CS for CS for SB 1212 First Engrossed (ntc)
20141212e1
1 A bill to be entitled
2 An act relating to behavior analysts; amending s.
3 20.43, F.S.; establishing the Board of Applied
4 Behavior Analysis within the Division of Medical
5 Quality Assurance; amending s. 456.001, F.S.;
6 including licensed behavior analysts and licensed
7 assistant behavior analysts in the definition of
8 “health care practitioner”; amending s. 456.0135,
9 F.S.; requiring an applicant for licensure under
10 chapter 470, F.S., to submit to certain fingerprinting
11 requirements; creating chapter 470, F.S.; entitling
12 the chapter; creating s. 470.40, F.S.; providing a
13 purpose; creating s. 470.41, F.S.; defining terms;
14 creating s. 470.415, F.S.; creating the Board of
15 Applied Behavior Analysis; providing for membership
16 and terms of members; creating s. 470.42, F.S.;
17 creating rulemaking authority for the board and the
18 department; creating s. 470.43, F.S.; providing
19 requirements for licensure as a behavior analyst or
20 assistant behavior analyst; creating s. 470.44, F.S.;
21 providing requirements for renewal of license;
22 creating s. 470.45, F.S.; establishing maximum fees
23 for applications, initial licenses, and license
24 renewals; requiring fees collected by the department
25 to be deposited into a specified trust fund; creating
26 s. 470.46, F.S.; providing grounds for denial of
27 license or disciplinary action; creating s. 470.47,
28 F.S.; providing penalties for practicing applied
29 behavior analysis without a license or wrongfully
30 identifying oneself as a licensed behavior analyst or
31 licensed assistant behavior analyst; creating s.
32 470.48, F.S.; providing exceptions to applicability of
33 the chapter; providing appropriations and authorizing
34 positions; providing an effective date.
35
36 Be It Enacted by the Legislature of the State of Florida:
37
38 Section 1. Paragraph (g) of subsection (3) of section
39 20.43, Florida Statutes, is amended to read:
40 20.43 Department of Health.—There is created a Department
41 of Health.
42 (3) The following divisions of the Department of Health are
43 established:
44 (g) Division of Medical Quality Assurance, which is
45 responsible for the following boards and professions established
46 within the division:
47 1. The Board of Acupuncture, created under chapter 457.
48 2. The Board of Medicine, created under chapter 458.
49 3. The Board of Osteopathic Medicine, created under chapter
50 459.
51 4. The Board of Chiropractic Medicine, created under
52 chapter 460.
53 5. The Board of Podiatric Medicine, created under chapter
54 461.
55 6. Naturopathy, as provided under chapter 462.
56 7. The Board of Optometry, created under chapter 463.
57 8. The Board of Nursing, created under part I of chapter
58 464.
59 9. Nursing assistants, as provided under part II of chapter
60 464.
61 10. The Board of Pharmacy, created under chapter 465.
62 11. The Board of Dentistry, created under chapter 466.
63 12. Midwifery, as provided under chapter 467.
64 13. The Board of Speech-Language Pathology and Audiology,
65 created under part I of chapter 468.
66 14. The Board of Nursing Home Administrators, created under
67 part II of chapter 468.
68 15. The Board of Occupational Therapy, created under part
69 III of chapter 468.
70 16. Respiratory therapy, as provided under part V of
71 chapter 468.
72 17. Dietetics and nutrition practice, as provided under
73 part X of chapter 468.
74 18. The Board of Athletic Training, created under part XIII
75 of chapter 468.
76 19. The Board of Orthotists and Prosthetists, created under
77 part XIV of chapter 468.
78 20. The Board of Applied Behavior Analysis, created under
79 chapter 470.
80 21.20. Electrolysis, as provided under chapter 478.
81 22.21. The Board of Massage Therapy, created under chapter
82 480.
83 23.22. The Board of Clinical Laboratory Personnel, created
84 under part III of chapter 483.
85 24.23. Medical physicists, as provided under part IV of
86 chapter 483.
87 25.24. The Board of Opticianry, created under part I of
88 chapter 484.
89 26.25. The Board of Hearing Aid Specialists, created under
90 part II of chapter 484.
