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COMMENT DUE DATE:  

July 6, 2010

DATE: 

June 7, 2010

Samantha Galloway  DDSD  405-521-4989

Dena Thayer  PMU, Programs Administrator 405-521-4326

Nancy Kelly PMU 405-522-6703

RE:  

APA WF 10-09

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org

The proposed policy is  Emergency .  This proposal will go to the Commission meeting on

CHAPTER 100. Developmental Disabilities Services Division

Subchapter 18. Licensing [NEW]

OAC 340:100-18-1[NEW]

(Reference APA WF 10-09)

SUMMARY:The issuance of the proposed rule will: (1) provide for licensing and certification of behavior analysis in an effort to bring more practitioners to Oklahoma and (2) extend licensing to human service professionals with specific masters level degrees and appropriate qualifications to provide behavior analytic services to Oklahoma citizens.

Substantive changes.

OAC 340:100-18-1 is issued to provide licensing for board certified behavior Analysts and certification of board certified assistant behavior analysts.

EMERGENCY APPROVAL:Emergency rulemaking approval is requested as OKDHS finds compelling public interest to comply with Section 1928 of Title 59 of the Oklahoma Statutes to provide for licensing of board certified behavior analysts and certification of board certified assistant behavior analysts.

LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; and Section 1928 of Title 59 of the Oklahoma Statutes.

Rule Impact Statement

To:Dena Thayer, Programs Administrator

Policy Management Unit

From:James Nicholson

Developmental Disabilities Services Division

Date:June 4, 2010

Re:CHAPTER 100. Developmental Disabilities Services Division

Subchapter 18. Licensing [NEW]

OAC 340:100-18-1[NEW]

(Reference APA WF 10-09)

Contact:Samantha Galloway 405-521-4989

A.Brief description of the purpose of the proposed rule:

Purpose.Subchapter 18 of Chapter 100 is issued to comply with Section 1928 of Title 59 of the Oklahoma Statutes to provide for licensing of board certified behavior analysts and certification of board certified assistant behavior analysts.

Strategic Plan impact. The proposed rule achieves Oklahoma Department of Human Services goals by supporting the Developmental Disabilities Services Division long-term goal to provide quality community services to persons with developmental disabilities.

Substantive changes.

OAC 340:100-18-1 is issued to provide licensing for board certified behavior Analysts and certification of board certified assistant behavior analysts.

Reasons. The issuance of the proposed rule will: (1) provide for licensing and certification of behavior analysis in an effort to bring more practitioners to Oklahoma and (2) extend licensing to human service professionals with specific masters level degrees and appropriate qualifications to provide behavior analytic services to Oklahoma citizens.

Repercussions. The proposed rules will provide for licensing and certification for behavior analysis in an effort to bring more practitioners to Oklahoma and to extend licensing to human service professionals with specific masters level degrees and appropriate qualifications to provide behavior analytic services to the Oklahoma citizens.If the proposed rule is not implemented, Oklahoman's in need of behavior analytic services will suffer from insufficient numbers of qualified practitioners.

Legal authority. Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; and Section 1928 of Title 59 of the Oklahoma Statutes.

Emergency approval. Emergency rulemaking approval is requested as OKDHS finds compelling public interest to comply with Section 1928 of Title 59 of the Oklahoma Statutes to provide for licensing of board certified behavior analysts and certification of board certified assistant behavior analysts.

B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities: The classes of persons most likely to be affected by the proposed rules are adults and children in need of behavior analytic services, including, but not limited to, persons with autism, developmental disabilities, metal illness, and dementia, as well as the practitioners of behavior analytic services.The practitioners of behavior analytic services will bear the costs associated with implementation of the rules.The fee is $100 for a 2 year license for Board Certified Behavior Analysts and $50 for a two-year certification of board certified assistant behavior analysts.The fee is expected to fund the expenses of the Oklahoma Licensed Behavior Analyst Board.

C.A description of the classes of persons who will benefit from the proposed rule: The classes of persons who will benefit are adults and children in need of behavior analytic services, including, but not limited to, persons with autism, developmental disabilities, metal illness, and dementia, as well as the practitioners of behavior analytic services.

