2012 -- S 2128

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LC00678

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - LICENSING OF BEHAVIOR

ANALYSTS

     Introduced By: Senators E O`Neill, Cote, Bates, Maher, and Sosnowski

     Date Introduced: January 18, 2012

     Referred To: Senate Health & Human Services

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS"

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is hereby amended by adding thereto the following chapter:

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     CHAPTER 86

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LICENSING OF BEHAVIOR ANALYSTS

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     5-86-1. Short title. – This chapter shall be known and may be cited as “Licensing of

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Behavior Analysts”.

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     5-86-2. Definitions. – As used in this chapter, the following terms shall be construed as

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follows:

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     (1) “Board” means the licensing board of behavior analysts within the Rhode Island

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department of health, established pursuant to the provisions of 5-86-3 of the chapter.

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     (2) “Department” means the Rhode Island department of health.

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     (3) “Director” means the director of the Rhode Island department of health.

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     (4) “Education” means the academic program pursued by the person in obtaining the

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master’s or doctorate degree, that the programs to include formal course work, seminars and

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practica.

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     (5) “Practice of applied behavior analysis” means the design, implementation and

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evaluation of environmental modifications by a behavior analyst to produce socially significant

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improvements in human behavior. It includes the empirical identification of functional relations

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between environment and behavior, known as functional assessment and analysis. Applied

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behavior analysis interventions are based on scientific research and the direct observation and

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measurement of behavior and environment. They utilize contextual factors, establishing

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operations, antecedent stimuli, positive reinforcement and other consequences to help people

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develop new behaviors, increase or decrease existing behaviors, and emit behaviors under

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specific environmental conditions. The practice of behavior analysis expressly excludes

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psychological testing, neuropsychology, psychotherapy, cognitive therapy, sex therapy,

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psychoanalysis, hypnotherapy, and long-term counseling as treatment modalities. Such services

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are provided by a person licensed under this chapter only when applied behavior analysis services

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are prescribed by a licensed physician or psychologist pursuant to section 27-20.11-4.

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     (6) “Supervised experience” means the practical application of principles, methods and

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procedures of the science of applied behavioral analysis in accordance with the requirements of

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section 5-86-3 of these regulations.

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     (7) “These regulations” mean all parts of Rhode Island rules and regulations for licensing

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behavior analysts.

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     (8) “Training” means the pre-professional or professional supervised experience received

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by the person at the pre or post-doctoral level that experience to have been obtained in an

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internship, clinic, or other similar professional setting.

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     5-86-3. Licensing. – (a) Any individual licensed under this chapter may use the title

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“licensed behavior analyst” and the abbreviation “LAB” or the title “licensed assistant behavior

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analyst” and the abbreviation “LABA”, provided that the title and abbreviation correspond to the

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license held pursuant to this chapter.

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     (b) It is unlawful for any person to represent herself or himself as a licensed behavior

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analyst, LAB, licensed assistant behavior analyst, or LABA unless she or he is licensed as a

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licensed behavior analyst or licensed assistant behavior analyst pursuant to the provisions of this

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chapter or falls within an exemption provided by section 27-20.11-7.

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     (c) Any individual licensed as a licensed behavior analyst shall provide services to clients

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who have been prescribed applied behavioral analysis by a licensed physician or psychologist

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pursuant to section 27-20.11-4. A licensed behavior analyst is not required to be an employee of

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the prescribing profession or organization, and may work for a public or private agency or in

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private practice.

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     (d) Licensed behavior analysts, licensed assistant behavior analysts and the equivalents

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are responsible for following all applicable federal and state laws and regulations regarding the

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confidentiality of medical records.

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     5-86-4. Board of behavior analysts– Creation – Composition. – Within the department

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of professional regulation in the department of health there shall be a Rhode Island behavior

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analyst licensing board consisting of five (5) members as provided by section 5-86-5.

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     5-86-5. Board of behavior analysts – Appointment, terms, and removal of members.

