Authorized By: Board of Applied Behavior Analyst Examiners, Courtney Turner, Executive Director.

Authority: N.J.S.A. 45:8B-96.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2023-037.

Submit written comments by July 14, 2023, to:

Courtney Turner, Executive Director
Board of Applied Behavior Analyst Examiners
PO Box 47058
124 Halsey Street
Newark, New Jersey 07101
or electronically at: http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.

The agency proposal follows:

Summary

P.L. 2019, c. 337 (Act) created the Board of Applied Behavior Analyst Examiners (Board). The Act allows for the licensure and regulation of licensed applied behavior analysts and licensed assistant applied behavior analysts. The Board proposes new N.J.A.C. 13:42B, Board of Applied Behavior Analyst Examiner Rules, to implement the Act.

Proposed new N.J.A.C. 13:42B-1.1 sets forth the purpose and scope of the rules and the individuals to whom the proposed new rules do not apply. N.J.A.C. 13:42B-1.2 provides definitions for terms used throughout the chapter. The section provides definitions taken from the Act, such as "applied behavior analysis," "licensed assistant applied behavior analyst," and "licensed applied behavior analyst." The section also provides definitions for terms that are not defined in the Act, such as "paraprofessional technician," which is an unlicensed individual who provides applied behavior analyst services pursuant to a delegation from a licensed applied behavior analyst or licensed assistant applied behavior analyst.

Subchapter 2 establishes licensing standards for applied behavior analysts and assistant applied behavior analysts. Proposed new N.J.A.C. 13:42B-2.1 sets forth the information that an applicant for licensure as an applied behavior analyst must submit to the Board. This includes proof that the applicant holds a master's degree or doctoral degree and proof that the applicant is currently certified as a Board Certified Behavior [page=990] Analyst (BCBA) or Board Certified Behavior Analyst-Doctoral (BCBA-D) by the Behavior Analyst Certification Board (BACB). The section also requires an applicant to complete the online jurisprudence orientation. Proposed new N.J.A.C. 13:42B-2.2 sets forth application requirements for assistant applied behavior analysts. The section requires applicants to submit proof that they hold bachelor's degrees and proof that they are currently certified as a Board Certified Assistant Behavior Analyst (BCaBA) by the BACB. Applicants must also complete the online jurisprudence orientation.

Proposed new N.J.A.C. 13:42B-2.3 sets forth qualification requirements for licensure by reciprocity pursuant to N.J.S.A. 45:1-7.5. The proposed new section allows the Board to issue a license to applicants if the Board determines that the state in which applicants are licensed has standards for licensure substantially equivalent to Board standards and applicants have been practicing for at least two years within the five years prior to applying for licensure. Applicants will have to submit documentation from every state in which they are, or were ever, licensed indicating that their licenses are in good standing. Applicants will have to complete the online jurisprudence orientation, undergo criminal history background checks, and designate agents in New Jersey for service of process if they will not reside or have an office in New Jersey. The proposed new rule provides standards for determining if a license is in good standing and whether an examination is substantially similar to that required by the Board. The Board would be permitted to revoke a license obtained through fraud, deception, or misrepresentation. The Board could grant a license to an applicant whose license was not in good standing due to a pending action, disciplinary proceeding, or criminal charge, as long as the alleged conduct that is the subject of the action, proceeding, or charge did not have a direct or substantial relationship to applied behavior analysis services or is of a nature such that issuing a license to the applicant would be inconsistent with the public's health, safety, or welfare.

Proposed new N.J.A.C. 13:42B-2.4 establishes standards as to when the Board may consider an application for licensure abandoned. An application for a license will be deemed abandoned if an applicant has not submitted all of the information and documentation required to obtain a license and one year has elapsed since the last notice was sent to the applicant regarding deficiencies in the application. If an application is deemed abandoned, the Board will close the application and dispose of any information or documentation submitted by the applicant pursuant to the Division of Consumer Affairs' record retention plan. An applicant whose application has been deemed abandoned may reapply for licensure.

Subchapter 3 sets forth requirements for renewal of licenses. Proposed new N.J.A.C. 13:42B-3.1 addresses renewal of licensure requirements from N.J.S.A. 45:1-7.1. The section requires licensees to renew licensure biennially. Renewal applicants will have to attest that they are currently certified by the BACB. The Board is required to send out notices of renewal that explain the option to renew as inactive. Licensees would be permitted to renew within 30 days of license expiration by paying a late renewal fee. A licensee who did not renew a license by the end of this 30-day late period would be suspended. A licensee who renews as inactive or whose license has been suspended shall not provide applied behavior analysis services.

Proposed new N.J.A.C. 13:42B-3.2 addresses reactivation of licensure pursuant to N.J.S.A. 45:1-7.4. A licensee seeking to reactivate a license would be required to submit a reactivation application, a certification of employment listing jobs held while the license was inactive, proof that the licensee is certified by the BACB, and the renewal fee. The proposed new rules would permit the Board to require a licensee to pass an examination, complete a refresher course, or meet any other Board-imposed requirements, if the Board determines that there is a reason to conclude that the licensee would not be able to practice safely. The proposed new section provides criteria for determining if a practice deficiency exists.

N.J.A.C. 13:42B-3.3 establishes standards for reinstating a suspended license. A licensee seeking to reinstate a license would have to submit a reinstatement application, a certification of employment listing jobs held during the period a license was suspended, proof that the licensee is certified by the BACB, the current renewal fee, the past due fee from the last renewal period, and a reinstatement fee. The section permits the Board to require an applicant for reinstatement to pass an examination, complete a refresher course, or meet any other Board-imposed requirements, if the Board determines that there is a reason to conclude that an applicant would not be able to practice safely. The new section provides criteria for determining if a practice deficiency exists.

Subchapter 4 sets forth various aspects of professional practice by licensees. Proposed new N.J.A.C. 13:42B-4.1 establishes that individuals who are not licensed by the Board and who do not qualify for an exemption to licensure requirements pursuant to N.J.A.C. 13:42B-1.1(c) are prohibited from practicing applied behavior analysis. The section also sets forth titles that are reserved to those licensed as applied behavior analysts and assistant applied behavior analysts.

Proposed new N.J.A.C. 13:42B-4.2 addresses sexual misconduct. The section prohibits licensees from engaging in sexual contact with a client, or a family member or guardian of a client, while a client-licensee relationship is ongoing. They are also prohibited from seeking sexual contact with a client or with any person in exchange for professional services, or from engaging in sexual harassment inside or outside of the professional setting. Proposed new N.J.A.C. 13:42B-4.3 requires licensees to notify the Board of changes in their registered address or legal name, or a change in supervisor for a licensed assistant applied behavior analyst, within 30 days of the change.

P.L. 2020, c. 133 imposes identification tag and office signage requirements on health care professionals licensed by a board within the Division of Consumer Affairs, which includes individuals licensed by the Board. Proposed new N.J.A.C. 13:42B-4.4 effectuates P.L. 2020, c. 133, for Board licensees. The section requires licensees to wear a name tag or identification embroidered on the outermost layer of clothing when providing in-person care. The tag must include the licensee's full name, the term "licensed applied behavior analyst" or "licensed assistant applied behavior analyst," as applicable, and the professional degree issued to the licensee. If a licensee is providing direct patient care in a hospital, the name tag or embroidered identification must also include a recent photograph of the license; however, if a hospital administrator determines that such photographs are not necessary, a licensee will not be required to comply with this requirement. The section also requires licensees to post a sign in offices where services are provided to clients that states that the licensee is a licensed applied behavior analyst, or a licensed assistant applied behavior analyst, and that indicates the professional degree the licensee holds. A licensee will not be required to post this sign if the licensee is working at an in-patient hospital or emergency department patient care. If a licensee is providing services through telemedicine or telehealth, the licensee will not be required to wear the name tag or post the sign.

Proposed new N.J.A.C. 13:42B-4.5 establishes when a licensee must report to the Board or the Division on the actions of other licensees or other health care professionals. The section also establishes the instances when a licensee must self-report to the Board. Proposed new N.J.A.C. 13:42B-4.6 requires licensees to disclose to clients, or their guardians, information regarding the nature of treatment and any attendant risks. This information must include the means by which services will be provided. The section requires licensees to document in client records that this information was provided to a client or guardian.

Subchapter 5 addresses standards for supervision and delegation. Proposed new N.J.A.C. 13:42B-5.1 establishes supervision standards for licensed assistant applied behavior analysts, who cannot provide services unless supervised by licensed applied behavior analysts. A supervising licensed applied behavior analyst will be required to complete a training course that covers BACB supervisor training standards. The proposed new section requires licensed assistant applied behavior analysts to meet with supervisers face-to-face to discuss services they provide and any issues or concerns they have encountered while providing services. The frequency of such meetings will depend on how long a licensed assistant applied behavior analyst has been licensed. If either the licensed assistant applied behavior analyst or the supervisor determines that additional supervision is necessary, they may meet more often than the required amount set forth in the section.