D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each: The revised rule requires a fee that is established per Section 1928 of Title 59 of the Oklahoma Statutes.The fee is $100 for a two-year license for Board Certified Behavior Analysts and $50 for a two-year certification of Board Certified Assistant Behavior Analysts.The fee is expected to exclusively cover expenses of the Oklahoma Licensed Behavior Analyst Board.

E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency: The probable cost to OKDHS includes the cost of printing and distributing the rules, which is estimated to be less than $20.The revised rules will result in enhanced delivery of services.

F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule: The proposed rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rules.

G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act: There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.

H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or non-regulatory methods or less intrusive methods for achieving the purpose of the proposed rule: There are no less costly or nonregulatory method or less intrusive method for complying with Section 1928 of Title 59 of the Oklahoma Statutes.

I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk: Implementation of the proposed rule will bring OKDHS DDSD into compliance with Section 1928 of Title 59 of the Oklahoma Statutes, which will have a positive impact on the health, safety, and well-being of adults and children in need of behavior analytic services, including, but not limited to, persons with autism, developmental disabilities, metal illness, and dementia, as well as the practitioners of behavior analytic services.

J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented: If the proposed rule is not implemented, Oklahomans in need of behavior analytic services will suffer from insufficient numbers of qualified practitioners.

K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared June 4, 2010; modified June 4, 2010.

CHAPTER 100. Developmental Disabilities Services Division

Subchapter 18. Licensing [NEW]

340:100-18-1. Board Certified Behavior Analyst license and Board Certified Assistant Behavior Analyst certification

Issued

(a) Authority.Section 1928 of Title 59 of the Oklahoma Statutes (59 O.S. § 1928) directs the Oklahoma Department of Human Services (OKDHS) Developmental Disabilities Services Division (DDSD) to provide for licensing of Board Certified Behavior Analysts (BCBA) and certification of Board Certified Assistant Behavior Analysts (BCaBA.)

(b) Definitions.The following words and terms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) "Applied behavior analysis" means the design, implementation, and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior through skill acquisition and the reduction of problematic behavior.

(2) "Behavior Analyst Certification Board (Board)" means the nationally accredited Behavior Analyst Certification Board.

(3) "Board Certified Behavior Analyst (BCBA)" means an individual who is certified by the nationally accredited Board and is licensed by OKDHS DDSD to provide applied behavior analysis services in Oklahoma.

(4) "Board Certified Assistant Behavior Analyst (BCaBA)" means an individual who is certified by the nationally accredited Board and is certified by OKDHS DDSD to provide applied behavior analysis services in Oklahoma.

(5) "Co-employed relationship" means the BCBA and BCaBA are employed by the same employer.

(6) "Employee-employer relationship" means the BCBA is the employer of the BCaBA.

(7) "Human services professional" means an individual licensed or certified by Oklahoma as a licensed:

(A) physical therapist or physical therapist assistant;

(B) occupational therapist or occupational therapist assistant;

(C) clinical social worker;

(D) masters social worker;

(E) social work associate;

(F) psychologist or health service psychologist;

(G) speech pathologist;

(H) audiologist;

(I) professional counselor or professional counselor candidate;

(J) marital and family therapist or marital and family therapist candidate; or

(K) behavioral practitioner or behavioral practitioner candidate.

(8) "Licensed behavior analyst" means an individual who is certified by the nationally accredited Board as a BCBA and is licensed by DDSD to provide applied behavior analysis services in Oklahoma.

(9) "Oklahoma Licensed Behavior Analyst Board (OLBAB)" means the state board responsible for licensing behavior analysts and regulating the practice of applied behavior analysis.

(10) "Real-Time supervision" means the observation of the provision of service with all parties participating in or monitoring live interactions.

(11) "Supervisee" means a person who acts under the extended authority of a licensed behavior analyst to provide applied behavior analysis services or a person who is training to provide such services.

(12) "Supervision" means the direct observation and professional guidance during the provision of service by a BCBA of a BCaBA.

(13) "Two-way interactions" means the observation of the provision of service using real-time visual and auditory contact through the use of technological devices.

(c) Qualifications.

