Essential State Rules for Behavior Analysts

With the recent signing of S2311 and the opening of the Applied Behavior Analyst licensure application, new licensees will be responsible for following the State’s Uniform Enforcement Act (UEA), the Uniform Regulations, and the child abuse reporting requirements.

The UEA is within Title 45 of the NJ Statutes, the Uniform Regulations are within Title 13 of the NJ Administrative Code, and the child abuse reporting requirements are within Title 9 of the NJ Statutes. Title 45, labeled “Professions and Occupations,” houses each individual licensure board along with their laws which outline the parameters of the professions and to protect public health, safety, and welfare. Title 13, labeled “Law and Public Safety,” hosts the regulations for each licensure board. Title 9, labeled “Children-Juvenile and Domestic Relations Courts,” includes the laws surrounding youth in the legal system.

A Note about Child Abuse Reporting from the Department of Children and Families:

“In New Jersey, any person having reasonable cause to believe that a child has been subjected to abuse or acts of abuse should immediately report this information to the State Central Registry (SCR). If the child is in immediate danger, call 911 as well as 1.877 NJ ABUSE (1.877.652.2873). A concerned caller does not need proof to report an allegation of child abuse and can make the report anonymously.”

DISCLAIMER: Autism New Jersey is providing this article for informational purposes only. The materials presented do not constitute legal advice. All applicants are encouraged to pose questions or seek information directly from the New Jersey State Board of Applied Behavior Analyst Examiners or consult legal counsel.

Uniform Enforcement Act

Read Title 45 Professions and Occupations>>

45:1-29 – Introduction of Background Checks

This section:

• Explains that the Director (director) of the Division of Consumer Affairs (division) or the State Board of Applied Behavior Analyst Examiners (ABA board) shall only issue an initial license of an applicant where a background check exists
• The director or ABA board shall only renew a license of a Licensed Behavior Analyst (LBA) or a Licensed Assistant Behavior Analyst (LaBA) where a background check exists
• The director or ABA board shall revoke a license from an LBA or an LaBA where no background check exists

45:1-30 – Background Check Process

This section:

• Explains the background check process
  • An applicant shall submit their criminal history record information (name, address, fingerprints) to the director which will be used for the completion of the background check
  • An LBA or an LaBA whose license or other authorization has been suspended, revoked, or expired shall be required to submit criminal history record information for the completion of a background check as part of the licensure or other authorization reinstatement process
  • The director shall notify the ABA board of criminal history record information of an applicant, an LBA, or an LaBA once received

45:1-31 – Background Check Cost

This section:

• Explains that an applicant, an LBA, or an LaBA shall assume the cost of the background check

45:1-35 – Civil Liability Immunity

This section:

• Explains that a health care entity, an LBA, an LaBA, or any other person who provides information, in good faith, of an act of misconduct of an LBA, an LaBA, or other health care professional to the division, the ABA board, other division board, or review panel shall not be liable for civil damages in any cause of action from the sharing of the information

45:1-36 – Information Confidentiality

This section:

• Explains that information provided to the division, the ABA board, or other division board regarding the conduct of an LBA, an LaBA, or other health care professional shall remain confidential pending final disposition of the inquiry or investigation
• If the inquiry or investigation results in a finding of no basis for disciplinary action, then the information shall remain confidential except that the division or a division board can release the information to a government agency so they may perform their public responsibilities

45:1-37 – Impairment Notification to Division

This section:

• Explains that an LBA or an LaBA shall be required to promptly notify the division of impairment of an LBA, an LaBA, or other health care professional who presents danger to an individual patient or to the public health, safety, or welfare
• Failure to promptly notify the division of impairment can result in disciplinary action and civil penalties against the LBA or the LaBA by the ABA board
• A private right of action cannot be taken against an LBA or an LaBA who fails to report impairment to the division
• An LBA or an LaBA has satisfied the reporting requirements concerning impairment by promptly notifying the division, appropriate division board, or a professional assistance or intervention program approved or designated by the division or a division board to provide confidential oversight of the LBA, the LaBA, or other health care professional
• An LBA or an LaBA is not required to provide notification of impairment if the impairment was learned through the result of providing treatment to the LBA, the LaBA, or other health care professional

45:1-38 – Impairment Notification to Board

This section:

• Explains that the division shall promptly notify the appropriate division board of impairment or misconduct of an LBA, an LaBA, or other health care professional
• The division, the ABA board, or other division board can initiate an investigation concerning the information received to determine if disciplinary charges or license suspension should be pursued

45:1-39 – Fraud, Misrepresentation, and Deception

This section:

• Explains that an LBA or an LaBA who engages in fraud, misrepresentation, or deception in the application or credentialing process when seeking employment or the opportunity to provide professional services shall be subjected to disciplinary proceedings

45:1-53.1 – Pending Criminal Charges or Violations

This section:

• Explains that an LBA or an LaBA shall promptly notify the ABA board about their own pending criminal charges or violations
• Upon conviction of the offense, the ABA board shall revoke the license of the LBA or the LaBA for a period determined by the ABA board

45:1-55 – Sexual Orientation Change Efforts

This section

• Explains that an LBA or an LaBA shall not engage in sexual orientation change efforts with a person under 18 years of age

45:1-62 – Telemedicine and Telehealth

This section

• Explains that an LBA or an LaBA may remotely provide health care services to a patient through telemedicine and engage in telehealth to support and facilitate the provision of health care services to patients
• An LBA or an LaBA who uses telemedicine or engages in telehealth while providing health care services to a patient, shall:
  • Possess a valid New Jersey behavior analyst or assistant behavior analyst license
  • Remain subject to regulation by the ABA board
  • Act in compliance with existing requirements regarding the maintenance of liability insurance
  • Remain subject to New Jersey jurisdiction if either the patient or the provider is located in New Jersey at the time services are provided
• An LBA or an LaBA providing health care services using telemedicine or telehealth shall be subject to the same standard of care or practice standards as are applicable to in-person settings and if telemedicine or telehealth services would not be consistent with this standard of care, the health care provider shall direct the patient to seek in-person care
• An LBA or an LaBA who engages in telemedicine or telehealth shall maintain a complete record of the patient’s care, and shall comply with all applicable State and federal statutes and regulations for recordkeeping, confidentiality, and disclosure of the patient’s medical record
• An LBA or an LaBA shall not be subject to any professional disciplinary action solely on the basis that the LBA or the LaBA engaged in telemedicine or telehealth

45:1-70 – Advertisement and Identification

This section:

• Explains that advertisements for health care services that include the name of the LBA or the LaBA shall identify the type of professional license and professional degree issued to the LBA or the LaBA and shall not contain deceptive or misleading information
• When providing in-person care, an LBA or an LaBA shall communicate their professional licensure and professional degree held with a name tag or embroidered identification to be worn during all patient encounters

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Uniform Regulations

Read Chapter 45C – Uniform Regulations>>

Subchapter 1: Licensee Duty to Cooperate and to Comply with Board Orders

13:45C-1.2 – Cooperating in Investigations

This section:

• Explains that an LBA or an LaBA is required to cooperate in any inquiry, inspection, or investigation conducted by, or on behalf of, the Division of Consumer Affairs (division), the Director of the division (director), the State Board of Applied Behavior Analyst Examiners (ABA board), or other division board, into the conduct, fitness, or capacity of an LBA, an LaBA, or other health care professional
• An LBA or an LaBA who fails to cooperate may be deemed by the division, the director, the ABA board, or other division board as constituting professional or occupational misconduct which can lead to disciplinary action

13:45C-1.3 – Failure to Cooperate Specifics

This section:

• Explains the scenarios where an LBA or an LaBA fail to cooperate with an investigation
  • Failure to provide information to a response to a complaint in a timely manner
  • Failure to provide records related to the conduct of an LBA, an LaBA, or other health care professional in a timely manner
  • Failure to attend scheduled proceedings where the appearance of the LBA or the LaBA is requested
  • Failure to respond to a demand for a statement or report under oath, the failure to permit the examination of any goods, ware, or item used in the rendition of the professional or occupational service, and the failure to grant access to records, books, or other documents utilized in the practice of the occupation or profession
  • Failure to answer questions pertaining to an inquiry
  • Failure to respond to an appearance or production of documents for a subpoena in a timely manner
  • Failure to provide the division, the director, or the ABA board with a notice of change of address from that which appears on the LBA’s or the LaBA’s most recent license renewal or application in a timely manner

13:45C-1.4 – Failure to Comply

This section:

• Explains that an LBA or an LaBA who fails to comply with an order entered and served upon them, and who has knowledge of the order, shall be deemed professional or occupational misconduct

13:45C-1.5 – Unavailability of Privileges

This section:

• Explains that the behavior analyst – client privilege is unavailable during an investigative inquiry or disciplinary proceeding
• Statements or records subjected to claim of the behavior analyst – client privilege shall remain confidential unless ordered to be disclosed by the courts, the ABA board, other division board, or the Office of Administrative Law

13:45C-1.6 – Maintenance of and Access to Information

This section:

• Explains that statements, records, or other information subjected to the behavior analyst – client privilege shall be maintained in a secure place and manner by
  • The evidence custodian within the Enforcement Bureau of the division
  • The ABA board or other division board and certain division committees or subunits
  • A Deputy Attorney General
• Only employees and agents of the Attorney General, the Enforcement Bureau, the ABA board, other division board, or division subunit shall have access to statements, records, and other information
• Statements, records, and other information can be retained while an investigation remains open or until the administrative or judicial proceedings have been completed
  • Once completed, the statements, records, or other information can be returned to the person from whom they were obtained

