SF 3792

as introduced - 90th Legislature (2017 - 2018) Posted on 03/23/2018 09:31am

A bill for an act
relating to health; establishing licensing requirements for behavior analysts and
assistant behavior analysts; amending Minnesota Statutes 2016, section 148B.51;
proposing coding for new law in Minnesota Statutes, chapter 148B.

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

Section 1.

Minnesota Statutes 2016, 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 14 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 One of the members shall be a behavior analyst
licensed under sections 148B.73 to 148B.88. 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Health and Therapy unless superseded by sections 148B.50 to 148B.593.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 [148B.73] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For the purposes of sections 148B.73 to 148B.88, the terms in
this section have the meanings given.
new text end

new text begin Subd. 2. new text end

new text begin Accredited school or educational program. new text end

new text begin "Accredited school or educational
program" means a school, university, college, or other postsecondary education program
that, at the time the student completes the program, is accredited by a regional accrediting
association whose standards are substantially equivalent to those of the North Central
Association of Colleges and Postsecondary Education Institutions or an accrediting
association that evaluates schools of behavior analysis, psychology, or education for inclusion
of the education, practicum, and core function standards.
new text end

new text begin Subd. 3. new text end

new text begin Assessment. new text end

new text begin "Assessment" means any observational recording system,
instrument, device, survey, questionnaire, technique, scale, inventory, or other process that
is designed or constructed for the purpose of measuring, evaluating, assessing, describing,
or predicting behavior, cognitive functioning, skills, values, preferences, or other
characteristics of individuals.
new text end

new text begin Subd. 4. new text end

new text begin Assistant behavior analyst. new text end

new text begin "Assistant behavior analyst" means a person who
holds a valid license issued under sections 148B.73 to 148B.88 to assist in the practice of
behavior analysis.
new text end

new text begin Subd. 5. new text end

new text begin Behavior analyst. new text end

new text begin "Behavior analyst" means a person who holds a valid license
issued under sections 148B.73 to 148B.88 to engage in the practice of behavior analysis.
new text end

new text begin Subd. 6. new text end

new text begin Behavior Analyst Certification Board. new text end

new text begin "Behavior Analyst Certification Board"
means the Behavior Analyst Certification Board, Incorporated, whose programs to certify
professional practitioners of behavior analysis are accredited by the National Commission
for Certifying Agencies.
new text end

new text begin Subd. 7. new text end

new text begin Board. new text end

new text begin "Board" means the Board of Behavioral Health and Therapy established
in section 148B.51.
new text end

new text begin Subd. 8. new text end

new text begin Client. new text end

new text begin "Client" means an individual who is the recipient of behavior analysis
services. Client also means "patient" as defined in section 144.291, subdivision 2, paragraph
(g).
new text end

new text begin Subd. 9. new text end

new text begin Credential. new text end

new text begin "Credential" means a certification given by the Behavior Analyst
Certification Board.
new text end

new text begin Subd. 10. new text end

new text begin Practice of behavior analysis. new text end

new text begin (a) "Practice of behavior analysis" means the
utilization of special skills to assist individuals, families, or groups in achieving objectives
through the design, implementation, and evaluation of instructional and environmental
modifications to produce socially significant improvements in human behavior. Behavior
analysis services are provided to clients whose symptoms significantly interfere with daily
functioning and would most likely not improve in a reasonable time period without
intervention. Behavior analysis interventions are based on scientific applied behavior analysis
research and the direct observation and measurement of the individual client's behavior and
environment.
new text end

new text begin (b) The practice of behavior analysis expressly excludes psychological testing,
psychotherapy, cognitive therapy, sex therapy, psychoanalysis or hypnotherapy, and
counseling as treatment modalities.
new text end

new text begin (c) The practice of behavior analysis includes, but is not limited to, the following
activities, regardless of whether the behavior analyst receives compensation for the activities:
new text end

new text begin (1) a functional behavior assessment (FBA) employing direct observation of behavior,
structured assessment tools, indirect interviews, questionnaires, consultation with other
professionals, or review of historical records of the environmental factors that function to
increase, decrease, or maintain the behaviors of social importance. An FBA includes
evaluation of contextual factors, motivating operations, antecedent stimuli, and reinforcement
of behavior;
new text end

new text begin (2) an empirical functional behavior analysis in which the environmental conditions that
might affect an individual's behavior are purposely manipulated in a controlled manner in
order to recommend a specific behavior intervention;
new text end

