PROPOSED RULEMAKING
STATE BOARD
OF MEDICINE
[ 49 PA. CODE CHS. 16 AND 18 ]
Behavior Specialist
[40 Pa.B. 884]
[Saturday, February 13, 2010]The State Board of Medicine (Board) proposes to amend §§ 16.11 and 16.13 (relating to licenses, certificates and registrations; and licensure, certification, examination and registration fees) and to add §§ 18.521—18.527 (relating to behavior specialists), to read as set forth in Annex A.
Effective date
The amendments will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
The amendments are authorized under sections 8 and 25 of the Medical Practice Act of 1985 (act) (63 P. S. §§ 422.8 and 422.25) and under section 635.2(g) of The Insurance Company Law of 1921 (Insurance Law) (40 P. S. § 764h(g)).
Background and Need for the Amendment
Section 3 of the act of July 9, 2008 (P. L. 885, No. 62) amended the Insurance Law to provide for autism spectrum disorders coverage. In general, an insurer is required to provide covered individuals under 21 years of age coverage for the diagnostic assessment and treatment of autism spectrum disorders. An insurer shall contract with and accept as a participating provider any autism service provider that is licensed or certified in this Commonwealth. Section 635.2(g)(1) of the Insurance Law requires the Board, in consultation with the Department of Public Welfare, to promulgate regulations to provide for licensure or certification of behavior specialists. Section 635.2(f)(4) of the Insurance Law defines ''behavior specialist'' as ''an individual who designs, implements or evaluates a behavior modification intervention component of a treatment plan, including those based on applied behavior analysis, to produce socially significant improvements in human behavior or to prevent loss of attained skill or function, through skill acquisition and the reduction of problematic behavior.'' This proposed rulemaking would implement certification of behavior specialists under the Insurance Law as amended.
Description of the Proposed Amendments
The Board's regulation in § 16.11(b) identifies those nonmedical doctor licenses and certificates that the Board issues, and in § 16.11(c) identifies those registrations that the Board issues. The proposed rulemaking would first add to § 16.11(b) certification as behavior specialist and add to § 16.11(c) biennial registration of behavior specialist certification. The proposed rulemaking would also add § 16.13(k) to set forth the fees associated with behavior specialist certification to be charged by the Board. To recover the costs of processing those applications, the fee for initial application for certification as behavior specialist and for reactivation of a previously-issued behavior specialist certification would each be $70. To provide for an appropriate share of the general costs of operating the Board, the renewal fee for a behavior specialist would be $75.
The proposed rulemaking would add Subchapter I. Proposed § 18.521 (relating to purpose) would identify the purpose of the subchapter as providing for the certification of behavior specialists. Proposed § 18.522 (relating to definitions) would provide the statutory definitions of ''applied behavioral analysis,'' ''autism spectrum disorders,'' ''behavior specialist,'' and ''diagnostic assessment of autism spectrum disorders'' as used in the subchapter.
Proposed § 18.523 (relating to application for certification as behavior specialist) would address the application for certification as a behavior specialist. Under proposed § 18.523(a), an applicant shall submit a completed application form, including any necessary supporting documents, and pay the required application fee. Section 635.2(g)(2) of the Insurance Law sets five criteria for certification as a behavior specialist, and as discussed within this preamble, these are identified in proposed § 18.524 (relating to criteria for certification as behavior specialist). Accordingly, proposed § 18.523(b) provides that the Board will certify as a behavior specialist an applicant who demonstrates that the applicant satisfies the requirements of section 635.2(g)(2) of the Insurance Law for certification as a behavior specialist as set forth in § 18.524. Because as discussed within this preamble the Board is also setting forth in its proposed rulemaking grounds for disciplinary action in proposed § 18.527 (relating to disciplinary action for behavior specialist), proposed § 18.523(c) provides that the Board may deny an application for certification as behavior specialist upon those grounds for disciplinary action. Also, section 635.2(g)(3) of the Insurance Law prohibits the Board from certifying an applicant who has been convicted of a drug felony unless it has been at least 10 years, the applicant has demonstrated significant progress in personal rehabilitation since the conviction that certification should not be expected to create a substantial risk of harm to the health and safety of patients or the public or a substantial risk of further criminal violations, and the applicant otherwise satisfies the requirements for certification. Accordingly, proposed § 18.523(d) provides that the Board will not grant certification unless these requirements have been met.