Pursuant to N.J.S.A. 45:8B-103, a paraprofessional technician may provide applied behavior analysis services without holding a Board license, as long as such services are provided pursuant to the extended authority and direction of a licensee. Proposed N.J.A.C. 13:42B-5.2 [page=991] establishes standards for licensees to provide this extended authority and direction through delegation. The section prohibits a licensee from delegating the assessment of a client or the development of a treatment plan or intervention. Licensees are also prohibited from delegating an intervention if the licensee determines that such delegation would not be appropriate. The section clarifies that a licensee is responsible for any care a client receives pursuant to a delegation by the licensee. The section establishes two standards for delegating an intervention to a paraprofessional technician, one for situations where the paraprofessional technician is employed by, or under contract to perform duties in, a licensed facility, and another for when interventions will be performed in any other setting.

If an intervention is performed by a person employed by or contracted to perform duties in a licensed facility, the licensee will be required to: assess the needs of the client; determine which interventions may be delegated; identify the individual who will supervise the paraprofessional technicians performing the delegated interventions; determine that the facility has policies and procedures that address the ability of paraprofessional technicians to perform delegated interventions; communicate to the supervisor directions and expectations for delegated interventions; establish methods for the supervisor to communicate interventions and expectations to paraprofessional technicians; establish methods for supervisors to communicate with the licensee; and document in facility records that the licensee went through the steps required for delegations.

If a delegated intervention will not occur in a licensed facility, a licensee is required to: assess the needs of the client; determine which interventions can be delegated to a paraprofessional technician; identify the paraprofessional technician who will perform the delegated intervention; evaluate the ability of the paraprofessional technician to perform the intervention; communicate to the paraprofessional the interventions being delegated along with directions and expectations for those interventions; establish methods for the paraprofessional technician to communicate with the licensee; and document in client records the identity of the paraprofessional technician and the specific interventions delegated to that paraprofessional technician.

Proposed new N.J.A.C. 13:42B-5.3 addresses supervision of students completing education or experience necessary to obtain certification from the BACB. The section requires a licensed applied behavior analyst providing such supervision to comply with BACB supervision requirements set forth in the BCAB 2022 Eligibility Requirements or BCaBA 2022 Eligibility Requirements, both of which have been incorporated by reference, as amended and supplemented.

Subchapter 6 addresses business practices for licensees. Proposed new N.J.A.C. 13:42B-6.1, 6.2, 6.3, and 6.4 set forth requirements for advertising. Proposed new N.J.A.C. 13:42B-6.1 permits a licensee to advertise and prohibits inaccurate or misleading statements in advertisements. The Board may request that a licensee substantiate any statement made in an advertisement. The section prohibits a licensee from soliciting clients and sets forth standards for advertising of fees. The proposed new section ensures that licensees are advertising in a truthful manner.

Proposed new N.J.A.C. 13:42B-6.2 deals with advertising discounted fees. An advertisement that offers a reduced fee must state the usual fee and the reduced fee. If a licensee offers free services in an advertisement, he or she cannot charge for any service for 72 hours from the time a free service is rendered, unless a service was specifically exempted in the advertisement from free services. The proposed new section ensures that fees that are advertised as discounted are actually discounted from the usual fee charged for those services.

Proposed new N.J.A.C. 13:42B-6.3 imposes requirements on licensees who use testimonials in advertisements. Testimonials must truthfully reflect the experience of the client making the testimonial. Licensees will be required to substantiate any statement of fact in a testimonial and, when compensation is made for a testimonial, the advertisement must reflect this. The proposed new section ensures that testimonials used in advertisements are not misleading.

Pursuant to proposed new N.J.A.C. 13:42B-6.4, every advertisement must contain a licensee's name and license number, the term "licensed applied behavior analyst" or "licensed assistant applied behavior analyst," as appropriate, the professional degree held by the licensee, and the address and telephone number of the practice. The section also provides that the only individuals who may offer applied behavior analysis services are those who are licensed by the Board.

Proposed new N.J.A.C. 13:42B-6.5 sets forth recordkeeping requirements. The section requires licensees to prepare a record for each client. The section prohibits the falsification of records and sets forth the minimum information that must be in the records. Records must be maintained for at least seven years or, in the case of minor clients, for seven years from the date of last entry or until the client turns 25 years old, whichever is longer.

Proposed new N.J.A.C. 13:42B-6.6 requires licensees to release records to clients and authorized representatives. Licensees may charge a fee of $ 1.00 per page or $ 100.00 total, whichever is less, for requested records. If records are unreadable because they are illegible or are not in English, licensees will be required to provide a transcript of the records. When a client requests the release of a record, licensees are required to secure written authorization for the release, signed by the client or the client's representative in order to help preserve the confidentiality of records and to prevent the inappropriate release of records. The section permits a licensee to withhold information in a client record if, in the licensee's professional judgment, release of this information would adversely affect the client's health, safety, or welfare. If a client withholds client information, the licensee is required to release the client record, and an explanation as to why information was withheld, upon the request of a client's attorney, another licensed healthcare professional, or the client's insurance carrier.

Proposed new N.J.A.C. 13:42B-6.7 establishes standards for records kept on computers. A licensee who uses a computer to maintain records must use a program that contains date and time recordation for all entries, automatically prepares a back-up of a file, and is designed so that, once an entry is "signed" by a licensee, the entry cannot be changed. Client records maintained on computers must include two forms of identification. Licensees will be required to finalize an entry by means of a confidential personal code. If more than one person can make entries in a record, each such person must have a confidential personal code. Licensees will be required to generate a hard copy of a client's record upon request.

P.L. 2017, c. 117 authorizes healthcare providers to engage in telemedicine and telehealth. Subchapter 7 effectuates the provisions at P.L. 2017, c. 117, as the law relates to applied behavior analysis services. Proposed new N.J.A.C. 13:42B-7.1 requires individuals to hold a Board license if they are physically located in New Jersey and are providing applied behavior analysis services by means of telemedicine or telehealth or if they are physically located outside of New Jersey and are providing applied behavior analysis services by means of telemedicine or telehealth to clients located in New Jersey. The section clarifies that a healthcare provider in another state who uses communications technology to consult with a New Jersey licensee and who is not directing patient care will not be required to obtain a license in New Jersey.

Proposed new N.J.A.C. 13:42B-7.2 provides definitions for the terms used in Subchapter 7.

N.J.A.C. 13:42B-7.3 requires a licensee to determine whether he or she can provide applied behavior analysis services through telemedicine or telehealth consistent with the standard of care for such services when provided in-person. If such provision of applied behavior analysis services would not meet that standard, a licensee cannot provide services through telemedicine or telehealth and the licensee would be required to advise the patient to receive applied behavior analysis services in-person. A licensee who provides services through telemedicine or telehealth will be held to the same standard of care and practice standards as are applicable when applied behavior analysis services are provided in-person.

N.J.A.C. 13:42B-7.4 establishes how licensees will create a licensee-client relationship prior to providing applied behavior analysis services through telemedicine or telehealth. Licensees must identify clients and disclose their identities. Before licensees can provide services through telemedicine or telehealth, they are required to review a client's history and any available records. The rule requires licensees to determine if applied behavior analysis service can be provided through telemedicine or telehealth with the same standard of care as if the services were provided [page=992] in-person. This determination has to be made prior to each unique client encounter. Licensees will not have to establish a licensee-client relationship if: services are provided as informal consultations, or on an infrequent basis, and there is no compensation for the services; services are part of episodic consultations by specialists in another jurisdiction; services are provided during an emergency or disaster without compensation; or a licensee is providing on-call or cross-coverage services.

N.J.A.C. 13:42B-7.5 permits licensees to provide applied behavior analysis services through telemedicine and to support and facilitate the provision of applied behavior analysis services to a client through telehealth if they have established licensee-client relationships with clients. Prior to providing services, licensees must determine the site at which clients are located and record this in client records. When licensees provide services through telemedicine, they must use interactive, real-time, two-way communication technologies, which include a video component. Licensees will not have to use technology that includes a video component if they determine, after reviewing a client's records, that they can meet the standard of care for such services provided in-person without video. In such a situation, licensees may use interactive, real-time, two-way audio in combination with technology that permits the transmission of images, diagnostics, data, and medical information.

A licensee will be required to review a client's history and records prior to an initial encounter with the client and, for subsequent interactions, review the history and records either prior to or during interactions. A licensee who provides services through telemedicine or telehealth will be required to provide contact information to a client by which the client can contact the licensee, or an alternative licensee, for at least 72 hours after the provision of services. A licensee must provide clients with records upon request. Licensees also must provide a client's information to a client's primary care provider or other health care or mental health care provider upon written request. Licensees will be required to provide a referral for follow-up care when it is necessary.

