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REFERENCE TITLE: behavior analysts; committee; licensure; regulation |
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State of Arizona Senate Fifty-third Legislature First Regular Session 2017
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SB 1335 |
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Introduced by Senator Barto
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AN ACT
Amending sections 32‑2061, 32‑2062, 32‑2063, 32‑2064, 32‑2065, 32‑2091, 32‑2091.03, 32‑2091.04, 32‑2091.07, 32‑2091.08, 32‑2091.09, 32‑2091.10, 32‑2091.11 and 32‑2091.14, Arizona Revised Statutes; amending title 32, chapter 19.1, article 4, Arizona Revised Statutes, by adding section 32‑2091.15; relating to the state board of psychologist examiners.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 32-2061, Arizona Revised Statutes, is amended to read:
32-2061. Definitions
In this chapter, unless the context otherwise requires:
1. "Active license" means a valid and existing license to practice psychology.
2. "Adequate records" means records containing, at a minimum, sufficient information to identify the client or patient, the dates of service, the fee for service, the payments for service, the type of service given and copies of any reports that may have been made.
3. "Board" means the state board of psychologist examiners.
4. "Client" means a person or an entity that receives psychological services. A corporate entity, a governmental entity or any other organization may be a client if there is a professional contract to provide services or benefits primarily to an organization rather than to an individual. If an individual has a legal guardian, the legal guardian is the client for decision‑making purposes, except that the individual receiving services is the client or patient for:
(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.
(b) Issues that the guardian agrees to specifically reserve to the individual.
5. "Committee" means the committee on behavior analysts established by section 32‑2091.15.
5. 6. "Exploit" means actions by a psychologist who takes undue advantage of the professional association with a client or patient, a student or a supervisee for the advantage or profit of the psychologist.
6. 7. "Health care institution" means a facility as defined in section 36‑401.
7. 8. "Letter of concern" means an advisory letter to notify a psychologist that while there is insufficient evidence to support disciplinary action the board believes the psychologist should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the psychologist's license.
8. 9. "Patient" means a person who receives psychological services. If an individual has a legal guardian, the legal guardian is the client or patient for decision‑making purposes, except that the individual receiving services is the client or patient for:
(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.
(b) Issues that the guardian agrees to specifically reserve to the individual.
9. 10. "Practice of psychology" means the psychological assessment, diagnosis, treatment or correction of mental, emotional, behavioral or psychological abilities, illnesses or disorders or purporting or attempting to do this consistent with section 32‑2076.
11. "Psychologically incompetent" means a person lacking in sufficient psychological knowledge or skills to a degree likely to endanger the health of clients or patients.
10. 12. "Psychological service" means all actions of the psychologist in the practice of psychology.
12. 13. "Psychologist" means a natural person holding a license to practice psychology pursuant to this chapter.
13. 14. "Supervisee" means any person who functions under the extended authority of the psychologist to provide, or while in training to provide, psychological services.
14. 15. "Telepractice" means providing psychological services through interactive audio, video or electronic communication that occurs between the psychologist and the patient or client, including any electronic communication for diagnostic, treatment or consultation purposes in a secure platform, and that meets the requirements of telemedicine pursuant to section 36‑3602. Telepractice includes supervision.
15. 16. "Unprofessional conduct" includes the following activities whether occurring in this state or elsewhere:
(a) Obtaining a fee by fraud or misrepresentation.
(b) Betraying professional confidences.
(c) Making or using statements of a character tending to deceive or mislead.
(d) Aiding or abetting a person who is not licensed pursuant to this chapter in representing that person as a psychologist.
(e) Gross negligence in the practice of a psychologist.
(f) Sexual intimacies or sexual intercourse with a current client or patient or a supervisee or with a former client or patient within two years after the cessation or termination of treatment. For the purposes of this subdivision, "sexual intercourse" has the same meaning prescribed in section 13‑1401.
(g) Engaging or offering to engage as a psychologist in activities that are not congruent with the psychologist's professional education, training and experience.
(h) Failing or refusing to maintain and retain adequate business, financial or professional records pertaining to the psychological services provided to a client or patient.
(i) Commission of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.
(j) Making a fraudulent or untrue statement to the board or its investigators, staff or consultants.
(k) Violating any federal or state laws or rules that relate to the practice of psychology or to obtaining a license to practice psychology.
(l) Practicing psychology while impaired or incapacitated to the extent and in a manner that jeopardizes the welfare of the client or patient or renders the psychological services provided ineffective.
(m) Using fraud, misrepresentation or deception to obtain or attempt to obtain a psychology license or to pass or attempt to pass a psychology licensing examination or in assisting another person to do so.
