EDU-52-14-00015-EP Profession of Applied Behavior Analysis
12/31/14 N.Y. St. Reg. EDU-52-14-00015-EP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 52
December 31, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-52-14-00015-EP
Filing No. 1060
Filing Date. Dec. 16, 2014
Effective Date. Dec. 16, 2014
Profession of Applied Behavior Analysis
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of sections 29.2, 52.44, 52.45, 59.14 and Subparts 79-17 and 79-18 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207(not subdivided), 6503-a, 6504(not subdivided), 6507(2)(a), 6509(9), 8800, 8801, 8802, 8803, 8804, 8805, 8806, 8807 and 8808; L. 2013, ch. 554 and L. 2014, ch. 8
Finding of necessity for emergency rule:
Preservation of public health and general welfare.
Specific reasons underlying the finding of necessity:
The proposed rule is necessary to implement Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which took effect on July 1, 2014. This amendment to the Education Law establishes and defines the practice of the profession of applied behavior analysis. Pursuant to Chapter 554, the purpose of applied behavior analysis is to provide behavioral health treatment for persons with autism and autism spectrum disorders and related disorders. It also establishes the requirements for licensed behavior analyst and certified behavior analyst assistant education programs, which include registration and curriculum requirements for programs offered in New York State that lead to licensure as a licensed behavior analyst or certification as a certified behavior analyst assistant. In addition, this amendment to the Education Law establishes a waiver of the licensure requirement for certain specified entities that provide applied behavior analysis services as defined in Article 167 of the Education Law. It further establishes requirements for the licensure of licensed behavior analysts and certified behavior analyst assistants, which include, but are not limited to, professional education, experience, examination and limited permit requirements. This amendment to the Education Law also provides a grandparenting licensure/certification pathway, which the Department is referring to as Pathway One, for individuals who are certified or registered by a national certifying body and submit an attestation of moral character and an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute. Although Pathway One will expire on January 9, 2016, the licenses and certifications issued under it will not. Additionally, this amendment adds the profession of applied behavior analysis to the list of health care professions that are subject to the Education Laws’ unprofessional conduct provisions.
Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for adoption, after expiration of the required 45-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the March 16-17, 2015 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the March meeting, would be April 1, 2015, the date a Notice of Adoption would be published in the State Register. However, the provisions of Chapter 554 and Chapter 8 became effective July 1, 2014.
Therefore, emergency action is necessary at the December 2014 Regents meeting for the preservation of the public health and general welfare in order to enable the State Education Department to immediately establish requirements to timely implement Chapter 554 and Chapter 8, so that applicants for licensure as licensed behavior analysts and certified behavior analyst assistants, who do not meet the requirements for licensure and/or certification under Pathway One, will be able to be licensed as licensed behavior analysts or certified behavior analyst assistants, if they meet the licensure or certification requirements of the proposed rule, which will increase the number of licensed professionals qualified to practice applied behavior analysis.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the March 16-17, 2015 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings.
Subject:
Profession of Applied Behavior Analysis.
Purpose:
To implement chapter 554 of the Laws of 2013 and chapter 8 of the Laws of 2014.
Substance of emergency/proposed rule (Full text is posted at the following State website:http://www.regents.nysed.gov/meeting):
The Commissioner of Education proposes to amend section 29.2 of the Rules of the Board of Regents, add sections 52.44 and 52.45 to the Regulations of the Commissioner of Education, amend section 59.14 of the Regulations of the Commissioner of Education, and add Subparts 79-17 and 79-18 to the Regulations of the Commissioner of Education, relating to the licensure of behavior analysts and certification of behavior analyst assistants under Article 167 of the Education Law as added by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. The following is a summary of the substance of the proposed rule:
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.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire March 15, 2015.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Office of the Professions, Office of the Deputy Commissioner, State Education Department, State Education Building 2M, 89 Washington Ave., Albany, NY 12234, (518) 486-1765, email: opdepcom@nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUORY AUTHORITY:
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Section 6503-a of the Education Law authorizes the State Education Department to issue a waiver of certain corporate practice restrictions for specified professions.
Section 6504 of the Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practice of the professions.
Subparagraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations in administering the admission to and the practice of the professions.
Section 6509(9) of the Education Law authorizes the Board of Regents to define unprofessional conduct in the professions.
Section 8800 of the Education Law, as added by Chapter 554 of the Laws of 2013, establishes the new profession of applied behavior analysis.
Section 8801 of the Education Law, as added by Chapter 554 of the Laws of 2013, defines the profession of applied behavior analysis.
Section 8802 of the Education Law, as added by Chapter 554 of the Laws of 2013, defines the practice of applied behavior analysis by licensed behavior analysts and certified behavior analyst assistants.
Section 8803 of the Education Law, as added by Chapter 554 of the Laws of 2013, establishes protection for the titles “licensed behavior analyst” and “certified behavior analyst assistant.”
Section 8804 of the Education Law, as added by Chapter 554 of the Laws of 2013, establishes the education, experience, examination, age, and moral character requirements for applicants seeking licensure as a licensed behavior analyst assistant and certification as a certified behavior analyst assistant.
Section 8805 of the Education Law, as added by Chapter 554 of the Laws of 2013, establishes a time limited licensure and certification pathway for individuals who meet the requirements for licensure or certification as a licensed behavior analyst or certified behavior analyst, except for the examination, experience and education requirements, if they are certified or registered by a national certifying body having certification or registration standards that are acceptable to the Commissioner of Education, and submit an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute.
Section 8806 of the Education Law, as added by Chapter 554 of the Laws of 2013, establish the requirements for limited permits for applicants for licensure as licensed behavior analysts and certification as certified behavior analyst assistants.
Section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014, establishes exemptions from the applied behavior analysis licensure and certification requirements.
Section 8808 of the Education Law, as added by Chapter 554 of the Laws of 2013, authorizes the Board of Regents, upon the recommendation of the Commissioner of Education, to appoint a State Board for Applied Behavior Analysis to assist on matters of licensing and professional conduct.
2. LEGISLATIVE OBJECTIVES:
The proposed rule implements Chapter 554 of the Laws of 2013, which added Article 167 to the Education Law, by establishing the requirements for licensure as a licensed behavior analyst and certification as a certified behavior analyst assistant which include, but are not limited to, professional education, experience, examination and 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 amended by Chapter 8 of the Laws of 2014. Chapter 8 of the Laws of 2014 amended Chapter 554 to make changes necessary to the implementation of Chapter 554. The proposed rule also implements the statute by subjecting licensed behavior analysts and certified behavior analyst assistants to the general unprofessional conduct provisions for the health professions. In addition, the proposed rule implements the statute by establishing the program registration requirements for licensed behavior analyst and certified behavior analyst assistant education programs, which include registration and curriculum requirements for programs offered in New York State that lead to licensure or certification. The proposed rule further implements the statute by including applied behavior analysis among the professions for which a waiver of certain corporate practice restrictions is available.
Finally, Chapter 554 of the Laws of 2013 also provides a grandparenting licensure/certification pathway, which the State Education Department is referring to as Pathway One, for individuals who are certified or registered by a national certifying body and submit an attestation of moral character and an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute. Although Pathway One will expire on January 9, 2016, the licenses and certifications issued under it will not.
3. NEEDS AND BENEFITS:
The purpose of the proposed rule is to increase access to needed applied behavior analysis services to provide behavioral health treatment for persons with autism and autism spectrum disorders and related disorders, while protecting the public, by establishing licensure requirements for behavior analysts and certification requirements for behavior analyst assistants. The proposed rule is necessary to conform the Rules of the Board of Regents and the Regulations of the Commissioner of Education to Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014.
As required by statute, the proposed rule is also needed to establish the program registration requirements for behavior analyst and behavior analyst assistant education programs offered in New York State that lead to licensure or certification. Additionally, the proposed rule is needed to subject licensed behavior analysts and certified behavior analyst assistants to the general unprofessional conduct provisions for the health professions. The proposed rule is further needed to include applied behavior analysis among the professions for which a waiver of certain corporate practice restrictions is available and reiterate the exemptions to the practice of applied behavior analysis set forth in statute.
