Bill Text: AZ SB1335 | 2017 | Fifty-third Legislature 1st Regular | Chaptered
Bill Title: Behavior analysts; committee; licensure; regulation
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2017-05-03 - Chapter 273 [SB1335 Detail]
Download: Arizona-2017-SB1335-Chaptered.html
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Senate Engrossed |
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State of Arizona Senate Fifty-third Legislature First Regular Session 2017
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CHAPTER 273
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SENATE BILL 1335 |
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AN ACT
Amending sections 32‑2061, 32‑2062, 32‑2063, 32‑2065, 32‑2091.09 and 32‑2091.14, Arizona Revised Statutes; amending title 32, chapter 19.1, article 4, Arizona Revised Statutes, by adding section 32‑2091.15; relating to the state board of psychologist examiners.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 32-2061, Arizona Revised Statutes, is amended to read:
32-2061. Definitions
In this chapter, unless the context otherwise requires:
1. "Active license" means a valid and existing license to practice psychology.
2. "Adequate records" means records containing, at a minimum, sufficient information to identify the client or patient, the dates of service, the fee for service, the payments for service, the type of service given and copies of any reports that may have been made.
3. "Board" means the state board of psychologist examiners.
4. "Client" means a person or an entity that receives psychological services. A corporate entity, a governmental entity or any other organization may be a client if there is a professional contract to provide services or benefits primarily to an organization rather than to an individual. If an individual has a legal guardian, the legal guardian is the client for decision‑making purposes, except that the individual receiving services is the client or patient for:
(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.
(b) Issues that the guardian agrees to specifically reserve to the individual.
5. "Committee" on behavior analysts means the committee established by section 32‑2091.15.
5. 6. "Exploit" means actions by a psychologist who takes undue advantage of the professional association with a client or patient, a student or a supervisee for the advantage or profit of the psychologist.
6. 7. "Health care institution" means a facility as defined in section 36‑401.
7. 8. "Letter of concern" means an advisory letter to notify a psychologist that while there is insufficient evidence to support disciplinary action the board believes the psychologist should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the psychologist's license.
8. 9. "Patient" means a person who receives psychological services. If an individual has a legal guardian, the legal guardian is the client or patient for decision‑making purposes, except that the individual receiving services is the client or patient for:
(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.
(b) Issues that the guardian agrees to specifically reserve to the individual.
9. 10. "Practice of psychology" means the psychological assessment, diagnosis, treatment or correction of mental, emotional, behavioral or psychological abilities, illnesses or disorders or purporting or attempting to do this consistent with section 32‑2076.
11. "Psychologically incompetent" means a person lacking in sufficient psychological knowledge or skills to a degree likely to endanger the health of clients or patients.
10. 12. "Psychological service" means all actions of the psychologist in the practice of psychology.
12. 13. "Psychologist" means a natural person holding a license to practice psychology pursuant to this chapter.
13. 14. "Supervisee" means any person who functions under the extended authority of the psychologist to provide, or while in training to provide, psychological services.
14. 15. "Telepractice" means providing psychological services through interactive audio, video or electronic communication that occurs between the psychologist and the patient or client, including any electronic communication for diagnostic, treatment or consultation purposes in a secure platform, and that meets the requirements of telemedicine pursuant to section 36‑3602. Telepractice includes supervision.
15. 16. "Unprofessional conduct" includes the following activities whether occurring in this state or elsewhere:
(a) Obtaining a fee by fraud or misrepresentation.
(b) Betraying professional confidences.
(c) Making or using statements of a character tending to deceive or mislead.
(d) Aiding or abetting a person who is not licensed pursuant to this chapter in representing that person as a psychologist.
(e) Gross negligence in the practice of a psychologist.
(f) Sexual intimacies or sexual intercourse with a current client or patient or a supervisee or with a former client or patient within two years after the cessation or termination of treatment. For the purposes of this subdivision, "sexual intercourse" has the same meaning prescribed in section 13‑1401.
(g) Engaging or offering to engage as a psychologist in activities that are not congruent with the psychologist's professional education, training and experience.
