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Massachusetts Senate Bill S158

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S158 Compare Versions

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22 SENATE DOCKET, NO. 773 FILED ON: 1/18/2023
33 SENATE . . . . . . . . . . . . . . No. 158
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Sal N. DiDomenico
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act relative to applied behavior analysts.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Sal N. DiDomenicoMiddlesex and Suffolk 1 of 13
1616 SENATE DOCKET, NO. 773 FILED ON: 1/18/2023
1717 SENATE . . . . . . . . . . . . . . No. 158
1818 By Mr. DiDomenico, a petition (accompanied by bill, Senate, No. 158) of Sal N. DiDomenico
1919 for legislation relative to applied behavior analysts. Consumer Protection and Professional
2020 Licensure.
2121 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2222 SEE SENATE, NO. 188 OF 2021-2022.]
2323 The Commonwealth of Massachusetts
2424 _______________
2525 In the One Hundred and Ninety-Third General Court
2626 (2023-2024)
2727 _______________
2828 An Act relative to applied behavior analysts.
2929 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3030 of the same, as follows:
3131 1 SECTION 1. Section 88 of chapter 13 of the General Laws, as appearing in the 2020
3232 2Official Edition, is hereby amended by striking out the figure “13” and inserting in place thereof
3333 3the following figure:- "11"
3434 4 SECTION 2. Section 89 of said chapter 13 of the General Laws is hereby amended by
3535 5striking out subsection (A), and inserting in place thereof the following:-
3636 6 "(A) Eight members shall be licensed practicing mental health and human services
3737 7professionals, two of whom shall be marriage and family therapists, two of whom shall be
3838 8rehabilitation counselors, two of whom shall be clinical mental health counselors, two of whom
3939 9shall be educational psychologists; and each shall have been, for at least five years immediately 2 of 13
4040 10preceding appointment, actively engaged as a practitioner rendering professional services in that
4141 11field, or in the education and training of graduate students or interns in the field, or in appropriate
4242 12human developmental research, or in other areas substantially equivalent thereto, and shall have
4343 13spent the majority of the professional time in such activity during the two years preceding the
4444 14appointment in the commonwealth. One of the 8 shall also be a member of a union licensable
4545 15under sections 163 to 172, inclusive, of chapter 112";
4646 16 SECTION 3. Said chapter 13 of the General Laws is hereby further amended by adding
4747 17the following 3 sections:-
4848 18 "Section 110. (a) There shall be within the division of professional licensure a board of
4949 19registration of behavior analysts. The board shall consist of 9 members to be appointed by the
5050 20governor, 2 of whom shall be Licensed Behavior Analysts licensed under this section who hold
5151 21doctoral degrees, 4 of whom shall be Licensed Behavior Analysts licensed under this section
5252 22who hold master’s degrees, 1 of whom shall be a Licensed Assistant Behavior Analyst licensed
5353 23under this section who holds a bachelor’s degree, and 2 members of the general public, subject to
5454 24section 9B. Members of the board shall be residents of the commonwealth.
5555 25 (b) Each member of the board shall serve for a term of 3 years and until a successor has
5656 26been appointed and qualified. A vacancy in the membership of the board shall be filled for the
5757 27unexpired term in the manner provided for the original appointment. No member shall serve
5858 28more than 2 full consecutive terms. A member appointed for less than a full term may serve 2
5959 29full terms in addition to that part of a full term. A former member shall be eligible for
6060 30appointment after a lapse of 1 year. 3 of 13
6161 31 (c) The governor may remove a member of the board for cause, but no board member
6262 32shall be removed without first being informed in writing at least 30 days in advance of the
6363 33reasons for such removal and of the member’s right to a public or private hearing and to have
6464 34counsel present at the hearing.
