RULES AND REGULATIONS

Title 55—HUMAN SERVICES

DEPARTMENT OF HUMAN SERVICES

[ 55 PA. CODE CHS. 1155 AND 5240 ]

Intensive Behavioral Health Services

[49 Pa.B. 6088]
[Saturday, October 19, 2019]

 The Department of Human Services (Department) adopts Chapters 1155 and 5240 (relating to intensive behavioral health services) to read as set forth in Annex A under the authority of sections 201(2) and 1021 of the Human Services Code (62 P.S. §§ 201(2) and 1021) and section 201(2) of the Mental Health and Intellectual Disability Act of 1966 (50 P.S. § 4201(2)). Notice of the proposed rulemaking was published at 48 Pa.B. 4762 (August 4, 2018).

Purpose of this Final-Form Rulemaking

 The purpose of this final-form rulemaking is to codify the minimum licensing standards and program requirements for participation in the Medical Assistance (MA) Program and MA payment conditions for agencies that deliver intensive behavioral health services (IBHS) to children, youth and young adults under 21 years of age with mental, emotional and behavioral health needs. IBHS includes individual services, applied behavior analysis (ABA) services, group services and evidence-based therapy (EBT) delivered through individual services, ABA services or group services.

 This final-form rulemaking supports children, youth and young adults with mental, emotional and behavioral health needs because they can continue to receive a wide array of services that meet their needs in their homes, schools and communities, including EBT delivered through individual services, ABA services and group services.

 This final-form rulemaking will replace the requirements for behavioral health rehabilitation services (BHRS) previously set forth in bulletins issued by the Department. It also adds a requirement for a separate and distinct license for agencies that deliver these services and additional oversight of services. This final-form rulemaking eliminates redundancies in bulletins, streamlines the admission process for IBHS, establishes training requirements and qualifications for staff delivering IBHS and includes provisions to protect the health and safety of a child, youth or young adult receiving services.

Background

 BHRS were developed in response to the Omnibus Budget Reconciliation Act of 1989 (Pub.L. No. 101-239), which amended section 1905(r)(5) of the Social Security Act (42 U.S.C.A. § 1396d(r)) to require states to provide ''necessary health care, diagnostic services, and other measures described in [the Social Security Act]. . .whether or not such services are covered under the State plan.'' BHRS are individualized services provided in the home, school or community to meet the needs of children, youth and young adults with mental, emotional and behavioral health needs. The Department has issued bulletins to inform providers of the policies and procedures governing BHRS, many of which were issued when these services were new in the continuum of care. Since the publication of the bulletins, the service delivery system has become more complex and sophisticated. Individuals who receive BHRS and family members of individuals who receive BHRS, advocates, providers and county administrators have also expressed the need for revised standards for the delivery of BHRS. In response, the Department engaged a diverse group of stakeholders to provide input into the development of regulations that would address the delivery of IBHS.

Affected Individuals and Organizations

 This final-form rulemaking affects children, youth and young adults with mental, emotional or behavioral health needs currently receiving BHRS, their families and caregivers and the agencies that provide these services. Approximately 380 agencies are enrolled in the MA Program and currently provide BHRS to approximately 180,000 children, youth and young adults. This final-form rulemaking also affects providers that serve children, youth, and young adults with a behavioral health diagnosis, including autism spectrum disorder (ASD), that are not currently enrolled in the MA Program.

 The Department engaged in an active community participation process throughout the development of this final-form rulemaking to ensure that children, youth and young adults who need IBHS and their families and the agencies that provide the services had the opportunity to provide input, express concerns and participate in the drafting process.

 A total of 75 individuals were involved in a stakeholder workgroup that provided input on the proposed rulemaking, including providers of BHRS, advocates for individuals with ASD, physicians, family members of children receiving BHRS including ABA services, county administrators, representatives from provider associations, the Office of Mental Health and Substance Abuse Services (OMHSAS) Mental Health Planning Council, the Pennsylvania Mental Health Consumers Association, the Pennsylvania Health Law Project, Disability Rights Pennsylvania and MA behavioral health managed care organizations (BH-MCO). From May to September 2016, the Department participated in face-to-face meetings, telephone conference calls and webinars with stakeholders. The purpose of the workgroup meetings was for the Department to gather input and listen to concerns from interested parties regarding the development of a regulation for the licensure of agencies that will be providing IBHS.

 Each of the major sections of this final-form rulemaking was reviewed and discussed by members of the workgroup through a series of six telephone conference calls and webinars and two face-to-face meetings. One of the initial recommendations from the stakeholder workgroup was to change the name of the service from BHRS to IBHS. Key sections of the proposed rulemaking were the focus of the discussion during each of the telephone calls. Topics discussed with the stakeholder workgroup included the array of services to be included in this final-form rulemaking, staff qualifications and training requirements for each service, service planning, coordination of care and requirements for provider eligibility. Workgroup members were provided with notes and drafts of the rulemaking after each call or webinar. A dedicated e-mail account was established for workgroup members to submit written comments between meetings. Workgroup members were requested to gather input and feedback from other interested parties during the drafting of the proposed rulemaking. In addition, information on the proposed rulemaking was provided at meetings with organizations and committees, including the Rehabilitation Community Providers Association, including its Mental Health Committee and Children's Committee; committees sponsored by the County Commissioner's Association of Pennsylvania, including the County Administrator's Advisory Committee, the Mental Health Committee and the HealthChoices Committee; county Mental Health Administrators and Child and Adolescent Service System Program Coordinators; the Managed Care Subcommittee of the Medical Assistance Advisory Committee; and the Mental Health Planning Council. Numerous edits were made to the proposed rulemaking based upon the comments received from the workgroup members and other interested parties.

 The stakeholder workgroup met in January 2017 through March 2017 to provide input on Chapter 1155, the companion rulemaking, which addresses payment for IBHS. There were again face-to-face meetings, telephone conference calls and webinars with stakeholders and workgroup members who provided comments and feedback on Chapter 1155, the payment rulemaking, and additional comments and feedback on Chapter 5240, the licensing rulemaking. The proposed rulemaking was revised after each meeting to reflect the input of workgroup members. Workgroup members were able to provide written comments between meetings using the e-mail account.

 After publication of the proposed rulemaking, the Department reconvened the stakeholder workgroup. The stakeholder workgroup met in December 2018 and January 2019 to review and discuss some of the comments the Department received on the proposed rulemaking, including comments from the Independent Regulatory Review Commission (IRRC) and two legislators. The stakeholder workgroup discussed feedback the Department received about the decision to no longer require an evaluation to initiate services and instead require an assessment in the child's, youth's or young adult's home and community and the decision to no longer require Interagency Service Planning Team (ISPT) meetings prior to the initiation of services. The stakeholder workgroup also discussed whether the final-form rulemaking should include the requirement for post-discharge phone calls, suggestions for changes to the names of services and revisions to staff qualifications, the expected difficulty in implementing the re-initiation of service provisions included in the proposed rulemaking, possible changes to the supervision requirements, the challenges with creating a new certification through the Pennsylvania certification board prior to promulgation of this final-form rulemaking, concerns about capacity as a result of new staffing qualifications, the use of restrictive procedures, the need for 2:1 staffing or safety plans and rates for services.

 The Department appreciates the workgroup members' expertise, time and commitment to this final-form rulemaking and the helpful comments which guided the drafting of this final-form rulemaking.

Accomplishments and Benefits

 This final-form rulemaking benefits children, youth and young adults with mental, emotional and behavioral health needs by establishing a minimum standard for licensure of IBHS agencies, minimum requirements for IBHS agencies to enroll in the MA Program and conditions for the MA Program to pay for IBHS. In addition, the supervision and training requirements included in this final-form rulemaking will contribute to the development of a qualified IBHS workforce to deliver treatment services, which will help to improve clinical outcomes for children, youth and young adults receiving IBHS.

 This final-form rulemaking will also facilitate the accessibility of behavioral health care for children, youth and young adults by eliminating requirements that have been identified as barriers to accessing services by workgroup members, such as convening an ISPT meeting prior to the delivery of services and requiring a comprehensive evaluation prior to a referral for services. In addition, a child's, youth's or young adult's treatment needs will be assessed in the home and community setting as part of the initiation of treatment and staff who assess a child, youth or young adult will be able to provide services to the child, youth or young adult, which allows for continuity of care, a smoother transition to service provision, reduction in inconsistencies in treatment approach and less delay in beginning treatment.

 Furthermore, this final-form rulemaking promotes the use of EBTs by supporting their delivery through individual services, ABA services or group services, which may reduce the need for higher levels of care or out-of-home placements for children, youth and young adults.

Fiscal Impact

 The overall fiscal impact for each IBHS agency will vary and depends upon the services provided by the agency, the current organizational structure of the agency, and the IBHS agency's current qualification, supervision and training requirements. Because of the wide array of existing staffing patterns, supervision and training requirements for staff who currently provide BHRS, the Department cannot determine the exact fiscal impact of this final-form rulemaking. For example, although training and supervision is not currently required for individuals with graduate degrees who provide services, most agencies provide some training and supervision for those individuals. Likewise, it is unknown to what extent IBHS agencies will need to hire new staff or encourage existing staff to obtain additional qualifications. For example, some IBHS agencies that provide ABA services may already employ a clinical director that meets the qualification requirements in this final-form rulemaking.

 In addition, while this final-form rulemaking imposes new training requirements on IBHS agencies, the Department has included provisions in this final-form rulemaking that are intended to reduce the fiscal impact on IBHS agencies for training. This final-form rulemaking clarifies that staff do not need to repeat initial or annual training when employed by a new IBHS agency. It also promotes the employment of licensed or certified individuals, which will reduce training costs because training acquired through college coursework or as part of obtaining a license or certification is permitted to be counted towards the required staff training. Allowing IBHS agencies to count training acquired through coursework or as part of obtaining a license or certification will reduce the number of trainings agencies need to provide and will result in agencies having to spend less time creating their own trainings. It will also shorten the time between when a staff person is hired and when the staff person can begin to provide services because the staff person will require less training prior to beginning to provide services. In addition, when training is acquired through college coursework or as part of obtaining a license or certification, concerns about what was included in the training are alleviated and agencies will have more confidence that a staff person has the required training.

 Likewise, it is unknown to what extent the requirement that an IBHS agency have a quality improvement plan will be an additional expense for IBHS agencies. Agencies that are currently accredited by entities such as The Joint Commission or the Council on Accreditation (COA) complete quality improvement plans, as do many providers licensed by OMHSAS. Given the common practice of utilizing quality improvement activities, costs to implement this requirement may be minimal.

 IBHS agencies will also have the ability to provide assistant behavior consultation-ABA services, which will be supervised by a qualified individual. This new service will allow IBHS agencies to increase the number of staff available to provide ABA services and provide more services without impacting the health and safety of children, youth and young adults receiving services.

 To the extent that IBHS agencies incur additional costs as a result of this final-form rulemaking, these additional costs will be taken into consideration when the Department determines future BH-MCO capitation rates. The Department also anticipates that the need for additional licensing staff to license IBHS agencies will result in an additional cost to the Department.

 Any additional costs to the Department may be offset by some savings to the Department as a result of this final-form rulemaking. This final-form rulemaking includes qualifications for staff who provide ABA services that are consistent with those required by private insurers, which is expected to result in increased third party payment for services for children, youth or young adults who also have private insurance. Similarly, the admission process for ABA services will be more in line with the admission process used by private insurers, which may result in private insurers paying for the services that result in a written order for ABA services, completing an assessment or completing an individual treatment plan (ITP).

 This final-form rulemaking also establishes minimum standards for agencies that provide IBHS that include minimum staffing, training and supervision standards. This may increase the knowledge and skills of staff providing IBHS and may result in improved outcomes for children, youth and young adults who receive IBHS. Improved outcomes may decrease costs for the Department because they may result in a decrease in the utilization of higher levels of more costly care such as residential placement or out-of-home placement, a decrease in the length of time a child, youth or young adult receives IBHS or a decrease in the amount of services a child, youth or young adult needs.

 No cost to local government or individuals receiving IBHS are anticipated by this final-form rulemaking.

Paperwork Requirements

 This final-form rulemaking may result in increased paperwork for some agencies because it requires IBHS agencies to develop additional policies and procedures and includes a new requirement that IBHS agencies develop quality improvement plans, emergency plans, staff training plans and written agreements to coordinate care with other agencies. Agencies that are currently accredited by entities such as The Joint Commission or COA already are required to have a quality improvement plan and an emergency management plan. In addition, most agencies currently have written policies and procedures that address some of the topics required by this final-form rulemaking and agreements to coordinate care with other agencies. The elimination of the requirement for an ISPT meeting will decrease the paperwork required to document the meeting and result in less information needing to be submitted if prior authorization of IBHS is required.

Public Comment

 Written comments, suggestions and objections regarding the proposed rulemaking were requested within a 30-day period following its publication in the Pennsylvania Bulletin. The Department received 107 written responses containing approximately 1,400 comments. These comments represented feedback from a broad spectrum of advocates, parents, providers, professionals, legislators, county entities and BH-MCOs. Public comments were received from all five BH-MCOs that provide behavioral health services to children, youth and young adults in the Commonwealth; Statewide advocacy groups, such as Disability Rights Pennsylvania and Pennsylvania Health Law Project; provider groups, such as the Pennsylvania Council for Children, Youth and Family Services and the Rehabilitation and Community Providers Association; and professional associations, such as the Pennsylvania Psychological Association. Feedback was also received from a variety of providers, including large Statewide providers, new providers of ABA services, rural providers, small agencies and agencies owned by licensed psychologists. The Department also received comments from IRRC.

