professionals
OPWDD Behavior Management Regulations

7. Behavior Analysis – Bad News
In most states, including NY, the title and profession of behavior analyst is not recognized
Absent a license for behavior analysts there is a conflict for state agencies and community not-for-profit agencies that want to employ behavior analysts; and impedes the implementation of the NYS Insurance Reform Act

8. Examining Licensure Within Current Conditions
Issues Affecting Licensure and Practice
Title VIII of Education Law (2002) law restricting the practice of psychotherapy
Unintended consequences of the 2002 law to restrict practice of psychotherapy [unlicensed professionals; corporate practice]
The Autism Insurance Act (November 1, 2012)
OPWDDs Behavior Management Regulations

9. NYSABA Bill to License Behavior Analysts
Senate Bill 7017; Assembly Bill 10064
John Flanagan – Second Senate District, LI
Joseph Morelle – 132nd District, Rochester
Submitted April 2012; no action taken
Will be resubmitted

10. NYSABA’s Bill to License Behavior Analysts
Key Points:
Practice of behavior analysis is defined
Establishes both a practice and title act for “Licensed Behavior Analyst”
Establishes a process for getting licensed including passing the certification examination administered by the BACB
Establish under the Mental Health Practitioner – along with licensed creative arts therapist, licensed marriage and family therapist, licensed mental health counselor and licensed psychoanalyst
Does not prevent qualified licensed psychologist from practicing behavior analysis

11. Title VIII Laws: Practice of Psychotherapy
Why is this important to behavior analysts, agencies that employ behavior analysts, insurance companies and behavioral health care plans, and consumers?

12. Licensure of Psychotherapists
Education Laws were enacted in 2002 restricting the practice of psychotherapy
Protected scope of practice for psychologists
Created two new titles and scope for social workers
Created four new titles and scope of practice professionals under Mental Health Practiti0ners: mental health counselors, marriage and family therapists, creative art therapists, and psychoanalysts

13. Practice of Psychology (Article 153)
“The practice of psychology is the observation, description, evaluation, interpretation, and modification of behavior for the purpose of preventing or eliminating symptomatic, maladaptive or undesired behavior; enhancing interpersonal relationships, personal, group or organizational effectiveness and work and/or life adjustment; and improving behavioral health and/or mental health.”

14. Unforeseen Consequences of Licensure Laws
Non-Licensed professionals in state and community not-for-profit agencies violate the practice of social work, psychology & mental health professions; >20,000 individuals

15. Temporary Steps to Resolve Issues
State operations were permanently exempted from the requirement for licensure to practice psychology, social work or mental health professions
Unlicensed professionals working in organizations regulated by OPWDD, OMH and other state agencies were given a temporary exemption until January 1, 2010 which was extended until June 30, 2013
Laws of 2012 also mandated a report to SED, Legislature and Governor by July 1, 2012
Allowed behavior analysts more time, but not much

16. Unintended Consequences
Many community not-for-profits could not continue to provide mental health and social services because they lacked the authority to provide professional services or employ licensed professionals
Solution - Legislature created Chapters 130 & 132 of the Laws of 2010 to establish a waiver process to address corporate practice issues (6503a & b) [mental health wavier; education waiver]
Problem – some community not-for-profit agencies want to settle this issue before supporting the licensure of behavior analysts

17. Unintended Consequences
After June 30, 2013, temporary exemptions will expire and individuals employed outside of permanently exempt entities become illegal
Affects 20,000 in workforce
Costs to remedy estimated to be $425M for four state agencies

18. Education Report to the Legislature & Executive
2010 laws mandated a report from the Education Department that recommends any changes in law, rules or regulations that necessary to fully implement the licensing laws
All NYS Agencies (OPWDD, OMH, OASIS, OCFS, SOFA, DOH) were required to participate
Community-based not-for-profit agencies were invited to participate
NYSABA provided public comment and met with key officials

19. Behavior Analysts Providing Restricted Services
Functions
Assessment/Evaluation - 133
Diagnosis - 52
Psychotherapy - 97
Assessment and treatment planning - 143
Other functions – 128
Duplicated count?