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– (a) The director of the department of health shall, with the approval of the governor, appoint

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five (5) electors as members of the board. Three (3) members of the board shall be licensed

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behavior analysts, one member shall be a licensed assistant behavior analyst, and one shall be a

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consumer representative holding neither license. The licensed behavior analysts and licensed

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assistant behavior analyst shall have at least three (3) years professional experience with

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credentials comparable as those established in this chapter, be certified for a minimum of five (5)

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years by an appropriate nationally recognized accrediting organization as approved by the

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department of health.

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     (b)  The director shall, with the approval of the governor, appoint persons to serve on the

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board. Two (2) of those members first appointed by the director of the department of health shall

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serve initial terms of three (3) years; two (2) of those members first appointed by the director of

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the department of health shall serve an initial term of two (2) years; and one of those members

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appointed by the director of the department of health shall serve an initial term of one year

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thereafter, all appointed members of the board shall be appointed to serve for terms of three (3)

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years.

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     (c) The board members are eligible to succeed themselves.

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     (d) The director may remove any member from the board for neglect of any duty required

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by law, or for incompetence, or unprofessional or dishonorable conduct. Vacancies shall be filled

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in the same manner as the original appointment was made, for the remainder of the term.

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     5-86-6. Board of behavior analysts – Organization and meetings. – (a) The board

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shall organize immediately after the appointment and qualification of its members.

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     (b) The board shall annually elect a chairperson and secretary. Meetings may be called by

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the chairperson or the director of the department of health or by written request of three (3)

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members of the board. A majority of seats filled shall constitute a quorum. The board shall meet

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as often as necessary.

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      5-86-7. Board of behavior analysts – General powers. – The Rhode Island behavior

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analyst licensing board shall:

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     (1) Recommend to the director for his or her approval the adoption and revision of rules

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and regulations not inconsistent with law as necessary to enable it to carry into effect the

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provisions of this chapter;

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     (2) Adopt policies to be followed in the licensure and renewal of licenses of qualified

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applicants in accordance with chapter 42-35, of the administrative procedures act;

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     (3) Conduct hearings upon charges calling for the discipline of a license or revocation.

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The department has the power to issue subpoenas and compel the attendance of witnesses and

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administer oaths to persons giving testimony at hearings; and

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     (4) The board or the director shall prosecute all persons violating this chapter and has the

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power to incur the necessary expenses of prosecution. The board shall keep a record of all its

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proceedings, including, but not limited to, meeting minutes.

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     5-86-8. Register of behavior analysts – Licensing records – Issuance of licenses. –

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The department shall maintain a register of all behavior analysts licensed under this chapter

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which shall be open at all reasonable times to public inspection. The department shall be the

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custodian of all records pertaining to the licensing of behavior analysts.

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     5-86-9. Qualifications and Examinations for Licensing.- (a) An applicant for licensure

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as a licensed behavior analyst shall submit to the board written evidence on forms furnished by

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the department verified under oath (i.e. notarized) that said applicant:

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     (1) Be of good moral character;

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     (2) Has obtained a graduate degree in behavior analysis or a related field, as approved by

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the board, from a college or university accredited by the New England association of schools and

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colleges, or an equivalent regional accrediting agency, and which has the approval by a national

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or regional certifying authority, including but not limited to the behavior analyst certification

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board;

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     (3) Has successfully completed the amount of coursework in applied behavior analysis

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acceptable to the board;

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     (4) Has appropriate supervised experience to include either: (i) One year, including one

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thousand five hundred (1500) hours of supervised independent fieldwork in behavior

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analysis. The distribution of supervised independent fieldwork hours must be at least ten (10)

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hours per week, but not more than thirty (30) hours per week, for a minimum of three (3) weeks

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per month; (ii) One thousand (1000) hours of practicum in behavior analysis within a university

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experience program approved by the national or regional certifying authority. The distribution of

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practicum hours must be at least ten (10) hours per week, but not more than twenty-five (25)

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hours per week, for a minimum of three (3) weeks per month; or (iii) Seven hundred fifty (750)

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hours of intensive practicum in behavior analysis within a university experience program

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approved by the national or regional certifying authority. The distribution of intensive practicum

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hours must be at least ten (10) hours per week, but not more than twenty-five (25) hours per

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week, for a minimum of three (3) weeks per month;

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     (5) Has passed the relevant examination administered by an appropriate nationally

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recognized accrediting organization as approved by the department of health for this function;

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     (6) Maintain active status and fulfill all relevant requirements for renewal and relicensing

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with the nationally recognized and accredited organization(s) as approved by the department of

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health licensing;

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     (7) Conducts his or her professional activities in accordance with accepted standards for

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responsible professional conduct, as approved by the Rhode Island behavior analyst licensing

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board; and

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     (8) Meets the criteria as established in section 5-86-12.