(n) Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a psychologist.
(o) Providing services that are unnecessary or unsafe or otherwise engaging in activities as a psychologist that are unprofessional by current standards of practice.
(p) Falsely or fraudulently claiming to have performed a professional service, charging for a service or representing a service as the licensee's own when the licensee has not rendered the service or assumed supervisory responsibility for the service.
(q) Representing activities or services as being performed under the licensee's supervision if the psychologist has not assumed responsibility for them and has not exercised control, oversight and review.
(r) Failing to obtain a client's or patient's informed and written consent to release personal or otherwise confidential information to another party unless the release is otherwise authorized by law.
(s) Failing to make client or patient records in the psychologist's possession promptly available to another psychologist who is licensed pursuant to this chapter on receipt of proper authorization to do so from the client or patient, a minor client's or patient's parent, the client's or patient's legal guardian or the client's or patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.
(t) Failing to take reasonable steps to inform or protect a client's or patient's intended victim and inform the proper law enforcement officials in circumstances where in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm to on another person.
(u) Failing to take reasonable steps to protect a client or patient in circumstances where in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm to on self.
(v) Abandoning or neglecting a client or patient in need of immediate care without making suitable arrangements for continuation of the care.
(w) Engaging in direct or indirect personal solicitation of clients or patients through the use of coercion, duress, undue influence, compulsion or intimidation practices.
(x) Engaging in false, deceptive or misleading advertising.
(y) Exploiting a client or patient, a student or a supervisee.
(z) Failing to report information to the board regarding a possible act of unprofessional conduct committed by another psychologist who is licensed pursuant to this chapter unless this reporting violates the psychologist's confidential relationship with the client or patient pursuant to section 32‑2085. Any psychologist who reports or provides information to the board in good faith is not subject to an action for civil damages. For the purposes of this subdivision, it is not an act of unprofessional conduct if a licensee addresses an ethical conflict in a manner that is consistent with the ethical standards contained in the document entitled "ethical principles of psychologists and code of conduct" as adopted by the American psychological association and in effect at the time the licensee makes the report.
(aa) Violating a formal board order, consent agreement, term of probation or stipulated agreement issued under this chapter.
(bb) Failing to furnish information in a timely manner to the board or its investigators or representatives if requested or subpoenaed by the board as prescribed by this chapter.
(cc) Failing to make available to a client or patient or to the client's or patient's designated representative, on written request, a copy of the client's or patient's record, including raw test data, psychometric testing materials and other information as provided by law.
(dd) Violating an ethical standard adopted by the board.
Sec. 2. Section 32-2062, Arizona Revised Statutes, is amended to read:
32-2062. Board; qualifications; appointments; terms; compensation; immunity
A. The state board of psychologist examiners is established consisting of nine ten members appointed by the governor pursuant to section 38‑211.
B. Each member of the board shall be a citizen of the United States and a resident of this state at the time of appointment. Six seven members shall be licensed pursuant to this chapter, and three shall be public members who are not eligible for licensure. The board shall have at all times, except for the period when a vacancy exists, at least two members who are licensed as psychologists and who are full-time faculty members from universities in this state with a doctoral program in psychology that meets the requirements of section 32-2071, and at least three members who are psychologists in professional practice and at least one member who is a behavior analyst in professional practice and who is a member of the committee. The public members shall not have a substantial financial interest in the health care industry and shall not have a household member who is eligible for licensure under this chapter.
C. Each member shall serve for a term of five years beginning and ending on the third Monday in January.
D. A vacancy on the board occurring other than by the expiration of term shall be filled by appointment by the governor for the unexpired term as provided in subsection C of this section. The governor, after a hearing, may remove any member of the board for misconduct, incompetency or neglect of duty.
E. Board members shall receive compensation in the amount of one hundred dollars for each cumulative eight hours of actual service in the business of the board and reimbursement of all expenses pursuant to title 38, chapter 4, article 2.
F. Members of the board and its employees, consultants and test examiners are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.
Sec. 3. Section 32-2063, Arizona Revised Statutes, is amended to read:
32-2063. Powers and duties
A. The board shall:
1. Administer and enforce this chapter and board rules.
2. Regulate disciplinary actions, the granting, denial, revocation, renewal and suspension of licenses and the rehabilitation of licensees pursuant to this chapter and board rules, except that the board shall delegate all investigations of behavior analysts to the committee.
3. Prescribe the forms, content and manner of application for licensure and renewal of licensure and set deadlines for the receipt of materials required by the board.
4. Keep a record of all licensees, board actions taken on all applicants and licensees and the receipt and disbursal of monies.