20. Proposed Agency Solutions
Clarification of practice
Delegation of professional services
Occupational exemptions
Alternative pathways
Extension of broad-based exemptions from licensure
Exempt civil service titles

21. Solutions that May Affect BCBAs
Not likely to:
Change the definitions of practice of psychology (or social work)
Extend exemption to individuals employed in voluntary agencies
Respondents answered to the question – “Licensing laws should not exempt from licensure individuals who provide services paid for by the public”
Agree and strongly agree” – 73%
This could effect implementation of insurance law

22. Solutions that May Affect BCBAs
More likely to:
Create Alternative Pathway - Those with doctoral degrees in psychology (certain years of experience) would be licensed without examination (e.g., BCBA – D)
Create new profession of Behavioral Health Practitioner –
M. A. in psychology, experience, and examination (e.g., BCBA with psychology as the foundation)
“Proposal is based in part on need to authorize the practice of individuals with Board-Certification as Behavioral Analyst (BCBA) ” [from report]

23. Autism Insurance Reform Law
Coverage for the screening, diagnosis, and treatment including:
Behavioral health treatment (such as applied behavior analysis)
Prescription drugs if the plan covers other drugs
Psychiatric, social work, & psychological care
Non-restorative therapies (if the policy covers therapeutic care for other conditions) by licensed or certified speech, occupational , or physical therapists
Augmentative communication devices
Any other medical care provided by a licensed health care provider

24. NY Autism Insurance Reform Law
Effective for all state-regulated plans renewed after November 1st
No age or visit caps
Does not affect obligations of IFSP, IEP or ISP
Must be prescribed by a physician or psychologist
Self – regulated plans (under ERISA) can voluntarily elect to add coverage

25. NYS Autism Insurance Reform Law
The Law Defines Applied Behavior Analysis and behavioral treatment and refers to “certified behavior analysts” and the “Behavior Analyst Certification Board.”

26. Implementing Autism Insurance Reform
The law defines behavioral health treatment for autism as treatment programs provided by a licensed provider, and applied behavior analysis, when provided or supervised by a behavior analyst pursuant to the BACB

27. Conflicts in Implementation
Title VIII of the Education Law requires that providers of mental health services be licensed
Community not-for-profit agencies lack authority to provide professional services or employ licensed professionals under Title VIII
Only PLLCs have authority to employ licensed professionals (not LLCs)
In short, many community not-for-profits and for profit LLCs cannot provide professional services or employ licensed professionals – unless waiver received

29. OPWDD Behavior Management Regulations
Applies to:
Residential facilities
Certified facilities; except free standing respite; clinic treatment facilities and diagnostic and research clinics
Day habilitation services (whether or not provided in a certified facility);
Prevocational services
Community habilitation

30. Level 1 BIS BIS – Behavior Intervention Specialist
Master’s degree from a program in a clinical and/or treatment field of psychology; documented training in assessment techniques and behavioral support plan development
5 years of relevant experience

31. BIS 2 – Another Option
Master’s degree in a clinical or treatment field in psychology, social work, school psychology, or a related human services field; or
New York State license in Mental Health Counseling; and
OPWDD-approved specialized training or experience in assessment techniques and behavioral support; and
Provided behavioral services for an agency in the OPWDD continuously since December 31, 2012
Also BA level working on MA and meeting two bullets above

32. Level 2 BIS
All of the above and
National board certification in behavior analysis (BCBA); and
Master’s degree in behavior analysis, or a field closely related to clinical or community psychology which is approved by OPWDD review

33. Waiver Process
OPWDD may approve a waiver upon application of the provider if the provider documents that it is unable to employ, or access contractual services from licensed psychologist, or licensed clinical social worker; the provider is in a rural area

34. Behavior Support Plan
Level 1 BIS may develop and/or supervise plan or service that does not include restrictive/intrusive interventions
Level 2 BIS may develop plans or service that does not include restrictive/intrusive interventions under the supervision of Level 1 BIS
Behavior support plans with restrictive/intrusive interventions must be under supervision of licensed psychologist or LCSW

35. Important Links
Report to the Legislature and Executive Pursuant to Chapters 130 & 132 of the Laws of
OPWDD Behavior Regulations

36. Right to Practice Independently
If you are engaging in activities defined by Article 153 (the practice of psychology) and:
You are a Behavior Analyst (BCBA) who has no other qualifying credential (e.g., psychologist, teacher, speech pathologist)
You are not practicing within an exempted setting
You may be violating the practice of psychology
Not Legal Advice

