SF 2180

as introduced - 89th Legislature (2015 - 2016) Posted on 05/15/2015 08:44am

A bill for an act
relating to health; establishing licensing requirements for behavior analysts and
assistant behavior analysts; modifying definitions related to autism spectrum
disorder; creating an advisory council; amending Minnesota Statutes 2014,
section 148B.51; proposing coding for new law as Minnesota Statutes, chapter
148G.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 148B.51, is amended to read:

148B.51 BOARD OF BEHAVIORAL HEALTH AND THERAPY.

The Board of Behavioral Health and Therapy consists of deleted text begin 13 deleted text end new text begin 15 new text end members appointed
by the governor. Five of the members shall be professional counselors licensed or eligible
for licensure under sections 148B.50 to 148B.593. Five of the members shall be alcohol
and drug counselors licensed under chapter 148F. new text begin Two members shall be behavior analysts
licensed under chapter 148G. new text end Three of the members shall be public members as defined in
section 214.02. The board shall annually elect from its membership a chair and vice-chair.
The board shall appoint and employ an executive director who is not a member of the
board. The employment of the executive director shall be subject to the terms described in
section 214.04, subdivision 2a. Chapter 214 applies to the Board of Behavioral Health and
Therapy unless superseded by sections 148B.50 to 148B.593.

Sec. 2.

new text begin [148G.01] DEFINITIONS.
new text end

new text begin (a) As used in this chapter, the following terms have the meanings given.
new text end

new text begin (b) "Applied behavior analysis" means the design, implementation, and evaluation
of environmental modifications, using behavioral stimuli and consequences, to
produce socially significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the relationship between
environment and behavior.
new text end

new text begin (c) "Applied behavior analysis interventions" mean interventions that are based on
scientific research and the direct observation and measurement of behavior and environment
which utilize contextual factors, establishing operations, antecedent stimuli, positive
reinforcement, and other consequences to help people develop new behaviors, increase or
decrease existing behaviors, and elicit behaviors under specific environmental conditions.
new text end

new text begin (d) "Board" means the Minnesota Board of Behavioral Health and Therapy.
new text end

new text begin (e) "Certification board" means the Behavior Analyst Certification Board or its
successor.
new text end

new text begin (f) "Certified" refers to a practitioner who has met the certification criteria of the
certification board.
new text end

new text begin (g) "Licensed behavior analyst" means an individual who is licensed by the board
and meets the requirements of section 148G.15.
new text end

new text begin (h) "Licensed assistant behavior analyst" means an individual who:
new text end

new text begin (1) is licensed by the board as an assistant behavior analyst and meets the
requirements of section 148G.15; and
new text end

new text begin (2) works under the supervision of a certified behavior analyst.
new text end

new text begin (i) "Practice of applied behavior analysis" means the application of the principles,
methods, and procedures of the experimental analysis of behavior and applied behavior
analysis, including but not limited to applications of those principles, methods, and
procedures to:
new text end

new text begin (1) design, implement, evaluate, and modify treatment programs to change the
behavior of individuals diagnosed with an autism spectrum disorder and other related
mental and physical conditions;
new text end

new text begin (2) design, implement, evaluate, and modify treatment programs to change the
behavior of individuals;
new text end

new text begin (3) design, implement, evaluate, and modify treatment programs to change the
behavior of groups; and
new text end

new text begin (4) consult with individuals and organizations.
new text end

new text begin The practice of applied behavior analysis does not include diagnosis, counseling,
psychological testing, neuropsychology, psychotherapy, cognitive therapy, sex therapy,
psychoanalysis, or hypnotherapy as treatment modalities.
new text end

new text begin (j) "Supervised experience" means services rendered as part of the certification
requirements of a behavior analyst or assistant behavior analyst under the supervision of a
licensed behavior analyst.
new text end

new text begin (k) "Supervisee" means a person who is not licensed but acts under the authority
and direction of a licensed behavior analyst or a licensed assistant behavior analyst to
provide applied behavior analysis services.
new text end

new text begin (l) "Temporary licensee" means a person who is obtaining supervised experience
and has obtained a temporary license.
new text end

Sec. 3.

