Title of Regulation: 18VAC85-150. Regulations Governing the Practice of Behavior Analysis (amending 18VAC85-150-90, 18VAC85-150-100).

Statutory Authority: §§ 54.1-2400 and 54.1-2957.16 of the Code of Virginia.

Public Hearing Information:

August 5, 2016 - 8:40 a.m. - Perimeter Center, 9960 Mayland Drive, Suite 201, Richmond, VA 23233-1463

Public Comment Deadline: September 23, 2016.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Medicine the authority to promulgate regulations to administer the regulatory system.

Section 54.1-2957.16 of the Code of Virginia mandates that the Board of Medicine promulgate regulations for the licensure of behavior analysts and assistant behavior analysts.

Purpose: Chapter 3 of the 2012 Acts of the Assembly mandated that the Board of Medicine promulgate regulations to implement the provisions of the act within 280 days of its enactment. Emergency regulations were developed and then replaced with permanent regulations. At that time, the continuing competency requirements for renewal of license were set to mirror the requirements for maintenance of certification with the Behavior Analyst Certification Board (BACB). Certification by the BACB is required for initial licensure, and although licensees are not required to maintain current certification to renew a license, they are encouraged to do so.

In 2013, the BACB announced that, beginning in December 2014, the requirements for maintenance of certification would be changed from a three-year cycle to a two-year cycle and the hourly requirement would be increased. The proposed regulations for behavior analysts and assistant behavior analysts are consistent with the continuing competency requirements of the certification board, to include four hours each biennium in ethics relating to professional practice. The BACB offers several types of continuing education that are acceptable for certification and for renewal of licensure. With the additional hours, notably the hours of ethics, licensees may be better prepared to handle situations encountered in their practice and more knowledgeable about modalities and treatments that will improve outcomes and protect the health and safety of their clients.

Substance: The amendments change continuing education requirements for the biennial renewal from 24 to 32 hours for behavior analysts and from 16 to 20 hours for assistant behavior analysts. Four of those hours must be in ethics relating to professional practice.

Issues: The primary advantage to the public is knowledgeable behavior analysts and assistant behavior analysts who have more hours of continuing education to keep them informed about new modalities and theories of behavior analysis and specific hours relating to professional ethics. There are no disadvantages to the public. There are no advantages or disadvantages to the Commonwealth or the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medicine (Board) proposes to increase the required number of continuing education hours for biennial license renewal from: a) 24 to 32 for behavior analysts and b) 16 to 20 for assistant behavior analysts. The board is also proposing to add a requirement that four of the required hours be related to the practice of ethics in behavior analysis.

Result of Analysis. It is not clear that the uncertain benefits exceed the costs of the proposed amendments.

Estimated Economic Impact. The profession of behavior analysis has been regulated since 2012, when Chapter 3 of the 2012 Acts of Assembly directed the board to promulgate emergency regulations licensing this profession.  The final version of the initial licensure regulations took effect on May 7, 2014.

Under the regulation applicants for Virginia licensure must at the time of application hold current certification by the national Behavior Analysis Certification Board (BACB) in order to qualify for initial licensure as a behavior analyst or an assistant behavior analyst. Licensees are not required to maintain active certification with BACB for license renewal. Nonetheless, in the initial creation of the regulation, the Board set the number of continuing education hours per annum required for license renewal to match the number required for BACB certification renewal: 24 hours over two years for behavior analysts, and 16 hours over two years for assistant behavior analysts.¹

In 2013, the BACB announced that, beginning in December of 2014, the required number of hours for maintenance of certification would increase to 32 hours and 20 hours for behavior analysts and assistant behavior analysts, respectively. Further, four of the hours must be related to ethics in the practice of behavior analysis. The Board proposes to amend the regulation's continuing education requirements to match the changes to the BACB's continuing education requirements.

The regulation specifies that the continuing education be approved and documented by a sponsor recognized by the BACB. The BACB website includes links to online continuing education courses offered by its recognized sponsors. The lower-priced courses cost about $15 per hour.² Thus the proposed required additional 8 hours would cost behavior analysts about $120 plus the value of their time. According to PayScale Human Capital, board certified behavior analysts earn on average $35 per hour.³ Assuming that the value of time for behavioral analysts is their average hourly earnings, the proposed required additional 8 hours approximately cost an additional $280. Combining the course fees and the value of time expended, the proposed addition to the required number of continuing education hours would cost behavioral analysts approximately $400 every two years.

Given the approximate course cost of $15 per hour, the proposed required additional 4 hours would cost assistant behavior analysts about $60 plus the value of their time. Data is not available for assistant behavior analyst average earnings. If we assume assistant behavior analysts earn $20 per hour, the value of the additional 4 hours expended on continuing education would cost an additional $80. Combining the course fees and the value of time expended, the proposed addition to the required number of continuing education hours would cost assistant behavioral analysts approximately $140 every two years.

The benefit of the proposal is more difficult to estimate than the cost. Continuing education can certainly be beneficial. Learning of new developments or methods through training can expand or at least maintain expertise. If analysts believe they would benefit by taking more hours of continuing education than is required by the regulation, they are of course free to do so. If it is believed that there is a topic or area of concern or new development within the profession that licensees need new training on, and analysts may not remain competent without such training, a specific training requirement such as the proposed ethics training requirement would be more likely to be effective in addressing the issue than an increase in required non-specified course hours. 

As mentioned above, the impetus for the Board's proposed amendments is to match changes to the national BACB certification renewal requirements. According to the Department of Health Professions, most licensees have chosen to maintain active certification with BACB. The proposed amendments will not directly affect these individuals since they are already meeting the proposed requirements in order to keep active BACB certification,

Businesses and Entities Affected. The proposed amendments affect the 648 behavior analysts and 119 assistant behavior analysts licensed by the Commonwealth, and providers of BACB-approved continuing education.