5. Adopt an official seal for attestation of licenses and other official papers and documents.
6. Investigate charges of violations of this chapter and board rules and orders, except that the board shall delegate all investigations of behavior analysts to the committe.
7. Subject to title 41, chapter 4, article 4, employ an executive director who serves at the pleasure of the board.
8. Annually elect from among its membership a chairman, a vice‑chairman and a secretary, who serve at the pleasure of the board.
9. Adopt rules pursuant to title 41, chapter 6 to carry out this chapter and to define unprofessional conduct.
10. Engage in a full exchange of information with other regulatory boards and psychological associations, national psychology organizations and the Arizona psychological association and its components.
11. By rule, adopt a code of ethics relating to the practice of psychology. The board shall base this code on the code of ethics adopted and published by the American psychological association. The board shall apply the code to all board enforcement policies and disciplinary case evaluations and development of licensing examinations.
12. Adopt rules regarding the use of telepractice on or before June 30, 2016.
B. Subject to title 41, chapter 4, article 4, the board may employ personnel it deems necessary to carry out this chapter. The board, in investigating violations of this chapter, may employ investigators who may be psychologists. The board or its executive director may take and hear evidence, administer oaths and affirmations and compel by subpoena the attendance of witnesses and the production of books, papers, records, documents and other information relating to the investigation or hearing.
C. Subject to section 35‑149, the board may accept, expend and account for gifts, grants, devises and other contributions, money or property from any public or private source, including the federal government. The board shall deposit, pursuant to sections 35‑146 and 35‑147, monies received pursuant to this subsection in special funds for the purpose specified, and monies in these funds are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
D. Compensation for all personnel shall be determined pursuant to section 38‑611.
Sec. 4. Section 32-2064, Arizona Revised Statutes, is amended to read:
32-2064. Meetings; committees; quorum; behavior analyst member
A. The board shall hold regular quarterly meetings at a time and place determined by the chairman. The board shall hold special meetings the chairman determines necessary to carry out the functions of the board.
B. The chairman may establish committees from the board membership necessary to carry out the functions of the board. The board may establish committees of licensed psychologists to act as consultants to the board. Members of consultant committees are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.
C. A majority of board members constitutes a quorum and a majority vote of a quorum present is necessary for the board to take any action.
D. The behavior analyst who is a member of the board and of the committee on behavior analysts shall be present at the board meeting, either in person or telephonically, when the board votes on an alternate decision to the committee's recommendation pursuant to section 32‑2091.15, subsection F, unless the member has a conflict of interest.
Sec. 5. Section 32-2065, Arizona Revised Statutes, is amended to read:
32-2065. Board of psychologist examiners fund; separate behavior analyst account
A. The board of psychologist examiners fund is established.
B. Except as provided in section 32‑2081 and section 32‑2091.09, subsection J K, pursuant to sections 35‑146 and 35‑147, the board shall deposit ten per cent percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining ninety per cent percent in the board of psychologist examiners fund.
C. All monies deposited in the board of psychologist examiners fund are subject to section 35‑143.01.
D. All monies deposited in the board of psychologist examiners fund pursuant to section 32‑2067 and any monies received pursuant to section 32-2063, subsection C for psychologist licensing and regulation must be used only for the licensing and regulation of psychologists pursuant to this article and articles 2 and 3 of this chapter and may not be used for the licensing and regulation of behavior analysts pursuant to article 4 of this chapter.
E. All monies deposited in the board of psychologist examiners fund pursuant to article 4 of this chapter and any monies received pursuant to section 32‑2063, subsection C for behavior analyst licensing and regulation must be used only for the licensing and regulation of behavior analysts pursuant to article 4 of this chapter and the operation of the committee and may not be used for the licensing and regulation of psychologists pursuant to this article and articles 2 and 3 of this chapter.
F. The board shall establish a separate account in the fund for monies transferred to the fund pursuant to article 4 of this chapter and any monies received pursuant to section 32‑2063, subsection C for behavior analyst licensing and regulation and the operation of the committee.
Sec. 6. Section 32-2091, Arizona Revised Statutes, is amended to read:
32-2091. Definitions
In this article, unless the context otherwise requires:
1. "Active license" means a current license issued by the board to a person who is licensed pursuant to this article.
2. "Adequate records" means records that contain, at a minimum, sufficient information to identify the client, the dates of service, the fee for service, the payments for service and the type of service given and copies of any reports that may have been made.
3. "Behavior analysis" means the design, implementation and evaluation of systematic environmental modifications by a behavior analyst to produce socially significant improvements in human behavior based on the principles of behavior identified through the experimental analysis of behavior. Behavior analysis does not include cognitive therapies or psychological testing, neuropsychology, psychotherapy, sex therapy, psychoanalysis, hypnotherapy and long‑term counseling as treatment modalities.