(1) Each person wishing to practice as a licensed behavior analyst or a certified assistant behavior analyst in Oklahoma applies to DDSD using Form 06LC001E, Application for BCBA License and BCaBA Certification, and furnishes evidence that such person:

(A) is at least 21 years old;

(B) has passed the Board examination and is certified by the Board as a BCBA or a BCaBA, as applicable;

(C) has not had a professional license or state certification refused, revoked, suspended, or restricted and does not have a complaint, allegation, or investigation pending in any regulatory jurisdiction in the United States or in another country for reasons that relate to unprofessional conduct unless DDSD finds that the conduct has been corrected or that mitigating circumstances exist that prevent resolution; and

(D) has at least the minimum graduate or undergraduate degree, appropriate for the level of certification, from an institution of higher learning in a qualifying field of study determined by the Board.

(2) No person can claim the title of licensed behavior analyst or certified assistant behavior analyst unless that person meets the applicable requirements and obtains a license or certification per this Section.

(A) Supervisees provide applied behavior analysis under the supervision of a licensed behavior analyst.

(B) This Section does not restrict the practice of applied behavior analysis by human services professionals, provided such individuals are working within the scope of their professions and the practice of applied behavior analysis is commensurate with their level of training and experience.

(C) A violation of this subsection is punishable by a fine of not more than $500, the suspension or revocation of a license or certification issued pursuant to this Section, or both fine and loss of licensure or certification.

(d) Application.Oklahoma licenses and certificates are issued for two year terms following the initial certification period by the Board.

(1) Licensure.A person requesting licensure provides:

(A) for an initial request:

(i) current certification from the Board;

(ii) a photo copy of valid photo identification;

(iii) Form 06LC001E;

(iv) Form 06LC002E, Professional Reference for BCBA License and BCaBA Certification;

(v) Form 06LC003E, Certification of Autism Internship/Practicum Designation for BCBA License, as applicable; and

(vi) Form 06LC004E, Statement of Professional Disclosure for BCBA License and BCaBA Certification;

(B) for a renewal:

(i) current certification from the Board;

(ii) a photo copy of valid photo identification; and

(iii) 06LC001E; and

(iv) Form 06LC004E;

(C) for autism internship designation the respective institution of higher education completes Form 06LC003E, certifying the applicant has completed a 1000 hour BCBA supervised internship serving individuals with autism using evidence based applied behavior analysis approaches.A BCBA can petition OLBAB to consider professional hours of supervised autism internship outside of a institution of higher education program for consideration of alternative autism internship designation.All individuals licensed may provide applied behavior analytic service to persons with autism spectrum disorder, but only those completing the internship or approved by the OLBAB as specified in this paragraph may represent that they have the autism internship.

(2) Certification.A person requesting certification must provide:

(A) for an initial request:

(i) current certification from the Board;

(ii) a photo copy of a valid photo identification;

(iii) Form 06LC001E;

(iv) Form 06LC002E;

(v) Form 06LC004E; and

(vi) Form 06LC005E, BCaBA Professional Supervision;

(B) for re-certification:

(i) current certification from the Board;

(ii) a photo copy of a valid photo identification;

(iii) Form 06LC001E;

(iv) Form 06LC004E; and

(v) Form 06LC005E.

(e) Licensure and certification.A person licensed or certified by DDSD:

(1) maintains active status and fulfill all requirements of national certification or recertification with the Board; and

(2) conducts professional activities in accordance with standards found in the Guidelines for Responsible Conduct and Professional Disciplinary Standards established by the Board and available on their Web site at www.bacb.com; and

(3) applies for license or certification renewal on or before April 30 of each odd numbered year to continue practicing in Oklahoma.

(f) Fees.

(1) BCBA licensure fees:

(A) for initial licensing are pro-rated on a rounded average of $50 for each full calendar year remaining on the national Board certification; and

(B) $100 for each two year license thereafter.

(2) BCaBA certification fees:

(A) for initial certification are pro-rated on a rounded average of $25 for each full calendar year remaining on the national Board certification; and

(B) $50 for each two year certification thereafter.

(g) Requirements of Supervision.A certified BCaBA works under the supervision of a licensed BCBA.A BCBA provides supervision to a maximum of six BCaBAs at any time.Supervision by the BCBA occurs for a minimum of two hours for each 40 hours of services provided by a BCaBA.