(h) Failing or refusing to maintain and retain adequate business, financial or professional records pertaining to the psychological services provided to a client or patient.
(i) Commission of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.
(j) Making a fraudulent or untrue statement to the board or its investigators, staff or consultants.
(k) Violating any federal or state laws or rules that relate to the practice of psychology or to obtaining a license to practice psychology.
(l) Practicing psychology while impaired or incapacitated to the extent and in a manner that jeopardizes the welfare of the client or patient or renders the psychological services provided ineffective.
(m) Using fraud, misrepresentation or deception to obtain or attempt to obtain a psychology license or to pass or attempt to pass a psychology licensing examination or in assisting another person to do so.
(n) Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a psychologist.
(o) Providing services that are unnecessary or unsafe or otherwise engaging in activities as a psychologist that are unprofessional by current standards of practice.
(p) Falsely or fraudulently claiming to have performed a professional service, charging for a service or representing a service as the licensee's own when the licensee has not rendered the service or assumed supervisory responsibility for the service.
(q) Representing activities or services as being performed under the licensee's supervision if the psychologist has not assumed responsibility for them and has not exercised control, oversight and review.
(r) Failing to obtain a client's or patient's informed and written consent to release personal or otherwise confidential information to another party unless the release is otherwise authorized by law.
(s) Failing to make client or patient records in the psychologist's possession promptly available to another psychologist who is licensed pursuant to this chapter on receipt of proper authorization to do so from the client or patient, a minor client's or patient's parent, the client's or patient's legal guardian or the client's or patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.
(t) Failing to take reasonable steps to inform or protect a client's or patient's intended victim and inform the proper law enforcement officials in circumstances where in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm to on another person.
(u) Failing to take reasonable steps to protect a client or patient in circumstances where in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm to on self.
(v) Abandoning or neglecting a client or patient in need of immediate care without making suitable arrangements for continuation of the care.
(w) Engaging in direct or indirect personal solicitation of clients or patients through the use of coercion, duress, undue influence, compulsion or intimidation practices.
(x) Engaging in false, deceptive or misleading advertising.
(y) Exploiting a client or patient, a student or a supervisee.
(z) Failing to report information to the board regarding a possible act of unprofessional conduct committed by another psychologist who is licensed pursuant to this chapter unless this reporting violates the psychologist's confidential relationship with the client or patient pursuant to section 32‑2085. Any psychologist who reports or provides information to the board in good faith is not subject to an action for civil damages. For the purposes of this subdivision, it is not an act of unprofessional conduct if a licensee addresses an ethical conflict in a manner that is consistent with the ethical standards contained in the document entitled "ethical principles of psychologists and code of conduct" as adopted by the American psychological association and in effect at the time the licensee makes the report.
(aa) Violating a formal board order, consent agreement, term of probation or stipulated agreement issued under this chapter.
(bb) Failing to furnish information in a timely manner to the board or its investigators or representatives if requested or subpoenaed by the board as prescribed by this chapter.
(cc) Failing to make available to a client or patient or to the client's or patient's designated representative, on written request, a copy of the client's or patient's record, including raw test data, psychometric testing materials and other information as provided by law.
(dd) Violating an ethical standard adopted by the board.
Sec. 2. Section 32-2062, Arizona Revised Statutes, is amended to read:
32-2062. Board; qualifications; appointments; terms; compensation; immunity
A. The state board of psychologist examiners is established consisting of nine ten members appointed by the governor pursuant to section 38‑211.
B. Each member of the board shall be a citizen of the United States and a resident of this state at the time of appointment. Six seven members shall be licensed pursuant to this chapter, and three shall be public members who are not eligible for licensure. The board shall have at all times, except for the period when a vacancy exists, at least two members who are licensed as psychologists and who are full-time faculty members from universities in this state with a doctoral program in psychology that meets the requirements of section 32-2071, and at least three members who are psychologists in professional practice and at least two members who are behavior analysts in professional practice and who are members of the committee on behavior analysts. The public members shall not have a substantial financial interest in the health care industry and shall not have a household member who is eligible for licensure under this chapter.
