State of South Dakota
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NINETY-FIRST SESSION
LEGISLATIVE ASSEMBLY, 2016
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555X0432
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SENATE HEALTH AND HUMAN SERVICES
ENGROSSED NO. HB 1141 - 02/24/2016
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Introduced by: Representatives Bartling, Gosch, Hawks, Holmes, Johns, Klumb,
Munsterman, Peterson (Kent), Rasmussen, Rozum, Schoenbeck, Schoenfish,
Sly, Stevens, and Zikmund and Senators Monroe, Brown, Haverly, and
Sutton
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FOR AN ACT ENTITLED, An Act to license persons offering applied behavior analysis
services to the public.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That the code be amended by adding a NEW SECTION to read:
Terms used in this Act mean:
(1) "Applied behavior analysis," as provided in subdivision 58-17-154(1);
(2) "Behavior analyst," a person who meets the qualifications of subdivision
58-17-159(2), who is licensed as a behavior analyst by the board only for the
provision of applied behavior analysis as defined in sections 2 and 3 of this Act, and
who holds himself or herself out to the public by any title or description of services
which uses the words behavior analyst or applied behavior analyst;
(3) "Board," the Board of Social Work Examiners, as established in chapter 36-26.
Section 2. That the code be amended by adding a NEW SECTION to read:
The term, practice of applied behavior analysis, is the application of principles, methods,
and procedures of the analysis of behavior including principles of operant and respondent
learning. The term includes applications of those principles, methods, and procedures to:
(1) Design, supervise, evaluate, and modify treatment programs to change the behavior
of individuals diagnosed with an autism spectrum disorder;
(2) Design, supervise, evaluate, and modify treatment programs to change the behavior
of individuals;
(3) Design, supervise, evaluate, and modify treatment programs to change the behavior
of groups; and
(4) Consult with individuals and organizations.
Section 3. That the code be amended by adding a NEW SECTION to read:
The term, practice of applied behavior analysis, does not include diagnosis, counseling,
psychological testing, personality assessment, intellectual assessment, neuropsychological
assessment, psychotherapy, cognitive therapy, sex therapy, family therapy, coordination of care,
psychoanalysis, hypnotherapy, or long-term counseling as a treatment modality.
Section 4. That the code be amended by adding a NEW SECTION to read:
The Governor shall appoint an applied behavior analyst advisory committee composed of
three members. Two of the members shall be behavior analysts licensed under this Act and the
other member shall represent the public and be unaffiliated with the profession.
Each committee member shall serve a term of three years. However, the terms of the initial
appointees shall be staggered so that no more than one member's term expires in any one year.
No committee member may be appointed to more than three consecutive full terms. If a vacancy
occurs, the Governor shall appoint a person to fill the unexpired term. The appointment of a
member to an unexpired term is not considered a full term. The committee shall meet at least
annually or as necessary to conduct business. The advisory committee shall assist the board in
the regulation of behavior analysts pursuant to this Act. The committee shall also make
recommendations to the board regarding rules promulgated pursuant to this Act.
The terms of a member begins on October thirty-first of the calendar year in which the
Governor appoints the member, unless otherwise designated by the Governor. The term of a
member expires on October thirtieth in the third year of appointment.