91 27.26. The Board of Physical Therapy Practice, created
92 under chapter 486.
93 28.27. The Board of Psychology, created under chapter 490.
94 29.28. School psychologists, as provided under chapter 490.
95 30.29. The Board of Clinical Social Work, Marriage and
96 Family Therapy, and Mental Health Counseling, created under
97 chapter 491.
98 31.30. Emergency medical technicians and paramedics, as
99 provided under part III of chapter 401.
100 Section 2. Subsection (4) of section 456.001, Florida
101 Statutes, is amended to read:
102 456.001 Definitions.—As used in this chapter, the term:
103 (4) “Health care practitioner” means any person licensed
104 under chapter 457; chapter 458; chapter 459; chapter 460;
105 chapter 461; chapter 462; chapter 463; chapter 464; chapter 465;
106 chapter 466; chapter 467; part I, part II, part III, part V,
107 part X, part XIII, or part XIV of chapter 468; chapter 470;
108 chapter 478; chapter 480; part III or part IV of chapter 483;
109 chapter 484; chapter 486; chapter 490; or chapter 491.
110 Section 3. Section 456.0135, Florida Statutes, is amended
111 to read:
112 456.0135 General background screening provisions.—
113 (1) An application for initial licensure received on or
114 after January 1, 2013, under chapter 458, chapter 459, chapter
115 460, chapter 461, chapter 464, or s. 465.022, or chapter 470
116 shall include fingerprints pursuant to procedures established by
117 the department through a vendor approved by the Department of
118 Law Enforcement and fees imposed for the initial screening and
119 retention of fingerprints. Fingerprints must be submitted
120 electronically to the Department of Law Enforcement for state
121 processing, and the Department of Law Enforcement shall forward
122 the fingerprints to the Federal Bureau of Investigation for
123 national processing. Each board, or the department if there is
124 no board, shall screen the results to determine if an applicant
125 meets licensure requirements. For any subsequent renewal of the
126 applicant’s license that requires a national criminal history
127 check, the department shall request the Department of Law
128 Enforcement to forward the retained fingerprints of the
129 applicant to the Federal Bureau of Investigation.
130 (2) All fingerprints submitted to the Department of Law
131 Enforcement as required under subsection (1) shall be retained
132 by the Department of Law Enforcement as provided under s.
133 943.05(2)(g) and (h) and (3). The department shall notify the
134 Department of Law Enforcement regarding any person whose
135 fingerprints have been retained but who is no longer licensed.
136 (3) The costs of fingerprint processing, including the cost
137 for retaining fingerprints, shall be borne by the applicant
138 subject to the background screening.
139 Section 4. Chapter 470, Florida Statutes, is created and
140 entitled “Behavior Analysts.”
141 Section 5. Section 470.40, Florida Statutes, is created to
142 read:
143 470.40 Purpose.—The Legislature finds that the practice of
144 applied behavior analysis in this state by unskilled and
145 incompetent practitioners presents a danger to the health and
146 safety of the public. The Legislature finds further that it is
147 difficult for the public to make informed choices about behavior
148 analysts and that the consequences of a wrong choice could
149 endanger public health. This act is intended to protect the
150 public from the harmful conduct of unqualified, unprofessional,
151 or unethical behavior analysts.
152 Section 6. Section 470.41, Florida Statutes, is created to
153 read:
154 470.41 Definitions.—As used in this chapter, the term:
155 (1) “Applied behavior analysis” means the design,
156 implementation, and evaluation of environmental modifications,
157 using behavioral stimuli and consequences, to produce socially
158 significant improvement in human behavior, including, but not
159 limited to, the use of direct observation, measurement, and
160 functional analysis of the relations between environment and
161 behavior. The term does not include psychological testing, the
162 diagnosis of a mental or physical disorder, neuropsychology,
163 psychotherapy, cognitive therapy, sex therapy, psychoanalysis,
164 hypnotherapy, or long-term counseling.
165 (2) “Board” means the Board of Applied Behavior Analysis
166 established in s. 470.415, except when the term is used in the
167 context of board certification.