new text begin (3) delivering an intervention employing direct or mediated manipulation of contextual
factors, motivating operations, antecedent stimuli, contingent reinforcement, and other
procedures to help clients develop new behaviors, increase or decrease existing behaviors,
and emit behaviors under specific environmental conditions;
new text end

new text begin (4) the observation, description, evaluation, and interpretation of the results of services
for the purpose of treatment planning, making recommendations, providing clinical direction,
further assessment, or referral;
new text end

new text begin (5) behavior analysis strategies that effectively respond to multicultural populations;
new text end

new text begin (6) conforming with relevant laws and ethical codes in the delivery of services;
new text end

new text begin (7) case management, including the screening, intake, orientation, service development,
and referral activities necessary to provide an organized behavior analysis service to the
client;
new text end

new text begin (8) crisis intervention;
new text end

new text begin (9) providing consultation to other professionals in regard to client treatment and services
to assure comprehensive, quality care for the client;
new text end

new text begin (10) providing personnel training to other professionals and paraprofessionals whose
activities directly affect the client;
new text end

new text begin (11) conducting program evaluation and applied behavior analysis research to improve
client services;
new text end

new text begin (12) preparation of reports and keeping records of the behavior analysis services,
including progress notes, discharge summaries, and other client-related data; and
new text end

new text begin (13) providing the services in clauses (1) to (12), as needed, to family members or others
who are directly affected by the behavior of the client.
new text end

Sec. 3.

new text begin [148B.75] DUTIES OF THE BOARD.
new text end

new text begin The board shall:
new text end

new text begin (1) adopt and enforce standards for licensure and regulation of behavior analysts and
assistant behavior analysts;
new text end

new text begin (2) issue licenses to qualified individuals under sections 148B.73 to 148B.88;
new text end

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

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

new text begin (5) collect license fees for behavior analysts and assistant behavior analysts.
new text end

Sec. 4.

new text begin [148B.76] REQUIREMENTS FOR LICENSURE.
new text end

new text begin Subdivision 1. new text end

new text begin Form; fee. new text end

new text begin An individual seeking licensure as a behavior analyst or as
an assistant behavior analyst shall complete and submit a written application on forms
provided by the board together with the appropriate fee in the amount set under section
148B.85.
new text end

new text begin Subd. 2. new text end

new text begin Requirements for licensure. new text end

new text begin (a) An applicant for licensure must submit
evidence satisfactory to the board that the applicant:
new text end

new text begin (1) has a valid certification as a behavior analyst or as an assistant behavior analyst
issued by the Behavior Analyst Certification Board;
new text end

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

new text begin (3) has passed the national professional examination in applied behavior analysis and
ethical and disciplinary standards administered by the Behavior Analyst Certification Board.
new text end

new text begin Subd. 3. new text end

new text begin Background investigation. new text end

new text begin The applicant must sign a release authorizing the
board to obtain information from the Bureau of Criminal Apprehension, the Department of
Human Services, the Office of Health Facilities Complaints, and other agencies specified
by the board. After the board has given written notice to an individual who is the subject
of a background investigation, the agencies shall assist the board with the investigation by
giving the board criminal conviction data, reports about substantiated maltreatment of minors
and vulnerable adults, and other information. The board may contract with the commissioner
of human services to obtain criminal history data from the Bureau of Criminal Apprehension.
Information obtained under this subdivision is private data on individuals as defined in
section 13.02, subdivision 12.
new text end

Sec. 5.

new text begin [148B.78] LICENSE RENEWAL REQUIREMENTS.
new text end

new text begin Subdivision 1. new text end

new text begin Biennial renewal. new text end

new text begin A license must be renewed every two years.
new text end

new text begin Subd. 2. new text end

new text begin License renewal notice. new text end

new text begin At least 60 calendar days before the renewal deadline
date, the board shall mail a renewal notice to the licensee's last known address on file with
the board. The notice must include instructions for accessing an online application for license
renewal, the renewal deadline, and notice of fees required for renewal. The licensee's failure
to receive notice does not relieve the licensee of the obligation to meet the renewal deadline
and other requirements for license renewal.
new text end

new text begin Subd. 3. new text end

new text begin Renewal requirements. new text end

new text begin (a) To renew a license, a licensee must submit to the
board:
new text end

new text begin (1) a completed and signed application for license renewal;
new text end

new text begin (2) the license renewal fee required under section 148B.85; and
new text end

new text begin (3) evidence satisfactory to the board that the licensee holds a current and active national
certification as a behavior analyst or assistant behavior analyst from the Behavior Analyst
Certification Board.
new text end

