Addressing the Misrepresentation of Certification Status: When a Cease-and-Desist Letter Isn’t Enough and a Lawsuit Is Too Much

Friday, July 15, 2022

By Misty Bloom, Esq, ICE-CCP, Sarah Bush, ICE-CCP, and James E. Carr, PhD, BCBA-D, ICE-CCP

At the Behavior Analyst Certification Board^® (BACB^®)¹, our mission is to protect consumers of applied behavior analysis (ABA) services by systematically establishing, promoting and disseminating professional standards. In the past decade, our certificants have grown in number from 10,000 to over 185,000, largely because of the passage of dozens of funding and licensure laws in the majority of the United States.² There are currently 36 U.S. states that license behavior analysts, and they reference the BACB’s certifications or standards to various degrees.³

Our certificants typically provide ABA services to vulnerable individuals, such as those with autism spectrum disorder and intellectual disabilities. The substantial risk of harm that could result from receiving ABA services from an unqualified provider was one of the factors that drove the recent enactment of numerous licensure laws, even in an era of deregulation. As funders, licensing boards and employers have increasingly required BACB certifications for ABA practitioners, we have increasingly encountered individuals misrepresenting that they are certified by us when they are not (hereafter referred to as “misrepresenters”). Misrepresentation of certification status (and the accompanying unknown competence) has the potential for substantial harm to vulnerable clients. In addition, service organizations employing individuals who have misrepresented BACB certification status could face significant billing fraud liabilities when a provider’s certification cannot be verified after services have been delivered.

Almost a decade ago, we recognized that the traditional cease-and-desist approach to individuals who misrepresent BACB certification status was not always doing the job of fulfilling our mission of consumer protection. Some misrepresenters would escape the cease-and-desist process via an online presence that was impossible to trace. Others simply ignored the cease-and-desist efforts. We began discussing the challenges associated with trying to serve and sue an invisible or highly mobile misrepresenter and realized we needed a new approach.

Misrepresenting comes in many forms. In one instance, we detected evidence of a misrepresenter not just misrepresenting our certification, but also claiming fake degrees and training. Several misrepresenters went so far as to steal the professional identities of legitimate certificants with similar names; at least one of these was even successful in deceiving a licensing board and obtaining licensure with their stolen identity and false credentials.

Our solution was to develop a process to officially publish the names and geographic locations of certain misrepresenters when cease-and-desist efforts were unsuccessful. There were a number of important factors we considered to support such an assertive approach. These included:

Potential legal liability if we were wrong. To avoid defamation litigation, we would need a rigorous process to ensure the accuracy of published information. We also would need to confirm that such instances would be covered by our corporate insurance policy for libel and slander.
Potential liability even when we were correct. We would need to ensure we had the resources to legally defend ourselves in the event we were asked to remove information already confirmed to be true.
Growing trends in privacy protection and rights of removal of public information. We would need to ensure we had a system for staying abreast of the increasing number of privacy laws and a system for addressing personal data removal requests.
Whether there were comparable publications by other certification entities as a precedent. Although we were unable to find another certification entity that published similar information, we did discover a similar process used by the American National Standards Institute/ANSI National Accreditation Board who publishes detailed information about those who misuse their accreditation symbol and name.

After extensive consideration of the issues described above, and with the full support of the BACB board of directors (and with significant consultation with outside trademark counsel), we began designing the BACB’s Falsified Credentials and/or Misrepresentation webpage (hereafter referred to as “the webpage”). Prior to publishing the first misrepresenter’s name, it was critically important to have already developed, reviewed and refined our policies and procedures surrounding publication to the webpage. In our procedures, we specified:

The circumstances under which an individual would be considered for publication
The steps that needed to be taken prior to publication (e.g., reasonable effort put forth to obtain contact information; multiple contacts across different modalities if contact information was available)
The procedures for removal of the publication in the event a removal request was received (e.g., the creation of a privacy committee⁴ to review removal requests, among other assigned tasks)

Once we were ready to launch, we carefully considered what to communicate to our stakeholders on this new webpage. It currently reads:

The BACB has information indicating that the following individuals have been misrepresenting themselves as BACB certificants (indicated in red text below), or otherwise misrepresenting BACB intellectual property (e.g., logos, trademarks). The individuals listed below are not certified by, or affiliated with, the BACB.

The BACB has either attempted to contact the individuals listed on this page or has been in contact with them. Examples of reasons for publication to this page include:

accurate contact information being unavailable;
lack of response or lack of compliance to cease-and-desist notice(s); or
a documented history of repeated misrepresentation that could pose a threat to consumers of behavior-analytic services.

Although all of our corporate policies and procedures are routinely reviewed and updated, the procedures for publication of misrepresenters are especially fluid, since there are continuous opportunities for refinement as new scenarios arise. For example, when an individual used the name of a legitimate certificant, we had to adapt our process to ensure enough information was conveyed to be meaningful to stakeholders, while also distinguishing those who were legitimately certified by the BACB. This was accomplished by including the name and location of the legitimate certificant next to the misrepresenter’s entry.

We also quickly realized that we needed a mechanism for the public to report instances of misrepresentation to us. As such, we added a contact form on the webpage for this purpose. Although the vast majority of reports received through this form do not result in publication, it has proven to be a useful mechanism for receiving reports of often-correctable instances of misrepresentation.

This strategy has proven to be very successful. We have learned that licensing boards, investigators, potential employers and clients increasingly review the webpage when vetting certificants. According to Google Analytics, the page had 7,216 unique visits in 2021 alone. In addition, one individual listed on the webpage has been successfully prosecuted for billing fraud. The BACB directly assisted in the investigation and provided a victim impact statement in the sentencing of that misrepresenter.

We know this is not a one-size-fits-all solution for certification entities facing habitual misrepresenters. However, it helped us to fulfill our mission of consumer protection and to address the challenges faced by misrepresenters who we are unable to locate or who refuse to comply with cease-and-desist efforts. It also serves as a valuable element in our toolkit for policing trademark infringement. We hope that our story is useful to other certification entities as they evaluate their own approach to these problems.