168 (3) “Board-certified behavior analyst” means a practitioner
169 who is certified as a behavior analyst, or is recognized as a
170 Florida-certified behavior analyst, by the national Behavior
171 Analyst Certification Board (BACB).
172 (4) “Board-certified assistant behavior analyst” means a
173 practitioner who is certified by the national Behavior Analyst
174 Certification Board, as an assistant behavior analyst.
175 (5) “Department” means the Department of Health.
176 (6) “Licensed behavior analyst” means an individual who is
177 licensed by the board and meets the requirements of this
178 chapter.
179 (7) “Licensed assistant behavior analyst” means an
180 individual who is licensed by the board as an assistant behavior
181 analyst and meets the requirements of this chapter.
182 Section 7. Section 470.415, Florida Statutes, is created to
183 read:
184 470.415 Board of Applied Behavior Analysis.—
185 (1) The Board of Applied Behavior Analysis is created
186 within the department. The board consists of seven members
187 appointed by the Governor and confirmed by the Senate.
188 (2) The initial board members, who are not required to be
189 licensed as a condition of appointment, shall be appointed as
190 follows:
191 (a) Three board-certified behavior analysts, two of whom
192 must hold a doctoral level degree. One shall be appointed to a
193 4-year term, one shall be appointed to a 2-year term, and one
194 shall be appointed to a 1-year term;
195 (b) One board-certified assistant behavior analyst, who
196 shall be appointed to a 3-year term;
197 (c) One psychologist licensed pursuant to chapter 490 or
198 one clinical social worker, marriage and family therapist, or
199 mental health counselor licensed pursuant to chapter 491, who
200 shall be appointed to a 3-year term. The majority of the
201 appointee’s professional practice must be related to the
202 treatment of behavior disorders, including, but not limited to,
203 autism spectrum disorders; and
204 (d) Two laypersons, who may include a parent or guardian of
205 an individual who is a recipient of applied behavior analysis
206 services, one of whom shall serve a 4-year term, and one of whom
207 shall serve a 2-year term.
208 (3) As the terms of the initial members expire, the
209 Governor shall appoint successors for 4-year terms. Each
210 successor, except for the laypersons, must be licensed. A member
211 may not serve more than two consecutive terms.
212 Section 8. Section 470.42, Florida Statutes, is created to
213 read:
214 470.42 Rulemaking authority.—
215 (1) The board has authority to adopt rules pursuant to ss.
216 120.536(1) and 120.54 to implement the provisions of this
217 chapter conferring duties upon it. Such rules must include, but
218 are not limited to, rules relating to:
219 (a) Standards of practice for licensed behavior analysts
220 and licensed assistant behavior analysts.
221 (b) Supervision of licensed assistant behavior analysts, or
222 students in training to be licensed behavior analysts or
223 licensed assistant behavior analysts, including the number of
224 persons that a licensed behavior analyst or licensed assistant
225 behavior analyst may supervise at one time.
226 (2) The department may adopt rules to implement the
227 provisions of this chapter conferring duties upon it. Such rules
228 shall include, but are not limited to, rules relating to
229 licensure and license renewal applications, processes, and fees.
230 Section 9. Section 470.43, Florida Statutes, is created to
231 read:
232 470.43 Licensure.—
233 (1) The department shall license an applicant as a behavior
234 analyst if the applicant:
235 (a) Submits a completed application to the department using
236 a form approved by the board;
237 (b) Remits the appropriate fees;
238 (c) Has passed a criminal background check after submitting
239 fingerprints and a fee pursuant to s. 456.0135; and
240 (d) Submits proof that the applicant is a board-certified
241 behavior analyst.
242 (2) The department shall license an applicant as an
243 assistant behavior analyst if the applicant:
244 (a) Submits a completed application to the department using
245 a form approved by the board;
246 (b) Remits the appropriate fees;
247 (c) Has passed a criminal background check after submitting
248 fingerprints and a fee pursuant to s. 456.0135;
249 (d) Submits proof to the department that the applicant is a
250 board-certified assistant behavior analyst; and
251 (e) Identifies a supervising licensed behavior analyst who
252 is qualified to supervise the applicant under BACB requirements
253 and this chapter.
