§ 8807 — Exemptions

§ 8807. Exemptions. 1. Nothing contained in this article shall be\nconstrued to limit the scopes of practice of any other profession\nlicensed under this title.\n 2. Nothing in this article shall be construed as prohibiting a person\nfrom performing the duties of a licensed behavior analyst or a certified\nbehavior analyst assistant, in the course of such employment, if such\nperson is employed:\n a. by a federal, state, county or municipal agency, or other political\nsubdivision;\n b. by a chartered elementary or secondary school or degree-granting\ninstitution;\n c. as a certified teacher or teaching assistant, other than a pupil\npersonnel services professional, in an approved program as defined in\nparagraph b of subdivision one of section forty-four hundred ten of this\nchapter; or\n d. in a setting to the extent that the exemption in paragraph d of\nsubdivision six of section forty-four hundred ten of this chapter\napplies.\n 3. Nothing in this article shall be construed as prohibiting a\ncertified teacher or teaching assistant, other than a pupil personnel\nservices professional, from performing the duties of a licensed behavior\nanalyst or certified behavior analyst assistant, in the course of such\nemployment or contractual agreement, if such person is employed or\ncontracted with an agency approved by the department of health to\nprovide early intervention services or has an agreement with the\ndepartment of health to provide early intervention services pursuant to\ntitle two-A of article twenty-five of the public health law.\n 4. Nothing in this article shall be construed as prohibiting the\nactivities and services required of a student, intern, or resident in an\neducational program acceptable to the department pursuant to the\ncommissioner's regulations, pursuing a course of study leading to a\nbachelor's or higher degree in an educational program acceptable to the\ndepartment pursuant to the commissioner's regulations in an institution\napproved by the department, provided that such activities and services\nconstitute a part of his or her supervised course of study in an\neducational program acceptable to the department pursuant to the\ncommissioner's regulations. Such person shall be designated by title\nwhich clearly indicates his or her training status.\n 5. Nothing in this article shall be construed to affect or prevent a\nperson without a license or other authorization pursuant to this title\nfrom performing assessments, including collecting basic information,\ngathering demographic data, and making informal observations, for the\npurpose of determining need for services unrelated to an ABA plan.\nFurther, licensure or authorization pursuant to this article shall not\nbe required to create, develop or implement a service plan unrelated to\nan ABA plan. This article shall not apply to behavioral health\ntreatments other than ABA that may be provided to persons with autism\nspectrum disorder. A license under this article shall not be required\nfor persons to participate as a member of a multi-disciplinary team to\nimplement an ABA plan; provided, however, that such team shall include\none or more professionals licensed under this article or articles one\nhundred thirty-one, one hundred fifty-three, one hundred fifty-four or\none hundred sixty-three of this chapter; and provided further that the\nactivities performed by members of the team shall be consistent with the\nscope of practice for each team member licensed or authorized under this\ntitle, and those who are not so authorized may not engage in the\nfollowing restricted practices: creation, modification or termination of\nan ABA plan; diagnosis of mental, emotional, behavioral, addictive and\ndevelopmental disorders and disabilities; patient assessment and\nevaluating; provision of psychotherapeutic treatment; provision of\ntreatment other than psychotherapeutic treatment; and development and\nimplementation of assessment-based treatment plans, as defined in\nsection seventy-seven hundred one of this title. Provided further,\nhowever, that nothing in this subdivision shall be construed as\nrequiring a license or authorization for any particular activity or\nfunction based solely on the fact that the activity or function is not\nlisted in this subdivision. Provided further, however, that nothing in\nthis subdivision shall authorize the delegation of restricted activities\nto an individual who is not appropriately licensed or authorized under\nthis title.\n 6. Nothing in this article shall be construed as prohibiting an early\nintervention ABA aide, pursuant to regulations promulgated by the\ncommissioner of health, and acting under the supervision and direction\nof a qualified supervisor who is licensed or otherwise authorized\npursuant to title eight of this chapter from:\n (a) assisting the supervisor and qualified personnel with the\nimplementation of individual ABA plans;\n (b) assisting in the recording and collection of data needed to\nmonitor progress;\n (c) participating in required team meetings; and\n (d) completing any other activities as directed by his or her\nsupervisor and as necessary to assist in the implementation of\nindividual ABA plans.\n Provided however, that nothing in this subdivision shall authorize the\ndelegation of restricted activities to an individual who is not\nappropriately licensed or otherwise authorized under this title;\nprovided further however, that in regard to the early intervention\nprogram established pursuant to title two-A of article twenty-five of\nthe public health law, an early intervention ABA aide under the\nsupervision and direction of a qualified supervisor may complete\nactivities necessary to assist in the implementation of an individual\nABA plan, provided that such activities do not require professional\nskill or judgment.\n 7. This article shall not be construed to prohibit care delivered by\nany family member, household member or friend, or person employed\nprimarily in a domestic capacity who does not hold himself or herself\nout, or accept employment, as a person licensed to practice applied\nbehavior analysis under the provisions of this article; provided that,\nif such person is remunerated, the person does not hold himself or\nherself out as one who accepts employment for performing such care.\n 8. Nothing in this article shall be construed as prohibiting programs\ncertified by the office of alcoholism and substance abuse services from\nproviding substance use disorder services for persons with autism and\nautism spectrum disorders and related disorders.\n 9. Nothing in this article shall be construed as prohibiting the\nactivities and services required of a graduate of an educational program\nacceptable to the department, seeking to complete supervised experience\nand/or examination requirements for certification or registration by a\nnational certifying body having certification or registration standards\nacceptable to the commissioner; provided, however, that the graduate\nshall be under the supervision of a licensed behavior analyst who is\nlicensed and registered in New York and employed by a setting authorized\nto provide applied behavior analysis services in New York, acceptable to\nthe department. The supervising licensed behavior analyst shall submit,\nupon commencing the supervision of any graduate or no later than ninety\ndays after the effective date of this subdivision, on a form prescribed\nby the department, a sworn statement attesting to compliance with the\nrequirements of this subdivision. Such use of a graduate shall subject\nthe supervising licensed behavior analyst to the full disciplinary and\nregulatory authority of the board of regents and the department pursuant\nto this title. The supervising licensed behavior analyst shall notify\nthe patient or the person legally responsible for the patient if the\npatient is a minor, or other individual incapable of consenting, when\nservices will be provided by a graduate under supervision. The\nsupervising licensed behavior analyst shall remain responsible for\nservices provided to the patient by the graduate and shall provide the\npatient or person legally responsible for the patient an opportunity to\nobject to the use of a graduate to provide applied behavior analysis\nservices under supervision.\n