Behavior Analyst Sunrise Review

239 Pages·2014·7.29 MB·English

Information Summary and Recommendations
Behavior Analyst
Sunrise Review
December 2014

Publication Number 631-051
For more information or additional
copies of this report contact:

Health Systems Quality Assurance
Office of the Assistant Secretary
PO Box 47850
Olympia, WA 98504-7850
360-236-4612
John Wiesman, DrPH, MPH
Secretary of Health
This page intentionally left blank.
Contents

Page
1 The Sunrise Review Process
3 Executive Summary
6 Summary of Information
15 Review of Proposal Using Sunrise Criteria
17 Detailed Recommendations
21 Summary of Rebuttals to Draft Recommendations

Appendix A: Request from Legislature and Draft Bill
Appendix B: Applicant Report and Follow Up
Appendix C: Public Hearing Summary
Appendix D: Written Comments
Appendix E: Other States
Appendix F: Rebuttals to Draft Recommendations
This page intentionally left blank.
THE SUNRISE REVIEW PROCESS
A sunrise review is an evaluation of a proposal to change the laws regulating health professions in
Washington. The Washington State Legislature’s intent, as stated in chapter 18.120 RCW, is to
permit all qualified people to provide health services unless there is an overwhelming need for the
state to protect the interests of the public by restricting entry into the profession. Changes to the
scope of practice should benefit the public.

The Sunrise Act (RCW 18.120.010) says a health care profession should be regulated or scope of
practice expanded only when:
 Unregulated practice can clearly harm or endanger the health, safety or welfare of the public,
and the potential for the harm is easily recognizable and not remote or dependent upon
tenuous argument;
 The public needs and can reasonably be expected to benefit from an assurance of initial and
continuing professional ability; and
 The public cannot be effectively protected by other means in a more cost-beneficial manner.

If the legislature identifies a need and finds it necessary to regulate a health profession not
previously regulated, it should select the least restrictive alternative method of regulation, consistent
with the public interest. Five types of regulation may be considered as set forth in RCW
18.120.010(3):
1. Stricter civil actions and criminal prosecutions. To be used when existing common law,
statutory civil actions, and criminal prohibitions are not sufficient to eradicate existing harm.
2. Inspection requirements. A process enabling an appropriate state agency to enforce violations
by injunctive relief in court, including, but not limited to, regulation of the business activity
providing the service rather than the employees of the business, when a service being
performed for people involves a hazard to the public health, safety or welfare.
3. Registration. A process by which the state maintains an official roster of names and
addresses of the practitioners in a given profession. The roster contains the location, nature
and operation of the health care activity practices and, if required, a description of the service
provided. A registered person is subject to the Uniform Disciplinary Act (chapter 18.130
RCW).
4. Certification. A voluntary process by which the state grants recognition to a person who has
met certain qualifications. Non-certified people may perform the same tasks, but may not use
“certified” in the title.1 A certified person is subject to the Uniform Disciplinary Act.
5. Licensure. A method of regulation by which the state grants permission to engage in a health
care profession only to people who meet predetermined qualifications. Licensure protects the
scope of practice and the title. A licensed person is subject to the Uniform Disciplinary Act.

1 Although the law defines certification as voluntary, many health care professions have a mandatory certification
requirement such as nursing assistants-certified, home care aides, and pharmacy technicians.
Behavior Analyst Sunrise 1
This page intentionally left blank.
Behavior Analyst Sunrise 2
EXECUTIVE SUMMARY
Background and Proposal
Central Washington University describes applied behavior analysis (ABA)2 as “a systematic
approach to the assessment and evaluation of behavior, and the application of interventions that
alter behavior.”3 Although ABA is not a therapy or treatment for any disease or condition, it has
been proven to be effective in promoting the health and well-being of children with autism
spectrum disorders (ASD)4 and other conditions. The goal of ABA is to decrease unwanted or
harmful behaviors and increase positive behaviors. ABA is practiced in a variety of settings
including hospitals, clinics, private homes, schools, nursing homes, group homes, and
businesses. ABA providers often work as part of a team of health care providers, consulting with
others, such as physicians, mental health providers or speech-language pathologists.