new text begin [148G.05] USE OF TITLE; PENALTY; EXEMPTIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Use of titles; penalty. new text end

new text begin (a) No person shall engage in the practice
of applied behavior analysis, assist in the practice of applied behavior analysis, render
services designated as applied behavior analysis, or hold oneself out as a practitioner of
applied behavior analysis in this state, unless licensed under this chapter.
new text end

new text begin (b) Use of the title "licensed behavior analyst" or "licensed assistant behavior
analyst" or any title which is substantially similar is prohibited if the person using the title
is not licensed under this chapter.
new text end

new text begin (c) Any person who violates this subdivision shall be guilty of a misdemeanor.
new text end

new text begin Subd. 2. new text end

new text begin Exemptions. new text end

new text begin The provisions of this chapter do not apply to a person who:
new text end

new text begin (1) is employed by a city, county, or state agency;
new text end

new text begin (2) is employed by a public school and provides applied behavior analysis services
to an individual in a public school setting;
new text end

new text begin (3) implements applied behavior analysis intervention services to an immediate
family member or as a supervisee; or
new text end

new text begin (4) is regulated by a health-related licensing board as defined in section 214.01,
subdivision 2.
new text end

Sec. 4.

new text begin [148G.10] DUTIES OF THE BOARD.
new text end

new text begin The board shall:
new text end

new text begin (1) adopt and enforce rules for licensure and regulation of behavior analysts,
assistant behavior analysts, and temporary licensees, including a standard disciplinary
process and rules of professional conduct;
new text end

new text begin (2) issue licenses and temporary licenses to qualified individuals under this chapter;
new text end

new text begin (3) carry out disciplinary actions against licensees and temporary licensees;
new text end

new text begin (4) educate the public about the existence and content of the regulations for behavior
analyst and assistant behavior analyst licensing to enable consumers to file complaints
against licensees who may have violated the rules;
new text end

new text begin (5) collect nonrefundable license fees for behavior analysts, assistant behavior
analysts, and temporary licensees; and
new text end

new text begin (6) carry out all other board duties listed in section 148B.52.
new text end

Sec. 5.

new text begin [148G.15] REQUIREMENTS FOR LICENSURE.
new text end

new text begin (a) To be licensed as a behavior analyst, an applicant shall apply to the board upon
such form and in such a manner as prescribed by the board and shall furnish evidence
to the board that the applicant:
new text end

new text begin (1) has met the education requirements of the board certified behavior analyst
standards, has passed the board certified behavior analyst examination, and has a current,
valid certification as a behavior analyst issued by the certification board;
new text end

new text begin (2) maintains active status and has fulfilled all requirements for continued
certification with the certification board as a board certified behavior analyst; and
new text end

new text begin (3) has no complaints pending, uncompleted disciplinary orders, or corrective
action agreements.
new text end

new text begin (b) To be licensed as an assistant behavior analyst, an applicant shall apply to the
board upon such form and in such a manner as prescribed by the board and shall furnish
evidence to the board that the applicant:
new text end

new text begin (1) has met the education requirements of the board certified assistant behavior analyst
standards, has passed the board certified assistant behavior analyst examination, and has a
current, valid credential as an assistant behavior analyst issued by the certification board;
new text end

new text begin (2) maintains active status and has fulfilled all requirements for continued
certification with the certification board as a board certified assistant behavior analyst;
new text end

new text begin (3) has no complaints pending, uncompleted disciplinary orders, or corrective
action agreements; and
new text end

new text begin (4) is supervised by a certified behavior analyst licensed under this chapter and
consistent with the certification board requirements for supervision of a certified assistant
behavior analyst.
new text end

new text begin (c) To receive a temporary license to complete experience requirements for
certification, an applicant shall apply to the board upon such form and in such a manner as
prescribed by the board and shall furnish evidence to the board that the applicant:
new text end

new text begin (1) has met the coursework requirements for a board certified behavior analyst
or board certified assistant behavior analyst and will begin accumulating experience as
required by the certification board;
new text end

new text begin (2) has a supervisor who meets requirements established by the certification board;
and
new text end

new text begin (3) will comply with this chapter and the requirements of the certification board
during the period of temporary licensure.
new text end

new text begin (d) An applicant must submit the fees required in section 148G.20.
new text end

Sec. 6.

