Florida Senate - 2014                             CS for SB 1212
       By the Committee on Health Policy; and Senator Bean
       588-03591-14                                          20141212c1
    1                        A bill to be entitled                      
    2         An act relating to behavior analysts; creating ch.
    3         470, F.S.; entitling the chapter; creating s. 470.40,
    4         F.S.; providing a purpose; creating s. 470.41, F.S.;
    5         defining terms; creating s. 470.415, F.S.; creating
    6         the Board of Applied Behavior Analysis; creating s.
    7         470.42, F.S.; specifying the authority and duties of
    8         the board; creating s. 470.43, F.S.; providing
    9         requirements for licensure and renewal; creating s.
   10         470.44, F.S.; establishing maximum fees for
   11         applications, initial licenses, and license renewals;
   12         providing for the deposit of funds; creating s.
   13         470.45, F.S.; providing grounds for disciplinary
   14         action by the board; creating s. 470.46, F.S.;
   15         providing penalties for practicing applied behavior
   16         analysis without a license or wrongfully identifying
   17         oneself as a licensed behavior analyst; creating s.
   18         470.47, F.S.; providing exceptions to applicability of
   19         the chapter; amending s. 20.43, F.S.; making the
   20         Division of Medical Quality Assurance within the
   21         Department of Health responsible for the board;
   22         amending s. 456.001, F.S.; including licensed behavior
   23         analysts and licensed assistant behavior analysts in
   24         the definition of “health care practitioner”; amending
   25         s. 456.0135, F.S.; requiring an applicant for
   26         licensure under ch. 470, F.S., to submit to certain
   27         fingerprinting requirements; providing an effective
   28         date.
   30  Be It Enacted by the Legislature of the State of Florida:
   32         Section 1. Chapter 470, Florida Statutes, is created and
   33  entitled “Behavior Analysts.”
   34         Section 2. Section 470.40, Florida Statutes, is created to
   35  read:
   36         470.40 Purpose.—The practice of applied behavior analysis
   37  in this state affects the public health, safety, and welfare of
   38  its residents, and this act is intended to protect the public
   39  from any harmful conduct of unqualified, unprofessional, or
   40  unethical applied behavior analysts.
   41         Section 3. Section 470.41, Florida Statutes, is created to
   42  read:
   43         470.41 Definitions.—As used in this chapter, the term:
   44         (1) “Applied behavior analysis” means the design,
   45  implementation, and evaluation of instructional and
   46  environmental modifications to produce socially significant
   47  improvements in human behavior and includes functional
   48  assessment and analysis. The term does not include psychological
   49  testing, the diagnosis of a mental or physical disorder,
   50  neuropsychology, psychotherapy, cognitive therapy, sex therapy,
   51  psychoanalysis, hypnotherapy, or long-term counseling.
   52         (2) “Board” means the Board of Applied Behavior Analysis
   53  established in s. 470.415, except when the term is used in the
   54  context of board certification.
   55         (3) “Board-certified behavior analyst” means a practitioner
   56  who is certified as a Board Certified Behavior Analyst, or is
   57  recognized as a “Florida-certified behavior analyst,” by the
   58  national Behavior Analyst Certification Board (BACB), or its
   59  successor pursuant to s. 470.42.
   60         (4) “Board-certified assistant behavior analyst” means a
   61  practitioner who is certified by the national Behavior Analyst
   62  Certification Board, or its successor pursuant to s. 470.42, as
   63  a Board Certified Assistant Behavior Analyst.
   64         (5) “Department” means the Department of Health.
   65         (6) “Licensed behavior analyst” means an individual who is
   66  licensed by the board and meets the requirements of this
   67  chapter.
   68         (7) “Licensed assistant behavior analyst” means an
   69  individual who:
   70         (a) Is licensed by the board as an assistant behavior
   71  analyst and meets the requirements of this chapter; and
   72         (b) Works under the supervision of a licensed behavior
   73  analyst.