6565 35 Section 111.. The board shall hold at least 2 meetings annually and will determine an
6666 36appropriate schedule of meetings that meets the needs of licensees. At its first regular meeting in
6767 37each year the board shall elect from its own members by majority vote a chair. A majority of the
6868 38board shall constitute a quorum. The members of the board shall serve without compensation but
6969 39shall be reimbursed for actual expenses reasonably incurred in the performance of their board
7070 40duties. The board may hire such staff as it deems necessary to carry out its activities.
7171 41 Section 112. (a) The board of registration of behavior analysts may: (i) pass upon the
7272 42qualifications of an application for a license under sections 275 to 287, inclusive, of chapter 112
7373 43and shall issue a license to an applicant who is determined to be qualified to practice as a
7474 44licensed behavior analyst or licensed assistant behavior analyst; (ii) adopt rules and regulations
7575 45governing the licensure of behavior analysts and assistant behavior analysts; (iii) establish
7676 46eligibility and renewal requirements; (iv) receive, review and approve or disapprove an
7777 47application for a reciprocal license for an applicant who is licensed or certified as a behavior
7878 48analyst in another state and who has demonstrated qualifications that equal or exceed those
7979 49required under sections 275 to 287, inclusive, of said chapter 112; (v) fine, censure, revoke,
8080 50suspend or deny a license and place on probation, reprimand or otherwise discipline a licensee
8181 51for a violation of the code of ethics or the rules and regulations of the board under said sections
8282 52275 to 287, inclusive, of said chapter 112; (vi) summarily suspend the license of a licensee who
8383 53poses an imminent danger to the public; provided, however, that a hearing shall be afforded to 4 of 13
8484 54the licensee within 10 day after any such action by the board to determine whether such
8585 55summary action is warranted; and (vii) perform any other functions and duties as may be
8686 56required to carry out this section.
8787 57 (b) The board shall make available to the public a list of licensed behavior analysts and
8888 58licensed assistant behavior analysts.
8989 59 (c) The members of the board, its officers and employees shall be indemnified by the
9090 60commonwealth for all actions taken as part of their responsibilities described in this section."
9191 61 SECTION 4. Section 163 of chapter 112 of the General Laws is hereby amended by
9292 62striking out the definitions, “Licensed applied behavior analyst” and “Licensed assistant applied
9393 63behavior analyst”, and inserting in place thereof the following definitions:-
9494 64 "Licensed assistant behavior analyst”, an individual who, by training, experience and
9595 65examination meets the requirements for licensing by the board of registration of behavior
9696 66analysts and is duly licensed to engage in the practice of applied behavior analysis under the
9797 67supervision of a licensed behavior analyst under sections 275 through 287, inclusive.
9898 68 “Licensed behavior analyst”, an individual who, by training, experience and examination
9999 69meets the requirements for licensing by the board of registration of behavior analysts and is duly
100100 70licensed to engage in the practice of applied behavior analysis in the commonwealth under
101101 71sections 275 through 287, inclusive.
102102 72 SECTION 5. Section 165 of chapter 112 of the General Laws is hereby amended by
103103 73striking out the following words in the title of the section:- “applied behavior analysts”. 5 of 13
104104 74 SECTION 6. Said Section 165 of chapter 112 of the General Laws is hereby further
105105 75amended by striking out the eighth through fifteenth paragraphs in their entirety.
106106 76 SECTION 7. Chapter 112 of the General Laws is hereby amended by adding the
107107 77following 13 sections:-
108108 78 Section 275. As used in sections 275 to 287, inclusive, the following words shall, unless
109109 79the context clearly requires otherwise, have the following meanings:
110110 80 “Board”, the board of registration of behavior analysts.
111111 81 “Certifying entity”, the Behavior Analyst Certification Board, Inc. (BACB), or another
112112 82entity whose programs to credential practitioners of applied behavioral analysis are accredited by
113113 83the National Commission on Certifying Agencies (NCCA) or American National Standards
114114 84Institute (ANSI) and approved by the board." Licensed assistant behavior analyst”, an individual
115115 85who, by training, experience and examination meets the requirements for licensing by the board
116116 86and is duly licensed to engage in the practice of applied behavior analysis under the supervision
117117 87of a licensed behavior analyst.