new text begin [148G.20] FEES.
new text end

new text begin Nonrefundable fees are as follows:
new text end

new text begin (1) initial license application fee for behavior analyst, $75;
new text end

new text begin (2) initial license fee for behavior analyst, $155;
new text end

new text begin (3) annual active license renewal fee for behavior analyst, $155;
new text end

new text begin (4) annual inactive license renewal fee for behavior analyst, $125;
new text end

new text begin (5) initial license application fee for assistant behavior analyst, $75;
new text end

new text begin (6) initial license fee for assistant behavior analyst, $125;
new text end

new text begin (7) annual active license renewal fee for assistant behavior analyst, $125;
new text end

new text begin (8) annual inactive license renewal fee for assistant behavior analyst, $95;
new text end

new text begin (9) initial application fee for temporary licensee, $75;
new text end

new text begin (10) initial license fee for temporary license, $155;
new text end

new text begin (11) license renewal late fee, $125;
new text end

new text begin (12) license reinstatement fee, $125;
new text end

new text begin (13) copy of board order or stipulation, $50;
new text end

new text begin (14) certificate of good standing or license verification, $50; and
new text end

new text begin (15) duplicate license fee, $95.
new text end

Sec. 7.

new text begin [148G.25] RECIPROCITY.
new text end

new text begin The board may issue a license to an individual who holds a current license or other
credential from another jurisdiction if:
new text end

new text begin (1) the individual holds a license based on a current, valid certification as a behavior
analyst or assistant behavior analyst issued by the certification board; and
new text end

new text begin (2) the individual has no imposed or pending disciplinary or corrective actions.
new text end

Sec. 8.

new text begin [148G.30] DISCIPLINARY ACTION.
new text end

new text begin Subdivision 1. new text end

new text begin Grounds for action. new text end

new text begin The board may impose disciplinary action
as described in subdivision 2 against an applicant or licensee whom the board, by a
preponderance of the evidence, determines:
new text end

new text begin (1) has violated a statute, rule, or order that the board issued or is empowered to
enforce;
new text end

new text begin (2) has engaged in fraudulent, deceptive, or dishonest conduct, whether or not the
conduct relates to the practice of behavior analysis, that adversely affects the person's
ability or fitness to practice;
new text end

new text begin (3) has engaged in unprofessional conduct or any other conduct which has the
potential for causing harm to the public, including any departure from or failure to
conform to the minimum standards of acceptable and prevailing practice without actual
injury having to be established;
new text end

new text begin (4) has been convicted of or has pled guilty or nolo contendere to a felony or other
crime, an element of which is dishonesty or fraud, or has been shown to have engaged
in acts or practices tending to show that the applicant or licensee is incompetent or has
engaged in conduct reflecting adversely on the applicant's or licensee's ability or fitness to
engage in the practice of behavior analysis;
new text end

new text begin (5) has employed fraud or deception in obtaining or renewing a license, or in
passing an examination;
new text end

new text begin (6) has had any professional license, certificate, registration, privilege to take an
examination, or other similar authority denied, revoked, suspended, canceled, limited, or
not renewed for cause in any jurisdiction or has surrendered or voluntarily terminated a
license or certificate during a board investigation of a complaint, as part of a disciplinary
order, or while under a disciplinary order;
new text end

new text begin (7) has failed to meet any requirement for the issuance or renewal of the person's
license. The burden of proof is on the applicant or licensee to demonstrate the
qualifications or satisfy the requirements for a license under this chapter;
new text end

new text begin (8) has failed to cooperate with an investigation of the board;
new text end

new text begin (9) has demonstrated an inability to practice behavior analysis with reasonable skill
and safety to clients due to any mental or physical illness or condition;
new text end

new text begin (10) has engaged in conduct with a client that is sexual or may reasonably be
interpreted by the client as sexual, or in any verbal behavior that is seductive or sexually
demeaning to a client;
new text end

new text begin (11) has been subject to a corrective action or similar action in another jurisdiction
or by another regulatory authority;
new text end

new text begin (12) has been adjudicated as mentally incompetent, mentally ill, or developmentally
disabled or as a chemically dependent person, a person dangerous to the public, a sexually
dangerous person, or a person who has a sexual psychopathic personality by a court of
competent jurisdiction within this state or an equivalent adjudication from another state.
Adjudication automatically suspends a license for the duration of the adjudication unless
the board orders otherwise;
new text end

new text begin (13) has paid or promised to pay a commission or part of a fee to any person who
contacts the behavior analyst or assistant behavior analyst for consultation or sends
patients to the analyst for treatment;
new text end