37. Right to Practice Independently
If you are:
An individual with a master’s degree in school psychology (certified) from an accredited institution and a BCBA
Working for an approved OPWDD agency to conduct FBAs and develop behavioral plans
Your work:
Exempted from the psychology practice act at this time
May be approved as a BIS 2
Not Legal Advice

38. Right to Practice If you operate a community not-for-profit agency:
Provide professional services
Use unlicensed professionals, including BCBAs
You may be:
Violating NYS corporate practice laws unless you submitted wavier applications

39. Solution
Achieving a licensure for behavior analysts resolves many of the issues

40. Key NYS and National Players
NYS Office of Professions
NYS Psychology License Board
Other interested professions (e.g., OT, social work, speech)
American Psychological Association
NYS Psychological Association
Office for Persons with Developmental Disabilities
NYS Department of Health, Early Intervention
NYS State Education
US Health and Human Services, HCA

41. Threats: Right to Practice Independently
APA – Practice Directorate
Some question the independent practice of ABA
Particularly as it pertains to insurance reimbursement
In some states, the actions of psychologists pose a impediment to the licensure of behavior analysts

42. Threats: Right to Practice Independently
State psychology licensing boards/associations actions
West Virginia – rule requiring BAs to be supervised by psychologists
Massachusetts – legislation to have clinical psychologists control licensure – appears to have backed changed
South Carolina – cease-and-desist orders to BAs but recended
North Carolina – supervised by psychology
Association of State and Provincial Psychology Boards (ASPPB)
Formally indicated that ABA practice constitutes practice of psychology
Must be supervised by psychologist – update: appear to have clarified that this is not their intent

43. What Does the Field Have to Do?
Stay Informed and be prepared to act
Consistently use similar definitions and terms
Clearly define ABA and the range of practice
Articulate that ABA a distinct and different discipline – not part of psychology
Use language likely to enhance the ability to participate in insurance reimbursement - ABA a behavioral health practice
Know and defend the BCBAs training and experience requirements as the standard for licensure
Unfortunately, we don’t have a lot time

44. Should Not Be Licensed or Supervised by Other Professions
Talking Points: Green & Carr
Distinct profession separate from psychology or other disciplines
Originated in experimental, not clinical psychology but developed own concepts, principles, research methods and literature
Some BA programs reside in psychology departments, few psychology programs provide training in BA
Recent practice analysis by ASPPB, did not include behavior analysis, ABA, or behavioral psychology among major areas of training or practice

45. Common Language: ABA In Practice
An approach comprising many evidence-based techniques
Stresses positive reinforcement and scientific evaluation
Highly individualized
Intervention is adjusted continuously based on data
Delivered in a range of settings
Effective for improving functioning and reducing problematic behaviors in people of all ages, with and without disabilities, when implemented by professionals with legitimate training and experience in the discipline of behavior analysis
(G. Green)
Copyright 2011 Gina Green

46. Identifying Qualified Providers
The practice of applied behavior analysis (ABA) is a distinct profession
Not the same as clinical or developmental psychology, behavior therapy, school psychology, counseling, social work, special education, etc.
Like other professions, practicing ABA requires specialized training
Many behavior analytic methods are powerful, can easily be misused and abused by those who lack proper training
G. Green
Copyright 2011 Gina Green

47. Support for the BACB Credentialing Process
Established in 1998 to credential practitioners of ABA
Two levels – BCBA and BCaBA
Requires MA degree
Completion of coursework and supervised experience
Must pass a psychometrically valid and reliable test
Conducted thorough job analyses to identify knowledge, skills and abilities required – subject matter experts and 1000s of surveys
Task list is foundation for eligibility requirements
Comparison of BACB task list with practice analysis for licensed psychologists reveal almost no overlap

48. BACB Certification Program
Accredited by National Council for Certifying Agencies of the Institute for Credentialing Excellence
Provides valuable protections for practitioners, consumers, governments:
Content and requirements controlled by the profession
Requirements cannot be changed by small group of people on basis of transient political pressures
Solid foundation in case law on professional credentialing
NCCA-accredited credentials are accepted by many public and private funding sources
G. Green
Copyright 2011 Gina Green

49. BACB Certification Program
> 10,000 certificants around the world; over 150 universities with course sequences approved by the BACB as meeting coursework requirements for certification eligibility;
350 testing sites worldwide
APBA - Association of Professional Behavior Analysts supports BACB-certified practitioners
G. Green
Copyright 2011 Gina Green