118118 88 “Licensed behavior analyst”, an individual who, by training, experience and examination
119119 89meets the requirements for licensing by the board and is duly licensed to engage in the practice
120120 90of applied behavior analysis in the commonwealth.
121121 91 “Practice of applied behavior analysis”, the design, implementation and evaluation of
122122 92instructional and environmental modifications to produce socially significant improvements in
123123 93human behavior. The practice of applied behavior analysis includes the empirical identification
124124 94of functional relations between behavior and environmental factors, known as functional 6 of 13
125125 95assessment and analysis. Applied behavior analysis interventions are based on scientific research
126126 96and direct and indirect observation and measurement of behavior and environment. They utilize
127127 97contextual factors, motivating operations, antecedent stimuli, positive reinforcement, and other
128128 98procedures to help individuals develop new behaviors, increase or decrease existing behaviors,
129129 99and emit behaviors under specific environmental conditions. The practice of applied behavior
130130 100analysis excludes diagnosis disorders, psychological testing, psychotherapy, cognitive therapy,
131131 101psychoanalysis, and counseling.
132132 102 “Recognized educational institution”, a degree-granting college or university which is
133133 103accredited by (i) a regional accreditation body recognized by the United States Department of
134134 104Education and (ii) a certifying entity.
135135 105 Section 276. The board may issue a license to an applicant as a behavior analyst provided
136136 106that the applicant:
137137 107 (a) is of good moral character;
138138 108 (b) has not engaged or is not engaging in any practice or conduct that would be grounds
139139 109for refusing to issue a license under section 286; and
140140 110 (c) has current certification at the appropriate level verified with the certifying entity by
141141 111the board; and any other requirements and qualifications as deemed necessary by the board
142142 112 Section 277. The board may issue a license to an applicant as an assistant behavior
143143 113analyst provided that the applicant:
144144 114 (a) is of good moral character; 7 of 13
145145 115 (b) has not engaged or is not engaging in any practice or conduct that would be grounds
146146 116for refusing to issue a license under section 286;
147147 117 (c) has current certification at the appropriate level verified with the certifying entity by
148148 118the board; and
149149 119 (d) can provide the board upon request with evidence of current and ongoing supervision
150150 120by a licensed behavior analyst who is approved as a supervisor by the certifying entity; and any
151151 121other requirements and qualifications as deemed necessary by the board.
152152 122 Section 278. Each person desiring to obtain a license as a behavior analyst or as an
153153 123assistant behavior analyst shall make application to the board upon such form and in such
154154 124manner as the board shall prescribe and shall furnish evidence satisfactory to the board that the
155155 125person is of good moral character including, but not limited to, the fact that such applicant has
156156 126not been convicted of a felony; provided, however, that for the purposes of this section, a
157157 127conviction shall include a judgment, an admission of guilt or a plea of nolo contendere to any
158158 128such felony charges or a conviction of an offense under the laws of another jurisdiction which, if
159159 129committed in the commonwealth, would be a felony unless:
160160 130 (i) at least 10 years have elapsed from the date of the conviction; and
161161 131 (ii) the applicant satisfactorily demonstrates to the board that the applicant has made
162162 132significant progress in personal rehabilitation since the conviction so that licensure of the
163163 133applicant would not be expected to create a substantial risk of harm to the health and safety of
164164 134the applicant’s clients or the public or a substantial risk of further criminal violations. 8 of 13
165165 135 The board shall have access to criminal offender record information to review such
166166 136felony or misdemeanor convictions as are necessary to carry out this section.
167167 137 Section 279. Notwithstanding sections 276 and 277, the board may issue a license to an
168168 138applicant who presents evidence that such applicant has been licensed or certified as a behavior
169169 139analyst or assistant behavior analyst by a similar board of another jurisdiction the standards of
170170 140which are at least the same as those required in the commonwealth.
