WSR 14-01-106
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Behavioral Health and Service Integration Administration)
[Filed December 18, 2013, 10:32 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-16-103.
Title of Rule and Other Identifying Information: New section WAC 388-877A-0370 Recovery support services requiring program-specific certification—Applied behavior analysis (ABA) services; and repealing 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, 388-865-0460 Counseling and psychotherapy services—Additional standards, and 388-865-0469 Applied behavior analysis (ABA) services.
Hearing Location(s): Office Building 2, Lookout Room, 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 January 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than January 23, 2014.
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 January 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by January 8, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is repealing WAC 388-865-0469 Applied behavior analysis (ABA) services filed on May 29, 2013, under WSR 13-12-026, and replacing it with WAC 388-877A-0370 Recovery support services requiring program-specific certification—Applied behavior analysis (ABA) services. This rule contains the licensure, certification, and staffing requirements for agencies providing ABA services to assist children with autism spectrum disorders. WAC 388-865-0400, 388-865-0405, 388-865-0420, 388-865-0425, and 388-865-0460 are also being repealed because the requirements in these sections are now included in chapters 388-877 and 388-877A WAC. The new rule ensures the continued implementation of the requirements of a settlement agreement resulting from 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 [2:12-CV-00742-RAJ]. The rule also ensures the continued provision of 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 has adopted rules in Title 182 WAC to implement this settlement agreement.
Statutory Authority for Adoption: RCW 43.20A.550, 74.04.050, 74.08.090, chapters 70.02, 71.24 RCW.
Statute Being Implemented: RCW 43.20A.550, 74.04.050, 74.08.090, chapters 70.02, 71.24 RCW.
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. WAC 388-865-0469 was adopted to implement, in part, a settlement agreement (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); the department is repealing this section (filed as a permanent rule on May 29, 2013, under WSR 13-12-026) and replacing it with WAC 388-877A-0370. In addition, the requirements in the remaining repealed sections in chapter 388-865 WAC are found in chapters 388-877 and 388-877A WAC. This rule filing continues to implement the settlement agreement. 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. The rules are necessary due to a settlement agreement. The department is repealing WAC 388-865-0469 and other sections in chapter 388-865 WAC (filed as a permanent rule on May 29, 2013, under WSR 13-12-026) because the language adopted due to the settlement agreement will be codified in the new WAC 388-877A-0370 as well as in chapters 388-877 and 388-877A WAC.
December 12, 2014
Katherine I. Vasquez
Rules Coordinator
NEW SECTION
WAC 388-877A-0370 Recovery support services requiring program-specific certification—Applied behavioral analysis (ABA) services
Applied behavior analysis (ABA) services are a recovery support service that requires program-specific certification by the department's division of behavioral health and recovery.
(1) ABA services:
(a) Assist children and their families to improve the core symptoms associated with autism spectrum disorders or other developmental disabilities for which there is evidence ABA is effective; and
(b) Support learning, skill development, and assistance in any one or more of the following areas or domains:
(i) Social;
(ii) Behavior;
(iii) Adaptive;
(iv) Motor;
(v) Vocational; and
(vi) Cognitive.
(2) An agency providing ABA services must meet the:
(a) General requirements in chapter 388-877 WAC for behavioral health services administrative requirements;
(b) General requirements in WAC 388-877A-0300 for recovery support services requiring program-specific certification;
(c) Specific agency staff requirements in WAC 388-877A-0310; and
(d) Specific clinical record content and documentation requirements in WAC 388-877-640 and 388-877A-0320.
(3) The health care authority (HCA) administers rules in chapter 182-531 WAC for ABA services requirements. The rules in chapter 182-531 WAC include:
(a) Definitions that apply to ABA services;
(b) Program and clinical eligibility requirements;
(c) Prior authorization and recertification requirements;
(d) Specific ABA provider requirements;
(e) Covered and noncovered services;
(f) Billing requirements; and
(g) Requirements for:
(i) 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 RCW; and
(ii) ABA assessments and individualized ABA therapy treatment plans.
(4) The ABA therapy treatment plan must:
(a) Be developed and maintained by a lead behavior analysis therapist (LBAT) (see (5) of this section);
(b) Identify the services to be delivered by the LBAT and the therapy assistant, if the agency employs a therapy assistant (see (6) and (7) of this section);
(c) Be comprehensive and incorporate treatment being provided by other health care professionals; and
(d) Document how all treatment will be coordinated, as applicable, with other members of the health care team.
(5) An agency must employ a lead behavior analysis therapist (LBAT).
(a) To qualify as an LBAT, an individual must meet the professional requirements in chapter 182-531 WAC.
(b) The agency must ensure the LBAT meets other applicable requirements in chapter 182-531 WAC.
(6) An agency may choose to employ a therapy assistant.
(a) To qualify as a therapy assistant, an individual must meet the professional requirements in chapter 182-531 WAC.
(b) The agency must ensure the therapy assistant meets other applicable requirements in chapter 182-531 WAC.
(7) If the agency employs a therapy assistant(s), the agency must ensure the LBAT:
(a) Supervises the therapy assistant in accordance with agency policies and procedures;
(b) Meets the requirements in this section;
(c) Completes a review of an individual's ABA therapy treatment plan with the therapy assistant before services are provided;
(d) Assures the therapy assistant delivers services according to the individual's ABA therapy treatment plan; and
(e) Meets at least every two weeks with the therapy assistant and documents review of the individual's progress and/or response to the treatment, and makes changes accordingly to the ABA therapy treatment plan.
(8) To maintain department program-specific certification to provide ABA services, an agency must continue to ensure the requirements in this section are met.
REPEALER
The following sections of the Washington Administrative Code are repealed:
WAC 388-865-0400
Community support service providers.
WAC 388-865-0405
Competency requirements for staff.
WAC 388-865-0420
Intake evaluation.
WAC 388-865-0425
Individual service plan.
WAC 388-865-0460
Behavioral, counseling and psychotherapy services—Additional standards.
WAC 388-865-0469
Applied behavior analysis (ABA) services.