Discussion of Comments and Major Changes

 Following is a summary of the major comments received within the public comment period following publication of the proposed rulemaking and the Department's responses to those comments. A summary of additional changes to the proposed rulemaking is also included.

Replacement of BHRS Bulletins

 IRRC stated in response to the Department's explanation that the rulemaking is replacing information previously conveyed by the Department through bulletins that it is unclear from the description of the rulemaking provided in the preamble of the proposed rulemaking if any of the language from the bulletins was carried over to the rulemaking. IRRC requested that the Department provide a rationale for each section in the rulemaking and explain if that language previously existed in bulletins issued by the Department.

Response

 The service array that is addressed in the bulletins has been carried over in the rulemaking. BHRS includes therapeutic staff support (TSS) services, mobile therapy services, behavior specialist consultant (BSC) services, behavior specialist consultant-autism spectrum disorder (BSC-ASD) services, summer therapeutic activities programs (STAP) and services that are not included on the MA Program fee schedule but are approved through the program exception process. Individuals who provide behavioral health technician (BHT) services and behavioral health technician-applied behavior analysis (BHT-ABA) services have similar qualifications and responsibilities as individuals who provide TSS services. Mobile therapy services can continue to be provided by individuals with qualifications similar to the qualifications for mobile therapists included in the bulletins. In addition, although the Department has changed the name of BSC services and BSC-ASD services to behavior consultation services and behavior consultation-ABA services, the services provided through these services are the same as the services that were provided through BSC services and BSC-ASD services. The Department has also included in the final-form rulemaking with some modifications the qualifications for providing BSC services and BSC-ASD services. Furthermore, the Department will continue to allow STAP to be provided through group services. In addition to the staff who can provide BHRS, the bulletins also address which providers can enroll and receive payment for providing BHRS. These are the providers that the Department expects will obtain an IBHS agency license.

 The bulletins also impose for individuals who provide TSS services initial and ongoing training requirements, onsite supervision requirements, which the Department calls ''assessment and assistance,'' and individual and group supervision requirements. The rulemaking imposes similar training and supervision requirements for individuals providing BHT services. In addition, the bulletins require providers to coordinate services, draft treatment plans and plans for discharge, which are also all required by this rulemaking. The requirement that providers of BHRS submit service descriptions for review and approval by the Department is also addressed in the bulletins. The Department is continuing to require that service descriptions be submitted, although they will now be reviewed as part of the licensing process and the Department has updated some of the information that must be included in a service description as a result of its experience reviewing service descriptions. The bulletins also address the requirements for authorization of TSS services, which include a face-to-face evaluation, an ISPT meeting and a detailed treatment plan. As a result of input from stakeholders, the Department will no longer be requiring ISPT meetings. In addition, instead of requiring a face-to-face evaluation, the Department will be requiring a face-to-face interaction, which may include an evaluation, that results in a written order for IBHS and an assessment followed by the completion of an ITP for IBHS to be initiated. Finally, the bulletins encourage the use of a functional behavior assessment. The Department has changed this requirement from encouraging an assessment to requiring an assessment because assessments provide specifics for treatment delivery, including the number of hours of each service needed at each location.

 Promulgating this rulemaking will allow the Department to consolidate and update information provided in multiple bulletins issued over a 24-year period. The Department has found that because not all of the information was included in one place, there were redundancies in the bulletins and it was not always clear which provisions applied. In addition, many of the bulletins were issued when these services were new in the continuum of care and as a result of the service delivery system becoming more complex and sophisticated, information needs to be updated.

 The Department has drafted a payment regulation so that providers understand what is required to receive payment from the MA Program. A regulation that governs the licensing of IBHS agencies is needed to establish consistent standards and ensure that these standards are met. In addition, the Department has addressed staff qualifications, training, supervision and service planning and delivery in the rulemaking because it is seeking to align the services that are on the MA Program fee schedule with the services that are not on the MA Program fee schedule.

 This rulemaking is also needed to address issues that are not currently addressed in the bulletins, such as the organizational structure of an IBHS agency, staff training plans, agency records, quality improvement plans and additional supervision and training requirements. New requirements, such as staff training plans, were added because staff training plans ensure that staff are properly trained, which is expected to have a positive effect on the outcomes of services. Requirements relating to agency records are included to establish the specific items that must be kept by an IBHS agency, which will be used to license providers, and to clearly identify the information that must be kept in IBHS records for an individual, which will be used to provide services. The requirement that records must be reviewed is included in this rulemaking to ensure that information is accurately maintained in a child's, youth's or young adult's record. The Department has also included a quality improvement section in the final-form rulemaking because it believes that IBHS agencies should review the quality, timeliness and appropriateness of services they provide to children, youth and young adults and make improvements where needed. Finally, the Department has included training and supervision requirements for graduate-level professionals in the final-form rulemaking to ensure that individuals providing these services receive annual training and ongoing supervision.

 One commentator asked if the Department will render the existing BHRS bulletins obsolete after the rulemaking is promulgated.

Response

 The Department will obsolete the BHRS bulletins once this rulemaking is promulgated.

 IRRC also requested that the Department identify the language in the ABA sections of the rulemaking that satisfies the requirements of the settlement agreement reached in Sonny O v. Dallas, No. 1:14-CV-1110 (M.D. Pa.).

Response

 The settlement agreement requires the Department to specify minimum qualifications, including training and experience, as well as supervision requirements for practitioners who provide ABA services to children with ASD. The minimum qualifications must be sufficient to enable practitioners who provide ABA services to have the knowledge and skills about ABA set forth in Exhibit A to the settlement agreement.

 The Department has addressed the minimum qualifications and experience requirements to provide ABA services in § 5240.81 (relating to staff qualifications for ABA services), the training requirements to provide ABA services in § 5240.83 (relating to training requirements for staff who provide ABA services) and the supervision requirements for individuals who provide ABA services in § 5240.82 (relating to supervision of staff who provide ABA services). The Department, with input from stakeholders, has determined that the qualification requirements, in addition to the supervision and training requirements, are sufficient to enable the practitioners who provide ABA services to have the knowledge and skills about ABA set forth in Exhibit A to the settlement agreement.

Services provided through IBHS

 IRRC and 22 commentators expressed that they were confused about what services could be provided through IBHS and the qualifications of the individuals who could provide each service.

Response

 In response to these concerns, the Department has simplified the overall structure of the rulemaking in a number of ways. The Department has revised the rulemaking to better explain the services that can be provided through IBHS and the qualifications required to provide a service. The Department has also changed the name of some services.

 Individuals with graduate-level qualifications can provide behavior consultation services, mobile therapy services, behavior consultation-ABA services and behavior analytic services. Behavior consultation services consist of clinical direction of individual services, development and revision of the ITP, oversight of the implementation of the ITP and consultation with a child's, youth's or young adult's treatment team regarding the ITP. Mobile therapy services consist of individual therapy, family therapy, development and revision of the ITP, assistance with crisis stabilization and assistance with addressing problems the child, youth or young adult has encountered. Behavior analytic services and behavior consultation-ABA services consist of clinical direction of ABA services, development and revision of the ITP, oversight of the implementation of the ITP and consultation with a child's, youth's or young adult's treatment team on the ITP. In addition, behavior analytic services include functional analysis. Individuals with graduate-level qualifications can also provide group services, which include group and family psychotherapy, design of psychoeducational group activities, clinical direction of group services, creation and revision of the ITP, oversight of the implementation of the ITP and consultation with the child's, youth's or young adult's treatment team on the ITP.

 Individuals with or without graduate-level qualifications can provide assistant behavior consultation-ABA services. Assistant behavior consultation-ABA services consist of assisting an individual who provides behavior analytic services or behavior consultation-ABA services and providing face-to-face behavioral interventions.

 Individuals without graduate-level qualifications but who meet certification, training or experience requirements can provide BHT services or BHT-ABA services. BHT services and BHT-ABA services consist of implementing a child's, youth's or young adult's ITP. If group services are being provided, BHT services and BHT-ABA services consist of assisting with conducting group psychotherapy and facilitating psychoeducational group activities, in addition to implementing the child's, youth's or young adult's ITP.

 In addition, originally the Department intended that EBT would be provided as a separate service. As part of simplifying the structure of services, the Department has revised the final-form rulemaking to allow for the provision of EBT through individual services, ABA services or group services.

Access to services

 IRRC and 21 commentators were concerned that the qualifications for IBHS agency staff will create access issues and cause delays in children, youth and young adults receiving services because agencies will not be able to find and retain staff who meet the qualifications in the rulemaking. One of the commentators noted this concern specifically with regards to ABA services, and another commentator shared concerns about access to services in rural areas.

Response

 The Department does not agree that the qualifications included in the final-form rulemaking will cause access issues or delays in children, youth and young adults receiving services. The Department has included a variety of acceptable qualifications for each service. In addition, the Department has considered stakeholder input about both access to services and appropriate qualifications for individuals providing services and has added new qualifications for individuals who provide BHT services or BHT-ABA services, the two most highly utilized services. The Department has revised the final-form rulemaking to include that an individual with a high school diploma or the equivalent to a high school diploma who has completed 40 hours of training covering the RBT Task List can provide BHT services or BHT-ABA services and individuals who have 2 years of experience and 40 hours of training can provide BHT services or BHT-ABA services. In addition, the Department is allowing individuals who provide BHT services or BHT-ABA services additional time to obtain the qualifications needed to provide these services.

Rates and costs

 One commentator suggested that the Department consider authorizing payment for time spent performing activities and duties, such as treatment plan writing, data analysis, training, coordination of services, establishing and maintaining written agreements, discharge planning, supervision, consultation and participation in treatment team meetings.

Response

 The rulemaking does not change what activities are reimbursable.

 IRRC and 28 commentators expressed concern that the Department has not addressed the increased costs to IBHS agencies as a result of the rulemaking.

Response

 To the extent that IBHS agencies incur additional costs as a result of this rulemaking, these additional costs will be taken into consideration when the Department determines future BH-MCO capitation rates.

 IRRC asked the Department to address the economic impact on the regulated community of increased training requirements in the final-form rulemaking.

Response

 The Department developed training requirements using feedback from stakeholders. Most stakeholders supported the increased training requirements to enhance the skills of individuals providing services. The Department does not know what the specific economic impact of the costs of the training requirements will be for each provider because it depends on the IBHS agency's current training requirements. The Department has included in the rulemaking several provisions that are intended to reduce the costs to IBHS agencies as a result of the training requirements, including that staff do not need to repeat initial or annual training when changing employment to a different IBHS agency. The rulemaking also promotes the employment of licensed or certified individuals, which will reduce training costs because training acquired through college coursework or as part of obtaining a license or certification is permitted to be counted towards the required staff training. Allowing IBHS agencies to count training acquired through coursework or as part of obtaining a license or certification will reduce the number of trainings agencies need to provide, will result in agencies having to spend less time creating their own trainings and will decrease the time between when a staff person is hired and when the staff person begins to provide services since the new staff person will require less training prior to beginning to provide services. In addition, when training is acquired through college coursework or as part of obtaining a license or certification, concerns about what was included in the training are alleviated and agencies will have more confidence that a staff person has the required training.

 One commentator asked if there will be an increased cost to the HealthChoices primary contractors and oversight entities as it relates to monitoring and oversight duties.

Response

 There should be no increase in costs for the HealthChoices primary contractors and oversight entities as a result of the final-form rulemaking because they are already contracting with and monitoring providers of BHRS who are likely to become IBHS agencies.

Implementation of the rulemaking

 Six commentators recommended that the Department make available provider friendly documents, including billing guidance, and provide technical support.

Response

 The Department intends to hold in-person and online trainings about the requirements in this rulemaking and make training documents available to providers, including by distributing documents through listservs and posting documents on its website.

Definitions

§§ 1155.2 and 5240.2 Definitions

 Two commentators suggested that a definition of ''written order'' be added to the final-form rulemaking.

Response

 It is not necessary to include a definition of ''written order'' in the final-form rulemaking. Section 1155.32(a)(1)(iv) (relating to payment conditions for individual services) and § 1155.33(a)(1)(iv) (relating to payment conditions for ABA services) address what must be included in a written order.

 One commentator suggested adding a definition of the term ''provider'' to the rulemaking.

Response

 It is not necessary for the rulemaking to include a definition of ''provider'' because the Department uses the term ''IBHS agency'' to refer to providers in the rulemaking.

§§ 1155.2 and 5240.2 Definitions—ABA—Applied Behavior Analysis, consequence, variables and stimulus

 The Department has revised the definition of ''ABA-Applied behavior analysis'' to be consistent with Act 62 of 2008 (40 P.S. § 764h). The definition of ABA included in Act 62 does not provide that ABA includes the attempt to address one or more behavior challenges or skill deficits using evidence-based principles and practices of learning and behavior and the analysis of the relationship between a stimulus, consequence or other variable, and therefore the Department has deleted these provisions from the definition of ABA included in the final-form rulemaking.

 One commentator recommended that ''applied behavioral analysis'' be changed to ''applied behavior analysis'' because it is the term used in the behavior analysis field, including by the Behavior Analyst Certification Board and the Association for Behavior Analysis International. Other stakeholders also indicated that they agreed that this change should be made.

Response

 The Department agrees that ''applied behavioral analysis'' should be changed to ''applied behavior analysis'' and has made this change in the final-form rulemaking.

 Two commentators noted that the definition of ABA used in the rulemaking appears to limit ABA services to children, youth and young adults with ASD and also appears to indicate that it is the only recognized treatment service for children, youth and young adults diagnosed with ASD. The commentators stated that ABA services can be used to treat children, youth or young adults without ASD.

Response

 Children, youth and young adults with ASD are eligible to receive all of the services identified in this rulemaking and ABA services are not limited to children, youth and young adults diagnosed with ASD. The definition of ABA included in the rulemaking does not state that ABA services can only be provided to children, youth or young adults with ASD.