4. COSTS:
(a) Costs to State government: The proposed rule implements statutory requirements and establishes standards as directed by statute, and will not impose any additional costs on State government beyond those imposed by the statutory requirements.
(b) Costs to local government: There are no additional costs to local governments.
(c) Cost to private regulated parties: The proposed rule does not impose any additional costs to regulated parties beyond those imposed by statute. As required by Education Law section 8804(1)(g), applicants for certification as a certified behavior analyst assistant must pay a fee to the Department of $150 for their initial license and a triennial registration fee of $75. Additionally, as required by Education Law section 8804(2)(g), applicants for licensure as a licensed behavior analyst must pay a fee to the Department of $200 for their initial license and a triennial registration fee of $100. Higher education institutions that seek to register behavior analyst and/or behavior analyst assistant education programs with the Department, including those in rural areas, may incur costs related to the development and maintenance of such education programs and their registration. It is anticipated that such costs will be minimal because several higher education institutions are already offering courses that would or could, with adjustments, meet the registration requirements for a behavior analyst and/or behavior analyst assistant education programs, and that higher education institutions should be able to use their existing staffs and resources to revise their courses and curricula to meet the licensed behavior analyst and/or certified behavior analyst assistant requirements.
(d) Cost to the regulatory agency: The proposed rule does not impose any additional costs on the Department beyond those imposed by statute. Any associated costs to the Department will be offset by the fees charged to applicants and no significant cost will result to the Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule implements the requirements of Article 167 of the Education Law, as added by Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014, by establishing the standards for individuals to be licensed to practice as licensed behavior analysts and certified to practice as certified behavior analyst assistants and standards for behavior analyst and behavior analyst assistant education programs provided by institutions of higher education to ensure that only those properly educated and prepared to be licensed behavior analysts and certified behavior analyst assistants hold themselves out as such. It does not impose any program, service, duty, or responsibility upon local governments.
6. PAPERWORK:
The proposed rule imposes no new reporting or other paperwork requirements beyond those imposed by the statute.
7. DUPLICATION:
The proposed rule is necessary to implement Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. There are no other state or federal requirements on the subject matter of this proposed rule. Therefore, the proposed rule does not duplicate other existing state or federal requirements.
8. ALTERNATIVES:
The proposed rule is necessary to conform the Rules of the Board of Regents and the Regulations of the Commissioner of Education to Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. There are no significant alternatives to the proposed rule and none were considered.
9. FEDERAL STANDARDS:
Since, there are no applicable federal standards for behavior analysts and behavior analyst assistants and behavior analyst and behavior analyst assistant education programs, the rule does not exceed any minimum federal standards for the same or similar subject areas.
10. COMPLIANCE SCHEDULE:
The proposed rule is necessary to conform the Rules of the Board of Regents and the Regulations of the Commissioner of Education to Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. With the exception of the Pathway One licensure provisions described above, which became effective January 10, 2014, all the Education Law provisions of Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014 became effective July 1, 2014. The proposed rule was adopted by the Board of Regents on an emergency basis effective December 16, 2014 and is expected to be presented for permanent adoption at the March 16-17, 2015 Regents meeting with an effective date of April 1, 2015. It is anticipated that applicants for licensure or certification will be able to comply with the proposed rule by the effective date.
Regulatory Flexibility Analysis
1. EFFECT OF RULE:
The purpose of the proposed rule is to implement Chapter 554 of the Laws of 2013, which establishes and defines the practice of the profession of applied behavior analysis (ABA) and Chapter 8 of the Laws of 2014, which amended Chapter 554 to make changes necessary to the implementation of Chapter 554.
Chapter 554 also provides a grandparenting licensure/certification pathway, which the State Education Department is referring to as Pathway One, for individuals who are certified or registered by a national certifying body and submit an attestation of moral character and an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute. Although Pathway One will expire on January 9, 2016, the licenses and certifications issued under it will not.
As of November 2014, the Behavior Analyst Certification Board listed 1,014 residents of New York State who possess a certification that may enable them to be licensed by New York State under the grandparenting provisions of the law that will remain in effect until January 9, 2016. The number of applicants who have been licensed in New York State under these grandparenting provisions as of December 4, 2014 is 551, including 104 persons who are also licensed in other professions in New York State, and 64 who reside outside the State. The number of persons who are certified as teachers in New York State who also hold this national certification is 173. As of December 1, 2014, the number of persons who have applied for licensure to whom the current regulations would apply is approximately 20. These 20 individuals are not eligible for licensure under Pathway One.