50. Criticism About the BCBA
Claim that there is no professional oversight for BCBAs
The BACB has a Professional and Disciplinary Standards and may issue sanctions, including denial of initial license and revocation of license
Claim that the BCBA may have a bachelor’s degree in an unrelated field
Must have a degree from an accredited university, that was conferred in behavior analysis or other natural science, education, human services, engineering, medicine or a field related to behavior analysis and approved by the BACB

51. ABA: Evidence-based Treatment for ASD
Hundreds of published studies document the effectiveness of many specific, focused ABA techniques for building a wide range of important skills and reducing problem behaviors in people with ASD of all ages, in a variety of settings
G. Green
Copyright 2011 Gina Green

52. ABA: Evidence-based Treatment for ASD (G. Green)
At least 11 controlled between-groups studies show that multiple ABA techniques combined into early comprehensive, intensive treatment programs can produce large improvements in symptoms and skill deficits in many young children with ASD when treatment is directed by qualified professional behavior analysts.
Careful meta-analyses showed that early intensive ABA produced larger, more reliable improvements than “eclectic” (mixed-method) treatment or standard services
Copyright 2011 Gina Green

53. ABA: Medically Necessary Treatment
Medically necessary treatments ameliorate or manage symptoms, improve functioning, and/or prevent deterioration.
ASDs are Neurodevelopmental conditions that manifest in behavioral symptoms in social interaction, communication, and interests and activities.
ABA treatment has proved effective for ameliorating those core symptoms as well as building other skills that enhance functioning
Personal safety skills; Hygiene and self-care skills; Eating a healthy diet; Sleeping; Cooperating with medical and dental procedures
G. Green
Copyright 2011 Gina Green

54. ABA: Medically Necessary Treatment
ABA interventions have also proved effective for decreasing behaviors that directly jeopardize the health and welfare of people with ASD, such as
Self-injurious behaviors
Property destruction
Pica (ingesting inedible items)
Aggression
Elopement
Obsessive behaviors
Hyperactivity
Fearful behaviors
G. Green
Copyright 2011 Gina Green

55. Essential Health Benefits
Affordable Care Act (ACA)
Mandated broad package of “essential health benefits” equivalent to a typical employer plan
Purchased by average premium of small businesses
Employees of small businesses (fewer than 100) with low-to-moderate incomes eligible for subsidized coverage through insurance exchanges or expansion of Medicaid

56. Essential Health Benefits
10 broad benefits categories of Service:
Ambulatory patient
Emergency
Hospitalization
Maternity and newborn care
Mental health and substance abuse disorder, including behavioral health treatment
Prescriptive drugs
Rehabilitative and habilitative
Laboratory
Preventative and wellness and chronic disease management
Pediatric

57. Current Capacity in NYS
Does NYS have sufficient capacity to justify license and to meet anticipated need?
701 board certified behavior analysts in NYS and over 10,000 internationally
12 colleges and universities in NYS have established course sequence leading to certification

58. Capacity in NYS Certified Individuals in NYS: BCBA – D 107 BCBA 594
BCaBA 46
Total: 689
(Jennica Nill)

59. Capacity in NYS (2011) Areas of Certification
281 – Certified in Office of Teaching Initiatives (OTI), most are teachers but also includes school psychologists, speech, administration, social work, counselors
43 – Licensed by Office of Professions (Mental health counselor, MSW, SLP, psychologists)
(Jennica Nill)

60. NYSABA Activities NYSABA Board of Directors and Legislative Committee
Established a set of goals
Community grass routes structure – consumer groups/individuals
General communications – written materials, talking points
NYSABA membership – efforts to increase
Regulatory influence – autism insurance, OPWDD, Early Intervention,
License / Certification
Board of Regents
Universities/Colleges with ABA course sequences

61. APBA Activities
Developed a resource of materials on ABA, licensure / certification
Testified on behalf of individual behavior analysts and state association’s seeking licensure
Worked closely with Autism Speaks on Autism Insurance Bills
Helped draft licensure bills and supporting materials
Responded to mischaracterizations of ABA and behavior analysts

62. Summary
Goal is to obtain the right for Behavior Analysts to practice independently of other professions
The field must act quickly and decisively
The Autism Insurance Reform Act creates an incredible opportunity
Licensure / certification will lead to greater protection of consumers and higher professional standards
Join NYSABA – volunteer
Join APBA