 IRRC and one commentator suggested adding a definition for ''skills deficits'' that is consistent with the Department's Bulletin OMHSAS 17-02, Applied Behavioral Analysis Using Behavioral Specialist Consultant-Autism Spectrum Disorder and Therapeutic Staff Support Services, to clarify that acquisition of communication skills and age appropriate skills that are needed for daily living (e.g. toileting, dressing, etc.) are appropriate goals of ABA services.

Response

 The definition of ABA is consistent with Act 62 of 2008 (40 P.S. § 764h) and language used in OMHSAS Bulletin 17-02. Because the definition of ABA includes that ABA services can be used ''to produce socially significant improvement in human behavior or to prevent loss of attained skill or function,'' it is not necessary to add a separate definition of ''skill deficit.'' ABA can be used to assist a child, youth or young adult with acquiring communication skills or age appropriate skills that are needed for daily living.

 One commentator recommended that the definition of ''ABA'' be revised to be consistent with the definitions used by either the Behavior Analyst Certification Board or Association for Behavior Analysis International because standards have been set nationally and Pennsylvania should not be behind the national standards set forth by the profession, which reflect current research and best practices.

Response

 The Department does not agree that the definition of ''ABA'' needs to be revised for Pennsylvania to not be behind the national standards set by the profession. The national standards are consistent with the definition of ''ABA'' used in the final-form rulemaking.

 One commentator suggested changing the definition of ''consequence'' because it is confusing. The commentator suggested it be changed to ''a directly measurable change of a child's, youth's or young adult's behavior resulting from a change in stimulus or stimuli.'' Another commentator stated that the definition of ''variables'' is confusing. In addition, IRRC and one commentator requested that the Department explain why the definition of ''stimulus'' only permits a behavior specialist analyst to manipulate events, circumstances or conditions.

Response

 As a result of the revisions made to the definition of ABA, the Department deleted the terms ''consequence,'' ''variable'' and ''stimulus'' from the definition of ''ABA.'' Because these terms were only used in the definition of ABA, it is no longer necessary for the Department to define them in the rulemaking.

§§ 1155.2 and 5240.2 Definitions—Caregiver

 Two commentators stated that the definition of ''caregiver'' should be revised because a legal guardian should sign documents on behalf of a minor.

Response

 The Department agrees that a legal guardian or parent is able to sign documents on behalf of a minor. Because the Department has revised the final-form rulemaking to clarify who can sign documents on behalf of a minor, the Department will not be revising the definition of ''caregiver.''

§§ 1155.2 and 5240.2 Definitions—EBT-Evidence-based therapy

 IRRC and four commentators suggested replacing ''Substance Abuse and Mental Health Services Administration's National Registry of Evidence-based Programs and Practices'' with ''Evidence-Based Practice Resource Center'' in the definition of EBT because its name has changed.

Response

 The definition of EBT has been updated to include ''Evidence-Based Practice Resource Center.''

 One commentator stated that it is unclear how a model intervention designated by the Department can be an EBT because the other requirements for a therapy to be considered an EBT have clear research-based support for their qualifications. The commentator believes that allowing therapies to be designated by the Department as EBTs could undermine the validity of calling a treatment an EBT and recommends that ''designated as a model intervention by the Department'' be removed from the definition of EBT. In addition, IRRC and one commentator asked what criteria will be used to determine whether an intervention developed by an IBHS agency can be a model intervention. Another commentator requested clarification as to how the Department will determine if an intervention is a model intervention, what process the Department will use to determine if an intervention is a model intervention, and how providers can submit programs or therapies to be considered as model interventions. One commentator asked if the Department will maintain a searchable list of the EBTs it has designated as model EBTs.

Response

 The Department will publish on its website a list of EBTs it has approved to be delivered through IBHS. It will not be reviewing models not recognized at the national level and designating them as EBTs. The Department has removed ''designated as a model intervention by the Department'' from the definition of EBT.

 One commentator recommended revising the definition of EBT to include the National Autism Center Standards Project and American Psychological Association Div. 25 and 12 standards, stating that standards have been set nationally and adopting national standards reflects current research and best practices.

Response

 The Department did not make the suggested addition to the definition of EBT because the recommended standards did not include models or programs for interventions, but instead included information on best practice treatment approaches.

§§ 1155.2 and 5240.2 Definitions—Group services

 One commentator stated that the definition of ''group services'' does not include size limits on group activities, including staff to individuals being served ratios.

Response

 The Department has not imposed a specific size limit on group activities. An IBHS agency must include staffing ratios for each service it offers in its service description that it must submit to the Department for review and approval pursuant to § 5240.5 (relating to service description).

 IRRC and one commentator requested that the last sentence of the definition of ''group services'' be moved to the body of the rulemaking because the requirement that group services can include individual interventions when included in the ITP is a substantive requirement.

Response

 The Department has removed the last sentence of the definition of ''group services'' from the rulemaking. The Department determined that this sentence was not necessary because the definition states that services are ''primarily'' provided in a group format. In addition, § 5240.96(d)(3) (relating to individual treatment plan) already includes that an ITP for a child, youth or young adult who is receiving group services must include any individual interventions needed to address the therapeutic needs of the child, youth or young adult to function in the home, school or community and § 5240.97(a) (relating to group services provision) provides that a graduate-level professional may provide individual psychotherapy. The Department also revised § 1155.34 (relating to payment conditions for group services) to provide for payment for individual interventions provided as part of group services.

§§ 1155.2 and 5240.2 Definitions—IBHS—Intensive behavioral health services

 One commentator is concerned that use of the term ''intensive'' will be misunderstood to mean that the rulemaking requires that individualized services are approved only if they are concentrated heavily within a specific time or continue for a very long period of time. The commentator further explained that this may not always be appropriate because some children, youth or young adults may benefit from short-term psychotherapy and the rulemaking should permit short-term psychotherapy when appropriate.

Response

 The term ''intensive behavioral health services'' was discussed with stakeholders as a replacement for ''behavioral health rehabilitation services'' because behavioral health rehabilitation services did not accurately capture the array of services addressed in this rulemaking. The level of intensity of services and hours prescribed will continue to be based on medical necessity and will vary depending on a child's, youth's or young adult's needs. The final-form rulemaking does not preclude children, youth and young adults from receiving other medically necessary services.

§§ 1155.2 and 5240.2 Definitions—Individual services

 The Department has deleted from the definition of ''individual services'' the term ''one-to-one'' to clarify that if medically necessary, individual services can be provided by more than one individual at a time.

§§ 1155.2 and 5240.2 Definitions—Initiation of service

 IRRC requested that the Department add a definition of ''initiation'' to the final-form rulemaking and use this term consistently throughout the rulemaking.

Response

 The Department has added a definition of ''initiation of service'' to the rulemaking. ''Initiation of service'' is defined as ''[t]he first day an individual service, ABA service or group service is provided. This includes the first day an assessment is conducted.''

§§ 1155.2 and 5240.2 Definitions—Staff

 IRRC questioned if the training and supervision requirements in the rulemaking apply to independent contractors and consultants.

Response

 The Department has added a definition of ''staff'' to the final-form rulemaking to clarify that the qualification, supervision and training requirements apply to all staff, including independent contractors and consultants who provide IBHS.

§ 5240.2 Definitions

 Multiple commentators and IRRC suggested that the Department add definitions of ''behavior specialist analyst,'' ''behavior specialist,'' ''mobile therapist,'' ''BHT'' and ''BHT-ABA'' to the rulemaking to clarify the different qualifications and functions of each position. In addition, because the qualifications for licensure for behavior specialists are found in 49 Pa. Code § 18.524 (relating to criteria for licensure as behavior specialist), IRRC requested that the Department add a reference to this section.

Response

 The final-form rulemaking was revised to reflect what services may be delivered through each service rather than be written in terms of which individuals can provide each service, and as a result, it is not necessary to include definitions of these terms. The Department also did not include a cross reference to 49 Pa. Code § 18.524 (relating to criteria for licensure as behavior specialist) because it did not define the term ''behavior specialist'' and the final-form rulemaking does not include cross references to the qualifications for other licenses whose holders can deliver IBHS.

 IRRC and five commentators suggested adding a definition of ''mental health professional'' because this position was defined differently than the other positions.

Response

 The Department has decided to no longer use the term ''mental health professional'' because it caused confusion since it is a term used in other Department programs. The Department is instead using the term ''graduate-level professional.'' The Department has included in § 5420.91 (relating to staff requirements and qualifications for group services) the qualifications a graduate-level professional must meet.

 One commentator suggested adding a definition for ''crisis event'' because it is a term that is used often in the rulemaking and it is unclear how the Department defines a crisis event.

Response

 The Department will not be adding a definition of ''crisis event'' to the final-form rulemaking because what is a crisis event varies from individual to individual. Each child, youth or young adult receiving services is required to have a crisis plan which will define what is a crisis event for that child, youth or young adult.

 One commentator suggested that the Department add a definition of ''qualified individual'' so that it is clear who can supervise individuals who provide ABA services.

Response

 Because § 5240.82 (relating to supervision of staff who provide ABA services) was revised to include the qualifications of an individual who provides supervision to staff providing ABA services, the Department does not believe that it is necessary to include a definition of ''qualified individual'' in the rulemaking.

§ 5240.2 Definitions—ASD—Autism spectrum disorder

 IRRC and one commentator noted that the definition of ''autism spectrum disorder'' differs from the definition of ''autism spectrum disorder'' found in 49 Pa. Code § 18.522 (relating to definitions) and requested that the Department explain why it used a definition different from the definition used in the State Board of Medicine's regulations governing behavior specialist licenses.

Response

 While the Department did use a different definition of ''autism spectrum disorder,'' the definitions in 49 Pa. Code § 18.522 (relating to definitions) and the definition used in this rulemaking are consistent. The definition included in this rulemaking includes a greater focus on the behaviors associated with ASD because IBHS are intended to treat maladaptive behaviors by decreasing them and increasing adaptive behavioral skills.

§ 5240.2 Definitions—Aversive conditioning, chemical restraint, mechanical restraint, pressure-point technique and seclusion

 The Department identified in the final-form rulemaking the restrictive procedures providers are not permitted to use, which include seclusion, aversive conditioning, pres-sure-point technique, chemical restraint and mechanical restraint. As a result, the Department has added definitions of ''seclusion,'' ''aversive conditioning,'' ''pressure-point technique,'' ''chemical restraint'' and ''mechanical restraint'' to the final-form rulemaking.

§ 5240.2 Definitions—Community like setting

 The Department has added a definition of ''community like setting'' to the final-form rulemaking to clarify where group services can be provided. The Department has defined ''community like setting'' as ''[a] setting that simulates a natural or normal setting for a child, youth or young adult.'' A community like setting can be at an IBHS agency's site, but the setting where group services are provided must be designed in such a manner as to appear to be a natural or normal setting for a child, youth or young adult.

§ 5240.2 Definitions—Trauma-informed approach

 Two commentators recommend including ''traumatization'' in addition to ''retraumatization'' in the definition of ''trauma-informed approach.''

Response

 The Department does not agree that it is necessary to include ''traumatization'' in the definition of ''trauma-informed approach'' because the definition already includes language about the impacts of trauma and practices to avoid traumatization.

§ 5240.2 Definitions—Treatment team

 The Department has added a definition of ''treatment team'' to the final-form rulemaking to clarify who can be involved in a child's, youth's or young adult's treatment. A child's, youth's or young adult's treatment team may include the child, youth, young adult, parents, legal guardians, caregivers, teachers, individuals who provide services and any individual chosen by the child, youth, young adult, parents or legal guardians.

Scope of benefits

§ 1155.11 Scope of benefits

 IRRC requested that the Department define the term ''behavioral health diagnosis'' and asked the Department to clarify if the term ''behavioral health diagnosis'' excludes children, youth and young adults with an intellectual disability. Another commentator stated that IBHS cannot be limited to children, youth and young adults with a behavioral health diagnosis and for clarity the rulemaking should be revised to state that a child, youth or young adult must have a diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) or International Classification of Diseases (ICD) to be eligible for IBHS.

Response

 A behavioral health diagnosis requires a child, youth or young adult to meet the diagnostic criteria established in the current version of the DSM or ICD for a mental health or behavioral disorder. A child, youth or young adult with an intellectual disability would be eligible to receive IBHS if the child, youth or young adult has behaviors that meet the level of severity to meet the criteria for a mental health or behavioral disorder.

 IRRC noted that since ''young adult'' is defined as a person who is ''under 21 years of age,'' the Department should delete the phrase ''under 21 years of age'' from all subsequent references to young adults in the rulemaking.

Response

 The Department has deleted the phrase ''under 21 years of age'' from subsequent references to young adult in the rulemaking.

Participation requirements

§ 1155.21 Participation requirements, § 1155.22 Ongoing responsibilities of providers

 IRRC asked the Department to explain the difference between being licensed and enrolled and requested that the Department clarify the difference in the final-form rulemaking.

Response

 An IBHS agency must obtain a license. However, if the provider wants to participate in the MA Program, the provider must obtain a license and enroll in the MA Program.

 IRRC noted that § 1155.22(e) (relating to ongoing responsibilities of providers) requires an IBHS agency to notify the Department if the agency has changed its name, address or service provided. IRRC questioned if any of these changes will require Department approval, particularly if they differ from what was listed in the license or enrollment application.

Response

 The Department revised this requirement in the final-form rulemaking because § 5240.5(b) (relating to service description) addresses updates to service descriptions. However, providers are required to advise the Department of changes to the information in their MA enrollment applications.