Subchapter 2: Waivers from Regulatory Requirements; Application

13:45C-2.3 & 13:45C-2.4 – Waiver Request Application

This section:

• Explains that an applicant, an LBA, an LaBA, or regulated person can apply to the division or the ABA board for a waiver or relaxation of a specific regulatory requirement under certain circumstances
• An applicant, an LBA, an LaBA, or regulated person shall submit a waiver request that must include
  • The specific rules or part of the rules for which the waiver is requested
  • Reasons for requesting the waiver
  • Documentation that supports the waiver request
• The division or the ABA board can waive or relax its regulatory requirements on its own under certain circumstances

Subchapter 3: Performance-Based Outcomes

13:45C-3.3 – Alleged Violations without Enforcement Proceedings

This section:

• Explains that the division or the ABA board can take action to encourage an LBA or an LaBA to follow their rules instead of imposing disciple or penalties
• The division or the ABA board may consider the following when opting to not impose discipline or penalties upon an LBA or an LaBA
  • Whether the LBA or the LaBA made a good faith effort to comply
  • Impact of the alleged violation on the quality of the product or service provided
  • Impact of the alleged violation on the consumer for whom the product or service was provided
  • Impact of the alleged violation on the public health, safety, and welfare
  • Whether the alleged violation is a first-time violation or the same/similar violation previously committed
  • Whether the alleged violation is isolated paperwork or procedural regulatory noncompliance
  • The seriousness of the alleged violation
• Examples of measures the division or the ABA board can take to encourage compliance include
  • Issuing a letter of admonition or other warning to the LBA or the LaBA which shall not be public information
  • Suspending the obligation to pay fines or penalties subject to continuing compliance with agency rules
  • Obtaining the agreement of the LBA or the LaBA, as a condition for continued, reinstated or renewed licensure, to secure medical or such other professional treatment to properly discharge functions of the LBA or the LaBA
  • Obtaining the agreement of the LBA or the LaBA, as a condition for continued, reinstated or renewed licensure, to submit to any medical or diagnostic testing and monitoring or psychological evaluation that may be required to evaluate whether continued practice may jeopardize the safety and welfare of the public
  • Obtaining the agreement of the LBA or the LaBA, as a condition for continued, reinstated or renewed licensure, to submit to an assessment of skills to determine whether the LBA or the LaBA can continue to practice with reasonable skill and safety, and to take and successfully complete educational training determined by the division or the ABA board to be necessary
  • Obtaining the agreement of the LBA or the LaBA to undergo corrective training or instruction
  • Obtaining the agreement of the LBA or the LaBA to participate in consumer outreach programs conducted by the division and to speak on topics selected by the division
  • Obtaining the agreement of the LBA or the LaBA to contribute to the consumer fraud education fund

Subchapter 4: Anti-Discrimination

13:45C-4.1 – Applicability and Definitions

This section:

• Explains that “engage in prohibited discrimination” is defined as participating in conduct that has a direct or substantial relationship to the activity regulated by the ABA board and that violates the NJ Law Against Discrimination (NJLAD) or any other applicable Federal or State civil rights or anti-discrimination law.
• “Engage in a reprisal” is defined as having a relationship to the activity regulated by the ABA board which include:
  • Taking retaliatory action against a person because that person has opposed any prohibited practices or acts, sought legal advice, shared relevant information with legal counsel, shared information with a governmental entity, or filed a complaint or testified or assisted in any proceeding
  • Coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of that person’s rights under the NJLAD or any other applicable Federal or State civil rights or antidiscrimination law
  • Coerce, intimidate, or threaten any person on account of that person’s having aided or encouraged any other person in the other person’s exercise or enjoyment of rights under the NJLAD or any other applicable Federal or State civil rights or anti-discrimination law

13:45C-4.2 – Prohibited Conduct

This section:

• Explains that an LBA or an LaBA who has been found in an administrative proceeding brought before the ABA board or before the Office of Administrative Law to have participated in prohibited discrimination against any current/prospective client, patient, student, supervisee, colleague, or employee shall be deemed to have participated in professional or occupational misconduct and may be subject to discipline
• An LBA or an LaBA who has been found by a court or an appropriate State or Federal agency to have participated in prohibited discrimination against any current/prospective client, patient, student, supervisee, colleague, or employee shall be deemed to have participated in professional or occupational misconduct and may be subject to discipline

13:45C-4.3 – Reprisals

This section:

• Explains that an LBA or an LaBA who has been found in an administrative proceeding brought before the ABA board or before the Office of Administrative Law to have participated in a reprisal against any person shall be deemed to have participated in professional or occupational misconduct and may be subject to discipline
• An LBA or an LaBA who has been found by a court or an appropriate State or Federal agency to have engaged in a reprisal against any person shall be deemed to have participated in professional or occupational misconduct and may be subject to discipline

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Child Abuse Reporting Requirements

Read Chapter 9:6>>

9:6-1 – Abuse, Abandonment, Cruelty, and Neglect of a Child

This section:

• Explains that abuse of a child includes:
  • Disposing of the custody of a child contrary to law
  • Employing or permitting a child to be employed in any vocation or employment injurious to its health or dangerous to its life or limb, or contrary to NJ law
  • Employing or permitting a child to be employed in any occupation, employment or vocation dangerous to the morals of such child
  • The habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language
  • The performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child
  • Permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of the child that may tend to debauch or endanger the morals of such child
  • Using excessive physical restraint on the child under circumstances which do not indicate that the child’s behavior is harmful to himself, others or property
  • In an institution, willfully isolating the child from ordinary social contact under circumstances which indicate emotional or social deprivation
• Abandonment of a child include any of the following acts by a person having the custody or control of the child:
  • Willfully forsaking a child
  • Failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection
  • Failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control
• Cruelty to a child includes:
  • Inflicting unnecessarily severe corporal punishment upon a child
  • Inflicting upon a child unnecessary suffering or pain, either mental or physical
  • Habitually tormenting, vexing or afflicting a child
  • Any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child
  • Exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child
• Neglect of a child include any of the following acts, by anyone having the custody or control of the child:
  • Willfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home
  • Failure to do or permit to be done any act necessary for the child’s physical or moral well-being
  • The continued inappropriate placement of a child in an institution with the knowledge that the placement has resulted and may continue to result in harm to the child’s mental or physical well-being

9:6-8.9 – Defining Abused Child

This section:

• Explains that “abused child” is defined as a child under the age of 18 years whose parent, guardian, or other person having his custody and control:
  • Inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ
  • Creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ
  • Commits or allows to be committed an act of sexual abuse against the child
  • A child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, or such other person having his custody and control, to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment or using excessive physical restraint under circumstances which do not indicate that the child’s behavior is harmful to himself, others or property; or by any other act of a similarly serious nature requiring the aid of the court
  • A child who has been willfully abandoned by his parent or guardian, or such other person having his custody and control
  • A child who is in an institution and has been so placed inappropriately for a continued period of time with the knowledge that the placement has resulted and may continue to result in harm to the child’s mental or physical well-being or has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation (a child shall not be considered abused pursuant to this subsection if the acts or omissions described therein occur in a day school)

9:6-8.10 – Reporting Child Abuse

This section:

• Explains that an LBA or an LaBA having reasonable cause to believe that a child has been subjected to child abuse, including sexual abuse, or acts of child abuse shall report the same immediately to the Division of Child Protection and Permanency within the Department of Children and Families by telephone or otherwise
• Such reports, where possible, shall contain the names and addresses of the child and their parent, guardian, or other person having custody and control of the child and, if known, the child’s age, the nature and possible extent of the child’s injuries, abuse or maltreatment, including any evidence of previous injuries, abuse or maltreatment, and any other information that the LBA or the LaBA believes may be helpful with respect to the child abuse and the identity of the perpetrator

9:6-8.13 – Immunity from Reporting Child Abuse

This section:

• Explains that an LBA or an LaBA who reports an allegation of child abuse shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed, and they shall have the same immunity with respect to testimony given in any judicial proceeding resulting from such report
• An LBA or an LaBA who reports or causes to report in good faith an allegation of child abuse or neglect and as a result thereof is discharged from employment or in any manner discriminated against with respect to compensation, hire, tenure or terms, conditions or privileges of employment, may file a cause of action for appropriate relief in the family part of the Chancery Division of the Superior Court in the county in which the discharge or alleged discrimination occurred or in the county of the person’s primary residence
• If the court finds that the LBA or the LaBA was discharged or discriminated against because of the person’s reporting an allegation of child abuse or neglect, the court may grant reinstatement of employment with back pay or other legal or equitable relief

9:6-8.14 – Violations and Degree of Crime for Failing to Report Child Abuse

This section:

• Explains that except as provided in the next subsection, an LBA or an LaBA who knowingly violates the provisions of this act including the failure to report child abuse having reasonable cause to believe that an act of child abuse has been committed, is considered a disorderly person
• An LBA or LaBA who knowingly fails to report an act of sexual abuse against a child and who has reasonable cause to believe that an act of sexual abuse has been committed is guilty of a crime of the fourth degree

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