A patchwork of ABA provider requirements currently exists solely for insurance reimbursement
for ASD and other conditions. Because no specific ABA credential exists in Washington, some
providers have obtained counseling or other health care credentials to meet requirements of
insurers who cover ABA services.5 Medicaid reimbursement requires a state license for
medically necessary treatment of ASD and other developmental disorders. The Health Care
Authority (HCA) and Department of Social and Health Services (DSHS) regulations for ABA
services include credentialing and referral requirements.6

This system provides some level of public protection for individuals using ABA services covered
by insurance because the providers must meet minimum credentialing qualifications and are
subject to background checks and regulatory oversight. Private pay clients of ABA providers,
however, do not have the same protections. In addition, there are waiting lists to access ABA
services and the current system limits some qualified providers from practice. These are
individuals with master’s degrees in education and specialized ABA education and training,
many with national certification to provide ABA, who do not qualify for a mental health
counselor or other counseling credential.7

In May of 2014, the Chair of the House Health Care and Wellness Committee asked the
Department of Health (department) to conduct a sunrise review of a proposal to license behavior
analysts as a new and distinct profession. The legislative request included draft bill H-4577.1,
which would require licensure for some behavior analysis providers.8 The Washington Association
for Behavior Analysis (applicant) contends that ABA is not a form of counseling and that ABA
providers should not be regulated as mental health professionals.9

2 The applicant uses “behavior analysis” and “applied behavior analysis” interchangeably.
3 Central Washington University, School of Psychology, http://www.cwu.edu/psychology/about-applied-behavior-analysis.
4 Mental Health: A Report of the Surgeon General (1999), page 164, www.surgeongeneral.gov.  
5 The department’s position has been that a counseling credential is required if the services provided meet the broad
definition of counseling in RCW 18.19.020. Medicaid and others require a state license for reimbursement of ABA
services.
6 The department met with HCA and DSHS prior to releasing this report to ensure they did not have concerns that
our recommendations would negatively impact their current structure.
7 Many ABA’s master’s or higher level degrees are in the field of education and their coursework does not align with what
is required for a counseling degree.
8 The bill refers to “behavior analysis” rather than the more commonly used term “applied behavior analysis.”
9 Applicant report, page 43.
Behavior Analyst Sunrise 3
H-4577.1 would require certain professionals engaging in the practice of behavior analysis, or
using certain titles, to be licensed as a behavior analyst or assistant behavior analyst. It would not
require any form of credential for behavior technicians, the individuals who implement treatment
plans created by a behavior analyst or assistant behavior analyst by providing the hands-on
services to the client. Licensed ABA providers would have to meet education and supervised
clinical experience requirements and pass an examination. The bill would form a new board to
regulate ABA practice. The bill would exempt other licensed providers acting within their scopes
of practice, ABA services provided in schools, and ABA services provided to organizations
when not provided for an individual. The bill would also allow family members to implement
behavior plans without licensure.

The applicant states that regulation is necessary to protect the public from ABA providers who
lack adequate knowledge and skill in the practice of behavior analysis. This may include
untrained and unlicensed individuals offering services, as well as otherwise credentialed
providers offering ABA services without specific ABA education and training. The applicant
report cites several studies demonstrating the harm that can come to children or adults with ASD
or other serious disorders from untrained providers. These include making dangerous behaviors
worse or losing valuable time on ineffective therapies, which the applicant states are critical
factors for children with ASD.10

Recommendations
The department recommends licensure for behavior analysts and assistant behavior analysts
because the applicant’s proposal meets the sunrise review criteria for a new profession.