Written order

§ 1155.32 Payment conditions for individual services, § 1155.33 Payment conditions for ABA services, § 1155.34 Payment conditions for group services, § 1155.35 Payment conditions for EBT delivered through individual services, ABA services or group services

 IRRC and four commentators asked which licensed professionals, besides the licensed professionals identified in the rulemaking qualify to diagnose and treat behavioral health disorders. One commentator indicated that it would be better if the rulemaking identified the acceptable licenses. Another commentator shared concerns about broadening the types of licensed individuals who can prescribe IBHS and requested that who can prescribe IBHS remain limited to who is allowed to prescribe BHRS.

Response

 The Department has chosen not to identify all of the specific licenses required to be able to prescribe IBHS because this may change over time and the Department cannot anticipate what other licenses may be created in the future that include within their scope of practice the diagnosis and treatment of behavioral health disorders or if the scope or practice of existing licenses will be changed. The Department will address this in provider training.

 Fifteen commentators requested clarification if physical medicine physicians, such as developmental pediatricians and neurologists, may write an order for behavioral health services, such as ABA services.

Response

 Because they are licensed physicians, physical medicine physicians may write an order for behavioral health services, including ABA services.

 Two commentators asked if payment will still be made for IBHS if an unlicensed person writes the order for IBHS and a licensed prescriber signs off on the order. Similarly, two other commentators asked if psychological associates can complete the written order.

Response

 Licensed individuals must follow the regulations that govern their license and should only sign off on tasks performed by an unlicensed individual, including psychological associates, if they are allowed to by their licensing regulations.

 One commentator stated that agencies that deliver IBHS should not also prescribe the hours of IBHS needed because this creates a conflict of interest.

Response

 Individuals who can prescribe IBHS are bound by their professional ethics and should not prescribe hours of service a child, youth, or young adult does not need. If it is believed that a prescriber is acting unethically, it should be reported to the prescriber's licensing board.

 One commentator stated that only psychologists and psychiatrists are qualified to perform evaluations and the commentator is concerned that other practitioners do not have the same level of specialized training as a psychologist or psychiatrist.

Response

 The Department believes that other individuals who have a license whose scope of practice includes the diagnosis and treatment of behavioral health disorders are qualified to write an order for IBHS.

 One commentator expressed concern about lowering the credentials for evaluators who can prescribe ABA services because the commentator believes it is difficult to properly diagnosis children, youth and young adults who are part of a specialty population, including children, youth or young adults with ASD, social language disorder, depression, reactive stress disorder, post-traumatic stress disorder or attachment disorder.

Response

 The Department does not agree that it is lowering the standard for who can prescribe ABA services. The Department is allowing licensed individuals whose scope of practice includes the diagnosis and treatment of behavioral health disorders to prescribe ABA services. The Department expects that this will include individuals who specialize in treating and diagnosing the populations identified by the commentator.

 One commentator asked if individuals who prescribe ABA services should also have a certification related to ABA.

Response

 The Department believes that such a requirement is unnecessary and would unduly restrict access to ABA services. A licensed professional whose scope of practice includes the diagnosis and treatment of behavioral health disorders is able to determine if a child, youth or young adult needs ABA services.

 One commentator asked if an order for IBHS can be written by a physician assistant.

Response

 A licensed professional whose scope of practice includes the diagnosis and treatment of behavioral health disorders may write an order for IBHS. If the scope of practice of the physician supervising the physician assistant includes the diagnosis and treatment of behavioral health disorders, the physician assistant may write an order for IBHS.

 One commentator stated that the rulemaking does not mention where a written order originates and what authorization process for services, if any, must be followed.

Response

 The written order must be written by someone who satisfies the requirements in §§ 1155.32—1155.35. The rulemaking does not establish the authorization process, if any, that must be followed. The Department and the BH-MCOs will establish this process and will provide further information on the process once established.

 One commentator requested confirmation that a best practice evaluation would meet the written order requirements. This commentator also asked if a prescription letter meets the written order requirements.

Response

 The requirements for a written order included in the final-form rulemaking must be complied with regardless of the format used for the written order. Acceptable formats include an evaluation or a prescription letter as long as the requirements for a written order included in the rulemaking have been met

 IRRC and one commentator questioned if the assessment is to be done in place of a psychological evaluation, or if both are required. Another commentator stated that a face-to-face evaluation by a licensed practitioner of the healing arts that results in a prescription for a covered service is the basis for billing MA for services. This commentator believes the requirement in the rulemaking for an order undermines this premise.

Response

 The Department does not agree that an evaluation is necessary for MA to pay for IBHS. The rulemaking allows a graduate-level professional to conduct an assessment of the child, youth or young adult in the home and community, which can support or supplant components of an office-based evaluation. The rulemaking also does not preclude a qualified individual from providing a medically necessary evaluation.

 One commentator stated that eliminating the best practice evaluation will likely help expedite access to services and asked if it is intended that the written order only contain a prescription for services and if the assessment will be used to determine the locations of service, as well as the hours of service needed in each location.

Response

 The written order must contain the elements listed in the rulemaking, including the maximum number of hours of each service recommended a month for the child, youth or young adult. The assessment of the child, youth or young adult is intended to provide more specifics regarding treatment delivery, including the number of hours of each service needed at each location. The assessment is also intended to guide the development of the ITP. An evaluation of the child, youth or young adult can still be conducted.

 One commentator advocated that for a prescriber to complete the written order, the prescriber must have a face-to-face interaction with a parent or caregiver and if a face-to-face interaction is not possible, a parent or caregiver should at least be consulted.

Response

 Prescribers can have face-to-face interactions with a parent, legal guardian or caregiver even though the rulemaking does not require it. The Department has not made a face-to-face interaction between the prescriber and a parent, legal guardian or caregiver a requirement because it may not always be clinically appropriate for the prescriber to interact with a parent, legal guardian or caregiver and because young adults are able to access IBHS without parental or caregiver involvement.

 One commentator stated that an increased emphasis on the evaluation as a requirement of the prescribing professional would add value for the prescribing professional and to the development of the initial ITP.

Response

 The Department expects a prescriber's face-to-face interaction with a child, youth or young adult to be an evaluation, which allows the prescriber to obtain the information needed for the written order. The prescriber can conduct the face-to-face interaction in any manner that would allow the prescriber to obtain the information needed to complete the written order.

 One commentator stated that a best practice evaluation is critical and is concerned that a written order will not be sufficient. The commentator believes that assessments are not an adequate replacement for best practice evaluations. Similarly, another commentator believes this rulemaking is attempting to eliminate the use of best practice evaluations.

Response

 The final-form rulemaking does not prevent an evaluator from performing an evaluation.

 One commentator asked if the written order can include the maximum number of hours of services per week instead of the maximum number of hours of each service each month.

Response

 Because weekly is encompassed within the requirement of monthly, a recommendation for services that includes the maximum number of hours of services per week would be acceptable when the maximum number of hours per month is also included. The Department is requiring that the maximum number of hours per month be included in the written order to promote consistency and allow for treatment to be based on clinical needs, which may vary throughout the month.

 Two commentators requested information on what needs to be included in a written order for initiation and re-initiation of services.

Response

 Initiation and re-initiation of services can occur as long as there is a written order that meets the requirements listed in § 1155.32(a)(1)(iv) (relating to payment conditions for individual services) or § 1155.33(a)(1)(iv) (relating to payment conditions for ABA services).

 One commentator asked if psychologists are expected to ''rubber-stamp'' prescriptions written by others who do not have the necessary credentials to conduct an evaluation. The commentator also questioned if the rulemaking should have included what is required to be in the written order because this impinges upon the practice of psychology.

Response

 The Department does not expect a psychologist or any other prescriber to ''rubber-stamp'' a written order. Psychologists and other licensed professionals must continue to operate within the standards, guidelines and ethics set forth by their licensing boards and the regulations that govern their practice. The Department does not agree that specifying what must be in a written order infringes on the practice of psychology. The Department is not directing a psychologist or other licensed professionals regarding the individual's clinical practice. A psychologist can obtain the information required to be included in the written order in any manner the psychologist believes appropriate, including an evaluation, as long as the method used includes a face-to-face interaction with the child, youth or young adult.

 Four commentators asked if the Department will train evaluators to collect the information needed for the written order for services. One commentator pointed out that the rulemaking requires information in the written order that is much more detailed than what is currently required in an order and questioned how evaluators will know what to include in the written order. Similarly, four other commentators requested clarification and additional information on the admission process for IBHS, including the expectations regarding coordination between providers, the differences between the proposed requirements and the current practice of requiring an evaluation and further information on the minimum content of the order.

Response

 The Department will be providing training on the written order. It will address during the training what must be included in the written order and how provider coordination should occur during the admission process. The Department will also issue additional guidance documents on the written order and the admission process for IBHS, if necessary.

 One commentator asked if there can be a range of hours included in the written order since the requirement is for a maximum number of hours per month.

Response

 The prescriber should not include a range of hours in the written order. The written order should state the maximum number of hours a prescriber has concluded is medically necessary.

 One commentator requested further information on what must be included in the clinical information to support the medical necessity of each service ordered.

Response

 The clinical information needed to support the medical necessity of a service depends on the needs of the child, youth or young adult being served.

 One commentator requested the Department provide a template to be used so that the written orders are standardized.

Response

 The Department does not believe that it is necessary that written orders for services be standardized. The final-form rulemaking specifies what is needed to be included in a written order.

 Two commentators asked if a new written order is required if as a result of the assessment it is determined that a child, youth or young adult needs more or less hours of service than indicated in the written order. One commentator asked if it is necessary for the prescriber to conduct a reevaluation, is another face-to-face interaction required.

Response

 If as a result of an assessment it is determined that the child, youth or young adult needs a different number of hours of service than is included in the written order, the prescriber should be notified so the prescriber can review the additional information and determine if another face-to-face interaction with the child, youth or young adult is necessary. If it is determined that a child, youth or young adult needs less hours than indicated in the order, a new written order is not needed. If a child, youth or young adult needs more hours than indicated in the written order, a new written order is required.

 One commentator asked if a primary care physician writes an order for an extensive amount of services, must the provider provide all ordered services when the child, youth or young adult does not appear to need the amount of services ordered. The commentator also asked if the written order should be considered a guide for services until the assessment and ITP are completed. Finally, this commentator asked what the next steps are if the assessment results in a determination that other services should have been prescribed.

Response

 The assessment process may lead to additional information that the prescriber may find helpful when determining the service recommendations that should be included in the written order. If the assessment determines that there is a different amount of services required than is included in the written order or that other services should have been prescribed, the treatment team should convene to resolve the discrepancy.

 Treatment can start once there is a written order for IBHS, but a treatment plan needs to be developed to guide the services provided. The treatment plan does not need to include all of the information required by § 5240.22 (relating to individual treatment plan), § 5240.86 (relating to individual treatment plan), § 5240.96 (relating to individual treatment plan) and § 5240.102 (relating to assessment and individual treatment plan).

 One commentator asked why orders for ABA services can be written within 12 months prior to the initiation of ABA services and orders for non-ABA services must be written within 6 months prior to the initiation of the services. The commentator recommends that for ABA services the requirement be changed to require a new written order every 6 months. Another commentator recommends the requirement for a written order be consistent across services and recommends the time frame for a written order for all services be every 12 months.

Response

 The Department agrees that the time frame should be consistent across all services and has changed the minimum requirement for written orders to at least every 12 months for all IBHS. The Department believes that a written order for services every 12 months is sufficient because the ITP will guide treatment and the ITP is reviewed every 6 months. If this process reveals the need to update an order, it can be updated as needed.

 Seven commentators requested information on how often reevaluations must occur and what information must be included in a reevaluation. Similarly, two other commentators asked if there is a standard length of care and how the length of care will be known if there is no requirement for ISPT meetings.

Response

 For payment for IBHS, there must be an order written within 12 months prior to the initiation of services. The information included in the written order may be the result of an evaluation, reevaluation or another similar process. The requirement that an order for services be written 12 months prior to the initiation of services does not preclude more frequent written orders for services or more frequent evaluations or reevaluations of the child, youth or young adult. There is no standard for how long services can be delivered because this is determined by the individual needs of the child, youth or young adult.

 One commentator requested confirmation that the written order requirements also apply to group services.

Response

 The requirements for written orders for group services are included in § 1155.34 (relating to payment conditions for group services) and § 5240.94 (relating to group services initiation requirements).

 One commentator believes that it is problematic to require that the order include a maximum number of hours and the setting where services may be provided because the assessment may conclude that a lesser amount of services are needed or a setting identified in the written order for where services should be provided is not a setting where services are needed. The commentator indicated that when this sort of discrepancy happens, it sometimes causes friction with the family. The commentator suggested that the written order recommend an assessment for IBHS and the licensed professional who conducts the assessment should recommend the number of hours of services that should be provided and where services should be provided. Finally, the commentator questioned what happens if there is a discrepancy between the written order and the assessment and the family wishes to dispute this discrepancy.

Response

 The Department does not agree that this will cause friction with the family. The assessment process may lead to additional information that the prescriber may find helpful when determining the service recommendations that should be included in the written order. If there is a disagreement between the amount of services prescribed in the order and the amount of services the assessment determined are needed, the treatment team, which includes the family, should convene to resolve the discrepancy.

 One commentator requested that the written order require that a recommended service also have an approved service description, as evaluators sometimes recommend services that do not exist in the geographical location where the child, youth or young adult lives.

Response

 The Department appreciates the desire for a written order to include services that are available where the child, youth or young adult lives. The Department suggests that an evaluator be familiar with services that are available in the geographical area where the child, youth or young adult lives.