Localities Particularly Affected. Behavior analysts and assistant behavior analysts are sometimes employed by school divisions. The proposed amendments would particularly affect those localities that employ behavior analysts and assistant behavior analysts in their schools.

Projected Impact on Employment. If none of the currently licensed analysts were maintaining their BACB certification, the proposed amendments would require the 648 behavior analysts and 119 assistant behavior analysts to take an additional 5,660 hours⁴ of courses and pay approximately an additional $84,900⁵ in fees over every two years to BACB-approved continuing education providers. Since most are likely already meeting the requirements, there will likely be considerably less new business for course providers due to the proposed amendments. The increase of business that does occur may have a small positive impact on employment for course providers. Most of the approved online providers are based outside of the Commonwealth.

Effects on the Use and Value of Private Property. Those behavior analysts and assistant behavior analysts who have chosen to not maintain active certification with BACB would need to take additional courses as described above. The increase in in business may have a small positive impact on the net worth of course providers. Most of the approved online providers are based outside of the Commonwealth.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposal to increase the number of hours of continuing education required for license renewal requires behavior analysts and assistant behavior analysts to expend additional time and dollars. To the extent that behavior analysts and assistant behavior analysts employed by small businesses are reimbursed for their expenses and are permitted to take continuing education courses during the workday, the proposed amendments will increase costs for those small businesses.

Alternative Method that Minimizes Adverse Impact. The Board could choose to not increase the number of hours of continuing education required for license renewal.

Adverse Impacts:

Businesses. The proposal to increase the number of hours of continuing education required for license renewal requires behavior analysts and assistant behavior analysts to expend additional time and dollars. To the extent that behavior analysts and assistant behavior analysts employed by businesses are reimbursed for their expenses and are permitted to take continuing education courses during the workday, the proposed amendments will increase costs for those firms.

Localities. Behavior analysts and assistant behavior analysts are sometimes employed by school divisions. To the extent that behavior analysts and assistant behavior analysts employed by school divisions are reimbursed for their expenses and are permitted to take continuing education courses during the workday, the proposed amendments will increase costs for those localities that employ behavior analysts and assistant behavior analysts in their schools.

Other Entities. Non-profit organizations and governmental entities could also potentially employ behavior analysts and assistant behavior analysts. To the extent that the analysts are reimbursed for their expenses and are permitted to take continuing education courses during the workday, the proposed amendments will increase costs for these organizations and entities as well.

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¹The BACB required 36 hours of continuing education over three years for behavior analyst certification renewal 24 hours over three years for assistant behavior analyst certification. The required hours for Virginia license renewal and national certification renewal both were 12 hours per annum for behavior analysts and 8 hours per annum for assistant behavior analysts.

²The BACB website (bacb.com) and various linked course provider websites were viewed on April 14, 2016.

³The PayScale Human Capital website (payscale.com) was viewed on April 14, 2016.

⁴(648 x 8) + (119 x 4) =5,660

⁵(648 x $120) + (119 x $60) = $84,900

Agency's Response to Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

The proposed amendments increase the required number of continuing education hours for biennial license renewal from 24 to 32 for behavior analysts and from 16 to 20 for assistant behavior analysts and require that four of the required hours be related to the practice of ethics in behavior analysis. In addition, the proposed amendments amend the number of continuing education hours required to reactivate an inactive license or reinstate a license that has lapsed more than two years.

18VAC85-150-90. Reactivation or reinstatement.

A. To reactivate an inactive license or to reinstate a license that has been lapsed for more than two years, a behavior analyst or assistant behavior analyst shall submit evidence of competency to return to active practice to include one of the following:

1. Information on continued practice in another jurisdiction as a licensed behavior analyst or a licensed assistant behavior analyst or with certification as a BCBA® or BCaBA® during the period in which the license has been inactive or lapsed;

2. Twelve Sixteen hours of continuing education for each year in which the license as a behavior analyst or 10 hours for each year in which the license as an assistant behavior analyst has been inactive or lapsed, not to exceed three years; or

3. Recertification by passage of the BCBA® or the BCaBA® certification examination from the BACB.

B. To reactivate an inactive license, a behavior analyst or assistant behavior analyst shall pay a fee equal to the difference between the current renewal fee for inactive licensure and the renewal fee for active licensure.

C. To reinstate a license that has been lapsed for more than two years, a behavior analyst or assistant behavior analyst shall file an application for reinstatement and pay the fee for reinstatement of his license as prescribed in 18VAC85-150-40. The board may specify additional requirements for reinstatement of a license so lapsed to include education, experience, or reexamination.

D. A behavior analyst or assistant behavior analyst whose licensure has been revoked by the board and who wishes to be reinstated shall make a new application to the board, fulfill additional requirements as specified in the order from the board, and make payment of the fee for reinstatement of his licensure as prescribed in 18VAC85-150-40 pursuant to § 54.1-2408.2 of the Code of Virginia.

E. The board reserves the right to deny a request for reactivation or reinstatement to any licensee who has been determined to have committed an act in violation of § 54.1-2915 of the Code of Virginia or any provisions of this chapter.

18VAC85-150-100. Continuing education requirements.

A. In order to renew an active license, a behavior analyst shall attest to having completed 24 32 hours of continuing education and an assistant behavior analyst shall attest to having completed 16 20 hours of continuing education as approved and documented by a sponsor recognized by the BACB within the last biennium. Four of the required hours shall be related to ethics in the practice of behavior analysis.

B. A practitioner shall be exempt from the continuing education requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of its active licensees to determine compliance. The practitioners selected for the audit shall provide all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing education requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

G. The board may grant an exemption from all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.