The five criteria for certification as a behavior specialist set forth in section 635.2(g)(2) of the Insurance Law are: good moral character; receipt of a master's or higher degree in school, clinical or counseling psychology, special education, social work, speech therapy, occupational therapy or another related field; at least 1 year of experience involving functional behavior assessments, including development and implementation of behavioral supports or treatment plans; at least 1,000 hours in direct clinical experience with individuals with behavioral challenges or at least 1,000 hours experience in a related field with individuals with autism spectrum disorders; and completion of relevant training programs, including professional ethics, autism-specific training, assessments training, instructional strategies and best practices, crisis intervention, comorbidity and medications, family collaboration and addressing specific skill deficits training. Accordingly, proposed § 18.524 recites these criteria (other than good moral character) in subsections (a)—(d).
Because all licenses and certifications issued by the Board within the Bureau of Professional and Occupational Affairs expire after 2 years and must be renewed biennially, proposed § 18.525 (relating to renewal of certification as behavior specialist) addresses renewal of certification as behavior specialist. Proposed § 18.525(a) provides that all behavior specialist certifications expire December 31 of each even-numbered year, the expiration date for all other licenses and certifications issued by the Board. Proposed § 18.525(b) provides that the Board will forward to the certificateholder's last known address on file with the Board those biennial renewal forms and other forms and literature that are to be distributed to certificateholders. In addition to paper applications for renewal, the Board now permits online renewal for its existing Board-regulated practitioners. Under proposed § 18.525(c), a certificateholder must renew the certification in the manner provided by the Board, that is either online or by paper application, and pay the required renewal fee by the expiration date to renew the certification. As part of that renewal process, proposed § 18.525(d) requires the certificateholder to fully answer all questions and pay the required fee.
Proposed § 18.526 (relating to inactive status of certification as behavior specialist) addresses inactive status of behavior specialist certification. Proposed § 18.526(a) provides that certification may become inactive either by the certificateholder's request or by expiration at the end of the biennial renewal period. To minimize the opportunity or consequence of a certificate being incorrectly placed on inactive status at what appears to be the request of the certificateholder, proposed § 18.526(a)(1) provides that the Board will provide written notice to the certificate- holder. Proposed § 18.526(c) provides the general requirement for reactivation of an inactive certification as behavior specialist that the certificate holder must apply on forms supplied by the Board, answer all questions fully, and pay the required fee. Throughout the Bureau of Professional and Occupational Affairs, whenever a license has expired and has not yet been reactivated, the holder may not continue to practice until the license is reactivated prospectively. This rulemaking breaks with that practice for behavior specialists. The purpose of amending the Insurance Law to provide for behavior specialists was to increase the availability of diagnostic assessment and treatment of autism spectrum disorders by providing that insurance companies must pay for those services when provided by licensed or certified persons. The Insurance Law has no prohibition on practice as a behavior specialist by one not certified by the Board. Accordingly, proposed § 18.526(b) provides only that a behavior specialist whose certificate is inactive is not considered to be a certificate holder unless the certificate has been reactivated retroactively. The obvious consequence is that an insurance company need not reimburse the behavior specialist for services provided during the period that the certificate was inactive. However, because the purpose is to increase the availability of services by allowing behavior specialists to be paid by insurance companies, the Board proposes to permit a behavior specialist to retroactively reactivate certification as provided in proposed § 18.526(d). Under that proposed section, in addition to the requirements of subsection (c), the behavior specialist must pay the renewal fee for past renewal periods and a late fee of $5 per month. This late fee is the standard late renewal fee of section 225 of the Bureau of Professional and Occupational Affairs Fee Act (63 P. S. § 1401-225).
Finally, proposed § 18.527 (relating to disciplinary action for certified behavior specialist) addresses disciplinary action. Section 635.2(g)(1) of the Insurance Law provides that a certified behavior specialist is subject to all disciplinary provisions applicable to medical doctors under the act. Section 41 of the act (63 P. S. § 422.41) authorizes the Board to take disciplinary action against a medical doctor based upon any of a list of grounds, including unprofessional conduct. In § 16.61 (relating to unprofessional conduct), the Board has previously set forth examples of ''unprofessional conduct'' for which disciplinary action may be taken against a medical doctor. Accordingly, proposed § 18.527 provides that the Board may impose any corrective action of section 42 of the act (63 P. S. § 422.42) upon a certified behavior specialist who has committed any act for which the Board would be authorized to take disciplinary action against a medical doctor under section 41 of the act.