Assessment

§ 1155.32 Payment conditions for individual services, § 1155.33 Payment conditions for ABA services, § 1155.34 Payment conditions for group services, § 1155.35 Payment conditions for EBT delivered through individual services, ABA services or group services, § 5240.21 Assessment, § 5240.85 Assessment, § 5240.95 Assessment, § 5240.102 Assessment and individual treatment plan

 The Department has deleted from § 1155.32 (relating to payment conditions for individual services) and § 1155.33 (relating to payment conditions for ABA services) the reasons assessments must be reviewed and updated because a face-to-face assessment must be reviewed and updated within 12 months of the previous face-to-face assessment for payment to be made for IBHS.

 One commentator questioned why the individual services section of the rulemaking does not include a cross reference to § 5240.21 (relating to assessment) to identify that it applies to individual services or separate sections that discuss the requirements for assessment as is done for ABA services, group services and EBT.

Response

 Section 5240.21 (relating to assessment) specifies which services it does not apply to in whole or in part and does not state that it does not apply to individual services. Because § 5240.21 applies to individual services, there is no need for a separate section that discusses the requirements for assessments for individual services.

 IRRC requested that the Department clarify if the MA Program will pay for services if an IBHS agency does not complete the assessment within an indicated time frame.

Response

 The IBHS agency must complete the assessment within the time frames included in the final-form rulemaking to be paid. This is consistent with payment conditions included in other Department regulations.

 Eight commentators requested that a definition of assessment that includes what comprehensive means and the specific requirements for an assessment be included in the rulemaking.

Response

 The Department has removed the word ''comprehensive'' from the rulemaking because it was confusing and there is no need to include it. What must be included in an assessment is identified in the rulemaking. The Department will not be including a definition of assessment in the rulemaking because children, youth and young adults who receive IBHS have a variety of needs and diagnoses, and therefore, there is no definition that would encompass all situations. Generally, a mental health assessment is a process that is used to ascertain whether an individual is functioning on a healthy psychological, social or developmental level. Because the assessment process is used to inform the writing of a child's, youth's or young adult's ITP, the assessment must be completed in a manner that allows for an informed ITP to be written.

 IRRC and three commentators asserted that it is inappropriate for an assessment to be completed by a person who does not have a professional license and requested that the final-form rulemaking require that an assessment be done by a licensed professional or under the supervision of a licensed professional. IRRC also requested that the Department explain how the health, safety and welfare of children, youth and young adults will be protected by the level of expertise and experience of the person assessing them.

Response

 There is no need to limit who can conduct an assessment to licensed professionals because individuals other than licensed professionals are trained to conduct assessments. In addition, an assessment is not a separate service, but rather assessing a child, youth or young adult is part of behavior consultation services, mobile therapy services, behaviors consultation-ABA services, behavior analytic services and a component of the services a graduate-level professional provides when providing group services. Individuals who provide behavior consultation services, mobile therapy services, behaviors consultation-ABA services, behavior analytic services and graduate-level professionals who provide group services will have received training in completing assessments as part of obtaining their graduate-level qualifications and are supervised by licensed clinical directors.

 Three commentators questioned why the Department limited the individuals who could complete an assessment to the individuals who provide the direct services, rather than also allowing a supervisor or another qualified individual to perform the assessment.

Response

 The final-form rulemaking was updated to clarify the minimum qualifications for an individual to conduct an assessment. Individuals who conduct assessments no longer need to provide the direct services.

 Two commentators requested that a requirement for face-to-face participation by the child's, youth's or young adult's family in the assessment process be added to the rulemaking.

Response

 As a result of the variance in family dynamics, clinical focus and types of assessments used, family participation in an assessment may not always be warranted. The rulemaking does provide that the assessment should include the strengths and needs of the family system in relation to the child, youth and young adult and clinical information related to family structure and history.

 Two commentators asked how the assessment process works when services need to be provided during the assessment period.

Response

 The Department has revised §§ 1155.32—1155.35 and § 5240.23 (relating to service provision) to clarify that IBHS can be provided during the assessment process if needed if there is a written order for services and there is a treatment plan for the services that will be provided.

 One commentator asked if the Department will be developing its own assessment tool for EBT or if the tool developed for the EBT may be used.

Response

 The Department will not be developing assessment tools. Providers should use an assessment developed for the EBT if such an assessment tool has been developed. If no assessment has been developed for the EBT, the provider should use a clinically appropriate assessment.

 Five commentators questioned why different time frames for completion of the assessment were used for each IBHS and suggested that there be a consistent time frame for completing the assessment for all services. In addition, two commentators stated that 5 days was too short to complete an assessment for group services, especially if the assessment is for STAP. IRRC and five commentators questioned why there was no time period included for completion of an assessment for ABA services. In addition, IRRC noted that commentators asserted that 15 days is too short for completing an assessment because a family's schedule could be a challenge.

Response

 The Department understands the concerns expressed by IRRC and the commentators and has revised the rulemaking to include consistent time frames for the completion of the assessment for individual services, group services and EBT. All assessments must be completed for children, youth and young adults receiving these services within 15 days of the initiation of services. The Department has also added a requirement that the assessment be completed within 30 days of the initiation of ABA services. Additional time is allowed for an assessment when ABA services are provided because ABA services require more extensive initial data collection and analysis. Providers have confirmed to the Department that these revised time frames are feasible.

 Six commentators asked that the Department clarify how the time frame for completing the assessment will be calculated and expressed concerns about the calculation of the time frames being tied to the written order for services.

Response

 The time frame for completing an assessment is measured from the date of initiation of services, which can include the first day a staff person begins to conduct an assessment if that is the first service a child, youth or young adult receives. Calculation of the time frame for completing the assessment is not tied to the written order for services.

 Two commentators questioned why an assessment needs to be updated if one goal had been reached.

Response

 The Department agrees that it may not be necessary to update an assessment if the child, youth or young adult has completed one goal. The Department has revised the final-form rulemaking to state that an update is needed when a child, youth or young adult ''has made sufficient progress to require an updated assessment.''

 Two commentators asked how often an assessment must be updated if none of the reasons included in the rulemaking for updating as assessment apply. One commentator asked the same question, but specifically for ABA services.

Response

 If an updated assessment is not required sooner, the assessment must be updated annually for all services.

 Two commentators stated that input from individuals other than IBHS agency staff is not sufficient to require an update to the assessment.

Response

 The Department agrees and has updated the language in § 5240.21(e)(7) (relating to assessment) and § 5240.85(e)(7) (relating to assessment) to require that the individual who has requested an update ''provides a reason'' the update is needed.

 One commentator asked if § 5240.21(e)(7) (relating to assessment) includes individuals from the BH-MCOs. IRRC requested that the Department clarify who qualifies as an ''other professional involved in the child's, youth's or young adult's services'' that is able to request an update to an assessment.

Response

 Because individuals from a BH-MCO are ''involved in the child's, youth's or young adult's services,'' if they provide a reason an update is needed, an assessment will be updated. Any individual who is involved in a child's, youth's or young adult's treatment may request that an assessment be updated and the assessment will be updated if the individual provides a reason it is needed.

 Four commentators had questions regarding signatures. IRRC and one commentator asked whether parents or caregivers should be required to sign the assessment and two other commentators questioned the need for a supervisor to co-sign the assessment.

Response

 The Department does not believe it is necessary for the assessment to be signed because the assessment is used to complete the ITP and the ITP must be signed by the youth, young adult, or a parent or caregiver of a child or youth and an individual who meets the qualifications of a clinical director. The Department has deleted from the rulemaking the requirement that a supervisor of the staff person who completed the assessment or a clinical director sign the assessment.

 One commentator asked if a child, youth or young adult is not progressing, can the ITP be updated without an assessment being conducted.

Response

 If a child, youth or young adult has not made progress towards the child's, youth's or young adult's goals within 90 days of initiation of services, another assessment must be conducted before an ITP can be updated.

Individual treatment plan

§ 1155.32 Payment conditions for individual services, § 1155.33 Payment conditions for ABA services, § 1155.34 Payment conditions for group services, § 1155.35 Payment conditions for EBT delivered through individual services, ABA services or group services, § 5240.22 Individual treatment plan, § 5240.86 Individual treatment plan, § 5240.96 Individual treatment plan, § 5240.102 Assessment and individual treatment plan

 The Department has removed from § 1155.32 (relating to payment conditions for individual services) and § 1155.33 (relating to payment conditions for ABA services) the requirement that payment be made if the ITP has been reviewed and updated because an ITP goal is completed; no significant progress is made within 90 days from the initiation of services identified in the ITP; a youth or young adult requests a change; a parent or caregiver of a child or youth requests a change; the child, youth or young adult experiences a crisis event; the ITP is no longer clinically appropriate for the child, youth or young adult; or an IBHS agency staff person, primary care physician, other treating clinician, case manager or other professional involved in the child's, youth's or young adult's services recommends a change. The Department has removed this requirement because regardless of the reason for the review, the ITP must be reviewed and updated within 6 months of the previous ITP for payment to be made for services.

 Section 5240.22 (relating to individual treatment plan), § 5240.86 (relating to individual treatment plan) and § 5240.96 (relating to individual treatment plan) continue to include the reasons an ITP would need to be reviewed and updated sooner than 6 months after its completion. The Department has revised the requirement that the ITP be updated if a goal is completed because it may not be necessary to update an ITP if the child, youth or young adult has completed one goal. The final-form rulemaking states that an ITP must be updated if a child, youth or young adult ''has made sufficient progress to require that the ITP be updated.'' In addition, the Department has added a requirement that the ITP be updated if the child, youth or young adult experiences a change in living situation that results in a change of the child's, youth's or young adult's primary caregivers.

 The Department has also removed the requirement that the ITP include the type of staff providing the services because it is not necessary. The qualifications of the staff that can perform a service are included in the final-form rulemaking. In addition, to be consistent with the ITP requirements for other IBHS, the Department has added the requirement that an ITP for ABA services include a safety plan to prevent a crisis, a crisis intervention plan and a transition plan.

 One commentator questioned why the individual services section of the rulemaking does not include a cross reference to § 5240.22 (relating to individual treatment plan) to identify that it applies to individual services or separate sections that discuss the requirements for ITPs as is done for ABA services, group services and EBT.

Response

 Section 5240.22 (relating to individual treatment plan) specifies which services it does not apply to in whole or in part and does not state that it does not apply to individual services. Because § 5240.22 applies to individual services, there is no need for a separate section that discusses the requirements for ITPs for individual services.

 IRRC requested that the Department clarify if an IBHS agency can be paid if an ITP is not completed within an indicated time frame.

Response

 The IBHS agency must complete the ITP within the time frames included in the final-form rulemaking to be paid. This is consistent with payment conditions included in other Department regulations.

 One commentator stated that in order to close the loop between treatment and assessment, psychologists and other licensed professionals should be involved in updating the ITP.

Response

 The Department agrees that it would be beneficial for a psychologist or other licensed professional to be involved in updating the ITP, but does not believe that their participation should be required because their participation may not always be clinically indicated. In addition, psychologists and other licensed professionals may be involved in a child's, youth's or young adult's treatment through other means, including providing written recommendations for services or treatment.

 One commentator requested that the Department consider extending the time frame for completion of the ITP because 30 days is not enough time to complete the ITP.

Response

 The child, youth or young adult will have an assessment completed prior to the development of the ITP that can be used to complete the ITP. The Department does not agree that the time frame for completing the ITP is not sufficient because an ITP is needed to guide the services a child, youth or young adult receives.

 The Department is allowing 45 days for completion of the ITP after the initiation of ABA services because the Department has allowed an additional 15 days for completion of an assessment when ABA services are being provided. The Department has also changed the time frame for completing an ITP for group services from 10 days to 30 days after the initiation of group services, to align the time frame for completing an ITP for groups services with the time frame for completing an ITP for individual services.

 IRRC requested that the Department explain the term ''strength-based.''

Response

 Strength-based treatment planning is standard practice in the behavioral health community. Strength-based treatment means that a child's, youth's or young adult's strengths are incorporated into the ITP. For example, if a child enjoys writing, the ITP may include as a strategy to cope with anxiety that the child should write the child's concerns in a journal. The Department does not believe that an explanation is needed in the final-form rulemaking.

 IRRC and one commentator requested that the Department clarify the terms ''crisis'' and ''crisis intervention plan.''

Response

 The Department has not defined ''crisis'' in the rulemaking because what constitutes a crisis depends on the child, youth or young adult. Each child's, youth's or young adult's crisis intervention plan should specify what is a crisis event for the child, youth or young adult and what interventions the treatment team members should use in the event of a crisis.

 IRRC and four commentators asked why an ITP must include a transition plan.

Response

 The transition plan is needed because it is a plan to establish how a child, youth or young adult will resume the child's, youth's or young adult's regular activities after a crisis event.

 Five commentators requested that the Department allow the ITP to include an estimate of the number of hours a service will be provided at a location to prevent the requirement that the ITP include the number of hours of service at each setting from becoming a reason to deny services or otherwise becoming a problem for families.

Response

 The Department is requiring that the ITP specify the number of hours of services in each setting because the number of hours is determined after the assessment is completed, is based on clinical need and is used to guide the delivery of service.

 One commentator stated that if the number of hours each service should be provided is not determined until the ITP is completed, it is unclear how the ITP relates to the prescription and what will be used to determine the medical necessity of services. This commentator believes that not determining the number of hours of services that can be provided until the ITP is completed will allow the provider to deliver as many hours of service as the provider wants and the number of hours of services a provider delivers could be influenced by financial gain, available staffing and other factors that have no relationship to the actual needs of the child, youth or young adult served.

Response

 The provider cannot deliver as many hours as the provider wants. The written order specifies a maximum number of hours for each service and is followed by an assessment of the child, youth or young adult. The number of hours a service should be delivered in each environment is determined by the assessment.