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     (b) An applicant for licensure as a licensed assistant behavior analyst shall submit to the

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board written evidence on forms furnished by the department verified under oath (i.e., notarized)

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that said applicant:

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     (1) Be of good moral character;

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     (2) Has obtained a bachelor’s degree in behavior analysis or a related field, as approved

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by the board, from a college or university accredited by the New England Association of Schools

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and Colleges, or an equivalent regional accrediting agency, and which has the approval by a

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national or regional certifying authority, including, but not limited to, the behavior analyst

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certification board;

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     (3) Has successfully completed the amount of coursework in applied behavior analysis

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acceptable to the board;

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     (4) Has appropriate supervised experience to include either: (i) One thousand (1000)

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hours of supervised independent fieldwork in behavior analysis. The distribution of supervised

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independent fieldwork hours must be at least ten (10) hours per week, but not more than thirty

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(30) hours per week, for a minimum of (3) three weeks per month; (ii) Six hundred seventy (670)

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hours of practicum in behavior analysis within a university experience program approved by the

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national or regional certifying board. The distribution of practicum hours must be at least ten (10)

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hours per week, but not more than twenty-five (25) hours per week, for a minimum of three (3)

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weeks per month; or (iii) Five hundred (500) hours of intensive practicum in behavior analysis

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within a university experience program approved by the national or regional certifying board. 

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The distribution of intensive practicum hours must be at least ten (10) hours per week, but not

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more than twenty-five (25) hours per week, for a minimum of three (3) weeks per month

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     (5) Is supervised by a licensed behavior analyst in a manner consistent with the board’s

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requirements for supervision of licensed assistant behavior analysts;

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     (6) Has passed the examination administered by an appropriate nationally recognized

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accrediting organization as approved by department of health licensing for this function;

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     (7) Maintain active status and fulfill all relevant requirements for renewal and relicensing

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with the nationally recognized and accredited organization(s) as approved by the department of

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health licensing;

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     (8) Conduct his or her professional activities in accordance with accepted standards for

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responsible professional conduct, as required by the Rhode Island behavior analyst licensure

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board; and

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     (9) Meet the criteria as established in section 5-86-11.

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     (c) An applicant shall be judged to satisfy the requirements of a behavior analyst

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licensure who submits to the board written evidence on forms furnished by the department

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verified under oath (i.e., notarized), if the following equivalency requirements are met to the

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satisfaction of the licensing board:

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     (1) Has received a doctoral degree in psychology from a college or university accredited

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by the New England association of schools and colleges, or an equivalent regional accrediting

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agency, and which has the approval by a national or regional certifying authority;

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     (2) Be individually licensed by the department of health as a psychologist subject to

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chapter 5-44;

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     (3) Be of good moral character;

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     (4) Has completed coursework in applied behavior analysis supervised by the department

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within the college or university granting the requisite degree or by an accredited postgraduate

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clinical training program recognized by the United States department of education, or education

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and/or experience which is deemed equivalent by the board;

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     (5) Has completed one thousand five hundred (1,500) hours of direct client contact

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offering applied behavior analysis services subsequent to being awarded a master's degree,

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certificate of advanced graduate study or doctorate;

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     (6) Conducts his or her professional activities in accordance with accepted standards for

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responsible professional conduct, as required by the Rhode Island behavior analyst licensure

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board; and

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     (7) Meets the criteria as established in section 5-86-12.

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     5-86-10. Licensure. -- A license as a behavior analyst may be issued to:

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     (1) An applicant who meets the requirements for licensure as stated in this statute; and

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     (2) An applicant who has been certified by an appropriate nationally recognized and

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accredited organization, as approved by the department of health, licensing and licensed as a

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licensed behavior analyst, licensed assistant behavior analyst or the equivalents under the laws of

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another state, United States territory, or foreign country where the board determines that the

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requirements are substantially equivalent to those of this state.

