S T A T E O F N E W Y O R K
________________________________________________________________________
6395
I N S E N A T E
January 21, 2014
___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Mental Health and Develop-
mental Disabilities
AN ACT to amend the social services law, in relation to the definition
of human services professional; to amend the education law, in
relation to reporting on the number of individuals engaged in the
practice of applied behavior analysis; and to amend chapter 554 of the
laws of 2013 amending the education law and other laws relating to
applied behavior analysis, in relation to performing the duties of a
licensed behavior analyst
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 5-a of section 488 of the social services law,
as added by section 1 of part B of chapter 501 of the laws of 2012, is
amended to read as follows:
5-a. "Human services professional" shall mean any: physician; regis-
tered physician assistant; surgeon; medical examiner; coroner; dentist;
dental hygienist; osteopath; optometrist; chiropractor; podiatrist;
resident; intern; psychologist; registered nurse; licensed practical
nurse; nurse practitioner; social worker; emergency medical technician;
licensed creative arts therapist; licensed marriage and family thera-
pist; licensed mental health counselor; licensed psychoanalyst; LICENSED
BEHAVIOR ANALYST; CERTIFIED BEHAVIOR ANALYST ASSISTANT; licensed
speech/language pathologist or audiologist; licensed physical therapist;
licensed occupational therapist; hospital personnel engaged in the
admission, examination, care or treatment of persons; Christian Science
practitioner; school official, which includes but is not limited to
school teacher, school guidance counselor, school psychologist, school
social worker, school nurse, school administrator or other school
personnel required to hold a teaching or administrative license or
certificate; social services worker; any other child care or foster care
worker; mental health professional; person credentialed by the office of
alcoholism and substance abuse services; peace officer; police officer;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08806-26-4
S. 6395 2
district attorney or assistant district attorney; investigator employed
in the office of a district attorney; or other law enforcement official.
S 2. Section 8807 of the education law is amended by adding four new
subdivisions 5, 6, 7 and 8 to read as follows:
5. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO AFFECT OR PREVENT A
PERSON WITHOUT A LICENSE OR OTHER AUTHORIZATION PURSUANT TO THIS TITLE
FROM PERFORMING ASSESSMENTS, INCLUDING COLLECTING BASIC INFORMATION,
GATHERING DEMOGRAPHIC DATA, AND MAKING INFORMAL OBSERVATIONS, FOR THE
PURPOSE OF DETERMINING NEED FOR SERVICES UNRELATED TO AN ABA PLAN.
FURTHER, LICENSURE OR AUTHORIZATION PURSUANT TO THIS ARTICLE SHALL NOT
BE REQUIRED TO CREATE, DEVELOP OR IMPLEMENT A SERVICE PLAN UNRELATED TO
AN ABA PLAN. THIS ARTICLE SHALL NOT APPLY TO BEHAVIORAL HEALTH TREAT-
MENTS OTHER THAN ABA THAT MAY BE PROVIDED TO PERSONS WITH AUTISM SPEC-
TRUM DISORDER. A LICENSE UNDER THIS ARTICLE SHALL NOT BE REQUIRED FOR
PERSONS TO PARTICIPATE AS A MEMBER OF A MULTI-DISCIPLINARY TEAM TO
IMPLEMENT AN ABA PLAN; PROVIDED, HOWEVER, THAT SUCH TEAM SHALL INCLUDE
ONE OR MORE PROFESSIONALS LICENSED UNDER THIS ARTICLE OR ARTICLES ONE
HUNDRED THIRTY-ONE, ONE HUNDRED FIFTY-THREE, ONE HUNDRED FIFTY-FOUR OR
ONE HUNDRED SIXTY-THREE OF THIS CHAPTER; AND PROVIDED FURTHER THAT THE
ACTIVITIES PERFORMED BY MEMBERS OF THE TEAM SHALL BE CONSISTENT WITH THE
SCOPE OF PRACTICE FOR EACH TEAM MEMBER LICENSED OR AUTHORIZED UNDER
THIS TITLE, AND THOSE WHO ARE NOT SO AUTHORIZED MAY NOT ENGAGE IN THE
FOLLOWING RESTRICTED PRACTICES: CREATION, MODIFICATION OR TERMINATION OF
AN ABA PLAN; DIAGNOSIS OF MENTAL, EMOTIONAL, BEHAVIORAL, ADDICTIVE AND
DEVELOPMENTAL DISORDERS AND DISABILITIES; PATIENT ASSESSMENT AND EVALU-
ATING; PROVISION OF PSYCHOTHERAPEUTIC TREATMENT; PROVISION OF TREATMENT
OTHER THAN PSYCHOTHERAPEUTIC TREATMENT; AND DEVELOPMENT AND IMPLEMENTA-
TION OF ASSESSMENT-BASED TREATMENT PLANS, AS DEFINED IN SECTION SEVEN-
TY-SEVEN HUNDRED ONE OF THIS TITLE. PROVIDED FURTHER, HOWEVER, THAT
NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED AS REQUIRING A LICENSE OR
AUTHORIZATION FOR ANY PARTICULAR ACTIVITY OR FUNCTION BASED SOLELY ON
THE FACT THAT THE ACTIVITY OR FUNCTION IS NOT LISTED IN THIS SUBDIVI-
SION. PROVIDED FURTHER, HOWEVER, THAT NOTHING IN THIS SUBDIVISION SHALL
AUTHORIZE THE DELEGATION OF RESTRICTED ACTIVITIES TO AN INDIVIDUAL WHO
IS NOT APPROPRIATELY LICENSED OR AUTHORIZED UNDER THIS TITLE.
6. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED AS PROHIBITING AN EARLY
INTERVENTION ABA AIDE, PURSUANT TO REGULATIONS PROMULGATED BY THE
COMMISSIONER OF HEALTH, AND ACTING UNDER THE SUPERVISION AND DIRECTION
OF A QUALIFIED SUPERVISOR WHO IS LICENSED OR OTHERWISE AUTHORIZED PURSU-
ANT TO TITLE EIGHT OF THIS CHAPTER FROM:
(A) ASSISTING THE SUPERVISOR AND QUALIFIED PERSONNEL WITH THE IMPLE-
MENTATION OF INDIVIDUAL ABA PLANS;
(B) ASSISTING IN THE RECORDING AND COLLECTION OF DATA NEEDED TO MONI-
TOR PROGRESS;
(C) PARTICIPATING IN REQUIRED TEAM MEETINGS; AND
(D) COMPLETING ANY OTHER ACTIVITIES AS DIRECTED BY HIS OR HER SUPERVI-
SOR AND AS NECESSARY TO ASSIST IN THE IMPLEMENTATION OF INDIVIDUAL ABA
PLANS.
PROVIDED HOWEVER, THAT NOTHING IN THIS SUBDIVISION SHALL AUTHORIZE THE
DELEGATION OF RESTRICTED ACTIVITIES TO AN INDIVIDUAL WHO IS NOT APPRO-
PRIATELY LICENSED OR OTHERWISE AUTHORIZED UNDER THIS TITLE; PROVIDED
FURTHER HOWEVER, THAT IN REGARD TO THE EARLY INTERVENTION PROGRAM ESTAB-
LISHED PURSUANT TO TITLE TWO-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC
HEALTH LAW, AN EARLY INTERVENTION ABA AIDE UNDER THE SUPERVISION AND
DIRECTION OF A QUALIFIED SUPERVISOR MAY COMPLETE ACTIVITIES NECESSARY TO
S. 6395 3
ASSIST IN THE IMPLEMENTATION OF AN INDIVIDUAL ABA PLAN, PROVIDED THAT
SUCH ACTIVITIES DO NOT REQUIRE PROFESSIONAL SKILL OR JUDGMENT.
7. THIS ARTICLE SHALL NOT BE CONSTRUED TO PROHIBIT CARE DELIVERED BY
ANY FAMILY MEMBER, HOUSEHOLD MEMBER OR FRIEND, OR PERSON EMPLOYED PRIMA-
RILY IN A DOMESTIC CAPACITY WHO DOES NOT HOLD HIMSELF OR HERSELF OUT, OR
ACCEPT EMPLOYMENT, AS A PERSON LICENSED TO PRACTICE APPLIED BEHAVIOR
ANALYSIS UNDER THE PROVISIONS OF THIS ARTICLE; PROVIDED THAT, IF SUCH
PERSON IS REMUNERATED, THE PERSON DOES NOT HOLD HIMSELF OR HERSELF OUT
AS ONE WHO ACCEPTS EMPLOYMENT FOR PERFORMING SUCH CARE.
8. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED AS PROHIBITING PROGRAMS
CERTIFIED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES FROM
PROVIDING SUBSTANCE USE DISORDER SERVICES FOR PERSONS WITH AUTISM AND
AUTISM SPECTRUM DISORDERS AND RELATED DISORDERS.
