Subdivisions (a) and (b) of section 29.2 of the Rules of the Board of Regents are amended to add the profession of applied behavior analysis to the list of health care professions that are subject to its unprofessional conduct provisions.

Section 52.44 is added to the Regulations of the Commissioner of Education to establish the requirements for licensed behavior analyst education programs. These requirements include registration and curriculum requirements for programs offered in New York State that lead to licensure as a licensed behavior analyst. Section 52.44 further requires licensed behavior analyst education programs to be a program in applied behavior analysis leading to a master’s degree or higher degree, which must require at least one year of full-time study or the equivalent; or a program in applied behavioral analysis leading to an advanced certificate which ensures that each student holds a master’s or higher degree in subject areas, including, but not limited to, psychology, education or other subject areas that address learning and behavioral change as determined by the Department.

Section 52.45 is added to the Regulations of the Commissioner of Education to establish the requirements for certified behavior analyst assistant education programs. These requirements include registration and curriculum requirements for programs offered in New York State that lead to certification as a certified behavior analyst assistant. Section 52.45 further requires certified behavior analyst assistant education programs to be a program in applied behavior analysis leading to a bachelor’s or higher degree; or a program in applied behavior analysis leading to a certificate which ensures that each student holds a bachelor’s degree or a higher degree in subject areas, including, but not limited to, psychology, education or other subject areas that address learning and behavioral change as determined by the Department.

Paragraph (1) of subdivision (a) of section 59.14 of the Regulations of the Commissioner of Education is amended to implement that portion of Chapter 554 of the Laws of 2013 which includes applied behavior analysis among the professions for which a waiver of certain corporate practice restrictions is available.

Subpart 79-17 is added to the Regulations of the Commissioner of Education to establish the requirements for licensure as a licensed behavior analyst, which include, but are not limited to, professional education, experience, examination, limited permit requirements and reiterates the exemptions to the practice of applied behavior analysis set forth in section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014.

Subpart 79-18 is added to the Regulations of the Commissioner of Education to establish the requirements for certification as a certified behavior analyst assistant, which include, but are not limited to, professional education, experience, examination, limited permit requirements and reiterates the exemptions to the practice of applied behavior analysis set forth in section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014.

Since the publication of a Notice of Emergency Action and Proposed Rule Making in the State Register on December 31, 2014, a nonsubstantial revision was made to the proposed regulation, as follows:

In subdivision (c) of section 79-17.3 and subdivision (c) of section 79-18.3, the term “passing score” was replaced with the term “converted passing score” in order to clarify the text of the proposed regulation.

The above nonsubstantial revision does not require any changes to the previously published Regulatory Impact Statement.

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, a nonsubstantial revision was made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The above nonsubstantial revision does not require any changes to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments.

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, a nonsubstantial revision was made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The above nonsubstantial revision does not require any changes to the previously published Rural Area Flexibility Analysis.

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, a nonsubstantial revision was made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The revised proposed rule is necessary to implement Chapter 554 of the Laws of 2013, which establishes and defines the practice of the new profession of applied behavior analysis and establishes the licensure requirements for licensed behavior analysts and certified behavior analyst assistants to provide behavior health treatment for persons with autism, autism spectrum disorders and related disorders. The revised proposed rule is also necessary to implement Chapter 8 of the Laws of 2014 which amended Chapter 554 to make changes necessary to the implementation of Chapter 554.

The revised proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:

An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the December 31, 2014 State Register, 17 comments were received. Several responses commended the State Education Department (SED) for quickly establishing the ABA Board and developing proposed regulations. Support was expressed for the proposed rule’s 1,500 hours of supervised experience requirement for licensed behavior analysts (LBA) applicants. Concerns expressed were:

• Experience requirements may create a barrier to licensure for individuals who obtained their experience outside of N.Y. and should be amended to recognize experience obtained under supervisors “certified by a national entity whose certification is accredited by the National Commission for Certifying Agencies” or to allow “equivalent” experience appropriately supervised from other jurisdictions.

DEPARTMENT RESPONSE: SED disagrees. Education Law § 8805 provides a grandparenting licensure/certification pathway (Pathway One) for individuals who are certified or registered by a national certifying body, submit an attestation of moral character, and apply by January 9, 2016. Sections 79-17.2(e)(1)(ii) and 79-18.2(e)(1)(i) allow individuals who gained their experience in states without ABA licensure to use such experience towards licensure in N.Y. if their supervisor was licensed in a profession (e.g., psychology) that is authorized to provide ABA services within its scope of practice in that state.