   74         Section 4. Section 470.415, Florida Statutes, is created to
   75  read:
   76         470.415 Board of Applied Behavior Analysis.—
   77         (1) The Board of Applied Behavior Analysis is created
   78  within the department. The board consists of seven members who
   79  must be appointed by the Governor and confirmed by the Senate.
   80         (2) The initial board members, who are not required to be
   81  licensed as a condition of appointment, shall be appointed as
   82  follows:
   83         (a) Three board-certified behavior analysts, which may
   84  include board-certified behavior analysts who are at the
   85  doctoral level, two of whom shall be selected from a list of six
   86  nominations submitted by the Florida Association for Behavior
   87  Analysis. One shall be appointed to a 1-year term, and two shall
   88  be appointed to 3-year terms;
   89         (b) One board-certified assistant behavior analyst, who
   90  shall be appointed to a 1-year term;
   91         (c) One health care practitioner licensed in this state,
   92  who shall be appointed to a 2-year term. The majority of the
   93  appointed health care practitioner’s practice must be related to
   94  the treatment of behavior disorders, including, but not limited
   95  to, autism spectrum disorders; and
   96         (d) Two laypersons, who may include a parent or guardian of
   97  an individual who is a recipient of applied behavior analysis
   98  services, one of whom shall serve a 1-year term, and one of whom
   99  shall serve a 2-year term.
  100         (3) As the terms of the initial members expire, the
  101  Governor shall appoint successors for 4-year terms. Each
  102  successor, except for the laypersons, must be licensed. A member
  103  may not serve more than two consecutive terms.
  104         Section 5. Section 470.42, Florida Statutes, is created to
  105  read:
  106         470.42 Authority of the board; board duties; authority of
  107  the department.—
  108         (1) The board may adopt rules pursuant to ss. 120.536(1)
  109  and 120.54 to implement the provisions of this chapter
  110  conferring duties upon it. Such rules must include, but are not
  111  limited to, rules relating to all of the following:
  112         (a) Standards of practice for licensed behavior analysts
  113  and licensed assistant behavior analysts.
  114         (b) Supervision of licensed assistant behavior analysts or
  115  students in training to be licensed behavior analysts, including
  116  the number of persons that a licensed behavior analyst or
  117  licensed assistant behavior analyst may supervise at one time.
  118         (2) If the Behavior Analyst Certification Board stops
  119  certifying practitioners of applied behavior analysis in this
  120  state, the board shall approve a successor certification board
  121  that is accredited by the National Commission for Certifying
  122  Agencies or the American National Standards Institute to certify
  123  applied behavior analysts.
  124         (3) The department may adopt rules pursuant to ss.
  125  120.536(1) and 120.54 to implement the provisions of this
  126  chapter conferring duties upon it. Such rules must include, but
  127  are not limited to, rules relating to all of the following:
  128         (a) Licensure and licensure renewal applications and
  129  processes, including licensure fees.
  130         (b) Educational qualifications for licensure.
  131         (c) Continuing education requirements for biennial renewal
  132  of licensure not to exceed 30 hours biennially as a condition
  133  for renewal of a license.
  134         Section 6. Section 470.43, Florida Statutes, is created to
  135  read:
  136         470.43 Licensure and renewal.—
  137         (1) A person applying for an initial or renewal license as
  138  a licensed behavior analyst or licensed assistant behavior
  139  analyst shall apply to the department on such form and in such
  140  manner as the department prescribes. The person shall furnish
  141  evidence to the department that he or she:
  142         (a) Is a board-certified behavior analyst;
  143         (b) Has paid the licensure fee or the biennial renewal fee;
  144  and
  145         (c) Has passed a criminal background check after submitting
  146  fingerprints and a fee pursuant to s. 456.0135.