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      5-86-11. Application fee. -- The applicant applying for licensure as a behavior analyst,

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assistant behavior analyst or the equivalents shall pay a fee of one hundred fifty dollars ($150) to

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the department.

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       5-86-12. Limitation of practice. -- The board shall ensure through regulations and

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enforcement that licensees limit their practice to demonstrated areas of competence as

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documented by relevant professional education, training, and experience.

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     5-86-13.  Expiration and renewal of licenses – Continuing education – Lapsed

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license. -- (a) The license of every person licensed under the provisions of this chapter shall

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expire on the first (1st) day of July of the next even-numbered year following the issuance of his

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or her license.

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     (b) On or before the first day of May of each even-numbered year, the department shall

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mail an application for renewal of license to every person to whom a license has been issued or

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renewed during the cycle.

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     (c) Every licensed person who desires to renew his or her license shall file with the

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department a renewal application, executed, together with a renewal fee of one hundred and fifty

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dollars ($150), on or before the first (1st) day of June in each even-numbered year. Upon receipt

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of a renewal application and payment of the renewal fee, the accuracy of the application shall be

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verified and the department may grant a renewal license effective July 1st and expiring the June

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30th in each even-numbered year.

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     (d) Every licensed person who desires to continue licensure as a licensed behavior

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analyst, licensed assistant behavior analyst or the equivalents shall present satisfactory evidence

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to the board and approved by rule or regulation of the board that the licensed behavior analyst has

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completed a prescribed course of continuing licensed applied behavior analysis education.

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     (e) Any person who allows his or her license to lapse, by failing to renew it on or before

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June 1st in each even-numbered year, as provided in this section, may be reinstated by the

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department on payment of the current renewal fee, plus an additional fee of forty dollars ($40.00).

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Any person using the title licensed behavior analyst or licensed assistant behavior analyst or the

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equivalents offering services defined as the practice of behavior analysis under this chapter

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during the time his or her license has lapsed is subject to the penalties provided for violation of

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this chapter.

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     5-86-14. Transfers to inactive list – Reinstatement. -- (a) A licensed behavior analyst,

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licensed assistant behavior analyst or the equivalents who does not intend to continue his or her

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licensure, upon written request to the department may have his or her name transferred to an

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inactive list, and shall not be required to pay the renewal fee as long as he or she remains inactive.

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     (b) Should a licensed behavior analyst, licensed assistant behavior analyst or the

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equivalents wish to resume functioning as a behavior analyst, he or she must notify the

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department and remit his or her renewal fee in accordance with the rules and regulations

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promulgated hereunder within the immediate two (2) years prior to the applicant's request for

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licensure.

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     5-86-15. Receipts. -- The proceeds of any fees collected pursuant to the provisions of this

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chapter shall be deposited as general revenues.

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     5-86-16. Grounds for discipline. -- The board has the power to deny, revoke, or suspend

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any license issued by the department in accordance with this chapter, or to discipline a licensee

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upon proof that the person:

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     (1) Is guilty of fraud or deceit in procuring or attempting to procure a license or

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temporary license;

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     (2) Is guilty of a felony or of a crime of immorality;

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     (3) Is habitually intemperate or is addicted to the use of habit-forming drugs;

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     (4) Is mentally incompetent;

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     (5) Is incompetent or negligent in the practice of applied behavior analysis as determined

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by the Rhode Island behavior analyst licensing board;

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     (6) Has violated the ethical principles governing behavior analysts and the practice of

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behavior analysis, as adopted by the board and in force at the time a charge is made, provided that

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those ethical principles are a nationally recognized standard;

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     (7) Has practiced as a licensed assistant behavior analyst or has performed the duties of a

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licensed assistant behavior analyst without proper supervision by a licensed behavior analyst

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under this chapter unless specifically exempted by this chapter;

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     (8) Has had their license revoked, suspended, privileges limited or other disciplinary

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action in another state or jurisdiction, including the voluntary surrender of a license; or

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     (9) Has failed to furnish the department or its legal representative information requested

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by the board as part of a disciplinary action.