4. "Behavior analysis services" means the use of behavior analysis to assist a person to learn new behavior, increase existing behavior, reduce existing behavior and emit behavior under precise environmental conditions. Behavior analysis includes services include behavioral programming and behavioral programs.
5. "Behavior analyst" means a person who is licensed pursuant to this article to practice behavior analysis.
6. "Client" means:
(a) A person or entity that receives behavior analysis services.
(b) A corporate entity, a governmental entity or any other organization that has a professional contract to provide services or benefits primarily to an organization rather than to an individual.
(c) An individual's legal guardian for decision making decision‑making purposes, except that the individual is the client for issues that directly affect the individual's physical or emotional safety and issues that the legal guardian agrees to specifically reserve to the individual.
7. "Exploit" means an action by a behavior analyst who takes undue advantage of the professional association with a client, student or supervisee for the advantage or profit of the behavior analyst.
8. "Health care institution" means a facility that is licensed pursuant to title 36, chapter 4, article 1.
9. "Incompetent as a behavior analyst" means that a person who is licensed pursuant to this article 4 of this chapter lacks the knowledge or skills of a behavior analyst to a degree that is likely to endanger the health of a client.
10. "Letter of concern" means an advisory letter to notify a licensee that while there is insufficient evidence to support disciplinary action the board believes the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the license.
11. "Supervisee" means a person who acts under the extended authority of a behavior analyst to provide behavioral behavior analysis services and includes a person who is in training to provide these services.
12. "Unprofessional conduct" includes the following activities, whether occurring in this state or elsewhere:
(a) Obtaining a fee by fraud or misrepresentation.
(b) Betraying professional confidences.
(c) Making or using statements of a character tending to deceive or mislead.
(d) Aiding or abetting a person who is not licensed pursuant to this article in representing that person as a behavior analyst.
(e) Gross negligence in the practice of a behavior analyst.
(f) Sexual intimacies or sexual intercourse with a current client or a supervisee or with a former client within two years after the cessation or termination of treatment. For the purposes of this subdivision, "sexual intercourse" has the same meaning prescribed in section 13-1401.
(g) Engaging or offering to engage as a behavior analyst in activities that are not congruent with the behavior analyst's professional education, training and experience.
(h) Failing or refusing to maintain and retain adequate business, financial or professional records pertaining to the behavior analysis services provided to a client.
(i) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.
(j) Making a fraudulent or untrue statement to the board or its investigators, staff or consultants.
(k) Violating any federal or state law that relates to the practice of behavior analysis or to obtain a license to practice behavior analysis.
(l) Practicing behavior analysis while impaired or incapacitated to the extent and in a manner that jeopardizes the welfare of a client or renders the services provided ineffective.
(m) Using fraud, misrepresentation or deception to obtain or attempt to obtain a behavior analysis license or to pass or attempt to pass a behavior analysis licensing examination or in assisting another person to do so.
(n) Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a behavior analyst.
(o) Providing services that are unnecessary or unsafe or otherwise engaging in activities as a behavior analyst that are unprofessional by current standards of practice.
(p) Falsely or fraudulently claiming to have performed a professional service, charging for a service or representing a service as the licensee's own if the licensee has not rendered the service or assumed supervisory responsibility for the service.
(q) Representing activities or services as being performed under the licensee's supervision if the behavior analyst has not assumed responsibility for them and has not exercised control, oversight and review.
(r) Failing to obtain a client's informed and written consent to release personal or otherwise confidential information to another party unless the release is otherwise authorized by law.
(s) Failing to make client records in the behavior analyst's possession promptly available to another behavior analyst on receipt of proper authorization to do so from the client, a minor client's parent, the client's legal guardian or the client's authorized representative or failing to comply with title 12, chapter 13, article 7.1.
(t) Failing to take reasonable steps to inform or protect a client's intended victim and inform the proper law enforcement officials if the behavior analyst becomes aware during the course of providing or supervising behavior analysis services that a client intends or plans to inflict serious bodily harm on another person.
(u) Failing to take reasonable steps to protect a client if the behavior analyst becomes aware during the course of providing or supervising behavior analysis services that a client intends or plans to inflict serious bodily harm on self.
(v) Abandoning or neglecting a client in need of immediate care without making suitable arrangements for continuation of the care.
(w) Engaging in direct or indirect personal solicitation of clients through the use of coercion, duress, undue influence, compulsion or intimidation practices.
(x) Engaging in false, deceptive or misleading advertising.
(y) Exploiting a client, student or supervisee.