C. Each member shall serve for a term of five years beginning and ending on the third Monday in January.
D. A vacancy on the board occurring other than by the expiration of term shall be filled by appointment by the governor for the unexpired term as provided in subsection C of this section. The governor, after a hearing, may remove any member of the board for misconduct, incompetency or neglect of duty.
E. Board members shall receive compensation in the amount of one hundred dollars for each cumulative eight hours of actual service in the business of the board and reimbursement of all expenses pursuant to title 38, chapter 4, article 2.
F. Members of the board and its employees, consultants and test examiners are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.
Sec. 3. Section 32-2063, Arizona Revised Statutes, is amended to read:
32-2063. Powers and duties
A. The board shall:
1. Administer and enforce this chapter and board rules.
2. Regulate disciplinary actions, the granting, denial, revocation, renewal and suspension of licenses and the rehabilitation of licensees pursuant to this chapter and board rules.
3. Prescribe the forms, content and manner of application for licensure and renewal of licensure and set deadlines for the receipt of materials required by the board.
4. Keep a record of all licensees, board actions taken on all applicants and licensees and the receipt and disbursal of monies.
5. Adopt an official seal for attestation of licenses and other official papers and documents.
6. Investigate charges of violations of this chapter and board rules and orders.
7. Subject to title 41, chapter 4, article 4, employ an executive director who serves at the pleasure of the board.
8. Annually elect from among its membership a chairman, a vice‑chairman and a secretary, who serve at the pleasure of the board.
9. Adopt rules pursuant to title 41, chapter 6 to carry out this chapter and to define unprofessional conduct.
10. Engage in a full exchange of information with other regulatory boards and psychological associations, national psychology organizations and the Arizona psychological association and its components.
11. By rule, adopt a code of ethics relating to the practice of psychology. The board shall base this code on the code of ethics adopted and published by the American psychological association. The board shall apply the code to all board enforcement policies and disciplinary case evaluations and development of licensing examinations.
12. Adopt rules regarding the use of telepractice on or before June 30, 2016.
13. Before the board takes action, receive and consider recommendations from the committee on behavior analysts on all matters relating to the licensing and regulation of behavior analysts, as well as regulatory changes pertaining to the practice of behavior analysis, except in the case of a summary suspension of a license pursuant to section 32‑2091.09, subsection E.
B. Subject to title 41, chapter 4, article 4, the board may employ personnel it deems necessary to carry out this chapter. The board, in investigating violations of this chapter, may employ investigators who may be psychologists. The board or its executive director may take and hear evidence, administer oaths and affirmations and compel by subpoena the attendance of witnesses and the production of books, papers, records, documents and other information relating to the investigation or hearing.
C. Subject to section 35‑149, the board may accept, expend and account for gifts, grants, devises and other contributions, money or property from any public or private source, including the federal government. The board shall deposit, pursuant to sections 35‑146 and 35‑147, monies received pursuant to this subsection in special funds for the purpose specified, and monies in these funds are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
D. Compensation for all personnel shall be determined pursuant to section 38‑611.
Sec. 4. Section 32-2065, Arizona Revised Statutes, is amended to read:
32-2065. Board of psychologist examiners fund; separate behavior analyst account
A. The board of psychologist examiners fund is established.
B. Except as provided in section 32‑2081 and section 32‑2091.09, subsection J I, pursuant to sections 35‑146 and 35‑147, the board shall deposit ten per cent percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining ninety per cent percent in the board of psychologist examiners fund.
C. All monies deposited in the board of psychologist examiners fund are subject to section 35‑143.01.
D. All monies deposited in the board of psychologist examiners fund pursuant to section 32‑2067 and any monies received pursuant to section 32-2063, subsection C for psychologist licensing and regulation must be used only for the licensing and regulation of psychologists pursuant to this article and articles 2 and 3 of this chapter and may not be used for the licensing and regulation of behavior analysts pursuant to article 4 of this chapter.