Section 5. That the code be amended by adding a NEW SECTION to read:
The provisions of this Act do not apply to any:
(1) Employee of a regionally accredited academic institution while performing teaching,
training, or research duties;
(2) Provider who is not a resident of this state, and who has established an office in this
state, who provides behavior analyst services in this state for a period which does not
exceed an aggregate of more than twenty days during any one year if the provider is
authorized under the laws of the state or country of residence to perform these
activities and services. If the provider exceeds twenty consecutive days of practice
in this state in any calendar year the provider shall report to the board, in writing, the
nature and extent of the provider's practice in this state;
(3) Qualified physician, surgeon, psychologist, dentist, osteopath, optometrist,
chiropractor, podiatrist, registered nurse, attorney, court employee, marriage
counselor, family counselor, member of the clergy, mental health counselor, school
counselor, rehabilitation counselor, employment counselor, guidance counselor,
social worker, or licensed professional counselor doing work within the standards
and ethics of the person's respective profession who does not hold himself or herself
out to the public by any title incorporating the term behavior analyst;
(4) Matriculated college or university student whose applied behavior analysis activity
is part of a defined program of study, course, practicum, internship, or postdoctoral
traineeship, if the applied behavior analysis activities under this exemption are
directly supervised by a behavior analyst in this state, an instructor in a course
sequence approved by the certifying entity, or another qualified faculty member. The
individual student may not represent himself or herself as a behavior analyst and shall
use a title that clearly indicates the student's training status, such as student, intern,
or trainee;
(5) Family member of a recipient of applied behavior analysis services implementing
behavior analysis treatment plans with the recipient under the extended authority and
direction of a behavior analyst. The family member may not represent himself or
herself as a behavior analyst;
(6) Assistant behavior analyst or paraprofessional who delivers applied behavior analysis
services under the extended authority and direction of a behavior analyst provided
that the services are supervised in accordance with the requirements of the Behavior
Analyst Certification Board, Inc. The assistant behavior analyst or paraprofessional
may not represent himself or herself as a behavior analyst, and shall use a title that
indicates assistant or paraprofessional status, such as an assistant behavior analyst,
ABA technician, behavior technician, tutor, or line therapist. The assistant behavior
analyst or paraprofessional shall submit to a criminal background check and
fingerprint checks pursuant to the provisions of this Act;
(7) Behavior analyst who practices with nonhumans, including an applied animal
behaviorist and animal trainer;
(8) Professional who provides general applied behavior analysis services to an
organization, so long as the services are for the benefit of the organization and do not
involve direct services to any person;
(9) Unlicensed person pursuing experience in applied behavior analysis consistent with
the experience requirements of the Behavior Analyst Certification Board, Inc., if the
experience is supervised in accordance with the requirements of the Behavior Analyst
Certification Board, Inc. The person may not represent himself or herself as a
behavior analyst and shall use a title that clearly indicates the person's training status,
such as student, intern, or trainee;
(10) Person employed by a school board performing the duties of a position for the school.
The person may not represent himself or herself as a behavior analyst, unless the
person holds a license under this Act; or
(11) Any person who meets the requirements set out in subdivision 58-17-159(1).
Section 6. That the code be amended by adding a NEW SECTION to read:
No person may represent himself or herself as a behavior analyst, or engage in the practice
of, or attempt to practice applied behavior analysis unless licensed pursuant to the provisions
of this Act as an applied behavior analyst or exempted under the provisions of this Act.
Section 7. That the code be amended by adding a NEW SECTION to read:
The board may grant a license as a behavior analyst to an applicant who:
(1) Has earned a master's degree or a doctoral degree;
(2) Holds a current certification as a board certified behavior analyst by the Behavior
Analyst Certification Board, Inc., or any successor in interest to that organization;
(3) Has not been convicted of a felony or a misdemeanor involving moral turpitude as
defined in subdivision 22-1-2(25); and
(4) Has submitted verification that the applicant is not subject to any disciplinary
proceeding or pending complaint before any other licensing board unless the board
considers such proceeding or complaint and agrees to licensure.
Section 8. That the code be amended by adding a NEW SECTION to read:
The application fee for a license to practice applied behavior analysis shall be set by the
board in rules promulgated pursuant to chapter 1-26. The fee may not exceed three hundred
dollars. The applicant shall pay fees for the cost of certification directly to the Behavior Analyst
Certification Board, Inc. No fee assessed on a licensed social worker may be increased to
support the licensure of a behavior analyst as required under this Act.
Section 9. That the code be amended by adding a NEW SECTION to read:
In applying for licensing, an applicant shall apply on a form prescribed by the board. The
application shall be witnessed and notarized by a notary public. The license fee shall accompany
the application. The application and all supporting evidence shall be public record as provided
in chapter 1-27.