(z) Failing to report information to the board or the committee regarding a possible act of unprofessional conduct committed by another behavior analyst who is licensed pursuant to this article unless this reporting violates the behavior analyst's confidential relationship with a client pursuant to this article. A behavior analyst who reports or provides information to the board or the committee in good faith is not subject to an action for civil damages.
(aa) Violating a formal board order, consent agreement, term of probation or stipulated agreement issued under this article.
(bb) Failing to furnish information in a timely manner to the board or the committee or its their investigators or representatives if requested or subpoenaed by the board as prescribed by this article.
(cc) Failing to make available to a client or to the client's designated representative, on written request, a copy of the client's record, excluding raw test data, psychometric testing materials and other information as provided by law.
(dd) Violating an ethical standard adopted by the board.
(ee) Representing oneself as a psychologist or permitting others to do so if the behavior analyst is not also licensed as a psychologist pursuant to this chapter.
Sec. 7. Section 32-2091.03, Arizona Revised Statutes, is amended to read:
32-2091.03. Educational and training standards for licensure
An applicant for licensure as a behavior analyst must meet standards adopted by the state board of psychologist examiners, including meeting graduate level graduate‑level education and supervised experience requirements and passing a national examination. The state board of psychologist examiners, on the committee's recommendation, shall adopt standards consistent with the standards set by a nationally recognized behavior analyst certification board, except that the number of hours required for supervised experience must be at least one thousand five hundred hours of supervised work experience or independent fieldwork, university practicum or intensive university practicum. The standards adopted for supervised experience must also be consistent with the standards set by a nationally recognized behavior analyst certification board. If the state board of psychologist examiners, on the committee's recommendation, does not agree with a standard set by a nationally recognized behavior analyst certification board, the state board, on the committee's recommendation, may adopt an alternate standard.
Sec. 8. Section 32-2091.04, Arizona Revised Statutes, is amended to read:
32-2091.04. Reciprocity
The board, on the committee's recommendation, may issue a license to a person as a behavior analyst if the person is licensed or certified by a regulatory agency of another state that imposes requirements that are substantially equivalent to those imposed by this article at an equivalent or higher practice level as determined by the board committee, pays the fee prescribed by the board and meets all of the following requirements:
1. Submits a written application prescribed by the board.
2. Is of good moral character. The board's standard to determine good moral character shall not violate federal discrimination laws.
3. Documents to the board's committee's satisfaction proof of initial licensure or certification at an equivalent designation for which the applicant is seeking licensure in this state and proof that the license or certificate is current and in good standing.
4. Documents to the board's committee's satisfaction proof that any other license or certificate issued to the applicant by another state has not been suspended or revoked. If a licensee or certificate holder has been subjected to any other disciplinary action, the board committee may assess the magnitude of that action and make a decision regarding reciprocity based on this assessment.
5. Meets any other requirements prescribed by the board by rule.
Sec. 9. Section 32-2091.07, Arizona Revised Statutes, is amended to read:
32-2091.07. Active license; issuance; renewal; expiration; continuing education
A. Beginning May 1, 2017, if the applicant satisfies all of the requirements for licensure pursuant to this article, the board, on the committee's recommendation, shall issue an active license and shall prorate the fee for issuing that license for the period remaining until the last day of the birth month of the applicant of the next odd‑numbered year or even‑numbered year pursuant to subsection B, paragraph 1 or 2 of this section.
B. Beginning May 1, 2017, a person holding an active or inactive license shall apply to renew the license on or before the last day of the birth month of the licensee every other year as follows:
1. In each odd‑numbered year, if the licensee holds an odd‑numbered license.
2. In each even‑numbered year, if the licensee holds an even‑numbered license.
C. The application shall include any applicable renewal fee as prescribed by the board by rule. Except as provided in section 32‑4301 or 41‑1092.11, a license expires if the licensee fails to renew the license on or before the last day of the licensee's birth month of the licensee's renewal year pursuant to subsection B of this section. A licensee may reinstate an expired license by paying a reinstatement fee as prescribed by the board by rule within two months after the last day of the licensee's birth month of that year. Beginning two months after the last day of the licensee's birth month during the licensee's renewal year until the last day of the licensee's birth month the following year, a licensee may reinstate the license by paying a reinstatement fee as prescribed by the board by rule and providing proof of competency and qualifications to the board committee. This proof may include continuing education, an oral examination, a written examination or an interview with the board committee. A licensee whose license is not reinstated within a year after the last day of the licensee's birth month of the licensee's renewal year may reapply for licensure as prescribed by this article. A notice to renew is fully effective by mailing or electronically providing the notice to the licensee's last known address of record or last known e-mail address of record in the board's file. Notice is complete at the time of deposit in the mail or when the e-mail is sent.
