Transcript behavioral - New York State Association for Behavior Analysis

New Developments in the Licensure
of Behavior Analysts
Stephen R. Anderson, Ph.D., BCBA - D
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Dedicated exclusively to the
practice of ABA
Not-for-profit 501(c)(6)
Membership organization
International
Mission
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 Represent the interests of BACBcredentialed professions
 Provide support and resources to members
 Work with federal, state, governmental and
third party entities to support its members
Mission
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 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
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
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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
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 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-forprofit agencies that want to employ behavior
analysts; and impedes the implementation of the
NYS Insurance Reform Act
Examining Licensure Within Current Conditions
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 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
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 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
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 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
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 Why is this important to behavior analysts, agencies
that employ behavior analysts, insurance companies
and behavioral health care plans, and consumers?
Licensure of Psychotherapists
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 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)
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 “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
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 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
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 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
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 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
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 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
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 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
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Functions
 Assessment/Evaluation - 133
 Diagnosis - 52
 Psychotherapy - 97
 Assessment and treatment planning - 143
 Other functions – 128
Duplicated count?
Proposed Agency Solutions
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 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
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 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
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 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
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 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
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 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
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 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
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 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
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 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
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OPWDD Behavior Management Regulations
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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
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 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
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 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
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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
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 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
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 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
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 Report to the Legislature and Executive Pursuant to
Chapters 130 & 132 of the Laws of 2010
www.op.nysed.gov/surveys/mhpsw/exemptfinalreport.htm
 OPWDD Behavior Regulations
www.opwdd.ny.gov/regulations_guidance/opwdd_regulati
ons/person_centered_behavioral_intervention
Right to Practice Independently
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 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
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 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
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 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
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 Achieving a licensure for behavior analysts resolves
many of the issues
Key NYS and National Players
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 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
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 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
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 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?
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 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
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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
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• 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
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 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
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 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
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 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
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 > 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
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 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
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• 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)
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• 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.
o 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
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• 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
o 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
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• ABA interventions have also proved effective for
decreasing behaviors that directly jeopardize the
health and welfare of people with ASD, such as
o Self-injurious behaviors
o Property destruction
o Pica (ingesting inedible items)
o Aggression
o Elopement
o Obsessive behaviors
o Hyperactivity
o Fearful behaviors
G. Green
Copyright 2011 Gina Green
Essential Health Benefits
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 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
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 10 broad benefits categories of Service:
Ambulatory patient
2. Emergency
3. Hospitalization
4. Maternity and newborn care
1.
5.
Mental health and substance abuse disorder,
including behavioral health treatment
Prescriptive drugs
7. Rehabilitative and habilitative
8. Laboratory
9. Preventative and wellness and chronic disease management
10. Pediatric
6.
Current Capacity in NYS
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 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
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• Certified Individuals in NYS:
BCBA – D
BCBA
BCaBA
Total: 689
(Jennica Nill)
107
594
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Capacity in NYS (2011)
• Areas of Certification
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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
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 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
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 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
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 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