[49 Pa.B. 6088]
[Saturday, October 19, 2019]
[Continued from previous Web Page] § 5240.71 Staff qualifications for individual services
The Department revised the final-form rulemaking to clarify that to be qualified to provide behavior consultation services an individual who has a graduate degree in psychology, social work, education or counseling must either have a minimum of 1 year of full-time experience in providing mental health direct services to children, youth or young adults or completed a clinical or mental health direct services practicum. The Department also revised the final-form rulemaking to clarify that if an individual has a graduate degree in a field related to psychology, social work, education or counseling, the individual must also have completed a clinical or mental health direct services practicum to be qualified to provide behavior consultation services. However, if an individual has a graduate degree in ABA, there are no additional requirements for the individual to be qualified to provide behavior consultation services. This is because a graduate degree in ABA cannot be obtained without 1 year of experience in providing mental health direct services.
Similarly, the Department revised the final-form rulemaking to clarify that to be qualified to provide mobile therapy services an individual must have a graduate degree in psychology, social work, or counseling; at least nine credits specific to clinical practice and must have either a minimum of 1 year of full-time experience in providing mental health direct services to children, youth or young adults or completed a clinical or mental health direct services practicum. The Department also clarified that to be qualified to provide mobile therapy services an individual who has a graduate degree in education or a field related to psychology, social work, education or counseling, must also have at least nine credits specific to clinical practice and completed a clinical or mental health direct services practicum.
IRRC and two commentators requested that the requirement that individuals who provide individual services through behavior consultation services to children diagnosed with ASD for the treatment of ASD meet the qualifications of an individual who provides behavior consultation-ABA services in § 5240.81(e) (relating to staff qualifications for ABA services) be removed from § 5240.71(b) (relating to staff qualifications for individual services).
Response
The Department cannot remove this requirement because Act 62 of 2008 (40 P.S. § 764h) requires individuals who provide behavior specialist services to children, youth or young adults with ASD be licensed and § 5240.81 (relating to staff qualifications for ABA services) requires individuals who provide behavior consultation-ABA services to be licensed. This does not mean children, youth and young adults with ASD cannot receive services other than ABA or that children without ASD cannot receive ABA services. Rather it means that children, youth and young adults with ASD must receive services from staff who are licensed.
One commentator asked how many hours equal the 1 year of full-time experience in providing mental health direct services to children, youth or young adults that is required to be qualified to provide behavior consultation services or mobile therapy services.
Response
Full-time experience includes time spent in both direct service provision and non-billable activities related to behavioral health services. IBHS agencies should review the employment activities of a potential candidate to determine if they have worked sufficient hours to constitute full-time experience.
One commentator stated that there are many references to certified registered nurse practitioners (CRNPs) needing a mental health certification in order to provide services, but this requirement was not included for CRNPs that provide individual services.
Response
The Department did not include a requirement specific to CRNPs who provide behavior consultation services or mobile therapy services because CRNPs with mental health certifications will also satisfy the requirement that behavior consultation services and mobile therapy services be provided by individuals who have a graduate degree in a related field that includes a clinical or mental health direct services practicum.
One commentator requested that behavior specialist license be added to the licenses that an individual can hold to be qualified to provide mobile therapy services.
Response
The final-form rulemaking was revised to include that an individual may be qualified to provide individual services through mobile therapy services if the individual is licensed as a behavior specialist and 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 that provide mobile therapy services have clinical training.
IRRC and six commentators requested clarification about the requirement that all individuals who provide BHT services obtain a certification. IRRC also requested that the Department explain the process whereby it would engage the Pennsylvania certification board to ensure that individuals who provide BHT services and are certified by the Pennsylvania certification board meet the Department's standards for training and competency. In addition, the commentators requested information about how long it would take to complete the training needed for a certification. Another commentator asked if all individuals who provide BHT services would be required to obtain certification.
Response
As a result of the comments received, additional stakeholder feedback and concerns that the certification requirement would result in there being an insufficient number of individuals who could provide the BHT service, the Department has decided to not require that all individuals who provide BHT services obtain certification within 18 months of being hired to provide BHT services or within 2 years of the promulgation of the rulemaking. Certification is now one of several options to qualify to deliver BHT services. Individuals can also be qualified to provide the BHT service if they have a high school diploma or equivalent and a certificate that indicates that they have completed a 40-hour training covering the RBT Task List or if they have a minimum of 2 years' experience in the provision of behavioral health services. Individuals who provide BHT services will have until January 1, 2021, to meet one of these qualifications.
In addition, as a result of concerns about what the Pennsylvania certification board would require to obtain certification as a BHT, the Department has deleted the option that an individual obtain certification as a BHT from the Pennsylvania certification board to be qualified to provide BHT services and has removed all references to the Pennsylvania certification board from the final-form rulemaking.
Two commentators requested information about the cost of the training required to obtain certification that allows an individual to provide BHT services and how this training could be obtained.
Response
How the training will be obtained will depend on the training entity chosen. Because there are several certifications that will be accepted, the cost and time to complete the certification program will vary.
One commentator asked what the Department meant when it stated that an individual who has an ''other behavior analysis certification'' can provide BHT services.
Response
The Department has revised the requirement to be other ''behavior health certification and behavior analysis certification'' since a certification in behavioral health will provide an individual with the knowledge and training needed to provide individual services. The Department has included this requirement in the rulemaking because the Department does not know what other certifications will be developed after the promulgation of this rulemaking.
Three commentators suggested that the requirement that an individual with an associate's degree or at least 60 credits towards a bachelor's degree also have 1 year of full-time experience in providing direct mental health services be removed from the qualifications to provide BHT services because there will not be enough individuals who meet the qualifications to provide BHT services.
Response
As a result of stakeholder feedback and to ensure that children, youth and young adults receive needed services from qualified individuals, the Department has revised the qualifications of individuals who can provide BHT services. As of January 1, 2021, individuals who have a certification as a board-certified assistant behavior analyst (BCaBA), registered behavior technician (RBT), board-certified autism technician (BCAT) or behavioral health certification or behavior analysis certification from an organization that is accredited by the National Commission for Certifying Agencies or the American National Standards Institute; or a high school diploma or the equivalent of a high school diploma and have completed a 40 hour training covering the RBT Task List; or a minimum of 2 years of experience in the provision of behavioral health services may provide BHT services.
§ 5240.81 Staff qualifications for ABA services
The Department has revised and clarified the qualifications of the individuals who can provide behavior analytic services and behavior consultation-ABA services. To be qualified to provide ABA services through behavior analytic services an individual must be licensed as a psychologist, professional counselor, marriage and family therapist, clinical social worker, social worker, behavior specialist, certified registered nurse practitioner or a professional with a scope of practice that includes overseeing the provision of ABA services and have a certification as a BCBA or other graduate-level certification in behavior analysis. To be qualified to provide ABA services through behavior consultation-ABA services an individual must be licensed as a psychologist, professional counselor, marriage and family therapist, clinical social worker, social worker, behavior specialist, certified registered nurse practitioner or a professional with a scope of practice that includes overseeing the provision of ABA services and have a certification as a BCaBA or other undergraduate-level certification in behavior analysis, a minimum of 1 year of full-time experience providing ABA services and a minimum of 12 credits in ABA or a minimum of 1 year of full-time experience providing ABA services under the supervision of a professional with a certification as a BCBA or other graduate-level certification and a minimum of 40 hours of training related to ABA. An individual who is licensed as a psychologist and has a minimum of 1 year of full-time experience providing ABA services and a minimum of 40 hours of training related to ABA is also qualified to provide ABA through behavior consultation-ABA services.
To ensure that all individuals have the knowledge needed to provide ABA services, the Department added a requirement that licensed individuals that have 1 year of full-time experience providing ABA services must also obtain a minimum of 40 hours of training related to ABA. As a result of the addition of this requirement, the Department has determined that it is no longer necessary to require an individual who provides behavior analytic services or behavior consultation-ABA services and is licensed as a behavior specialist to have at least 45 hours of training related to ABA before independently providing ABA services to a child, youth or young adult. Because an individual who is licensed as a behavior specialist can provide behavior analytic services or behavior consultation-ABA services if the individual has a certification as a BCBA or a BCaBA, a minimum of 12 credits in ABA or 40 hours of training related to ABA, such an individual would have training in ABA.
Thirteen commentators were concerned about licensed professionals who oversee or provide ABA services having to obtain an additional credential specific to the provision of ABA services. The commentators were especially concerned about the impact of this rulemaking on licensed psychologists.
Response
The Department discussed the commentators' concerns about licensed professionals who oversee or deliver ABA services having to obtain additional credentials specific to the provision of ABA services with stakeholders. As a result of these discussions and the comments the Department received on this issue, the Department revised the final qualifications for a licensed psychologist to be a clinical director of an IBHS agency that provides ABA services and to provide behavior consultation-ABA services. Because licensed psychologist are required to obtain a doctoral level credential and have clinical training, the Department has determined that it is not necessary for a licensed psychologist to obtain additional credentials specific to ABA. However, the Department has included additional education, experience and training requirements for licensed psychologists who provide behavior consultation-ABA services in the final-form rulemaking.
IRRC and three commentators expressed concerns about allowing a clinical director 3 years to obtain a BCBA and stated that individuals could jump between agencies to avoid having to obtain certification.
Response
The final-form rulemaking was updated to require that an individual meet the final qualifications to be a clinical director of an IBHS agency that provides ABA services by July 1, 2022. The Department chose July 1, 2022 to enable individuals who want to be clinical directors of IBHS agencies that provide ABA services sufficient time to complete the Behavior Analyst Certification Board approved course sequence and supervision requirements and take the certification exam. The Department also clarified that in addition to obtaining a BCBA, an individual who is a clinical director of an IBHS agency that provides ABA services must also have a minimum of 2 years of experience in providing ABA services.
Eight commentators stated that the qualifications, training and supervision requirements for individuals that provide ABA services should align with the Behavior Analyst Certification Board's qualifications, training and supervision requirements. This includes following the national standards set by associations that work with the Behavior Analyst Certification Board, which include the Association of Professional Behavior Analysts as well as the International Academic Standards set by the Association for Behavior Analysis International and the practice standards set by the Behavior Analyst Certification Board.
Response
In addition to consulting with stakeholders, the Department reviewed the Behavior Analyst Certification Board's standards and the requirements of its current BHRS system when it developed the qualifications, training and supervision requirements for individuals that provide ABA services. The Department modified requirements in an effort to align more closely with the Behavior Analyst Certification Board's requirements.
IRRC and four commentators requested that the Department clarify which individuals need to obtain certification as a BCBA to provide services.
Response
An individual with a certification as a BCBA can be a clinical director of an IBHS agency that provides ABA services and provide behavior consultation-ABA services or behavior analytic services. Behavior analytic services are the only service that must be provided by an individual who has a certification as a BCBA.
One commentator requested clarification about the term ''behavior specialist analyst.'' The commentator stated that it appeared to be a combination of behavior analyst and behavior specialist, which are already recognized terms in the behavioral health field.
Response
The Department is no longer using the term ''behavior specialist analyst.'' The Department is instead using the term ''behavior analytic services'' and ''behavior consultation-ABA services.''
IRRC requested that the Department explain the process it intended to use to engage the Pennsylvania certification board to ensure that individuals who provide behavior consultation-ABA services or BHT-ABA services and are certified by the Pennsylvania certification board meet the Department's standards for training and competency.
Response
As a result of concerns about what requirements the Pennsylvania certification board would impose for an individual to obtain certification, the Department has deleted the option that an individual obtain a certification from the Pennsylvania certification board to be qualified to provide behavior consultation-ABA services or BHT-ABA services.
§ 5240.91 Staff requirements and qualifications for group services
As part of simplifying the overall structure of IBHS, the Department has aligned the qualifications of the individuals who provide group services with the qualifications to provide individual services and ABA services. A graduate-level professional who provides group services must meet the qualifications to provide behavior consultation services in § 5240.71(a) (relating to staff qualifications for individual services), the qualifications to provide mobile therapy services in § 5240.71(c), the qualifications to provide behavior analytic services in § 5240.81(d) (relating to staff qualifications for ABA services) or the qualifications to provide behavior consultation-ABA services in § 5240.81(e). Individuals who meet the qualifications to provide BHT services in § 5240.71(d) or the qualifications to provide BHT-ABA services in § 5240.81(g) may also provide group services.
The Department has also deleted the option that an IBHS agency that provides group services that include specialized therapies such as music, dance and movement, play or occupational therapies use staff that are supervised by a Nationally credentialed activities therapist. The Department has determined that Nationally credentialed activities therapists do no supervise individuals who provide specialized therapies. However, the Department has added as an option that an individual providing a specialized therapy be licensed in this Commonwealth in the specific therapy. This change was made because occupational therapists are licensed in Pennsylvania and other relevant licenses may be developed.
One commentator asked that the Department define ''mental health professional'' because it is a term the Department uses in other programs and for other license types.
Response
The term ''mental health professional'' has been removed from the final-form rulemaking and replaced with ''graduate-level professional.''
Three commentators questioned the difference between a mental health worker and an individual who can provide BHT services and asked why there is a difference in the services these individuals can provide. The commentators indicated that they were confused why the Department made a distinction between individuals who are mental health workers and individuals who can provide BHT services. Five commentators suggested adding a definition of ''mental health worker'' to clarify how it is different from an individual who provides BHT services.
Response
Because of the distinction between what services an individual who meets the qualifications to provide BHT services can provide and what services a mental health worker can provide caused confusion and created a discrepancy in the rulemaking between the qualifications of the individuals who could perform individual services and group services, the Department has deleted the requirement that a mental health worker provide group services.
Supervision and training requirements
§ 5240.13. Staff training plan, § 5240.72 Supervision of staff who provide individual services, § 5240.73 Training requirements for staff who provide individual services, § 5240.82 Supervision of staff who provide ABA services, § 5240.83 Training requirements for staff who provide ABA services, § 5240.92 Supervision of staff who provide group services, § 5240.93 Training requirements for staff who provide group services
IRRC requested that the Department explain how the supervisory standards included in the rulemaking ensure the protection of children, youth and young adults who receive IBHS. IRRC also requested that the Department explain the need for and reasonableness of the level of supervision required for staff. In addition, stakeholders indicated that they were concerned about the supervision standards in the proposed rulemaking.
Response
The supervision requirements protect children, youth and young adults who receive IBHS because they require that all staff receive supervision. Supervision provides oversight of the manner in which services are being delivered and allows staff who are delivering services to receive support and guidance. Previously, there were no supervision requirements for graduate-level staff.
The Department discussed with stakeholders the concerns about the amount of supervision required for staff who provide individual services. While stakeholders agree that there is a need for supervision, they also generally agreed that the amount of supervision time included in the proposed rulemaking should be reduced. As a result, the Department has decreased in the final-form rulemaking the frequency of required face-to-face supervision and onsite supervision.
Three commentators expressed concern about the cost of the training and supervision requirements for providers who use independent contractors to provide services.
Response
The Department does not understand why agencies who use independent contractors will have costs that are different than agencies that do not use independent contractors. All agencies must train and supervise staff who provide services.
IRRC requested clarification on the difference between supervision, face-to-face sessions and direct observation.
Response
The Department revised the final-form rulemaking to clarify what supervision includes and the formats in which it may be delivered. Supervision includes the oversight of the clinical services provided by a staff person to each child, youth or young adult. This includes review of the interventions being implemented; the child's, youth's or young adult's progress towards the goals of the ITP; consideration of adjustments needed to the ITP and the staff person's skills in implementing the interventions in the ITP.
Face-to-face supervision occurs when the individual being supervised meets with the individual's supervisor in-person or through a secure means that enables the individuals to observe each other. Direct observation occurs when the supervisor observes staff during the provision of services.
IRRC and 12 commentators asked how training is approved by the Department, the time frame for obtaining approval and how the Department will notify an IBHS agency of its decision to approve or not approve a training.
Response
The Department will develop and disseminate the process it will be using to approve IBHS training.
One commentator inquired if college coursework can be used to satisfy the initial training requirements. The commentator asked if there is a limit on how long ago the coursework was completed and if coursework is counted by credit hour or course hour.
Response
There is no limit on how long ago a college course was completed for it to be used to satisfy a training requirement as long as the individual can verify the content of the course (e.g. syllabus, course description). Hours are counted by credit hours.
The Department has also revised the final-form rulemaking to clarify that hours of continuing training required to maintain certification or licensure may count towards the training requirements included in the final-form rulemaking.
Four commentators requested that the Department clarify the difference between clinical supervision and administrative supervision.
Response
The Department has revised the supervision sections of the final-form rulemaking to clarify what clinical supervision should include. The Department has not imposed any specific requirements on administrative supervision. Administrative supervision should address the operations of the IBHS agency.
One commentator asked what is meant by the IBHS agency must ensure that all staff complete training requirements.
Response
An IBHS agency must be able to demonstrate that its staff have completed the required trainings.
One commentator asked which trainings are allowed to be provided by an IBHS agency.
Response
An IBHS agency can provide training on any topic that is required to be addressed by this rulemaking.
One commentator expressed concern about not knowing the quality of another provider's training and how an IBHS agency can obtain documentation from another agency that indicates that a staff person has already undergone training.
Response
An agency may accept training completed by another IBHS agency, but it is not required to accept it. The rulemaking allows for a number of different certification options which will enable individuals to receive standardized training. In addition, the Department must approve independent trainings, which will provide IBHS agencies with assurances about the quality of the training.
IRRC and one commentator suggested that ''date of hire'' be removed from the requirement that staff training plans be updated annually based on the staff's date of hire because this would ease some of the burden imposed by the requirement for annual staff training plans.
Response
The Department has removed ''based on the date of hire'' from § 5240.13(a)(1)(i) (relating to staff training plan).
IRRC and one commentator asserted that the requirement in § 5240.13(e)(6) (relating to staff training plan) to keep a copy of written materials that were used during a training is burdensome, costly and does not provide a benefit. IRRC requested that the Department explain the need for and reasonableness of this requirement.
Response
The Department does not agree that there is no benefit to requiring IBHS agencies to keep a copy of the materials that were used during a training. The materials provide information on what staff was trained on, which allows the Department to verify that staff were trained in accordance with this rulemaking and that the training was consistent with best practices. The Department has revised the final-form rulemaking to allow IBHS agencies to keep electronic copies of the trainings, which will reduce the costs and burden of retaining copies of the training materials.
IRRC pointed out that the Department included both references to ''audio and video transmission'' and ''audio or video medium'' in the rulemaking and requested that the Department clarify how supervision should be conducted and that it use consistent terms throughout the rulemaking.
Response
The Department has revised the rulemaking to use consistent terms. Supervision may be provided though secure audio and video transmission.
IRRC questioned the role of an IBHS supervisor.
Response
The final-form rulemaking does not include references to an ''IBHS supervisor.'' The Department has revised the rulemaking to identify the qualifications required for an individual to supervise another staff person. An individual who meets the qualifications of a clinical director may provide supervision to individuals who provide behavior consultation services and mobile therapy services. An individual who meets the qualification of a clinical director or is qualified to provide behavior consultation services or mobile therapy services may provide supervision to individuals who provide BHT services. Because the Department is requiring that an individual who meets the qualifications of a clinical director provide supervision to individuals who provide behavior consultation services and mobile therapy services and not an IBHS supervisor, the Department has deleted the requirement in § 5240.11 (relating to staff qualifications) that a clinical director provide 1 hour of supervision to all staff that supervise other staff at least two times a month.
IRRC and 11 commentators requested that the Department explain why it is reasonable to limit the number of staff who can be supervised to nine full-time equivalent staff who provide BHT services. IRRC also requested that the Department explain why there is no limit on the number of other staff who can be supervised by one individual.
Response
The Department discussed the number of individuals that can be supervised by one person during the meetings with stakeholders. As a result of feedback received from stakeholders, this section was revised to allow an individual to supervise a maximum of 12 full-time equivalent staff who provide individual services, but only nine of the full-time equivalent staff can provide BHT services. The Department also aligned the number of staff that can receive group supervision with the number of individuals that may be supervised by one person.
These changes were made to allow individuals who provide behavior consultation services or mobile therapy services to be supervised by the same person who is supervising the individual who is providing BHT services to a child, youth or young adult. The Department has limited the total number of staff that an individual can supervise to 12 full-time equivalent staff to ensure that individuals providing IBHS receive adequate clinical oversight. The Department limited the number of individuals providing BHT services that can be supervised by one individual to nine full-time equivalent staff because this is consistent with the current limitation on the number of individuals providing TSS services that can be supervised by one individual and individuals that provide BHT services usually provide more hours of service to children, youth and young adults than individuals who provide behavior consultation services or mobile therapy services and individuals who provide BHT services do not have as much education as individuals who provide behavior consultation services and mobile therapy services.
One commentator questioned if assessment and assistance would still be a requirement for individuals providing BHT services and if assessment and assistance hours would count towards the 30 hours of training required before an individual can provide BHT services to a child, youth or young adult.
Response
The rulemaking replaces the requirements in bulletins issued by the Department. Assessment and assistance is now onsite supervision. The rulemaking requires that individuals who provide BHT services must receive 6 hours of onsite supervision during the provision of services prior to providing individual services independently. An individual providing BHT services must receive 30 hours of Department approved training required before the individual can independently provide BHT services to a child, youth or young adult.
One commentator asked if a provider's employee orientation can be counted towards satisfying the initial training requirements for an individual that provides BHT services and what other training resources are available.
Response
Time spent during employee orientation on topics that must be covered as a result of the initial training requirements may count towards the 30 hours of training required before an individual can provide individual services to a child, youth or young adult. While the Department does not endorse specific training resources, training resources include trainings provided by the Department's Bureau of Support for Autism and Special Populations, Pennsylvania Training and Technical Assistance Network and the Child Welfare Resource Center.
One commentator requested that the training requirements for individuals who provide behavior consultation services to children with ASD be clarified.
Response
Individuals who provide behavior consultation services must complete at least 16 hours of Department approved training annually that is related to the individual's specific job functions and is in accordance with the individual training plan. This requirement applies to all individuals who provide behavior consultation services regardless of the behavioral health diagnosis of the child, youth or young adult the individual serves.
One legislator and 22 commentators expressed concern that supervision standards were being lowered because individuals who meet the qualifications to provide assistant behavior consultation-ABA services can supervise individuals who provide BHT-ABA services.
Response
The Department has reviewed these comments and determined that there was a misunderstanding about the qualifications of individuals who can supervise individuals who provide BHT-ABA services. Only individuals who provide assistant behavior consultation-ABA services and have a BCaBA can supervise individuals who provide BHT-ABA services. By July 1, 2022 all individuals who provide assistant behavior consultation-ABA services will be supervised by individuals who are certified as BCBAs or by licensed psychologists who have experience in providing clinical oversight of ABA programs and training related to ABA or licensed psychologists with graduate degrees or graduate certificates in ABA. The Department clarified the misunderstanding during discussions with stakeholders and stakeholders have not expressed further concern about individuals who have a BCaBA and meet the qualifications to provide assistant behavior consultation-ABA services supervising individuals who provide BHT-ABA services.
One commentator asked if someone other than the clinical director can provide supervision to staff who provide group services.
Response
Section 5240.92 (relating to supervision of staff who provide group services) has been revised and no longer requires the clinical director to provide supervision to the graduate-level professional. Supervision can now be provided by anyone who meets the qualifications of a clinical director of an IBHS agency.
In addition, as a result of confusion about the different training and supervision requirements, the Department has aligned the supervision and training requirements for group services with the supervision and training requirements for other IBHS.
Provision of individual services
§ 5240.75 Individual services provision
IRRC and 14 commentators requested that the Department clarify the therapeutic activities and interventions that can be delivered through individual services. Five of these commentators specifically asked who can develop the ITP. IRRC and six commentators stated that individuals who provide BHT services should not be allowed to make referrals. In addition, IRRC asked why consultation with parents, teachers and other caregivers was not included as part of individual services and one commentator asserted that consultation should be expanded to include all necessary treatment team members.
Response
As a result of the comments received and feedback obtained from stakeholders, the Department has revised § 5240.75 (relating to individual services provision). Section 5240.75 no longer lists the specific individual services a person can provide, but instead includes an overview of activities that may be delivered through behavior consultation services, mobile therapy services and BHT services.
The Department agrees that consultation should be expanded to include all necessary treatment team members and has removed the requirement that individuals providing behavior consultation services consult only with mobile therapists and BHTs about behavioral management protocols. The Department has revised the final-form rulemaking to provide that 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 the treatment team on 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.
The Department also agrees that individuals who provide BHT services should not be allowed to make referrals. The Department has simplified its description of BHT services in the final-form rulemaking. The final-form rulemaking states that BHT services consist of implementing the ITP. Accordingly, the Department has deleted the requirement in the final-form rulemaking that prohibits an individual providing BHT services from developing or revising the ITP goals, objectives or interventions.
In addition, the Department has revised the final-form rulemaking to clarify that individual services, if medically necessary, can be provided by more than one individual at a time.
ABA services
§ 5240.87 ABA services provision
IRRC and 21 commentators requested that the Department clarify the therapeutic activities and interventions that can be provided through behavior analytic services, behavior consultation-ABA services, assistant behavior consultation-ABA services and BHT-ABA services. Four commentators requested that the Department clarify if therapeutic activities and interventions include training parents and caregivers on implementing the ITP. IRRC and three commentators suggested including language that indicates that ABA services can include interventions that target activities of daily living and skill development.
Response
The Department has revised the final-form rulemaking to no longer include a prescriptive list of therapeutic activities, but instead include an overview of the ABA services that may be delivered through behavior analytic services, behavior consultation-ABA services, assistant behavior consultation—ABA services and BHT-ABA services. 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 the child's, youth's or young adult's treatment team on the ITP. Additionally, behavior analytic services include conducting a functional analysis. 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. BHT-ABA services consist of implementing the child's, youth's or young adult's ITP.
ABA services can be used to develop skills, including skills related to activities of daily living. An ITP may identify interventions that can be used to assist a child, youth or young adult with achieving or maintaining the skills needed for maximum functional capacity in performing activities of daily living.
Fifteen commentators expressed that they were concerned that children with ASD would only be able to receive ABA services and that ABA services would only be available for children, youth and young adults with an ASD diagnosis.
Response
Children, youth and young adults diagnosed with ASD can also receive individual services and group services and are not limited to ABA services. Likewise, ABA services can be provided to children, youth and young adults who do not have an ASD diagnosis.
Currently providers are required to attest to having the skills and knowledge to provide ABA services. One commentator questioned whether the attestation process is necessary since the rulemaking clearly stipulates training requirements and credentials.
Response
The attestation process will no longer be used upon promulgation of this rulemaking.
One commentator asked if monthly reporting on the capacity of providers to provide ABA services will continue to be required after promulgation of this rulemaking.
Response
Reporting on capacity to provide ABA services will continue to be required after this rulemaking is promulgated. The Department will provide guidance to the BH-MCOs.
Group services
§ 5240.97 Group services provision
As it has done for other services, the Department revised § 5240.97 (relating to group services provision) to no longer list the specific services a person can provide, but instead include an overview of activities that may be delivered through group services.
One commentator asked what community integration activities are allowed as part of group services.
Response
Community integration activities that enable children, youth and young adults to use skills learned through group services in the natural environment or address a specific goal are allowed as part of group services.
One commentator requested that the Department define ''individual interventions'' to clarify what individual interventions may be billed as part of group services.
Response
The Department does not believe that a definition of ''individual interventions'' is necessary to clarify what individual interventions may be billed as part of group services. The rulemaking states that in order for an individual intervention to be billed as part of group services the individual intervention must address identified therapeutic needs for the child, youth or young adult to function in the home, school or community.
Two commentators were in favor of the graduate-level professional being able to provide consultation with the treatment team as part of group services.
Response
Section 5240.97(a) (relating to group services provision) has been revised to include consultation with the child's, youth's or young adult's treatment team on the ITP as a service a graduate-level professional can provide.
One commentator requested that the Department add a requirement that a graduate-level professional must be present during the provision of group services.
Response
The Department agrees and has added the requirement that a graduate-level professional be present during the provision of group services.
Two commentators asked what ratios will be required for group services.
Response
Given the wide range of approaches, needs and programming occurring within group services the Department will not be requiring a specific staff ratio. Staffing ratios must be included in an IBHS agency's approved service description.
One commentator asked if there is a restriction on the number of groups that can occur in one day.
Response
There is no restriction on the number of groups that can occur in one day; however, the number of groups that occur in one day must take into account the needs, age and functional abilities of the children, youth and young adults served as well as the staffing levels, hour of operation and size and space of the facility where services are being provided. An IBHS agency must include the number of groups and explain why this is an appropriate number in its service description.
IRRC asked if there is a maximum number of children, youth or young adults who can receive group services at a particular time and requested that if there is a maximum number it be specified in the final-form rulemaking.
Response
There is no maximum number of children, youth or young adults who can receive group services at one time. The final-form rulemaking requires an IBHS agency that provides group services to include in its service description the staffing ratio for group services and the maximum number of children, youth or young adults who will be served at the same time through group services at each community setting or community like setting.
One commentator requested that the Department describe how individual, group and family therapy can occur in group services.
Response
There is no one way for an IBHS agency to deliver group services that include individual, group and family therapy. It is up to the IBHS agency to decide if all three therapies should be part of their program and how the agency will deliver each therapy.
Five commentators questioned how group services will be billed, including if group services should be billed by number of units, what is a billable activity, if there will be a restriction on the number of group hours that can be billed in a day, if rates will support the rent for the location where services are provided and if there is a separate rate for different types of psychotherapy.
Response
The Department plans to issue billing guidance that addresses group services.
Seven commentators requested that IBHS agencies be allowed to provide ABA when providing group services.
Response
The Department agrees that IBHS agencies can provide ABA through group services and has revised the definition of group services to clarify that ABA services may be provided during the provision of group services.
Group services in school
§ 5240.98 Requirements for group services in school settings
The Department has changed the requirement in § 5240.98(2) (relating to requirements for group services in school settings) for a quarterly meeting between IBHS agency and school staff to discuss the student's behavioral health services and progress related to school performance to at least every 6 months to align this time frame with the time frame for updates to the ITP. ITPs for group services must be updated at least every 6 months. The Department has also changed the requirement in § 5240.98(1)(iv) for a quarterly meeting between IBHS agency staff and school administration to review performance, collaboration issues and the written agreement to instead require that there be a meeting every 6 months so that only one meeting is needed between IBHS agency staff and school administration every 6 months. At this meeting IBHS agency and school staff can address behavioral health services a student is receiving and the student's progress as well as review the performance of the group services and collaborate on issues.
One commentator asked if group services in school settings will replace outpatient satellite clinics that are located in schools.
Response
Outpatient services can continue to be provided at satellite sites in schools.
One commentator expressed concern that group services in the school setting will duplicate services schools are providing.
Response
To prevent group services from being duplicative of services schools are providing the Department has included a number of provisions in the rulemaking that are intended to foster communication between the school and the IBHS agency and awareness of the services the IBHS agency is providing. These include a requirement for a written agreement with the school that provides for identification of space and equipment allocated for use by IBHS agency staff, describes how the school and IBHS agency staff will collaborate during the provision of group services in the school and identifies an authorized representative for the school.
Two commentators asked who can be an authorized representative for a school.
Response
A school is responsible for determining its authorized representative.
Two commentators asked the Department to provide an example of the written agreement needed between the IBHS agency and the school.
Response
The Department expects that the written agreements will vary greatly because they must be specific to the program the IBHS agency is providing, and therefore will not be providing an example.
One commentator asked what the requirement in § 5240.98(1)(iii) (relating to requirements for group services in school settings) for ''assurances of the collaborative relationship between school staff and IBHS agency staff'' means. IRRC requested that the Department revise § 5240.98(1)(iii) because ''assurances'' is not a regulatory term.
Response
The Department has revised § 5240.98(1)(iii). Section § 5240.98(1)(iii) requires that the written agreement with the school include a description of how the school and IBHS agency staff will collaborate during the provision of group services in the school.
Two commentators asked the Department to clarify expectations when school is not in session.
Response
In § 5240.98(5)(i) (relating to requirements for group services in school settings) the Department requires that the ITP for every child, youth or young adult who receives group services include how continuity of services when school is not in session will be addressed. As a result, the ITP must include what services or supports are needed if school is not in session.
Evidence-Based Therapy
§ 1155.35 Payment conditions for EBT delivered through individual services, ABA services or group services, § 5240.103 Requirements for EBT delivered through individual services, ABA services or group services
The Department has moved the provisions on EBT in the rulemaking to follow the discussion of the other services because individual services, ABA services and group services can be provided through EBT.
IRRC and one commentator stated that many EBTs do not have certification or licensure from a National certification organization or entity and cannot comply with § 1155.35(a)(7) (relating to payment conditions for EBT delivered through individual services, ABA services or group services). IRRC and the commentator also pointed out that while § 1135.35(a)(7) requires an IBHS agency to have a current certification or licensure from the National certification organization or entity that developed or owns the EBT, § 5240.103(a) (relating to requirements for EBT delivered through individual services, ABA services or group services) specifies that a certification or license is only necessary if it is required to provide the EBT.
Response
Each EBT has its own requirements for licensure, certification or training for an individual or program to be recognized as being able to provide the EBT. The Department is requiring an IBHS agency that provides an EBT to have a current certification or licensure from the National certification organization or entity that developed or owns the EBT. The Department has revised the language in the final-form rulemaking so that the requirements in § 1135.35(a)(7) (relating to payment conditions for EBT delivered through individual services, ABA services or group services) and § 5240.103(a) (relating to requirements for EBT delivered through individual services, ABA services or group services) are consistent.
Two commentators questioned if providers who currently provide an EBT will be required to comply with this rulemaking (i.e. providers that offer Trauma Focused-Cognitive Behavioral Therapy, Dialectical Behavior Therapy through an outpatient program, Multisystemic Therapy, Functional Family Therapy).
Response
Not all providers of an EBT will need to comply with this rulemaking. Only providers of an EBT delivered through IBHS need to comply with this rulemaking.
Two commentators recommended that if ABA is not appropriate for a child, youth or young adult, the Department should issue guidance around which EBT may be appropriate.
Response
The Department will not be issuing guidance regarding the most appropriate use of an EBT because each EBT outlines its target population, including admissions criteria, for the service.
Six commentators requested clarification as to why the section of the rulemaking that addresses EBT does not include the same level of details as other sections of the rulemaking. The commentators requested that the Department clarify the overall scope of services and program standards for EBT such as supervision and training requirements and staff qualifications. IRRC also requested that the Department clarify the standards IBHS agencies that provide EBTs must adhere to when the rulemaking is silent on issues such as supervision, minimum qualifications, admissions or discharge criteria.
Response
IBHS agencies should comply with the EBT's requirements for supervision, minimum qualifications, admissions and discharge criteria. If the EBT does not provide guidance on an issue, the IBHS agency should adhere to the requirements in the rulemaking that address the specific service the provider is delivering (individual services, ABA services, group services).
IRRC and two commentators questioned if an EBT can be modified to meet a child's, youth's or young adult's needs.
Response
An EBT should not be modified unless allowed within the parameters of the EBT.
Two commentators asked if providers will be able to bill for all services included in an EBT.
Response
IBHS agencies cannot bill for services included in the EBT that are not reimbursable through the MA Program.
One commentator requested information on how an agency should obtain a license or certification for the EBT it wants to provide.
Response
Each entity that developed or owns an EBT has its own process for licensing or certifying a program that provides an EBT or an individual who provides an EBT.
Location of services
Two commentators stated that it is in unclear if the Department will allow services other than group services to be delivered in the provider's office when clinically indicated. One of these commentators suggested that this be clarified in the definition section of the rulemaking and the other commentator indicated that families have requested that their child receive services in a provider's office or clinic. Another commentator suggested that for purposes of the provision of ABA services ''community'' should be defined to include a provider's office or a clinic because some aspects of ABA services may best be provided in an office setting and then transferred to the home, school, or other setting. The commentator explained that outpatient mental health therapy and virtually all other therapies, including physical therapy, occupational therapy and speech therapy, are permitted to be provided in clinics and provider's offices. The commentator believes that there is no reason to treat ABA services differently. The commentator also stated that if providing ABA services in an office or clinic setting is not allowed under the IBHS rulemaking, then the Department should allow providers to provide office and clinic services through other means. As a result of the concerns about where site-based services can be provided, IRRC also requested that the Department define ''community'' for purposes of ABA services.
Response
The final-form rulemaking does not prevent an entity from providing services in an office setting that is not community like; however, these services cannot be billed to MA as IBHS.
Waivers
§ 5240.111 Waivers
Two commentators support the continuation of exceptions written around specific diagnostic categories and specific individuals. One commentator stated that the waiver process should be consistent with current Department bulletins. The commentator also recommended time frames.
Response
The Department established the ability to seek a waiver of regulatory requirements in the final-form rulemaking. The Department will issue a bulletin that sets forth the procedures for seeking a waiver, including the timelines.
One commentator asked whether existing program exceptions that do not meet the criteria in the proposed rulemaking will fall under a waiver exception.
Response
Services previously approved through a program exception would generally fall under the final-form regulations and would be expected to meet the standards established in this rulemaking. If there is an exception needed, the waiver process can be followed.
The Department also received comments about the Child Protective Services Law, 23 Pa.C.S. §§ 6301—6386. The Child Protective Service Law is beyond the scope of this rulemaking. Information about child abuse certifications and criminal history checks can be found at http://keepkidssafe.pa.gov/.
In addition to the major changes discussed previously, the Department made several changes in preparation of the final-form including revising language to enhance clarity and to conform to the changes previously discussed.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on July 18, 2018, the Department submitted a copy of the notice of proposed rulemaking, published at 48 Pa.B. 4762 (August 4, 2018), to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Committees on Health and Human Services for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department is required submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees, and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on August 14, 2019, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 15, 2019, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking has been given under §§ 201 and 202 of the Commonwealth Documents Law (45 P.S. §§ 1201 and 1202) and the regulations at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) That the adoption of this final-form rulemaking in the manner provided by this order is necessary and appropriate for the administration and enforcement of the Human Services Code.
Order
The Department, acting under 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)), orders that:
(a) The regulations of the Department, 55 Pa. Code are amended by adding §§ 1155.1, 1155.2, 1155.11, 1151.21, 1155.22, 1155.31—1155.37, 1155.41, 1155.51, 5240.1—5240.7, 5240.11—5240.14, 5240.21—5240.23, 5240.31, 5240.32, 5240.41—5240.43, 5240.51, 5240.61, 5240.71—5240.75, 5240.81—5240.87, 5240.91—5240.98, 5240.101—5240.103 and 5240.111 to read as set forth in Annex A .
(Editor's Note: Sections 5240.94—5240.98 are new and are not in the proposed rulemaking).
(Editor's Note: Proposed §§ 5240.104—5240.108 were not adopted in this final-form rulemaking).
(b) The Secretary of the Department has submitted this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to legality and form as required by law. The Office of General Counsel and the Office of Attorney General has approved the Order and Annex A as to legality and form.
(c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication. Providers will be required to comply with this final-form rulemaking 90 calendar days after publication in the Pennsylvania Bulletin.
TERESA D. MILLER,
Secretary(Editor's Note: See IRRC's approval order at 49 Pa.B. 5078 (August 31, 2019).)
Fiscal Note: Fiscal Note 14-546 remains valid for the final adoption of the subject regulations.
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