Fiscal Impact and Paperwork Requirements
The proposed amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The amendments will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 2, 2010, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final-form publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, or e-mail st-medicine@state.pa.us, within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-4929 (behavior specialist), when submitting comments.
OLLICE BATES, Jr., M.D.,
ChairpersonFiscal Note: 16A-4929. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 16. STATE BOARD OF
MEDICINE— GENERAL PROVISIONS
Subchapter B. GENERAL LICENSE, CERTIFICATION AND REGISTRATION PROVISIONS § 16.11. Licenses, certificates and registrations.
* * * * * (b) The following nonmedical doctor licenses and certificates are issued by the Board:
* * * * * (6) Certification as behavior specialist.
(c) The following registrations are issued by the Board:
* * * * * (12) Biennial registration of a behavior specialist certification.
§ 16.13. Licensure, certification, examination and registration fees.
* * * * * (k) Behavior Specialist Certification:
Application for certification as behavior
specialist $ 70Biennial renewal of behavior specialist
certification $ 75Application for reactivation of behavior
specialist certification $ 70
CHAPTER 18. STATE BOARD OF MEDICINE—PRACTITIONERS OTHER THAN MEDICAL DOCTORS (Editor's Note: The following subchapter is new and has been printed in regular type to enhance readability.)
Subchapter I. BEHAVIOR SPECIALISTS § 18.521. Purpose.
This subchapter implements section 635.2(g) of The Insurance Company Law of 1921 (40 P. S. § 764h(g)), as amended by section 3 of the act of July 9, 2008 (P. L. 885, No. 62) to provide for the certification of behavior specialists.
§ 18.522. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Applied behavioral analysis—As defined in section 635.2(f)(1) of The Insurance Company Law of 1921 (40 P. S. § 764h(f)(1)), the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior or to prevent loss of attained skill or function, including the use of direct observation, measurement and functional analysis of the relations between environment and behavior.
Autism spectrum disorders—As defined in section 635.2(f)(3) of The Insurance Company Law of 1921, any of the pervasive developmental disorders defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), or its successor, including autistic disorder, Asperger's disorder and pervasive developmental disorder not otherwise specified.
Behavior specialist—As defined in section 635.2(f)(4) of The Insurance Company Law of 1921, an individual who designs, implements or evaluates a behavior modification intervention component of a treatment plan, including those based on applied behavioral analysis, to produce socially significant improvements in human behavior or to prevent loss of attained skill or function, through skill acquisition and the reduction of problematic behavior.
Diagnostic assessment of autism spectrum disorders—As defined in section 635.2(f)(5) of The Insurance Company Law of 1921, medically necessary assessments, evaluations or tests performed by a licensed physician, licensed physician assistant, licensed psychologist or certified registered nurse practitioner to diagnose whether an individual has an autism spectrum disorder.
§ 18.523. Application for certification as behavior specialist.
(a) An applicant for certification as a behavior specialist shall submit, on forms supplied by the Board, a completed application, including all necessary supporting documents, for certification as a behavior specialist and pay the fee in § 16.13(k) (relating to licensure, certification, examination and registration fees) for application for certification as behavior specialist.
(b) Except as otherwise provided in subsections (c) and (d), the Board will certify as a behavior specialist an applicant who demonstrates that the applicant satisfies the requirements of section 635.2(g)(2) of The Insurance Company Act of 1921 (40 P. S. § 764h(g)(2)) for registration as a behavior specialist, as provided in § 18.524 (relating to criteria for certification as behavior specialist), and otherwise complies with this subchapter.
(c) The Board may deny an application for certification as a behavior specialist upon the grounds for disciplinary action as set forth in § 18.527 (relating to disciplinary action for certified behavior specialist).