 Three commentators requested clarification regarding when lack of progress or minimal progress would require that an ITP be updated.

Response

 The final-form rulemaking requires the ITP to be reviewed and updated at least every 6 months or if the child, youth or young adult has not made significant progress within 90 days from the initiation of the services identified in the ITP. What constitutes lack of significant progress will vary and should be determined by the treatment team.

 One commentator questioned if individuals from the BH-MCO are included in the individuals that may provide a reason that an update to the ITP is needed. IRRC requested that the Department clarify who qualifies as an ''other professional involved in the child's, youth's or young adult's services'' that is able to request an update to an ITP.

Response

 Any individual who is involved in a child's, youth's or young adult's treatment, including individuals who are employed by a BH-MCO, may request that an ITP be updated and the ITP will be updated if the individual provides a reason it is needed.

 One commentator requested that the Department require that an ITP update include a visual display of progress.

Response

 While the Department believes that is beneficial to include visual displays of progress in an ITP update, it is not mandating that they be used. A child's, youth's or young adult's progress can be reported through various means, including a graphical representation of progress, a narrative that includes data collected on the child's ITP goals or narrative reports from members of the treatment team.

 Two commentators stated that they think that the ITP should reflect that there is a need for family involvement in treatment. One of the two commentators stated that by using the term ''whether,'' the Department is not requiring parent, legal guardian or caregiver participation, which contradicts best practice when treating a child and requested that the Department revise the requirement that the ITP include ''whether and how parent, legal guardian or caregiver participation is needed to achieve the identified goals and objectives.'' The commentators believe that the final-form rulemaking should address how the parent or caregiver will participate in treatment.

Response

 The Department has not made the suggested change. Depending on the needs of the child, youth or young adult, participation by a parent, legal guardian or caregiver in treatment may not be needed.

Prior authorization

 Two commentators asked which number of hours controls when determining if services are medically necessary, the number of hours included in the written order for service or the number of hours included in the assessment that follows the written order.

Response

 The number of hours included in the written order should be used when determining if services that require prior authorization are medically necessary. The information provided in the assessment should further supplement the information provided in the written order.

 One commentator asked if the assessment must be submitted to the BH-MCO for prior authorization of an IBHS. Another commentator asked if the ITP must be submitted to the BH-MCO when there is a request to reauthorize services.

Response

 BH-MCOs are responsible for determining what must be submitted to support a request to prior authorize services.

 Two commentators asked what credentials individuals who review a request for services on behalf of a BH-MCO must have to deny a request for IBHS because it is not medically necessary.

Response

 Only a licensed physician or a licensed psychologist whose scope of practice includes the requested service can deny a request for IBHS because it is not medically necessary. In addition, the individual must have appropriate clinical experience or expertise to render such a decision.

 Two commentators asked how BH-MCOs will determine that services in the written order are medically necessary.

Response

 Each BH-MCO must determine the process and information it will require for review of prior authorization requests.

 One commentator asked if services are initiated prior to being authorized and the service is subsequently denied, who is responsible for paying for the services.

Response

 The MA Program will not pay for services that require prior authorization if authorization was denied. BH-MCO members can file a grievance if authorization is denied.

 Two commentators requested clarification on how services are authorized.

Response

 The Department and the BH-MCOs will issue guidance on how to request that services be authorized.

 One commentator asked how assistant behavior consultation-ABA services are authorized and if they are prescribed at the discretion of the agency.

Response

 Assistant behavior consultation-ABA services will be authorized in the same manner as other IBHS. The prescriber must include a recommendation for assistant behavior consultation-ABA services in the written order.

 Two commentators asked what BH-MCOs should use to determine the medical necessity of services requested in a written order.

Response

 The Department will be revising the medical necessity guidelines in Appendices T and S of the BH-MCO agreements to reflect the new requirements for prescribing IBHS.

Services provided prior to discharge from a facility

§ 1155.37 Limitations

 Two commentators stated their support for payment for services provided to children, youth or young adults residing in 24-hour residential facilities provided within 60 days of discharge from the facility that assist in a child's, youth's or young adult's transition to the home or community setting. One commentator asked if there is an exception to the 60-day limit on payment for IBHS when a child, youth or young adult is transitioning from a 24-hour residential facility to the home or community setting.

Response

 The Department has revised the final-form rulemaking to remove the limitation that payment for IBHS will be made only within 60 days of discharge for a child, youth or young adult transitioning from a 24-hour residential facility to the home or community setting. Although generally the services provided by the residential facility will meet the needs of the child, youth or young adult there may be situations, in addition to assisting with the transition to the home or community, where IBHS is appropriate. IBHS can be provided to a child, youth or young adult residing in a 24-hour residential facility if the order explains why IBHS is needed in addition to services provided by the facility and the service does not duplicate services included in the facility's rate.

Licensing

 The Department has added a requirement that licensed IBHS agencies must comply with Chapter 20 (relating to licensure or approval of facilities and agencies) to § 5240.3 (relating to provider eligibility). The Department always intended that IBHS agencies comply with Chapter 20 and added the requirement that an IBHS agency must comply with Chapter 20 to the final-form rulemaking to avoid any confusion.

 One commentator asked if agencies are able to provide one service or if they will be required to provide all IBHS in order to obtain a license and if agencies can provide a distinct service at each IBHS agency site.

Response

 An agency may provide and be licensed to provide one service or multiple services and different services can be provided at different locations. Services other than group services may only be provided in the home, school and community. Group services may also be provided at a community like setting, which is a setting that simulates a natural or normal setting for a child, youth or young adult.

 Six commentators questioned how the Department plans to address services approved through the program exception process, including STAP, team-based programs and EBT programs.

Response

 Every agency that provides IBHS must obtain a license. The Department expects that most services that were approved through the program exception process will meet the requirements for individual services, ABA services or group services. If there is a requirement that cannot be met, the IBHS agency can request a waiver of the requirement pursuant to § 5240.111 (relating to waivers). Payment will also be made for services as indicated in § 1155.36(5) (relating to covered services) if the service has been approved through the program exception process under § 1150.63 (relating to waivers).

 One commentator requested that providers that are currently providing group services be allowed a transition period to come into compliance with the rulemaking.

Response

 Providers will need to comply with this rulemaking 90 days after its promulgation.

 Two commentators requested that the Department provide information about the annual licensing inspections, including the qualifications needed to obtain a license and process to obtain a license to provide IBHS, the utilization management reviews and who will be conducting the licensing inspections. One commentator asked for additional information regarding what will be reviewed as part of licensing an IBHS agency.

Response

 The Department will be providing training and technical assistance to providers about the licensing process. In addition, training and technical assistance will be offered during each agency's initial licensing inspection. OMHSAS licensing staff will be conducting the licensing inspections.

 Five commentators questioned whether this rulemaking applies to licensed psychologists.

Response

 Licensed individuals who provide services directly within the scope of their license do not need to obtain an additional license to provide IBHS or to receive payment for psychological services. For example, a psychologist who provides behavioral interventions within the scope of the psychologist's license does not need to obtain an IBHS license to continue to provide services to a child, youth or young adult. However, if staff employed by the psychologist provide BHT services, the psychologist's agency would need to obtain an IBHS license. In order to clarify when a licensed psychologist must obtain a license to provide IBHS, the Department has added the word ''directly'' to § 1155.1(c) (relating to policy).

 IRRC and seven commentators requested that the Department clarify what constitutes a branch or satellite site and questioned why an IBHS agency's branch location or satellite site in addition to its main facility must obtain a license.

Response

 The Department has removed from § 1155.22 (ongoing responsibilities of providers) the requirement that a branch or satellite location must obtain a license or be enrolled by the Department.

 Two commentators requested that a county letter of support be added to the requirements to obtain a license.

Response

 The Department does not agree that a county letter of support should be required for an IBHS agency to obtain a license because such a letter would not address if an IBHS agency meets the minimum requirements to obtain a license.

Licensing time frames

§ 1155.31 General payment policy, § 5240.3 Provider eligibility

 The Department received questions from eight commentators about the initial licensure time frames for IBHS agencies and whether services will be paid for prior to an IBHS agency obtaining a license. Questions included what are the time frames for obtaining a license, how agencies that do not currently hold an OMHSAS license will be notified that they must obtain a license within a certain time frame, why agencies already licensed by OMHSAS have more time to obtain an IBHS license, whether providers will have adequate time to come into compliance with the rulemaking and how the Department will ensure that services are not disrupted while IBHS agencies obtain licenses.

Response

 Agencies that are not currently licensed are the Department's priority. The Department intends to publicize the requirement to obtain a license and will follow up with providers who have not timely obtained a license.

 New IBHS agencies must obtain a license within 90 days of the promulgation of this rulemaking and an unlicensed agency that is approved to provide ABA services must obtain a license within 180 days of the promulgation of this rulemaking. An IBHS agency that holds an outpatient psychiatric clinic license, a psychiatric partial hospitalization program license or a family based mental health license must obtain an IBHS license when its license expires. This will allow the provider to maintain its annual licensing time frame and allow OMHSAS time to license the provider. Finally, all other IBHS agencies that are currently approved to provide BHRS are required to obtain an IBHS license within 1 year of the promulgation of this rulemaking. The Department has revised the final-form rulemaking to clarify these requirements.

 Regardless of when an IBHS agency obtains an IBHS license it can continue to receive payment for services if it complies with this rulemaking 90 days after its promulgation. The Department is allowing payment to be made to unlicensed agencies to ensure that children, youth and young adults do not lose services because an agency has not yet obtained a license.

Service descriptions

§ 5240.5 Service description

 Because the Department has further clarified in the final-form rulemaking what services may be delivered through IBHS, the Department is no longer requiring that a service description include the purpose of the service being offered by the IBHS agency, expected duration of the service and expected outcomes for children, youth or young adults.

 Two commentators questioned if an agency will need to update its service description to obtain an IBHS license. They expressed concerns about the length of time the review process takes because of the need to work with the BH-MCOs and counties to ensure that the services that are provided are needed by the BH-MCO. They were also concerned about the amount of staff time required to complete a service description and any requested revisions or updates.

Response

 Agencies will need to update their service descriptions to obtain a license because some of the requirements for IBHS are different than the requirements for BHRS.

 Four commentators requested that the role BH-MCOs and counties will have with regards to the approval of service descriptions be clarified. They questioned if BH-MCOs and counties will have input in the development of service descriptions.

Response

 The service description required for an IBHS agency to obtain a license does not require county or BH-MCO input or approval. If a provider wants to contract with a BH-MCO, the BH-MCO may also require a service description.

 IRRC and seven commentators stated that the process for review of a service description does not appear to differ from the current process and questioned why the Department said that the process was less burdensome than the current process. IRRC and other commentators requested that the Department provide additional guidance on the service description process or use a more standardized process that includes a template.

Response

 The Department will be following the same process to review service descriptions for IBHS as it does for other services that are provided by licensed providers. In the past the Department required providers to submit a service description to OMHSAS's Children's Bureau for each service the provider provided. The rulemaking requires that licensing staff review one service description that includes all of the services the provider provides.

 The Department will provide training and technical assistance regarding the development of IBHS service descriptions. If a consistent delivery model is used, such as for an EBT, the Department may develop a template. Templates will not be developed for a service where there is a variety of ways the service can be provided.

 Two commentators asked if a service description is needed for each program at each location and if separate service descriptions are needed when the same service is being provided at different locations.

Response

 A service description should include all the locations where a service will be offered and may include multiple services in one service description.

 Two commentators suggested that the requirement that the service description include the maximum number of children, youth or young adults who may be assigned to an individual who provides BHT services or BHT-ABA services if BHT services or BHT-ABA services will be provided be revised to also consider the number of hours of services ordered for the children, youth or young adults being served.

Response

 The Department has revised the final-form rulemaking and is no longer requiring that a service description include the maximum number of children, youth or young adults who may be assigned to an individual who provides BHT services or BHT-ABA services because this information can be ascertained from the staffing ratios for each service offered by the IBHS agency, which must be included in the service description. The Department has added a requirement that a service description include the maximum number of children, youth or young adults who will be served at the same time through group service at each community setting or community like setting.

 Two commentators requested clarification about the requirement that the service description include staffing ratios for each service offered by the IBHS agency.

Response

 Staffing ratios must be included in a service description because they are needed to determine how a service will be provided and to ensure the service is appropriate for the clinical needs of the population being served.

 Two commentators questioned how adherence to the service description will be monitored.

Response

 Service descriptions will be reviewed as part of a licensing visit to confirm that the IBHS agency is providing services in accordance with its approved service description. During the licensing visit, the child's, youth's or young adult's ITP will be checked to see if it reflects the services described in the service description. The Department also expects the agency to monitor adherence to the service description as part of supervision of staff. Supervisors should be confirming that staff are providing services consistent with the approved service description.

 One commentator questioned if Multi Systemic Therapy (MST) can be provided as an IBHS.

Response

 An IBHS agency may provide MST. The agency will need to submit a service description based on the MST model that includes the information required by § 5240.5 (relating to service description).

 IRRC requested that the Department explain the approval process for changes to the service description, the time frames that are involved and how the Department will notify the IBHS agency of its decision. IRRC asked the Department to include this process in the final-form rulemaking.

Response

 If an IBHS agency needs to change its service description, the IBHS agency should notify the Department. The Department suggests that this notification be by e-mail. The Department will notify the IBHS agency of its decision about the requested change. The amount of time needed for the Department to review a change to a service description will depend on the nature of the change and if revisions are needed by the IBHS agency. The Department will include information about this process in the training it will be providing to providers about the licensing process.