Proposed new N.J.A.C. 13:42B-7.6 requires licensees to maintain records of care provided to clients through telemedicine or telehealth. Such records must comply with the requirements at N.J.A.C. 13:42B-6.5 and all other statutes, rules, and regulations governing recordkeeping, confidentiality, and disclosure.

Proposed new N.J.A.C. 13:42B-7.7 requires licensees to establish written protocols to prevent fraud and abuse. Such protocols must address: identification of users, patients, and the origin of information; the prevention of unauthorized access to a system or information; system security; maintenance of documentation; information storage, maintenance, and transmission; and verification of client data.

Proposed new N.J.A.C. 13:42B-7.8 requires licensees to establish privacy practices for electronic communications that comply with the standards at 45 CFR Parts 160 and 164, which are incorporated by reference. These privacy practices must include measures to protect confidentiality and client-identifiable information, and transmissions must be protected by passwords, encryption, or other authentication techniques. If licensees become aware of a breach of confidentiality, they must report this as required pursuant to 45 CFR 164. Licensees must provide clients or clients' guardians with copies of privacy practices and obtain written acknowledgement of receipt from clients or guardians. The section also requires licensees to provide clients or clients' guardians with notices regarding telemedicine and telehealth that includes risks of using technology to provide psychological services and information on how to receive follow-up care. Licensees must obtain a signed and dated statement from clients or guardians recognizing receipt of this notice. If the provision of services through telemedicine or telehealth cannot provide all clinical information necessary to provide care, licensees will have to inform clients of this and advise clients that they should receive in-person evaluations to meet their needs.

Subchapter 8 pertains to fees. Proposed new N.J.A.C. 13:42B-8.1 sets forth the fees the Board will charge for the services it provides.

As the Board has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed new rules will have a positive impact on clients who are the recipients of applied behavior analysis services and the applied behavior analysis industry. Requiring applied behavior analysts and assistant applied behavior analysts to hold licensure will ensure that every analyst is properly prepared to provide safe and effective applied behavior analysis and that any applied behavior analyst or assistant applied behavior analyst who engages in inappropriate behavior will be subject to Board discipline. Additionally, the new rules will provide clients with the ability to direct questions, concerns, or problems that may arise with any licensee to the Board.

Economic Impact

The proposed new rules will impose costs on applicants for licensure and licensees.

N.J.A.C. 13:42B-2.1 and 2.2 set forth application requirements for licensure. Applicants will bear the cost of obtaining licensure. N.J.S.A. 45:8B-96 requires the Board to charge fees for licensure. This cost will be outweighed by the benefits of ensuring that applicants are adequately prepared to safely and effectively provide applied behavior analysis services. These fees will also ensure that the Board of Applied Behavior Analyst Examiners has the funds to effectively manage the program.

N.J.A.C. 13:42B-3.1 requires licensees to renew licensure biennially with the Board and pay the fee set forth at N.J.A.C. 13:42B-8.1. These fees are charged in order for the Board to be self-funding and in compliance with N.J.S.A. 45:1-3.2 and are required pursuant to N.J.S.A. 45:8B-96. The fees have been set at the lowest level calculated to discharge the duties of the Board, given the estimate of those who will seek licensure. The proposed new section requires licensees to submit proof that they are currently certified by the BACB. The cost of obtaining and maintaining BACB certification will be borne by licensees.

N.J.A.C. 13:42B-4.4 requires licensees to wear specific identification tags and to maintain certain signage in offices, which is required pursuant to N.J.S.A. 45:1-70. The costs of obtaining identification tags and the required signage will be borne by licensees. These costs will be outweighed by the benefits of ensuring clients are aware of the identity and credentials of individuals providing applied behavior analysis services. N.J.A.C. 13:42B-6.4 requires that advertising and professional representations include specific information. Licensees will bear the cost of including this information in any advertisements or professional representations. N.J.A.C. 13:42B-7.5 requires licensees to use communication technologies that provide for interactive, real-time, two-way communication that includes a video component, which is required pursuant to N.J.S.A. 45:1-62. Licensees may incur costs in obtaining such communication technologies.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed new rules.

Jobs Impact

The Board does not anticipate the proposed new rules will increase or decrease the number of jobs in the State.

Agriculture Industry Impact

The proposed new rules will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

As applied behavior analysts and assistant applied behavior analysts will be individually licensed by the Board, they may be considered "small businesses" pursuant to the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.

The costs imposed on small businesses by the proposed new rules will be the same costs that are imposed on all licensees as set forth in the Economic Impact Statement. The Board does not believe that licensees will need to employ any professional services to comply with the proposed new rules. The proposed new rules impose compliance, reporting, and recordkeeping requirements as detailed in the Summary. Compliance requirements regarding license applications, licensure, renewal of licensure, reinstatement of lapsed licenses, and reactivation of inactive licenses are imposed pursuant to N.J.S.A. 45:1-7.1, 7.2, 7.3, and 7.4, as [page=993] well as N.J.S.A. 45:8B-96, 98, and 101. Compliance requirements for identification tags and advertising are imposed pursuant to N.J.S.A. 45:1-70, and telemedicine and telehealth compliance requirements are imposed pursuant to N.J.S.A. 45:1-62.

As the compliance, reporting, and recordkeeping requirements in the proposed new rules are necessary to adequately regulate licensees and protect consumers who receive applied behavior analysis services, the Board believes that the rules must be uniformly applied to all licensees and no exemptions are provided based on the size of the licensee's business.

Housing Affordability Impact Analysis

The proposed new rules will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the rulemaking would evoke a change in the average costs associated with housing because the proposed new rules concern the licensure of applied behavior analysts and assistant applied behavior analysts.

Smart Growth Development Impact Statement

The proposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rulemaking would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, pursuant to the State Development and Redevelopment Plan in New Jersey because the proposed new rules concern the licensure of applied behavior analysts and assistant applied behavior analysts.

Racial and Ethnic Community Criminal Justice and Public Safety Impact

The Board has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.

Full text of the proposed new rules follows:

CHAPTER 42B

BOARD OF APPLIED BEHAVIOR ANALYST EXAMINERS RULES

SUBCHAPTER 1. GENERAL PROVISIONS

13:42B-1.1 Purpose and scope

(a) The purpose of this chapter is to implement the provisions at P.L. 2019, c. 337 (N.J.S.A. 45:8B-91 et seq.), which created the Board of Applied Behavior Analyst Examiners.

(b) This chapter does not apply to any of the following persons, unless they represent themselves as licensed applied behavior analysts or licensed assistant applied behavior analysts or by any title set forth at N.J.A.C. 13:42B-4.1:

1. Persons licensed to practice a profession in New Jersey, including physicians, psychologists, psychoanalysts, marriage and family therapists, social workers, professional or rehabilitation counselors, or speech-language pathologists or audiologists, provided they are providing services within their professional scope of practice;

2. Family members of recipients of applied behavior analysis services who implement applied behavior analysis treatment plans with the recipients pursuant to the extended authority and direction of a licensee;

3. Paraprofessional technicians who deliver applied behavior analysis services pursuant to the extended authority and direction of a licensee, provided that such paraprofessional technicians use titles that indicate their nonprofessional status;

4. Applied behavior analysts who practice with nonhumans, and who may use the title "applied behavior analysts," including applied animal behaviorists and animal trainers;

5. Professionals who provide general applied behavior analysis services to organizations, and who may use the title "applied behavior analysts," if those services are for the benefit of the organizations and do not involve direct services to individuals;

6. Matriculated college or university students whose applied behavior analysis activities are part of a defined program of study, course, practicum, internship, or post-doctoral fellowship, if the applied behavior analysis activities pursuant to this exemption are directly supervised by licensed applied behavior analysts, psychologists, or exempt professionals in this State, instructors in a course sequence approved by the Board, or another qualified faculty member, provided that such students use titles that indicate their nonprofessional status;

7. Unlicensed persons pursuing experience in applied behavior analysis consistent with the experience requirements of BACB, if the experience is supervised in accordance with the requirements of the BACB;

8. Persons who teach applied behavior analysis in institutes accredited by a regional accrediting body recognized by the United States Department of Education, Office of Postsecondary Education, or who conduct behavior analytic research, and who may use the title "applied behavior analysts," if the teaching or research does not involve the direct delivery of applied behavior analysis services to individuals or the supervision of individuals who provide applied behavior analysis to individuals;

