The following comments are respectfully submitted by the Association of Professional Behavior Analysts (APBA; www.apbahome.net), a nonprofit international professional association whose mission is to support and advance the practice of applied behavior analysis (ABA). We appreciate the opportunity to comment in support of our constituents in VA and our Affiliate organization, the Virginia Association for Behavior Analysis. 

1. The draft regs contain numerous references to Licensed Mental Health Professionals (LMHP) as qualified to develop, oversee, and implement applied behavior analysis (ABA) services.  According to 12VAC35-105-20, LMHP “… means a physician, 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.”  Of those, only licensed behavior analysts (LBAs) have ABA in their legislated scope of practice; that is, none of the definitions of the scopes of practice in the VA licensure laws of the other professions include behavior analysis. Therefore, if any of those professionals were authorized to oversee or provide ABA services, it would likely violate the licensure laws and ethics codes of all of the professions listed in the definition of LMHP in 12VAC35-105-20. It would also be inconsistent with the following:

• The healthcare provider taxonomy codes for Behavior Analyst (103K00000X) and Assistant Behavior Analyst (106E00000X) issued by the American Medical Association National Uniform Claims Committee, which are distinct from the taxonomy codes for psychologists and other healthcare professionals (see https://npidb.org/taxonomy).

• The American Medical Association’s definition of a qualified health care professional (QHP) as an individual who is qualified by education, training, licensure/regulation (when applicable) and facility privileging (when applicable) who performs a professional service within his/her scope of practice and independently reports that professional service.

• The ABA Coding Coalition’s Model Coverage Policy for Adaptive Behavior Services, which identifies providers of the services encompassed by the 2019 CPT codes for adaptive behavior/ABA services as Licensed Behavior Analysts (in states with behavior analyst licensure laws, like VA), Board Certified Behavior Analysts – Doctoral, Board Certified Behavior Analysts, or “…Licensed psychologists where behavior analysis is in the psychology scope of practice definition in the state psychology licensure law and in the scope of the licensee’s education, training, and competence” (see https://abacodes.org/wp-content/uploads/2020/09/Model-Coverage-Policy.pdf, p. 5. Also see the November 2018 issue of the AMA’s CPT Assistant).

2. Required Activities

• Initial assessment: The definitions of “functional assessment” and “validated tools” need to be spelled out, as the former term is used differently in behavior analysis than in some other professions, assessment tools can be “validated” in a number of ways, and the accuracy and reliability of assessment tools are at least as important as their validity. The last bullet point also needs clarification, as frequency, duration, and intensity are not the only quantitative dimensions of behaviors that may be targeted for ABA treatment, nor are those three dimensions applicable to all target behaviors.
• Individual Service Plans: 
  • “Behavior modification” is an outdated term that should be replaced with “ABA treatment” wherever it appears throughout the document. 
  • “Goals and objectives which define how the provider will measure progress:” Client treatment plans should not include goals and objectives for the provider. Please change to “Description of how the provider will measure client progress.”
  • Baseline status: Again, intensity, frequency, and duration are not the only dimensions of target behaviors that may be important, and those three dimensions are not applicable to all behaviors.
• Care Coordination Goals: It should be made very clear that referrals for other services should be made only if medically necessary for the individual beneficiary, especially in light of the scientific evidence that an eclectic mixture of “therapies” is largely ineffective for most young children with autism (see https://cdn.ymaws.com/www.apbahome.net/resource/collection/1FDDBDD2-5CAF-4B2A-AB3F-DAE5E72111BF/Clarifications.ASDPracticeGuidelines.pdf)

3. Service Limitations

• What is the rationale for limiting group treatment to no more than 3 clients and family group treatment to no more than 3 caregivers? The descriptors for the CPT codes for those services specify that the groups can contain up to 8 individuals. 
• The description of services that may not be provided in the absence of a client or caregiver needs to be revised to make clear that there is an exception for services encompassed by CPT code 97151 (behavior identification assessment administered by QHP; includes both face-to-face and non-face-to-face services). 
• It would be worthwhile to ask a knowledgeable attorney about the legalities of restricting ABA services in school settings to only “observation and collaboration” and “services [that] have been authorized by the school” and “not direct therapy.” Such restrictions might violate the Medicaid EPSDT mandate and/or mental health parity laws.

4. Provider Qualifications, p. 37: See previous comments. Please revise the first sentence to read “ABA providers shall be licensed to practice behavior analysis by the Virginia Board of Medicine…”

5. Staff Requirements 

• Per previous comments, this section should be revised by deleting all references to LMHP, LMHP-R, LMHP-RP, LMHP-S, and Licensed Clinical Psychologist.  
• The language in the last paragraph beginning “Tasks performed by unlicensed personnel…” risks being interpreted to mean that behavior technicians, other paraprofessionals, students, interns, etc. cannot deliver any ABA services, even under the supervision of LBAs and Licensed Assistant Behavior Analysts (LABAs). That would severely limit the availability of ABA services to Medicaid beneficiaries while also driving up the cost of those services. Please either delete that paragraph or change it to “Behavior technicians, students, interns, and other trainees may deliver certain ABA services as delegated to them by the supervising LBA or LABA and consistent with Board of Medicine rules that apply to supervision provided by LBAs and LABAs.”

6. Admission Criteria

• The requirement for a beneficiary to exhibit at least two of the criteria listed on pp. 38-39 seems overly restrictive and may violate the EPSDT mandate. “Sensory integration” is not an observable, measurable behavior so cannot be a target of ABA treatment. 
• The requirement for family members to be involved in treatment at least weekly is likely to be prohibitive for many Medicaid families and may violate mental health parity laws if there is no similar requirement for beneficiaries who receive treatment for medical/physical conditions. 

7. Continued Stay Criteria: See comments under Admission Criteria above.

8. Discharge Criteria:

• Please check with a knowledgeable attorney as to whether the expectation for family members or other caregivers to “manage the child’s behavior” and take on full responsibility for ongoing treatment may violate mental health parity laws unless there are similar requirements for beneficiaries who are receiving treatment for medical/physical conditions. 
• Please check with a knowledgeable attorney as to whether the provision for terminating a beneficiary’s ABA services because their family members or other caregivers are “unable to participate meaningfully in the behavior treatment plan” may violate the Medicaid EPSDT mandate and mental health parity laws.
• ABA providers and Medicaid program administrators should be made aware that scientific research on eclectic, mixed-method interventions for young children with autism suggests strongly that accurate, candid “…description[s] of how the referrals to medical services…have impacted the overall progress and generalization of skills gained from ABA services” may well indicate that the effects were nil or even deleterious. See the “Clarifications” document that is referenced and linked in the comment regarding Care Coordination Goals.  

9. ABA Billing Guidance

• See previous comments about LMHPs and who can serve as QHPs for the CPT codes that are listed here. Please also see the current AMA CPT code book, the November 2018 CPT Assistant article about the listed codes, and the Supplemental Guidance article and Model Coverage Policy under Resources at www.abacodes.org.