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     5-86-17. Procedure for discipline. -- (a) When a sworn complaint is filed with the board

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charging a person with being guilty of any of the actions specified in section 5-86-16, the

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department shall immediately investigates those charges, or, the board, after investigation, may

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institute charges. The department may coordinate investigations of alleged violations of the

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Rhode Island behavior analyst licensing board with an appropriate nationally recognized

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accrediting organization.

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      (b) If the investigation reveals reasonable grounds for believing that the licensee or

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applicant for licensure is guilty of the charges, the board shall fix a time and place for a hearing,

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and shall serve a copy of the charges, together with a notice of the time and the place fixed for the

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hearing, personally upon the accused at least twenty (20) days prior to the time fixed for the

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hearing.

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     (c) When personal service cannot be effected and that fact is certified by oath by any

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person authorized to make service, the board shall publish once in each of two (2) successive

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weeks, a notice of the hearing in a newspaper published in the county where the accused last

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resided according to the records of the board and shall mail a copy of the charges and of the

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notice to the accused at his or her last known address.

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     (d) When publication of notice is necessary, the date of the hearing shall not be less than

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twenty (20) days after the last date of publication of the notice.

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     (e) At the hearing, the accused has the right to appear personally or by counsel or both, to

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produce witnesses and evidence on his or her behalf, to cross-examine witnesses, and to have

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subpoenas issued by the administrator of professional regulation.

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     (f) The attendance of witnesses and the production of books, documents, and papers at

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the hearing may be compelled by subpoenas issued by the department, which shall be served in

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accordance with law.

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     (g) The department shall administer oaths as necessary for the proper conduct of the

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hearing.

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     (h) The board is not bound by the strict rules of procedure or by the laws of evidence in

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the conduct of its proceedings, but the determination shall be based upon sufficient legal evidence

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to sustain it.

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     (i) If the accused is found guilty of the charges, the board may refuse to issue a license to

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the applicant, or may revoke or suspend his or her license, or discipline that person.

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     (j) Upon the revocation or suspension of any license, the license holder shall surrender

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the license to the department, who shall indicate the same in the licensure verification database.

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     (k) A revocation or suspension of license may be reviewed at the discretion of the board,

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or at the initiative of the department which may order a rehearing of the issue if it finds cause.

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     5-86-18. Grounds for discipline without a hearing. -- With the approval of the director,

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the board may temporarily suspend the license of a licensed behavior analyst, licensed assistant

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behavior analyst or the equivalents without a hearing if the board finds that evidence in its

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possession indicates that a licensed behavior analyst or licensed assistant behavior analyst or the

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equivalents continuing in practice would constitute an immediate danger to the public. In the

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event that the board temporarily suspends the license of a licensed behavior analyst, licensed

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assistant behavior analyst or the equivalents without a hearing by the board, a hearing must be

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held within ten (10) days after the suspension has occurred.

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     5-86-19. Penalty for violations. -- (a) It is a misdemeanor for any person, in offering his

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or her services to the public, to:

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     (1) Use in connection with his or her name any designation tending to imply that he or

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she is a licensed behavior analyst, licensed assistant behavior analyst, or the equivalents to render

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services defined as the practice of behavior analysis, unless licensed under the provisions of this

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chapter;

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     (2) Use in connection with his or her name any designation tending to imply that he or

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she is a licensed behavior analyst, licensed assistant behavior analyst, or the equivalents to render

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services defined as the practice of behavior analysis, during the time his or her license issued

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under the provision of this chapter is suspended or revoked; or

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     (3) Otherwise violate any of the provisions of this chapter or the rules and regulations

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promulgated hereunder.

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     (b) These misdemeanors shall be punishable by a fine of not more than five hundred

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dollars ($500) for each offense.

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     5-86-20. Injunction of violations. -- When it appears to the board that any person is

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violating any of the provisions of this chapter, the director may institute an action, commenced in

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the name of the board, to enjoin that violation in a court of competent jurisdiction. That court may

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enjoin any person from violating any of the provisions of this chapter, without regard to whether

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proceedings have been or may be instituted before the board or whether criminal proceedings

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have been or may be instituted.