new text begin (14) has engaged in an incentive payment arrangement, other than that prohibited by
clause (13), that promotes behavior analysis overutilization, whereby the referring person
or person who controls the availability of behavior analysis services to a client profits
unreasonably as a result of client treatment;
new text end

new text begin (15) has engaged in abusive or fraudulent billing practices, including violations of
federal Medicare and Medicaid laws, Food and Drug Administration regulations, or state
medical assistance laws;
new text end

new text begin (16) has performed medical diagnosis or provided treatment, other than behavior
analysis, without being licensed to do so under the laws of this state; and
new text end

new text begin (17) has promoted for personal gain an unnecessary device, treatment, procedure,
or service, or directed or required a client to purchase a device, treatment, procedure,
or service which has no documented clinical justification from a facility or business in
which he or she has a financial interest.
new text end

new text begin Subd. 2. new text end

new text begin Actions. new text end

new text begin If grounds for disciplinary action exist under subdivision 1, the
board may take one or more of the following actions:
new text end

new text begin (1) refuse to grant or renew a license;
new text end

new text begin (2) revoke a license;
new text end

new text begin (3) suspend a license;
new text end

new text begin (4) impose limitations or conditions on a licensee's practice, including but not
limited to limiting the scope of practice to designated competencies, imposing retraining
or rehabilitation requirements, requiring the licensee to practice under supervision, or
conditioning continued practice on the demonstration of knowledge or skill by appropriate
examination or other review of skill and competence;
new text end

new text begin (5) censure or reprimand the licensee; and
new text end

new text begin (6) impose a civil penalty not exceeding $40,000 for each separate violation, the
amount of the civil penalty to be fixed so as to deprive the applicant or licensee of any
economic advantage gained by reason of the violation charged, to discourage similar
violations, or to reimburse the board for the cost of the investigation and proceeding,
including but not limited to fees paid for services provided by the Office of the Attorney
General, court reporters, witnesses, reproduction of records, board members' per diem
compensation, board staff time, and travel costs and expenses incurred by board staff
and board members.
new text end

new text begin Subd. 3. new text end

new text begin Alternative or additional requirements. new text end

new text begin In lieu of or in addition to
subdivision 2, the board may require, as a condition of continued licensure, termination of
suspension, reinstatement of license, or examination, that the applicant or licensee:
new text end

new text begin (1) submit to a quality review, as specified by the board, of the applicant's or
licensee's ability, skills, or quality of work; and
new text end

new text begin (2) complete, to the satisfaction of the board, one or more educational courses
specified by the board.
new text end

new text begin Subd. 4. new text end

new text begin Health professionals services program. new text end

new text begin The board may also refer a
licensee, if appropriate, to the health professionals services program described in sections
214.31 to 214.37.
new text end

Sec. 9.

new text begin [148G.35] TEMPORARY SUSPENSION OF LICENSE.
new text end

new text begin (a) In addition to any other remedy provided by law, the board may issue an order to
temporarily suspend the credentials of a licensee after conducting a preliminary inquiry to
determine if the board reasonably believes that the licensee has violated a statute or rule
that the board is empowered to enforce and whether continued practice by the licensee
would create an imminent risk of harm to others.
new text end

new text begin (b) The order may prohibit the licensee from engaging in the practice of behavior
analysis in whole or in part and may condition the end of a suspension on the licensee's
compliance with a statute, rule, or order that the board has issued or is empowered to
enforce.
new text end

new text begin (c) The order shall give notice of the right to a hearing according to this section and
shall state the reasons for the entry of the order.
new text end

new text begin (d) Service of the order is effective when the order is served on the licensee
personally or by certified mail, which is complete upon receipt, refusal, or return for
nondelivery to the most recent address provided to the board for the licensee.
new text end

new text begin (e) At the time the board issues a temporary suspension order, the board shall
schedule a hearing to be held before its own members. The hearing shall begin no later than
60 days after issuance of the temporary suspension order or within 15 working days of the
date of the board's receipt of a request for hearing by a licensee, on the sole issue of whether
there is a reasonable basis to continue, modify, or lift the temporary suspension. The
hearing is not subject to chapter 14. Evidence presented by the board or the licensee shall
be in affidavit form only. The licensee or counsel of record may appear for oral argument.
new text end

new text begin (f) Within five working days of the hearing, the board shall issue its order and, if the
suspension is continued, schedule a contested case hearing within 30 days of the issuance
of the order. Notwithstanding chapter 14, the administrative law judge shall issue a report
within 30 days after closing the contested case hearing record. The board shall issue a
final order within 30 days of receipt of the administrative law judge's report.
new text end

