N.Y. Education Law § 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.