9. Applied behavior analysts or applied assistant applied behavior analysts who work in New Jersey for no more than 10 consecutive business days, or no more than 15 intermittent business days, in any 90-day period, if the analysts reside outside, and the analysts' major practice is outside of, New Jersey, and the analysts give the Board a summary of qualifications and a minimum of 10 days written notice of the analysts' intention to practice in the State pursuant to this section, provided they:

i. Are certified or licensed in another state under substantially equivalent requirements as the Board's;

ii. Are certified by the BACB as BCBAs, BCBA-Ds, or BCaBAs; or

iii. Reside in a state that does not certify or license applied behavior analysts and the Board considers the analysts' professional qualifications to be substantially equivalent to the Board's requirements for licensure, as long as they have not been denied licensure by the Board;

10. Employees of a school district, charter school, education services commission, or private school in the performance of regular employment duties, if the provision of applied behavior analysis services is only on behalf of the school employer and remuneration for the provision of those services is provided solely by the school employer;

11. Persons working under the authority of, or under contract with, the Division of Developmental Disabilities, in the Department of Human Services, if the provision of applied behavior analysis services is only on behalf, of or under contract with, the Division of Developmental Disabilities and remuneration for the provision of those services is provided solely by the Division of Developmental Disabilities or one of its contracted providers. This provision shall be in effect until (three years from the effective date of this chapter); and

12. Persons who are working under the authority of, and under contract with, the New Jersey Early Intervention Program, in the Department of Health, if the provision of applied behavior analysis services is only on behalf of, or under contract with, the New Jersey Early Intervention Program or one of its contracted providers. This provision shall be in effect until (five years from the effective date of these rules).

13:42B-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Applied behavior analysis" means the practice of designing, implementing, and evaluating instructional and environmental modifications to produce socially significant improvements in human behavior, including the empirical identification of functional relations between behavior and environmental factors, known as functional assessment and analysis. Applied behavior analysis interventions are based on scientific research and direct and indirect observation and measurement of behavior and environment. Applied behavior analysts utilize contextual factors, motivating operations, antecedent stimuli, positive reinforcement, and other procedures to help individuals develop new behaviors, increase or decrease existing behaviors, and emit behaviors pursuant to specific environmental conditions. The practice of behavior analysis does not include psychological testing, diagnosis of mental, physical, or speech language, hearing, and other communication and swallowing disorders, neuropsychology, psychotherapy, cognitive [page=994] therapy, sex therapy, psychoanalysis, hypnotherapy, and counseling as treatment modalities.

"BACB" means the Behavior Analyst Certification Board.

"BCaBA" means a Board Certified Assistant Behavior Analyst from the BACB.

"BCBA" means a Board Certified Behavior Analyst from the BACB.

"BCBA-D" means as Board Certified Behavior Analyst-Doctoral from the BACB.

"Board" means the State Board of Applied Behavior Analyst Examiners.

"Licensed applied behavior analyst" means a person who holds a current, valid license to practice applied behavior analysis issued by the Board.

"Licensed assistant applied behavior analyst" means a person who holds a current, valid license to practice applied behavior analysis under the ongoing supervision of a licensed applied behavior analyst issued by the Board.

"Licensee" means an individual who is licensed as a licensed applied behavior analyst or as a licensed assistant applied behavior analyst.

"Paraprofessional technician" means an individual who provides applied behavior analysis services pursuant to a delegation from a licensee and who is not a licensed applied behavior analyst, licensed assistant applied behavior analyst, or who does not otherwise qualify for exemption to licensure requirements pursuant to N.J.S.A. 45:8B-103.b(2) or N.J.A.C. 13:42B-1.1. "Paraprofessional technician" includes a Registered Behavior Technician (RBT) certified by the BACB.

SUBCHAPTER 2. APPLICATION FOR LICENSURE

13:42B-2.1 Application for a license as an applied behavior analyst

(a) An applicant for a license as an applied behavior analyst shall submit to the Board:

1. A completed application for license on a form available from the Board;

2. Proof that the applicant holds a master's degree or doctoral degree from an institution accredited by a regional accrediting body recognized by the United States Department of Education, Office of Postsecondary Education;

3. Proof that the applicant holds current certification as a BCBA or BCBA-D; and

4. The application fee set forth at N.J.A.C. 13:42B-8.1.

(b) In addition to the requirements at (a) above, an applicant shall complete the jurisprudence online orientation.

13:42B-2.2 Application for a license as an assistant applied behavior analyst

(a) An applicant for a license as an assistant applied behavior analyst shall submit to the Board:

1. A completed application for license on a form available from the Board;

2. Proof that the applicant holds a bachelor's degree from an institution accredited by a regional accrediting body recognized by the United States Department of Education, Office of Postsecondary Education;

3. Proof that the applicant holds current certification as a BCaBA;

4. The identity of the licensed applied behavior analyst who will supervise the applicant; and

5. The application fee set forth at N.J.A.C. 13:42B-8.1.

(b) In addition to the requirements at (a) above, an applicant shall complete the jurisprudence online orientation.

13:42B-2.3 Licensure by reciprocity

(a) Upon receipt of a completed application and application fee, the Board shall issue a license to any person who documents that he or she holds a valid, current corresponding license in good standing issued by another state, if:

1. The Board determines that the state that issued the license has or had at the time of issuance, education, training, and examination requirements for licensure substantially equivalent to the current Board standards;

2. The applicant has been practicing as an applied behavior analyst or assistant applied behavior analyst for a period of at least two years within the five years prior to the date of application; and

3. The requirements at (b) below are satisfied.

(b) Prior to the issuance of the license, the Board shall have received:

1. Documentation that the applicant's license in the other state is in good standing; and

2. Designation of an agent in New Jersey for service of process if the applicant is not a New Jersey resident and does not have an office in New Jersey.

(c) For purposes of this section, "good standing" means that:

1. No action has been taken against the applicant's license by any licensing board;

2. No action adversely affecting the applicant's privileges to practice applied behavior analysis has been taken by any out-of-State institution, organization, or employer;

3. No disciplinary proceeding is pending that could affect the applicant's privileges to practice applied behavior analysis;

4. All fines levied by any out-of-State board have been paid; and

5. The applicant has not been convicted of, or engaged in acts constituting, a crime or offense that has a direct or substantial relationship to activities regulated by the Board or is of a nature such that issuing a license to the applicant would be inconsistent with the public's health, safety, or welfare.

(d) For purposes of this section, a "substantially equivalent" examination need not be identical to the current examination requirements of this State, but such examination shall be nationally recognized and of comparable scope and rigor.

(e) The Board, after the licensee has been given notice and an opportunity to be heard, may revoke any license based on a license issued by another state obtained through fraud, deception, or misrepresentation.

(f) An applicant shall complete the jurisprudence on-line orientation.

(g) The Board may grant a license without examination to an applicant seeking reciprocity who holds a corresponding license from another state who does not meet the good standing requirement at (a) above due to a pending action by a licensing board, a pending action by an out-of-State institution, organization, or employer affecting the applicant's privileges to practice, a pending disciplinary proceeding, or a pending criminal charge or arrest for a crime, provided the alleged conduct of the applicant that is the subject of the action, proceeding, charge, or arrest does not have a direct or substantial relationship to the practice of applied behavior analysis or is of a nature such that certification, registration, or licensure of the person would be inconsistent with the public's health, safety, or welfare.

13:42B-2.4 Abandonment of application for licensure

(a) An application for a license submitted to the Board will be deemed abandoned if:

1. The individual applying for the license has not submitted to the Board all of the information and documentation required to obtain a license pursuant to N.J.A.C. 13:42B-2.1, 2.2, or 2.3; and

2. One year has elapsed since the last notice to the applicant was sent by the Board informing the applicant that the Board had not received all of the information and documentation required for licensure.

(b) If an application for licensure is deemed abandoned pursuant to (a) above, the Board shall administratively close the application and shall dispose of any information or documentation submitted by the applicant pursuant to the Division of Consumer Affairs' record retention plan.

(c) An individual whose application for licensure has been administratively closed by the Board pursuant to (a) above may reapply for licensure pursuant to N.J.A.C. 13:42B-2.1, 2.2, or 2.3.

SUBCHAPTER 3. RENEWAL OF LICENSURE

13:42B-3.1 Renewal of licensure

(a) The Board shall send a notice of renewal to each licensee at least 60 days prior to the expiration of the license. The notice of renewal shall explain inactive renewal and advise the licensee of the option to renew as inactive. If the notice to renew is not sent at least 60 days prior to the expiration date, no monetary penalties or fines shall apply to the holder for failure to renew, provided that the license is renewed within 60 days from the date the notice is sent or within 30 days following the date of license expiration, whichever is later.