Sec. 10.

new text begin [148G.40] MENTAL, PHYSICAL, OR CHEMICAL DEPENDENCY
EXAMINATION OR EVALUATION; ACCESS TO MEDICAL DATA.
new text end

new text begin If the board has probable cause to believe section 148G.30, subdivision 1, clause (9),
applies to a licensee or applicant, the board may direct the person to submit to a mental,
physical, or chemical dependency examination or evaluation. For the purpose of this
section, every licensee and applicant is deemed to have consented to submit to a mental,
physical, or chemical dependency examination or evaluation when directed in writing
by the board and to have waived all objections to the admissibility of the examining
professionals' testimony or examination reports on the grounds that the testimony or
examination reports constitute a privileged communication. Failure of a licensee or
applicant to submit to an examination when directed by the board constitutes an admission
of the allegations against the person, unless the failure was due to circumstances beyond
the person's control, in which case a default and final order may be entered without
the taking of testimony or presentation of evidence. A licensee or applicant affected
under this section shall, at reasonable intervals, be given an opportunity to demonstrate
that the person can resume the competent practice of behavior analysis with reasonable
skill and safety to the public. In any proceeding under this section, neither the record
of proceedings nor the orders entered by the board shall be used against a licensee or
applicant in any other proceeding.
new text end

Sec. 11.

new text begin [148G.45] REINSTATEMENT OF LAPSED, SUSPENDED, OR
REVOKED LICENSE.
new text end

new text begin (a) The board may, within three years, reinstate a license which has lapsed, upon
payment of the renewal fee and the reinstatement fee as established in section 148G.20.
new text end

new text begin (b) The board may reinstate a license which has been lapsed for more than three
years upon showing that the applicant is certified and upon payment of the reinstatement
fee as established in section 148G.20.
new text end

new text begin (c) The board may reinstate a license which has been suspended or revoked if,
after a hearing, the board determines the applicant is able to practice with reasonable
competence and is able to maintain the standards of practice required by the certification
board and this chapter. As a condition of reinstatement, the board may impose reasonable
restrictions under which the licensee shall practice.
new text end

new text begin (d) A licensee aggrieved by the final order of the board may request a contested
case hearing.
new text end

Sec. 12.

new text begin [148G.50] BEHAVIOR ANALYST ADVISORY COUNCIL.
new text end

new text begin Subdivision 1. new text end

new text begin Membership. new text end

new text begin (a) The Behavior Analyst Advisory Council is created
and is composed of five persons appointed by the board. The five persons must include:
new text end

new text begin (1) four licensed behavior analysts who are certified by the certification board and
have a minimum of five years of clinical experience; and
new text end

new text begin (2) one public member who is receiving services, or has a child who is receiving
services, for an autism spectrum disorder or other related mental and physical conditions.
The public member must not be a behavior analyst or have a household member who is
a behavior analyst.
new text end

new text begin (b) No member may serve more than two consecutive terms. If a member is appointed
for a partial term and serves more than half of that term it shall be considered a full term.
new text end

new text begin Subd. 2. new text end

new text begin Organization. new text end

new text begin The council shall be organized and administered under
section 15.059.
new text end

new text begin Subd. 3. new text end

new text begin Duties. new text end

new text begin The council shall advise the board regarding:
new text end

new text begin (1) behavior analyst and assistant behavior analyst licensure standards;
new text end

new text begin (2) a code of ethics, including the code of ethics adopted by the certification board;
new text end

new text begin (3) enforcement of grounds for discipline;
new text end

new text begin (4) distribution of information regarding behavior analysts and assistant behavior
analysts;
new text end

new text begin (5) applications and recommendations of applicants for licensure or license renewal;
new text end

new text begin (6) complaints and recommendations to the board regarding disciplinary matters and
proceedings concerning applicants and licensees according to sections 214.10; 214.103;
and 214.13, subdivisions 6 and 7; and
new text end

new text begin (7) issues related to behavior analyst and assistant behavior analyst practice and
regulation.
new text end

new text begin The council shall perform other duties authorized for the council by chapter 214
as directed by the board.
new text end