254 Section 10. Section 470.44, Florida Statutes, is created to
255 read:
256 470.44 Renewal of license.—
257 (1) The department shall renew a license upon receipt of
258 proof that the applicant is certified by the BACB and a
259 completed renewal application and fee.
260 (2) The department shall adopt rules establishing a
261 procedure for the biennial renewal of licenses.
262 (3) The board shall by rule prescribe continuing education
263 not to exceed 32 hours required biennially as a condition for
264 renewal of a license as a behavior analyst, or not to exceed 20
265 hours required biennially as a condition for renewal of a
266 license as an assistant behavior analyst. The criteria for
267 continuing education programs shall be approved by the board.
268 The board may authorize by rule continuing education earned for
269 BACB certification to be used to meet the continuing education
270 requirements of this subsection.
271 Section 11. Section 470.45, Florida Statutes, is created to
272 read:
273 470.45 Fees.—
274 (1) The board shall establish by rule a fee not to exceed
275 $100 for an application, $300 for an initial license, or $300
276 for license renewal.
277 (2) All moneys collected by the department under this
278 chapter shall be deposited in the Medical Quality Assurance
279 Trust Fund as provided under s. 456.025.
280 Section 12. Section 470.46, Florida Statutes, is created to
281 read:
282 470.46 Disciplinary actions.—
283 (1) The following acts constitute grounds for denial of a
284 license or disciplinary action, as specified in s. 456.072(2):
285 (a) Attempting to obtain, obtaining, or renewing a license
286 under this chapter by bribery or fraudulent misrepresentation or
287 through an error of the board or the department.
288 (b) Having a license to practice a comparable profession
289 revoked, suspended, or otherwise acted against, including the
290 denial of certification or licensure by another state,
291 territory, or country.
292 (c) Being convicted or found guilty of, regardless of
293 adjudication, or having entered a plea of nolo contendere to, a
294 crime in any jurisdiction which directly relates to the practice
295 of his or her profession or the ability to practice his or her
296 profession. However, in the case of a plea of nolo contendere,
297 the board shall allow the person who is the subject of the
298 disciplinary proceeding to present evidence in mitigation
299 relevant to the underlying charges and circumstances surrounding
300 the plea.
301 (d) False, deceptive, or misleading advertising or
302 obtaining a fee or other thing of value on the representation
303 that beneficial results from any treatment will be guaranteed.
304 (e) Advertising, practicing, or attempting to practice
305 under a name other than one’s own.
306 (f) Maintaining a professional association with any person
307 who the applicant or licensee knows, or has reason to believe,
308 is in violation of this chapter or of a rule of the department
309 or the board.
310 (g) Knowingly aiding, assisting, procuring, or advising any
311 nonlicensed person to hold himself or herself out as licensed
312 under this chapter.
313 (h) Failing to perform any statutory or legal obligation
314 placed upon a person licensed under this chapter.
315 (i) Willfully making or filing a false report or record;
316 failing to file a report or record required by state or federal
317 law; willfully impeding or obstructing the filing of a report or
318 record; or inducing another person to make or file a false
319 report or record or to impede or obstruct the filing of a report
320 or record. Such report or record includes only a report or
321 record which requires the signature of a person licensed under
322 this chapter.
323 (j) Paying a kickback, rebate, bonus, or other remuneration
324 for receiving a patient or client, or receiving a kickback,
325 rebate, bonus, or other remuneration for referring a patient or
326 client to another provider of applied behavior analysis services
327 or to a provider of health care services or goods; referring a
328 patient or client to oneself for services on a fee-paid basis
329 when those services are already being paid for by some other
330 public or private entity; or entering into a reciprocal referral
331 agreement.
332 (k) Committing any act upon a patient or client which would
333 constitute sexual battery or which would constitute sexual
334 misconduct. Sexual misconduct shall be defined by rule by the
335 board.
336 (l) Making misleading, deceptive, untrue, or fraudulent
337 representations in the practice of applied behavior analysis.
338 (m) Soliciting patients or clients personally, or through
339 an agent, through the use of fraud, intimidation, undue
340 influence, or a form of overreaching or vexatious conduct.
341 (n) Failing to make available to a patient or client, upon
342 written request, copies of test results, reports, or documents
343 in the possession or under the control of the licensee which
344 have been prepared for and paid for by the patient or client.