(d) The Board will not grant an application for certification as a behavior specialist of an applicant who has been convicted of a felony offense as provided in section 635.2(g)(3) of The Insurance Company Act of 1921, unless at least 10 years have elapsed from the date of conviction and the applicant has satisfactorily demonstrated to the Board that the applicant has made significant progress in personal rehabilitation since the conviction that licensure of the applicant should not be expected to create a substantial risk of harm to the health and safety of the applicant's patients or the public or a substantial risk of further criminal violations.
§ 18.524. Criteria for certification as behavior specialist.
(a) As required under section 635.2(g)(2)(ii) of The Insurance Company Act of 1921 (40 P. S. § 764h(g)(2)(ii)), an applicant for certification as a behavior specialist shall have received a master's or higher degree from a Board-approved, accredited college or university, including a major course of study in school, clinical or counseling psychology, special education, social work, speech therapy, occupational therapy or another related field.
(b) As required under section 635.2(g)(2)(iii) of The Insurance Company Act of 1921, an applicant for certification as a behavior specialist shall have at least 1 year of experience involving functional behavior assessments, including the development and implementation of behavioral supports or treatment plans.
(c) As required under section 635.2(g)(2)(iv) of The Insurance Company Act of 1921, an applicant for certification as a behavior specialist shall have completed at least 1,000 hours in direct clinical experience with individuals with behavioral challenges or at least 1,000 hours of experience in a related field with individuals with autism spectrum disorders.
(d) As required under section 635.2(g)(2)(v) of The Insurance Company Act of 1921, an applicant for certification as a behavior specialist shall have completed relevant training programs, including professional ethics, autism-specific training, assessments training, instructional strategies and best practices, crisis intervention, comorbidity and medications, family collaboration, and addressing specific skill deficits training.
§ 18.525. Renewal of certification as behavior specialist.
(a) A certification issued under this subchapter expires on December 31 of the even-numbered year unless renewed for the next biennium.
(b) Biennial renewal forms and other forms and literature to be distributed by the Board will be forwarded to the last address on file with the Board.
(c) To retain certification as a behavior specialist, the certificateholder shall renew certification in the manner prescribed by the Board and pay the required biennial renewal fee specified in § 16.13(k) (relating to licensure, certification, examination and registration fees) prior to the expiration of the current biennium.
(d) To renew certification as a behavior specialist, the certificateholder shall apply on forms supplied by the Board, fully answer all questions, and pay the current renewal fee specified in § 16.13(k).
§ 18.526. Inactive status of certification as behavior specialist.
(a) Certification as a behavior specialist will become inactive upon either of the following:
(1) The certificateholder in writing affirmatively requests the Board to place certification on inactive status. Written confirmation of inactive status will be forwarded to the certificate holder.
(2) The certificateholder fails to renew the certificate by the expiration of the renewal period.
(b) Unless reactivated retroactively as provided for in this section, a person previously certified as a behavior specialist is not considered to be a certificateholder during any period when the certification was inactive.
(c) To reactivate an inactive certification, the certificateholder shall apply on forms supplied by the Board, answer all questions fully, and pay the current renewal fee, if not previously paid, and the reactivation application fee specified in § 16.13(k) (relating to licensure, certification, examination and registration fees).
(d) A certificateholder may reactivate an expired certification retroactive to the beginning of the current or a previous biennial renewal period by complying with subsection (c) and paying the renewal fee for each previous biennial renewal period and a late fee of $5 per month for each month or part of month that the certificate was expired subsequent to the retroactive effective date of reactivation.
§ 18.527. Disciplinary action for certified behavior specialist.
Under section 635.2(g)(1) of The Insurance Company Act of 1921 (40 P. S. § 764h(g)(1)), a certificateholder is subject to all disciplinary provisions applicable to medical doctors as set forth in the act. Following a final determination subject to the right of notice, hearing and adjudication and the right of appeal therefrom in accordance with 2 Pa.C.S. (relating to administrative law and procedure), the Board may impose any of the corrective actions of section 42 of the act (63 P. S. § 422.42) upon a certified behavior specialist who commits any act for which the Board would be authorized to take disciplinary action against a medical doctor under section 41 of the act (63 P. S. § 422.41), including unprofessional or immoral conduct as defined in § 16.61 (relating to unprofessional and immoral conduct).
[Pa.B. Doc. No. 10-278. Filed for public inspection February 12, 2010, 9:00 a.m.]
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