  147         (2) A person applying for an initial or renewal license as
  148  an assistant behavior analyst shall apply to the department upon
  149  such form and in such manner as the department prescribes and
  150  shall furnish evidence to the department that such person:
  151         (a) Is a board-certified assistant behavior analyst;
  152         (b) Is supervised by a licensed behavior analyst in a
  153  manner consistent with BACB requirements and this chapter;
  154         (c) Has paid the licensure fee or the biennial renewal fee;
  155  and
  156         (d) Has passed a criminal background check after submitting
  157  fingerprints and a fee pursuant to s. 456.0135.
  158         (3) The board may issue a license to a person who holds an
  159  active license as a behavior analyst or assistant behavior
  160  analyst in another state if the person:
  161         (a) Submits proof of licensure and board certification;
  162         (b) Passes a criminal background check after submitting
  163  fingerprints and a fee pursuant to s. 456.0135; and
  164         (c) Pays the licensure fee.
  165         Section 7. Section 470.44, Florida Statutes, is created to
  166  read:
  167         470.44 Fees.—
  168         (1) The board shall establish by rule a fee not to exceed
  169  $100 for an application and a fee not to exceed $300 for an
  170  initial license or license renewal.
  171         (2) All moneys collected by the department under this
  172  chapter shall be deposited as provided under s. 456.025.
  173         Section 8. Section 470.45, Florida Statutes, is created to
  174  read:
  175         470.45 Disciplinary grounds and actions.—The board may
  176  enter an order imposing any of the penalties provided under s.
  177  456.072(2) against a licensee who violates any provision of s.
  178  456.072(1).
  179         Section 9. Section 470.46, Florida Statutes, is created to
  180  read:
  181         470.46 Violations and penalties.—
  182         (1) Unless licensed or authorized under this chapter, a
  183  person who engages in the practice of applied behavior analysis,
  184  assists in the practice of applied behavior analysis, renders
  185  services designated as applied behavior analysis, or represents
  186  himself or herself as a practitioner of applied behavior
  187  analysis in this state commits a felony of the third degree,
  188  punishable as provided under s. 775.082, s. 775.083, or s.
  189  775.084.
  190         (2) Unless licensed or authorized under this chapter, a
  191  person who uses the title “licensed behavior analyst,” “licensed
  192  assistant behavior analyst,” or any other title that is
  193  substantially similar commits a misdemeanor of the second
  194  degree, punishable as provided in s. 775.082 or s. 775.083.
  195         Section 10. Section 470.47, Florida Statutes, is created to
  196  read:
  197         470.47 Exceptions to applicability.—This chapter does not
  198  prohibit or restrict the practice of the following:
  199         (1) An individual licensed under chapter 490 to practice
  200  psychology.
  201         (2) A certified teacher authorized to practice in this
  202  state who is not a behavior analyst if he or she does not
  203  represent himself or herself as a behavior analyst. The services
  204  provided by a certified teacher must be within his or her
  205  authorized scope of practice and within the scope of his or her
  206  education, training, and experience and must be provided in the
  207  course of his or her employment in a program approved by the
  208  Department of Education. Teaching assistants, other than those
  209  engaged in pupil personnel services, and student support
  210  professionals are exempt from the requirements of this chapter
  211  if they provide applied behavior analysis services under the
  212  supervision of a certified teacher who meets the requirements of
  213  this paragraph.
  214         (3) A behavior analyst who practices with nonhuman clients,
  215  including, but not limited to, applied animal behaviorists and
  216  animal trainers.
  217         (4) An individual who teaches applied behavior analysis or
  218  who conducts behavior analytic research if such teaching or
  219  research does not involve the delivery of applied behavior
  220  analysis.
  221         (5) A matriculated college or university student or
  222  postdoctoral fellow whose activities are part of a defined
  223  behavior analysis program of study, practicum, or intensive
  224  practicum if his or her practice under this subsection is
  225  directly supervised by a licensed behavior analyst or an
  226  instructor of an accredited course sequence approved by the
  227  Behavior Analyst Certification Board (BACB). A student or intern
  228  may not represent himself or herself as a professional behavior
  229  analyst but may use a title indicating his or her trainee
  230  status, such as “behavior analyst student,” “behavior analyst
  231  intern,” or “behavior analyst trainee.”
