2023 New York Laws › EDN - Education › Title 8 - The Professions › Article 167 - Applied Behavior Analysis › 8807 - Exemptions.

§  8807.  Exemptions.  1.  Nothing  contained in this article shall be
construed to limit the  scopes  of  practice  of  any  other  profession
licensed under this title.
2.  Nothing in this article shall be construed as prohibiting a person
from performing the duties of a licensed behavior analyst or a certified
behavior analyst assistant, in the course of such  employment,  if  such
person is employed:
a. by a federal, state, county or municipal agency, or other political
subdivision;
b.  by  a  chartered elementary or secondary school or degree-granting
institution;
c. as a certified teacher or teaching assistant, other  than  a  pupil
personnel  services  professional,  in an approved program as defined in
paragraph b of subdivision one of section forty-four hundred ten of this
chapter; or
d. in a setting to the extent that the exemption  in  paragraph  d  of
subdivision  six  of  section  forty-four  hundred  ten  of this chapter
applies.
3. Nothing in  this  article  shall  be  construed  as  prohibiting  a
certified  teacher  or  teaching assistant, other than a pupil personnel
services professional, from performing the duties of a licensed behavior
analyst or certified behavior analyst assistant, in the course  of  such
employment  or  contractual  agreement,  if  such  person is employed or
contracted with an agency  approved  by  the  department  of  health  to
provide  early  intervention  services  or  has  an  agreement  with the
department of health to provide early intervention services pursuant  to
title two-A of article twenty-five of the public health law.
4.  Nothing  in  this  article  shall  be construed as prohibiting the
activities and services required of a student, intern, or resident in an
educational  program  acceptable  to  the  department  pursuant  to  the
commissioner's  regulations,  pursuing  a  course  of study leading to a
bachelor's or higher degree in an educational program acceptable to  the
department  pursuant to the commissioner's regulations in an institution
approved by the department, provided that such activities  and  services
constitute  a  part  of  his  or  her  supervised  course of study in an
educational  program  acceptable  to  the  department  pursuant  to  the
commissioner's  regulations.  Such  person  shall be designated by title
which clearly indicates his or her training status.
5. Nothing in this article shall be construed to affect or  prevent  a
person  without  a license or other authorization pursuant to this title
from performing assessments,  including  collecting  basic  information,
gathering  demographic  data,  and making informal observations, for the
purpose of determining need for  services  unrelated  to  an  ABA  plan.
Further,  licensure  or authorization pursuant to this article shall not
be required to create, develop or implement a service plan unrelated  to
an  ABA  plan.  This  article  shall  not  apply  to  behavioral  health
treatments other than ABA that may be provided to  persons  with  autism
spectrum  disorder.  A  license under this article shall not be required
for persons to participate as a member of a multi-disciplinary  team  to
implement  an  ABA plan; provided, however, that such team shall include
one or more professionals licensed under this article  or  articles  one
hundred  thirty-one,  one hundred fifty-three, one hundred fifty-four or
one hundred sixty-three of this chapter; and provided further  that  the
activities performed by members of the team shall be consistent with the
scope of practice for each team member licensed or authorized under this
title,  and  those  who  are  not  so  authorized  may not engage in the
following restricted practices: creation, modification or termination of
an ABA plan; diagnosis of mental, emotional, behavioral,  addictive  and

developmental   disorders   and  disabilities;  patient  assessment  and
evaluating;  provision  of  psychotherapeutic  treatment;  provision  of
treatment  other  than  psychotherapeutic treatment; and development and
implementation  of  assessment-based  treatment  plans,  as  defined  in
section seventy-seven hundred  one  of  this  title.  Provided  further,
however,  that  nothing  in  this  subdivision  shall  be  construed  as
requiring a license or authorization  for  any  particular  activity  or
function  based  solely on the fact that the activity or function is not
listed in this subdivision. Provided further, however, that  nothing  in
this subdivision shall authorize the delegation of restricted activities
to  an  individual who is not appropriately licensed or authorized under
this title.
6. Nothing in this article shall be construed as prohibiting an  early
intervention  ABA  aide,  pursuant  to  regulations  promulgated  by the
commissioner of health, and acting under the supervision  and  direction
of  a  qualified  supervisor  who  is  licensed  or otherwise authorized
pursuant to title eight of this chapter from:
(a)  assisting  the  supervisor  and  qualified  personnel  with   the
implementation of individual ABA plans;
(b)  assisting  in  the  recording  and  collection  of data needed to
monitor progress;
(c) participating in required team meetings; and
(d) completing  any  other  activities  as  directed  by  his  or  her
supervisor   and  as  necessary  to  assist  in  the  implementation  of
individual ABA plans.
Provided however, that nothing in this subdivision shall authorize the
delegation  of  restricted  activities  to  an  individual  who  is  not
appropriately   licensed  or  otherwise  authorized  under  this  title;
provided further however, that  in  regard  to  the  early  intervention
program  established  pursuant  to title two-A of article twenty-five of
the public  health  law,  an  early  intervention  ABA  aide  under  the
supervision  and  direction  of  a  qualified  supervisor  may  complete
activities necessary to assist in the implementation  of  an  individual
ABA  plan,  provided  that  such  activities do not require professional
skill or judgment.
7. This article shall not be construed to prohibit care  delivered  by
any  family  member,  household  member  or  friend,  or person employed
primarily in a domestic capacity who does not hold  himself  or  herself
out,  or  accept  employment,  as  a person licensed to practice applied
behavior analysis under the provisions of this article;  provided  that,
if  such  person  is  remunerated,  the  person does not hold himself or
herself out as one who accepts employment for performing such care.
8. Nothing in this article shall be construed as prohibiting  programs
certified  by the office of alcoholism and substance abuse services from
providing substance use disorder services for persons  with  autism  and
autism spectrum disorders and related disorders.
9.  Nothing  in  this  article  shall  be construed as prohibiting the
activities and services required of a graduate of an educational program
acceptable to the department, seeking to complete supervised  experience
and/or  examination  requirements for certification or registration by a
national certifying body having certification or registration  standards
acceptable  to  the  commissioner;  provided, however, that the graduate
shall be under the supervision of a licensed  behavior  analyst  who  is
licensed and registered in New York and employed by a setting authorized
to provide applied behavior analysis services in New York, acceptable to
the  department. The supervising licensed behavior analyst shall submit,
upon commencing the supervision of any graduate or no later than  ninety
days  after the effective date of this subdivision, on a form prescribed

by the department, a sworn statement attesting to  compliance  with  the
requirements  of  this subdivision. Such use of a graduate shall subject
the supervising licensed behavior analyst to the full  disciplinary  and
regulatory authority of the board of regents and the department pursuant
to  this  title.  The supervising licensed behavior analyst shall notify
the patient or the person legally responsible for  the  patient  if  the
patient  is  a  minor, or other individual incapable of consenting, when
services  will  be  provided  by  a  graduate  under  supervision.   The
supervising  licensed  behavior  analyst  shall  remain  responsible for
services provided to the patient by the graduate and shall  provide  the
patient  or person legally responsible for the patient an opportunity to
object to the use of a graduate to  provide  applied  behavior  analysis
services under supervision.