[page=995] (b) A licensee shall renew the license for a period of two years from the last expiration date. The licensee shall submit to the Board, prior to the date of license expiration:

1. A renewal application;

2. Proof that the licensee is currently certified as a BCBA, BCBA-D, or BCaBA; and

3. The renewal fee set forth at N.J.A.C. 13:42B-8.1.

(c) A licensee may renew a license by choosing inactive status. A licensee electing to renew as inactive shall not engage in the practice of applied behavior analysis, or hold themselves out as eligible to engage in the practice of applied behavior analysis in New Jersey, while the licensee remains on inactive status.

(d) If a licensee does not renew the license prior to its expiration date, the licensee may renew the license within 30 days of its expiration by submitting a renewal application, a renewal fee, and a late fee as set forth at N.J.A.C. 13:42B-8.1. During this 30-day period, the license shall remain valid and the licensee shall not be deemed to be practicing without a license.

(e) The license of a licensee who fails to submit a renewal application within 30 days of license expiration shall be suspended without a hearing.

(f) A licensee who continues to engage in the practice of applied behavior analysis with a suspended license shall be deemed to be engaging in the unlicensed practice of applied behavior analysis and shall be subject to action consistent with N.J.S.A. 45:1-14 et seq., even if no notice of suspension has been received by the individual.

13:42B-3.2 License reactivation

(a) A licensee who holds an inactive license pursuant to N.J.A.C. 13:42B-3.1(c) may apply to the Board for reactivation of an inactive license. A licensee seeking reactivation of an inactive license shall submit:

1. A reactivation application;

2. A certification of employment listing each job held during the period the license was inactive that includes the names, addresses, and telephone number of each employer;

3. Proof that the licensee is currently certified as a BCBA, BCBA-D, or BCaBA; and

4. The renewal fee for the biennial period for which reactivation is sought as set forth at N.J.A.C. 13:42B-8.1.

(b) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reactivation, the Board may require the applicant to pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reactivation of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant, as a condition of reactivation of licensure, to complete education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to ensure that the applicant practices with reasonable skill and safety. The Board may restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In determining whether there are practice deficiencies requiring remediation, the Board may consider the following:

1. Length of time license was inactive;

2. Employment history;

3. Professional history;

4. Disciplinary history and any action taken against the applicant's license by any professional or occupational board;

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of applied behavior analysis or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and

7. Civil litigation related to the practice of applied behavior analysis or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.

13:42B-3.3 Reinstatement of suspended license

(a) A licensee who has had his or her license suspended pursuant to N.J.A.C. 13:42B-3.1(e) may apply to the Board for reinstatement. A licensee applying for reinstatement shall submit:

1. A reinstatement application;

2. A certification of employment listing each job held during the period of suspended license, which includes the names, addresses, and telephone number of each employer;

3. Proof that the licensee is currently certified as a BCBA, BCBA-D, or BCaBA;

4. The renewal fee set forth at N.J.A.C. 13:42B-8.1 for the biennial period for which reinstatement is sought;

5. The past due renewal fee for the biennial period immediately preceding the renewal period for which reinstatement is sought; and

6. The reinstatement fee set forth at N.J.A.C. 13:42B-8.1.

(b) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reinstatement, the Board may require the applicant to pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reinstatement of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant, as a condition of reinstatement of licensure, to complete education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to ensure that the applicant practices with reasonable skill and safety. The Board may restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In determining whether there are practice deficiencies requiring remediation, the Board may consider the following:

1. Length of time license was suspended;

2. Employment history;

3. Professional history;

4. Disciplinary history and any action taken against the applicant's license by any professional or occupational board;

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of applied behavior analysis or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and

7. Civil litigation related to the practice of applied behavior analysis or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.

SUBCHAPTER 4. PROFESSIONAL PRACTICE

13:42B-4.1 Prohibitions on unlicensed persons; designations for licensed persons

(a) Unless licensed as an applied behavior analyst or assistant applied behavior analyst or exempt pursuant to N.J.A.C. 13:42B-1.1(c), no person shall practice applied behavior analysis. Unless licensed as an applied behavior analyst or assistant applied behavior analyst, no person shall use any of the titles set forth at (b) or (c) below.

(b) A licensed applied behavior analyst may use the titles:

          1. Licensed behavior analyst;

          2. Licensed applied behavior analyst; and

          3. LBA.

(c) A licensed assistant applied behavior analyst may use the titles:

         1. Licensed assistant behavior analyst;

          2. Licensed assistant applied behavior analyst; and

          3. LaBA.

13:42B-4.2 Sexual misconduct

(a) The purpose of this section is to identify for licensees conduct that shall be deemed sexual misconduct.

(b) As used in this section, the following terms have the following meanings:

[page=996] "Client" means any person who is the recipient of applied behavior analysis services.

"Client-licensee relationship" means a relationship between a licensee and a client in which the licensee owes a continuing duty to the client to render applied behavior analysis services consistent with the licensee's training and experience.

"Sexual contact" means the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensee's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes, but is not limited to, the imposition of a part of the licensee's body upon a part of the client's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee's or client's body into or near the genital, anal, or other opening of the other person's body. "Sexual contact" does not include the touching of a client's body that is necessary during the performance of a generally accepted and recognized applied behavior analysis encounter.

"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or non-verbal conduct that is sexual in nature, which occurs in connection with a licensee's activities or role as a licensee that is unwelcome or offensive to a reasonable person, or creates a hostile workplace environment or other clinical setting, and the licensee knows, should know, or is told. "Sexual harassment" may consist of a single extreme or severe act or multiple acts and may include, but is not limited to, conduct of a licensee with a client, co-worker, employee, student, or supervisee, whether or not such individual is in a subordinate position to the licensee.

(c) A licensee shall not engage in sexual contact with a client with whom the licensee has a client-licensee relationship. The client-licensee relationship is ongoing for purposes of this section, unless more than two years has elapsed since the last applied behavior analysis service was rendered and the relationship is actively terminated by way of written notice to the client and documentation in the client record; provided, however, the client-licensee relationship shall be considered ongoing for an indefinite period of time if the client, by reason of emotional or cognitive disorder, is vulnerable to the exploitative influence of the licensee.

(d) A licensee shall not engage in sexual contact with a family member or guardian of a client with whom the licensee has a client-licensee relationship. The client-licensee relationship is ongoing for purposes of this section, unless more than two years has elapsed since the last applied behavior analysis service was rendered and the relationship is actively terminated by way of written notice to the client and documentation in the client record.

(e) A licensee shall not seek or solicit sexual contact with a client with whom he or she has a client-licensee relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.

(f) A licensee shall not engage in any discussion of an intimate sexual nature with a person with whom the licensee has a client-licensee relationship, unless that discussion is directly related to a proper applied behavior analysis purpose. A licensee shall not discuss inappropriate details of their sexual relationships with a client.

(g) A licensee shall provide privacy conditions that prevent the exposure of the unclothed body of the client. Appropriate draping measures shall be employed to protect client privacy.

(h) A licensee shall not engage in sexual harassment either within or outside of the professional setting.

(i) A licensee shall not engage in any other activity which would lead a reasonable person to believe that the activity serves the licensed applied behavior analyst's or licensed assistant applied behavior analyst's personal prurient interests, or which is for the sexual arousal, or sexual gratification, of the licensee or of a client or which constitutes an act of sexual abuse.

(j) Violation of any of the prohibitions or directives set forth at (c) through (i) above shall constitute professional misconduct pursuant to N.J.S.A. 45:1-21(e).

(k) It shall not be a defense to any action pursuant to this section that:

1. The client solicited or consented to sexual contact with the licensee; or

2. The licensee is in love with or held affection for the client.

13:42B-4.3 Change in address of record, name, or supervisor

(a) A licensee shall notify the Board, in writing, within 30 days of the changes to:

1. The licensee's address registered with the Board. Service to the address registered with the Board shall constitute effective notice pursuant to N.J.A.C. 13:45-3.2;

2. The licensed applied behavior analyst's or licensed assistant applied behavior analyst's legal name. Notification of a name change shall include a copy of the marriage license or a court order which authorized the legal name change; or

3. The licensed applied behavior analyst who supervises a licensed assistant applied behavior analyst.

13:42B-4.4 Identification tags; office signage

(a) Pursuant to P.L. 2020, c. 133, when providing in-person care, a licensee shall wear either a name tag, or identification embroidered on the outermost layer of clothing on the licensee's upper body that includes:

1. The licensee's full name or, if the licensee is providing care in a hospital, long-term care facility, or licensed ambulatory care facility or behavioral health care facility, and if authorized by facility administrators, the licensee's full first name and first letter of the last name;

2. The term "licensed applied behavior analyst" or "licensed assistant applied behavior analyst," as applicable, and the professional degree issued to the licensee. The name of the professional degree issued to the licensee may be abbreviated. If the name of the professional degree is identical to the name of the license, the professional degree may be omitted; and

3. If providing direct patient care at a hospital, a recent photograph of the licensee.

(b) The provisions at (a)3 above will not apply if the hospital administrators decide that licensees working at that hospital do not have to have a recent photograph on a name tag or embroidered identification.