D. A person renewing a license shall attach to the completed renewal form a report of disciplinary actions or restrictions placed against the license by another state licensing or disciplinary board or disciplinary actions or sanctions imposed by a state or national behavior analysis ethics committee or health care institution. The report shall include the name and address of the sanctioning agency or health care institution, the nature of the action taken and a general statement of the charges leading to the action.
E. A person who renews an active license to practice behavior analysis in this state shall satisfy a continuing education requirement designed to provide the necessary understanding of current developments, skills, procedures or treatment related to the practice of behavior analysis in the amount and during the period the board prescribes, as recommended by the committee. The board shall prescribe documentation requirements.
Sec. 10. Section 32-2091.08, Arizona Revised Statutes, is amended to read:
32-2091.08. Exemptions from licensure
A. This article does not limit the activities, services and use of a title by the following:
1. A behavior analyst who is employed in a common school, high school or charter school setting and who is certified to use that title by the department of education if the services or activities are a part of the duties of that person's common school, high school or charter school employment.
2. An employee of a government agency in a subdoctorate position who uses the word "assistant" or "associate" after the title and who is supervised by a doctorate position employee who is licensed as a behavior analyst, including a temporary licensee.
3. A matriculated graduate student, or a trainee whose activities are part of a defined behavior analysis program of study, practicum, intensive practicum or supervised independent fieldwork. The practice under this paragraph requires direct supervision consistent with the standards set by a nationally recognized behavior analyst certification board, as determined by the state board of psychologist examiners on the committee's recommendation. A student or trainee may not claim to be a behavior analyst and must use a title that clearly indicates the person's training status, such as "behavior analysis student" or "behavior analysis trainee".
4. A person who resides outside of this state and who is currently licensed or certified as a behavior analyst in that state if the activities and services conducted in this state are within the behavior analyst's customary area of practice, do not exceed twenty days per year and are not otherwise in violation of this article and the client, public or consumer is informed of the limited nature of these activities and services and that the behavior analyst is not licensed in this state.
5. A person in the employ of Arizona state university, northern Arizona university, the university of Arizona or another regionally accredited university in this state if the services are a part of the faculty duties of that person's salaried position and the person is participating in a graduate program.
6. A noncredentialed individual who delivers applied behavior analysis services under the extended authority and direction of a licensed behavior analyst. The individual may not claim to be a professional behavior analyst and must use a title indicating the person's nonprofessional status, such as "ABA technician", "behavior technician" or "tutor".
B. This article does not prevent a member of other recognized professions who is licensed, certified or regulated under the laws of this state from rendering services within that person's scope of practice and code of ethics if that person does not claim to be a behavior analyst.
Sec. 11. Section 32-2091.09, Arizona Revised Statutes, is amended to read:
32-2091.09. Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice requirements; civil penalty
A. The board committee on its own motion may investigate evidence that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. A health care institution shall, and any other person may, report to the board committee information that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. The board committee shall notify the licensee about whom information has been received as to the content of the information within one hundred twenty days after receiving the information. A person who reports or provides information to the board committee in good faith is not subject to an action for civil damages. The board committee, if requested, shall not disclose the name of the person providing information unless this information is essential to proceedings conducted pursuant to this section. The board committee shall report a health care institution that fails to report as required by this section to the institution's licensing agency.
B. The board and committee shall not consider a complaint against a behavior analyst arising out of a judicially ordered evaluation of a person charged with violating any provision of title 13, chapter 14 to present a charge of unprofessional conduct unless the court ordering the evaluation has found a substantial basis to refer the complaint for consideration by the board committee. The board shall not consider a complaint against a judicially appointed behavior analyst arising out of a court ordered evaluation of a person to present a charge of unprofessional conduct unless the court ordering the evaluation has found a substantial basis to refer the complaint for consideration by the board.
C. A claim of unprofessional conduct that is brought against a behavior analyst on or after the effective date of this amendment to this section and that arises out of court-ordered services shall be independently reviewed by three members of the committee, including a public member. Each of the three committee members who review the claim shall independently provide to the board's executive director a recommendation indicating whether the member believes there is merit to open an investigation. If one or more of the committee members determine that there is merit to open an investigation as a complaint, an investigation shall be opened and shall follow the complaint process pursuant to this article.
C. D. A health care institution shall inform the board committee if the privileges of a licensee to practice in that institution are denied, revoked, suspended or limited because of actions by the licensee that appear to show that the person is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis, along with a general statement of the reasons that led the health care institution to take this action. A health care institution shall inform the board committee if a licensee under investigation resigns the licensee's privileges or if a licensee resigns in lieu of disciplinary action by the health care institution. Notification must include a general statement of the reasons for the resignation.