• The rule should be revised to make Behavior Analyst Certification Board (BACB) certification the main/permanent requirement for licensure/certification or match BACB standards to ensure equivalent treatment. The proposed rule should not limit licensure to those who provide behavioral health treatment to individuals with autism, autism spectrum disorders and related disorders but should be extended to those outside the scope of an autism diagnosis.

DEPARTMENT RESPONSE: Education Law § 8805 recognizes certification from a national certifying body, like BACB, for licensure purposes for a limited time. Article 167 of the Education Law (which established the ABA profession) does not recognize BACB certification for any other purpose. Pathway One provides for appropriate access to ABA services while appropriate licensing occurs. Article 167 gives the Regents and SED the authority to implement education, experience, supervision, examination, and moral character requirements for applicants for licensure. The proposed rule is consistent with the legislative intent. Education Law §§ 8802(1) and (2) limit the licensure of licensed behavior analysts (LBA) and certification of certified behavior analysts assistants (CBBAs) to individuals who provide ABA services to individuals with autism, autism spectrum disorders and related disorders. Absent a statutory change, the proposed rule cannot expand the scope of practice to include the provision of ABA services to individuals who have a diagnosis other than autism, autism spectrum disorders and related disorders. SED disagrees that clients of professionals not formally trained in ABA will be at risk because §§ 29.1(b)(9) and 29.2(a)(5) provide that it is professional misconduct for a licensed professional to accept and perform professional responsibilities the licensee knows, or has reason to know, he or she is not competent to perform. Education Law § 8807 establishes exemptions to the ABA licensure requirements such that if the provision of ABA services is within the scope of practice of another profession, the licensed professional can provide those services without ABA licensure or BACB’s certification.

• The proposed rule might interfere with graduates’ ability to apply for both the BACB designation and licensure in N.Y. as it is inconsistent with BACB’s standards and rules.

DEPARTMENT RESPONSE: The proposed rule’s educational requirements which require coursework in autism, autism spectrum disorders and related disorders, differ from BACB’s educational requirements which focus on the general application of ABA. Higher education institutions seeking to offer educational programs leading to licensure as an LBA or certification as a CBAA must be registered under §§ 52.44 and 52.45 of the regulation. However, nothing precludes them from seeking to have their coursework accepted by BACB or impairs an applicant’s ability to apply for both the BACB designation and licensure in N.Y. SED provided the proposed rule’s education requirements to all higher education institutions with ABA programs so they have the information needed to develop programs that comply with the proposed regulation.

• If the narrow scope of practice of ABA and narrow training requirements take effect, fewer students will come to N.Y. for their training; limiting the ability of institutions to recruit nationally and internationally and exacerbating the shortage of these professionals.

DEPARTMENT RESPONSE: SED disagrees, finding that approximately 50 college and university programs provide degrees, certificates and courses in ABA. All would be eligible to be registered as licensure-qualifying. Other than this commenter, no programs have expressed concern that their graduates may leave N.Y. to practice elsewhere.

• There will be confusion among practitioners and consumers if an acknowledgement is not made of behavior analysts working with populations other “persons with autism and autism spectrum disorders.”

DEPARTMENT RESPONSE: SED may issue guidance if this needs to be clarified in the future.

• The proposed rule’s two hours of weekly supervision would create a barrier to licensure by increasing time, workload and financial commitments on the part of agencies, supervisors, and applicant for licensure. SED should accept BACB supervision requirements or permit a grandparenting period to allow individuals already in the process of obtaining supervised experience to complete BACB supervision requirements instead.

DEPARTMENT RESPONSE: BACB’s supervision requirement for a BCBA is 5% of the total hours spent in supervised experience (i.e., 40 hours of experience would require two hours of supervision). The proposed rule’s requirement of two hours of supervision would equate to 5% for those completing 40 hours of experience. Applicants should benefit from intensive supervised experience to provide the best possible services to this vulnerable population. Section 79-17.2 provides applicants with the option of completing their supervised experience as part of a master’s degree program or advanced certificate program. Education Law § 8805 provides Pathway One for those who are certified or registered by a national certifying body, like BACB, and apply by January 9, 2016. Thus, individuals, who are in the process of completing BACB’s supervised experience requirements and obtain their BCBA certification, prior to the expiration of this grandparenting period, can use such certification to apply for licensure. After January 9, 2016, if SED determines there is a barrier to licensure for those already in the process of completing their supervised experience under BACB requirements, it may consider such experience as satisfying the experience requirements for licensure/certification.

• Section 79-17.2(e)(1)(i)(b), which permits supervision by an authorized health care practitioner, is too broad in scope. BACB’s supervised experience requirements should be adopted instead. The Department and ABA Board should use their statutory discretion to revise the experience requirement to only permit supervision by an LBA or other licensed professional whose scope of practice, training and competence include designing, delivering and overseeing ABA services, rather than merely prescribing or ordering such services. Confusion may arise if the new regulations do not reference the BACB and its relationship to N.Y.