345 (o) Failing to respond within 30 days to a written
346 communication from the department concerning any investigation
347 by the department, or failing to make available any relevant
348 records with respect to any investigation about the licensee’s
349 conduct or background.
350 (p) Being unable to practice the profession for which he or
351 she is licensed under this chapter with reasonable skill or
352 competence as a result of any mental or physical condition or by
353 reason of illness; drunkenness; or excessive use of drugs,
354 narcotics, chemicals, or any other substance. In enforcing this
355 paragraph, upon a finding by the State Surgeon General, the
356 State Surgeon General’s designee, or the board that probable
357 cause exists to believe that the licensee is unable to practice
358 the profession because of the reasons stated in this paragraph,
359 the department shall have the authority to compel a licensee to
360 submit to a mental or physical examination by a physician
361 designated by the department or board. If the licensee refuses
362 to comply with such order, the department’s order directing the
363 examination may be enforced by filing a petition for enforcement
364 in the circuit court in the circuit in which the licensee
365 resides or does business. The licensee against whom the petition
366 is filed may not be named or identified by initials in any
367 public court records or documents, and the proceedings shall be
368 closed to the public. The department shall be entitled to the
369 summary procedure provided in s. 51.011. A licensee affected
370 under this paragraph shall at reasonable intervals be afforded
371 an opportunity to demonstrate that he or she can resume the
372 competent practice for which he or she is licensed with
373 reasonable skill and safety to patients.
374 (q) Performing any treatment or prescribing any therapy
375 which, by the prevailing standards of the behavior analysts in
376 the community, would constitute experimentation on human
377 subjects, without first obtaining full, informed, and written
378 consent.
379 (r) Failing to meet the minimum standards of performance in
380 professional activities when measured against generally
381 prevailing peer performance, including the undertaking of
382 activities for which the licensee is not qualified by training
383 or experience.
384 (s) Delegating professional responsibilities to a person
385 whom the licensee knows or has reason to know is not qualified
386 by training or experience to perform such responsibilities.
387 (t) Violating a rule relating to the regulation of the
388 profession or a lawful order of the department or the board
389 previously entered in a disciplinary hearing.
390 (u) Failure of the licensee to maintain in confidence a
391 communication made by a patient or client in the context of such
392 services.
393 (v) Making public statements which are derived from test
394 data, client contacts, or behavioral research and which identify
395 or damage research subjects or clients.
396 (w) Violating any provision of this chapter or chapter 456,
397 or any rules adopted pursuant thereto.
398 (2) The board may enter an order denying licensure or
399 imposing any of the penalties in s. 456.072(2) against any
400 applicant for licensure or licensee who is found guilty of
401 violating subsection (1) or who is found guilty of violating s.
402 456.072(1).
403 Section 13. Section 470.47, Florida Statutes, is created to
404 read:
405 470.47 Violations and penalties.—
406 (1) A person may not engage in the practice of applied
407 behavior analysis, assist in the practice of applied behavior
408 analysis, render services designated as applied behavior
409 analysis, or represent himself or herself as a practitioner of
410 applied behavior analysis in this state unless he or she holds
411 an active license as a behavior analyst or assistant behavior
412 analyst pursuant to this chapter or meets an exception under s.
413 470.48. A person who violates this subsection commits a felony
414 of the third degree, punishable as provided under s. 775.082, s.
415 775.083, or s. 775.084.
416 (2) A person may not use the following titles or any
417 combination thereof, unless he or she holds an active license as
418 a behavior analyst or assistant behavior analyst pursuant to
419 this chapter:
420 (a) “Licensed behavior analyst.”
421 (b) “Licensed assistant behavior analyst.”
422 (3) A person who violates subsection (2) commits a
423 misdemeanor of the second degree, punishable as provided in s.
424 775.082 or s. 775.083.
425 Section 14. Section 470.48, Florida Statutes, is created to
426 read:
427 470.48 Exceptions to applicability.—This chapter does not
428 prohibit or restrict the practice of the following:
429 (1) An individual licensed pursuant to chapter 458 or
430 chapter 459.
