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

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

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

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

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. 

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

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

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

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

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

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?

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

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.”

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

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

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

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

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

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

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

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

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]

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

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

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.”

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

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

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

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

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

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

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

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

Important Links Report to the Legislature and Executive Pursuant to Chapters 130 & 132 of the Laws of 2010 www.op.nysed.gov/surveys/mhpsw/exempt-finalreport.htm    OPWDD Behavior Regulations www.opwdd.ny.gov/regulations_guidance/opwdd_regulations/person_centered_behavioral_intervention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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)

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

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

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