171171 141 Section 280. A fee shall be paid to the board for the original license. A license to practice
172172 142as a licensed behavior analyst or a licensed assistant behavior analyst shall be valid for 2 years
173173 143and must be renewed biennially. Any application for renewal of a license that has expired shall
174174 144require the payment of a re-registration fee.
175175 145 On or before September 30 of the year preceding the expiration of a license, the board
176176 146shall forward to the holder of the license a form of application for renewal thereof. Upon the
177177 147receipt of the completed form and the renewal fee on or before November 30, the board shall
178178 148verify with the certifying entity that the applicant is certified at the appropriate level and is not
179179 149the subject of any active investigation or disciplinary action by the certifying entity. If such
180180 150verification is attained, the board shall issue a new license for the year commencing January 1.
181181 151 Section 281. All fees required by sections 275 to 287, inclusive, shall be determined
182182 152annually by the secretary of administration and finance under section 3B of chapter 7. All
183183 153licensing and application fees and civil administrative penalties collected under said sections 275
184184 154to 287, inclusive, shall be deposited into the Division of Professional Licensure Trust Fund
185185 155established in section 35V of chapter 10. 9 of 13
186186 156 Section 282. Nothing in sections 275 to 287, inclusive, shall be construed to prevent
187187 157qualified members of other professions or occupations including, but not limited to, physicians,
188188 158psychologists, teachers, members of the clergy, authorized Christian Science practitioners,
189189 159attorneys-at-law, social workers, guidance counselors, clinical counselors, adjustment
190190 160counselors, speech pathologists, audiologists or rehabilitation counselors from practicing applied
191191 161behavior analysis if it is consistent with the legislated scope of practice and accepted ethical
192192 162standards of their respective professions and the individual professional’s training and
193193 163competence; provided, however, that no such Christian Science practitioner, attorneys-at-law,
194194 164social worker, guidance counselor, clinical counselor, adjustment counselor, speech pathologist,
195195 165audiologist or rehabilitation counselor shall use any title or description stating or implying that
196196 166such person is a licensed behavior analyst or licensed assistant behavior analyst without holding
197197 167said license.
198198 168 Section 283. A person licensed under sections 275 to 287, inclusive, shall comply with
199199 169the standards of ethical practice as adopted by the board.
200200 170 Section 284. A person not licensed to practice applied behavior analysis who holds
201201 171himself out to be a licensed behavior analyst or licensed assistant behavior analyst or who uses
202202 172the title “licensed behavior analyst” or “licensed assistant behavior analyst” or engages in the
203203 173practice of applied behavior analysis shall be subject to the penalties set forth in section 65A.
204204 174 Section 285. The penalties set forth in section 284 shall not apply to matriculated college
205205 175or university students or postdoctoral fellows whose applied behavior analysis activities are part
206206 176of a defined program of study, course, practice, internship, or fellowship and are directly
207207 177supervised by a licensed behavior analyst in the Commonwealth or a qualified faculty member. 10 of 13
208208 178Such individuals must not represent themselves as professional behavior analysts and must use
209209 179titles that clearly indicate their trainee status, such as “student,” “intern,” or trainee.”
210210 180 Section 286. The board shall investigate all complaints relating to the proper practice of
211211 181applied behavior analysis by a person licensed under sections 275 to 287, inclusive.