(c) A licensee shall post signage in at least 12-point font size in a clear and conspicuous manner at any office where the licensee provides services to scheduled patients in an ambulatory setting that states that the licensee is a licensed applied behavior analyst or licensed assistant applied behavior analyst and the professional degree the licensee holds.

(d) The provisions at (c) above shall not apply to in-patient hospital or emergency department patient care.

(e) The provisions at (a), (b), or (c) above shall not apply to services provided through telemedicine or telehealth pursuant to P.L. 2017, c. 117 and N.J.A.C. 13:42B-6.

13:42B-4.5 Reporting of misconduct; self-reporting

(a) A licensee shall report to the Board any incident or series of incidents that the licensee, in good faith, believes is in violation of the Applied Behavior Analyst Licensing Act, N.J.S.A. 45:8B-91 et seq., and 45:1-14 et seq., N.J.A.C. 13:45C, or this chapter.

(b) Pursuant to N.J.A.C. 13:45E-3.2, a licensee who is in possession of information that reasonably indicates that another licensee or other health care professional has demonstrated an impairment, gross incompetence, or unprofessional conduct that would present an imminent danger to an individual or to the public health, safety, or welfare shall file a report with the Division of Consumer Affairs, Health Care Professional Information Clearing House Coordinator and the Board.

(c) A licensee shall immediately notify the Board, if the licensee:

1. Is incapable, for medical or any other reason, of discharging the functions of a licensee in a manner consistent with the public's health, safety, and welfare;

2. Is indicted or convicted of a crime which has a direct or substantial relationship to the practice of applied behavior analysis;

3. Is named as a defendant or respondent in a civil or criminal investigation, complaint, or judgment involving alleged malpractice, negligence, or misconduct relating to the licensee's practice;

4. Is the subject of an administrative judgment involving malpractice, negligence, or misconduct relating to the licensee's practice;

5. Is the subject of any voluntary license or certification surrender or any disciplinary action or order by any state or Federal agency, board, or commission, including any order of limitation or preclusion; or

[page=997] 6. Fails to maintain or renew BACB certification which is required by law as a condition of practice or as a condition of license renewal.

13:42B-4.6 Informed consent

(a) A licensee shall fully disclose to the client and any applicable guardians any information as will enable the client or guardian to evaluate the nature of the treatment and of any attendant risks, which shall include the means by which services will be provided (such as in-person or through telemedicine).

(b) Before delivering services to a client, the licensee shall obtain informed consent from the client or guardian and shall document that informed consent. The licensee shall maintain that documentation in the client's records.

SUBCHAPTER 5. SUPERVISION AND DELEGATION

13:42B-5.1 Supervision of a licensed assistant applied behavior analyst

(a) A licensed assistant applied behavior analyst shall not provide applied behavior analysis services unless the licensed assistant applied behavior analyst is supervised by a licensed applied behavior analyst pursuant to (b) and (c) below.

(b) A licensed applied behavior analyst who supervises a licensed assistant applied behavior analyst shall complete an eight-hour training course that covers the BACB Supervisor Training Curriculum Outline (2.0), published by the BACB, 7950 Shaffer Parkway, Littleton, CO 80127, as amended and supplemented, incorporated herein by reference.

(c) A licensed assistant applied behavior analyst and the supervising licensed applied behavior analyst shall meet face-to-face to discuss services provided by the licensed assistant applied behavior analyst and issues or concerns that the licensed assistant applied behavior analyst has encountered while providing services:

1. If the licensed assistant applied behavior analyst has been licensed for less than one year, the licensed assistant applied behavior analyst and the supervising licensed applied behavior analyst shall meet for at least five percent of the total number of hours of services provided by the licensed assistant applied behavior analyst during a week or for at least one hour every two weeks, whichever is more; and

2. If the licensed assistant applied behavior analyst has been licensed for one year or more, the licensed assistant applied behavior analyst and the supervising licensed applied behavior analyst shall meet for at least two percent of the total number of hours of services provided by the licensed assistant applied behavior analyst during a week, or at least one hour every month, whichever is more.

(d) A licensed assistant applied behavior analyst and supervising licensed applied behavior analyst shall meet more often than required at (c) above if either believes that additional supervision is necessary.

13:42B-5.2 Delegation to a paraprofessional technician

(a) A licensee may delegate the performance of interventions in a treatment plan to a paraprofessional technician.

(b) A licensee shall not delegate the assessment of a client, the development of a treatment plan, or the development of interventions to a paraprofessional technician.

(c) A licensee shall not delegate an intervention if, after assessing whether an intervention should be delegated, the licensee determines that such delegation would be inappropriate.

(d) A licensee is responsible for the care a client receives pursuant to the licensee's direction and the outcomes of care, even when a licensee has delegated to a paraprofessional technician.

(e) When delegating an intervention that will be performed by paraprofessional technicians employed by, or contracted to perform duties in, a facility licensed by the Department of Children and Families, Department of Health, or Department of Human Services, a licensee shall:

1. Assess the needs of the client;

2. Determine what interventions may be safely and appropriately delegated to paraprofessional technicians employed by, or contracted to perform duties in, the facility;

3. Identify the individual who will supervise the paraprofessional technicians performing delegated interventions;

4. Evaluate and delegate in accordance with facility policies and procedures that address the knowledge and skill of paraprofessional technicians to perform delegated interventions;

5. Communicate to the individual who will supervise paraprofessional technicians performing delegated interventions, the directions for delegated interventions, and expectations for those interventions;

6. Establish the methods by which the individual who will supervise paraprofessional technicians will communicate the delegated interventions and expectations to the paraprofessional technicians who will perform the delegated interventions;

7. Establish the methods by which the individual who will supervise paraprofessional technicians will communicate with the licensee and the instances that will require such an individual to communicate with the licensee; and

8. Document in facility records that the licensee has gone through the steps required at (e)1 through 7 above.

(f) When delegating an intervention in any setting that is not a facility licensed by the Department of Children and Families, Department of Health, or Department of Human Services, a licensee shall:

1. Assess the needs of the client;

2. Determine what interventions may be safely and appropriately delegated to a paraprofessional technician;

3. Identify the paraprofessional technician to whom the licensee will delegate performance of the interventions;

4. Evaluate the knowledge and skills of the paraprofessional technician selected to perform the interventions through direct observation;

5. Communicate to the paraprofessional technician the intervention that is being delegated, the directions for that intervention, and the expectations for that intervention;

6. Establish the methods by which the paraprofessional technician will communicate with the licensee and the instances that will require the paraprofessional to communicate with the licensee; and

7. Document in client records the paraprofessional technician to whom interventions were delegated and the interventions that have been delegated.

(g) The requirements of this section apply solely to delegation. These requirements are not applicable when a licensee assigns applied behavior analysis services to another licensee or to a licensed health care professional whose scope of practice includes the provision of such services. For purposes of this subsection, "assign" means a decision-making process by which a licensee allocates work to another licensee or licensed healthcare practitioner whose scope of practice includes the provision of applied behavior analysis services.

13:42B-5.3 Supervision of a student

A licensed applied behavior analyst who supervises a student completing education or experience requirements for certification as a BCBA, BCBA-D, or BCaBA shall comply with the supervision requirements set forth in the BCBA 2022 Eligibility Requirements or the BCaBA 2022 Eligibility Requirements, published by the BACB, 7950 Shaffer Parkway, Littleton, CO 80127, as amended and supplemented, incorporated herein by reference.

SUBCHAPTER 6. BUSINESS PRACTICES

13:42B-6.1 Advertising and solicitation practices

(a) As used in this section, the following terms have the following meanings:

"Advertisement" means any communication or statement that is directly controlled or administered by a licensee or a licensee's office personnel, whether printed, electronic, or oral, that names the licensee in relation to the licensee's practice, profession, or institution in which the licensee is employed, volunteers, or otherwise provides services. This includes business cards, letterhead, patient brochures, email, Internet, audio and video, and any other communication or statement used in the course of business or where the licensee is utilizing a professional degree or license to influence opinion or imply expertise in a health care topic. "Advertisement" does not include office building placards or exterior building signage.

"Electronic media" shall include radio, television, telephone, facsimile machine, or computer.

[page=998] "Fee schedule" refers to the fees charged for services or goods offered by a licensee.

"Graphic representation" means the use of drawings, animations, clinical photographs, or dramatizations.

"Print media" shall refer to newspapers, magazines, periodicals, professional journals, telephone directories, circulars, handbills, fliers, or other publications, the content of which is disseminated by means of the printed or digital word.

"Routine professional service" refers to a service that a licensed applied behavior analyst, a licensed assistant applied behavior analyst, or a professional association routinely performs.