E. All monies deposited in the board of psychologist examiners fund pursuant to article 4 of this chapter and any monies received pursuant to section 32‑2063, subsection C for behavior analyst licensing and regulation must be used only for the licensing and regulation of behavior analysts pursuant to article 4 of this chapter and may not be used for the licensing and regulation of psychologists pursuant to this article and articles 2 and 3 of this chapter.
F. The board shall establish a separate account in the fund for monies transferred to the fund pursuant to article 4 of this chapter and any monies received pursuant to section 32‑2063, subsection C for behavior analyst licensing and regulation.
Sec. 5. Section 32-2091.09, Arizona Revised Statutes, is amended to read:
32-2091.09. Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice requirements; civil penalty
A. The board on its own motion may investigate evidence that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. A health care institution shall, and any other person may, report to the board information that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. The board shall notify the licensee about whom information has been received as to the content of the information within one hundred twenty days after receiving the information. A person who reports or provides information to the board in good faith is not subject to an action for civil damages. The board, if requested, shall not disclose the name of the person providing information unless this information is essential to proceedings conducted pursuant to this section. The board shall report a health care institution that fails to report as required by this section to the institution's licensing agency.
B. The board shall not consider a complaint against a behavior analyst arising out of a judicially ordered evaluation of a person charged with violating any provision of title 13, chapter 14 to present a charge of unprofessional conduct unless the court ordering the evaluation has found a substantial basis to refer the complaint for consideration by the board. The board shall not consider a complaint against a judicially appointed behavior analyst arising out of a court ordered evaluation of a person to present a charge of unprofessional conduct unless the court ordering the evaluation has found a substantial basis to refer the complaint for consideration by the board.
C. B. A health care institution shall inform the board if the privileges of a licensee to practice in that institution are denied, revoked, suspended or limited because of actions by the licensee that appear to show that the person is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis, along with a general statement of the reasons that led the health care institution to take this action. A health care institution shall inform the board if a licensee under investigation resigns the licensee's privileges or if a licensee resigns in lieu of disciplinary action by the health care institution. Notification must include a general statement of the reasons for the resignation.
D. C. The board may require the licensee to undergo any combination of mental, physical or psychological competence examinations at the licensee's expense and shall conduct investigations necessary to determine the competence and conduct of the licensee.
E. D. The chairperson of the board shall appoint a complaint screening committee of at least three members of the board, including a public member. The complaint screening committee is subject to open meeting requirements pursuant to title 38, chapter 3, article 3.1. The complaint screening committee on behavior analysts shall review all complaints against behavior analysts and, based on the information provided pursuant to subsection A or B C of this section, may take either of the following actions:
1. Dismiss the complaint if the committee determines that the complaint is without merit. Complaints dismissed by the complaint screening committee shall not be disclosed in response to a telephone inquiry or placed on the board's website.
2. Refer the complaint to the full board for further review and action. shall submit its recommendations to the full board.
F. E. If the board finds, based on the information it receives under subsection A or B C of this section, that the public health, safety or welfare requires emergency action, the board may order a summary suspension of a license pending proceedings for revocation or other action. If the board issues this order, it shall serve the licensee with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10, setting forth the charges made against the licensee and the licensee's right to a formal hearing before the board or an administrative law judge within sixty days. The board shall notify the committee on behavior analysts of any action taken pursuant to this subsection.
G. F. If the board finds that the information provided pursuant to subsection A or B C of this section is not of sufficient seriousness to merit direct action against the licensee, it may take any of the following actions:
1. Dismiss if the board believes the information is without merit.
2. File a letter of concern.
3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.
H. G. If the board believes the information provided pursuant to subsection A or C B of this section is or may be true, it may request an informal interview with the licensee. If the licensee refuses to be interviewed or if pursuant to an interview the board determines that cause may exist to revoke or suspend the license, it shall issue a formal complaint and hold a hearing pursuant to title 41, chapter 6, article 10. If as a result of an informal interview or a hearing the board determines that the facts do not warrant revocation or suspension of the license, it may take any of the following actions:
1. Dismiss if the board believes the information is without merit.
2. File a letter of concern.
3. Issue a decree of censure.
4. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee. Probation may include temporary suspension for not more than twelve months, restriction of the license or restitution of fees to a client resulting from violations of this article. If a licensee fails to comply with a term of probation, the board may file a complaint and notice of hearing pursuant to title 41, chapter 6, article 10 and take further disciplinary action.