new text begin (b) The application for license renewal and fee must be postmarked or received by the
board by the end of the day on which the license expires or the following business day if
the expiration date falls on a Saturday, Sunday, or holiday. A renewal application that is
not completed and signed, or that is not accompanied by the correct fee, is void and must
be returned to the licensee.
new text end

new text begin Subd. 4. new text end

new text begin Pending renewal. new text end

new text begin If a licensee's application for license renewal is postmarked
or received by the board by the end of the business day on the expiration date of the license,
the licensee may continue to practice after the expiration date while the application for
license renewal is pending with the board.
new text end

new text begin Subd. 5. new text end

new text begin Late renewal fee. new text end

new text begin If the application for license renewal is postmarked or
received after the expiration date, the licensee shall pay a biennial renewal late fee as
specified by section 148B.85, in addition to the renewal fee, before the application for
license renewal will be considered by the board.
new text end

Sec. 6.

new text begin [148B.79] EXPIRED LICENSE.
new text end

new text begin Subdivision 1. new text end

new text begin Expiration of license. new text end

new text begin A licensee who fails to submit an application for
license renewal, or whose application for license renewal is not postmarked or received by
the board as required by section 148B.78, is not authorized to practice behavior analysis
after the expiration date and is subject to disciplinary action by the board if the individual
practices behavior analysis after the expiration date.
new text end

new text begin Subd. 2. new text end

new text begin Termination for nonrenewal. new text end

new text begin (a) Within 30 days after the renewal date, a
licensee who has not renewed the license shall be notified by letter sent to the last known
address of the licensee in the board's file that the renewal is overdue and that failure to pay
the current fee and current biennial renewal late fee within 60 days after the renewal date
will result in termination of the license.
new text end

new text begin (b) The board shall terminate the license of a licensee whose license renewal is at least
60 days overdue and to whom notification has been sent as provided in paragraph (a). Failure
of a licensee to receive notification is not grounds for later challenge of the termination.
The former licensee shall be notified of the termination by letter within seven days after the
board action, in the same manner as provided in paragraph (a).
new text end

Sec. 7.

new text begin [148B.80] PROHIBITED PRACTICE OR USE OF TITLES; PENALTY.
new text end

new text begin Subdivision 1. new text end

new text begin Practice. new text end

new text begin Effective July 1, 2019, no person shall engage in the practice
of behavior analysis without first being licensed under sections 148B.73 to 148B.88 as a
behavior analyst or assistant behavior analyst.
new text end

new text begin Subd. 2. new text end

new text begin Use of titles. new text end

new text begin (a) No person shall hold themselves out to the public by any title
incorporating the words "licensed behavior analyst," "behavior analyst," "licensed assistant
behavior analyst," "assistant behavior analyst," or use any other title or description stating
or implying that they are licensed or otherwise qualified to practice behavior analysis, unless
that person holds a valid license under sections 148B.73 to 148B.88, or is authorized to use
the title under section 148B.81.
new text end

new text begin (b) A person who is participating in a behavior analysis practicum must be designated
as a behavior analyst intern.
new text end

new text begin (c) Any person who is exempt from licensure under section 148B.81 must not use any
of the titles identified in paragraph (a), or represent that they are licensed to engage in the
practice of behavior analysis, unless that person is licensed as a behavior analyst or assistant
behavior analyst under sections 148B.73 to 148B.88.
new text end

new text begin Subd. 3. new text end

new text begin Penalty. new text end

new text begin A person who violates this section is guilty of a misdemeanor.
new text end

Sec. 8.

new text begin [148B.81] EXCEPTIONS TO LICENSE REQUIREMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Other professionals. new text end

new text begin Nothing in sections 148B.73 to 148B.88 shall be
construed to:
new text end

new text begin (1) prevent members of other professions or occupations from performing functions for
which they are qualified or licensed;
new text end

new text begin (2) prohibit persons employed or subcontracted by a city, county, tribe, state agency, or
public school to provide behavior analysis services to an individual or group;
new text end

new text begin (3) limit the activities, services, and descriptions of persons who are employed or
subcontracted by a provider licensed by the commissioner of human services or the
commissioner of health to provide behavior analysis services to an individual or group;
new text end

new text begin (4) prohibit an employee of a program licensed according to section 245D.091 from
discharging their duties as provided in section 245D.091;
new text end