Additionally, the number of individuals who are providing applied behavior analysis services and activities and employed by a small business or local government in New York State is currently not available and is unknown. Some of these unknown individuals may further fall under one of the exemptions to the licensure and certification requirements set forth in section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014. However, the number of these exempted individuals is not available and is unknown.
2. COMPLIANCE REQUIREMENTS:
The proposed rule implements Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which establish the new profession of applied behavior analysis and the requirements for licensure as a licensed behavior analyst and certification as a certified behavior analyst assistant. These requirements include, but are not limited to, professional education, experience, examination and limited permit requirements. The proposed rule also 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 amended by Chapter 8 of the Laws of 2014. Individuals seeking licensure to practice in New York State will be required to submit an application with the State Education Department and meet all the requirements for licensure, which include, but are not limited to, the professional study, experience, and examination requirements specified in the proposed rule. Individuals seeking to work in New York State after completing all requirements for licensure except the examination and/or experience requirements will be required to submit a limited permit application to the State Education Department as specified in the proposed rule.
3. PROFESSIONAL SERVICES:
Unless one of the exemptions to the licensure and certification requirements apply to their employees, who provide applied behavior analysis services in the course of their employment, the proposed rule will require small businesses and local governments to use only licensed behavior analysts and/or certified behavior analyst assistants to provide applied behavior services. It is not anticipated that small businesses or local governments will need professional services to comply with the proposed rule.
4. COMPLIANCE COSTS:
The proposed rule does not impose any direct costs on small business or local governments. As stated above, unless one of the exemptions to the licensure and certification requirements set forth in section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014, applies to their employees, the proposed rule will require small businesses and local governments to use only licensed behavior analysts and/or certified behavior analyst assistants to provide applied behavior services. Sections 8804(1)(g) and (2)(g) of the Education Law, as added by Chapter 554 of the Laws of 2013, require a fee of $150 for an initial license and a triennial registration fee of $75 for certified behavior analyst assistants and a fee of $200 for an initial license and a triennial registration fee of $100 for each triennial registration period for licensed behavior analysts. Section 8806(3) of the Education Law, as added by Chapter 554 of the Laws of 2013, imposes a limited permit fee of $70 to allow an individual who meets all the requirements for licensure, except the examination and/or experience requirements, to practice under supervision for one year.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule will not impose any technological requirements on regulated parties, including those that are classified as small businesses, and the proposed rule is economically feasible. See above "Compliance Costs" for the economic impact of the regulation.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement the provisions of Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which established the new profession of applied behavior analysis and the requirements for licensure as a licensed behavior analyst and certification as a certified behavior analyst assistant. These requirements include, but are not limited to, professional education, experience, examination and limited permit requirements. Chapter 554 and Chapter 8 authorize the State Education Department to define, in regulation, the standards to be met for licensure as a licensed behavior analyst and certification as a certified behavior analyst assistant. Individuals seeking licensure to practice in New York State will be required to submit an application with the State Education Department and meet all the requirements for licensure, which include, but are not limited to, the professional study, experience, and examination requirements specified in the proposed rule. Individuals seeking to work in New York State after completing all requirements for licensure except the examination and/or experience requirements will be required to submit a limited permit application to the State Education Department as specified in the proposed rule. The proposed fee structure was determined by the legislature to be the minimum needed to support additional costs. It is on a par with fee structures in other professions. It was determined that the licensure of behavior analysts and certification of behavior analyst assistants who meet minimum requirements established in the proposed rule best ensures the protection of the health and safety of the public.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
Statewide organizations representing all parties having an interest in the practice of applied behavior analysis, including the State Board for Applied Behavior Analysis, behavior analyst and behavior analyst assistant professional associations, psychological professional associations (because applied behavior analysis is encompassed in the practice of psychology), and applied behavior analysis educators, which include members who have experience in a small business environment, were consulted and provided input into the development of the proposed rule and their comments were considered in its development.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule will apply to all individuals seeking licensure as licensed behavior analysts or certification as a certified behavior analyst assistant and to higher education institutions that seek to register behavior analyst and/or behavior analyst assistant education programs with the State Education Department, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
As required by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which both became effective July 1, 2014 (with the exception of the grandfathering provisions set forth below), the proposed rule establishes the new profession of applied behavior analysis and the requirements for licensure as a licensed behavior analyst and certification as a certified behavior analyst assistant which include, but are not limited to, professional education, experience, examination and 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 amended by Chapter 8 of the Laws of 2014. Chapter 8 amended Chapter 554 to make changes necessary to the implementation of Chapter 554.