5. Enter into an agreement with the licensee to restrict or limit the licensee's practice or activities in order to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of behavior analysis.
6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.
I. H. If the board finds that the information provided pursuant to subsection A or B C of this section warrants suspension or revocation of a license, it shall hold a hearing pursuant to title 41, chapter 6, article 10. Notice of a complaint and hearing is fully effective by mailing a true copy to the licensee's last known address of record in the board's files. Notice is complete at the time of its deposit in the mail.
J. I. The board may impose a civil penalty of at least three hundred dollars but not more than three thousand dollars for each violation of this article or a rule adopted under this article. The board shall deposit, pursuant to sections 35‑146 and 35‑147, all monies it collects from civil penalties pursuant to this subsection in the state general fund.
K. J. If the board determines after a hearing that a licensee has committed an act of unprofessional conduct, is mentally or physically unable to safely engage in the practice of behavior analysis or is incompetent as a behavior analyst, it may do any of the following in any combination and for any period of time it determines necessary:
1. Suspend or revoke the license.
2. Censure the licensee.
3. Place the licensee on probation.
L. K. A licensee may submit a written response to the board within thirty days after receiving a letter of concern. The response is a public document and shall be placed in the licensee's file.
M. L. A letter of concern is a public document and may be used in future disciplinary actions against a licensee. A decree of censure is an official action against the behavior analyst's license and may include a requirement that the licensee return fees to a client.
N. M. Except as provided in section 41‑1092.08, subsection H, a person may appeal a final decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.
O. N. If during the course of an investigation the board determines that a criminal violation may have occurred involving the delivery of behavior analysis services, it shall inform the appropriate criminal justice agency.
Sec. 6. Section 32-2091.14, Arizona Revised Statutes, is amended to read:
32-2091.14. Status as behavioral health professional
Notwithstanding any law to the contrary, the department of health services Arizona health care cost containment system administration shall recognize a behavior analyst who is licensed pursuant to this article as a behavioral health professional who is eligible for reimbursement of services.
Sec. 7. Title 32, chapter 19.1, article 4, Arizona Revised Statutes, is amended by adding section 32-2091.15, to read:
32-2091.15. Committee on behavior analysts; membership; duties; board responsibilities
A. The committee on behavior analysts is established within the state board of psychologist examiners consisting of five members who are appointed by the governor and who serve at the pleasure of the governor. Each member shall serve for a term of five years beginning and ending on the third Monday in January. A committee member may not serve more than two full consecutive terms.
B. All members of the committee shall be licensed behavior analysts in professional practice, two of whom shall be members of the board. The committee shall annually elect a chairperson from among its membership.
C. within one year after their initial appointment to the committee, members shall receive at least five hours of training prescribed by the board that includes instruction in ethics and open meeting requirements.
D. committee members shall receive reimbursement of all expenses pursuant to title 38, chapter 4, article 2.
E. The committee shall make recommendations to the board on all matters relating to the licensing and regulation of behavior analysts. The committee may recommend regulatory changes to the board that are not specific to an individual licensee, but the committee shall obtain public input from behavior analyst licensees or their designated representatives before making any final recommendation to the board.
Sec. 8. Initial terms of the committee on behavior analysts
A. Notwithstanding section 32‑2091.15, Arizona Revised Statutes, as added by this act, the initial terms of the members of the committee on behavior analysts are:
1. One term ending January 1, 2021.
2. Two terms ending January 1, 2022.
3. Two terms ending January 1, 2023.
B. The governor shall make all subsequent appointments as prescribed by statute.
Sec. 9. Effective date
This act is effective from and after October 31, 2017.
APPROVED BY THE GOVERNOR MAY 3, 2017.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 3, 2017.