212212 182 The board, after a hearing held under chapter 30A, may revoke, suspend or cancel the
213213 183license, or reprimand, censure or otherwise discipline a licensed behavior analyst or licensed
214214 184assistant behavior analyst upon proof satisfactory to a majority of the board that the licensee:
215215 185 (i) fraudulently procured the license;
216216 186 (ii) is guilty of an offense under any law of the commonwealth relating to the practice of
217217 187applied behavior analysis or a rule or regulation adopted under those laws;
218218 188 (iii) engaged in conduct that calls into question their competence to practice applied
219219 189behavior analysis including, but not limited to, gross misconduct in the practice of applied
220220 190behavior analysis or of practicing applied behavior analysis fraudulently, or beyond its
221221 191authorized scope, or with gross incompetence, or with gross negligence on a particular occasion
222222 192or negligence on repeated occasions;
223223 193 (iv) practiced applied behavior analysis while the ability to practice was impaired by
224224 194alcohol, drugs, physical disability or mental instability;
225225 195 (v) has been habitually drunk or being or having been within a reasonable period of time
226226 196addicted to, dependent on or a habitual user of narcotics, barbiturates, amphetamines,
227227 197hallucinogens or other drugs having similar effects; 11 of 13
228228 198 (vi) knowingly permitted, aided or abetted an unlicensed individual to perform activities
229229 199requiring a license for purposes of fraud, deception or personal gain;
230230 200 (vii) has been convicted of a criminal offense which reasonably calls into question the
231231 201licensee’s ability to practice applied behavior analysis;
232232 202 (viii) violated any rule or regulation of the board governing the practice of applied
233233 203behavior analysis; or
234234 204 (ix) violated any professional disciplinary or ethical standard established by the board.
235235 205 No person who files a complaint or who reports or provides information under this
236236 206section or assists the board at its request in any manner in discharging its duties and functions
237237 207shall be liable in a cause of action arising out of the receiving of such information or assistance if
238238 208the person making the complaint or reporting or providing the information or assistance does so
239239 209in good faith and without malice.
240240 210 If the licensee is found not to have violated this section, the board shall forthwith order a
241241 211dismissal of the charges.
242242 212 Written notice of a contemplated revocation or suspension of a license or the cause
243243 213therefor, in sufficient particularity, and the date of a hearing thereon, shall be sent by registered
244244 214or certified mail to the licensee at the licensee’s last known address at least 15 days before the
245245 215date of the hearing. The licensee against whom a charge is filed shall have a right to appear
246246 216before the board in person or by counsel, or both, may produce witnesses, introduce evidence
247247 217and question witnesses. No license shall be revoked or suspended without such hearing, but the
248248 218nonappearance of the licensee, after notice, shall not prevent such revocation or suspension. All 12 of 13
249249 219matters upon which a contemplated revocation or suspension is based shall be introduced in
250250 220evidence at the proceeding. The licensee shall be notified in writing of the board’s decision. The
251251 221board may make such rules and regulations as it deems proper for the filing of charges and the
252252 222conduct of hearings.
253253 223 After issuing an order of revocation or suspension, the board may file a petition in equity
254254 224in the superior court in a county in which the respondent resides or transacts business, or in
255255 225Suffolk County, to ensure appropriate injunctive relief to expedite and secure the enforcement of
256256 226its order, pending the final determination.
257257 227 A decision by the board under this section shall be subject to review in superior court
258258 228under chapter 30A.
259259 229 Section 287. After three years from the date of revocation, an application for
260260 230reinstatement may be made to the board and the board may, upon the affirmative vote of a
261261 231majority of its members, grant such reinstatement.
262262 232 SECTION 8. Notwithstanding section 110 of chapter 13 of the General Laws, the initial
263263 233members of the board of registration of behavior analysts shall consist of 9 members to be
264264 234appointed by the governor, 2 of whom shall be Licensed Behavior Analysts licensed under this
265265 235section who hold doctoral degrees, 4 of whom shall be Licensed Behavior Analysts who hold
266266 236master’s degrees, 1 of whom shall be a Licensed Assistant Behavior Analyst designated as such
267267 237by the who holds a bachelor’s degree, and 2 members of the general public, subject to section 9B
268268 238of chapter 13. Of the said initial members appointed to the board, 3 shall serve for terms of 3
269269 239years, 3 shall serve for terms of 2 years and 3 shall serve for a term of 1 year. 13 of 13
270270 240 SECTION 9. Individuals licensed in good standing as applied behavior analysts or
271271 241assistant applied behavior analysts within the commonwealth upon the effective date of this Act
272272 242shall be grandfathered, and not required to resubmit applications for licensure until the time as
273273 243their license is due for renewal.