DEPARTMENT RESPONSE: Under Education Law § 8807’s exemptions, if ABA services are provided within the scope of practice of a particular profession, a licensed individual can provide ABA services and supervise applicants for licensure without being an LBA or BACB certified. The supervisor qualification provisions are consistent with this statute. Under §§ 29.1(b)(9) and 29.2(a)(5), it is professional misconduct for a licensed professional to fail to exercise appropriate supervision over a supervisee. SED may issue guidance if it determines there is confusion in the field or among consumers.

• The rule should be revised to adopt the BACB examination for licensure/certification as there are no other psychometrically and legally validated exams in the practice of behavioral analysis and it will save the expense of developing and managing alternative examinations.

DEPARTMENT RESPONSE: SED is reviewing its examination options and will issue a Request for Proposals for the examination which will require a proper job analysis be conducted and the examination be properly validated before use. SED does not believe the BACB test currently tests all competencies needed for N.Y. licensure.

• Including a passing score is unnecessary and may restrict the ABA Board and SED as they investigate options for examinations. Further study is recommended to develop procedures and criteria for identifying an “acceptable” licensing examination.

DEPARTMENT RESPONSE: Sections 79-17.3(c) and 79-18.3(c) do not establish a passing score. These provisions establish a converted score of at least 75 as determined by the ABA Board. To address this misunderstanding, SED made non-substantial revisions in §§ 79-17.3(c) and 79-18.3(c) to replace “passing score” with “converted passing score.”

• Under the regulation, after completion of only 150 hours of supervised experience and completion of a degree, the supervisee is eligible to sit for the licensing exam, which is in direct conflict with BACB’s requirement that all supervision hours (up to 1,500) be completed prior to sitting for the exam.

DEPARTMENT RESPONSE: The statute provides the Regents and SED with the discretion to permit applicants to sit for the licensure/certification examination prior to completing all of the supervised experience requirements. This is consistent with other professions (e.g., psychology and mental health) and SED is unaware of any issues.

• The limited permit provisions of § 79-17.4 are in direct conflict with the international standard of practice in which persons who have not passed the BACB exam cannot use the titles LBA or CBAA.

DEPARTMENT RESPONSE: Limited permits to practice are authorized by Education Law § 8806 and individuals are subject to supervision under § 79-17.2. Section 79-17.2(c)(3) provides that the setting must provide titles which clearly indicate unlicensed individuals’ training status under Education Law § 8807(4). Thus, applicants with limited permits will not be using the title LBA or CBAA while gaining experience. These provisions are similar to the limited permit provisions in other professions, including psychology.

• Sections 52.44(a) and 52.45(a), which establish college and university program registration requirements for programs leading to licensure, should be changed to make them consistent and clear that the subject areas include education and psychology.

DEPARTMENT RESPONSE: These provisions are intended to establish the curricular requirements solely for the registration of programs in Applied Behavior Analysis. Under §§ 79-17.1(b)(2) and 79-18.1(b)(2), individuals who complete registered programs in the professions of psychology or education could seek licensure/certification in the profession of ABA and meet the education requirements for such licensure/certification.

• The time for colleges and universities to register programs should be extended one additional year, from September 1, 2019 to September 1, 2020, to allow sufficient time to develop program requirements and allow for SED approval. SED should consider grandfathering programs at N.Y. colleges and universities containing course sequences that have been approved by BACB and, in states that do not have licensure of LBAs or CBAAs, recognize college or university programs already approved by BACB. SED and the ABA Board could allow those programs containing course sequences currently approved by BACB to be considered automatically registered by SED. The proposed regulations appear to permit education requirements to be met by colleges and universities in other states only for programs leading to licensure.

DEPARTMENT RESPONSE: SED’s Office of Comparative Education and Office of Professional Education Program Review and several universities have advised that the deadline is achievable, however, SED may consider extending it, if necessary. It is not accurate to say that the proposed regulations permit education requirements to be met by applicants from colleges and universities in other states only for programs leading to licensure. Under the rule, applicants who have completed a master’s degree or advanced certificate programs in ABA in all jurisdictions that include curricular content required for licensure/certification in N.Y. may have this education accepted to meet the education requirements for licensure. Applicants would be able to remedy deficiencies and would need to take coursework not required for BCBA certification in autism, autism spectrum disorders and related disorders.

• SED should support a legislative extension of Pathway One to September 1, 2020.

DEPARTMENT RESPONSE: This is unnecessary as 738 LBAs are currently licensed and there should be enough LBAs to provide services by the time Pathway One expires.