Restrictive procedures

§ 5240.6 Restrictive procedures

 One commentator asked if the Department will be revising OMHSAS Bulletin-02-01, The Use of Seclusion and Restraint in Mental Health Facilities and Programs, because it currently prohibits the use of manual restraint by BHRS providers.

Response

 OMHSAS Bulletin-02-01 provides that manual restraint is not expected to occur. It does not prohibit its use by BHRS providers. IBHS agencies will need to follow the provisions on restrictive procedures included in the final-form rulemaking.

 Four commentators requested that the Department clarify which restrictive procedures may be used. The commentators wanted to know if manual restraints were the only type of restrictive procedure permitted.

Response

 The Department held a stakeholder meeting to discuss the public comments it received on the use of restrictive procedures. As a result of the discussion with stakeholders and the comments received, the Department has included in the final-form rulemaking the restrictive procedures providers are not permitted to use. Other restrictive procedures are permitted to be used if the requirements in this rulemaking for their use are met.

 Three commentators requested that the Department remove the requirement that a second staff person who is not applying a manual restraint procedure observe and document the physical and emotional condition of the child, youth or young adult at least every 10 minutes during the application of a manual restraint. They stated that this may not be possible because services are delivered in a community-based setting.

Response

 The Department has revised this requirement in the final-form rulemaking. Rather than a second staff person being required to observe and document the use of a manual restraint, a trained individual must observe and document the use of a manual restraint. In addition to IBHS agency staff, a trained individual could be a member of the child's, youth's or young adult's treatment team.

 Three commentators questioned if an IBHS agency can continue to maintain a restraint-free policy.

Response

 IBHS agencies can choose to be restraint free. The rulemaking has been updated to include that an IBHS agency that uses restrictive procedures shall have written policies and procedures for their use that identify the specific restrictive procedures that may be used and when they may be used.

 One commentator questioned if informed consent is required for a restrictive procedure to be used.

Response

 Use of restrictive procedures should be discussed as a part of the child, youth or young adult's crisis plan. Informed consent would not be required in an emergency to prevent self-injury or injury to others after every attempt has been made to anticipate and de-escalate a behavior and less intrusive techniques and resources appropriate to the behavior have been tried but failed.

 One commentator stated that staff should be required to receive training before implementing a manual restraint.

Response

 The rulemaking requires an IBHS agency to require yearly training for each staff person who administers a restrictive procedure.

 One commentator recommended that the rulemaking require that the ITP be reviewed following the use of a manual restraint.

Response

 It is not necessary for the final-form rulemaking to include a requirement that the ITP be reviewed following the use of a manual restraint. Documentation of the use of a manual restraint is required to be included in a child's, youth's or young adult's record. The requirement to document the use of a manual restraint will result in the events that proceeded the use of the manual restraint and the use of the manual restraint being reviewed.

 IRRC and one commentator suggested that the rulemaking align with the Department of Education's restrictive procedure requirements because BHT services are often provided in an educational setting.

Response

 IBHS are delivered in a variety of settings, including in school settings. The restrictive procedure requirements address the use of restrictive procedures in all settings where IBHS are provided.

 IRRC and one commentator suggested that the language that addresses when a manual restraint should be discontinued be changed from ''regain self-control'' to ''no longer an imminent danger to self or others'' in § 5240.6(g) (relating to restrictive procedures) because a child, youth or young adult may not have regained self-control, but the child, youth or young adult may no longer be engaging in behaviors that would warrant the use of a manual restraint.

Response

 The Department agrees and has revised the rulemaking to state that a manual restraint shall be discontinued when the child, youth or young adult is no longer an imminent danger to self or others.

 One commentator stated that the rulemaking should prohibit the inappropriate use of manual restraint.

Response

 Section 5240.6(c) (relating to restrictive procedures) states when a manual restraint may be used. Any other use of manual restraint is prohibited.

 In addition, the rulemaking requires an IBHS agency that uses manual restraints to have policies and procedures for the use of manual restraints that include the appropriate use of a manual restraint, including prohibitions on the use of a manual restraint; the required use of less intrusive techniques and resources appropriate to the behavior prior to the use of a manual restraint; and the immediate discontinuation of the manual restraint when the child, youth or young adult is no longer an imminent danger to self or others. The Department has also added a requirement to the final-form rulemaking that the policies and procedures include the staff who may authorize the use of a manual restraint and how the use of a manual restraint will be monitored.

 Two commentators stated that IBHS agencies should be required to fully train parents and caregivers on the use of restrictive procedures because this will allow the family to implement the ITP when IBHS agency staff are not present. In addition, during discussions with stakeholders several family members and advocates expressed that there is a benefit to being trained on restrictive procedures because this allows family members to continue to implement the child's, youth's or young adult's ITP and crisis plan when IBHS agency staff are not present.

Response

 After discussion with stakeholders, including a meeting that addressed only restrictive procedures, the Department has revised the final-form rulemaking to provide that an IBHS agency may choose to train parents, legal guardians or caregivers on the use of restrictive procedures that are included in the ITP. If an IBHS agency provides training to parents, legal guardians and caregivers the trainings must be approved by the Department and the agency must have policies and procedures that address the training. In addition, the ITP must include that parents, legal guardians or caregivers will be trained on the use of restrictive procedures.

 One commentator requested that IBHS agencies be required to receive training from a nationally certified training program in the use of restrictive procedures and manual restraints.

Response

 The final-form rulemaking has been revised to provide that an IBHS agency must require yearly training that is approved by the Department for each staff person who administers a restrictive procedure, including a manual restraint. Nationally certified training programs may be approved by the Department, but there may be standardized training programs that are used on a local or regional level that provide sufficient training to warrant Department approval.

 One commentator questioned how family members will be notified of the use of a manual restraint.

Response

 The Department has revised the final-form rulemaking to require that within 24 hours of the use of a manual restraint the IBHS agency must notify the treatment team. IBHS agencies' policies and procedures must include how the treatment team will be notified if a manual restraint is used.

 IRRC requested that the Department clarify how long an IBHS agency must keep a record of a staff person's yearly training in the use of restrictive procedures and that a cross reference be added to the recordkeeping requirements in § 5240.42 (relating to agency records).

Response

 The Department has revised the final-form rulemaking to require that the record of each staff person's training in the use of restrictive procedures be kept in each staff person's personnel file in accordance with § 5240.42(b) (relating to agency records). Section 5240.42(b) requires that staff personnel records be maintained for at least 4 years after the staff person is no longer employed by the IBHS agency.

Coordination of services

§ 5240.7 Coordination of services

 One commentator asked if a standardized document will be provided for providers to use for the written agreements to coordinate services with other service providers.

Response

 The Department will not be providing a template for the written agreement for coordination of services with other service providers. IBHS agencies need to develop their own agreements.

 One commentator requested that IBHS agencies that also provide psychiatric inpatient and outpatient services, partial hospitalization services, crisis intervention services or case management services be exempt from having written agreements to coordinate services with other providers of these services.

Response

 IBHS agencies that also provide other services are not exempt from the requirement to have written agreements to coordinate services with other service providers because an IBHS agency must provide children, youth and young adults with a choice of provider. IBHS agencies are not precluded from including their own agency services as part of the community resources list required by § 5240.7(c) (relating to coordination of services).

 One commentator asserted that requiring small ABA providers to have written agreements to coordinate services is an undue burden and should not be required. Six commentators requested that the Department require that IBHS agencies that provide group services must also have written agreements to coordinate services with other service providers.

Response

 The Department will not be exempting small ABA providers from having written agreements to coordinate services. Coordination of services is essential for all children, youth and young adults who receive IBHS because they often have multiple needs and often receive services from different levels of care. The Department agrees that IBHS agencies that provide group services should be required to have written agreements to coordinate services with other service providers and has removed the exemption for these agencies from the final-form rulemaking.

 One commentator asked for confirmation that an IBHS agency will not be held responsible if other providers do not respond to an IBHS agency's attempts to enter into a written agreement to coordinate services as long as the IBHS agency documents its attempt to engage with other service providers.

Response

 The Department confirms that it will not hold an IBHS agency responsible if other providers do not respond to the agency's attempts to enter into a written agreement to coordinate services and the IBHS agency documents its attempts to engage other providers.

 One commentator asked if the Department had considered the cost of updating agreements with other service providers every 5 years.

Response

 The Department considers this cost as part of the overall administrative costs an IBHS agency will incur. The Department expects the costs the IBHS agency incurs as a result of this requirement will be minimal because of the infrequency of the requirement to update agreements and because it is common practice to update agreements with other service providers.

 IRRC requested that the Department add to the information an IBHS agency must make available on community resources that provide behavioral health services a requirement that the IBHS agency include the website of the community resources that provide behavioral health services.

Response

 The Department has not added this requirement to the final-form rulemaking because not all community resources have a website or the ability to create or maintain a website.

Service provision

§ 5240.23 Service provision

 IRRC and one commentator requested that the Department clarify what is meant by the requirement in § 5240.23 (service provision) that IBHS shall be delivered in ''community-based'' settings and whether community-based settings include a home, school or other location.

Response

 ''Community-based'' means that services may be delivered anywhere children, youth or young adults would naturally be throughout their day.

 One commentator asked if a family member or other individual involved with the child is allowed to participate in treatment if the child, youth or young adult is not present.

Response

 If included in the ITP, family members or other individuals involved with the child are allowed to participate in treatment even if the child, youth or young adult is not present if it will help the child, youth or young adult achieve a goal identified in the ITP.

Discharge

§ 5240.31 Discharge, § 5240.32 Discharge summary

 Three commentators questioned what is required for a child, youth or young adult to be discharged from services, including if a child, youth or young adult who is not making progress after 90 days could continue to receive services or if a child, youth or young adult could be discharged for non-compliance or if the child, youth or young adult could be discharged for not participating in services.

Response

 The rulemaking does not mandate the discharge of a child, youth or young adult as a result of specified circumstances. It provides that a child, youth or young adult may be discharged from services if one of the reasons listed in the rulemaking occurs.

 The Department has added to the final-form rulemaking that a child, youth or young adult may be discharged if the child, youth or young adult failed to attend scheduled IBHS for 45 consecutive days without any notification from the youth, young adult or the parent, legal guardian or caregiver of the child or youth and prior to discharge, the IBHS agency made at least three attempts to contact the youth, young adult or the parent, legal guardian or caregiver of the child or youth to discuss past attendance, ways to facilitate attendance in the future and the potential discharge of the child, youth or young adult for lack of attendance.

 IRRC and 18 commentators expressed concern about the requirement that an IBHS agency may re-initiate services for up to 90 days if the condition of the child, youth or young adult has regressed and impacts the child's, youth's or young adult's ability to maintain functioning at home, school or in the community. The commentators questioned who would staff the services if they were re-initiated and staff had begun to serve other children, how re-initiated services would be authorized, what would be required in the written order for services that were re-initiated, what to do if re-initiation of services was not consistent with an EBT's requirements and what are the requirements for new assessments and ITPs.

Response

 After discussing this topic with stakeholders, the Department has decided to remove from the final-form rulemaking the requirements relating to re-initiation of services. While generally stakeholders support the concept of allowing services to be re-initiated, there are problems with implementing this requirement. Stakeholders indicated that it would be difficult for IBHS agencies to re-initiate services if staff were no longer available to reengage with a child, youth or young adult or if there had been a change in the family's situation such as a move or change in custody. In addition, it would be difficult to re-initiate services when there has been a change in diagnosis, which may require a change in services.

 The Department continues to support determining how best to assist children, youth and young adults who need to return to services for a brief time after discharge and intends to explore this issue further with stakeholders. In the meantime, there is nothing in the final-form rulemaking that precludes a child, youth or young adult from returning to services.

 Two commentators asked who is qualified to write the discharge summary and one commentator requested that individuals in addition to the clinical director be allowed to sign the discharge summary.

Response

 The Department has added the following language to § 5240.32(a) (relating to discharge summary) of the final-form rulemaking: ''An individual qualified to provide behavior consultation services, mobile therapy services, behavior analytic services or behavior consultation-ABA services must complete a discharge summary.'' Because the individual who writes the discharge summary must be a graduate-level professional, the agency's clinical director's signature on the discharge summary is not necessary.

 IRRC and 25 commentators submitted comments about the requirement that the post discharge summary include documentation of at least two telephone contacts within the first 30 days after a child's, youth's or young adult's discharge to monitor the status of maintaining treatment progress. The commentators questioned who is responsible for making the phone calls, if letters could be substituted for phone calls, what is required if the discharge is unplanned, what to do if the IBHS agency is unable to reach the family, how many attempts must the IBHS agency make to contact the family, if attempts to contact the family and the telephone call are billable services, if discharge summaries would need to include information on post discharge phone calls and how to address families who did not respond to contact attempts.

Response

 After discussing this topic with stakeholders, the Department has decided to remove the requirement that the post discharge summary include documentation of at least two telephone contacts within the first 30 days after a child's, youth's or young adult's discharge to monitor the status of maintaining treatment progress. While stakeholders believe post discharge phone calls have the potential to positively impact care, they were concerned that because of the volume of telephone calls a provider would be required to make, the calls would not include a meaningful discussion of the child's, youth's or young adult's status or maintenance of treatment progress. Also, BH-MCOs, not providers, typically provide care management, and therefore, BH-MCOs should be following up after a child, youth or young adult is discharged from services. The county mental health program may also be involved with the child, youth or young adult. As a result, the Department will be removing the requirement for post discharge phone calls from the final-form rulemaking.

Records

§ 5240.41 Individual records, § 5240.42 Agency records, § 5240.43 Record retention and disposal

 The Department has revised the record retention requirements to require an IBHS agency to retain a child's, youth's or young adult's records for at least 4 years after the last date of service. This change aligns the rulemaking with the requirements in § 1101.51(e) (relating to ongoing responsibilities of providers), which require providers to maintain medical records for at least 4 years.

