Thank you for the opportunity to comment on the Residential Treatment Services Manual.  The Public Policy Committee of the Virginia Association for Behavior Analysis has the following remarks:

Chapter II

Provider Credentials for Mental Health Services Staff:

This section contains separate definition for Licensed Behavior Analysts (LBA), however an LBA is also included in the definition of Licensed Mental Health Professional 

https://law.lis.virginia.gov/admincode/title12/agency35/chapter105/section20/

"Licensed mental health professional" or "LMHP" means a physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, certified psychiatric clinical nurse specialist, licensed behavior analyst, or licensed psychiatric/mental health nurse practitioner.

Thus the LBA could practice in one section as an LMHP and in the other section as an LBA.  Removing the LBA from the definition being used for LMHP would restrict their ability to practice in this type of facility.  Therefore, we recommend including ABA services provided by an LBA be made an integrated part of these services and allowed without the use of EPSDT benefits.

EPSDT PRTFs and TGHs:

This section states that Direct ABA interventions must be provided by either (including but not limited to):

1. An LMHP acting within the scope of their practice;

2. A LMHP, LMHP-R, LMHP-RP or LMHP-S;

#1 indicates that an LMHP can provide ABA if it were within the scope of their practice, but #2 state that an LMHP or any of the subtypes of R, RP or S can provide it regardless if it is scope.  ABA is not generally within the scope of practice of LMHPs (other than LBAs), but behavior modification is.  Behavior modification and the application of behavior analysis are separate professions.

The section indicates that ABA is not a covered benefit under state plan services and is not covered under behavioral therapy, so it is therefore available under EPSDT.

This conflicts with statements from DMAS and management of ABA services under Behavioral Therapy as opposed to under EPSDT. We recommend that DMAS utilize the category 1 CPT codes for Adaptive Behavior Therapy to cover both services and make them state plan services to simplify the use of these services when medically necessary and resolve the apparent policy conflict.

The section for non-state operated providers contains the statement “Providers in an MCO’s network may not appeal enrollment or terminations decisions made by the MCO to the DMAS Appeals Division.” This indicates that the MCO can decline or terminate enrolment of any provider without cause and the provider has no appeal or due process rights. We believe there should be some due process or appeal process to prevent the MCOs from discriminatory actions or actions that jeopardize the needs of recipients in order to maximize profits.

CHAPTER IV

Definitions in this section do not explicitly call out LBA and LABA however the LMHP definition that is used does include LBAs.

The covered service description for EPSDT refers to behavior modification services, this does not match the description of services in Chapter II.  We recommend that ABA services be integrated into the service description as a state plan service rather than an EPSDT service making it possible to include an LBA on staff in facilities where this level of expertise is needed by the people being served. 

For all plans utilizing behavioral reduction techniques there should first be a Functional Analysis conducted to determine the cause of the behavior.

On page 74 it appears that even if an LBA assessed and developed a treatment plan that plan would be overseen by an LMHP regardless if they have that expertise. The LBA must NOT be removed from the section allowing them to provide oversight.

Page 79, we recommend the addition of LBA/LABA to the monitoring and oversight of 1:1 supports.

Thank you for your time.  Please contact us at admin@virginiaaba.org if you have any questions.