Section 10. That the code be amended by adding a NEW SECTION to read:
After a behavior analyst applicant presents evidence of certification, the applicant shall pay
a fee for initial licensure set by the board, in rules promulgated pursuant to chapter 1-26, not to
exceed three hundred fifty dollars.
Section 11. That the code be amended by adding a NEW SECTION to read:
The board shall adopt a code of ethics for behavior analysts licensed under this Act.
Section 12. That the code be amended by adding a NEW SECTION to read:
The board may deny, revoke, suspend, or cancel any license or application for licensure to
practice as a behavior analyst and may take other disciplinary or corrective action as the board
deems appropriate upon any of the following grounds:
(1) The licensee or applicant is guilty of fraud in the practice of applied behavior analysis
or fraud or deceit in the licensee's admission to practice applied behavior analysis;
(2) The licensee or applicant has been convicted of a felony or a serious crime during the
past five years. The term, felony, means an offense which, if committed in South
Dakota, would be a felony under South Dakota law. The term, serious crime, means
a felony or a lesser crime involving moral turpitude as defined in subdivision
22-1-2(25);
(3) The licensee or applicant is or has been engaged in the practice of applied behavior
analysis under a false or assumed name and has not registered that name pursuant to
chapter 37-11, or is impersonating another practitioner of a like or different name;
(4) The licensee or applicant is addicted to the use of intoxicating liquors, narcotics, or
stimulants to an extent as to incapacitate the licensee or applicant from the
performance of the licensee's or applicant's professional duties;
(5) The physical or mental condition of the licensee or applicant is determined, by a
competent medical examiner, to jeopardize or endanger a person who seeks relief
of the licensee or applicant. A majority of the entire board may demand an
examination of the licensee or applicant by a competent medical examiner selected
by the board at the board's expense. If the licensee or applicant fails to submit to the
examination, this constitutes immediate grounds for suspension of the licensee's
license or denial of the application for licensure;
(6) The licensee or applicant for licensure has been found in violation of the code of
ethics adopted by the board;
(7) The licensee or applicant has obtained or attempted to obtain a license, certificate,
or renewal thereof by bribery or fraudulent representation;
(8) The licensee or applicant knowingly made a false statement in connection with any
application required by this Act;
(9) The licensee or applicant knowingly made a false statement on any form promulgated
pursuant to this Act;
(10) The licensee or applicant has violated any provision of this Act or the rules
promulgated under this Act; or
(11) The licensee's or applicant's certificate, license, or permit has been cancelled,
revoked, suspended, or rejected for renewal in any other state for any cause.
Section 13. That the code be amended by adding a NEW SECTION to read:
If the board has information that any licensee may be guilty of any misconduct as provided
in section 12 of this Act or is guilty of gross incompetence or unprofessional or dishonorable
conduct, the board may institute proceedings for cancellation or revocation of the license.
Section 14. That the code be amended by adding a NEW SECTION to read:
Each proceeding relative to the cancellation, revocation, or suspension of a license, or
relative to reissuing a license which has been cancelled, revoked, or suspended may only be held
if a majority of the members of the board are present at the hearing. The decision of the board
to suspend, revoke, or cancel a license requires a majority vote of all of the board members.
Section 15. That the code be amended by adding a NEW SECTION to read:
All proceedings relative to the cancellation, revocation, or suspension of a license shall
conform to the procedure set forth in chapter 1-26.
Section 16. That the code be amended by adding a NEW SECTION to read:
Any party aggrieved by any acts, rulings, or decisions of the board relating to refusal to grant
or to cancellation, revocation, or suspension of a license may appeal pursuant to chapter 1-26.
Section 17. That the code be amended by adding a NEW SECTION to read:
Upon written application establishing compliance with existing licensing requirements and
for reasons the board deems sufficient, the board, for good cause by majority vote, may reinstate
or reissue a license that has been canceled, suspended, or revoked. However, upon suspension
of a license, the board in the order may provide for automatic reinstatement after a fixed period
of time as provided in the order.
