Effective Date of Rule: Immediately.

     Purpose: In response to a court-approved settlement agreement, the agency is adopting WAC 182-531-1400 concerning coverage for applied behavioral analysis (ABA) services for children with autism spectrum disorders. The new rules address prior authorization for services, evaluating and prescribing provider requirements, ABA provider requirements, and payment.

     Statutory Authority for Adoption: RCW 41.05.021.

     Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The agency has been working with stakeholders and experts in autism spectrum disorders to craft rules to ensure public health and safety; however, the agency must file an emergency WAC for the short term to meet the agreed upon January 2, 2013, deadline.

     The agency is proceeding with the permanent rule adoption process initiated by the CR-101 filed under WSR 12-14-100. The agency anticipates filing the CR-102 sometime in March 2013.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 1, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 0, Repealed 0.

     Date Adopted: January 2, 2013.

Kevin M. Sullivan

Rules Coordinator

OTS-5232.2

NEW SECTION
WAC 182-531-1410   Applied behavior analysis (ABA).   (1) Applied behavior analysis (ABA) assists children with autism spectrum disorders and their families to improve the core symptoms associated with autism spectrum disorders.

     (2) The agency pays for ABA services when the services:

     (a) Are covered;

     (b) Are medically necessary;

     (c) Are within the scope of the eligible client's medical care program;

     (d) Are within currently accepted standards of evidence-based medical practice;

     (e) Do not replicate ABA services being rendered in other settings;

     (f) Are authorized, as required within this section, chapters 182-501 and 182-502 WAC, and the agency's applicable, published medicaid provider guides; and

     (g) Are billed according to this section, chapters 182-501 and 182-502 WAC, and the agency's applicable, published medicaid provider guides.

     (3) Definitions. The following definitions and those found in chapter 182-500 WAC, medical assistance definitions, and this chapter, physician-related services, apply to this section.

     ABA treatment plan - An individualized, goal-directed treatment plan developed by a lead behavior analysis therapist meeting the criteria in subsection (15)(a)(i)(A) of this section.

     Applied behavior analysis or ABA - Applied behavior analysis (ABA) involves the systematic application of scientifically validated principles of human behavior to change socially significant behaviors. Behavior analysis uses scientific methodology to reliably demonstrate that behavioral improvements are caused by the prescribed interventions. ABA's focus on social significance promotes a family-centered and whole-life approach to intervention. Common methods include: Behavioral assessment consisting of care-giver interviews, direct observation, and collection of data on targeted behaviors; use of single-case design to demonstrate the relationship between the environment and behavior as a means to promote lasting change; and implementation of client-specific plans and goals. ABA is an empirically validated approach to improve behavior and skills related to core impairments associated with autism and a number of other developmental disabilities. ABA also includes the implementation of functional behavior assessment to identify environmental variables that maintain challenging behavior and allow for more effective interventions to be developed that reduce challenging behaviors and teach appropriate replacement behavior.

     Autism - A diagnosis along the autism spectrum disorder as defined by the most current DSM criteria and made by a licensed health care professional who is associated with an agency-recognized center of excellence (COE).

     Autism diagnostic tool - A tool used to establish the presence (or absence) of autism and to make a definitive diagnosis which will be the basis for treatment decisions and the development of a treatment plan. Examples of autism diagnostic tools include:

     (a) Autism diagnosis interview (ADI); and

     (b) Autism diagnostic observation schedule (ADOS).

     Autism screening tool - A tool used to detect indicators or risk factors for autism and may indicate a suspicion of the condition which would then require confirmation. Examples of screening tools include:

     (a) Ages and stages questionnaire (ASQ);

     (b) Communication and symbolic behavior scales (CSBS);

     (c) Parent's evaluation and developmental status (PEDS);

     (d) Modified checklist for autism in toddlers (MCHAT); and

     (e) Screening tools for autism in toddlers and young children (STAT).

     Centers of excellence or COE - A hospital, medical center, or other health care provider that meets or exceeds standards set by the agency for specific treatments or specialty care.

     Comprehensive evaluation diagnostic assessment - An evaluation and assessment meeting the criteria in subsection (8) of this section.

     Day services program - An agency approved, structured, nonresidential, facility-based group program designed to meet the needs of enrolled children with autism and developmental disabilities through individualized plans of care. The program is comprehensive, providing a variety of health, social, therapeutic activities (occupational, speech, and physical therapy), supervision, support, and in some cases personal care. These services support learning and assistance in any of the following areas: Self-care, receptive and expressive language, learning, mobility, and self-direction.

     Diagnostic and statistical manual of mental disorders (DSM)" - A manual published by the American Psychiatric Association that provides a common language and standard criteria for the classification of mental disorders.

     Lead behavior analysis therapist or LBAT - A person meeting the qualifications for lead behavior analysis therapist (LBAT) as described in subsection (15)(a) of this section and having sufficient competency to complete an individualized ABA treatment plan and oversee its implementation.

     Therapy assistant - A person meeting the qualifications for therapy assistants as described in subsection (15)(a)(ii)(A) of this section and having sufficient competence to perform the tasks of a therapy assistant as described in subsection (15)(a)(ii)(B) of this section.

     (4) The agency covers ABA services when the following requirements are met:

     (a) Client eligibility, as described in subsection (5) of this section;

     (b) Completion of stages, as described in subsections (7) through (13) of this section; and

     (c) Provider requirements, as described in subsections (14) and (15) of this section.

     (5) Eligibility. To be eligible for ABA services, clients must meet all of the following:

     (a) Program eligibility:

     (i) Be twenty years of age and younger;

     (ii) Be covered under one of the following agency programs:

     (A) Children's health care programs as defined in WAC 182-505-0210, Apple health for kids and other children's medical assistance programs;

     (B) Categorically needy program (CNP); or

     (C) Medically needy program (MNP); and

     (iii) Be younger than eighteen years of age and younger and covered under the agency's medical care services as described in WAC 182-505-0210 (within Washington state or bordering city only, as described in WAC 182-501-0175).

     (b) Clinical eligibility:

     (i) The client may be screened using a valid autism screening tool;

     (ii) The client's health care record contains documentation by a clinician which may incorporate family member observations, establishing the presence of any of the core symptoms of autism: Functional impairment; delay in communication, behavior, and/or social interaction; or repetitive or stereotyped behavior;

     (iii) There is documentation by a clinician which may incorporate family member observations, that the client's behaviors are having an adverse impact on either development or communication, or both, such that:

     (A) The client cannot adequately participate in home, school, or community activities because the behavior or skill deficit(s) interferes with these activities; or

     (B) The child exhibits behavior in the nature of self-injury, aggression towards others, destruction of property, stereotyped/repetitive behaviors, elopement, or severe disruptive behavior, where the behavior may be construed that the physical health or safety of the person or others may be placed in serious jeopardy; and

     (iv) The agency's recognized center of excellence (COE) has confirmed:

     (A) The client has a diagnosis on the autism spectrum disorder, as defined by the most current DSM version;

     (B) Either of the following:

     (I) That less intrusive or less intensive behavioral interventions have been tried and have not been successful; or

     (II) There is no equally effective and substantially less costly alternative available for reducing interfering behaviors, increasing prosocial behaviors, or maintaining desired behaviors; and

     (C) There is a reasonable expectation that the requested services will result in measurable improvement in either the client's behavior, skills, or both.

     (6) The following stages must be completed:

     (a) Stage one - Referral to a COE for evaluation, treatment plan, and order/prescription;

     (b) Stage two - ABA assessment and treatment plan; and

     (c) Stage three - Delivery of ABA services with agency's authorization.

     Stage one - Referral to a COE for evaluation and order

     (7) A client who may meet the eligibility criteria in subsection (5) of this section may be referred to a COE for an evaluation and treatment plan by:

     (a) The primary care provider or other licensed health care practitioner including, but not limited to, a speech therapist or occupational therapist;

     (b) A school-based health care professional as the result of an individual education plan (IEP);

     (c) The client's parent or guardian; or

     (d) As required by their managed care plan coverage, if indicated.

     (8) The COE must provide a comprehensive evaluation and treatment plan that includes:

     (a) Routine developmental surveillance performed by providers at well child visits, as available;

     (b) Audiology and vision assessment results, as available, or documentation that vision and hearing were determined to be within normal limits during assessment and not a barrier to completing a valid evaluation;

     (c) The name of the completed autism screening questionnaire, including date completed and significant results, as available;

     (d) Documentation of how diagnosis was confirmed by COE physician or psychologist:

     (i) Results of formal diagnostic procedures performed by an experienced clinician, including name of measure, dates, and results, as available; or

     (ii) Clinical findings and observations used to confirm diagnosis;

     (e) Documentation of a formal cognitive and/or developmental assessment performed by a qualified clinician, including name of measure, dates, results, and standardized scores providing verbal, nonverbal, and full-scale scores, as available. Examples of these assessment tools are:

     (i) Mullen;

     (ii) Weschler; or

     (iii) Bayley;

     (f) Documentation of a formal adaptive behavior assessment performed by a qualified clinician, including name of measure, dates, results, and standardized scores providing scores of each domain, as available. Examples of these assessment tools are:

     (i) Vineland adaptive behavior scales; or

     (ii) Adaptive behavior assessment system (ABAS);

     (g) Documentation that the client's behaviors are having an adverse impact on development or communication, or demonstrating injurious behavior, such that:

     (i) The client cannot adequately participate in home, school, or community activities because behavior or skill deficit(s) interferes with these activities; or

     (ii) The client presents a safety risk to self or others;

     (h) Expanded laboratory evaluation, if indicated;

     (i) Documentation that:

     (i) Less intrusive or less intensive behavioral interventions have been tried and not been successful; or

     (ii) There is no equally effective alternative available for reducing interfering behaviors, increasing prosocial behaviors, or maintaining desired behaviors, if ABA is included in the plan;

     (j) A multidisciplinary individualized treatment plan (ITP) with recommendations that consider the full range of autism treatments with ABA as a treatment component, if clinically indicated;

     (k) A statement that the evaluating and prescribing provider expects that the requested ABA services will result in measurable improvement in the client's behavior or skills; and

     (l) An order/prescription for ABA services. If ordered/prescribed, a copy of the comprehensive evaluation and treatment plan must be forwarded to the family selected ABA provider in subsection (15) of this section or provided to the parent to forward to the selected ABA provider.

     Stage two - ABA assessment and plan development

     (9) If the COE's evaluating and prescribing provider orders ABA services, the client may begin stage two - ABA assessment and treatment plan development.

     (10) ABA services are rendered in one of the following settings. Prior authorization is required by the agency prior to providing any direct care services:

     (a) Day services program - Available to children two to five years of age. This is an agency-approved, outpatient facility or clinic-based program that:

     (i) Provides multidisciplinary services in a short-term day treatment program setting;

     (ii) Delivers comprehensive intensive services;

     (iii) Embeds early, intensive behavioral interventions in developmentally appropriate context;

     (iv) Provides individualized treatment;

     (v) Includes family support and training; and

     (vi) Includes multidisciplinary team members as clinically indicated to include an applied behavioral therapist, occupational therapist, speech therapist, physical therapist, psychologist, and dieticians.

     (b) Home, office, and community-based program (i.e., natural setting) - Available to all clients twenty years of age and younger. This is a program that:

     (i) May be used after discharge from a day services program (see (a) of this subsection);

     (ii) Provides an individualized, developmentally appropriate ABA treatment plan developed for each child;

     (iii) Provides ABA services in the home, office, or community setting, as required to accomplish the treatment plan. Examples of community-based services are: The park, restaurant, or school and must be included in the ABA treatment plan with services being provided by the medicaid-enrolled LBAT or therapy assistant approved to provide services via authorization;

     (iv) Requires recertification of medical necessity through continued authorization; and

     (v) Includes family support and training.

     (11) After the client and family select the setting in which to receive services, a functional assessment must be conducted and an individualized ABA treatment plan developed by an LBAT in the chosen setting. The ABA treatment plan must follow the agency's ABA treatment plan report template and:

     (a) Be signed by the LBAT responsible for the plan development and oversight;

     (b) Be time-limited (e.g., three months) and based on the comprehensive evaluation (see subsection (8) of this section) that took place no more than twelve months before the functional assessment;

     (c) Address the behaviors, skill deficit(s), and symptoms that prevent the client from adequately participating in home, school, community activities, or present a safety risk to self or others;

     (d) Be specific and individualized to the client;

     (e) Be multidisciplinary in nature, client-centered, family-focused, community based, culturally competent and minimally intrusive;

     (f) Take into account all school or other community resources available to the client, provide evidence that the requested services are not redundant to other services already being provided or otherwise available, and coordinate therapies (e.g., from school and special education) with other interventions and treatments (e.g., speech therapy, occupational therapy, physical therapy, family counseling, and medication management);

     (g) Focus on family engagement and training;

     (h) Identify and describe in detail the targeted behaviors and symptoms;

     (i) Include objective, baseline measurement levels for each target behavior/symptom in terms of frequency, intensity, and duration, including use of curriculum-based measures, single-case studies, or other generally accepted assessment tools;

     (j) Include a comprehensive description of treatment interventions, or type of treatment interventions, and techniques specific to each of the targeted behaviors/symptoms, including documentation of the number of service hours, in terms of frequency and duration for each intervention;

     (k) Establish treatment goals and objective measures of progress for each intervention specified to be accomplished in a three- to six-month treatment period;

     (l) Incorporate strategies for generalized learning skills;

     (m) Integrate family education, goals, training, and support services;

     (n) Incorporate strategies for coordinating treatment with school-based special education programs, and plan for transition through a continuum of treatments, services, and settings; and

     (o) Include measurable discharge criteria and a discharge plan.

     Stage three - Delivery of ABA services

     (12) The agency requires prior authorization of ABA services prior to delivery. The LBAT must submit the comprehensive evaluation and treatment plan from the COE described in subsection (8) of this section and the ABA treatment plan described in subsection (11) of this section to the agency as described in WAC 182-501-0163 and other documents required as described in the agency's medicaid provider guides.

     (13) After the individual ABA treatment plan is developed by an LBAT, the ABA treatment plan is implemented by the LBAT or a therapy assistant. If services are rendered via a therapy assistant, the therapy assistant must:

     (a) Assess the client's response to techniques and report that response to the LBAT;

     (b) Provide direct on-site services in the client's natural setting found in the home, office, or community;

     (c) Be supervised by a licensed behavior analysis therapist for a minimum of five percent of total direct care per week (e.g., one hour per twenty hours of care);

     (d) Consult with the LBAT when considering modification to technique, when barriers and challenges occur that prohibit implementation of plan, and as otherwise clinically indicated;

     (e) Assure family involvement and training to support generalization and maintenance of achieved behaviors;

     (f) Keep documentation of daily visits with the client and family to include targeted behavior, interventions, response, modifications in techniques, and plan for next visit along with behavior tracking sheets that record and graph data collected for each visit; and

     (g) Keep documentation of parent or guardian's confirmation that visit occurred recording signature and date.

     Provider requirements

     (14) Stage one. The COE's evaluating and prescribing providers must function as a multidisciplinary team whether facility-based or practitioner-based.

     (a) The qualifications for a center of excellence are:

     (i) The entity or individual employs:

     (A) A person or persons licensed under Title 18 RCW who is experienced in the diagnosis and treatment of autism spectrum disorders and has a specialty in one of the following:

     (I) Neurology;

     (II) Pediatric neurology;

     (III) Developmental pediatrics;

     (IV) Psychology;

     (V) Pediatric psychiatry; or

     (VI) Psychiatry; and

     (B) A licensed midlevel practitioner (i.e., advanced registered nurse practitioner (ARNP) or physician assistant (PA)) who works under the tutelage of one of the specialists in (a)(i)(A) of this subsection and meets the qualifications in (a)(ii) of this subsection;

     (ii) The entity or individual has been prequalified by the medicaid agency as meeting or employing persons meeting the following criteria:

     (A) For physicians or psychologists only, have sufficient expertise to diagnose or confirm the diagnosis of autism spectrum disorder using a validated diagnostic tool or through observation of client's behavior, review of documentation available from client's primary care provider, child's individualized education plan (IEP), and interview of family members;

     (B) Have sufficient experience in or knowledge of the medically necessary use of ABA; and

     (C) Are sufficiently qualified to conduct and document both a comprehensive evaluation diagnostic assessment, and a treatment plan as described in subsection (12)(d) of this section; and

     (iii) The entity or individual has a core provider agreement (CPA) with the agency or is a performing provider on an approved CPA with the agency.

     (b) Examples of providers who can qualify and be paid for these services as a designated COE are:

     (i) Multidisciplinary clinics;

     (ii) Individual physician offices; and

     (iii) Neurodevelopment centers.

     (15) Stages two and three. Regardless of the service delivery option, ABA providers must meet the specified minimum qualifications and comply with applicable state laws:

     (a) LBAT.

     (i) Requirements.

     (A) The LBAT must be:

     (I) Able to practice independently by being licensed by the department of health (DOH) as a physician, psychologist, or mental health professional under Title 18 RCW in good standing with no license restrictions;

     (II) Employed by or contracted with an agency that is enrolled as a participating provider and licensed under DOH as a hospital, a mental health facility, a home health agency, or an in-home agency with certification by DOH to provide ABA services, and be able to practice independently by being licensed by DOH as a physician, psychologist, mental health professional, or credentialed as a counselor under Title 18 RCW in good standing with no license restrictions; or

     (III) Employed or contracted with an agency that is enrolled as a participating provider and licensed by the department of social and health services' division of behavioral health and recovery (DBHR) with certification to provide ABA services, and be able to meet the staff requirements specified in WAC 388-865-0469 (5)(a);

     (B) The LBAT must:

     (I) Enroll as a performing/servicing provider and be authorized to supervise ancillary providers; and

     (II) Provide proof of board certification as an applied behavior analyst; or

     (III) Have two hundred forty hours of course work related to behavior analysis and seven hundred fifty hours of supervised experience, or two years of practical experience in designing and implementing comprehensive ABA treatment plans.

     (ii) Role. The LBAT must:

     (A) Develop and maintain a comprehensive ABA treatment plan; and

     (B) Supervise a minimum of five percent of the total direct care provided by the therapist assistant per week (e.g., one hour per twenty hours of care).

     (b) Therapist assistant.

     (i) Requirements.

     (A) Therapy assistants must be:

     (I) Able to practice independently by being licensed by DOH as a mental health professional or credentialed as a counselor under Title 18 RCW in good standing with no license restrictions;

     (II) Employed by or contracted with an agency that is enrolled as a participating provider and licensed under DOH as a hospital, a mental health facility, a home health agency, or an in-home agency with certification by DOH to provide ABA services, and be able to practice independently by being licensed by DOH as a mental health professional or credentialed as a counselor under Title 18 RCW in good standing with no license restrictions; or

     (III) Employed by or contracted with an agency that is enrolled as a participating provider and licensed by DBHR as a community mental health agency with certification to provide ABA services, and be able to meet the staff requirements specified in WAC 388-865-0469 (5)(a);

     (B) The therapist assistant must:

     (I) Have sixty hours of ABA training that includes applicable ABA principles and techniques, services, and caring for a child with core symptoms with autism;

     (II) Have a written letter of attestation signed by the lead LBAT that the therapist assistant has demonstrated compliance in implementing ABA treatment plans and delivering ABA services prior to providing services to covered clients; and

     (III) Enroll as a providing/servicing provider.

     (C) Role. The therapist assistant must:

     (I) Deliver services according to the ABA treatment plan;

     (II) Be supervised by an LBAT who meets the requirements in (a)(i) of this subsection; and

     (III) Obtain approval and review of the ABA treatment plan every two weeks and review progress with the LBAT.

     (c) Licensure for facility-based day program setting. This applies to the model described in subsection (10)(a) of this section. Outpatient hospital facilities providing these services must meet the applicable DOH licensure requirements. Providers rendering direct ABA services must meet the applicable licensure or certification requirements as described in this subsection and meet the qualifications described in this subsection, as applicable. Other providers serving as members of the multidisciplinary care team must be licensed under Title 18 RCW, as required.

     (16) Prior authorization and recertification of ABA services.

     (a) The agency requires prior authorization and recertification of the medical necessity of ABA services.

     (b) Requirements for prior authorization requests are described in subsection (13) of this section.

     (c) The following are requirements for recertification of ABA services:

     (i) Continued ABA services require the agency's authorization. Authorization is granted in three-month increments, or longer at the agency's discretion;

     (ii) The LBAT must request authorization of continuation of services three weeks prior to the expiration date of the current authorization. A reevaluation and revised ABA treatment plan which documents the client's progress showing measurable changes in the frequency, intensity, and duration of the targeted behavior/symptoms addressed in the previously authorized ABA treatment plan must be submitted with this request. Documentation must include:

     (A) Projection of eventual outcome;

     (B) Assessment instruments;

     (C) Developmental markers of readiness; and

     (D) Evidence of coordination with providers; and

     (iii) In deciding whether to authorize continued ABA services, the agency may obtain the evaluating and prescribing COE provider's review and recommendation. This COE provider must review the ABA treatment date, conduct a face-to-face visit, facilitate a multidisciplinary record review of the client's progress, hold a parent conference, or request a second opinion before recommending continued ABA services.

     (d) Basis for denial of services includes, but is not limited to, the following:

     (i) Lack of medical necessity;

     (ii) Failure to respond to ABA services, even after trying different ABA techniques and approaches, if applicable;

     (iii) There are no meaningful, measurable, functional improvement changes or progress has plateaued without documentation of significant interfering events (e.g., serious physical illness, major family disruption, change of residence, etc.), if applicable. For changes to be meaningful they must be:

     (A) Confirmed through data;

     (B) Documented in charts and graphs;

     (C) Durable over time beyond the end of the actual treatment session; and

     (D) Generalizable outside of the treatment setting to the client's residence and the larger community within which the client resides; and

     (iv) Noncompliance (e.g., failure to keep appointments, failure for parents to attend all treatment sessions, failure for parents to attend scheduled parent training sessions, etc.), if applicable.

     (17) Coverage.

     (a) The agency covers only the following ABA services delivered in settings described in stage three, as noted in subsections (9) and (10) of this section, for eligible clients:

     (i) The ABA assessments to determine the relationship between environmental events and behaviors;

     (ii) The direct provision of ABA services by the therapy assistant or LBAT;

     (iii) Development of a written, initial ABA treatment plan, limited to one per year;

     (iv) Revision of the treatment plan to meet client's needs, limited to four per year;

     (v) Supervision of the therapy assistant;

     (vi) Training of family members, caregivers, or others to carry out the approved ABA treatment plans;

     (vii) Observation of caregiver (or other plan implementer) and individual's behavior to assure correct implementation of the approved ABA treatment plan;

     (viii) Observation of client's behavior to determine effectiveness of the approved ABA treatment plan; and

     (ix) On-site assistance in a difficult or crisis situation.

     (b) The agency covers the following services which may be provided in conjunction with ABA services under other agency programs:

     (i) Speech and language therapy;

     (ii) Occupational therapy;

     (iii) Physical therapy;

     (iv) Auditory and sensory therapy; and

     (v) Counseling.

     (c) The agency does not authorize ABA services if the services are duplicative of services being rendered in another setting.

     (d) The agency does not cover the following services including, but not limited to:

     (i) Dolphin therapy;

     (ii) Equine therapy;

     (iii) Hippo therapy;

     (iv) Language development training;

     (v) Primarily educational services;

     (vi) Recreational therapy;

     (vii) Respite care;

     (viii) Safety monitoring services;

     (ix) School-based services;

     (x) Social skills training;

     (xi) Vocational rehabilitation;

     (xii) Life coaching; and

     (xiii) Treatment that is unproven or investigational (e.g., holding therapy, Higashi (day life therapy), auditory integration therapy, etc.)).

     (18) Limits in amount or frequency of the covered services described in this section are subject to the provisions in WAC 182-501-0169, limitation extension.

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