  232         (6) An unlicensed individual pursuing supervised
  233  experiential training to meet eligibility requirements for BACB
  234  certification if such training is supervised by an individual
  235  who is licensed to practice applied behavior analysis and who
  236  meets BACB supervisor requirements and if the supervised
  237  experiential training is conducted in accordance with other BACB
  238  standards and requirements.
  239         (7) A board-certified behavior analyst, a doctoral level
  240  board-certified behavior analyst, or an individual licensed to
  241  practice applied behavior analysis in another state who resides
  242  in another state and provides applied behavior analysis in this
  243  state or to a resident of this state for less than 12 days per
  244  year.
  245         (8) A family member of a recipient of applied behavior
  246  analysis services who implements certain procedures with the
  247  recipient. Such a family member may not represent himself or
  248  herself as a professional behavior analyst.
  249         (9) A behavior analyst who provides general behavior
  250  analysis services to organizations if the services are for the
  251  benefit of the organizations and do not involve direct services
  252  to individuals.
  253         (10) A physician licensed pursuant to chapter 458 or
  254  chapter 459.
  255         (11) An occupational therapist licensed pursuant to chapter
  256  468 if he or she does not represent himself or herself as a
  257  behavior analyst.
  258         (12) An individual licensed pursuant to chapter 491 as a
  259  clinical social worker, marriage and family therapist, or mental
  260  health counselor.
  261         (13) A salaried employee of a private, nonprofit
  262  organization providing behavior analysis services to children,
  263  youth, and families if the services are provided for no charge,
  264  the employee is performing duties for which he or she was
  265  trained and hired, and the employee does not represent himself
  266  or herself as a professional behavior analyst.
  267         (14) A school psychologist certified in school psychology
  268  by the Department of Education who performs behavior analysis
  269  services as an employee of a public or private educational
  270  institution. Such exemption does not authorize unlicensed
  271  practice that is not performed directly as an employee of an
  272  educational institution.
  273         (15) A rabbi, priest, minister, or member of the clergy of
  274  a religious denomination or sect if engaging in activities that
  275  are within the scope of the performance of his or her regular or
  276  specialized ministerial duties and for which no separate fee is
  277  charged, or if such activities are performed, with or without a
  278  fee, for or under the auspices or sponsorship, individually or
  279  in conjunction with others, of an established and legally
  280  cognizable church, denomination, or sect; and if the person
  281  rendering service remains accountable to the established
  282  authority thereof.
  283         Section 11. Paragraph (g) of subsection (3) of section
  284  20.43, Florida Statutes, is amended to read:
  285         20.43 Department of Health.—There is created a Department
  286  of Health.
  287         (3) The following divisions of the Department of Health are
  288  established:
  289         (g) Division of Medical Quality Assurance, which is
  290  responsible for the following boards and professions established
  291  within the division:
  292         1. The Board of Acupuncture, created under chapter 457.
  293         2. The Board of Medicine, created under chapter 458.
  294         3. The Board of Osteopathic Medicine, created under chapter
  295  459.
  296         4. The Board of Chiropractic Medicine, created under
  297  chapter 460.
  298         5. The Board of Podiatric Medicine, created under chapter
  299  461.
  300         6. Naturopathy, as provided under chapter 462.
  301         7. The Board of Optometry, created under chapter 463.
  302         8. The Board of Nursing, created under part I of chapter
  303  464.
  304         9. Nursing assistants, as provided under part II of chapter
  305  464.
  306         10. The Board of Pharmacy, created under chapter 465.
  307         11. The Board of Dentistry, created under chapter 466.
  308         12. Midwifery, as provided under chapter 467.
  309         13. The Board of Speech-Language Pathology and Audiology,
  310  created under part I of chapter 468.