new text begin (5) prohibit the practice of behavior analysis with nonhumans, including applied animal
behaviorists and animal trainers. These individuals may use the title "behavior analyst" but
may not use the title of or represent themselves to the public as a "licensed behavior analyst"
or "licensed assistant behavior analyst" unless the individual holds a valid license under
sections 148B.73 to 148B.88;
new text end

new text begin (6) prohibit teaching behavior analysis or conducting behavior analysis research provided
that the teaching or research does not involve the direct delivery of behavior analysis services.
These individuals may use the title "behavior analyst" but may not use the title or represent
themselves to the public as a "licensed behavior analyst" or "licensed assistant behavior
analyst" unless the individual holds a valid license under sections 148B.73 to 148B.88; or
new text end

new text begin (7) provide behavior analysis services as an unlicensed supervisee or trainee under the
authority and direction of a licensed behavior analyst or licensed assistant behavior analyst.
These individuals must not use the title or represent themselves to the public as a "licensed
behavior analyst" or "licensed assistant behavior analyst."
new text end

new text begin Subd. 2. new text end

new text begin Students. new text end

new text begin Nothing in sections 148B.73 to 148B.88 prevents students enrolled
in an accredited school or educational program from engaging in the practice of behavior
analysis while under supervision in an accredited school or educational program.
new text end

new text begin Subd. 3. new text end

new text begin Federally recognized tribes. new text end

new text begin Persons practicing behavior analysis according
to standards established by federally recognized tribes, while practicing under tribal
jurisdiction, are exempt from the requirements of sections 148B.73 to 148B.88. In practicing
behavior analysis under tribal jurisdiction, persons practicing under that authority shall be
afforded the same rights, responsibilities, and recognition as persons licensed under sections
148B.73 to 148B.88.
new text end

new text begin Subd. 4. new text end

new text begin Other health care professionals. new text end

new text begin Nothing in sections 148B.73 to 148B.88
prohibits a health care professional licensed by a health-related licensing board as defined
in section 214.01, subdivision 2, from practicing within the scope of practice of the
professional's license.
new text end

Sec. 9.

new text begin [148B.82] NONTRANSFERABILITY OF LICENSES.
new text end

new text begin A behavior analyst license or an assistant behavior analyst license is not transferable.
new text end

Sec. 10.

new text begin [148B.83] DUTY TO MAINTAIN CURRENT INFORMATION.
new text end

new text begin All licensees and all applicants for licensure must notify the board within 30 days of the
occurrence of any of the following:
new text end

new text begin (1) a change of name, address, place of employment, and home or business telephone
number; and
new text end

new text begin (2) a change in any other application information.
new text end

Sec. 11.

new text begin [148B.84] DISCIPLINE; REPORTING.
new text end

new text begin For purposes of sections 148B.73 to 148B.88, licensed behavior analysts and licensed
assistant behavior analysts are subject to the provisions of sections 148B.59 to 148B.5905.
new text end

Sec. 12.

new text begin [148B.85] FEES.
new text end

new text begin Subdivision 1. new text end

new text begin Fees. new text end

new text begin (a) All applicants and licensees shall pay fees as follows:
new text end

new text begin (1) application fee, $.......;
new text end

new text begin (2) license renewal fee, $.......;
new text end

new text begin (3) inactive license renewal fee, $.......;
new text end

new text begin (4) biennial renewal late fee, $.......;
new text end

new text begin (5) inactive license renewal late fee, $.......; and
new text end

new text begin (6) supervisor application processing fee, $........
new text end

new text begin (b) The fee for renewal of a license that has been expired for less than two years is the
total of the biennial renewal fee in effect at the time of late renewal and the biennial renewal
late fee.
new text end

new text begin Subd. 2. new text end

new text begin Nonrefundable fees. new text end

new text begin All fees in this section are nonrefundable.
new text end

new text begin Subd. 3. new text end

new text begin Deposit of fees. new text end

new text begin Fees collected by the board under this section shall be deposited
in the state government special revenue fund.
new text end

Sec. 13.