D. E. The board, on the committee's recommendation, may require the licensee to undergo any combination of mental, physical or psychological competence examinations at the licensee's expense, and the committee shall conduct investigations necessary to determine the competence and conduct of the licensee.
E. F. The chairperson of the board shall appoint a complaint screening committee of at least three members of the board, including a public member. The complaint screening committee is subject to open meeting requirements pursuant to title 38, chapter 3, article 3.1. The complaint screening committee shall review all complaints and, based on the information provided pursuant to subsection A or B D of this section, may take either of the following actions:
1. Dismiss the complaint if the committee determines that the complaint is without merit. Complaints dismissed by the complaint screening committee shall not be disclosed in response to a telephone inquiry or placed on the board's website.
2. Refer Review and investigate the complaint and make a recommendation to the full board for further review and formal action.
F. G. If the board finds, on the committee's recommendation and based on the information it the committee receives under subsection A or B D of this section, that the public health, safety or welfare requires emergency action, the board, on the committee's recommendation, may order a summary suspension of a license pending proceedings for revocation or other action. If the board issues this order, it shall serve the licensee with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10, setting forth the charges made against the licensee and the licensee's right to a formal hearing before the board or an administrative law judge within sixty days.
G. H. If the board finds, on the committee's recommendation, that the information provided pursuant to subsection A or B D of this section is not of sufficient seriousness to merit direct action against the licensee, it the board, on the committee's recommendation, may take any of the following actions:
1. Dismiss if the board believes the information is without merit.
2. File a letter of concern.
3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board, on the committee's recommendation, to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.
H. I. If the board committee believes the information provided pursuant to subsection A or C D of this section is or may be true, it the committee may request an informal interview with the licensee. If the licensee refuses to be interviewed or if pursuant to an interview the board committee determines that cause may exist to revoke or suspend the license, it the committee shall recommend to the board and the board shall issue a formal complaint and hold a hearing pursuant to title 41, chapter 6, article 10. If as a result of an informal interview or a hearing the board, on the committee's recommendation, determines that the facts do not warrant revocation or suspension of the license, it the board may take any of the following actions on the committee's recommendation:
1. Dismiss if the board believes the information is without merit.
2. File a letter of concern.
3. Issue a decree of censure.
4. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee. Probation may include temporary suspension for not more than twelve months, restriction of the license or restitution of fees to a client resulting from violations of this article. If a licensee fails to comply with a term of probation, the board, on the committee's recommendation, may file a complaint and notice of hearing pursuant to title 41, chapter 6, article 10 and take further disciplinary action.
5. Enter into an agreement with the licensee to restrict or limit the licensee's practice or activities in order to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of behavior analysis.
6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board, on the committee's recommendation, to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.
I. J. If the board, on the COMMITTEE'S RECOMMENDATION, finds that the information provided pursuant to subsection A or B D of this section warrants suspension or revocation of a license, it the board shall hold a hearing pursuant to title 41, chapter 6, article 10. Notice of a complaint and hearing is fully effective by mailing a true copy to the licensee's last known address of record in the board's files. Notice is complete at the time of its deposit in the mail.
J. K. The board, on the committee's recommendation, may impose a civil penalty of at least three hundred dollars but not more than three thousand dollars for each violation of this article or a rule adopted under this article. The board shall deposit, pursuant to sections 35‑146 and 35‑147, all monies it collects from civil penalties pursuant to this subsection in the state general fund.
K. L. If the board determines, on the committee's recommendation and after the committee has held a hearing, that a licensee has committed an act of unprofessional conduct, is mentally or physically unable to safely engage in the practice of behavior analysis or is incompetent as a behavior analyst, it the board may do any of the following in any combination and for any period of time it the board determines necessary, on the committee's recommendation:
1. Suspend or revoke the license.
2. Censure the licensee.
3. Place the licensee on probation.
L. M. A licensee may submit a written response to the board within thirty days after receiving a letter of concern. The response is a public document and shall be placed in the licensee's file.
M. N. A letter of concern is a public document and may be used in future disciplinary actions against a licensee. A decree of censure is an official action against the behavior analyst's license and may include a requirement that the licensee return fees to a client.
N. O. Except as provided in section 41‑1092.08, subsection H, a person may appeal a final decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.
O. P. If during the course of an investigation the board or committee determines that a criminal violation may have occurred involving the delivery of behavior analysis services, it the board or committee shall inform the appropriate criminal justice agency.