  311         14. The Board of Nursing Home Administrators, created under
  312  part II of chapter 468.
  313         15. The Board of Occupational Therapy, created under part
  314  III of chapter 468.
  315         16. Respiratory therapy, as provided under part V of
  316  chapter 468.
  317         17. Dietetics and nutrition practice, as provided under
  318  part X of chapter 468.
  319         18. The Board of Athletic Training, created under part XIII
  320  of chapter 468.
  321         19. The Board of Orthotists and Prosthetists, created under
  322  part XIV of chapter 468.
  323         20. The Board of Applied Behavior Analysis, created under
  324  chapter 470.
  325         21.20. Electrolysis, as provided under chapter 478.
  326         22.21. The Board of Massage Therapy, created under chapter
  327  480.
  328         23.22. The Board of Clinical Laboratory Personnel, created
  329  under part III of chapter 483.
  330         24.23. Medical physicists, as provided under part IV of
  331  chapter 483.
  332         25.24. The Board of Opticianry, created under part I of
  333  chapter 484.
  334         26.25. The Board of Hearing Aid Specialists, created under
  335  part II of chapter 484.
  336         27.26. The Board of Physical Therapy Practice, created
  337  under chapter 486.
  338         28.27. The Board of Psychology, created under chapter 490.
  339         29.28. School psychologists, as provided under chapter 490.
  340         30.29. The Board of Clinical Social Work, Marriage and
  341  Family Therapy, and Mental Health Counseling, created under
  342  chapter 491.
  343         31.30. Emergency medical technicians and paramedics, as
  344  provided under part III of chapter 401.
  345         Section 12. Subsection (4) of section 456.001, Florida
  346  Statutes, is amended to read:
  347         456.001 Definitions.—As used in this chapter, the term:
  348         (4) “Health care practitioner” means any person licensed
  349  under chapter 457; chapter 458; chapter 459; chapter 460;
  350  chapter 461; chapter 462; chapter 463; chapter 464; chapter 465;
  351  chapter 466; chapter 467; part I, part II, part III, part V,
  352  part X, part XIII, or part XIV of chapter 468; chapter 470;
  353  chapter 478; chapter 480; part III or part IV of chapter 483;
  354  chapter 484; chapter 486; chapter 490; or chapter 491.
  355         Section 13. Section 456.0135, Florida Statutes, is amended
  356  to read:
  357         456.0135 General background screening provisions.—
  358         (1) An application for initial licensure received on or
  359  after January 1, 2013, under chapter 458, chapter 459, chapter
  360  460, chapter 461, chapter 464, or s. 465.022, or chapter 470
  361  shall include fingerprints pursuant to procedures established by
  362  the department through a vendor approved by the Department of
  363  Law Enforcement and fees imposed for the initial screening and
  364  retention of fingerprints. Fingerprints must be submitted
  365  electronically to the Department of Law Enforcement for state
  366  processing, and the Department of Law Enforcement shall forward
  367  the fingerprints to the Federal Bureau of Investigation for
  368  national processing. Each board, or the department if there is
  369  no board, shall screen the results to determine if an applicant
  370  meets licensure requirements. For any subsequent renewal of the
  371  applicant’s license that requires a national criminal history
  372  check, the department shall request the Department of Law
  373  Enforcement to forward the retained fingerprints of the
  374  applicant to the Federal Bureau of Investigation.
  375         (2) All fingerprints submitted to the Department of Law
  376  Enforcement as required under subsection (1) shall be retained
  377  by the Department of Law Enforcement as provided under s.
  378  943.05(2)(g) and (h) and (3). The department shall notify the
  379  Department of Law Enforcement regarding any person whose
  380  fingerprints have been retained but who is no longer licensed.
  381         (3) The costs of fingerprint processing, including the cost
  382  for retaining fingerprints, shall be borne by the applicant
  383  subject to the background screening.
  384         Section 14. This act shall take effect January 1, 2015.