Chapter 554 of the Laws of 2013 also provides a grandparenting licensure/certification pathway, which the State Education Department is referring to as Pathway One, for individuals who are certified or registered by a national certifying body and submit an attestation of moral character and an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute. Although Pathway One will expire on January 9, 2016, the licenses and certifications issued under it will not.
The proposed amendment to section 29.2 of the Rules of the Board of Regents and section 59.14 of the Regulations of the Commissioner of Education and addition of sections 52.44, 52.45 and Subparts 79-17 and 79-18 of the Regulations of the Commissioner of Education implement the licensure requirements for licensed behavior analysts and the certification requirements for certified behavior analyst assistants of Chapter 554.
The proposed amendment to subdivisions (a) and (b) of section 29.2 of the Rules of the Board of Regents adds the profession of applied behavior analysis to the list of health care professions that are subject to its unprofessional conduct provisions.
The proposed amendment to section 52.44 of the Regulations of the Commissioner of Education establishes the program registration 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. The proposed amendment 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 behavior 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.
The proposed amendment to section 52.45 of the Regulations of the Commissioner of Education establishes 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. The proposed amendment 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.
The proposed amendment to paragraph (1) of subdivision (a) of section 59.14 of the Regulations of the Commissioner of Education implements 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.
Additionally, the proposed addition of Subpart 79-17 of the Regulations of the Commissioner of Education establishes the requirements for licensure as a licensed behavior analyst, which include, but are not limited to, professional education, experience, examination and limited permit requirements and reiterates the exemptions to the practice of applied behavior analysis set forth in Education Law 8807, as added by Chapter 554 and Chapter 8.
The proposed addition of Subpart 79-18 of the Regulations of the Commissioner of Education establishes the requirements for certification as a certified behavior analyst assistant, which include, but are not limited to, professional education, experience, examination and limited permit requirements and reiterates the exemptions to the practice of applied behavior analysis set forth in Education Law section 8807, as added by Chapter 554 and Chapter 8.
The proposed rule will not require any higher education institution to offer an education program that leads to licensure for behavior analysts and/or certification for behavior analyst assistants. The proposed rule will not impose any reporting, recordkeeping or other compliance requirements on higher education institutions in rural areas, unless they seek to register a behavior analyst and/or a behavior analyst assistant education program(s) with the Department. Such higher education institutions will have reporting and record keeping obligations related to the development and maintenance of their behavior analyst and/or behavior analyst assistant education programs, as well as the registration of such programs with the Department.
Individuals seeking licensure to practice in New York State will be required to submit an application to the State Education Department and meet all the requirements for licensure, which include, but are not limited to, the professional study, experience and examination requirements specified in the proposed rule. Individuals seeking to work in New York State after completing all requirements for licensure except the examination and/or experience requirements will be required to submit a limited permit application to the State Education Department.
The proposed rule will not impose any additional professional service requirements on entities in rural areas.
3. COSTS:
With respect to individuals seeking licensure as a licensed behavior analyst or certification as a certified behavior analyst assistant from the State Education Department, including those in rural areas, the proposed rule does not impose any additional costs beyond those required by statute. As required by Education Law section 8804(1)(g), applicants for certification as a certified behavior analyst assistant must pay a fee to the Department of $150 for their initial license and a triennial registration fee of $75. Additionally, as required by Education Law section 8804(2)(g), applicants for licensure as a licensed behavior analyst must pay a fee to the State Education Department of $200 for their initial license and a triennial registration fee of $100.