However the legislature should not enact the bill in its current form for the following reasons:
 The proposed definition of the “practice of behavior analysis” is confusing and
encompasses myriad acts of daily human interaction;
 Without clarification of the proposed definition, there will be undue confusion for ABA
providers, licensees in other professions, and the disciplinary authorities charged with
enforcing scopes of practice and unlicensed practice;
 The bill potentially limits services by other licensed health care professionals who have
ABA within their existing scopes of practice;
 The bill does not require regulation of the ABA technicians who provide hands-on
services to the client, thus putting them outside of the reach of the Uniform Disciplinary
Act (UDA), chapter 18.130 RCW, including mandatory background checks; and
 The bill creates a new board to regulate a very small profession when regulation under
the secretary of health would be more efficient and no compelling need for a board was
presented.

To alleviate the confusion regarding the definition of “the practice of behavior analysis” in the
proposed bill, the department recommends:

10 Applicant report, pages 40-41. 
Behavior Analyst Sunrise 4
 Clarification that the use of behavior techniques alone, such as positive reinforcement
and antecedent stimuli, does not constitute the practice of ABA; and
 Use of the term “applied behavior analysis (ABA)” rather than “behavior analysis”
because it is more commonly understood by other health care providers and the public,
and is used in existing Medicaid rules regulating ABA services.

In the absence of an amended definition of the scope of practice (see proposed definition on page
17), the department alternatively recommends title protection only for this profession. This
would mean that while anyone could conduct these broad activities, a person could not use the
title of “licensed behavior analyst,” “licensed assistant behavior analyst,” or “certified behavior
technician” unless he or she first received a credential from the department. This would allow the
public to evaluate a provider’s level of education and training without unduly burdening other
credentialed health care professionals and unlicensed persons.

Behavior Analyst Sunrise 5
SUMMARY OF INFORMATION
Proposal and Bill Draft
In May of 2014, Representative Eileen Cody, Chair of the House Health Care and Wellness
Committee, asked the department to conduct a sunrise review of a proposal to license behavior
analysts as a new and distinct profession. The request included draft bill H-4577.1, which would
require licensure for behavior analysts and assistant behavior analysts. The applicant contends that
ABA is not a form of therapy but a scientific discipline separate from mental health counseling,
and ABA providers should not be regulated as mental health providers.11

The draft bill would require certain persons engaging in the practice of ABA,12 or using certain
titles, to be licensed as a behavior analyst or assistant behavior analyst. ABA providers would be
required to meet minimum education standards, complete supervised clinical experience, and
pass an examination in order to be licensed. The bill would create a new board to regulate the
practice of behavior analysis. Behavior technicians are defined in the draft bill as
paraprofessionals who implement treatment plans under supervision of behavior analysts or
assistant behavior analysts, but would not be credentialed or regulated. The bill would exempt
other licensed providers providing ABA services within their own scope of practice, services
provided within a school setting, and ABA services provided to organizations for the good of the
organization but not an individual. It would also allow family members to implement behavior
plans without licensure.

The applicant states regulation is necessary to protect the public from ABA providers who lack
adequate knowledge and skill in the practice of behavior analysis. This may include untrained
and unlicensed individuals offering services, as well as otherwise credentialed providers offering
ABA services without specific ABA education and training. The applicant report cites studies
demonstrating the harm that can come to children or adults with ASD or other serious disorders
from untrained practitioners. These include making dangerous behaviors worse, increasing
occurrence of such behaviors, or losing valuable time on ineffective therapies, which the
applicant states are critical factors for children with ASD.13

Background
Central Washington University describes ABA as “a systematic approach to the assessment and
evaluation of behavior, and the application of interventions that alter behavior.”14 It is a defined
discipline that uses a systematic approach to changing behavior. Although ABA is not a therapy
or treatment for any disease or condition, the U.S. Surgeon General has said ABA has been
proven effective in promoting the health and well-being of children with ASD15 and other
conditions by decreasing unwanted or harmful behaviors and increasing positive behaviors.

11 Applicant report, page 43.
12 The applicant uses behavior analysis and applied behavior analysis interchangeably in their report. This report will also
use those terms interchangeably.
13 Applicant report, page 3.
14 Central Washington University, School of Psychology, http://www.cwu.edu/psychology/about-applied-behavior-
analysis.
15 Mental Health: A Report of the Surgeon General (1999), page 164, www.surgeongeneral.gov.  
Behavior Analyst Sunrise 6