new text begin [148B.86] COMPETENT PROVISION OF SERVICES.
new text end

new text begin Subdivision 1. new text end

new text begin Limits on practice. new text end

new text begin Behavior analysts shall limit their practice to the
client populations and services for which they have competence or for which they are
developing competence.
new text end

new text begin Subd. 2. new text end

new text begin Developing competence. new text end

new text begin When a behavior analyst is developing competence
in a service, method, procedure, or to treat a specific client population, the behavior analyst
shall obtain professional education, training, continuing education, consultation, supervision
or experience, or a combination thereof, necessary to demonstrate competence.
new text end

new text begin Subd. 3. new text end

new text begin Experimental, emerging, or innovative services. new text end

new text begin A behavior analyst may
offer experimental services, methods, or procedures competently and in a manner that
protects clients from harm. However, when doing so, the behavior analyst has a heightened
responsibility to understand and communicate the potential risks to clients, to use reasonable
skill and safety, and to undertake appropriate preparation as required in subdivision 2.
new text end

new text begin Subd. 4. new text end

new text begin Limitations. new text end

new text begin A behavior analyst shall recognize the limitations to the scope of
practice of behavior analysis. When the needs of a client appears to be outside a behavior
analyst's scope of practice, the behavior analyst shall inform the client that there may be
other professional, technical, community, and administrative resources available to the
client. A behavior analyst shall assist with identifying resources when it is in the best interest
of a client to be provided with alternative or complementary services.
new text end

new text begin Subd. 5. new text end

new text begin Burden of proof. new text end

new text begin Whenever a complaint is submitted to the board involving
a violation of this section, the burden of proof is on the behavior analyst to demonstrate that
the elements of competence have reasonably been met.
new text end

Sec. 14.

new text begin [148B.87] DISCLOSURE OF INFORMATION.
new text end

new text begin (a) Private information may be disclosed without the consent of the client when a duty
to warn arises, or as otherwise provided by law or court order. The duty to warn of, or take
reasonable precautions to provide protection from, violent behavior arises only when a client
or other person has communicated to the licensee a specific, serious threat of physical
violence to self or a specific, clearly identified or identifiable potential victim. If a duty to
warn arises, the duty is discharged by the licensee if reasonable efforts are made to
communicate the threat to law enforcement agencies, the potential victim, the family of the
client, or appropriate third parties who are in a position to prevent or avert the harm. No
monetary liability and no cause of action or disciplinary action by the board may arise
against a licensee for disclosure of confidences to third parties, for failure to disclose
confidences to third parties, or for erroneous disclosure of confidences to third parties in a
good faith effort to warn against or take precautions against a client's violent behavior or
threat of suicide.
new text end

new text begin (b) For purposes of this section, "licensee" includes behavior analysis interns, supervisees,
and individuals who are participating in a postdegree professional practice in behavior
analysis.
new text end

Sec. 15.

new text begin [148B.88] INFORMED CONSENT.
new text end

new text begin Subdivision 1. new text end

new text begin Obtaining informed consent for services. new text end

new text begin A licensed behavior analyst
shall obtain informed consent from the client before initiating services. The informed consent
must be in writing, signed by the client, and include the following, at a minimum:
new text end

new text begin (1) authorization for the behavior analyst to engage in an activity that directly affects
the client;
new text end

new text begin (2) the goals, purposes, and procedures of the proposed services;
new text end

new text begin (3) the factors that may impact the duration of the service;
new text end

new text begin (4) the applicable fee schedule;
new text end

new text begin (5) the behavior analyst responsibilities if the client terminates the service;
new text end

new text begin (6) the significant risks and benefits of the service;
new text end

new text begin (7) the behavior analyst's responsibilities under section 148G.86 if the proposed service,
method, or procedure is of an experimental or innovative nature; and
new text end

new text begin (8) if applicable, information that the behavior analyst is developing competence in the
proposed service, method, or procedure, and alternatives to the proposed service, if any.
new text end

new text begin Subd. 2. new text end

new text begin Updating informed consent. new text end

new text begin If there is a substantial change in the nature or
purpose of a service, the behavior analyst must obtain a new informed consent from the
client.
new text end

new text begin Subd. 3. new text end

new text begin Emergency or crisis services. new text end

new text begin Informed consent is not required when a behavior
analyst is providing emergency or crisis services. If services continue after the emergency
or crisis has abated, informed consent must be obtained.
new text end

Sec. 16. new text begin TRANSITION PERIOD.
new text end

new text begin Notwithstanding Minnesota Statutes, section 148B.51, the first behavior analyst appointed
to the Board of Behavioral Health and Therapy need not be licensed under Minnesota
Statutes, sections 148B.73 to 148B.88, but must hold a valid and active certification as a
behavior analyst issued by the Behavior Analyst Certification Board.
new text end

Sec. 17. new text begin APPROPRIATION.
new text end

new text begin $....... in fiscal year 2019 is appropriated from the state government special revenue fund
to the Board of Behavioral Health and Therapy to implement Minnesota Statutes, sections
148B.73 to 148B.88.
new text end

Sec. 18. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 16 are effective July 1, 2018.
new text end