SB667: Bill Text

LRB-4612/1

CTS&PJK:jld&kjf:rs

2009 - 2010 LEGISLATURE

2009 Senate BILL 667

April 5, 2010 - Introduced by Senator Wirch, cosponsored by Representative Hintz. Referred to Committee on Health, Health Insurance, Privacy, Property Tax Relief, and Revenue.

SB667,2,2 An Act to renumber subchapter III of chapter 440 [precedes 440.41], subchapter IV of chapter 440 [precedes 440.51], subchapter V of chapter 440 [precedes 440.60], subchapter VI of chapter 440 [precedes 440.70], subchapter VII of chapter 440 [precedes 440.88], subchapter VIII of chapter 440 [precedes 440.90], subchapter IX of chapter 440 [precedes 440.96], subchapter X of chapter 440 [precedes 440.97], subchapter XI of chapter 440 [precedes 440.98], subchapter XII of chapter 440 [precedes 440.9805] and subchapter XIII of chapter 440 [precedes 440.99]; to amend 157.055 (2) (intro.), 441.15 (2m), 448.03 (2) (a) and 632.895 (12m) (b) 4.; and to create 440.03 (13) (b) 15m., 440.08 (2) (a) 20m., subchapter III of chapter 440 [precedes 440.310] and 632.895 (12m) (b) 3m. of the statutes; relating to: licensure and regulation of behavior analysts, insurance coverage of the services of behavior analysts for autism treatment, providing an exemption from emergency rule procedures, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill provides for licensure and regulation of behavior analysts. Under the bill, no person may engage in the practice of behavior analysis unless the person has been granted a license by the Department of Regulation and Licensing (department). The bill defines the practice of behavior analysis as the design, implementation, and evaluation of systematic instructional and environmental modifications to produce socially significant improvements in human behavior, including the empirical identification of functional relations between behavior and environmental factors, including interventions based on scientific research and the direct observation and measurement of behavior and environment. The practice of behavior analysis does not include psychological testing, neuropsychology, psychotherapy, cognitive therapy, sex therapy, marriage counseling, psychoanalysis, hypnotherapy, and long-term counseling as treatment modalities. The bill provides that the licensure requirement may not be applied to restrict the practice of behavior analysis within the scope of practice of a licensed professional who is not a behavior analyst, if the professional does not represent that he or she is a behavior analyst. An unlicensed person who practices behavior analysis is subject to a fine up to $250, up to three months in jail, or both.

The department must grant a license to an applicant who submits an application, an initial credential, and evidence that the applicant is certified as a behavior analyst by the private organization Behavior Analyst Certification Board, Inc. (board), except that the department may not grant a license to an applicant who has been convicted of certain crimes specified in the bill. The bill authorizes the department to promulgate rules regarding the practice of behavior analysis, including rules authorizing the issuance of temporary permits to practice behavior analysis, but any rules must be consistent with standards established by the board. The department may not promulgate rules that impose additional educational requirements; that require a behavior analyst to practice under supervision by, or in collaboration with, another health care provider; that require a behavior analyst to enter into an agreement with another health care provider; or that limit the location where a behavior analyst may practice.

The bill requires a behavior analyst to provide to a client a summary of the behavior analyst's experience and training and a copy of any rules promulgated by the department. The bill also authorizes the department to discipline a behavior analyst who engages in unprofessional conduct or who commits any other infraction identified in the bill.

Under current law, health insurance policies and self-insured governmental and school district health plans are required to cover a specified amount of intensive-level services and nonintensive-level services provided to an insured for the treatment of autism, Asperger's syndrome, and pervasive developmental disorder not otherwise specified as long as the treatment is prescribed by a physician and provided by any of the following providers who are qualified to provide intensive-level services or nonintensive-level services: a psychiatrist; a psychologist; a social worker who is certified or licensed to practice psychotherapy; a paraprofessional working under the supervision of any of those three types of providers; a professional working under the supervision of an outpatient mental health clinic; a speech-language pathologist; or an occupational therapist. The bill provides that the coverage must also apply to services provided by a behavior analyst who is licensed to practice behavior analysis by the department or by a paraprofessional working under the supervision of such a behavior analyst, if the behavior analyst or paraprofessional is qualified to provide intensive-level services or nonintensive-level services.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB667, s. 1 Section 1. 157.055 (2) (intro.) of the statutes, as affected by 2009 Wisconsin Act 42, is amended to read:

SB667,3,6 157.055 (2) (intro.) Notwithstanding ss. 69.18 (4), 445.04 (2), 445.14, 979.01 (3), (3m), and (4), 979.02, and 979.10, and subch. VI VII of ch. 440, during a period of a state of emergency related to public health declared by the governor under s. 323.10, a public health authority may do all of the following:

SB667, s. 2 Section 2. 440.03 (13) (b) 15m. of the statutes is created to read:

SB667,3,8 440.03 (13) (b) 15m. Behavior analyst.

SB667, s. 3 Section 3. 440.08 (2) (a) 20m. of the statutes is created to read:

SB667,3,11 440.08 (2) (a) 20m. Behavior analyst: December 15 of each even-numbered year.