S 3. Section 13 of chapter 554 of the laws of 2013, amending the
education law and other laws relating to applied behavior analysis, is
amended to read as follows:
S 13. a. Nothing in this act shall be construed as prohibiting a
person [from performing the duties of a licensed behavior analyst or a
certified behavior analyst assistant, in the course of such employment,
if such person is] employed OR RETAINED by programs licensed, certified,
operated, APPROVED, REGISTERED or funded and regulated by the office for
people with developmental disabilities, THE OFFICE OF CHILDREN AND FAMI-
LY SERVICES, or the office of mental health FROM PERFORMING THE DUTIES
OF A LICENSED BEHAVIOR ANALYST OR A CERTIFIED BEHAVIOR ANALYST ASSISTANT
IN THE COURSE OF SUCH EMPLOYMENT OR RETENTION; provided, however, that
this section shall not authorize the use of any title authorized pursu-
ant to article 167 of the education law; and provided further, however,
that this section shall be deemed repealed on July 1, [2018] 2020.
b. ON OR BEFORE SEPTEMBER 1, 2016, THE OFFICE FOR PEOPLE WITH DEVELOP-
MENTAL DISABILITIES, THE OFFICE OF CHILDREN AND FAMILY SERVICES, AND THE
OFFICE OF MENTAL HEALTH SHALL JOINTLY SUBMIT TO THE GOVERNOR, THE
COMMISSIONER OF EDUCATION, THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY
PRESIDENT OF THE SENATE, AND THE CHAIRS OF THE SENATE AND ASSEMBLY HIGH-
ER EDUCATION COMMITTEES A REPORT ON THE NUMBER OF INDIVIDUALS EMPLOYED
OR RETAINED IN EXEMPT PROGRAMS LICENSED, CERTIFIED, OPERATED, APPROVED,
REGISTERED, OR FUNDED AND REGULATED BY SUCH AGENCIES ON JULY 1, 2016 WHO
ARE PROVIDING SERVICES THAT WOULD OTHERWISE BE RESTRICTED TO THOSE
LICENSED OR AUTHORIZED UNDER ARTICLE 167 OF THE EDUCATION LAW; AND THE
OCCUPATIONAL TITLE OF INDIVIDUALS WHO ON JULY 1, 2016 ARE NOT LICENSED
OR OTHERWISE AUTHORIZED UNDER TITLE 8 OF THE EDUCATION LAW, AND WHO ARE
ENGAGED IN THE PRACTICE OF APPLIED BEHAVIOR ANALYSIS FOR THE PURPOSE OF
PROVIDING BEHAVIORAL HEALTH TREATMENT FOR PERSONS WITH AUTISM SPECTRUM
DISORDERS AND RELATED DISORDERS.
C. On or before September 1, [2016] 2018, the office for people with
developmental disabilities, THE OFFICE OF CHILDREN AND FAMILY SERVICES,
and the office of mental health [as identified in subdivision a of this
section that licenses, certifies, operates or funds and regulates
programs that employ individuals to provide services that would other-
wise be restricted to individuals licensed or authorized under article
167 of the education law,] shall submit to the commissioner of educa-
tion, in such form and detail as requested by such commissioner, data in
relation to: the number of individuals employed OR RETAINED in exempt
programs licensed, certified, operated, APPROVED, REGISTERED or funded
and regulated by [the office for people with developmental disabilities]
SUCH AGENCIES on July 1, [2016] 2018 who are providing services that
would otherwise be restricted to those licensed or authorized under
S. 6395 4
article 167 of the education law; and the occupational title of individ-
uals who on July 1, [2016] 2018 are not licensed or otherwise authorized
under title 8 of the education law, and who are engaged in the practice
of applied behavior analysis for the purpose of providing behavioral
health treatment for persons with autism and autism spectrum disorders
and related disorders.
[c.] D. The commissioner of education, after receipt of this data and
in consultation with the office for people with developmental disabili-
ties, THE OFFICE OF CHILDREN AND FAMILY SERVICES, and the office of
mental health, not-for-profit providers, professional associations,
consumers and other key stakeholders, shall prepare a report that recom-
mends changes in any laws, rules or regulations necessary to ensure
appropriate licensure or other authorization of individuals providing
services that are within the restricted practice of professions licensed
or otherwise authorized under article 167 of the education law. The
report shall include an estimate of the fiscal impact of any such recom-
mended changes and, to the extent practicable, how such recommendations
will result in improved outcomes. The commissioner of education shall
submit the report to the governor, the speaker of the assembly, the
temporary president of the senate, and the chairs of the senate and
assembly higher education committees by January 1, [2017] 2019. The
commissioners of the agencies identified in subdivision a of this
section shall be provided an opportunity to include statements or alter-
native recommendations in such report.
S 4. This act shall take effect on the same date and in the same
manner as chapter 554 of the laws of 2013, takes effect.
