CHAPTER 36-38
BEHAVIOR ANALYSTS
36-38-1 Definitions.
36-38-2 Conduct included within practice of applied behavior analysis.
36-38-3 Conduct not included within practice of applied behavior analysis.
36-38-4 Applied behavior analyst advisory committee--Appointment--Terms--Duties.
36-38-5 Persons to whom chapter does not apply.
36-38-6 License required to practice as behavior analyst.
36-38-7 Qualifications for licensure.
36-38-8 Application fee.
36-38-9 Application for license.
36-38-10 Fee for initial licensure.
36-38-11 Code of ethics.
36-38-12 Grounds for denial, revocation, suspension, or cancellation of license.
36-38-13 Commencement of proceedings for cancellation or revocation of license.
36-38-14 Hearing on cancellation or revocation of license--Decision.
36-38-15 Administrative procedure for cancellation or revocation of license.
36-38-16 Appeal.
36-38-17 Reinstatement of license.
36-38-18 Record of licensees.
36-38-19 Practice without license--Misdemeanor.
36-38-20 Duties of board.
36-38-21 Repealed.
36-38-22 Injunction--Election of injunction or criminal action.
36-38-23 Money credited to board of social work examiners fund.
36-38-24 Confidentiality of consultation with behavior analyst.
36-38-25 Criminal background checks of assistant behavior analysts and paraprofessionals.
36-38-26 Certain assistant behavior analysts and paraprofessionals ineligible.
36-38-27 Promulgation of rules.
36-38-1. Definitions.
Terms used in this chapter 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 §§ 36-38-2 and 36-38-3, 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.
Source: SL 2016, ch 199, § 1.
36-38-2. Conduct included within practice of applied behavior analysis.
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.
Source: SL 2016, ch 199, § 2.
36-38-3. Conduct not included within practice of applied behavior analysis.
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.
Source: SL 2016, ch 199, § 3.
36-38-4. Applied behavior analyst advisory committee--Appointment--Terms--Duties.
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 chapter and the other member shall represent the public and be unaffiliated with the profession.
Each committee member shall serve a term of three years. 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 committee shall assist the board in the regulation of behavior analysts pursuant to this chapter. The committee shall also make recommendations to the board regarding rules promulgated pursuant to this chapter.
The term 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. The committee shall meet the requirements of chapter 1-25 regarding open meetings.
Source: SL 2016, ch 199, § 4; SL 2020, ch 167, § 10.
36-38-5. Persons to whom chapter does not apply.
The provisions of this chapter 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 chapter;
(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 chapter; or
(11) Any person who meets the requirements set out in subdivision 58-17-159(1).
Source: SL 2016, ch 199, § 5.
36-38-6. License required to practice as behavior analyst.
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 chapter as an applied behavior analyst or exempted under the provisions of this chapter.
Source: SL 2016, ch 199, § 6.
36-38-7. Qualifications for licensure.
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) during the past five years; 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.
Source: SL 2016, ch 199, § 7.
36-38-8. Application fee.
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 chapter.
Source: SL 2016, ch 199, § 8.
36-38-9. Application for license.
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.
Source: SL 2016, ch 199, § 9.
36-38-10. Fee for initial licensure.
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.
Source: SL 2016, ch 199, § 10.
36-38-11. Code of ethics.
The board shall adopt a code of ethics for behavior analysts licensed under this chapter.
Source: SL 2016, ch 199, § 11.
36-38-12. Grounds for denial, revocation, suspension, or cancellation of license.
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 misdemeanor involving moral turpitude as defined in subdivision 22-1-2(25) during the past five years;
(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 chapter;
(9) The licensee or applicant knowingly made a false statement on any form promulgated pursuant to this chapter;
(10) The licensee or applicant has violated any provision of this chapter or the rules promulgated under this chapter; 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.
Source: SL 2016, ch 199, § 12.
36-38-13. Commencement of proceedings for cancellation or revocation of license.
If the board has information that any licensee may be guilty of any misconduct as provided in § 36-38-12 or is guilty of gross incompetence or unprofessional or dishonorable conduct, the board may institute proceedings for cancellation or revocation of the license.
Source: SL 2016, ch 199, § 13.
36-38-14. Hearing on cancellation or revocation of license--Decision.
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.
Source: SL 2016, ch 199, § 14.
36-38-15. Administrative procedure for cancellation or revocation of license.
All proceedings relative to the cancellation, revocation, or suspension of a license shall conform to the procedure set forth in chapter 1-26.
Source: SL 2016, ch 199, § 15.
36-38-16. Appeal.
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.
Source: SL 2016, ch 199, § 16.
36-38-17. Reinstatement of license.
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.
Source: SL 2016, ch 199, § 17.
36-38-18. Record of licensees.
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 chapter, the license number, and the date the license was issued or renewed. The record may be admitted as evidence in any court.
Source: SL 2016, ch 199, § 18.
36-38-19. Practice without license--Misdemeanor.
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.
Source: SL 2016, ch 199, § 19.
36-38-20. Duties of board.
In addition to the duties set forth elsewhere in this chapter, the board shall:
(1) Recommend prosecution for any violation of this chapter 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 chapter.
Source: SL 2016, ch 199, § 20.
36-38-22. Injunction--Election of injunction or criminal action.
Any person violating the provisions of this chapter 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.
Source: SL 2016, ch 199, § 22; SL 2023, ch 172, § 1.
36-38-23. Money credited to board of social work examiners fund.
Any money coming into the custody of the board pursuant to this chapter shall be credited to the South Dakota Board of Social Work Examiners fund established under § 36-26-43.
Source: SL 2016, ch 199, § 23; SL 2023, ch 172, § 1.
36-38-24. Confidentiality of consultation with behavior analyst.
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 chapter may be construed to require the person's confidential communications to be disclosed.
Source: SL 2016, ch 199, § 24.
36-38-25. Criminal background checks of assistant behavior analysts and paraprofessionals.
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. 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.
Source: SL 2016, ch 199, § 25; SL 2019, ch 175, § 1.
36-38-26. Certain assistant behavior analysts and paraprofessionals ineligible.
No assistant behavior analyst or paraprofessional who has been convicted of a felony or misdemeanor involving moral turpitude as defined in subdivision 22-1-2(25) during the past five years may deliver applied behavior analysis services under the direction of a behavior analyst.
Source: SL 2016, ch 199, § 26.
36-38-27. Promulgation of rules.
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 chapter, 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.
Source: SL 2016, ch 199, § 27.