 The Department has also included in the final-form rulemaking a requirement that if services are provided prior to the completion of the ITP, the child's, youth's or young adult's treatment plan must be included in the child's, youth's or young adult's record. The Department added this requirement to ensure that all pertinent records related to the treatment of the child, youth or young adult are included in the child's, youth's or young adult's record.

 IRRC and ten commentators stated that requiring that the record for each child, youth or young adult an IBHS agency serves be reviewed every 6 months is excessive and suggested that a review of a sample of records should be required instead.

Response

 In response to these concerns, the Department has updated the language in the final-form rulemaking to require that a record be reviewed within the first 6 months of its initial entry and subsequent review may be limited to new additions to the records and must occur at least annually thereafter.

 Three commentators requested that the requirement for having an emergency plan be removed because it was not a feasible requirement for providers that serve individuals in the community.

Response

 The Department consulted with providers that serve individuals in the community and they confirmed that an emergency plan was needed because emergencies occur when a provider serves a child, youth or young adult in the community. In addition, agencies that are accredited by The Joint Commission or COA are required to have emergency plans.

 IRRC requested that the Department specify how long an agency must retain records related to its operations. IRRC also requested that the Department clarify if records can be maintained in electronic format.

Response

 The Department has added a requirement that agency records must be retained for at least 4 years. The Department chose 4 years because it is consistent with record retention requirements included in other Department regulations. The Department does not address in the rulemaking how agency records are maintained, and as a result, an IBHS agency may choose the format it wants to use to maintain its records.

 IRRC and one commentator questioned why agency records must include a daily schedule for group services if group services are provided and suggested that a sample schedule would be sufficient. IRRC also requested that the Department explain why IBHS agencies must keep records of staff work schedules.

Response

 A daily schedule is required because it is essential to guide staff and program operations. A sample schedule may be submitted as part of an IBHS agency's service description, but a schedule of daily activities must be available at the location where group services are provided. Records of staff work schedules must be maintained to ensure that individuals who provide services are receiving required supervision, to confirm that an IBHS agency is complying with the staffing requirements in this rulemaking and for program integrity reviews.

 One commentator requested that the requirement to retain staffs' individual training plans be removed because it was overly burdensome.

Response

 The Department believes that it is important for IBHS agencies to retain a record of staff training plans to allow the agency to ensure that staff receive required trainings and the trainings address the staffs' needs.

Nondiscrimination

§ 5240.51 Nondiscrimination

 Two commentators asked if the moral belief clause applies to this section.

Response

 Federal and state law, as well as the HealthChoices agreement, address the coverage of services.

Quality improvement

§ 5240.61 Quality improvement requirements

 One commentator supported both the information required for the quality improvement plan as well as the requirement that the review and report be completed annually. One commentator asked the Department what mechanism will be used to account for the cost of the new quality improvement requirements.

Response

 Agencies that are currently accredited by entities such as The Joint Commission or COA currently complete quality improvement plans as do the many providers licensed by OMHSAS. Given the common practice of utilizing quality improvement activities within organizations, the Department expects the cost of the new quality improvement requirements to be minimal.

 One commentator stated the requirements in this section are too prescriptive and suggested that the provision be revised to contain language that provides the provider with more flexibility. In addition, the commentator asked that the quality management plan include the following: performance measures; performance improvement targets and strategies; methods to obtain feedback relating to personal experience from individuals; staff persons and other affected parties; data sources used to measure performance; identification of the actions to address annual findings and roles and responsibilities of the staff persons related to the practice of quality management. One commentator asked for further clarification regarding what must be included in the annual review and report. IRRC asked that the Department define ''quality improvement plan.''

Response

 The Department does not believe it is necessary to define ''quality improvement plan'' because the Department has identified what must be included in the plan in § 5240.61(a)(1) (relating to quality improvement requirements). The Department also does not agree that additional requirements for what must be included in the quality improvement plan need to be added to the final-form rulemaking. The final-form rulemaking includes the minimum requirements for what must be included in a quality improvement plan. The quality improvement plan must explain how the IBHS agency will conduct an annual review of the items included in § 5240.61(a)(1), using a methodology that addresses the specific information required by § 5240.61(a)(2). The Department clarified some of the requirements in the final-form rulemaking.

 Four commentators asked for further information regarding what must be shared with the public and how to address data so that it is not misconstrued due to a lack of understanding of the data. IRRC asked the Department to work with the regulated community regarding what information must be made available to the public.

Response

 The annual report is to include an analysis of the annual review, the elements of which are set forth in the final-form rulemaking. The annual report is available to the public, as stated in the final-form rulemaking. The Department will work with the regulated community through stakeholder meetings and trainings to provide assistance regarding the content of the report, including providing information that would help individuals who are unfamiliar with data assessment and review to understand the report. For example, IBHS agencies might consider explaining individual and family satisfaction data.

 Three commentators requested that the requirement for the quality report happen less frequently than annually. One commentator suggested that the quality improvement plan be reviewed at least annually and revised at least every 3 years.

Response

 The requirement for an annual review and report will remain. These are essential tools to be used by the IBHS agency and the Department in assessing the quality and delivery of services.

 Two commentators asked for clarification regarding the staff qualifications to conduct the quality reviews.

Response

 Specific qualifications of the staff conducing quality reviews were not defined. The requirement is that the staff qualifications of those performing the review are included in the quality improvement plan.

 One commentator asked that IBHS agencies be required to share the annual report with all HealthChoices primary contractors and HealthChoices oversight entities.

Response

 This rulemaking applies to IBHS agencies that may not be enrolled in the MA Program, and therefore the Department is not including this requirement in the final-form rulemaking.

 Two commentators asked if there are standardized outcome measures. One commentator requested there be up to three standard outcome measurements that are to be used by all IBHS agencies so individuals and families have some form of comparison.

Response

 The Department has not defined standardized outcome measures due to the variety of ways IBHS agencies may choose to asses and review the quality of the services they provide.

 One commentator noted that the BH-MCOs are not included in the quality improvement process.

Response

 This rulemaking applies to IBHS agencies that may not be enrolled in the HealthChoices program, and therefore the Department has not specifically included the BH-MCOs in the quality improvement process.

 One commentator stated there are no requirements for the assessment of the outcomes for an individual who does not have ASD or is not receiving ABA services.

Response

 Section 5240.61(a)(1)(iii) (relating to quality improvement requirements) requires an assessment of the outcomes of services delivered and whether ITP goals have been completed for all IBHS and is not limited to services to individuals with ASD or receiving ABA services.

 The IRRC asked that the Department require the annual quality reports be posted on each IBHS agency's website and included in advertising literature.

Response

 The Department is requiring that reports be made available to the public upon request and that IBHS agencies provide written notification to individuals served by the agency that a copy of the report may be requested. These mechanisms will provide access to the reports. Also, IBHS agencies are not required to have a website or to use promotional materials.

Organizational structure

§ 5240.4 Organizational structure

 Two commentators requested that the Department clarify when an IBHS agency must resubmit an organizational chart.

Response

 The organizational chart must be resubmitted to the Department if there are changes to the organization. This includes when a position is eliminated or other structural changes occur. An organizational chart does not need to be submitted each time a staff person is hired or leaves as long as the position continues to be occupied by a staff person.

 One commentator stated it was not feasible for an IBHS agency to submit organizational changes to the Department within 10 days of a change and requested that this requirement be removed.

Response

 The Department has decided to allow an IBHS agency additional time to notify the Department of a change to its organizational structure. An IBHS agency will have 30 days to notify the Department of a change. This is consistent with Chapter 20 (relating to licensure or approval of facilities and agencies), which governs the licensing of agencies and also applies to IBHS agencies.

Administrative director of an IBHS agency

§ 5240.11 Staff requirements, § 5240.12 Staff qualifications, § 5240.81 Staff qualifications for ABA services

 The Department has added a requirement that the administrative director's responsibilities include supervising staff who do not provide IBHS. The Department realized that it failed to address this responsibility in the rulemaking.

 One commentator asked if one person could serve as both the administrative director and the clinical director and requested that if two people need to be hired, this be factored into the rates for IBHS.

Response

 There is no requirement that two individuals be hired. However, if only one individual serves in the role of administrative director and clinical director that individual needs to be able to perform all of the duties required for both positions and must meet the qualifications for both positions.

 One commentator asked for how many entities can an administrative director be responsible. IRRC and another 12 commentators requested clarification about the duties of the administrative director that would require an administrative director to dedicate a minimum of 7.5 hours each week to each IBHS agency the administrative director directs. Two commentators asked how agency is defined and if there is a maximum number of branches or satellites locations an IBHS agency can have. IRRC questioned why there is a need for the level of oversight included in the rulemaking by the administrative director.

Response

 The Department has revised the final-form rulemaking to remove the requirement that an administrative director dedicate 7.5 hours at each program the administrative director directs. The Department has also removed the provision allowing an administrative director to be responsible for more than one IBHS agency. The Department has determined that these requirements are not necessary because the rulemaking specifies the administrative directors' responsibilities and IBHS agencies should be allowed discretion to determine how best to ensure that an administrative director completes the administrative director's responsibilities.

 IRRC and 14 commentators questioned why it is necessary for an administrative director to have a graduate degree.

Response

 The qualifications for an administrative director have been changed to require a bachelor's degree to better align the educational qualifications with the duties and activities for which the administrative director is responsible. Stakeholders indicated that an individual with a bachelor's degree could have the appropriate education and training needed to fulfill the responsibilities of the administrative director's position.

Clinical director of an IBHS agency

§ 5240.11 Staff requirements, § 5240.12 Staff qualifications, § 5240.81 Staff qualifications for ABA services

 Three commentators questioned if the clinical director can carry a caseload.

Response

 The clinical director of an IBHS agency may provide services to a child, youth or young adult if the clinical director is qualified to provide the service. However, the provision of direct services cannot prevent the clinical director from completing the responsibilities of a clinical director described in § 5240.11(d)(1)—(5) (relating to staff requirements).

 Two commentators questioned if a licensed social worker has the knowledge needed to be a clinical director of an IBHS agency that provides individual services or group services.

Response

 To be qualified to be a clinical director of an IBHS agency that provides individual services or group services a licensed social worker must also complete a graduate clinical or mental health direct service practicum. Stakeholders supported the inclusion of the practicum requirement because it ensures that licensed social workers have additional clinical training.

 Eight commentators questioned why the qualifications for a clinical director of an IBHS agency that provides individual services or group services do not include individuals with a behavior specialist license.

Response

 The final-form rulemaking was revised to include that a clinical director of an IBHS agency that provides individual services or group services may be licensed as a behavior specialist if the individual also has a graduate degree that required a clinical or mental health direct service practicum. The Department included the practicum requirement to ensure that licensed behavior specialists have additional clinical training.

 The Department has also revised the final-form rulemaking to include that a clinical director of an IBHS agency that provides individual services or group services may be licensed as a professional with a scope of practice that includes overseeing the provision of IBHS and have a graduate degree that required a clinical or mental health direct service practicum. The Department added this option because there may be new licenses created and individuals who obtain these licenses may have the expertise needed to be a clinical director of an IBHS agency that provides individual services or group services. Because the Department does not know what education will be required to obtain such a license, the Department included the requirement that the individual have a graduate degree that required a clinical or mental health direct service practicum to ensure that the individual has clinical training.

 IRRC requested that the Department explain what is meant by the requirement in § 5240.12 (relating to staff qualifications) that a clinical director have a minimum of 1 year of full-time postgraduate experience in the provision of mental health direct services to children, youth or young adults. IRRC and one commentator questioned if experience includes working with children in a school, daycare or another child and adolescent service system program.

Response

 The clinical director's experience must include 1 year of working directly with a child, youth or young adult to provide mental health treatment after the clinical director received the clinical director's graduate degree. The experience can be in any setting as long as it involves the provision of mental health direct services that are included in a behavioral health treatment plan. This experience can be obtained while working with children in a school, daycare or another child and adolescent service system program.

 One commentator questioned how an individual who is certified as a board-certified behavior analyst (BCBA) and is licensed as a behavior specialist has the training and experience to oversee mental health services which are provided through individual services, group services or EBT.

Response

 The final-form rulemaking was updated to include that a licensed behavior specialist who is a clinical director of an IBHS agency must have a graduate degree that required a clinical or mental health direct service practicum.

 Three commentators questioned why the Department was relying on qualifications determined by the Behavior Analyst Certification Board, including the requirement that the clinical director of an IBHS agency that provides ABA services be certified as a BCBA.

Response

 Stakeholders indicated that it was important for the Department to consider the qualifications determined by the Behavior Analyst Certification Board because these qualifications are national standards.

 IRRC asked the Department to explain the need and rationale for requiring monthly meetings between the clinical director and staff.

Response

 The Department has removed the requirement in the final-form rulemaking that a clinical director must meet with staff on a monthly basis and document the meeting because the rulemaking includes requirements that specifically address the supervision an individual who meets the qualifications of a clinical director must provide.

Qualification to provide IBHS

 IRRC and four commentators stated that as a result of this rulemaking providers will be forced to use fewer independent contractors and hire more employees, which will result in increased costs and administrative responsibility.

Response

 The Department does not agree that as a result of this rulemaking providers will be forced to use fewer independent contractors and hire more employees because this rulemaking does not require an IBHS agency to change its current employment structure.

 Two commentators asked if this rulemaking has made the behavior specialist license irrelevant

Response

 The behavior specialist license will continue to be relevant after this rulemaking is promulgated. The behavior specialist license is included in the qualifications to provide IBHS.

[Continued on next Web Page]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---