(b) Subject to the limitations at (c) and (e) below, a licensee may provide information to the public by advertising in print or electronic media.

(c) A licensee who engages in the use of advertising that contains any of the following shall be deemed to have engaged in professional misconduct:

1. Any statement, claim, or format including a graphic representation that is false, fraudulent, intentionally misleading, or deceptive;

2. Any misrepresentation of fact, including any affirmative communication or representation that misstates, falsely describes, holds out, or falsely details the licensee's skills, training, expertise, education, public or private board certification, or licensure;

3. The suppression, omission, or concealment of any material fact under circumstances that the licensee knows or should have known is improper or prevents a client from making a full and informed judgment on the basis of the information set forth in the advertisement;

4. Any promotion of professional service that the licensee knows, or should know, is beyond the licensee's ability to perform;

5. A technique or communication that appears to intimidate, exert undue pressure, or to unduly influence a client;

6. Any personal testimonial by a client attesting to the quality or competence of service or treatment by a licensee involving technical assessments that are beyond the client's competency to assess, or any testimonial not in compliance with N.J.A.C. 13:42B-6.3;

7. The communication of any fact, data, or information that may personally identify a client without the client's signed written permission obtained in advance;

8. An offer to pay, give, or accept a fee or other consideration to or from a third party for the referral of a client;

9. Any print, language, or format that directly or indirectly obscures a material fact; or

10. Any guarantee of results from any applied behavior analysis encounter.

(d) The Board may require a licensee to substantiate the truthfulness of any assertion or representation set forth in an advertisement.

(e) Any violations of (e)1, 2, or 3 below shall be deemed professional misconduct:

1. A licensee engaging, either directly or through the use of any agent, employee, or representative, in solicitation of a client. This paragraph shall not prohibit a licensee from offering services through materials provided to a community service organization that makes known the availability of all professional services listed; nor shall it prohibit the offering of services by a licensee to any bona fide representative of a client including, employers, labor union representatives, or insurance carriers.

2. Advertising making reference to or setting forth fees beyond a stated fee for specifically described routine professional services or goods offered by licensees.

i. A licensee who advertises a fee shall disclose all relevant and material variables and considerations that are ordinarily included in such a service so that the fee will be clearly understood by clients.

ii. In the absence of such disclosure referred to at (e)1 above, the stated fees shall be presumed to include all fees ordinarily required for such a service. No additional charges shall be made for an advertised service unless the advertisement specifically delineates the additional services contemplated and the fee to be charged.

3. Failure of a licensee to specify and honor the time period during which an advertised fee will remain in effect on the face of the advertisement; or in the absence of such disclosure, failure to honor the advertised price for at least 30 days from the date of the advertisement's final publication.

13:42B-6.2 Advertising free or discounted services; required disclosures

(a) An advertisement offering a fee reduction shall state the reduced fee and the licensee's usual fee for each service for which a reduction is advertised. The usual fee shall be the fee charged for the advertised service for a period of not less than 90 days prior to the publication of the advertised reduction.

(b) If the discount or free service does not apply to all services to be rendered, the advertisement shall specify any associated or reasonably anticipated services that are not included and a statement of the specific charges for all associated or reasonably anticipated services that are not included.

(c) Except for those services specifically excluded in the advertisement offering free services, the licensee shall not charge for any service rendered during a period of 72 hours from the time the free service was rendered.

13:42B-6.3 Testimonial advertising

(a) Testimonials involving a specific or identifiable applied behavior analysis service shall truthfully reflect the actual experience of the client.

(b) The licensee shall be able to substantiate any objective, verifiable statement of fact appearing in a testimonial. The failure to do so, if required by the Board, may be deemed professional misconduct.

(c) Where a licensee directly or indirectly provides compensation to a testimonial giver, the fact of such compensation shall be conspicuously disclosed in a clear, legible, and readable manner in any advertisement as follows: "Compensation has been provided for this testimonial."

13:42B-6.4 Minimum content

(a) Advertisements and professional representations (other than an office entry sign), including advertisements in a classified directory, business cards, and professional stationery shall include the following:

1. The name and license number of at least one licensee;

2. The term "licensed applied behavior analyst" or "licensed assistant applied behavior analyst," as applicable, and the professional degree issued to the licensee, except that the name of the professional degree issued to the licensee may be abbreviated and, if the name of the professional degree is identical to the name of the license, the professional degree may be omitted; and

3. The street address and telephone number of the practice.

(b) An offer for applied behavior analysis services can be made only by a licensee.

13:42B-6.5 Recordkeeping

(a) Licensees shall make contemporaneous, permanent entries into client records that shall accurately reflect the applied behavior analysis services rendered. Client records shall be maintained for a period of seven years from the date of the most recent entry. The client record shall contain, at a minimum:

1. Intake record;

2. The dates of each service;

3. Quantitative data collection and analysis;

4. Summary of each session;

5. The name, title, and license number of the licensee who provided services;

6. Safety level of the client, including instances of self-harm, aggression towards others, or contact with safety or health officials; and

7. Any referral to another healthcare professional.

(b) Corrections and/or additions to existing records may be made to a client record, provided that each change is clearly identified as such, dated, and initialed by the licensee making the change.

(c) Records for minors shall be kept for seven years from the date of the last entry or until the client turns 25 years old, whichever is longer.

(d) Licensees shall provide client records to the Board, upon request.

13:42B-6.6 Client access to records

(a) Licensees shall provide access to client records to a client or an authorized representative in accordance with the following:

[page=999] 1. No later than 30 days from receipt of a written request from a client or an authorized representative, the licensee shall provide a copy of the client record, and/or billing records, as may be requested;

2. The licensee may charge a fee for the reproduction of records, which shall be no greater than $ 1.00 per page or $ 100.00 for the entire record, whichever is less; and

3. If the client, a subsequent treating health care professional, or the Board is unable to read the client record, because it is illegible, the licensee, upon request, shall provide a typed transcription of the record. If the record is in a language other than English, the licensee shall also provide an English translation.

(b) Where the client has requested the release of all or a portion of a client record to a specified individual or entity, in order to protect the confidentiality of the records, the licensee shall:

1. Secure and maintain a current written authorization bearing the signature of the client or an authorized representative;

2. Ensure that the scope of the release is consistent with the request; and

3. Forward the records to the attention of the specific individual identified in the request.

(c) Notwithstanding (a) above, a licensee may withhold information in the client record from a client or the client's guardian if, in the professional judgment of the licensee, the release of such information would adversely affect the client's health, safety, or welfare.

(d) A licensee who withholds client records pursuant to (c) above shall provide the client record and an explanation of the reasons for withholding the record upon the request of and directly to:

1. The client's attorney;

2. Another licensed health care professional; or

3. The client's health insurance carrier.

13:42B-6.7 Use of a computer to prepare client records

(a) A licensee who prepares a client record maintained solely on a computer shall use a write-protected program which:

1. Contains an internal permanently activated date and time recordation for all entries;

2. Automatically prepares a back-up copy of the file; and

3. Is designed in such manner that, after the licensee "signs" by means of a confidential personal code (CPC), the entry cannot be changed in any manner.

(b) The licensee shall include in the client record at least two forms of identification; for example, name and record number of the client or any other specific identifying information.

(c) The licensee shall finalize or "sign" the entry, by means of a CPC. Where more than one individual is authorized to make entries into the computer file of any client record, each such person shall obtain a CPC and uses the program in the same manner.

(d) The licensee shall generate a hard copy of the complete client record, or a portion thereof, upon request, pursuant to N.J.A.C. 13:42B-6.6.

(e) A licensee who generates a hard copy of a patient record pursuant to (d) above shall ensure that the hard copy is paginated with each page being a specified number of the total number of pages in the record.

SUBCHAPTER 7. TELEMEDICINE AND TELEHEALTH

13:42B-7.1 Purpose and scope

(a) The purpose of this subchapter is to implement the provisions at P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.), which authorizes healthcare providers to engage in telemedicine and telehealth, as it related to the practice of applied behavior analysis.

(b) This subchapter shall apply to all persons who are licensed by the Board.

(c) Pursuant to N.J.S.A. 45:1-62, applied behavior analysts or assistant applied behavior analysts must hold a license issued by the Board if they:

1. Are located in New Jersey and provide applied behavior analysis services to any client located in or out of New Jersey by means of telemedicine or telehealth; or

2. Are located outside of New Jersey and provide applied behavior analysis services to any client located in New Jersey by means of telemedicine or telehealth.

(d) Notwithstanding N.J.S.A. 45:1-62 and (c) above, a healthcare provider located in another state who consults with a licensee in New Jersey through the use of information and communications technologies, but does not direct client care, will not be considered as providing applied behavior analysis services to a client in New Jersey consistent with N.J.S.A. 45:14B-1 et seq., and will not be required to obtain licensure in New Jersey in order to provide such consultation.