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     5-86-21. Persons and practices exempt. -- (a) No provision of this chapter shall be

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construed to prevent members of other recognized professions that are licensed, certified, or

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regulated for independent practice of that profession under the laws of this state from rendering

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services consistent with their professional training and code of ethics and scope of practice as

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defined in the relevant licensure act, provided that they do not represent themselves to be licensed

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behavior analysts, licensed assistant behavior analysts or the equivalents. Recognized members of

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the clergy shall not be restricted from functioning in their ministerial capacity, provided that they

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do not represent themselves to be behavior analysts.

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     (b) Nothing in this chapter shall be construed to prohibit teachers, guidance personnel,

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social workers, and school psychologists in public or private schools from full performance of

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their duties, nor to prohibit the use of behavior analytic techniques by business or industrial

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organizations or companies for employment, placement, evaluation, promotion, or job adjustment

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of their own officers or employees.

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     (c) Nothing in this section shall be construed as prohibiting the use of consultants who

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are defined as qualified mental retardation professionals under the Code of Federal Regulations

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(CFR) 42, § 483.430 by facilities licensed as intermediate care facilities for people who are

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developmentally disabled by the department of behavioral healthcare, developmental disabilities

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and hospitals.

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     (d) Nothing in this chapter shall be construed as permitting licensed behavior analysts,

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licensed assistant behavior analysts or the equivalents to practice medicine as defined by the laws

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of this state.

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     (e) Nothing in this section shall be construed as permitting those persons identified in

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subsections (b) and (f) of this section to offer their services to any persons or organizations other

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than those listed in subsection (f) of this section as consultants or to accept remuneration for any

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behavior analytic services other than that of their institutional salaries or fees unless they have

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been licensed under this chapter or exempted under subsection (a) of this section.

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     (f) Nothing in this section shall be construed as prohibiting those persons who are

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implementing applied behavior analysis services to an immediate family member or as a paid or

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volunteer caregiver as specified in a treatment plan prescribed by a licensed physician or

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psychologist pursuant to section 27-20.11-4 and supervised by licensed behavior analyst, if the

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individual or caregiver does not represent as a licensed behavior analyst, licensed assistant

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behavior analyst or the equivalents.

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      (g) A behavior analyst licensed or certified in another state, or United States territory

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may perform behavior analysis services in the state of Rhode Island without obtaining a license

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for up to ten (10) calendar days per calendar year with no more than five (5) days of this activity

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occurring consecutively. The calendar day limit shall not apply to services as an expert witness in

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a legal proceeding.

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     5-86-22. Enforcement. -- The director shall enforce the provisions of this chapter. He or

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she, or his or her authorized agents, and the board shall be exempt from providing surety for costs

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in connection with the commencement of any legal proceedings under this chapter.

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     5-86-23. Rules Governing Practices and Procedures. -- All hearings and reviews

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required under the provisions of chapter 5-44 of the general laws of Rhode Island, as amended,

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shall be held in accordance with the provisions of the rules and regulations of the Rhode Island

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department of health regarding practices and procedures before the department of health and

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access to public records of the department of health (R42-35-PP).

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     5-86-24. Appeals from director and board. -- Any person aggrieved by any decision or

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ruling of the director or the board may appeal to the superior court in the manner provided in the

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administrative procedures act, chapter 35 of title 42.

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     5-86-25. Applicability of other laws. -- This chapter shall be subject to the provisions of

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chapter 2 of title 38 ("access to public records") and chapter 46 of this title ("open meetings")

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and, in addition, the members of the board shall be subject to the provisions of chapter 14 of title

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36 ("code of ethics").

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     5-86-26. Severability. -- The provisions of this chapter are severable, and if any

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provision hereof shall be held invalid in any circumstances, any invalidity shall not affect any

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other provisions or circumstances. This chapter shall be construed in all respects so as to meet

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any constitutional requirements. In carrying out the purposes and provisions of this chapter, all

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steps shall be taken which are necessary to meet constitutional requirements.

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     SECTION 2. This act shall take effect upon passage.

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LC00678

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - LICENSING OF BEHAVIOR

ANALYSTS

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     This act would add a chapter to the general laws governing the licensing of behavior

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analysts.

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     This act would take effect upon passage.

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LC00678

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