Section 18. That the code be amended by adding a NEW SECTION to read:
The secretary-treasurer of the board shall keep a record of each person who has been granted
a license pursuant to the provisions of this Act, the license number, and the date the license was
issued or renewed. The record may be admitted as evidence in any court.
Section 19. That the code be amended by adding a NEW SECTION to read:
Any person who practices as a behavior analyst in this state without a license issued by the
board is guilty of a Class 2 misdemeanor.
Section 20. That the code be amended by adding a NEW SECTION to read:
In addition to the duties set forth elsewhere in this Act, the board shall:
(1) Recommend prosecution for any violation of this Act to the appropriate state's
attorney; or
(2) Recommend to the attorney general the bringing of a civil action to seek injunction
and other relief against any violation of this Act.
Section 21. That the code be amended by adding a NEW SECTION to read:
The board shall investigate each suspected violation of this Act and shall report the violation
to the proper law enforcement official where the act is committed. The board is authorized to
employ special counsel subject to the supervision, control, and direction of the attorney general
to assist in the prosecution of violations of this Act, and to expend the necessary funds for such
purpose.
Section 22. That the code be amended by adding a NEW SECTION to read:
Any person violating the provisions of this Act may be enjoined from further violations at
the suit of the state's attorney of the county where the violations occurred or suit may be brought
by any citizen of this state. An action for injunction shall be an alternate to criminal
proceedings, and the commencement of one proceeding by the board constitutes an election.
Section 23. That the code be amended by adding a NEW SECTION to read:
Any money coming into the custody of the board pursuant to this Act shall be credited to
the South Dakota Board of Social Work Examiners fund established under § 36-26-43.
Section 24. That the code be amended by adding a NEW SECTION to read:
The relations and communications between a licensed behavior analyst and a person
consulting a licensed behavior analyst in the person's professional capacity are confidential.
Nothing in this Act may be construed to require the person's confidential communications to be
disclosed.
Section 25. That the code be amended by adding a NEW SECTION to read:
Any assistant behavior analyst or paraprofessional who delivers applied behavior analysis
services under the extended authority and direction of a behavior analyst shall submit to a
criminal background investigation, by means of fingerprint checks by the Division of Criminal
Investigation and the Federal Bureau of Investigation. If no disqualifying record is identified at
the state level, the fingerprints shall be forwarded by the Division of Criminal Investigation to
the Federal Bureau of Investigation for a national criminal history check. The behavior analyst
who supervises the assistant behavior analyst or paraprofessional is responsible for any fees
charged for the cost of fingerprinting or the criminal background investigation as required by
this section. Each criminal record provided to the board under this section is confidential. The
board may use the records only in determining an assistant behavior analyst's or
paraprofessional's eligibility to be supervised by an applied behavior analyst for the delivery of
applied behavior analysis.
Section 26. That the code be amended by adding a NEW SECTION to read:
No assistant behavior analyst or paraprofessional who has been convicted of a crime of
violence as defined in § 22-1-2, a sex offense as defined in § 22-24B-1, or trafficking in
narcotics, may deliver applied behavior analysis services under the direction of a behavior
analyst.
Section 27. That the code be amended by adding a NEW SECTION to read:
The board may promulgate rules, pursuant to chapter 1-26, that delineate qualifications for
licensure, specify requirements for the annual renewal of licensure, establish standards of
professional conduct, specify procedures for violations of professional conduct, permit inactive
licensures, establish procedures for collection and management of fees and payments, establish
fees for initial applications and annual licensure not to exceed the amounts specified in this Act,
delineate activities that may or may not be delegated to an assistant behavior analyst or
paraprofessional, and specify requirements for supervision of assistant behavior analysts and
paraprofessionals.
Section 28. This Act is repealed on July 1, 2024.