Moreover, after the expiration Pathway One on January 9, 2016, applicants for licensure as a licensed behavior analyst will incur the cost of a master’s degree-level or higher degree-level education and applicants for certification as a certified behavior analyst assistant will incur the cost of a bachelor’s degree-level or higher degree-level education.
The proposed rule will not require higher education institutions to offer education programs that prepare individuals for licensure as a licensed behavior analyst or certification as a certified behavior analyst assistant. However, higher education institutions that seek to register behavior analyst and/or behavior analyst assistant education programs with the Department, including those in rural areas, may incur costs related to the development and maintenance of such education programs and their registration. It is anticipated that such costs will be minimal because several higher education institutions are already offering courses that would or could, with adjustments, meet the registration requirements for a behavior analyst and/or behavior analyst assistant education programs, and that higher education institutions should be able to use their existing staffs and resources to revise their courses and curricula to meet the licensed behavior analyst and/or certified behavior analyst assistant requirements.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement the provisions of Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which establish the new profession of applied behavior analysis and the licensure requirements for licensed behavior analysts and certification requirements for certified behavior analyst assistants, which include education, experience, examination, age, moral character and fee requirements. The statutory requirements do not make exceptions for individuals who live or work in rural areas. Nor do they make exceptions for higher education institutions located in rural areas. Thus, the State Education Department has determined that the proposed rule’s requirements should apply to all individuals seeking licensure as a licensed behavior analyst or certification as a certified behavior analyst assistant and all higher education institutions seeking to register behavior analyst and/or behavior analyst assistant education programs with the Department, regardless of the geographic location to help insure continuing competency across the State. The Department has also determined that uniform standards for the Department’s review of prospective registered behavior analyst and/or behavior analyst assistant education programs are necessary to ensure quality behavior analyst and behavior analyst assistant education in all parts of the State. Because of the nature of the proposed rule, alternative approaches for rural areas were not considered.
5. RURAL AREAS OF PARTICIPATION:
Comments on the proposed rule were solicited from statewide organizations representing all parties having an interest in the practice of applied behavior analysis. These organizations included the State Board for Applied Behavior Analysis and behavior analyst and behavioral analyst assistant professional associations, psychological professional associations because applied behavior analysis is encompassed in the practice of psychology and applied behavior analysis educators. These groups have members who live or work or provide applied behavior analysis education in rural areas.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement the statutory requirements of Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, and, therefore, the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 16 of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
The proposed rule is required to implement Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which establish and define the practice of applied behavior analysis. The proposed amendment to subdivisions (a) and (b) of section 29.2 of the Rules of the Board of Regents adds the profession of applied behavior analysis to the list of health care professions that are subject to its unprofessional conduct provisions. The proposed amendments to sections 52.44 and 52.45 of the Regulations of the Commissioner of Education establish the program registration requirements for behavior analyst and behavior analyst assistant 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 or certification as a certified behavior analyst assistant. The proposed amendment to paragraph (1) of subdivision (a) of section 59.14 of the Regulations of the Commissioner of Education 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. The proposed addition of Subparts 79-17 and 79-18 establish the education, experience, examination, age and moral character requirements for applicants seeking licensure as a licensed behavior analyst or certification as a certified behavior analyst from the State Education Department and reiterate 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 amended by Chapter 8 of the Laws of 2014. It is not anticipated that the proposed rule will increase or decrease the number of jobs to be filled because, among other things, Chapter 554 of the Laws of 2013 provides for a grandparenting licensure/certification pathway, which the State Education Department is referring to as Pathway One, for individuals who are certified or registered by a national certifying body and submit an attestation of moral character and an application to the State Education Department within two years of the January 10, 2014 effective date of this provision of the statute. Although Pathway One will expire on January 9, 2016, the licenses and certifications issued under it will not. Additionally, the proposed additions of Subparts 79-17 and 79-18 of the Regulations of the Commissioner of Education contain special provisions that exempt certain specified individuals from the licensure and certification requirements. Because it is apparent from the nature of the proposed rule that it will not adversely impact the number of jobs or employment opportunities, a job impact statement is not required and one has not been prepared.
