Bill Text: HI HB2657 | 2018 | Regular Session | Amended
Bill Title: Relating To Behavior Analysis.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2018-04-23 - Received notice of Senate conferees (Sen. Com. No. 815). [HB2657 Detail]
Download: Hawaii-2018-HB2657-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2657 |
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TWENTY-NINTH LEGISLATURE, 2018 |
H.D. 1 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO BEHAVIOR ANALYSIS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the State's department of health developmental disabilities division operates the medicaid intellectual and developmental disabilities home and community-based services waiver under the medicaid services section 1915(c) of the Social Security Act (HCBS I/DD waiver). The HCBS I/DD waiver is reviewed and approved by the United States Department of Health and Human Services Centers for Medicare and Medicaid Services and has many requirements to ensure appropriate and efficient provision of services and supports to people with intellectual and developmental disabilities.
For children in the HCBS I/DD waiver who have an autism spectrum disorder, the Centers for Medicare and Medicaid Services has clarified that services for the treatment of autism spectrum disorder must be provided through the child's medicaid health plan through medicaid's early and periodic screening, diagnosis, and treatment benefit. Services cannot be provided under waiver services pursuant to section 1915(c) of the Social Security Act. Therefore, the developmental disabilities division provides behavior analysis services only to adults with behavioral challenges and only in home and community-based settings.
The legislature further finds that the Centers for Medicare and Medicaid Services requires states to provide participant safeguards that ensure the health, safety, and rights of HCBS I/DD waiver participants. The state developmental disabilities division has policies and procedures to ensure that positive behavior supports are used to proactively minimize challenging behaviors, and define and limit the use of restrictive procedures. The developmental disabilities division also conducts oversight for continuous quality assurance to ensure safe and appropriate practices that include a behavior review committee to review quality of care for individuals who need supports to learn new behaviors.
Amending the exemptions for participants in the medicaid intellectual and developmental disabilities waiver will ensure that a qualified workforce can continue to provide necessary behavior interventions while simultaneously facilitating efforts to build an adequate workforce for clients who depend on these services.
The purpose of this Act is to:
(1) Clarify and standardize the terminology used to refer to behavior analysis and the practice of applied behavior analysis;
(2) Broaden the exemption of certain
individuals and licensed or credentialed practitioners practicing within their
own recognized scopes of practice who are exempt from chapter 465D, Hawaii
Revised Statutes, the behavior analysts law.
SECTION 2. Section 465D-2, Hawaii Revised Statutes, is amended by amending the definitions of "licensed behavior analyst" and "practice of behavior analysis" to read as follows:
""Licensed behavior analyst" means a person:
(1) Who engages in the practice of applied behavior analysis and uses the title of licensed behavior analyst;
(2) Who has been issued a license under this chapter; and
(3) Whose license is in effect and not revoked, suspended, or encumbered.
"Practice
of applied behavior analysis" means the design, implementation, and
evaluation of instructional and environmental modifications to produce socially
significant improvements in human behavior.
Practice of applied behavior analysis includes the empirical
identification of functional relations between behavior and environmental
factors, known as functional assessment and analysis. Practice of applied behavior analysis
also includes the use of contextual factors, motivating operations, antecedent
stimuli, positive reinforcement, and other consequences to help people develop
new behaviors, increase or decrease existing behaviors, and emit behaviors
under specific environmental conditions.
Practice of applied behavior analysis expressly excludes
psychological testing, diagnosis of a mental or physical disorder,
neuropsychology, psychotherapy, cognitive therapy, sex therapy, psychoanalysis,
hypnotherapy, and long-term counseling as treatment modalities."
SECTION 3. Section 465D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Beginning on January 1, 2016, except as specifically provided in this chapter, no person shall engage in the practice of applied behavior analysis or use the title "licensed behavior analyst" or "behavior analyst" without a valid license issued pursuant to this chapter."
SECTION 4. Section 465D-5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§465D-5[]] Powers and duties of the director. In addition to any other powers and duties
authorized by law, the director shall have the powers and duties to:
(1) Grant, deny, renew, refuse to renew, restore, terminate, reinstate, condition, restrict, suspend, or revoke a license issued pursuant to this chapter;
(2) Grant permission to a person to engage in the practice of applied behavior analysis and to use the title of "licensed behavior analyst" or a description indicating that the person is a licensed behavior analyst in this State;
(3) Adopt, amend, or repeal rules pursuant to chapter 91 as the director finds necessary to carry out this chapter;
(4) Administer, coordinate, and enforce this chapter;
(5) Discipline a licensed behavior analyst on grounds specified by this chapter or chapter 436B or for any violation of rules adopted by the director pursuant to this chapter; and
(6) Refuse to license a person for failure to meet the licensing requirements in this chapter or for any reason specified by this chapter as grounds to discipline a behavior analyst including but not limited to violations of the Behavior Analyst Certification Board's ethical guidelines for responsible conduct."