13:42B-7.2 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Asynchronous store-and-forward" means the acquisition and transmission of images, diagnostics, data, and medical and/or mental health information, either to or from an originating site, or to or from the licensee at a distant site, which allows for the client to be evaluated without being physically present.

"Board" means the State Board of Applied Behavior Analyst Examiners.

"Cross-coverage service" means a licensee who engages in a remote evaluation of a client, without in-person contact, at the request of another licensee who has established a proper licensee-client relationship with the client.

"Distant site" means a site at which a licensee is located while providing services by means of telemedicine or telehealth.

"Licensee" means an individual licensed by the Board as a licensed applied behavior analyst or licensed assistant applied behavior analyst.

"On-call" means a licensee is available, where necessary, to physically attend to the urgent and follow-up needs of a client for whom the licensee has temporarily assumed responsibility, as designated by the client's primary care provider or other mental health care provider of record.

"Originating site" means a site at which a client is located at the time that services are provided to the client by means of telemedicine or telehealth.

"Telehealth" means the use of information and communications technologies, including telephones, remote client monitoring devices, or other electronic means, to support clinical health care, provider consultation, client and professional health-related education, public health, health administration, and other services in accordance with the provisions at P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.).

"Telemedicine" means the delivery of a health care service using electronic communications, information technology, or other electronic or technological means to bridge the gap between a licensee who is located at a distant site and a client who is located at an originating site, either with or without the assistance of an intervening licensee, and in accordance with the provisions at P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.). "Telemedicine" does not include the use, in isolation, of audio-only telephone conversation, electronic mail, instant messaging, phone text, or facsimile transmission.

13:42B-7.3 Standard of care

(a) Prior to providing services through telemedicine or telehealth, a licensee shall determine whether providing those services through telemedicine or telehealth would be consistent with the standard of care applicable for those services when provided in-person.

(b) If a licensee determines, either before or during the provision of services, that services cannot be provided through telemedicine or telehealth in a manner that is consistent with in-person standards of care, the licensee shall not provide services through telemedicine or telehealth.

(c) A licensee who determines that services cannot be provided through telemedicine or telehealth pursuant to (b) above shall advise the client to obtain services in-person.

(d) A licensee who provides a diagnosis, treatment, or consultation recommendation, including discussions regarding the risks and benefits of a client's treatment options, through telemedicine or telehealth shall be held to the same standard of care or practice standards as are applicable to in-person settings.

13:42B-7.4 Licensee-client relationship

(a) Prior to providing services through telemedicine or telehealth, a licensee shall establish a licensee-client relationship by:

[page=1000] 1. Identifying the client with, at a minimum, the client's name, date of birth, phone number, and address. A licensee may also use a client's assigned identification number, Social Security Number, photo, health insurance policy number, or other identifier associated directly with the client; and

2. Disclosing and validating the licensee's identity, license, title, and, if applicable, specialty and board certifications.

(b) Prior to an initial contact with a client for the purpose of providing services to the client using telemedicine or telehealth, a licensee shall review the client's history and any available records.

(c) Prior to initiating contact with a client for the purpose of providing services through telemedicine or telehealth, licensees shall determine whether they will be able to provide the same standard of care using telemedicine or telehealth as would be provided if the services were provided in-person. The licensee shall make this determination prior to each unique client encounter.

(d) Notwithstanding (a), (b), and (c) above, service may be provided through telemedicine or telehealth without a proper provider-client relationship if:

1. The provision of services is for informal consultation with another healthcare provider, performed by a licensee outside the context of a contractual relationship, or on an irregular or infrequent basis, without the expectation or exchange of direct or indirect compensation;

2. The provision of services is during episodic consultations by a medical and/or specialist located in another jurisdiction who provides consultation services, upon request, to a licensee in this State;

3. A licensee furnishes assistance in response to an emergency or disaster, provided that there is no charge for the assistance; or

4. A substitute licensee, who is acting on behalf of an absent licensee in the same specialty, provides services on an on-call or cross-coverage basis, provided that the absent licensee has designated the substitute licensee as an on-call licensee or cross-coverage service provider.

13:42B-7.5 Provision of services through telemedicine or telehealth

(a) As long as a licensee has satisfied the requirements at N.J.A.C. 13:42B-7.4, a licensee may provide services to a client through the use of telemedicine and may engage in telehealth to support and facilitate the provision of services to clients.

(b) Prior to providing services through telemedicine or telehealth, a licensee shall determine the client's originating site and record this information in the client's record.

(c) A licensee providing services through telemedicine shall use interactive, real-time, two-way communication technologies, which shall include, except as provided at (e) below, a video component which allows a licensee to see a client and the client to see the licensee during the provision of services.

(d) A licensee providing services through telemedicine or telehealth may use asynchronous store-and-forward technology to allow for the electronic transmission of:

1. Images;

2. Diagnostics, including test results and interpretation;

3. Data; and

4. Medical information.

(e) If, after accessing and reviewing the client's records, licensees determine that they are able to meet the standard of care for such services if they were being provided in-person without using the video component described at (c) above, the licensee may use interactive, real-time, two-way audio in combination with asynchronous store-and-forward technology, without a video component.

(f) During the provision of services through telemedicine or telehealth, and after the provision of services, a licensee, or another designated licensee, shall provide their name, professional credentials, and contact information to the client. Such contact information shall enable the client to contact the licensee for at least 72 hours following the provision of services, or for a longer period, if warranted by the client's circumstances and accepted standards of care.

(g) Prior to providing services through telemedicine or telehealth, a licensee shall review any history or records provided by a client, as follows:

1. For an initial encounter with a client, history and records provided by the client shall be reviewed prior to the provision of services through telemedicine or telehealth; and

2. For any subsequent interactions with a client, history and records provided by the client shall be reviewed either prior to the provision of services through telemedicine or telehealth or contemporaneously with the encounter with the client.

(h) After the provision of services through telemedicine or telehealth, a licensee shall provide the client, upon request, with his or her records created due to the services provided.

(i) A licensee shall provide, upon a client's written request, the client's information to the client's primary care provider or to other health care and/or mental health care providers.

(j) A licensee engaging in telemedicine or telehealth shall refer a client for follow-up care, when necessary.

13:42B-7.6 Records

A licensee who provides services through telemedicine or telehealth shall maintain a record of the care provide to a client. Such records shall comply with the requirements at N.J.A.C. 13:42B-6.5 and all other applicable State and Federal statutes, rules, and regulations for recordkeeping, confidentiality, and disclosure of a client's record.

13:42B-7.7 Prevention of fraud and abuse

(a) In order to establish that a licensee has made a good faith effort to prevent fraud and abuse when providing services through telemedicine or telehealth, a licensee must establish written protocols that address:

1. Identification of users;

2. Identification of the client during the initial intake pursuant to N.J.A.C. 13:42B-7.4(a)1;

3. Identification of the origin of information;

4. The prevention of unauthorized access to the system or information;

5. System security, including the integrity of information that is collected, program integrity, and system integrity;

6. Maintenance of documentation about system and information usage;

7. Information storage, maintenance, and transmission; and

8. Verification of client profile data.

13:42B-7.8 Privacy and notice to clients

(a) Licensees that communicate with clients by electronic communications other than telephone or facsimile shall establish written privacy practices that are consistent with Federal standards pursuant to 45 CFR 160 and 164, which are incorporated herein by reference, relating to privacy of individually identifiable health information.

(b) A licensee who becomes aware of a breach in confidentiality of patient information, as defined at 45 CFR 164.402, shall comply with the reporting requirements at 45 CFR 164.

(c) Licensees, or their authorized representatives, shall provide a client or the client's guardian, prior to evaluation or treatment, with copies of written privacy practices and shall obtain the client's written acknowledgement of receipt of the notice.

(d) Licensees who provide services through telemedicine or telehealth, or their authorized representatives, shall, prior to providing services, give clients or clients' guardians notice regarding telemedicine and telehealth, including the risks and benefits of using technology to provide services and how to receive follow-up care or assistance in the event of an inability to communicate as a result of a technological or equipment failure. A licensee shall obtain a signed and dated statement indicating that the client or guardian received this notice.

(e) When telemedicine or telehealth is unable to provide all pertinent clinical information that a licensee exercising ordinary skill and care would deem reasonably necessary to provide care to a client, the licensee shall inform the client of this prior to the conclusion of the provision of care through telemedicine or telehealth and shall advise the client regarding the need for the client to obtain additional in-person services reasonably able to meet the client's needs.

SUBCHAPTER 8. FEES

13:42B-8.1 Fee schedule

(a) The following fees shall be charged by the Board:

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