SB667, s. 4 Section 4. Subchapter III of chapter 440 [precedes 440.310] of the statutes is created to read:

SB667,3,14 Chapter 440

SB667,4,1 subchapter III

SB667,4,2 behavior analysts

SB667,4,3 440.310 Definitions. In this subchapter:

SB667,4,6 (1) "Behavior analyst" means a person who is certified by the Behavior Analyst Certification Board, Inc., as a board-certified behavior analyst and has been granted a license under this subchapter to engage in the practice of behavior analysis.

SB667,4,16 (2) "Practice of behavior analysis" means the design, implementation, and evaluation of systematic instructional and environmental modifications to produce socially significant improvements in human behavior, including the empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis, including interventions based on scientific research and the direct observation and measurement of behavior and environment. "Practice of behavior analysis" does not include psychological testing, neuropsychology, psychotherapy, cognitive therapy, sex therapy, marriage counseling, psychoanalysis, hypnotherapy, and long-term counseling as treatment modalities.

SB667,4,23 440.311 Use of title; penalty. (1) No person may use the title "behavior analyst" or represent or imply that he or she is a behavior analyst unless the person is licensed under this subchapter. This section may not be construed to restrict the practice of behavior analysis by a licensed professional who is not a behavior analyst, if the services performed are within the scope of the professional's practice and are performed commensurate with the professional's training and experience, and the professional does not represent that he or she is a behavior analyst.

SB667,4,25 (2) Any person who violates sub. (1) may be fined not more than $250, imprisoned not more than 3 months in the county jail, or both.

SB667,5,3 440.312 Licensure. (1) Except as provided in sub. (2), the department shall grant a license as a behavior analyst to a person under this subchapter if all of the following apply:

SB667,5,5 (a) The person submits an application to the department on a form provided by the department.

SB667,5,7 (b) The person pays the initial credential fee determined by the department under s. 440.03 (9) (a).

SB667,5,10 (c) The person submits evidence satisfactory to the department that the person is a behavior analyst certified by the Behavior Analyst Certification Board, Inc., or its successor organization.

SB667,5,14 (2) The department may not grant a license under this subchapter to any person who has been convicted of an offense under s. 940.22, 940.225, 940.302 (2) (a) 1. b., 944.06, 944.15, 944.17, 944.30, 944.31, 944.32, 944.33, 944.34, 948.02, 948.025, 948.051, 948.06, 948.07, 948.075, 948.08, 948.09, 948.095, 948.10, 948.11, or 948.12.

SB667,5,18 440.313 Renewal. (1) The renewal date for licenses granted under this subchapter is specified in s. 440.08 (2) (a). Renewal applications shall be submitted to the department on a form provided by the department and shall include the renewal fee determined by the department under s. 440.03 (9) (a).

SB667,5,22 (2) A behavior analyst shall, at the time that he or she applies for renewal of a license under sub. (1), submit proof satisfactory to the department that he or she is, at the time he or she applies for renewal, certified by the Behavior Analyst Certification Board, Inc., or its successor organization.

SB667,6,3 440.314 Rules. (1) The department may promulgate rules necessary to administer this subchapter, including rules of conduct by behavior analysts and by holders of temporary permits under sub. (2). Except as provided in subs. (2), (3), and (4), any rules regarding the practice of behavior analysis shall be consistent with standards established by the Behavior Analyst Certification Board, Inc., or its successor organization.

SB667,6,8 (2) (a) The department may promulgate rules authorizing the department to issue a temporary permit to a person who is certified by the Behavior Analyst Certification Board, Inc., or its successor organization authorizing the practice of behavior analysis by the person under the supervision of a behavior analyst licensed under s. 440.312 (1).

SB667,6,9 (3) The rules may not do any of the following:

SB667,6,12 (a) Require an applicant for a license under this subchapter to have education in addition to the education required by the Behavior Analyst Certification Board, Inc., or its successor organization.

SB667,6,14 (b) Require a behavior analyst to practice behavior analysis under the supervision of, or in collaboration with, another health care provider.

SB667,6,16 (c) Require a behavior analyst to enter into an agreement, written or otherwise, with another health care provider.

SB667,6,17 (d) Limit the location where a behavior analyst may practice behavior analysis.

SB667,6,21 440.315 Informed consent. A behavior analyst shall, at an initial consultation with a client, provide a copy of the rules promulgated by the department under this subchapter and shall disclose to the client orally and in writing all of the following:

SB667,6,22 (1) A summary of the behavior analyst's experience and training.

SB667,6,23 (2) Any other information required by the department by rule.

SB667,7,2 440.316 Disciplinary proceedings and actions. (1) Subject to the rules promulgated under s. 440.03 (1), the department may conduct investigations and hearings to determine whether a violation of this subchapter or any rule promulgated under this subchapter has occurred.

SB667,7,6 (2) Subject to the rules promulgated under s. 440.03 (1), the department may reprimand a behavior analyst or deny, limit, suspend, or revoke a license granted under this subchapter if the department finds that the applicant or the behavior analyst has done any of the following:

SB667,7,8 (a) Intentionally made a material misstatement in an application for a license or for renewal of a license.

SB667,7,11 (b) Subject to ss. 111.321, 111.322, and 111.34, practiced behavior analysis while his or her ability to engage in the practice was impaired by alcohol or other drugs.