SECTION 5. Section 465D-7, Hawaii Revised Statutes, is amended to read as follows:
"§465D-7 Exemptions. (a) This chapter is not intended to restrict the practice of other licensed or credentialed practitioners practicing within their own recognized scopes of practice and shall not apply to:
(1) An individual working within the scope of
practice or duties of another licensed profession that overlaps with the
practice of applied behavior analysis[; provided that the person does
not purport to be a behavior analyst;], including individuals directly
supervised by a licensed professional, such as unlicensed master's level practitioners,
students, and postdoctoral fellows, who may train and supervise a
paraprofessional, direct support worker, or parent or guardian in implementing
an applied behavior analysis intervention; provided that the supervision is
within that licensed professional's recognized scope of practice; and provided
further that the licensed professional and the supervised individual shall not
use the title "licensed behavior analyst";
(2) An individual who implements or designs
applied behavior analysis services and possesses board certification as an
assistant behavior analyst from a national certifying agency or by the
Behavior Analyst Certification Board and who practices in accordance with the
most recent supervisory and ethical requirements adopted by the [Behavior
Analyst Certification Board] national certifying agency under the
direction of a licensed behavior analyst [licensed in this State;]
or licensed psychologist;
(3) An individual who designs or implements
applied behavior analysis services to participants in the medicaid home and
community-based services waiver program pursuant to section 1915(c) of the
Social Security Act on or before January 1, 2024;
[(3)] (4)
An individual who directly implements applied behavior analysis services
and:
(A) Is credentialed as a [registered]
behavior technician by a nationally recognized training organization or the
Behavior Analyst Certification Board, and is under the direction of a licensed
behavior analyst [licensed in this State;] or licensed psychologist;
or
(B) Is a direct support worker who provides autism
treatment services pursuant to an individualized education plan on or before
January 1, 2019; [[or]
[(C)] Is a direct support worker who provides
medicaid home and community-based services pursuant to section 1915(c) of the
Social Security Act on or before January 1, 2019;]
provided that for purposes of this paragraph, "direct support worker" means a teacher or paraprofessional who directly implements intervention or assessment plans under supervision and does not design intervention or assessment plans;
[(4)] (5)
A family member [or], legal guardian, or caregiver
implementing an applied behavior analysis plan and who acts under the direction
of a licensed behavior analyst [licensed in this State;] or
licensed psychologist; provided that for the purposes of this paragraph,
"caregiver" means an individual who provides habilitative services in
an adult foster home, developmental disabilities domiciliary home, adult
residential care home, expanded adult residential care home, special treatment
facility, or therapeutic living program pursuant to the medicaid home and
community-based services waiver;
[(5)] (6)
An individual who engages in the practice of applied behavior
analysis with nonhuman or nonpatient clients or consumers including but not
limited to applied animal behaviorists and practitioners of organizational
behavior management;
[(6)] (7)
A matriculated graduate student or postdoctoral fellow whose activities
are part of a defined applied behavior analysis program of study,
practicum, or intensive practicum; provided that the student's or fellow's
activities or practice is directly supervised by a licensed behavior
analyst [licensed in this State] or licensed psychologist or an
instructor from a nationally recognized training organization or in a
Behavior Analyst Certification Board-approved course sequence; or
[(7)] (8)
An individual pursuing experience in applied behavior analysis
consistent with the Behavior Analyst Certification Board's experience
requirements; provided that the experience is supervised by a behavior analyst
licensed in this State.
(b) Nothing in this chapter shall be construed to
prevent any licensed psychologist from engaging in the practice of applied
behavior analysis in this State as long as the person is not in any manner held
out to the public as a "licensed behavior analyst" [or
"behavior analyst"] and the applied behavior analysis
services provided by the licensed psychologist are within the licensed psychologist's
recognized scope of practice."
SECTION 6. Section 465D-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore and may deny, revoke, suspend, or condition in any manner any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failure to meet or to maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements in advertising;
(3) Engaging in the practice of applied behavior analysis while impaired by alcohol, drugs, physical disability, or mental instability;
(4) Procuring through fraud, misrepresentation, or deceit a license to engage in the practice of applied behavior analysis;
(5) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license for the practice of applied behavior analysis;
(6) Engaging in professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of applied behavior analysis;
(7) Engaging in conduct or a practice contrary to recognized standards of the most recent ethical guidelines for the practice of applied behavior analysis as adopted by the Behavior Analyst Certification Board;
(8) Violating any condition or limitation imposed by the director on a license to practice applied behavior analysis;
(9) Engaging in the practice of applied behavior analysis in a manner that causes injury to one or more members of the public;
(10) Failing to comply with, observe, or adhere to any law in a manner that causes the director to determine that the applicant or holder is unfit to hold a license;
(11) Having a license revoked or suspended or other disciplinary action by any state or federal agency for any reason that is provided by the applicable licensing laws or by this section;
(12) Having been convicted or pleaded nolo contendere to a crime directly related to the qualifications, functions, or duties of the practice of applied behavior analysis;
(13) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(14) Failing to report in writing to the director the Behavior Analyst Certification Board's revocation of the certification of a licensee or applicant within fifteen days of the revocation;
(15) Employing, whether gratuitously or for pay, any person not licensed pursuant to this chapter to perform the functions or duties of the practice of applied behavior analysis; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 3000.
Report Title:
Behavior Analysis; Developmental Disabilities; Medicaid; Waiver; Applied Behavior Analysis; Autism Spectrum Disorder; Scope of Practice
Description:
Clarifies and standardizes the terminology used to refer to behavior analysis and the practice of applied behavior analysis. Broadens and clarifies the exemption of licensed or credentialed practitioners practicing within their own recognized scopes of practice who are already exempt from the Behavior Analyst Law. Effective 7/1/3000. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