431 (2) An individual licensed pursuant to part III of chapter
432 468 if the occupational therapist does not represent himself or
433 herself as a behavior analyst.
434 (3) An individual licensed under chapter 490 to practice
435 psychology.
436 (4) An individual licensed pursuant to chapter 491 as a
437 clinical social worker, marriage and family therapist, or mental
438 health counselor.
439 (5) A certified teacher authorized to practice in this
440 state; or a teaching assistant, other than a teaching assistant
441 engaged in pupil personnel services, or student support
442 professional who provides applied behavior analysis services
443 under the supervision of a certified teacher. The services
444 provided by or under the supervision of a certified teacher must
445 be within his or her authorized scope of practice and within the
446 scope of his or her education, training, and experience and must
447 be provided in the course of his or her employment in a program
448 approved by the Department of Education.
449 (6) A behavior analyst who practices with nonhuman clients,
450 including, but not limited to, applied animal behaviorists and
451 animal trainers.
452 (7) An individual who teaches applied behavior analysis or
453 who conducts behavior analytic research if such teaching or
454 research does not involve the delivery of applied behavior
455 analysis.
456 (8) A matriculated college or university student or
457 postdoctoral fellow whose activities are part of a defined
458 behavior analysis program of study, practicum, or intensive
459 practicum if his or her practice under this subsection is
460 directly supervised by a licensed behavior analyst or an
461 instructor of course sequence approved by the Behavior Analyst
462 Certification Board (BACB). A student or intern may not
463 represent himself or herself as a professional behavior analyst
464 but may use a title indicating his or her trainee status, such
465 as “behavior analyst student,” “behavior analyst intern,” or
466 “behavior analyst trainee.”
467 (9) An unlicensed individual pursuing supervised
468 experiential training to meet eligibility requirements for BACB
469 certification if such training is supervised by a licensed
470 behavior analyst or a licensed assistant behavior analyst who
471 meets BACB supervisor requirements and if the supervised
472 experience is conducted in accordance with other BACB standards
473 and requirements.
474 (10) A family member of a recipient of applied behavior
475 analysis services who implements certain procedures with the
476 recipient. Such a family member may not represent himself or
477 herself as a licensed behavior analyst or a licensed assistant
478 behavior analyst.
479 (11) A behavior analyst who provides general behavior
480 analysis services to organizations if the services are for the
481 benefit of the organizations and do not involve direct services
482 to individuals.
483 (12) A salaried employee of a private, nonprofit
484 organization providing behavior analysis services to children,
485 youth, and families if the services are provided for no charge,
486 the employee is performing duties for which he or she was
487 trained and hired, and the employee does not represent himself
488 or herself as a licensed behavior analyst or licensed assistant
489 behavior analyst.
490 (13) A school psychologist certified in school psychology
491 by the Department of Education who performs behavior analysis
492 services as an employee of a public or private educational
493 institution. Such exemption does not authorize unlicensed
494 practice that is not performed directly as an employee of an
495 educational institution.
496 (14) A rabbi, priest, minister, or member of the clergy of
497 a religious denomination or sect if engaging in activities that
498 are within the scope of the performance of his or her regular or
499 specialized ministerial duties and for which no separate fee is
500 charged, or if such activities are performed, with or without a
501 fee, for or under the auspices or sponsorship, individually or
502 in conjunction with others, of an established and legally
503 cognizable church, denomination, or sect; and if the person
504 rendering service remains accountable to the established
505 authority thereof.
506 Section 15. (1) For the 2014-2015 fiscal year, the sums of
507 $113,541 in recurring funds and $37,911 in nonrecurring funds
508 are appropriated from the Medical Quality Assurance Trust Fund
509 to the Department of Health, and two full-time equivalent
510 positions with associated salary rate of 70,359 are authorized,
511 for the purpose of implementing the regulatory provisions of
512 this act.
513 (2) For the 2015-2016 fiscal year, the sums of $77,266 in
514 recurring funds and $26,592 in nonrecurring funds from the
515 Medical Quality Assurance Trust Fund are appropriated to the
516 Department of Health for the purpose of implementing the
517 regulatory provisions of this act.
518 Section 16. This act shall take effect January 1, 2015.