SB2496

SECTION 1. The legislature finds that the department of health, developmental disabilities division operates the medicaid intellectual and developmental disabilities home and community based services waiver, also known as the HCBS I/DD waiver, on behalf of the Department of Health and Human Services, MedQuest division. The HCBS I/DD waiver is provided under section 1915(c) of the Social Security Act. The HCBS I/DD waiver is reviewed and approved by the Centers for Medicare and Medicaid Services and has many requirements to ensure the appropriate and efficient provision of services and supports to people with intellectual and developmental disabilities.

The legislature further finds that, for children who qualify for a HCBS I/DD waiver who have an autism spectrum disorder, the Centers for Medicare and Medicaid Services has clarified that, per section 1905(a) of the Social Security Act, services "recommended by a physician or other licensed practitioner of the healing arts" for the treatment of autism spectrum disorders must be provided through the child's medicaid health plan through the early and periodic screening, diagnostic, and treatment benefit, and cannot be provided as a HCBS I/DD waiver service. This leaves a gap in coverage for children with autism spectrum disorders who would be best served under the HCBS I/DD waiver; this gap could be filled by professionals who are exempt from behavior analyst licensure requirements, who would fall outside the scope of the section 1905(a) requirement, which would let home-based applied behavior analysis fall within the broad scope of the HCBS I/DD waiver.

The legislature further finds that the Centers for Medicare and Medicaid Services requires the states to provide participant safeguards that ensure the health, safety and rights of HCBS I/DD waiver participants. The developmental disabilities division has policies and procedures to ensure positive behavior supports are used to proactively minimize challenging behaviors, and to limit the use of restrictive procedures. The developmental disabilities division conducts oversight and continuous quality assurance to ensure safe and appropriate practices including a behavioral review committee to review quality of care for individuals who need supports to learn new behaviors.

The legislature also finds that there is confusion in the community as to the scope of the behavior analyst profession. Different professionals use different titles and different terminology to refer to themselves and what they do. The legislature further finds that this confusion may be increased based on the proposed expansion of waivers for licensing.

Therefore, the purpose of this Act is to:

(1) Allow children with autism spectrum disorders to receive appropriate applied behavior analysis treatment, while simultaneously providing safeguards for consumer protection;

(2) Exempt from the licensure requirement for behavior analysis certain individuals who implement applied behavior analysis services or plans under the oversight of a behavioral review committee or psychologist; and

(3) Update and standardize the terminology used to refer to behavior analysts.

SECTION 2. Section 465D-7, Hawaii Revised Statutes, is amended to read as follows:

"§465D-7 Exemptions. (a) This chapter is not intended to restrict the practice of other licensed or credentialed practitioners practicing within their own recognized scopes of practice and shall not apply to:

(1) An individual working within the scope of practice or duties of another licensed profession that overlaps with the practice of applied behavior analysis; provided that the person does not purport to be a licensed behavior analyst;

(2) An individual who implements or designs applied behavior analysis services and possesses board certification as an assistant behavior analyst by the Behavior Analyst Certification Board and who practices in accordance with the most recent supervisory and ethical requirements adopted by the Behavior Analyst Certification Board under the direction of a behavior analyst licensed in this State;

(3) An individual who designs or implements applied behavior analysis services to participants in the medicaid home and community-based services waiver program pursuant to section 1915(c) of the Social Security Act; provided that a behavioral review committee provides quality assurance and oversight;

[~~(3)~~] (4) An individual who directly implements applied behavior analysis services and:

(A) Is credentialed as a registered behavior technician by the Behavior Analyst Certification Board, and is under the direction of a behavior analyst licensed in this State; or

(B) Is a direct support worker who provides autism treatment services pursuant to an individualized education plan on or before January 1, 2019; [~~[or]~~

~~[(C)]~~ ~~Is a direct support worker who provides medicaid home and community-based services pursuant to section 1915(c) of the Social Security Act on or before January 1, 2019;~~]

provided that for purposes of this paragraph, "direct support worker" means a teacher or paraprofessional who directly implements intervention or assessment plans under supervision and does not design intervention or assessment plans;

[~~(4)~~] (5) A family member [or], legal guardian, or caregiver implementing an applied behavior analysis plan and who acts under the direction of a licensed behavior analyst [~~licensed in this State;~~] or licensed psychologist as long as the person is not in any manner held out to the public as a "licensed behavior analyst" or "behavior analyst" and the behavior analysis services provided by the licensed psychologist are within the licensed psychologist's recognized scope of practice;

[~~(5)~~] (6) An individual who engages in the practice of applied behavior analysis with nonhuman or nonpatient clients or consumers including but not limited to applied animal behaviorists and practitioners of organizational behavior management;

[~~(6)~~] (7) A matriculated graduate student or postdoctoral fellow whose activities are part of a defined applied behavior analysis program of study, practicum, or intensive practicum; provided that the student's or fellow's activities or practice is directly supervised by a behavior analyst licensed in this State or an instructor in a Behavior Analyst Certification Board-approved course sequence; or

[~~(7)~~] (8) An individual pursuing experience in applied behavior analysis consistent with the Behavior Analyst Certification Board's experience requirements; provided that the experience is supervised by a behavior analyst licensed in this State.

(b) Nothing in this chapter shall be construed to prevent any licensed psychologist from engaging in the practice of applied behavior analysis in this State as long as the person is not in any manner held out to the public as a "licensed behavior analyst" or "behavior analyst" and the behavior analysis services provided by the licensed psychologist are within the licensed psychologist's recognized scope of practice."

SECTION 3. Sections 465D-2, 465D-4, 465D-5, and 465D-11, Hawaii Revised Statutes, are amended by substituting the phrase "practice of applied behavior analysis" wherever the phrase "practice of behavior analysis" appears, as the context requires.

SECTION 4. Section 465D-11, Hawaii Revised Statutes, is amended by substituting the phrase "applied behavior analysis" wherever the phrase "behavior analysis" appears, as the context requires.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2496
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII