Original Notice.

     Preproposal statement of inquiry was filed as WSR 13-02-084.

     Title of Rule and Other Identifying Information: Amending WAC 388-865-0400 Community support service providers, 388-865-0405 Competency requirements for staff, 388-865-0420 Intake evaluation, 388-865-0425 Individual service plan and 388-865-0460 Counseling and psychotherapy services -- Additional standards; and new section WAC 388-865-0469 Applied behavior analysis (ABA) services.

     Hearing Location(s): Office Building 2, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html), on April 23, 2013, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than April 24, 2013.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on April 23, 2013.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 9, 2013, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules implement, in part, a settlement agreement between Washington Autism Alliance and Advocacy, et al. v. Douglas Porter, U.S. District Court, Western District of Washington, Case No. 2:12-cv-0072-RAJ. The rules provide minimum standards for agencies to obtain and maintain licensure from the department of social and health services (DSHS) so that licensed agencies may contract with the health care authority (HCA) to deliver ABA services to eligible individuals. HCA is also adopting rules to implement this settlement agreement.

     Reasons Supporting Proposal: HCA and DSHS are concurrently adopting rules to meet the requirements of the settlement agreement which requires HCA to provide a coverage benefit to assist children with autism spectrum disorders and DSHS to establish minimum licensing standards in rule in order for community mental health agencies to deliver ABA services.

     Statutory Authority for Adoption: RCW 34.05.350, 43.20A.550, 71.24.035, 74.04.050.

     Statute Being Implemented: RCW 34.05.350, 43.20A.550, 71.24.035, 74.04.050.

     Rule is necessary because of state court decision, Washington Autism Alliance and Advocacy, et al. v. Douglas Porter, U.S. District Court, Western District of Washington,

Case No. 2:12-cv-00742-RAJ.

     Name of Proponent: DSHS, governmental.

     Name of Agency Personnel Responsible for Drafting: Kathy Sayre, P.O. Box 45330, Olympia, WA 98504-5330, (360) 725-1342; Implementation and Enforcement: Pete Marburger, P.O. Box 45330, Olympia, WA 98504-5330, (360) 725-1513.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules are required by Washington Autism Alliance and Advocacy, et al. v. Douglas Porter, U.S. District Court, Western District of Washington, Case No. 2:12-cv-00742-RAJ; therefore, pursuant to RCW 19.85.025(3) and 34.05.328 (5)(b)(v), a small business economic impact statement is not required.

     A cost-benefit analysis is not required under RCW 34.05.328. Rules are exempt per RCW 34.05.328 (5)(b)(v), rules the content of which is explicitly and specifically dictated by statute.

March 14, 2013

Katherine I. Vasquez

Rules Coordinator

     (1) Emergency crisis intervention services;

     (2) Case management services;

     (3) Psychiatric treatment, including medication supervision;

     (4) Behavioral, counseling, and psychotherapy services;

     (5) Day treatment services;

     (6) Consumer employment services; ((and/or))

     (7) Peer support services; and/or

     (8) Applied behavior analysis (ABA) services.

[Statutory Authority: RCW 71.24.035 (5)(c), 71.24.037. 05-17-156, § 388-865-0400, filed 8/22/05, effective 9/22/05. Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0400, filed 5/31/01, effective 7/1/01.]

     (1) All staff members, including contracted staff members, have a current Washington state department of health license or certificate or registration as may be required for their position;

     (2) Washington state patrol background checks are conducted for employees in contact with consumers consistent with RCW 43.43.830;

     (3) Employed or contracted professional staff members required to serve children with autism spectrum disorders meet the professional staff requirements in WAC 388-865-0469(5);

     (4) Mental health services are provided by a mental health professional, or under the clinical supervision of a mental health professional;

     (((4))) (5) Staff performing mental health services (not including crisis telephone) must have access to consultation with a psychiatrist or a physician with at least one year's experience in the direct treatment of persons who have a mental or emotional disorder;

     (((5))) (6) Mental health services to children, older adults, ethnic minorities or persons with disabilities must be provided by, under the supervision of, or with consultation from the appropriate mental health specialist(s) when the consumer:

     (a) Is a child as defined in WAC 388-865-0150;

     (b) Is or becomes an older person as defined in WAC 388-865-0150;

     (c) Is a member of a racial/ethnic group as defined in WAC 388-865-0105 and as reported:

     (i) In the consumer's demographic data; or

     (ii) By the consumer or others who provide active support to the consumer; or

     (iii) Through other means.

     (d) Is disabled as defined in WAC 388-865-0150 and as reported:

     (i) In the consumer's demographic data; or

     (ii) By the consumer or others who provide active support to the consumer; or

     (iii) Through other means.

     (((6))) (7) Staff receive regular supervision and an annual performance evaluation; and

     (((7))) (8) An individualized annual training plan must be implemented for each direct service staff person and supervisor, to include at a minimum:

     (a) The skills he or she needs for his/her job description and the population served; and

     (b) The requirements of RCW 71.05.720.

[Statutory Authority: RCW 71.05.560, 71.05.700, 71.05.705, 71.05.710, 71.05.715, 71.05.720, and 71.24.035. 09-19-012, § 388-865-0405, filed 9/3/09, effective 10/4/09. Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0405, filed 5/31/01, effective 7/1/01.]

     (2) The intake evaluation must:

     (a) Be provided by a mental health professional.

     (b) Be initiated within ten working days from the date on which the individual or their parent or other legal representative requests services and completed within thirty working days of the initiation of the intake.

     (c) Be culturally and age relevant.

     (d) Document sufficient information to demonstrate ((medical necessity as defined in the state plan, and must)) and/or include:

     (i) Medical necessity, as defined in WAC 388-865-0150;

     (ii) Presenting problem(s) as described by the individual, including a review of any documentation of a mental health condition provided by the individual. It must be inclusive of people who provide active support to the individual, if the individual so requests, or if the individual is under thirteen years of age;

     (((ii))) (iii) Current physical health status, including any medications the individual is taking;

     (((iii))) (iv) Current substance use and abuse and treatment status (GAIN-SS);

     (((iv))) (v) Sufficient clinical information to justify the provisional diagnosis using diagnostic and statistical manual (DSM IV TR) criteria, or its successor;

     (((v))) (vi) An identification of risk of harm to self and others, including suicide/homicide. Note: A referral for provision of emergency/crisis services, consistent with WAC 388-865-0452, must be made if indicated in the risk assessment;

     (((vi))) (vii) Whether they are under the supervision of the department of corrections; and

     (((vii))) (viii) A recommendation of a course of treatment.

[Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), and 71.34.380. 10-09-061, § 388-865-0420, filed 4/19/10, effective 5/20/10. Statutory Authority: RCW 71.24.035. 07-06-050, § 388-865-0420, filed 3/2/07, effective 4/2/07. Statutory Authority: RCW 71.05.445 and 71.05.390 as amended by 2004 c 166. 05-14-082, § 388-865-0420, filed 6/30/05, effective 7/31/05. Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0420, filed 5/31/01, effective 7/1/01.]

     (a) Develop a consumer-driven, strength-based individual service plan that meets the individual's unique mental health needs.

     (b) Ensure an individualized applied behavior analysis (ABA) treatment plan for a child receiving ABA services meets the requirements in subsection (3) of this section and WAC 388-865-0469.

     (2) An ((The)) individual service plan must:

     (a) Be developed in collaboration with the individual, or the individual's parent or other legal representative if applicable. ((The service plan must:

     (1))) (b) Be initiated with at least one goal identified by the individual, or their parent or other legal representative if applicable, at the intake evaluation or the first session following the intake evaluation.

     (((2))) (c) Be developed within thirty days from the first session following the intake evaluation.

     (((3))) (d) Address age, cultural, or disability issues identified by the individual, or their parent or other legal representative if applicable, as relevant to treatment.

     (((4))) (e) Include treatment goals or objectives that are measurable and that allow the provider and individual to evaluate progress toward the individual's identified recovery goals.

     (((5))) (f) Be in language and terminology that is understandable to individuals and their family.

     (((6))) (g) Identify medically necessary service modalities, mutually agreed upon by the individual and provider, for this treatment episode.

     (((7))) (h) Demonstrate the individual's participation in the development of the individual service plan. Participation may be demonstrated by the individual's signature and/or quotes documented in the plan. Participation must include family or significant others as requested by the individual. If the provider developing the plan is not a mental health professional, the plan must also document approval by a mental health professional.

     (((8))) (i) Include documentation that the individual service plan was reviewed at least every one hundred eighty days. It should also be updated to reflect any changes in the individual's treatment needs or as requested by the individual, or their parent or other legal representative if applicable.

     (((9))) (j) With the individual's consent, or their parent or other legal representative if applicable, coordinate with any systems or organizations the individual identifies as being relevant to the individual's treatment. This includes coordination with any individualized family service plan (IFSP) when serving children ((under)) younger than age three ((years of age)).

     (((10))) (3) Beginning January 2, 2013, the health care authority will administer rules in TITLE 182 WAC for ABA services, including specific rules for an individualized ABA treatment plan. The individualized ABA treatment plan must, at a minimum:

     (a) Be developed by a lead behavior analysis therapist (LBAT) who meets the LBAT requirements in WAC 388-865-0469(5);

     (b) Identify the services to be delivered by a therapy assistant who meets the therapy assistant requirements in WAC 388-865-0469(5); and

     (c) Meet the specific requirements of the health care authority in TITLE 182 WAC.

     (4) If an individual disagrees with specific treatment recommendations or is denied a requested treatment service, they may pursue their rights under WAC 388-865-0255.

[Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), and 71.34.380. 10-09-061, § 388-865-0425, filed 4/19/10, effective 5/20/10. Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0425, filed 5/31/01, effective 7/1/01.]

[Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0460, filed 5/31/01, effective 7/1/01.]

     (2) Beginning January 2, 2013:

     (a) An agency currently licensed by the department that meets the minimum standards in this section may deliver ABA services to eligible individuals.

     (b) The health care authority (HCA):

     (i) Administers rules in WAC 182-531-1410 for ABA services requirements, including:

     (i) Program and clinical eligibility requirements;

     (ii) Prior authorization requirements;

     (iii) Specific ABA provider requirements;

     (iv) Coverage requirements;

     (v) Billing requirements; and

     (vi) Requirements for:

     (A) Referrals to Centers of Excellence (COE) for evaluations and orders to be performed by healthcare professionals licensed under chapters 18.71, 18.71A, 18.79, and 18.83;

     (B) ABA assessments and ABA treatment plan development; and

     (C) Delivery of ABA services.

     (3) Licensure requirements.

     (a) An agency not licensed by the department under this chapter must seek and obtain licensure from the department in order to provide ABA services. These requirements do not apply to COE defined in WAC 182-531-1410. The agency must:

     (i) Submit an application to the department (see WAC 388-865-0470).

     (ii) Pay the licensing application fee (see WAC 388-865-0103).

     (iii) Meet the applicable agency requirements in WAC 388-865-0400.

     (iv) Qualify for a provisional and full license as described in WAC 388-865-0472 (1) and (2).

     (v) Comply with the applicable rules regarding licensure in WAC 388-865-0472 through 388-865-0482.

     (vi) Meet the additional requirements in this section.

     (b) An agency must have written policies and procedures to support and implement the requirements in this section.

     (4) Certification requirements. An agency must be a department-licensed community mental health agency that is certified by the department to provide ABA services.

     (5) Staff requirements. An agency must meet the applicable competency and documentation requirements in WAC 388-865-0405 for ensuring staff members are qualified for the positions they hold. Contracted professional staff must meet the same requirements as the agency's noncontracted professional staff.

     (a) Lead behavior analysis therapist (LBAT). An agency must employ or contract with an LBAT. To qualify as an LBAT, an individual must meet the professional requirements in (i) through (iii) of this subsection:

     (i) The individual must be one of the following:

     (A) Licensed by the department of health (DOH) as a licensed health care professional; or

     (B) An agency-affiliated counselor under RCW 18.19.210 who, in addition, meets the requirements of a mental health professional as defined in WAC 388-865-0150;

     (ii) The individual must meet one of the following:

     (A) Hold national certification as a board certified behavior analyst (BCBA); or

     (B) Have two hundred forty hours of coursework 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.

     (iii) The individual must have expertise in applying ABA principles to the treatment of autism spectrum disorders.

     (b) Therapy assistant. An agency may choose to employ or contract with a therapy assistant. To qualify as a therapy assistant, an individual must meet the minimum professional requirements in (i) and (ii) of this section:

     (i) The individual must be one of the following:

     (A) Licensed by DOH as a licensed health care professional; or

     (B) Credentialed as an agency affiliated counselor under chapter 18.19 RCW.

     (ii) The individual must:

     (A) Have sixty hours of training in ABA principles, techniques, and providing services to children with autism spectrum disorders; and

     (B) Before providing services to individuals, be approved by the agency's supervising LBAT as having demonstrated competency in delivering ABA services.

     (c) If the agency employs or contracts with a therapy assistant(s), the agency must ensure the LBAT:

     (i) Supervises the therapy assistant in accordance with agency policies and procedures;

     (ii) Completes a review of an individual's ABA treatment plan with the therapy assistant before services are provided;

     (iii) Assures the therapy assistant delivers services according to the individual's ABA treatment plan; and

     (iv) Meets twice each month with the therapy assistant and documents review and approval of the individual's progress with the ABA treatment plan.

     (6) Maintaining licensure. To maintain department licensure to provide ABA services, an agency must:

     (a) Continue to employ or contract with professional staff to meet the requirements in subsection (5) of this section. Contracted professional staff must meet the same requirements as the agency's noncontracted professional staff.

     (b) Meet the following, as applicable to ABA services:

     (i) Competency requirements for staff in WAC 388-865-0405, except that subsections (5) and (6) do not apply to ABA services.

     (ii) Consumer rights requirements in WAC 388-865-0410, except that subsections (3)(m) and (3)(n) do not apply to ABA services.

     (iii) Access to services requirements in WAC 388-865-0415.

     (iv) Intake evaluation requirements in WAC 388-865-0420, except that subsections (1), (2)(d)(i), (2)(d)(iv), (2)(d)(v), and (2)(d)(vii) do not apply to ABA services.

     (v) Individual service plan requirements in WAC 388-865-0425, except that subsections (1)(a), (2)(d), (2)(g), and (4) do not apply to ABA services.

     (vi) Clinical records requirements in WAC 388-865-0430, except that subsections (7), (10), (11) and (12) do not apply to ABA services.

     (vii) Clinical record access procedures and requirements in WAC 388-865-0435 and 388-865-0436.

     (viii) Quality management process requirements in WAC 388-865-0450.

     (ix) Provider requirements in WAC 388-865-0470, 388-865-0472, 388-865-0478, 388-865-0480, and 388-865-0482, if applicable to the ABA services provided.

     (c) Meet one or more of the following:

     (i) Case management services requirements in WAC 388-865-0456, except that:

     (A) Subsection (6) does not apply to ABA services; and

     (B) Subsection (7) does not apply to ABA services, except that the agency must maintain written procedures for home visits to be in compliance with RCW 71.05.710.

     (ii) Psychiatric treatment, including the medication supervision--additional standards requirements in WAC 388-865-0458, if applicable to the ABA services provided.

     (iii) Behavioral, counseling, and psychotherapy services--additional standards requirements in WAC 388-865-0460, if applicable to the ABA services provided.

     (iv) Day treatment services--additional standards requirements in WAC 388-865-0462, if applicable to the ABA services provided.

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     Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.