Sec. 12. Section 32-2091.10, Arizona Revised Statutes, is amended to read:
32-2091.10. Right to examine and copy evidence; subpoenas; right to counsel; confidentiality
A. In connection with an investigation conducted pursuant to this article, at all reasonable times the board and committee and its their authorized agents may examine and copy documents, reports, records and other physical evidence wherever located relating to the licensee's professional competence, unprofessional conduct or mental or physical ability to safely practice behavior analysis.
B. The board, on the committee's recommendation, and its authorized agents may issue subpoenas to compel the attendance and testimony of witnesses and the production of documents and other physical evidence as prescribed in subsection A of this section. The board may petition the superior court to enforce a subpoena.
C. Within five days of after receiving a subpoena, a person may petition the board to revoke, limit or modify the subpoena. The board shall take this action if it determines, on the committee's recommendation, that the evidence demanded is not relevant to the investigation. The person may petition the superior court for this relief without first petitioning the board.
D. A person appearing before the board or committee or its authorized agents may be represented by an attorney.
E. Documents associated with an investigation are not open to the public and shall remain confidential. Documents may not be released without a court order compelling their production.
F. This section or any other provision of law making communications between a behavior analyst and client privileged does not apply to an investigation conducted pursuant to this article. The board, its and committee and their employees and its agents shall keep in confidence the names of clients whose records are reviewed during an investigation.
Sec. 13. Section 32-2091.11, Arizona Revised Statutes, is amended to read:
32-2091.11. Injunction
A. The board, on the committee's recommendation, may petition the superior court for an order to enjoin the following:
1. A person who is not licensed pursuant to this article from practicing behavior analysis.
2. The activities of a licensee that are an immediate threat to the public.
3. Criminal activities.
B. If the board seeks an injunction to stop the unlicensed practice of behavior analysis, it is sufficient to charge that the respondent on a certain day in a specific county engaged in the practice of behavior analysis without a license and without being exempt from the licensure requirements of this article. It is not necessary to show specific damages or injury.
C. The issuance of an injunction does not limit the board's or committee's authority to take other action against a licensee pursuant to this article.
Sec. 14. Section 32-2091.14, Arizona Revised Statutes, is amended to read:
32-2091.14. Status as behavioral health professional
Notwithstanding any law to the contrary, the department of health services Arizona health care cost containment system administration shall recognize a behavior analyst who is licensed pursuant to this article as a behavioral health professional who is eligible for reimbursement of services.
Sec. 15. Title 32, chapter 19.1, article 4, Arizona Revised Statutes, is amended by adding section 32-2091.15, to read:
32-2091.15. Committee on behavior analysts; membership; duties; board responsibilities
A. The committee on behavior analysts is established within the state board of psychologist examiners consisting of five members who are appointed by the governor and who serve at the pleasure of the governor. Each member shall serve for a term of five years beginning and ending on the third Monday in January. A committee member may not serve more than two full consecutive terms.
B. Four members of the committee shall be licensed behavior analysts in professional practice and one member shall represent the public. the public member may not be a current or former licensee of any behavioral health‑related profession. The public member may not have a financial interest in any entity that provides behavioral health‑related services. The committee shall annually elect a chairperson from among its membership.
C. within one year after their initial appointment to the committee, members shall receive at least five hours of training prescribed by the board that includes instruction in ethics and open meeting requirements.
D. committee members shall receive reimbursement of all expenses pursuant to title 38, chapter 4, article 2.
E. The committee shall make recommendations to the board on all matters relating to the licensing and regulation of behavior analysts. The committee may recommend regulatory changes to the board that are not specific to an individual licensee, but the committee shall obtain public input from behavior analyst licensees or their designated representatives before making any final recommendation to the board.
F. The board shall ratify or reject the committee's recommendations. the board may reject the committee's recommendation and render an alternate decision only if either:
1. The board receives advice from the attorney general that the committee's recommendation contradicts the requirements of a state or federal law or rule.
2. The committee's recommendation would require the board to exceed the board's fiscal year appropriation.
G. The behavior analyst who is a member of the board and of the committee shall be present at the board meeting, either in person or telephonically, when the board votes on an alternate decision to the committee's recommendation pursuant to subsection F of this section, unless the member has a conflict of interest.
Sec. 16. Initial terms of the committee on behavior analysts
A. Notwithstanding section 32‑2091.15, Arizona Revised Statutes, as added by this act, the initial terms of the members of the committee on behavior analysts are:
1. One term ending January 1, 2021.
2. Two terms ending January 1, 2022.
3. Two terms ending January 1, 2023.
B. The governor shall make all subsequent appointments as prescribed by statute.