(1) Supervision requirements include:

(A) real-time supervision:

(i) a minimum of one of two supervision sessions are conducted using real-time supervision; and

(ii) not more than half of the supervisory requirements are satisfied in a group setting.

(B) qualifying supervision beyond the requirements of real-time supervision includes the use of two-way interactions, review of materials submitted by the BCaBA, and observation of the BCaBA demonstrating professional skills.

(2) A formal professional relationship must exist between a supervising BCBA and BCaBA that may include:

(A) a co-employed relationship; or

(B) an employee-employer relationship.

(3) BCaBAs submit Form 06LC005E to OLBAB within 10 business days of any change in supervision status.

(h) Oklahoma Licensed Behavior Analyst Board.

(1) OLBAB consists of five members:

(A) three licensed BCBAs who may be employed by OKDHS appointed to the OLBAB by the OKDHS Director;

(B) one BCaBA who may be employed by OKDHS appointed to the OLBAB by the OKDHS Director; and

(C) one member designated by Oklahoma Health Care Authority (OHCA) who is a person with behavioral health expertise employed by OHCA.

(2) The chair of OLBAB is appointed by the OKDHS Director.

(3) Administrative support of the OLBAB is provided by DDSD staff as designated by the DDSD director.

(4) OLBAB meets a minimum of four times per calendar year.

(5) Travel expenses for members of OLBAB are reimbursed per 74 O.S. §.500.4.

(6) OLBAB maintains a list of all persons licensed or certified to provide behavior analytic services in Oklahoma and provides a copy of the list to any interested person upon written request.

(i) Ethics.

(1) Any person licensed or certified by DDSD as either a BCBA or a BCaBA reports within five business days any sanction, denial of initial or renewal certification, revocation, suspension or any other limitation of certification or combination of sanctions by the Board.If a person loses Board certification for any reason, he or she immediately forfeits the Oklahoma license or certification and must notify OLBAB within five business days of such notice from the Board and must immediately stop providing BCBA or BCaBA services in Oklahoma.

(2) Grounds for forfeiture or non-renewal of a license or certification for practice in Oklahoma include:

(A) obtaining or attempting to obtain a license or certification by making a false or misleading statement, failure to make a required statement, or fraud or deceit in any communication to OLBAB.

(B) gross or repeated negligence, incompetence, misconduct, or malpractice in professional work, including, but not limited to:

(i) any physical or mental condition that currently impairs competent professional performance or poses a substantial risk to the recipient of behavior analysis services;

(ii) professional conduct that constitutes an extreme and unjustified deviation from the customary standard of practice accepted in the applied behavior analytic community and creates a serious risk of harm to or deception of service recipients;

(iii) abandonment of a service recipient resulting in the termination of imminently needed care without adequate notice or provision for transition;

(iv) professional record keeping or data collection that constitutes an extreme and unjustified deviation from the customary standard of practice for the field, or deceptively altering service recipient's records or data;

(v) engaging in blatant fraud, deception, misrepresentation, false promise or pretense, intimidation in the practice of applied behavior analysis, or in solicitation of service recipients; and

(vi) the unauthorized material disclosure of confidential service recipient information.

(C) limitation, sanction, revocation, or suspension by a health care organization, professional organization, or other private or governmental body, relating to behavior analysis practice, public health or safety, or behavior analysis certification;

(D) any conviction of a felony or misdemeanor directly relating to behavior analysis practice or public health or safety; or

(E) failure to adequately supervise or be supervised in accordance with the BACB Standards for Supervision.

(3) Applicants and persons holding a current license or certificate reports to the OLBAB within 30 days of occurrence:

(A) a change in name, address, or other vital information;

(B) the filing of any criminal or civil charges;

(C) the initiation of any disciplinary charges, investigations, or findings/sanctions by a health care organization, federal or state agency, or other professional association; and

(D) any other change in information provided by the applicant or person holding a current license or certificate to the OLBAB.

(j) Complaint investigation.All complaints regarding unprofessional conduct of a BCBA or BCaBA are submitted to OLBAB in writing.The program administrator for the OKDHS DDSD Quality Assurance Program assists OLBAB with investigations and reports any findings to the Board for action.

(k) Sanctions.Sanctions are determined by the Board.

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